WSR 02-21-061

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Management Services Administration)

[ Filed October 15, 2002, 3:48 p.m. ]

Date of Adoption: October 15, 2002.

Purpose: The department is adopting revisions to chapter 388-02 WAC, DSHS hearing rules, requiring administrative law judges (ALJ) of the Office of Administrative Hearings to enter final orders for many types of DSHS cases. The rules also set forth cases where the ALJ's initial orders are subject to review by the DSHS Board of Appeals. Other changes were made to clarify language or to change procedures so that they are consistent with the revised process. The department is withdrawing the amendments to WAC 388-02-0005 as proposed in WSR 02-17-090.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-02-0535; and amending WAC 388-02-0010, 388-02-0015, 388-02-0025, 388-02-0215, 388-02-0524, 388-02-0525, 388-02-0527, 388-02-0530, 388-02-0540, 388-02-0545, 388-02-0550, 388-02-0555, 388-02-0560, 388-02-0570, 388-02-0575, 388-02-0580, 388-02-0585, 388-02-0595, 388-02-0600, 388-02-0605, 388-02-0610, 388-02-0615, 388-02-0620, 388-02-0625, 388-02-0630, 388-02-0635, 388-02-0640, 388-02-0645, and 388-02-0650.

Statutory Authority for Adoption: RCW 34.05.020.

Other Authority: Chapter 34.05 RCW, Parts IV and V, section 211, chapter 371, Laws of 2002.

Adopted under notice filed as WSR 02-17-090, 02-17-091 and 02-17-092 on August 20, 2002.

Changes Other than Editing from Proposed to Adopted Version: The following changes were made as a result of comments received:

Rules as proposed (added language underlined; deleted language struck through) Changes in the adopted version of the rules:
WAC 388-02-0005:

See note in the right column.

All proposed amendments to WAC 388-02-0005 are withdrawn, and this rule is not included in the rules as adopted.
WAC 388-02-0010 What definitions apply to this chapter?


Revised definitions as adopted or changes from the proposed rule:
"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. "Final order" means an order that is the final DSHS decision.
"Initial order" is a hearing decision made by an ALJ that may be reviewed by a DSHS reviewing officer per RCW 34.05.464. "Initial order" is a hearing decision made by an ALJ that may be reviewed by a review judge pursuant to WAC 388-02-0215(4).
"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. Deleted "and offices" and added "and" after "administrations."
"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). Deleted the reference to subsection "(a)" in WAC 388-02-0215(4).
"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). Deleted the term "Reviewing officer" and its definition entirely.
WAC 388-02-0215(4):

(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 finding 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;

Deleted "or by a DSHS program."

Combined subsections (4) and (4)(a), and deleted the subsection numbering "(a)."

Revised the numbering format of proposed subsections (i) through (xii) to lower case letters. In the adopted version, proposed subsection (4)(a):

(i) is now subsection (4)(a); and "RCW 70.128.100 and 70.128.160, and WAC 388-76-705" is deleted and replaced with "chapter 388-76 WAC."

(ii) is now subsection (4)(b); and "RCW 18.20.190 and WAC 388-78A-030 is deleted and replaced with "chapter 388-78A 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 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;

(iii) is now subsection (4)(c).

(iv) is now subsection (4)(d); and "RCW 18.51.054, 18.51.065 and 74.42.580, and chapter 388-97 WAC" is deleted and replaced with "WAC 388-97-550 through 388-97-695."

(v) is now subsection (4)(k); and "RCW 26.50.150 and" is deleted.

(vi) is now subsection (4)(l); and "chapter 388-148 WAC " is replaced with "chapters 388-148 WAC and 388-160 WAC."

(vii) is now subsection (4)(m).

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

(xi) Licensed community facilities under RCW 74.15.120 and WAC 388-730-0090;

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

(viii) is now subsection (4)(o); and "WAC 388-150-090, 388-151-090 and 388-155-090" is replaced with "chapters 388-150, 388-151, and 388-155 WAC."

(ix) is now subsection (4)(u), and "RCW 70.96A.090(2) and 43.20A.205 and WAC 388-805-065(3) and 388-805-135" is deleted and replaced with "chapter 388-805 WAC."

(x) is now subsection (4)(v), and ", for which a hearing has been held" is added after "Community residential services and support certification."

(xi) is now subsection (4)(z).

(xii) is now subsection (4) (aa), and "(3)" is deleted after "WAC 388-865-0480."

The following new subsections are added to WAC 388-02-0215(4) as adopted:

(e) Self-directed care under RCW 74.39A.050(9) and WAC 388-71-0150 and 388-71-0155;

(f) Termination of provider for placing clients in imminent jeopardy under RCW 74.39A.095(7) and WAC 388-71-0551;

(g) Termination of provider due to inadequate performance or inability to deliver quality care under RCW 74.39A.095(7) and WAC 388-71-0540 and 388-71-0551;

(h) Denial of contract to provider due to inability of provider to appropriately meet the care needs of clients under RCW 74.39A.095(8) and WAC 388-71-0546;

(i) Denial or termination of contract to a provider due to a disqualifying crime or lack of character, competence, or suitability to maintain the health, safety, and well-being of clients under RCW 43.20A.710 and WAC 388-71-0540;

(j) Social service eligibility under WAC 388-71-0400 through 388-71-0480, 388-71-202 and 388-71-203;

(n) Adoption support under WAC 388-27-0120 through 388-27-0390, for which a hearing has been held under WAC 388-27-0365;

(p) Background check of protective payees under WAC 388-460-0025, for which a hearing has been held under WAC 388-460-0070;

(q) Background checks of child care providers and other persons under WAC 388-290-0143, for which a hearing has been held under WAC 388-290-0260 as part of the working connections child care program;

(r) Background checks of persons acting in the place of a parent under WAC 388-454-0006, for which a hearing has been held under WAC 388-472-0005 (1)(j);

(s) Claims of good cause for not cooperating with the division of child support under WAC 388-422-0020;

(t) Parent address disclosure under WAC 388-14A-2114 through 388-14A-2140;

(w) Denial or termination of eligibility for services under WAC 388-825-100, for which a hearing has been held under WAC 388-825-120(a);

(x) Development or modification of an individual service plan under WAC 388-825-050, for which a hearing has been held under WAC 388-825-120(b);

(y) Authorization, denial, reduction, or termination of services under WAC 388-825-100, for which a hearing has been held under WAC 388-820-120(c);

(bb) Medical, dental, or transportation services, for which a hearing has been held under WAC 388-526-2610;

(cc) Medical provider overpayments, for which a hearing has been held under WAC 388-502-0230(5) or 388-502-0240(17).

WAC 388-02-0215:

(b) Cases where the parties may request review of an initial order by a DSHS program are those where the 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.

Proposed subsection (4)(b) is deleted entirely.

In subsection (5), deleted references to subsections "(a) and (b)."

In subsection (6), restored the deleted phrase "review judge" and deleted "reviewing officer."

New WAC 388-02-0524:

...as set forth in WAC 388-02-0215 (4)(a) and (b).

Deleted "(a) and (b)" from the WAC citation.

WAC 388-02-0525:

if a review request is dismissed, the initial order is final twenty-one calendar days after

Restored the word "calendar" deleted from the proposed rule.

New WAC 388-02-0527:

In cases not covered by WAC 388-02-0215 (4)(a) and (b)…

Deleted "(a) and (b)" from the WAC citation.

WAC 388-02-0530:

Subsection (2): …an initial order for a case listed in WAC 388-02-0215 (4)(a)


Subsection (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.


Subsection (5): …You may also petition for judicial review of the final order as stated in WAC 388-02-0640 to 388-02-0650

Deleted "(a)" from the WAC citation.




Proposed subsection (3) is deleted entirely and all of the following subsections are renumbered accordingly.




Deleted "to" and replaced with "through" to read "WAC 388-02-0640 through WAC 388-02-0650."

WAC 388-02-0555:

Subsection (3): …initial order for a case listed in WAC 388-02-0215 (4)(a)


Subsection (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.

Deleted "(a)" from the WAC citation.


Subsection (5) was deleted entirely and the following subsection (6) is renumbered as (5).


WAC 388-02-0560:

Subsection (2): …for a case listed in WAC 388-02-0215 (4)(a)

Deleted "(a)" from the WAC citation.

WAC 388-02-0570:

Subsection (1): …for a case listed in WAC 388-02-0215 (4)(a)

Deleted "(a)" from the WAC citation.

WAC 388-02-0580 What is the deadline for requesting review of cases listed in WAC 388-02-0215 (4)(a)? Deleted "(a)" in the caption.
WAC 388-02-0585 Where does a party send a request to review request a case listed in WAC 388-02-0215 (4)(a)?


Subsection (1): …to review a case listed in WAC 388-02-0215 (4)(a)

Deleted "(a)" in the caption.


Deleted "(a)” from the WAC citation.

WAC 388-02-0600:

Subsection (1): A review judge may only review the cases listed in WAC 388-02-0215 (4)(a).

Subsection (1): A review judge has the same decision-making authority as an ALJ in the following such cases…


Deleted subsections (1)(a), (b), and (c); (2)(a) through (e).

Deleted "(a)" from the WAC citation.



Restored "the following" and deleted "such."


Restored subsections (1)(a), (b) and (c), and (2) (a) through (e) that were deleted in the proposed rules.

Proposed subsection (2) : (3) Review judges have the authority to enter final orders for the cases listed in WAC 388-02-0215 (4)(a).


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

Deleted "(a)" from the citation.


Deleted "(a)" from the WAC citation.

WAC 388-02-0635:

Subsection (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 send notice allowing the review judge more time.

Deleted "the review judge" after "send notice allowing."

WAC 388-02-0645:

Subsection (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.

Deleted "DSHS" and replaced with "BOA."

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 29, Repealed 1.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 29, Repealed 1.
Effective Date of Rule: Thirty-one days after filing.

October 15, 2002

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

Reviser's note: The material contained in this filing exceeded the page-count limitations of WAC 1-21-040 for appearance in this issue of the Register. It will appear in the 02-22 issue of the Register.

Washington State Code Reviser's Office