Counsel For Adult Protective Services Takes Hardline On Deadline to Request Hearings

Counsel for Adult Protective Services [“APS”] has been taking a hard line regarding the thirty (30) day deadline under WAC 388-71-01240 in which an alleged perpetrator “must” request a hearing regarding a finding of abuse or neglect. The Department’s position is that any untimely request should automatically be dismissed for lack of jurisdiction and that the Office of Administrative Hearings [“OAH”] has no authority to rule otherwise. Note that this is at the OAH level where this argument is being made.However, Washington expressly considers whether appellant’s due process was violated, including because of the form of the APS notice under Pal v. Washington State Dep't of Soc. & Health Servs., 185 Wn. App. 775, 783, 342 P.3d 1190 (2015).In contrast, “good cause” appears to be a remedy available under WAC 388-02, though the Department strenuously opposes it at the OAH level.But the Department previously conceded that an alleged perpetrator’s delay in requesting a hearing can be excused by the ALJ for “good cause” under WAC 388-02-0020 in Ryan v. State, Dept. of Social and Health Services, 171 Wn.App. 454, 464, 287 P.3d 629 (2012), notwithstanding its current position. Ryan did not have to analyze this argument because it reversed on other grounds, besides the Department’s concession.Can the Department be estopped from taking this position now at the OAH level? WAC 388-02-0495 defines equitable estoppel in the context of DHSH hearings, specifically as a defense to prevent the Department from taking some action against the Appellant. Thus, it is relief that the ALJ may grant.WAC 388-02-0495(2) identifies the five elements of equitable estoppel, with the standard of proof being clear and convincing evidence, as follows:(a) The department made a statement or took an action or failed to take an action, which is inconsistent with a later claim or position by the department. For example, the department gave you money based on your application, then later tells you that you received an overpayment and wants you to pay the money back based on the same information.(b) You reasonably relied on the department's original statement, action or failure to act. For example, you believed the department acted correctly when you received money.(c) You will be injured to your detriment if the department is allowed to contradict the original statement, action or failure to act. For example, you did not seek help from health clinics or food banks because you were receiving benefits from the department, and you would have been eligible for these other benefits.(d) Equitable estoppel is needed to prevent a manifest injustice. Factors to be considered in determining whether a manifest injustice would occur include, but are not limited to, whether:(i) You cannot afford to repay the money to the department;(ii) You gave the department timely and accurate information when required;(iii) You did not know that the department made a mistake;(iv) You are free from fault; and(v) The overpayment was caused solely by a department mistake.(e) The exercise of government functions is not impaired. For example, the use of equitable estoppel in your case will not result in circumstances that will impair department functions.Here the Department conceded its jurisdictional argument in the public record, in Ryan, inconsistent with its position at the OAH level. Alleged perpetrators should be able to reasonably rely on the Department’s prior concession in the public record, otherwise she/he will be permanently and irrevocably injured in being denied hearing on the merits if the Department is allowed to contradict its prior concession, and equitable estoppel is needed to prevent this manifest injustice. The Department will continue to function even if an alleged perpetrator is able to proceed to a hearing on the merits, and it will have the same rights and procedures available to it as in any other OAH hearing.  WAC 388-71-01240Pal v. Washington State Dep't of Soc. & Health Servs., 185 Wn. App. 775, 783, 342 P.3d 1190 (2015)WAC 388-02-0495WAC 388-02