WSR 02-17-090

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Management Services Administration)

[ Filed August 20, 2002, 4:10 p.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule: Amending chapter 388-02 WAC, DSHS hearing rules.

Rules in chapter 388-02 WAC affected by this proposed rule-making notice.


Proposed Action WAC# Current Subchapter or WAC Caption
Subchapter GENERAL
Amended 388-02-0005 What is the purpose and scope of this chapter?
Amended 388-02-0010 What definitions apply to this chapter?
Amended 388-02-0015 How do the terms in the Administrative Procedure Act (APA) compare to this chapter?
Amended 388-02-0025 Where is the Office of Administrative Hearings located?
Subchapter ADMINISTRATIVE LAW JUDGES
Amended 388-02-0215 What is the authority of the ALJ?

Purpose: Proposed rules require administrative law judges (ALJs) of the Office of Administrative Hearings (OAH) to enter final orders for many types of Department of Social and Health Services (DSHS) cases. The rules set forth cases that are subject to review by either the Board of Appeals (BOA) or DSHS programs. Other changes are made to clarify language or to change procedures so that they are consistent with the revised process.

Other Identifying Information: These proposed rules are being filed without prior filing of a CR-101 preproposal statement of inquiry. A CR-101 notice is not required for rules that "adopt, amend or repeal ...a procedure, practice or requirement relating to agency hearings." RCW 34.05.310 (4)(g)(i).

Statutory Authority for Adoption: RCW 34.05.020.

Statute Being Implemented: Chapter 34.05 RCW, Parts IV and V, section 211, chapter 371, Laws of 2002.

Summary: See Title of Rule above.

Reasons Supporting Proposal: Proposed rules would significantly decrease the number of review petitions heard by the DSHS board of appeals. Resulting decreases would help the department reduce expenditures as directed by section 211, chapter 371, Laws of 2002.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Brian H. Lindgren, Manager, RPAU, P.O. Box 45850, 4500 10th Avenue S.E., Lacey, WA 98503, (360) 664-6092.

Name of Proponent: Department of Social and Health Services, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: Proposed rules require ALJs of the OAH to enter final orders for many types of DSHS cases. The rules set forth cases that are subject to review by either the BOA or DSHS programs. Other changes are made to clarify language or to change procedures so that they are consistent with the revised process.

By statute, department clients have the option of requesting a superior court review of final decision. Proposed rules would significantly decrease the number of review petitions heard by the DSHS board of appeals. Resulting decreases would help the department reduce expenditures as directed by section 211, chapter 371, Laws of 2002.

Proposal Changes the Following Existing Rules: See Title of Rule and Explanation of Rule above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rules do not cause an economic impact on small business. Proposed rules amend procedures for the entry and review of final orders for DSHS hearings, and do not create costs for small businesses.

RCW 34.05.328 does not apply to this rule adoption. The proposed rules do not meet the definition of a significant legislative rule under RCW 34.05.328 (5)(c)(iii), "Significant rules are rules other than a procedural or interpretive rule." The proposed rules are "procedural rules" defined in RCW 34.05.328 (5)(c)(i)(A), "A 'procedural rule' is a rule that ...adopts, amends or repeals any procedure, practice or requirement relating to any agency hearings." The proposed rules amend procedures for the entry and review of final orders for DSHS hearings.

Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on September 24, 2002, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by September 20, 2002, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaax@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., September 24, 2002.

Date of Intended Adoption: Not earlier than September 25, 2002.

August 20, 2002

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3156.5
AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0005   What is the purpose and scope of this chapter?   (1) This chapter ((describes)) establishes the general procedures that apply to the resolution of disputes between you and the ((various programs within the)) department of social and health services (DSHS). This chapter establishes procedures only and does not establish a right to a hearing or other dispute resolution process. Other laws or rules, including laws and rules pertaining to specific DSHS programs, determine if you have a right to a hearing or other dispute resolution process. The rules of this chapter ((are intended to)) supplement for DSHS both the Administrative Procedure Act (APA), chapter 34.05 RCW, and the model rules, chapter 10-08 WAC, adopted by the office of administrative hearings (OAH).

(((1))) This chapter:

(a) Establishes rules encouraging informal dispute resolution between DSHS and persons or entities who disagree with its actions;

(b) Regulates all hearings involving DSHS; and

(c) ((Consolidates most DSHS hearing procedural rules into one chapter)) Establishes procedures for the review of initial orders by the DSHS board of appeals (BOA) for cases listed in WAC 388-02-0215 (4)(a); and

(d) Establishes procedures for the reconsideration of final orders entered by OAH and BOA.

(2) ((Nothing in this chapter is intended to affect the constitutional rights of any person or to limit or change additional requirements imposed by statute or other rule. Other laws or rules determine if you have a hearing right, including the APA and DSHS program rules or laws)) Rules in other chapters of title 388 WAC may establish other procedures for the resolution of disputes, including, but not limited to:

(a) Whether an administrative law judge (ALJ) enters an initial or final order for hearings related to specific DSHS programs;

(b) Whether parties may request review of an ALJ's initial order by a DSHS program as provided by WAC 388-02-0215 (4)(b);

(c) Entry of final orders by DSHS programs; and

(d) Reconsideration of final orders by DSHS programs.

(3) Rules in other chapters of title 388 WAC on the resolution of disputes pertaining to specific DSHS ((program hearing rules prevail)) programs take precedence over the rules in this chapter. The rules in this chapter take precedence over the rules in chapter 10-08 WAC.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0005, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0010   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 employees or DSHS 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.

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

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

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

"Final order" means an order that is the final DSHS decision and may not be reviewed by a reviewing officer under RCW 34.05.464.

"Hearing" means a proceeding before OAH that gives a party an opportunity to be heard in disputes about DSHS 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, chapter 10-08 WAC, or other law.

"Initial order" is a hearing decision made by an ALJ that may be reviewed by a DSHS reviewing officer per RCW 34.05.464.

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

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

"Party" means a person or entity:

(1) Named in a DSHS action;

(2) To whom a DSHS action is directed; or

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

(4) DSHS is also a party.

"Prehearing conference" means a proceeding scheduled and conducted by an ALJ 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 organizational unit and the services that it provides, including services provided by DSHS staff and through contracts with providers. Organizational units include, but are not limited to, administrations, divisions, and offices.

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

"Review" means the act of reviewing initial orders and making the final agency decision as provided by RCW 34.05.464.

"Review judge" means an attorney employed by the DSHS board of appeals (BOA) who ((reviews decisions made by an ALJ and makes a final agency decision. The review judge is the reviewing officer in RCW 34.05.464)) is the reviewing officer in RCW 34.05.464 for cases listed in WAC 388-02-0215 (4)(a).

Reviewing Officer" means an employee of DSHS who reviews initial decisions made by an ALJ and makes the final agency decision in cases set forth in WAC 388-02-0215 (4)(a) and (b).

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

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

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

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0010, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0015   How do the terms in the Administrative Procedure Act (APA) compare to this chapter?   To improve clarity and understanding, the rules in this chapter may use different words than the APA or the model rules. Following is a list of terms used in those laws and the terms as used in these rules:


Chapter 34.05 RCW

Chapter 10.08 WAC

Chapter 388-02 WAC

Adjudicative proceeding Different terms are used to refer to different stages of the hearing process, and may include prehearing meeting, prehearing conference, hearing, review, reconsideration and the entire hearing process
Agency DSHS
Application for adjudicative proceeding Request a hearing
Enter Make, send
((Initial order)) ((Hearing decision or order))
Presiding officer ALJ or review judge
Reviewing officer Review judge

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0015, filed 9/1/00, effective 10/2/00.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

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

919 Lakeridge Way SW

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 ((- SHS))

2420 Bristol Court SW, 3rd Floor

PO Box 42489

Olympia, WA 98504-2489

(360) 753-2531

1-800-583-8271

FAX: (360) 586-6563

Seattle

Office of Administrative Hearings ((- SHS))

1904 3rd Ave., Suite 722

Seattle, WA 98101-1100

(206) 464-6322

1-800-583-8270

FAX: (206) 587-5136

Everett

Office of Administrative Hearings ((- SHS))

2722 Colby, Suite 610

Everett, WA 98201-3571

(425) 339-1921

1-800-583-8261

FAX: (425) 339-3907

Vancouver

Office of Administrative Hearings ((- SHS))

800 Franklin Street, 1st Floor

Vancouver, WA 98660

(360) 690-7189

1-800-243-3451

FAX: (360) 696-6255

Spokane

Office of Administrative Hearings ((- SHS))

((136 S. Arthur St.)) 221 N. Wall Street, Suite 540

Spokane, WA ((99202-2254)) 99201-0826

(509) 456-3975

1-800-366-0955

FAX: (509) ((533-2473)) 456-3975

Yakima

Office of Administrative Hearings ((- SHS))

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 website: www.oah.wa.gov

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0025, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0215   What is the authority of the ALJ?   (1) ((An)) The ALJ must hear and decide the issues de novo (anew) based on what is presented during the hearing.

(2) As needed, ((an)) the ALJ may:

(a) Determine the order for presenting evidence;

(b) Issue subpoenas or orders directing witnesses to appear or bring documents;

(c) Rule on objections, motions, and other procedural matters;

(d) Rule on an offer of proof made to admit evidence;

(e) Admit relevant evidence;

(f) Impartially question witnesses to develop the record;

(g) Call additional witnesses and request exhibits to complete the record;

(h) Give the parties an opportunity to cross-examine witnesses or present more evidence against the witnesses or exhibits;

(i) Keep order during the hearing;

(j) Allow or require oral or written argument and set the deadlines for the parties to submit argument or evidence;

(k) Permit others to attend, photograph or electronically record hearings, but may place conditions to preserve confidentiality or prevent disruption;

(l) Allow a party to waive rights given by chapters 34.05 RCW or 388-02 WAC, unless another law prevents it;

(m) Decide whether a party has a right to a hearing;

(n) Issue protective orders;

(o) Consider granting a stay if authorized by law or DSHS rule; and

(p) Take any other action necessary and authorized under these or other rules.

(3) ((An)) The ALJ administers oaths or affirmations and takes testimony.

(4) The ALJ enters an initial order in those cases where the parties may request review of an initial order by a review judge or by a DSHS program.

(a) Cases where the parties may request a review of an initial order by a review judge are those relating to:

(i) Adult family home licenses under RCW 70.128.100 and 70.128.160, and WAC 388-76-705;

(ii) Boarding home licenses under RCW 18.20.190 and WAC 388-78A-030;

(iii) Resident protection program findings under WAC 388-97-077;

(iv) Nursing home licenses under RCW 18.51.054, 18.51.060, 18.51.065, and 74.42.580, and chapter 388-97 WAC;

(v) Domestic violence perpetrator treatment program certification under RCW 26.50.150 and chapter 388-60 WAC;

(vi) Licensing or certification of child foster care homes, programs, facilities, and agencies under chapter 74.15 RCW and chapter 388-148 WAC;

(vii) Child protective services findings of abuse and neglect under RCW 26.44.125 and chapter 388-15 WAC;

(viii) Child day care licenses under chapter 74.15 RCW and WAC 388-10-090, 388-151-090, and 388-155-090;

(ix) Chemical dependency treatment provider certification under RCW 70.96A.090(2) and 43.20A.205 and WAC 388-805-065(3) and 388-805-135;

(x) Community residential services and support certification under WAC 388-820-920;

(xi) Licensed community facilities under RCW 74.15.210 and WAC 388-730-0090;

(xii) Community mental health and involuntary treatment program licenses under WAC 388-865-0480(3).

(b) Cases where the parties may request review of an initial order by a DSHS program are those where review by a DSHS program is provided by statute or by program specific rule.

(5) The ALJ makes the final decision and enters the final order in all cases except those cases set forth in subsection (4)(a) and (b) of this section.

(6) A ((review judge)) reviewing officer has the same authority as an ALJ when presiding at a hearing.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0215, filed 9/1/00, effective 10/2/00.]

Washington State Code Reviser's Office