WSR 98-11-074
PROPOSED RULES
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES
(Economic Services Administration)
[Filed May 19, 1998, 11:40 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 98-07-099.
Title of Rule: Chapter 388-265 WAC, Payment of grants and related rules.
Purpose: To consolidate and simplify program and eligibility requirements for cash, food, and medical assistance to comply with criteria in the Governor's Executive Order 97-02.
Statutory Authority for Adoption: RCW 74.08.090.
Statute Being Implemented: RCW 74.08.090.
Summary: The rules include the reasons for assigning and removing a client from protective payee status, the criteria for selecting a payee, and the description of what payees do.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Kay Hanvey, Division Assistance Programs, P.O. Box 45470, Olympia, WA 98504-5470, (360) 413-3100.
Name of Proponent: Department of Social and Health Services, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The reason these rules are being revised is to comply with the Governor's Executive Order 97-02, to implement regulatory reform. The rules are shortened, clarified, and simplified. Department procedures and contractual elements have been removed.
Proposal Changes the Following Existing Rules: WAC 388-265-1150, 388-265-1155, 388-265-1200, 388-265-1250, 388-265-1275, 388-265-1300, 388-265-1375, 388-265-1450, 388-265-1500, and 388-265-1600.
No small business economic impact statement has been prepared under chapter 19.85 RCW. There is no cost to businesses as the result of these actions.
RCW 34.05.328 does not apply to this rule adoption. These rules are not considered significant rules because they do not change existing policy.
Hearing Location: Lacey Government Center (behind Toyko Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on June 23, 1998, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Paige Wall, phone (360) 902-7540, TTY (360) 902-8324, e-mail pwall@dshs.wa.gov.
Submit Written Comments to: Identify WAC Numbers, Paige Wall, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, FAX (360) 902-8292, by June 23, 1998.
Date of Intended Adoption: June 24, 1998.
May 18, 1998
Marie Myerchin-Redifer, Manager
Rules and Policies Assistance Unit
SHS-2388:2
AMENDATORY SECTION (Amending WSR 94-10-065, filed 5/3/94, effective 6/3/94)
WAC 388-265-1150 Protective payee--General information.
(1) ((The person chosen as the)) A protective payee ((may be:
(a) A relative, friend, neighbor, clergy, or member of a
church or community service group;
(b) A person who serves with a voluntary social agency;
(c) A home economist with a public or private organization;
(d) A member of a practical nurse association, or other
agency;
(e) For AFDC, a staff member of a public agency administering child welfare, health, rehabilitation, and housing programs;
(f) A department staff member of homemaker services,
housekeeping aide program; or
(g) An employee of the department when another suitable
person is not available.
(2) An employee of the department shall not serve as payee
for a client in the employee's regular caseload.
(3) For a GAU client who is determined by the department to
be actively addicted, the department shall select a:
(a) Department approved alcohol/drug treatment or assessment
agency;
(b) Designated staff of a community mental health agency;
(c) Social service agency, individual, or corporation who
has a written agreement with the department to provide protective
payee services;
(d) Judicially appointed guardian or other legal
representative when such appointment appears to serve the best
interests of the client; or
(e) Department employee.
(4) The department shall give preference to a specialist in
home and money management over other department staff.
(5) To avoid conflict of interest, the protective payee may
not be:
(a) The office administrator;
(b) The employee determining the financial eligibility of
the client;
(c) The employee recommending the protective payee plan;
(d) A vendor of goods and services dealing directly with the
client;
(e) A special investigative or resource employee;
(f) The employee authorizing payment for the client; or
(g) For AFDC, any department employee, when the department
has legal custody or the responsibility for placement and care of
the child.
(6) Standards for selecting a protective payee include, but
are not limited to:
(a) Interest and concern in the client's welfare;
(b) Ability to help the client make proper use of the
assistance payment;
(c) Accessibility to the client or client's family;
(d) Ability to establish and maintain a positive
relationship with the client and client's family; and
(e) Good character and reliability.
(7) To the extent possible, the client shall choose the
protective payee, or participate in the selection of the
protective payee)) is a person or agency who manages client cash
benefits to provide for basic needs - housing, utilities,
clothing, child care and food. They may also provide services
such as training clients in money management.
(2) Clients are assigned to protective payees for the following reasons:
(a) Emergency or temporary situations where a child is left without a caretaker (TANF/SFA);
(b) Noncooperation with WorkFirst program requirements (TANF/SFA; or
(c) Mismanagement of money.
[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1150, filed 5/3/94, effective 6/3/94. Formerly parts of WAC 388-33-440 and 388-33-455.]
NEW SECTION
WAC 388-265-1155 Protective payee selection. (1) Clients may ask for a particular protective payee, but the department makes the final choice.
(2) Protective payees must contract with the department, except for employees of the department who are assigned this function as part of their job duties.
(3) A departmental employee acting as protective payee cannot:
(a) Have the client in their caseload,
(b) Have the client in the caseloads of other employees under their supervision,
(c) Be responsible for determining or issuing benefits for the client,
(d) Be the office administrator,
(e) Be a special investigator.
(4) For TANF/SFA, a department employee cannot act as protective payee when the department has legal custody or responsibility for placement and care of the child.
[]
AMENDATORY SECTION (Amending WSR 94-10-065, filed 5/3/94, effective 6/3/94)
WAC 388-265-1200 Emergency ((AFDC)) and temporary
protective payees (TANF/SFA). (((1) The department shall make
AFDC payment on behalf of a child, in most circumstances, to the
parent as the a caretaker relative.
(2) The department may make payment to another person on
behalf of a child, when the caretaker relative is not available,
or does not have legal custody of the child.
(3) The department may pay AFDC to a person, other than a
relative of specified degree, acting for the caretaker relative
when the:
(a) Emergency situation is temporary;
(b) Person other than the caretaker relative, lives with,
and assumes care and supervision of a child;
(c) Emergent situation deprives a child of the care and
supervision of the caretaker relative with whom the child lives;
(d) Emergent situation requires the department to make and
carry out new plans for the:
(i) Child's continuing care and support; and
(ii) Transfer of responsibility for the child to a more
permanent arrangement.
(4) The emergency payee is not included in the AFDC
assistance unit.
(5) The department shall provide the client with written
notice of the protective payment as described under WAC 388-265-1550)) An emergency protective payee is assigned when a caretaker
relative is not available to take care of and supervise a child
due to an emergency.
[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1200, filed 5/3/94, effective 6/3/94. Formerly WAC 388-33-420 (part).]
AMENDATORY SECTION (Amending WSR 97-02-047, filed 12/30/96, effective 1/30/97)
WAC 388-265-1250 Protective payee or vendor payment due to
mismanagement of ((grant)) money. (1) The ((rules in this
section do not apply)) decision to assign a person to a
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 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)) payee
because of mismanagement of funds must be based in law, such as
teen parents (RCW 74.04.0052) or on documented evidence in the
case file. The documentation must be current and show that the
mismanagement threatens the well being of a child on TANF/SFA or
of the client. Examples of evidence are:
(a) Department employees or others observe the client or client's children are hungry, ill, or not adequately clothed.
(b) Repeated requests for more money, for example emergency additional requirements, or for basic essentials such as food, utilities, clothing, and housing.
(c) A series of evictions or utility shut offs.
(d) Medical or psychological evaluations.
(e) An ADATSA alcohol/drug assessment which establishes incapacity due to alcoholism or drug addiction.
(f) Nonpayment of an in home child care provider when payment has been issued by the department for that purpose.
(g) Complaints from vendors showing a pattern of failure to pay bills or rent.
(2) A lack of money or a temporary shortage of money because of an emergency does not constitute mismanagement.
(3) When a client has a history of mismanaging money, benefits can be paid directly to vendors or through a protective payee.
[Statutory Authority: RCW 74.04.050, 43.20A.550 and 74.08.090. 97-02-047, § 388-265-1250, filed 12/30/96, effective 1/30/97. 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.]
AMENDATORY SECTION (Amending WSR 97-20-128, filed 10/1/97, effective 11/1/97)
WAC 388-265-1275 ((Protective payment--)) Assigning
TANF/SFA or GA pregnant or parenting ((or pregnant)) minors to
protective payee. ((Refer to RCW 74.04.0052)) Clients are
assigned to protective payees if the clients are:
(1) Under age 18; and
(2) Unmarried; and
(e) Pregnant or have a dependent child.
[Statutory Authority: RCW 74.08.090 and 74.04.057. 97-20-128, § 388-265-1275, filed 10/1/97, effective 11/1/97. Statutory Authority: Chapter 74.12 RCW and E2 SHB 2798. 94-20-040 (Order 3785), § 388-265-1275, filed 9/28/94, effective 10/29/94.]
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.
AMENDATORY SECTION (Amending WSR 94-10-065, filed 5/3/94, effective 6/3/94)
WAC 388-265-1300 Assigning TANF/SFA clients sanctioned for
noncooperation or nonparticipation with WorkFirst activities to
protective ((payment--AFDC clients sanctioned for failure, or
refusal to cooperate with the job opportunities and basic skills
training program (jobs))) payees. (1) ((The department shall
determine if a client certified to the jobs program has refused,
or failed to participate in the jobs program without good cause.
(2) The department shall require protective payment for a
client determined by the department to not have good cause for
refusing, or failing to cooperate with the jobs program.
(3) The department shall make direct payment to the
sanctioned client if the department, after making a reasonable
effort, is unable to locate a protective payee.
(4) The department shall select a protective payee following
the criteria under WAC 388-265-1500.
(5) The department shall notify the client in writing of
protective payment as described under WAC 388-265-1550.
(6) The department shall resume direct payment to the
caretaker relative when the department determines that the
caretaker relative:
(a) Is participating in jobs as required by the department;
or
(b) Has good cause for refusal to participate in jobs
Clients in their second month of sanction for noncooperation or
nonparticipation in WorkFirst work activities must be assigned to
protective payees.
(2) Clients under sanction remain in protective payee status until they cooperate with WorkFirst and the sanction is removed, as long as they are receiving assistance.
[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1300, filed 5/3/94, effective 6/3/94. Formerly WAC 388-33-450 (part).]
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.
NEW SECTION
WAC 388-265-1375 Transfer from protective payees to limited guardianship. (1) In emergency cases where a person is physically or mentally unable to manage their own funds, the client is referred to other divisions of the department for full care, including full legal guardianship or other legal representation.
(2) In cases where a child is eligible for TANF/SFA and the caretaker relative does not use the benefits for adequate care of the child, the case can be referred to the attorney general to establish a limited guardianship.
(3) This process is used only if it appears there is a need for services to go beyond two years.
(4) These guardianships are limited to management of DSHS benefits.
(5) The protective payee plan is changed if a guardian is appointed. The guardian is designated as the protective payee.
[]
AMENDATORY SECTION (Amending WSR 94-10-065, filed 5/3/94, effective 6/3/94)
WAC 388-265-1450 Protective payee responsibility and fees.
(1) The ((department shall define the)) protective payee's
responsibilities ((in writing. The department will provide a
copy of the protective payee's responsibilities to:
(a) The protective payee;
(b) The client; and
(c) The case record.
(2) The payee and the department share the responsibility
for developing a plan to improve the client's capacity to handle
money and to evaluate the client's progress.
(3) The protective payee shall have the authority and
responsibility to make decisions about the expenditures of the
assistance payment.
(4) The teaching component for AFDC protective payment
requires that the caretaker relative participate in the decision
making to the extent of the caretaker relative's ability to do
so.
(5) The protective payee shall provide an accounting record
to the department to verify that they are spending the assistance
money on behalf of the client.
(6) The department shall review the protective payee's
accounting record and determine the appropriateness of the
expenditures.
(7) The protective payee shall return any remaining funds to
the department when the protective payee relationship is
terminated for any reason)) are to:
(a) Manage client funds to pay bills for basic needs, such as housing and utilities, and as directed in the protective payee plans;
(b) Provide money management for client when this item is included in the protective payee plans;
(c) Urge clients to comply with WorkFirst and other program requirements, such as getting a job or attending school;
(d) Provide reports to the department on client progress.
(2) Protective payee vendors are paid up to forty dollars administrative fees per assigned client per month.
[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1450, filed 5/3/94, effective 6/3/94. Formerly WAC 388-33-455 (part).]
AMENDATORY SECTION (Amending WSR 94-10-065, filed 5/3/94, effective 6/3/94)
WAC 388-265-1500 Protective payee ((or vendor payee))
plans. (1) ((The department shall review the need for protective
payment and the)) A protective payee(('s performance of duties as
frequently as indicated by the client's circumstances, but no
less than every six months.
(2) The department shall approve a protective or vendor
payment plan for AFDC which initially does not exceed a three-month period.
(3) The department may, after the initial review of the AFDC
plan, authorize protective payment up to a maximum of twenty-four
consecutive months. This plan must be reviewed no less then
every six months.
(4) The review shall include an evaluation whether:
(a) Conditions justify continuation, or a modification of
the plan;
(b) The protective payee's responsibilities are being
carried out appropriately;
(c) The client can be expected to resume the payee function;
or
(d) A court appointed guardian or foster care is needed
because:
(i) The client cannot learn the payee functions; and
(ii) It appears the plan will continue beyond two years))
plan is developed for each case assigned to a protective payee.
(2) A copy of the plan is provided to:
(a) The protective payee; and
(b) The client.
(3) Protective payee status must be reviewed:
(a) After an initial three month period; and
(b) At least every six months beyond the initial period for on-going cases.
(4) Reviews include evaluation of:
(a) The need for the client to continue in protective payee status;
(b) The need to change the plan;
(c) The client's potential to assume control of their funds (or be removed from protective payee status); and
(d) Protective payee performance.
[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1500, filed 5/3/94, effective 6/3/94. Formerly parts of WAC 388-33-442, 388-33-448 and 388-33-458.]
AMENDATORY SECTION (Amending WSR 94-10-065, filed 5/3/94, effective 6/3/94)
WAC 388-265-1600 ((Termination of)) Ending protective payee
((or vendor payee payment status and changing payees. (((1) The
department may remove a protective payee:
(a) Upon the payee's request;
(b) When a different payee is designated by the department;
(c) When the client is ready to resume the payee function;
or
(d) When a judge has appointed a guardian or other legal
representative.
(2) Vendor payment is discontinued when:
(a) The department locates a person to serve as protective
payee; or
(b) When the client is ready to resume the payee function.
(3) If a guardian is appointed for the client the department
shall change the protective payee plan and designate the guardian
as the protective payee)) A client may be removed from a
protective payee when a:
(1) Protective payee requests the client be reassigned;
(2) Different protective payee is assigned; or
(3) Protective payee is no longer required.
[Statutory Authority: RCW 74.08.090. 94-10-065 (Order 3732), § 388-265-1600, filed 5/3/94, effective 6/3/94. Formerly parts of WAC 388-33-446 and 388-33-457.]
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 388-265-1400 Vendor payee.
WAC 388-265-1550 Client notification of protective payee or vendor payee.
WAC 388-265-1700 Confidential information--Protective payee or vendor payee.