Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-08-091.

     Title of Rule and Other Identifying Information: WAC 388-446-0015 Intentional program violation (IPV) and disqualification hearings for food assistance.

     Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane, behind Goodyear Tire. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6097), on November 8, 2005, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than November 9, 2005.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m. November 8, 2005.

     Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by November 4, 2005, TTY (360) 664-6178 or phone (360) 664-6097 or by e-mail at schilse@dshs.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Rule amendments are necessary to remove language inconsistent with federal requirements under 7 C.F.R. 273.16 and incorporate trafficking into the definition; also to remove obsolete WAC and procedure references and update language.

     Reasons Supporting Proposal: Current rule text is out of compliance with referral policy under federal regulation, which stipulates that the state agency cannot pursue both an administrative disqualification hearing and a criminal proceeding for an IPV simultaneously. Trafficking benefits is considered an IPV offense under federal rule and must be added to the WAC definition.

     Further, WAC references for hearings in the rule are obsolete and need correction, and outdated procedures and language require updating.

     Statutory Authority for Adoption: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090.

     Statute Being Implemented: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090.

     Rule is necessary because of federal law, 7 U.S.C. 2015(b)(1) and (2).

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

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Rebecca Henrie, 1009 College S.E., Lacey, WA 98504, (360) 725-4615.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This proposed rule does not have an economic impact on small businesses, it only affects DSHS clients by outlining the rules clients must meet in order to be eligible for the department's cash assistance or food benefit programs.

     A cost-benefit analysis is not required under RCW 34.05.328. The amendments to subsections (1) and (2) are exempt as allowed under RCW 34.05.328 (5)(b)(iii) which states in-part, "[t]his section does not apply to...rules adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies...if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule."

     The amendments to subsections (3) through (11) are procedural in nature and are not significant legislative rules as defined under RCW 34.05.328 (5)(c)(i) which states in-part, "[f]or purposes of this subsection...a "procedural rule" is a rule that adopts, amends, or repeals (A) any procedure, practice, or requirement relating to any agency hearings."

September 23, 2005

Andy Fernando, Manager

Rules and Policies Assistance Unit

     (a) Makes a false or misleading statement;

     (b) Misrepresents, conceals or withholds facts; or

     (c) Acts in violation of the Food Stamp Act, the Food Stamp Program regulations, or any state statute relating to the use, presentation, transfer, acquisition, receipt, trafficking, or possession of food ((stamp coupons or FCAs)) benefits.

     (2) Basic Food ((assistance)) clients suspected of committing an ((())IPV(())) are subject to referral for an administrative disqualification hearing, if:

     (a) The suspected IPV causes an over issuance of four hundred fifty dollars or more; ((and)) or

     (b) The suspected IPV is due to the trafficking of food benefits; and

     (c) The ((administrative proceedings will not jeopardize)) person has not been referred for criminal proceedings; and

     (((c))) (d) The person resides in Washington state, at the time of the referral; or

     (((d))) (e) The person resides outside Washington state, but is within one hour's reasonable drive to a CSO.

     (3) An administrative disqualification hearing (ADH) is a formal hearing to determine if a person committed an IPV. ADHs are governed by the rules found in chapter ((388-08)) 388-02 WAC. However, rules in this section are the overriding authority if there is a conflict.

     (4) A client who commits one or more IPVs and is suspected of committing another, is referred for an ADH when the act of suspected violation occurred:

     (a) After the department mailed the disqualification notice to the client for the most recent IPV; or

     (b) After ((an order was entered in)) criminal proceedings for the most recent IPV are concluded.

     (5) A person suspected of IPV is entitled to receive notice of an ADH at least thirty days in advance of the hearing date. The notice is sent by certified mail, or provided to the client by personal service and will contain the following:

     (a) The date, time, and place of the hearing;

     (b) The charges against the individual;

     (c) A summary of the evidence, and how and where the evidence can be examined;

     (d) A warning that a decision will be based solely on evidence provided by the department, if the individual fails to appear at the hearing;

     (e) A statement that the individual has ten days from the date of the scheduled hearing to show good cause for failure to appear at the hearing and to request rescheduling;

     (f) A warning that a determination of IPV will result in a disqualification period; and

     (g) A statement that if a telephone hearing is scheduled, the individual can request an in-person hearing by filing a request with the administrative law judge one week or more prior to the date of the hearing.

     (6) The person or a representative shall have the right to one continuance of up to thirty days if a request is filed ten days or more prior to the hearing date.

     (7) The hearing will be conducted and a decision rendered even if the person or representative fail to appear, unless within ten days from the date of the scheduled hearing:

     (a) The person can show good cause for failing to appear; and

     (b) The person or representative requests the hearing be re-instated.

     (8) A scheduled telephone hearing may be changed to an in-person hearing if requested one week or more in advance. If requested less than one week in advance the person must show good cause for the requested change.

     (9) The ALJ issues a ((preliminary)) final decision ((based on)) as specified in WAC 388-02-0215(5) and WAC 388-02-0527. The decision determines whether evidence presented by the department ((establishing)) clearly establishes that the person committed and intended to commit an IPV. ((The department and the client each have the right to request a review of the ALJ's decision by writing to the department's board of appeals as specified in WAC 388-08-464.))

     (10) ((A final decision of the disqualification hearing is mailed by the department's board of appeals)) The department and the client each have the right to request a reconsideration of the decision as specified in WAC 388-02-0610 through 388-02-0635. The final order or the reconsideration decision is the final agency decision.

     (11) A client's disqualification is not implemented and benefits continue at the current amount when:

     (a) The client can show good cause for not attending the hearing within thirty days from the date the disqualification notice was mailed; and

     (b) An administrative law judge determines the client had good cause; or

     (c) The client requests reconsideration or files a petition for judicial review to appeal the disqualification as specified in WAC 388-02-0530 (1) or (4).

     (12) An administrative disqualification hearing and ((an overissuance)) a regular hearing can be combined when the cause for both hearings is related. ((The hearing procedures and notice requirements are the same as for administrative disqualification hearings.))

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057 and 74.08.090. 98-16-044, § 388-446-0015, filed 7/31/98, effective 9/1/98.]

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