WSR 97-16-037

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Public Assistance)

[Filed July 30, 1997, 10:30 a.m.]

Date of Adoption: July 29, 1997.

Purpose: Amendment of WAC 388-11-400 through 388-11-430, to provide party status for all physical custodians in DCS support establishment proceedings, regardless of whether the family receives public assistance.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-11-405; and amending WAC 388-11-400, 388-11-410, 388-11-415, 388-11-420, 388-11-425, and 388-11-430.

Statutory Authority for Adoption: RCW 34.05.220(1), 74.20A.055.

Adopted under notice filed as WSR 97-13-087 on June 18, 1997.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, amended 6, repealed 1.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 6, repealed 1.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.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.

July 29, 1997

Merry A. Kogut, Manager

Rules and Policies Assistance Unit

AMENDATORY SECTION (Amending Order 3964, filed 4/10/96, effective 5/11/96 WAC 388-11-400 Physical custodians ((receiving nonassistance services))--Rights to participate in hearings. (1) This section and WAC 388-11-410 through 388-11-425 of this chapter govern the rights of physical custodians receiving ((nonassistance)) support enforcement services to participate in hearings based on support establishment notices. ((WAC 388-11-405 governs the participation rights of physical custodians receiving AFDC at the time the agency acts to establish a support order under RCW 74.20A.055 and 74.20A.056.))

(2) In a hearing based on a support establishment notice, the physical custodian shall have all the rights of a party to an adjudicative proceeding authorized by the Administrative Procedure Act, chapter 34.05 RCW. The exercise of those rights is governed by WAC 388-11-400 through 388-11-430, and chapters 10-08 and 388-08 WAC.

[Statutory Authority: RCW 74.20A.055 and 74.08.090. 96-09-036 (Order 3964), 388-11-400, filed 4/10/96, effective 5/11/96.]

AMENDATORY SECTION (Amending Order 3964, filed 4/10/96, effective 5/11/96 WAC 388-11-410 Notice of proposed child support amount. (1) This section describes and governs agency action in cases under WAC 388-11-400(2).

(2) Before serving a support establishment notice on a responsible parent, the IV-D agency shall serve a notice containing a summary of the proposed terms of the notice on the physical custodian by regular mail to the physical custodian's last known address.

(3) The physical custodian shall respond to the notice within twenty days by notifying the IV-D agency in writing that the custodian:

(a) Accepts the proposed child support amount and authorizes the IV-D agency to sign an agreed settlement or consent order if the order amount is greater than or equal to the proposed child support amount; or

(b) Objects to the proposed child support amount.

(4) A physical custodian who objects to the proposed child support amount must include a specific dollar amount the physical custodian believes to be the correct monthly child support obligation with the objection.

(5)(a) The IV-D agency cannot proceed to serve the responsible parent and may initiate case closure action under WAC 388-14-420 (1)(g) unless the physical custodian responds to the notice as required under subsection (3) of this section.

(b) If a physical custodian receiving public assistance fails to respond to the notice, the IV-D agency shall proceed as if the physical custodian had accepted the proposed child support amount. The physical custodian's failure to respond shall not be the basis of a claim of noncooperation.

(6) The IV-D agency may attempt to reconcile the proposed child support amount with the physical custodian's claim through negotiation or requests for production of documentary evidence. If the IV-D agency and the physical custodian reach agreement on a new proposed child support amount, upon written or telephonic acceptance by the physical custodian, the IV-D agency shall proceed under WAC 388-11-415.

(7) The notice of proposed child support amount shall inform the physical custodian of the custodian's rights and responsibilities under this section.

(8) The notice of proposed child support amount shall inform the physical custodian that at a hearing, the presiding officer will enter a support order based on the Washington state child support schedule, in an amount which may be different from the proposed child support order amount.

[Statutory Authority: RCW 74.20A.055 and 74.08.090. 96-09-036 (Order 3964), 388-11-410, filed 4/10/96, effective 5/11/96.]

AMENDATORY SECTION (Amending Order 3964, filed 4/10/96, effective 5/11/96 WAC 388-11-415 Support establishment notice--Physical custodian accepts proposed child support amount. (1) When the physical custodian accepts the proposed child support amount, the IV-D agency shall proceed to serve the responsible parent with the appropriate support establishment notice.

(2) If the responsible parent objects to the support establishment notice, the physical custodian may participate in the hearing to the extent allowed under WAC 388-11-400(2) and 388-11-425, including the right to appeal an adverse decision.

(3) The presiding officer shall conduct a hearing requested under this section according to the terms of:

(a) WAC 388-11-425;

(b) The statute and rules authorizing the support establishment notice;

(c) Chapter 10-08 WAC; and

(d) Chapter 388-08 WAC.

(4) The IV-D agency may accept a settlement, without the physical custodian's approval, for an amount equal to or greater than the proposed notice amount accepted by the physical custodian under WAC 388-11-410 (3)(a) or (6).

(5) The IV-D agency shall mail a copy of a settlement entered under subsection (4) of this section to the physical custodian within five working days of the date the settlement is entered.

[Statutory Authority: RCW 74.20A.055 and 74.08.090. 96-09-036 (Order 3964), 388-11-415, filed 4/10/96, effective 5/11/96.]

AMENDATORY SECTION (Amending Order 3964, filed 4/10/96, effective 5/11/96 WAC 388-11-420 Support establishment notice--Physical custodian objects to the proposed child support amount. (1) When the physical custodian objects to the proposed child support amount, the IV-D agency shall proceed to serve a support establishment notice according to the terms of this section.

(2) In addition to the requirements of the section of this chapter authorizing the notice, the IV-D agency shall include the following in a support establishment notice served under this section:

(a) The physical custodian's claimed support amount;

(b) The agency's claimed support amount; and

(c) Notice that:

(i) The agency and the physical custodian disagree on the proper support amount;

(ii) A hearing will be scheduled to resolve the dispute;

(iii) The responsible parent is a party to that hearing;

(iv) If the responsible parent fails to appear for the hearing, the parent will be held in default and the child support amount may be resolved by agreement of the remaining parties at any amount equal to or lower than the highest amount claimed by the agency or the custodian; ((and))

(v) If the responsible parent fails to appear for the hearing, the parent will be held in default and the presiding officer may hold a hearing and enter an order based on the Washington state child support schedule, which order may be higher or lower than the amounts stated in the notice; and

(vi) The responsible parent may argue and present evidence at the hearing to show that the support obligation should be ((lower than)) different from that claimed by the agency or the ((custodial parent)) physical custodian.

(3) When the IV-D agency serves the responsible parent with a notice under this section, the ((department)) office of administrative hearings shall send a notice of ((their)) the hearing to the physical custodian and the responsible parent at ((the)) their last known mailing address.

(4) The presiding officer shall conduct a hearing requested under this section according to the terms of:

(a) WAC 388-11-425;

(b) The statute and rules authorizing the support establishment notice;

(c) Chapter 10-08 WAC; and

(d) Chapter 388-08 WAC.

[Statutory Authority: RCW 74.20A.055 and 74.08.090. 96-09-036 (Order 3964), 388-11-420, filed 4/10/96, effective 5/11/96.]

AMENDATORY SECTION (Amending Order 3964, filed 4/10/96, effective 5/11/96 WAC 388-11-425 Hearings on support establishment notices((--Physical custodian not receiving AFDC)). (1) In a hea under this section, the IV-D agency shall proceed first to document the support amount the IV-D agency believes to be correct. Following the IV-D agency's presentation, the physical custodian and the responsible parent may proceed in turn to show why the agency position is wrong.

(2) If any party appears for the hearing and elects to proceed, absent the granting of a continuance the presiding officer shall hear the matter and enter an initial decision and order based on the evidence presented. The presiding officer shall include a party's failure to appear in the initial decision and order as an order of default against that party. The direct appeal rights of the party who failed to appear shall be limited to an appeal on the record made at the hearing.

(3) If neither party appears and elects to proceed, the presiding officer shall enter an initial decision and order on default, declaring the IV-D agency's claim for support to be final subject to collection action.

(4) If the physical custodian appears and the responsible parent fails to appear, the IV-D agency or the custodian may seek an order of default against the responsible parent. On obtaining the default order, the IV-D agency and the custodian may execute an agreed settlement or consent order setting the support obligation, so long as the settlement is ((neither:

(a))) no more than the greatest amount stated in the notice((; nor

(b) Less than the lowest amount stated in the notice)).

(5) The IV-D agency shall not take action to collect support under an order based on subsection (4) of this section until:

(a) The default order becomes a final order, and

(b) The order has been sent by regular mail to the responsible parent with a copy of the default order.

(6) A party against whom the presiding officer has entered an order of default may petition to vacate the order under WAC 388-11-120. However, a physical custodian who has accepted the proposed notice amount under WAC 388-11-410 (3)(a) may vacate an order based on that amount only on a showing of fraud or misconduct in obtaining the custodian's acceptance of the proposed child support amount.

(7) When a party has advised the presiding officer that they will participate by telephone, the presiding officer shall attempt to contact that party on the record before beginning the proceeding or ruling on a motion. The presiding officer shall not disclose a telephone number or the location of the party appearing by phone.

[Statutory Authority: RCW 74.20A.055 and 74.08.090. 96-09-036 (Order 3964), 388-11-425, filed 4/10/96, effective 5/11/96.]

AMENDATORY SECTION (Amending Order 3964, filed 4/10/96, effective 5/11/96 WAC 388-11-430 Settlement and consent order. (1) Except as provided in this section, a consent order or agreed settlement entered under WAC 388-11-415 through 388-11-425 is not valid until it is signed by all parties to the action. However, the physical custodian's telephonic approval may be substituted for his or her signature.

(2) A presiding officer may issue a consent order without the signatures of the parties after reviewing the terms of the order with the parties and making a finding that the parties understand and accept the terms of the order.

(3) A consent order or agreed settlement entered according to WAC 388-11-410 (3)(a) becomes valid without the signature of the ((custodial parent)) physical custodian.

(4) A presiding officer may enter an order of default against a party who fails to appear at hearing, and that order of default shall substitute for the defaulting party's signature if the remaining parties enter into a consent order or agreed settlement.

[Statutory Authority: RCW 74.20A.055 and 74.08.090. 96-09-036 (Order 3964), 388-11-430, filed 4/10/96, effective 5/11/96.]

REPEALER

The following section of the Washington Administrative Code is repealed: