WSR 03-15-027

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed July 8, 2003, 4:27 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-09-090.

Title of Rule: The Division of Child Support (DCS) is amending rules regarding the DCS license suspension program: WAC 388-14A-4500 What is the division of child support's license suspension program?, 388-14A-4505 The notice of noncompliance and intent to suspend licenses, 388-14A-4510 Who is subject to the DCS license suspension program?, 388-14A-4515 How do I avoid having my license suspended for failure to pay child support?, 388-14A-4520 Signing a repayment agreement may avoid certification for noncompliance, 388-14A-4525 How to obtain a release of certification for noncompliance, and 388-14A-4530 Administrative hearings regarding license suspension are limited in scope.

Purpose: DCS has reviewed and revised the rules regarding the license suspension program, especially to clarify who is subject to license suspension and to provide for a stay of certification after service of a notice of noncompliance on a noncustodial parent who is incarcerated or receiving public assistance.

Statutory Authority for Adoption: RCW 74.20A.320.

Statute Being Implemented: RCW 74.20A.320.

Summary: DCS is revising the rules regarding the license suspension program, to clarify who is subject to license suspension.

Reasons Supporting Proposal: The rules clarify procedures - see Purpose above.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Nancy Koptur, DCS HQ, P.O. Box 9162, Olympia, WA 98507-9162, (360) 664-5065.

Name of Proponent: Department of Social and Health Services, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: DCS is amending the rules regarding the DCS license suspension program, which are contained in WAC 388-14A-4500 through 388-14A-4530, authorized by RCW 74.20A.320. These amendments are to clarify who may be subject to license suspension, and to provide for a stay of certification after service of a notice of noncompliance on a noncustodial parent who is incarcerated or receiving public assistance.

Proposal Changes the Following Existing Rules: Amendments to WAC 388-14A-4500, 388-14A-4505, 388-14A-4510, 388-14A-4515, 388-14A-4520, 388-14A-4525, and 388-14A-4530. See Purpose above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not have an economic impact on small businesses. It only affects individuals who have support obligations or individuals who are owed child support.

RCW 34.05.328 does not apply to this rule adoption. The rule does meet the definition of a significant legislative rule, but DSHS/DCS is not required to prepare a further analysis under RCW 34.05.328 (5)(b)(vii), which exempts rules concerning liability of care of dependents.

Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on August 26, 2003, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by August 22, 2003, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaax@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, mail to P.O. Box 45850, Olympia, WA 98504-5850, deliver to 4500 10th Avenue S.E., Lacey, WA, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., August 26, 2003.

Date of Intended Adoption: Not earlier than August 27, 2003.

July 7, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3233.4
AMENDATORY SECTION(Amending WSR 01-03-089, filed 1/17/01, effective 2/17/01)

WAC 388-14A-4500   What is the division of child support's license suspension program?   (1) RCW 74.20A.320 provides that, in some circumstances, the division of child support (DCS) may certify for license suspension a noncustodial parent (NCP) who is not in compliance with a child support order. The statute calls the NCP the responsible parent.

(a) "Certify" means to ((establish)) notify the department of licensing or other state licensing entities that the NCP is not in compliance with a child support order and to ask ((the department of licensing and other state licensing entities)) them to take appropriate action against licenses held by the NCP. Before DCS can certify an NCP, DCS serves a notice on the NCP as described in WAC 388-14A-4505 and 388-14A-4510. This notice is called the notice of noncompliance and intent to suspend licenses, and is sometimes called the notice of noncompliance.

(b) "Responsible parent" is defined in 388-14A-1020. The responsible parent is also called the "noncustodial parent."

(2) "Noncompliance with a child support order" is defined in RCW 74.20A.020(18) and in WAC 388-14A-4510.

(3) When DCS certifies the NCP, the department of licensing or other licensing entities take action to deny, suspend, or refuse to renew the NCP's license, according to the terms of RCW 74.20A.320 (8) and (12).

(4) This section and sections WAC 388-14A-4505 through 388-14A-4530 cover the DCS license suspension program.

(5) DCS may certify an NCP who is not in compliance with a child support order to the department of licensing or any appropriate licensing entity. In determining which licensing entity receives the certification, DCS ((shall consider)) considers:

(a) The number and kind of licenses held by the parent; and

(b) The effect that suspension of a particular license will have in motivating the parent to pay support or to contact DCS to make appropriate arrangements for other relief.

(6) DCS may certify a parent to any licensing agency through which it believes the parent has obtained a license. DCS may certify a parent to as many licensing agencies as DCS feels necessary to accomplish the goals of the license suspension program.

(7) In certain circumstances spelled out in WAC 388-14A-4510 (2) and (3), DCS may serve the notice of noncompliance on a noncustodial parent but may stay the commencement of the twenty-day objection period in WAC 388-14A-4505 (4)(b).

[Statutory Authority: RCW 74.08.090, 74.20A.320. 01-03-089, 388-14A-4500, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-510.]


AMENDATORY SECTION(Amending WSR 01-03-089, filed 1/17/01, effective 2/17/01)

WAC 388-14A-4505   The notice of noncompliance and intent to suspend licenses.   (1) Before certifying a noncustodial parent (NCP) for noncompliance, the division of child support (DCS) must serve the NCP with a notice of noncompliance and intent to suspend licenses. This notice tells the NCP that DCS intends to submit the NCP's name to the department of licensing and any other appropriate licensing entity as a licensee who is not in compliance with a child support order.

(2) DCS must serve the notice by certified mail, return receipt requested. If DCS is unable to serve the notice by certified mail, DCS must serve the notice by personal service, as provided in RCW 4.28.080.

(3) The notice must include a copy of the NCP's child support order and must contain the address and phone number of the DCS office which issued the notice.

(4) The notice must contain the information required by RCW 74.20A.320(2), telling the NCP that:

(a) The NCP may request an administrative hearing, but that the hearing is limited in scope (see WAC 388-14A-4530);

(b) DCS will certify the NCP unless the NCP makes a request for hearing within twenty calendar days of the date of service of the notice, except when a longer period of time is given, as provided in WAC 388-14A-4510 (2) or (3);

(c) The NCP may avoid certification by agreeing to make timely payments of current support and agreeing to a reasonable payment schedule on the support debt;

(d) Certification by DCS will result in suspension or nonrenewal of the NCP's license by the licensing entity until DCS issues a release stating that the NCP is in compliance with the child support order;

(e) Suspension of a license may affect the NCP's insurance coverage, depending on the terms of any policy;

(f) Filing a petition to modify the support obligation may stay (or put a hold on) the certification process; and

(g) Even after certification, the NCP may obtain a release from certification by complying with the support order.

[Statutory Authority: RCW 74.08.090. 01-03-089, 388-14A-4505, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-520.]


AMENDATORY SECTION(Amending WSR 01-03-089, filed 1/17/01, effective 2/17/01)

WAC 388-14A-4510   Who is subject to the DCS license suspension program?   (1) The division of child support (DCS) may ((certify)) serve a notice of noncompliance on a noncustodial parent (NCP) who is not in compliance with a child support order when:

(a) The NCP is required to pay child support under a court order or administrative order;

(b) The NCP is at least six months in arrears; and

(c) ((The NCP is not:

(i) In jail or prison, except if the NCP has other resources available;

(ii) A recipient of temporary assistance for needy families (TANF), Supplemental Security Income (SSI) or other exempt public assistance program; or

(iii) A WorkFirst participant who does not receive a cash grant.

(d))) The NCP is not currently making payments to the Washington state support registry under a wage withholding action issued by DCS.

(2) DCS may serve a notice of noncompliance on an NCP who meets the criteria of subsection (1) above, even if the NCP is in jail or prison. Unless the NCP has other resources available while in jail or prison, DCS stays the commencement of the twenty-day objection period in WAC 388-14A-4505 (4)(b) until the NCP has been out of jail or prison for thirty days.

(3) DCS may serve a notice of noncompliance on an NCP who meets the criteria of subsection (1) above, even if the NCP is a public assistance recipient. DCS stays the commencement of the twenty-day objection period in WAC 388-14A-4505 (4)(b) until the thirty days after the NCP's cash assistance grant is terminated.

(4) "Noncompliance with a child support order" for the purposes of the license suspension program means a NCP has:

(a) Accumulated a support debt, also called an arrearage or arrears, totaling more than six months of child support payments;

(b) Failed to make payments under a written agreement with DCS towards a support debt in an amount that is more than six months' worth of payments; or

(c) Failed to make payments required by a ((superior)) court order or administrative order towards a support debt in an amount that is more than six months' worth of payments.

(((3))) (5) There is no minimum dollar amount for the six months of arrears. The following are examples of when a NCP is at least six months in arrears:

(a) The child support order requires monthly payments of five hundred dollars. The NCP has not made a single payment since the order was entered seven months ago. This NCP is at least six months in arrears;

(b) The child support order requires monthly payments of one hundred dollars. The NCP has paid for the last few months, but owes a back debt of over six hundred dollars. This NCP is at least six months in arrears;

(c) The NCP owes a support debt according to a ((superior court)) judgment, which requires payments of one hundred dollars per month. The NCP has not made payment for eight months. This NCP is at least six months in arrears; or

(d) The child support order required monthly payments of two hundred dollars, but the child is over eighteen so no current support is owed. However, the NCP has a debt of over twelve hundred dollars. This NCP is at least six months in arrears.

(((4))) (6) For the purposes of the license suspension program, a NCP is in compliance with the child support order when the amount owed in arrears is less than six months' worth of support.

[Statutory Authority: RCW 74.08.090, 74.20A.320. 01-03-089, 388-14A-4510, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-530.]


AMENDATORY SECTION(Amending WSR 01-03-089, filed 1/17/01, effective 2/17/01)

WAC 388-14A-4515   How do I avoid having my license suspended for failure to pay child support?   (1) After service of the notice of noncompliance, DCS stays certification action if the noncustodial parent (NCP) takes the following action within twenty days of service of the notice:

(a) Requests an administrative hearing under WAC 388-14A-4530; or

(b) Contacts DCS to negotiate a reasonable payment schedule on the arrears and agrees to make timely payments of current support.

(i) The stay for negotiation may last a maximum of thirty calendar days after the NCP contacts DCS; and

(ii) If no payment schedule has been agreed to in writing after thirty calendar days have passed, DCS may proceed with certification of noncompliance;

(iii) A reasonable payment schedule is described in WAC 388-14A-4520, below; and

(iv) The NCP may request a conference board review under WAC 388-14A-6400 if the NCP feels that DCS has not negotiated in good faith.

(2) If the NCP files a court or administrative action to modify the child support obligation, DCS stays the certification action.

(3) The stay for modification action may not exceed six months unless DCS finds good cause to extend the stay.

(4) The NCP must notify DCS that a modification proceeding is pending and must provide a copy of the motion or request for modification to DCS.

(5) A stay of certification does not require DCS to withdraw the notice of noncompliance.

[Statutory Authority: RCW 74.08.090, 74.20A.320. 01-03-089, 388-14A-4515, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-540.]


AMENDATORY SECTION(Amending WSR 01-03-089, filed 1/17/01, effective 2/17/01)

WAC 388-14A-4520   Signing a repayment agreement may avoid certification for noncompliance.   (1) If a noncustodial parent (NCP) signs a repayment agreement, DCS stays the certification action. The NCP must agree to pay current support in a timely manner and make regular payments on the support debt.

(2) The repayment agreement must state that if the NCP fails to make payments under the terms of the agreement, DCS may resume certification action.

(3) The signing of a repayment agreement does not require DCS to withdraw the notice of noncompliance.

(4) In setting the repayment amount, DCS must take into account the financial situation of the NCP and the needs of all children who rely on the NCP for support. The NCP must supply sufficient financial information to allow DCS to analyze and document the NCP's financial situation and requirements, including normal living expenses and emergencies.

(((4))) (5) A reasonable monthly arrears payment is defined as a percentage of the NCP's "adjusted net income," which is the NCP's net monthly income minus any current support obligation. The following table sets forth the suggested monthly payments on arrears:

Monthly adjusted net income (ANI) Monthly arrears payment = Percentage of ANI
$1,000 or less 2%
$1,001 to $1,200 3%
$1,201 to $1,500 4%
$1,501 to $1,900 5%
$1,901 to $2,400 6%
$2,401 to $3,000 7%
$3,001 or more 8%
(((5))) (6) Examples of how to calculate the arrears payment are as follows:

(a) Monthly net income = $1,500
Current support = $300
Adjusted net income = $1,200
Arrears payment = 3% of ANI ($1,200) = $36
(b) Monthly net income = $3,100
Current support = $-0-
Adjusted net income = $3,100
Arrears payment = 8% of ANI ($3,100) = $248
(((6))) (7) The NCP must document any factors which make the NCP eligible for an arrears payment less than the amount shown in the table in subsection (((4))) (5). Such factors include, but are not limited to:

(a) Special needs children, or

(b) Uninsured medical expenses.

(((7))) (8) The custodial parent and/or DCS must document any factors which make the NCP eligible for an arrears payment higher than the amount shown in the table in subsection (((4))) (5). Such factors include, but are not limited to the factors listed in RCW 26.19.075 for deviation from the standard calculation for child support obligations.

(9) If the NCP signs a repayment agreement under this section under the circumstances spelled out in WAC 388-14A-4510 (2) or (3), the NCP may make voluntary payments but DCS does not resume certification action until thirty days after NCP is released or stops receiving public assistance.

[Statutory Authority: RCW 74.08.090, 74.20A.320. 01-03-089, 388-14A-4520, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-550.]


AMENDATORY SECTION(Amending WSR 01-03-089, filed 1/17/01, effective 2/17/01)

WAC 388-14A-4525   How to obtain a release of certification for noncompliance.   (1) After DCS has certified a noncustodial parent (NCP) to a licensing entity, the NCP may obtain a release from DCS by taking the following actions:

(a) Paying the support debt in full; or

(b) Signing a repayment agreement under WAC 388-14A-4520 and paying the first installment due under the agreement. Signing a repayment agreement does not require DCS to withdraw the notice of noncompliance.

(2) DCS must provide a copy of the release to any licensing entity to which DCS has certified the NCP.

(3) The NCP must comply with any requirements of the licensing entity to get the license reinstated or reissued.

[Statutory Authority: RCW 74.08.090, 74.20A.320. 01-03-089, 388-14A-4525, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-560.]


AMENDATORY SECTION(Amending 01-03-089, filed 1/17/01, effective 2/17/01)

WAC 388-14A-4530   Administrative hearings regarding license suspension are limited in scope.   (1) An administrative hearing on a notice of noncompliance under WAC 388-14A-4505 is limited to the following issues:

(a) Whether the person named in the child support order is the noncustodial parent (NCP);

(b) Whether the NCP is required to pay child support under a child support order; and

(c) Whether the NCP is at least six months in arrears.

(2) The administrative law judge (ALJ) is not required to calculate the outstanding support debt beyond determining whether the NCP is at least six months in arrears. Any debt calculation shall not be binding on the department or the NCP beyond the determination that there is at least six months of arrears.

(3) If the NCP requests a hearing on the notice, DCS stays the certification process until the hearing results in a finding that the NCP is not in compliance with the order, or that DCS is authorized to certify the NCP.

(4) If the NCP requests a hearing on the notice of noncompliance under the circumstances spelled out in WAC 388-14A-4510 (2) and (3), DCS asks the office of administrative hearings to schedule a hearing. If the hearing results in a finding that the NCP is not in compliance with the order, or that DCS is authorized to certify the NCP, DCS stays the certification process until thirty days after the NCP is released or stops receiving cash public assistance.

[Statutory Authority: RCW 74.08.090, 74.20A.320. 01-03-089, 388-14A-4530, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-570.]

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