WSR 01-24-081

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

(Division of Child Support)

[ Filed December 3, 2001, 4:06 p.m. ]

Date of Adoption: November 29, 2001.

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.

Citation of Existing Rules Affected by this Order: 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?

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

Adopted under notice filed as WSR 01-21-102 on October 23, 2001.

Changes Other than Editing from Proposed to Adopted Version: WAC 388-14A-6150(4) was revised to require that the administrative law judge consider all four factors in the civil rule 60 analysis instead of only concentrating on the issue of prejudice to the party who appeared. A concise explanatory statement explaining these changes may [be] obtained by contacting Nancy Koptur, DCS Headquarters, P.O. Box 49162, Olympia, WA 98504-9162, phone (360) 664-5065, or e-mail 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Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 2, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, Amended 2, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 2, Repealed 0.
Effective Date of Rule: Thirty-one days after filing.

November 30, 2001

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

2989.3
AMENDATORY SECTION(Amending WSR 00-15-016 and 00-20-022, filed 7/10/00 and 9/25/00, effective 11/6/00)

WAC 388-14A-3131   What happens if neither parent appears for the hearing?   (1) If neither parent appears at the scheduled hearing after being sent a notice of hearing, the administrative law judge (ALJ) enters an initial decision and order on default, declaring the support establishment notice's claim for support to be final and subject to collection action.

(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.]


AMENDATORY SECTION(Amending WSR 00-15-016 and 00-20-022, filed 7/10/00 and 9/25/00, effective 11/6/00)

WAC 388-14A-3132   What happens if only one parent appears for the hearing?   (1) If one parent appears at the hearing, but the other parent fails to appear after being sent a notice of hearing, the administrative law judge (ALJ) enters an order of default against the parent that did not appear. The hearing proceeds as described in WAC 388-14A-3140.

(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). The ALJ must consider the prejudice to the party that appeared for hearing before vacating an order of default)) 388-14A-6150.

(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.]


NEW SECTION
WAC 388-14A-6150   What can I do if there was a default order entered against me in an administrative hearing?   (1) Any party against whom the administrative law judge (ALJ) has entered an initial decision and order on default may petition the DSHS board of appeals for vacation of the default order, subject to the provisions, including time limits, of civil rule 60.

(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 applying civil rule 60 to determine whether the petition has good cause, In making this determination, the ALJ must consider the following factors:

(a) Whether there is substantial evidence to support a prima facie defense to the notice which was the subject of the hearing;

(b) Whether the petitioner's failure to appear at the hearing was due to mistake, inadvertance, surprise or excusable neglect;

(c) Whether the petition to vacate has been brought in a timely manner; and

(d) Whether vacating the initial decision would result in a substantial hardship to the parent who did appear for hearing.

(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.

[]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office