WSR 12-06-073

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

[ Filed March 6, 2012, 2:22 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 12-03-048.

Title of Rule and Other Identifying Information: WAC 388-02-0010 What definitions apply to this chapter? and 388-02-0220 What rules and laws must an ALJ and review judge apply when conducting a hearing or making a decision?

Hearing Location(s): Office Building 2, Lookout Room, 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 April 10, 2012, at 10:00 a.m.

Date of Intended Adoption: Not earlier than April 11, 2012.

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 April 10, 2012.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by March 21, 2012, 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: The purpose of this proposal is to make these rules more consistent with case law, other Washington regulations, and Washington statutes that refer to the date of the department's action, conduct, or decision rather than to the date of its notice. It is also necessary to manage budget shortfalls, which will require swift programmatic changes and associated amendments to program rules. The proposed changes to chapter 388-02 WAC will enable the department to fulfill its due process obligation to notify parties of upcoming program changes before the associated amended program rules go into effect and will require application of those amended rules to any disputes about the department's action.

Reasons Supporting Proposal: The current rule states that administrative law judges and review judges must apply the program rules in effect on the date the department sent notice of its intended action to the parties. This is not consistent with case law stating that the date of agency conduct or action determines which law applies. It is also not consistent with the department's due process obligation to send parties advance notice of department action prior to the effective date of the action and the amended rules on which the action is based. The proposed amendments resolve these inconsistencies. The proposed amendments also enable application of program rules amended due to budget shortfalls, which may become effective after the date of the department's notice but before (or on) the date of the department's action.

Statutory Authority for Adoption: RCW 34.05.020.

Statute Being Implemented: RCW 34.05.020.

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: Dia Tornatore, P.O. Box 45803, Olympia, WA 98504-5803, (360) 664-6061.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These are procedural rules and are exempt under RCW 19.85.025(3) and 34.005.310 [34.05.310] (4)(g)(i).

A cost-benefit analysis is not required under RCW 34.05.328. The proposed rules are not "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.

March 2, 2012

Katherine I. Vasquez

Rules Coordinator

4343.6
AMENDATORY SECTION(Amending WSR 11-04-074, filed 1/31/11, effective 3/3/11)

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 department employees or department representatives.

"BOA" means the 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.

"Date of the department action" means the date when the department's decision is effective.

"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 the department, a department contractor, or an assistant attorney general authorized to represent the department in an administrative hearing. Department representatives include, but are not limited to, claims officers and administrative hearing coordinators.

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

"Hearing" means a proceeding before an ALJ or review judge that gives a party an opportunity to be heard in disputes about 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 a document in the mail with the proper postage.

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

"Party" means:

(1) The department or DSHS; or

(2) A person or entity:

(a) Named in a department action;

(b) To whom a 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 department organizational unit and the services that it provides, including services provided by 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 department rules who is an attorney and serves as the reviewing officer under RCW 34.05.464. In 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. After reviewing initial orders or conducting hearings, review judges enter final orders. Review judges are employed by the department, are located in the board of appeals (BOA), and are not part of the 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 department decision or action.

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

[Statutory Authority: RCW 34.05.020, 34.05.220. 11-04-074, 388-02-0010, filed 1/31/11, effective 3/3/11. 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 11-04-074, filed 1/31/11, effective 3/3/11)

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 department rules adopted in the Washington Administrative Code.

(2) If no 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 of the department ((notice was sent)) action, unless otherwise required by other rule or law. If the department amends ((the)) its notice of the action, the ALJ and review judge must apply the rules ((that were)) in effect on the date the ((initial notice was sent)) action was taken, 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, 34.05.220. 11-04-074, 388-02-0220, filed 1/31/11, effective 3/3/11. Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0220, filed 9/1/00, effective 10/2/00.]

Washington State Code Reviser's Office