WSR 14-01-111
(Economic Services Administration)
[Filed December 18, 2013, 10:57 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 13-20-041.
Title of Rule and Other Identifying Information: The department is proposing to amend WAC 388-412-0040 Can I get my benefits replaced?, 388-412-0046 What is the purpose of DSHS cash and food assistance benefits and how can I use my benefits?, and 388-446-0015 What is an intentional program violation (IPV) and administrative disqualification hearings (ADH) for food assistance?
Hearing Location(s): Office Building 2, Lookout Room, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at, on January 22, 2014, at 10:00 a.m.
Date of Intended Adoption: Not earlier than January 23, 2014.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 1115 Washington Street S.E., Olympia, WA 98503, e-mail, fax (360) 664-6185, by 5 p.m. on January 22, 2014.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by January 8, 2014, TTY (360) 664-6178 or (360) 664-6094 or by e-mail
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department proposes to amend rules under WAC 388-446-0015, 388-412-0040 and 388-412-0046, to make changes concerning food benefit trafficking rules and propose policy for dealing with excess electronic benefit transfer (EBT) card replacement requests and related fraud referrals.
Reasons Supporting Proposal: The USDA Food and Nutrition Service (FNS) issued final rules to amend supplemental nutrition assistance program (SNAP) regulations to allow state agencies to deny requests for replacement EBT cards until contact is made by the SNAP household with the state agency. FNS also changed regulations to amend the definition of the term "trafficking" to include the attempt to buy or sell SNAP benefits and/or EBT cards.
Statutory Authority for Adoption: RCW 74.04.050, 74.04.055, 74.04.057, 74.04.510, and 74.08.090.
Statute Being Implemented: RCW 74.04.005, 74.04.050, 74.04.055, 74.04.057, 74.04.510, and 74.08.090.
Rule is necessary because of federal law, 7 C.F.R. § 271.2, 274.2, and 274.6.
Name of Proponent: Department of social and health services, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Robert Thibodeau, 712 Pear Street S.E., Olympia, WA 98504, (360) 725-4634.
No small business economic impact statement has been prepared under chapter 19.85 RCW. These proposed rules do not have an economic impact on small businesses. The proposed amendment only affects certain DSHS clients who request multiple EBT card replacements within a twelve month period and anyone involved in trafficking SNAP benefits. The changes make state rules consistent with federal regulations and implement some optional measures to improve program integrity.
A cost-benefit analysis is not required under RCW 34.05.328. These amendments are exempt as allowed under RCW 34.05.328 (5)(b)(vii) which states in part, "[t]his section does not apply to … rules of the department of social and health services relating only to client medical or financial eligibility and rules concerning liability for care of dependents."
December 4, 2013
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION (Amending WSR 11-19-047, filed 9/13/11, effective 10/14/11)
WAC 388-412-0040 Can I get my benefits replaced?
Under certain conditions, we may replace your benefits.
(1) You may get your EBT cash and/or food assistance benefits replaced if:
(a) We make a mistake that causes you to lose benefits;
(b) The EBT card mailed to you is stolen from the mail; you never had the ability to use the benefits; and you lost benefits;
(c) You left a drug or alcohol treatment facility on or before the fifteenth of the month and the facility does not have enough food assistance benefits in their EBT account for one-half of the allotment that they owe you;
(d) Your EBT benefits that were recently deposited into an inactive EBT account were canceled by mistake; or
(e) The food that your household purchased with food assistance benefits was destroyed in a household disaster or misfortune.
(i) For us to replace your benefits, you must report the loss to the department within ten days from the date of the loss.
(ii) We replace the amount of your loss, up to a one-month benefit amount.
(2) We will not replace your benefits if your loss is for a reason other than those listed in subsection (1) above if:
(a) We decided that your request is fraudulent;
(b) Your food assistance benefits were lost, stolen or misplaced after you received them;
(c) You already received two replacements for food destroyed in household disaster or misfortune within the last five months; or
(d) You received disaster supplemental nutrition assistance program (D-SNAP) benefits for the same month you requested a replacement for food assistance.
(3) EBT cards. It is your responsibility to keep track of your household's EBT card.
(a) If you have multiple EBT cards replaced, we may suspect you to be trafficking benefits as described under WAC 388-412-0046 (2)(d).
(b) When you request your fifth (initial card plus four replacements) and subsequent card within a twelve-month period, we will ask you to contact us and explain why you have multiple replacements before we issue another replacement card. If you don't contact us as instructed we will not replace your EBT card.
(c) If we suspect trafficking, we will refer your case for investigation by the office of fraud and accountability. Persons trafficking in food assistance benefits may be subject to fines, disqualification from food assistance, and legal action including criminal prosecution.
AMENDATORY SECTION (Amending WSR 11-19-047, filed 9/13/11, effective 10/14/11)
WAC 388-412-0046 What is the purpose of DSHS cash and food assistance benefits and how can I use my benefits?
(1) What is the purpose of DSHS cash benefits?
(a) DSHS cash assistance benefits are provided to low-income residents who qualify for public assistance programs. These benefits are intended to help pay for basic living expenses as described under RCW 74.04.770. TANF cash grants must be used for the sole benefit of the children, and we may require proof that you are using your TANF cash assistance to benefit your children as allowed under RCW 74.12.260.
(b) Your electronic benefit transfer (EBT) card or cash assistance benefits may only be used by you, an eligible member of your household, or an authorized representative/protective payee for the purposes of your cash assistance program. You are not allowed to sell, attempt to sell, exchange, or donate your EBT card or benefits to any other person or entity.
(c) You may use your cash benefits to pay a reasonable amount of basic living expenses such as:
(i) Shelter;
(ii) Utilities such as heating, telephone, water, sewer, garbage, and recycling;
(iii) Food;
(iv) Transportation;
(v) Clothing;
(vi) Household maintenance;
(vii) Personal hygiene;
(viii) Employment or school related items; and
(ix) Other necessary incidentals and items.
(d) It is not legal to use electronic benefit transfer (EBT) cards or cash obtained with EBT cards to:
(i) Gamble. Gambling includes:
(A) The purchase of lottery tickets;
(B) The purchase of pull tabs;
(C) Use of punch boards;
(D) Purchase of bingo cards;
(E) Betting on horse racing;
(F) Participating in casino games; and
(G) Participating in other games of chance as found in chapters 9.46, 67.16 and 67.70 RCW.
(ii) Participate in or purchase any activities located in a tattoo, body piercing, or body art shop licensed under chapter 18.300 RCW;
(iii) Purchase cigarettes as defined in RCW 82.24.010 or tobacco products as defined in RCW 82.26.010;
(iv) Purchase any alcoholic items regulated under Title 66 RCW;
(v) Purchase or participate in any activities in any of the following locations:
(A) Taverns licensed under RCW 66.24.330;
(B) Beer/wine specialty stores licensed under RCW 66.24.371;
(C) Nightclubs licensed under RCW 66.24.600;
(D) Contract liquor stores defined under RCW 66.04.010;
(E) Bail bond agencies regulated under chapter 18.185 RCW;
(F) Gambling establishments licensed under chapter 9.46 RCW;
(G) Adult entertainment venues with performances that contain erotic material where minors under the age of eighteen are prohibited under RCW 9.68A.150;
(H) Any establishments where persons under the age of eighteen are not permitted.
(e) If you use your electronic benefit transfer (EBT) card or cash obtained from your EBT card illegally we may:
(i) Assign a protective payee to manage your cash assistance benefits under WAC 388-460-0035;
(ii) For households receiving TANF, require proof that your benefits are being used for the benefit of the children in the household;
(iii) Terminate your cash benefits; or
(iv) Pursue legal action, including criminal prosecution.
(2) What is the purpose of DSHS food assistance benefits?
(a) DSHS food assistance benefits including those from the Basic Food program, state funded basic food program for legal immigrants (FAP), Washington state combined application project (WASHCAP), and transitional food assistance (TFA) help low-income individuals and families have a more nutritious diet by providing food assistance benefits through EBT cards for eligible households to buy groceries.
(b) You, members of your household, or an authorized representative may use your food assistance benefits to buy food items for your household from food retailer authorized to accept supplemental nutrition assistance program (SNAP) benefits by the U.S. Department of Agriculture Food and Nutrition Service (FNS).
(c) You can use your food assistance benefits to buy items such as:
(i) Breads and cereals;
(ii) Fruits and vegetables;
(iii) Cheese, milk, and other dairy products;
(iv) Meats, fish, poultry, and eggs;
(v) Most other food items that are not prepared hot foods; and
(vi) Seeds and plants that produce food.
(d) It is not legal to:
(i) Give your EBT card or benefits to anyone who is not in your food assistance household or your authorized representative.
(ii) Use food benefits on your EBT card for any purpose other than to buy food for eligible household members.
(iii) Exchange your food benefits for anything of value (trafficking). Examples of illegal trafficking include exchanging food benefits or attempting to exchange food benefits for cash, drugs, weapons or anything other than food from an authorized retailer.
(iv) Sell, attempt to sell, exchange, or donate your EBT card, EBT card number, personal identification numbers (PINs), or any benefits to any person or entity.
(v) Buy, attempt to buy, or steal someone's EBT card, EBT card number, or PIN.
(vi) Sell or trade any food that was purchased using your food assistance benefits for cash, drugs, alcohol, tobacco products, firearms, or anything of value.
(((vi))) (vii) Use food benefits to buy nonfood items such as cigarettes, tobacco, beer, wine, liquor, household supplies, soaps, paper products, vitamins, medicine, or pet food.
(e) If you intentionally misuse your food assistance benefits, you may be:
(i) Disqualified for an intentional program violation under WAC 388-446-0015 and 388-446-0020. If you are disqualified you will lose your benefits for at least one year and up to a lifetime. The disqualification continues even if you move to another state.
(ii) Subject to fines.
(iii) Subject to legal action, including criminal prosecution. DSHS will cooperate with state, local and federal prosecuting authorities to prosecute trafficking in food assistance/SNAP benefits.
AMENDATORY SECTION (Amending WSR 11-19-047, filed 9/13/11, effective 10/14/11)
WAC 388-446-0015 What is an intentional program violation (IPV) and administrative disqualification hearings (ADH) for food assistance.[?]
(1) An intentional program violation (IPV) is an act in which someone intentionally:
(a) Misrepresents, conceals or withholds facts in order to be found eligible for benefits or to receive more benefits than their actual circumstances would allow. This includes making a false statement regarding household circumstances.
(b) Acts in violation of the Food Nutrition Act of 2008, regulations for the supplemental nutrition assistance program (SNAP) under Title 7 of the Code of Federal Regulations or any state statute relating to the use, presentation, transfer, acquisition, receipt, trafficking, or possession of food assistance benefits including:
(c) Attempts to buy, sell, steal, or trade food assistance benefits issued and accessed via Electronic Benefit Transfer (EBT) cards, EBT card numbers or personal identification numbers (PINs), for cash or anything other than eligible food, alone or acting with others.
(2) If we suspect someone has committed an IPV we refer their case for an administrative disqualification hearing (ADH), if:
(a) The suspected IPV causes an over issuance of four hundred fifty dollars or more; or
(b) The suspected IPV is due to the trafficking of food benefits; and
(c) The person has not been referred for criminal proceedings.
(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 388-02 WAC. However, rules in this section are the overriding authority if there is a conflict.
(4) A person suspected of an IPV can choose to waive their right to an ADH by signing a disqualification consent agreement that waives their right to the hearing and accepts the IPV penalty under WAC 388-446-0020.
(5) If someone commits one or more IPVs and is suspected of committing another, we refer them for an ADH when the act of suspected violation occurred:
(a) After we mailed the disqualification notice to the client for the most recent IPV; or
(b) After criminal proceedings for the most recent IPV are concluded.
(6) When we suspect someone has committed an IPV, we refer their case for an administrative disqualification hearing (ADH). The office of administrative hearings (OAH) sends them notice of an ADH at least thirty days in advance of the hearing date. OAH sends the notice by certified mail, or personal service. The notice will contain the following information:
(a) The date, time, and place of the hearing;
(b) The charges against the person;
(c) A summary of the evidence, and how and where they may examine the evidence;
(d) A warning that a decision will be based entirely on the evidence the department provides if they fail to appear at the hearing;
(e) A statement that the person has ten days from the date of the scheduled hearing to show good cause for failing to attend the hearing and to ask for a new hearing date;
(f) A warning that a determination of IPV will result in a disqualification period; and
(g) A statement that if we schedule a telephone hearing, they 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.
(7) The department may combine an ADH and a regular hearing when the reason for both hearings is related.
(8) 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.
(9) The administrative law judge (ALJ) will conduct the ADH and render a decision even if the person or representative fails 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 reinstated.
(10) We may change a scheduled telephone hearing to an in-person hearing if this is requested by the person or department representative at least a week in advance. The person requesting a change less than one week in advance must show good cause for the requested change.
(11) The ALJ issues a final decision as specified in WAC 388-02-0215 through 388-02-0525. The decision determines whether the department had established with clear and convincing evidence that the person committed and intended to commit an IPV.
(12) 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.
(13) We will not implement a disqualification and continue benefits at the current amount if:
(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).