Effective Date of Rule: February 26, 2011.

     Purpose: The division of child support (DCS) is filing this third emergency rule to maintain the status quo after filing the rule-making order (CR-103P) for the adoption of final rules on this subject. Because the second emergency rule will expire on February 25, which is before the final rules take effect on the thirty first day after the CR-103P is filed, this third emergency rule is necessary.

     These rule changes were adopted to comply with the budget for state fiscal year 2011, which required DCS to change its distribution rules regarding collections from federal tax refund offsets so that those collections are (1) applied only to child support arrears and (2) applied first to debt that has been assigned to the state. DCS adopted emergency rules effective July 1, 2010, under WSR 10-14-063; the second emergency rules were effective October 29, 2010, under WSR 10-22-047. The CR-103P, Rule-making order, for the final rules, is being filed contemporaneously with this CR-103E.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-14A-5001 What procedures does DCS follow to distribute support collections?, 388-14A-5002 How does DCS distribute support collections in a nonassistance case?, 388-14A-5003 How does DCS distribute support collections in an assistance case?, 388-14A-5004 How does DCS distribute support collections in a former assistance case?, 388-14A-5005 How does DCS distribute federal tax refund offset collections?, 388-14A-5006 How does DCS distribute support collections when the paying parent has more than one case?, and 388-14A-5010 How does the division of child support distribute federal tax refund offset collections from joint returns?

     Statutory Authority for Adoption: RCW 26.23.035, 34.05.350 (1)(c).

     Under RCW 34.05.350 the agency for good cause finds that in order to implement the requirements or reductions in appropriations enacted in any budget for fiscal years 2009, 2010, or 2011, which necessitates the need for the immediate adoption, amendment, or repeal of a rule, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the fiscal needs or requirements of the agency.

     Reasons for this Finding: The budget for state fiscal year 2011 requires DCS to change its distribution rules regarding collections from federal tax refund offsets so that those collections are (1) applied only to child support arrears and (2) applied first to debt that has been assigned to the state.

     At the time DCS filed its first emergency rules, immediate adoption was necessary in order to meet the state's budget requirements; there was not sufficient time to allow the time requirements under the Administrative Procedure Act, chapter 34.05 RCW, to follow the regular rule adoption process. At the time of the first emergency rule filing, DCS did file the CR-101, Preproposal notice of inquiry, and the public rule-making hearing was held on January 4, 2011. The CR-103P, Rule-making order, adopting the final rules, is being filed contemporaneously with this emergency rule-making order, and the final rules will be effective thirty-one days after the filing of the CR-103P.

     Members of the public who wish to participate in the DCS rule-making process are encouraged to contact the DCS rules coordinator, Nancy Koptur, DCS Headquarters, P.O. Box 9162, Olympia, WA 98507-9162, or nkoptur@dshs.wa.gov.

     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 1, Amended 7, 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 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, 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 1, Amended 7, Repealed 0.

     Date Adopted: February 17, 2011.

Katherine I. Vasquez

Rules Coordinator

     (2) DCS distributes support collections within two days of the date DCS receives the collection, unless DCS is unable to distribute the collection for one or more of the following reasons:

     (a) ((The location of)) DCS is unable to locate the payee ((is unknown)) and the payee has not signed up for electronic funds transfer (EFT) of disbursements;

     (b) DCS does not have sufficient information to identify the accounts against which or to which it should distribute the money;

     (c) An action is pending before a court or agency which has jurisdiction over the issue to determine whether child support is owed or how DCS should distribute the collection.

     (d) DCS receives prepaid child support and is holding it for distribution in future months under ((subsection (2)(e) of this section)) WAC 388-14A-5008;

     (e) DCS mails a notice of intent to distribute support money ((to the custodial parent (CP))) under WAC 388-14A-5050;

     (f) DCS receives federal tax refund offset collections, which are distributed according to WAC 388-14A-5005 and 388-14A-5010.

     (g) DCS may hold funds and not issue a check to the family for amounts under one dollar. DCS must give credit for the collection, but may delay disbursement of that amount until a future collection is received which increases the amount of the disbursement to the family to at least one dollar. If no future collections are received which increase the disbursement to the family to at least one dollar, DCS transfers the amount to the department of revenue under RCW 63.29.130. This subsection does not apply to disbursements which can be made by ((electronic funds transfer ())EFT((), or to refunds of federal tax refund offset collections)); or

     (((g))) (h) Other circumstances exist which make a proper and timely distribution of the collection impossible through no fault or lack of diligence of DCS.

     (3) DCS distributes support collections based on the date DCS receives the collection, except as provided under WAC 388-14A-5005. DCS distributes support collections based on the date of collection. DCS considers the date of collection to be the date that DCS receives the support collection, no matter when the money was withheld from the noncustodial parent (NCP).

     (4) Under state and federal law, the division of child support (DCS) disburses support collections to the:

     (a) Department when the department provides or has provided public assistance payments for the support of the family;

     (b) Payee under the order, or to the custodial parent (CP) of the child according to WAC 388-14A-5050;

     (c) Child support enforcement agency in another state or foreign country which submitted a request for support enforcement services;

     (d) Indian tribe which has a TANF program, child support program and/or a cooperative agreement regarding the delivery of child support services;

     (e) Persons or entity making the payment when DCS is unable to identify the person to whom the support is payable after making reasonable efforts to obtain identification information.

     (5) If DCS is unable to disburse a support collection because the location of the family or person is unknown, it must exercise reasonable efforts to locate the family or person. When the family or person cannot be located, DCS handles the collection in accordance with chapter 63.29 RCW, the uniform unclaimed property act.

     (6) WAC 388-14A-5000 through 388-14A-5015 contain the rules for the distribution of support collections by DCS.

     (7) DCS changes the distribution rules based on changes in federal statutes and regulations. DCS may also change the distribution rules based on the state budget, but only to the extent allowed by federal law.

[Statutory Authority: RCW 26.18.170, 26.23.035, 26.23.050, [26.23.]110, 74.20.040, 74.20A.030, [74.20A.]055, [74.20A.]056, and 74.20A.310. 09-02-059, § 388-14A-5001, filed 1/5/09, effective 1/27/09. Statutory Authority: RCW 26.23.035, 74.08.090, 74.20A.310, and 45 C.F.R. 303.72 (h)(5). 05-06-014, § 388-14A-5001, filed 2/22/05, effective 3/25/05. Statutory Authority: RCW 26.23.035, 74.08.090, 74.20A.188, 74.20A.310, 42 U.S.C. 666(a)14. 01-24-078, § 388-14A-5001, filed 12/3/01, effective 1/3/02. Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.057, 74.20A.310. 01-03-089, § 388-14A-5001, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-270 and 388-14-273.]

     (2) Subject to the exceptions provided under WAC 388-14A-5005, the division of child support (DCS) applies support collections within each Title IV-D nonassistance case:

     (a) First, to satisfy the current support obligation for the month DCS received the collection;

     (b) Second, to the noncustodial parent's support debts owed to the family;

     (c) Third, to prepaid support as provided for under WAC 388-14A-5008.

     (3) DCS uses the fee retained under WAC 388-14A-2200 to offset the fee amount charged by the federal government for IV-D cases that meet the fee criteria in WAC 388-14A-2200(1).

[Statutory Authority: RCW 26.18.170, 26.23.035, 26.23.050, [26.23.]110, 74.20.040, 74.20A.030, [74.20A.]055, [74.20A.]056, and 74.20A.310. 09-02-059, § 388-14A-5002, filed 1/5/09, effective 1/27/09. Statutory Authority: 2007 c 143, §§ 1, 2, 3, 4, 5, 7, 8, and 9. 08-12-029, § 388-14A-5002, filed 5/29/08, effective 7/1/08. Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.057, 74.20A.310. 01-03-089, § 388-14A-5002, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-270.]

     (2) Subject to the exceptions provided under WAC 388-14A-5005, the division of child support (DCS) distributes support collections within each Title IV-D assistance case:

     (a) First, to satisfy the current support obligation for the month DCS received the collection;

     (b) Second, to satisfy support debts which are permanently assigned to the department to reimburse the cumulative amount of assistance which has been paid to the family;

     (c) Third:

     (i) To satisfy support debts which are temporarily assigned to the department to reimburse the cumulative amount of assistance paid to the family; or

     (ii) To satisfy support debts which are conditionally assigned to the department. Support collections distributed to conditionally assigned arrears are disbursed according to WAC 388-14A-2039.

     (d) Fourth, to satisfy support debts owed to the family;

     (e) Fifth, to prepaid support as provided for under WAC 388-14A-5008.

[Statutory Authority: RCW 26.18.170, 26.23.035, 26.23.050, [26.23.]110, 74.20.040, 74.20A.030, [74.20A.]055, [74.20A.]056, and 74.20A.310. 09-02-059, § 388-14A-5003, filed 1/5/09, effective 1/27/09. Statutory Authority: RCW 26.23.035, 74.08.090, 74.20A.188, 74.20A.310, 42 U.S.C. 666(a)14. 01-24-078, § 388-14A-5003, filed 12/3/01, effective 1/3/02. Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.057, 74.20A.310. 01-03-089, § 388-14A-5003, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-270.]

     (2) Subject to the exceptions provided under WAC 388-14A-5005, the division of child support (DCS) distributes support collections within each Title IV-D former-assistance case:

     (a) First, to satisfy the current support obligation for the month DCS received the collection;

     (b) Second, to satisfy support debts owed to the family;

     (c) Third, to satisfy support debts which are conditionally or temporarily assigned to the department. These collections are disbursed according to WAC 388-14A-2039;

     (d) Fourth, to satisfy support debts which are permanently assigned to the department to reimburse the cumulative amount of assistance which has been paid to the family; and

     (e) Fifth, to prepaid support as provided for under WAC 388-14A-5008.

[Statutory Authority: RCW 26.18.170, 26.23.035, 26.23.050, [26.23.]110, 74.20.040, 74.20A.030, [74.20A.]055, [74.20A.]056, and 74.20A.310. 09-02-059, § 388-14A-5004, filed 1/5/09, effective 1/27/09. Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.057, 74.20A.310. 01-03-089, § 388-14A-5004, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-270.]

     (1) ((First, to satisfy the current support obligation for the month in which DCS received the collection.

     (2) Second,)) DCS distributes ((any amounts over current support)) federal tax refund offset collections to arrears only, and not to current support.

     (2) DCS distributes federal tax refund offset collections within an individual case depending on the type of case to which the collection is distributed:

     (a) In a never assistance case, all ((remaining)) amounts are distributed to family arrears, meaning those arrears which have never been assigned.

     (b) In a former assistance case, all ((remaining)) amounts are distributed first to ((family)) permanently assigned arrears, then to ((permanently)) conditionally assigned arrears, then to ((conditionally assigned)) family arrears.

     (c) In a current assistance case, all ((remaining)) amounts are distributed first to permanently assigned arrears, then to temporarily assigned arrears (if they exist), then to conditionally assigned arrears, and then to family arrears.

     (3) Federal tax refund offset collections distributed to assigned support are retained by the state to reimburse the cumulative amount of assistance which has been paid to the family.

     (4) DCS may distribute federal tax refund offset collections only to certified support debts ((and to current support obligations on cases with certified debts)). DCS must refund any excess to the noncustodial parent (NCP).

     (5) DCS may retain the twenty-five dollar annual fee required under the federal deficit reduction act of 2005 and RCW 74.20.040 from federal tax refund offset collections distributed to nonassistance cases.

     (6) When the Secretary of the Treasury, through the federal Office of Child Support Enforcement (OCSE), notifies DCS that a collection from a federal tax refund offset is from a tax refund based on a joint return, DCS follows the procedures set forth in WAC 388-14A-5010.

[Statutory Authority: RCW 26.18.170, 26.23.035, 26.23.050, [26.23.]110, 74.20.040, 74.20A.030, [74.20A.]055, [74.20A.]056, and 74.20A.310. 09-02-059, § 388-14A-5005, filed 1/5/09, effective 1/27/09. Statutory Authority: 2007 c 143, §§ 1, 2, 3, 4, 5, 7, 8, and 9. 08-12-029, § 388-14A-5005, filed 5/29/08, effective 7/1/08. Statutory Authority: RCW 26.23.035, 74.08.090, 74.20A.310, and 45 C.F.R. 303.72 (h)(5). 05-06-014, § 388-14A-5005, filed 2/22/05, effective 3/25/05. Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.057, 74.20A.310. 01-03-089, § 388-14A-5005, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-270.]

     (1) First, to the current support obligation on each Title IV-D case, in proportion to the amount of the current support order on each case; and

     (2) Second, to the total of the support debts whether owed to the family or to the department for the reimbursement of public assistance on each Title IV-D case, in proportion to the amount of support debt owed by the NCP on each case; and

     (3) Third, within each Title IV-D case according to WAC 388-14A-5002, 388-14A-5003, or 388-14A-5004.

[Statutory Authority: RCW 26.18.170, 26.23.035, 26.23.050, [26.23.]110, 74.20.040, 74.20A.030, [74.20A.]055, [74.20A.]056, and 74.20A.310. 09-02-059, § 388-14A-5006, filed 1/5/09, effective 1/27/09. Statutory Authority: RCW 26.23.035, 74.08.090, 74.20A.188, 74.20A.310, 42 U.S.C. 666(a)14. 01-24-078, § 388-14A-5006, filed 12/3/01, effective 1/3/02. Statutory Authority: RCW 74.08.090, 26.23.035, 74.20A.057, 74.20A.310. 01-03-089, § 388-14A-5006, filed 1/17/01, effective 2/17/01. Formerly WAC 388-14-270.]

     (2) When the Secretary of the Treasury, through the federal Office of Child Support Enforcement (OCSE), notifies DCS that a collection on behalf of an NCP is from an intercepted tax refund based on a joint return, DCS may distribute fifty percent of that collection as provided in WAC 388-14A-5005 and hold the remainder for up to six months in case the NCP's spouse is entitled to a share of the federal tax refund.

     (3) DCS distributes fifty percent of the collection according to WAC 388-14A-5005.

     (4) DCS holds the other fifty percent of the collection in suspense until the earlier of the following:

     (a) DCS is notified by OCSE or the Secretary of the Treasury whether DCS must pay back the unobligated spouse's portion of the refund; or

     (b) For a period not to exceed six months from notification of the offset.

     (5) After DCS holds part of a collection under subsection (4) of this section, DCS distributes the remainder of the collection to the NCP's support ((obligations if)) arrears according to WAC 388-14A-5005, unless DCS is ((not)) required to return the unobligated spouse's portion of the refund. The CP may:

     (a) Request that DCS distribute the payment to the NCP's support obligation sooner upon a showing of hardship to the CP; and

     (b) Request a conference board if the CP disagrees with DCS' denial of a hardship claim.

[Statutory Authority: RCW 26.18.170, 26.23.035, 26.23.050, [26.23.]110, 74.20.040, 74.20A.030, [74.20A.]055, [74.20A.]056, and 74.20A.310. 09-02-059, § 388-14A-5010, filed 1/5/09, effective 1/27/09. Statutory Authority: RCW 26.23.035, 74.08.090, 74.20A.310, and 45 C.F.R. 303.72 (h)(5). 05-06-014, § 388-14A-5010, filed 2/22/05, effective 3/25/05.]

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