WSR 06-11-150



(Management Services Administration)

[ Filed May 23, 2006, 4:25 p.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-06-081.

     Title of Rule and Other Identifying Information: Amending WAC 388-02-0215 What is the authority of the ALJ (administrative law judge)?

     Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane, behind Goodyear Tire. A map or directions are available at or by calling (360) 664-6097), on June 27, 2006, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than June 28, 2006.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA, e-mail, fax (360) 664-6185, by 5:00 p.m., on June 27, 2006.

     Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by June 23, 2006, TTY (360) 664-6178 or (360) 664-6097.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: WAC 388-02-0215(4) states the types of cases where the parties may request review of an initial order by a review judge at the DSHS board of appeals (BOA). In general, the proposed rule simplifies the current rule by referencing entire WAC chapters instead of referring to individual WAC sections, and by updating obsolete or changed cross references to WAC chapters. Specific amendments to subsection (4) of WAC 388-02-0215 include:

In subsection (4)(e), permitting review of cases under chapters 388-71 and 388-101 WAC regarding findings of abuse, abandonment, neglect or financial exploitation rather than specific sections of chapter 388-71 WAC. The reference to chapter 388-101 WAC in this subsection is needed because the DSHS aging and disability services administration is amending that chapter to include references to investigations and findings by the DSHS residential care services of abuse, abandonment, neglect and financial exploitation;
In subsection (4)(j), replacing obsolete cross references to sections of chapters 388-71 and 388-72A WAC that have been recodified in chapter 388-106 WAC. As does the current rule, this amendment does not authorize the BOA to review hearing decisions regarding the client's financial eligibility for long-term care services; and
In subsection (4)(v), replacing an obsolete reference to chapter 388-820 WAC with the current reference to chapter 388-101 WAC. All sections of previous chapter 388-820 WAC have been recodified as sections in chapter 388-101 WAC.
     Department clients and providers will not lose hearing or appeal rights as a result of the proposed amendment.

     The department plans to make further amendments to this rule under the preproposal statement of inquiry filed as WSR 05-06-081.

     Reasons Supporting Proposal: The proposed rule is updated with current WAC references, is clearer, improves efficiency, and increases consistency. Proposed amendments are intended to reduce the need for future amendments to this rule by simplifying WAC references in the list of cases where the parties may request BOA review of an initial order of an office of administrative hearings administrative law judge.

     Statutory Authority for Adoption: RCW 34.05.020, 34.05.220.

     Statute Being Implemented: Chapter 34.05 RCW, Parts IV and V.

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

     Name of Proponent: Department of social and health services, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Brian Lindgren, Administrator, DSHS Board of Appeals, P.O. Box 45803, Olympia, WA 98504, (360) 664-6093 or e-mail

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule change does not impose more than minor costs for business impacted by the rule. Also, the proposed rule amends "a procedure, practice or requirement relating to agency hearings," and under RCW 19.85.025 and 34.05.310 (4)(g)(i), a small business economic impact statement is not required.

     A cost-benefit analysis is not required under RCW 34.05.328. The proposed rule describes and updates DSHS administrative hearing procedures, practices and requirements, and is a procedural rule as defined in RCW 34.05.328 (5)(c). The rule also clarifies the language of the rule without changing its effect, and is exempt from the requirement to prepare a cost-benefit analysis under RCW 34.05.328 (5)(b)(iv). By updating the cross references, the proposed amended rule will be clearer and will have the same effect as the current rule.

May 23, 2006

Andy Fernando, Manager

Rules and Policies Assistance Unit

AMENDATORY SECTION(Amending WSR 05-02-018, filed 12/27/04, effective 1/27/05)

WAC 388-02-0215   What is the authority of the ALJ?   (1) The ALJ must hear and decide the issues de novo (anew) based on what is presented during the hearing.

     (2) As needed, 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) 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) ((Adult protective services)) DSHS findings of abandonment, abuse, financial exploitation or neglect under chapters 74.34, 74.39, 74.39A RCW and chapters 388-71 and 388-101 WAC ((388-71-01235 through 388-71-01275));

     (f) Where the client has requested a hearing under WAC 388-71-0560, the termination of a provider for placing clients in imminent jeopardy under RCW 74.39A.095(7) and WAC 388-71-0551;

     (g) Where the client has requested a hearing under WAC 388-71-0560, the termination of a 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) Where the client has requested a hearing under WAC 388-71-0560, the denial of a contract to a provider due to inability of the provider to appropriately meet the care needs of clients under RCW 74.39A.095(8) and WAC 388-71-0546;

     (i) Where the client has requested a hearing under WAC 388-71-0560, the denial or termination of a contract and subsequent denial of payment 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(5) and WAC 388-71-0540 (3) through (5);

     (j) Social service eligibility under ((WAC 388-71-0400 through 388-71-0480, 388-71-0202, and 388-71-0203)) chapter 388-71 WAC, and under chapter ((388-72A)) 388-106 WAC, except for ((WAC 388-72A-0055(2), 388-72A-0060(1), and 388-72A-0065 (4) through (6))) financial eligibility requirements;

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

     (l) Licensing or certification of homes, programs, facilities, providers, and agencies serving children, juveniles, expectant mothers and developmentally disabled persons under chapter 74.15 RCW and chapters 388-140, 388-145, 388-147, 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, 388-155, 388-295 and 388-296 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)) under chapter 388-101 WAC;

     (w) Denial or termination of eligibility for services under WAC 388-825-030 and 388-825-035, for which a hearing has been held under WAC 388-825-120 (1)(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 (1)(b);

     (y) Authorization, denial, reduction, or termination of services under WAC 388-825-055, for which a hearing has been held under WAC 388-825-120 (1)(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); or

     (dd) Background checks under WAC 388-06-0110 that result in denial of authorization for unsupervised access to children or to individuals with developmental disabilities, for which a hearing has been held under WAC 388-06-0240(1); or

     (ee) Cases for which a right to a hearing existed, if the request for a hearing was received by OAH or DSHS on or before November 14, 2002, and WAC 388-740-0060 and 388-891-0275 did not apply.

     (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 and chapter 34.05 RCW, Parts IV and V. 05-02-018, § 388-02-0215, filed 12/27/04, effective 1/27/05; 03-13-046, § 388-02-0215, filed 6/11/03, effective 7/12/03. Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371, § 211. 02-21-061, § 388-02-0215, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0215, filed 9/1/00, effective 10/2/00.]

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