Washington State Register

WSR 97-08-092

PROPOSED RULES

DEPARTMENT OF HEALTH

[Filed April 2, 1997, 11:55 a.m.]

Original Notice.

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

Title of Rule: Chapters 246-10 and 246-11 WAC.

Purpose: Housekeeping changes to rules to change location of where documents are to be filed, change name of office that serves orders and most references from "Office of Professional Standards" to "Adjudicative Clerk Office."

Other Identifying Information: The Adjudicative Clerk Office will consolidate administrative tasks for service of orders and filing of orders and motions relating to adjudicative proceedings. This consolidation will cause the procedures to be done in a uniform fashion which will benefit all licensees, programs, boards/commissions and defense attorneys.

Statutory Authority for Adoption: RCW 18.155.040 Secretary--Authority.

Statute Being Implemented: RCW 43.70.040.

Summary: The Department of Health is forming the Adjudicative Clerk Office. These rule amendments will clarify to the public the correct location to file legal documents and the correct office that will be serving final orders when the adjudicative process has begun.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Terry West and Pat Collins, Clerk Workgroup, P.O. Box 47879, Olympia, WA 98504, (360) 664-8881.

Name of Proponent: Department of Health, Clerk Workgroup, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: There were no negative comments received.

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

Explanation of Rule, its Purpose, and Anticipated Effects: These amendments change all references from the "Office of Professional Standards" to "Adjudicative Clerk Office." These changes include all references for where to file legal documents, which office serves legal documents and where to file notice of appearances. These amendments will clarify for the public (licensees, defense and prosecution attorneys) of the appropriate office for these activities. The anticipated effect is that the public will be informed of the correct office for filing legal documents.

Proposal Changes the Following Existing Rules: Changes all references from "Office of Professional Standards" to "Adjudicative Clerk Office"; establishes the office address for the Adjudicative Clerk Office, defines "docket"; allows "or other designee of the secretary" to prepare scheduling orders; changes references to "presiding officer" to "Adjudicative Clerk Office" for purposes of motions.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These amendments fall within the provisions for exceptions rules and do not require a small business economic impact statement.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. This rule does not subject a person to a penalty or sanction; does not establish, alter or revoke a qualification or standard for licensure; and does not make significant amendment to a policy or regulatory program. This rule provides the name change from Office of Professional Standards to Adjudicative Clerk Office within existing administrative rules which provide administrative direction on the filing of orders and motions related to adjudicative proceedings.

Hearing Location: Department of Health, 2413 Pacific Avenue, Olympia, WA 98504, on May 20, 1997, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Terry J. West or Pat Collins by May 13, 1997, TDD 1-800-833-6388, or FAX (360) 664-0114.

Submit Written Comments to: Pat Collins or Terry J. West, FAX (360) 664-0114, by May 13, 1997.

Date of Intended Adoption: May 22, 1997.

April 2, 1997

Kris VanGorkom

for Bruce Miyahara

Secretary

AMENDATORY SECTION (Amending WSR 94-04-079, filed 1/31/94, effective 3/3/94)

WAC 246-10-102 Definitions. As used in these rules of practice and procedure, the following terms shall have the meaning set forth in this section unless the context clearly indicates otherwise. Other terms shall have their ordinary meaning unless defined elsewhere in this chapter.

"Adjudicative clerk office" shall mean the unit with responsibility for: Docketing; service of orders; and maintaining custody of the adjudicative proceeding record, whose address is:

Department of Health

Adjudicative Clerk Office

2413 Pacific Avenue

PO Box 47879

Olympia, WA 98504-7879

"Adjudicative proceeding" or "hearing" shall mean a proceeding required by statute or constitutional right and conducted under the rules of this chapter, which provides an opportunity to be heard by the department prior to the entry of a final order under this chapter.

"Brief adjudicative proceeding" shall mean an adjudicative proceeding or hearing, the scope or conduct of which is limited as provided in this chapter.

"Department" shall mean the Washington state department of health and, where appropriate, the secretary of the Washington state department of health or the secretary's designee.

"Docket" or "docketing" shall mean the list or calendar of causes set to be heard at a specified time, prepared by the adjudicative clerk office for the use of the department.

"Filing" shall mean receipt by the adjudicative clerk office ((~~of professional standards~~)).

"Initiating document" shall mean a written agency document which initiates action against a license holder or applicant for license or recipient of benefits and which creates the right to an adjudicative proceeding. It may be entitled a statement of charges, notice of intent to deny, order, or by any other designation indicating the action or proposed action to be taken.

"License" shall have the meaning set forth in RCW 34.05.010, and includes any license, certification, registration, permit, approval, or any similar form of authorization required by law to be obtained from the department.

"Office of professional standards" shall mean the unit responsible for conducting adjudicative proceedings((~~, whose address is:~~)).

((~~Department of Health~~

~~Office of Professional Standards~~

~~2413 Pacific Avenue~~

~~PO Box 47872~~

~~Olympia, WA 98504-7872~~))

"Presiding officer" shall mean the person who is assigned to conduct an adjudicative proceeding. The presiding officer may be an employee of the department who is authorized to issue a final decision as designee of the secretary, or an administrative law judge employed by the office of administrative hearings.

"Presiding officer for brief adjudicative proceedings" shall mean an employee of the department who is authorized to conduct brief adjudicative proceedings.

"Program" shall mean the administrative unit within the department responsible for implementation of a particular statute or rule.

"Prompt adjudicative proceeding" or "prompt hearing" shall mean a hearing conducted at the request of the license holder or applicant for license following summary action taken in accord with this chapter against that license holder or applicant.

"Protective order" shall mean an order issued under this chapter which limits the use of, access to, or disclosure of information or evidence.

"Recipient of benefits" shall mean an individual who has qualified for benefits administered by the department.

"Respondent" shall mean a person eligible to request an adjudicative proceeding in a program under the jurisdiction of the department who is named in an initiating document.

"Secretary" shall mean the secretary of the department of health or his/her designee.

"Summary action" shall mean an agency action to address an immediate danger to the public health, safety, or welfare and shall include, but not be limited to, a cease and desist order, an order of summary suspension, and an order of summary restriction of a license.

[Statutory Authority: RCW 43.70.040. 94-04-079, 246-10-102, filed 1/31/94, effective 3/3/94; 93-13-005 (Order 369), 246-10-102, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending Order 369, filed 6/3/93, effective 7/4/93)

WAC 246-10-108 Representation. (1) Persons requesting an adjudicative proceeding may be represented subject to the following conditions:

(a) A person requesting an adjudicative proceeding may represent himself/herself or may be represented by an attorney who has complied with the admission to practice rules of the supreme court of the state of Washington;

(b) Every attorney representing a person requesting an adjudicative proceeding shall file a notice of appearance with the adjudicative clerk office ((~~of professional standards~~)) upon commencing representation, and shall file a notice of withdrawal of counsel with the adjudicative clerk office ((~~of professional standards~~)) upon terminating representation.

(c) No person requesting an adjudicative proceeding may be represented in an adjudicative proceeding by an employee of the department.

(2) No current or former employee of the department may appear as an expert, character witness, or representative of any party other than the state of Washington if he/she took an active part in investigating or evaluating the case or represented the agency in the matter, unless written permission of the secretary is granted. No current or former member of the attorney general's office staff who participated personally and substantially in investigating or evaluating the matter at issue while so employed may represent a party or otherwise participate in a related proceeding without first having obtained the written consent of the attorney general's office.

[Statutory Authority: RCW 43.70.040. 93-13-005 (Order 369), 246-10-108, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending WSR 94-04-079, filed 1/31/94, effective 3/3/94)

WAC 246-10-109 Service and filing. (1) A party filing a pleading, brief, or paper other than an initiating document or application for an adjudicative proceeding as required or permitted by these rules, shall serve a copy of the paper upon the opposing party or any designated representative of the opposing party prior to or simultaneous with filing.

(2) Unless otherwise provided by law, filing and service shall be made by personal service; by first class, registered, or certified mail; or by electronic telefacsimile transmission (FAX) where copies are mailed simultaneously.

(3) Filing shall be complete upon actual receipt during normal business hours at the adjudicative clerk office ((~~of professional standards~~)).

(4) Service shall be complete when personal service is made; or mail is properly stamped, addressed, and deposited in the United States mail; or FAX transmission is completed and copies are deposited in the United States mail properly stamped and addressed.

(5) Proof of service shall consist of filing as required by these rules, together with one of the following:

(a) An acknowledgement of service;

(b) A certificate of service including the date the papers were served, the parties upon whom served, the signature of the serving party, and a statement that service was completed by:

(i) Personal service; or

(ii) Mailing in the United States mail a copy properly addressed with postage and fees prepaid to each party and each designated representative.

(6) For the purpose of service on a licensee or a person requesting an adjudicative proceeding, service shall be made at the last known address provided to the department in accordance with WAC 246-01-100, unless the program has actual knowledge of a different correct address for the person being served.

[Statutory Authority: RCW 43.70.040. 94-04-079, 246-10-109, filed 1/31/94, effective 3/3/94; 93-13-005 (Order 369), 246-10-109, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending Order 369, filed 6/3/93, effective 7/4/93)

WAC 246-10-121 Notice to limited-English-speaking parties. When the program or the adjudicative clerk office ((~~of professional standards~~)) is notified or otherwise made aware that a limited-English-speaking person is a party in an adjudicative proceeding, all notices concerning the hearing, including notices of hearing, continuance, and dismissal, shall either be in the primary language of the party or shall include a notice in the primary language of the party which describes the significance of the notice and how the party may receive assistance in understanding and, if necessary, responding to the notice.

[Statutory Authority: RCW 43.70.040. 93-13-005 (Order 369), 246-10-121, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending Order 369, filed 6/3/93, effective 7/4/93)

WAC 246-10-122 Interpreters. (1) A "hearing impaired person" means a person who, because of a hearing impairment or speech defect, cannot readily understand or communicate in spoken language. A "hearing impaired person" includes a person who is deaf, deaf and blind, or hard of hearing.

(2) A "limited-English-speaking person" means a person who because of a non-English-speaking cultural background cannot readily speak or understand the English language.

(3) If a hearing impaired person or a limited-English-speaking person is involved in an adjudicative proceeding and a need for an interpreter is made known to the adjudicative clerk office ((~~of professional standards~~)), the presiding officer shall appoint an interpreter who is acceptable to the parties or, if the parties are unable to agree on an interpreter, the presiding officer shall select and appoint an interpreter.

(4) Before beginning to interpret, an interpreter shall take an oath or make affirmation that:

(a) A true interpretation shall be made to the impaired person of all the proceedings in a language or in a manner the impaired person understands; and

(b) The interpreter shall repeat the statements of the impaired person to the presiding officer, in the English language, to the best of the interpreter's skill and judgment.

(5) When an interpreter is used in a proceeding:

(a) The interpreter shall translate all statements made by other participants in the proceeding;

(b) The presiding officer shall ensure sufficient extra time is provided to permit translation; and

(c) The presiding officer shall ensure that the interpreter translates the entire proceeding to the hearing impaired person or limited-English-speaking person to the extent that the person has the same opportunity to understand the statements made as would a person not requiring an interpreter.

(6) An interpreter appointed under this section shall be entitled to a reasonable fee for services, including waiting time and reimbursement for actual necessary travel expenses. The program shall pay the interpreter fee and expenses incurred for interpreters for license holders, applicants, or recipients of benefits. The party on whose behalf a witness requiring an interpreter appears shall pay for interpreter services for that witness.

(7) All proceedings shall be conducted consistent with chapters 2.42 and 2.43 RCW.

[Statutory Authority: RCW 43.70.040. 93-13-005 (Order 369), 246-10-122, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending WSR 94-04-079, filed 1/31/94, effective 3/3/94)

WAC 246-10-203 Request for adjudicative proceeding. A respondent may respond to an initiating document by filing an application for an adjudicative proceeding or by waiving the opportunity for adjudicative proceeding.

(1) If the respondent wishes to file an application for an adjudicative proceeding:

(a) An application for adjudicative proceeding must be filed in accordance with the following time periods:

(i) For matters under chapter 18.130 RCW, the Uniform Disciplinary Act, within twenty days of service of the initiating documents unless an extension has been granted as provided in subsection (3) of this section; and

(ii) For all other matters in which the program proposes to deny, suspend, revoke or modify a license or proposes to impose a civil fine, within twenty-eight days of receipt of the initiating documents, unless otherwise provided by statute; and

(iii) For all other matters, within twenty days of service of the initiating documents, unless otherwise provided by statute.

(b) The application for adjudicative proceeding shall be made either on the Request for Adjudicative Proceeding Form accompanying the initiating documents or by a written document containing at least the following information:

(i) Name and address of the party requesting an adjudicative proceeding;

(ii) Name and address of the attorney representing the party, if any;

(iii) Identification of the portion or portions of the initiating documents contested;

(iv) Summary of the party's position on the portion or portions contested;

(v) Statement of the party's standing to request an adjudicative proceeding under WAC 246-10-107; and

(vi) For matters not under chapter 18.130 RCW and in which the department proposes to deny, suspend, revoke or modify a license or proposes to impose a civil fine, the application shall include a copy of the initiating document containing the adverse notice.

(c) By filing a request for adjudicative proceeding, the responding party agrees to appear personally at the adjudicative proceeding or, if otherwise approved by the presiding officer, by telephone, unless appearance is waived as authorized in WAC 246-10-104(4).

(d) The application for adjudicative proceeding shall contain a response to the initiating documents, indicating whether each charge is admitted, denied, or not contested, and responses shall be subject to the following conditions:

(i) Once admitted or not contested, an allegation may not be denied; and

(ii) An allegation denied or not contested may later be admitted.

(e) When an allegation is admitted or not contested, it shall be conclusively deemed to be true for all further proceedings. No proof of the allegation need be submitted.

(f) The application for adjudicative proceeding shall specify the representative, if any, designated pursuant to WAC 246-10-108 and any request for interpreter. The responding party shall amend the name of the representative and need for interpreter immediately if circumstances change prior to the hearing.

(g) The application for adjudicative proceeding shall be filed at the adjudicative clerk office ((~~of professional standards~~)) at the address specified in WAC 246-10-102.

(2) A respondent may waive an adjudicative proceeding and submit a written statement and other documents in defense or in mitigation of the charges. Such waiver and documents shall be filed:

(a) In accordance with the timelines in subsection (1)(a) of this section; and

(b) At the address indicated in subsection (1)(g) of this section.

(3) For matters under RCW 18.130.180, if the twenty-day limit for filing an application for adjudicative proceeding results in a hardship to the respondent, the respondent may request an extension of not more than sixty days upon a showing of good cause.

(a) The request for extension shall be filed within the twenty day limit and shall include:

(i) The reason for the request and the number of days for which the extension is requested; and

(ii) Documentation of the circumstances creating the hardship.

(b) The request shall be granted for a period not to exceed sixty days upon showing of:

(i) Illness of the respondent; or

(ii) Absence of the respondent from the county of residence or employment; or

(iii) Emergency in the respondent's family; or

(iv) Other good cause as determined by the presiding officer.

(c) If a request for extension is denied, the respondent shall have ten days from service of the order denying the extension or twenty days from service of the initiating documents, whichever is longer, to file an application for adjudicative proceeding.

[Statutory Authority: RCW 43.70.040. 94-04-079, 246-10-203, filed 1/31/94, effective 3/3/94; 93-13-005 (Order 369), 246-10-203, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending WSR 94-04-079, filed 1/31/94, effective 3/3/94)

WAC 246-10-205 Scheduling orders. (1) Within thirty days after receipt of the application for adjudicative proceeding, the office of professional standards, or other designee of the secretary, shall:

(a) Approve the application for full adjudicative procedure and issue and serve on the parties a scheduling order specifying the course of the proceeding; or

(b) Approve the application for a brief adjudicative procedure and issue and serve a notice of the date by which any additional written materials are to be submitted for consideration; or

(2) For matters under chapter 18.130 RCW, the scheduling order shall contain:

(a) The date, time, and place of a settlement conference, a prehearing conference, and the hearing;

(b) The deadlines for completion of discovery and submission of prehearing motions; and

(c) The name, address, and telephone number of the assistant attorney general or other department representative who will represent the state in the matter.

(3) The scheduling order may be modified by order of the presiding officer upon his/her own initiative or upon motion of a party. Any request for a change in the scheduling order shall be made by motion as provided in WAC 246-10-403.

(4) The presiding officer may waive establishing dates for the settlement conference, completion of discovery, submission of prehearing motions, and the prehearing conference, if, in the discretion of the presiding officer, those proceedings are not necessary or appropriate in a particular matter or type of case. However, either party may request by motion to the presiding officer that any or all of the dates be set.

(5) Dates contained in the scheduling order may be changed by the adjudicative clerk office ((~~of professional standards~~)) upon written request of either party made within fifteen days of issuance of the first scheduling order. All other changes must be made by motion pursuant to WAC 246-10-403.

[Statutory Authority: RCW 43.70.040. 94-04-079, 246-10-205, filed 1/31/94, effective 3/3/94; 93-13-005 (Order 369), 246-10-205, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending WSR 94-04-079, filed 1/31/94, effective 3/3/94)

WAC 246-10-401 Settlement conference. (1) Following a request for an adjudicative proceeding, ((~~the office of professional standards may schedule~~)) a settlement conference may be scheduled as provided in WAC 246-10-205. The parties shall be notified of the date, time, and place of the settlement conference.

(2) The purpose of the settlement conference shall be to attempt to reach agreement on the issues and on a proposed order to be entered. Any agreement of the parties is subject to final approval by the presiding officer.

(3) The respondent shall attend the settlement conference as scheduled and may also be represented as provided in WAC 246-10-108. Representatives of the department will also attend. Other persons may attend by agreement of the parties.

(4) Either party may bring documents or other materials to the settlement conference for the purpose of settlement negotiations. No testimony will be taken. No documents or information submitted at the settlement conference will be admitted at the adjudicative proceeding unless stipulated by the parties or otherwise admitted into evidence by the presiding officer.

(5) If a settlement offer has been made in writing to the respondent and it is signed and returned by the respondent to the adjudicative clerk office ((~~of professional standards~~)) prior to the settlement conference, all subsequent dates set in the scheduling order are continued pending final review of the settlement by the presiding officer.

[Statutory Authority: RCW 43.70.040. 94-04-079, 246-10-401, filed 1/31/94, effective 3/3/94; 93-13-005 (Order 369), 246-10-401, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending WSR 96-21-027, filed 10/7/96, effective 11/7/96)

WAC 246-10-403 Motions. (1) The presiding officer shall rule on motions. The presiding officer may rule on motions without oral argument or may request or permit the parties to argue the motion in person or by telephone. Oral argument may be limited in time at the discretion of the presiding officer.

(2) All prehearing motions, including discovery and evidentiary motions, shall be made in writing and filed with the ((~~presiding officer~~)) adjudicative clerk office prior to the dates set in the scheduling order.

(3) Motions for continuance must be made in writing and filed prior to the dates set in the scheduling order. If the adjudicative proceeding is scheduled to take place fewer than twenty days from service of the scheduling order, motions for continuance must be made within ten days of service of the scheduling order, but in no event fewer than five days prior to the hearing. Continuances may be granted by the presiding officer for good cause.

(4) The presiding officer may grant a continuance when a motion for continuance is not submitted within the time limits contained in subsection (3) of this section for good cause.

(5) The following is the recommended format for motions:

(a) A succinct statement of the facts contended to be material;

(b) A concise statement of the issue, issues or law upon which the presiding officer is requested to rule;

(d) If the motion requires the consideration of facts or evidence not appearing on the record, the moving party shall also serve and file copies of all affidavits and photographic or documentary evidence presented in support of the motion;

(e) The legal authority upon which the motion is based; and

(f) A proposed order may accompany the motion, and should contain findings of fact and conclusions of law.

(6) The moving party shall file the motion, and the accompanying affidavits and photographic or documentary evidence when necessary, with the ((~~presiding officer~~)) adjudicative clerk office and shall serve the motion, and the accompanying affidavits and photographic or documentary evidence when necessary, on all other parties.

(7) The opposing party shall file with the ((~~presiding officer~~)) adjudicative clerk office, and serve upon the moving party, a responsive memorandum, and accompanying affidavits and photographic or documentary evidence when necessary, no later than eleven days following service of the motion, unless otherwise ordered by the presiding officer.

(8) The moving party may file with the ((~~presiding officer~~)) adjudicative clerk office, and serve upon the opposing party, a reply memorandum no later than five days following service of the responsive memorandum, unless otherwise ordered by the presiding officer.

(9) Unless otherwise ordered by the presiding officer, all motions shall be decided without oral argument. A party requesting oral argument on a motion shall so indicate by typing "oral argument requested" in the caption of the motion or the responsive memorandum. If a request for oral argument is granted, the presiding officer shall notify the parties of the date and time of the argument and whether the argument will be in person or by telephone conference.

(10) Motions to shorten time or emergency motions shall be exceptions to the rule, and a party may only make such motions in exigent or exceptional circumstances. When making such a motion, the moving party shall:

(a) Suggest a date and time when the moving party seeks to have the presiding officer hear the motion to shorten time, which should be at least forty-eight hours after filing;

(b) Suggest a date and time when the moving party seeks to have the presiding officer consider the merits of the underlying motion;

(c) Describe the exigent or exceptional circumstances justifying shortening of time in an affidavit or a memorandum accompanying the motion;

(d) Certify that the motion to shorten time and the underlying motion have been served on all other parties prior to the filing of the motion with the presiding officer. Any opposition to the motion to shorten time must be served and filed within twenty-four hours of the service of the motion. If the presiding officer grants the motion to shorten time, the presiding officer shall notify the parties of the date by which the responsive memorandum to the underlying motion shall be served and filed.

(11) All motions will be decided as soon as practical, but not more than thirty days following the filing of the motion. If the presiding officer will not decide the motion within this time, the presiding officer shall notify the parties in writing of the date by which the motion will be decided.

(12) If a party serves a motion or responsive memorandum by mail, pursuant to WAC 246-10-109, then three days shall be added to the time within which the opposing party must file and serve the responsive or reply memorandum.

(13) All computations of time shall be calculated pursuant to WAC 246-10-105.

(14) Departmental motions for summary actions are exempted from all requirements of this rule.

[Statutory Authority: RCW 18.130.050 and 43.70.040. 96-21-027, 246-10-403, filed 10/7/96, effective 11/7/96. Statutory Authority: RCW 43.70.040. 94-04-079, 246-10-403, filed 1/31/94, effective 3/3/94; 93-13-005 (Order 369), 246-10-403, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending Order 369, filed 6/3/93, effective 7/4/93)

WAC 246-10-605 Issuance of final order. If the adjudicative proceeding is conducted by a presiding officer authorized to make the final decision, the presiding officer shall:

(1) Issue a final order containing findings of fact and conclusions of law and an order; and

(2) The adjudicative clerk office shall serve a copy of the order on each party and any designated representative of the party.

[Statutory Authority: RCW 43.70.040. 93-13-005 (Order 369), 246-10-605, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending Order 369, filed 6/3/93, effective 7/4/93)

WAC 246-10-608 Initial order. If the adjudicative proceeding is conducted by a presiding officer who is not authorized to make the final decision, the presiding officer shall:

(1) Issue an initial order containing proposed findings of fact, conclusions of law, and a proposed order;

(2) Cause the adjudicative clerk office to serve a copy of the initial order on each party and any designated representative of a party; and

(3) Forward the initial order and record of the adjudicative proceeding to the adjudicative clerk office ((~~of professional standards~~)).

[Statutory Authority: RCW 43.70.040. 93-13-005 (Order 369), 246-10-608, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending WSR 94-04-079, filed 1/31/94, effective 3/3/94)

WAC 246-10-701 Appeal from initial order. (1) Any party may file a written petition for administrative review of an initial order issued under WAC 246-10-503 or 246-10-608 stating the specific grounds upon which exception is taken and the relief requested.

(2) Petitions for administrative review must be served upon the opposing party and filed with the adjudicative clerk office ((~~of professional standards~~)) within twenty-one days of service of the initial order.

(3) The opposing party may file a response to a petition for administrative review filed as provided in this section. The response shall be filed at the adjudicative clerk office ((~~of professional standards~~)). The party filing the response shall serve a copy of the response upon the party requesting administrative review. If the initial order was entered pursuant to WAC 246-10-503, the response shall be filed within ten days of service of the petition. In all other matters, the response shall be filed within twenty days of service of the petition.

[Statutory Authority: RCW 43.70.040. 94-04-079, 246-10-701, filed 1/31/94, effective 3/3/94; 93-13-005 (Order 369), 246-10-701, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending WSR 94-04-079, filed 1/31/94, effective 3/3/94)

WAC 246-10-704 Reconsideration of final orders. (1) Within ten days of service of a final order, either party may file a petition for reconsideration, stating the specific grounds upon which reconsideration is requested and the relief requested.

(2) Grounds for reconsideration shall be limited to:

(a) Specific errors of fact or law; or

(b) Implementation of the final order would require department activities inconsistent with current department practice; or

(3) Petitions for reconsideration must be served upon the opposing party and filed with the adjudicative clerk office ((~~of professional standards~~)) within ten days of service of the final order.

(4) If reconsideration is requested based on an error of fact, the request for reconsideration shall contain specific reference to the record. If reconsideration is requested based on testimony of record, the request for reconsideration shall contain specific reference to the testimony. The presiding officer may require that the party requesting reconsideration submit a copy of the transcript of the adjudicative proceeding and provide specific reference to the transcript.

(5) The petition for reconsideration is denied if, within twenty days of the date the petition is filed, the presiding officer:

(a) Denies the petition;

(b) Does not act upon the petition; or

(6) If the presiding officer determines to act upon the petition, the opposing party shall be provided at least ten days in which to file a response to the petition.

(7) Disposition of petitions for reconsideration shall be in the form of a written order denying the petition, granting the petition, and dissolving or modifying the final order, or granting the petition and setting the matter for further proceedings.

[Statutory Authority: RCW 43.70.040. 94-04-079, 246-10-704, filed 1/31/94, effective 3/3/94; 93-13-005 (Order 369), 246-10-704, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending WSR 94-04-079, filed 1/31/94, effective 3/3/94)

WAC 246-10-707 Vacating an order for reason of default or withdrawal. (1) A party may petition to vacate a default order entered against that party for failing to attend an adjudicative proceeding requested by that party by:

(a) Specifying the grounds relied upon in the petition; and

(b) Filing the petition at the adjudicative clerk office ((~~of professional standards~~)) within seven days of service of the default order.

(2) The presiding officer shall consider the petition and shall:

(a) Grant the motion to vacate and reinstate the application for adjudicative proceeding, and may impose conditions on licensure pending final adjudication; or

(b) Deny the motion to vacate the default order.

[Statutory Authority: RCW 43.70.040. 94-04-079, 246-10-707, filed 1/31/94, effective 3/3/94; 93-13-005 (Order 369), 246-10-707, filed 6/3/93, effective 7/4/93.]

AMENDATORY SECTION (Amending WSR 94-04-078, filed 1/31/94, effective 3/3/94)

WAC 246-11-010 Definitions. As used in these rules of practice and procedure, the following terms shall have the meaning set forth in this section unless the context clearly indicates otherwise. Other terms shall have their ordinary meaning unless defined elsewhere in this chapter.

"Adjudicative clerk office" shall mean the unit with responsibility for: Docketing; service of orders; and maintaining custody of the adjudicative proceeding record, whose address is:

Department of Health

Adjudicative Clerk Office

2413 Pacific Avenue

PO Box 47879

Olympia, WA 98504-7879

"Adjudicative proceeding" or "hearing" shall mean a proceeding required by statute or constitutional right and conducted under the rules of this chapter, which provides an opportunity to be heard by the board prior to the entry of a final order under this chapter.

"Board" shall mean a disciplining authority under RCW 18.130.040 (2)(b) and (3).

"Brief adjudicative proceeding" shall mean an adjudicative proceeding or hearing, the scope or conduct of which is limited as provided in this chapter.

"Department" shall mean the Washington state department of health and, where appropriate, the secretary of the Washington state department of health or the secretary's designee.

"Docket" or "docketing" shall mean the list or calendar of causes set to be heard at a specified time, prepared by the adjudicative clerk office for the use of the department.

"Filing" shall mean receipt by the adjudicative clerk office ((~~of the board~~)).

"Initiating document" shall mean a written agency document which initiates action against a license holder or applicant for license and which creates the right to an adjudicative proceeding. It may be entitled a statement of charges, notice of intent to deny, or by any other designation indicating the action or proposed action to be taken.

"License" shall have the meaning set forth in RCW 34.05.010 and includes license to practice the profession for which the board is the disciplining authority and any approval of school or curriculum required by law or rule to be obtained from the board.

((~~"Office of professional standards" shall mean the unit whose address is:~~

~~Department of Health~~

~~Office of Professional Standards~~

~~2413 Pacific Avenue~~

~~PO Box 47872~~

~~Olympia, WA 98504-7872~~))

"Presiding officer" shall mean the person who is assigned to conduct an adjudicative proceeding and who may either be a member of the board, an individual appointed pursuant to RCW 18.130.095(3), or an administrative law judge employed by the office of administrative hearings.

"Presiding officer for brief adjudicative proceedings" shall mean an employee of the department authorized by the board to conduct brief adjudicative proceedings.

"Program" shall mean the administrative unit within the department responsible for implementation of that chapter of Title 18 RCW establishing the board or its powers and responsibilities.

"Protective order" shall mean an order issued under this chapter which limits the use of, access to, or disclosure of information or evidence.

"Respondent" shall mean a license holder or applicant for license under the jurisdiction of the board who is named in an initiating document.

"Secretary" shall mean the secretary of the department of health or his/her designee.

[Statutory Authority: RCW 18.130.050(1) and 18.130.060(3). 94-04-078, 246-11-010, filed 1/31/94, effective 3/3/94. Statutory Authority: RCW 18.130.050(1) and 34.05.220. 93-08-003 (Order 347), 246-11-010, filed 3/24/93, effective 4/24/93.]

AMENDATORY SECTION (Amending Order 347, filed 3/24/93, effective 4/24/93)

WAC 246-11-070 Representation. (1) License holders, applicants for license, and recipients of benefits may be represented subject to the following conditions:

(a) A license holder or applicant for license may represent himself/herself or may be represented by an attorney who has complied with the admission to practice rules of the supreme court of the state of Washington;

(b) Every attorney representing a license holder or applicant for license shall file a notice of appearance with the ((~~board~~)) adjudicative clerk office upon commencing representation, and shall file a notice of withdrawal of counsel with the ((~~board~~)) adjudicative clerk office upon terminating representation.

[Statutory Authority: RCW 18.130.050(1). 93-08-003 (Order 347), 246-11-070, filed 3/24/93, effective 4/24/93.]

AMENDATORY SECTION (Amending WSR 94-04-078, filed 1/31/94, effective 3/3/94)

WAC 246-11-080 Service and filing. (1) A party filing a pleading, brief, or paper other than an initiating document or application for an adjudicative proceeding as required or permitted by these rules, shall serve a copy of the paper upon the opposing party or any designated representative of the opposing party prior to or simultaneous with filing.

(2) Unless otherwise provided by law, filing and service shall be made by personal service; first class, registered, or certified mail.

(3) Filing shall be complete upon actual receipt during normal business hours at the ((~~board's~~)) adjudicative clerk office, unless filing is directed in writing to be made to another address.

(4) Service shall be complete when personal service is made; mail is properly stamped, addressed, and deposited in the United States mail.

(5) Proof of service shall consist of filing as required by these rules, together with one of the following:

(a) An acknowledgement of service;

(b) A certificate of service including the date the papers were served, the parties upon whom served, the signature of the serving party, and a statement that service was completed by:

(i) Personal service; or

(ii) Mailing in the United States mail a copy properly addressed with postage and fees prepaid to each party and each designated representative.

[Statutory Authority: RCW 18.130.050(1) and 18.130.060(3). 94-04-078, 246-11-080, filed 1/31/94, effective 3/3/94. Statutory Authority: RCW 18.130.050(1). 93-08-003 (Order 347), 246-11-080, filed 3/24/93, effective 4/24/93.]

AMENDATORY SECTION (Amending Order 347, filed 3/24/93, effective 4/24/93)

WAC 246-11-200 Notice to limited-English-speaking parties. When the program or the adjudicative clerk office ((~~of professional standards~~)) is notified or otherwise made aware that a limited-English-speaking person is a party in an adjudicative proceeding, all notices concerning the hearing, including notices of hearing, continuance, and dismissal, shall either be in the primary language of the party or shall include a notice in the primary language of the party which describes the significance of the notice and how the party may receive assistance in understanding and, if necessary, responding to the notice.

[Statutory Authority: RCW 18.130.050(1) and 34.05.220. 93-08-003 (Order 347), 246-11-200, filed 3/24/93, effective 4/24/93.]

AMENDATORY SECTION (Amending Order 347, filed 3/24/93, effective 4/24/93)

WAC 246-11-210 Interpreters. (1) A "hearing impaired person" means a person who, because of a hearing impairment or speech defect cannot readily understand or communicate in spoken language. A "hearing impaired person" includes a person who is deaf, deaf and blind, or hard of hearing.

(2) A "limited-English-speaking person" means a person who because of a non-English speaking cultural background cannot readily speak or understand the English language.

(4) Before beginning to interpret, an interpreter shall take an oath or make affirmation that:

(a) A true interpretation shall be made to the impaired person of all the proceedings in a language or in a manner the impaired person understands; and

(b) The interpreter shall repeat the statements of the impaired person to the presiding officer, in the English language, to the best of the interpreter's skill and judgment.

(5) When an interpreter is used in a proceeding:

(a) The interpreter shall translate all statements made by other participants in the proceeding;

(b) The presiding officer shall ensure sufficient extra time is provided to permit translation; and

(7) All proceedings shall be conducted consistent with chapters 2.42 and 2.43 RCW.

[Statutory Authority: RCW 18.130.050(1) and 34.05.220. 93-08-003 (Order 347), 246-11-210, filed 3/24/93, effective 4/24/93.]

AMENDATORY SECTION (Amending WSR 94-04-078, filed 1/31/94, effective 3/3/94)

WAC 246-11-270 Request for adjudicative proceeding. A respondent may respond to an initiating document by filing an application for an adjudicative proceeding or by waiving the opportunity for adjudicative proceeding.

(1) If the respondent wishes to file an application for an adjudicative proceeding:

(a) An application for adjudicative proceeding must be filed in accordance with the following time periods:

(i) For matters under chapter 18.130 RCW, the Uniform Disciplinary Act, within twenty days of service of the initiating documents unless and extension has been granted as provided in subsection (3) of this section; and

(ii) For all other matters, within twenty days of service of the initiating documents, unless otherwise provided by statute.

(b) The application for adjudicative proceeding shall be made on the Request for Adjudicative Proceeding form accompanying the initiating documents or by a written document including substantially the same information.

(d) The application for adjudicative proceeding shall contain a response to the initiating documents, indicating whether each charge is admitted, denied or not contested, and responses shall be subject to the following conditions:

(i) Once admitted or not contested, an allegation may not be denied; and

(ii) An allegation denied or not contested may later be admitted.

(e) When an allegation is admitted or not contested, it shall be conclusively deemed to be true for all further proceedings. No proof of the allegation need be submitted.

(f) The application for adjudicative proceeding shall specify the representative, if any, designated pursuant to WAC 246-11-070 and any request for interpreter. The responding party shall amend the name of the representative and need for interpreter immediately if circumstances change prior to the hearing.

(g) The application for adjudicative proceeding shall be filed at the ((~~board's~~)) adjudicative clerk office.

(2) A respondent may waive an adjudicative proceeding and submit a written statement and other documents in defense or in mitigation of the charges. Such waiver and documents shall be filed:

(a) In accordance with the timelines in subsection (1)(a) of this section; and

(b) At the address indicated in subsection (1)(g) of this section.

(a) The request for extension shall be filed within the twenty-day limit and shall include:

(i) The reason for the request and the number of days for which the extension is requested; and

(ii) Documentation of the circumstances creating the hardship.

(b) The request shall be granted for a period not to exceed sixty days upon showing of:

(i) Illness of the respondent; or

(ii) Absence of the respondent from the county of residence or employment; or

(iii) Emergency in the respondent's family; or

(iv) Other good cause as determined by the presiding officer.

[Statutory Authority: RCW 18.130.050(1) and 18.130.060(3). 94-04-078, 246-11-270, filed 1/31/94, effective 3/3/94. Statutory Authority: RCW 18.130.050(1) and 34.05.220. 93-08-003 (Order 347), 246-11-270, filed 3/24/93, effective 4/24/93.]

AMENDATORY SECTION (Amending WSR 94-04-078, filed 1/31/94, effective 3/3/94)

WAC 246-11-290 Scheduling orders. (1) Within thirty days after receipt of the application for adjudicative proceeding, the board or designee thereof, shall:

(a) Approve the application for full adjudicative procedure and issue and serve on the parties a scheduling order or other scheduling mechanism establishing timelines for discovery, settlement, and scheduled hearings; or

(b) Approve the application for a brief adjudicative procedure and issue and serve a notice of the date by which any additional written materials are to be submitted for consideration; or

(2) If a scheduling order is issued:

(a) The scheduling order shall specify:

(i) The date, time, and place of a settlement conference, a prehearing conference, and the hearing;

(ii) The deadlines for completion of discovery and submission of prehearing motions; and

(iii) The name, address, and telephone number of the assistant attorney general or other department representative who will represent the state in the matter.

(b) The scheduling order may be modified by order of the presiding officer upon his/her own initiative or upon motion of a party. Any request for change of the scheduling mechanism or order shall be made by motion as provided in WAC 246-11-380.

(c) The presiding officer may waive establishing dates for the settlement conference, completion of discovery, submission of prehearing motions, and the prehearing conference, if, in the discretion of the presiding officer, those proceedings are not necessary or appropriate in a particular matter or type of case. However, either party may request by motion to the presiding officer that any or all of the dates be set.

(d) Dates contained in the scheduling order may be changed by the adjudicative clerk office ((~~of the board~~)) upon written request of either party made within fifteen days of issuance of the first scheduling order. All other changes must be made by motion pursuant to WAC 246-11-380.

[Statutory Authority: RCW 18.130.050(1) and 18.130.060(3). 94-04-078, 246-11-290, filed 1/31/94, effective 3/3/94. Statutory Authority: RCW 18.130.050(1) and 34.05.419. 93-08-003 (Order 347), 246-11-290, filed 3/24/93, effective 4/24/93.]

AMENDATORY SECTION (Amending WSR 96-21-027, filed 10/7/96, effective 11/7/96)

WAC 246-11-380 Motions. (1) The presiding officer shall rule on motions. The presiding officer may rule on motions without oral argument or may request or permit the parties to argue the motion in person or by telephone. Oral argument may be limited in time at the discretion of the presiding officer.

(2) All prehearing motions, including discovery and evidentiary motions, shall be made in writing and filed prior to the dates set in the scheduling order. Filing shall be at the ((~~board's~~)) adjudicative clerk office, unless filing is directed in writing to be made at another address.

(4) The presiding officer may grant a continuance when a motion for continuance is not submitted within the time limits contained in subsection (3) of this section for good cause.

(5) The following is the recommended format for motions:

(a) A succinct statement of the facts contended to be material;

(b) A concise statement of the issue, issues or law upon which the presiding officer is requested to rule;

(e) The legal authority upon which the motion is based; and

(f) A proposed order may accompany the motion, and should contain findings of fact and conclusions of law.

(6) The moving party shall file the motion, and the accompanying affidavits and photographic or documentary evidence when necessary, with the board's office and with the presiding officer, and shall serve the motion, and the accompanying affidavits and photographic or documentary evidence when necessary, on all other parties.

(7) The opposing party shall file with the ((~~board's~~)) adjudicative clerk office ((~~and with the presiding officer~~)), and serve upon the moving party, a responsive memorandum, and accompanying affidavits and photographic or documentary evidence when necessary, no later than eleven days following service of the motion, unless otherwise ordered by the presiding officer.

(8) The moving party may file with the ((~~board's~~)) adjudicative clerk office ((~~and with the presiding officer~~)), and serve upon the opposing party, a reply memorandum no later than five days following service of the responsive memorandum, unless otherwise ordered by the presiding officer.

(a) Suggest a date and time when the moving party seeks to have the presiding officer hear the motion to shorten time, which should be at least forty-eight hours after filing;

(b) Suggest a date and time when the moving party seeks to have the presiding officer consider the merits of the underlying motion;

(c) Describe the exigent or exceptional circumstances justifying shortening of time in an affidavit or a memorandum accompanying the motion;

(12) If a party serves a motion or responsive memorandum by mail, pursuant to WAC 246-11-080, then three days shall be added to the time within which the opposing party must file and serve the responsive or reply memorandum. Service by electronic telefacsimile transmission (FAX) upon each party is permitted upon agreement of the parties, with proof of confirmation of service to be filed with the presiding officer.

(13) All computations of time shall be calculated pursuant to WAC 246-11-040.

(14) Departmental motions for summary actions are exempted from all requirements of this section.

[Statutory Authority: RCW 18.130.050 and 43.70.040. 96-21-027, 246-11-380, filed 10/7/96, effective 11/7/96. Statutory Authority: RCW 18.130.050(1) and 18.130.060(3). 94-04-078, 246-11-380, filed 1/31/94, effective 3/3/94. Statutory Authority: RCW 18.130.050(1). 93-08-003 (Order 347), 246-11-380, filed 3/24/93, effective 4/24/93.]

AMENDATORY SECTION (Amending WSR 94-04-078, filed 1/31/94, effective 3/3/94)

WAC 246-11-510 Issuance of final order. If the adjudicative proceeding is heard by the board or a panel of the board the presiding officer and board or panel of the board shall:

(1) Issue a final order containing findings of fact and conclusions of law and an order; and

(2) Cause the adjudicative clerk office to serve a copy of the order on each party and any designated representative of the party.

[Statutory Authority: RCW 18.130.050(1) and 18.130.060(3). 94-04-078, 246-11-510, filed 1/31/94, effective 3/3/94. Statutory Authority: RCW 18.130.050(1). 93-08-003 (Order 347), 246-11-510, filed 3/24/93, effective 4/24/93.]

AMENDATORY SECTION (Amending WSR 94-04-078, filed 1/31/94, effective 3/3/94)

WAC 246-11-540 Initial order. (1) If the adjudicative proceeding is not heard by the board or panel of the board the presiding officer shall:

(a) Issue an initial order containing proposed findings of fact, conclusions of law, and a proposed order;

(b) Cause the adjudicative clerk office to serve a copy of the initial order on each party and any designated representative of a party; and

(c) Forward the initial order and record of the adjudicative proceeding to the adjudicative clerk office ((~~of the board~~)).

(2) Initial orders on brief adjudicative proceedings shall become final orders as provided in WAC 246-11-540.

(3) Following receipt of initial orders in matters other than brief adjudicative proceedings, the board shall review the initial order and the record as provided in RCW 34.05.464, and issue a final order as provided in WAC 246-11-560.

[Statutory Authority: RCW 18.130.050(1) and 18.130.060(3). 94-04-078, 246-11-540, filed 1/31/94, effective 3/3/94. Statutory Authority: RCW 18.130.050(1). 93-08-003 (Order 347), 246-11-540, filed 3/24/93, effective 4/24/93.]

AMENDATORY SECTION (Amending WSR 96-21-027, filed 10/7/96, effective 11/7/96)

WAC 246-11-550 Appeal from initial order. (1) Any party may file a written petition for administrative review of an initial order issued under WAC 246-11-430 or WAC 246-11-540 stating the specific grounds upon which exception is taken and the relief requested.

(2) Petitions for administrative review must be served upon the opposing party and filed with the adjudicative clerk office ((~~of the board~~)) within twenty-one days of service of the initial order.

(3) The opposing party may file a response to a petition for administrative review as provided in this section. The response shall be filed at the place specified in subsection (2) of this section. The party filing the response shall serve a copy of the response upon the party requesting administrative review. If the initial order was entered pursuant to WAC 246-11-430, the response will be filed within ten days of service of the petition. In all other matters, the response will be filed within twenty days of service of the petition.

[Statutory Authority: RCW 18.130.050 and 43.70.040. 96-21-027, 246-11-550, filed 10/7/96, effective 11/7/96. Statutory Authority: RCW 18.130.050(1) and 34.05.464. 93-08-003 (Order 347), 246-11-550, filed 3/24/93, effective 4/24/93.]

AMENDATORY SECTION (Amending WSR 94-04-078, filed 1/31/94, effective 3/3/94)

WAC 246-11-580 Reconsideration of final orders. (1) Within ten days of service of a final order, either party may file a petition for reconsideration, stating the specific grounds upon which reconsideration is requested and the relief requested.

(2) Grounds for reconsideration shall be limited to:

(a) Specific errors of fact or law; or

(b) Implementation of the final order would require department activities inconsistent with current department practice; or

(c) Specific circumstances render the person requesting the reconsideration unable to comply with the terms of the order.

(3) Petitions for reconsideration must be served upon the opposing party and filed with the adjudicative clerk office ((~~of the board~~)) within ten days of service of the final order.

(5) The petition for reconsideration is denied if, within twenty days of the date the petition is filed, the presiding officer:

(a) Denies the petition;

(b) Does not act upon the petition; or

(6) If the presiding officer determines to act upon the petition, the opposing party shall be provided at least ten days in which to file a response to the petition.

(7) Disposition of petitions for reconsideration shall be in the form of a written order denying the petition, granting the petition and dissolving or modifying the final order, or granting the petition and setting the matter for further proceedings.

[Statutory Authority: RCW 18.130.050(1) and 18.130.060(3). 94-04-078, 246-11-580, filed 1/31/94, effective 3/3/94. Statutory Authority: RCW 18.130.050(1) and 34.05.470. 93-08-003 (Order 347), 246-11-580, filed 3/24/93, effective 4/24/93.]

AMENDATORY SECTION (Amending WSR 94-04-078, filed 1/31/94, effective 3/3/94)

WAC 246-11-610 Vacating an order for reason of default or withdrawal. (1) A party may petition to vacate a default order entered against that party for failing to attend an adjudicative proceeding requested by that party by:

(a) Specifying the grounds relied upon in the petition; and

(b) Filing the petition at the adjudicative clerk office ((~~of professional standards~~)) within seven days of service of the default order.

(2) The presiding officer shall consider the petition and shall:

(a) Grant the motion to vacate and reinstate the application for adjudicative proceeding, and may impose conditions on licensure pending final adjudication; or

(b) Deny the motion to vacate the default order.

[Statutory Authority: RCW 18.130.050(1) and 18.130.060(3). 94-04-078, 246-11-610, filed 1/31/94, effective 3/3/94. Statutory Authority: RCW 18.130.050(1) and 34.05.220. 93-08-003 (Order 347), 246-11-610, filed 3/24/93, effective 4/24/93.]

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