AN
ACT Relating to issuances by administrative agencies; amending RCW 34.05.010,
34.05.230, 34.05.310, 34.05.570, 34.05.630, 34.05.640, 34.05.655, and
51.04.030; and reenacting and amending RCW 42.17.260.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
34.05.010 and 1992 c 44 s 10 are each amended to read as follows:
The
definitions set forth in this section shall apply throughout this chapter,
unless the context clearly requires otherwise.
(1)
"Adjudicative proceeding" means a proceeding before an agency in
which an opportunity for hearing before that agency is required by statute or
constitutional right before or after the entry of an order by the agency.
Adjudicative proceedings also include all cases of licensing and rate making in
which an application for a license or rate change is denied except as limited
by RCW 66.08.150, or a license is revoked, suspended, or modified, or in which
the granting of an application is contested by a person having standing to
contest under the law.
(2)
"Agency" means any state board, commission, department, institution
of higher education, or officer, authorized by law to make rules or to conduct
adjudicative proceedings, except those in the legislative or judicial branches,
the governor, or the attorney general except to the extent otherwise required
by law and any local governmental entity that may request the appointment of an
administrative law judge under chapter 42.41 RCW.
(3)
"Agency action" means licensing, the implementation or enforcement of
a statute, the adoption or application of an agency rule or order, the
imposition of sanctions, or the granting or withholding of benefits.
Agency
action does not include an agency decision regarding (a) contracting or
procurement of goods, services, public works, and the purchase, lease, or
acquisition by any other means, including eminent domain, of real estate, as
well as all activities necessarily related to those functions, or (b)
determinations as to the sufficiency of a showing of interest filed in support
of a representation petition, or mediation or conciliation of labor disputes or
arbitration of labor disputes under a collective bargaining law or similar
statute, or (c) any sale, lease, contract, or other proprietary decision in the
management of public lands or real property interests, or (d) the granting of a
license, franchise, or permission for the use of trademarks, symbols, and
similar property owned or controlled by the agency.
(4)
"Agency head" means the individual or body of individuals in whom the
ultimate legal authority of the agency is vested by any provision of law. If
the agency head is a body of individuals, a majority of those individuals
constitutes the agency head.
(5)
"De facto rule" means an issuance not adopted under Part III of
this chapter that the agency uses to (a) subject a person to a penalty or
administrative sanction; (b) establish, alter, or revoke a procedure, practice,
or requirement relating to agency hearings; (c) establish, alter, or revoke a
qualification or requirement relating to the enjoyment of a benefit or
privilege conferred by law; (d) establish, alter, or revoke a qualification or
standard for the issuance, suspension, or revocation of a license to pursue a
commercial activity, trade, or profession; or (e) establish, alter, or revoke
mandatory standards for a product or material that must be met before
distribution or sale. The term does not include (i) statements concerning only
the internal management of an agency and not affecting private rights or
procedures available to the public, (ii) declaratory rulings issued under RCW
34.05.240, (iii) traffic restrictions for motor vehicles, bicyclists, and
pedestrians established by the secretary of transportation or his or her
designee where notice of the restrictions is given by official traffic control
devices, or (iv) rules of institutions of higher education involving standards
of admission, academic advancement, academic credit, graduation and the
granting of degrees, employment relationships, or fiscal processes.
(6)
"Entry" of an order means the signing of the order by all persons who
are to sign the order, as an official act indicating that the order is to be
effective.
(((6)))
(7) "Filing" of a document that is required to be filed with
an agency means delivery of the document to a place designated by the agency by
rule for receipt of official documents, or in the absence of such designation,
at the office of the agency head.
(((7)))
(8) "Institutions of higher education" are the University of
Washington, Washington State University, Central Washington University, Eastern
Washington University, Western Washington University, The Evergreen State
College, the various community colleges, and the governing boards of each of
the above, and the various colleges, divisions, departments, or offices
authorized by the governing board of the institution involved to act for the
institution, all of which are sometimes referred to in this chapter as
"institutions."
(((8)))
(9) "Interpretive statement" means a written expression of the
opinion of an agency, entitled an interpretive statement by the agency head or
its designee, as to the meaning of a statute or other provision of law, of a
court decision, or of an agency order.
(((9)))
(10) "Issuance" means a written document of general applicability
issued by an agency that is available to the public. It includes, but is not
limited to, an agency order of adoption, directive, policy statement,
interpretive statement, guideline, letter, memorandum, rule, or de facto rule.
"Issuance" does not include final agency orders issued following an
adjudicative proceeding under Part IV of this chapter.
(11)(a)
"License" means a franchise, permit, certification, approval,
registration, charter, or similar form of authorization required by law, but
does not include (i) a license required solely for revenue purposes, or (ii) a
certification of an exclusive bargaining representative, or similar status,
under a collective bargaining law or similar statute, or (iii) a license,
franchise, or permission for use of trademarks, symbols, and similar property
owned or controlled by the agency.
(b)
"Licensing" includes the agency process respecting the issuance,
denial, revocation, suspension, or modification of a license.
(((10)))
(12)(a) "Order," without further qualification, means a
written statement of particular applicability that finally determines the legal
rights, duties, privileges, immunities, or other legal interests of a specific
person or persons.
(b)
"Order of adoption" means the official written statement by which an
agency adopts, amends, or repeals a rule.
(((11)))
(13) "Party to agency proceedings," or "party" in a
context so indicating, means:
(a)
A person to whom the agency action is specifically directed; or
(b)
A person named as a party to the agency proceeding or allowed to intervene or
participate as a party in the agency proceeding.
(((12)))
(14) "Party to judicial review or civil enforcement
proceedings," or "party" in a context so indicating, means:
(a)
A person who files a petition for a judicial review or civil enforcement
proceeding; or
(b)
A person named as a party in a judicial review or civil enforcement proceeding,
or allowed to participate as a party in a judicial review or civil enforcement
proceeding.
(((13)))
(15) "Person" means any individual, partnership, corporation,
association, governmental subdivision or unit thereof, or public or private
organization or entity of any character, and includes another agency.
(((14)))
(16) "Policy statement" means a written description of the current
approach of an agency, entitled a policy statement by the agency head or its
designee, to implementation of a statute or other provision of law, of a court
decision, or of an agency order, including where appropriate the agency's
current practice, procedure, or method of action based upon that approach.
(((15)))
(17) "Rule" means any ((agency order, directive, or
regulation of general applicability (a) the violation of which subjects a
person to a penalty or administrative sanction; (b) which establishes, alters,
or revokes any procedure, practice, or requirement relating to agency hearings;
(c) which establishes, alters, or revokes any qualification or requirement
relating to the enjoyment of benefits or privileges conferred by law; (d) which
establishes, alters, or revokes any qualifications or standards for the
issuance, suspension, or revocation of licenses to pursue any commercial
activity, trade, or profession; or (e) which establishes, alters, or revokes
any mandatory standards for any product or material which must be met before
distribution or sale)) issuance adopted under Part III of this chapter.
The term includes the amendment or repeal of a prior rule((, but does not
include (i) statements concerning only the internal management of an agency and
not affecting private rights or procedures available to the public, (ii)
declaratory rulings issued pursuant to RCW 34.05.240, (iii) traffic
restrictions for motor vehicles, bicyclists, and pedestrians established by the
secretary of transportation or his designee where notice of such restrictions
is given by official traffic control devices, or (iv) rules of institutions of
higher education involving standards of admission, academic advancement,
academic credit, graduation and the granting of degrees, employment
relationships, or fiscal processes)).
(((16)))
(18) "Rules review committee" or "committee" means
the joint administrative rules review committee created pursuant to RCW
34.05.610 ((for the purpose of selectively reviewing existing and proposed
rules of state agencies)).
(((17)))
(19) "Rule making" means the process for formulation and
adoption of a rule.
(((18)))
(20) "Service," except as otherwise provided in this chapter,
means posting in the United States mail, properly addressed, postage prepaid,
or personal service. Service by mail is complete upon deposit in the United
States mail. Agencies may, by rule, authorize service by electronic
telefacsimile transmission, where copies are mailed simultaneously, or by
commercial parcel delivery company.
Sec.
2. RCW
34.05.230 and 1996 c 206 s 12 are each amended to read as follows:
(1)
((If the adoption of rules is not feasible and practicable,)) An
agency is encouraged to advise the public of its current opinions, approaches,
and likely courses of action by means of ((interpretive or policy
statements. Current interpretive and policy statements)) issuances.
Unless adopted under Part III of this chapter or exempted under the definition
of de facto rule, these issuances are advisory only. ((To better inform
and involve the public, an agency is encouraged to convert long-standing
interpretive and policy statements into rules.))
(2)
A person may petition an agency ((requesting the conversion of interpretive
and policy statements into rules)) to adopt an issuance as a rule.
Upon submission, the agency shall notify the joint administrative rules review
committee of the petition. Within sixty days after submission of a petition,
the agency shall either deny the petition in writing, stating its reasons for
the denial, or initiate rule-making proceedings in accordance with this
chapter.
(3)
Each agency shall maintain a roster of interested persons, consisting of
persons who have requested in writing to be notified of all interpretive and
policy statements issued by that agency. Each agency shall update the roster
once each year and eliminate persons who do not indicate a desire to continue
on the roster. Whenever an agency issues an interpretive or policy statement,
it shall send a copy of the statement to each person listed on the roster. The
agency may charge a nominal fee to the interested person for this service.
(4)
Whenever an agency issues an interpretive or policy statement, it shall submit
to the code reviser for publication in the Washington State Register a
statement describing the subject matter of the interpretive or policy statement,
and listing the person at the agency from whom a copy of the interpretive or
policy statement may be obtained.
Sec.
3. RCW
34.05.310 and 1995 c 403 s 301 are each amended to read as follows:
(1)
To meet the intent of providing greater public access to administrative rule
making and to promote consensus among interested parties, agencies shall
solicit comments from the public on a subject of possible rule making before
filing with the code reviser a notice of proposed rule making under RCW
34.05.320. The agency shall prepare a statement of inquiry that:
(a)
Identifies the specific statute or statutes authorizing the agency to adopt
rules on this subject;
(b)
Discusses why rules on this subject may be needed and what they might
accomplish;
(c)
Identifies other federal and state agencies that regulate this subject, and
describes the process whereby the agency would coordinate the contemplated rule
with these agencies;
(d)
Discusses the process by which the rule might be developed, including, but not
limited to, negotiated rule making, pilot rule making, or agency study;
(e)
Specifies the process by which interested parties can effectively participate
in the decision to adopt a new rule and formulation of a proposed rule before
its publication.
(2)(a)
The statement of inquiry shall be filed with the code reviser for publication
in the state register at least thirty days before the date the agency files
notice of proposed rule making under RCW 34.05.320 and shall be sent to any
party that has requested receipt of the agency's statements of inquiry.
(b)
The statement of inquiry shall also be sent to the chair of the appropriate
standing committees and the majority and minority leaders of the house and
senate for comment on the legislative intent of the statute that the rule
implements. Any comments submitted by the chairs or leaders shall become part
of the record of any subsequent rule making hearing.
(((2)))
(3) Agencies are encouraged to develop and use new procedures for reaching
agreement among interested parties before publication of notice and the
adoption hearing on a proposed rule. Examples of new procedures include, but
are not limited to:
(a)
Negotiated rule making by which representatives of an agency and of the interests
that are affected by a subject of rule making, including, where appropriate,
county and city representatives, seek to reach consensus on the terms of the
proposed rule and on the process by which it is negotiated; and
(b)
Pilot rule making which includes testing the feasibility of complying with or
administering draft new rules or draft amendments to existing rules through the
use of volunteer pilot groups in various areas and circumstances, as provided
in RCW 34.05.313 or as otherwise provided by the agency.
(((3)))
(4)(a) An agency must make a determination whether negotiated rule
making, pilot rule making, or another process for generating participation from
interested parties prior to development of the rule is appropriate.
(b)
An agency must include a written justification in the rule-making file if an
opportunity for interested parties to participate in the rule-making process
prior to publication of the proposed rule has not been provided.
(((4)))
(5) This section does not apply to:
(a)
Emergency rules adopted under RCW 34.05.350;
(b)
Rules relating only to internal governmental operations that are not subject to
violation by a nongovernment party;
(c)
Rules adopting or incorporating by reference without material change federal
statutes or regulations, Washington state statutes, rules of other Washington
state agencies, shoreline master programs other than those programs governing
shorelines of state-wide significance, or, as referenced by Washington state
law, national consensus codes that generally establish industry standards, if
the material adopted or incorporated regulates the same subject matter and
conduct as the adopting or incorporating rule;
(d)
Rules that only correct typographical errors, make address or name changes, or
clarify language of a rule without changing its effect;
(e)
Rules the content of which is explicitly and specifically dictated by statute;
(f)
Rules that set or adjust fees or rates pursuant to legislative standards; or
(g)
Rules that adopt, amend, or repeal:
(i)
A procedure, practice, or requirement relating to agency hearings; or
(ii)
A filing or related process requirement for applying to an agency for a license
or permit.
Sec.
4. RCW
34.05.570 and 1995 c 403 s 802 are each amended to read as follows:
(1)
Generally. Except to the extent that this chapter or another statute provides
otherwise:
(a)
The burden of demonstrating the invalidity of agency action is on the party
asserting invalidity;
(b)
The validity of agency action shall be determined in accordance with the
standards of review provided in this section, as applied to the agency action
at the time it was taken;
(c)
The court shall make a separate and distinct ruling on each material issue on
which the court's decision is based; and
(d)
The court shall grant relief only if it determines that a person seeking
judicial relief has been substantially prejudiced by the action complained of.
(2)
Review of rules. (a) A rule may be reviewed by petition for declaratory
judgment filed pursuant to this subsection or in the context of any other
review proceeding under this section. In an action challenging the validity of
a rule, the agency shall be made a party to the proceeding.
(b)
The validity of any rule may be determined upon petition for a declaratory
judgment addressed to the superior court of Thurston county, when it appears
that the rule, or its threatened application, interferes with or impairs or
immediately threatens to interfere with or impair the legal rights or
privileges of the petitioner. The declaratory judgment order may be entered
whether or not the petitioner has first requested the agency to pass upon the
validity of the rule in question.
(c)
In a proceeding involving review of a rule, the court shall declare the rule
invalid only if it finds that: The rule violates constitutional provisions;
the rule exceeds the statutory authority of the agency; the rule was adopted
without compliance with statutory rule-making procedures; or the rule is
arbitrary and capricious.
(3)
Review of agency orders in adjudicative proceedings. The court shall grant
relief from an agency order in an adjudicative proceeding only if it determines
that:
(a)
The order, or the statute or rule on which the order is based, is in violation
of constitutional provisions on its face or as applied;
(b)
The order is outside the statutory authority or jurisdiction of the agency
conferred by any provision of law;
(c)
The agency has engaged in unlawful procedure or decision-making process, or has
failed to follow a prescribed procedure;
(d)
The agency has erroneously interpreted or applied the law;
(e)
The order is not supported by evidence that is substantial when viewed in light
of the whole record before the court, which includes the agency record for
judicial review, supplemented by any additional evidence received by the court
under this chapter;
(f)
The agency has not decided all issues requiring resolution by the agency;
(g)
A motion for disqualification under RCW 34.05.425 or 34.12.050 was made and was
improperly denied or, if no motion was made, facts are shown to support the
grant of such a motion that were not known and were not reasonably discoverable
by the challenging party at the appropriate time for making such a motion;
(h)
The order is inconsistent with a rule of the agency unless the agency explains
the inconsistency by stating facts and reasons to demonstrate a rational basis
for inconsistency; ((or))
(i)
The order is arbitrary or capricious; or
(j)
The order is based on a de facto rule.
(4)
Review of other agency action.
(a)
All agency action not reviewable under subsection (2) or (3) of this section
shall be reviewed under this subsection.
(b)
A person whose rights are violated by an agency's failure to perform a duty
that is required by law to be performed may file a petition for review pursuant
to RCW 34.05.514, seeking an order pursuant to this subsection requiring performance.
Within twenty days after service of the petition for review, the agency shall
file and serve an answer to the petition, made in the same manner as an answer
to a complaint in a civil action. The court may hear evidence, pursuant to RCW
34.05.562, on material issues of fact raised by the petition and answer.
(c)
Relief for persons aggrieved by the performance of an agency action, including
the exercise of discretion, or an action under (b) of this subsection can be
granted only if the court determines that the action is:
(i)
Unconstitutional;
(ii)
Outside the statutory authority of the agency or the authority conferred by a
provision of law;
(iii)
Arbitrary or capricious; ((or))
(iv)
Taken by persons who were not properly constituted as agency officials lawfully
entitled to take such action; or
(v)
Based on a de facto rule.
Sec.
5. RCW
34.05.630 and 1996 c 318 s 4 are each amended to read as follows:
(1)
All ((rules required to be filed pursuant to RCW 34.05.380, and emergency
rules adopted pursuant to RCW 34.05.350,)) issuances are subject to
selective review by the legislature.
(2)
((All agency policy and interpretive statements are subject to selective
review by the legislature.
(3))) If
the rules review committee finds by a majority vote of its members: (a) That
an existing rule is not within the intent of the legislature as expressed by
the statute ((which)) that the rule implements, (b) that the rule
has not been adopted in accordance with all applicable provisions of law, or
(c) that an agency issuance is ((using a policy or interpretive
statement in place of)) a de facto rule, the agency affected shall
be notified of such finding and the reasons therefor. Within thirty days of
the receipt of the rules review committee's notice, the agency shall file
notice of a hearing on the rules review committee's finding with the code
reviser and mail notice to all persons who have made timely request of the
agency for advance notice of its rule-making proceedings as provided in RCW
34.05.320. The agency's notice shall include the rules review committee's
findings and reasons therefor, and shall be published in the Washington state
register in accordance with the provisions of chapter 34.08 RCW.
(((4)))
(3) The agency shall consider fully all written and oral submissions
regarding (a) whether the rule in question is within the intent of the
legislature as expressed by the statute ((which)) that the rule
implements, (b) whether the rule was adopted in accordance with all applicable
provisions of law, or (c) whether ((the agency is using a policy or
interpretive statement in place of a)) an agency issuance is a de facto
rule.
Sec.
6. RCW
34.05.640 and 1996 c 318 s 5 are each amended to read as follows:
(1)
Within seven days of an agency hearing held after notification of the agency by
the rules review committee pursuant to RCW 34.05.620 or 34.05.630, the affected
agency shall notify the committee of its intended action on a proposed or
existing rule or issuance to which the committee objected ((or on a
committee finding of the agency's failure to adopt rules)).
(2)
If the rules review committee finds by a majority vote of its members: (a)
That the proposed or existing rule in question will not be modified, amended,
withdrawn, or repealed by the agency so as to conform with the intent of the
legislature, (b) that an existing rule was not adopted in accordance with all
applicable provisions of law, or (c) that the agency will not modify or
withdraw the issuance, or replace ((the policy or interpretive statement))
it with a rule, the rules review committee may, within thirty days from
notification by the agency of its intended action, file with the code reviser
notice of its objections together with a concise statement of the reasons
therefor. Such notice and statement shall also be provided to the agency by
the rules review committee.
(3)
If the rules review committee makes an adverse finding regarding an existing
rule under subsection (2)(a) or (b) of this section, the committee may, by a
majority vote of its members, recommend suspension of the rule. Within seven
days of such vote the committee shall transmit to the appropriate standing committees
of the legislature, the governor, the code reviser, and the agency written
notice of its objection and recommended suspension and the concise reasons
therefor. Within thirty days of receipt of the notice, the governor shall
transmit to the committee, the code reviser, and the agency written approval or
disapproval of the recommended suspension. If the suspension is approved by
the governor, it is effective from the date of that approval and continues
until ninety days after the expiration of the next regular legislative session.
(4)
The code reviser shall publish transmittals from the rules review committee or
the governor issued pursuant to subsection (2) or (3) of this section in the
Washington state register and shall publish in the next supplement and
compilation of the Washington Administrative Code a reference to the
committee's objection or recommended suspension and the governor's action on it
and to the issue of the Washington state register in which the full text
thereof appears.
(5)
The reference shall be removed from a rule published in the Washington
Administrative Code if a subsequent adjudicatory proceeding determines that the
rule is within the intent of the legislature or was adopted in accordance with
all applicable laws, whichever was the objection of the rules review committee.
Sec.
7. RCW
34.05.655 and 1996 c 318 s 7 are each amended to read as follows:
(1)
Any person may petition the rules review committee for a review of a proposed
or existing rule or ((a policy or interpretive statement)) other
issuance. Within thirty days of the receipt of the petition, the rules
review committee shall acknowledge receipt of the petition and describe any
initial action taken. If the rules review committee rejects the petition, a
written statement of the reasons for rejection shall be included.
(2)
A person may petition the rules review committee under subsection (1) of this
section requesting review of an existing rule only if the person has petitioned
the agency to amend or repeal the rule under RCW 34.05.330(1) and such petition
was denied.
(3)
A petition for review of a rule under subsection (1) of this section shall:
(a)
Identify with specificity the proposed or existing rule to be reviewed;
(b)
Identify the specific statute identified by the agency as authorizing the rule,
the specific statute which the rule interprets or implements, and, if
applicable, the specific statute the department is alleged not to have followed
in adopting the rule;
(c)
State the reasons why the petitioner believes that the rule is not within the
intent of the legislature, or that its adoption was not or is not in accordance
with law, and provide documentation to support these statements;
(d)
Identify any known judicial action regarding the rule or statutes identified in
the petition.
A
petition to review an existing rule shall also include a copy of the agency's
denial of a petition to amend or repeal the rule issued under RCW 34.05.330(1)
and, if available, a copy of the governor's denial issued under RCW
34.05.330(3).
(4)
A petition for review of ((a policy or interpretive statement)) an
issuance other than a proposed or existing rule under subsection (1) of
this section shall:
(a)
Identify the specific ((statement)) issuance to be reviewed;
(b)
((Identify the specific statute which the rule interprets or implements;
(c)))
State the reasons why the petitioner believes that the ((statement)) issuance
meets the definition of a de facto rule under RCW 34.05.010 ((and
should have been adopted according to the procedures of this chapter));
(((d)))
(c) Identify any known judicial action regarding the ((statement))
issuance or statutes identified in the petition.
(5)
Within ninety days of receipt of the petition, the rules review committee shall
make a final decision on the rule or other issuance for which the
petition for review was not previously rejected.
Sec.
8. RCW
42.17.260 and 1995 c 397 s 11 and 1995 c 341 s 1 are each reenacted and amended
to read as follows:
(1)
Each agency, in accordance with published rules, shall make available for
public inspection and copying all public records, unless the record falls
within the specific exemptions of subsection (6) of this section, RCW
42.17.310, 42.17.315, or other statute which exempts or prohibits disclosure of
specific information or records. To the extent required to prevent an
unreasonable invasion of personal privacy interests protected by RCW 42.17.310
and 42.17.315, an agency shall delete identifying details in a manner
consistent with RCW 42.17.310 and 42.17.315 when it makes available or
publishes any public record; however, in each case, the justification for the
deletion shall be explained fully in writing.
(2)
For informational purposes, each agency shall publish and maintain a current
list containing every law, other than those listed in this chapter, that the
agency believes exempts or prohibits disclosure of specific information or
records of the agency. An agency's failure to list an exemption shall not
affect the efficacy of any exemption.
(3)
Each local agency shall maintain and make available for public inspection and
copying a current index providing identifying information as to the following
records issued, adopted, or promulgated after January 1, 1973:
(a)
Final opinions, including concurring and dissenting opinions, as well as
orders, made in the adjudication of cases;
(b)
Those statements of policy and interpretations of policy, statute, and the
Constitution which have been adopted by the agency;
(c)
Administrative staff manuals and instructions to staff that affect a member of
the public;
(d)
Planning policies and goals, and interim and final planning decisions;
(e)
Factual staff reports and studies, factual consultant's reports and studies,
scientific reports and studies, and any other factual information derived from
tests, studies, reports, or surveys, whether conducted by public employees or
others; and
(f)
Correspondence, and materials referred to therein, by and with the agency
relating to any regulatory, supervisory, or enforcement responsibilities of the
agency, whereby the agency determines, or opines upon, or is asked to determine
or opine upon, the rights of the state, the public, a subdivision of state
government, or of any private party.
(4)
A local agency need not maintain such an index, if to do so would be unduly
burdensome, but it shall in that event:
(a)
Issue and publish a formal order specifying the reasons why and the extent to
which compliance would unduly burden or interfere with agency operations; and
(b)
Make available for public inspection and copying all indexes maintained for
agency use.
(5)
Each state agency shall, by rule, establish and implement a system of indexing
for the identification and location of the following records:
(a)
All records issued before July 1, 1990, for which the agency has maintained an
index;
(b)
Final orders entered after June 30, 1990, that are issued in adjudicative
proceedings as defined in RCW 34.05.010(((1))) and that contain an
analysis or decision of substantial importance to the agency in carrying out
its duties;
(c)
Declaratory orders entered after June 30, 1990, that are issued pursuant to RCW
34.05.240 and that contain an analysis or decision of substantial importance to
the agency in carrying out its duties;
(d)
Interpretive statements as defined in RCW 34.05.010(((8))) that were
entered after June 30, 1990; and
(e)
Policy statements as defined in RCW 34.05.010(((14))) that were entered
after June 30, 1990.
Rules
establishing systems of indexing shall include, but not be limited to,
requirements for the form and content of the index, its location and
availability to the public, and the schedule for revising or updating the
index. State agencies that have maintained indexes for records issued before
July 1, 1990, shall continue to make such indexes available for public
inspection and copying. Information in such indexes may be incorporated into
indexes prepared pursuant to this subsection. State agencies may satisfy the
requirements of this subsection by making available to the public indexes
prepared by other parties but actually used by the agency in its operations.
State agencies shall make indexes available for public inspection and copying.
State agencies may charge a fee to cover the actual costs of providing
individual mailed copies of indexes.
(6)
A public record may be relied on, used, or cited as precedent by an agency
against a party other than an agency and it may be invoked by the agency for
any other purpose only ifC
(a)
It has been indexed in an index available to the public; or
(b)
Parties affected have timely notice (actual or constructive) of the terms
thereof.
(7)
Each agency shall establish, maintain, and make available for public inspection
and copying a statement of the actual per page cost or other costs, if any,
that it charges for providing photocopies of public records and a statement of
the factors and manner used to determine the actual per page cost or other
costs, if any.
(a)
In determining the actual per page cost for providing photocopies of public
records, an agency may include all costs directly incident to copying such public
records including the actual cost of the paper and the per page cost for use of
agency copying equipment. In determining other actual costs for providing
photocopies of public records, an agency may include all costs directly
incident to shipping such public records, including the cost of postage or
delivery charges and the cost of any container or envelope used.
(b)
In determining the actual per page cost or other costs for providing copies of
public records, an agency may not include staff salaries, benefits, or other
general administrative or overhead charges, unless those costs are directly
related to the actual cost of copying the public records. Staff time to copy
and mail the requested public records may be included in an agency's costs.
(8)
An agency need not calculate the actual per page cost or other costs it charges
for providing photocopies of public records if to do so would be unduly
burdensome, but in that event: The agency may not charge in excess of fifteen
cents per page for photocopies of public records or for the use of agency
equipment to photocopy public records and the actual postage or delivery charge
and the cost of any container or envelope used to mail the public records to
the requestor.
(9)
This chapter shall not be construed as giving authority to any agency, the
office of the secretary of the senate, or the office of the chief clerk of the
house of representatives to give, sell or provide access to lists of
individuals requested for commercial purposes, and agencies, the office of the
secretary of the senate, and the office of the chief clerk of the house of
representatives shall not do so unless specifically authorized or directed by
law: PROVIDED, HOWEVER, That lists of applicants for professional licenses and
of professional licensees shall be made available to those professional
associations or educational organizations recognized by their professional
licensing or examination board, upon payment of a reasonable charge therefor:
PROVIDED FURTHER, That such recognition may be refused only for a good cause
pursuant to a hearing under the provisions of chapter 34.05 RCW, the
Administrative Procedure Act.
Sec.
9. RCW
51.04.030 and 1994 c 164 s 25 are each amended to read as follows:
The
director shall supervise the providing of prompt and efficient care and
treatment, including care provided by physician assistants governed by the
provisions of chapters 18.57A and 18.71A RCW, acting under a supervising
physician, and including chiropractic care, to workers injured during the
course of their employment at the least cost consistent with promptness and
efficiency, without discrimination or favoritism, and with as great uniformity
as the various and diverse surrounding circumstances and locations of
industries will permit and to that end shall, from time to time, establish and
adopt and supervise the administration of printed forms, rules, regulations,
and practices for the furnishing of such care and treatment: PROVIDED, That,
the department may recommend to an injured worker particular health care
services and providers where specialized treatment is indicated or where cost
effective payment levels or rates are obtained by the department: AND PROVIDED
FURTHER, That the department may enter into contracts for goods and services
including, but not limited to, durable medical equipment so long as state-wide
access to quality service is maintained for injured workers.
The
director shall, in consultation with interested persons, establish and, in his
or her discretion, periodically change as may be necessary, and make available
a fee schedule of the maximum charges to be made by any physician, surgeon,
chiropractor, hospital, druggist, physicians' assistants as defined in chapters
18.57A and 18.71A RCW, acting under a supervising physician or other agency or
person rendering services to injured workers. The department shall coordinate
with other state purchasers of health care services to establish as much
consistency and uniformity in billing and coding practices as possible, taking
into account the unique requirements and differences between programs. No
service covered under this title shall be charged or paid at a rate or rates
exceeding those specified in such fee schedule, and no contract providing for
greater fees shall be valid as to the excess. The establishment of such a
schedule, exclusive of conversion factors, does not constitute "agency
action" as used in RCW 34.05.010(((3))), nor does such a fee
schedule constitute a "de facto rule" as used in RCW
34.05.010(((15))).
The director or self-insurer, as the case may be, shall make a
record of the commencement of every disability and the termination thereof and,
when bills are rendered for the care and treatment of injured workers, shall approve
and pay those which conform to the adopted rules, regulations, established fee
schedules, and practices of the director and may reject any bill or item
thereof incurred in violation of the principles laid down in this section or
the rules, regulations, or the established fee schedules and rules and
regulations adopted under it.
