Original Notice.

Preproposal statement of inquiry was filed as WSR 01-13-048.

Title of Rule: New section WAC 388-14A-6150 What can I do if there was a default order entered against me in an administrative hearing?; and amending WAC 388-14A-3131 What happens if neither parent appears for the hearing? and 388-14A-3132 What happens if only one parent appears for the hearing?

Purpose: To clarify the procedures for petitioning to vacate a default order. Clarifying that an unsuccessful petition to vacate may be treated as a petition to modify the support order.

Statutory Authority for Adoption: RCW 34.05.220(1), 74.08.090, 74.20A.055, 74.20A.056.

Statute Being Implemented: RCW 34.05.220(1).

Summary: To clarify the procedures for petitioning to vacate a default order. Clarifying that an unsuccessful petition to vacate may be treated as a petition to modify the support order.

Reasons Supporting Proposal: Clarity, usability, customer service.

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

Name of Proponent: Department of Social and Health Services, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: DCS seeks to clarify the rules on how to vacate a default order.

Proposal Changes the Following Existing Rules: Amends WAC 388-14A-3131 and 388-14A-3132.

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.

RCW 34.05.328 applies to this rule adoption. 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)(vii).

Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on November 27, 2001, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by November 23, 2001, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaax@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by 5 p.m., November 27, 2001.

Date of Intended Adoption: No sooner than November 28, 2001.

October 17, 2001

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

(2) The initial decision and order on default is subject to collection action on the twenty-second day after the order of default was mailed by the office of administrative hearings.

(3) A parent that did not appear may petition to vacate the default order pursuant to WAC ((388-11-120 (or as later amended))) 388-14A-6150.

(a) If the ALJ vacates the order of default, the ALJ then conducts a full hearing on the merits of the NFFR, NFPR or NFMR. All parties may participate in the hearing.

(b) If the parent who did not appear at the hearing is unsuccessful in the motion to vacate the default order, the ALJ may treat the petition as a petition to modify the support order.

[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-3131, filed 7/10/00 and 9/25/00, effective 11/6/00. Formerly WAC 388-11-400 and 388-11-425.]

(2) The division of child support (DCS) and the parent that did appear may enter a consent order, but not an agreed settlement. The obligation in the consent order may be higher or lower, or different from, the terms set forth in the notice, without further notice to the nonappearing parent, if necessary for an accurate support order. The terms of the consent order become final on the twenty-second day after the mailing of the order of default to the parent that did not appear.

(3) DCS and the parent that did appear may proceed to hearing. The ALJ may enter an initial decision setting an obligation which is higher or lower, or different from, the terms set forth in the notice, without further notice to the nonappearing parent, if necessary for an accurate support order.

(4) The parent that did not appear may petition to vacate the order of default pursuant to WAC ((388-11-120 (or as later amended))) 388-14A-6150. The ALJ must consider the prejudice to the ((party)) parent that appeared for hearing before vacating an order of default.

(5) If the ALJ vacates the order of default, the ALJ then conducts a full hearing on the merits of the notice and finding of financial responsibility (NFFR), notice and finding of parental responsibility (NFPR) or notice and finding of medical responsibility (NFMR). All parties may participate in the hearing.

(6) If the parent who did not appear at the hearing is unsuccessful in the motion to vacate the default order, the ALJ may treat the petition as a petition to modify the support order.

[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-3132, filed 7/10/00 and 9/25/00, effective 11/6/00. Formerly WAC 388-11-400 and 388-11-425.]

(2) Specific rules on administrative support establishment notices are in WAC 388-14A-3700.

(3) Upon receipt of a request to vacate a default order, the department must ask the office of administrative hearings (OAH) to:

(a) Schedule a hearing to determine whether or not the petitioner has good cause for vacating the default order; and

(b) Give any other parties to the hearing notice of the time and date of the hearing. The notice is sent to the party's last known address.

(4) In a hearing under this section, the ALJ must first determine if the petitioner has good cause for vacating the default order by:

(a) Applying civil rule 60 to determine whether the petition has good cause; and

(b) Considering the prejudice to the parent who did appear before vacating the default.

(5) If the ALJ finds good cause to vacate the default order, the ALJ:

(a) Must conduct a hearing on the merits of the petitioner's objection to the notice that was the basis for the hearing at which the petitioner failed to appear; and

(b) May stay any further collection to the extent provided for under the rules governing the notice the party originally objected to.

(6) If the parent who did not appear at the hearing is unsuccessful in the motion to vacate the default order, the ALJ may treat the petition as a petition to modify the support order.

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Washington State Code Reviser's Office