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All proposed amendments to WAC 388-02-0005 are withdrawn, and this rule is not included in the rules as adopted.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).

(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

3156.10
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.

"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 review judge pursuant to WAC 388-02-0215(4).

"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 and divisions.

"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).

"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)) 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.]


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

(a) Adult family home licenses under chapter 388-76 WAC;

(b) Boarding home licenses under chapter 388-78A WAC;

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

(d) Nursing home licenses under WAC 388-97-550 through 388-97-695;

(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 a 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, 388-71-0202, and 388-71-0203;

(k) Domestic violence perpetrator treatment program certification under chapter 388-60 WAC;

(l) Licensing or certification of child foster care homes, programs, facilities, and agencies under chapter 74.15 RCW and chapters 388-148 and 388-160 WAC;

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

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

(o) Child day care licenses under chapter 74.15 RCW and chapters 388-150, 388-151, and 388-155 WAC;

(p) Background checks 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;

(u) Chemical dependency treatment provider certification under chapter 388-805 WAC;

(v) Community residential services and support certification, for which a hearing has been held under WAC 388-820-920;

(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 388-825-120(c);

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

(aa) Community mental health and involuntary treatment program licenses under WAC 388-865-0480;

(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).

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

(6) A review judge 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.]

3157.4
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).

[]


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), 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) 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) Final orders may not be reviewed by BOA.

(4) 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 through 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) 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) 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 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)
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) 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).

(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)?   (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)?   (1) A party must send a ((review)) request to review a case listed in WAC 388-02-0215(4) 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.]

3158.4
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 review judge has the same decision-making authority as an ALJ in the following 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).

(4) Review judges may remand cases listed in WAC 388-02-0215(4) 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 BOA 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