WSR 14-01-109 PROPOSED RULES DEPARTMENT OF SOCIAL AND HEALTH SERVICES (Economic Services Administration) [Filed December 18, 2013, 10:39 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 13-09-065.
Title of Rule and Other Identifying Information: The department is proposing to amend WAC 388-410-0025 Am I responsible for an overpayment in my assistance unit? and 388-410-0033 How and when does the department collect a Basic Food or WASHCAP overpayment?
Hearing Location(s): Office Building 2, Lookout Room, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html), on January 22, 2014, at 10:00 a.m.
Date of Intended Adoption: Not earlier than January 23, 2014.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on January 22, 2014.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by January 8, 2014, TTY (360) 664-6178 or (360) 664-6094 or by e-mail jennisha.johnson@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is proposing to amend rules under WAC 388-410-0025 and 388-410-0033 to make changes that clarify rules about options concerning waiving, compromising, writing off, or terminating Basic Food and WASHCAP overpayment claims and clarify that federal law does not allow for supplemental nutrition assistance program (SNAP) overpayment claims to be dismissed on the basis of equitable estoppel.
Reasons Supporting Proposal: 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 SNAP at Volume 65, No. 130 on July 6, 2000, clarified that, since SNAP (food stamps) are federal benefits, federal law does not allow for an exception for equitable estoppel in administrative error claims.
This rule making is part of the corrective action plan for a recent USDA Food and Nutrition Service Recipient Claim Management Evaluation Review (RCMER). Section 13 (b)(1) of the Food and Nutrition Act of 2008, as amended, requires the department to establish and collect overpayments of 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.
Statutory Authority for Adoption: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, and 74.08.090.
Statute Being Implemented: RCW 74.04.005, 74.04.050, 74.04.055, 74.04.057, 74.04.510, and 74.08.090.
Rule is necessary because of federal law, 7 C.F.R. § 273.18.
Name of Proponent: Department of social and health services, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Robert Thibodeau, 712 Pear Street S.E., Olympia, WA 98504, (360) 725-4634.
No small business economic impact statement has been prepared under chapter 19.85 RCW. These proposed rules do not have an economic impact on small businesses. The proposed amendment only affects certain DSHS clients who receive food assistance under Basic Food and WASHCAP eliminating the option to have overpayment claims compromised or dismissed using the equitable estoppel doctrine but instead clarifies that overpayment may still be waived, terminated, written off or compromised.
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."
December 16, 2013
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION (Amending WSR 06-20-062, filed 9/29/06, effective 11/1/06)
WAC 388-410-0025 Am I responsible for an overpayment in my assistance unit?
If your assistance unit (AU) received more Basic Food or WASHCAP benefits than it was supposed to receive, your AU has an overpayment. If you have an overpayment, we determine the amount you were overpaid and set up a claim to recover this overpayment. (1) We set up an overpayment for the full amount your AU was overpaid for every adult AU member at the time your AU was overpaid. (2) Each adult member is responsible for the whole overpayment until we recover the entire amount of the overpayment. We do not collect more than the amount your AU was overpaid. (3) If we determine you are responsible for an overpayment, you are responsible for the overpayment even if you are now in a different AU than you were when you had the overpayment. (4) You may be responsible for a Basic Food or WASHCAP overpayment even if it was the department's fault you were overpaid. (5) We do not apply equitable estoppel, as described under WAC 388-02-0495, to Basic Food or WASHCAP overpayments. (6) We may reduce all or part of an overpayment if we determine you are unable to repay the balance or that doing so would be a hardship. See WAC 388-410-0033.
AMENDATORY SECTION (Amending WSR 06-20-062, filed 9/29/06, effective 11/1/06)
WAC 388-410-0033 How and when does the department collect a Basic Food or WASHCAP overpayment?
(1) When we set up an overpayment because you received more Basic Food or WASHCAP benefits than you were supposed to receive, we start to collect the benefits you were overpaid. This includes when we: (a) Modify an established overpayment to an amount we would not have to set up under WAC 388-410-0030(5); or (b) Set up an overpayment that we do not have to set up under WAC 388-410-0030(5). (2) You can repay your overpayment by: (a) Paying the entire amount at once; (b) Having us take the amount of your overpayment out of your EBT account; (c) Making regular payments under a scheduled repayment agreement as described in subsection (4) of this section; or (d) Having your current Basic Food or WASHCAP benefits reduced. (3) If you have an inactive EBT account and we cancelled Basic Food or WASHCAP benefits in the account under WAC 388-412-0025, we use the cancelled benefits to reduce the amount of your overpayment. (4) If your AU currently receives Basic Food or WASHCAP benefits, you can repay your overpayment by making monthly payments. The payments must be more than we would recover through us reducing your benefits. Your AU or the department can request a change to the agreement if necessary. (5) If you are responsible for repaying an administrative or inadvertent household error overpayment, we automatically reduce your monthly benefits unless you: (a) Pay the overpayment all at once; (b) Set up a repayment agreement with us; or (c) Arrange with us to compromise (reduce) or waive all or part of your overpayment under section (13) below; or (d) Request a hearing and continued benefits within ninety days of the date you received your collection action notice. (6) If you are responsible for an intentional program violation (IPV) overpayment, you must tell us how you want to repay this overpayment within ten days of the date you receive your collection action notice. If you do not do this, we will reduce your current monthly benefits. (7) If you receive ongoing Basic Food or WASHCAP benefits, we can reduce your monthly benefits to repay the overpayment. We do not reduce your first Basic Food or WASHCAP allotment when we first approve your application for benefits. (a) If you have an administrative or inadvertent household error overpayment, we reduce your benefits by the greater of: (i) Ten percent of your monthly benefits; or (ii) Ten dollars per month. (b) If you have an IPV overpayment, we reduce your benefits by the greater of: (i) Twenty percent of your monthly benefits; or (ii) Twenty dollars per month. (8) If you do not meet the terms of a repayment agreement with the department, we automatically reduce your current benefits unless you: (a) Pay all overdue payments to bring your repayment agreement current; or (b) Ask us to consider a change to the repayment schedule. (9) If your overpayment claim is past due for one hundred eighty or more days, we refer your overpayment for federal collection. A federal collection includes reducing your income tax refund, Social Security benefits, or federal wages. We do not count your overpayment as past due if you: (a) Repay the entire overpayment by the due date; (b) Have your monthly benefits reduced to repay the overpayment; or (c) Arrange with us to compromise (reduce) or waive all or part of your overpayment under section (13) below; or (d) Meet the requirements of your scheduled repayment agreement. (10) If you no longer receive Basic Food or WASHCAP benefits, we can garnish your wages, file a lien against your personal or real property, attach other benefits, or otherwise access your property to collect the overpayment amount. (11) We suspend collection on an overpayment if: (a) We cannot find the responsible AU members; or (b) The cost of collecting the overpayment would likely be more than the amount we would recover. (12) We can ((negotiate the amount of an overpayment if)) compromise (reduce) all or part of any unpaid claim when: (a) ((the)) The amount you offer to repay is close to what we could expect to receive from you before we can no longer legally collect the overpayment from you((.)); or (b) We determine that you are unable to repay the balance or that doing so would be a hardship. (13) We write off unpaid overpayments and release any related liens when: (a) ((We can not possibly collect any more funds)) The claim is invalid; (b) All adult household members die; (c) The claim balance is less than twenty-five dollars and has been delinquent for ninety days or more; (d) We determine it is not cost effective to pursue the claim further; (e) We agreed to accept a partial payment that left an unpaid balance after this payment;(( or)) (f) You have paid ten percent of your monthly benefits or ten dollars, whichever is greater, on an administrative or inadvertent household error overpayment for at least thirty-six months; (((c) There is an unpaid balance left after an overpayment case has been suspended)) (g) The claim has been delinquent for three ((consecutive)) years or more unless ((a collection may be possible)) we plan to pursue the claim through the Treasury Offset Program((.)); or (h) An administrative law judge orders us to do so. (14) If your AU has an overpayment from another state, we can collect this overpayment if the state where you were overpaid does not plan to collect it and they give us the following: (a) A copy of the overpayment calculation and overpayment notice made for the client; and (b) Proof that you received the overpayment notice. (15) You can ask for a hearing to contest whether you owe an overpayment, whether we calculated the overpayment correctly, or whether we should have waived an overpayment.
|