WSR 02-17-092

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Management Services Administration)

[ Filed August 20, 2002, 4:13 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 HEARING DECISIONS
New 388-02-0524 In what cases does the ALJ enter the hearing decision as an initial order?
Amend 388-02-0525 When does a decision become final?
New 388-02-0527 In what cases does an ALJ enter the hearing decision as a final order?
Amend 388-02-0530 What if a party disagrees with the decision?
Repeal 388-02-0535 Who may ask for a change in the decision?
Amend Subheading Subchapter CLERICAL ERRORS IN DECISIONS
Amend 388-02-0540 How are clerical errors corrected?
Amend 388-02-0545 How does a party ask for a corrected decision?
Amend 388-02-0550 How much time do the parties have to ask for a corrected decision?
Amend 388-02-0555 What happens when a party requests a corrected decision?
Amend Subheading Subchapter REQUESTS FOR REVIEW
Amend 388-02-0560 What is a review?
Amend 388-02-0570 Who may request a review?
Amend 388-02-0575 What must a party request in a review?
Amend 388-02-0580 What is the deadline for requesting a review?
Amend 388-02-0585 Where does a party send a review request?
Amend 388-02-0595 What happens after the response deadline?

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

3157.2
NEW SECTION
WAC 388-02-0524   In what cases does the ALJ enter the hearing decision as an initial order?   The ALJ must enter the hearing decision as an initial order in cases set forth in WAC 388-02-0215 (4)(a) and (b).

[]


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

WAC 388-02-0525   When ((does a decision)) do initial orders become final?   (((1) In most cases,)) If no one requests review((, the hearing decision is final twenty-one calendar days after it is mailed.

(2) In food stamp cases involving a claim of an intentional program violation, the ALJ decision is preliminary and the review judge sends a final decision whether or not a party requests review.

(3) If a review request is dismissed, the hearing decision becomes)) of the initial order or if a review request is dismissed, the initial order is final twenty-one ((calendar)) days after ((mailing the hearing decision)) it is mailed.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0525, filed 9/1/00, effective 10/2/00.]


NEW SECTION
WAC 388-02-0527   In what cases does the ALJ enter the hearing decision as a final order?   In cases not covered by WAC 388-02-0215 (4)(a) and (b), the ALJ must enter the hearing decision as a final order.

[]


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

WAC 388-02-0530   What if a party disagrees with the ALJ's decision?   (1) If a party disagrees with ((a decision)) an ALJ's initial or final order because of a clerical error, the party may ask for a corrected decision from the ALJ as provided in WAC 388-02-0540 through 388-02-0555.

(2) If a party disagrees with ((the hearing decision)) an initial order for a case listed in WAC 388-02-0215 (4)(a) and wants it changed, the party must request review by BOA as provided in WAC 388-02-0560 through 388-02-0595.

(((3))) If a party wants to stay the DSHS action until review of the initial order is completed, the party must request a stay from a review judge.

(3) If a party disagrees with an initial order for a case covered by WAC 388-02-0215 (4)(b) and wants it changed, the party must request review by the DSHS program as provided by DSHS program rules in other chapters of title 388 WAC.

(4) Final orders may not be reviewed by BOA.

(5) If a party disagrees with an ALJ's final order, the party may request reconsideration as provided in WAC 388-02-0605 through 388-02-0635. You may also petition for judicial review of the final order as stated in WAC 388-02-0640 to 388-02-0650. You do not need to file a request for reconsideration of the final order before petitioning for judicial review. DSHS may not request judicial review.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0530, filed 9/1/00, effective 10/2/00.]

CLERICAL ERRORS IN ALJ DECISIONS
AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0540   How are clerical errors in ALJ decisions corrected?   (1) A clerical error is a mistake that does not change the intent of the decision.

(2) The ALJ corrects clerical errors in ((the)) hearing decisions by issuing a second decision referred to as a corrected decision or corrected order. Corrections may be made to initial orders and final orders.

(3) Some examples of clerical error are:

(a) Missing or incorrect words or numbers;

(b) Dates inconsistent with the decision or evidence in the record such as using May 3, 1989, instead of May 3, 1998; or;

(c) Math errors when adding the total of an overpayment or a child support debt.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0540, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0545   How does a party ask for a corrected ALJ decision?   (1) A party may ask for a corrected ALJ decision by calling or writing the OAH office that held ((your)) the hearing.

(2) When asking for a corrected decision, please identify the clerical error you found.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0545, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0550   How much time do the parties have to ask for a corrected ALJ decision?   The parties must ask OAH for a corrected decision on or before the tenth calendar day after the ((hearing decision)) order was mailed.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0550, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0555   What happens when a party requests a corrected ALJ decision?   (1) When a party requests a corrected ((decision)) initial or final order, the ALJ must either:

(a) Send all parties a corrected ((decision)) order; or

(b) Deny the request within three business days of receiving it.

(2) If the ALJ corrects ((the hearing decision)) an initial order and a party does not request review, the corrected ((decision)) initial order becomes final twenty-one calendar days after the original ((hearing decision)) initial order was mailed.

(3) If the ALJ denies a request for a corrected ((decision)) initial order for a case listed in WAC 388-02-0215 (4)(a) and the party still wants the hearing decision changed, the party must request review from ((the board of appeals)) BOA.

(4) Requesting a corrected ((decision)) initial order for a case listed in WAC 388-02-0215 (4)(a) does not automatically extend the deadline to request review of the initial order by BOA. A party may ask for more time to request review when needed.

(5) If the ALJ denies a request for a corrected initial order for a case covered by WAC 388-02-0215 (4)(b) and the party still wants it changed, the party must request review by the DSHS program as provided by DSHS program rules in other chapters of title 388 WAC.

(6) If the ALJ denies a request for a corrected final order and you still want the hearing decision changed, you must request judicial review.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0555, filed 9/1/00, effective 10/2/00.]

REQUESTS FOR BOA REVIEW OF INITIAL ORDERS FOR CASES LISTED IN WAC 388-02-0215 (4)(a)
AMENDATORY SECTION(Amending WSR 00-18-059, filed 9/1/00, effective 10/2/00)

WAC 388-02-0560   What is review?   (1) Review occurs when a party disagrees or wants a change in ((the hearing decision)) an initial order, other than correcting a clerical error.

(2) A party must request review of an initial order for a case listed in WAC 388-02-0215 (4)(a) from the BOA.

(3) The review judge considers the request, the ((hearing decision)) initial order, and record, before deciding if the ((decision)) initial order may be changed.

(4) Review does not include another hearing by the BOA.

(5) BOA may not review final orders.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0560, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0570   Who may request review?   (1) Any party may request BOA to review ((a hearing decision)) an initial order for a case listed in WAC 388-02-0215 (4)(a).

(2) If more than one party requests review, each request must meet the deadlines in WAC 388-02-0580.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0570, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0575   What must a party include in the review request?   A party must make the review request in writing and clearly identify the:

(1) Parts of the ((hearing decision)) initial order with which the party disagrees; and

(2) Evidence supporting the party's position.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0575, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0580   What is the deadline for requesting review of cases listed in WAC 388-02-0215 (4)(a)?   (1) BOA must receive the written review request on or before the twenty-first calendar day after the ((hearing decision)) initial order was mailed.

(2) A review judge may extend the deadline if a party:

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

(b) Gives a good reason for more time.

(3) A review judge may accept a review request after the twenty-one calendar day deadline only if:

(a) The BOA receives the review request on or before the thirtieth calendar day after the deadline; and

(b) A party shows good reason for missing the deadline.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0580, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0585   Where does a party send a request to review ((request)) a case listed in WAC 388-02-0215 (4)(a)?   (1) A party must send a ((review)) request to review a case listed in WAC 388-02-0215 (4)(a) to BOA at the address given in WAC 388-02-0030. A party should also send a copy of the review request to the other parties.

(2) After receiving a party's review request, BOA sends a copy to the other parties, OAH, and representatives giving them time to respond.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0585, filed 9/1/00, effective 10/2/00.]


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

WAC 388-02-0595   What happens after the response deadline?   (1) After the response deadline, the record on review is closed unless there is a good reason to keep it open.

(2) A review judge is assigned to the review after the record is closed. To find out which judge is assigned, call BOA.

(3) After the record is closed, the assigned review judge:

(a) Reviews the case; and

(b) ((Sends a review decision)) Enters a final order that ((either)) affirms, changes, dismisses or reverses the ((hearing decision)) initial order; or

(c) Remands (returns) the case to OAH for further action.

[Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0595, filed 9/1/00, effective 10/2/00.]

Washington State Code Reviser's Office