WSR 01-16-088

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Division of Employment and Assistance Programs)

[ Filed July 25, 2001, 4:00 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 01-06-027.

Title of Rule: WAC 388-450-0155 Does the income of my sponsor affect my eligibility for cash, medical, or food assistance?, 388-450-0156 When am I exempt from the deeming process?, 388-450-0160 How does the department decide how much of my income to count against my benefits?, and 388-450-0060 How does the resources of my sponsor affect my eligibility for cash, medical, or food assistance benefits?

Purpose: Amend existing rules and create new rule to implement state and federal requirements on deeming income and resources for sponsored aliens.

Statutory Authority for Adoption: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.059, 74.04.510, and 74.08A.110.

Statute Being Implemented: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.059, 74.04.510, and 74.08A.110.

Summary: WAC 388-450-0155 informs clients when the department must deem the income of an alien's sponsor to the alien. WAC 388-450-0156 informs clients when the department does not have to deem the income or resources of an alien's sponsor to the alien. WAC 388-450-0160 informs clients how the department calculates the amount of a sponsor's income we count to determine the alien's eligibility and benefits. WAC 388-470-0060 informs clients how the department calculates the amount of a sponsor's resources we count to determine the alien's eligibility.

Reasons Supporting Proposal: State and federal law requires the department to deem the income and resources of an alien's sponsor for cash, medical, and food assistance programs unless certain conditions exist.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: John Camp, Division of Employment and Assistance Programs, P.O. Box 45480, Olympia, WA 98504-5480, (360) 413-3232.

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

Rule is necessary because of federal law, 7 C.F.R. 273.4.

Explanation of Rule, its Purpose, and Anticipated Effects: WAC 388-450-0155 informs clients when the department must deem the income of an alien's sponsor to the alien. WAC 388-450-0156 informs clients when the department does not have to deem the income or resources of an alien's sponsor to the alien. WAC 388-450-0160 informs clients how the department calculates the amount of a sponsor's income we count to determine the alien's eligibility and benefits. WAC 388-470-0060 informs clients how the department calculates the amount of a sponsor's resources we count to determine the alien's eligibility.

Proposal Changes the Following Existing Rules: This proposal limits when the department counts the income of an alien when we determine an alien's eligibility for assistance. The proposal also sets criteria for when a client is exempt from the deeming process.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The changes as a result of these rules do not affect small businesses.

RCW 34.05.328 does not apply to this rule adoption. These rules do not meet the definition of a significant legislative rule.

Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on September 4, 2001, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Kelly Cooper, DSHS Rules Coordinator, by August 30, 2001, phone (360) 664-6094, TTY (360) 664-6178, e-mail coopeKD@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by September 4, 2001.

Date of Intended Adoption: No earlier than September 5, 2001.

July 23, 2001

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

2949.4
AMENDATORY SECTION(Amending WSR 98-16-044, filed 7/31/98, effective 9/1/98)

WAC 388-450-0155   ((Deeming)) Does the income((--Alien sponsorship.)) of my sponsor affect my eligibility for cash, medical, or food assistance?   ((This section applies to TANF/SFA and GA programs.

(1) Deeming is the process of determining the amount of an alien's sponsor's income available to the alien.

(2) Any alien whose sponsor is a public or private organization is ineligible for assistance for three years from the date of entry for permanent residence into the United States, unless the agency or organization is:

(a) No longer in existence; or

(b) Has become unable to meet the alien's needs.

(3) A sponsor is any individual or public or private organization who executes an affidavit or similar agreement on behalf of an alien (who is not the dependent child of the sponsor or the sponsor's spouse) as a condition of the alien's entry into the United States.

(a) The affidavit or agreement is irrevocable, and

(b) Extends for a minimum of three years after the alien's entry for permanent residence into the United States.

(4) For a period of three years following entry for permanent residence into the United States, an individually sponsored alien is responsible for:

(a) Providing the department with any information and documentation necessary to determine the income of the sponsor that can be deemed available to the alien; and

(b) Obtaining any cooperation necessary from the sponsor.

(5) For all subsections in this section, the income of an individual sponsor (and the sponsor's spouse if living with the sponsor) is deemed to be the unearned income of an alien for three years following the alien's entry for permanent residence into the United States.

(6) Monthly income deemed available to the alien from the individual sponsor or the sponsor's spouse not receiving TANF/SFA or SSI is:

(a) The sponsor's total monthly unearned income, added to the sponsor's total monthly earned income reduced by twenty percent (not to exceed one hundred seventy-five dollars) of the total of any amounts received by the sponsor in the month as wages or salary or as net earnings from self-employment, plus the full amount of any costs incurred in producing self-employment income in the month.

(b) The amount described in (a) of this subsection reduced by:

(i) The basic requirements standard for a family of the same size and composition as the sponsor and those other persons living in the same household as the sponsor claimed by the sponsor as dependents to determine the sponsor's federal personal income tax liability but who are not TANF/SFA recipients;

(ii) Any amounts actually paid by the sponsor to persons not living in the household claimed by the sponsor as dependents to determine the sponsor's federal personal income tax liability; and

(iii) Actual payments of spousal maintenance or child support with respect to persons not living in the sponsor's household.

(7) In any case where a person is the sponsor of two or more aliens, the sponsor's income is divided equally among the aliens to the extent that the income would be deemed the income of any one of the aliens under provisions of this section.

(8) The income deemed to a sponsored alien in determining the need of other unsponsored members of the alien's family is not considered except to the extent that the income is actually available.

(9) For the GA-U program, the alien's sponsor's income is deemed as available to the alien as provided for the TANF/SFA program:

(a) At application, for applications filed on or after July 8, 1994. For the purposes of this rule, re-application filed following a break in assistance of thirty days or more is considered an application; and

(b) For all other GA-U clients, the income of an alien's sponsor is not deemed as available to the client)) The United States Immigration and Naturalization Service (INS) makes most immigrants have a sponsor to enter the country as a permanent resident. A sponsor is a person or agency who agreed to meet the needs of the sponsored person. The department uses a process called deeming to count part of the sponsor's income as available to the person they sponsored.

(1) If INS required your sponsor to sign the Affidavit of Support form I-864 or I-864A, we count some of your sponsor's income against your cash, food assistance, and medical benefits. We do not count your sponsor's income if you are exempt from the deeming process under WAC 388-450-0156.

(2) If your sponsor's spouse signed the affidavit of support, we count some of their income against your cash, food assistance, and medical benefits. We do not count the income of your sponsor's spouse if you are exempt from the deeming process under WAC 388-450-0156.

(3) You must cooperate with the deeming process in order to be eligible for benefits. You must do the following to cooperate with the process.

(a) Give us the name and address of your sponsor;

(b) Get your sponsor to cooperate with us while we decide if you are eligible for benefits; and

(c) Give us the information and proof we need to decide:

(i) If we must deem income to your assistance unit (AU); and

(ii) The amount of income we deem to your AU.

(4) Even if your sponsor is not supporting you, you must still cooperate with the deeming process. We help you get the information you need to determine your eligibility and benefits.

(5) If you are not eligible for benefits because we do not have the information we need about your sponsor, we do not delay benefits to the unsponsored people in your AU who are eligible for benefits. We do not count your needs when we decide if your AU is eligible for benefits, but we count:

(a) All earned or unearned income you have that is not excluded under WAC 388-450-0015; and

(b) All deductions you would be eligible for under chapter 388-450 WAC.

(6) If you refuse to cooperate with the deeming process, the other adult members in your AU must cooperate. If the same person sponsored everyone in your AU, your AU is not eligible for benefits until someone in your AU cooperates with the deeming process.

(7) If a sponsored alien does not want benefits for themselves, but they must be in someone's AU under chapter 388-408 WAC, the alien is an ineligible member of the AU. We do not deem the income of the alien's sponsor or the sponsor's spouse to the AU.

(8) We decide how much of your sponsor's income to count against your benefits under WAC 388-450-0160.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057 and 74.08.090. 98-16-044, 388-450-0155, filed 7/31/98, effective 9/1/98.]


NEW SECTION
WAC 388-450-0156   When am I exempt from the deeming process?   (1) If you meet any of the following conditions, you are permanently exempt from the deeming process and we do not count your sponsor's income or resources against your benefits:

(a) The Immigration and Nationality Act (INA) does not require you to have a sponsor. Aliens, who are not required to have a sponsor include those with the following status with Immigration and Naturalization Service (INS):

(i) Refugee;

(ii) Parolee;

(iii) Asylee;

(iv) Cuban entrant; or

(v) Haitian entrant.

(b) You were sponsored by an organization or group as opposed to an individual;

(c) You do not meet the alien status requirements to be eligible for benefits under chapter 388-424 WAC;

(d) You have worked or can get credit for forty qualifying quarters of work under Title II of the Social Security Act. We do not count a quarter of work toward this requirement if the person working received TANF, food stamps, SSI, CHIP, or nonemergency Medicaid benefits. We count a quarter of work by the following people toward your forty qualifying quarters:

(i) Yourself;

(ii) Each of your parents for the time they worked before you turned eighteen years old (including the time they worked before you were born); and

(iii) Your spouse if you are still married or your spouse is deceased.

(e) You become a United States (U.S.) Citizen;

(f) Your sponsor is dead; or

(g) If INS or a court decides that you, your child, or your parent was a victim of domestic violence from your sponsor and:

(i) You no longer live with your sponsor; and

(ii) Leaving your sponsor caused your need for benefits.

(2) You are exempt from the deeming process while you are in the same AU as your sponsor;

(3) For state family assistance, general assistance, the food assistance program for legal immigrants, and state-funded medical assistance for legal immigrants you are exempt from the deeming process if:

(a) Your sponsor signed the affidavit of support more than five years ago;

(b) Your sponsor becomes permanently incapacitated; or

(c) You are a qualified alien according to WAC 388-424-0005 and you:

(i) Are on active duty with the U.S. armed forces or you are the spouse or unmarried dependent child of someone on active duty;

(ii) Are an honorably-discharged veteran of the U.S. armed forces or you are the spouse or unmarried dependent child of a honorably-discharged veteran;

(iii) Were employed by an agency of the U.S. government or served in the armed forces of an allied country during a military conflict between the U.S. and a military opponent; or

(iv) Are a victim of domestic violence and you have petitioned for legal status under the Violence Against Women Act.

(4) If you, your child, or your parent was a victim of domestic violence, you are exempt from the deeming process for twelve months if:

(a) You no longer live with the person who committed the violence; and

(b) Leaving this person caused your need for benefits.

(5) If your AU has income at or below one hundred thirty percent of the Federal Poverty Level (FPL), you are exempt from the deeming process for twelve months. For this rule, we count the following as income to your AU:

(a) Earned and unearned income your AU receives from any source; and

(b) Any noncash items of value such as free rent, commodities, goods, or services you receive from an individual or organization.

(6) If you are exempt from the deeming process because your AU does not have income over one hundred thirty percent of the FPL, we give the United States Attorney General the following information:

(a) The names of the sponsored people in your AU;

(b) That you are exempt from deeming due to your income; and

(c) Your sponsor's name.

(7) If you are exempt from the deeming process, we count the following as income to determine your eligibility and benefits:

(a) Your AU's earned and unearned income; and

(b) Any cash your sponsor or others give your AU.

[]


AMENDATORY SECTION(Amending WSR 99-16-024, filed 7/26/99, effective 9/1/99)

WAC 388-450-0160   ((Sponsored alien--Food assistance.)) How does the department decide how much of my sponsor's income to count against my benefits?   ((For food assistance, this section applies to aliens for whom a sponsor has signed an affidavit of support or similar statement on or after February 1, 1983:

(1) For the purpose of this rule, income of the sponsor means:

(a) Income of the sponsor; and

(b) Income of the sponsor's spouse when the spouse lives with the sponsor.

(2) Portions of the income of a sponsor is counted as unearned income and applied to the food assistance benefits of a sponsored alien. The income of an alien's sponsor is available for three years following the alien's admission for permanent residence to the U.S.

(3) The income of the alien's sponsor must be verified by the client at application or recertification for food assistance.

(4) The available income is computed as follows:

(a) Total monthly earned and unearned income of the sponsor:

(i) Minus twenty percent of the gross earned income; and

(ii) Minus the amount of the gross income eligibility standard for a household size equal to the sponsor, the sponsor's spouse, and all dependents.

(b) Plus any actual money paid to the alien by the sponsor or sponsor's spouse in excess of the amount computed in subsection (4)(a) of this section is treated as unearned income.

(5) The net income in subsection (4) of this section is available to a sponsored alien who:

(a) Applies for and receives food assistance; or

(b) Is recertified for food assistance.

(6) If the sponsored alien can show the sponsor is also sponsoring other aliens, the available income is divided by the number of sponsored aliens applying for, or receiving food assistance.

(7) If an alien changes sponsors during the certification period, available income is reviewed based on the required information about the new sponsor as soon as possible after the information is supplied and verified by the client)) (1) We must count some of your sponsor's income as unearned income to your assistance unit (AU) if:

(a) Your sponsor signed the INS affidavit of support form I-864 or I-864A; and

(b) You are not exempt from the deeming process under WAC 388-450-0156.

(2) In addition to counting your sponsor's income, we must also count the income of your sponsor's spouse if they signed the affidavit of support.

(3) We take the following steps to decide the monthly amount of your sponsor's income we deem as your income and count against your benefits:

(a) We start with your sponsor's earned and unearned income that is not excluded under WAC 388-450-0015;

(b) If your sponsor's spouse signed the affidavit of support, we add all of the spouse's earned and unearned income that is not excluded under WAC 388-450-0015;

(c) We subtract twenty percent of the above amount that is earned income under WAC 388-450-0030;

(d) For cash and medical assistance, we subtract the need standard under WAC 388-478-0015. We count the following people who live in your sponsor's home as a part of your sponsor's AU to decide the need standard:

(i) Your sponsor;

(ii) Your sponsor's spouse; and

(iii) Everyone else in their home that they could claim as a dependent for Federal income tax purposes.

(e) For food assistance, we subtract the maximum gross monthly income under WAC 388-478-0060. We count the following people that live in your sponsor's home as a part of your sponsor's AU to decide the maximum gross monthly income:

(i) Your sponsor;

(ii) Your sponsor's spouse; and

(iii) Everyone else in their home that they could claim as a dependent for Federal income tax purposes.

(f) If you can show that your sponsor has sponsored other people as well, we divide the result by the total number of people who they sponsored.

(4) After we have decided how much income to deem to you, we count the greater amount of the following against your benefits:

(a) The amount of income calculated from the deeming process; or

(b) The amount of money your sponsor actually gives you for your needs.

[Statutory Authority: RCW 74.08.090 and 74.04.510. 99-16-024, 388-450-0160, filed 7/26/99, effective 9/1/99. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057 and 74.08.090. 98-16-044, 388-450-0160, filed 7/31/98, effective 9/1/98.]

2950.2
AMENDATORY SECTION(Amending WSR 98-16-044, filed 7/31/98, effective 9/1/98)

WAC 388-470-0060   How do the resources of ((an alien's)) my sponsor((.)) affect my eligibility for cash, medical, or food assistance benefits?   (((1) Resources of a sponsor and the spouse who lives with the sponsor affects the eligibility of an alien for three years from the alien's date of entry into the U.S.

(2) A sponsor is any person or organization that signed an affidavit of support on behalf of the alien to allow the alien entry for permanent residence.

(3) The sponsor's countable resources are determined by:

(a) Totaling the countable resources of the sponsor and the sponsor's spouse (if they are living together); and

(b) Subtracting fifteen hundred dollars.

(4) Subsection (3) above does not apply when:

(a) The alien is receiving cash or food assistance as a member of the sponsor's assistance unit;

(b) An alien is sponsored by an organization; or

(c) An alien is not required to have a sponsor.

(5) The sponsor's countable resources are counted towards the alien's resource limit until:

(a) The three year time period expires; or

(b) The sponsor dies.

(6) For medical programs, the resources of the sponsor are excluded resources unless:

(a) The sponsor is a member of the alien's assistance unit; or

(b) The sponsor actually contributes resources to the alien's assistance unit)) The United States Immigration and Naturalization Service (INS) requires that most immigrants have a sponsor to enter the country as a permanent resident. A sponsor is a person or agency who agreed to meet the needs of the sponsored person. The department uses a process called deeming to count part of the sponsor's resources to the person they sponsored.

(1) If INS required your sponsor to sign the affidavit of support form I-864 or I-864A, we count some of your sponsor's resources when we decide if you are eligible for cash, medical, or food assistance benefits. We do not count your sponsor's resources if you are exempt from the deeming process under WAC 388-450-0156.

(2) If your sponsor's spouse signed the affidavit of support, we count some of their resources when we decide if you are eligible for cash, medical, or food assistance benefits. We do not count the resources of your sponsor's spouse if you are exempt from the deeming process under WAC 388-450-0156.

(3) You must cooperate with the deeming process in order to be eligible for benefits. You must do the following to cooperate with the process:

(a) Give us the name and address of your sponsor;

(b) Get your sponsor to cooperate with us while we determine your eligibility and benefits; and

(c) Give us the information and proof we need to decide:

(i) If we must deem resources to your assistance unit (AU); and

(ii) The amount of resources we deem to your AU.

(4) If you refuse to cooperate with the deeming process, the other adult members in your AU must cooperate. If the same person sponsored everyone in your AU, your entire AU is not eligible for benefits until you or another member of your AU cooperates.

(5) We decide the amount of your sponsor's resources to count by:

(a) Totaling the countable resources of the sponsor and the sponsor's spouse (if the spouse signed the affidavit of support) under chapter 388-470 WAC;

(b) Subtracting fifteen hundred dollars; and

(c) Counting the remaining amount as a resource that is available to your AU.

(6) If you can show that your sponsor has sponsored other people as well, we divide the result by the total number of people who they sponsored.

(7) We continue to count your sponsor's resources when we determine your eligibility for benefits until you are exempt from deeming under WAC 388-450-0156.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057 and 74.08.090. 98-16-044, 388-470-0060, filed 7/31/98, effective 9/1/98. Formerly WAC 388-510-1030.]

Washington State Code Reviser's Office