WSR 02-06-090

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed March 1, 2002, 3:46 p.m. , effective April 1, 2002 ]

Date of Adoption: February 28, 2002.

Purpose: Amending WAC 388-410-0020 What happens if I get more food assistance benefits than I am supposed to get?, 388-410-0025 Am I responsible for an overpayment in my assistance unit? and 388-410-0030 How does the department calculate and set up my food assistance overpayment?; and new WAC 388-410-0033 How and when does the department collect a food assistance overpayment? The Division of Employment and Assistance Programs is implementing federal regulations on how the department processes and collects overpayments for food assistance.

Citation of Existing Rules Affected by this Order: Amending WAC 388-410-0020, 388-410-0025, and 388-410-0030.

Statutory Authority for Adoption: RCW 74.04.057, 74.04.500, 74.04.510, 7 C.F.R. 273.18.

Adopted under notice filed as WSR 02-03-100 on January 18, 2002.

Changes Other than Editing from Proposed to Adopted Version: Changes to proposed WAC 388-410-0033 filed on January 18, 2002, under WSR 02-03-100. Public hearing - February 26, 2002.

These changes to WAC 388-410-0033 are to incorporate comments received from the Office of Financial Recovery in the DSHS Finance Division. The changes clarify current policy and ensure compliance with the federal regulations.

1. Change subsection (2) to read as follows: (2) If you have an inactive EBT account and we cancelled food assistance benefits in the account under WAC 388-412-0025, we use the cancelled funds to reduce the amount of your overpayment.

2. Change subsection (8) to read as follows: (8) If you no longer get food assistance, we will refer your overpayment for federal collection if the claim is past due for one hundred eighty or more days. 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; or

(b) Meet the requirements of your scheduled repayment agreement.

3. Change subsection (9) to read as follows: (9) If you no longer get food assistance 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.

4. Change part (c) of subsection (12) to read as follows: (c) There is an unpaid balance left after an overpayment case has been suspended for three consecutive years unless a collection may be possible through the Treasury Offset Program.

Number of Sections Adopted in Order to Comply with Federal Statute: New 1, Amended 3, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 3, Repealed 0.
Effective Date of Rule: April 1, 2002.

February 28, 2002

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3033.3
AMENDATORY SECTION(Amending WSR 01-14-032, filed 6/28/01, effective 8/1/01)

WAC 388-410-0020   What ((are the types of)) happens if I get more food assistance ((overpayments)) benefits than I am supposed to get?   (1) If you ((have an overpayment, you received)) get more assistance benefits than you were supposed to ((receive. Your overpayment can be)) get, your assistance unit (AU) has a food assistance overpayment. There are three types of food assistance overpayments:

(a) ((An)) Administrative error overpayment ((if caused by an action or failure to take action by the department; or)): When you received too many benefits because the department made a mistake.

(b) ((An)) Inadvertent household error overpayment ((if caused by either your misunderstanding or unintended error; or)): When you received too many benefits because you made a mistake or didn't understand what you were supposed to do.

(c) ((An)) Intentional program violation (IPV) overpayment ((if caused by something you did on purpose. See)): When you received too many benefits because you broke a food stamp rule on purpose. If you have an IPV, you could be disqualified from receiving food assistance benefits under chapter 388-446 WAC.

(2) ((We set up an administrative overpayment when we:

(a) Discover the overpayment within twelve months of its occurrence; and

(b) Mail the household a recovery demand letter and the overpayment calculation within twenty-four months of discovery date.

(3) We set up an inadvertent household error overpayment when we:

(a) Discover the overpayment within twenty-four months of its occurrence; and

(b) Mail the household a recovery demand letter and the overpayment calculation within twenty-four months of discovery date.

(4) We set up an intentional program violation overpayment when we:

(a) Discover the overpayment within seventy-two months of its occurrence; and

(b) Mail the household a recovery demand letter and the overpayment calculation within twenty-four months of discovery date.)) The department must set up and start collecting an overpayment within certain timeframes. If we do not meet both of the timeframes below based on the type of overpayment your AU has, we will not set up an overpayment:


(a) Administrative error overpayment: (b) Inadvertent household error overpayment: (c) Intentional program violation overpayment:
We must discover the overpayment within twelve months of the date you were overpaid; and We must discover the overpayment within twenty-four months of the date you were overpaid; and We must discover the overpayment within seventy-two months of the date you were overpaid; and
We must mail your household a recovery demand letter and overpayment calculation within twenty-four months of the date that we discovered you were overpaid. We must mail your household a recovery demand letter and overpayment calculation within twenty-four months of the date that we discovered you were overpaid. We must mail your household a recovery demand letter and overpayment calculation within twenty-four months of the date that were discovered you were overpaid.

[Statutory Authority: RCW 74.04.510. 01-14-032, 388-410-0020, filed 6/28/01, effective 8/1/01. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057 and 74.08.090. 98-16-044, 388-410-0020, filed 7/31/98, effective 9/1/98.]


AMENDATORY SECTION(Amending WSR 01-14-032, filed 6/28/01, effective 8/1/01)

WAC 388-410-0025   ((Who is)) Am I responsible for ((food)) an overpayment in my assistance ((overpayments)) unit?   (((1) When your assistance unit receives more food assistance benefits than it was entitled to receive, the department sets up an overpayment claim.

(2) All adult members of your assistance unit at the time of a food assistance overpayment are each responsible for the total overpayment amount until the overpayment is paid. You remain responsible even if you change assistance units)) If your assistance unit (AU) gets more food assistance benefits than it was supposed to get, your AU has an overpayment. If you have an overpayment, the department determines the amount you were overpaid and sets 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.

[Statutory Authority: RCW 74.04.510. 01-14-032, 388-410-0025, filed 6/28/01, effective 8/1/01. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057 and 74.08.090. 98-16-044, 388-410-0025, filed 7/31/98, effective 9/1/98.]


AMENDATORY SECTION(Amending WSR 01-14-032, filed 6/28/01, effective 8/1/01)

WAC 388-410-0030   How does the department calculate and ((recover a)) set up my food assistance overpayment?   (1) The department calculates the amount of your food assistance overpayment by counting the difference between:

(a) The benefits ((actually authorized)) your assistance unit (AU) received; and

(b) The benefits ((that)) your AU should have ((been authorized)) received.

(2) ((We reduce your overpayment by an underpayment if the underpayment amount was:

(a) Not previously returned to you; and

(b) Not already used to reduce a different overpayment.

(3) We establish and take action to collect all overpayments discovered through the department's quality control system regardless of:

(a) The overpayment amount; and

(b) Whether or not you are currently receiving food assistance.

(4) Except for subsection (4) of this section, we take action to collect all inadvertent household or administrative error claims unless:

(a) The entire overpayment claim is canceled by an underpayment;

(b) The claim is one hundred twenty-five dollars or less and the claim cannot be recovered by benefit reduction;

(c) The department cannot locate a responsible assistance unit member; or

(d) The department determines collection action will negatively affect an inadvertent household error case referred for possible prosecution or administrative disqualification.

(5) We take action to collect an intentional program violation overpayment unless:

(a) Your assistance unit has repaid the overpayment;

(b) Responsible assistance unit members cannot be located; or

(c) The department determines collection action will negatively affect the case against an assistance unit member referred for prosecution.

(6) You may repay an overpayment by:

(a) A lump sum;

(b) Regular installments under a payment schedule as specified in subsection (8) of this section; or

(c) Benefit reduction.

(7) Currently participating assistance units responsible for an overpayment may repay by a negotiated monthly installment amount. The repayment amount must be greater than the amount that could be recovered through benefit reduction. The payment schedule may be renegotiated by either the department or the assistance unit.

(8) We automatically reduce your monthly benefits when you are responsible for an administrative or inadvertent household error; and you:

(a) Fail to notify us of your chosen repayment agreement; or

(b) Fail to request a fair hearing and continued benefits within ten days of receipt of the department's collection action notice.

(9) Except for your initial benefits when first certified, we can reduce your monthly benefits to repay the overpayment.

(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 intentional program violation overpayment, we reduce your benefits by the greater of:

(i) Twenty percent of your monthly benefits; or

(ii) Twenty dollars per month.

(10) If you are responsible for an intentional program violation claim, you must chose a repayment agreement within ten days of receipt of your collection action notice. Failing to do so will subject you to involuntary reduction of your current benefit amount.

(11) We automatically reduce your current food assistance benefits when you fail to meet the terms of an agreed repayment schedule unless you:

(a) Catch up with all overdue payments; or

(b) Request re-negotiation of the payment schedule.

(12) If you are no longer receiving food assistance, we must refer your overpayment claim for federal collection if the claim is delinquent for one hundred eighty or more days. Federal collection includes reducing your income tax refund or social security benefits. Your claim is delinquent if you have not:

(a) Repaid the entire overpayment by the due date; or

(b) Met the requirements of your scheduled repayment agreement.

(13) If you are no longer receiving food assistance, we can garnish your wages, file a lien against your personal or real property, or otherwise access your property to collect the overpayment amount.

(14) We suspend collection action when:

(a) A responsible assistance unit member cannot be located; or

(b) Cost of further collection action is likely to exceed the amount that can be recovered.

(15) We can negotiate the amount of an overpayment if the amount offered approximates the net amount expected to be collected prior to the end of the legal collection period.

(16) At the end of the collection period, we write off unpaid overpayments and release any applicable liens when:

(a) There is no further possibility of collection;

(b) There was an accepted offer of compromise leaving an unpaid balance after payment; or

(c) There is an unpaid balance remaining after a case has been in suspense for three consecutive years.

(17) We may collect an assistance unit's overpayments from another state if the originating state does not intend to pursue collection and provides the following:

(a) Documentation of the overpayment computation and overpayment notice prepared for the client; and

(b) Proof of service showing the client received the overpayment notice)) To calculate the benefits your AU should have received, we determine what we would have authorized if we:

(a) Had correct and complete information; and

(b) Followed all the necessary procedures to determine your AU's eligibility and benefits.

(3) If you were underpaid food assistance benefits for a period of time, we will use these benefits to reduce your overpayment if:

(a) We have not already issued you benefits to replace what you were underpaid; and

(b) We have not used this amount to reduce another overpayment.

(4) We set up an inadvertent household error or administrative error overpayment if:

(a) We discovered the overpayment through the quality control process;

(b) You currently get food assistance benefits; or

(c) The overpayment is over one hundred twenty-five dollars and you do not currently get food assistance benefits.

(5) We do not set up inadvertent household error or administrative error overpayment if:

(a) We cannot find the responsible AU members; or

(b) We have referred your inadvertent household error for prosecution or an administrative disqualification hearing and collecting the overpayment could negatively impact this process.

(6) We set up an intentional program violation overpayment unless:

(a) Your AU has repaid the overpayment;

(b) We cannot find the responsible AU members; or

(c) We have referred your inadvertent household error for prosecution and collecting the overpayment could negatively impact this process.

[Statutory Authority: RCW 74.04.510. 01-14-032, 388-410-0030, filed 6/28/01, effective 8/1/01. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057 and 74.08.090. 98-16-044, 388-410-0030, filed 7/31/98, effective 9/1/98.]


NEW SECTION
WAC 388-410-0033   How and when does the department collect a food assistance overpayment?   (1) 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 installments under a payment schedule as specified in subsection (3) of this section; or

(d) Having your current food assistance benefits reduced.

(2) If you have an inactive EBT account and we cancelled food assistance benefits in the account under WAC 388-412-0025, we use the cancelled funds to reduce the amount of your overpayment.

(3) If your AU currently gets food assistance, you can repay your overpayment by monthly installments that you agree on with the department. The agreement 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.

(4) If you are responsible for repaying an administrative or inadvertent household error overpayment, we automatically reduce your monthly benefits if you do not:

(a) Pay the overpayment all at once;

(b) Set up a repayment agreement with us; or

(c) Request a fair hearing and continued benefits within ninety days of the date you received your collection action notice.

(5) 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 get your collection action notice. If you do not do this, we will reduce your current monthly benefits.

(6) If you get ongoing food assistance benefits we can reduce your monthly benefits to repay the overpayment. We do not reduce your first food assistance allotment when we approve your application for food assistance 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.

(7) If you do not meet the terms of a repayment agreement with the department, we automatically reduce your current food assistance benefits unless you:

(a) Catch up with all overdue payments; or

(b) Ask us to consider a change to the repayment schedule.

(8) If you no longer get food assistance, we will refer your overpayment for federal collection if the claim is past due for one hundred eighty or more days. 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; or

(b) Meet the requirements of your scheduled repayment agreement.

(9) If you no longer get food assistance 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.

(10) 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.

(11) We can negotiate the amount of an overpayment if the amount you offer is close to what we could expect to get from you before we can no longer legally collect the overpayment from you. (12) We write off unpaid overpayments and release any related liens when:

(a) We can not possibly collect any more funds;

(b) We agreed to accept a partial payment that left an unpaid balance after this payment; or

(c) There is an unpaid balance left after an overpayment case has been suspended for three consecutive years unless a collection may be possible through the Treasury Offset Program.

(13) 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.

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Washington State Code Reviser's Office