WSR 05-20-052

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed September 30, 2005, 4:36 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-03-007 and 04-05-034.

Title of Rule and Other Identifying Information: To amend WAC 388-450-0100 Allocating income -- Definitions, 388-450-0106 How does the department count my income if I or someone in my family cannot get assistance because of our alien status?, 388-450-0155 How does being a sponsored immigrant affect my eligibility for cash, medical, and food assistance programs?, 388-450-0156 When am I exempt from deeming?, and 388-450-0160 How does the department decide how much of my sponsor's income to count against my benefits?

To repeal WAC 388-450-0116 How does the department count my income if I cannot get assistance because I am an alien?

To create WAC 388-450-0157 When is my sponsor not liable to repay state or federal benefits?

Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane, behind Goodyear Tire. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6097), on November 8, 2005, at 10:00 a.m.

Date of Intended Adoption: Not earlier than November 9, 2005.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m. November 8, 2005.

Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by November 4, 2005, TTY (360) 664-6178 or phone (360) 664-6097 or by e-mail at schilse@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This revision proposes to clarify and streamline existing rules, reducing the need for policy clarifications.

Reasons Supporting Proposal: The rules governing deeming of a sponsor's income for purposes of determining eligibility for public assistance are among the most complex that department staff are required to administer.

Statutory Authority for Adoption: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090.

Statute Being Implemented: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090.

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

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

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Tom Berry, 1009 College S.E., Lacey, WA 98504, (360) 725-4617.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This proposed rule does not have an economic impact on small businesses, it only affects DSHS clients by outlining the rules clients must meet in order to be eligible for the department's cash assistance or food benefit programs.

A cost-benefit analysis is not required under RCW 34.05.328. These amendments are exempt as allowed under RCW 34.05.328 (5)(b)(vii) which states in-part, "[t]his section does not apply to...rules of the department of social and health services relating only to client medical or financial eligibility and rules concerning liability for care of dependents."

September 27, 2005

Andy Fernando, Manager

Rules and Policies Assistance Unit

3549.4
AMENDATORY SECTION(Amending WSR 04-15-057, filed 7/13/04, effective 8/13/04)

WAC 388-450-0100   Allocating income -- Definitions.   The following definitions apply to the allocation rules for TANF/SFA, RCA, and GA programs:

(1) "Dependent" means a person who:

(a) Is or could be claimed for federal income tax purposes by the financially responsible person; or

(b) The financially responsible person is legally obligated to support.

(2) "Financially responsible person" means a parent, stepparent, adoptive parent, or spouse ((or caretaker relative)).

(3) A "disqualified assistance unit member" means a person who is:

(a) An unmarried pregnant or parenting minor under age eighteen who has not completed a high school education or general education development (GED) certification and is not participating in those educational activities which would lead to the attainment of a high school diploma or GED;

(b) An unmarried pregnant or parenting minor under age eighteen who is not living in a department-approved living situation;

(c) The financially responsible person who does not report to the department within five days of the date it becomes reasonably clear that the absence of a child will exceed ninety days;

(d) A person who has been convicted in federal or state court of having made a fraudulent statement or representation about their place of residence in order to receive assistance from two or more states at the same time as defined in WAC 388-446-0010; and

(e) A person who has been convicted of unlawfully receiving public assistance as defined under WAC 388-446-0005.

(4) "Ineligible assistance unit member" means an individual who is:

(a) Ineligible for cash or medical assistance due to not meeting the citizenship/alien status requirements in WAC 388-424-0010 or ineligible for Basic Food due to not meeting the citizenship/alien status requirements in WAC 388-424-0020;

(b) Ineligible to receive assistance under WAC 388-442-0010 for having been convicted after August 21, 1996, under federal or state law, of possession, use or distribution of a controlled substance;

(c) Ineligible to receive assistance under WAC 388-442-0010 for fleeing to avoid prosecution or custody or confinement after conviction for a crime or attempt to commit a crime;

(d) Ineligible to receive assistance under WAC 388-442-0010 for violating a condition of probation or parole which was imposed under a federal or state law as determined by an administrative body or court of competent jurisdiction;

(e) The spouse of a woman who receives cash benefits from the ((GA-S)) GA program; ((or))

(f) The adult parent of a minor parent's child; or

(g) A sponsored immigrant and otherwise eligible assistance unit member not exempt from deeming who chooses not to apply for benefits for himself and any other non-exempt AU member who makes the same choice.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 04-15-057, 388-450-0100, filed 7/13/04, effective 8/13/04. Statutory Authority: RCW 74.08.090 and 74.04.510. 99-16-024, 388-450-0100, 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, 388-450-0100, filed 7/31/98, effective 9/1/98.]


AMENDATORY SECTION(Amending WSR 04-15-057, filed 7/13/04, effective 8/13/04)

WAC 388-450-0106   How does the department count my income if I or someone in my family cannot get assistance because of ((their)) our alien status?   This section applies to TANF/SFA, RCA, and RMA. We count your income differently if you are applying for medical assistance only((.)) (see WAC 388-408-0055) or for Basic Food (see WAC 388-450-0140).

If you are included in the assistance unit and you are financially responsible for someone, as defined in WAC 388-450-0100, who does not meet the alien requirements described in WAC 388-424-0010 for TANF/SFA or WAC 388-466-0005 for RCA/RMA, we do not count all of your income. We subtract some of it so that you can use that part to help support the people who cannot get assistance. If you cannot get assistance because you do not meet the alien requirements described above but you are financially responsible for someone in the assistance unit, as defined in WAC 388-450-0100, we count some of your income as part of the assistance unit's income. In either case, to figure out how much of your income we count, we take the following seven steps:

(1) We start by only counting fifty percent of your earned income, as defined in WAC 388-450-0030;

(2) We add all of your unearned income, as defined in WAC 388-450-0025.

(3) We subtract the difference between the following payment standards (payment standards can be found in WAC 388-478-0020):

(a) One that includes both eligible assistance unit members and those who cannot get assistance because of their alien status; and

(b) One that includes only the eligible assistance unit members.

(4) We subtract the payment standard for the number of people who are ineligible for reasons other than alien status, as defined in WAC 388-450-0100 (4)(b) through (f).

(5) We subtract any court or administratively ordered child support you pay for legal dependents. This includes both current and back support. The amount cannot be more than the need standard in WAC 388-478-0015 for the number of dependents.

(6) We subtract any employment-related child care expenses you have.

(7) Then, we count whatever is left as unearned income.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 04-15-057, 388-450-0106, filed 7/13/04, effective 8/13/04. Statutory Authority: RCW 74.08.090 and 74.04.510. 02-21-097, 388-450-0106, filed 10/21/02, effective 10/24/02; 99-16-024, 388-450-0106, filed 7/26/99, effective 9/1/99. Statutory Authority: RCW 74.04.005 and 74.08.090. 98-24-037, 388-450-0106, filed 11/24/98, effective 12/25/98.]


AMENDATORY SECTION(Amending WSR 01-21-026, filed 10/9/01, effective 11/1/01)

WAC 388-450-0155   How does being a sponsored immigrant affect my eligibility for cash, medical, and food assistance programs?   (1) The following definitions apply to this section:

(a) (("INS")) "USCIS" means ((the United States)) "U.S. Citizenship and Immigration Services" (formerly the Immigration and Naturalization Service or INS).

(b) "Sponsor" means a person who agreed to meet the needs of a sponsored immigrant by signing an INS Affidavit of Support form I-864 or I-864A. This includes a sponsor's spouse if the spouse signed the affidavit of support.

(c) "Sponsored immigrant" means a person who must have a sponsor under the Immigration and Nationality Act (INA) to be admitted into the United States for residence.

(d) "Deeming" means the department counts a part of the sponsor's income and resources as available to the sponsored immigrant.

(e) "Exempt" means you meet one of the conditions of WAC 388-450-0156. If you are exempt:

(i) You do not need to provide us information about your sponsor's income and resources; and

(ii) We do not deem your sponsor's income or resources to you.

(2) If you are a sponsored immigrant ((and you are not exempt, you must do the following to be eligible for benefits even if your sponsor is not supporting you:

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

(b) Get your sponsor to provide us the information we need about their income and resources; 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)), we first determine if you are exempt from sponsor deeming for any of the reasons listed in WAC 388-450-0156.

(3) 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)) are a sponsored immigrant and an eligible assistance unit (AU) member but not exempt from deeming under WAC 388-450-0156 and your AU includes unsponsored family members or family members who are exempt from deeming, you may choose not to apply for benefits for yourself or for other non-exempt AU members. By making this choice, you become an ineligible AU member. See WAC 388-450-0015 for how we count your income as an ineligible AU member. In this situation, you will not need to provide us information about your sponsor.

(4) If you ((refuse to provide us with the information we need about your sponsor, the other adult members in your AU must provide the information. If the same person sponsored everyone in your AU, your AU is not eligible for benefits until someone in your AU provides us the information we need)) choose not to apply for benefits for yourself or for other non-exempt AU members, this decision will apply to both cash and food assistance programs. You cannot choose to be an ineligible AU member for cash assistance but not for food, or vice versa. This rule does not apply to medical assistance.

(5) If you are ((an ineligible member of your AU, but you must be the AU under chapter 388-408 WAC, we do not deem your sponsor's income or resources to the AU)) a sponsored immigrant, are applying for benefits for yourself, and are not exempt from deeming under WAC 388-450-0156, you must do the following to be eligible for benefits even if your sponsor is not supporting you:

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

(b) Get your sponsor to provide us the information we need about their income and resources; and

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

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

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

(6) If you are a sponsored immigrant and are applying for benefits for yourself but are not eligible for benefits because we do not have the information we need about your sponsor, we do not delay benefits to any unsponsored people in your AU who are eligible for benefits.

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.04.510 and Title 7, Chapter II, Part 273 of the Code of Federal Regulations. 01-21-026, 388-450-0155, filed 10/9/01, effective 11/1/01. 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.]


AMENDATORY SECTION(Amending WSR 04-15-057, filed 7/13/04, effective 8/13/04)

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

(a) The Immigration and Nationality Act (INA) does not require you to have a sponsor. Immigrants 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 or Haitian entrant; ((or))

(v) ((Haitian entrant)) Victim of trafficking;

(vi) Persons granted withholding of deportation or removal; or

(vii) "Qualified aliens" who are self-petitioners under the Violence Against Women Act or VAWA (see definition of "qualified alien" in WAC 388-424-0001).

(b) You ((were sponsored by an organization or group as opposed to an individual;)) did any of the following prior to December 19, 1997:

(i) Adjusted to Lawful Permanent Resident (LPR) status;

(ii) Applied for adjustment to LPR status; or

(iii) Applied for an immigrant visa at a consular office;

(c) You ((do not meet the alien status requirements to be eligible for benefits under chapter 388-424 WAC)) were sponsored with an affidavit of support form I-134 or I-361;

(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, Basic Food, 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.)) were sponsored by an organization or group as opposed to an individual;

(e) You ((become a United States (U.S.) Citizen)) do not meet the alien status requirements to be eligible for benefits under chapter 388-424 WAC;

(f) ((Your sponsor is dead; or)) You have worked or can get credit for forty qualifying quarters of work under title II of the Social Security Act. See WAC 388-424-0008 for an explanation of how Social Security work quarters are obtained;

(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)) You become a naturalized U.S. citizen; or

(h) Your sponsor is dead.

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

(3) For Basic Food, you are exempt from deeming while you are under age eighteen.

(4) For state family assistance, general assistance, state-funded Basic Food benefits, and state-funded medical assistance for legal immigrants you are exempt from the deeming process)) For state family assistance, general assistance, and state Basic Food you are permanently 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 388-424-0001 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)) meet the qualifications for armed services or veteran status as described in WAC 388-424-0007(1).

(3) If you meet any of the following conditions, you are temporarily exempt from sponsor deeming for federal or state programs:

(a) Your Affidavit of Support is not in effect because you have not yet adjusted to lawful permanent resident (LPR) status;

(b) You are applying for:

(i) Medicaid under the Alien Emergency Medical (AEM) program; or

(ii) Medical coverage for pregnancy;

(c) You are living in the same household as your sponsor and the sponsor:

(i) For the purposes of cash and food assistance, is included in the same assistance unit; or

(ii) For the purposes of medical programs, is included in the same assistance unit or is otherwise a financially responsible spouse or parent of the sponsored immigrant;

(d) For Basic Food only, while you are under age eighteen.

(4) If you are an LPR with a sponsor who signed an I-864 Affidavit of Support and do not meet the criteria in WAC 388-424-0001 for an abused immigrant, but nevertheless you, your child, or your parent was a victim of domestic violence perpetrated by your sponsor or a family member and you no longer live with your abuser, you may still be temporarily exempt from sponsor deeming for twelve months. This exemption applies to federal or state programs and is renewable if the abuse is recognized by a court order, an administrative law judge, or USCIS.

(5) 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.

(6) If)) are an LPR with a sponsor who signed an I-864 Affidavit of Support and 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)) may be eligible for the indigence exemption from sponsor deeming for twelve months. This exemption applies to federal and state programs and is renewable for additional twelve-month periods if you continue to meet the financial criteria. 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.

(((7))) (6) If you are ((exempt from deeming because your AU does not have income over one hundred thirty percent of the FPL, we)) eligible for the indigence exemption, you may choose to exercise this exemption or not to exercise it, in full knowledge of the possible risks involved. If you choose to exercise the indigence exemption, and are applying for a federal program, we are required by law to 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; and

(d) The effective date that your twelve-month exemption began.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 04-15-057, 388-450-0156, filed 7/13/04, effective 8/13/04. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, and 74.04.510. 03-05-030, 388-450-0156, filed 2/10/03, effective 4/1/03. Statutory Authority: RCW 74.04.050, 74.04.057, 74.04.510 and Title 7, Chapter II, Part 273 of the Code of Federal Regulations. 01-21-026, 388-450-0156, filed 10/9/01, effective 11/1/01.]


NEW SECTION
WAC 388-450-0157   When is my sponsor not liable to re-pay state or federal benefits?   (1) A sponsor is not liable to repay state or federal benefits for a period when:

(a) The sponsor lives in the same household as the sponsored immigrant and is included in the same AU or is otherwise a financially responsible spouse or parent of the sponsored immigrant;

(b) The sponsored immigrant starts to receive benefits after they become a naturalized U.S. citizen or were credited with forty qualifying quarters of work (once a sponsored immigrant is credited with forty quarters, the sponsor's liability is terminated and will not be revived even by subsequent loss of quarters due to divorce);

(c) The benefits are received by unsponsored household members; or

(d) The sponsored immigrant is exempt from deeming as a child under eighteen years old.

(2) A sponsor is not liable to repay state benefits for a period when:

(a) Five years have passed since the affidavit of support is signed;

(b) The sponsor is disabled; or

(c) The sponsored immigrant is on active duty or a veteran of the U.S. military as defined in WAC 388-424-0007(1).

(3) If you are exempt from sponsor deeming due to the fact that you are a victim of domestic violence, as defined in WAC 388-450-0156, the department will not take action to recover the cost of benefits from your sponsor without first determining whether you will be at risk from the sponsor. The department will follow the rules and procedures set out for a domestic violence victim who may have "good cause" not to cooperate with child support enforcement. See WAC 388-422-0020.

[]


AMENDATORY SECTION(Amending WSR 01-21-026, filed 10/9/01, effective 11/1/01)

WAC 388-450-0160   How does the department decide how much of my sponsor's income to count against my benefits?   (1) We must count some of your sponsor's gross income as unearned income to your assistance unit (AU) if:

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

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

(c) You or a family member do not choose to decline benefits for yourselves as described in WAC 388-450-0155(3).

(2) We determine your AU as consisting of all sponsored members. We determine the eligibility of unsponsored members separately.

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

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

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

(c) For Basic Food, 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 even if they do not live in the sponsor's home; and

(iv) The sponsored immigrants, who have been sponsored under the current affidavit of support, even if they do not live at the same residence as the sponsor..

(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 even if they do not live in the sponsor's home; and

(iv) The sponsored immigrants, who have been sponsored under the current affidavit of support, even if they do not live at the same residence as the sponsor.

(f) If you can show that your sponsor has sponsored other people as well, we divide the result by the total number of people whom they sponsored. If you do not have copies of the affidavits of support, a declaration from the sponsor or sponsored immigrant will be accepted.

(((3))) (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 deeming; or

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

[Statutory Authority: RCW 74.04.050, 74.04.057, 74.04.510 and Title 7, Chapter II, Part 273 of the Code of Federal Regulations. 01-21-026, 388-450-0160, filed 10/9/01, effective 11/1/01. 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.]

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 388-450-0116 How does the department count my income if I cannot get assistance because I am an alien?

Washington State Code Reviser's Office