WSR 97-13-089

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Economic Services Administration)

(Public Assistance)

[Filed June 18, 1997, 10:44 a.m.]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule: WAC 388-49-020 Definitions.

Purpose: Include as ineligible household members persons who have a felony conviction involving possession, use, or distribution of a controlled substance occurring after August 21, 1996, unless the person is convicted of use or possession of a controlled substance and (a) was determined chemically dependent by a state-certified assessment agency; (b) is participating in or completed a rehabilitation plan consisting of chemical dependency treatment and vocation services; and (c) was not previously convicted of a felony for possession or use of a controlled substance within three years of the latest conviction. Adds a definition for "able-bodied adults without dependents" means adults eighteen to fifty years of age who do not have any dependents and are mentally and physically able to work. Corrects the definition of "fair hearing."

Statutory Authority for Adoption: RCW 74.04.510.

Statute Being Implemented: Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Sections 115 and 824; RCW 74.08.025.

Summary: Public Law 104-193 does not allow persons convicted of a felony involving possession, use, or distribution after August 21, 1996, to be eligible for food stamp benefits. RCW 74.08.025, as amended this year, adds an exception to the federal law.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Wendy Forslin, Division of Assistance Programs, Lacey, Washington, (360) 413-3083.

Name of Proponent: Department of Social and Health Services, governmental.

Rule is necessary because of federal law, Public Law 104-193, Sections 115 and 824.

Explanation of Rule, its Purpose, and Anticipated Effects: Includes as ineligible household members persons who have a felony conviction involving possession, use, or distribution of a controlled substance occurring after August 21, 1996. However, an exception is being added that will allow certain persons to be eligible for benefits even though they have a felony conviction as described above.

Persons convicted of this type of felony that do not meet the exception criteria will not be eligible for benefits. This means that ineligible persons income and resources are considered available to the food stamp household.

Describes who is considered an "able-bodied adult without dependents."

Proposal Changes the Following Existing Rules: WAC 388-49-020, "ineligible household member" - adds an exception that will allow some persons convicted of a felony involving use, possession, and distribution of a controlled substance after August 21, 1996, to be eligible for benefits. Previously, there were no exceptions to this rule.

Adds a definition of "able-bodied adults without dependents." There was no such group prior to Public Law 104-193 (1996).

No small business economic impact statement has been prepared under chapter 19.85 RCW. This change impacts the food stamp program and does not affect small businesses.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. This amendment relates to client financial eligibility, which is exempt from the requirements in RCW 34.05.328 (as amended in 1997).

Hearing Location: Lacey Government Center (behind Tokyo Bento restaurant), 1009 College Street S.E., Room 104-A, Lacey, WA 98503, on July 22, 1997, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Leslie Baldwin by July 11, 1997, TTY (360) 902-8324, (360) 902-7540, e-mail lbaldwin@dshs.wa.gov.

Submit Written Comments to and Identify WAC Numbers: Leslie Baldwin, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, FAX (360) 902-8292, by July 22, 1997.

Date of Intended Adoption: No sooner than July 23, 1997.

June 18, 1997

Merry A. Kogut, Manager

Rules and Policies Assistance Unit

AMENDATORY SECTION (Amending WSR 97-06-096, filed 3/4/97, effective 4/4/97)

WAC 388-49-020 Definitions. "Able-bodied adults without dependents" means adults eighteen to fifty years of age who do not have any dependents and are mentally and physically able to work.

"Administrative disqualification hearing" means a formal hearing to determine whether or not a person committed an intentional program violation.

"Administrative error overissuance" means any overissuance caused solely by:

(1) Department action or failure to act when the household properly and accurately reported all the household's circumstances to the department; or

(2) Department failure to timely implement an intentional program violation disqualification; or

(3) For households determined categorically eligible under WAC 388-49-180(1), department action or failure to act which resulted in the household's improper eligibility for public assistance, provided a claim can be calculated based on a change in net food stamp income and/or household size.

"Administrative law judge" means an employee of the office of administrative hearings empowered to preside over adjudicative proceedings.

"Aid to families with dependent children (AFDC) program" means the federally funded public assistance program for dependent children and their families authorized under Title IV-A of the Social Security Act.

"Allotment" means the total value of coupons a household is certified to receive during a calendar month.

"Application process" means the filing and completion of an application form, interview or interviews, and verification of certain information.

"Authorized representative" means an adult nonhousehold member sufficiently aware of household circumstances designated, in writing, by the head of the household, spouse, or other responsible household member to act on behalf of the household.

"Beginning months" means the first month the household is eligible for benefits, and the month thereafter. The first beginning month cannot follow a month in which a household was certified eligible to receive benefits.

"Benefit level" means the total value of food stamps a household is entitled to receive based on household income and circumstances.

"Boarder" means an individual residing with the household, except a person described under WAC 388-49-190 (2)(a), (b), or (c) who is a person:

(1) Paying reasonable compensation to the household for lodging and meals; or

(2) In foster care.

"Budget month" means the first month of the monthly reporting cycle; the month for which the household reports their circumstances.

"Certification period" means definite period of time within which the household has been determined eligible to receive food stamps.

"Child" means someone seventeen years of age or younger, and under parental control.

"Collateral contact" means oral contact in person or by telephone with someone outside of the household to confirm the household's circumstances.

"Commercial boarding home" means an enterprise offering meals and lodging for compensation with the intent of making a profit.

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

"Dependent care deduction" means costs incurred by a household member for care provided by a nonhousehold member when the care is necessary for a household member to seek, accept, or continue employment, or attend training or education preparatory to employment.

"Destitute household" means a household with a migrant or seasonal farmworker with little or no income at the time of application and in need of immediate food assistance.

"Disabled person" means a person who meets one of the following criteria:

(1) Receives Supplemental Security Income (SSI) under Title XVI of the Social Security Act;

(2) Receives disability or blindness payments under Titles I, II, XIV, or XVI of the Social Security Act;

(3) Is a veteran:

(a) With service-connected or nonservice-connected disability rated or paid as total under Title 38 of the United States Code (USC); or

(b) Considered in need of regular aid and attendance, or permanently housebound under Title 38 of the USC.

(4) Is a surviving:

(a) Spouse of a veteran and considered in need of aid and attendance, or permanently housebound; or

(b) Child of a veteran and considered permanently incapable of self-support under Title 38 of the USC;

(5) A surviving spouse or child of a veteran and:

(a) Entitled to compensation for service-connected death or pension benefits for a nonservice-connected death under Title 38 of the USC; and

(b) Has a disability considered permanent under section 221(i) of the Social Security Act.

(6) Receives disability retirement benefits from a federal, state, or local government agency because of a disability considered permanent under section 221(i) of the Social Security Act;

(7) Receives an annuity payment as part of the Railroad Retirement Act of 1974 under:

(a) Section 2 (a)(1)(iv) and is determined eligible to receive Medicare by the Railroad Retirement Board; or

(b) Section 2 (a)(1)(v) and is determined disabled based on the criteria under Title XVI of the Social Security Act.

(8) Is a recipient of disability-related medical assistance under Title XIX of the Social Security Act.

"Documentary evidence" means written confirmation of a household's circumstances.

"Documentation" means the process of recording the source, date, and content of verifying information.

"Elderly person" means a person sixty years of age or older.

"Eligible food" means:

(1) For a homeless food stamp household, meals prepared and served by an authorized homeless meal provider; or

(2) For a blind or a disabled resident, meals prepared and served by a group living arrangement facility.

"Entitlement" means the food stamp benefit a household received including a disqualified household member.

"Equity value" means fair market value less encumbrances.

"Expedited services" means providing food stamps within five calendar days to an eligible household which:

(1) Has liquid resources of one hundred dollars or less; and

(2) Has gross monthly income under one hundred fifty dollars; or

(3) Has combined gross monthly income and liquid resources which are less than the household's current monthly rent or mortgage and either the:

(a) Standard utility allowance as set forth in WAC 388-49-505; or

(b) Limited utility allowance; or

(c) Actual utility costs, whichever is higher; or

(4) Includes all members who are homeless individuals; or

(5) Includes a destitute migrant or seasonal farmworker.

"Fair hearing" means an adjudicative proceeding in which the ((department)) presiding officer hears and decides an applicant/recipient's appeal from the department's action or decision.

"Fair market value" means the value at which a prudent person might sell the property if the person was not forced to sell.

"Fleeing felon" means a person who is:

(1) Fleeing to avoid prosecution, or custody or confinement after conviction, for a crime, or attempt to commit a crime, that is a felony under the law of the place from which the person is fleeing; or

(2) Violating a condition of probation or parole imposed under a federal or state law as determined by an administrative body or court of competent jurisdiction.

"Food coupon" means any coupon, stamp, type of certificate, authorization card, cash or check issued in lieu of a coupon, or access device, including an electronic benefit transfer card or personal identification number.

"Food coupon authorization (FCA) card" means the document issued by the local or state office to authorize the allotment the household is eligible to receive.

"Food stamp monthly reporting cycle" means the three-month reporting cycle consisting of the budget month, the process month, and the payment month.

"Gross income eligibility standard" means one hundred thirty percent of the federal poverty level for the forty-eight contiguous states.

"Group living arrangement" means a public or private nonprofit residential setting which:

(1) Serves not more than sixteen blind or disabled residents as defined under WAC 388-49-020(((19))), "disabled person"; and

(2) Is certified by the appropriate state agency under section 1616(e) of the Social Security Act.

"Head of household" means the person designated by the household to be named on the case file, identification card, and FCA card.

"Home visit" means a personal contact at the person's residence by a department employee. The home visit shall be scheduled in advance with the household.

"Homeless individual" means a person lacking a fixed and regular nighttime residence or a person whose primary nighttime residence is a:

(1) Supervised shelter designed to provide temporary accommodations;

(2) Halfway house or similar institution providing temporary residence for persons needing or coming out of institutionalization;

(3) Temporary accommodation in the residence of another person for not more than ninety days; or

(4) Place not designed for, or ordinarily used as, a regular sleeping accommodation for humans.

"Homeless meal provider" means a public or private nonprofit establishment (for example, soup kitchen, temporary shelter, mission, or other charitable organizations) feeding homeless persons, approved by the division of ((income)) assistance (((DIA))) programs (DAP) and authorized by food and consumer service (FCS).

"Household" means the basic client unit in the food stamp program.

"Household disaster" means when food coupons, food purchased with food coupons, or food coupon authorization cards are destroyed by a natural disaster, such as flood, fire, etc.

"Identification card" means the document identifying the bearer as eligible to receive and use food stamps.

"Inadvertent household error overissuance" means any overissuance caused by either:

(1) Misunderstanding or unintended error by a household:

(a) Not determined categorically eligible under WAC 388-49-180(1); or

(b) Determined categorically eligible under WAC 388-49-180(1) if a claim can be calculated based on a change in net food stamp income and/or household size; or

(((3))) (2) Social Security Administration action or failure to take action which resulted in the household's categorical eligibility, if a claim can be calculated based on a change in net food stamp income and/or household size.

"Ineligible household member" means the member excluded from the food stamp household because of:

(((a))) (1) Disqualification for intentional program violation;

(((b))) (2) Failure to apply for or provide a Social Security number;

(((c))) (3) Failure to comply with work requirements as described under WAC 388-49-360;

(((d))) (4) Status as an ineligible alien;

(((e))) (5) Failure to sign the application attesting to the member's citizenship or alien status; ((or

(f))) (6) Status as a fleeing felon; or

(7) Felony conviction involving possession, use, or distribution of a controlled substance occurring after August 21, 1996 unless the person is convicted of use or possession of a controlled substance and:

(a) Was determined chemically dependent by a state-certified assessment agency;

(b) Is participating in or completed a rehabilitation plan consisting of chemical dependency treatment and vocational services; and

(c) Was not previously convicted of a felony for possession or use of a controlled substance within three years of the latest conviction.

"Initial month" means:

(1) The first month for which a household is issued an allotment; or

(2) The first month for which a household is issued an allotment following any period when the household was not certified due to expired eligibility or termination during a certification period; or

(3) For migrant and seasonal farmworker households, the first month for which the household is issued an allotment when applying more than one calendar month after a prior certification ends.

"Institution" means any place of residence (private or public) providing maintenance and meals for two or more persons.

"Institution of higher education" means any institution normally requiring a high school diploma or equivalency certificate for enrollment. This includes any two-year or four-year college. Also included is any course in a trade or vocational school that normally requires a high school diploma or equivalency for admittance to the course.

"Intentional program violation" means intentionally:

(1) Making a false or misleading statement;

(2) Misrepresenting, concealing, or withholding facts; or

(3) Committing any act constituting a violation of the Food Stamp Act, the food stamp program regulations, or any state statute relating to the use, presentation, transfer, acquisition, receipt, or possession of food stamp coupons or FCAs.

"Intentional program violation overissuance" means any overissuance caused by an intentional program violation.

"Live-in attendant" means a person residing with a household to provide medical, housekeeping, child care, or other similar personal services.

"Lump sum" means money received in the form of a nonrecurring payment including, but not limited to:

(1) Income tax refunds,

(2) Rebates,

(3) Retroactive payments, and

(4) Insurance settlements.

"Mandatory fees" means those fees charged to all students within a certain curriculum. Transportation, supplies, and textbook expenses are not uniformly charged to all students and are not considered as mandatory fees.

"Migrant farmworker" means a person working in seasonal agricultural employment who is required to be absent overnight from the person's permanent residence.

"Net income eligibility standard" means the federal income poverty level for the forty-eight contiguous states.

"Nonhousehold member" means a person who is not considered a member of the food stamp household such as a:

(1) Roomer;

(2) Live-in attendant;

(3) Ineligible student;

(4) Person who does not purchase and prepare meals with the food stamp household except for persons described under WAC 388-49-190(2); or

(5) Person eighteen through fifty years old without dependents who is no longer eligible for food stamps because of time limits.

"Nonstriker" means any person:

(1) Exempt from work registration the day before the strike for reasons other than their employment;

(2) Unable to work as a result of other striking employees, e.g., truck driver not working because striking newspaper pressmen not printing output;

(3) Not part of the bargaining unit on strike but not wanting to cross picket line due to fear of personal injury or death; or

(4) Unable to work because workplace is closed to employees by employer in order to resist demands of employees, e.g., a lockout.

"Offset" means reduce restored benefits by any overissue (claim) owed by the household to the department.

"Overissuance" means the amount of coupons issued to a household in excess of the amount eligible to receive.

"Overpayment" means the same as "overissuance" and shall be the preferred term used in procedures.

"Payment month" means the third month of the budget cycle; the month in which the food stamp allotment is affected by information reported on the monthly report for the budget month.

"Period of intended use" means the period for which an FCA or food coupon is intended to be used.

"Post secondary education" means a school not requiring a high school diploma or equivalency for enrollment. This includes trade school, vocational schools, business colleges, beauty schools, barber schools, etc.

"Principal wage earner" means the household member with the greatest source of earned income in the two months prior to the month of violation of employment and training and voluntary quit provisions, including members not required to register.

"Process month" means the second month of the monthly reporting cycle; the month in which the monthly report is to be returned by the household to the local office.

"Project area" means the county or similar political subdivision designated by the state as the administrative unit for program operations.

"Prospective budgeting" means the computation of a household's income based on income received or anticipated income the household and department are reasonably certain will be received during the month of issuance.

"Prospective eligibility" means the determination of eligibility based on prospective budgeting rules and other household circumstances anticipated during the month of issuance.

"Qualified alien" means an alien who, at the time the alien applies for or receives food stamps, is:

(1) An alien who is lawfully admitted for permanent residence under the Immigration and Nationality Act,

(2) An alien who is granted asylum under section 208 of such Act,

(3) A refugee who is admitted to the United States under section 207 of such Act,

(4) An alien who is paroled into the United States under section 212 (d)(5) of such Act for a period of at least one year,

(5) An alien whose deportation is being withheld under section 243(h) of such Act,

(6) An alien who is granted conditional entry pursuant to section 203 (a)(7) of such Act as in effect prior to April 1, 1980, or

(7) An alien who or an alien whose child:

(a) Has been battered or subjected to extreme cruelty in the United States by a spouse, parent, or the family of the spouse or parent living in the same household and the U.S. Attorney General determines that there is a substantial connection between such battery or cruelty and the alien's need for benefits;

(b) Has a petition under the Violence Against Women Act for adjustment for immigration status approved or pending with Immigration and Naturalization Service; and

(c) Does not reside in the same household as the individual responsible for the battery or extreme cruelty.

"Quality control review" means a review of a statistically valid sample of cases to determine the accuracy of budgeting, issuance, denial, withdrawal, and termination actions taken by the department.

"Quality control review period" means the twelve-month period from October 1 of each calendar year through September 30 of the following calendar year.

"Recent work history" means being employed and receiving earned income in one of the two months prior to the payment month.

"Recertification" means approval of continuing benefits based on an application submitted prior to the end of the current certification period.

"Resident of an institution" means a person residing in an institution that provides the person with the majority of meals as part of the institution's normal service.

"Retrospective budgeting" means the computation of a household's income for a payment month based on actual income received in the corresponding budget month of the monthly reporting cycle.

"Retrospective eligibility" means the determination of eligibility based on retrospective budgeting rules and other circumstances existing in the budget month.

"Roomer" means a person to whom a household furnishes lodging, but not meals, for compensation.

"Seasonal farmworker" means a person working in seasonal agricultural employment who is not required to be absent overnight from the person's permanent residence.

"Shelter costs" means:

(1) Rent or mortgage payments plus taxes on a dwelling and property;

(2) Insurance on the structure only, unless the costs for insuring the structure and its contents cannot be separated;

(3) Assessments;

(4) Utility costs such as heat and cooking fuel, cooling and electricity, water, garbage, and sewage disposal;

(5) Standard basic telephone allowance;

(6) Initial installation fees for utility services; and

(7) Continuing charges leading to shelter ownership such as loan repayments for the purchase of a mobile home including interest on such payments.

"Shelter for battered women and children" means a public or private nonprofit residential facility serving battered women and children.

"Sibling" means a natural or an adopted brother, sister, half brother, half sister, or stepbrother or stepsister.

"Sponsor" means a person who executed an affidavit of support or similar agreement on behalf of an alien as a condition of the alien's admission into the United States as a permanent resident.

"Sponsored alien" means an alien lawfully admitted for permanent residence who has an affidavit of support or similar agreement executed by a person on behalf of the alien as a condition of the alien's admission into the United States as a permanent resident.

"Spouse" means:

(1) Married under applicable state law; or

(2) Living with another person and holding themselves out to the community as husband and wife by representing themselves as such to relatives, friends, neighbors, or trades people.

"Striker" means any person:

(1) Involved in a strike or concerted stoppage of work by employees including stoppage due to expiration of a collective bargaining agreement; or

(2) Involved in any concerted slowdown or other concerted interruption of operations by employees.

"Student" means any person:

(1) At least eighteen but less than fifty years of age;

(2) Physically and mentally fit for employment; and

(3) Enrolled at least half time in an institution of higher education.

"Systematic alien verification for entitlements (SAVE)" means the immigration and naturalization service (INS) program whereby the department may verify the validity of documents provided by aliens applying for food stamp benefits by obtaining information from a central data file.

"Temporary disability" means a nonpermanent physical illness or injury that incapacitates beyond the initial issuance month.

"Thrifty food plan" means the diet required to feed a family of four as determined by the United States Department of Agriculture. The cost of the diet is the basis for all allotments, taking into account the household size adjustments based on a scale.

"Under parental control" means living with any adult other than the parent. A person is not under parental control when that person is:

(1) Receiving an AFDC grant as the person's own payee; or

(2) Receiving, as the person's own payee, gross income equal to, or exceeding, the AFDC grant payment standard as described under WAC 388-250-1400(2).

"Vehicle" means any device for carrying or conveying persons and objects, including travel by land, water, or air.

"Vendor payment" means money payments not owed or payable directly to a household, but paid to a third party for a household expense, such as:

(1) A payment made in money on behalf of a household whenever another person or organization makes a direct payment to either the household's creditors or a person or organization providing a service to the household; or

(2) Rent or mortgage payments, made to landlords or mortgagees by the department of housing and urban development or by state or local housing authorities.

"Verification" means the use of documentation or third-party information to establish the accuracy of statements on the application. Sources of verification shall be documentary evidence, collateral contacts, or a home visit.

[Statutory Authority: RCW 74.04.510, P.L. 104-193 and Sections 803, 821 and 824 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. 97-06-096, 388-49-020, filed 3/4/97, effective 4/4/97. Statutory Authority: RCW 74.04.510. 96-23-022, 388-49-020, filed 11/12/96, effective 1/1/97. Statutory Authority: RCW 74.04.050. 96-06-031 (Order 3947), 388-49-020, filed 2/29/96, effective 4/1/96; 95-19-013 (Order 3894), 388-49-020, filed 9/7/95, effective 10/6/95. Statutory Authority: RCW 74.04.050, 74.04.510, 7 CFR 273.9(c) and 7 CFR 273.1(b). 95-06-028 (Order 3840), 388-49-020, filed 2/22/95, effective 4/1/95. Statutory Authority: RCW 74.04.050, Administrative Notice 94-34 and Public Law 101-624 Section 1725. 94-20-042 (Order 3787), 388-49-020, filed 9/28/94, effective 10/29/94. Statutory Authority: RCW 74.04.050. 94-16-038 (Order 3757), 388-49-020, filed 7/27/94, effective 9/1/94. Statutory Authority: RCW 74.04.510 and 7 CFR 271.2. 93-11-041 (Order 3551), 388-49-020, filed 5/12/93, effective 7/1/93. Statutory Authority: RCW 74.04.050. 92-11-059 (Order 3390), 388-49-020, filed 5/19/92, effective 6/19/92. Statutory Authority: RCW 74.04.510. 91-16-065 (Order 3224), 388-49-020, filed 8/1/91, effective 9/1/91; 91-10-096 (Order 3170), 388-49-020, filed 5/1/91, effective 6/1/91; 90-12-057 (Order 3015), 388-49-020, filed 5/31/90, effective 7/1/90; 89-15 (Order 2854), 388-49-020, filed 8/29/89, effective 9/29/89; 89-07-001 (Order 2770), 388-49-020, filed 3/2/89. Statutory Authority: RCW 74.04.050. 88-16-081 (Order 2662), 388-49-020, filed 8/2/88. Statutory Authority: RCW 74.04.510. 88-08-080 (Order 2618), 388-49-020, filed 4/6/88. Statutory Authority: RCW 74.04.050. 88-02-031 (Order 2575), 388-49-020, filed 12/31/87.]

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