Child Support Enforcement Program Action Transmittal

Child Support Enforcement Program

Action Transmittal

U.S. Department of

Health and Human Services

Administration for Children & Families

Office of Program Support

Office of Child Support Enforcement

Washington, D.C. 20447

Transmittal No. OCSE-AT-98-04
Date: February 25, 1998

TO: STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PLANS UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS

SUBJECT: Proposed Rule - Revisions to the Standards for Program Operation Regarding Case Closure

ATTACHMENT: Attached is a Notice of Proposed Rulemaking, published in the Federal Register on February 24, 1998 (Volume 63, Number 36)

This proposed regulation would revise Federal regulations outlining the criteria for closing child support enforcement cases. The proposed rule makes technical changes to 45 CFR 303.11, Case Closure Criteria, by revising certain terminology to conform to standard usage, renumbering certain sections and altering or deleting sections.

The effect of these proposed changes is to clarify the situations in which States may close child support cases and to make it easier for States to close unworkable cases, while ensuring that all viable cases remain opened. This proposed rule implements many of the recommendations of the regulation reinvention workgroup and the State IV-D Directors' group.

REGULATION

REFERENCE: 45 CFR Part 303.11

DATES: Consideration will be given to written comments received by April 27, 1998.

Address comments to: Office of Child Support Enforcement, Department of Health and Human Services, 370 L'Enfant Promenade, S.W., Washington, D.C. 20447, Attention: Director, Policy and Planning Division, Mail Stop: OCSE/DPP.

Comments may also be submitted by sending electronic mail (e-mail) to "scesar@acf.hhs.gov" or by telefaxing to 202-401-3444. This is not a toll-free number. Comments sent electronically must be in ASCII format.

INQUIRIES: Steve Cesar, Federal OCSE, 202-401-5436

ACF Regional Program Managers

/s/

David Gray Ross

Commissioner

Office of Child Support

Enforcement

[Federal Register: February 24, 1998 (Volume 63, Number 36)]

[Proposed Rules]

[Page 9172-9175]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr24fe98-23]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

Office of Child Support Enforcement

45 CFR Part 303

RIN 0970-AB82

Child Support Enforcement Program, Standards for Program

Operations

AGENCY: Office of Child Support Enforcement (OCSE), HHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule would amend Federal regulations governing procedures for the case closure process in the child support program. The proposed rule clarifies the situations in which States may close child support cases and makes other technical changes.

DATES: Consideration will be given to comments received by April 27, 1998.

ADDRESSES: Send comments to Director, Office of Child Support Enforcement, Administration for Children and Families, 370 L'Enfant Promenade, SW., 4th floor, Washington, DC 20447. Attention: Director, Policy and Planning Division, Mail Stop: OCSE/DPP. Comments will be

available for public inspection Monday through Friday, 8:30 a.m. to 5 p.m. on the 4th floor of the Department's offices at the above address.

FOR FURTHER INFORMATION CONTACT: Craig Hathaway, Policy Branch, OCSE (202) 401-5367, e-mail: chathaway@acf.hhs.gov. Deaf and hearing-impaired individuals may call the Federal Dual Party Relay Service at 1-800-877-8339 between 8 a.m. and 7 p.m.

SUPPLEMENTARY INFORMATION:

Statutory Authority

These proposed regulatory changes are made under the authority granted to the Secretary by section 1102 of the Social Security Act (the Act). Section 1102 of the Act requires the Secretary to publish regulations that may be necessary for the efficient administration of the functions for which she is responsible under the Act. In accordance with the Presidential directive of March 4, 1995 to executive branch regulatory agencies to identify existing regulations that are redundant or obsolete, OCSE has examined Part 300 of Title 45, Code of Federal Regulations to evaluate those areas where regulations should be revised and/or removed. Accordingly, we are revising and removing existing regulations concerning criteria to close child support enforcement cases.

Background

The Child Support Enforcement program was established under Title IV-D by the Social Services Amendments of 1974, for the purpose of establishing paternity and child support obligations, and enforcing support owed by noncustodial parents. At the request of the States, OCSE originally promulgated regulations in 1989 which established criteria for States to follow in determining whether and how to close child support cases. In the final Program Standards regulations dated August 4, 1989, we gave examples of appropriate instances in which to close cases. In the Supplementary Information accompanying the final regulations, we stated that the goal of the case closure regulations was not to mandate that cases be closed, but rather to clarify conditions under which cases may be closed. The regulations allowed States to close cases that were not likely to result in any collection in the near future and to concentrate their efforts on the cases that presented a likelihood of collection.

In an effort to be responsive to the President's Memorandum of March 4, 1995 which announced a government-wide Regulatory Reinvention Initiative to reduce or eliminate burdens on States, other governmental agencies or the private sector, and in compliance with section 204 of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, OCSE formed a regulation reinvention workgroup to exchange views, information and advice with respect to the review of existing regulations in order to eliminate or revise those regulations that are outdated, unduly burdensome, or unproductive. This group is made up of representatives of Federal, State and local government elected officials and their staffs.

As part of the regulation reinvention effort, Sec. 303.11 on case closure criteria was reviewed to determine what

[[Page 9173]]

changes could be made to help States with their case closure process, while ensuring all viable cases remain opened. Somewhat earlier, the State IV-D Directors' Association had established a committee to examine the case closure issue. The committee developed several recommendations, which were considered in the development of the proposed regulation. We also consulted with several advocates and other interested parties and stakeholders, including custodial parents and groups advocating on their behalf, to discuss their concerns with the IV-D Directors' Association recommendations and about the case closure criteria in general. Their concerns were considered throughout the deliberations on each area under consideration for addition, deletion or revision. As the result of these exchanges of information, recommendations for changes in the criteria which States must use to determine whether child support cases may be closed were developed. These recommendations are reflected in the proposed rule.

The deliberative process to develop this proposal operated under a set of principles that balanced our joint concern that all children receive the help they need in establishing paternity and securing support, while being responsive to administrative concerns for maintaining caseloads that include only those cases in which there is adequate information or likelihood of successfully providing services. The circumstances under which a case could be closed include, for example, instances in which legitimate and repeated efforts over time to locate putative fathers or obligors are unsuccessful because of inadequate identifying or location information, or in interstate cases in which the responding State lacks jurisdiction to work a case and the initiating State has not responded to a request for additional information or case closure. Decision to close cases are linked with notice to recipients of the intent to close the case and an opportunity to respond with information or a request that the case be kept open. The proposals in this regulation balance good management and workable administrative decisions with providing needed services, always erring in favor of including any case in which there is any chance of success. For example, cases would remain open even if there is no likelihood of immediate or great success in securing support, perhaps because of a period of incarceration. In our consultations, we were consistently impressed with the commitment of all those involved to these operating principles.

The IV-D Directors' Association recommended that the requirement that a case in which the agency is unable to locate the putative father or noncustodial parent remain open with ongoing locate efforts for three years be changed to require a shorter time in cases in which the biological father is unknown or there is insufficient information to initiate a locate effort. This recommendation was accepted and is incorporated in the proposed rules.

We are aware of the concerns of the advocacy groups about closing cases too soon. However, we believe the requirements of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193 (PRWORA) provide adequate safeguards to prevent this from happening. Section 333 of PRWORA requires that the applicant for assistance under Title IV-A of the Act provide the IV-D agency with the name of the putative father, as well as additional identifying information. Failure to do so constitutes noncooperation and compromises the eligiblity for benefits. Determinations of noncooperation are to be documented, with notice provided to the applicant. We anticipate that cases under this changed criterion will be few and will be well documented.

The IV-D Directors' Association also recommended that the regulations be changed to allow notice of intent to close a case to be sent by first class mail, as opposed to the current requirement of certified mail. This recommendation was accepted, as well. The IV-D Directors' Association further recommended that immediate case closure be permitted in cases in which the parental rights of the noncustodial parent have been terminated by the court, unless an arrearage remains. Upon consideration of this suggestion we concluded that closure of such a case is already permitted by current regulations which allow closure in cases in which there is no loner a current obligation and in which there are no arrearages owed. The IV-D Directors' Association also recommended that case closure be permitted in cases in which neither party is a legal resident of the State, there is no order from the State and there is no State jurisdiction over the noncustodial parent. We concluded that this recommendation is contrary to the requirements section 454(6) of the Social Security Act, and, thus, declined to accept it. The IV-D Directors' Association recommended that cases involving an interstate request to locate an individual be eligible for closure by the responding State after all sources of information to help locate the individual have been exhausted and results forwarded to the initiating State, or when the initiating State has not provided enough information to the responding State to locate the noncustodial parent. In response, new criteria have been added to allow a responding State to close an interstate case if it can document inaction by the initiating State that renders the responding State unable to proceed with the case, as it would close a case for failure to cooperate by the recipient of services. Finally, the IV-D Directors' Association recommended that case closure be allowed after sixty days in cases in which the custodial parent's address is unknown and repeated attempts to contact the custodial parent are unsuccessful, with the States to have the flexibility to determine what type of locate attempts will be appropriate. In response, we decided to extend the time period to sixty days from thirty, and to require at least one letter by first class mail, as opposed to the current requirement of certified mail and a phone call. The allowance of a first class letter was thought to be in accord with the new requirements in welfare reform.

Description of Regulatory Provisions

We propose to amend and make technical changes to Sec. 303.11 Case Closure Criteria. Under Sec. 303.11, paragraph (b)(1) allows closure of a case where the child has reached the age of majority, there is no longer a current support order, and either no arrearages are owed or arrearages are under $500 or unenforceable under State law. In addition, paragraph (b)(2) currently allows case closure where the child has not reached the age of majority, arrearages are less than $500 or unenforceable under State law, and there is no longer a current support order.

In the final Program Standards regulations published in 1989, we gave examples of instances in which it would be appropriate to close cases under subsection (b)(1) and (b)(2); however, after reviewing the two subparagraphs, it is apparent that the distinction between subsections (b)(1) and (b)(2) which is based upon whether or not the child has reached the age of majority is unnecessary, as the criteria are the same. Therefore, we propose combining (b)(1) and (b)(2) to read, ``There is no longer a current support order and arrearages are under $500 or unenforceable under State law[.]''

Paragraphs (b)(3) through (b)(12) would be renumbered as (b)(2) through (b)(11), and ``absent parent'' would be revised to read ``noncustodial parent''

[[Page 9174]]

throughout, for consistency with preferred statutory terminology under PRWORA.

Under the new redesignated paragraph (b)(3), we would add a new subparagraph (3)(iv) to read, ``The identity of the biological father is unknown and cannot be identified after diligent efforts, including at least one interview by the IV-D agency with the recipient of services.'' The IV-D Directors, concerned about having an abundance of unenforceable cases within the system, requested that the amount of time a case is required to remain open be reduced. Additionally, several States reported increased success in obtaining information to help identify a putative father when the recipient of services is interviewed personally. The interview is intended to be an attempt to gain additional information to aid the IV-D agency in establishing paternity. Therefore, the interview must be conducted by IV-D staff; the initial intake interview for another public assistance program is not sufficient to satisfy the requirement of an interview with the recipient of services.

Under the new redesignated paragraph (b)(4), we propose to delete, ``over a three-year period'' and to add new subparagraphs (i) and (ii) to read, ``(i) over a three-year period when there is sufficient information to initiate automated locate efforts; or (ii) over a one-year period when there is not sufficient information to initiate automated locate efforts.'' As discussed above, the IV-D Directors expressed a desire to be permitted to close cases in which it is impossible to undertake any locate effort due to the scarcity of information. This change would allow States to close a case in which the recipient of services does not have even minimum information, such as name, date of birth, or social security number of the putative father or noncustodial parent.

In new redesignated paragraphs (b)(8), (b)(10) and (b)(11) ``custodial parent'' would be revised to read ``recipient of services.'' In certain situations, such as paternity establishment or review and adjustment, the noncustodial parent may have opened the case. This language change would more accurately encompass all situations to which these provisions apply.

We propose to revise redesignated paragraph (b)(9) to add IV-D agencies to the list as an option for making good cause determinations. This section identifies the entities that may make a determination of good cause for failure to cooperate with IV-D efforts. Section 333 of PRWORA provides flexibility to the States to identify the agency which may make good cause determinations. Good cause for noncooperation may arise after IV-D services have been undertaken; the addition of this provision would allow the IV-D agency itself to determine whether good cause exists in appropriate cases.

In the redesignated paragraph (b)(10), we propose to revise the language after ``within a'' to read ``60 calendar day period despite an attempt by at least one letter sent by first class mail to the last known address; or[.]'' The IV-D directors, concerned about having an abundance of unenforceable cases within the system, requested that we reduce the amount of time a case is required to remain open despite an inability to contact the recipient of services.

Under Sec. 303.11, we propose to add a new subparagraph (12) to read, ``The IV-D agency documents failure by the initiating State to take an action which is essential for the next step in providing services.'' Under the current regulations, a responding State is not free to close a case without the permission of the initiating State. In some of these cases, the responding State may be unable to locate the noncustodial parent, or may locate him or her in another State, and request to close the case. If the initiating State fails to respond to this request, the responding State is obligated to leave the case open in its system. Similarly, if the initiating State fails to provide necessary information to enable the responding State to provide services, and fails to respond to requests to provide the information, the responding State is required to keep the case open, although it is unable to take any action on it. The proposed changes would permit the responding State to close the case if it is unable to process the case due to lack of cooperation by the initiating State.

In paragraph (c), we propose revisions based upon the proposed renumbering of paragraph (b). In the first sentence, the reference to ``paragraphs (b)(1) through (7) and (11) and (12) of this section'' would be changed to read ``paragraphs (b)(1) through (6) and (10) and (11) of this section[.]'' In addition, the references to ``custodial parent'' would be revised to read ``recipient of services,'' for the reasons explained above. Also, in the second sentence, we propose to replace the reference to ``paragraph (b)(11)'' with paragraph ``(b)(10),'' based upon the proposed renumbering of paragraph (b).

In paragraph (d), we propose to remove the reference to ``Subpart D,'' as that subpart has been reassigned and no longer addresses the issue of record retention.

Regulatory Flexibility Analysis

The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this proposed regulation will not result in a significant impact on a substantial number of small entities. The primary impact is on State governments and individuals. State governments are not considered small entities under the Act.

Executive Order 12866

Executive Order 12866 requires that regulations be reviewed to ensure that they are consistent with the priorities and principles set forth in the Executive Order. The Department has determined that this rule is consistent with these priorities and principles. No costs are associated with this proposed rule.

Unfunded Mandates Act

The Department has determined that this proposed rule is not a significant regulatory action within the meaning of the Unfunded Mandates Reform Act of 1995.

Paperwork Reduction Act

This rule does not contain information collection provisions subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995.

List of Subjects in 45 CFR Part 303

Child support, Grant programs/social programs, Reporting and recordkeeping requirements.

(Catalog of Federal Domestic Assistance Programs No. 93.563, Child Support Enforcement Program)

Dated: August 8, 1997.

Olivia A. Golden,

Principal Deputy Assistant Secretary for Children and Families.

Approved: November 4, 1997.

Donna E. Shalala,

Secretary, Department of Health and Human Services.

For the reasons discussed above, we propose to amend title 45 CFR Chapter III of the Code of Federal Regulations as follows:

PART 303--STANDARDS FOR PROGRAM OPERATIONS

1. The authority citation of Part 303 continues to read as follows:

Authority: 42 U.S.C. 651 through 658, 660, 663, 664, 666, 667, 1302, 1396a(a)(25), 1396(d)(2), 1396b(o), 1396b(p), and 1396(k).

[[Page 9175]]

Sec. 303.11 Case closure criteria. [Amended]

2. Section 303.11 is amended as follows:

a. Paragraph (b)(1) is revised and paragraph (b)(2) is removed to read as follows:

* * * * *

(b) * * *

(1) There is no longer a current support order and arrearages are under $500 or unenforceable under State law.

* * * * *

b. Paragraph (b)(3) is redesignated as paragraph (b)(2).

c. Paragraph (b)(4) is redesignated as paragraph (b)(3) and amended by adding paragraph (b)(3)(iv) to read as follows:

* * * * *

(b) * * *

(3) * * *

(iv) The identity of the biological father is unknown and cannot be identified after diligent efforts, including at least one interview by the IV-D agency with the recipient of services.

* * * * *

d. Paragraph (b)(5) is redesignated as paragraph (b)(4) and revised to read as follows:

* * * * *

(b) * * *

(4) The noncustodial parent's location is unknown, and the State has made regular attempts using multiple sources, all of which have been unsuccessful, to locate the noncustodial parent

(i) Over a three-year period when there is sufficient information to initiate an automated locate effort, or

(ii) Over a one-year period when there is not sufficient information to initiate an automated locate effort.

* * * * *

e. Paragraphs (b)(6) through (b)(12) are redesignated as paragraphs (b)(5) through (b)(11), respectively.

f. Newly redesignated paragraph (b)(9) is revised to read as follows:

* * * * *

(b) * * *

(9) There has been a finding of good cause as set forth at Sec. 302.31(c) and either Sec. 232.40 of this chapter or 42 CFR 433.147 and the State or local IV-A, IV-D, IV-E, or Medicaid agency has determined that support enforcement may not proceed without risk of harm to the child or caretaker relative[.]

* * * * *

g. Newly redesignated paragraph (b)(10) is revised to read as follows:

* * * * *

(b) * * *

(10) In a non-IV-A case receiving services under Sec. 302.33(a)(1)(i) or (iii), the IV-D agency is unable to contact the recipient of services within a 60 calendar day period despite an attempt by at least one letter sent by first class mail to the last known address, or[.]

* * * * *

h. Paragraph (b)(12) is added to read as follows:

* * * * *

(b) * * *

(12) The IV-D agency documents failure by the initiating State to take an action which is essential for the next step in providing services.

* * * * *

i. Paragraph (c) is revised to read as follows:

* * * * *

(c) In cases meeting the criteria in paragraphs (b) (1) through (6) and (10) and (11) of this section, the State must notify the recipient of services in writing 60 calendar days prior to closure of the case of the State's intent to close the case. The case must be kept open if the recipient of services supplies information in response to the notice which could lead to the establishment of paternity or a support order or enforcement of an order, or, in the instance of paragraph (b)(10) of this section, if contact is reestablished with the recipient of services. If the case is closed, the recipient of services may request at a later date that the case be reopened if there is a change in circumstances which could lead to the establishment of paternity or a support order or enforcement of an order.

* * * * *

j. Paragraph (d) is revised to read as follows:

* * * * *

(d) The IV-D agency must retain all records for cases closed pursuant to this section for a minimum of three years, in accordance with 45 CFR part 74.

* * * * *

k. In addition to the amendments set forth above, remove the words ``absent parent,'' and add, in their place, the words ``noncustodial parent'' in the following places:

(1) Newly redesignated paragraph (b)(2);

(2) Newly redesignated paragraph (b)(4);

(3) Newly redesignated paragraph (b)(5); and

(4) Newly redesignated paragraph (b)(6).

l. In addition to the amendments set forth above, remove the words ``custodial parent,'' and add, in their place, the words ``recipient of services'' in the following places:

(1) Newly redesignated paragraph (b)(8);

(2) Newly redesignated paragraph (b)(10); and

(3) Newly redesignated paragraph (b)(11).

[FR Doc. 98-4229 Filed 2-23-98; 8:45 am]

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