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Unless you are an attorney admitted to practice in this state, submission of a notice of appearance is not mandatory in public assistance hearings. However, filing a notice will ensure that you get copies of all of the correspondence related to your client's case. Also, it will increase the likelihood of courtesy calls from the Office of Administrative Hearings (OAH) and DSHS regarding scheduling and missed DSHS appointments. You should send a copy to the OAH and to the Fair Hearing Coordinator (FHC). Withdrawals of representation should also be in writing.
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RCW 34.12.010 requires that hearings held by OAH "be conducted with the greatest degree of informality consistent with fairness and the nature of the proceeding." "Informality" in this context means "accessible". This provision does not mean you should just show up and wing it. At best, you will miss the opportunity to place your client's case in the best light, essentially leaving the ALJ with an unprepared pro se appellant. Worse, you will fail to present adequate evidence or legal argument to prevail in a case where you could have and such evidence and interpretation are not obvious to the ALJ.
While the procedural rules for administrative hearings are relaxed as compared to judicial hearings, the substantive rules are quite rigid. DSHS rules must be strictly followed by the ALJ. Decisions cannot be made in favor of your client simply because it seems fair. See WAC 388-02-0220 and WAC 388-02-0225. Further, DSHS rules are not intuitive. Preparation is critical to prevail at hearing and/or to make an adequate record for further administrative or judicial review.
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There are no rules governing a lay representative's responsibility to their client. But the ethical rules which apply to lawyers are useful guides to maintain your professionalism and competence. Read them. They are available through the King County Bar Association. Most importantly, be sure to communicate with your client every step of the way. Do not agree to a continuance (postponement) of the hearing without first clearing it with your client.
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Consider whether your client has any chance of prevailing at the administrative level or at subsequent judicial review in light of the applicable regulations and laws. If not, consider alternatives to meeting his or her needs such as reapplying for assistance if circumstances have changed or looking to other community resources. There is often value to a person in having their say in a hearing whether or not there is a chance of prevailing, but going to hearing when the rules are clearly against the appellant often results in further frustration and a wasting of time when other resources could be pursued. An ALJ must strictly follow the WAC. No matter how compelling an appellant's situation is, if he or she is not entitled to benefits under the rules, the ALJ cannot make an exception. Do not give your client false hope.
Also, consider whether your client's concerns could be better addressed through the DSHS grievance procedure (WAC 388-426) or through a request for an exception to policy (WAC 388-440-0001).
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(a) 90-day rule
An appellant must request a hearing within 90 days of receiving an adverse notice. See RCW 74.08.080(2)(a). See also RCW 34.05.440(1) as distinguished from RCW 34.05.440(2) and (3).
Potential defenses to a DSHS assertion that the appellant did not request a hearing within 90 days may include:
- The appellant did not get proper notice. Notice was therefore ineffective to start the 90 days running. Reasons for faulty notices include: the notice was not sent to the correct address; it was not sent in the appellant's language or in the correct format or otherwise pursuant to rules governing clients needing special accommodations. See WAC 388-458-0005, WAC 388-458-0010, WAC 388-458-0015, WAC 388-529-0100, WAC 388-200-1300, WAC 388-200-1050(2)(b) and (d)(iv).
- The appellant did request a hearing within 90 days but it was not characterized as such by DSHS and therefore not forwarded to OAH (or, prior to 1997, to the DSHS Office of Appeals). For example, the appellant called DSHS and complained about the adverse notice but did not use the magic words "I want a hearing." See WAC 388-02-0100 and WAC 388-02-0105
There is no good cause exception to the 90-day rule. The default provisions of subsections (2) and (3) of RCW 34.05.440 do not apply. Focus your energy on the issues of proper notice and timely request. See WAC 388-02-0085 et seq.
(b) Adverse action
Subject matter jurisdiction extends only to issues related to official adverse actions taken be DSHS against a particular appellant. There is no subject matter jurisdiction over improper behavior by DSHS personnel or actions taken affecting classes of persons as a result of changes in laws or regulations. See RCW 74.08.080(1)(a) and (b). See also State v Tarver, 78 Wn.2d 152, 470 P.2d 172 (1970)
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Any party may file a motion of prejudice against an ALJ who has been assigned to a case. ALJs must be assigned to a case at least five days prior to a hearing. The assignment must be disclosed to any party or representative making inquiry. See WAC 388-02-0230. The motion of prejudice and supporting affidavit must be filed with the Chief Administrative Law Judge at least three days before the hearing or at any earlier stage when an ALJ may be required to issue a discretionary ruling. The first motion of prejudice filed by a party, if timely made, is granted automatically. Subsequent motions must be ruled on by the Chief ALJ. See WAC 388-02-0235, WAC 10-08-050(2), WAC 388-02-0240, and RCW 34.12.050.
A petition for disqualification may also be filed with the individual whose disqualification is requested. See WAC 388-02-0245 and RCW 34.05.425.
You may also file a grievance about an ALJ by contacting the supervising ALJ in writing. See WAC 10-16-010. Be sure to distinguish an issue for appeal from a grievance. Appeals must be made to the DSHS Board of Appeals.
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If your client fails to appear for a scheduled hearing or changes his or her mind about a withdrawal of their request for hearing, you may move to vacate the resulting Order of Dismissal by filing a written request to vacate the order. A form for this motion will be attached to the dismissal order. A hearing will be scheduled to determine whether the request was timely made and whether there is a good reason to vacate the dismissal. If good cause is found, the ALJ will generally immediately hold a hearing on the merits of the original appeal. Be prepared to present your client's case on the merits or to show a good reason to bifurcate and continue the case for the merits portion. See WAC 388-02-0305.
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An ALJ can continue (postpone, reschedule) a hearing for "good cause" (a good reason). If you have a good reason, call the FHC, tell them you plan to request a continuance from the ALJ and ask if they object. If they do not, call or write OAH and request another date. Tell OAH the reason and that the FHC agrees with your request. If the FHC does not agree, call or write OAH and request a motion hearing be set to hear your request. The motion will probably be heard by phone. WAC 388-02-0275 and WAC 388-02-0280. If your client is receiving continued assistance pending hearing, be sure to notify the client of the potential of an overpayment of assistance if DSHS prevails at hearing.
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"Ex parte" communications means any communication by either party with the ALJ without the presence of the other. Ex parte communications are strictly prohibited. This includes written communication. Any time you send something to the ALJ, you must make a copy and send it to the FHC. There are exceptions to this rule for communications related to procedural aspects of maintaining an orderly process. See RCW 34.05.455.
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Requests to compel discovery or for the issuance of subpoenas (if you are not a lawyer) can be made to the ALJ. Call OAH and request a telephone motion hearing. If you are a lawyer, you may issue a subpoena yourself. See WAC 388-02-0315, WAC 388-02-0320, WAC 388-02-0325, WAC 388-02-0330, WAC 388-02-0335, RCW 34.05.446, and Court Rule 26 for details about various formal discovery options available in administrative hearings. Motions to compel discovery should be a last resort. Always ask for information or for someone's attendance at hearing first. Consider accommodations to meet the desired witnesses' needs such as arranging for phone testimony or to review records at their convenience.
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"Evidence, including hearsay evidence, is admissible if in the judgment of the presiding officer it is the kind of evidence on which reasonable prudent persons are accustomed to rely in the conduct of their affairs." RCW 34.05.452(1). However, findings may not be based "exclusively on hearsay unless the ALJ determines that doing so would not unduly abridge the parties' opportunities to confront witnesses and rebut evidence." RCW 34.05.461(4). The Washington Rules of Evidence may be used as a guide to determine the admissibility of evidence in administrative hearing. See RCW 34.05.452(2).
Be prepared to explain why your hearsay evidence is reliable and the Department's is unreliable if that is your position.
Tests for reliability include apparent motive to lie, general character of the declarant, whether more than one person heard the statement, the timing of the statement, the relationship between the person making the statement and the witness, whether the statement contains express assertions of fact, whether cross-examination could show the speaker's lack of knowledge, the possibility that the declarant's memory is faulty, the circumstances surrounding the statement and, of course, the witness's own motives, biases, and abilities to accurately receive and report the declarant's statement.
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"Any findings based substantially on credibility of evidence or demeanor of witnesses shall be so identified." RCW 34.05.461(3). To withstand an appeal, a finding based on credibility must be identified and supported. Do not leave it to the ALJ to find support for your assertion of credibility or lack thereof. Be prepared to demonstrate and articulate why your witnesses are credible and the Department's are not, if that is your position.
Some indicators of credibility are consistency of testimony (internally and with prior reports), the level of detail provided, corroboration by other evidence, whether the testimony is controverted by other evidence, whether the testimony seems logical and plausible, whether or not the subject's purported actions are consistent with his or her prior conduct, confidence of presentation, apparent ability to accurately perceive and report, lack of motive to lie, or lack of bias.
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The only explicit provisions in the WACs or statutes assigning the burden of proof in public assistance cases are in Food Stamp Disqualification cases and Medical Assistance cases involving a transfer of resources. In both cases, DSHS has the burden. See WAC 388-446-0015 and RCW 74.08.080(2)(g). There is case law which assigns the burden to DSHS in terminations based on the other parent's residence in the home. McDaniel v DSHS, 51 Wn. App. 893 (1988). In General Assistance cases DSHS must prove "clear improvement" or "previous error" to terminate assistance based on incapacity. See WAC 388-448-0170.
Otherwise, the burden of proof is typically placed on the party seeking to change the status quo. Therefore, for example, in termination cases, the burden of proof will be on DSHS and on denials the burden will be on the appellant. If you have an opinion about the burden, articulate it in your written or oral argument.
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If you disagree with DSHS calculations or application of other evaluative criteria or formulas, provide your own written calculation or evaluation. Examples include calculations regarding amounts of benefits, the application of the Progressive Evaluation Process to the appellant's medical evidence of incapacity, and calculations of spend downs.
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With few exceptions, the hearing will be your one opportunity to make a record upon which not only the initial decision but all subsequent review decisions will be made. It is crucial that it is clear and complete. Be prepared. Speak clearly and loudly, using words, not gestures. Do not talk over another speaker (or let someone else speak over you). Make sure your witnesses do the same. However, be sure to make appropriate objections to protect your record for appeal. Be prepared to state the reason for your objection.
Unlike judicial judges, ALJs are required to take an active role in developing the record. See WAC 388-02-0215(2)(f) and (g). Familiarize yourself and your client with WAC 388-02-0215 through -0225 which describes the responsibilities of an ALJ. Be prepared for the ALJ to take an active role.
However, do not rely on the ALJ to make your record for you. You are in a position to learn far more about the existence of relevant facts and possible favorable applications of the rules than the ALJ, meeting the appellant for the first time in the hearing room, will be. Further, the WACs are numerous, complicated, and ever changing. ALJs do not have them memorized. Since the hearing request is usually the only item that ALJs have in their file (prior to minutes before hearing when they get the FHC's report and your exhibits) and the hearing request is often sparse and elliptical, they often cannot prepare for the issues prior to hearing.
You are entitled to a copy of the hearing tape free of charge. See RCW 74.08.080(2)(d). You may tape the hearing yourself if doing so will not be disruptive. See WAC 388-02-0215(2)(k). If you wish to make your own tape, ask the ALJ for permission before turning it on. Your tape will, of course, not be a part of the official record. RCW 34.05.476(3).
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An ALJ must apply the WAC as the first source of law and only if there is no controlling WAC may the ALJ refer to other sources of law. See WAC 388-02-0220. If you are arguing that the WAC is invalid because it conflicts with governing state or federal law, make your record for subsequent review, but know that the ALJ cannot invalidate a WAC.
If a WAC is ambiguous, it can be helpful to provide the governing laws to interpret the rule favorably to your client. Provide copies of the laws to the ALJ and the FHC and articulate your argument.
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For further information contact the FHC and other DSHS personnel, OAH, your local law library, and CLEAR at (888) 201-1014 or other legal services providers. The Legal Research section of this website also provides information and links for finding the law.
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