WSR 98-17-033
PERMANENT RULES
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES
(Economic Services Administration)
(Division of Child Support)
[Filed August 11, 1998, 3:29 p.m.]
Date of Adoption: August 11, 1998.
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.
Citation of Existing Rules Affected by this Order: New sections WAC 388-14-386, 388-14-387, and 388-14-388; and amending WAC 388-14-385.
Statutory Authority for Adoption: RCW 74.20A.310, 26.23.035, 74.08.090.
Adopted under notice filed as WSR 98-05-078 on February 18, 1998.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 3, amended 1, repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 3, amended 1, repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.
Effective Date of Rule: Thirty-one days after filing.
August 11, 1998
Marie Myerchin-Redifer, Manager
Rules and Policies Assistance Unit
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.
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