WSR 12-13-083




[ Filed June 19, 2012, 11:49 a.m. , effective July 20, 2012 ]

Effective Date of Rule: Thirty-one days after filing.

Purpose: WAC 388-02-0580 does not specifically address whether a party disagreeing with an initial order can submit a petition for review to the board of appeals (BOA) by fax, alone. WAC 388-02-0075 (1)(c) and 388-02-0040(4), does allow filing or sending of documents to BOA by fax if a copy of the document is also mailed the same day. "Filing" is defined in WAC 388-02-0070 as the act of delivering documents to BOA or the office of administrative hearings (OAH). It has been the practice of BOA to accept for review timely faxed transmissions of petitions for review whether or not a "hard copy" of the petition is eventually mailed to BOA. This practice is not in compliance with the regulations when reading and applying WAC 388-02-0580, 388-02-0075, and 388-02-0040 together. The proposed amendment (addition) to WAC 388-02-0580 would clarify and implement BOA's current practice of accepting for review timely faxed petitions for review while still encouraging follow-up with a mailed copy. The term "should" is defined in WAC 388-02-0010 as meaning that an action is recommended but not required. Using the term "should" in the proposed changes would allow accepting faxed petitions for review and would not require a "hard copy" to be mailed in order for BOA to assume jurisdiction to review the case. Without the rule change, there exists a serious question as to whether BOA has jurisdiction to review a timely faxed petition for review that has not also been mailed the same day as the facsimile transmission. The proposed rule change addresses an access to justice issue for all parties (department and clients) involved in the administrative hearing process.

Citation of Existing Rules Affected by this Order: Amending WAC 388-02-0580.

Statutory Authority for Adoption: RCW 34.05.020.

Adopted under notice filed as WSR 12-10-029 on April 24, 2012.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.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 1, Repealed 0.

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 1, Repealed 0.

Date Adopted: June 7, 2012.

Katherine I. Vasquez

Rules Coordinator

AMENDATORY SECTION(Amending WSR 11-04-074, filed 1/31/11, effective 3/3/11)

WAC 388-02-0580   What is the deadline for requesting review by a review judge?   (1) BOA must receive the written review request on or before 5:00 p.m. on the twenty-first calendar day after the initial order was mailed. A party may submit the review request by facsimile transmission (fax). A copy of the review request should also be mailed to the BOA.

(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 cause for missing the deadline.

(4) If you ask a review judge to review an ALJ decision, the time period provided by this section for requesting review of an initial order, including any extensions, does not count against any deadline, if any, for a review judge to enter the final order.

[Statutory Authority: RCW 34.05.020, 34.05.220. 11-04-074, 388-02-0580, filed 1/31/11, effective 3/3/11. Statutory Authority: RCW 34.05.020, 34.05.220, 42 C.F.R. 431.10 (e)(3), 45 C.F.R. 205.100 (b)(3), chapter 34.05 RCW, Parts IV and V. 08-21-144, 388-02-0580, filed 10/21/08, effective 11/21/08. Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 211. 02-21-061, 388-02-0580, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, 388-02-0580, filed 9/1/00, effective 10/2/00.]

Washington State Code Reviser's Office