WSR 22-20-044
PERMANENT RULES
EMPLOYMENT SECURITY DEPARTMENT
[Filed September 28, 2022, 11:22 a.m., effective October 29, 2022]
Effective Date of Rule: Thirty-one days after filing.
Purpose: The employment security department (department) is adopting new and amended rules to implement SHB 1732 (chapter 1, Laws of 2022), ESHB 1733 (chapter 2, Laws of 2022), and the third phase of the department's initial program implementation. The rules provide guidance to employees and employers regarding voluntary exemptions from the long-term services and supports trust program, referred to as the WA Cares fund program. The rules outline application and qualification requirements for voluntary exemptions and include four new types of exemptions added by ESHB 1733. The rules also implement provisions of ESHB 1733, which require three of the new voluntary exemptions to be discontinued by the individual within a specific time period when conditions qualifying them for the exemption are no longer met. The rules outline notification requirements and penalties for failing to provide required notifications to discontinue an exemption. The rules also delay the date self-employed individuals may elect coverage, make a reference correction to how the department will determine wages earned and hours worked for self-employed individuals, and address employer audit procedures that align with employer audit procedures for the paid family and medical leave program.
Citation of Rules Affected by this Order: New WAC 192-905-006 Eligibility requirements for an employee to receive a conditional exemption from the long-term services and supports trust program, 192-905-007 Notification requirements and penalties for discontinuing conditional exemptions, 192-930-005 Audit procedures, and 192-930-010 What happens if an employer fails to provide requested information to the department for an audit?; and amending WAC 192-905-005 Eligibility requirements for an employee to receive a permanent exemption from the long-term services and supports trust program, 192-905-010 How and when can an employee apply for an exemption from the long-term services and supports trust program?, 192-910-015 What are the employer's responsibilities for premium deductions?, 192-915-005 Election of coverage for self-employed persons, and 192-915-015 How will the department determine the wages earned and hours worked for self-employed persons electing coverage?
Other Authority: SHB 1732, chapter 1, Laws of 2022, and ESHB [1733], chapter 2, Laws of 2022.
Adopted under notice filed as WSR 22-16-111 on August 3, 2022.
A final cost-benefit analysis is available by contacting Janette Benham, Employment Security Department, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-790-6583, TTY relay 711 (contact Teresa Eckstein at 360-507-9890 for accommodations), email rules@esd.wa.gov, website https://paidleave.wa.gov/rulemaking/.
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 4, Amended 5, 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 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 4, Amended 5, Repealed 0.
Date Adopted: September 28, 2022.
April Amundson
Policy and Rules Manager
Leave and Care Division
OTS-3995.1
AMENDATORY SECTION(Amending WSR 21-11-013, filed 5/7/21, effective 6/7/21)
WAC 192-905-005Eligibility requirements for an employee to receive ((an))a permanent exemption from the long-term services and supports trust program.
(1) An employee who has long-term care insurance as outlined in RCW
50B.04.085 and attests to this, may apply
through December 31, 2022, for ((
an))
a permanent exemption from the premium assessment under RCW
50B.04.080. "Long-term care insurance" has the meaning provided in RCW
48.83.020.
(((2)))(a) Only an employee who is eighteen years of age or older on the date of application may apply for an exemption.
(((3)))(b) The employee must provide identification that verifies their age at the time of application.
(((4)))(c) The department may verify an employee's long-term care insurance coverage and may request additional information from the employee.
(2) Beginning January 1, 2023, an employee who is a veteran of the United States military and has a service-connected disability rating by the United States department of veterans affairs of 70 percent or greater may apply for a permanent exemption from the premium assessment under RCW 50B.04.080. (a) The employee must provide information sufficient for the department to verify their identity.
(b) The employee must provide documentation of their service-connected disability rating at the time of application.
(c) The department may verify an employee's service-connected disability rating and may request additional information from the employee.
NEW SECTION
WAC 192-905-006Eligibility requirements for an employee to receive a conditional exemption from the long-term services and supports trust program.
(1) An employee may apply for a conditional exemption from the premium assessment under RCW
50B.04.080 if:
(a) The employee is a spouse or registered domestic partner of an active duty service member in the United States armed forces whether or not deployed or stationed within or outside of Washington;
(b) The employee holds a nonimmigrant visa for temporary workers, as recognized by federal law; or
(c) The employee maintains a permanent primary residence outside of Washington.
(2) The employee must provide information sufficient for the department to verify their identity.
(3) The employee must provide documentation sufficient to verify or substantiate the exemption under RCW
50B.04.055 at the time of application.
(4) The department may request additional information from the employee at any time.
(5) The employee must notify their employer(s) and the department within 90 days of no longer meeting exemption criteria. Requirements for notification and penalties for failing to provide notification to discontinue the exemption are outlined in WAC 192-905-007.
NEW SECTION
WAC 192-905-007Notification requirements and penalties for discontinuing conditional exemptions.
(1) The employee must notify their employer(s) and the department within 90 days of no longer qualifying for an exemption outlined in WAC 192-905-006.
(2) A discontinued exemption will take effect the quarter immediately following notification and premiums will be assessed.
(3) Employees who fail to provide notifications as described in this section and have premiums assessed will owe any unpaid premiums to the department. Unpaid premiums will be assessed interest of one percent, compounded monthly, until payment is made in full.
AMENDATORY SECTION(Amending WSR 21-11-013, filed 5/7/21, effective 6/7/21)
WAC 192-905-010How and when can an employee apply for an exemption from the long-term services and supports trust program?
(1) Applications for exemption from the long-term services and supports trust program
for individuals who have long-term care insurance purchased before November 1, 2021, will be accepted by the department only from October 1, 2021, through December 31, 2022, per RCW
50B.04.085.
(2) Applications for exemption from the long-term services and supports trust program for veterans who are 70 percent disabled and individuals who apply under WAC 192-905-006 will be accepted beginning January 1, 2023, and will be ongoing.
(3) If approved by the department, an employee's exemption will be effective the quarter immediately following approval.
(((3)))(4) Applications for exemption will be available ((on the department's website))online or in another format approved by the department.
OTS-3996.1
AMENDATORY SECTION(Amending WSR 21-17-140, filed 8/18/21, effective 9/18/21)
WAC 192-910-015What are the employer's responsibilities for premium deductions?
(1) Employers must deduct premiums for each pay period in which the employee receives wages.
(2) When an employer is found by the department to be noncompliant with collecting premiums from an employee, the employer must file an amended report and pay the past due premiums.
(3) Subsection (1) of this section does not apply if:
(a) An employer was unable to deduct the premium for a pay period due to a lack of sufficient employee wages for that pay period; or
(b) The employee has an approved exemption ((
under RCW 50B.04.085)) and has provided the required proof of the exemption to the employer.
(4) Once an employer is notified that an employee no longer qualifies for an exemption, the employer must abide by all premium assessment requirements under chapter 50B.04 RCW for that employee. OTS-3997.1
AMENDATORY SECTION(Amending WSR 21-17-140, filed 8/18/21, effective 9/18/21)
WAC 192-915-005Election of coverage for self-employed persons.
(1) Self-employed persons as defined in RCW
50B.04.090 may elect coverage under Title
50B RCW.
(2) Coverage may only be elected beginning ((January 1, 2022))July 1, 2023, and before ((January 1, 2025))July 1, 2026, or within three years of becoming self-employed for the first time.
(3) Notice of election of coverage must be submitted to the department online or in another format approved by the department.
(4) Elective coverage begins on the first day of the quarter immediately following the notice of election.
(5) A self-employed person who elects coverage must continue to pay premiums until such time that the individual retires from the workforce or is no longer self-employed.
(6) The self-employed person must file a notice with the department if the individual retires from the workforce or is no longer self-employed.
AMENDATORY SECTION(Amending WSR 21-17-140, filed 8/18/21, effective 9/18/21)
WAC 192-915-015How will the department determine the wages earned and hours worked for self-employed persons electing coverage?
The department will determine the wages earned and hours worked for self-employed individuals as described in WAC 192-510-030 (1), (2), and (4).
OTS-3998.1
Chapter 192-930 WAC
AUDITS
NEW SECTION
WAC 192-930-005Audit procedures.
(1) The department may inspect and audit employer files and records as needed to ensure compliance with Title
50B RCW. Audits may take place at the discretion of the department.
(2) Employers must provide all requested information to the department within 10 business days or a time frame agreed to by the department.
(3) If the department discovers violations for the time frame being audited, the department may expand the audit to include prior and subsequent quarters, up to the most recently completed calendar quarter.
NEW SECTION
WAC 192-930-010What happens if an employer fails to provide requested information to the department for an audit?
Employers must provide all requested documentation as it pertains to the long-term services and supports trust program under Title
50B RCW. If an employer fails or refuses to provide necessary payroll or other wage information during an audit, the department may determine payroll and wage information for the purposes of premium assessment based on information otherwise available to the department. This may include information from the same employer, similar employers, labor market information, information provided to other state or local agencies, or the best information otherwise available to the department.