WSR 97-15-089

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Economic Services Administration)

(Public Assistance)

[Filed July 17, 1997, 11:02 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-11-077.

Title of Rule: WAC 388-216-2450 Resources--Exempt or disregarded income which is also exempt as a resource; 388-216-2500 Resources--Exempt as a resource with no ceiling value; 388-216-2650 Resources--Exempt within a ceiling value; and 388-216-2800 Resources--Value.

Purpose: Amends WAC 388-216-2450 to change the earned income disregard WAC reference, adds a motor vehicle necessary to transport a physically disabled household member as an exempt resource with no ceiling value to WAC 388-216-2500; amends WAC 388-216-2650 to increase the ceiling value of one used and useful vehicle to $5,000, adds savings accounts with combined balances of up to an additional $3,000 for TANF recipients as an exempt resource to WAC 388-216-2650; and amends WAC 388-216-2800 to increase the TANF client's prorated ceiling value of a vehicle to $5,000 when the vehicle is owned by a TANF client and an SSI recipient.

Statutory Authority for Adoption: RCW 74.08.090 and 74.04.005.

Statute Being Implemented: Public Law 104-193, Section 103 (a)(1); EHB 3901 (section 309, chapter 58, Laws of 1997 (RCW 74.04.005)); EHB 3901 (section 308, chapter 58, Laws of 1997).

Summary: To comply with EHB 3901: (1) Increase the ceiling value of one used and useful vehicle from $1,500 to $5,000; (2) exempt the entire equity value of a vehicle used to transport a disabled household member; and (3) exempt savings accounts up to $3,000 for TANF recipients.

Reasons Supporting Proposal: EHB 3901, section 309 (10)(11) (RCW 74.04.005, amended 1997); EHB 3901, section 308 (1997).

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Cindy Anderson, WorkFirst Division, Program Support Unit, (360) 413-3095.

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

Rule is not necessitated by federal law, federal or state court decision. Public Law 104-193, Section 103 (a)(1).

Explanation of Rule, its Purpose, and Anticipated Effects: Implements requirements of EHB 3901, sections 308 and 309 (amended 1997) (amends RCW 74.04.005 (10)(11)).

Proposal Changes the Following Existing Rules: Amends WAC 388-216-2450, 388-216-2500, 388-216-2650, and 388-216-2800.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Does not affect small business.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Section 201 does not apply to the Department of Social and Health Services (RCW 34.05.328).

Hearing Location: Lacey Government Center (behind Tokyo Bento restaurant), 1009 College Street S.E., Room 104B, Lacey, WA 98503, on August 26, 1997, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Leslie Baldwin by August 19, 1997, TTY (360) 902-8324, e-mail lbaldwin@dshs.wa.gov.

Submit Written Comments to and Identify WAC Numbers: Leslie Baldwin, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, FAX (360) 902-8292, by August 26, 1997.

Date of Intended Adoption: No sooner than August 27, 1997.

July 15, 1997

Merry A. Kogut, Manager

Rules and Policies Assistance Unit

AMENDATORY SECTION (Amending Order 3862, filed 6/28/95, effective 7/29/95 WAC 388-216-2450 Resources--Exempt or disregarded income which is also exempt as a resource. The department shall exempt or disregard as income all the funds listed in this section. The department shall also consider these funds as an exempt resource:

(1) The resources of a supplemental security income (SSI) recipient. The department shall not consider nonrecurring lump sum SSI retroactive payments made to ((an AFDC)) a TANF client as income or as a resource in the month paid nor in the next following month;

(2) The monthly child support incentive payment from the division of child support (DCS);

(3) ((AFDC)) TANF benefits resulting from a court order modifying a department policy;

(4) Title IV-E, state and/or local foster care maintenance payments; ((and))

(5) Adoption support payments if the adopted child is excluded from the assistance unit;

(6) Bona fide loans as specified in WAC ((388-216-6230 and 388-216-7100)) 388-218-1230(5). The department shall consider loans bona fide when the loan is a debt the borrower has an obligation to repay;

(7) Educational assistance, in the form of grants, loans, or work study, issued to a student from the following sources:

(a) Title IV-A of the Higher Education Amendments; or

(b) Bureau of Indian Affairs student assistance programs;

(8) Grants or loans made or insured under any programs administered by the department of education to an undergraduate student for educational purposes;

(9) Educational assistance in the form of grants, loans, or work study, issued under the Carl D. Perkins Vocational and Applied Technology Education Act (P.L. 100-391), for attendance costs as identified by the institution. For a student attending school:

(a) At least half-time, attendance costs include tuition, fees, costs for purchase or rental of equipment, materials, or supplies required of all students in the same course of study, books, supplies, transportation, dependent care, and miscellaneous personal expenses; or

(b) Less than half-time, attendance costs include tuition, fees, and costs for purchase or rental of equipment, materials, or supplies required of all students in the same course of study;

(10) Educational assistance in the form of grants, work study, scholarships, or fellowships, from sources other than those identified in subsections (7)(a) and (b), (8), and (9)(a) and (b) of this section for attendance costs as identified by the institution. Attendance costs include tuition, fees, costs for purchase or rental of equipment, materials, or supplies required of all students in the same course of study, books, supplies, transportation, dependent care, and miscellaneous personal expenses;

(11) Any remaining educational assistance, in the form of grants, work study, scholarships, or fellowships, not disregarded in subsections (7)(a) and (b), (8), (9)(a) and (b), or (10) of this section, as allowed under WAC 388-218-1540;

(12) The earned income disregards in WAC ((388-218-1430 through 388-218-1480)) 388-218-1440 and 388-218-1470 for ((AFDC)) TANF and WAC 388-219-1500 for GA-U to any work study earnings received and nisregarded in subsections (7)(a) and (b), (8), (9)(a) and (b), (10), and (11) of this section;

(13) Payment under Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91-646, section 216);

(14) The food coupon allotment under Food Stamp Act of 1977;

(15) Compensation to volunteers under the Domestic Volunteer Act of 1973 (P.L. 93-113, Titles I, II, and III);

(16) Benefits under Women, Infants and Children program (WIC);

(17) Food service program for children under the National School Lunch Act of 1966 (P.L. 92-433 and 93-150);

(18) Energy assistance payments;

(19) Indian trust funds or lands held in trust (including interest and investment income accrued while such funds are held in trust) by the Secretary of the Interior for an Indian Tribe, including but not limited to funds issued under the Maine Indian Claims Settlement Act of 1980 (P.L. 96-420);

(20) Per capita judgment funds under P.L. 97-408 to members of the:

(a) Blackfeet Tribe of the Blackfeet Indian Community, Montana;

(b) Gros Ventre Tribe of the Fort Belknap Reservation, Montana; and

(c) Assiniboine Tribe of the Fort Belknap Indian Community;

(21) Indian judgment funds or funds held in trust by the Secretary of the Interior distributed per capita under P.L. 93-134, as amended by P.L. 103-66, 94-114, 97-458, or 98-64. In addition:

(a) Real or personal property purchased directly with funds from the per capita payments, up to the amount of the funds from the per capita payment, are referred to as initial investments. These initial investments are exempt;

(b) Income derived either from the per capita payment or the initial investments shall be treated as newly acquired income;

(c) Appreciation in value of the initial investment shall be treated as a nonexempt resource at the time of eligibility review, unless the initial investment is a type of resource which is listed as exempt under WAC 388-216-2500 or 388-216-2650;

(d) The disregard does not apply to per capita payments or initial investments from per capita payments which are transferred or inherited;

(e) The department shall not consider up to two thousand dollars per year of income received by individual Indians, derived from leases or other uses of individually owned trust or restricted lands;

(22) Two thousand dollars per person per calendar year received under the Alaska Native Claims Settlement Act (P.L. 92-203 and 100-241);

(23) Veterans' Administration educational assistance for the student's educational expenses and child care necessary for school attendance;

(24) Housing and Urban Development (HUD) community development block grant funds that preclude use for current living costs;

(25) Restitution payments made under the Wartime Relocation of Civilians Act, P.L. 100-383. The department shall also disregard resources derived from restitution payments;

(26) A previous underpayment of assistance under WAC ((388-260-1550)) 388-270-1550 in the month paid nor in the next following month;

(27) Payment from the annuity fund established by the Puyallup Tribe of Indians Settlement Act of 1989 (P.L. 101-41), made to a Puyallup Tribe member upon reaching twenty-one years of age. In addition:

(a) Real or personal property purchased directly with funds from the annuity fund payment, up to the amount of the funds from the annuity fund payment, are referred to as initial investments. These initial investments are exempt;

(b) Income derived either from the annuity fund payment or the initial investments shall be treated as newly acquired income;

(c) Appreciation in value of the initial investment shall be treated as a nonexempt resource at the time of eligibility review, unless the initial investment is a type of resource which is listed as exempt under WAC 388-216-2500 or 388-216-2650;

(d) Proceeds from the transfer of the initial investments are treated as a transfer of exempt property, as specified in WAC 388-217-3350;

(28) Payments from the trust fund established by the P.L. 101-41 made to a Puyallup Tribe member;

(29) Payments made from the Agent Orange Settlement Fund or any other funds established to settle Agent Orange liability claims (P.L. 101-201). The effective date of the disregard is retroactive to January 1, 1989;

(30) Payments made under the Disaster Relief Act of 1974 (P.L. 93-288), as amended by disaster Relief and Emergency Assistance amendments of 1988 (P.L. 100-707). This applies to assistance issued by federal, state, or local governments or by a disaster assistance organization;

(31) Payments from the Radiation Exposure Compensation Act (P.L. 101-426) made to an injured person, surviving spouse, children, grandchildren, or grandparents;

(32) Payments made to victims of nazi persecution under ((Public Law)) (P.L. 103-286). The effective date of the disregard is retroactive to August 1, 1994;

(33) Payments made from the Confederated Tribes of the Colville Reservation Grand Coulee Dam Settlement Act trust fund, pursuant to P.L. 93-134. Funds paid, interest or investment income earned on such funds, and any payment authorized by the tribe or the Secretary of the Interior are not counted as a resource; and

(34) Income specifically excluded by any other federal statute from consideration as income and a resource.

[Statutory Authority: RCW 74.08.090, P.L. 103-286 and Confederated Tribes of the Colville Reservation Grand Coulee Dam Settlement Act. 95-14-049 (Order 3862), 388-216-2450, filed 6/28/95, effective 7/29/95. Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-216-2450, filed 5/3/94, effective 6/3/94.]

AMENDATORY SECTION (Amending WSR 97-06-075, filed 2/28/97, effective 3/31/97)

WAC 388-216-2500 Resources--Exempt as a resource with no ceiling value. (1) ((Irrespective)) Regardless of value, the department shall exempt the following resources:

(a) The client's home, subject to the conditions specified in sections WAC 388-216-2550 through 388-216-2590.

(b) Household furnishings and personal clothing essential for daily living. The department shall not exempt household furnishings and personal clothing in storage without evidence that these items are essential for daily living.

(c) One cemetery plot for each member of the assistance household.

(d) Personal property of "great sentimental value" when the applicant/recipient establishes the circumstances and conditions giving the personal property this value. "Sentimental value" as used in this section means personal property held primarily because of personal attachment or hobby interest, rather than for its intrinsic value.

(e) A motor vehicle necessary to transport a physically disabled household member. This exemption is limited to one vehicle per physically disabled person.

(2) The department may declare real and personal property which will be used in a self-employment enterprise as an exempt resource:

(a) On the basis of an agreed plan; and

(b) When the department determines that the real or personal property:

(i) Is necessary to restore the client's independence; or

(ii) Will aid in rehabilitating the client or the client's dependents by providing self-employment experience which can reasonably be expected to lead to full or partial self-support.

(3) The department shall consider any increase in value to exempted stock, raw materials, or inventory as:

(a) Exempt, when the increase is necessary to the health of the enterprise; or

(b) Income, when such increase might reasonably be used towards the client's self-support.

(4) In the absence of an agreed plan, the department shall consider the business assets of a self-employment enterprise, if available and nonexempt, as available to the owner in the amount of the sale value minus encumbrances.

(5) Under an agreed plan, the department shall consider accounts receivable as:

(a) An exempt resource when:

(i) The client makes a diligent effort to collect; or

(ii) If efforts to collect are unsuccessful, the client turns the accounts over to a collection agency;

(b) A nonexempt resource when the client does not meet the requirements in (a) of this subsection; and

(c) Earned income from self-employment, when payment is received.

(6) The department shall consider goodwill as an unavailable resource until the business is sold. Goodwill as used in this section means the reputation and patronage of a company. Goodwill can generally be valued as the amount a company would sell for over the value of its physical property, money owed it, and other assets.

[Statutory Authority: RCW 74.08.090, 74.04.050, 74.04.055, 74.04.005 (10)(b) and P.L. 104-193, Sec. 103 (a)(1) (1996). 97-06-075, 388-216-2500, filed 2/28/97, effective 3/31/97. Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-216-2500, filed 5/3/94, effective 6/3/94. Formerly parts of WAC 388-28-420, 388-28-435 and 388-28-439.]

AMENDATORY SECTION (Amending Order 3862, filed 6/28/95, effective 7/29/95 WAC 388-216-2650 Resources--Exempt within a ceiling value. (1) The department shall exempt the equity value of the resources listed below up to the specified ceiling value. ((Consider)) Any excess value ((as)) is a nonexempt resource and ((apply)) applied to the resource limit of one thousand dollars:

(a) Term or burial insurance, up to a ceiling value of one thousand five hundred dollars per household member;

(b) One used and useful vehicle up to a ceiling value of ((one)) five thousand ((five hundred)) dollars per household;

(c) When a vehicle is jointly owned by ((an AFDC recipient)) a TANF client and an SSI recipient, the equity value of the vehicle is prorated between the owners:

(i) The portion of equity value owned by the SSI recipient is not counted for ((AFDC)) TANF;

(ii) ((Do not count)) The portion of equity value owned by the ((AFDC)) TANF client, up to the ceiling value of ((one)) five thousand ((five hundred)) dollars, does not count;

(iii) ((Consider)) Any portion of the equity value owned by the ((AFDC)) TANF client in excess of the ceiling value ((as)) is a nonexempt resource. ((Per provisions in)) Under WAC 388-216-2000 (3)(b) ((consider)) nonexempt resources will be considered up to the resource limit of one thousand dollars.

(d) Savings accounts with combined balances of up to an additional three thousand dollars for TANF recipients.

(2) The department shall phase in changes to the ceiling values at the first opportunity, when the department first:

(a) Takes a case action;

(b) Determines eligibility; or

(c) Redetermines eligibility.

[Statutory Authority: RCW 74.08.090, P.L. 103-286 and Confederated Tribes of the Colville Reservation Grand Coulee Dam Settlement Act. 95-14-049 (Order 3862), 388-216-2650, filed 6/28/95, effective 7/29/95. Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), 388-216-2650, filed 5/3/94, effective 6/3/94. Formerly parts of WAC 388-28-435 and 388-28-438.]

AMENDATORY SECTION (Amending Order 3862, filed 6/28/95, effective 7/29/95 WAC 388-216-2800 Resources--Value. "Equity value" means fair market value minus encumbrances (legal debts).

(1) The department shall determine the value of all nonexempt resources according to the resource's equity value. When a vehicle is jointly owned by ((an AFDC recipient)) a TANF client and an SSI recipient, the equity value of the vehicle is prorated between the owners:

(a) The portion of equity value owned by the SSI recipient is not counted for ((AFDC)) TANF;

(b) ((Do not count)) The portion of equity value owned by the ((AFDC)) TANF client, up to the ceiling value of ((one)) five thousand ((five hundred)) dollars, ((for the first vehicle)) does not count. Do not apply ((this rule)) to additional vehicles;

(c) ((Consider)) Any portion of the equity value owned by the ((AFDC)) TANF client in excess of the ceiling value ((as)) is a nonexempt resource. ((Per provisions in)) Under WAC 388-216-2000 (3)(b) ((consider)) nonexempt resources will be considered up to the resource limit of one thousand dollars.

(2) The department shall reassess the fair market value if the client provides acceptable evidence that:

(a) A good-faith effort has been made to sell the resource at the fair market value determined by the department; and

(b) The current worth of the resource is less than the resource standard.

(3) The department shall:

(a) Use the National Automobile Dealers Association Official Used Car Guide to determine the resource value of automobiles. For automobiles listed in this guide, the department shall presume the "average loan" value in the current edition represents the resource value.

(b) Use the Kelley Bluebook R.V. Guide to determine the resource value of recreational vehicles. For vehicles listed in this guide, the department shall presume the "wholesale" value in the current edition represents the resource value.

(c) Document the method used to determine the resource value in the case record for vehicles not listed in these guides.

(d) Document evidence in the case record when the values listed in these guides can be overcome by positive evidence to the contrary.

(4) The equity value in the cash discount value of a chattel mortgage or sales contract represents the value of the resource.