RICHARD D. JOHNSON, CourtAdministrator/Clerk

October 6, 2014 Soc & Hlth Svcs A.G. Office Attorney at Law 800 Fifth Ave, Suite 2000 MS-TB-14 Seattle, WA, 98104 SHSSeaEF@atg.wa.gov
Ronald Jay Meltzer Sinsheimer &Meltzer, Inc., P.S. 701 5th Ave Ste 4780 Seattle, WA, 98104-7035 rjm@sinsheimer-meltzer.com 

### The Courtof Appeals ofthe 

### State ofWashington Seattle

Diane Lamon Dorsey Office ofthe Attorney General 800 5th Ave Ste 2000 Seattle, WA, 98104-3188 dianed@atg.wa.gov DIVISION I One Union Square 600 University Street 98101-4170 (206) 464-7750 TDD: (206)587-5505

CASE #: 70749-3-I 

### JanetSaarela. Appellant v. State ofWashington Departmentof Social and Health Services, Respondent 

### King County, Cause No. 12-2-30927-2.SEA Counsel: 

### Enclosed is acopyoftheopinionfiled intheabove-referenced appealwhich statesin part: "Because the Departmentfulfilled its statutoryobligations anddid not waive the request's untimeliness, we affirm." 

### Counsel mayfile amotionforreconsiderationwithin 20 days offiling this opinionpursuantto RAP 12.4(b). Ifcounseldoesnotwishtofile amotionforreconsideration butdoeswishto 

### seekreviewbytheSupremeCourt, RAP 13.4(a) providesthatifno motionforreconsideration ismade, apetitionforreviewmustbefiled inthis courtwithin 30days. The SupremeCourt has determined that a filing fee of$200 is required. 

### In accordancewith RAP 14.4(a), aclaimforcostsbytheprevailing partymust besupported by a costbillfiled and servedwithinten days after thefiling ofthisopinion, orclaimforcostswill be deemed waived.

Page 1 of 2

### Should counsel desire the opinion to be published bythe Reporter ofDecisions, a motion to publish should be served and filed within 20 days ofthe date of filingthe opinion, as provided by RAP 12.3(e).
Sincerely,

Richard D. Johnson Court Administrator/Clerk jh Enclosure

c: The Honorable Monica Benton

70749-3-I Page 2 of 2•-. i l_ •.'; ' ' 

## 20!'iOCT-6 l,\ S-51

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON JANET SAARELA, Appellant,

v. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. No. 70749-3-1 DIVISION ONE
UNPUBLISHED OPINION

FILED: October 6, 2014 Leach, J. — Janet Saarela appeals a superior court decision affirmingthe 

### Department of Social and Health Services' (DSHS or Department) Board of Appeals (Board) dismissal of Saarela's untimely request for administrative review. Because the Department fulfilled its statutory obligations and did not waive the request's untimeliness, we affirm. FACTS 

### On October 21, 2011, DSHS notified Janet Saarela that its Adult Protective Services division had found that she mentally abused her mother, a 

### vulnerable adult, in twoseparate incidents. DSHS sent a separate letter foreach 

### incident and assigned each a separate case number. One letter assigned case number 121829 to an alleged June 6, 2011, incident. The other letter assignedNO. 70749-3-1 / 2



### case number 150771 to an alleged August 24, 2011, incident. Both letters 

### contained instructions on how to requestan administrative hearing: At this time, you have a right to request an administrative hearing to challenge APS' initial finding. Your hearing rights are described in 

### RCW 34.05, WAC 388-02, and WAC 388-71. To request an administrative hearing you must send, deliver or fax a written request to the Office ofAdministrative Hearings (OAH). OAH must 

### receive your written requestwithin 30 calendardays of the date this letter of notice was mailed to you, or within 30 calendar days of the date this letter of notice was personally served upon you, whichever occurs first according to WAC 388-71-01240. If you request a hearing by fax, you must also mail a copy of the requestto OAH on the same day. To request an administrative hearing you may complete the enclosed form and mail it to [OAH's Seattle address]. 

### If you do not timely request a hearing, APS' initial finding will become final and your name will be placed on a registry. 

### On November 2, 2011, Saarela's attorney faxed a review hearing request that referenced one case number, 121829. OAH assigned a docket number to 

### this appeal. On November 29, 2011, Saarela's attorney sent a second hearing request to OAH. He used a copy of the original "Request for Adult Protective Services Hearing" form faxed to OAH on November 2, added the word "amended" to the title, and typed "AND 150771" underneath "case ID 121829." An accompanying letter explained, "The Request for Hearing for Case ID No. 150771 was inadvertently left out of [the previous] fax, as Ms. Saarela received letters for two different case numbers on the same day." Saarela asked OAH to accept "this Amended Request for Adult Services Hearing, for both case

-2-NO. 70749-3-1 / 3

numbers 121829 and 150771." OAH assigned a separate docket number to

case number 150771. On December 15, 2011, Saarela's attorney received notice from OAH 

### scheduling a prehearing conference for case number 121829 on February 2, 2012. In response to counsel's inquiryabout why the notice referred to only one
case number, OAH staff confirmed that "the Office had received both requests and the issue would be addressed at the Hearing." 

### On January 12, 2012, the Department moved to dismiss Saarela's appeal of case number 150771 as untimely. On April 6, 2012, the administrative law 

### judge (ALJ) granted the motion, finding that Saarela's hearing request was 

### untimely and therefore "she does not have a rightto a hearing underWAC 388- 02-0085."1 Saarela appealed the ALJ's order to the Board. It affirmed the ALJ's 

### decision. The reviewjudge denied Saarela's motion for reconsideration. Saarela

1CAB at 54. WAC 388-02-0085 provides in pertinentpart: 

### Do you have a right to a hearing? (1) You have a right to a hearing onlyif a law or DSHS rule gives you that right. Ifyou are not sure, you should request a hearing to protect yourright. 

### (3) You have a limited time to request a hearing. The deadline for your request varies by the DSHS program involved. You should submit your request right away to protectyour right to a 

### hearing, even if you are also trying to resolve your dispute informally. 

### (6) Ifthe ALJ decides you do not have a right to a hearing, your request is dismissed. -3-NO. 70749-3-1 / 4 

### petitioned for judicial review. The King County Superior Court denied the petition. Saarela appeals. STANDARD OF REVIEW We sit inthe same position as the trial courtwhen we review its final order 

### reviewing an administrative decision under the Washington Administrative Procedure Act(WAPA), chapter 34.05 RCW.2 We apply the review standards of 

### WAPA directly to the agency record.3 This court reviews issues ofstatutory construction de novo under the error oflaw standard.4 

### Saarela has the burden to prove that the reviewjudge erred.5 This court will reverse an administrative decision that (1) violates a constitutional provision on itsface or as applied, (2) lies outside the agency's lawful authority or jurisdiction, (3) is a result of an erroneous interpretation or application of the law, (4) is not based 

### on substantial evidence, or (5) is arbitrary or capricious.161 ANALYSIS 

### Under the legislature's delegated authority, DSHS has adopted rules and 

### implemented procedures to receive and investigate reports ofabuse or neglect of vulnerable adults.7 These rules, codified at WAC 388-71 and WAC 388-02, 

### 2Ryanv. Dep'tofSoc. &HealthServs.. 171 Wn.App. 454, 465, 287 P.3d 629 (2012). 

### 3Ryan. 171 Wn. App. at 465. 

### 4Ryan, 171 Wn. App. at 465 (citing RCW 34.05.570(3)(d)). 5RCW 34.05.570(1)(a). 

### 6 Heidgerken v. Dep't of Natural Res.. 99 Wn. App. 380, 384, 993 P.2d 934 (2000) (citing RCW 34.05.570(3)). 7RCW 74.34.005, .035, .063, .067, .068. -4-NO. 70749-3-1 / 5
provide an alleged abuser of a vulnerable adult a right to seek review and 

### amendment of the Department's finding.8 The person seeking review must "send, deliver, or fax a written request to the office of administrative hearings," which the office must receive within 30 calendar days ofthe date the Department 

### mailed its notice.9 If a party "fails to attend or participate in a hearing or other stage of an adjudicative proceeding, other than failing to timely request an adjudicative proceeding," the hearing officer may enter an order of default "or other dispositive order," which the requesting party may challenge by filing a 

### written motion to vacate that states the grounds for setting aside the order.10 But failure to file a requestwithinthe time limitestablished bythe agency rule "results inthe loss ofthat party's right to an adjudicative proceeding, and the agency may 

### proceed to resolve the case without further notice to, or hearing for the benefitof, 

### thatparty," with the exception ofnotice of any default or otherdispositive order.11 Ifthe ALJ decides a party does not have a right to a hearing, the ALJ dismisses 

### the review request.12 First, Saarela contends the Department had an obligation to inform her 

### that her November 2 request did not reference both case numbers. To support

8WAC 388-71-01235. 9WAC 388-71-01240(1). 10 RCW 34.05.440(2), (3). 11 RCW 34.05.440(1). 12WAC 388-02-0085(6). -5-NO. 70749-3-1 / 6

this contention, she cites RCW 34.05.419(2), "Within thirty days after receipt of the application, the agency shall examine the application, notify the applicant of any obvious errors or omissions, [and] request any additional information the agency wishes to obtain and is permitted by law to require." Saarela contends this provision means that "[i]f the Department's position is the Request for Hearing was untimely, it must act within 30 days to notify the Appellant." Thus, because the Department took no action until it filed its motion to dismiss on January 12, 2012, the Department may not now "assert[ ] any errors" in her application. We disagree. Saarela's November 2 request to OAH contained no "obvious errors or 

### omissions" or any indication that Saarela intended to appeal more than one decision. Saarela's failure to describe two decisions in the November 2 request
was not an error or omission that the Department had a duty to bring to her attention. The same is true of her November 29 request. RCW 34.05.419(2)'s 

### provision giving the Department 30 days to "request any additional information" necessary for the application also does not apply here. Although providing additional information may cure an "omission" in a request and serve to perfect
an appeal, it cannot cure untimeliness. RCW 34.05.419(2) does not support Saarela's position or undermine the ALJ's conclusion that "neither theNO. 70749-3-1 / 7 

### Department nor OAH failed to meet any obligations with respect to perfecting [Saarela's] appeal." 

### Next, Saarela argues that OAH's setting the matterforadjudication waived all Department objections to any defects in her appeal. She contends that RCW 

### 34.05.41913 and 34.05.41614 provide the Departmentwith two exclusive options after it receives an administrative hearing request: (1) it may commence an adjudicative proceeding or (2) decline to do so, explaining its reasons and any opportunity for review. According to Saarela, "What the Department clearly cannot do is what itattempted to do in this proceeding: to both setthe matterfor adjudication, thereby implicitly acknowledging the application was timely, and



### 13 RCW34.05.419 provides inpertinentpart: After receipt of an application for an adjudicative proceeding, other than a declaratory order, an agency shall proceed as follows: (1) Except in situations governed by subsection (2) or (3) of this section, within ninety days after receipt of the application or of the response to a timely request made by the agency under subsection (2) of this section, the agency shall do one of the following: (b) Commence an adjudicative proceeding in accordance with this chapter; or (c) Dispose of the application in accordance with RCW 34.05.416. 14 RCW 34.05.416 provides infull: Decision not to conduct an adjudication. Ifan agency decides not to conduct an adjudicative proceeding in response to an application, the agency shall furnish the applicant a copy of its decision in writing, with a brief statement of the agency's reasons and of any administrative review available to the applicant. -7-NO. 70749-3-1 / 8

that there was no default, and then to request that it be dismissed for its untimeliness." Saarela's argument fails. Neither the Department nor OAH waived or excused the untimeliness of Saarela's second request by commencing an adjudicative proceeding. A waiver consists of a party's "'unequivocal acts or conduct'"15 that show the party "intended 'to relinquish such right, advantage, or benefit; and [the party's] actions must be inconsistent with any other intention than to waive them.'"16 OAH is a separate office, independent of other state agencies and charged with "impartial administration ofadministrative hearings in 

### accordance with the legislative intent expressed by this chapter."17 OAH's scheduling ofan administrative proceeding inresponse to Saarela's requestfor a 

### hearing cannot waive DSHS's rights because the scheduling is not an act of DSHS. Additionally, Saarela does not show any intention on the part of DSHS to 

### waive any objection to the timeliness of Saarela's request for review. We
conclude no waiver occurred. The review judge stated that the ALJ "lacked jurisdiction to hear the case on its merits" and "correctly dismissed this matter due to lack of subject matter 15Dep't ofRevenue v. Puoet Sound Power & Light Co., 103 Wn.2d 501, 

### 505, 694 P.2d 7 (1985) (quoting Birkeland v. Corbett, 51 Wn.2d 554, 565, 320 P.2d 635 (1958)). 16 Puget Sound Power & Light Co., 103 Wn.2d at 505 (quoting Bowman v. Webster, 44 Wn.2d 667, 669, 269 P.2d 960 (1954)). 17 RCW 34.12.010. -8-NO. 70749-3-1 / 9 

### jurisdiction." We disagree with this statement. The legislature has granted ALJs subject matterjurisdiction to conduct hearings and enter orders in administrative 

### proceedings.18 The WAPA provides the superiorcourtwith itsappellate authority to review an agency decision.19 The parties' procedural errors do notchangethis 

### subject matter jurisdiction.20 Rather, a party making an untimely request for hearing "'may not maintain such action or avail itself of the [tribunal's] 

### jurisdiction.'"21 Here, Saarela could not avail herself of the ALJ'sjurisdiction to review case number 150771 because she waited too long to request a review hearing. 

### "All time requirements necessarily involve ajudgmentby the legislature or a court as to the amount of time necessary to achieve the legislative or judicial 

### purpose."22 DSHS, acting underdelegated legislature authority, adopted a 30- day limitations period for requesting review of the Department'sfinding of abuse of a vulnerable adult. Here, OAH did not receive Saarela's requestfor a hearing
on case number 150771 until November 29, 2011—38 days after the date the

18 RCW 34.05.425(1), .461; RCW 34.12.060. 19 RCW 34.05.514(1). 

### 20 Hous. Auth. v. Bin. 163 Wn. App. 367, 373-74, 260 P.3d 900 (2011) 

### (citing Tacoma Rescue Mission v. Stewart, 155Wn. App. 250, 254 n.9, 228 P.3d 1289(2010)). 

### 21 Bin, 163 Wn. App. at 374 (quoting Tacoma Rescue Mission, 155 Wn. App. at254 n.9). 22 Medina v. Pub. Util. Dist. No. 1 ofBenton County. 147 Wn.2d 303, 318, 53 P.3d 993 (2002). -9-NO. 70749-3-1/10
Department mailed her the notice of its finding that she had mentally abused her mother. Despite the Department's clear notice of its findings and of Saarela's rights ofappeal, Saarela failed to request a hearing on case number 150771 in a timely manner. The Board properly dismissed her requestfor review ofthis case. CONCLUSION Because Saarela untimely requested an administrative hearing and the Department met its statutory obligations and did not waive the untimeliness of Saarela's application, we affirm.

WE CONCUR:



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