WSR 97-02-047

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Public Assistance)

[Filed December 30, 1996, 2:40 p.m.]

Date of Adoption: December 30, 1996.

Purpose: To place in administrative rule, department requirements for accommodating clients who have a mental, neurological, physical or sensory impairment or who otherwise have limitation which seriously affects their abilities to access programs in the same manner as those who are unimpaired. These rules are intended to meet the department's obligation under the Americans with Disabilities Act and in addition, provide client-oriented services to the disabled citizens of Washington state. New WAC 388-200-1300 and 388-200-1350.

Citation of Existing Rules Affected by this Order: Amending WAC 388-200-1050, 388-200-1100, 388-200-1150, 388-200-1160, 388-235-7500, 388-245-1170, 388-245-1300, 388-245-1350, 388-245-1715, 388-245-1720, and 388-265-1250.

Statutory Authority for Adoption: RCW 74.04.050, 43.20A.550, and 74.08.090.

Adopted under notice filed as WSR 96-13-056 on June 14, 1996.

Changes Other than Editing from Proposed to Adopted Version: Minor changes were made to reflect a greater emphasis on individuals self-identifying and stating a need for accommodation.

Number of Sections Adopted in Order to Comply with Federal Statute: New 2, amended 0, repealed 0; Federal Rules or Standards: New 2, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 1, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 2, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, amended 10, repealed 1.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 10, repealed 1.

Number of Sections Adopted using Negotiated Rule Making: New 2, amended 4, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 2, amended 6, repealed 1.

Effective Date of Rule: Thirty-one days after filing.

December 30, 1996

L. Baldwin

for Merry Kogut, Supervisor

Rules and Policies Assistance Unit

AMENDATORY SECTION (Amending Order 3807, filed 11/23/94, effective 1/1/95 WAC 388-200-1050 Department and client responsibilities. (1) The department and the client shall:

(a) Have a dual responsibility to determine and maintain eligibility for public assistance in the initial or redetermination of eligibility for assistance;

(b) Further, the department shall provide accommodation services to clients who have a mental, neurological, physical or sensory impairment or who otherwise have limitations which seriously affect their abilities to access programs in the same manner as those who are unimpaired.

(2) The department shall have the responsibility to:

(a) Treat a client with dignity and courtesy;

(b) Give a client sufficient opportunity to make pertinent needs and accommodation needs known to the department;

(c) Inform a client what the department can, or cannot, do for the client;

(d) Respect the rights of a client under the U.S. Constitution, the Social Security Act, Title VI of the Civil Rights Act of 1964, Title II of the Americans with Disabilities Act of 1990 and all other relevant provisions of federal and state law when:

(i) Taking an application;

(ii) Determining eligibility; ((and))

(iii) Administering financial and medical assistance programs; and

(iv) Providing accommodation to individuals who have a mental, neurological, sensory, or physical impairment.

(e) Avoid practices which violate the client's privacy or subject the client to harassment;

(f) Inform a client of:

(i) The client's rights and responsibilities concerning eligibility for, and receipt of, assistance;

(ii) All factors which may affect the client's continuing eligibility for assistance; ((and))

(iii) Changes of law or rule which affect the client's eligibility; and

(iv) His or her right to reasonable accommodations.

(g) Act promptly and correctly on all known changes which affect the client's eligibility for assistance;

(h) Offer voter registration assistance to clients during face-to-face interviews at:

(i) Application;

(ii) Eligibility review or recertification; and

(iii) Change of address.

(i) Accommodate clients per WAC 388-200-1300(7).

(3) The client has the responsibility to:

(a) Report all changes in the client's circumstances which affect eligibility for assistance. The client must report changes in writing promptly and accurately; and

(b) Take any reasonable action to develop resources which will reduce or eliminate the client's need for public assistance.

[Statutory Authority: RCW 74.04.050 and 1993 National Voter Registration Act, SSA Sect. 402 (a)(9) and 403 (a)(3). 94-23-128 (Order 3807), 388-200-1050, filed 11/23/94, effective 1/1/95. Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-200-1050, filed 5/3/94, effective 6/3/94.]

AMENDATORY SECTION (Amending Order 3732, filed 5/3/94, effective 6/3/94)

WAC 388-200-1100 Grievance procedure. (1) If a client is aggrieved by a department decision, the client has the right to present a written grievance to the supervisor. The supervisor shall:

(a) Make a decision on the client's grievance; and

(b) Send the client written notification of the supervisor's decision within ten days of receipt of the grievance.

(2) If a client is not satisfied with the decision of the supervisor, the client has the right to present a written grievance to the supervisor's administrator. The administrator shall:

(a) Make a decision on the client's grievance within ten days of receipt of the grievance; and

(b) Send the client written notification of the administrator's decision within ten days of receipt of the grievance.

(3) The written notice from the administrator terminates the grievance procedure.

(4) The client's right to pursue a grievance shall not in any way prevent the client from requesting a fair hearing under chapter 388-08 WAC. Accommodation shall be provided to all NSA designees requesting a fair hearing under WAC 388-200-1300(7).

(5) The department may respond to the client's grievance by informing the client that the department prefers that the fair hearing or judicial review process resolve the matter, if the client has a fair hearing or judicial review pending on the same issue.

(6) The department shall provide accommodation services to clients designated NSA to access the grievance process and to understand the outcomes under WAC 388-200-1300(7).

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-200-1100, filed 5/3/94, effective 6/3/94.]

AMENDATORY SECTION (Amending Order 3732, filed 5/3/94, effective 6/3/94)

WAC 388-200-1150 Exception to rule. (1) Rules for determining eligibility and amount of payment are based on federal and state law and are designed to permit the department to grant necessary assistance considering the client's requirements and resources.

(2) State rules are based on living conditions which the department considers to apply to the majority of client situations. Individual circumstances may exist for clients, including those individuals needing accommodation services, where application of a particular rule works in opposition to the desired objective stated in subsection (1) of this section.

(3) The department cannot make an exception to a specific provision of federal or state law. However, the secretary, or designee, can authorize an individual case exception to a rule when:

(a) The rule is not specifically enunciated in federal or state law; and

(b) Granting an exception appears to be in the best interest of overall economy and the client's welfare.

(4) The department may grant an exception when:

(a) The client's situation differs from that of the majority; or, the client's circumstances are peculiar;

(b) It would ease the conditions the client would face without the assistance; and

(c) It would increase opportunities for the client to function effectively.

(5) The client does not have a right to a fair hearing as specified under chapter 388-08 WAC for an exception decision.

(6) An exception to the rule shall also be considered when the client's impairment or limitation has substantially interfered in the normal conduct of activities leading to determining or redetermining benefit or program eligibility.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-200-1150, filed 5/3/94, effective 6/3/94.]

AMENDATORY SECTION (Amending Order 3732, filed 5/3/94, effective 6/3/94)

WAC 388-200-1160 Notification of exception to rule request and decision. The department shall notify a client in writing as well as other effective means of communication. The notification must be given within ten days of:

(1) A decision as to whether the department will initiate an exception to rule request when requested by the client; and

(2) Of the approval or denial of an exception to rule which was requested by the department.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-200-1160, filed 5/3/94, effective 6/3/94.]

NEW SECTION

WAC 388-200-1300 Necessary supplemental accommodation services (NSA). (1) "NSA clients" are individuals, who have a mental, neurological, physical or sensory impairment or who otherwise have limitations which seriously affect their abilities to access programs in the same manner as those who are unimpaired.

(2) All department staff have a continuing responsibility to identify and assist NSA clients. Also see, WAC 388-200-1050(2)(b), and WAC 388-200-1050 (2)(d)(iv), regarding client rights to self-identification and accommodation.

(3) The department shall screen all applicants with whom its staff come into direct contact in order to identify NSA clients.

(a) The department shall provide an explanation of NSA services to all clients upon initiation of the NSA screening.

(b) The department shall initially identify all individuals included in subsections (i) and (ii) below as NSA, unless the client declines NSA services.

(i) Clients who identify themselves as requiring NSA services in order to access the department's services and programs.

(ii) Clients in the following categories:

(A) Identified as having or claiming to have a mental health impairment;

(B) Having a developmental disability;

(C) Disabled by drug addiction or alcoholism;

(D) Unable to read or write in any language;

(E) A minor not residing with parents.

(c) The department shall initially identify as NSA all individuals who are observed to have cognitive limitations, regardless of the presence or absence of an underlying disability, which are likely to prevent them from understanding the nature of NSA services and affect their ability to access department programs.

Cognitive limitations include limitations on ability to communicate, understand, remember, process information, exercise judgement and make decisions, perform routine tasks or relate appropriately with others.

(4) The department shall mark all cases identified as NSA with a uniform NSA identifier.

(5) Clients initially identified as NSA under subsection (3)(b)(ii) and (c) above will be assessed to confirm the NSA designation.

(6) Based on client request or changes in the client's needs, the NSA designation and/or accommodation plan may be assessed and revised.

(7) An accommodation plan which specifies the auxiliary aids and services to be provided the client to improve the client's access to department programs and services will be developed for clients determined NSA.

(8) The following NSA services shall be included in the accommodation plan of clients determined NSA under subsections (3)(b)(ii) and (c) above.

(a) Arranging for or providing assistance with completion and submission of forms;

(b) Assisting in obtaining information necessary to determine eligibility or to maintain current benefits;

(c) Explaining the department's adverse actions, see WAC 388-245-1000;

(d) Assisting with requests for fair hearings;

(e) Assisting with requests for continuing benefits;

(f) Providing follow-up contact on missed appointments or deadlines;

(g) Providing notification to the NSA individual's known advocate when informational requests or adverse action notices are pending;

(h) Providing protective payments as appropriate, in accordance with WAC 388-265-1250 (3) and (6).

(9) The department shall redirect and hold warrants for NSA clients through the twentieth day of the month following the month that adverse action notice was given, when the department is unable to determine eligibility. If eligibility is determined within the twenty-day period, the department will release to the client the correct grant amount the client would have been eligible to receive for the month in which redirection occurred. See WAC 388-245-1350;

(10) The department shall consider the effects of the NSA client's limitation or impairment on the client's ability to: accept or pursue required medical treatment, accept or pursue referrals to other agencies, provide timely monthly income reports, voluntarily quit employment, participate in food stamp employment and training, or participate in the job opportunities and basic skills (JOBS) program. The department shall find the client has good cause for refusal or failure to comply with these requirements and shall take no adverse action when the effects of the client's limitation or impairment substantially contributed to the client's noncompliance.

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NEW SECTION

WAC 388-200-1350 Dispute resolution for clients needing supplemental accommodations. (1) An applicant or recipient has the right to file a grievance with the department in accordance with the grievance procedures provided in WAC 388-200-1100, regarding any aspect of NSA services. The department shall offer to assist a client who expresses dissatisfaction with NSA services with filing and pursuing a grievance.

(2) Department decisions as to NSA designations, accommodation plans or NSA services do not in themselves provide a basis for a fair hearing until the client has first completed the grievance process. This provision does not limit the client's rights to raise NSA designations, accommodation plans and NSA services in a fair hearing where they are relevant to other issues which are the subject of the fair hearing.

(3) Failure to follow NSA requirements does not in itself invalidate department actions, except where the applicant or recipient was denied benefits for which he/she could have established eligibility had the department followed NSA requirements.

(4) The department shall review the decision to terminate, suspend or reduce financial assistance to NSA recipients upon request. The department shall reinstate financial assistance for those months for which the department can determine that the client met program eligibility requirements and the adverse action:

(a) Was taken because of the client's failure to comply with a department requirement;

(b) The failure to comply was substantially related to the client's impairment; and

(c) Was taken no more than ninety days prior to the request.

(5) The department may reinstate assistance when the adverse action was taken more than ninety days prior to the request where administratively feasible and not prohibited by state or federal law.

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AMENDATORY SECTION (Amending Order 3559, filed 7/29/93, effective 8/29/93 WAC 388-235-7500 Good cause for refusing medical treatment or other agency referrals. The department shall find that a client has good cause for refusing required medical treatment when such client's refusal is based on any of the following conditions:

(1) The client is genuinely fearful of undergoing required treatment. Such fear may appear to be unrealistic or irrational; however, fear exists in such a degree that treatment would be adversely affected;

(2) The client could lose a faculty, or the remaining use of faculty, and refuses to accept the risk;

(3) Because of the client's definitely stated religious scruples, the client will not accept required medical treatment;

(4) The client is temporarily unable to participate in required medical treatment, due to an intervening incapacity. The temporary inability to participate must be documented by medical evidence. The requirement to participate is again imposed as soon as the client is able to participate;

(5) The client was not properly notified of the treatment required and/or the consequences for failure to comply with these requirements; ((or))

(6) The client's treatment required by previous written notification is subsequently determined by the department to have been inappropriate or unavailable. The department shall consider treatment unavailable when the treatment includes copayments or service charges not covered by the department, and the client is denied access to the treatment due to an inability to pay; or

(7) The client has limitations or impairments consistent with the definition of necessary supplemental accommodation services (NSA) and the effects of those limitations or impairments substantially contributed to the client's refusal to accept treatment or pursue services from other agencies.

[Statutory Authority: RCW 74.08.090. 93-16-058 (Order 3559), 388-235-7500, filed 7/29/93, effective 8/29/93.]

AMENDATORY SECTION (Amending Order 3732, filed 5/3/94, effective 6/3/94)

WAC 388-245-1170 Department action on review of eligibility. As a result of the review of eligibility, the department shall:

(1) Take action so that all matters pertaining to incorrect past, current or future grants are brought into conformity with the rules of the department; and

(2) Notify the recipient according to the rules and procedures in this chapter when the review results in a change in amount of grant, suspension, termination, or the discovery of an overpayment. See rules related to necessary supplemental accommodation services (NSA) clients regarding adverse actions under WAC 388-200-1300 (7)(h).

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-245-1170, filed 5/3/94, effective 6/3/94. Formerly WAC 388-38-290.]

AMENDATORY SECTION (Amending Order 3732, filed 5/3/94, effective 6/3/94)

WAC 388-245-1300 Change of grant amount. (1) The department shall adjust the grant of a continuing assistance recipient when a ((chance)) change of circumstances reduces or increases the recipient's need.

(2) The department shall notify the recipient in writing when the department authorizes a change in grant amount.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-245-1300, filed 5/3/94, effective 6/3/94. Formerly WAC 388-33-335.]

AMENDATORY SECTION (Amending Order 3732, filed 5/3/94, effective 6/3/94)

WAC 388-245-1350 Redirection of warrant. (1) A recipient eligible for continuing assistance is entitled to regular and correct payment without undue interruption or delay. The department shall redirect a warrant only when:

(a) An overpayment will occur; or

(b) The warrant will not be received by the recipient.

(2) Factors which justify redirection of a warrant are limited to:

(a) The address of a recipient is unknown by the department or the recipient has reported that he or she has changed, or will change, his or her address prior to scheduled receipt of the warrant.

(b) A change in payee is required for correct receipt of the warrant.

(c) A proposed reduction, suspension, or termination of a grant as provided in WAC 388-245-1730.

(d) A recipient has entered an institution and the department has been notified by someone acting on his or her behalf.

(e) The recipient is NSA and has failed to respond to a request for information or adverse action notice in a timely manner and the department is unable to determine eligibility.

(3) The department may redirect a warrant when an authorization has been submitted which cannot be processed before delivery date due to error in the authorization. The warrant is redirected so that necessary action can be immediately taken to continue payment in the correct amount.

(4) The department shall notify the recipient before action is taken to redirect a warrant for any reason other than death. Such notification shall include:

(a) The reason for the redirect action; and

(b) Assurance of correct payment, when appropriate, at the earliest possible date.

(5) The department shall determine the recipient's eligibility or ineligibility for the warrant at the earliest possible date, but not later than thirty days after the date of its issuance.

(6) The department shall:

(a) Cancel the warrant if ineligibility is determined and notify the recipient in writing of the reason for cancellation.

(b) Release the warrant, or promptly reauthorize payment in the correct amount if it is not in the correct amount, according to WAC 388-245-1310.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-245-1350, filed 5/3/94, effective 6/3/94. Formerly WAC 388-38-270.]

AMENDATORY SECTION (Amending Order 3732, filed 5/3/94, effective 6/3/94)

WAC 388-245-1715 Recipient to provide information or take action to maintain continued eligibility for financial assistance. The department shall allow a recipient of financial assistance not less than ten calendar days to provide information or take a specific action that affects continuing financial eligibility. The department shall assist client's designated NSA with getting information in accordance with WAC 388-200-1300 (7)(b). Information necessary to determine the recipient's eligibility may include documents and statements verifying eligibility.

(1) The department shall request such information or action in writing. The written request may be given to the recipient in person or sent to the recipient's last known address. The request shall include a statement of:

(a) The information or specific action necessary to determine continuing eligibility;

(b) The date by which such information must be provided or action taken; and

(c) That failure to provide such information or take such action may result in termination or reduction of financial assistance.

(2) The department shall take appropriate action to reduce, suspend or terminate financial assistance, including providing the recipient with advance and adequate notice of adverse action as provided in WAC 388-245-1700 if, during the ten calendar day period of time (see WAC 388-200-1300 (7)(h) regarding clients designated NSA), the recipient:

(a) Does not take the action or provide the information during the specified time period;

(b) Provides information or verification during the time period which is inadequate; or

(c) Provides adequate information or verification which results in reduction, suspension, or termination of financial assistance.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-245-1715, filed 5/3/94, effective 6/3/94. Formerly WAC 388-38-265 (part).]

AMENDATORY SECTION (Amending Order 3732, filed 5/3/94, effective 6/3/94)

WAC 388-245-1720 Recipient provides information or takes action during advance notice period. (1) The department shall take appropriate action to continue financial assistance if, during the advance notice period, the recipient:

(a) Takes the requested action; or

(b) Provides adequate information which does not result in reduction, suspension or termination of financial assistance.

(2) The department shall provide an additional adequate notice to the recipient if, during the advance notice period, the recipient provides:

(a) Inadequate information; ((or))

(b) Adequate information which results in termination, reduction, or suspension of financial assistance; or

(c) The recipient is designated NSA and requires an accommodation to comply.

(3) Advance notice is not required under subsection (2) of this section.

[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-245-1720, filed 5/3/94, effective 6/3/94. Formerly WAC 388-38-265 (part).]

AMENDATORY SECTION (Amending Order 3732, filed 5/3/94, effective 6/3/94)

WAC 388-265-1250 Protective or vendor payment due to mismanagement of grant. (1) The rules in this section do not apply to 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 mental or physical limitation prevents the client from learning how to manage the client's affairs; or

(c))) 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.

[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.]

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