WSR 08-08-089

PROPOSED RULES

DEPARTMENT OF HEALTH


[ Filed April 1, 2008, 3:36 p.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: Amending WAC 246-10-606 Administrative procedure -- Adjudicative proceedings -- Standard of proof and 246-11-520 Model procedural rules for boards -- Standard of proof.

Hearing Location(s): Department of Health, Point Plaza East Room 152, 310 Israel Road S.E., Tumwater, WA 98501, on May 27, 2008, at 10:00 a.m.

Date of Intended Adoption: June 25, 2008.

Submit Written Comments to: Margaret Gilbert, Department of Health, P.O. Box 47873, Olympia, WA 98504-7873, web site http://www3.doh.wa.gov/policyreview/, fax (360) 236-4913, by May 16, 2008.

Assistance for Persons with Disabilities: Contact Margaret Gilbert by May 16, 2008, TTY (800) 833-6388 or 711.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules would amend the procedural rules for adjudicative proceedings conducted by the department of health and its affiliated health profession boards and commissions. The rules would be amended to reconcile the rules with case law.

Reasons Supporting Proposal: The Washington supreme court established the standard of proof for health profession disciplinary hearings in Nguyen v. DOH, 144 Wn.2d 516 (2001) and Ongom v. DOH, 159 Wn.2d 132 (2006). The standard of proof for other adjudicative proceedings conducted by the department was not addressed in those cases. The proposed amendments would reconcile the rules with the law.

Statutory Authority for Adoption: RCW 18.130.050 and 34.05.220.

Statute Being Implemented: RCW 34.05.220.

Rule is necessary because of state court decision, Nguyen v. DOH, 144 Wn.2d 516 (2001) and Ongom v. DOH, 159 Wn.2d 132 (2006).

Name of Proponent: Department of health, governmental.

Name of Agency Personnel Responsible for Drafting: Margaret Gilbert, P.O. Box 47873, Olympia, WA 98504-7873, (360) 236-4913; Implementation: Karl Hoehn, P.O. Box 47873, Olympia, WA 98504-7873, (360) 236-4717; and Enforcement: Laura Farris, P.O. Box 47879, Olympia, WA 98504-7879, (360) 236-4677.

No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement (SBEIS) was not prepared. Under RCW 19.85.025 and 34.05.310 (4)(b), an SBEIS is not required for proposed rules that relate only to internal governmental operations and that are not subject to violation by a nongovernmental party.

A cost-benefit analysis is not required under RCW 34.05.328. The agency did not complete a cost-benefit analysis under RCW 34.05.328. RCW 34.05.328 (5)(b)(ii) exempts rules that relate only to internal governmental operations that are not subject to violation by a nongovernmental party.

April 1, 2008

Mary C. Selecky

Secretary

OTS-9784.1


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

WAC 246-10-606   Standard of proof.   (1) The order shall be based on the kind of evidence upon which reasonably prudent persons are accustomed to rely in the conduct of their affairs.

(2) In all cases involving an application for license the burden shall be on the applicant to establish that the application meets all applicable criteria. In all other cases the burden is on the department to prove the alleged factual basis set forth in the initiating document.

(3) Except as otherwise ((provided)) required by ((statute)) law, the burden in all cases is a preponderance of the evidence.

[Statutory Authority: RCW 43.70.040. 93-13-005 (Order 369), 246-10-606, filed 6/3/93, effective 7/4/93.]

OTS-9785.1


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

WAC 246-11-520   Standard of proof.   (1) The order shall be based on the kind of evidence upon which reasonably prudent persons are accustomed to rely in the conduct of their affairs.

(2) In all cases involving an application for license the burden shall be on the applicant to establish that the application meets all applicable criteria. In all other cases the burden is on the department to prove the alleged factual basis set forth in the initiating document.

(3) Except as otherwise ((provided)) required by ((statute)) law, the burden in all cases is a preponderance of the evidence.

[Statutory Authority: RCW 18.130.050(1). 93-08-003 (Order 347), 246-11-520, filed 3/24/93, effective 4/24/93.]

Washington State Code Reviser's Office