WSR 17-09-084
PROPOSED RULES
OFFICE OF
ADMINISTRATIVE HEARINGS
[Filed April 19, 2017, 9:53 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 16-18-096.
Title of Rule and Other Identifying Information: WAC 10-08-055 Suitable representation, this rule relates to the assessment process and accommodation response for litigants requesting suitable representation in administrative hearings before the office of administrative hearings (OAH).
Hearing Location(s): OAH, 2420 Bristol Court S.W., Olympia, WA 98502, on May 30, 2017, at 10:00 a.m.
Date of Intended Adoption: June 20, 2017.
Submit Written Comments to: Ed Pesik, Deputy Chief Administrative Law Judge (ALJ), P.O. Box 42488, Olympia, WA 98504-2488, email ed.pesik@oah.wa.gov, fax (360) 664-8721, by May 29, 2017.
Assistance for Persons with Disabilities: Contact Johnette Sullivan, assistant chief, Americans with Disabilities Act (ADA) coordinator, email Johnette.sullivan@oah.wa.gov, (360) 407-2700, by May 23, 2017.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule making is initiated in response to the petition filed by CB (a resident of Washington), the Fred T. Korematsu Center for Law & Equality at Seattle University School of Law, and Disability Rights Washington. The petition requested that a new rule be adopted to provide an assessment for representational accommodation for appellants in administrative hearings. The Access to Justice Board submitted a letter of support urging rule making on this topic.
Main objectives:
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Establish within OAH a process for the referral of a pro se party with disabilities to the OAH ADA coordinator. Establish a network of individuals to assist those pro se parties with accessing OAH's administrative appeals processes (comparable to nondisabled pro se appellants) and to ensure that they are not denied equal and meaningful access to the hearing process.
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Establish a training program for (1) OAH ALJs and support staff and (2) individuals who are trained to assist pro se parties determined to need assistance with the OAH hearing process.
Rule proposal elements:
Assessment:
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Establish a process for OAH ALJs, the referring agency, or the appellant to refer a party to the OAH ADA coordinator when an issue is raised on whether a party's disabilities precludes meaningful access to the OAH adjudicative process.
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Establish a "reasonable belief" standard for when an ALJ's referral to the ADA coordinator is appropriate.
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Establish separate process and file for responding to the party's need due to disabilities.
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Protect the party's privacy interest by maintaining a separate file that is kept confidential (from the other party) and from the ALJ presiding over the hearing on the merits.
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Establish the OAH ADA coordinator as the first decision-maker on whether accommodation is necessary with an appeal opportunity to the chief ALJ.
Accommodation response:
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If accommodation is determined to be necessary, OAH will provide a suitable representative to assist the party at no cost to the party.
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OAH will establish a network of individuals who can be appointed by OAH to assist these individuals.
Training:
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OAH will provide all staff with initial and annual refresher training commensurate with the scope of their duties.
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OAH's ADA coordinator will also receive specialized training initially and thereafter as necessary to ensure an adequate knowledge and understanding of the requirements of federal and state law with respect to assessing the need for reasonable accommodations.
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OAH will establish uniform qualification training for individuals who can serve as a suitable representative to assist those who are determined by OAH as needing representational accommodation because of cognitive disabilities and to ensure that they are not denied equal and meaningful access to OAH hearing process.
Data collection:
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Two years following the effective date of this rule the program's effectiveness will be reviewed with results made publicly available, including tracking of the: Timeliness of the process; hearing outcomes; number of suitable representation requests granted and denied; sources of referrals to the OAH ADA coordinator; number and outcome of appeals of denials to the chief ALJ; and feedback from parties, OAH's ADA coordinator, persons appointed as suitable representatives, ALJs, referring agency representatives on how this rule may be improved.
Statutory Authority for Adoption: RCW 34.12.080 and 34.05.250.
Statute Being Implemented: RCW 34.12.030, 34.12.080.
Rule is not necessitated by federal law, federal or state court decision.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: This rule is necessary for OAH to meet its obligation to ensure that parties receive appropriate accommodations to meaningfully participate in adjudicative proceedings. OAH is obligated to ensure parties have access to its services under ADA and Washington law against discrimination. OAH intends to implement the rule with existing staff. OAH will collaborate with other state agencies, ombuds programs, legal clinics, legal services, and others to establish a network of individuals to be appointed by the chief ALJ as suitable representatives. Two years following the effective date of this rule, the program will be reviewed and assessed for its effectiveness.
Name of Proponent: OAH, P.O. Box 42488, Olympia, WA 98504-2488, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Ed Pesik, Deputy Chief ALJ, 2420 Bristol Court S.W., Olympia, WA 98502, (360) 407-2700.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule making does not result in any economic impact on small business or fiscal impact on school districts
A cost-benefit analysis is not required under RCW 34.05.328. OAH's proposed rule does not involve rules of any of the agencies identified in RCW 34.05.328(5) for which a cost-benefit analysis is required.
April 19, 2017
Lorraine Lee
Chief Administrative Law Judge
NEW SECTION
WAC 10-08-055 Suitable representation.
(1) Accommodation requests under the federal Americans with Disabilities Act (ADA) are handled pursuant to the office of administrative hearings' policy. This rule applies to requests for representation as an accommodation in adjudicative proceedings before the office of administrative hearings. The appointment of a suitable representative may be an appropriate response in those cases where the party is unable to meaningfully participate in the administrative hearing process. This rule is intended to ensure that all requests for accommodation are addressed in accordance with the requirements of the ADA and that any accommodation response is the minimum necessary to effectively address the needs of the appellant.
(2) Definitions.
(a) "Disability" as used in this section is defined under 42 U.S.C. Sec. 12102. Disability does not include factors such as lack of education, lack of English proficiency, or other nondisability factors.
(b) "Suitable representative" means an individual who is qualified under subsection (11) of this section to provide the assistance needed to enable an otherwise unrepresented party with a disability to meaningfully participate in the proceeding.
(c) "Agency ADA coordinator" is an administrative law judge designated by the chief administrative law judge to make the assessment and accommodation determinations described in subsection (3) of this section.
(3) If, during any stage of an administrative proceeding, the administrative law judge, the referring agency or its representative, or the appellant has a reasonable belief that an otherwise unrepresented party may be unable to meaningfully participate in the proceeding because of a disability, with that party's consent the administrative law judge shall refer the party to the agency ADA coordinator and delay commencing or resuming the proceeding until the accommodation request is addressed.
(4) The agency ADA coordinator will expedite the assessment and accommodation process to the greatest extent practicable and consistent with the party's limitations.
(5) All records pertaining to the decision whether to appoint a suitable representative shall be kept confidential and held separately from the hearing record.
(6) Upon a party's request for a suitable representative or referral from the administrative law judge, the agency ADA coordinator must determine whether the party is a person with a disability. The agency ADA coordinator may require documentation from the party at the coordinator's discretion.
(7) If the party is a person with a disability, the agency ADA coordinator must next determine whether the party is unable to meaningfully participate in the hearing process as a result of the disability. The existing assistance of a legal guardian, near relative, or friend shall not affect the agency ADA coordinator's determination of whether the party is able to meaningfully participate in the hearing process. In making this determination, the agency ADA coordinator shall consider the following:
(a) Whether the party has a rational and factual understanding of:
(i) The nature and object of the proceeding;
(ii) The privilege of representation by a suitable representative;
(iii) The right to present, examine, and object to evidence;
(iv) The right to cross-examine witnesses; and
(v) The right to appeal.
(b) Whether the party has sufficient present ability to:
(i) Exercise the rights in (a) of this subsection;
(ii) Make informed decisions about whether to waive the rights in (a) of this subsection;
(iii) Respond to any allegations, issues, arguments, and evidence presented by other parties;
(iv) Evaluate and coherently discuss legal arguments and defenses;
(v) Present information and evidence relevant to eligibility for relief;
(vi) Present rational and coherent testimony based upon adequate recall; and
(vii) Act upon instructions and information presented by other parties and the administrative law judge.
(c) Whether the party has sufficient energy and stamina to participate in the proceeding and if doing so could jeopardize the party's health.
(8) If the party is unable to meaningfully participate in the hearing process as a result of a disability, the agency ADA coordinator will commence an interactive process with the party to determine the type of accommodation required to allow the party to meaningfully participate in the hearing process; or whether an alternative accommodation can adequately address the party's specific disability-related limitations; or whether a suitable representative is the most appropriate accommodation.
(9) If the agency ADA coordinator determines that appointment of a suitable representative is not the accommodation needed, the agency ADA coordinator will inform the party in writing, or any other communication appropriate to the situation, of the denial of a suitable representative, including how to seek review of the decision under subsection (17) of this section.
(10) If the agency ADA coordinator determines that appointment of a suitable representative is the accommodation necessary for a party's meaningful participation in an adjudicative proceeding, the agency ADA coordinator will identify an agency, organization or individual to assist the party at no cost to the party.
(11) To identify an individual, the agency ADA coordinator will consider the needs identified in the assessment under subsection (7) of this section and any other factors, including:
(a) The party's preferences;
(b) The knowledge, skills and abilities of the individual being considered, including:
(i) Knowledge of or the ability to attain knowledge of the procedural rules;
(ii) Knowledge of or ability to attain knowledge of the substance at issue;
(iii) Education;
(iv) Certifications or licenses in good standing;
(v) Experience and training in advocating for others; and
(vi) The individual's availability to meet the timelines and duration of the particular proceeding.
(c) An individual is not eligible to be appointed as a suitable representative if the individual is employed by the office of administrative hearings, or is employed by another state agency and prohibited by law from representing the opposing party.
(d) The agency ADA coordinator will inform the party with a disability that an individual has been identified to assist as the party's suitable representative. The party will show acceptance of the appointment in writing or in any other form consistent with the party's disability. If the party disagrees with the appointment, the party will contact the agency ADA coordinator. The agency ADA coordinator will evaluate the party's reconsideration request, and may consider identifying another individual to be appointed as the party's suitable representative, if the request for reconsideration contains new disability or suitability related information.
(12) The appointment of a suitable representative is made by the chief administrative law judge. The appointment is effective upon acceptance of the accommodation by the party with a disability. The party has the right to reject the appointment of a suitable representative.
(13) The suitable representative will file a notice of appearance under WAC 10-08-083 or other applicable rule or law to inform all parties and representatives of record of the suitable representative's name, address, and telephone number.
(14) If a suitable representative files a petition for review for a party with a disability, the suitable representative may ask for continuing representational accommodation with the reviewing agency's ADA coordinator or pursuant to Washington rules of court general rule 33.
(15) The appointment under this rule ends when the time expires to file a petition for review, unless earlier terminated by the party or the suitable representative.
(16) In the event a higher authority remands the case to the office of administrative hearings, the agency ADA coordinator will determine if the individual previously appointed is available or will identify another individual to be the suitable representative. The party with a disability may state a preference for or disagree with an individual's appointment, or reject an appointment.
(17) If the party is not satisfied with the decision by the agency ADA coordinator, the party may request review of the accommodation request by the chief administrative law judge, whose decision shall be final.
(18) The office of administrative hearings will establish a network of individuals who are able and available to be appointed by the chief administrative law judge as suitable representatives.
(19) The chief administrative law judge will ensure that all office of administrative hearings staff receive both initial and annual refresher training commensurate with the scope of their duties. The training selected will include specific reference to the requirements of the ADA, as amended, as well as the Washington state law against discrimination, as they relate to the issues of reasonable accommodation throughout the administrative hearing process, with particular regard to the process for assessing and determining accommodations necessary to ensure meaningful participation in an administrative hearing.
(20) The agency ADA coordinator will also receive specialized training initially and thereafter as necessary to assure an adequate knowledge and understanding of the requirements of federal and state law with respect to assessing the need for reasonable accommodations. The agency ADA coordinator will make recommendations to the chief administrative law judge regarding the necessary training for agency staff and for suitable representatives.
(21) Persons selected by the agency ADA coordinator as suitable representatives must also have received uniform qualification training established by the chief administrative law judge.
(22) The chief administrative law judge or his/her designee will develop routine reports that reflect the number of requests for accommodation pursuant to this rule, the result of those requests, and the costs, if any, associated with any such accommodation. Personal health information and other confidential data will be redacted from reports in order to comply with relevant privacy laws.
(23) Two years following the effective date of this rule the program will be reviewed and assessed for its effectiveness. The results of this assessment will be made available on the OAH public web site for inspection and will also be provided to the office of financial management and all persons or organizations who express an interest in receiving the report. The assessment will include a review of:
(a) The timeliness of the process, including the suitable representative process and the impact on the scheduling of the hearing;
(b) The hearing outcome for parties with suitable representation, including how many cases resulted in: Settlement, orders affirming or reversing agency action, or defaults;
(c) The number of suitable representation requests granted and denied;
(d) The sources of referrals to the agency ADA coordinator;
(e) The number and outcome of appeals of denials to the chief administrative law judge; and
(f) Feedback from parties, the agency ADA coordinator, persons appointed as suitable representatives, administrative law judges, and referring agency representatives on how the provisions of this rule may be improved.