Fighting an overpayment of cash or medical assistance

You should use this when the Department of Social & Health Services (DSHS) or Health Care Authority (HCA) notifies you of a cash or medical overpayment.  "The agency" here means DSHS or HCA.

Do not use this when DSHS notifies you of a food stamp overpayment. Read Fighting a Food Assistance Overpayment instead.

It is when you get benefits you are not eligible for according to DSHS or HCA rules.

• DSHS rules are Chapter 388-410 and HCA rules are Chapter 182-520 of the Washington Administrative Code (WAC). They are available at the public library or online.

There are a few types of overpayments.

The letter you get from the agency about the overpayment should tell you which type they think you owe. The agency treats different types of overpayments differently.

Generally, DSHS administers cash benefits and HCA administers medical assistance benefits. If you aren't sure which agency applies to you, check the sender named on the overpayment notice sent to you by the agency.

1. Intentional overpayment: When you got benefits you were not eligible for because you deliberately (willfully or knowingly) either:

• failed to report a change in circumstances required by WAC 388-418-0005 or
• Misstated or failed to reveal a fact that affects your eligibility.
• Unintentional overpayment: When you get benefits you were not eligible for because you made a mistake, but not on purpose in order to get more benefits. This can also happen if the agency made a mistake. Example: they did not consider information you gave them to determine your benefits WAC 388-410-0001(2).

2. Continued benefits overpayment: When you get benefits you were not eligible for while waiting for a hearing and the judge agrees after the hearing that you got an overpayment. You might have to repay up to 60 days of those benefits WAC 388-410-0001(3).

1. Fraud overpayment: When you get benefits you were not eligible for because you purposely gave incorrect information in order to qualify for medical assistance. WAC 182-520-0005.
2. Continued Benefits overpayment: When you get benefits you were not eligible for while waiting for a hearing and the judge agrees after the hearing that you got an overpayment. You might have to repay up to 60 days of those benefits WAC 182-520-0010(2)(a).
3. Long-Term Services and Supports (LTSS) overpayment: When you get benefits you were not eligible for because of at least one of these:

• You or your representative gave incorrect information or failed to give information affecting your eligibility; or
• You or your representative failed to report changes in your information on time; or
• The agency made a mistake WAC 182-520-0015.

Maybe. The agency can refer an intentional overpayment case to the prosecuting attorney for welfare fraud. If you are charged with a crime, ask for a public defender.

If the agency says you have an intentional overpayment, you should talk to a lawyer before making any statements to the agency.

•  If DSHS is investigating you for possible fraud, talk to a lawyer right away! If you live west of the mountains, go to FPD WDW for contact info. If you live east of the mountains, go to FDEWI for contact info.

Yes, you can appeal any type of overpayment by asking for an administrative hearing.

You should talk to a lawyer as soon as possible if you want to ask for a hearing about an intentional overpayment.

You can do one of these:

• Fill out a Hearing Request form at your local DSHS office or
• Write the Office of Administrative Hearings, P.O. Box 42489, Olympia, WA 98504 a letter saying you want a hearing.

You should read the overpayment notice carefully. It may give more instructions.

If it is an emergency, call the Office of Administrative Hearings (OAH) nearest you. Ask them to have your hearing as soon as possible. Go to their website. Click on "Contact Us" for the right phone number. 

You must ask for the hearing no later than 90 days from the date the agency mailed the overpayment notice RCW 74.08.080.

If you currently get benefits and want them to stay the same until the judge decides your case, you must ask for a hearing no later than:

• Ten days after the agency sent you notice or
• If the ten days falls before the end of the month, you have until the end of the month the notice says your benefits will stop or be less WAC 388-458-0040.

Both the agency and OAH must get your request by these deadlines. Ask for your hearing as soon as you can. If you miss the deadline, you can lose your right to a hearing.

In order to prove that you asked for a hearing in time, make your request in writing if you can. Keep a copy. Make a note of when and how you delivered the request. If you fax your request, you must also mail it.

Examples:

• "Sent to OAH and HCA 3/14/22 by regular US Mail"
• "Dropped off at DSHS front desk on 3/14/22
• "By phone with DSHS worker, Mary Jones, on 3/14/22".

OAH will mail you a notice with the hearing date and time. You should check your mail regularly. If you don't, you may miss your hearing date.

If you move, tell the agency and OAH your new address right away so you get important notices on time.

Read Representing Yourself at an Administrative Hearing to learn more.

If they apply to your case, you can argue any or all of these at your administrative hearing:

• There was no overpayment. You were eligible for all of the benefits you got.
• The amount is wrong. The agency miscalculated the amount you owe and/or charged you an overpayment for benefits you got that you were eligible for.
• You should not have to pay back an unintentional overpayment.
• The overpayment was not intentional.
• The agency waited too long to charge you for the overpayment. See "How long does the agency have to act on an overpayment?"

1. There is no overpayment. You will need to show you were eligible for all the benefits you got.

• Example 1: DSHS says your car is worth more than is allowed. You can prove its value is in fact within the amount the rules allow.  
• Example 2: DSHS says your bank account has too much money in it. It is your grandmother's account. Your name is on it for your grandmother's convenience. Your grandmother gives DSHS a written statement confirming this.
• Example 3: HCA says you got benefits for a time you did not live in Washington. You can prove you were only gone temporarily.

2. The overpayment amount may be less than the agency says. Ask them to double-check it. They often find mistakes. Give them any information you think will show you were eligible for all or part of the benefits.

* DSHS might discover the overpayment was more than they thought. You could owe more!

Cash overpayments only:

Child support. Ask if DSHS collected any child support during the period the overpayment happened. If so, they should lower the overpayment amount by the amount of support they got WAC 388-410-0005(4)(b).

Cash benefit underpayment. You might have been eligible for other benefits but did not get them. Any amount the agency should have paid you, and did not, is an underpayment. The agency must subtract any underpayment they owe you from the overpayment amount. It does not matter how long ago the underpayment happened WAC 388-410-0005(4)(a) & (c).

• Example 1:  You asked for emergency assistance. You were eligible. You did not get any.
• Example 2: You reported an additional person in your family. You should have gotten more benefits. You did not.

3. An unintentional overpayment was not your fault. Your income and resources are barely or not enough for basic expenses. You can ask the agency or judge to waive repayment under "equitable estoppel." A waiver means you will not have to pay back the overpayment. Read DSHS and HCA Overpayments: What is "Equitable Estoppel"? to learn more.
4. If you disagree that the overpayment was intentional, call CLEAR at 1-888-201-1014 before trying to represent yourself. You must to be able to tell the administrative law judge why it was not intentional. If you agree it was intentional, do not discuss it with the agency.

* If the police arrest you on fraud charges, discuss the matter only with your lawyer. If you have criminal charges and cannot afford a lawyer, ask the court to appoint you one.

Generally, DSHS has six years from the date of the overpayment notice to collect. If DSHS has filed a court case to collect against you, it generally has ten years RCW 43.20B.030.

HCA also has six years from the date on the overpayment to collect LTSS overpayments WAC 182-520-0015.

If the agency has not met the time limit, ask them to cancel (dismiss) the overpayment. If they will not, ask for an administrative hearing. At the hearing, ask the Administrative Law Judge to dismiss the overpayment because notice or collection was not timely.

The ALJ does not decide at the hearing. They mail you a written decision about a month after. It is either an Initial Order or a Final Order. There is an important difference. Read Representing yourself at an administrative hearing to learn more.

If the ALJ decides that you were overpaid and should have to pay the overpayment back, you may have the right to more appeals. You can read Representing yourself at an administrative hearing or talk to a lawyer to learn more.  

Depending on if and when you appeal the ALJ's decision, the agency will take steps to collect the overpayment from you. See below.

For cash overpayments only:  DSHS can lower your monthly benefit amount to repay an overpayment WAC 388-410-0015.

• For intentional overpayments, DSHS usually takes 10% out of your benefits until it recovers the overpayment in full. In rare cases, DSHS may take your full benefit amount until it is repaid. WAC 388-410-0015(4).
• For unintentional overpayments, DSHS will take five percent of your cash benefits until it recovers the overpayment in full. You can ask in writing for a larger deduction to pay it off sooner. WAC 388-410-0015(5).

For both cash and medical overpayments: The agency can collect overpayments through tax intercept, liens, garnishment, including of wages, bank accounts and Social Security benefits, and attachment of income or resources RCW 74.04.300.

Cash assistance overpayment: The agency can collect from any adult member of the assistance unit, as long as they were an adult at the time the benefits were received.WAC 388-410-0005.

Medical assistance overpayment: The agency generally will not collect the overpayment from third parties who are not responsible for the overpayment unless the third party committed fraud WAC 182-520-0010.

Maybe. You might be able to negotiate a repayment agreement with the agency based on your monthly expenses and ability to pay. You should contact the agency directly to discuss a possible payment plan.

See WAC 388-410 or WAC 182-520.