wa-26-21-017: Employment Security Department — WSR 26-21-017

WSR 26-21-017 (26-21)WSR 26-21-017PROPOSED RULESEMPLOYMENT SECURITY DEPARTMENT[Filed October 9, 2026, 3:40 p.m.]Original Notice.Preproposal statement of inquiry was filed as WSR 26-14-014.Title of Rule and Other Identifying Information: Long-term services and supports (WA Cares). Amending caption for chapter 192-930 WAC, Penalties and audits; adding new WAC 192-930-015 What happens if an employer fails to submit required reports?, 192-930-020 What happens if an employer willfully fails to remit required payments?, 192-930-025 How will the department calculate interest on delinquent payments?, 192-930-030 Can employer interest be waived?, 192-930-035 Can employer penalties be waived?, 192-930-040 Will the department allow payment plans for delinquent employer premiums?, and 192-930-045 Conference and conciliation; and amending WAC 192-916-015 Reporting and premium payment requirements for out-of-state participants, and 192-905-010 How and when can an employee apply for an exemption from the long-term services and supports trust program?Hearing Location(s): On November 24, 2026, at 9:00 a.m., via Microsoft Teams at https://esd.wa.gov/about-us/who-we-are-and-what-we-do/rulemaking/long-term-services-and-supports-ltss-rulemaking; or join by phone 564-999-2000, PIN 751 424 409#.Date of Intended Adoption: On or after November 30, 2026.Submit Written Comments to: Janette Benham, Employment Security Department (department), P.O. Box 9046, Olympia, WA 98507-9046, email rules@esd.wa.gov, beginning October 9, 2026, by November 24, 2026, 5:00 p.m.Assistance for Persons with Disabilities: Contact Teresa Eckstein, state EO office, phone 360-480-5708, email teckstein@esd.wa.gov, by November 17, 2026.Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department's insurance services division is proposing rules for the WA Cares fund program to implement portions of the program related to penalties and interest for unpaid premiums. Additional rules to clarify exemption application requirements and premium payment requirement timelines for out-of-state participants are also being proposed.Reasons Supporting Proposal: The proposed rules implement portions of ESSB 5291, passed during the 2025 legislative session, that require the department to adopt rules related to employer penalties and interest for the WA Cares fund program. The proposal also provides clarification and guidance related to program exemptions and premium remittal timelines for out-of-state participants.Statutory Authority for Adoption: RCW 50B.04.020.Statute Being Implemented: RCW 50B.04.055, 50B.04.085, 50B.04.180, 50B.04.190, and 50B.04.195.Rule is not necessitated by federal law, federal or state court decision.Name of Proponent: Governmental.Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: April Amundson, Olympia, Washington, 360-485-2816.A school district fiscal impact statement is not required under RCW 28A.305.135.A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Janette Benham, Employment Security Department, P.O. Box 9046, Olympia, WA 98507-9046, email rules@esd.wa.gov.A cost-benefit analysis is required for WAC 192-930-035 Can employer penalties be waived? A cost-benefit analysis is not required for the following rules:RuleExemptionWAC 192-930-015 What happens if an employer fails to submit required reports?RCW 34.05.328 (5)(iii) [(5)(b)(v)]: The content of the rule is explicitly and specifically dictated by statute (RCW 50B.04.190).WAC 192-930-020 What happens if an employer willfully fails to remit required payments?RCW 34.05.328 (5)(iii) [(5)(b)(v)]: The content of the rule is explicitly and specifically dictated by statute (RCW 50B.04.190).WAC 192-930-025 How will the department calculate interest on delinquent payments?RCW 34.05.328 (5)(iii) [(5)(b)(v)]: The content of the rule is explicitly and specifically dictated by statute (RCW 50B.04.195).WAC 192-930-030 Can employer interest be waived?RCW 34.05.310 (4)(e): The content of the rule is explicitly and specifically dictated by statute (RCW 50B.04.195).WAC 192-930-040 Will the department allow payment plans for delinquent employer premiums?RCW 34.05.328 (5)(iii) [(5)(b)(v)]: The content of the rule is explicitly and specifically dictated by statute (RCW 50B.04.020).WAC 192-930-045 Conference and conciliation.RCW 34.05.328 (5)(iii) [(5)(b)(v)]: The content of the rule is explicitly and specifically dictated by statute (RCW 50B.04.190).WAC 192-905-010 How and when can an employee apply for an exemption from the long-term services and supports trust program?RCW 34.05.328 (5)(c)(ii): This is an interpretive rule, the violation of which does not subject a person to a penalty or sanction, and sets for the agency's interpretation of the statutory provision being administered. Interpretive rules are not significant legislative rules under RCW 34.05.328 (5)(c)(iii).WAC 192-916-015 Reporting and premium payment requirements for out-of-state participants.RCW 34.05.328 (5)(c)(i): This is a procedural rule that adopts a policy pertaining to the internal operations of the department. Procedural rules are not significant legislative rules under RCW 34.05.328 (5)(c)(iii).This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal: Is exempt under RCW 19.85.025(3) as the rule content is explicitly and specifically dictated by statute.Is exempt under RCW 19.85.025(4).Explanation of exemptions: RuleExemptionWAC 192-930-015 What happens if an employer fails to submit required reports?RCW 34.05.310 (4)(e): The content of the rule is explicitly and specifically dictated by statute (RCW 50B.04.190).WAC 192-930-020 What happens if an employer willfully fails to remit required payments?RCW 34.05.310 (4)(e): The content of the rule is explicitly and specifically dictated by statute (RCW 50B.04.190).WAC 192-930-025 How will the department calculate interest on delinquent payments?RCW 34.05.310 (4)(e): The content of the rule is explicitly and specifically dictated by statute (RCW 50B.04.195).WAC 192-930-030 Can employer interest be waived?RCW 34.05.310 (4)(e): The content of the rule is explicitly and specifically dictated by statute (RCW 50B.04.195).WAC 192-930-040 Will the department allow payment plans for delinquent employer premiums?RCW 34.05.310 (4)(e): The content of the rule is explicitly and specifically dictated by statute (RCW 50B.04.020).WAC 192-930-045 Conference and conciliation.RCW 34.05.310 (4)(e): The content of the rule is explicitly and specifically dictated by statute (RCW 50B.04.190).WAC 192-905-010 How and when can an employee apply for an exemption from the long-term services and supports trust program?RCW 19.85.025(4): The rule does not affect businesses and relates only to individuals applying for a program exemption.WAC 192-916-015 Reporting and premium payment requirements for out-of-state participants.RCW 19.85.025(4): The rule does not affect business and only relates to out-of-state program participates reporting and paying premiums to the department.Scope of exemption for rule proposal:Is partially exempt:Explanation of partial exemptions: WAC 192-930-035 Can employer penalties be waived?, is not exempt.The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. RuleExplanationWAC 192-930-035 Can employer penalties be waived?The rule does not impose more-than-minor costs. There is no evidence to suggest that filing for a waiver would be significantly more expensive for a small employer. Even if such a disparity did exist, the net benefit of the waiver of penalties would likely offset that cost.October 9, 2026April AmundsonPolicy and Rules ManagerEmployment System, Policy, and IntegrityLeave and Care ProgramsRDS-7492.1AMENDATORY SECTION(Amending WSR 22-20-044, filed 9/28/22, effective 10/29/22)WAC 192-905-010How and when can an employee apply for an exemption from the long-term services and supports trust program?(1) Applications for exemption from the long-term services and supports trust program for individuals who have long-term care insurance purchased before November 1, 2021, ((will be))were accepted by the department only from October 1, 2021, through December 31, 2022, per RCW 50B.04.085.(2) Applications for exemption from the long-term services and supports trust program for veterans who are 70 percent disabled and individuals who apply under WAC 192-905-006 ((will be accepted beginning January 1, 2023, and)) will be ongoing.(3) If approved by the department, an employee's exemption will be effective the quarter immediately following approval.(4) Applications for exemption will be available online or in another format approved by the department.(5) An individual who has used any of the benefit authorized under Title 50B RCW is not eligible for an exemption.RDS-7493.1AMENDATORY SECTION(Amending WSR 26-12-058, filed 6/1/26, effective 7/1/26)WAC 192-916-015Reporting and premium payment requirements for out-of-state participants.(1) Wages earned and hours worked that are not already subject to premium withholding and reporting by an employer under RCW 50B.04.080 must be reported to the department annually between January 1st and April 15th for the previous calendar year.(2) Under RCW 50B.04.180, if the out-of-state participant did not work or earn wages, acceptable documentation of no work or earnings must be reported to the department annually until the age of 67. Acceptable documentation may include additional information outlined in subsection (6) of this section.(3) Premiums, if assessed, must be paid to the department.(4) Hours reported and premiums paid count toward qualifying for the benefit as outlined in chapter 192-940 WAC.(5) Reports and premium payments must be submitted in a format and manner approved by the department.(6) The department may request additional information, including copies of tax returns, bank records, or any other documentation deemed necessary by the department to verify or determine compliance with RCW 50B.04.180.RDS-7476.1Chapter 192-930 WACPENALTIES AND AUDITSNEW SECTIONWAC 192-930-015What happens if an employer fails to submit required reports?(1) An employer that willfully fails to file a complete and timely report under WAC 192-910-005 is subject to penalties under RCW 50B.04.190.(2) The department will send a notice for an employer's first incomplete or untimely report. For a second or subsequent occurrence within five years of the date of the last occurrence, the department will assess penalties under the following schedule:(a) 2nd occurrence: $75.00(b) 3rd occurrence: $150.00(c) 4th and subsequent occurrences: $250.00(3) After five years without a notice or occurrence, prior occurrences will not count and the employer shall receive a notice instead of a penalty on the next occurrence.NEW SECTIONWAC 192-930-020What happens if an employer willfully fails to remit required payments?(1) An employer that willfully fails to remit payment for premiums in full when due is subject to penalties under RCW 50B.04.190 in addition to accruing interest under WAC 192-930-025.(2) The total amount of the penalty will be equal to the entire balance of premiums not remitted and any interest accrued on those delinquent premiums.Example: If an employer owes $300 in premium payments and $20 in interest, the penalty for willfully failing to remit payment will equal $320, for a sum total due and owing of $640.NEW SECTIONWAC 192-930-025How will the department calculate interest on delinquent payments?(1) When an employer fails to remit payment by the due date, the remaining unpaid balance shall accrue interest at a rate of one percent until payment is received in full.(2) The department will issue a notice to employers whose payments are delinquent. The notice will include the total amount due for all applicable premiums, penalties, and interest under Title 50B RCW.NEW SECTIONWAC 192-930-030Can employer interest be waived?(1) An employer may submit to the department an interest waiver request that includes all relevant facts, including all available proof, as to why they are requesting a waiver under RCW 50B.04.195.(2) At its discretion, the department may waive interest if it finds that the interest was caused by the department's own error or the department's inability to decide the issue.NEW SECTIONWAC 192-930-035Can employer penalties be waived?(1) The department may, at its discretion, waive penalties for late filing of a report, nonpayment of premiums that are due with a report, or filing of an incomplete report if the commissioner determines that there was no fault attributable to the employer.(2) An employer must:(a) Request a waiver of penalties in writing;(b) Include all relevant facts;(c) Attach available proof; and(d) File the request online or in another manner approved by the department.(3) The department may waive late penalties when there are circumstances beyond the control of the employer. These circumstances include, but may not be limited to, the following:(a) The report was filed on time with payment, but inadvertently mailed to another agency or state program;(b) The delinquency was caused by an employee of the department, such as providing incorrect information to the employer, when the source can be identified;(c) The delinquency was caused by the death or serious illness, before the filing deadline, of the employer, a member of the employer's immediate family, the individual primarily responsible for filing reports and remitting payments for the long-term services and supports program, or a member of that individual's immediate family;(d) The delinquency was caused by the unavoidable absence of the employer or key employee before the filing deadline. "Unavoidable absence" does not include absences because of business trips, vacations, personnel turnover, or terminations;(e) The delinquency was caused by the accidental destruction of the employer's place of business or business records;(f) The delinquency was caused by fraud, embezzlement, theft, or conversion by the employer's employee or other persons contracted with the employer, which the employer could not immediately detect or prevent. The employer must have had reasonable safeguards or internal controls in place;(g) The employer, before the filing deadline, requested proper forms from the department and the forms were not supplied in enough time to allow the completed report to be filed and paid before the due date. The request must have been timely, which means at least three days before the filing deadline;(h) An infection from a disease subject to a public health emergency occurred at the employer's place of business and caused the employer to close or severely curtail operations; or(i) Situations when the department accepting timely reports or payments was difficult or impossible. These include, but are not limited to, equipment breakdown or lack of available staff.(4) For the purposes of subsection (2) of this section, "employer" may include the employee typically responsible for the filing of reports and payment of premiums as required by Title 50B RCW.(5) The department may waive late penalties if it finds the employer to be out of compliance during an employer-requested audit, but the department decides the employer made a good faith effort to comply with all applicable laws and rules.(6) If a waiver is approved based on information from the employer, or on behalf of the employer, that is later determined by the department to be false or misleading, the waiver could be void and the amount previously waived will be considered due. The determination to make a waiver void is subject to appeal.(7) The department may, at its discretion, waive penalties without requiring a request from the employer if the penalty was caused by the department's own error or for other good cause.(8) An employer is not eligible for a waiver under this section if the employer has outstanding long-term services and supports reports that have not yet been remitted.NEW SECTIONWAC 192-930-040Will the department allow payment plans for delinquent employer premiums?(1) The department may, at its discretion, establish payment plans for the payment of delinquent employer premiums, interest, penalties, or fees under RCW 50B.04.190 and 50B.04.195.(2) Employers are not eligible for a payment plan if:(a) Delinquent premiums, interest, or penalties are the result of the employer willfully making a false statement or misrepresentation regarding a material fact, or willfully failing to report a material fact, to avoid making the required reports or remitting the full amount of the premiums when due under this title; or(b) The employer has outstanding reports or payments for the long-term services and supports program for past quarters that have not yet been remitted.(3) An eligible employer may request a payment plan by contacting the department.(4) When making a determination on a request for a payment plan, the department may request financial data or other information to evaluate the request. If the requested information is not provided, the department will make a determination based on available information.(5) The employer may request a specific duration (in months) for the payment plan, but the duration will ultimately be determined by the department. Additional balances will not be included in a payment plan unless requested by the employer and approved by the department. If additional balances are approved, the minimum monthly payment may change.(6) The department will establish a minimum monthly payment amount for each payment plan. The amount of the minimum monthly payment will be determined based on the following factors:(a) The total amount owed, including penalties and interest;(b) The duration of the payment plan; and(c) The financial circumstances of the individual or employer, if provided.(7) A payment plan will be considered in default when the employer fails to make a total of two required installment payments by the agreed upon due date.(8) If a payment plan is determined to be in default and the balance is not remitted to the department by the described date, the plan may be canceled and/or the department may engage in additional collection activities as described in Title 50B RCW.(9) If the department receives information that indicates the employer will be unable to meet the requirements of the approved payment plan, the payment plan may be canceled at the department's discretion and the remaining balance will be due immediately.(10) Entering into a payment plan agreement with the department does not waive any interest, penalties, or other charges unless expressly provided.NEW SECTIONWAC 192-930-045Conference and conciliation.(1)(a) The department will engage employers in conference and conciliation when the employer fails to make all required:(i) Premium payments;(ii) Payments on penalties assessed by the department for the failure to submit required reports; or(iii) Payments on penalties assessed by the department for the failure to remit required premium payments.(b) "Conference and conciliation" for the purpose of this chapter means to encourage an amicable resolution of disputes between the employer and the department prior to the issuance of a warning letter.(2) The department will promptly attempt to contact the employer to engage in conference and conciliation when appropriate under subsection (1) of this section. If the department does not receive a response from the employer by the deadline given, the department will attempt the contact again, for a total of two attempts. A warning letter will be sent to the employer if no contact can be made.(3) Conference and conciliation is only available to employers in the circumstances described in subsection (1)(a) of this section.(4) If an employer is eligible for conference and conciliation, the department will issue a warning letter when:(a) The employer does not comply with the approved repayment schedule; or(b) A resolution is not reached through conference and conciliation.