WSR 04-01-145



(Aging and Disability Services Administration)

[ Filed December 19, 2003, 1:49 p.m. ]

     Date Adopted: December 19, 2003.

     Purpose: The Division of Developmental Disabilities (DDD) has been directed by the 2002 Washington state legislature to begin paying an income supplemental, called state supplementary payment (SSP). Implementation of this directive requires the adoption of new chapter 388-827 WAC, Division of developmental disabilities -- State supplementary payment. These rules are needed to extend emergency rules filed as WSR 03-18-027 on August 25, 2003, while the department completes the regular rule-making process. Proposed rules were filed as WSR 03-22-056, and a public hearing was held on December 9, 2003.

     Statutory Authority for Adoption: RCW 71A.12.030.

     Other Authority: RCW 71A.10.020, 2001-03 Supplemental Budget ESSB 6387 (chapter 371, Laws of 2002).

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

     Reasons for this Finding: The state legislature has directed the DDD to begin paying an income supplement. In its published ESSB 6387, the legislature also clearly stated: "New funding for family support and transition along with portions of existing funding for these programs shall be provided as supplemental security income (SSI) state supplemental payments. The legislature finds that providing cash assistance to individuals and families needing these supports promotes self-determination and independence. It is the intent of the legislature that the department shall comply with federal requirements to maintain aggregate funding for SSI state supplemental payments while promoting self-determination and independence for persons with developmental disabilities..."

     On July 18, 2003, the Social Security Administration informed the state that its current rules did not satisfy requirements under section 1616(a) and 1618 of the Social Security Act ("the Act"), 42 U.S.C. 1382(e)[a], 42 U.S.C. 1382(g) and regulations at 20 C.F.R. 416.2001 and 20 C.F.R. 416.2095-.2099. Specifically, payment to individuals with developmental disabilities to purchase employment/day programs were found by SSA to be vendor payments and disallowed as SSP. Failure to comply with these requirements jeopardizes the department's ability to receive federal financial participation (FFP) under Title XIX of the act. These emergency rules eliminate the restrictions on SSP and removes SSP funding for employment/day programs.

     Immediate adoption is necessary to preserve the public health and general welfare to allow the state to continue to receive FFP for its Medicaid program under Title XIX of the act. The loss of FFP would effectively terminate medical assistance under Title XIX for low-income families and individuals in the state of Washington. Emergency adoption of these rules is necessary to implement ESSB 6387 and to comply with the requirements of federal law cited above.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 26, 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 26, Amended 0, Repealed 0.

     Effective Date of Rule: Immediately.

December 17, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

Chapter 388-827     WAC


WAC 388-827-0100   What is the State Supplementary Payment (SSP) that is administered by the division of developmental disabilities (DDD)?   The State Supplementary Payment (SSP) is a state-paid cash assistance program for certain clients of the division of developmental disabilities.


WAC 388-827-0105   What are the eligibility requirements for the DDD/SSP program?   To be eligible to receive DDD/SSP, you must be determined DDD eligible under RCW 71A.10.020 and meet all of the financial and programmatic criteria for DDD/SSP.


WAC 388-827-0110   What are the financial eligibility requirements to receive DDD/SSP?   You must be eligible for or receive Supplemental Security Income (SSI) cash assistance in the month in which the DDD/SSP is issued.


WAC 388-827-0115   What are the programmatic eligibility requirements for DDD/SSP?   (1) You received one or more of the following services from DDD with state-only funding between March 1, 2001 and June 30, 2003 and continue to demonstrate a need for and meet the DDD program eligibility requirements for these services.

     (a) Certain voluntary placement program services, which include:

     (i) Foster care basic maintenance,

     (ii) Foster care specialized support,

     (iii) Agency specialized support,

     (iv) Staffed residential home,

     (v) Out-of-home respite care,

     (vi) Agency in-home specialized support,

     (vii) Group care basic maintenance,

     (viii) Group care specialized support,

     (ix) Transportation,

     (x) Agency attendant care,

     (xi) Child care,

     (xii) Professional services,

     (xiii) Nursing services,

     (xiv) Interpreter services,

     (b) Family support;

     (c) One or more of the following residential services:

     (i) Adult family home,

     (ii) Adult residential care facility,

     (iii) Alternative living,

     (iv) Group home,

     (v) Supported living,

     (vi) Agency attendant care,

     (vii) Supported living or other residential service allowance,

     (viii) Intensive individual supported living support (companion homes).

     (2)     For individuals with community protection issues as defined in WAC 388-820-020, the department will determine eligibility for SSP on a case-by-case basis.

     (3) For new authorizations of family support opportunity:

     (a) You were on the family support opportunity waiting list prior to January 1, 2003; and

     (b) You are on the home and community based services (HCBS) waiver administered by DDD; and

     (c) You continue to meet the eligibility requirements for the family support opportunity program contained in WAC 388-825-200 through 388-825-242.


WAC 388-827-0120   How often will my eligibility for DDD/SSP be re-determined?   Redetermination of eligibility for the DDD/SSP program will be conducted at least every twelve months, or more frequently if deemed necessary by DDD.


WAC 388-827-0125   How will I know if I am eligible to receive a DDD/SSP payment?   You will receive a written notification from DDD if you have been identified as eligible for this program.


WAC 388-827-0130   Can I choose not to accept DDD/SSP payments?   If your service funding has been converted to the DDD/SSP program, DDD/SSP payments are the only way you can receive that funding.

     (1)     If you choose not to receive DDD/SSP payments, you will not receive department funding for that service.

     (2)     Your home and community based services (HCBS) waiver service(s) administered by DDD but not funded by DDD/SSP payments will not be affected by your choice to receive or reject DDD/SSP payments.


WAC 388-827-0131   What happens if I no longer meet the financial or programmatic requirements after my funding has been converted to the DDD/SSP program?   If you no longer meet the eligibility requirements in WAC 388-827-0105, 388-827-0110, or 388-827-0115, you may continue to receive services only if an exception to the rules is approved in accordance with WAC 388-827-0300.


WAC 388-827-0135   Can I apply for the DDD/SSP program if I am not identified by DDD as eligible for the DDD/SSP program?   You can apply through your case resource manager to determine eligibility for SSP but eligibility is limited to those meeting the eligibility requirements in WAC 388-827-0105, 388-827-0110, and 388-827-0115.


WAC 388-827-0140   What are my appeal rights if DDD determines that I am not eligible for DDD/SSP?   (1) You have the right to appeal the department's denial, termination, or reduction of services. Your rights to an adjudicative proceeding are in WAC 388-825-120.

     (2) Your current services will not be continued while the matter is being appealed if the service termination or transfer is for a specific group of clients in order to meet the legislative intent of and comply with sections 205 and 207, chapter 371, Laws of 2002.


WAC 388-827-0145   How much money will I receive?   The purpose of the SSP is to increase the amount of income to meet your needs. The department will determine your payment amount based on your living arrangement and your assessed needs.

     (1)     For residential and voluntary placement program services, the amount of your SSP will be based on the amount of state-only dollars spent on certain services at the time the funding source was converted to SSP. If the type of your residential living arrangement changes, your need will be reassessed and your payment adjusted based on your new living arrangement and assessed need.

     (2) For family support services, refer to WAC 388-825-200 through 388-825-284.

     (a) If you are on the home and community based services (HCBS) waiver administered by DDD:

     (i) You will receive nine hundred dollars DDD/SSP money per year to use as you determine.

     (ii)     The remainder up to the maximum allowed may be authorized by DDD to purchase HCBS waiver services and will be paid directly to the provider.

     (b) If you are not on the HCBS waiver administered by DDD, you will receive the yearly maximum allowed in the form of DDD/SSP money to use as you determine.

     (c)     The yearly amount of DDD/SSP money will be prorated into monthly amounts. You will receive one twelfth of the yearly amount each month.


WAC 388-827-0146   May I voluntarily remove myself from the home and community based services (HCBS) waiver administered by DDD in order to increase the amount of my SSP?   You may voluntarily remove yourself from the HCBS waiver administered by DDD but your SSP will not increase because of this action.


WAC 388-827-0150   How often will I receive my DDD/SSP warrant/check?   You will receive a monthly warrant/check from the state.


WAC 388-827-0155   Who will the warrant/check be sent to?   (1) If you are a child under the age of eighteen, the warrant/check will be sent to your legal representative or protective payee or representative payee.

     (2) If you are a person age eighteen and older, the warrant/check will be sent directly to your protective payee or representative payee if you have one.

     (3) If you do not have a protective payee or representative payee, the warrant/check will be sent directly to you.


WAC 388-827-0160   How will the warrant/check be sent?   You may choose to have your check delivered through the US Postal Service, or as an electronic funds transfer.


WAC 388-827-0170   Are there rules restricting how I use my DDD/SSP money?   There are no restrictions on how you use your DDD/SSP money.


WAC 388-827-0175   What changes must I report to the department?   You must report changes in your circumstances within ten days from the date you become aware of the change. You must tell us if:

     (1) Your SSI stops;

     (2) Your address changes; or

     (3) There is a change in your living arrangement that affects your assessed need.


WAC 388-827-0180   Do I have additional responsibilities when I purchase my own services?   (1) When you use DDD/SSP funds paid directly to you to purchase in-home services from individuals, you become the employer. As the employer, you may have tax liabilities. If you have questions regarding employer tax issues, you can contact the Internal Revenue Service.

     (2) If you want to obtain a criminal background check of any employee who will have unsupervised access to children or adults with developmental disabilities, you may get the background check done through the Washington State Patrol. You can ask your DDD case resource manager to assist you with completing these background checks.


WAC 388-827-0185   When will the department stop sending my DDD/SSP money?   The department will stop sending your DDD/SSP money when:

     (1) You no longer are eligible for or receive SSI cash benefits;

     (2) You no longer demonstrate a need for the services as described in WAC 388-827-0115; or

     (3) Your DDD eligibility is terminated.


WAC 388-827-0200   What is a representative payee?   A representative payee is a person, organization, institution or agency that manages your DDD/SSP. They may also provide services such as helping you manage your money.


WAC 388-827-0210   Who can be a representative payee for my DDD/SSP?   (1) A representative payee may be:

     (a) The person, organization, institution or agency that acts as your representative payee for Supplemental Security Income (SSI);

     (b) Your parent, if you are under eighteen;

     (c) Your spouse; or

     (d) A person, organization, institution or agency you select if the department approves your selection.

     (2) If you select a representative payee under subsection (1)(d) of this section, the department will evaluate the selection according to the following criteria:

     (a) The relationship of the payee to you;

     (b) The amount of interest the payee shows in you;

     (c) Any legal authority the payee has to act on your behalf;

     (d) Whether the payee has custody of you; and

     (e) Whether the payee is in a position to know of and look after your needs.

     (3) The DDD director or designee will approve or deny your request for a representative under subsection (1)(d) of this section.


WAC 388-827-0215   What are the responsibilities of a representative payee?   A representative payee has the responsibility to:

     (1) Spend the DDD/SSP on you or your behalf;

     (2) Notify the department if any event happens that may affect the amount of benefits you receive;

     (3) Submit to the department, upon our request, a written report accounting for the payments received; and

     (4) Notify the department of any change in the payee's circumstances that would affect performance of the payee responsibilities.


WAC 388-827-0300   Does DSHS make exceptions to the requirements in this chapter?   DSHS may grant exceptions to the requirements specified in this chapter as long as the following conditions are met:

     (1) You or your case manager may request an exception to a rule in this chapter.

     (2) The case manager must submit a written request for an exception to his or her DDD regional administrator.

     (3) DSHS will evaluate requests for exceptions, considering:

     (a) The federal and state rules governing SSP; and

     (b) The impact on the client if the exception is not approved.

     (4) The DDD regional administrator will forward the request to the DDD director together with the regional administrator's recommendation to approve or deny the request.

     (5) The DDD director or designee will approve or deny the request in writing within sixty calendar days after receiving the request from the case manager.

     (6) The department will notify you of the decision.

     (7) You do not have rights to adjudicative proceedings when you receive a denial from DSHS for an exception to the rules in this chapter.


WAC 388-827-0400   What is an SSP overpayment?   (1) An overpayment means any SSP paid that is more than the amount you were eligible to receive.

     (2) If you request a hearing and the hearing decision determines that you received any DDD/SSP money that you were not eligible to receive, then some or all of the DDD/SSP you received before the hearing decision must be paid back to the department.


WAC 388-827-0410   When can an overpayment occur?   An overpayment can occur when:

     (1) You were not eligible for and did not receive Supplemental Security Income in the month in which the SSP was issued;

     (2) You were no longer eligible for services from the division of developmental disabilities in the month in which the SSP was issued; or

     (3) Your assessed need has changed.


WAC 388-827-0420   Who is liable for repayment of an overpayment?   (1) If you received the money in your own name, you are responsible for repayment.

     (2) If you are paid through a representative payee, both you and the representative payee may be responsible for repayment.

     (a) You are responsible to the extent that the incorrect payments were spent on you or your behalf. Funds conserved by a representative payee to which you do not have direct access have not been spent on you or your behalf.

     (b) If the incorrect payments were spent on you or your behalf and the representative payee is without fault in connection with the overpayment, you are solely responsible for repayment.

     (c) The representative payee is solely responsible for repayment if:

     (i) The incorrect payments were not spent on you or your behalf; and

     (ii) The representative payee is at fault in connection with the overpayment.

     (d) A government entity or an institution can be a representative payee and can be found responsible for repayment -- just as a private individual can.

     (e) You and the representative payee are both responsible for repayment when the incorrect payments have been spent on you or your behalf and the representative payee is at fault.

     (3) The representative payee is at fault when the representative payee was aware of the reason you were not eligible for the SSP.