WSR 11-22-038

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed October 27, 2011, 9:36 a.m. , effective October 27, 2011, 9:36 a.m. ]


Effective Date of Rule: Immediately.

Purpose: The department of social and health services, division of child support (DCS) is filing this second emergency rule to maintain the status quo as we complete the regular rule adoption process amending various sections of chapter 388-14A WAC to implement sections 9, 10 and 11 of ESSB 5921 (chapter 42, Laws of 2011).

THESE RULES ARE EXACTLY THE SAME AS THE PRIOR EMERGENCY RULES.

The statutory changes took effect on July 1, 2011. DCS adopted emergency rules under WSR 11-14-086 in order to have our rule changes effective by July first.

At the same time we filed this emergency rule-making order, DCS filed a CR-101 Preproposal statement of inquiry, to start the regular rule-making process. DCS filed the CR-102 Notice of proposed rule making, as WSR 11-20-098; the public rule-making hearing for adoption of permanent rules is set for November 8, 2011.

Citation of Existing Rules Affected by this Order: New sections WAC 388-14A-2007 Does an application for subsidized child care automatically become an application for support enforcement services?, 388-14A-2042 What happens if I don't cooperate with DCS while I receive a child care subsidy? and 388-14A-2093 Who is mailed notice of DCS' intent to close a case when the custodial parent receives a child care subsidy or a working connections child care subsidy?; and amending WAC 388-14A-2040 Do I have to cooperate with the division of child support in establishing or enforcing child support?, 388-14A-2041 What happens if I don't cooperate with DCS while I receive public assistance?, 388-14A-2045 What can I do if I am afraid that cooperating with the division of child support will be harmful to me or to my children?, 388-14A-2050 Who decides if I have good cause not to cooperate?, and 388-14A-2075 What happens if the division of child support determines that I am not cooperating?

Statutory Authority for Adoption: ESSB 5921 (chapter 42, Laws of 2011); RCW 34.05.020, 34.05.220, 34.05.350, 74.08.090, 74.20.040.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that in order to implement the requirements or reductions in appropriations enacted in any budget for fiscal year 2009, 2010, 2011, 2012 or 2013, which necessitates the need for the immediate adoption, amendment, or repeal of a rule, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the fiscal needs or requirements of the agency.

Reasons for this Finding: The statutory changes were effective July 1, 2011, and DCS adopted emergency rules effective that date. This second emergency filing is necessary to maintain the status quo until the permanent rules are final.

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 3, Amended 5, 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 0, Amended 0, 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 3, Amended 5, Repealed 0.

Date Adopted: October 19, 2011.

Katherine I. Vasquez

Rules Coordinator

4315.1
NEW SECTION
WAC 388-14A-2007   Does an application for subsidized child care automatically become an application for support enforcement services?   (1) As a condition of receiving a child care subsidy or a working connections child care (WCCC) subsidy, the applicant or recipient must seek child support enforcement services, unless the department finds that the applicant or recipient has good cause not to cooperate.

(a) An application for a subsidy does not automatically become an application for support enforcement services.

(b) The person receiving the subsidy must file a signed application for support enforcement services as described in WAC 388-14A-2000 and 388-14A-2010, unless the person is also receiving cash assistance.

(2) Payment for subsidized child care services or WCCC services constitutes an authorization to DCS to provide the recipient of the subsidy with support enforcement services, but the recipient must submit a signed application, as provided in subsection (1) of this section.

(3) DCS collects, but does not retain, child support payments unless there is also an assignment of rights based on receipt of cash assistance or medical assistance.

(4) If DCS documents failure to cooperate by the custodial parent (CP), and that cooperation is essential for the next step in enforcement, DCS closes the child support enforcement case under WAC 388-14A-2080(8) or as that section may hereinafter be amended.

(5) If the person receiving the subsidy requests that DCS stop providing services and there is no current assignment of medical or support rights, DCS closes the child support enforcement case under WAC 388-14A-2080(4) or as that section may hereinafter be amended.

(6) If DCS closes a case as provided in subsection (4) or (5) of this section, DCS notifies the community services division (CSD) that the recipient of the subsidy has failed to cooperate with DCS. Any sanctions for failure to cooperate are determined by the CSO or the department of early learning (DEL).

[]


AMENDATORY SECTION(Amending WSR 06-03-120, filed 1/17/06, effective 2/17/06)

WAC 388-14A-2040   Do I have to cooperate with the division of child support in establishing or enforcing child support?   (1) You must cooperate with the division of child support (DCS) when you receive public assistance unless the department determines there is good cause not to cooperate under WAC 388-422-0020.

(2) You must cooperate with the division of child support (DCS) when you receive a child care subsidy or a working connections child care (WCCC) subsidy, unless the department determines there is good cause not to cooperate under WAC 388-422-0020 or another specific DEL rule.

(3) As described in WAC 388-14A-2080, DCS may close a nonassistance case if the custodial parent (CP) fails to cooperate, if cooperation is essential for the next step in enforcement.

(4) For purposes of this section and WAC 388-14A-2075, cooperating with DCS includes cooperating with those acting on behalf of DCS (its "representatives"), namely the prosecuting attorney, the attorney general, or a private attorney paid per RCW 74.20.350. In cases where paternity is at issue, the custodial parent (CP) of a child who receives assistance must cooperate whether or not the parent receives assistance.

(((2))) (5) Cooperation means giving information, attending interviews, attending hearings, or taking actions to help DCS establish and collect child support. This information and assistance is necessary for DCS to:

(a) Identify and locate the responsible parent;

(b) Establish the paternity of the child(ren) on assistance in the CP's care; and

(c) Establish or collect support payments or resources such as property due the CP or the child(ren).

(((3))) (6) The CP must also cooperate by sending to DCS any child support received by the CP while on assistance, as required by RCW 74.20A.275 (3)(c). If the client keeps these payments, known as retained support, the CP must sign an agreement to repay under RCW 74.20A.275, and the CP must honor that agreement.

(((4))) (7) The cooperation requirements of subsections (1), (4) and (((2))) (5) above, but not subsection (((3))) (6), apply to a recipient of medicaid-only assistance.

(8) The cooperation requirements of subsections (2), (4) and (5) above, but not subsection (6), apply to a recipient of a child care subsidy or a WCCC subsidy.

[Statutory Authority: RCW 74.20A.310, 45 C.F.R. 302.31 and 302.33. 06-03-120, 388-14A-2040, filed 1/17/06, effective 2/17/06. Statutory Authority: RCW 74.08.090, 34.05.310 (4)(d), 26.23.035, 74.20A.310. 03-20-072, 388-14A-2040, filed 9/29/03, effective 10/30/03. Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.310. 01-03-089, 388-14A-2040, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-201.]


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

WAC 388-14A-2041   What happens if I don't cooperate with DCS while I receive public assistance?   (1) If you receive public assistance, there may be penalties, called sanctions, for not cooperating with the division of child support (DCS). These sanctions and the noncooperation process are described in WAC 388-14A-2075. You may be sanctioned if:

(a) You do not go to scheduled interviews and answer questions;

(b) There is credible evidence showing that you could have given the information but did not;

(c) You have been giving inconsistent or false information without a good reason; or

(d) You refuse to sign or honor a repayment agreement under WAC 388-14A-2040(3).

(2) You must be given the opportunity to swear you do not have the information.

(3) You cannot be sanctioned because you provided information on a possible parent who was then excluded by genetic testing. In this event you must continue to cooperate in naming other possible parents and taking part in any resulting genetic testing.

(4) You may not be able to help DCS if you do not know, do not possess, or cannot reasonably obtain the requested information. To avoid a sanction, you must, under penalty of perjury, swear or attest to your lack of information in an interview held by DCS or its representative.

(5) If you fear that cooperation may cause harm to you or your children, you may contact the community services division (CSD) to claim good cause not to cooperate under WAC 388-422-0020.

[Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.310. 01-03-089, 388-14A-2041, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-202.]


NEW SECTION
WAC 388-14A-2042   What happens if I don't cooperate with DCS while I receive a child care subsidy?   (1) If the division of child support (DCS) closes your nonassistance case either at your request or based on your failure to cooperate while you are a recipient of a child care subsidy or a working connections child care (WCCC) subsidy, DCS notifies the community services division (CSD) that your case was closed.

(2) Any sanctions for your failure to cooperate are determined by CSD or the department of early learning (DEL).

(3) If you fear that cooperation may cause harm to you or your children, you may contact the community services division (CSD) to claim good cause not to cooperate under WAC 388-422-0020 or another specific DEL rule.

[]


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

WAC 388-14A-2045   What can I do if I am afraid that cooperating with the division of child support will be harmful to me or to my children?   (1) If a custodial parent (CP) receiving public assistance fears that the establishment or enforcement of support may result in harm to the CP or the children, the CP may be excused from the cooperation requirements. ((You can)) The CP must contact the community services office (CSO) to claim good cause not to cooperate under WAC 388-422-0020. ((Go to the community services office (CSO) to claim good cause.))

(2) If a CP who is not receiving public assistance but is receiving a child care subsidy or a working connections child care (WCCC) subsidy fears that the establishment or enforcement of support may result in harm to the CP or the children, the CP may be excused from the cooperation requirements. The CP must contact the CSO to claim good cause not to cooperate under WAC 388-422-0020 or another specific DEL rule.

(3) If a CP who is not receiving public assistance, a child care subsidy or a WCCC subsidy fears that the establishment or enforcement of support may result in harm to the CP or the children, the CP should tell the division of child support (DCS) that family violence is an issue in the case, so that DCS may take appropriate action. The CP may ask DCS to close the nonassistance support enforcement case.

[Statutory Authority: RCW 74.08.090. 01-03-089, 388-14A-2045, filed 1/17/01, effective 2/17/01.]


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

WAC 388-14A-2050   Who decides if I have good cause not to cooperate?   (1) The community services office (CSO) decides whether you have good cause not to cooperate with the division of child support (DCS). You must tell the CSO if you want to claim good cause.

(a) The CSO determines good cause under WAC 388-422-0020 or another specific DEL rule.

(b) You may claim good cause at the time you apply for public assistance or for a child care or working connections child care (WCCC) subsidy, or at any time thereafter.

(2) When you make a claim of good cause not to cooperate, DCS does not take any action on ((the)) your case while the CSO is reviewing your good cause claim.

(3) If you are not receiving public assistance but are applying for a child care subsidy or a WCCC subsidy, you may be granted good cause and not have to apply for child support enforcement services.

[Statutory Authority: RCW 74.08.090. 01-03-089, 388-14A-2050, filed 1/17/01, effective 2/17/01.]


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

WAC 388-14A-2075   What happens if the division of child support determines that I am not cooperating?   (1) When the division of child support (DCS) or its representatives believe ((you are)) that a custodial parent (CP) who receives cash assistance or medical assistance not cooperating as defined in WAC 388-14A-2040, DCS sends a notice to ((you)) the CP and to the community service office (CSO) ((stating)) about the noncooperation ((and explaining)).

(a) The notice contains the following information:

(((a))) (i) How the noncooperation was determined, including what actions were required;

(((b))) (ii) What actions ((you)) the CP must take to resume cooperation;

(((c))) (iii) That this notice was sent to the CSO;

(((d))) (iv) That ((you)) the CP may contact the CSO immediately if ((you)) the CP disagrees with the notice, needs help in order to cooperate, or believes the actions required are unreasonable; and

(((e))) (v) That the CSO may sanction ((you)) the CP by either reducing or terminating the grant.

(((2))) (b) The CSO sends a notice of planned action to ((you)) the CP as provided by WAC 388-472-0005 (1)(i).

(((3))) (c) Either the notice of alleged noncooperation or the CSO's notice of planned action may serve as the basis for a sanction.

(((4))) (d) If the noncooperation was due to missing an interview without reasonable excuse, ((you)) the CP will be considered to be cooperating when ((you)) the CP appears for a rescheduled interview and either provides information or attests to the lack of information. DCS or its representative must reschedule the interview within seven business days from the date ((you)) the CP contacts them to reschedule an interview.

(((5))) (e) If the noncooperation was due to not taking a required action, cooperation resumes when ((you)) the CP takes that action.

(((6))) (2) There is no hearing right for a notice of noncooperation, but ((you can)) the CP may request a hearing on the sanction imposed by the CSO.

(3) When DCS or its representatives believe that a CP who does not receive public assistance but does receive a child care subsidy or a working connections child care (WCCC) subsidy is not cooperating, and that cooperation is essential for the next step in establishment or enforcement, DCS sends a notice of case closure to the CP.

(a) The notice of case closure contains the following information:

(i) That DCS cannot take the next step in establishment or enforcement because of the CP's failure to cooperate;

(ii) What actions the CP must take to resume cooperation;

(iii) The DCS will notify the CSO of case closure;

(iv) That DCS may close the nonassistance case if the CP does not cooperate within sixty days; and

(v) That the CSO may sanction the CP. Any sanctions for failure to cooperate are determined by the CSO.

(4) If the CP takes the actions required to resume cooperation within sixty days, DCS leaves the case open and continues to establish or enforce the support obligation.

(5) The CP may request a hearing to contest case closure, as described in WAC 388-14A-2095.

(6) If DCS closes the case due to noncooperation, a CP who does not receive public assistance but does receive a child care subsidy or a WCCC subsidy may request a hearing on the sanction imposed by the CSO.

[Statutory Authority: RCW 74.08.090, 34.05.310 (4)(d), 26.23.035, 74.20A.310. 03-20-072, 388-14A-2075, filed 9/29/03, effective 10/30/03. Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.310. 01-03-089, 388-14A-2075, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-202.]


NEW SECTION
WAC 388-14A-2093   Who is mailed notice of DCS' intent to close a case when the custodial parent receives a child care subsidy or a working connections child care subsidy?   (1) Unless the department finds good cause not to require it, a recipient of a child care subsidy or a working connections child care (WCCC) subsidy who does not receive cash assistance or medical assistance must apply for support enforcement services.

(2) If the division of child support (DCS) intends to close the case because the custodial parent (CP) who receives a child care or WCCC subsidy fails to cooperate as described in WAC 388-14A-2075(3), DCS sends a copy of the notice of intent to close the case to the CP. DCS also notifies the community services division (CSD).

(3) As provided in WAC 388-14A-2090, DCS does not send a notice of intent to close when the CP requests case closure. When DCS closes a case at the request of a CP who receives a child care or WCCC subsidy, DCS sends a copy of the case closure notice to the CP, and also notifies CSD.

(4) Requesting case closure while receiving a child care or WCCC subsidy counts as a failure to cooperate with DCS.

[]

Washington State Code Reviser's Office