Effective Date of Rule: July 1, 2012.

     Purpose: Pursuant to RCW 74.08A.120, the department is establishing a state-funded food assistance program for legal immigrants (FAP) that will provide benefits at fifty percent of the federal supplemental nutrition assistance program (SNAP) benefit amount. Effective July 1, 2012, the department is amending WAC 388-400-0040 Am I eligible for benefits through the Washington Basic Food program?; 388-412-0015 General information about your food assistance allotments; 388-424-0020 How does my alien status impact my eligibility for Washington Basic Food program benefits?; 388-489-0025 Can my transitional food assistance benefits end before the end of my five-month transition period?; chapter 388-400 WAC to establish new section WAC 388-400-0050 If I am not eligible for federal benefits through the Washington Basic Food program because of my alien status, can I receive benefits through the state-funded food assistance program?; and chapter 388-424 WAC to establish new section WAC 388-424-0030 How does my alien status impact my eligibility for state-funded benefits under the food assistance program?

     Citation of Existing Rules Affected by this Order: Amending WAC 388-400-0040, 388-412-0015, 388-424-0020, 388-489-0010 and 388-489-0025; and creating WAC 388-400-0050 and 388-424-0030.

     Statutory Authority for Adoption: RCW 74.04.005, 74.04.500, 74.04.510, 74.04.515, 74.08.090, and 74.08A.120.

     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: On December 29, 2010, the department filed a rule-making order that eliminated the state-funded FAP, effective February 1, 2011.

     On January 28 and February 17, 2011, the United States District Court for the Western District of Washington enjoined the department from eliminating FAP and ordered the department to continue to provide FAP benefits at one hundred percent of the level provided under SNAP.

     On March 22, 2012, the Ninth Circuit Court of Appeals vacated the district court's preliminary injunction.

     On April 11, 2012, the Washington legislature passed 3ESHB 2127, which provides the department with funding for FAP and establishes the FAP benefit to be one-half the federal SNAP benefit amount. The department will be ready to implement FAP at one-half the SNAP benefit amount on July 1, 2012.

     Immediate adoption of these rules is necessary to ensure that state-funded food benefits are made legally available to persons in need as quickly as possible, and to ensure that FAP-eligible persons are made timely aware that FAP will be reestablished on July 1, 2012. Observation of time requirements for notice and comment is not in the public interest because it would delay legal availability of FAP benefits.

     In addition, to the extent that state-funded FAP benefits are made legally available to eligible persons, the department must immediately comply with RCW 74.08A.120 and 3ESHB 2127, which establish FAP benefits at one-half the value of federal SNAP benefits.

     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 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 2, Amended 4, 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 2, Amended 4, Repealed 0.

     Date Adopted: May 22, 2012.

Katherine I. Vasquez

Rules Coordinator

     (1) When you apply for Basic Food, we decide who is in your assistance unit (AU) based on the requirements under WAC 388-408-0034 and 388-408-0035.

     (2) To be eligible for Basic Food benefits, your AU must meet the eligibility requirements ((for the federal supplemental nutrition assistance program (SNAP) including)) of:

     (a) The most current version of the Food and Nutrition Act of 2008;

     (b) Federal regulations adopted by the U.S. Department of Agriculture, Food and Nutrition Services (FNS) related to the supplemental nutrition assistance program (SNAP); and

     (c) Standards FNS publishes each year for income limits, resource limits, income deductions, and benefit amounts for SNAP.

     (3) To be eligible for Basic Food benefits, each AU member must:

     (a) Meet the citizenship or alien status requirements ((for Basic Food benefits as described under)) of WAC 388-424-0020.

     (b) Be a resident of the state of Washington as required under WAC 388-468-0005;

     (c) Give us their Social Security number as required under WAC 388-476-0005;

     (d) Give us proof of identity as required under WAC 388-490-0005;

     (e) ((Participate in the Basic Food employment and training program (BFE&T) if required)) Meet the Basic Food work requirements under chapter 388-444 WAC; and

     (f) Meet the eligibility criteria for strikers as described under WAC 388-480-0001.

     (4) To be eligible for Basic Food, your AU must:

     (a) Have total monthly income before taxes and deductions at or under the gross monthly income standard under WAC 388-478-0060. We don't use income that isn't counted under WAC 388-450-0015 as part of your AU's gross monthly income;

     (b) Have net income at or under the net monthly income standard under WAC 388-478-0060. We subtract deductions allowed under WAC 388-450-0185 to determine your AU's net monthly income.

     (c) Have resources we must count under WAC 388-470-0055 that are at or below your AU's resource limit under WAC 388-470-0005;

     (d) Report changes of circumstances as required under WAC 388-418-0005; and

     (e) Complete a mid-certification review and provide proof of any changes if required under WAC 388-418-0011.

     (5) If your AU is categorically eligible for Basic Food under WAC 388-414-0001, your AU can have income over the gross or net income standard, and have resources over the resource limit and still be eligible for benefits.

     (6) If your AU has income at or under the gross income standard or is categorically eligible for Basic Food, we determine if you are eligible for Basic Food and calculate your monthly benefits as described under WAC 388-450-0162.

     (7) If an eligible person in your AU is elderly or disabled, some rules may help your AU to be eligible for Basic Food or to receive more Basic Food benefits. These include:

     (a) Resources limits and excluding certain resources under chapter 388-470 WAC;

     (b) An excess shelter deduction over the limit set for AUs without an elderly or disabled individual under WAC 388-450-0190;

     (c) A deduction for a portion of the out-of-pocket medical expenses for the elderly or disabled individual as described under WAC 388-450-0200; and

     (d) Being exempt from the gross monthly income standard under WAC 388-478-0060.

     (8) For Basic Food, elderly means a person who is age sixty or older;

     (9) For Basic Food, disabled means a person who:

     (a) Receives SSI;

     (b) Receives disability payments or blindness payments under Title I, II, XIV, or XVI of the Social Security Act;

     (c) Receives disability retirement benefits from a state, local or federal government agency because of a disability considered permanent under section 221(i) of the Social Security Act;

     (d) Receives disability benefits from the Railroad Retirement Act under sections 2 (a)(1)(iv) and (v) and:

     (i) Meets Title XIX disability requirements; or

     (ii) Is eligible for medicare.

     (e) Receives disability-related medical assistance under Title XIX of the Social Security Act;

     (f) Is a veteran and receives disability payments based on one hundred percent disability;

     (g) Is a spouse of a veteran and:

     (i) Either needs an attendant or is permanently housebound; or

     (ii) Has a disability under section 221(i) of the Social Security Act and is eligible for death or pension payments under Title 38 of the USC.

     (10) If a person in your household attends an institution of higher education and does not meet the requirements to be an eligible student under WAC 388-482-0005, we do not count this person as a member of your AU under WAC 388-408-0035.

     (11) If your AU currently receives food benefits under WASHCAP or lives on or near an Indian reservation and receives benefits from a tribal food distribution program approved by FNS, your AU is not eligible for food assistance benefits through the Washington Basic Food program.

     (12) If a person in your AU is ineligible for any of the following reasons, we count the ineligible person's income as described under WAC 388-450-0140:

     (a) Able-bodied adults without dependents who are no longer eligible under WAC 388-444-0030;

     (b) Persons fleeing a felony prosecution, conviction, or confinement under WAC 388-442-0010;

     (c) Persons who do not attest to citizenship or alien status as defined in WAC 388-424-0001;

     (d) Persons who are ineligible aliens under WAC 388-424-0020;

     (e) Persons disqualified for an intentional program violation under WAC 388-446-0015;

     (f) Persons who do not provide a Social Security number when required under WAC 388-476-0005; or

     (g) Persons who failed to meet work requirements under chapter 388-444 WAC.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.500, 74.04.510, 74.08.090, and 74.08A.120. 11-02-035, § 388-400-0040, filed 12/29/10, effective 2/1/11. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, 74.08.090, 74.08A.120, and Food and Nutrition Act of 2008, Title 7 Part 273 of the C.F.R. 09-07-054, § 388-400-0040, filed 3/11/09, effective 4/11/09. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, 74.08.090. 06-13-043, § 388-400-0040, filed 6/15/06, effective 7/17/06. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, and 2004 c 54. 04-21-025, § 388-400-0040, filed 10/13/04, effective 11/13/04. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 04-15-057, § 388-400-0040, filed 7/13/04, effective 8/13/04. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, and 2004 c 54. 04-14-040, § 388-400-0040, filed 6/29/04, effective 7/30/04. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, and 74.04.510. 03-05-028, § 388-400-0040, filed 2/10/03, effective 4/1/03. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057 and 74.08.090. 98-16-044, § 388-400-0040, filed 7/31/98, effective 9/1/98.]

     (a) You are a Washington state resident; and

     (b) You meet the alien status requirements under WAC 388-424-0030.

     (2) FAP follows the same eligibility rules as federally-funded Basic Food except for rules related to alien status. A summary of the rules for Basic Food is found in WAC 388-400-0040.

     (3) Benefits for FAP are set by the biennial state operating budget as described in RCW 74.08A.120(3). These benefits are calculated as described in subsections (4) and (5) of this section.

     (4) If your assistance unit (AU) includes both people who are eligible for federally-funded Basic Food benefits and people who are eligible for state-funded FAP benefits, we determine the amount of your federal and state food benefits by applying the following process:

     (a) We calculate your AU's monthly benefits under WAC 388-450-0162 as if all the eligible persons in your AU could receive federally-funded Basic Food benefits; and

     (b) We then calculate your AU's monthly benefits under WAC 388-450-0162 for only the people in your AU who are eligible for federally-funded benefits.

If (a) is more than (b)	If (b) is more than (a)
Your AU receives: • Basic Food benefits in the amount calculated using step (b); and • FAP benefits equal to half the difference between (a) and (b), rounded down to the next whole dollar.	Your AU receives Basic Food benefits in the amount calculated using step (b).

     (5) If your AU only includes persons eligible for FAP, we determine the amount of your state-funded FAP benefits by:

     (a) Applying the calculation for Basic Food under WAC 388-450-0162 as if all the persons in your AU were eligible to receive Basic Food; and

     (b) Issuing FAP benefits to your AU equal to half the amount calculated in subsection (5)(a), rounded down to the next whole dollar.

[]

     (2) How we determine monthly allotments:

     (a) We calculate your monthly allotment for federally-funded Basic Food as described under WAC 388-450-0162 ((if your AU has income));

     (b) ((If your AU does not have countable income you receive)) We calculate your monthly allotment for state-funded food assistance as described under WAC 388-400-0050.

     (3) Maximum allotment:

     (a) The maximum allotment for the number of ((eligible)) people in your AU eligible for federally-funded Basic Food benefits is described under WAC 388-478-0060.

     (((3))) (b) The maximum allotment for the number of people in your AU eligible for state-funded FAP benefits is set by the legislature in the biennial operating budget as described in WAC 388-400-0050.

     (4) Prorated benefits in the first month - If we determine you are eligible for food assistance, your first month's benefits are calculated from the date you applied through the end of the month of your application. This is called proration and is based on a thirty-day month:

     (a) If your prorated benefits for the first month are under ten dollars, you will not receive an allotment for the first month.

     (b) If there was a delay in processing your application, we determine when your benefits start under WAC 388-406-0055.

     (((4))) (5) Combined allotment for first and second month's benefits - If you apply for benefits on or after the sixteenth of the month, and we determine you are eligible for food assistance, we issue both the first and second months benefits in one allotment if you are eligible for both months.

     (((5))) (6) Minimum allotment - ((If your AU has one or two members, your monthly allotment will be at least sixteen dollars unless)) Unless it is the first month of your certification period and your benefits are prorated as described in subsection (4) of this section, your monthly allotment will be at least:

     (a) ((It is the first month of your certification period;)) Sixteen dollars if your AU has one or two members, and at least one person is eligible for federally-funded Basic Food.

     (b) ((Your AU is eligible for only a partial month; and

     (c) We reduced your first month's allotment below sixteen dollars based on the date you became eligible for food assistance under WAC 388-406-0055)) Eight dollars if your AU has one or two members, and all members of your AU are eligible for state-funded FAP.

     (((6))) (7) Use of food assistance benefits - Your food assistance benefits may only be used to buy eligible food items as described under WAC 388-412-0046. If you use your benefits in any other way, it is an intentional program violation under WAC 388-446-0015 and could result in fines, imprisonment, disqualification from receiving food assistance benefits, or any combination of these penalties.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, 74.04.510, 74.04.770, 74.12.260, 74.08.580, 9.91.142, 7 C.F.R. 273.16, the Food and Nutrition Act of 2008 as amended and 42 U.S.C. 601a; and 2011 c 42. 11-19-047, § 388-412-0015, filed 9/13/11, effective 10/14/11. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, 74.08.090, 74.04.500, 74.08A.120, and American Recovery and Reinvestment Act of 2009. 09-14-018, § 388-412-0015, filed 6/22/09, effective 7/23/09. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, 74.08.090. 08-24-051, § 388-412-0015, filed 11/25/08, effective 12/26/08. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 05-02-016, § 388-412-0015, filed 12/27/04, effective 1/27/05. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510. 03-22-038, § 388-412-0015, filed 10/28/03, effective 12/1/03. Statutory Authority: RCW 74.04.510 and 74.08.090. 01-18-054, § 388-412-0015, filed 8/30/01, effective 9/30/01; 99-16-024, § 388-412-0015, filed 7/26/99, effective 9/1/99. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057 and 74.08.090. 98-16-044, § 388-412-0015, filed 7/31/98, effective 9/1/98.]

     (2) If you are not a U.S. citizen or U.S. national, you must fall within (a) or (b) of this subsection, and meet all other eligibility requirements, in order to receive federal Basic Food benefits:

     (a) You are a member of one of the following groups of lawful immigrants as defined in WAC 388-424-0001:

     (i) Amerasian;

     (ii) Asylee;

     (iii) Cuban or Haitian entrant;

     (iv) Deportation or removal withheld;

     (v) Refugee;

     (vi) Special immigrant from Iraq or Afghanistan;

     (vii) Victim of trafficking;

     (viii) Noncitizen American Indian; or

     (ix) Hmong or Highland Lao tribal member.

     (b)(i) You are a member of one of the following groups of qualified aliens as defined in WAC 388-424-0001:

     (A) Conditional entrant;

     (B) Lawful permanent resident (LPR);

     (C) Paroled for one year or more; or

     (D) Abused spouse or child or parent or child of an abused spouse or child.

     (ii) And, one of the following also applies to you:

     (A) You have worked or can get credit for forty Social Security Administration (SSA) work quarters - as described in WAC 388-424-0008;

     (B) You are an active duty personnel or honorably discharged veteran of the U.S. military or you are the spouse, unmarried surviving spouse, or unmarried dependent child of someone who meets this requirement, as described in WAC 388-424-0007;

     (C) You receive cash or medical benefits based on Supplemental Security Income (SSI) criteria for blindness or disability;

     (D) You have lived in the U.S. as a "qualified alien" as described in WAC 388-424-0001 for at least five years;

     (E) You are under age eighteen; or

     (F) You were lawfully residing in the U.S. on August 22, 1996 and were born on or before August 22, 1931.

     (3) If you are a legal immigrant not eligible for federal benefits under Basic Food only because of your alien status, you may be eligible state-funded food assistance program (FAP) benefits under WAC 388-400-0050.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.500, 74.04.510, 74.08.090, and 74.08A.120. 11-02-035, § 388-424-0020, filed 12/29/10, effective 2/1/11. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, 74.08A.020, and Sec. 8120 of Pub. L 111-118 (DOD appropriations law); USDA Food and Nutrition Service federal guidance from January 29, 2010; U.S. DHHS Administration for Children and Families, Office of Family Assistance federal guidance letter No. TANF-ACF-PI-2010-05 issued on June 16, 2010. 10-15-045, § 388-424-0020, filed 7/13/10, effective 7/27/10. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, 74.08A.320, Pub. L. No. 110-181, National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 111-08, the Omnibus Appropriations Act of 2009, Division F, Title VI, Section 602; Office of Refugee Resettlement State Letter 09-17 from April 9, 2009; and federal guidance issued on May 15, 2009, by the Food and Nutrition Service, United States Department of Agriculture. 09-21-046, § 388-424-0020, filed 10/14/09, effective 11/4/09. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08A.320, 74.08.090, and Public Law 110-161 Section 525; Public Law 110-181 Section 1244; FNS Admin Notice 08-17; State Letter 04-12 from the Office of Refugee Resettlement. 08-14-116, § 388-424-0020, filed 6/30/08, effective 8/1/08. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090. 04-15-004, § 388-424-0020, filed 7/7/04, effective 8/7/04. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, and 74.04.510. 03-05-029, § 388-424-0020, filed 2/10/03, effective 4/1/03. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.08.090, and H.R. 2646 Farm Security and Rural Investment Act of 2002. 02-22-046, § 388-424-0020, filed 10/30/02, effective 12/1/02. Statutory Authority: RCW 74.04.510, S. 1150, the Agricultural Research, Extension, and Education Reform Act of 1998. 99-01-058, § 388-424-0020, filed 12/11/98, effective 1/11/99. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057 and 74.08.090. 98-16-044, § 388-424-0020, filed 7/31/98, effective 9/1/98. Formerly WAC 388-518-1805.]

     (a) A "qualified alien" as defined in WAC 388-424-0001, who does not meet the eligibility requirements under WAC 388-424-0020 to receive federally-funded Basic Food benefits; or

     (b) A "nonqualified alien" as described in WAC 388-424-0001 who:

     (i) Is not a nonimmigrant as described in WAC 388-424-0001(d);

     (ii) Intends to stay in the United States indefinitely; and

     (iii) The United States Immigration and Customs Enforcement is not taking steps to enforce your departure.

     (2) If you are eligible for state-funded FAP, we calculate your benefits as described under WAC 388-400-0050.

[]

     (1) Someone who gets transitional food assistance with you applies and is approved for temporary assistance for needy families while still living in your home. You may reapply to have your eligibility for Basic Food determined;

     (2) We learn that you and your household are no longer residing in the state of Washington; or

     (3) All members of your household are ineligible to get Basic Food for any of the following reasons:

     (a) Refusal to cooperate with quality assurance (WAC 388-464-0001);

     (b) Transfer of property to qualify for Basic Food assistance (WAC 388-488-0010);

     (c) Intentional program violation (WAC ((388-466-0015 [388-446-0015])) 388-446-0015 and 388-446-0020);

     (d) Fleeing felon or violating a condition of probation or parole (WAC 388-442-0010);

     (e) Alien status (WAC 388-424-0020 and 388-424-0030);

     (f) Employment and training requirements (WAC 388-444-0055 and 388-444-0075);

     (g) Work requirements for able-bodied adults without dependents (WAC 388-444-0030);

     (h) Student status (WAC 388-482-0005);

     (i) Living in an institution where residents are not eligible for Basic Food (WAC 388-408-0040); or

     (j) Deceased.

[Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.500, 74.04.510, 74.08.090, and 74.08A.120. 11-02-035, § 388-489-0025, filed 12/29/10, effective 2/1/11. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, 74.08.090. 09-01-049, § 388-489-0025, filed 12/10/08, effective 1/10/09. Statutory Authority: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, 74.08.090, and 74.08A.010. 05-19-060, § 388-489-0025, filed 9/16/05, effective 11/1/05.]

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