WSR 02-17-091

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 REVIEW JUDGES
Amend 388-02-0600 What is the authority of the review judge?
Amend Subheading Subchapter REQUESTS FOR RECONSIDERATION OF A REVIEW DECISION
Amend 388-02-0605 What if a party does not agree with a review decision?
Amend 388-02-0610 What is reconsideration?
Amend 388-02-0615 What must a party include in the reconsideration request?
Amend 388-02-0620 What is the deadline for requesting reconsideration?
Amend 388-02-0625 Where does a party send a reconsideration request?
Amend 388-02-0630 How does a party respond to a reconsideration request?
Amend 388-02-0635 What happens after a party requests reconsideration?
Amend Subheading Subchapter REQUESTS FOR JUDICIAL REVIEW
Amend 388-02-0640 What is judicial review?
Amend 388-02-0645 When must you ask for judicial review?
Amend 388-02-0650 How do you serve your petition for judicial review?

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 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 administrative law judges (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 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 a 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

3158.2
AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0600   What is the authority of the review judge?   (1) A review judge may only review the cases listed in WAC 388-02-0215 (4)(a). A review judge has the same decision-making authority as an ALJ in ((the following)) such cases, but must consider the ALJ's opportunity to observe the witnesses((:

(a) Licensing, certification and related civil fines;

(b) Rate-making proceedings; and

(c) Parent address disclosure)).

(2) ((In all other cases, a review judge may only change the hearing decision if:

(a) There are irregularities, including misconduct of a party or misconduct of the ALJ or abuse of discretion by the ALJ, that affected the fairness of the hearing;

(b) The findings of fact are not supported by substantial evidence based on the entire record;

(c) The decision includes errors of law;

(d) The decision needs to be clarified before the parties can implement it; or

(e) Findings of fact must be added because the ALJ failed to make an essential factual finding. The additional findings must be supported by substantial evidence in view of the entire record and must be consistent with the ALJ's findings that are supported by substantial evidence based on the entire record.

(3))) Review judges have the authority to enter final orders for the cases listed in WAC 388-02-0215 (4)(a).

(3) Review judges may remand cases listed in WAC 388-02-0215 (4)(a) to the ALJ for further action.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0600, filed 9/1/00, effective 10/2/00.]

REQUESTS FOR RECONSIDERATION OF ((A REVIEW DECISION)) FINAL ORDERS ENTERED BY OAH AND BOA
AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0605   What if a party does not agree with a ((review decision)) final order entered by OAH or BOA?   (1) If a party does not agree with the ((review decision)) final order and wants it ((changed)) reconsidered, the party must ((either)):

(a) Ask the ALJ to reconsider the decision, if the final order was entered by an ALJ; or

(b) Ask the review judge to reconsider the decision((; or

(b) Appeal the review decision to superior court which is judicial review according to WAC 388-02-0640)), if the final order was entered by a review judge.

(2) ((RCW 34.05.510 to 34.05.598 governs how to appeal a review decision to superior court.

(3))) The ((review decision)) final order or the reconsideration decision is the final agency decision. If ((a party disagrees)) you disagree with that decision, ((the party)) you must petition for judicial review to change it.

(((4) The party)) (3) You may ask the court to stay or stop the DSHS action after filing the petition for judicial review.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0605, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0610   What is reconsideration?   (1) Reconsideration is:

(a) Asking ((the review judge)) an ALJ to reconsider ((the review decision)) a final order entered by the ALJ because the party believes the ALJ made a mistake; and

(b) Asking a review judge to reconsider a final order entered by a review judge because the party believes the review judge made a mistake.

(2) If ((the)) a party asks ((the review judge to reconsider the review decision)) for reconsideration of the final order, the reconsideration process must be completed before you ((go to court)) request judicial review. However, you do not need to request reconsideration of a final order before you request judicial review.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0610, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0615   What must a party include in the reconsideration request?   The party must make the request in writing and clearly state why the party wants the ((review judge to reconsider the review decision)) final order reconsidered.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0615, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0620   What is the deadline for requesting reconsideration?   (1) ((The BOA)) If OAH entered the final order, OAH must receive a written reconsideration request on or before the tenth calendar day after the ((review decision)) final order was mailed.

(2) If BOA entered the final order, BOA must receive a written reconsideration request on or before the tenth calendar day after the final order was mailed.

(3) If a reconsideration request is received after the deadline, the final order will not be reconsidered and the deadline to ask for superior court review continues to run. ((The review judge will not reconsider the review decision.

(3) A review judge may extend the deadline))

(4) OAH or BOA may extend its deadline if a party:

(a) Asks for more time before the deadline expires; and

(b) Gives a good reason for the extension.

(((4))) (5) If a party does not request reconsideration or ask for an extension within the deadline, the ((review judge cannot reconsider the review decision)) final order may not be reconsidered and it becomes the final agency decision.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0620, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0625   Where does a party send a reconsideration request?   (1) A party must send a written reconsideration request to ((BOA at the address in WAC 388-02-0030)) OAH, if OAH entered the final order, or to BOA, if BOA entered the final order.

(2) After receiving a reconsideration request, OAH or BOA sends a copy to the other parties and representatives giving them time to respond.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0625, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0630   How does a party respond to a reconsideration request?   (1) A party does not have to respond to a request. A response is optional.

(2) If a party responds, that party must send a response to OAH, if OAH entered the final order, or to BOA, if BOA entered the final order, by or before the seventh business day after the date OAH or BOA mailed the request to the party.

(3) A party must send a copy of the response to any other party or representative.

(4) If a party needs more time to respond, ((the review judge)) OAH or BOA may extend ((the)) its deadline if the party gives a good reason ((in)) within the deadline in subsection (2) of this section.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0630, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0635   What happens after a party requests reconsideration?   (1) After OAH or BOA receives a reconsideration request, ((a)) an ALJ or review judge has twenty calendar days to send a reconsideration decision unless OAH or BOA sends notice allowing the review judge more time.

(2) After OAH or BOA receives a reconsideration request, the ALJ or review judge must either:

(a) Write a reconsideration decision; or

(b) Send all parties an order denying the request.

(3) If the ALJ or review judge does not send an order or notice granting more time within twenty days of receipt of the reconsideration request, the request is denied.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0635, filed 9/1/00, effective 10/2/00.]

REQUESTS FOR JUDICIAL REVIEW OF FINAL ORDERS
AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0640   What is judicial review?   (1) Judicial review is the process of appealing a final ((hearing decision)) order to a court.

(2) You may appeal a ((review decision)) final order by filing a written petition for judicial review that meets the requirements of RCW 34.05.546. DSHS may not request judicial review.

(3) You must consult RCW 34.05.510 to 34.05.598 for further details of the judicial review process.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0640, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0645   When must you ask for judicial review?   (1) You must file your petition for judicial review with the superior court within thirty calendar days after ((BOA)) OAH or DSHS mails its final ((decision)) order.

(2) Generally, you may file a petition for judicial review only after you have completed the administrative hearing process. However, you do not need to file a request for reconsideration of a final order before requesting judicial review.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0645, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0650   How do you serve your petition for judicial review?   (1) You must file and serve the petition for judicial review of a ((review decision)) final order within thirty days after the date it was mailed. You must file your petition for judicial review with the court. You must serve copies of your petition on DSHS, the office of the attorney general, and all other parties.

(2) To serve DSHS, you must deliver a copy of the petition to the secretary of DSHS or to BOA. You may hand deliver the petition or send it by mail that gives proof of receipt. The physical location of the secretary is:

DSHS Office of the Secretary

OB-2, 4th Floor

Mail Stop 45010

14th and Jefferson

Olympia, WA 98504-5010

The mailing address of the secretary is:

DSHS Office of the Secretary

P.O. Box 45010

Olympia, WA 98504-5010

The physical and mailing addresses for BOA are in WAC 388-02-0030.

(3) To serve the office of the attorney general and other parties, you may send a copy of the petition for judicial review by regular mail. You may send a petition to the address for the attorney of record to serve a party. You may serve the office of the attorney general by hand delivery to:

Office of the Attorney General

670 Woodland Square Loop S.E.

Lacey, WA 98503

The mailing address of the attorney general is:

Office of the Attorney General

P.O. Box 40124

Olympia WA 98504-0124

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0650, filed 9/1/00, effective 10/2/00.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 388-02-0535 Who may ask for a change in a decision?

Washington State Code Reviser's Office