Preproposal statement of inquiry was filed as WSR 98-07-099.

Title of Rule: Chapter 388-265 WAC, Payment of grants and related rules.

Purpose: To consolidate and simplify program and eligibility requirements for cash, food, and medical assistance to comply with criteria in the Governor's Executive Order 97-02.

Statutory Authority for Adoption: RCW 74.08.090.

Statute Being Implemented: RCW 74.08.090.

Summary: The rules include the reasons for assigning and removing a client from protective payee status, the criteria for selecting a payee, and the description of what payees do.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Kay Hanvey, Division Assistance Programs, P.O. Box 45470, Olympia, WA 98504-5470, (360) 413-3100.

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

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The reason these rules are being revised is to comply with the Governor's Executive Order 97-02, to implement regulatory reform. The rules are shortened, clarified, and simplified. Department procedures and contractual elements have been removed.

Proposal Changes the Following Existing Rules: WAC 388-265-1150, 388-265-1155, 388-265-1200, 388-265-1250, 388-265-1275, 388-265-1300, 388-265-1375, 388-265-1450, 388-265-1500, and 388-265-1600.

No small business economic impact statement has been prepared under chapter 19.85 RCW. There is no cost to businesses as the result of these actions.

RCW 34.05.328 does not apply to this rule adoption. These rules are not considered significant rules because they do not change existing policy.

Hearing Location: Lacey Government Center (behind Toyko Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on June 23, 1998, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Paige Wall, phone (360) 902-7540, TTY (360) 902-8324, e-mail pwall@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Paige Wall, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, FAX (360) 902-8292, by June 23, 1998.

Date of Intended Adoption: June 24, 1998.

May 18, 1998

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

AMENDATORY SECTION (Amending WSR 94-10-065, filed 5/3/94, effective 6/3/94)

WAC 388-265-1150  Protective payee--General information. (1) ((The person chosen as the)) A protective payee ((may be:

(a) A relative, friend, neighbor, clergy, or member of a church or community service group;

(b) A person who serves with a voluntary social agency;

(c) A home economist with a public or private organization;

(d) A member of a practical nurse association, or other agency;

(e) For AFDC, a staff member of a public agency administering child welfare, health, rehabilitation, and housing programs;

(f) A department staff member of homemaker services, housekeeping aide program; or

(g) An employee of the department when another suitable person is not available.

(2) An employee of the department shall not serve as payee for a client in the employee's regular caseload.

(3) For a GAU client who is determined by the department to be actively addicted, the department shall select a:

(a) Department approved alcohol/drug treatment or assessment agency;

(b) Designated staff of a community mental health agency;

(c) Social service agency, individual, or corporation who has a written agreement with the department to provide protective payee services;

(d) Judicially appointed guardian or other legal representative when such appointment appears to serve the best interests of the client; or

(e) Department employee.

(4) The department shall give preference to a specialist in home and money management over other department staff.

(5) To avoid conflict of interest, the protective payee may not be:

(a) The office administrator;

(b) The employee determining the financial eligibility of the client;

(c) The employee recommending the protective payee plan;

(d) A vendor of goods and services dealing directly with the client;

(e) A special investigative or resource employee;

(f) The employee authorizing payment for the client; or

(g) For AFDC, any department employee, when the department has legal custody or the responsibility for placement and care of the child.

(6) Standards for selecting a protective payee include, but are not limited to:

(a) Interest and concern in the client's welfare;

(b) Ability to help the client make proper use of the assistance payment;

(c) Accessibility to the client or client's family;

(d) Ability to establish and maintain a positive relationship with the client and client's family; and

(e) Good character and reliability.

(7) To the extent possible, the client shall choose the protective payee, or participate in the selection of the protective payee)) is a person or agency who manages client cash benefits to provide for basic needs - housing, utilities, clothing, child care and food. They may also provide services such as training clients in money management.

(2) Clients are assigned to protective payees for the following reasons:

(a) Emergency or temporary situations where a child is left without a caretaker (TANF/SFA);

(b) Noncooperation with WorkFirst program requirements (TANF/SFA; or

(c) Mismanagement of money.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1150, filed 5/3/94, effective 6/3/94. Formerly parts of WAC 388-33-440 and 388-33-455.]

NEW SECTION

WAC 388-265-1155  Protective payee selection. (1) Clients may ask for a particular protective payee, but the department makes the final choice.

(2) Protective payees must contract with the department, except for employees of the department who are assigned this function as part of their job duties.

(3) A departmental employee acting as protective payee cannot:

(a) Have the client in their caseload,

(b) Have the client in the caseloads of other employees under their supervision,

(c) Be responsible for determining or issuing benefits for the client,

(d) Be the office administrator,

(e) Be a special investigator.

(4) For TANF/SFA, a department employee cannot act as protective payee when the department has legal custody or responsibility for placement and care of the child.

[]

AMENDATORY SECTION (Amending WSR 94-10-065, filed 5/3/94, effective 6/3/94)

WAC 388-265-1200  Emergency ((AFDC)) and temporary protective payees (TANF/SFA). (((1) The department shall make AFDC payment on behalf of a child, in most circumstances, to the parent as the a caretaker relative.

(2) The department may make payment to another person on behalf of a child, when the caretaker relative is not available, or does not have legal custody of the child.

(3) The department may pay AFDC to a person, other than a relative of specified degree, acting for the caretaker relative when the:

(a) Emergency situation is temporary;

(b) Person other than the caretaker relative, lives with, and assumes care and supervision of a child;

(c) Emergent situation deprives a child of the care and supervision of the caretaker relative with whom the child lives;

(d) Emergent situation requires the department to make and carry out new plans for the:

(i) Child's continuing care and support; and

(ii) Transfer of responsibility for the child to a more permanent arrangement.

(4) The emergency payee is not included in the AFDC assistance unit.

(5) The department shall provide the client with written notice of the protective payment as described under WAC 388-265-1550)) An emergency protective payee is assigned when a caretaker relative is not available to take care of and supervise a child due to an emergency.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1200, filed 5/3/94, effective 6/3/94. Formerly WAC 388-33-420 (part).]

AMENDATORY SECTION (Amending WSR 97-02-047, filed 12/30/96, effective 1/30/97)

WAC 388-265-1250  Protective payee or vendor payment due to mismanagement of ((grant)) money. (1) The ((rules in this section do not apply)) decision to assign a person to a protective ((payment for the caretaker relative sanctioned by the department due to the refusal or failure of the caretaker relative to cooperate with:

(a) The job and opportunities and basic skills training program (jobs); or

(b) The office of support enforcement.

(2) The department may use protective or vendor payment for cases in which the client:

(a) Has demonstrated severe difficulty in managing money; and

(b) For AFDC, has the capacity to learn, in a relatively short time, to manage assistance funds to assure the proper care of the child.

(3) The department may authorize protective payment to help improve management and use of money for the best interest of the client.

(4) The department shall base a decision to establish a protective payment plan due to the mismanagement of funds on the evidence contained in the case record. The evidence must be specific and clearly establish the fact that the way in which the funds are used by the client threatens the well-being of the child for AFDC or the GAU/SSI client.

(5) Evidence of mismanagement includes, but is not limited to:

(a) Continued inability to plan and spread necessary expenditures over the usual payment period;

(b) Continued evidence that the child or GAU/SSI client is not properly fed and clothed;

(c) For AFDC, that expenditures are made in such a way as to threaten the chances for healthy growth and development of the child;

(d) Medical or psychological evaluations;

(e) An alcohol/drug assessment which establishes incapacity due to alcoholism or drug addiction;

(f) Observation of gross physical conditions such as extensive paralysis, serious mental retardation, continued disorientation, or severe memory loss;

(g) Persistent and deliberate failure to meet obligations for rent, food, and other essentials; and

(h) Repeated evictions or compiling of debts against current income.

(6) The department shall provide social services assistance to accomplish the educational and constructive purposes of the protective payment plan.

(7) The department shall not use protective or vendor payment when:

(a) The basic problem is insufficient funds rather than management of money; or

(b) A financial problem is due only to an emergent situation.

(8) The department shall provide the client with written notice of the protective payment as described under WAC 388-265-1550.

(9) The department may request the attorney general file a petition in the superior court for the appointment of a guardian for a child eligible for AFDC when the caretaker relative is not using the grant adequately for the needs of the child. Such guardianship, as provided under RCW 74.12.250, shall be:

(a) Special and limited solely for the purpose of safeguarding the assistance grant made for the needs of a child; and

(b) Terminated by the department on termination of the assistance grant, or sooner, upon order of the court)) payee because of mismanagement of funds must be based in law, such as teen parents (RCW 74.04.0052) or on documented evidence in the case file. The documentation must be current and show that the mismanagement threatens the well being of a child on TANF/SFA or of the client. Examples of evidence are:

(a) Department employees or others observe the client or client's children are hungry, ill, or not adequately clothed.

(b) Repeated requests for more money, for example emergency additional requirements, or for basic essentials such as food, utilities, clothing, and housing.

(c) A series of evictions or utility shut offs.

(d) Medical or psychological evaluations.

(e) An ADATSA alcohol/drug assessment which establishes incapacity due to alcoholism or drug addiction.

(f) Nonpayment of an in home child care provider when payment has been issued by the department for that purpose.

(g) Complaints from vendors showing a pattern of failure to pay bills or rent.

(2) A lack of money or a temporary shortage of money because of an emergency does not constitute mismanagement.

(3) When a client has a history of mismanaging money, benefits can be paid directly to vendors or through a protective payee.

[Statutory Authority: RCW 74.04.050, 43.20A.550 and 74.08.090. 97-02-047, § 388-265-1250, filed 12/30/96, effective 1/30/97. Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1250, filed 5/3/94, effective 6/3/94. Formerly parts of WAC 388-33-420, 388-33-430, 388-33-440 and 388-33-455.]

AMENDATORY SECTION (Amending WSR 97-20-128, filed 10/1/97, effective 11/1/97)

WAC 388-265-1275  ((Protective payment--)) Assigning TANF/SFA or GA pregnant or parenting ((or pregnant)) minors to protective payee. ((Refer to RCW 74.04.0052)) Clients are assigned to protective payees if the clients are:

(1) Under age 18; and

(2) Unmarried; and

(e) Pregnant or have a dependent child.

[Statutory Authority: RCW 74.08.090 and 74.04.057. 97-20-128, § 388-265-1275, filed 10/1/97, effective 11/1/97. Statutory Authority: Chapter 74.12 RCW and E2 SHB 2798. 94-20-040 (Order 3785), § 388-265-1275, filed 9/28/94, effective 10/29/94.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION (Amending WSR 94-10-065, filed 5/3/94, effective 6/3/94)

WAC 388-265-1300  Assigning TANF/SFA clients sanctioned for noncooperation or nonparticipation with WorkFirst activities to protective ((payment--AFDC clients sanctioned for failure, or refusal to cooperate with the job opportunities and basic skills training program (jobs))) payees. (1) ((The department shall determine if a client certified to the jobs program has refused, or failed to participate in the jobs program without good cause.

(2) The department shall require protective payment for a client determined by the department to not have good cause for refusing, or failing to cooperate with the jobs program.

(3) The department shall make direct payment to the sanctioned client if the department, after making a reasonable effort, is unable to locate a protective payee.

(4) The department shall select a protective payee following the criteria under WAC 388-265-1500.

(5) The department shall notify the client in writing of protective payment as described under WAC 388-265-1550.

(6) The department shall resume direct payment to the caretaker relative when the department determines that the caretaker relative:

(a) Is participating in jobs as required by the department; or

(b) Has good cause for refusal to participate in jobs Clients in their second month of sanction for noncooperation or nonparticipation in WorkFirst work activities must be assigned to protective payees.

(2) Clients under sanction remain in protective payee status until they cooperate with WorkFirst and the sanction is removed, as long as they are receiving assistance.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1300, filed 5/3/94, effective 6/3/94. Formerly WAC 388-33-450 (part).]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

NEW SECTION

WAC 388-265-1375  Transfer from protective payees to limited guardianship. (1) In emergency cases where a person is physically or mentally unable to manage their own funds, the client is referred to other divisions of the department for full care, including full legal guardianship or other legal representation.

(2) In cases where a child is eligible for TANF/SFA and the caretaker relative does not use the benefits for adequate care of the child, the case can be referred to the attorney general to establish a limited guardianship.

(3) This process is used only if it appears there is a need for services to go beyond two years.

(4) These guardianships are limited to management of DSHS benefits.

(5) The protective payee plan is changed if a guardian is appointed. The guardian is designated as the protective payee.

[]

AMENDATORY SECTION (Amending WSR 94-10-065, filed 5/3/94, effective 6/3/94)

WAC 388-265-1450  Protective payee responsibility and fees. (1) The ((department shall define the)) protective payee's responsibilities ((in writing. The department will provide a copy of the protective payee's responsibilities to:

(a) The protective payee;

(b) The client; and

(c) The case record.

(2) The payee and the department share the responsibility for developing a plan to improve the client's capacity to handle money and to evaluate the client's progress.

(3) The protective payee shall have the authority and responsibility to make decisions about the expenditures of the assistance payment.

(4) The teaching component for AFDC protective payment requires that the caretaker relative participate in the decision making to the extent of the caretaker relative's ability to do so.

(5) The protective payee shall provide an accounting record to the department to verify that they are spending the assistance money on behalf of the client.

(6) The department shall review the protective payee's accounting record and determine the appropriateness of the expenditures.

(7) The protective payee shall return any remaining funds to the department when the protective payee relationship is terminated for any reason)) are to:

(a) Manage client funds to pay bills for basic needs, such as housing and utilities, and as directed in the protective payee plans;

(b) Provide money management for client when this item is included in the protective payee plans;

(c) Urge clients to comply with WorkFirst and other program requirements, such as getting a job or attending school;

(d) Provide reports to the department on client progress.

(2) Protective payee vendors are paid up to forty dollars administrative fees per assigned client per month.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1450, filed 5/3/94, effective 6/3/94. Formerly WAC 388-33-455 (part).]

AMENDATORY SECTION (Amending WSR 94-10-065, filed 5/3/94, effective 6/3/94)

WAC 388-265-1500  Protective payee ((or vendor payee)) plans. (1) ((The department shall review the need for protective payment and the)) A protective payee(('s performance of duties as frequently as indicated by the client's circumstances, but no less than every six months.

(2) The department shall approve a protective or vendor payment plan for AFDC which initially does not exceed a three-month period.

(3) The department may, after the initial review of the AFDC plan, authorize protective payment up to a maximum of twenty-four consecutive months. This plan must be reviewed no less then every six months.

(4) The review shall include an evaluation whether:

(a) Conditions justify continuation, or a modification of the plan;

(b) The protective payee's responsibilities are being carried out appropriately;

(c) The client can be expected to resume the payee function; or

(d) A court appointed guardian or foster care is needed because:

(i) The client cannot learn the payee functions; and

(ii) It appears the plan will continue beyond two years)) plan is developed for each case assigned to a protective payee.

(2) A copy of the plan is provided to:

(a) The protective payee; and

(b) The client.

(3) Protective payee status must be reviewed:

(a) After an initial three month period; and

(b) At least every six months beyond the initial period for on-going cases.

(4) Reviews include evaluation of:

(a) The need for the client to continue in protective payee status;

(b) The need to change the plan;

(c) The client's potential to assume control of their funds (or be removed from protective payee status); and

(d) Protective payee performance.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1500, filed 5/3/94, effective 6/3/94. Formerly parts of WAC 388-33-442, 388-33-448 and 388-33-458.]

AMENDATORY SECTION (Amending WSR 94-10-065, filed 5/3/94, effective 6/3/94)

WAC 388-265-1600  ((Termination of)) Ending protective payee ((or vendor payee payment status and changing payees. (((1) The department may remove a protective payee:

(a) Upon the payee's request;

(b) When a different payee is designated by the department;

(c) When the client is ready to resume the payee function; or

(d) When a judge has appointed a guardian or other legal representative.

(2) Vendor payment is discontinued when:

(a) The department locates a person to serve as protective payee; or

(b) When the client is ready to resume the payee function.

(3) If a guardian is appointed for the client the department shall change the protective payee plan and designate the guardian as the protective payee)) A client may be removed from a protective payee when a:

(1) Protective payee requests the client be reassigned;

(2) Different protective payee is assigned; or

(3) Protective payee is no longer required.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1600, filed 5/3/94, effective 6/3/94. Formerly parts of WAC 388-33-446 and 388-33-457.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

REPEALER

The following section of the Washington Administrative Code is repealed:

WAC 388-265-1400 Vendor payee.

WAC 388-265-1550 Client notification of protective payee or vendor payee.

WAC 388-265-1700 Confidential information--Protective payee or vendor payee.