WSR 98-05-078

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Economic Services Administration)

[Filed February 18, 1998, 10:02 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-20-120.

Title of Rule: WAC 388-14-385 The division of child support's grievance and dispute resolution method is called a conference board; 388-14-386 How to apply for a conference board; 388-14-387 Explanation of the conference board process; and 388-14-388 Scope of authority of conference board chair defined.

Purpose: In accordance with the governor's and secretary's executive orders on regulatory improvement, the Division of Child Support has reviewed and revised the regulation dealing with conference boards.

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

Statute Being Implemented: RCW 74.20A.220, 26.23.060, 26.23.050.

Summary: Revises WAC 388-14-385 for clarity and readability, under the principles of regulatory improvement, by dividing the information up into four easy-to-use sections.

Reasons Supporting Proposal: Governor's and secretary's executive orders on regulatory improvement.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Nancy Koptur, Division of Child Support Headquarters, P.O. Box 9162, Mailstop 45860, Olympia, WA 98507-9162, (360) 586-3077.

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

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

Explanation of Rule, its Purpose, and Anticipated Effects: WAC 388-14-385 has been reviewed and redrafted under the principles of regulatory reform to make it clearer and more readable. What was one confusing and hard-to-use section has been broken up into four easy-to-use sections.

Proposal Changes the Following Existing Rules: Amends WAC 388-14-385.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This change does not meet the requirements for a small business economic impact statement.

RCW 34.05.328 does not apply to this rule adoption. This is not a significant legislative rule under RCW 34.05.328. RCW 34.05.328 (5)(b)(iv) exempts rules that clarify language of a rule without changing its effect.

Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on March 24, 1998, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Paige Wall by March 13, 1998, phone (360) 902-7540, TTY (360) 902-8324, e-mail pwall@dshs.wa.gov.

Submit Written Comments to and Identify WAC Numbers: Paige Wall, Acting Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, FAX (360) 902-8292, by March 24, 1998.

Date of Intended Adoption: No sooner than March 25, 1998.

February 17, 1998

Edith M. Rice, Chief

Office of Legal Affairs

AMENDATORY SECTION (Amending WSR 97-13-092, filed 6/18/97, effective 7/19/97)

WAC 388-14-385 The division of child support's grievance and dispute resolution method is called a conference board. (1) The division of child support (DCS) provides conference boards for the resolution of complaints and problems regarding DCS cases, and for granting exceptional or extraordinary relief. A conference board ((may inquire into, determine facts of, and attempt to resolve matters in which a responsible parent, physical custodian, payee under a court order, or other person feels aggrieved by an action taken by the office under:

(a) Chapters 26.23, 74.20, 74.20A RCW; or

(b) Title IV-D of the Social Security Act (Title 42 U.S.C.).

(2) The intent and purpose of the conference board is to facilitate the informal speedy resolution of grievances.

(3) The director, or director's designee may assemble a conference board on application of an aggrieved person or on the director's own motion. The conference board shall dissolve upon issuance of a decision on the matter for which it was appointed.

(4) An applicant for a conference board shall have made a reasonable attempt and have failed to resolve the grievance before a conference board may act to attempt to resolve the issue.

(5) The conference board's jurisdiction shall include, but shall not be limited to, the following areas:

(a) A complaint as to the conduct of an individual staff member while acting within the scope of the staff member's duties. The board shall send a copy of the decision to the staff member's first line supervisor for action as appropriate;

(b) Review of a denial of an application for or termination of nonassistance support enforcement services;

(c) Review of an allegation of error as to the distribution of support moneys;

(d) Review of a denial to collect support arrears in nonassistance cases under RCW 74.20.040;

(e) Resolution of the amount of arrears claimed due and rate of repayment;

(f) A request to release or refund money taken under RCW 26.23.060 or 74.20A.080 to provide for the reasonable necessities of a responsible parent and minor children in the responsible parent's home;

(g) A request for deferral of support enforcement action;

(h) A request for partial or total charge-off of support arrears under RCW 74.20A.220;

(i) A request to waive interest;

(j) A request to waive or defer the nonassistance support enforcement fee under RCW 74.20.040;

(k) Review of a determination that a support obligation has been satisfied or is no longer legally enforceable;

(l) A specific request for administrative review of cases submitted to the IRS for offset of a tax refund in accordance with federal statutes and regulations;

(m) Any other matter requiring explanation of or application of policy or law to an issue in a specific case or clarification of facts in said case;

(n) The IV-D agency's action in reporting a support debt to a consumer reporting agency;

(o) Review of a total versus total calculation under WAC 388-14-276; and

(p) A request to release a payroll deduction notice on a claim that:

(i) The support obligation was not due at the time the payroll deduction notice was issued and the support order did not authorize immediate wage withholding; or

(ii) The payroll deduction causes extreme hardship or substantial injustice.

(6) When a person states a grievance or requests a conference board, the IV-D agency shall provide a copy of the conference board information form.

(7) The effective date of a conference board request is the date the IV-D agency receives the request.

(8) When a person requests a conference board, the director or the director's designee may take such action, as deemed appropriate, and may exercise any of the authority provided for in this regulation, when the:

(i) Grievance does not involve a factual dispute; or

(ii) Disputed fact or facts even if resolved in favor of the person would not provide a basis upon which relief could be granted to the person by a conference board.

(9) When a person requests a conference board and the grievance involves an apparent factual dispute:

(a) The director or director's designee shall assemble a conference board composed of the director or director's designee, who shall serve as chair and two staff members, if deemed necessary;

(b) The chair shall mail a notice of conference board to the applicant, the applicant's representative, and any other person or agency who is a party in interest to the proceeding. The notice of conference board shall state that a conference board has been scheduled and inform the parties of the time and place of the conference board;

(c) Where the department is not providing public assistance to the payee under a court order, and the responsible parent timely requests a conference board to contest the debt stated in a notice of support debt, the conference board shall be scheduled for a date at least thirty days after the notice of conference board is issued, and the notice shall include statements that:

(i) The payee has twenty days (or sixty days under the circumstances described in WAC 388-14-440(4)) from the date the notice of conference board was given to request that the grievance be addressed in a hearing under WAC 388-14-435;

(ii) If the payee does not timely request a hearing, the department will deem that the payee has elected to have the grievance heard in a conference board and the:

(A) Conference board decision will become the final agency position on the debt claimed under the notice of support debt; and

(B) A payee's late application for a hearing shall be denied unless the payee shows good cause for the late application;

(iii) If the payee does not appear at either a conference board or a hearing, the presiding officer's or the board's decision may be adverse to the payee's interest including, but not limited to, a reduction in the support debt stated in the notice of support debt.

(d) If the payee requests a hearing under WAC 388-14-435, the office shall inform the:

(i) Responsible parent that the parent's request for conference board is declined, and the responsible parent must appear at the hearing requested by the payee to raise objections to the notice of support debt; and

(ii) Payee that the conference board previously scheduled has been declined due to the payee's application for a hearing.

(10) The conference board chair may issue subpoenas under RCW 74.04.290 and administer oaths, take testimony, and compel the production of such papers, books, records, and documents deemed relevant to the resolution of the grievance under consideration. The conference board chair may take additional evidence by affidavit or other written submission when necessary or practicable together with written or oral argument. The chair may designate persons having specific familiarity with the matter at issue or technical expertise with the subject to advise the board.

(11) The conference board chair shall make a written decision stating the facts found, policies applied, and the board's decision.

(a) The board's decision, including a decision to deny a request for a conference board, shall be in accordance with applicable statutes, case law, department rules and regulations, published office manuals, support enforcement policy bulletins, and the exercise of reasonable administrative discretion.

(b) The board shall base a decision under RCW 74.20A.220 to grant partial or total charge-off of arrears owed to the department under RCW 74.20A.030, 74.20A.250, 74.20.320, 74.20.330, or 42 U.S.C. 602 (a)(26)(A) on the following considerations:

(i) Error in law or bona fide legal defects that materially diminish chances of collection; or

(ii) Substantial hardship to minor children in the household of the responsible parent or other minor children for whom the responsible parent actually provides support; or

(iii) Costs of collection action in the future that are greater than the amount to be charged off;

(iv) Settlement from lump-sum cash payment that is beneficial to the state considering future costs of collection and likelihood of collection; or

(v) Excessive debt arising from a default administrative order to the extent that an assignment of child support rights covers the arrears period, upon a finding of substantial hardship under subsection (12) or (13) of this section.

(c) If the decision is the result of a conference board, that decision shall represent the decision of a majority of the board. The director shall vacate decisions inconsistent with the standards in this section and remand the application for issuance of a new decision in compliance with the standards.

(12) In making a determination of substantial hardship under subsection (11) of this section, the board shall measure the net income and all available assets and resources of the responsible parent against the need standard for public assistance for the appropriate family size, as stated in WAC 388-250-1250. The board shall consider the necessity to apportion the responsible parent's income and resources on an equitable basis with the child for whom the arrears accrued. When reviewing a claim of substantial hardship, the board may consider the following information including, but not limited to:

(a) The child on whose behalf support is owed is reunited with the responsible parent because the:

(i) Formerly separated parents have reconciled; or

(ii) Child has returned to the responsible parent from foster care, the care of a relative, or the care of a nonrelative custodian.

(b) The responsible parent is aged, blind, or disabled and receiving Supplemental Security Income, Social Security, or other similar benefits;

(c) The mother of the child is seeking charge off of debt accrued on behalf of a child who was conceived as a result of incest or rape, and presents evidence of rape or incest, acceptable under 45 CFR 232.43(c);

(d) Payment on the arrears obligation interferes with the responsible parent's payment of current support to a child living outside the home;

(e) The responsible parent has limited earning potential due to:

(i) Dependence on seasonal employment that is not considered in the child support order;

(ii) Illiteracy;

(iii) Limited English proficiency; or

(iv) Other similar factors limiting employability or earning capacity;

(f) The responsible parent's past efforts to pay support and the extent of the parent's participation in the child's parenting;

(g) The size of the responsible parent's debt and the prospects for increased income and resources; and

(h) The debt arises from a default administrative order and an assignment of child support rights covers the arrears period.

(13) The board may find that substantial hardship exists for a responsible parent, without finding hardship to a dependent child.

(a) In making a determination of substantial hardship to an individual without a dependent child, the board shall measure the applicant's income, assets, and resources against the need standard. In combination with the income test, the board may consider the following factors when reviewing a claim of substantial hardship:

(i) The responsible parent is aged, blind, or disabled and receiving Supplemental Security Income, Social Security, or other similar benefits;

(ii) The mother of a child is seeking relief from debt accrued on behalf of a child who was conceived as a result of incest or rape, and presents evidence of rape or incest, acceptable under 45 CFR 232.43(c);

(iii) The responsible parent has limited earning potential due to:

(A) Dependence on seasonal employment that is not considered in the child support order;

(B) Illiteracy;

(C) Limited English proficiency; or

(D) Other similar factors limiting employability or earning capacity.

(iv) The debt arises from a default administrative order and an assignment of child support rights covers the arrears period.

(b) The board may agree to a reduced payment on the support debt, or a conditional reduced payment on the support debt, when there is substantial hardship to the responsible parent but not a hardship to a dependent child. The other remedies for substantial hardship under this section are not available when there is no showing of hardship to a dependent child.

(14) The board may:

(a) Reduce collection on the responsible parent's support debt to an amount that alleviates the hardship without altering the amount of the support to address situations in which substantial hardship exists, but the circumstances creating the hardship are temporary. Temporary hardship situations may include the factors listed under subsection (12) or (13) of this section and the applicant's receipt of public assistance on:

(i) Applicant's behalf; or

(ii) Behalf of a child in the applicant's home.

(b) Create incentives to promote payment or family unity by agreeing to a conditional:

(i) Total or partial charge off, if charge off is available under subsection (11) of this section; or

(ii) Reduced payment on the support debt.

(c) Condition reduced payment, or total or partial charge off on:

(i) Continued payment according to a payment schedule imposed by the board; or

(ii) Continued reconciliation; or

(iii) A family remaining off of cash assistance.

(15) When creating incentives or providing conditional relief under subsection (14) of this section, the board shall:

(a) Not create a conditional charge off without specifying a period of performance after which the charge off is irrevocable;

(b) Not create a charge off conditioned on the parties remaining reconciled unless the parties have been reconciled for at least six months at the time of the conference board;

(c) Consider whether the conditions would create:

(i) Incentives for abuse or intimidation of the other party to the order;

(ii) Incentives for fraud; or

(iii) Unreasonable reluctance to obtain financial or medical assistance necessary for the health and best interests of the children.

(16) When the responsible parent violates the terms of the conditional charge off or reduced repayment rate imposed by a conference board decision under subsection (14) of this section:

(a) Any amount charged off by the board under the decision prior to the violation shall remain uncollectible;

(b) The IV-D agency may collect any further amount that would have been charged off under the decision after the date of violation with no further notice to the responsible parent; and

(c) The responsible parent may not reinstate terms of the decision by renewed compliance with the terms of the decision, unless the IV-D agency agrees in writing to reinstate the conditional charge off or repayment rate.

(17) The board shall distribute a copy of the decision to the applicant, the applicant's representative, other parties in interest, the appropriate field office for action consistent with the decision of the board, and the director.

(18) A conference board is not an adjudicative proceeding subject to review by the superior court and is not a substitute for any constitutionally or statutorily required hearing. An aggrieved party may be represented before the board by a person of the party's choice. The department shall not pay any costs incurred by the aggrieved person in connection with the conference board)) is an informal review of case actions and of the circumstances of the parties and children related to a child support case.

(a) The term conference board can mean either of the following, depending on the context:

(i) The process itself, including the review and any meeting convened; or

(ii) The DCS staff who make up the panel which convenes the hearing and makes factual and legal determinations.

(b) A conference board chair is an attorney employed by DCS in the conference board unit. In accordance with new section WAC 388-14-387, the conference board chair reviews a case and:

(i) Issues a decision without a hearing, or

(ii) Sets a hearing to take statements from interested parties before reaching a decision.

(2) A person who disagrees with any DCS action related to establishing, enforcing or modifying a support order may ask for a conference board.

(3) DCS uses the conference board process to:

(a) Help resolve complaints and problems over agency actions;

(b) Determine when hardship in the paying parent's household, as defined in RCW 74.20A.160, justifies the release of collection action or the refund of a support payment;

(c) Set a repayment rate on a support debt; and

(d) Determine when it is appropriate to write off support debts owed to the department based on:

(i) Hardship to the paying parent or that parent's household;

(ii) Settlement by compromise of disputed claims;

(iii) Probable costs of collection in excess of the support debt; or

(iv) An error or legal defect that reduces the possibility of collection.

(4) A conference board is not a formal hearing under the administrative procedure act, chapter 34.05 RCW.

(5) A conference board does not replace any formal hearing right created by chapters 388-11, 388-13 and 388-14 WAC, or by chapters 26.23, 74.20 or 74.20A RCW.

(6) This section and WAC 388-14-386 through 388-14-388 govern the conference board process in DCS cases.

[Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.310 and 26.23.035. 97-13-092, 388-14-385, filed 6/18/97, effective 7/19/97. Statutory Authority: RCW 74.08.090. 94-15-045 (Order 3753), 388-14-385, filed 7/15/94, effective 8/15/94; 93-05-020 (Order 3512), 388-14-385, filed 2/10/93, effective 3/13/93; 91-09-018 (Order 3133), 388-14-385, filed 4/9/91, effective 5/10/91. Statutory Authority: RCW 34.05.220 (1)(a) and 74.08.090. 90-04-077 (Order 3005), 388-14-385, filed 2/5/90, effective 3/1/90. Statutory Authority: 1988 c 275. 89-01-049 (Order 2738), 388-14-385, filed 12/14/88. Statutory Authority: RCW 74.08.090. 88-07-012 (Order 2606), 388-14-385, filed 3/4/88; 86-05-009 (Order 2340), 388-14-385, filed 2/12/86; 81-05-021 (Order 1605), 388-14-385, filed 2/11/81; 80-01-026 (Order 1465), 388-14-385, filed 12/14/79; 78-07-015 (Order 1305), 388-14-385, filed 6/15/78.]

NEW SECTION

WAC 388-14-386 How to apply for a conference board. (1) A person may request a conference board, orally or in writing, at any division of child support (DCS) office.

(2) Oral requests for conference boards are governed by WAC 388-14-500.

(3) DCS may start conference board proceedings in appropriate circumstances.

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NEW SECTION

WAC 388-14-387 Explanation of the conference board process. (1) An applicant for a conference board must make reasonable efforts to resolve the dispute with division of child support (DCS) staff before the conference board can act in the case.

(2) A conference board chair reviews each application to determine appropriate action:

(a) If there are questions of both law and fact or if the dispute involves only facts, the chair may schedule a conference board hearing to gather evidence;

(b) If the factual dispute would not provide a basis on which the conference board could grant relief, even if all facts were resolved in favor of the applicant, the chair may issue a decision without a hearing; or

(c) If the dispute can be resolved as a matter of law without relying upon disputed facts, the conference board chair may issue a decision without scheduling a hearing.

(3) If the conference board chair schedules a hearing, the conference board is made up of the conference board chair and staff from the DCS field office which handles the child support case, if needed.

(a) At the hearing, the conference board makes determinations of relevant disputed facts. Decisions on factual issues are made by a majority of the conference board.

(b) Decisions on issues of law are made by the conference board chair alone.

(c) The DCS worker regularly assigned to a case shall not be part of a conference board dealing with that case.

(4) The conference board chair will prepare a decision, if necessary, and provide that decision to the parties to the conference board, and to the DCS staff responsible for the case.

(5) The director of DCS, or a person designated by the director, may review conference board decisions, and may alter, amend, vacate or remand decisions that are inconsistent with Washington law or DCS policy, or are grossly unfair.

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NEW SECTION

WAC 388-14-388 Scope of authority of conference board chair defined. The conference board chair has the authority to:

(1) Subpoena witnesses and documents, administer oaths and take testimony;

(2) Grant relief by setting payment plans, writing off debt owed to the department, or refunding collected money;

(3) Adjust support debts based on evidence gathered during the conference board process;

(4) Direct distribution of collected support; and

(5) Take any action consistent with Washington law and DCS policy to resolve disputes, grant relief or address issues of equity.