WSR 19-23-038
PERMANENT RULES
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES
(Economic Services Administration)
[Filed November 12, 2019, 10:12 a.m., effective December 13, 2019]
Effective Date of Rule: Thirty-one days after filing.
Purpose: The department of social and health services, division of child support (DCS) is amending WAC 388-14A-3323 What happens in a hearing on a notice of support owed served under WAC 388-14A-3311?, to correct two typographical errors in two subsections of that rule. The amended rule makes the following changes: In subsection (4) the word "more" is replaced with "less"; and in subsection (5) the word "less" is replaced with "more."
DCS may serve a
notice of support owed under RCW
26.23.110 when a support order provides that a parent is required to pay a portion of certain costs incurred on behalf of a child or children covered by the order but does not reduce the costs to a fixed dollar amount. The
notice of support owed does not modify the underlying support order; it results in an administrative order which sets the amount owed by the parent as a sum certain, either as a lump sum reimbursement or as an ongoing sum certain amount to be paid each month, or both. DCS uses the
notice of support owed process to determine sum certain amounts owed by the noncustodial parent (NCP) to the custodial parent (CP) for childcare or daycare (depending on the terminology of the underlying order), and also to determine sum certain amounts owed by either the NCP or the CP to the other for medical support.
Once the "original" administrative order requiring ongoing monthly payments is established pursuant to a
notice of support owed, RCW
26.23.110 (12)(a) provides that DCS must provide for an "annual review" of that order at the request of one of the parties. Additionally, DCS may perform an annual review on its own initiative. The annual review includes a reconciliation based on the actual costs incurred over the time period since the administrative order was entered, to determine if (1) the amounts established by the administrative order were accurate, or (2) the actual costs were greater than, or less than, the amounts set in the order.
WAC 388-14A-3323 deals with administrative hearings on a notice of support owed for daycare/childcare expenses concerning either an original notice of support owed or an annual review of an administrative order based on a prior notice of support owed. For hearings regarding an annual review, the current rule has created issues due to an inadvertent reversal of the terms "less" and "more" in subsections (4) and (5) of the rule as described above. A literal (and admittedly, correct) reading of these subsections limits DCS' ability to provide a meaningful reconciliation if the parties have an administrative hearing in front of an administrative law judge (ALJ).
This amendment carries out the intent of the statute (RCW
26.23.110) and the rule by allowing an ALJ to give the appropriate relief in an administrative hearing based on an annual review when the ALJ determines that the parent who was obligated to pay either overpaid or underpaid, once the actual expenses incurred are known.
Citation of Rules Affected by this Order: Amending WAC 388-14A-3323.
Adopted under notice filed as WSR 19-15-082 on July 18, 2019.
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 the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 1, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, 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 0, Amended 1, Repealed 0.
Date Adopted: November 12, 2019.
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION(Amending WSR 11-12-006, filed 5/19/11, effective 6/19/11)
WAC 388-14A-3323What happens in a hearing on a notice of support owed served under WAC 388-14A-3311?
(1) A hearing on a notice of support owed served under WAC 388-14A-3311 is subject to WAC 388-14A-3320 and this section.
(2) A hearing on a notice of support owed served under WAC 388-14A-3311 is only for the purpose of determining the amounts owed by the noncustodial parent (NCP) that are not stated as a fixed dollar amount in the underlying support order, either as part of the monthly support obligation or for nonmedical expenses of the children. See WAC 388-14A-3324 for the rules concerning a hearing on a notice of support owed for medical support.
(3) The administrative law judge (ALJ) must determine some or all of the following, depending on what was requested in the notice of support owed:
(a) The amount of monthly support as a fixed dollar amount;
(b) Any accrued arrears;
(c) Any difference between the NCP's obligation under a previous notice of support owed and his or her actual obligation after actual income or expenses are considered; and
(d) The amount of the NCP's share of nonmedical expenses for the children, including:
(i) The amount that the NCP must pay each month as his or her ongoing share of daycare and child care expenses for the children; and
(ii) Whether the custodial parent (CP) has provided sufficient proof of payment of daycare and child care expenses for the children; and
(iii) The amount of NCP's accrued debt for daycare and child care expenses.
(4) If the ALJ determines that the NCP's obligation under a previous notice of support owed is ((more))less than his or her actual obligation under the order after actual expenses or income are considered, the ALJ may not set a payment schedule on the support debt.
(5) If the ALJ determines that the NCP's obligation under a previous notice of support owed is ((less))more than his or her actual obligation under the order after actual expenses or income are considered, and the parties cannot agree on how the overpayment may be credited or repaid, the ALJ must enter an order providing that any difference may be:
(a) Applied as an offset to any nonassistance child support arrears owed by the NCP to the CP.
(b) In the form of a credit against the NCP's future child support obligation:
(i) Spread equally over a twelve-month period starting the month after the administrative order becomes final; or
(ii) When the future support obligation will end under the terms of the order in less than twelve months, spread equally over the life of the order.
(c) Paid in the form of a direct reimbursement by the CP to the NCP, but only with the consent of the CP, unless support has been assigned to the state.