Subject of Possible Rule Making: The department is amending chapter 388-02 WAC to clarify when the department's board of appeals (BOA) will accept for review a party's petition for review of an initial order.

     Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 34.05.020.

     Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: WAC 388-02-0580 does not specifically address whether a party disagreeing with an initial order can submit a petition for review to BOA by fax, alone. WAC 388-02-0075 (1)(c) and 388-02-0040(4), do allow filing or sending of documents to BOA by fax if a copy of the document is also mailed the same day. "Filing" is defined in WAC 388-02-0070 as the act of delivering documents to BOA or the office of administrative hearings (OAH). It has been the practice of BOA to accept for review timely faxed transmissions of petitions for review whether or not a "hard copy" of the petition is eventually mailed to BOA. This practice is not in compliance with the regulations when reading and applying WAC 388-02-0580, 388-02-0075, and 388-02-0040 together. The proposed amendment (addition) to WAC 388-02-0580 would clarify and implement BOA's current practice of accepting for review timely faxed petitions for review while still encouraging follow-up with a mailed copy. The term "should" is defined in WAC 388-02-0010 as meaning that an action is recommended but not required. Using the term "should" in the proposed changes would allow accepting faxed petitions for review and would not require a "hard copy" to be mailed in order for BOA to assume jurisdiction to review the case. Without the rule change, there exists a serious question as to whether BOA has jurisdiction to review a timely faxed petition for review that has not also been mailed the same day as the facsimile transmission. The proposed rule change allows greater access to justice for all parties (department and clients) involved in the administrative hearing process. Other related sections as needed.

     Process for Developing New Rule: DSHS welcomes the public to take part in developing the rules. Anyone interested should contact the staff person identified below. At a later date, DSHS will file a proposal with the office of the code reviser with a notice of proposed rule making. A copy of the proposal will be sent to everyone on the mailing list and to anyone who requests a copy.

     Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting James Conant, P.O. Box 45803, Olympia, WA 98504-5803, phone (360) 664-6081, fax (360) 664-6187, e-mail conanjw@dshs.wa.gov.

March 1, 2012

Katherine I. Vasquez

Rules Coordinator

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