Original Notice.

     Preproposal statement of inquiry was filed as WSR 01-04-028.

     Title of Rule: WAC 415-610-010 through 415-695-040, Dependent care assistance salary reduction program (DCAP), repealing and replacing with chapter 415-600 WAC.

     Purpose: The department proposes an update to the DCAP rules. The department plans to repeal all existing DCAP rules (WAC 415-610-010 through 415-695-040), and replace them with new chapter 415-600 WAC. As much as possible, the department has translated the rules into "plain English." It is also making some housekeeping changes such as changing the names of headings to make it easier to find information. No substantive changes are being made.

     Statutory Authority for Adoption: RCW 41.50.050(5).

     Statute Being Implemented: RCW 41.04.600 through 41.04.645, 26 U.S.C.

     Summary: Department of Retirement Systems (DRS) proposes to repeal forty DCAP WAC sections spread out in ten chapters and replace them with twenty-five WAC sections in chapter 415-600 WAC.

     Reasons Supporting Proposal: The current WACs are outdated, difficult to understand, and difficult to find. The department proposes adopting the new WACs and repealing the old WACs to improve customer service.

     Name of Agency Personnel Responsible for Drafting: Merry A. Kogut, P.O. Box 48380, Olympia, WA 98504-8380, (360) 664-7291; Implementation and Enforcement: Anne Holdren, P.O. Box 48380, Olympia, WA 98504-8380, (360) 664-7009.

     Name of Proponent: Department of Retirement Systems, governmental.

     Rule is not necessitated by federal law, federal or state court decision.

     Explanation of Rule, its Purpose, and Anticipated Effects: DCAP allows participants to set aside a "before tax" portion of gross earnings to use for eligible dependent care expenses. DCAP reduces the amount of federal withholding and social security taxes (OASDI and Medicare or FICA) taken from each paycheck. Participants who incur eligible dependent care expenses are reimbursed from the amount set aside.

     The department proposes an update to the DCAP rules. The department plans to repeal all existing DCAP rules (WAC 415-610-010 through 415-695-040), and replace them with new chapter 415-600 WAC. As much as possible, the department has translated the rules into "plain English." It is also making some housekeeping changes such as changing the names of headings to make it easier to find information. No substantive changes are being made.

     The current WACs are outdated, difficult to understand, and difficult to find. The department believes that adopting the proposed new WACs and repealing the old WACs will improve customer service.

     Proposal Changes the Following Existing Rules: See Explanation of Rule above.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. These amendments have no effect on businesses.

     RCW 34.05.328 does not apply to this rule adoption. The Department of Retirement Systems is not one of the named departments in RCW 34.05.328.

     Hearing Location: Department of Retirement Systems, 6835 Capitol Boulevard, Boardroom, 3rd Floor, Tumwater, WA, on September 28, 2001, at 10:00 a.m.

     Assistance for Persons with Disabilities: Contact rules coordinator by seven days before the hearing, if possible, phone (360) 664-7291, TTY (360) 586-5450, e-mail merryk@drs.wa.gov.

     Submit Written Comments to: Identify WAC Numbers, Merry A. Kogut, Rules Coordinator, Department of Retirement Systems, P.O. Box 48380, Olympia, WA 98504-8380, e-mail Merryk@drs.wa.gov, fax (360) 753-3166, by 5:00 p.m., on September 28, 2001.

     Date of Intended Adoption: No sooner than October 1, 2001.

August 10, 2001

Merry A. Kogut

Rules Coordinator

OTS-5078.1

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     (2) Dependent care expenses means amounts paid for services which, if paid by the employee, would be considered employment related expenses under Internal Revenue Code Section 21 (b)(2) and WAC 415-600-310.

     (3) Eligible employee means state of Washington employees, officers, and elected officials.

     (4) Employer means the state of Washington.

     (5) Incurred expenses means expenses for services that have already been provided.

     (6) Internal Revenue Code (IRC) means Title 26 of the United States Code (U.S.C.). Reference to a specific provision of the code includes such provision, any associated regulations, and any comparable provision of future legislation that amends, supplements, or supersedes such provision. Copies of the applicable IRC sections are available in law libraries and from the department of retirement systems (DRS). You can also obtain them by searching United States government references on the Internet.

     (7) Participant means an eligible employee who has submitted a DCAP salary reduction agreement that is approved by DRS.

     (8) Program means this dependent care assistance salary reduction program (DCAP).

     (9) Plan year means January 1 through December 31.

     (10) Qualifying person means:

     (a) A dependent of the participant who is twelve years old or younger, for whom the participant is entitled to a deduction under IRC Section 151(c); or

     (b) A dependent or spouse of the participant who is mentally or physically incapable of self-care; or

     (c) A child of a divorced or separated participant, who is twelve years old or younger, if the participant has custody of the child, even if the participant has released an exemption under IRC Section 152 (e)(2).

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     (2) SRA forms are available through DRS or its web site at http://www.wa.gov/drs/forms/.

     (3) You may enroll in DCAP:

     (a) During the open-enrollment period;

     (b) Within sixty days of becoming an eligible employee; or

     (c) At any time you have a qualifying change in status as set forth in WAC 415-600-240.

     (4) The open enrollment period is the month of November for the following plan year.

     (5) The enrollment process is complete on the date DRS approves your completed SRA.

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     (2) The agreement must contain:

     (a) Your Social Security number;

     (b) The names and birth dates of the dependents you will cover with DCAP; and

     (c) Medical, family and other information DRS needs to administer DCAP.

     Except as provided in WAC 415-600-230, an SRA agreement cannot be changed.

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     (1) Marriage;

     (2) Divorce or legal separation;

     (3) Death of a spouse or dependent;

     (4) Addition of a dependent to the eligible employee's household, such as the birth or adoption of a child;

     (5) Termination of spouse's employment;

     (6) Employment of an unemployed spouse;

     (7) A change in the work hours of the eligible employee or spouse that significantly alters the need for dependent care;

     (8) A change in dependent care provider (does not apply to relatives);

     (9) A change in dependent care provider cost; or

     (10) No longer use dependent care services.

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     (a) Two thousand five hundred dollars, if you are married and filing separately; or

     (b) Five thousand dollars, otherwise. However, the total set aside by you and your spouse may not exceed five thousand dollars.

     (2) If you are not married, the amount set aside may not exceed your earned income.

     (3) If you are married, the amount set aside may not exceed the lesser of your earned income or your spouse's earned income.

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     (2) If your spouse is either a full-time student or physically or mentally incapable of self-care, your spouse's earned income is deemed to be:

     (a) Two hundred dollars per month, if you have one qualifying person for whom care is provided; or

     (b) Four hundred dollars per month, if you have two or more qualifying persons for whom care is provided.

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     (2) The amounts set aside by highly compensated employees who are subject to the particular nondiscrimination requirement shall be decreased pro rata.

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     (a) December 31 of the plan year, unless you reenroll during the open-enrollment period;

     (b) The date you refuse a request for updated information, as set forth in subsection (2) of this section;

     (c) The date the program is terminated by state or federal action; or

     (d) The date you revoke your salary reduction agreement under WAC 415-600-230.

     (2) You shall be deemed to have refused a request for updated information thirty days after a letter requesting such information is mailed to you by certified mail, return receipt requested. The letter must notify you of the consequences of a failure to provide such information.

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     (a) Only expenses incurred on days you work may be reimbursed.

     (b) If you are married, only expenses incurred on days you and your spouse both work may be reimbursed, provided that:

     (i) If your spouse is a full-time student, expenses incurred on days you work and your spouse attends school may be reimbursed.

     (ii) If your spouse is physically or mentally incapable of self-care, expenses incurred on days you work may be reimbursed.

     (2) You may be reimbursed only for expenses incurred during the plan year for which you are enrolled. If you enroll after January 1 of the plan year, you may be reimbursed only for expenses incurred from the date DRS approves your salary reduction agreement.

     (3) Only the cost of care may be reimbursed. The following expenses may be reimbursed, subject to the limitations stated in subsection (4) of this section.

     (a) Expenses for care of a qualifying person in the participant's home, including feeding, administration of medicine, general supervision, and incidental household services; and

     (b) Expenses for care of the following qualifying persons outside the participant's home:

     (i) A dependent of the participant, age twelve or younger, with respect to whom the participant is entitled to a federal tax deduction.

     (ii) Any other qualifying person who regularly spends eight hours or more per day in the participant's home.

     (4) The following limitations apply to the reimbursement of expenses:

     (a) Expenses for food, clothing, and entertainment are reimbursable ONLY IF these expenses cannot be separated from the cost of care.

     (b) Expenses for care in a dependent care center (as defined in Internal Revenue Code (IRC) Section 21(b)) are reimbursable ONLY IF the facility complies with all federal, state, and local laws and regulations.

     (c) Expenses for schooling are reimbursable ONLY IF:

     (i) The schooling is at a prekindergarten level; and

     (ii) The expenses cannot reasonably be separated from the cost of care.

     (d) Payments to a person for whom you or your spouse may claim a dependency exemption for federal income tax purposes are not reimbursable.

     (e) Payments to a nondependent child, as defined in IRC Section 151 (c)(3), are not reimbursable unless the child will be age nineteen or older by December 31 of the plan year.

     (f) Summer camp expenses, when the child stays overnight, are not reimbursable.

     (g) Amounts paid by an employer of your spouse or by an educational institution where your spouse is enrolled as a student are not reimbursable.

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     (2) DRS will mail a supply of reimbursement claim forms to you upon confirmation of your enrollment. You can obtain additional forms by phone or on the DRS website, at http://www.wa.gov/drs/forms/.

     (3) You may submit reimbursement claim forms as often as you wish.

     (4) The reimbursement claim form must be completed, signed, and accompanied by bills, invoices, receipts, or a statement signed by the provider. The department cannot accept canceled checks or credit card statements as verification. All documentation must show the amounts of dependent care expenses and periods of service for which you seek reimbursement.

     (5) DRS must receive claims for expenses incurred during a given plan year on or before March 31 of the following year.

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     (2) If funds are available in your dependent care account at the time the claim is reviewed, DRS will reimburse your claim.

     (3) If funds are not available at the time your claim is reviewed, DRS will reimburse your claim when money becomes available in your dependent care account. You do not need to resubmit your claim.

     (4) You will not be reimbursed for claims that exceed the amount that you set aside for the plan year. You may not resubmit these claims in subsequent plan years.

     (5) Unpaid expenses are never your employer's responsibility.

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     (2) Shortly after March 31 following the close of a plan year, DRS will send you a written statement showing the reductions from salary and amounts reimbursed through the end of the plan year.

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     (2) Delegation of authority: DRS may delegate functions to be performed under this program to any designee with legal authority to perform such functions.

     (3) Reliance upon documents: DRS and the employer may rely upon any document believed by them to be valid.

     (4) Reliance on information: In administering the program, DRS may rely conclusively on all tables, valuations, certificates, opinions, and reports which are provided by its accountants, counsel, and other professionals.

     (5) Binding nature of decisions: The DCAP program administrator is authorized to decide any matters concerning your rights under DCAP. Such decision shall be binding. If you disagree with the decision, you may write to the DRS director for consideration.

     (6) Program amendments: DRS may amend DCAP at any time if the amendment does not affect the rights of the participants to receive eligible reimbursement.

     (7) Communication: DRS will provide reasonable notification of the availability and terms of the program to eligible employees.

     (8) Program document: The DCAP program document consists of chapter 415-600 WAC and RCW 41.04.600 through 41.04.645.

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     (2) The establishment of any administrative practice shall not vest you with any right not expressly provided by DCAP.

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OTS-5079.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 415-610-010	Plan established.
WAC 415-610-015	Separate plan.
WAC 415-610-020	Interpretation.
WAC 415-610-030	General description of plan.

OTS-5080.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 415-620-010	Department.
WAC 415-620-015	Dependent care account.
WAC 415-620-020	Dependent care expenses.
WAC 415-620-025	Eligible employee.
WAC 415-620-030	Employer.
WAC 415-620-035	Internal Revenue Code.
WAC 415-620-040	Participant.
WAC 415-620-045	Plan.
WAC 415-620-050	Plan year.
WAC 415-620-055	Qualifying person(s).

OTS-5081.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 415-630-010	Participation in plan.
WAC 415-630-020	Salary reduction agreement.
WAC 415-630-025	May I change or revoke the terms of my salary reduction agreement (SRA) during the plan year?
WAC 415-630-030	What constitutes a qualifying change in status?

OTS-5082.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 415-640-010	Plan benefits.
WAC 415-640-020	Maximum benefits.
WAC 415-640-030	Reduction of benefits.

OTS-5083.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 415-650-010	Submittal of claims.
WAC 415-650-020	Payment of claims.
WAC 415-650-030	Report to participant.
WAC 415-650-040	Deadline for submitting claims.
WAC 415-650-050	Forfeiture of unexpended funds.

OTS-5084.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 415-660-010	Salary reduction account.
WAC 415-660-020	Rights of participants.

OTS-5085.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 415-670-010

Termination of participation.

OTS-5086.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 415-680-010	Administered by department.
WAC 415-680-020	Delegation of authority.
WAC 415-680-030	Proper proof.
WAC 415-680-040	Genuineness of documents.
WAC 415-680-050	Reliance on information.
WAC 415-680-060	Condition of participation.
WAC 415-680-070	Decision binding.

OTS-5087.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 415-690-010

Termination or amendment of plan.

OTS-5088.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 415-695-010	Communication to employees.
WAC 415-695-020	Nonassignability of rights.
WAC 415-695-030	No guarantee of tax consequences.
WAC 415-695-040	Indemnification of employer by participants.

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