Date of Adoption: July 26, 1999.

Purpose: To amend rules in WAC 388-08 relating to adjudicative proceedings at the Department of Social and Health Services. To correct typographical errors, make address or name changes, clarify the rules without changing the effect of the rules; and implements legislative change for service of petition for judicial review.

Citation of Existing Rules Affected by this Order: Amending WAC 388-08-410, 388-08-413, 388-08-437, 388-08-440, 388-08-464, 388-08-470, 388-08-515, 388-08-555, and 388-08-575.

Statutory Authority for Adoption: RCW 34.05.220 and 34.05.413.

Adopted under notice filed as WSR 99-11-086 on May 19, 1999.

Changes Other than Editing from Proposed to Adopted Version: Changed internal references in WAC 388-08-555, because the public disclosure rules cited in this rule were amended and renumbered after these rules were proposed: WAC 388-320-220 was changed to WAC 388-01-040 and 388-220-140 was changed to WAC 388-01-080.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 9, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 9, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 9, Repealed 0. Effective Date of Rule: Thirty-one days after filing.

July 26, 1999

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

(1) Scope.  This chapter applies to adjudicative proceedings begun on or after July 1, 1989, in programs administered by the department of social and health services (DSHS).  The definition of the word "begun" is receipt of the application for an adjudication proceeding ((at the DSHS's office of appeals)) as provided in WAC 388-08-413(3).  Proceedings begun before July 1, 1989, are governed by the procedural rules in effect on ((July)) June 30, 1989.  Legal authority for adopting this chapter is RCW 34.05.220 (1)(a).

(2) Conflict of rules.  If a provision in this chapter conflicts with a provision in the chapter containing the program's substantive rules, the provision in the chapter containing the program's substantive rules governs.

(3) Presiding officer.  The presiding officer shall be either an administrative law judge (ALJ) from the office of administrative hearings or a review judge from the DSHS ((office)) board of appeals.  References to ALJ in this chapter apply to a review judge when a review judge is the presiding officer.

(4) Reviewing officer.  The reviewing officer shall be the secretary or a review judge from the DSHS ((office)) board of appeals.

(5) Physical and mailing addresses((.)):

(a) ALJ administrative and field office addresses are listed under WAC 10-04-020.  The mailing address for applications for adjudicative proceedings or requests for hearing in DSHS programs before the office of administrative hearings is: Office of Administrative Hearings, P.O. Box 2465, Olympia WA 98507-2465 or the address of the assigned field office.

(b) The ((office)) DSHS board of appeals is located in the ((DSHS Headquarters, Office Building Number 2, Twelfth and Franklin, Olympia, and the mailing address is Office of Appeals, P.O. Box 2465, Olympia, WA 98504-2465)) Blake Office Park, 4500 -10th Avenue Southeast, Lacey, Washington and the mailing address is Board of Appeals, P.O. Box 45803, Olympia, WA 98504-5803.

[Statutory Authority: RCW 34.05.220 (1)(a).  90-04-076 (Order 2999), § 388-08-410, filed 2/5/90, effective 3/1/90.]

(1) Who may apply.  Any person or authorized representative may file an oral or written application for an adjudicative proceeding.

(2) Form of application.  The application need not be in any particular form but should specify the decision being appealed and the reasons the appellant is dissatisfied with the decision.

(3) Application.

(a) An oral application shall be made to a responsible department or office of administrative hearings employee.

(b) A written application should be filed at the office of ((appeals)) administrative hearings at the address in WAC 388-08-410 (5)(a).  However, the application can be filed with any responsible department or office of administrative hearings employee.

[Statutory Authority: RCW 34.05.220 (1)(a).  90-04-076 (Order 2999), § 388-08-413, filed 2/5/90, effective 3/1/90.  Statutory Authority: RCW 34.04.020.  84-05-040 (Order 2076), § 388-08-413, filed 2/17/84; 79-09-054 (Order 1426), § 388-08-413, filed 8/24/79.]

(1) Service required when filing.  A party filing a pleading, brief, or other paper, except an application for an adjudicative proceeding, with the ((office)) board of appeals or the office of administrative ((law judge (ALJ))) hearings shall serve a copy of the paper upon:

(a) Every other party; or

(b) If the other party is represented or has an agent, the other party's representative or agent.

(2) Filing and service made by.  Unless otherwise provided by law, filing and service shall be made by:

(a) Personal service;

(b) First class, registered, or certified mail;

(c) Telegraph;

(d) Electronic telefacsimile transmission and same-day mailing of copies; or

(e) Commercial parcel delivery company.

(3) Filing complete.  Filing with the ((department)) board of appeals shall be complete upon actual receipt during office hours at the ((office)) board of appeals.  Filing with the ((ALJ)) office of administrative hearings shall be complete upon actual receipt during office hours at ((the)) any field or administrative office ((of the ALJ)).

(4) Service complete.  Service shall be complete when:

(a) Personal service is made;

(b) Mail is properly stamped and addressed and is deposited in the United States mail;

(c) A properly addressed telegram is deposited with a telegraph company with charges prepaid;

(d) An electronic telefacsimile transmission produces proof of transmission; or

(e) A commercial parcel is delivered to the parcel delivery company with charges prepaid.

(5) Proof of service.  Where proof of service is required by statute or rule, filing the papers with the ((department or ALJ)) board of appeals or the office of administrative hearings, together with one of the following, shall constitute proof of service:

(a) An acknowledgement of service;

(b) A certificate of service including the date the papers were served upon all parties and the signature of the serving party indicating service was completed ((by:

(i) Personal service;

(ii) Mailing a copy properly addressed with postage prepaid to each party to the proceeding, or the party's representative or authorized agent;

(iii) Telegraphing a copy properly addressed with charges prepaid to each party to the proceeding, or the party's representative or authorized agent;

(iv) Transmitting a copy by electronic telefacsimile device and, on the same day, mailing a copy to each party to the proceeding, or the party's representative or authorized agent; or

(v) Depositing a copy properly addressed with charges prepaid with a commercial parcel delivery company)) under subsection (4) of this section.

[Statutory Authority: RCW 34.05.220 (1)(a).  90-04-076 (Order 2999), § 388-08-437, filed 2/5/90, effective 3/1/90.]

(1) Right to request.  The parties shall have the right to file a written request to vacate an order of dismissal for reason of default or withdrawal.

(2) Contents.  The request shall state the grounds relied upon.

(3) Time limits.

(a) The period to file a request ((shall be)) is twenty-one days from the date the ((party serves)) administrative law judge (ALJ) serves the order of dismissal.

(b) The ((administrative law judge ())ALJ(())) shall waive the twenty-one day limit for filing a request when a person:

(i) Files a request within thirty days of the date the order becomes final; and

(ii) Demonstrates good cause for failure to file a timely request.  Good cause means one of the grounds enumerated in Court Rule 60 and includes:

(A) A person's mistake, inadvertence, or excusable neglect preventing the person from timely filing a request; or

(B) An unavoidable casualty or misfortune preventing the person from timely filing a request.

(4) Filing.  The person shall file the request at the ((office)) board of appeals or the office of administrative hearings.

(5) Grounds to vacate an order of dismissal.  When, in the reasoned opinion of the ALJ, good cause to grant the relief is shown, the ALJ shall vacate the order of dismissal and reinstate the application.

[Statutory Authority: RCW 34.05.220 (1)(a).  90-04-076 (Order 2999), § 388-08-440, filed 2/5/90, effective 3/1/90.]

(1) Initial orders that may become final orders.

(a) If a petition for review is not filed within twenty-one days from service of the initial order, the initial order shall, subject to the provisions of this section, become the final order.

(b) An initial order shall not become the final order after a food stamp administrative disqualification hearing.  Each party shall have the right to file a petition for review of the administrative law judge's order.  Whether a petition for review is or is not filed, the review judge shall enter the final order on behalf of the secretary.

(2) Who may petition.  Each party has the right to file a petition for review of an order entered by an administrative law judge.

(3) Petition contents.  The petition for review shall:

(a) Specify the portions of the order to which exception is taken; and

(b) Refer to the evidence of record relied upon to support the petition.

(4) Petition time limits.

(a) The period to timely file a petition for review is twenty-one days from the date the initial decision was served.

(b) A review judge shall extend the twenty-one-day period to file a petition for review upon request of a party when:

(i) The request is made during the twenty-one-day period; and

(ii) Good cause for the extension is shown.

(c) The review judge shall waive the twenty-one-day limit for filing a petition for review when a person:

(i) Files a petition for review within thirty days of the date the initial order becomes final; and

(ii) Demonstrates good cause for failure to file a timely petition.  Good cause means one of the grounds enumerated in Court Rule 60 and includes:

(A) A petitioner's mistake, inadvertence, or excusable neglect preventing the petitioner from timely filing a petition; or

(B) An unavoidable casualty or misfortune preventing the petitioner from timely filing a petition for review.

(5) Petition filing and service.  The petition for review shall be in writing and filed with the ((office)) board of appeals at the address in WAC 388-08-410 (5)(b).  The petitioning party is encouraged to serve a copy of the petition upon the other party or the other party's representative at the time the petition is filed. The ((office)) board of appeals shall serve a copy on the other party or representative.

(6) Notice of petition.  When a petition for review is filed, the ((office)) board of appeals shall send a copy of the petition to the nonpetitioning party ((or)) and, if represented, to the representative with a notice of the right to file a response.

(7) Response time limit, filing, service.

(a) The nonpetitioning party shall file any response with the ((office)) board of appeals within seven days of the date ((that office served)) of service of a copy of the petition on the nonpetitioning party or representative.

(b) The nonpetitioning party shall serve a copy of the response on the petitioner and any other party or, if represented, on the representative at the time the response is filed.

(c) A review judge may extend the period to file a response upon request of a party showing good cause.

(d) A review judge may, in the review judge's discretion, accept a late filed response and consider the response when ruling on a petition for review.

(8) Disqualification.  The ((chief review judge)) board of appeals shall disclose the name of the review judge assigned to rule on a petition to any party or representative making inquiry.  An individual petitioning to disqualify a review judge under RCW 34.05.425 shall file the petition with the review judge assigned to the proceeding.

[Statutory Authority: RCW 34.05.220 (1)(a).  90-04-076 (Order 2999), § 388-08-464, filed 2/5/90, effective 3/1/90.]

Within ten days of service of a review order, any party may file a petition for reconsideration.  A review judge shall extend the period to file a petition upon request of a party made during the ten-day filing period when good cause for the extension is shown.  The petition shall state the specific grounds upon which relief is requested.  A petition for reconsideration shall be filed at the ((office)) board of appeals at the address in WAC 388-08-410 (5)(b).

[Statutory Authority: RCW 34.05.220 (1)(a).  90-04-076 (Order 2999), § 388-08-470, filed 2/5/90, effective 3/1/90.]

This section applies when the ((office)) board of appeals or the office of administrative ((law judge)) hearings is notified or otherwise made aware that a limited-English-speaking person is a party in an adjudicative proceeding.  All notices concerning the proceedings, including notices of hearing, continuance, and dismissal shall:

(1) Be written in the primary language of the party; or

(2) Include a notice in the primary language of the party describing:

(a) The significance of the notice; and

(b) How the party may receive assistance in understanding the notice and, if necessary, responding to the notice.

[Statutory Authority: RCW 34.05.220 (1)(a).  90-04-076 (Order 2999), § 388-08-515, filed 2/5/90, effective 3/1/90.]

(1) Applicability and request to ((office of special)) the division of fraud investigation (((OSI))) (DFI).  When the appellant seeks disclosure of a record maintained by the ((OSI)) DFI subject to the exemption under WAC ((388-320-220)) 388-01-040, the following process shall determine whether, on a case-by-case basis, disclosure shall be ordered:

(a) The appellant or the appellant's representative shall file a written request with the office of ((appeals or the)) administrative ((law judge (ALJ), if one is appointed)) hearings, no later than fourteen days before the hearing;

(b) The request shall identify the record sought;

(c) The request shall state the reasons why the appellant believes disclosure is necessary;

(d) The request shall identify the local community service office or the ((OSI)) DFI field office where the appellant wishes to review the record;

(e) The office of ((appeals or ALJ)) administrative hearings shall forward a request copy to the ((OSI at the main)) DFI at its headquarters office ((of special investigation)) in Olympia; and

(f) Upon the appellant's showing of good cause, the ALJ may shorten the fourteen-day notice period.

(2) ((OSI)) DFI action.

(a) Within ten days of receipt of a properly filed request, the ((OSI)) DFI shall determine whether the record sought is within an exemption to disclosure.

(b) Any exempt record shall be:

(i) Sealed in an envelope clearly designated as an exempt or confidential record of the ((OSI)) DFI;

(ii) Placed in the ((OSI)) DFI file;

(c) The ((OSI)) DFI shall then notify the appellant or representative, in writing, of the:

(i) ((OSI's)) DFI’s action; and

(ii) Appellant's or representative's right to a disclosure hearing.

(iii) If any information is placed in a sealed envelope and excluded from disclosure, the notice shall state the specific exemption relied upon for this action.  The notice shall provide the appellant a ten-day opportunity to inspect the ((OSI)) DFI file by the person, or the person's representative, at the community service office or ((OSI)) DFI field office designated by the appellant.  In no event shall the investigative file leave the physical control of the designated ((OSI)) DFI records custodian, provided the appellant may copy all documents not sealed in an envelope designated as exempt or confidential.

(d) If no amended disclosure request under subsection (3) of this section is filed, the issue of disclosure shall be regarded as moot.

(3) ALJ action.  If the appellant wants further disclosure, the appellant shall file an amended disclosure request with the ALJ.  The ALJ shall schedule a separate, in camera hearing to determining whether, and to what extent, to allow the disclosure of an exempted record.

(a) The department shall have the burden of proving, by a preponderance of the credible evidence, whether the necessity to protect an exempt record or confidential information clearly outweighs the disclosure interests.

(b) Either party may offer witnesses to testify on the disclosure issue.  When the appellant calls witnesses from the state, investigative, law enforcement, or penology agencies as adverse witnesses, the appellant may ask leading questions.

(c) Attendance shall be limited to the parties, the parties' representatives, the ALJ, and any witnesses to be called provided, upon the request of either party or upon the ALJ's own motion, the ALJ may exclude nontestifying witnesses from the hearing.

(d) In determining whether to disclose information to the appellant, the ALJ shall review the information, but shall not disclose the information to the appellant.

(e) The ALJ shall enter an initial order.

(i) If the information sought is pertinent to any ongoing criminal investigation, disclosure shall only be ordered by a superior court of this state.

(ii) The ALJ shall order nondisclosure of specific information consistent with law after making findings of fact showing:

(A) The information sought to be disclosed is inadmissible and immaterial to establishing a defense; or

(B) Specific investigative or intelligence information, which cannot be deleted from any specific records sought, is clearly necessary to protect any vital governmental function, ongoing criminal investigation, or an individual's right of privacy; or

(C) After weighing the public interest in protecting the flow of information against the individual's right to prepare the individual's defense, the evidence demonstrates it is not necessary to disclose particular intelligence or investigative information.

(iii) An order for disclosure shall state the times and methods for record inspection.  In no event shall such order compel the release of an original record but, rather, where release is ordered, copies shall be provided.  Copying a record shall be governed by WAC ((388-320-140)) 388-01-080.

(f) Each party has the right to file a petition for review ((for)) of the initial order under WAC 388-08-464.  There shall be no disclosure under an initial order until exhausting all review proceedings.

(4) Assignment of new ALJ.  When the ALJ conducts the in camera review under subsection (3) of this section and determines information should not be disclosed to the appellant, the chief ALJ or the chief ALJ's designee shall assign another ALJ to preside over the adjudicative proceeding.

[Statutory Authority: RCW 34.05.220 (1)(a).  90-04-076 (Order 2999), § 388-08-555, filed 2/5/90, effective 3/1/90.]

(1) Right to judicial review; exclusive remedy.  An appellant or intervener aggrieved, as described under RCW 34.05.530, by the final decision or order in a department of social and health services (DSHS) adjudicative proceeding may appeal the decision or order to court.  Judicial review shall only be obtained under RCW 34.05.  Judicial review may not be obtained through any other procedure.

(a) RCW 34.05 contains the pertinent provisions of the law.

(b) RCW 74.08.080(3) contains additional provisions about public assistance proceedings.

(2) Instituting judicial review; filing and serving the petition.  As described in RCW 34.05.542(2), within thirty days after the department mails the final decision, the petitioner shall file the petition for judicial review with the court and serve a copy of the petition on DSHS, the office of the attorney general, and all parties of record.

(a) A petition shall be filed in the Superior Court at the petitioner's option for:

(i) Thurston County;

(ii) The county of the petitioner's residence or principal place of business; or

(iii) Any county where property affected by the decision is located.

(b) ((Service)) Delivery of a copy of the petition for judicial review on DSHS under RCW 34.05.542(4) may be ((had)) made by ((personally)) serving a copy of the petition on the ((office)) secretary or on the board of appeals by personal service or mail that provides proof of receipt. If there is an attorney of record for DSHS, service on the agency may be made by mailing a copy of the petition, postage prepaid, to the attorney of record.

(c) Service of a copy of the petition for judicial review on the office of the attorney general may be ((had)) made by mailing a copy of the petition, postage prepaid, to the attorney of record or to the Office of the Attorney General, ((Highway-Licenses Building, PB-71)) P.O. Box 40124, Olympia, WA 98504-0124.

(d) Service of a copy of the petition for judicial review on other parties of record may be ((had)) made by mailing a copy of the petition to the other parties, properly addressed and postage prepaid.

[Statutory Authority: RCW 34.05.220 (1)(a).  90-04-076 (Order 2999), § 388-08-575, filed 2/5/90, effective 3/1/90.]