WSR 16-18-096
[Filed September 7, 2016, 11:42 a.m.]
Subject of Possible Rule Making: Representation at the office of administrative hearings (OAH), administrative hearings in a new rule in chapter 10-08 WAC, relating to the assessment process and accommodation response for litigants with cognitive disabilities at administrative hearings.
Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 34.12.080.
Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: This rule making is initiated in response to the petition filed by CB (a resident of Washington) and the Fred T. Korematsu Center for Law & Equality, Seattle University Law School. The petition requested that a new rule be adopted to provide an assessment for representational accommodation for appellants in administrative hearings. The Access to Justice Board and Disability Rights Washington have submitted letters of support urging rule making on this topic.
Main objectives:
Establish within OAH a process for OAH administrative law judges (ALJ) to refer a party with cognitive disabilities to the OAH ADA coordinator to review, conduct an assessment and handle the issue (assessment determines extent of mental impairment and appropriate response).
Establish a network of "ombuds" persons to assist those pro se parties with accessing OAH's administrative appeals processes (comparable to nondisabled pro se appellants) and to ensure that they are not denied equal and meaningful access to the hearing process.
Establish a training program for (1) OAH ALJs and support staff and (2) ombuds persons who are trained to assist pro se parties determined to need assistance with the OAH hearing process.
Rule proposal elements:
Establish a process for OAH ALJs to refer to the OAH ADA coordinator when an issue is raised on whether a litigant's cognitive disabilities precludes meaningful access to the OAH hearing process.
Establish a "reasonable belief" standard for when an ALJ's referral to the ADA coordinator is appropriate.
Establish separate process and file for responding to the party's need due to cognitive disabilities.
Protect the party's privacy interest by maintaining a separate file that is kept confidential (from the other party) and from the ALJ presiding over the hearing on the merits.
Establish the OAH ADA coordinator as the first decision-maker on whether accommodation is necessary with an appeal opportunity to the chief ALJ.
Accommodation Response:
If accommodation is determined to be necessary, OAH will provide an "ombuds" person to assist the party at no cost to the party.
OAH will establish a network of ombuds persons who can be appointed by OAH to assist these individuals.
OAH will provide training at least every two years to OAH ALJs and support staff.
OAH will establish a training program for individuals who can serve as an "ombuds" person to assist those who are determined by OAH as needing representational accommodation because of cognitive disabilities and to ensure that they are not denied equal and meaningful access to OAH hearing process.
Data Collection:
Tracking of and annual reporting to referring agencies on the number of representational accommodation requests and the resolution of such requests.
Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: Chapter 10-08 WAC serves as the model rules of procedure for administrative hearings under the Administrative Procedure Act (APA). Therefore, the new rule would apply to any APA administrative hearing unless there is a specific agency rule that addresses the issue of accommodation for litigants with cognitive disabilities.
We will share the draft rule proposal with interested persons or agencies.
Process for Developing New Rule: A workgroup will be convened by the chief administrative law judge to develop the language for the rule proposed, addressing the main rule-making objectives and elements of (1) assessment, (2) accommodation response, (3) training, and (4) data collection.
Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Ed Pesik, Deputy Chief, P.O. Box 42489 [42488], Olympia, WA 98504-2488, (360) 407-2713,
September 7, 2016
Lorraine Lee
Chief Administrative
Law Judge