WSR 05-06-014

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

(Division of Child Support)

[ Filed February 22, 2005, 7:33 a.m. , effective March 25, 2005 ]


Purpose: The Division of Child Support (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 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 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.

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 overcollects 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 return?

Citation of Existing Rules Affected by this Order: Amending WAC 388-14A-5000, 388-14A-5001, 388-14A-5005, and 388-14A-5008.

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

Other Authority: 45 C.F.R. 303.72 (h)(5).

Adopted under notice filed as WSR 05-02-063 on January 4, 2005.

Changes Other than Editing from Proposed to Adopted Version: Language was added to WAC 388-14A-5000 (1)(d) to include tribal child support programs.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 2, Amended 4, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 2, Amended 4, Repealed 0.

Date Adopted: February 14, 2005.

Andy Fernando, Manager

Rules and Policies Assistance Unit

3492.3
AMENDATORY SECTION(Amending WSR 03-20-072, filed 9/29/03, effective 10/30/03)

WAC 388-14A-5000   How does the division of child support distribute support payments?   (1) Under state and federal law, the division of child support (DCS) distributes support money it collects or receives to the:

(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, child support 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.]


AMENDATORY SECTION(Amending WSR 01-24-078, filed 12/3/01, effective 1/3/02)

WAC 388-14A-5001   What procedures does DCS follow to distribute support payments?   When distributing support money, the division of child support (DCS) does the following:

(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.]


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

WAC 388-14A-5005   How does DCS distribute intercepted federal income tax refunds?   (1) The division of child support (DCS) applies intercepted federal income tax refunds in accordance with 42 U.S.C. Sec. 657, as follows:

(((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.]


NEW SECTION
WAC 388-14A-5009   What happens when an employer or other entity overcollects support from the noncustodial parent based on a DCS withholding order?   (1) When an employer or other entity overcollects support from a noncustodial parent (NCP) based on a withholding order issued by the division of child support (DCS), DCS evaluates what to do with the overpayment on a case by case basis.

(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.

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NEW SECTION
WAC 388-14A-5010   How does the division of child support handle intercepted federal income tax refunds from a joint return?   (1) The division of child support (DCS) collects child support arrears through the interception of federal income tax refunds. This section deals with the issues that arise when the Secretary of the Treasury intercepts a refund based on a joint tax return filed by a noncustodial parent (NCP) and the NCP's spouse who does not owe child support.

(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.

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Washington State Code Reviser's Office