PROPOSED RULES
SOCIAL AND HEALTH SERVICES
(Economic Services Administration)
Original Notice.
Preproposal statement of inquiry was filed as WSR 03-23-106.
Title of Rule and Other Identifying Information: Amendments to chapter 388-14A WAC as follows: WAC 388-14A-3115 The notice and finding of financial responsibility is used to set child support when paternity is not an issue, 388-14A-3120 The notice and finding of parental responsibility is used to set child support when the father's duty of support is based upon an affidavit of paternity which is not a conclusive presumption of paternity, 388-14A-3140 What can happen at a hearing on a support establishment notice?, 388-14A-3320 What happens at a hearing on a notice of support owed?, and 388-14A-6300 Duty of the administrative law judge in a hearing to determine the amount of a support obligation.
Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane, behind Goodyear Tire. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6097), on April 4, 2006, at 10:00 a.m.
Date of Intended Adoption: Not earlier than April 5, 2006.
Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m., April 4, 2006.
Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by March 31, 2006, TTY (360) 664-6178 or (360) 664-6097 or by e-mail at schilse@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The division of child support (DCS) is amending its rules dealing with administrative support orders to provide that the administrative law judge may set the amount of support arrears, but that DCS sets the monthly repayment schedule for the debt.
Reasons Supporting Proposal: The department is clarifying DCS procedures regarding payment on support arrearages.
Statutory Authority for Adoption: RCW 34.05.220(1), 74.08.090, 74.20A.160.
Statute Being Implemented: RCW 74.20A.160.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of social and health services, 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. This rule does not have an economic impact on small businesses. It only affects individuals who have support obligations or individuals who are owed child support.
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 rules relating to the liability for care of dependent children are exempt from preparing further analysis under RCW 34.05.328 (5)(b)(vii).
February 17, 2006
Andy Fernando, Manager
Rules and Policies Assistance Unit
3619.2(2) The NFFR:
(a) Advises the noncustodial parent and the custodial parent (who can be either a parent or the physical custodian of the child) of the support obligation for the child or children named in the notice. The NFFR fully and fairly advises the parents of their rights and responsibilities under the NFFR.
(b) Includes the information required by RCW 26.23.050 and 74.20A.055.
(c) Includes the noncustodial parent's health insurance obligation, as required by RCW 26.18.170 and 26.23.050.
(d) May include an obligation to provide support for day care or special child-rearing expenses, pursuant to chapter 26.19 RCW.
(e) Warns the noncustodial parent (NCP) and the custodial parent (CP) that at an administrative hearing, the administrative law judge (ALJ) may set the support obligation in an amount higher or lower than, or different from, the amount stated in the NFFR, if necessary for an accurate support order.
(3) After service of the NFFR, the ((noncustodial
parent)) NCP and the ((custodial parent)) CP must notify DCS
of any change of address, or of any changes that may affect
the support obligation.
(4) The ((noncustodial parent)) NCP must make all support
payments to the Washington state support registry after
service of the NFFR. DCS does not give the NCP credit for
payments made to any other party after service of a NFFR,
except as provided by WAC 388-14A-3375.
(5) DCS may take immediate wage withholding action and enforcement action without further notice under chapters 26.18, 26.23, and 74.20A RCW when the NFFR is a final order. WAC 388-14A-3110 describes when the notice becomes a final order.
(6) In most cases, a child support obligation continues until the child reaches the age of eighteen. WAC 388-14A-3810 describes when the obligation under the NFFR can end sooner or later than age eighteen.
(7) If paternity has been established by an affidavit or acknowledgment of paternity, DCS attaches a copy of the acknowledgment, affidavit, or certificate of birth record information to the notice. A party wishing to challenge the acknowledgment or denial of paternity may only bring an action in court to rescind or challenge the acknowledgment or denial of paternity under RCW 26.26.330 and 26.26.335.
(8) If the parents filed a paternity affidavit or acknowledgment of paternity in another state, and by that state's law paternity is therefore conclusively established, DCS may serve a NFFR to establish a support obligation.
(9) A hearing on a NFFR is for the limited purpose of resolving the NCP's accrued support debt and current support obligation. The hearing is not for the purpose of setting a payment schedule on the support debt. The NCP has the burden of proving any defenses to liability.
[Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.056, 74.20A.310, 26.26.315, 26.26.320, 26.26.330, 26.26.335, 74.20A.055, 2002 c 302, and 2002 c 199. 03-17-013, § 388-14A-3115, filed 8/12/03, effective 9/12/03. Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056. 00-15-016 and 00-20-022, § 388-14A-3115, filed 7/10/00 and 9/25/00, effective 11/6/00. Formerly WAC 388-11-285.]
(2) The NFPR differs from a notice and finding of financial responsibility (NFFR) (see WAC 388-14A-3115) because the parties may request genetic testing to contest paternity after being served with a NFPR.
(3) DCS serves a NFPR when:
(a) An affidavit acknowledging paternity is on file with the center for health statistics and was filed before July 1, 1997; or
(b) An affidavit acknowledging paternity is on file with the vital records agency of another state and the laws of that state allow the parents to withdraw the affidavit or challenge paternity.
(4) DCS attaches a copy of the acknowledgment of paternity or certification of birth record information to the NFPR.
(5) The NFPR advises the noncustodial parent (NCP) and
the custodial parent (who is either the mother or the physical
custodian of the child) of the support obligation for the
child or children named in the notice. The NFPR fully and
fairly advises the parents of their rights and
responsibilities under the NFPR. The NFPR warns the
((noncustodial parent)) NCP and the custodial parent (CP) that
at an administrative hearing on the notice, the administrative
law judge (ALJ) may set the support obligation in an amount
higher or lower than, or different from, the amount stated in
the NFPR, if necessary for an accurate support order.
(6) The NFPR includes the information required by RCW 26.23.050, 74.20A.055, and 74.20A.056.
(7) The NFPR includes the ((noncustodial parent's)) NCP's
health insurance obligation, pursuant to RCW 26.18.170 and
26.23.050.
(8) The NFPR may include an obligation to provide support for day care expenses or special child-rearing expenses, pursuant to chapter 26.19 RCW.
(9) DCS may not assess an accrued support debt for a
period longer than five years before the NFPR is served. This
limitation does not apply to the extent that the
((noncustodial parent)) NCP hid or left the state of
Washington for the purpose of avoiding service.
(10) After service of the NFPR, the ((noncustodial
parent)) NCP and the ((custodial parent)) CP must notify DCS
of any change of address, or of any changes that may affect
the support obligation.
(11) The ((noncustodial parent)) NCP must make all
support payments to the Washington state support registry
after service of the NFPR. DCS does not give the NCP credit
for payments made to any other party after service of the
NFPR, except as provided by 388-14A-3375.
(12) DCS may take immediate wage withholding action and enforcement action without further notice under chapters 26.18, 26.23, and 74.20A RCW when the NFPR is a final order. See WAC 388-14A-3110 for when the notice becomes a final order.
(13) In most cases, a child support obligation continues until the child reaches the age of eighteen. WAC 388-14A-3810 describes when the obligation under the NFPR can end sooner or later than age eighteen.
(14) Either the ((noncustodial parent)) NCP, or the
mother, if she is also the ((custodial parent)) CP, may
request genetic tests. A mother who is not the ((custodial
parent)) CP may at any time request that DCS refer the case
for paternity establishment in the superior court.
(15) DCS does not stop enforcement of the order unless
DCS receives a timely request for hearing or a timely request
for genetic tests. See WAC 388-14A-3110 for time limits. DCS
does not refund any money collected under the notice if the
((noncustodial parent)) NCP is later:
(a) Excluded from being the father by genetic tests; or
(b) Found not to be the father by a court of competent jurisdiction.
(16) If the ((noncustodial parent)) NCP requested genetic
tests and was not excluded as the father, he may request
within twenty days from the date of service of the genetic
tests in Washington, or sixty days from the date of service of
the genetic tests outside of Washington:
(a) A hearing on the NFPR.
(b) That DCS initiate a parentage action in superior court under chapter 26.26 RCW.
(17) If the ((noncustodial parent)) NCP was not excluded
as the father, the CP (or the mother, if she is also the
((custodial parent)) CP), may within twenty days of the date
of service of the genetic tests request:
(a) A hearing on the NFPR; or
(b) That DCS initiate a parentage action in superior court under chapter 26.26 RCW.
(18) If the NCP is excluded by genetic testing, DCS may refer the case for paternity establishment in the superior court.
(19) A hearing on a NFPR is for the limited purpose of
resolving the ((accrued support debt,)) NCP's current support
obligation, accrued support debt and amount of reimbursement
to DCS for paternity-related costs. The hearing is not for
the purpose of setting a payment schedule on the support debt.
The NCP has the burden of proving any defenses to liability.
[Statutory Authority: RCW 26.26.315, 26.26.320, 26.26.330, 26.26.335, 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056, 74.20A.310. 05-12-136, § 388-14A-3120, filed 6/1/05, effective 7/2/05. Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.056, 74.20A.310, 26.26.315, 26.26.320, 26.26.330, 26.26.335, 74.20A.055, 2002 c 302, and 2002 c 199. 03-17-013, § 388-14A-3120, filed 8/12/03, effective 9/12/03. Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056. 00-15-016 and 00-20-022, § 388-14A-3120, filed 7/10/00 and 9/25/00, effective 11/6/00. Formerly WAC 388-11-290.]
(2) The noncustodial parent (NCP) has the burden of proving any defenses to liability. See WAC 388-14A-3370.
(3) Both the NCP and the custodial parent (CP) must show cause why the terms in the NFFR, NFPR, or NFMR are incorrect.
(4) The administrative law judge (ALJ) ((or review
judge)) has authority to enter a support obligation that may
be higher or lower than the amounts set forth in the NFFR,
NFPR, or NFMR, including the support debt, current support,
and the future support obligation. The ALJ ((or review
judge)) may enter an order that differs from the terms stated
in the notice, including different debt periods, if the
obligation is supported by credible evidence presented by any
party at the hearing, without further notice to any
nonappearing party, if the ALJ ((or review judge)) finds that
due process requirements have been met.
(5) The ALJ has no authority to determine custody or visitation issues, or to set a payment schedule for the arrears debt.
(6) When a party has advised the ALJ that they will participate by telephone, the ALJ attempts to contact that party on the record before beginning the proceeding or rules on a motion. The ALJ may not disclose to the other parties the telephone number of the location of the party appearing by phone.
(7) In certain cases, there is no "custodial parent" because the child or children are in foster care.
(a) If the NCP fails to appear for hearing, see WAC 388-14A-3131.
(b) If the NCP appears for hearing, see WAC 388-14A-3133.
(8) In certain cases, there can be two NCPs, called "joint NCPs." This happens when a husband and wife are jointly served a support establishment notice for a common child who is not residing in their home.
(a) If both NCPs fail to appear for hearing, see WAC 388-14A-3131;
(b) If both NCPs appear for hearing, see WAC 388-14A-3133; or
(c) One joint NCP may appear and represent the other joint NCP.
(9) When the CP asserts good cause level B (see WAC 388-422-0020), DCS notifies the CP that they will continue to receive documents, notices and orders. The CP may choose to participate at any time. Failure to appear at hearing results in a default order but does not result in a sanction for noncooperation under WAC 388-14A-2041.
(10) If any party appears for the hearing and elects to proceed, absent the granting of a continuance the ALJ hears the matter and enters an initial decision and order based on the evidence presented. The ALJ includes 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.
[Statutory Authority: RCW 74.08.090, 34.05.310 (4)(d), 34.05.220(1), 74.20A.055, 74.20A.056. 03-20-072, § 388-14A-3140, filed 9/29/03, effective 10/30/03. Statutory Authority: RCW 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056. 00-15-016 and 00-20-022, § 388-14A-3140, filed 7/10/00 and 9/25/00, effective 11/6/00. Formerly WAC 388-11-400 and 388-11-425.]
(2) The hearing is only to determine:
(a) The amount of monthly support as a fixed dollar amount;
(b) Any accrued arrears through the date of hearing; and
(c) If a condition precedent in the court order to begin or adjust the support obligation was met.
(3) The hearing is not for the purpose of setting a payment schedule on the support debt.
(((2))) (4) Either the noncustodial parent (NCP) or
((custodial parent (CP))) payee may request a hearing on a
notice of support owed. The party who requested the hearing
has the burden of proving any defenses to liability that apply
under WAC 388-14A-3370 or that the amounts stated in the
notice of support owed are incorrect.
(((3))) (5) The office of administrative hearings (OAH)
sends a notice of hearing to the ((noncustodial parent ())
NCP(())), to the division of child support (DCS), and to the
payee. The NCP and the payee each may participate in the
hearing as an independent party.
(((4))) (6) If only one party appears and wishes to
proceed with the hearing, the administrative law judge (ALJ)
holds a hearing and issues an order based on the evidence
presented or continues the hearing. See WAC 388-14A-6110 and
388-14A-6115 to determine if the ALJ enters an initial order
or a final order.
(a) An order issued under this subsection includes an order of default against the nonappearing party and limits the appeal rights of the nonappearing party to the record made at the hearing.
(b) If neither the NCP nor the payee appears or wishes to proceed with the hearing, the ALJ issues an order of default against both parties.
(((5))) (7) If the payee requests a late hearing on a
notice of support owed, the payee must show good cause for
filing the late hearing request.
[Statutory Authority: RCW 74.08.090, 26.23.035, 34.05.220(1), 74.20A.310, 26.23.110, and 74.20A.040. 05-07-059, § 388-14A-3320, filed 3/11/05, effective 4/11/05. Statutory Authority: RCW 74.08.090. 01-03-089, § 388-14A-3320, filed 1/17/01, effective 2/17/01.]
(2) In hearings held under this chapter to contest a notice and finding of financial responsibility or a notice and finding of parental responsibility or other notice or petition, the administrative law judge (ALJ) must determine:
(a) The noncustodial parent's obligation to provide support under RCW 74.20A.057;
(b) The names and dates of birth of the children covered by the support order;
(c) The net monthly income of the noncustodial parent (NCP) and any custodial parent (CP);
(d) The NCP's share of the basic support obligation and any adjustments to that share, according to his or her circumstances;
(e) If requested by a party, the NCP's share of any special child-rearing expenses in a sum certain amount per month;
(f) The NCP's obligation to provide medical support under RCW 26.18.170;
(g) The NCP's accrued debt and order payments toward the debt in a monthly amount to be determined by the division of child support (DCS);
(h) The NCP's current and future monthly support obligation as a per month per child amount and order payments in that amount; and
(i) The NCP's total current and future support obligation as a sum certain and order payments in that amount.
(3) Having made the determinations required in subsection (2) above, the ALJ must order the NCP to make payments to the Washington state support registry (WSSR).
(4) The ALJ must allow ((the division of child support
()) DCS(())) to orally amend the notice at the hearing to
conform to the evidence. The ALJ may grant a continuance,
when necessary, to allow the NCP or the CP additional time to
present rebutting evidence or argument as to the amendment.
(5) The ALJ may not require DCS to produce or obtain information, documents, or witnesses to assist the NCP or CP in proof of defenses to liability. However, this rule does not apply to relevant, nonconfidential information or documents that DCS has in its possession.
[Statutory Authority: RCW 26.23.050, 34.05.220, 74.08.090, 74.20A.310. 05-14-102, § 388-14A-6300, filed 6/30/05, effective 7/31/05. Statutory Authority: RCW 74.08.090, 26.23.050, 34.05.220, 74.20A.055, 74.20A.056, 45 CFR 303.11, 45 CFR 303.100. 01-03-089, § 388-14A-6300, filed 1/17/01, effective 2/17/01. Formerly WAC 388-11-100 and 388-11-210.]