(dissenting) — If a foster child were entitled to Supplemental Security Income (SSI) benefits or Old-Age, Survivors, and Disability Insurance (OASDI) benefits, or both, who would he rather have as his representative payee, the State or grandma? I posit the answer to the question does not require a degree in rocket science but is well within the comprehension of the average well-informed six-year-old.
Regardless of where the federal government sends the money, the Department of Social and Health Services (DSHS) is required by statute "to provide child welfare services,” RCW 74.13.031, which includes “mak[ing] payment of maintenance costs if needed,” RCW 74.13.031(6). In essence, the State must furnish a basic level of support, no matter what. But the child that draws the short straw and winds up with DSHS as his or her representative payee will find these additional SSI benefits confiscated by the State to reimburse itself; whereas the child with the private payee will enjoy the higher standard of living resulting from a combination of both state and federal benefits. See RCW 74.13.060(2); former WAC 388-70-069, repealed by St. Reg. 01-08-047 (Apr. 30, 2001); WAC 388-25-0210.
If the child is fortunate enough to have grandma step forward to be the representative payee, grandma may take or *347direct this money for the child’s use and benefit in addition to DSHS’s basic level of foster care. Even though DSHS tells her by regulation that she should reimburse DSHS, WAC 388-25-0210(2), the State cannot force or compel reimbursement as 42 U.S.C. § 407(a) bars such a proceeding. See Bennett v. Arkansas, 485 U.S. 395, 397-98, 108 S. Ct. 1204, 99 L. Ed. 2d 455 (1988) (per curiam); Philpott v. Essex County Welfare Bd., 409 U.S. 413, 415-16, 93 S. Ct. 590, 34 L. Ed. 2d 608 (1973). However if DSHS is the representative payee, the SSI benefits will be taken by the State to reimburse itself for foster care.
Both grandma, as the private representative payee, and DSHS, as the representative payee for the less fortunate, must use the OASDI and SSI benefits “only for the use and benefit of the beneficiary in a manner and for the purposes he or she determines, under the guidelines [specific to each type of payment], to be in the best interests of the beneficiary.” 20 C.F.R. §§ 404.2035(a) (OASDI benefits), 416.635(a) (SSI benefits). Grandma and DSHS satisfy this requirement as a matter of law if the benefits are used for “current maintenance,” which includes “cost incurred in obtaining food, shelter, clothing, medical care, and personal comfort items.” Id. §§ 404.2040(a), 416.640(a).
The federal statute (42 U.S.C. § 407(a)) is not violated if the State reimburses itself. Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 386-87, 123 S. Ct. 1017, 154 L. Ed. 2d 972 (2003) (hereinafter Keffeler). Likewise the statute neither requires reimbursement by the private representative payee nor allows the State to compel it. The ultimate issue is the disparate treatment that results.
A private representative payee does not violate his or her duties by using the foster child’s social security benefits to provide “current maintenance” over and above the bare minimum provided by DSHS. No case stands for this proposition. The Social Security Administration (SSA) envisions both SSI benefits and OASDI benefits can be combined, at least in some cases, to supplement benefits pro*348vided by individual states for the benefit of the child. See SSA’s Program Operations Manual System, SI 00830.410(A)-(2) (July 31, 2003), available at http://policy.ssa.gov/poms.nsf (last visited Apr. 26, 2004). Though not warranting a Chevron12 level of deference because it lacks the force of law, see United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001), the SSA’s interpretation is entitled to some judicial deference. See Keffeler, 537 U.S. at 385-86; Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944). In sum, nothing prevents grandma from using SSI and/or OASDI benefits to better the child’s situation from the bare minimum provided by the State, and nothing compels her to use the SSI money to reimburse the State.
One can imagine many benefits the child with a private payee might enjoy through the supplemental use of these SSI benefits not available to his or her government counterpart. By illustration, when the child who has the beneficent DSHS as her representative payee is having gruel for breakfast, grandma is serving steak and eggs. When the State’s child is watching sitcoms on TV, grandma’s is off to the movies. When the State’s child finds a pair of knock-off sneakers underneath the Christmas tree, grandma has wrapped a new pair of Nikes. When the kids reach their teenage years and would benefit from travel around the region, the State’s child is stuck waiting at the depot to take a thrilling ride on Seattle’s wonderful new light rail (indulge me here),13 yet grandma may use the added benefits under her control to enable the child to visit the Vancouver aquarium by car or provide her grandson some other *349valuable educational and enriching experiences.14 And when the State’s child turns 18 she’s on her own, but grandma may set aside up to $2,000 from the social security to help her grandson get started without losing SSI eligibility. 20 C.F.R. §§ 404.2045, 416.645 (requiring benefits to be conserved or invested if not necessary for current maintenance); accord Clerk’s Papers at 1882 (Trial Court’s Findings of Fact on Order of Remand from Supreme Court (May 30, 2000)) (finding DSHS confiscated $662,897 of the $785,952 it received in SSI and/or OASDI benefits in sample of 48 randomly drawn accounts).
These are just some of the reasons to love grandma more than DSHS.
But our love for grandma should not turn into a “so what” for the poor foster sister—and it doesn’t have to because the equal protection clause mandates, “No state shall. . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend XIV, § 1. The girl next door doesn’t have a grandma to be her representative payee and has no choice but for the State to act as both a mailbox and depository of her benefits. 20 C.F.R. §§ 404.2021(b), 416.621(b) (public agency has lowest priority when seeking to become representative payee). This wasn’t her fault. It just happened. “Stuff happens,” Defense Secretary Rumsfeld says. Marc Sandalow, Rumsfeld calls looting an “untidiness,” S.F. Chron., Apr. 12, 2003, at A10, available at http://www.sfgate.com (last visited Apr. 26, 2004).
True, not every distinction or questionable public policy amounts to an equal protection violation, Heller v. Doe, 509 U.S. 312, 319, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993); however when no reasonable basis exists to justify the disparate treatment, even the deferential rational basis test will not save it. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447-48, 105 S. Ct. 3249, 87 L. Ed. 2d 313 *350(1985) (denial of special use permit to build facility for mentally retarded not rationally related to legitimate government purpose); Jimenez v. Weinberger 417 U.S. 628, 633-34, 94 S. Ct. 2496, 41 L. Ed. 2d 363 (1974) (denial of social security benefits to child based solely on child’s illegitimacy violates rational basis). Of course the government wants the money, but that’s not sufficient reason to take it from the girl next door while leaving grandma alone. Conklin v. Shinpoch, 107 Wn.2d 410, 421, 730 P.2d 643 (1986) (fiscal enhancement alone may not serve as basis for discriminatory classification).
The majority obscures the point by talking about this case as not involving two groups but one, as if semantics really matters. Fundamental to any equal protection analysis is the constitutional “direction that all persons similarly situated should be treated alike.” Cleburne Living Ctr., 473 U.S. at 439. Here there are foster children who have a private payee and benefit from their social security benefits in addition to their foster care allowance, and DSHS children who don’t have the benefit of their social security payments. Even if we were examining “one group,” majority at 340, children within the group are treated unequally for no more reason than one has a private and the other a public payee. That, however, is not a rationale to justify different treatment, only a happenstance without logical force which prefers one child over another based on the status of the representative payee, an equal protection violation if I ever saw one.
I dissent.
See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).
How long she will have to wait at the depot for the light rail to be constructed and then operational is still up in the air, so hopefully she brings warm clothes, a book to read, and a construction helmet. See Sane Transit v. Sound Transit, 151 Wn.2d 60, 78-79, 85 P.3d 346 (2004) (regional transit authority has indefinite time to build light rail).
A beneficiary’s automobile valued at $4,500 or less does not count against the $2,000 threshold above which SSI benefits discontinue. 20 C.F.R. § 416.1218(b)(2). There is no value limitation if the automobile is necessary for the disabled beneficiary’s employment or medical condition. Id. § 416.1218(b)(1).