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

     Purpose: These DSHS rules promote compliance with federal rules and clarify DSHS rule language implementing Parts IV and V of chapter 34.05 RCW. These rules make changes to the authority of the administrative law judge and review judge in WAC 388-02-0215, 388-02-0217, and 388-02-0600 and are necessary to comply with federal rules, including 42 C.F.R. 431.10 (e)(3) and 45 C.F.R. 205.100 (b)(3), that prohibit DSHS from delegating final decision-making authority in medicaid-funded and TANF-funded cases. These rules permit review of hearing decisions for medicaid-funded and TANF-funded cases by a DSHS review judge upon request of either party. WAC 388-02-0218 is added for clarification to reflect the authority given to review judges under WAC 388-96-904. These rules clarify, update, and make other changes to chapter 388-02 WAC in order to improve efficiency, accuracy, and consistency in DSHS hearings and the review process.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-02-0524 and 388-02-0527; and amending WAC 388-02-0010, 388-02-0215, 388-02-0530, 388-02-0550, 388-02-0555, 388-02-0560, 388-02-0565, 388-02-0570; 388-02-0575, 388-02-0580, 388-02-0585, 388-02-0590, 388-02-0595, and 388-02-0600.

     Statutory Authority for Adoption: RCW 34.05.020, 34.05.220.

     Other Authority: 42 C.F.R. 431.10 (e)(3); 45 C.F.R. 205.100 (b)(3); chapter 34.05 RCW, Parts IV and V.

      Adopted under notice filed as WSR 08-09-105 on April 21, 2008.

     Changes Other than Editing from Proposed to Adopted Version: WAC 388-02-0550(2), 388-02-0580(4), and 388-02-0590(5) have been modified so that these subsections are no longer applicable to requests by DSHS for the following: Corrected orders, review by a review judge, or more time to respond to a review request.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 1, Amended 2, Repealed 2; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, Amended 12, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 2, Amended 14, Repealed 2.

     Date Adopted: October 15, 2008.

Stephanie E. Schiller

Rules Coordinator

     "Administrative law judge (ALJ)" means an impartial decision-maker who is an attorney and presides at an administrative hearing. The office of administrative hearings (OAH), which is a state agency, employs the ALJs. ALJs are not DSHS employees or DSHS representatives.

     "BOA" means the DSHS board of appeals.

     "Business days" means all days except Saturdays, Sundays and legal holidays.

     "Calendar days" means all days including Saturdays, Sundays and legal holidays.

     "Deliver" means giving a document to someone in person.

     "Documents" means papers, letters, writings, or other printed or written items.

     "DSHS" means the department of social and health services.

     "DSHS representative" means an employee of DSHS, a DSHS contractor, or an assistant attorney general authorized to represent DSHS in an administrative hearing. DSHS representatives include, but are not limited to, claims officers and fair hearing coordinators.

     "Final order" means an order that is the final DSHS decision.

     "Hearing" means a proceeding before ((OAH)) an ALJ or review judge that gives a party an opportunity to be heard in disputes about DSHS programs. For purposes of this chapter, hearings include administrative hearings, adjudicative proceedings, and any other similar term referenced under chapter 34.05 RCW, the Administrative Procedure Act, Title 388 of the Washington Administrative Code, chapter 10-08 WAC, or other law.

     "Initial order" is a hearing decision made by an ALJ that may be reviewed by a BOA review judge ((pursuant to WAC 388-02-0215(4))) at either party's request.

     "Judicial review" means a superior court's review of a final order.

     "Mail" means placing the document in the mail with the proper postage.

     "OAH" means the office of administrative hearings, a separate state agency from DSHS.

     "Party" means ((a person or entity)):

     (1) DSHS; or

     (2) A person or entity:

     (a) Named in a DSHS action;

     (((2))) (b) To whom a DSHS action is directed; or

     (((3))) (c) Allowed to participate in a hearing to protect an interest as authorized by law or rule.

     (((4) DSHS is also a party.))

     "Prehearing conference" means a proceeding scheduled and conducted by an ALJ or review judge in preparation for a hearing.

     "Prehearing meeting" means an informal voluntary meeting that may be held before any prehearing conference or hearing.

     "Program" means a DSHS organizational unit and the services that it provides, including services provided by DSHS staff and through contracts with providers. Organizational units include, but are not limited to, administrations and divisions.

     "Record" means the official documentation of the hearing process. The record includes ((tape)) recordings or transcripts, admitted exhibits, decisions, briefs, notices, orders, and other filed documents.

     "Review" means ((the act of reviewing)) a review judge evaluating initial orders entered by an ALJ and making the final agency decision as provided by RCW 34.05.464, or issuing final orders.

     "Review judge" means ((an attorney employed by the DSHS board of appeals (BOA) who is the reviewing officer in RCW 34.05.464 for cases listed in WAC 388-02-0215(4))) a decision-maker with expertise in DSHS rules who is an attorney and serves as the reviewing officer under RCW 34.05.464. In come cases, review judges conduct hearings and enter final orders. In other cases, they review initial orders and may make changes to correct any errors in an ALJ's initial order. When reviewing initial orders or conducting hearings, review judges enter final orders. Review judges are employed by DSHS, are located in the DSHS board of appeals (BOA), and are not part of the DSHS program involved in the review.

     "Rule" means a state regulation. Rules are found in the Washington Administrative Code (WAC).

     "Stay" means an order temporarily halting the DSHS decision or action.

     "You" means any individual or entity that has a right to be involved with the DSHS hearing process, which includes a party or a party's representative. "You" does not include DSHS or its representative.

[Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 § 211. 02-21-061, § 388-02-0010, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0010, filed 9/1/00, effective 10/2/00.]

     (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) 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;

     (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 chapter 388-71 WAC, and under chapter 388-106 WAC, except for 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 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)) The ALJ enters initial or final orders as provided for in WAC 388-02-0217.

[Statutory Authority: RCW 34.05.020, 34.05.220 and chapter 34.05 RCW, Parts IV and V. 06-16-008, § 388-02-0215, filed 7/20/06, effective 8/20/06. 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.]

     (2) ALJs conduct the hearing and enter the hearing decision as a final order only in cases pertaining to:

     (a) Eligibility for the following programs:

     (i) Food assistance;

     (ii) General assistance, except for general assistance expedited Medicaid (GAX);

     (iii) Refugee assistance; or

     (iv) Telephone assistance.

     (b) Child support under chapter 388-14A WAC, except for cases relating to parent address disclosure under WAC 388-14A-2114 through 388-14A-2140 or claims of good cause for not cooperating with the division of child support under WAC 388-14A-2040 through 388-14A-2075 and WAC 388-422-0020;

     (c) Juvenile parole revocation under chapter 388-740 WAC;

     (d) Juvenile rehabilitation cost reimbursement under chapter 388-720 WAC;

     (e) Vocational rehabilitation services under chapter 388-891 WAC; or

     (f) Vendor overpayments, except for provider overpayment cases where the hearing is requested by a provider under chapter 388-502 or 388-502A WAC.

     (3) ALJs conduct the hearing and enter the hearing decision as an initial order in all other cases.

[]

     (2) A review judge has the same authority as an ALJ, as described in WAC 388-02-0215, when conducting a hearing.

[]

     (2) If a party disagrees with an initial order ((for a case listed in WAC 388-02-0215(4))) and wants it changed, the party must request review by ((BOA)) a review judge as provided in WAC 388-02-0560 through 388-02-0595.

     If a party wants to stay the DSHS action until review of the initial order is completed, the party must request a stay from a review judge.

     (3) Final orders entered by ALJs may not be reviewed by ((BOA)) a review judge.

     (4) If a party disagrees with an ALJ's final order, the party may request reconsideration as provided in WAC 388-02-0605 through 388-02-0635. You may also petition for judicial review of the final order as stated in WAC 388-02-0640 through 388-02-0650. You do not need to file a request for reconsideration of the final order before petitioning for judicial review. DSHS may not request judicial review of an ALJ's or review judge's final order.

[Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 § 211. 02-21-061, § 388-02-0530, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0530, filed 9/1/00, effective 10/2/00.]

     (2) If you ask the ALJ to correct a decision, the time period provided by this section for requesting a corrected decision of an initial order, and the time it takes the ALJ to deny the request or make a decision regarding the request for a corrected initial order, do not count against any deadline, if any, for a review judge to enter a final order.

[Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 § 211. 02-21-061, § 388-02-0550, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0550, filed 9/1/00, effective 10/2/00.]

     (a) Send all parties a corrected order; or

     (b) Deny the request within three business days of receiving it.

     (2) If the ALJ corrects an initial order and a party does not request review, the corrected initial order becomes final twenty-one calendar days after the original initial order was mailed.

     (3) If the ALJ denies a request for a corrected initial order ((for a case listed in WAC 388-02-0215(4))) and the party still wants the hearing decision changed, the party must request review ((from BOA)) by a review judge.

     (4) Requesting an ALJ to ((corrected)) correct the initial order ((for a case listed in WAC 388-02-0215(4))) does not automatically extend the deadline to request review of the initial order by ((BOA)) a review judge. ((A)) When a party needs more time to request review of an initial order, the party ((may)) must ask for more time to request review ((when needed)) as permitted by WAC 388-02-0580(2).

     (5) If the ALJ denies a request for a corrected final order and you still want the hearing decision changed, you must request judicial review.

[Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 § 211. 02-21-061, § 388-02-0555, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0555, filed 9/1/00, effective 10/2/00.]

     (2) ((A party must request review of an initial order for a case listed in WAC 388-02-0215(4) from the BOA)) If a party wants the initial order changed, the party must request that a review judge review the initial order.

     (3) ((The review judge considers the request, the initial order, and record, before deciding if the initial order may be changed)) If a request is made for a review judge to review an initial order, it does not mean there is another hearing conducted by a review judge.

     (4) ((Review does not include another hearing by the BOA)) The review judge considers the request, the initial order, and the record, and may hear oral argument, before deciding if the initial order should be changed.

     (5) ((BOA)) Review judges may not review ALJ final orders.

[Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 § 211. 02-21-061, § 388-02-0560, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0560, filed 9/1/00, effective 10/2/00.]

     (2) The review judge may allow the parties to make oral argument ((on review)) when reviewing initial orders.

[Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0565, filed 9/1/00, effective 10/2/00.]

     (2) If more than one party requests review, each request must meet the deadlines in WAC 388-02-0580.

[Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 § 211. 02-21-061, § 388-02-0570, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0570, filed 9/1/00, effective 10/2/00.]

     (1) Parts of the initial order with which the party disagrees; and

     (2) Evidence supporting the party's position.

[Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 § 211. 02-21-061, § 388-02-0575, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0575, filed 9/1/00, effective 10/2/00.]

     (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 reason 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, 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.]

     (2) After receiving a party's review request, BOA sends a copy to the other parties, their representatives, and OAH((, and representatives giving them time to respond)). The other parties and their representatives may respond as described in WAC 388-02-0590.

[Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 § 211. 02-21-061, § 388-02-0585, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0585, filed 9/1/00, effective 10/2/00.]

     (2) If a party decides to respond((s)), that party must send the response so that BOA receives it on or before the seventh business day after the date the other party's review request was mailed to the party by BOA.

     (3) The party must send a copy of the response to ((any)) all other ((party)) parties or their representatives.

     (4) ((If a party needs more time to respond, the party must contact BOA by)) A review judge may extend the deadline in subsection (2) of this section if a party asks for more time before the deadline to respond expires and gives a good reason.

     (5) If you ask for more time to respond, the time period provided by this section for responding to the review request, including any extensions, does not count against any deadline, if any, for a review judge to enter the final order. A review judge may accept and consider a party's response even if it is received after the deadline.

[Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0590, filed 9/1/00, effective 10/2/00.]

     (2) A review judge is assigned to ((the)) review the initial order after the record is closed. To find out which judge is assigned, call BOA.

     (3) After the record is closed, the assigned review judge:

     (a) Reviews the ((case)) initial order; and

     (b) Enters a final order that affirms, changes, dismisses or reverses the initial order; or

     (c) ((Remands (returns))) Returns the case to OAH for further action.

[Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 § 211. 02-21-061, § 388-02-0595, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0595, filed 9/1/00, effective 10/2/00.]

     (2) The review judge has the same decision-making authority as ((an)) the ALJ when reviewing initial orders in the following cases, but must consider the ALJ's opportunity to observe the witnesses:

     (a) Licensing, certification and related civil fines;

     (b) Rate-making proceedings; ((and))

     (c) Parent address disclosure;

     (d) Temporary assistance to needy families (TANF);

     (e) Working connections child care (WCCC);

     (f) Medical assistance eligibility;

     (g) Medical or dental services funded by Title XIX of the Social Security Act;

     (h) Adoption support services; and

     (i) Eligibility for client services funded by Title XIX of the Social Security Act and provided by the aging and disability services administration.

     (((2))) (3) In all other cases, ((a)) the review judge may only change the ((hearing decision)) initial order if:

     (a) There are irregularities, including misconduct of a party or misconduct of the ALJ or abuse of discretion by the ALJ, that affected the fairness of the hearing;

     (b) The findings of fact are not supported by substantial evidence based on the entire record;

     (c) The decision includes errors of law;

     (d) The decision needs to be clarified before the parties can implement it; or

     (e) Findings of fact must be added because the ALJ failed to make an essential factual finding. The additional findings must be supported by substantial evidence in view of the entire record and must be consistent with the ALJ's findings that are supported by substantial evidence based on the entire record.

     (((3))) (4) Review judges ((have the authority to enter final orders for the cases listed in WAC 388-02-0215(4))) may not review ALJ final orders. See WAC 388-02-0217 for cases in which the ALJ enters a final order.

     (((4) Review judges may remand cases listed in WAC 388-02-0215(4) to the ALJ for further action)) (5) A review judge conducts the hearing and enters the final order in cases covered by WAC 388-02-0218.

[Statutory Authority: RCW 34.05.020, chapter 34.05 RCW, Parts IV and V, 2002 c 371 § 211. 02-21-061, § 388-02-0600, filed 10/15/02, effective 11/15/02. Statutory Authority: RCW 34.05.020. 00-18-059, § 388-02-0600, filed 9/1/00, effective 10/2/00.]

     The following sections of the Washington Administrative Code are repealed:

WAC 388-02-0524	In what cases does the ALJ enter the hearing decision as an initial order?
WAC 388-02-0527	In what cases does the ALJ enter the hearing decision as a final order?

© Washington State Code Reviser's Office