WSR 08-21-043

PROPOSED RULES

DEPARTMENT OF HEALTH


[ Filed October 8, 2008, 5:18 p.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: Chapter 246-10 WAC, Administrative procedure -- Adjudicative proceeding and chapter 246-11 WAC, Model procedural rules for boards; amending rules and adding new section to implement show cause hearing process for summary actions against licensed health care providers.

Hearing Location(s): Department of Health, Point Plaza East Building, 310 Israel Rd S.E., Tumwater, WA 98501, on November 25, 2008, at 9:00 a.m.

Date of Intended Adoption: November 25, 2008.

Submit Written Comments to: Margaret Gilbert, Department of Health, P.O. Box 47873, Olympia, WA 98504-7873, web site http://www3.doh.wa.gov/policyreview/, fax (360) 236-4930, by November 25, 2008.

Assistance for Persons with Disabilities: Contact Margaret Gilbert by November 18, 2008, TTY (800) 833-6388 or 711.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules implement the show cause hearing process established by RCW 18.130.135 in 2008 legislation. The rules would eliminate the current prompt hearing option to eliminate dual and simultaneous proceedings on the same case, while still assuring an expeditious hearing right for all summary actions. The proposed rules provide the show cause option in those cases authorized by the bill, while retaining the prompt hearing option for all other cases.

The proposed rules also make technical corrections providing the current physical address of the adjudicative clerk's office and eliminating cease and desist orders from chapter 246-11 WAC, Model rules for boards and commissions, because unlicensed practice is solely under the secretary's authority.

Reasons Supporting Proposal: RCW 18.130.135, enacted in 2008, establishes the show cause hearing for summary actions resulting in suspension, restriction or limitation of the practice of a licensed health care provider. These rules would make the show cause the expeditous [expeditious] hearing process for those cases while retaining other prompt hearing rights for other cases.

Statutory Authority for Adoption: RCW 34.05.250, 43.70.040.

Statute Being Implemented: Section 6 of 4SHB 1106 (chapter 134, Laws of 2008).

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

Name of Proponent: Department of health, governmental.

Name of Agency Personnel Responsible for Drafting: Margaret Gilbert, Department of Health, (360) 236-4913; Implementation and Enforcement: Laura Farris, Department of Health, (360) 236-4677.

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

A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 (5)(b)(ii) exempts rules that relate only to internal governmental operations that are not subject to violation by a nongovernment party.

October 7, 2008

B. White

for Mary C. Selecky

Secretary

OTS-1487.4


AMENDATORY SECTION(Amending WSR 97-12-089, filed 6/4/97, effective 7/5/97)

WAC 246-10-102   Definitions.   As used in these rules of practice and procedure, the following terms shall have the meaning set forth in this section unless the context clearly indicates otherwise. Other terms shall have their ordinary meaning unless defined elsewhere in this chapter.

"Adjudicative clerk office" shall mean the unit with responsibility for: Docketing; service of orders; and maintaining custody of the adjudicative proceeding record, whose address is:


Department of Health

Adjudicative Clerk Office

((2413 Pacific Avenue))

310 Israel Rd. S.E.

P.O. Box 47879

Olympia, WA 98504-7879


"Adjudicative proceeding" or "hearing" shall mean a proceeding required by statute or constitutional right and conducted under the rules of this chapter, which provides an opportunity to be heard by the department prior to the entry of a final order under this chapter.

"Brief adjudicative proceeding" shall mean an adjudicative proceeding or hearing, the scope or conduct of which is limited as provided in this chapter.

"Department" shall mean the Washington state department of health and, where appropriate, the secretary of the Washington state department of health or the secretary's designee.

"Docket" or "docketing" shall mean the list or calendar of causes set to be heard at a specified time, prepared by the adjudicative clerk office for the use of the department.

"Filing" shall mean receipt by the adjudicative clerk office.

"Initiating document" shall mean a written agency document which initiates action against a license holder or applicant for license or recipient of benefits and which creates the right to an adjudicative proceeding. It may be entitled a statement of charges, notice of intent to deny, order, or by any other designation indicating the action or proposed action to be taken.

"License" shall have the meaning set forth in RCW 34.05.010, and includes any license, certification, registration, permit, approval, or any similar form of authorization required by law to be obtained from the department.

"Office of professional standards" shall mean the unit responsible for conducting adjudicative proceedings.

"Presiding officer" shall mean the person who is assigned to conduct an adjudicative proceeding. The presiding officer may be an employee of the department who is authorized to issue a final decision as designee of the secretary, or an administrative law judge employed by the office of administrative hearings.

"Presiding officer for brief adjudicative proceedings" shall mean an employee of the department who is authorized to conduct brief adjudicative proceedings.

"Program" shall mean the administrative unit within the department responsible for implementation of a particular statute or rule.

"Prompt adjudicative proceeding" or "prompt hearing" shall mean a hearing conducted at the request of the ((license holder or applicant for license)) respondent following summary action taken in accord with this chapter ((against that license holder or applicant)).

"Protective order" shall mean an order issued under this chapter which limits the use of, access to, or disclosure of information or evidence.

"Recipient of benefits" shall mean an individual who has qualified for benefits administered by the department.

"Respondent" shall mean a person eligible to request an adjudicative proceeding in a program under the jurisdiction of the department who is named in an initiating document.

"Secretary" shall mean the secretary of the department of health or his/her designee.

"Summary action" shall mean an agency action to address an immediate danger to the public health, safety, or welfare and shall include, but not be limited to, a cease and desist order, an order of summary suspension, and an order of summary restriction of a license.

[Statutory Authority: RCW 18.155.040. 97-12-089, 246-10-102, filed 6/4/97, effective 7/5/97. Statutory Authority: RCW 43.70.040. 94-04-079, 246-10-102, filed 1/31/94, effective 3/3/94; 93-13-005 (Order 369), 246-10-102, filed 6/3/93, effective 7/4/93.]


AMENDATORY SECTION(Amending WSR 94-04-079, filed 1/31/94, effective 3/3/94)

WAC 246-10-304   Adjudicative proceedings upon summary action.   ((Following summary action taken by the department, the respondent may:))

(1) Except as identified in subsection (2) of this section, following a summary action taken by the department, the respondent may:

(a) Request a prompt adjudicative proceeding conducted in accordance with this chapter; or

(((2))) (b) Waive the prompt adjudicative proceeding and request a regularly scheduled adjudicative proceeding conducted in accordance with this chapter; or

(((3))) (c) Waive the right to an adjudicative proceeding and submit a written statement to be considered prior to the entry of the final order; or

(((4))) (d) Waive the opportunity to be heard.

(2) For summary actions to suspend, restrict or limit the practice of a license holder of a secretary profession, the respondent may:

(a) Request a hearing as provided in RCW 18.130.090 and request a show cause hearing conducted in accordance with RCW 18.130.135 and WAC 246-10-307; or

(b) Request a regularly scheduled adjudicative proceeding conducted in accordance with this chapter; or

(c) Waive the right to an adjudicative proceeding and submit a written statement to be considered prior to the entry of the final order; or

(d) Waive the opportunity to be heard.

(3) In this section, "secretary profession" means a health care profession for which the secretary of health is the disciplining authority under RCW 18.130.040 (2)(a).

[Statutory Authority: RCW 43.70.040. 94-04-079, 246-10-304, filed 1/31/94, effective 3/3/94; 93-13-005 (Order 369), 246-10-304, filed 6/3/93, effective 7/4/93.]


AMENDATORY SECTION(Amending WSR 94-04-079, filed 1/31/94, effective 3/3/94)

WAC 246-10-305   Opportunity for prompt adjudicative proceeding.   (((1))) Except as provided in WAC 246-10-304(2), any respondent affected by a summary action shall be provided the opportunity to request a prompt adjudicative proceeding.

(1) Notice of the opportunity shall be provided in the notice of opportunity to defend against the allegations that are the basis for the summary action. The form for requesting an adjudicative proceeding shall include the option of requesting a prompt adjudicative proceeding.

(2) Any respondent affected by a summary action may request a prompt adjudicative proceeding, may elect a regularly scheduled adjudicative proceeding instead of a prompt adjudicative proceeding, or may waive the opportunity for adjudicative proceeding in accordance with WAC 246-10-203.

(3) Any request for a prompt adjudicative proceeding must be filed within ten days of the service of the summary action.

(4) If requested by the respondent, a prompt adjudicative proceeding shall be conducted within twenty days of service of a summary action.

(5) Regardless of whether a prompt adjudicative proceeding is requested, the matter shall be resolved as quickly as feasible in accordance with all other applicable rules.

[Statutory Authority: RCW 43.70.040. 94-04-079, 246-10-305, filed 1/31/94, effective 3/3/94; 93-13-005 (Order 369), 246-10-305, filed 6/3/93, effective 7/4/93.]


NEW SECTION
WAC 246-10-307   Show cause hearing.   (1) A license holder's request for a show cause hearing must be filed within twenty days of the service of the summary action. A license holder must also respond to the statement of charges by requesting a hearing or an extension of time as provided in RCW 18.130.090.

(2) The show cause hearing will be conducted within fourteen days of the license holder filing the show cause hearing request.

(3) By noon on the fourth calendar day after filing the show cause hearing request, the license holder must file, and deliver a copy to the department's attorney, any documents or written testimony to be admitted into evidence at the show cause hearing.

(4) By noon on the eighth calendar day after the date the show cause hearing request was filed, but no less than the close of business two business days before the show cause hearing, the department must file, and deliver a copy to the license holder's attorney or to the license holder if not represented by counsel, any rebuttal documents or written testimony to be admitted into evidence at the show cause hearing.

(5) In reviewing the order of summary action, the presiding officer will consider the statement of charges, the motions and documents supporting the request for summary action, the license holder's answer to the statement of charges, any documentary evidence or written testimony presented by the license holder and department in rebuttal, and unless waived, the parties will be given an opportunity for oral argument.

(6) At the show cause hearing, the department has the burden of proving it is more probable than not that the license holder poses an immediate threat to the public health and safety.

(7) The presiding officer will issue an order and may overturn, uphold, or amend the summary suspension or restriction.

(8) Within forty-five days of a determination by the secretary to sustain the summary suspension or place restrictions on the license, the license holder may request a full hearing on the merits of the disciplining authority's decision to suspend or restrict the license. A full hearing must be provided within forty-five days of receipt of the request for a hearing, unless stipulated otherwise.

[]

OTS-1488.4


AMENDATORY SECTION(Amending WSR 97-13-015, filed 6/6/97, effective 7/7/97)

WAC 246-11-010   Definitions.   As used in these rules of practice and procedure, the following terms shall have the meaning set forth in this section unless the context clearly indicates otherwise. Other terms shall have their ordinary meaning unless defined elsewhere in this chapter.

"Adjudicative clerk office" shall mean the unit with responsibility for: Docketing; service of orders; and maintaining custody of the adjudicative proceeding record, whose address is:


Department of Health

Adjudicative Clerk Office

((2413 Pacific Avenue))

310 Israel Rd. S.E.

P.O. Box 47879

Olympia, WA 98504-7879


"Adjudicative proceeding" or "hearing" shall mean a proceeding required by statute or constitutional right and conducted under the rules of this chapter, which provides an opportunity to be heard by the board prior to the entry of a final order under this chapter.

"Board" shall mean a disciplining authority under RCW 18.130.040 (2)(b) and (3).

"Brief adjudicative proceeding" shall mean an adjudicative proceeding or hearing, the scope or conduct of which is limited as provided in this chapter.

"Department" shall mean the Washington state department of health and, where appropriate, the secretary of the Washington state department of health or the secretary's designee.

"Docket" or "docketing" shall mean the list or calendar of causes set to be heard at a specified time, prepared by the adjudicative clerk office for the use of the department.

"Filing" shall mean receipt by the adjudicative clerk office.

"Initiating document" shall mean a written agency document which initiates action against a license holder or applicant for license and which creates the right to an adjudicative proceeding. It may be entitled a statement of charges, notice of intent to deny, or by any other designation indicating the action or proposed action to be taken.

"License" shall have the meaning set forth in RCW 34.05.010 and includes license to practice the profession for which the board is the disciplining authority and any approval of school or curriculum required by law or rule to be obtained from the board.

"Presiding officer" shall mean the person who is assigned to conduct an adjudicative proceeding and who may either be a member of the board, an individual appointed pursuant to RCW 18.130.095(3), or an administrative law judge employed by the office of administrative hearings.

"Presiding officer for brief adjudicative proceedings" shall mean an employee of the department authorized by the board to conduct brief adjudicative proceedings.

"Program" shall mean the administrative unit within the department responsible for implementation of that chapter of Title 18 RCW establishing the board or its powers and responsibilities.

(("Prompt adjudicative proceeding" or "prompt hearing" shall mean a hearing conducted at the request of the license holder or applicant for license following summary action taken in accord with this chapter against that license holder or applicant.))

"Protective order" shall mean an order issued under this chapter which limits the use of, access to, or disclosure of information or evidence.

"Respondent" shall mean a license holder or applicant for license under the jurisdiction of the board who is named in an initiating document.

"Secretary" shall mean the secretary of the department of health or his/her designee.

"Summary action" shall mean an agency action to address an immediate danger to the public health, safety, or welfare and shall include, but not be limited to, ((a cease and desist order,)) an order of summary suspension, and an order of summary restriction of a license.

[Statutory Authority: RCW 18.155.040. 97-13-015, 246-11-010, filed 6/6/97, effective 7/7/97. Statutory Authority: RCW 18.130.050(1) and 18.130.060(3). 94-04-078, 246-11-010, filed 1/31/94, effective 3/3/94. Statutory Authority: RCW 18.130.050(1) and 34.05.220. 93-08-003 (Order 347), 246-11-010, filed 3/24/93, effective 4/24/93.]


AMENDATORY SECTION(Amending WSR 94-04-078, filed 1/31/94, effective 3/3/94)

WAC 246-11-330   Adjudicative proceedings upon summary action.   Following summary action taken by the board, the respondent may:

(1) Request a ((prompt adjudicative proceeding conducted in accordance with this chapter)) hearing as provided in RCW 18.130.090 and request a show cause hearing conducted in accordance with RCW 18.130.135 and WAC 246-11-340; or

(2) ((Waive the prompt adjudicative proceeding and)) Request a regularly scheduled adjudicative proceeding conducted in accordance with this chapter; or

(3) Waive the right to an adjudicative proceeding and submit a written statement to be considered prior to the entry of the final order; or

(4) Waive the opportunity to be heard.

[Statutory Authority: RCW 18.130.050(1) and 18.130.060(3). 94-04-078, 246-11-330, filed 1/31/94, effective 3/3/94. Statutory Authority: RCW 18.130.050(1) and 34.05.479. 93-08-003 (Order 347), 246-11-330, filed 3/24/93, effective 4/24/93.]


AMENDATORY SECTION(Amending WSR 94-04-078, filed 1/31/94, effective 3/3/94)

WAC 246-11-340   Opportunity for ((prompt adjudicative proceeding)) show cause hearing.   (((1) Any respondent affected by a summary action shall be provided the opportunity to request a prompt adjudicative proceeding. Notice of the opportunity shall be provided in the notice of opportunity to defend against the allegations that are the basis for the summary action. The form for requesting an adjudicative proceeding shall include the option of requesting a prompt adjudicative proceeding.

(2) Any respondent affected by a summary action may request an prompt adjudicative proceeding, may elect a regularly scheduled adjudicative proceeding instead of a prompt adjudicative proceeding, or may waive the opportunity for adjudicative proceeding in accord with WAC 246-11-270.

(3) Any request for a prompt adjudicative proceeding must be filed within ten days of the service of the summary action.

(4) If requested by the respondent, a prompt adjudicative proceeding shall be conducted within twenty days of service of a summary action.

(5) Regardless whether a prompt adjudicative proceeding is requested, the matter shall be resolved as quickly as feasible in accordance with all other applicable rules.)) (1) A license holder's request for a show cause hearing must be filed within twenty days of the service of the summary action. A license holder must also respond to the statement of charges by requesting a hearing or an extension of time as provided in RCW 18.130.090.

(2) The show cause hearing will be conducted by a panel of the board within fourteen days of the license holder filing the show cause hearing request.

(3) By noon on the fourth calendar day after filing the show cause hearing request, the license holder must file, and deliver a copy to the department's attorney, any documents or written testimony to be admitted into evidence at the show cause hearing.

(4) By noon on the eighth calendar day after the date the show cause hearing request was filed, but no less than the close of business two business days before the show cause hearing, the department must file, and deliver a copy to the license holder's attorney or to the license holder if not represented by counsel, any rebuttal documents or written testimony to be admitted into evidence at the show cause hearing.

(5) In reviewing the order of summary action, the show cause hearing panel will consider the statement of charges, the motions and documents supporting the request for summary action, the license holder's answer to the statement of charges, any documentary evidence or written testimony presented by the license holder and department in rebuttal, and unless waived, the parties will be given an opportunity for oral argument.

(6) At the show cause hearing, the department has the burden of proving it is more probable than not that the license holder poses an immediate threat to the public health and safety.

(7) The show cause panel will issue an order and may overturn, uphold or amend the summary suspension or restriction.

(8) Within forty-five days of a determination by the panel of the board to sustain the summary suspension or place restrictions on the license, the license holder may request a full hearing on the merits of the disciplining authority's decision to suspend or restrict the license. A full hearing must be provided within forty-five days of receipt of the request for a hearing, unless stipulated otherwise.

[Statutory Authority: RCW 18.130.050(1) and 18.130.060(3). 94-04-078, 246-11-340, filed 1/31/94, effective 3/3/94. Statutory Authority: RCW 18.130.050(1) and 34.05.479. 93-08-003 (Order 347), 246-11-340, filed 3/24/93, effective 4/24/93.]

Washington State Code Reviser's Office