WSR 10-19-141

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Financial Services Administration)

[ Filed September 22, 2010, 9:17 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-22-051.

Title of Rule and Other Identifying Information: The department is amending chapter 388-02 WAC, department hearing rules.

Hearing Location(s): Office Building 2, Auditorium, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html or by calling (360) 664-6094), on November 9, 2010, at 10:00 a.m.

Date of Intended Adoption: Not earlier than November 10, 2010.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 1115 Washington Street S.E., Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on November 9, 2010.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant by October 26, 2010, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at jennisha.johnson@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules:

A. Rules to promote timeliness.

1. Prehearing conferences: The proposed rule revision makes a prehearing conference mandatory if a prehearing conference is requested by either party and clarifies the administrative law judge (ALJ) responsibility to record the prehearing. Prehearing conferences can help expedite or settle cases.

2. Notice of hearings: The proposed rule revision requires office of administrative hearings (OAH) to mail hearing notices not less than fourteen days before the hearing in most situations and requires rescheduling if requested by a party when adequate notice is not given. The proposed rule revision also requires OAH to send copies of requests for hearing to the department unless the request was received from the department. These changes support prehearing planning and opportunities for communication and settlement.

3. Late requests for review: The proposed rule revision changes the standard for granting review when a request is late from "good reason" to "good cause" to comport with the standard used elsewhere in the rules regarding the issues of lateness or failure to act.

4. Hearing record content: The proposed rule revision sets forth the required contents for administrative hearing files. Missing items can delay board of appeals (BOA) review.

B. Rules to make other process improvements.

5. Review standards: The proposed rule revision deletes review standards from the hearing rules to comport with applicable published case law and the Administrative Procedure Act.

6. What laws apply: The proposed rule revision clarifies that the ALJ should apply the substantive rules that were in effect when the department made its original decision, notwithstanding subsequent amendments, and the procedural rules that were in effect on the date the procedure was followed.

7. The proposed rule revision clarifies when notice is required regarding assignment of ALJs and the grounds and procedures for a motion of prejudice.

8. The proposed rule revision deletes the ALJ's authority to dismiss or reverse department actions when the department does not attend a prehearing conference.

9. The proposed rule revision addresses the effect of the department's indexed final orders. The RCW permits an agency to cite a final order (such as a BOA review decision) as precedent if it is included in the agency's published index of significant decisions. The proposed rule revision informs parties of this authority.

10. Equitable estoppel: The proposed rule revision clarifies the circumstances under the law in which department statements or actions which were relied upon by the appellant may be used by the appellant to defend against a department action (such as collection of an overpayment). The proposed rule amendments are made so that the rule comports with applicable appellate case law.

11. Limited authority of ALJs: The proposed rule revision clarifies that under existing law, ALJs do not have the same equitable powers as a superior court judge.

12. The proposed rule revision clarifies when and how a hearing can be converted from one format to another (i.e. in-person versus telephonic).

13. The proposed rule revision makes corrections for grammar and other minor changes for clarification.

Reasons Supporting Proposal: See Purpose above.

Statutory Authority for Adoption: RCW 34.05.020, 34.05.220.

Statute Being Implemented: Chapter 34.05 RCW.

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

Name of Proponent: Department of social and health services, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Jim Conant, 1115 Washington Street S.E., Olympia, WA 98504, (360) 664-6081.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rules adopt, amend, or repeal "a procedure, practice or requirement relating to agency hearings" and under RCW 19.85.025(3) and 34.05.310 (4)(g)(i), a small business economic impact statement is not required.

A cost-benefit analysis is not required under RCW 34.05.328. The proposed rules are "procedural rules" related to agency hearings and do not meet the definition of a "significant legislative rule" under RCW 34.05.328 (5)(c)(iii). Under RCW 34.05.328 (5)(a)(i), a cost-benefit analysis is only required for significant legislative rules. A cost-benefit analysis is not required for procedural rules.

September 20, 2010

Katherine I. Vasquez

Rules Coordinator

4225.7
AMENDATORY SECTION(Amending WSR 08-21-144, filed 10/21/08, effective 11/21/08)

WAC 388-02-0010   What definitions apply to this chapter?   The following definitions apply to this chapter:

"Administrative law judge (ALJ)" means an impartial decision-maker who is an attorney and presides at an administrative hearing. The office of administrative hearings (OAH), which is a state agency, employs the ALJs. ALJs are not ((DSHS)) department employees or ((DSHS)) department representatives.

"BOA" means the ((DSHS)) board of appeals.

"Business days" means all days except Saturdays, Sundays and legal holidays.

"Calendar days" means all days including Saturdays, Sundays and legal holidays.

"Deliver" means giving a document to someone in person.

"Department" means the department of social and health services.

"Documents" means papers, letters, writings, or other printed or written items.

"DSHS" means the department of social and health services.

"DSHS or department representative" means an employee of ((DSHS)) the department, a ((DSHS)) department contractor, or an assistant attorney general authorized to represent ((DSHS)) the department in an administrative hearing. ((DSHS)) Department representatives include, but are not limited to, claims officers and ((fair)) administrative hearing coordinators.

"Final order" means an order that is the final ((DSHS)) department decision.

"Hearing" means a proceeding before an ALJ or review judge that gives a party an opportunity to be heard in disputes about ((DSHS)) department programs. For purposes of this chapter, hearings include administrative hearings, adjudicative proceedings, and any other similar term referenced under chapter 34.05 RCW, the Administrative Procedure Act, Title 388 of the Washington Administrative Code (WAC), chapter 10-08 WAC, or other law.

"Initial order" is a hearing decision made by an ALJ that may be reviewed by a BOA review judge at either party's request.

"Judicial review" means a superior court's review of a final order.

"Mail" means placing ((the)) a document in the mail with the proper postage.

"OAH" means the office of administrative hearings, a separate state agency from ((DSHS)) the department.

"Party" means:

(1) The department or DSHS; or

(2) A person or entity:

(a) Named in a ((DSHS)) department action;

(b) To whom a ((DSHS)) department action is directed; or

(c) Allowed to participate in a hearing to protect an interest as authorized by law or rule.

"Prehearing conference" means a proceeding scheduled and conducted by an ALJ or review judge in preparation for a hearing.

"Prehearing meeting" means an informal voluntary meeting that may be held before any prehearing conference or hearing.

"Program" means a ((DSHS)) department organizational unit and the services that it provides, including services provided by ((DSHS)) department staff and through contracts with providers. Organizational units include, but are not limited to, administrations and divisions.

"Record" means the official documentation of the hearing process. The record includes recordings or transcripts, admitted exhibits, decisions, briefs, notices, orders, and other filed documents.

"Review" means a review judge evaluating initial orders entered by an ALJ and making the final agency decision as provided by RCW 34.05.464, or issuing final orders.

"Review judge" means a decision-maker with expertise in ((DSHS)) department rules who is an attorney and serves as the reviewing officer under RCW 34.05.464. In ((come)) some cases, review judges conduct hearings and enter final orders. In other cases, they review initial orders and may make changes to correct any errors in an ALJ's initial order. ((When)) After reviewing initial orders or conducting hearings, review judges enter final orders. Review judges are employed by ((DSHS)) the department, are located in the ((DSHS)) board of appeals (BOA), and are not part of the ((DSHS)) department program involved in the review. See WAC 388-02-0600 for information on the authority of a review judge.

"Rule" means a state regulation. Rules are found in the Washington Administrative Code (WAC).

"Should" means that an action is recommended but not required.

"Stay" means an order temporarily halting the ((DSHS)) department decision or action.

"You" means any individual or entity that has a right to be involved with the ((DSHS)) department hearing process, which includes a party or a party's representative. "You" does not include ((DSHS)) the department or its representative.

[Statutory Authority: RCW 34.05.020, 34.05.220, 42 C.F.R. 431.10 (e)(3), 45 C.F.R. 205.100 (b)(3), chapter 34.05 RCW, Parts IV and V. 08-21-144, 388-02-0010, filed 10/21/08, effective 11/21/08. Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 211. 02-21-061, 388-02-0010, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0010, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 09-05-032, filed 2/11/09, effective 3/14/09)

WAC 388-02-0025   Where is the office of administrative hearings located?   (1)(a) The office of administrative hearings (OAH) headquarters location is:


Office of Administrative Hearings

2420 Bristol Court SW((, 1st Floor))

P.O. Box 42488

Olympia WA 98504-2488

(360) 664-8717

(360) 664-8721 (fax)


(b) The headquarters office is open from 8:00 am to 5:00 p.m. Mondays through Friday, except legal holidays.

(2) OAH field offices are at the following locations:


Olympia

Office of Administrative Hearings

2420 Bristol Court SW((, 3rd Floor))

P.O. Box 42489

Olympia, WA 98504-2489

(360) 753-2531

1-800-583-8271

fax: (360) 586-6563


Seattle

Office of Administrative Hearings

One Union Square

600 University Street, Suite 1500

Mailstop: TS-07

Seattle, WA 98101-1129

(206) 389-3400

1-800-845-8830

fax: (206) 587-5135


Vancouver

Office of Administrative Hearings

5300 MacArthur Blvd., Suite 100

Vancouver, WA 98661

(360) 690-7189

1-800-243-3451

fax: (360) 696-6255


Spokane

Office of Administrative Hearings

Old City Hall Building, 5th Floor

221 N. Wall Street, Suite 540

Spokane, WA 99201

(509) 456-3975

1-800-366-0955

fax: (509) 456-3997


Yakima

Office of Administrative Hearings

32 N 3rd Street, Suite 320

Yakima, WA 98901-2730

(509) 575-2147

1-800-843-3491

fax (509) 454-7281


(3) You should contact the Olympia field office, under subsection (2), if you do not know the correct field office.

(4) You can obtain further hearing information at the OAH web site: www.oah.wa.gov.

[Statutory Authority: RCW 34.05.353. 09-05-032, 388-02-0025, filed 2/11/09, effective 3/14/09. Statutory Authority: RCW 34.05.020 and chapter 34.05 RCW, Parts IV and V. 05-22-076, 388-02-0025, filed 10/31/05, effective 12/1/05. Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 211. 02-21-061, 388-02-0025, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0025, filed 9/1/00, effective 10/2/00.]


NEW SECTION
WAC 388-02-0037   When must the OAH reschedule a proceeding based on the amount of notice required?   Any party may request that the proceeding be rescheduled and OAH must reschedule if:

(1) A rule requires the OAH to provide notice of a proceeding; and

(2) The OAH does not provide the amount of notice required.

[]


NEW SECTION
WAC 388-02-0038   When may the OAH shorten the amount of notice required to the parties of a proceeding?   The ALJ and the parties may agree to shorten the amount of notice required by any rule.

[]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0110   What happens after you request a hearing?   (1) After you request a hearing, the OAH sends the parties a notice containing the hearing date, time, and place. This document is called the notice of hearing. ((For certain types of hearings,)) The parties may also receive a written notice of a prehearing conference. You may receive a notice of a prehearing conference either before or after receiving the notice of the hearing.

(2) Before your hearing is held:

(a) ((DSHS)) The department may contact you and try to resolve your dispute; and

(b) You are encouraged to contact ((DSHS)) the department and try to resolve your dispute.

(3) If you do not appear for your hearing, an ALJ may enter an order of default or an order dismissing your hearing according to WAC 388-02-0285.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0110, filed 9/1/00, effective 10/2/00.]


NEW SECTION
WAC 388-02-0157   How does a party appear?   (1) If you are going to represent yourself, you should provide the ALJ and other parties with your name, address, and telephone number.

(2) If you are represented, your representative should provide the ALJ and other parties with the representative's name, address, and telephone number.

(3) The presiding officer may require your representative to file a written notice of appearance or to provide documentation that you have authorized the representative to appear on your behalf. In cases involving confidential information, your representative must file a signed written release of information on department form 17-063.

(4) If your representative is an attorney admitted to practice in this state, your attorney must file a written notice of appearance, and must file a notice of withdrawal upon withdrawal of representation.

(5) If you or your representative have put in a written notice of appearance, the ALJ should call the telephone number on the notice of appearance if you or your representative do not appear by calling in with a telephone number before a hearing (including a prehearing).

[]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0195   What is a prehearing conference?   (1) A prehearing conference is a formal ((meeting)) proceeding conducted on the record by an ALJ to prepare for a hearing. The ALJ must record the prehearing conference using audio recording equipment (such as a digital recorder or tape recorder).

(2) ((Either the ALJ or a party may request a prehearing conference, but the ALJ decides whether to hold a prehearing conference. OAH sends notice of the conference to all parties.

(3))) An ALJ may conduct the prehearing conference in person, by telephone conference call, ((by electronic means,)) or in any other manner acceptable to the parties. Your attendance is mandatory.

(((4) A party)) (3) You may lose the right to participate during the hearing if ((that party does)) you do not attend the prehearing conference.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0195, filed 9/1/00, effective 10/2/00.]


NEW SECTION
WAC 388-02-0197   When is a prehearing conference scheduled?   (1) The ALJ may require a prehearing conference. Any party may request a prehearing conference.

(2) The ALJ must grant the first request for a prehearing conference if it is received by the OAH at least seven business days before the scheduled hearing date.

(3) The ALJ may grant untimely or additional requests for prehearing conferences.

(4) If the parties do not agree to a continuance, the OAH and/or the ALJ must set a prehearing conference to decide whether there is good cause to grant or deny the continuance.

(5) The OAH must schedule prehearing conferences for all cases which concern actions of the following department programs:

(a) Adult protective services; and

(b) The division of residential care services.

[]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0205   What happens after a prehearing conference?   (1) After the prehearing conference ends, the ALJ must ((send)) enter a written prehearing order describing:

(a) The actions taken;

(b) Any changes to the documents; ((and))

(c) Any agreements reached; and

(d) Any ruling of the ALJ.

(2) The ALJ must send the prehearing order to the parties at least fourteen calendar days before the scheduled hearing, except a hearing may still occur as allowed under WAC 388-02-0280(5). The parties and the ALJ may agree to a shorter time period.

(3) A party may object to the prehearing order by notifying the ALJ in writing within ten days after the mailing date of the order. The ALJ must issue a ruling on the objection.

(((3))) (4) If no objection is made to the prehearing order, the order determines how the hearing is conducted, including whether the hearing will be in person or held by telephone conference or other means, unless the ALJ changes the order for good cause.

(((4))) (5) The ALJ may take further appropriate actions to address other concerns.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0205, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0210   What happens if a party does not attend a prehearing conference?   (1) All parties are required to attend a prehearing conference.

(2) If you do not attend, you may not be allowed to participate in the hearing. The ALJ may dismiss your hearing request or enter an order of default against you.

(((3) If DSHS does not attend, the ALJ may dismiss or reverse the action DSHS took against you.))

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0210, filed 9/1/00, effective 10/2/00.]


NEW SECTION
WAC 388-02-0216   Is the authority of the administrative law judge and the review judge limited?   The authority of the ALJ and the review judge is limited to those powers conferred (granted) by statute or rule. The ALJ and the review judge do not have any inherent or common law powers.

[]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0220   What rules and laws must an ALJ and review judge apply when conducting a hearing or making a decision?   (1) ALJs and review judges must first apply the ((DSHS)) department rules adopted in the Washington Administrative Code.

(2) If no ((DSHS)) department rule applies, the ALJ or review judge must decide the issue according to the best legal authority and reasoning available, including federal and Washington state constitutions, statutes, regulations, and court decisions.

(3) When applying program rules regarding the substantive rights and responsibilities of the parties (such as eligibility for services, benefits, or a license), the ALJ and review judge must apply the program rules that were in effect on the date the department notice was sent, unless otherwise required by other rule or law. If the department amends the notice, the ALJ and review judge must apply the rules that were in effect on the date the initial notice was sent, unless otherwise required by other rule or law.

(4) When applying program rules regarding the procedural rights and responsibilities of the parties, the ALJ and review judge must apply the rules that are in effect on the date the procedure is followed.

(5) Program rules determine the amount of time the department has to process your application for services, benefits or a license.

(6) The ALJ and review judge must apply the rules in this chapter beginning on the date each rule is effective.

(7) If you have a dispute with the department concerning the working connections child care (WCCC) program, the ALJ and review judge must apply the hearing rules in this chapter and not the hearing rules in chapter 170-03 WAC. The rules in this chapter apply to disputes between you and the department of social and health services.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0220, filed 9/1/00, effective 10/2/00.]


NEW SECTION
WAC 388-02-0221   How is the index of significant decisions used?   (1) A final order may be relied on, used, or cited as precedent by a party if the final order has been indexed in the department index of significant decisions.

(2) The department index of significant decisions is available to the public at www.dshs.wa.gov/boa. For information on how to obtain a copy of the index, see WAC 388-01-190.

(3) If a precedential published decision entered by the Court of Appeals or the Supreme Court reverses an indexed board of appeals final order, that order will be removed from the index of significant decisions.

[]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0230   When is the ALJ assigned to the hearing?   The OAH assigns an ALJ at least five business days before the hearing. A party may ask which ALJ is assigned to the hearing by calling or writing the OAH field office listed on the notice of hearing. If requested by a party, the OAH must send the name of the assigned ALJ to the party by e-mail or in writing at least five business days before the party's scheduled hearing date. For division of child support cases, the OAH will only be required to assign an ALJ at least five days before the hearing if such a request is specifically made by one of the parties.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0230, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0240   How does a party file a motion of prejudice?   (1) A party may request a different ALJ by sending a written motion of prejudice ((at least three business days before the hearing, or)) to the OAH before the ALJ rules on a discretionary issue in the case, admits evidence, or takes testimony. A motion of prejudice must include an affidavit or statement that a party does not believe that the ALJ can hear the case fairly.

(2) Rulings that are not considered discretionary rulings for purposes of this section include but are not limited to those:

(a) Granting or denying a request for a continuance; and

(b) Granting or denying a request for a prehearing conference.

(3) ((The)) A party must send the ((request)) written motion of prejudice to the chief ALJ at the OAH headquarters identified in WAC 388-02-0025(1) and must send a copy to the OAH field office where the ALJ ((works)) is assigned.

(((3))) (4) A party may make an oral motion of prejudice at the beginning of the hearing before the ALJ rules on a discretionary issue in the case, admits evidence, or takes testimony if:

(a) The OAH did not assign an ALJ at least five business days before the date of the hearing; or

(b) The OAH changed the assigned ALJ within five business days of the date of the hearing.

(5) The first ((timely)) request for a different ALJ is automatically granted. ((Any later request may be granted or denied by)) The chief ALJ or a designee grants or denies any later requests.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0240, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0250   What happens after you request a hearing, and when must the OAH provide notice of the hearing and prehearing conference?   (1) ((After you request a hearing,)) The OAH must send a copy of your hearing request to the department, unless the OAH received your hearing request from the department. The OAH should send it to the department within four business days of the OAH receiving your request.

(2) The OAH ((sends)) must send a notice of hearing to all parties and their representatives((. OAH sends the notice of hearing at least seven business days)) at least fourteen calendar days before the hearing date. The OAH must provide notice of seven or more business days if the case is about child support under chapter 388-14A WAC.

(((2))) (3) If the OAH ((may)) schedules a prehearing conference((.)), the OAH ((sends)) must send a notice of prehearing conference to the parties and their representatives at least seven business days before the date of the prehearing conference ((date)) except:

(a) The OAH and/or an ALJ may convert a scheduled hearing into a prehearing conference and provide less than seven business days notice of the prehearing conference; and

(b) The OAH may give less than seven business days notice if the only purpose of the prehearing conference is to consider whether there is good cause to grant a continuance under WAC 388-02-0280 (3)(b).

(4) The OAH and/or the ALJ must reschedule the hearing if necessary to comply with the notice requirements in this section.

(5) If the ALJ denies a continuance after a prehearing conference, the hearing may proceed on the scheduled hearing date, but the ALJ must still issue a written order regarding the denial of the continuance.

(((3))) (6) You may ask for a prehearing meeting even after you have requested a hearing.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0250, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0260   May ((DSHS)) the department amend a notice?   (1) The ALJ must allow ((DSHS)) the department to amend (change) the notice of a ((DSHS)) department action before or during the hearing to match the evidence and facts.

(2) ((DSHS)) The department must put the change in writing and give a copy to the ALJ and ((the other)) all parties.

(3) The ALJ must offer to continue ((or)) (postpone) the hearing to give the parties more time to prepare or present evidence or argument if there is a significant change from the earlier ((DSHS)) department notice.

(4) If the ALJ grants a continuance, the OAH must send, a new hearing notice at least ((seven business)) fourteen calendar days before the hearing date. The OAH must provide notice of seven or more business days if the case is about child support under chapter 388-14A WAC.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0260, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0265   May you amend your hearing request?   (1) The ALJ may allow you to amend your hearing request before or during the hearing.

(2) The ALJ ((may)) must offer to continue (postpone) the hearing to give the other parties more time to prepare or present evidence or argument ((because of)) if there is a significant change in the hearing request.

(3) If the ALJ grants a continuance, the OAH must send a new hearing notice at least ((seven business)) fourteen calendar days before the hearing date. The OAH must provide notice of seven or more business days if the case is about child support under chapter 388-14A WAC.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0265, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0280   Who may request a continuance?   (1) Any party may request a continuance either orally or in writing.

(2) Before contacting the ALJ to request a continuance, a party should contact the other parties, if possible, to find out if they will agree to a continuance. If you are unable to contact the parties, the OAH or ((DSHS)) the department must assist you in contacting them.

(3) The party making the request for a continuance must let the ALJ know whether the other parties agreed to the continuance.

(a) If the parties agree to a continuance, the ALJ ((grants)) must grant it unless the ALJ finds that good cause for a continuance does not exist.

(b) If the parties do not agree to a continuance, the ALJ ((sets)) must set a prehearing conference to decide whether there is good cause to grant or deny the continuance. The prehearing conference will be scheduled as required by WAC 388-02-0197 and 388-02-0250.

(4) If ((a continuance is granted, OAH sends notice of the changed time and date of the hearing)) the ALJ grants a continuance, the OAH must send a new hearing notice at least fourteen calendar days before the new hearing date. The OAH must provide notice of seven or more business days if the case is about child support under chapter 388-14A WAC.

(5) If the ALJ denies the continuance, the ALJ will proceed with the hearing on the date the hearing is scheduled, but must still issue a written order regarding the denial of the continuance.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0280, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0340   How is your hearing held?   (1) Hearings may be held in person or by telephone conference.

(2) A telephone conference hearing is where all parties appear by telephone.

(3) An in-person hearing is where((:

(a) The parties appear face-to-face with the ALJ; or

(b) The parties appear by video conference)) you appear face-to-face with the ALJ and the other parties appear either in person or by telephone.

(((3))) (4) Whether a hearing is held in person or by telephone conference, the parties have the right to see all documents, hear all testimony and question all witnesses.

(((4))) (5) Parties ((or)) and their witnesses may appear in person or by telephone conference ((at the discretion of the ALJ)). The ALJ may require parties and/or their witnesses to appear in person if the ALJ determines there is a compelling reason, and the compelling reason is stated in a hearing notice or prehearing order.

(6) After a telephone conference hearing begins, the ALJ may stop, reschedule, and convert the hearing to an in-person hearing if the ALJ determines there is a compelling reason to do so.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0340, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0350   Is your hearing recorded?   ((An)) The ALJ must ((tape)) record ((or provide a record or transcript of the hearing)) the entire hearing using audio recording equipment (such as a digital recorder or a tape recorder).

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0350, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0360   May a party convert how a hearing is held?   (1) The parties have the right to request that:

(a) A hearing format be converted (changed) to an in-person hearing or a telephone conference; or

(b) A witness appear in person or by telephone conference. The OAH must advise you of the right to request a change in how a witness appears.

(2) ((In all DSHS cases, except public assistance cases,)) Except as provided in subsection (4) of this section, a party requesting a change in how a hearing is held must show ((good cause)) a compelling reason. A party must also show ((good cause)) a compelling reason to change the way a witness appears (in-person or by telephone conference). Some examples of ((good cause)) compelling reasons are:

(a) A party does not speak or understand English well.

(b) A party wants to present a significant number of documents during the hearing.

(c) A party does not believe that one of the witnesses or another party is credible, and wants the ALJ to have the opportunity to see the testimony.

(d) A party has a disability or communication barrier that affects their ability to present their case.

(e) A party believes that the personal safety of someone involved in the hearing process is at risk.

(3) A compelling reason to convert how a hearing is held can be overcome by a compelling reason not to convert how a hearing is held.

(4) In public assistance cases, a party has the right to request that a hearing be changed without showing ((good cause)) a compelling reason to the ALJ. Public assistance programs include:

(a) Temporary assistance for needy families (TANF);

(b) ((General or medical assistance)) Working connections child care;

(c) Disability lifeline;

(d) Medical assistance;

(e) Food ((stamps)) assistance; and

(((d))) (f) Refugee assistance.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0360, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0480   What does burden of proof mean?   ((The party who has the burden of proof is the party who has the responsibility to provide evidence to persuade the ALJ that a position is correct)) (1) Burden of proof is a party's responsibility to:

(a) Provide evidence regarding disputed facts; and

(b) Persuade the ALJ that a position is correct.

(2) To persuade the ALJ, the party who has the burden of proof must provide the amount of evidence required by WAC 388-02-0485.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0480, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0495   What is equitable estoppel?   (1) Equitable estoppel is a legal doctrine defined in case law that may only be used as a defense to prevent ((DSHS)) the department from taking some action against you, such as collecting an overpayment. Equitable estoppel may not be used to require the department to continue to provide something, such as benefits, services, or a license, or to require the department to take action contrary to a statute.

(2) There are five elements of equitable estoppel. The standard of proof is clear and convincing evidence. You must prove all of the following:

(a) ((DSHS)) The department made a statement or took an action or failed to take an action, which is inconsistent with a later claim or position by ((DSHS)) the department. For example, ((DSHS)) the department gave you money based on your application, then later tells you that you received an overpayment and wants you to pay the money back based on the same information.

(b) You reasonably relied on ((DSHS')) the department's original statement, action or failure to act. For example, you believed ((DSHS)) the department acted correctly when you received money.

(c) You will be injured to your detriment if ((DSHS)) the department is allowed to contradict the original statement, action or failure to act. For example, you did not seek help from health clinics or food banks because you were receiving benefits from ((DSHS)) the department, and you would have been eligible for these other benefits.

(d) Equitable estoppel is needed to prevent a manifest injustice. ((For example,)) Factors to be considered in determining whether a manifest injustice would occur include, but are not limited to, whether:

(i) You cannot afford to repay the money to ((DSHS, and)) the department;

(ii) You gave ((DSHS)) the department timely and accurate information when required ((but));

(iii) You did not know that ((DSHS)) the department made a mistake;

(iv) You are free from fault; and

(v) The overpayment was caused solely by a department mistake.

(e) The exercise of government functions is not impaired. For example, the ((overpayment was not your fault and it was caused solely by a DSHS mistake)) use of equitable estoppel in your case will not result in circumstances that will impair department functions.

(3) If the ALJ concludes that you have proven all of the elements of equitable estoppel in subsection (2) of this section with clear and convincing evidence, ((DSHS)) the department is stopped or prevented from taking action or enforcing a claim against you.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0495, filed 9/1/00, effective 10/2/00.]


NEW SECTION
WAC 388-02-0512   What is included in the hearing record?   (1) The ALJ must produce a complete official record of the proceedings.

(2) The official record must include, if applicable:

(a) Notice of all proceedings;

(b) Any prehearing order;

(c) Any motions, pleadings, briefs, petitions requests, and intermediate rulings;

(d) Evidence received or considered;

(e) A statement of matters officially noticed;

(f) Offers of proof, objections, and any resulting rulings;

(g) Proposed findings, requested orders and exceptions;

(h) A complete audio recording of the entire hearing, together with any transcript of the hearing;

(i) Any final order, initial order, or order on reconsideration; and

(j) Matters placed on the record after an ex parte communication.

[]


AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0515   What happens after the record is closed?   (1) After the record is closed, the ALJ must ((write a hearing decision)) enter an initial or final order and send copies to the parties.

(2) The maximum time an ALJ has to send a decision is ninety calendar days after the record is closed, but many ((DSHS)) department programs have earlier deadlines. Specific program rules may set the deadlines.

(3) OAH must send the official record of the proceedings to the BOA. The record must be complete when it is sent, and include all parts required by WAC 388-02-0512.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0515, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 08-21-144, filed 10/21/08, effective 11/21/08)

WAC 388-02-0575   ((How does)) What must a party ((request)) include in the review request?   A party must make the review request in writing((,)) and send it to BOA((, and clearly)). The party should identify the:

(1) Parts of the initial order with which the party disagrees; and

(2) Evidence supporting the party's position.

[Statutory Authority: RCW 34.05.020, 34.05.220, 42 C.F.R. 431.10 (e)(3), 45 C.F.R. 205.100 (b)(3), chapter 34.05 RCW, Parts IV and V. 08-21-144, 388-02-0575, filed 10/21/08, effective 11/21/08. Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 211. 02-21-061, 388-02-0575, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0575, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 08-21-144, filed 10/21/08, effective 11/21/08)

WAC 388-02-0580   What is the deadline for requesting review by a review judge?   (1) BOA must receive the written review request on or before 5:00 p.m. on the twenty-first calendar day after the initial order was mailed.

(2) A review judge may extend the deadline if a party:

(a) Asks for more time before the deadline expires; and

(b) Gives a good reason for more time.

(3) A review judge may accept a review request after the twenty-one calendar day deadline only if:

(a) The BOA receives the review request on or before the thirtieth calendar day after the deadline; and

(b) A party shows good ((reason)) cause for missing the deadline.

(4) If you ask a review judge to review an ALJ decision, the time period provided by this section for requesting review of an initial order, including any extensions, does not count against any deadline, if any, for a review judge to enter the final order.

[Statutory Authority: RCW 34.05.020, 34.05.220, 42 C.F.R. 431.10 (e)(3), 45 C.F.R. 205.100 (b)(3), chapter 34.05 RCW, Parts IV and V. 08-21-144, 388-02-0580, filed 10/21/08, effective 11/21/08. Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 211. 02-21-061, 388-02-0580, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0580, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 08-21-144, filed 10/21/08, effective 11/21/08)

WAC 388-02-0590   How does the party that is not requesting review respond to the review request?   (1) A party does not have to respond to the review request. A response is optional.

(2) If a party decides to respond, that party must send the response so that BOA receives it on or before the seventh business day after the date the other party's review request was mailed to the party by BOA.

(3) The party ((must)) should send a copy of the response to all other parties or their representatives.

(4) A review judge may extend the deadline in subsection (2) of this section if a party asks for more time before the deadline to respond expires and gives a good reason.

(5) If you ask for more time to respond, the time period provided by this section for responding to the review request, including any extensions, does not count against any deadline, if any, for a review judge to enter the final order. A review judge may accept and consider a party's response even if it is received after the deadline.

[Statutory Authority: RCW 34.05.020, 34.05.220, 42 C.F.R. 431.10 (e)(3), 45 C.F.R. 205.100 (b)(3), chapter 34.05 RCW, Parts IV and V. 08-21-144, 388-02-0590, filed 10/21/08, effective 11/21/08. Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0590, filed 9/1/00, effective 10/2/00.]


AMENDATORY SECTION(Amending WSR 08-21-144, filed 10/21/08, effective 11/21/08)

WAC 388-02-0600   What is the authority of the review judge?   (1) Review judges review initial orders and enter final orders. The review judge has the same decision-making authority as the ALJ. The review judge considers the entire record and decides the case de novo (anew). In reviewing findings of fact, the review judge must give due regard to the ALJ's opportunity to observe witnesses.

(2) Review judges may return (remand) cases to the OAH for further action.

(((2) The review judge has the same decision-making authority as the ALJ when reviewing initial orders in the following cases, but must consider the ALJ's opportunity to observe the witnesses:

(a) Licensing, certification and related civil fines;

(b) Rate-making proceedings;

(c) Parent address disclosure;

(d) Temporary assistance to needy families (TANF);

(e) Working connections child care (WCCC);

(f) Medical assistance eligibility;

(g) Medical or dental services funded by Title XIX of the Social Security Act;

(h) Adoption support services; and

(i) Eligibility for client services funded by Title XIX of the Social Security Act and provided by the aging and disability services administration.

(3) In all other cases, the review judge may only change the initial order if:

(a) There are irregularities, including misconduct of a party or misconduct of the ALJ or abuse of discretion by the ALJ, that affected the fairness of the hearing;

(b) The findings of fact are not supported by substantial evidence based on the entire record;

(c) The decision includes errors of law;

(d) The decision needs to be clarified before the parties can implement it; or

(e) Findings of fact must be added because the ALJ failed to make an essential factual finding. The additional findings must be supported by substantial evidence in view of the entire record and must be consistent with the ALJ's findings that are supported by substantial evidence based on the entire record.

(4))) (3) Review judges may not review ALJ final orders((. See)) for the types of cases listed in WAC 388-02-0217(2) ((for cases in which the ALJ enters a final order)).

(((5))) (4) A review judge conducts the hearing and enters the final order in cases covered by WAC 388-02-0218.

[Statutory Authority: RCW 34.05.020, 34.05.220, 42 C.F.R. 431.10 (e)(3), 45 C.F.R. 205.100 (b)(3), chapter 34.05 RCW, Parts IV and V. 08-21-144, 388-02-0600, filed 10/21/08, effective 11/21/08. Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 211. 02-21-061, 388-02-0600, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0600, filed 9/1/00, effective 10/2/00.]

4221.2
AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0030   ((Where is the board of appeals located)) How do I contact the board of appeals?   (1) ((The mailing address of the DSHS board of appeals (BOA) is:

DSHS Board of Appeals

P.O. Box 45803

Olympia, WA 98504-5803;

(2) The general telephone numbers of the BOA are:

(360) 664-6100

1-877-351-0002 (toll free)

(360) 664-6178 (TTD)

(360) 664-6187 (fax);

(3) The physical location of the DSHS Board of Appeals (BOA) is:

Blake Office Bldg. East, 2nd Floor

4500 10th Ave. SE

Lacey, WA 98503)) The information included in this section is current at this time of rule adoption, but may change. Current information and additional contact information are available on the department's internet site, in person at the board of appeals office, or by a telephone call to the board of appeal's main public number.


Department of Social and Health Services

Board of Appeals

Location Office Building 2 (OB-2)

First Floor Information

1115 Washington Street

Olympia, Washington

Mailing address P.O. Box 45803

Olympia, WA 98504-5803

Telephone (360) 664-6100
Fax (360) 664-6187
Toll free 1-877-351-0002
Internet web site www.dshs.wa.gov/boa

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0030, filed 9/1/00, effective 10/2/00.]

Washington State Code Reviser's Office