Subject of Possible Rule Making: The department is proposing to amend WAC 388-410-0025, 388-410-0033, and other related rules. Proposed changes under this filing will be consistent with federal regulations at Title 7 C.F.R. § 273.18 and Section 13 of the Food and Nutrition Act of 2008, and other applicable federal laws pertaining to collection of overpayments of federal means-tested benefits.

     Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 74.04.055, 74.04.057, 74.04.500, 74.04.510, 74.08.090, 74.08.260.

     Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: The department plans to amend sections in chapter 388-410 WAC to address and clarify that federal law does not allow for overpayment claims to be dismissed on the basis of equitable estoppel for a Basic Food or WASHCAP overpayment due to administrative error.

     Equitable estoppel is a legal concept adopted by a number of states that provides that individuals should not be held responsible for errors that were not their fault. The preamble of the final rule on claims establishment for the food stamp program at Volume 65, No. 130 on July 6, 2000, clarified that, since food stamps are federal benefits, federal law does not allow for an exception for equitable estoppel in administrative error claims.

     Section 13 (b)(1) of the Food and Nutrition Act of 2008, as amended, requires the department to establish and collect overpayments of supplemental nutrition assistance program (SNAP) benefits "unless otherwise provided for in this section." The act affords no such provision to compromise claims or bar collection of administrative error claims on the grounds of equitable estoppel.

     Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: The United States Department of Agriculture, Food and Nutrition Service (FNS) enforces the provisions of the federal SNAP as enacted in the 2008 Food and Nutrition Act and codified in the Code of Federal Regulations - Title 7, Part 273.

     The state legislature authorizes the department to administer the food stamp program (SNAP) and food assistance program for legal immigrants under RCW 74.04.500, 74.04.510, and 74.08A.120.

     DSHS incorporates regulations from the federal agencies, exercises state options, and implements approved waivers of federal regulatory requirements by adopting administrative rules for food assistance programs administered under the Washington Basic Food program. The department adopts rules related to other benefit programs consistent with state law, federal authorizing statutes, as well as federal rules and regulations related to DSHS administered programs.

     Process for Developing New Rule: DSHS welcomes the public to take part in developing the rules. Anyone interested should contact the staff person identified below. At a later date, DSHS will file a proposal with the office of the code reviser with a notice of proposed rule making. A copy of the proposal will be sent to everyone on the mailing list and to anyone who requests a copy.

     Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Holly St. John, Economic Services Administration, Community Services Division, P.O. Box 45470, Olympia, WA 98504-5470, phone (360) 725-4895, fax (360) 725-4904, e-mail Stjohhc@dshs.wa.gov.

April 11, 2013

Katherine I. Vasquez

Rules Coordinator