WSR 18-13-079
PROPOSED RULES
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES
(Economic Services Administration)
[Filed June 15, 2018, 2:13 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 18-08-004.
Title of Rule and Other Identifying Information: The department is proposing to amend WAC 388-446-0015 What is an intentional program violation (IPV) and administrative disqualification hearings (ADH) for basic food assistance?
Hearing Location(s): On July 25, 2018, at 10:00 a.m., at Office Building 2, Department of Social and Health Services (DSHS) Headquarters, 1115 Washington, Olympia, WA 98504. Public parking at 11th and Jefferson. A map is available at https://www.dshs.wa.gov/sesa/rules-and-policies-assistance-unit/driving-directions-office-bldg-2.
Date of Intended Adoption: Not earlier than July 26, 2018.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, email DSHSRPAURulesCoordinator@dshs.wa.gov, fax 360-664-6185, by 5:00 p.m., July 25, 2018.
Assistance for Persons with Disabilities: Contact Jeff Kildahl, DSHS rules consultant, phone 360-664-6092, fax 360-664-6185, TTY 711 relay service, email Kildaja@dshs.wa.gov, by July 11, 2018.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Changes proposed under this filing will amend WAC 388-446-0015 to align with federal regulations specifying administrative law judges' jurisdiction over administrative disqualification hearings for intentional program violations of the basic food and food assistance programs.
Reasons Supporting Proposal: The proposed changes are necessary to clarify the jurisdiction of administrative law judges over the administrative disqualification and intentional program violation process for basic food or food assistance program recipients.
Rule is necessary because of federal law, 7 C.F.R. 273.16.
Name of Proponent: DSHS, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Ezra Paskus, 712 Pear Street S.E., Olympia, WA, 360-725-4611.
A school district fiscal impact statement is not required under RCW 28A.305.135. 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, "this 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."
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025.
Explanation of exemptions: The proposed rule does not have an economic impact on small businesses.
June 14, 2018
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION(Amending WSR 14-05-063, filed 2/18/14, effective 3/21/14)
WAC 388-446-0015What is an intentional program violation (IPV) and administrative disqualification hearing((s)) (ADH) for basic 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)) including 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, or WAC relating to the use, presentation, transfer, acquisition, receipt, trafficking, or possession of food assistance benefits including((:)); or
(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)) unless:
(a) The ((suspected IPV causes an over issuance of four hundred fifty dollars or more)) case is currently referred for prosecution; or
(b) ((The suspected IPV is due to the trafficking of food benefits; and
(c) The person has not been referred for criminal proceedings)) A court or prosecutor already took action against the person for the same or related facts.
(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)) a case for an administrative disqualification hearing (ADH)((.)), the office of administrative hearings (OAH) sends ((them)) the person notice of ((an)) the 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)) may 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)) has 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)) one 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).