Original Notice.

     Preproposal statement of inquiry was filed as WSR 04-07-166 and 04-08-069.

     Title of Rule and Other Identifying Information: The Division of Child Support (DCS) is amending WAC 388-14A-5000 How does the division of child support distribute support payments?, 388-14A-5001 What procedures does DCS follow to distribute support payments?, 388-14A-5005 How does DCS distribute intercepted federal income tax refunds?, 388-14A-5008 Can the noncustodial parent prepay support? and new sections WAC 388-14A-5009 What happens when an employer or other entity withholds too much support from the noncustodial parent based on a DCS withholding order? and 388-14A-5010 How does the division of child support handle intercepted federal income tax refunds from a joint tax return?, regarding distribution of child support payments; DCS seeks to clarify that the date of collection is the date that DCS receives a payment; DCS seeks to clarify its ability to delay distribution of part of a payment based on the interception of an IRS tax refund based on a joint tax return; and DCS seeks to clarify how it handles payments when the employer withholds too much.

     Hearing Location(s): Blake Office Park East (behind Goodyear Courtesy Tire), Rose Room, 4500 10th Avenue S.E., Lacey, WA, on February 8, 2005, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than February 9, 2005.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m., February 8, 2005.

     Assistance for Persons with Disabilities: Contact Fred Swenson, DSHS Rules Consultant, by February 4, 2005, TTY (360) 664-6178 or (360) 664-6097.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: DCS seeks to clarify existing rules regarding distribution to make it clear that the date of collection is the date of receipt of payment. The IRS (Internal Revenue Service intercepts tax refunds of noncustodial parents who owe back child support; some of these refunds are from joint returns and the noncustodial parent's spouse may be entitled to some or all of the tax refund; when the IRS is required to return the intercepted refund to the "injured spouse," this can result in an overpayment of support, which can create a hardship for the custodial parent. By holding onto refunds for a period not to exceed six months, DCS will be better able to determine which refunds are subject to an injured spouse claim and thus avoid overpayments.

     Statutory Authority for Adoption: RCW 26.23.035, 74.08.090, 74.20A.310.

     Statute Being Implemented: RCW 26.23.035, 74.08.090, 74.20A.188, 74.20A.310, 45 C.F.R. 303.72 (h)(5).

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

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

     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.

     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.

     A cost-benefit analysis is not required under RCW 34.05.328. The rule does meet the definition of a significant legislative rule but DSHS/DCS is exempt from preparing further analysis under RCW 34.05.328 (5)(b)(vii).

January 3, 2005

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (a) Department when the department provides or has provided public assistance payments for the support of the family;

     (b) Payee under the order, or to the custodial parent (CP) of the child according to WAC 388-14A-5050;

     (c) Child support enforcement agency in another state or foreign country which submitted a request for support enforcement services;

     (d) Indian tribe which has a TANF program and/or a cooperative agreement regarding the delivery of child support services; or

     (e) Person or entity making the payment when DCS is unable to identify the person to whom the support money is payable after making reasonable efforts to obtain identification information.

     (2) DCS distributes support based on the date of collection. DCS considers the date of collection to be the date that DCS receives the payment, no matter when the payment was withheld from the noncustodial parent (NCP).

     (3) If DCS is unable to distribute support money because the location of the family or person is unknown, it must exercise reasonable efforts to locate the family or person. When the family or person cannot be located, DCS handles the money in accordance with chapter 63.29 RCW, the uniform unclaimed property act.

     (((3))) (4) WAC 388-14A-5000 and sections WAC 388-14A-5001 through 388-14A-5008 contain the rules for distribution of support money by DCS.

     (((4))) (5) DCS changes the distribution rules based on changes in federal statutes and regulations.

[Statutory Authority: RCW 74.08.090, 34.05.310 (4)(d), 26.23.035, 74.20A.057, 74.20A.310. 03-20-072, § 388-14A-5000, filed 9/29/03, effective 10/30/03. Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.057, 74.20A.310. 01-03-089, § 388-14A-5000, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-250, 388-14-270, and 388-14-273.]

     (1) Records payments in exact amounts of dollars and cents;

     (2) Distributes support money within two days of the date DCS receives the money, unless DCS is unable to distribute the payment for one or more of the following reasons:

     (a) The location of the payee is unknown;

     (b) DCS does not have sufficient information to identify the accounts against which or to which it should apply the money;

     (c) An action is pending before a court or agency which has jurisdiction over the issue to determine whether support money is owed or how DCS should distribute the money.

     (d) DCS receives prepaid support money and is holding for distribution in future months under subsection (2)(e) of this section;

     (e) DCS mails a notice of intent to distribute support money to the custodial parent (CP) under WAC 388-14A-5050;

     (f) DCS may hold funds and not issue a check to the family for amounts under one dollar. DCS must give credit for the payment, but may delay disbursement of that amount until a future payment is received which increases the amount of the payment to the family to at least one dollar. If no future payments are received which increase the payment to the family of at least one dollar, DCS transfers the amount to the department of revenue under RCW 63.29.130. This subsection does not apply to disbursements which can be made by electronic funds transfer (EFT), or to refunds of intercepted federal income tax refunds; or

     (g) Other circumstances exist which make a proper and timely distribution of the money impossible through no fault or lack of diligence of DCS.

     (3) Distribute support money based on the date DCS receives the money, except as provided under WAC 388-14A-5005. DCS distributes support based on the date of collection. DCS considers the date of collection to be the date that DCS receives the payment, no matter when the payment was withheld from the noncustodial parent (NCP).

[Statutory Authority: RCW 26.23.035, 74.08.090, 74.20A.188, 74.20A.310, 42 U.S.C. 666(a)14. 01-24-078, § 388-14A-5001, filed 12/3/01, effective 1/3/02. Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.057, 74.20A.310. 01-03-089, § 388-14A-5001, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-270 and 388-14-273.]

     (((1))) (a) First, to support debts which are permanently assigned to the department to reimburse public assistance payments; and

     (((2))) (b) Second, to support debts which are temporarily assigned to the department to reimburse public assistance payments; and

     (((3))) (c) Third, to support debts that are not assigned to the department; and

     (((4))) (d) To support debts only, not to current and future support obligations. DCS must refund any excess to the noncustodial parent (NCP).

     (3) When the Secretary of the Treasury, through the federal Office of Child Support Enforcement (OCSE), notifies DCS that a payment on behalf of an NCP is from an intercepted refund based on a joint return, DCS follows the procedures set forth in WAC 388-14A-5010.

[Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.057, 74.20A.310. 01-03-089, § 388-14A-5005, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-270.]

     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 03-20-072, filed 9/29/03, effective 10/30/03)

WAC 388-14A-5008   Can the noncustodial parent prepay support?   (1) If the division of child support (DCS) receives or collects support money representing payment on the required support obligation for future months, DCS must:

     (((1))) (a) Apply the support money to future months ((when)) only if the support debt is paid in full;

     (((2))) (b) Distribute the support money on a monthly basis when payments become due in the future; and

     (((3))) (c) Mail a notice to the last known address of the person entitled to receive support money.

     (2) The notice in subsection (1)(c) above informs the person entitled to receive support money that:

     (a) DCS received prepaid support money;

     (b) DCS intends to distribute the prepaid money as support payments become due in the future; and

     (c) The person may request a conference board under WAC 388-14A-6400 to determine if DCS should immediately distribute the prepaid support money.

     (d) DCS does not mail the notice referred to in subsection (((3))) (1)(c) of this section if the prepaid support is equal to or less than one month's support obligation.

[Statutory Authority: RCW 74.08.090, 34.05.310 (4)(d), 26.23.035, 74.20A.057, 74.20A.310. 03-20-072, § 388-14A-5008, filed 9/29/03, effective 10/30/03. Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.057, 74.20A.310. 01-03-089, § 388-14A-5008, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-270.]

     (2) Depending on the facts of the case and the wishes of the NCP, DCS may take one of the following actions:

     (a) Refund the excess money to the NCP upon request;

     (b) Hold the excess money in suspense to be applied to the next month's support obligation; or

     (c) Any other action which comports with the requirements of this chapter and the federal regulations concerning distribution of support payments.

[]

     (2) When the Secretary of the Treasury, through the federal Office of Child Support Enforcement (OCSE), notifies DCS that a payment on behalf of an NCP is from an intercepted refund based on a joint return, DCS may delay distribution of that payment for up to six months in case the NCP's spouse is entitled to a share of the federal income tax refund.

     (3) DCS distributes fifty percent of the payment according to WAC 388-14A-5005.

     (4) DCS holds the other fifty percent of the payment in suspense until the earlier of the following:

     (a) DCS is notified by OCSE or the Secretary of the Treasury whether DCS must pay back the unobligated spouse's portion of the refund; or

     (b) For a period not to exceed six months from notification of the offset.

     (5) When DCS holds part of a payment under subsection (4) of this section, DCS applies the remainder of the payment to the NCP's back support obligations if DCS is not required to return the unobligated spouse's portion of the refund. The CP may:

     (a) Request that DCS apply the payment to the NCP's back support obligation sooner upon a showing of hardship to the CP; and

     (b) Request a conference board if the CP disagrees with DCS' denial of a hardship claim.

[]

© Washington State Code Reviser's Office