AT-98-27, The Family Domestic Violence and Child Abuse Provisions

ACTION TRANSMITTAL OCSE-AT-98-27

TO: State agencis administering child enforcement plans under Title IV-D of the Social Security Act and other interested individuals

SUBJECT: Policy Questions and Responses regarding the provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, P.L. 104-193, requiring the placement of a Family Violence Indicator

EFFECTIVE DATE: September 17, 1998

BACKGROUND: P.L. 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which amended portions of the Social Security Act, was enacted August 22, 1996. The Office of Child Support (OCSE) has received numerous inquiries from States and individuals regarding interpretation of provisions with respect to sections 453(b)(2) and 454(26) of the Social Security Act, requiring the placement of a family violence indicator. The purpose of this Action Transmittal (AT) is to inform States and other interested individuals and organizations of OCSE’s policy responses to these inquiries.

ATTACHMENT: Attached are a questions and answers in response to inquiries regarding provisions of PRWORA. The questions are arranged by subject matter.

INQUIRIES: Regional Administrators

____________________________

David Gray Ross
Commissioner
Office of Child Support Enforcement

THE DOMESTIC VIOLENCE AND CHILD ABUSE PROVISIONS OF
TITLE IV-D OF THE SOCIAL SECURITY ACT

AS ADDED BY THE
PERSONAL RESPONSIBILITY AND
WORK OPPORTUNITY RECONCILIATION ACT AND
THE TECHNICAL AMENDMENTS

I. THE STATE HAS REASONABLE EVIDENCE OF DOMESTIC VIOLENCE OR CHILD ABUSE

Q1: Are there statutory requirements pertaining to the operation of State child support enforcement programs and the Federal Parent Locator Service (FPLS) which address the issue of disclosure of information in matters of domestic violence and child abuse?

A: Yes. Sections 453(b)(2) and 454(26) of the Social Security Act (the Act), as amended by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. 104-193, and further amended by the Balanced Budget Act of 1997, Pub. L. 105-33, address this issue. Section 453(b)(2) provides that: "No information shall be disclosed to any person if the State has notified the Secretary that the State has reasonable evidence of domestic violence or child abuse and the disclosure of such information could be harmful to the parent or the child of such parent . . . ." (An exception to this general rule is described in Part III, Question 2 of this Action Transmittal.) Section 454(26) requires the State plan to have safeguards in effect which are designed to protect the privacy rights of persons involved in title IV-D child support cases, including cases involving domestic violence or child abuse.

Q2: Does the Act explicitly require the State to provide notification of domestic violence or child abuse?

A: Yes. Section 453(b)(2) must be read in conjunction with Section 454(26)(D) which contains an explicit requirement that the State notify the Secretary, for purposes of section 453(b)(2), that the State has reasonable evidence of domestic violence or child abuse in cases in which the prohibitions under subparagraphs (B) and (C) apply.

Q3: What are the prohibitions described in subparagraphs (B) and (C) of section 454(26)?

A: Subparagraph (B) requires "prohibitions against the release of information on the whereabouts of 1 party or the child to another party against whom a protective order with respect to the former party or the child has been entered."

Subparagraph (C) requires "prohibitions against the release of information on the whereabouts of 1 party or the child to another person if the State has reason to believe that the release of the information to that person may result in physical or emotional harm to the party or the child."

Q4: What constitutes "reasonable evidence of domestic violence or child abuse" under section 453(b)(2)?

A: At a minimum, a State has reasonable evidence of domestic violence or child abuse when a protective order has been entered or the State has reason to believe that the release of information about an adult or child may result in physical or emotional harm to such adult or child. It is up to the State to establish standards or criteria as to when the release of information about an adult or child may result in physical or emotional harm. ¹

OCSE is providing ongoing technical assistance to help the States to make informed policy and systems decisions in this area. To date OCSE has disseminated information about the Washington State Address Confidentiality Program, and it also has distributed a series of papers on domestic violence, developed in conjunction with the National Resource Center on Domestic Violence. Susan Notar, the OCSE Liaison for Domestic Violence (202/401-4606), is actively working to coordinate OCSE’s technical assistance initiatives with the domestic violence advocacy groups and with liaisons in regional offices of the Administration for Children and Families. In addition, OCSE has named June Melvin Mickens (301/847-9495) to serve as the Family Violence Coordinator for the Agency’s Federal Case Registry (FCR) efforts. June is talking with the States regarding their experiences in developing and implementing the family violence indicator, and she also is gathering State suggestions for beneficial technical assistance. OCSE welcomes comments on this issue regarding additional technical assistance that would be most useful for States.

Q5: If a State determines that it has "reasonable evidence of domestic violence or child abuse and the disclosure of such information could be harmful to the parent or the child of such parent," will the State be required to reflect this determination in its own records?

A: Yes. States will be required to include a family violence indicator as a data element in the State case registry (SCR). This family violence indicator will reflect that the State has reasonable evidence to believe that the person(s) to whom the indicator attaches is at risk of physical or emotional harm if information regarding his/her location(s) is released.²

Q6: Does OCSE propose that the State include a single indicator that reflects a determination that the State has reasonable evidence of family violence or two distinct indicators one reflecting a determination with respect to domestic violence and the other reflecting a determination with respect to child abuse? See footnote 2.

A: New 45 CFR 307.11 provides for the use of a single family violence indicator which is included in the State case registry and reported to the Federal case registry, to reflect the existence of reasonable evidence of domestic violence or child abuse.

Q7: If an indicator in the State case registry is used to reflect a State’s determination that it has reasonable evidence of domestic violence or child abuse and that disclosure of information about the whereabouts of one party or the child could be harmful to the party or the child, to whom will the State attach the indicator?

A: The provisions of sections 453(b)(2) and 454(26) of the Act were intended to protect victims of domestic violence or child abuse. With this rationale in mind, a State should attach a family violence indicator to any person who is at risk of physical or emotional harm and should consider attaching a family violence indicator to any person residing with such a person where the disclosure of information could be used to locate the at-risk person. The family violence indicator is not limited to any particular category of person. Thus, States should permit either the custodial party or noncustodial parent to carry the family violence indicator in the SCR, if they present the requisite risk of harm.

II. THE STATE NOTIFIES THE SECRETARY THAT THE STATE HAS REASONABLE EVIDENCE OF DOMESTIC VIOLENCE OR CHILD ABUSE

Q1: Once a State has determined that it has reasonable evidence of domestic violence or child abuse and that disclosure could be harmful to the parent or the child, how will the State convey such notification to the Secretary?

A: See the response to Part I, Question 5, above. The State will convey such notification by using the family violence data element in the State case registry and transmitting it to the Federal case registry, along with other specified data in the State case registry.

Q2: How long should the indicator of family violence remain effective?

A: It should remain effective as long as the circumstances giving rise to the determination of the existence of domestic violence or child abuse continue to exist. The regulations at 45 CFR 307.11(e)(5) require the State to establish and update, maintain, and regularly monitor case records in the State case registry. States should know that they will be responsible for updating data in the FCR regularly. Pursuant to 45 CFR 307.11(f)(1), States must transmit updates to the FCR within five (5) business days of receipt of information which would cause the addition or deletion of a family violence indicator.

States must determine the criteria and time lines for placing and maintaining the family violence indicator data element. OCSE discussions with States, to date, indicate that States are approaching this requirement in a variety of ways. Some States have determined that the indicator will remain effective for a finite period of time, unless renewed. Where this approach is used, States generally have this time period correspond to the duration of protective orders. Others will allow the indicator to remain effective until the protected person or requesting entity instructs the State IV-D agency to remove it. Other States have decided to retain the family violence indicator on the SCR until removal is ordered by a court with proper jurisdiction.

III. DISCLOSURE OF INFORMATION IN THE FPLS PROHIBITED

Q1: If the State has notified the Secretary that the State has reasonable evidence of domestic violence or child abuse and the disclosure of information could be harmful to the parent or the child of such parent, how will the FPLS respond to a request for information about the parent or child?

A: Section 453(b)(2) of the Act provides that "no information shall be disclosed to any person if the State has notified the Secretary that the State has reasonable evidence of domestic violence or child abuse and the disclosure of such information could be harmful to the custodial parent or the child of such parent, provided that (A) in response to a request from an authorized person (as defined in subsection (c) of this section and section 463(d) (2)), the Secretary shall advise the authorized person that the Secretary has been notified that there is reasonable evidence of domestic violence or child abuse and that information can only be disclosed to a court or an agent of a court pursuant to subparagraph (B) . . . ."

Q2: Under what circumstances may information in the FPLS be disclosed even though the State has notified the Secretary that the State has reasonable evidence of domestic violence or child abuse and that disclosure could be harmful to the custodial parent or the child of such parent?

A: Section 453(b)(2)(B) states that "information may be disclosed to a court or an agent of a court described in subsection (c)(2) of this section or section 463(d)(2)(B), if (i) upon receipt of information from the Secretary, the court determines whether disclosure to any other person of that information could be harmful to the parent or the child; and (ii) if the court determines that disclosure of such information to any other person could be harmful, the court and its agents shall not make any such disclosure."

Q3: What implications do the general prohibition against nondisclosure and the statutory exception have for the design of the Federal case registry component of the FPLS?

A: The Federal case registry will have the capability to perform four functions: (1) shut-off to prevent the disclosure of information in the FPLS upon notification from the State that the State has reasonable evidence of domestic violence or child abuse and that disclosure could be harmful to the custodial parent or the child; (2) generate a notice to an authorized person requesting the information that disclosure is prohibited and the measures that may be taken to obtain information despite the prohibition; (3) release the shut-off valve and permit the disclosure of information in response to a request from an appropriate court; and (4) re-impose the indicator immediately after responding to the court’s request.

The statute prescribes the content of the FPLS response in cases of domestic violence or child abuse. The statute warrants a two-part response indicating (a) that disclosure is prohibited because the Secretary has been notified that there is reasonable evidence of domestic violence or child abuse; and (b) that information may only be disclosed to a court or an agent of a court described in the statute for the purposes and under the circumstances described in the statute.

IV. FAMILY VIOLENCE OVERRIDE PROCESS

Q1: If there is an indicator prohibiting disclosure of information and an authorized person, as defined in section 453(c), makes a request for information from the FPLS for the purposes specified in section 453(a), how can the requester obtain release of the information?

A: The requester must go to an appropriate court and the court or agent of the court must submit the request to the State Parent Locator Service (SPLS) for forwarding to the FPLS.

The goal is two-fold: first, the provision is designed to create a means of obtaining information from the FPLS even in cases bearing a domestic violence or child abuse indicator; and, second, the provision gives the court responsibility for making an individualized assessment of whether disclosure is appropriate in a specific case.

Q2: What is an appropriate court?

A: Under section 453(c)(2), the appropriate court is the court which has authority to issue an order or to serve as the initiating court in an action to seek an order against a noncustodial parent for the support and maintenance of a child. Under section 463(d)(2), the appropriate court is any court having jurisdiction to make or enforce a child custody or visitation determination.

Q3: If there is an indicator prohibiting disclosure of information and an authorized person, as defined in section 463(d)(2), makes a request for a purpose specified in section 463(a), how can the requester obtain release of the information?

A: Under section 463 (a), the Secretary shall enter into an agreement with every State under which the services of the FPLS shall be made available to each State for the purpose of determining the whereabouts of a parent or child to locate the parent or child for the purpose of (1) enforcing any State or Federal law with respect to the unlawful taking or restraint of a child; or (2) making or enforcing a child custody or visitation determination. The requester must go to court and the court must submit the request to the SPLS for forwarding to the FPLS.

Q4: May the court submit the request for information directly to the FPLS?

A: No. The request for information from the FPLS must be submitted through the SPLS. This procedure is consistent with current regulation, which provides that "only the central State PLS office and any additional IV-D offices designated under section 302.35(b), may submit requests for information to the Federal PLS." 45 CFR 303.70(a). See also OCSE-AT-76-3, OCSE-AT-81-12, OCSE-AT-83-17.³

Q5: Does the Act address the safeguarding of information received or transmitted from the FPLS?

A: Yes. Section 453(b)(3) provides that "information received or transmitted pursuant to this section shall be subject to the safeguard provisions contained in section 454(26),"

which includes safeguards against unauthorized use or disclosure of information relating to proceedings or actions to establish paternity, or to establish, modify, or enforce support, or to make or enforce a child custody determination. In addition, section 453(l) prohibits the use or disclosure of information contained in the FPLS except as authorized, and section 453(m) requires the Secretary to establish safeguards to ensure that access and use of FPLS information is limited to authorized persons and purposes.

V. SPLS REVIEWS REQUEST AND SUBMITS REQUEST TO FPLS

Q1: Upon receipt of the request for FPLS information and necessary documentation from the appropriate court in cases involving domestic violence or child abuse, what is the responsibility of the SPLS?

A: The SPLS must accept the request and accompanying documents. It then must determine whether the request is from a proper court under the Act. The SPLS also must decide if the request is made on behalf of an authorized person and for a statutorily permissible purpose.

If this information is in order, the SPLS must forward the request to the FPLS. Federal regulations at 45 CFR 303.70 provide instructions about the manner and form of requests submitted to the FPLS, including the information that the request must contain and the attestation from the IV-D agency that must accompany the request. Generally, however, the requests are to include the parent’s name; Social Security number; an indication whether the individual is receiving, or has received, Federal compensation or benefits, if known; and any other information prescribed by the Office of Child Support Enforcement. [45 CFR 303.70(c)] All requests for FPLS information also must be accompanied by a statement, signed by the IV-D Director or his or her designee, attesting that the request has been made for a permitted purpose and that any information obtained through the FPLS pursuant to this request will be safeguarded as confidential. [See also OCSE-AT-76-3, OCSE-AT-81-12, OCSE-AT-83-17.]

Q2: How will the SPLS convey the override request to the FPLS?

A: The SPLS is to use a manual, paper process to make an override request for safeguarded information to the FPLS. Given the individualized and critical nature of a request to override a family violence indicator, States should be especially careful to comply with FPLS documentation requirements that will allow OCSE to verify the validity of the request. Instructions for this process will be transmitted to States via a Dear Colleague letter.

VI. OCSE REVIEWS AND, IF APPROPRIATE, PERFORMS OVERRIDE AND SENDS INFORMATION TO THE SPLS

Q1: Upon receipt of the request for information from the FPLS in a matter where the State has notified the Secretary that the State has reasonable evidence of domestic violence or child abuse and that disclosure of information may be harmful to the custodial parent or the child, what measures will OCSE take?

A: OCSE will review the request to ensure that it is regular on its face and accompanied by the necessary documentation. An OCSE staff person with appropriate security clearance will perform a manual override in a one-time response to the specific request. The OCSE staff person will manually enter the information to prompt a transaction to the FPLS to perform an override of the indicator in response to a specific request from an appropriate court for an authorized purpose. The override will act to permit the disclosure of information only in response to that request and the indicator will remain effective after the override is completed.

Q2: What information will OCSE provide to the court -- via the SPLS on the requester’s behalf?

A: The information that OCSE will provide to the SPLS depends upon the purpose of the request. If the request is for the purpose of custody or visitation enforcement, the court will receive information on the parent or child’s most recent address and place of employment. See section 463(c). If the request is for the child support purposes described in section 453(a)(2), the court will receive the appropriate types of information specified in that section. The system will sift through the information and ensure that the information provided corresponds to the purpose for which the information is sought.

As discussed in the preamble to the final regulations, See 63 Fed. Reg. 44806, Comment 31, transmitted by OCSE-AT-98-26, OCSE will provide to the Court that requests an override of FPLS information the name of the State which placed the family violence indicator on a person. In addition, when an override request has been submitted to the FPLS, OCSE will notify the State which placed the family violence indicator on a person that another State’s court has requested the override (see Part VI, Q4 below for further information).

Q3: How will OCSE convey to the SPLS the FPLS response to the request for information?

A: OCSE will convey the information to the SPLS through a manual, paper process.

Q4. Will the FPLS release information for participants with family violence indicators without a court request?

A: No. The Act provides for FPLS release of information for participants carrying a family violence indicator only when triggered by a court request. Moreover, States will need procedures which outline the SPLS role as the FPLS conduit for: 1) making the request formally; 2) receiving the FPLS information; and, 3) safely forwarding that material to the requesting court.

VII. SPLS TRANSMITS INFORMATION TO THE COURT

Q1: What is the responsibility of the court upon receipt of the information from the FPLS via the SPLS?

A: Section 453(b)(2)(B) provides that "information may be disclosed to a court or an agent of a court if (i) upon receipt of information from the Secretary, the court determines whether disclosure to any other person of that information could be harmful to the parent or the child; and (ii) if the court determines that disclosure of such information to any other person could be harmful, the court and its agents shall not make any such disclosure."

Q2: Must the court provide notice to the person to whom the information pertains prior to disclosing the information to the authorized person who requested it in the first instance?

A: No. There is no requirement in the Act that the court provide such notice.

Q3: Does the Act place any responsibility on the IV-D agency to ensure that the court adheres to the statutory requirements governing disclosure of information obtained from the FPLS?

A: Section 454(26)(E) contains a State plan requirement that addresses this issue. Section 454(26) provides that the State plan "have in effect safeguards, applicable to all confidential information handled by the State agency, that are designed to protect the privacy rights of the parties, including . . . (E) procedures providing that when the Secretary discloses information about a parent or a child to a State court or an agent of a State court described in section 453(c)(2) or 463(d)(2)(B), and advises the court or agent that the Secretary has been notified that there is reasonable evidence of domestic violence or child abuse pursuant to section 453(b)(2), the court shall determine whether disclosure to any other person of information received from the Secretary could be harmful to the parent or the child and, if the court determines that disclosure to any other person could be harmful, the court and its agents shall not make any such disclosure."

Q4: In interstate cases, should a IV-D agency that has imposed an indicator assist a court in another State that has obtained information from the FPLS?

A: Section 453(b)(2)(B) provides that upon receipt of information from the FPLS the court shall determine whether disclosure to any other person of information received from the Secretary could be harmful to the parent or the child and, if the court determines that disclosure could be harmful, the court and its agents shall not make any such disclosure. To make an informed and meaningful determination, however, the court may require additional information beyond that provided by the FPLS. The State IV-D agency that imposed the indicator may need to be prepared to assist a court that has obtained information from the FPLS.