WSR 04-13-139

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed June 22, 2004, 3:13 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-07-062.

Title of Rule and Other Identifying Information: The DSHS Division of Child Support (DCS) is amending WAC 388-14A-1020 (definitions section), 388-14A-4100, and other related sections and adopts new rules as well. Amending WAC 388-14A-1020 What definitions apply to the rules regarding child support enforcement?, 388-14A-4040 DCS can serve some collection actions by electronic service, 388-14A-4100 How does ((Can)) the division of child support ((make me)) enforce my obligation to provide health insurance for my children?, 388-14A-4110 If my support order requires me to provide health insurance for my children, what do I have to do?, 388-14A-4120 DCS ((serves a)) uses the national medical support notice ((of enrollment)) to enforce an obligation to provide health insurance coverage, and 388-14A-4130 What must ((an employer or union who receives a notice of enrollment do)) a plan administrator do after receiving a national medical support notice from the division of child support?; and new sections WAC 388-14A-4121 Can a Washington employer assume that every national medical support notice that the employer receives is from the division of child support?, 388-14A-4122 What kind of information is included in the national medical support notice?, 388-14A-4123 What can happen if the employer fails to comply with the terms of the national medical support notice?, 388-14A-4124 Who are the parties involved with the national medical support notice?, 388-14A-4125 What must an employer do after receiving a national medical support notice?, 388-14A-4126 What kind of help is available for an employer or plan administrator who has questions about the national medical support notice?, 388-14A-4135 What must the plan administrator do when the noncustodial parent has health insurance but the children are not included in the coverage?, 388-14A-4140 What must the plan administrator do when the noncustodial parent is eligible for health insurance but is not yet enrolled?, 388-14A-4143 What must the plan administrator do when the employer provides health insurance but the noncustodial parent is not yet eligible for coverage?, 388-14A-4145 What must the plan administrator do when the insurance plan in which the noncustodial parent is enrolled does not provide coverage which is accessible to the children?, 388-14A-4150 What must the plan administrator do when the noncustodial parent has more than one family?, 388-14A-4160 Are there any limits on the amount a noncustodial parent may be required to pay for health insurance premiums?, 388-14A-4165 What happens when a noncustodial parent does not earn enough to pay child support plus the health insurance premium?, 388-14A-4170 How long does a national medical support notice or other notice of enrollment remain in effect?, and 388-14A-4175 Is an employer obligated to notify the division of child support when insurance coverage for the children ends?

These rules describe how the DCS enforces medical child support obligations using a federal form called the national medical support notice (NMSN).

DCS has adopted emergency rules under WSR 04-07-057, effective March 22, 2004, so that we could start using the NMSN as soon as possible. We expect to file a second emergency rule in July 2004, to remain in effect until the rule-making order is filed on the regular rule-making process.

Hearing Location(s): Blake Office Park East (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA, on August 10, 2004, at 10:00 a.m.

Date of Intended Adoption: Not earlier than August 11, 2004.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m., August 10, 2004.

Assistance for Persons with Disabilities: Contact Fred Swenson, DSHS Rules Consultant, by August 6, 2004, TTY (360) 664-6178 or (360) 664-6097.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The federal government has created a new national medical support notice and has required state child support enforcement agencies to use the notice when enforcing medical support obligations. See above for a list of existing rules amended in this proposal.

Reasons Supporting Proposal: Implementing a federal requirement.

Statutory Authority for Adoption: RCW 74.08.090 and 74.20A.310.

Statute Being Implemented: RCW 26.18.170, 42 U.S.C. 666(a)(19), Child Support Performance and Incentives Act of 1998, 45 C.F.R. 303.31 and 303.32.

Rule is necessary because of federal law, 42 U.S.C. 666(a)(19), Child Support Performance and Incentives Act of 1998, 45 C.F.R. 303.31 and 303.32.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The Division of Child Support (DCS) is adopting or incorporating w/o material change federal statutes or regulations.

Name of Proponent: Department of Social and Health Services, Economic Services Administration, Division of Child Support, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Nancy Koptur, DCS HQ, P.O. Box 9162, Olympia, WA 98507-9162, (360) 664-5065.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 19.85.061 and 19.85.025, this rule is exempt from the requirement to file a small business economic impact statement because we are adopting or incorporating w/o material change federal statutes or regulations.

A cost-benefit analysis is not required under RCW 34.05.328. The rule does meet the definition of a significant legislative rule but DSHS/DCS is exempt from preparing further analysis under RCW 34.05.328 (5)(b)(iii), rules that adopt or incorporate federal statutes or rules without material change.

June 21, 2004

Jim Schnellman

for Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3370.5
AMENDATORY SECTION(Amending WSR 01-03-089, filed 1/17/01, effective 2/17/01)

WAC 388-14A-1020   What definitions apply to the rules regarding child support enforcement?   For purposes of this chapter, the following definitions apply:

"Absence of a court order" means that there is no court order setting a support obligation for the noncustodial parent (NCP), or specifically relieving the NCP of a support obligation, for a particular child.

"Absent parent" is a term used for a noncustodial parent.

"Accessible coverage" means health insurance coverage which provides primary care services to the children with reasonable effort by the custodian.

"Accrued debt" means past-due child support which has not been paid.

"Administrative order" means a determination, finding, decree or order for support issued under RCW 74.20A.055, 74.20A.056, or 74.20A.059 or by another state's agency under an administrative process, establishing the existence of a support obligation (including medical support) and ordering the payment of a set or determinable amount of money for current support and/or a support debt. Administrative orders include:

(1) An order entered under chapter 34.05 RCW;

(2) An agreed settlement or consent order entered under WAC 388-14A-3600; and

(3) A support establishment notice which has become final by operation of law.

"Agency" means the Title IV-D provider of a state. In Washington, this is DCS.

"Agreed settlement" is an administrative order that reflects the agreement of the noncustodial parent, the custodial parent and the division of child support. An agreed settlement does not require the approval of an administrative law judge.

"Aid" or "public assistance" means cash assistance under the temporary assistance for needy families (TANF) program, the aid for families with dependent children (AFDC) program, federally-funded or state-funded foster care, and includes day care benefits and medical benefits provided to families as an alternative or supplement to TANF.

"Alternate recipient" means a child of the employee or retiree named within a support order as being entitled to coverage under an employer's group health plan.

"Applicant/custodian" means a person who applies for nonassistance support enforcement services on behalf of a child or children residing in their household.

"Applicant/recipient," "applicant," and "recipient" means a person who receives public assistance on behalf of a child or children residing in their household.

"Arrears" means the debt amount owed for a period of time before the current month.

"Assistance" means cash assistance under the state program funded under Title IV-A of the federal Social Security Act.

"Birth costs" means medical expenses incurred by the custodial parent or the state for the birth of a child.

"Conference board" means a method used by the division of child support for resolving complaints regarding DCS cases and for granting exceptional or extraordinary relief from debt.

"Consent order" means a support order that reflects the agreement of the noncustodial parent, the custodial parent and the division of child support. A consent order requires the approval of an administrative law judge.

"Court order" means a judgment, decree or order of a Washington state superior court, another state's court of comparable jurisdiction, or a tribal court.

"Current support" or "current and future support" means the amount of child support which is owed for each month.

"Custodial parent" means the person, whether a parent or not, with whom a dependent child resides the majority of the time period for which the division of child support seeks to establish or enforce a support obligation.

"Date the state assumes responsibility for the support of a dependent child on whose behalf support is sought" means the date that the TANF or AFDC program grant is effective. For purposes of this chapter, the state remains responsible for the support of a dependent child until public assistance terminates, or support enforcement services end, whichever occurs later.

"Delinquency" means failure to pay current child support when due.

"Department" means the Washington state department of social and health services (DSHS).

"Dependent child" means a person:

(1) Seventeen years of age or younger who is not self-supporting, married, or a member of the United States armed forces;

(2) Eighteen years of age or older for whom a court order requires support payments past age eighteen;

(3) Eighteen years of age or older, but under nineteen years of age, for whom an administrative support order exists if the child is:

(a) A full-time student; and

(b) Reasonably expected to complete secondary school or the equivalent level of vocational or technical training before the end of the month in which the child turns nineteen.

"Disposable earnings" means the amount of earnings remaining after the deduction of amounts required by law to be withheld.

"Earnings" means compensation paid or payable for personal service. Earnings include:

(1) Wages or salary;

(2) Commissions and bonuses;

(3) Periodic payments under pension plans, retirement programs, and insurance policies of any type;

(4) Disability payments under Title 51 RCW;

(5) Unemployment compensation under RCW 50.40.020, 50.40.050 and Title 74 RCW;

(6) Gains from capital, labor, or a combination of the two; and

(7) The fair value of nonmonetary compensation received in exchange for personal services.

"Employee" means a person to whom an employer is paying, owes, or anticipates paying earnings in exchange for services performed for the employer.

"Employer" means any person or organization having an employment relationship with any person. This includes:

(1) Partnerships and associations;

(2) Trusts and estates;

(3) Joint stock companies and insurance companies;

(4) Domestic and foreign corporations;

(5) The receiver or trustee in bankruptcy; and

(6) The trustee or legal representative of a deceased person.

"Employment" means personal services of whatever nature, including service in interstate commerce, performed for earnings or under any contract for personal services. Such a contract may be written or oral, express or implied.

"Family" means the person or persons on whose behalf support is sought, which may include a custodial parent and one or more children, or a child or children in foster care placement. The family is sometimes called the assistance unit.

"Family member" means the caretaker relative, the child(ren), and any other person whose needs are considered in determining eligibility for assistance.

"Foreign order" means a court or administrative order entered by a tribunal other than one in the state of Washington.

"Foster care case" means a case referred to the Title IV-D agency by the Title IV-E agency, which is the state division of child and family services (DCFS).

"Fraud," for the purposes of vacating an agreed settlement or consent order, means:

(1) The representation of the existence or the nonexistence of a fact;

(2) The representation's materiality;

(3) The representation's falsity;

(4) The speaker's knowledge that the representation is false;

(5) The speaker's intent that the representation should be acted on by the person to whom it is made;

(6) Ignorance of the falsity on the part of the person to whom it is made;

(7) The latter's:

(a) Reliance on the truth of the representation;

(b) Right to rely on it; and

(c) Subsequent damage.

"Full support enforcement services" means the entire range of services available in a Title IV-D case.

"Good cause" for the purposes of late hearing requests and petitions to vacate orders on default means a substantial reason or legal justification for delay, including but not limited to the grounds listed in civil rule 60. The time periods used in civil rule 60 apply to good cause determinations in this chapter.

"Head of household" means the parent or parents with whom the dependent child or children were residing at the time of placement in foster care.

"Health care costs":

(1) For the purpose of establishing support obligations under RCW 74.20A.055 and 74.20A.056, means medical, dental and optometrical expenses; and((,))

(2) For the purpose of enforcement action under chapters 26.23, 74.20 and 74.20A RCW, including the notice of support debt and the notice of support owed, means medical, dental and optometrical costs stated as a fixed dollar amount by a support order.

"Health insurance" means insurance coverage for all medical services related to an individual's general health and well being. These services include, but are not limited to: Medical/surgical (inpatient, outpatient, physician) care, medical equipment (crutches, wheel chairs, prosthesis, etc.), pharmacy products, optometric care, dental care, orthodontic care, preventive care, mental health care, and physical therapy.

"Hearing" means an adjudicative proceeding authorized by this chapter, or chapters 26.23, 74.20 and 74.20A RCW, conducted under chapter 388-02 WAC and chapter 34.05 RCW.

"I/Me" means the person asking the question which appears as the title of a rule.

"Income" includes:

(1) All gains in real or personal property;

(2) Net proceeds from the sale or exchange of real or personal property;

(3) Earnings;

(4) Interest and dividends;

(5) Proceeds of insurance policies;

(6) Other periodic entitlement to money from any source; and

(7) Any other property subject to withholding for support under the laws of this state.

"Income withholding action" includes all withholding actions which DCS is authorized to take, and includes but is not limited to the following actions:

(1) Asserting liens under RCW 74.20A.060;

(2) Serving and enforcing liens under chapter 74.20A RCW;

(3) Issuing orders to withhold and deliver under chapter 74.20A RCW;

(4) Issuing notices of payroll deduction under chapter 26.23 RCW; and

(5) Obtaining wage assignment orders under RCW 26.18.080.

"Locate" can mean efforts to obtain service of a support establishment notice in the manner prescribed by WAC 388-14A-3105.

"Medical support" means either or both:

(1) Health care costs stated as a fixed dollar amount in a support order; and

(2) Health insurance coverage for a dependent child.

"National Medical Support Notice" or "NMSN" is a federally-mandated form that DCS uses to enforce a health insurance support obligation; the NMSN is a notice of enrollment as described in RCW 26.18.170.

"Noncustodial parent" means the natural parent, adoptive parent, responsible stepparent or person who signed and filed an affidavit acknowledging paternity, from whom the state seeks support for a dependent child. Also called the NCP. A parent is considered to be an NCP when for the majority of the time during the period for which support is sought, the dependent child resided somewhere other than with that parent.

"Other ordinary expense" means an expense incurred by a parent which:

(1) Directly benefits the dependent child; and

(2) Relates to the parent's residential time or visitation with the child.

"Participant" means an employee or retiree who is eligible for coverage under an employer group health plan.

"Past support" means support arrears.

"Paternity testing" means blood testing or genetic tests of blood, tissue or bodily fluids. This is also called genetic testing.

"Payment services only" or "PSO" means a case on which the division of child support's activities are limited to recording and distributing child support payments, and maintaining case records. A PSO case is not a IV-D case.

"Permanently assigned arrearages" means those arrears which the state may collect and retain up to the amount of unreimbursed assistance.

"Physical custodian" means custodial parent (CP).

"Plan administrator" means the person or entity performs those duties specified under 29 USC 1002 (16)(A) for a health plan. If no plan administrator is specifically so designated by the plan's organizational documents, the plan's sponsor is the administrator of the plan. Sometimes an employer acts as its own plan administrator.

"Putative father" includes all men who may possibly be the father of the child or children on whose behalf the application for assistance or support enforcement services is made.

"Reasonable efforts to locate" means any of the following actions performed by the division of child support:

(1) Mailing a support establishment notice to the noncustodial parent in the manner described in WAC 388-14A-3105;

(2) Referral to a sheriff or other server of process, or to a locate service or department employee for locate activities;

(3) Tracing activity such as:

(a) Checking local telephone directories and attempts by telephone or mail to contact the custodial parent, relatives of the noncustodial parent, past or present employers, or the post office;

(b) Contacting state agencies, unions, financial institutions or fraternal organizations;

(c) Searching periodically for identification information recorded by other state agencies, federal agencies, credit bureaus, or other record-keeping agencies or entities; or

(d) Maintaining a case in the division of child support's automated locate program, which is a continuous search process.

(4) Referral to the state or federal parent locator service;

(5) Referral to the attorney general, prosecuting attorney, the IV-D agency of another state, or the Department of the Treasury for specific legal or collection action;

(6) Attempting to confirm the existence of and to obtain a copy of a paternity acknowledgment; or

(7) Conducting other actions reasonably calculated to produce information regarding the NCP's whereabouts.

"Required support obligation for the current month" means the amount set by a superior court order, tribal court order, or administrative order for support which is due in the month in question.

"Resident" means a person physically present in the state of Washington who intends to make their home in this state. A temporary absence from the state does not destroy residency once it is established.

"Residential care" means foster care, either state or federally funded.

"Residential parent" means the custodial parent (CP), or the person with whom the child resides that majority of the time.

"Responsible parent" is a term sometimes used for a noncustodial parent.

"Responsible stepparent" means a stepparent who has established an in loco parentis relationship with the dependent child.

"Retained support" means a debt owed to the division of child support by anyone other than a noncustodial parent.

"Satisfaction of judgment" means payment in full of a court-ordered support obligation, or a determination that such an obligation is no longer enforceable.

"Secretary" means the secretary of the department of social and health services or the secretary's designee.

"State" means a state or political subdivision, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, a federally recognized Indian tribe or a foreign country.

"Superior court order" means a judgment, decree or order of a Washington state superior court, or of another state's court of comparable jurisdiction.

"Support debt" means support which was due under a support order but has not been paid. This includes:

(1) Delinquent support;

(2) A debt for the payment of expenses for the reasonable or necessary care, support and maintenance including health care costs, birth costs, child care costs, and special child rearing expenses of a dependent child or other person;

(3) A debt under RCW 74.20A.100 or 74.20A.270; or

(4) Accrued interest, fees, or penalties charged on a support debt, and attorney's fees and other litigation costs awarded in an action under Title IV-D to establish or enforce a support obligation.

"Support enforcement services" means all actions the Title IV-D agency is required to perform under Title IV-D of the Social Security Act and state law.

"Support establishment notice" means a notice and finding of financial responsibility under WAC 388-14A-3115, a notice and finding of parental responsibility under WAC 388-14A-3120, or a notice and finding of medical responsibility under WAC 388-14A-3125.

"Support money" means money paid to satisfy a support obligation, whether it is called child support, spousal support, alimony, maintenance, medical support, or birth costs.

"Support obligation" means the obligation to provide for the necessary care, support and maintenance of a dependent child or other person as required by law, including health insurance coverage, health care costs, birth costs, and child care or special child rearing expenses.

"Temporarily assigned arrearages" means those arrears which accrue prior to the family receiving assistance, for assistance applications dated on or after October 1, 1997.

"Title IV-A" means Title IV-A of the Social Security Act established under Title XX of the Social Security amendments and as incorporated in Title 42 USC.

"Title IV-A agency" means the part of the department of social and health services which carries out the state's responsibilities under the temporary assistance for needy families (TANF) program (and the aid for dependent children (AFDC) program when it existed).

"Title IV-D" means Title IV-D of the Social Security Act established under Title XX of the Social Security amendments and as incorporated in Title 42 USC.

"Title IV-D agency" or "IV-D agency" means the division of child support, which is the agency responsible for carrying out the Title IV-D plan in the state of Washington. Also refers to the Washington state support registry (WSSR).

"Title IV-D case" is a case in which the division of child support provides services which qualifies for funding under the Title IV-D plan.

"Title IV-D plan" means the plan established under the conditions of Title IV-D and approved by the secretary, Department of Health and Human Services.

"Title IV-E" means Title IV-E of the Social Security Act established under Title XX of the Social Security amendments and as incorporated in Title 42 U.S.C.

"Title IV-E case" means a foster care case.

"Tribunal" means a state court, tribal court, administrative agency, or quasi-judicial entity authorized to establish, enforce or modify support orders or to determine parentage.

"Unreimbursed assistance" means the cumulative amount of assistance which was paid to the family and which has not been reimbursed by assigned support collections.

"We" means the division of child support, part of the department of social and health services of the state of Washington.

"WSSR" is the Washington state support registry.

"You" means the reader of the rules, a member of the public, or a recipient of support enforcement services.

[Statutory Authority: RCW 74.08.090, 26.23.035, 34.05.220(1), 74.20A.055, 74.20A.056. 01-03-089, 388-14A-1020, filed 1/17/01, effective 2/17/01. Formerly WAC 388-11-011 and 388-14-020.]


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

WAC 388-14A-4040   DCS can serve some collection actions by electronic service.   (1) An employer, or any other person, firm, corporation or political subdivision, or any department of the state or federal government may agree with the division of child support (DCS) to accept electronic data transmission (EDT) as service of the following documents:

(a) Notice of payroll deduction under RCW 26.23.060;

(b) Order to withhold and deliver under RCW 74.20A.080;

(c) Assignment of earnings under RCW 74.20A.240;

(d) Notice of enrollment or National Medical Support Notice (NMSN) under RCW 26.18.170 (2)(a)(iv);

(e) Releases of any of these collection documents; and

(((e))) (f) Amendments in the amount to be withheld under any of these collection documents.

(2) Agreements for service by EDT must be in writing. The employer, person, firm, corporation, political subdivision or department must agree to accept EDT as:

(a) Personal service of the withholding documents; and

(b) A written document for the purposes of chapters 26.23 and 74.20A RCW.

(3) DCS provides the party accepting EDT with copies of the current forms listed in subsection (2) above, as well as any updates to those forms. If DCS fails to provide an updated form, this does not excuse noncompliance with withholding documents served under the EDT agreement.

(4) An agreement to accept service by EDT does not alter the rights, duties and responsibilities related to income withholding action under chapters 26.23, 74.20 or 74.20A.

[Statutory Authority: RCW 74.08.090. 01-03-089, 388-14A-4040, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-427.]


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

WAC 388-14A-4100   ((Can)) How does the division of child support ((make me)) enforce my obligation to provide health insurance for my children?   (1) If a child support order requires the noncustodial parent (NCP) to provide health insurance for the children, the division of child support (DCS) attempts to enforce that requirement according to the terms of the order. The following subsections describe the different types of premium limitations that could apply to a support order.

(2) ((Unless the support order specifies differently, an NCP is obligated to provide health insurance for dependent children if coverage is:

(a) Available or becomes available through the NCP's employment or union; and

(b) Available at a cost of not greater than twenty-five per cent of the NCP's basic support obligation)) When DCS is enforcing a support order which contains a specific dollar limit for the cost of health insurance premiums or provides for coverage which is available at no cost to the NCP, DCS does not require the NCP to provide health insurance if coverage is not available within the limitations of the order.

(3) When DCS is enforcing a support order entered on or after May 13, 1989, unless the support order specifies differently, the NCP must provide health insurance for dependent children if coverage is:

(a) Available or becomes available through the NCP's employment or union; and

(b) Available at a cost of not greater than twenty-five per cent of the NCP's basic support obligation.

(4) When DCS is enforcing a support order entered prior to May 13, 1989, unless the support order specifies differently, the NCP must provide health insurance for dependent children if coverage is available or becomes available through the NCP's employment or union:

(a) For a maximum of twenty-five dollars per month, if the order specifies that the NCP must provide coverage only if it is available at a reasonable cost; or

(b) For any premium amount whatsoever, if the order does not specify reasonable cost.

(5) DCS serves a notice of intent to enforce a health insurance obligation if the support order:

(a) Requires the NCP either to provide health insurance coverage or prove that coverage is not available; and

(b) Does not inform the NCP that failure to provide health insurance or prove it is not available may result in enforcement of the order without notice to the NCP.

(((4))) (6) DCS serves the notice of intent to enforce a health insurance obligation on the NCP by certified mail, return receipt requested, or by personal service.

(((5))) (7) The notice advises the NCP that the NCP must submit proof of coverage, proof that coverage is not available, or proof that the NCP has applied for coverage, within twenty days of the date((:

(a))) of service of the notice((; or

(b) When health insurance coverage becomes available through the NCP's employer or union)).

(8) The notice advises the NCP that, if health insurance is not yet available, the NCP must immediately notify DCS if health insurance coverage becomes available through the NCP's employer or union.

(9) When DCS enforces an NCP's health insurance obligation, such enforcement may include asking the employer and the plan administrator to enroll the NCP in a health insurance plan available through the employer.

[Statutory Authority: RCW 74.08.090, 26.18.170, 26.18.180, 74.20A.055. 01-03-089, 388-14A-4100, filed 1/17/01, effective 2/17/01. Formerly WAC 388-11-215 and 388-14-460.]


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

WAC 388-14A-4110   If my support order requires me to provide health insurance for my children, what do I have to do?   (1) Once ((an administrative)) a support order is entered requiring health insurance, the noncustodial parent (NCP) must take the following actions within twenty days:

(a) Provide health insurance coverage; and

(b) Provide proof of coverage to the division of child support (DCS), such as:

(i) The name of the insurer providing the health insurance coverage;

(ii) The names of the beneficiaries covered;

(iii) The policy number;

(iv) That coverage is current; and

(v) The name and address of the NCP's employer.

(2) If health insurance coverage ((is not immediately)) that is accessible to the children named in the order is available, the NCP must:

(a) Provide for coverage ((during the next)) for the children without waiting for an open enrollment period, as provided under RCW 48.01.235 (4)(a); and ((then))

(b) Submit proof of coverage as outlined in subsection (1)(b) above.

(3) If health insurance is not immediately available to the NCP, as soon as health insurance becomes available, the NCP must:

(a) Provide for coverage for the children named in the order; and

(b) Submit proof of coverage as outlined in subsection (1)(b) above.

(4) Medical assistance provided by the department under chapter 74.09 RCW does not substitute for ((medical)) health insurance.

(((4))) (5) A child's enrollment in Indian health services satisfies the requirements of this section.

(6) See WAC 388-14A-4165 for a description of what happens when the combined total of NCP's current support obligation, arrears payment and health insurance premiums to be withheld by the employer exceeds the fifty per cent limitation for withholding.

[Statutory Authority: RCW 74.08.090, 26.18.170, 26.18.180, 74.20A.055. 01-03-089, 388-14A-4110, filed 1/17/01, effective 2/17/01. Formerly WAC 388-11-215.]


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

WAC 388-14A-4120   DCS ((serves a)) uses the National Medical Support Notice ((of enrollment)) to enforce an obligation to provide health insurance coverage.   (1) The division of child support (DCS) ((serves)) uses a notice of enrollment called the National Medical support Notice (NMSN) to enforce a noncustodial parent's obligation to provide health insurance coverage under chapter 26.18 RCW.

(2) DCS ((serves the notice of enrollment on)) sends the NMSN to the ((NCP's)) noncustodial parent's employer ((or union)) in one of the following ways:

(a) In the same manner as a summons in a civil action, ((or))

(b) By certified mail, return receipt requested,

(c) By regular mail, or

(d) By electronic means as provided in WAC 388-14A-4040 (1)(d).

(3) DCS ((serves the notice of enrollment)) sends the NMSN without notice to the noncustodial parent (NCP) when:

(a) A court or administrative order requires the NCP to provide insurance coverage for a dependent child;

(b) The NCP fails to provide health insurance (either by not covering the child or by letting the coverage lapse) or fails to provide proof of coverage;

(c) The requirements of RCW 26.23.050 are met; and

(d) DCS has reason to believe that coverage is available through the NCP's employer or union.

(((4) The notice of enrollment advises the employer or union that:

(a) The NCP is required to provide health insurance coverage for the children named in the notice;

(b) The employer or union is required to enroll the children in a health insurance plan offered by the employer or union if insurance the children can use is or will become available as provided in subsection (d) below;

(c) The employer or union must answer the notice of enrollment by completing the answer form and returning it to DCS within thirty-five days;

(d) The answer must confirm that the employer or union:

(i) Has enrolled the children in a health insurance plan which provides accessible coverage;

(ii) Will enroll the children in a health insurance plan providing accessible coverage during the next open enrollment period; or

(iii) Cannot enroll the children in a plan which provides accessible coverage, stating the specific reasons why coverage cannot be provided.

(e) The employer or union must provide:

(i) Information about the health insurance plan and policy as requested in the notice; and

(ii) Any necessary claim forms or membership cards as soon as they are available.

(f) The employer or union must withhold premiums from the NCP's net earnings if the NCP is required to pay part or all of the premiums for coverage under the health insurance plan.

(g) Noncompliance with the notice of enrollment subjects the employer or union to a fine of up to one thousand dollars under RCW 74.20A.270.

(5) DCS may take action under RCW 74.20A.270 to impose fines if the employer or union fails to comply with the terms of the notice of enrollment. For each failure to comply, DCS may assess a fine of:

(a) Two hundred dollars for the first month in which the employer or union fails to comply;

(b) Three hundred dollars for the second month of noncompliance; and

(c) Five hundred dollars for the third month of noncompliance.

(d) The maximum fine based on a single notice of enrollment is one thousand dollars.))

[Statutory Authority: RCW 74.08.090, 26.18.170, 26.18.180, 74.20A.055. 01-03-089, 388-14A-4120, filed 1/17/01, effective 2/17/01. Formerly WAC 388-11-215 and 388-14-480.]


NEW SECTION
WAC 388-14A-4121   Can a Washington employer assume that every National Medical Support Notice that the employer receives is from the division of child support?   (1) The National Medical Support Notice (NMSN) is a federally-mandated form which is used by child support enforcement agencies all over the United States, not just the division of child support (DCS).

(2) Each NMSN form contains information advising the employer which child support enforcement agency sent the NMSN.

[]


NEW SECTION
WAC 388-14A-4122   What kind of information is included in the National Medical Support Notice?   The National Medical Support Notice (NMSN) and its cover letter advise the noncustodial parent's employer and the plan administrator that:

(1) The noncustodial parent (NCP) is required to provide health insurance coverage for the children named in the notice;

(2) Information regarding the custodial parent and children, especially address information, is confidential and may not be released to anyone, including the NCP;

(3) Within twenty business days of the date on the notice, the employer must either:

(a) Respond to the NMSN by completing the response form and returning it to DCS; or

(b) Forward Part B of the NMSN to the plan administrator.

(4) The employer or plan administrator is required to enroll the children in a health insurance plan offered by the employer or the union if insurance the children can use is or will become available as provided in WAC 388-14A-4130;

(5) The employer or plan administrator must provide:

(a) Information about the health insurance plan and policy as requested in the notice; and

(b) Any necessary claim forms or membership cards as soon as they are available.

(6) The employer or union must withhold premiums from the NCP's net earnings if the NCP is required to pay part or all of the premiums for coverage under the health insurance plan.

(7) Noncompliance with the NMSN subjects the employer or union to a fine of up to one thousand dollars under RCW 74.20A.350. See WAC 388-14A-4123 for a description of noncompliance penalties.

[]


NEW SECTION
WAC 388-14A-4123   What can happen if the employer fails to comply with the terms of the National Medical Support Notice?   (1) If an employer fails to comply with the terms of a National Medical Support Notice (NMSN) sent by the division of child support (DCS), the employer may be liable for a fine of up to one thousand dollars under RCW 74.20A.350.

(2) DCS may take action under RCW 74.20A.350 to impose fines if the employer fails to comply with the terms of the NMSN. For each failure to comply, DCS may assess a fine of:

(a) Two hundred dollars for the first month in which the employer or union fails to comply;

(b) Three hundred dollars for the second month of noncompliance; and

(c) Five hundred dollars for the third month of noncompliance.

(d) The maximum fine based on a single notice of enrollment is one thousand dollars.

[]


NEW SECTION
WAC 388-14A-4124   Who are the parties involved with the National Medical Support Notice?   (1) The National Medical Support Notice (NMSN) is a federally-mandated form used by child support enforcement agencies to enforce a noncustodial parent's medical support obligation. The division of child support (DCS) uses the NMSN as provided in WAC 388-14A-4120.

(2) DCS sends an NMSN when there is a support order requiring the noncustodial parent (NCP) to provide health insurance coverage for the children.

(3) DCS sends the NMSN to the NCP's employer.

(4) If the employer provides health insurance coverage, the employer forwards the NMSN to the appropriate plan administrator.

(5) The plan administrator is the entity which handles the ministerial functions for the group health plan maintained by the employer or a group health plan to which the employer contributes.

(6) In some cases, the employer performs the duties of the plan administrator.

(7) In some cases, the NCP's union either acts as or contracts with the plan administrator.

(8) The plan administrator sends coverage information to both DCS and the custodial parent (CP).

[]


NEW SECTION
WAC 388-14A-4125   What must an employer do after receiving a National Medical Support Notice?   (1) Within twenty business days after the date on the National Medical Support Notice (NMSN), the employer must either send Part B to the plan administrator or send the employer response to the division of child support (DCS).

(2) The employer need take no action beyond responding to the NMSN if:

(a) The employer does not maintain or contribute to plans providing dependent or family health care coverage;

(b) The employee is among a class of employees (for example, part-time or nonunion) that are not eligible for family health coverage under any group health plan maintained by the employer or to which the employer contributes; or

(c) The employee either is no longer, or never has been, employed by this employer.

(3) If subsection (2) of this section does not apply, the employer must respond to the NMSN and must:

(a) Forward Part B of the NMSN to the plan administrator of each group health plan identified by the employer to enroll the noncustodial parent's eligible children (see WAC 388-14A-4130 for what the plan administrator must do after receiving an NMSN); and

(b) When notified by the plan administrator that the children are enrolled:

(i) Withhold any employee contributions required for health insurance premiums and transfer those premiums to the appropriate plan; or

(ii) Notify DCS that enrollment cannot be completed because the noncustodial parent's net earnings are not high enough to allow withholding of child support and health insurance premiums; in this situation, the employer must notify DCS of the amount of the premium required to cover the children.

(c) When notified by the plan administrator that the noncustodial parent NCP is subject to a waiting period, notify the plan administrator when the NCP is eligible to enroll in the plan, and that the NMSN requires the enrollment of the children named in the NMSN.

[]


NEW SECTION
WAC 388-14A-4126   What kind of help is available for an employer or plan administrator who has questions about the National Medical Support Notice?   An employer or plan administrator who receives a National Medical Support Notice (NMSN) from the division of child support (DCS) may do one or more of the following to get help with the form:

(1) Visit the DCS internet web site at http://www.dshs.wa.gov/dcs/employers.shtml;

(2) Call the DCS Employer Hotline at 1-800-591-2760; or (3) Contact the DCS field office which issued the NMSN.

[]


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

WAC 388-14A-4130   What must ((an employer or union who receives a notice of enrollment do)) a plan administrator do after receiving a National Medical Support Notice from the division of child support?   (1) ((An employer or union who receives a notice of enrollment from the division of child support (DCS) must answer the notice within thirty-five days of receipt, as provided in WAC 388-14A-4120(4).

(2) The employer or union must enroll the children named in the notice in a health insurance plan which the employer or union offers to the noncustodial parent (NCP) and which provides coverage accessible to the children, unless the NCP's current support obligation:

(a) Equals or exceeds fifty percent of the NCP's net earnings; or

(b) Plus the amount of the insurance premium for the children named in the notice exceeds fifty percent of the NCP's net earnings.

(3) Except for the limitation in subsection (2) above, the employer or union must enroll the children named in the notice in a health insurance plan which the employer or union offers to the noncustodial parent (NCP) and which provides coverage accessible to the children:

(a) Upon receipt of the notice of enrollment, even if the plan prevents immediate enrollment; or

(b) When accessible coverage becomes available, if coverage is not available at the time of the notice.

(4) If the employer or union offers more than one health insurance plan which could cover the children named in the notice, the employer or union must enroll the children in:

(a) The NCP's plan, unless accessible coverage is not available to the children under that plan; or

(b) The least expensive plan which provides accessible coverage for the children.

(5) The notice of enrollment remains in effect until:

(a) DCS withdraws the notice; or

(b) Health insurance coverage is no longer available through the employer or union.

(6) If coverage for the children is terminated, the employer or union must notify DCS within thirty days of the date coverage ends)) A plan administrator who receives a National Medical Support Notice (NMSN) must respond to the NMSN within forty business days after the date on the NMSN.

(2) If the noncustodial parent (NCP) and the children are to be enrolled in a health insurance plan, the plan administrator must:

(a) Notify the NCP, each child, and the custodial parent (CP) that coverage of the children is or will become available (notifying the CP is considered the same as notifying the child if they live at the same address); and

(b) If not previously provided, send the CP a description of the coverage available, including the effective date of coverage, a summary plan description and any forms or information necessary to start coverage, and information on how to submit claims for benefits.

(3) If there is more than one option available under the plan and the NCP is not yet enrolled, the plan administrator must:

(a) Provide to the division of child support (DCS) copies of applicable summary plan descriptions for available coverage, including the additional participant contribution necessary to obtain coverage for the children under each option and whether any option has a limited service area; and

(b) If the plan has a default option, enroll the children in the plan's default option if the plan administrator has not received DCS' election within twenty business days of the date the plan administrator returned the response to DCS; or

(c) If the plan does not have a default option, enroll the children in the option selected by DCS.

(4) If the NCP is subject to a waiting period that expires within ninety days from the date the plan administrator receives the NMSN, the plan administrator must enroll the children named in the NMSN immediately.

(5) If the NCP is subject to a waiting period that expires more than ninety days from the date the plan administrator receives the NMSN, the plan administrator must notify the employer, DCS, the NCP and the CP of the waiting period. When the waiting period has expired, the plan administrator must:

(a) Enroll the NCP and the children named in the NMSN, as provided in subsection (2) or (3) above; and

(b) Notify the employer of enrollment so that the employer may determine if the NCP's income is sufficient to withhold health insurance premiums, and then either withhold accordingly or notify DCS, as provided in WAC 388-14A-4125 (3)(b).

(6) If the NCP is subject to a waiting period whose duration is determined by a measure other than the passage of time (for example, the completion of a certain number of hours worked), the plan administrator must notify the employer, DCS, the NCP and the CP of the waiting period. When the waiting period has expired, the plan administrator must:

(a) Enroll the NCP and the children named in the NMSN, as provided in subsection (2) or (3) above; and

(b) Notify the employer of enrollment so that the employer may determine if the NCP's income is sufficient to withhold health insurance premiums, and then either withhold accordingly or notify DCS, as provided in WAC 388-14A-4125 (3)(b).

(7) If the plan administrator determines that the NMSN does not constitute a qualified medical child support order as defined by ERISA, the plan administrator must:

(a) Notify DCS using the part of the NMSN called the plan administrator response; and

(b) Notify the NCP, the CP and the children of the specific reasons for the determination. A copy of the plan administrator response is considered sufficient notice under this section.

[Statutory Authority: RCW 74.08.090, 26.18.170, 26.18.180, 74.20A.055. 01-03-089, 388-14A-4130, filed 1/17/01, effective 2/17/01. Formerly WAC 388-11-215.]


NEW SECTION
WAC 388-14A-4135   What must the plan administrator do when the noncustodial parent has health insurance but the children are not included in the coverage?   (1) If the noncustodial parent (NCP) is enrolled in a health insurance plan through the employer but has not enrolled the children named in the National Medical Support Notice (NMSN), the plan administrator must follow the steps outlined in WAC 388-14A-4130(2) and:

(a) Enroll the child(ren) named in the NMSN under the NCP's health insurance plan; and

(b) Notify the employer and the division of child support (DCS) that the child(ren) have been enrolled.

(2) Under RCW 48.01.235 (4)(a), the plan administrator must enroll a child who is otherwise eligible for the coverage without regard to any enrollment season restrictions.

(3) WAC 388-14A-4145 discusses what the plan administrator must do if the NCP's health insurance plan is not accessible to the children.

[]


NEW SECTION
WAC 388-14A-4140   What must the plan administrator do when the noncustodial parent is eligible for health insurance but is not yet enrolled?   (1) If the noncustodial parent (NCP) is eligible for health insurance through the employer but has not enrolled on his or her own, the plan administrator must proceed under WAC 388-14A-4130(3) and:

(a) enroll the NCP and the children in the least expensive plan which provides accessible coverage for the children named in the National Medical Support Notice (NMSN); and

(b) notify the employer and the division of child support (DCS) that the NCP and the children have been enrolled.

(2) The plan administrator notifies DCS of all health insurance plans for which the NCP is eligible, and notifies DCS which plan is the default option.

(3) If DCS does not specify otherwise within twenty business days of the date the plan administrator responds to DCS, the plan administrator must enroll the NCP and the children in the default plan.

(4) Under RCW 48.01.235 (4)(a), the plan administrator must enroll, under the family coverage, a child who is otherwise eligible for the coverage without regard to any enrollment season restrictions. In order to obtain coverage for the children, the plan administrator must enroll an otherwise eligible NCP without regard to any enrollment season restrictions.

[]


NEW SECTION
WAC 388-14A-4143   What must the plan administrator do when the employer provides health insurance but the noncustodial parent is not yet eligible for coverage?   If the noncustodial parent is subject to a waiting period before being eligible for coverage under a health insurance plan provided by the employer, the plan administrator must proceed as follows:

(1) If the NCP is subject to a waiting period that expires ninety days or less from the date of receipt of the National Medical Support Notice (NMSN), see WAC 388-14A-4130(4);

(2) If the NCP is subject to a waiting period that expires more than ninety days from the date of receipt of the NMSN, see WAC 388-14A-4130(5); and

(3) If the NCP is subject to a waiting period whose duration is determined by a measure other than the passage of time, see WAC 388-14A-4130(6).

[]


NEW SECTION
WAC 388-14A-4145   What must the plan administrator do when the insurance plan in which the noncustodial parent is enrolled does not provide coverage which is accessible to the children?   (1) If more than one insurance plan is offered by the employer or union, and each plan may be extended to cover the child, then the plan administrator must enroll the children named in the national medical support notice (NMSN) in the plan in which the noncustodial parent (NCP) is enrolled.

(2) If the NCP's plan does not provide coverage which is accessible to the child, the plan administrator:

(a) May give the NCP the opportunity to change plans so that NCP and the children may be enrolled in a plan which provides accessible coverage for the children; but

(b) Is not required to change the NCP's plan to one which provides accessible coverage for the children.

[]


NEW SECTION
WAC 388-14A-4150   What must the plan administrator do when the noncustodial parent has more than one family?   (1) When a noncustodial parent (NCP) has a health insurance obligation for more than one family, the division of child support (DCS) sends one national medical support notice (NMSN) for each family to the NCP's employer.

(2) If the NCP is already enrolled in a health insurance plan, the plan administrator must attempt to enroll all children named in all of the NMSNs in the NCP's plan.

(3) If the NCP is not already enrolled in a health insurance plan, and the employer offers a health insurance plan which would cover all children named in all of the NMSNs, the plan administrator must enroll the children in that plan. See WAC 388-14A-4140.

(4) If the employer offers only one health insurance plan, or multiple plans which would cover some, but not all of the children named in the NMSNs, the plan administrator must so notify DCS.

(5) DCS chooses the appropriate health insurance plan by considering the following factors:

(a) The wishes of the custodial parent of each family;

(b) The premium limits set by the support orders;

(c) The relative ages of all the children;

(d) How many of NCP's children live in Washington and how many live elsewhere;

(e) How many of NCP's children receive Medicaid;

(f) How many of NCP's children are already covered by private health insurance;

(g) Which plan covers the most children; and

(h) Other factors as may be developed in DCS policy.

(6) The factors listed in subsection (5) are not exclusive, nor are they equally weighted.

(7) Nothing in this section requires the plan administrator to take action to change the NCP's plan unless the NCP requests a change.

[]


NEW SECTION
WAC 388-14A-4160   Are there any limits on the amount a noncustodial parent may be required to pay for health insurance premiums?   (1) The National Medical Support Notice (NMSN) advises the employer of any limitations on the amount a noncustodial parent (NCP) may be required to pay for health insurance premiums to cover the children.

(2) Often the support order which contains the health insurance obligation determines the limitation on premium amounts, or states that there is no limitation. See WAC 388-14A-4100 for a discussion of premium limitation amounts.

(3) The premium limitation amount stated in the NMSN:

(a) Describes the premium amount required to cover the children named in the notice; and

(b) Does not include any amounts required to cover the NCP.

(4) Even if the medical insurance premium is within the limits set by the order or by WAC 388-14A-4100, the fifty percent limitation on withholding found in RCW 26.23.060(3) still applies. See WAC 388-14A-4165 for a description of what happens when the fifty percent limitation is exceeded.

(5) When calculating the fifty percent limitation for withholding purposes:

(a) The premium attributable to coverage for the children is always included in this calculation; but

(b) The premium attributable to coverage for the NCP is included only when DCS requires the employer or plan administrator to enroll the NCP in a health insurance plan in order to obtain coverage for the NCP's children. See also WAC 388-14A-4165(3).

[]


NEW SECTION
WAC 388-14A-4165   What happens when a noncustodial parent does not earn enough to pay child support plus the health insurance premium?   (1) Under RCW 26.23.060(3), a payroll deduction may not exceed fifty percent of the noncustodial parent's disposable earnings in each pay period.

(2) When the division of child support (DCS) enforces a child support obligation through an income withholding action and also enforces a health insurance obligation, the noncustodial parent's employer often must withhold amounts for:

(a) Current child support;

(b) Child support arrears; and

(c) Health insurance premiums.

(3) When the employer or plan administrator must enroll the noncustodial parent (NCP) in a health insurance plan in order to enroll the children (see WAC 388-14A-4140), the premium amount for the NCP's coverage is included in the amounts to withhold under subsection (2) above. If the NCP is already enrolled in a plan, the premium amount for the NCP's coverage is not included the amounts to withhold under that subsection.

(4) If the combined amounts for current support, support arrears and health insurance premiums are more than fifty percent of the noncustodial parent's disposable earnings, the employer must notify DCS immediately.

(5) In certain circumstances, DCS may adjust the amount to be withheld for support arrears so that the total amount withheld does not exceed fifty percent of the noncustodial parent's disposable earnings.

(6) If the noncustodial parent's current support obligation plus health insurance premiums exceeds fifty percent of the noncustodial parent's disposable earnings, DCS:

(a) Enforces the child support obligation through income withholding; but

(b) Is not able to enforce the noncustodial parent's health insurance obligation at that time.

[]


NEW SECTION
WAC 388-14A-4170   How long does a National Medical Support Notice or other notice of enrollment remain in effect?   (1) The National Medical Support Notice (NMSN) is a Qualified Medical Child Support Order.

(2) The NMSN or earlier notice of enrollment served by the division of child support (DCS) remains in effect until:

(a) DCS withdraws the notice in writing; or

(b) Health insurance coverage is no longer available through the employer or union.

[]


NEW SECTION
WAC 388-14A-4175   Is an employer obligated to notify the division of child support when insurance coverage for the children ends?   (1) Once the division of child support (DCS) has notified an employer that the noncustodial parent (NCP) is obligated by a support order to provide health insurance coverage for the children named in the order, the national medical support notice (NMSN) or other notice of enrollment remains in effect as specified in WAC 388-14A-4170.

(2) If coverage for the children is terminated, the employer must notify DCS within thirty days of the date coverage ends.

[]

Legislature Code Reviser 

Register

Washington State Code Reviser's Office