Governor Inslee Petition Appeal Response 1
March 8, 2023 | Policy
Re: APA Appeal- WACs 388-76, 388-78A, and 388-107
Dear Professor Brodoff:
On December 29, 2022, the Governor’s Office received the appeal you filed following the Washington State Department of Social and Health Services’ (DSHS) decision to deny your petition to amend WACs 388-76, 388-78A, and 388-107, all relating to discharge rights for residents in adult family homes, assisted living facilities, and enhanced services facilities (referred to here, collectively as long term care facilities (LTCs)). Under RCW 34.05.330(3), I may consider appeals from agency denials of petitions to amend existing rules.
Specifically, you request that DSHS amend its existing rules to provide the same discharge rights and requirements that currently apply to nursing homes to all LTCs. The proposed amendment will give notice of hearing appeal rights to all LTC residents and bearing officers.
DSHS denied your petition on November 30. Today, I affirm the agency decision and deny your petition-appeal. Though I may share the policy goals you articulate in your petition and appeal, DSHS believes that it lacks the legal authority to promulgate rules relating to the appeal rights of those being discharged. The Legislature purportedly intended to codify for LTC residents the same rights that residents in nursing homes enjoy under 42 C.F.R. part 483, but for whatever reason, it declined to statutorily extend those same appeal rights to residents at LTCs. For this reason, I’m not persuaded that DSHS erred in concluding that it lacked authority to promulgate rules relating to appeal rights for those being discharged from LTCs.
Furthermore, while I understand that some administrative law judges (ALJs) have found that the legal authority exists for DSHS to extend appeal rights to residents being involuntarily discharged from LTCs, other ALJs have reached the opposite conclusion. At best, the law is unclear as to the agency’s authority, which further suggests a need for statutory clarity.