WSR 03-09-116

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Management Services Administration)

[ Filed April 22, 2003, 4:36 p.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule: WAC 388-02-0215 What is the authority of the ALJ?

Purpose: The department is amending subsection (4) of the rule to clarify that review of an administrative law judge's (ALJ) initial order by the DSHS Board of Appeals (BOA) is appropriate for cases where the hearing right existed, the request for a hearing was received by the Office of Administrative Hearings (OAH) or DSHS before November 15, 2002, and other rules do not require the ALJ to enter a final order. The proposed rule also makes clarifying revisions to BOA review rights contained in amendments [to] the rule as adopted on October 15, 2002, as WSR 02-21-061, and corrects WAC cross references.

Statutory Authority for Adoption: RCW 34.05.020.

Statute Being Implemented: Chapter 34.05 RCW, Parts IV and V.

Summary: See Purpose above.

Reasons Supporting Proposal: The amended rule will clarify the right to a DSHS Board of Appeals review of initial orders entered by an Office of Administrative Hearings administrative law judge for individuals requesting or receiving DSHS services or providers and other entities having the right to request a hearing concerning DSHS actions. The proposed rule also preserves the hearing review rights as they existed before the rule was amended as WSR 02-21-061 for individuals or entities that requested a hearing on or before November 14, 2002.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Brian Lindgren, Manager, BOA-RPAU, P.O. Box 45850, Olympia, WA 98504-5850, (360) 664-6093.

Name of Proponent: Department of Social and Health Services, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: See Purpose and Reasons Supporting Proposal above.

This rule is proposed without prior filing of a CR-101 preproposal statement of inquiry. A CR-101 notice is not required for "rules that adopt, amend or repeal a procedure, practice or requirement relating to agency hearings" per RCW 34.05.310 (4)(g). Interested parties have participated in the development of the rule prior to the filing of this proposed rule.

Proposal Changes the Following Existing Rules: 1. The following subsections of WAC 388-02-0215(4) will be amended:

(e): To clarify that the review of cases concerns placement on a state registry of personal care aides;

(f), (g), (h), and (i): To clarify that only the client may request a hearing concerning denial or termination of a provider contract;

(j): To provide BOA review of cases concerning social service eligibility under new chapter 388-72A WAC;

(w), (x), and (y): To correct incorrect WAC cross references.

2. A new subsection (dd) is added to subsection (4) of this rule to clarify that the review is permitted for cases concerning denial of authorization for unsupervised access to children or to individuals with developmental disabilities under WAC 388-06-0240(1).

3. A new subsection (ee) is added to subsection (4) of this rule to clarify the appeal rights in cases where the individual and entity requested a hearing before November 15, 2002, where a hearing right existed and other rules do not require the administrative law judge to enter a final order.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement is not required for rules that adopt, amend or repeal a procedure, practice or requirement related to agency hearings. See RCW 19.85.025(3) and 34.05.310 (4)(g).

RCW 34.05.328 does not apply to this rule adoption. RCW 34.05.328 does not apply, since the rule does not meet the definition of a "significant legislative rule." WAC 388-02-0215 is a "procedural rule" that amends a procedure, practice or requirement related to agency hearings. See RCW 34.05.328 (5)(c)(i)(A) and (5)(c)(iii).

Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on May 27, 2003, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by May 23, 2003, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaax@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Rules Coordinator, DSHS Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., May 27, 2003.

Date of Intended Adoption: Not earlier than May 28, 2003.

April 16, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3187.4
AMENDATORY SECTION(Amending WSR 02-21-061, filed 10/15/02, effective 11/15/02)

WAC 388-02-0215   What is the authority of the ALJ?   (1) The ALJ must hear and decide the issues de novo (anew) based on what is presented during the hearing.

(2) As needed, the ALJ may:

(a) Determine the order for presenting evidence;

(b) Issue subpoenas or orders directing witnesses to appear or bring documents;

(c) Rule on objections, motions, and other procedural matters;

(d) Rule on an offer of proof made to admit evidence;

(e) Admit relevant evidence;

(f) Impartially question witnesses to develop the record;

(g) Call additional witnesses and request exhibits to complete the record;

(h) Give the parties an opportunity to cross-examine witnesses or present more evidence against the witnesses or exhibits;

(i) Keep order during the hearing;

(j) Allow or require oral or written argument and set the deadlines for the parties to submit argument or evidence;

(k) Permit others to attend, photograph or electronically record hearings, but may place conditions to preserve confidentiality or prevent disruption;

(l) Allow a party to waive rights given by chapters 34.05 RCW or 388-02 WAC, unless another law prevents it;

(m) Decide whether a party has a right to a hearing;

(n) Issue protective orders;

(o) Consider granting a stay if authorized by law or DSHS rule; and

(p) Take any other action necessary and authorized under these or other rules.

(3) The ALJ administers oaths or affirmations and takes testimony.

(4) The ALJ enters an initial order in those cases where the parties may request review of an initial order by a review judge. Cases where the parties may request review of an initial order by a review judge are those relating to:

(a) Adult family home licenses under chapter 388-76 WAC;

(b) Boarding home licenses under chapter 388-78A WAC;

(c) Resident protection program findings under WAC 388-97-077;

(d) Nursing home licenses under WAC 388-97-550 through 388-97-695;

(e) Placement of personal aides providing self-directed care on a state registry under RCW 74.39A.050(9) and WAC 388-71-0150 and 388-71-0155;

(f) Where the client has requested a hearing under WAC 388-71-0560, the termination of a provider for placing clients in imminent jeopardy under RCW 74.39A.095(7) and WAC 388-71-0551;

(g) Where the client has requested a hearing under WAC 388-71-0560, the termination of a provider due to inadequate performance or inability to deliver quality care under RCW 74.39A.095(7) and WAC 388-71-0540 and 388-71-0551;

(h) Where the client has requested a hearing under WAC 388-71-0560, the denial of a contract to a provider due to inability of the provider to appropriately meet the care needs of clients under RCW 74.39A.095(8) and WAC 388-71-0546;

(i) Where the client has requested a hearing under WAC 388-71-0560, the denial or termination of a contract and subsequent denial of payment to a provider due to a disqualifying crime or lack of character, competence, or suitability to maintain the health, safety, and well-being of clients under RCW 43.20A.710(5) and WAC 388-71-0540(3) through (5);

(j) Social service eligibility under WAC 388-71-0400 through 388-71-0480, 388-71-0202, and 388-71-0203, and under chapter 388-72A WAC, except for WAC 388-72A-0055(2), 388-72A-0060(1), and 388-72A-0065(4) through (6);

(k) Domestic violence perpetrator treatment program certification under chapter 388-60 WAC;

(l) Licensing or certification of child foster care homes, programs, facilities, and agencies under chapter 74.15 RCW and chapters 388-140, 388-145, 388-148 and 388-160 WAC;

(m) Child protective services findings of abuse and neglect under RCW 26.44.125 and chapter 388-15 WAC;

(n) Adoption support under WAC 388-27-0120 through 388-27-0390, for which a hearing has been held under WAC 388-27-0365;

(o) Child day care licenses under chapter 74.15 RCW and chapters 388-150, 388-151, and 388-155 WAC;

(p) Background checks of protective payees under WAC 388-460-0025, for which a hearing has been held under WAC 388-460-0070;

(q) Background checks of child care providers and other persons under WAC 388-290-0143, for which a hearing has been held under WAC 388-290-0260 as part of the working connections child care program;

(r) Background checks of persons acting in the place of a parent under WAC 388-454-0006, for which a hearing has been held under WAC 388-472-0005 (1)(j);

(s) Claims of good cause for not cooperating with the division of child support under WAC 388-422-0020;

(t) Parent address disclosure under WAC 388-14A-2114 through 388-14A-2140;

(u) Chemical dependency treatment provider certification under chapter 388-805 WAC;

(v) Community residential services and support certification, for which a hearing has been held under WAC 388-820-920;

(w) Denial or termination of eligibility for services under WAC ((388-825-100)) 388-825-030 and 388-825-035, for which a hearing has been held under WAC 388-825-120 (1) (a);

(x) Development or modification of an individual service plan under WAC 388-825-050, for which a hearing has been held under WAC 388-825-120 (1) (b);

(y) Authorization, denial, reduction, or termination of services under WAC ((388-825-100)) 388-825-055, for which a hearing has been held under WAC 388-825-120 (1) (c);

(z) Licensed community facilities under RCW 74.15.210 and WAC 388-730-0090;

(aa) Community mental health and involuntary treatment program licenses under WAC 388-865-0480;

(bb) Medical, dental, or transportation services, for which a hearing has been held under WAC 388-526-2610;

(cc) Medical provider overpayments, for which a hearing has been held under WAC 388-502-0230(5) or 388-502-0240(17); or

(dd) Background checks under WAC 388-06-0110 that result in denial of authorization for unsupervised access to children or to individuals with developmental disabilities, for which a hearing has been held under WAC 388-06-0240(1); or

(ee) Other cases for which a right to a hearing exists, if a request for a hearing was received by OAH or DSHS on or before November 14, 2002, and other rules do not require the ALJ to enter a final order.

(5) The ALJ makes the final decision and enters the final order in all cases except those cases set forth in subsection (4) of this section.

(6) A review judge has the same authority as an ALJ when presiding at a hearing.

[Statutory Authority: RCW 34.05.020 and chapter 34.05 RCW, Parts IV and V, 2002 c 371, 211. 02-21-061, 388-02-0215, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0215, filed 9/1/00, effective 10/2/00.]

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