Amicus Curiae Brief — Blessing v. Freestone

Supreme Court brief1996

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OCTOBER TERM, 1996 “~~

Linpa J. BLEssinGc, DirEcTOR, ARIZONA

DEPARTMENT OF ECONOMIC SECURITY, PETITIONER

Vv.

CATHY FREESTONE, ETC., ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

WALTER DELLINGER

Acting Solicitor General

FRANK W. HUNGER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor General

WILLIAM KANTER

ALFRED MOLLIN

Attorneys

Department of Justice -

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether an individual has a private right of action un-

der 42 U.S.C. 1983 to seek redress against state officers

responsible for administering a State’s child support en-

forcement program under Title IV-D of the Social Secur-

ity Act, 42 U.S.C. 651 et seq., for violations of the Act

and its implementing regulations.

—

Page

Interest of the United States 202... oon 1

ESS A 2

CE 9

Argument :

Title IV-D creates individual rights that may be

enforced in an action under 42 U.S.C. 1983 .............. 11

A. Maine Vv. Thiboutot should not be reconsidered... 11

B. Private enforcement comports with principles of

federalism and the Eleventh Amendment ..._. 14

C. Title IV-D creates judicially enforceable rights... 16

1. Needy children and their custodial parents

are Title IV-D’s intended beneficiaries. wf 17

2. Title IV-D’s requirements are clear and

ET 21

8. Some, but not all, of Title IV-D’s child sup-

port enforcement provisions are judicially

EE 26

D. Congress has not foreclosed actions under Sec.

ESE SE 27

ES 31

TABLE OF AUTHORITIES

Cases:

Albiston v. Maine Comm'r of Human Servs., 7

F.3d 258 (ist Cir. 1993)... 17, 20, 23, 28, 29

Arizona V. Rumsey, 467 U.S. 208 (1984) 0... 12

Beasley v. Harris, 671 F. Supp. 911 (D. Conn.

LSE 17

Behunin V. Jefferson County Dep't of Social Servs.,

744 F. Supp. 255 (D. Colo. 1990) 0.0... 17, 28

Bell v. New Jersey, 461 U.S. 773 (1983)... oe 14, 24

Bennett v. aed vicnial nde Educ., 470 U.S. 656

(1985) .. oe a

(11)

Cases—Continued : Page

Brown Vv. Gardner, 115 S. Ct. 552 (1994) 0... 19

Carelli v. Howser, 923 F.2d 1208 (6th Cir. 1991)... 17, 28

Davis v. McClaran, 909 S.W.2d 412 (Tenn. 1995),

cert. denied, 116 S. Ct. 1870 (1996) —.................. 17, 28

Dennis Vv. Higgins, 498 U.S. 439 (1991) ................ 22

Dunlop v. Bachowski, 421 U.S. 560 (1975) ~........... 27

Edelman v. Jordan, 415 U.S. 651 (1974) ................. 15

Golden State Transit Corp. Vv. City of Los Angeles,

498 U.S. 103 (1989) .............. 16, 17, 20, 21, 22, 24, 25, 27

Haskins v. Stanton, 794 F.2d 1273 (7th Cir. 1986) .. 30

Heckler v. Chaney, 470 U.S. 821 (1985) ................. 27

Howe Vv. Ellenbecker, 8 F.3d 1258 (8th Cir. 1993),

cert. denied, 114 S. Ct. 1873 (1994) ..................... 17, 28

John Hancock Mut. Life Ins. Co. Vv. Harris Trust

& Sav. Bank, 510 U.S. 86 (1993) —....................... 19

King Vv. Bradley, 829 F. Supp. 989 (N.D. Ill.

GE ccnnrtrenatenbenstriatrctnaniinaiatianieaiatiiaiiiiieailinmibiemeieses 17, 28

Linda R.S. v. Richard D., 410 U.S. 614 (1973)....... 18

Livadas v. Bradshaw, 114 8. Ct. 2068 (1994) ....12, 25, 26

Maine v. Thiboutot, 448 U.S. 1 (1980) ................. 9,11, 12

Mason Vv. Bradley, 789 F. Supp. 273 (N.D. Il.

ES EAE Ee eee 17

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981) .................. 27, 28

Neal v. United States, 116 S. Ct. 763 (1996) .......... 12

Oliphant v. Bradley, No. 91 C 3055, 1992 WL

153637 (N.D. Ill. Feb. 20, 1992) ................. 17, 28

Patsy Vv. Board of Regents, 457 U.S. 496 (1982)... 28

Patterson V. McLean Credit Union, 491 U.S. 164

a os 12

Pennhurst State Sch. & Hosp. v. Halderman, 451

US. 1 (1961) ............ scmpssiagilintiamesiiitasitadaiiabaiaittadial 16, 23, 24

School Bd. of Nassau County v. Arline, 480 U.S.

re Ga cccentnnrnnsntinecntinninematpamenimnstennens 22

Seminole Tribe of Florida v. Florida, 116 S. Ct.

OO OEE 15, 16

Smith v. Robinson, 468 U.S. 992 (1984) 18, 27, 28

Suter v. Artist M., 503 U.S. 347 (1992) ..13, 14, 22, 23, 27

United States v. International Business Machines

Corp., 116 S. Ct. 1793 (1996) ................................ 12

Wehunt v. Ledbetter, 875 F.2d 1558 (11th Cir.

1989), cert. denied, 494 U.S. 1027 (1990) ......... 17, 28

Cases—Continued : | Page

Wilder v. Virginia Hosp. Asa’n, 496 U.S. 498

a 13, 16, 21, 22, 23, 25, 26, 27, 28

Will v. Michigan Dep't of State Police, 491 U.S.

OD i citrate allele in 15

Williamson County Regional Planning Comm'n v.

Hamilton Bank of Johnson City, 473 U.S. 172

SE Oe ee 29

Withrow v. Concannon, 942 F.2d 1385 (9th Cir.

oe a ee a ee eee ee ee 20, 30

Wright v. City of Roanoke Redevelopment & Hous-

ing Auth., 479 U.S. 418 (1987) 000 27, 28

Young, Ex parte, 209 U.S. 123 (1908)... 10, 15, 16

Constitution, statutes, regulations and rules:

U.S. Const. Amend. XI .. ai 10, 14, 15

Adoption Assistance ond Child ‘Welfare Act of

1980, Pub. L. No. 96-272, 94 Stat. 500:

rite

Child Support Enforcement Amendments of 1984,

Pub. L. No. 98-378, 98 Stat. 1305:

preamble, 98 Stat. 1305... Pe areas 5

§ 23(a) (2), 98 Stat. 1329... idenlatiaiai Seinen 4, 22

§ 23(a) (3), 98 Stat. 1329... han 5

§ 23(a) (5), 98 Stat. 1329... sn et 4, 22

§ 23(b) (1), 98 Stat. 1330... ieiaiisinbiieeibaiiabies 22

Federal Question Jurisdictional Amendments Act

of 1980, Pub. L. No. 96-486, 94 Stat. 2369. 13

Food Stamp Act Amendments of 1982, Pub. L. No.

97-253, Tit. I, Subtit. E, § 169, 96 Stat.779 4

Omnibus Budget Reconciliation Act of 1981, Pub.

L. No. 97-35, § 2335, 95 Stat. 863-864 .—=ss—s— ) 4

Omnibus Consolidated Rescissions and Appropria-

tions Act of 1996, Pub. L. No. 104-134, § 504

(a) (7), 110 Stat. 1321-53 . 30

Personal Responsibility and “Work ‘Opportunity

Reconciliation Act of 1996, Pub. L. No. 104-193,

110 Stat. 2105 (to be codified in part at 42

U.S.C. 601 et seq., 651 et seq.) 7

§ 103(a) (1):

110 Stat. 2113 (42 U.S.C. 601(b)) 0. 7,19

Statutes, regulations and rules—Continued : Page

110 Stat. 2114 (42 U.S.C. 602(a) (2)) —..... 7

110 Stat. 2137 (42 U.S.C. 608(a) (7)) ....... 7

110 Stat. 2145 (42 U.S.C. 609(a) (8)) —..... 7, 20

§ 302(a), 110 Stat. 2200 (42 U.S.C. 657(a)

Ee 8, 26

§ 304(a), 110 Stat. 2205 (42 U.S.C. 654(12)).. 8,18

§ 311, 110 Stat. 2205 (42 U.S.C. 654a(e)) —...... 8

§ 312(a), 110 Stat. 2207 (42 U.S.C. 654(27)).. 8

§ 312(b), 110 Stat. 2208:

4B UBC. GEER(B) (4) -..-.-..--20200000-00-0-200000002- 8, 18

BUSS. GEG] (2) ~~ -22-n22020-20200002-.---- 8

§ 313(a), 110 Stat. 2209 (42 U.S.C. 654(28)).. 8

§ 313(b):

110 Stat. 2210 (42 U.S.C. 653a(b)) —......... 22

110 Stat. 2211 (42 U.S.C. 653a(e)) —........ 22

110 Stat. 2211 (42 U.S.C. 653a(g) (1) )...... 8

110 Stat. 2211-2212 (42 U.S.C. 653a(g) ).. 22

§ 314:

110 Stat. 2212-2213 (42 U.S.C. 666(a)

= er 4

110 Stat. 2213-2214 (42 U.S.C. '666(b)).. 5

§ 323, 110 Stat. 2222 (42 U.S.C. 666 (a) (14)).. x

§ 325(a), 110 Stat. 2224:

Se “ 8

8 ELAR r eee x

§ 331(a), 110 Stat. 2227-2230 (42 U.S.C. 666

Re eee ee x

§341(a), 110 Stat. 2231 (42 US. C. 658

EN ee 8

§ 342(a) (3), 110 Stat. 2233 (42 USC. 654

ERE ET IS Se 9

§ 342(b), 110 Stat. 2233-2234:

I Ee x

42 U.3.C. 662 (a) (4) (C) ............................. 9

§ 351:

110 Stat. 2239 (42 U.S.C. 666(a) (10) )... 22

110 Stat. 2239 (42 U.S.C. 666(a) (10)

(A)) ~

Statutes, regulations and rules—Continued : Page

110 Stat. 2240 (42 U.S.C. 666(a) (10)

(C)) .. -

§ 368, 110 Stat. 2251 (42 U.S.C. 666(c) (4)

ee 8

§ 369, 110 Stat. 2251 (42 U.S.C. 666(a) (16) ).. 8

§ 395(d)(1)(D), 110 Stat. 2259 (42 U.S.C.

ET 22

Ee 21

Social Security Act, 42 U.S.C. 301 et seq.:

Title IV-A, 42 U.S.C. 601 et seq.:

42 U.S.C. 602(a) (8) (A) (vi)...................... 26

ee 3

42 U.S.C. 602 (a) (26) (A) 0. 3

ER ee 5, 20

ES See 23

CE FE 5, 6

42 U.S.C. 603 (h) (2) (A)... 6

42 U.S.C. 603 (h) (2) (B) ..........--2-0. 6

42 U.S.C. 603 (h) (3) _.... ilcidaliaitiiacainiiantuiia 5, 23

Title IV-D, 42 U.S.C. 651 et seg. 1,2

Re 17

RT) | 3

ee 3

EC 3

RE ee 3, 5, 23

BT 3

ea a EE a 22

42 U.S.C. 662(g) .........................-.-...-.....6, 7, 20, 23

EE 7, 21, 22

ee — A

EE ee 3

T/L

42 U.S.C. 664(3) seibdesinteiiien iecaiaiee 22

ea te. 3, 18

EEE TS ST AE EE . 6,18

TTT an SF

ee 3

SE ee 22

EC 22

Statutes, regulations and rules—Continued :

PP ONE \

PL EI

OD crectnccrcnccconessenoncqparemmennes

42 U.S.C. 655 (a) (1) (B) .............--..- ;

42 U.S.C. 655 (a) (1) (CO) .o..ncceceecccerecereees

0 Lee

Py |

| ener 18, 21, 22, 23, 2

42 U.S.C. 657 (a) (4) (B) .....---------eecrree

GB UBL, GRU ED nccccnneseccvscccccsesccscssvesceccsereees

ABU BL, GIT BD) ccccecorccccsccsvocsscvecosasscscresrse000+

42 U.S.C. 657 (1D) (1) -..22--cceceeeeeeeerrre ,

RO ee ,

GBT, GG cecccrcccccccenccesecccscnscorscssasscsessesers

42 U.S.C. 666 .......... a 21, 22,

4B U.B.C. COB (8) 22.2n2ccesncenccsnsseoseorsncessenneeesoeee

42 U.S.C. 666 (a) (1) ~.....-----eee rene

42 U.S.C. 666 (a) (1)-(8) 0

42 U.S.C. 666 (a) (3) -.....---------ceceeeeeneeenenreres

42 U.B.C. 666 (8) (4) .2.202.---00ene-cerceeeeneeneenseeee

42 U.S.C. 666 (a) (5) (B) ....

42 U.S.C. 666 (a) (5) (C) re

42 U.S.C. 666 (a) (6) ........--.---cnccenceneereneeenreees

42 U.S.C. 666 (8) (7) .....2--0c--cceccencencernreeerensnee

42 U.S.C. 666 (a) (8) ......-----nc-cevcnecensereeneeeees

42 U.S.C. 666 (a) (10) 00... eeccecceceerceenrnnem

GE. GED ccccvectecccsecscnssncssvsscssscsecsecees :

42 U.S.C. 666 (b) (3) ............... piiatetibaaians

BBL. GBF neces ccccccccccccsccsovsncccsscsscsesees 5, 21, 22,

GG BS. GAVE) cnccccrccsensentescevcescctntnsecsssceseees

42 U.S.C. 668 ........... snciginessanpensnese pinipasenscuietta

Title XI, 42 U.S.C. 1301 et seq.:

Sn on co Bo wo

Laas aaBRaahSaSH

PTS 13, 23, 25

42 U.S.C. 1320a-10 .. sat ae) > F

Social Security henimete of 1950, ch. 809,

Foe FS ener ,

Statutes, regulations and rulee—Continued :

Social Security Amendments of 1967, Pub. L. No.

90-248, 81 Stat. 821:

§ 201 (a) (1), 81 Stat. 877-879...

§ 211(a), 81 Stat. 896-897...

Social Security Disability Amendments of 1980,

Pub. L. No. 96-265, 94 Stat. 441:

$§ 402-405, 94 Stat. 462-465

§ 408, 94 Stat. 468-469...

Social Services Amendments of 1974, Pub. L. No.

93-647, 88 Stat. 2337:

§ 101, 88 Stat. 2887-2861...

§ 101 (a), 88 Stat. 2355-2866... wa

§ 101(c) (5) (C), 88 Stat. 2360

§ 101(c) (6) (A), 88 Stat.2360...

Tax Equity and Fiscal Responsibility Act of 1982,

Pub. L. No. 97-248, §§ 171-176, 96 Stat. 401-404.

Unemployment Compensation Amendments of

1976, Pub. L. No. 94-566, § 508, 90 Stat. 2689.

26 U.S.C. 6402

A leet Sl NT en bale

42 U.S.C. 1988 ..............

42 U.S.C. 1997e

eed ed LL EE

Ariz. Rev. Stat. Ann:

$§ 12-820 to 12-826 (1992 & Supp. 1994)

§ 12-820.01(A) (2) (1992)

45 C.F.R.:

Pt. 74:

Bestion T4.BB (i) (1) ......ccccccccooceeccceoceeee--.---.

a sah ,

ied en ee

aed Ee

i dd ee ee

Pt. 232:

Pt. 301 ....

& & — =

Page

~ >

> RO © HS

erika 8 w

Regulations and rules—Continued : Page

FO BD cnieunithienditintiintentitiatiainipsimneininens 7, 21, 22

Section 308.6 (c) (4) ................-.ccc0sccececeseeess 27

EE Se ee cee oe 26

Pt. 305:

ee ccnstitinltintiittcenictintbicniiaitatiltcadabiii 6

Fed. R. Civ. P. 23 ea Oa ae Te Ee 30

8 8 BS eee ee 11

Miscellaneous :

Child Support and the Work Bonus: Hearing Be-

fore the Senate Comm. on Finance, 93d Cong.,

ee ae eT 24

pi Le BF eee 18

129 Cong. Rec. 33,087 (1988) .................................... 30

180 Cong. Rec. 9843 (1984) ...................en.cccccceeeeeeee ee. 19

140 Cong. Rec. $15,024 (daily ed. Oct. 8, 1994) ......... 13

142 Cong. Rec. H7759 (daily ed. July 17, 1996) ........ 14

49 Fed. Reg. 86,778 (1964) .........................cc00...-e..... 24

50 Fed. Reg. 19,628 (1965) ........................................... 24

54 Fed. Reg. 15,877-15,878 (1989) .........- 7

59 Fed. Reg. 66,212 (1994) ......... nonce eeececcceeeee 23

HHS, Child Support Enforcement: FY 1995 Pre-

liminary Data Report (May 1996) ...................... 29

HHS, Child Support Enforcement: Nineteenth

Annual Report to Congress (1994) ........... 1-2, 14, 19, 29

H.R. 4, 104th Cong., Ist Sess. (1995)... 7,19

H.R. Conf. Rep. No. 761, 103d Cong., 2d Sess.

ee eee eee ee a 13

H.R. Rep. No. 527, 98th Cong., Ist Sess. (1983) _...... 4,19

H.R. Rep. No. 111, 103d Cong., Ist Sess. (1993) _..... 7

H.R. Rep. No. 651, 104th Cong., 2d Sess. (1996)... 15, 20

S. Rep. No. 1856, 938d Cong., 2d Sess. (1974) _...... 2, 3, 18,

19, 23

S. Rep. No. 827, 96th Cong., 2d Sess. (1980) _.......... 13

S. Rep. No. 387, 98th Cong., 2d Sess. (1984) _.4, 5, 6, 14, 19

S. Rep. No. 377, 100th Cong., 2d Sess. (1988) _......... 6

Staff of House Comm. on Ways and Means, 103d

Cong., 2d Sess., Overview of Entitlement Pro-

grams: 1994 Green Book (Comm. Print 1994)

ng SS a 14

ju the Supreme Court of the United States

OCTOBER TERM, 1996

No. 95-1441

LinDA J. BLESSING, DIRECTOR, ARIZONA

DEPARTMENT OF ECONOMIC SECURITY, PETITIONER

Vv.

CATHY FREESTONE, ETC., ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

Through Title IV-D of the Social Security Act, 42

U.S.C. 651 et seq., Congress has made the needs of chil-

dren and families for vigorous and effective child s

enforcement a national priority. Title IV-D, which is ad-

ministered by the Secretary of Health and Human Serv-

ices, is one of the largest cooperative federal-state pro-

grams. More than 19 million people received child sup-

port services under Title IV-D in FY 1995, and the United

States paid the States in excess of $2.0 billion for those

services. The Title IV-D program has located millions

of absent parents and helped hundreds of thousands of

children identify their fathers. The nearly $40 billion in

child support collected since 1990 alone has resulted in

hundreds of thousands of families avoiding or leaving the

welfare rolls, thereby reducing the human and financial

toll of welfare dependence. See generally HHS, Child

Support Enforcement: Nineteenth Annual Report to Con-

(1)

gress 2, 29-45 (1994). The United States has a strong

interest in ensuring that the duties States voluntarily as-

sume under Title IV-D are enforced in a manner that

protects the rights of needy children and their parents,

and at the same time avoids interference with federal over-

sight or with those areas of Title IV-D administration that

Congress left to state discretion.

STATEMENT

1. Congress first required States to undertake child

support enforcement efforts as a condition of receiving

federal funds in 1950, under the Aid to Families with

Dependent Children (AFDC) program. Ch. 809, § 321

(b), 64 Stat. 550. In 1968, Congress required States par-

ticipating in AFDC to create an organizational unit for

establishing paternity and collecting child support; enter

into cooperative agreements with local officials to accom-

plish those goals and identify missing parents; and coop-

erate with other States in locating parents and enforcing

support orders. Pub. L. No. 90-248, §§ 201(a)(1),

211(a), 81 Stat. 877-879, 896-897.

2. Congress’s frustration with the lack of progress in

child support enforcement culminated in the passage, in

1975, of Title IV-D of the Social Security Act, 42 U.S.C.

651 et seq. Pub. L. No. 93-647, § 101, 88 Stat. 2337-

2361 (1975 Act); see also S. Rep. No. 1356, 93d Cong.,

2d Sess. 42-44 (1974). Congress concluded that “chil-

dren have the right to receive support from their fathers,”

and that Title IV-D would “help children attain this right,

including the right to have their fathers identified so that

support can be obtained.” S. Rep. No. 1356, supra, at

42. The 1975 Act envisioned “a far more active role on

the part of the Federal Government” in monitoring state

programs and directly assisting the States’ enforcement

of children’s rights. Jd. at 2.

The 1975 Act required States participating in AFDC

to “have in effect a plan approved under [Title IV-D] and

operate a child support program in conformity with such

plan.” § 101(c)(5)(C), 88 Stat. 2360. Each State must

provide services to locate noncustodial parents and estab-

lish the paternity of and secure support for children re-

ceiving AFDC benefits. 42 U.S.C. 654(4) and (8)."

AFDC recipients must assign their support rights to the

State and cooperate in enforcement efforts. 42 U.S.C.

602(a)(26).* Amounts recovered generally are retained

by the State to reimburse it and the federal government

for AFDC assistance provided to the family. 42 U.S.C.

657(a)-(b). Congress required States to provide services

to non-AFDC families as well, 42 U.S.C. 654(6), al-

though those families are not required to assign their sup-

- — oo 302.33(e), and any child support

te co must be paid to the family, S.C.

657(a)(4)(B). - i ate

Congress agreed to pay 75% of the States’ administra-

tive costs under Title IV-D. 1975 Act, § 101(a), 88

Stat. 2355-2356. Congress also provided incentive pay-

ments for successful collection efforts. 42 U.S.C. 658.

The 1975 Act directed the Secretary to establish standards

for state programs in locating absent parents, establishing

paternity, and obtaining child support “as [sJhe determines

to be necessary to assure that such programs will be ef-

fective,” and to set organizational and staffing require-

ments for state child support offices. 42 U.S.C. 652(a)(1)-

(2); see S. Rep. No. 1356, supra, at 46-47. The 1975

Act also established a federal Parent Locator Service util-

izing federal and state records. 42 U.S.C. 652(a)(9),

653. The Secretary was charged with annually approving

and auditing state programs. 42 U.S.C. 652(a)(3)-(4).

If a State’s program was found to be deficient, its federal

Title ITV-A (primarily AFDC) allotment was to be re-

1 Unless otherwise indicated, references to

Code are to the 1994 edition, which predates Rey Baers bene

Pog and Work Opportunity Reconciliation Act of 1996, discussed

* Once assigned, the support obligation is owed to

and ie collectible under all applicable state processes. = Uae

656(a)(1). The custodial parent retains the right to enforce the

obligation, although any payments obtained must be turned over to

the State to the extent of AFDC payments received. 42 U.S.C.

602 (a) (26) (A) ; 45 C.F.R. 232.12 (b) (4).

duced by 5%. 1975 Act, § 101(c)(6)(A), 88 Stat.

2360.*

3. By the mid-1980s, more than $10.8 billion in child

support had been collected under Title [TV-D, annual col-

lections had nearly quadrupled, and state and local reve-

nues had grown by more than $300 million. S. Rep. No.

387, 98th Cong., 2d Sess. 11 (1984). Nevertheless, Con-

gress found that there remained “a critical lack of child

support enforcement,” which had “a critical impact on the

health and welfare of the children of the Nation.” Pub. L.

No. 98-378, § 23(a)(2), (5), 98 Stat. 1329. Congress

was concerned that, by measuring their success “solely in

terms of welfare savings,” many States were disinclined

to assist non-AFDC families. H.R. Rep. No. 527, 98th

Cong., Ist Sess. 29 (1983). Congress amended Title

IV-D in 1984 to ensure, “through mandatory income with-

holding, incentive payments to States, and other improve-

ments in the child support enforcement program, that all

children in the United States who are in need of assistance

in securing financial support from their parents will re-

ceive such assistance regardless of their circumstances.”

5In 1976, Congress required state employment agencies to pro-

vide the addresses of absent parents to the State’s child support

agency. Pub. L. No. 94-566, § 508, 90 Stat. 2689. In 1980, Con-

gress (i) funded 90% of state costs of developing automated in-

formation systems; (ii) expanded incentive payments to the States;

(iii) funded enforcement activities of certain state court personnel ;

(iv) gave States access to wage information held by the federal

government and state employment offices; and (v) expanded the

authority of the Internal Revenue Service (IRS) to collect child

support arrearages. Pub. L. No. 96-265, §§ 402-405, 408, 94 Stat.

462-465, 468-469; Pub. L. No. 96-272, §§ 301, 307, 94 Stat. 527, 531.

In 1981, Congress authorized the IRS to withhold tax refunds of

persons delinquent in their child support obligations, 42 U.S.C. 664;

26 U.S.C. 6402, and directed States to withhold a portion of unem-

ployment benefits from such parents. Pub. L. No. 97-35, § 2335,

95 Stat. 863-864. Amendments in 1982 reduced federal funding to

70%, permitted collections from military personnel, and provided

for disclosure of information obtained under the food stamp pro-

gram. Pub. L. No. 97-248, §§ 171-176, 96 Stat. 401-404; Pub. L.

No. 97-258, § 169, 96 Stat. 779.

I Nk.

Pub. L. No. 98-378, preamble, 98 Stat. 1305; see also

id. § 23(a) (3), 98 Stat. 1329.

The 1984 amendments required States to adopt laws

and procedures providing for (i) mandatory wage with-

holding; (ii) expedited processes for obtaining and en-

forcing support orders; (iii) state income tax refund inter-

cepts; (iv) property liens for overdue support; (v) estab-

lishment of paternity any time prior to a child’s eighteenth

birthday; (vi) posting of bonds to secure payment of over-

due support; (vii) reporting overdue support to consumer

credit agencies; and (viii) withholding overdue support

from wages without further judicial order. 42 U.S.C.

666(a)(1)-(8), (b); see S. Rep. No. 387, supra, at 26-

30. States are required to have those laws “in effect” and

to “implement the[ir] procedures,” and to establish state-

wide guidelines for child support amounts. 42 U.S.C.

654(20), 667.*

At the same time, Congress reduced the frequency and

inflexibility of the Secretary’s administrative oversight.°

With the exception of States under penalty, audits were

made triennial, 42 U.S.C. 652(a)(4), and Title IV-A

penalties were based on a State’s failure to attain “sub-

stantial compliance,” rather than “full compliance,” with

Title IV-D requirements, 42 U.S.C. 603(h)(1); see also

42 U.S.C. 602(a)(27). A State is in “substantial com-

pliance” if “the Secretary determines that any noncom-

pliance * * * is of a technical nature which does not ad-

versely affect the performance of the child support en-

forcement program.” 42 U.S.C. 603(h)(3).* Congress

* Because interstate cases present “one of the most difficult areas

of child support enforcement,” 8. Rep. No. 387, supra, at 34, Con-

gress provided grants for state programs that improve interstate

enforcement. 42 U.S.C. 655(e) ; see also 42 U.S.C. 658(d) (incen-

tive credits for both States in interstate collections).

* Congress also reduced federal funding to a final floor of 66%,

which is the current level for most administrative costs. 42 U.S.C.

655(a)(2). Matching funds at the 90% level were retained for

automating data processing systems. 42 U.S.C. 655(a) (1) (B).

*The Secretary has interpreted “substantial compliance” as:

(A) full compliance with requirements that services be offered

replaced the flat 5% penalty with a system of graduated

penalties, ranging from 1% to 5% of total IV-A funds,

and allowed States to avoid penalties by timely submis-

sion and successful implementation of corrective plans.

42 U.S.C. 603(h)(1), (2)(A) and (B).” Those changes

shifted the focus of federal oversight to overall program-

matic performance. S. Rep. No. 387, supra, at 32. In

so doing, Congress was “not abandoning the[] require-

ments of existing law but rather expect[ed] them to be

more fully carried out.” /d. at 33.

4. In 1988, Congress again amended Title IV-D to

increase state duties and performance levels. S. Rep. No.

377, 100th Cong., 2d Sess. 8 (1988). States were re-

quired to implement “new and more stringent provisions

for wage withholding” and periodically review and ad-

just individual support awards. Id. at 15; 42 U.S.C.

666(a)(8) and (10), (b)(3). Congress directed the

States to adopt automated case tracking systems and con-

tinued 90% federal funding for them. 42 U.S.C. 654(24).

States also were required to inform AFDC families

monthly of collections on their behalf, 42 U.S.C. 654(5),

and to adhere to state guidelines for setting child support

awards, 42 U.S.C. 667(b). Congress directed the Secre-

tary to adopt regulations setting specific time limits for

States to accept and respond to requests for services, lo-

cate absent parents, establish paternity, initiate child sup-

port proceedings, and collect and distribute child support,

statewide and that certain recipients be notified monthly of the

support collected, as well as with reporting, record-keeping, and

accounting rules; (B) 90% compliance-with case opening and case

closure criteria; and (C) 75% compliance for most remaining pro-

gram functions. 45 C.F.R. 305.20. Since 1988, “substantial com-

pliance” has also required States to succeed in establishing pater-

nity in a specified percentage of cases. 42 U.S.C. 652(g).

7 A State’s failure to submit a plan that conforms to Title IV-D’s

state plan requirements can also result in denial of federal funds

under Title IV-D itself. See 45 C.F.R. 301.13; see also 45 C.F.R.

74.22(h) (1), 74.61, 74.62; 45 C.F.R. Pt. 74, App. J.

42 U.S.C. 652(h)-(i)." Finally, Congress set federal

standards for establishing paternity that, if not met, would

result in a reduction in AFDC funds. 42 U.S.C. 652(g).”

5. a. On August 22, 1996, the President approved the

Personal Responsibility and Work Opportunity Reconcil-

iation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105

(1996 Act). As relevant here, the 1996 Act transformed

AFDC into a block-grant program. Recipients now face

a five-year cap on benefits, and Title IV-A does not “en-

title any individual or family to assistance under any State

program funded under this part.” /d. § 103(a)(1), 110

Stat. 2113, 2137 (to be codified at 42 U.S.C. 601(b),

608(a)(7)). Similar language regarding the Title IV-D

program was proposed (see H.R. 4, 104th Cong., Ist Sess.

§ 302 (1995)), but not enacted. The requirement under

Title IV-A that States operate their child support pro-

grams in “substantial compliance” with Title IV-D has

been replaced; States now must certify that they “will

operate a child support enforcement program under the

State plan approved under part D.” 1996 Act,

§ 103(a)(1), 110 Stat. 2114 (to be codified at 42 U.S.C.

602(a)(2)). But the 1996 Act retained the framework

of graduated penalties under Title IV-A for failure to

comply substantially with Title IV-D’s requirements. /d.

at 2145 (to be codified at 42 U.S.C. 609(a)(8)).

b. Although the 1996 Act transformed numerous wel-

fare programs into block grants, Congress left Title IV-D

intact and, indeed, increased state responsibilities under

* See 45 C.F.R. Pt. 303. The Secretary has consulted extensively

with state child support enforcement officials in establishing these

standards and timeframes. See 54 Fed. Reg. 15,877-15,878 (1989).

* See also 42 U.S.C. 666(a) (5) (B) (genetic testing made avail-

able in contested paternity cases) ; 42 U.S.C. 655 (a) (1) (C) (90%

federal funding for paternity tests). In 1998, Congress increased

the percentage of children for whom the State must establish

paternity annually. 42 U.S.C. 652(g). Congress also mandated that

the program. The 1996 Act amended the rules governing

distribution of collections to give priority to families who

have left the welfare rolls. § 302(a), 110 Stat. 2200 (to

be codified at 42 U.S.C. 657(a)(2)). Each State must

establish a directory of new hires, a central registry of

ment units. /d. §§ 311, 312(a), 313(a), 110 Stat. 2205,

2207, 2209 (to be codified at 42 U.S.C. 654(27) and

(28), 654a(e)). Congress set strict time limits for States

to distribute support collections, notify employers to with-

hold child support, and take administrative enforcement

action in interstate cases. Jd. §§ 312(b), 313(b), 323,

110 Stat. 2208, 2211, 2222 (to be codified at 42 U.S.C.

653a(g)(1), 654b(c) (1), 666(a)(14)).

The 1996 Act directed States to adopt more stream-

lined processes for establishing paternity and to employ

more rigorous child support enforcement techniques, such

as automatic liens and suspension of driver’s and pro-

fessional licenses. §§ 314, 331(a), 368, 369, 110 Stat.

2212-2214, 2227-2230, 2251 (to be codified at 42 U.S.C.

666(a)(1), (4)(A), (5) and (16), (b)). In addition,

States must adopt expedited procedures for (i) genetic

testing; (ii) access to financial information and govern-

ment records; (iii) mandatory income withholding; (iv)

securing assets; and (v) increasing monthly payments in

cases of arrearages. Id. § 325(a), 110 Stat. 2224 (to be

codified at 42 U.S.C. 666(a)(2) and (c)). Support or-

ders must be reviewed and updated upon request every

three years, and States must give families notice of rele-

vant proceedings and copies of orders, notice of right to

seek review, and, upon request, information on the status

of payments. /d. §§ 304(a), 312(b), 351, 110 Stat.

2205, 2208, 2239, 2240 (to be codified at 42 U.S.C.

654(12), 654b(b) (4), 666(a)(10)(A) and (C)).

c. The 1996 Act overhauled audit procedures and di-

rected the Secretary to establish a new performance-based

incentive and penalty program. §§ 341(a), 342(b), 110

Stat. 2231, 2233-2234 (to be codified at 42 U.S.C.

652(a)(4), 658 note). A State now must submit an-

nual reports documenting that its program is “operated

in compliance with” Title IV-D, and the State’s review

must employ standards and procedures set by the Secre-

tary. Id. § 342(a)(3), 110 Stat. 2233 (to be codified

at 42 U.S.C. 654(15)). The Secretary’s triennial audit

must assess the “completeness, reliability, and security of

the data and the accuracy of the [State's] reporting

tems”; “the adequacy of financial management”: and

other purposes as the Secretary may find necessary.” Id.

§ 342(b), 110 Stat. 2233-2234 (to be codified at 42

U.S.C. 652(a)(4)(C)).”

6. Arizona has elected to participate in the AFDC and

Title IV-D programs and has submitted plans assuring

that it will operate a child support enforcement program

in accordance with Title IV-D’s requirements. Based on

$1.4 billion in AFDC funds and more than $222 million

in Title IV-D funds from the federal government since

1976.

SUMMARY OF ARGUMENT

A. This Court should not reconsider Maine v. Thi-

boutot, 448 U.S. 1 (1980). Principles of stare decisis

counsel strongly against overruling a 16-year-old precedent

and developed a nationwide child support enforcement

infrastructure. The growing interstate character of the

child support problem and the need for uniform enforce-

ment call for a substantial federal role. The 1996 Act,

Title IV-D, however, Congress chose to strengthen the

Standards governing state programs. Enforcement of those

standards in an action against state officials under 42

U.S.C. 1983 is fully consistent with Ex parte Young, 209

U.S. 123 (1908), and does not contravene the Eleventh

Amendment.

C. Title I[V-D’s text, structure, and legislative history

establish that it creates enforceable rights in the individ-

uals who seek child support services from a State. Its

primary purpose is to provide children with much-needed

child support services, which give them an opportunity to

establish familial relationships with both parents and

avoid a childhood pervaded by economic hardship. In

addition, a number of provisions of Title IV-D and its

implementing regulations speak in specific and mandatory

terms that are well within the competence of courts to

enforce.

Petitioner argues that Title [V-D’s “substantial compli-

ance” floor for avoiding administrative penalties enables

a State to ignore 25% of the children and families seeking

its services. But Congress’s employment of a flexible

measure of programmatic performance to undergird the

funding relationship between governments does not mean

that Congress no longer expected full adherence to Title

IV-D’s requirements in a State’s furnishing of child sup-

port services to particular beneficiaries. Petitioner’s claim

that Congress should have warned that a Section 1983

action would be available is also without merit, because

Section 1983’s text, reinforced by recent Acts of Congress

and this Court's precedents, provided ample notice.

Not all of Title ITV-D’s provisions, however, are judi-

cially enforceable to the same degree. Congress preserved

State discretion in some areas, such as selecting appro-

priate collection tools and initiating judicial proceedings.

}

{

TITLE IV-D CREATES INDIVIDUAL RIGHTS THAT

MAY BE ENFORCED IN AN ACTION UNDER 42

U.S.C. 1983

A. Maine vy. Thiboutot Should Not Be Reconsidered

Section 1983 creates a private cause of action againxst

any person who, under color of state law, deprives anotl.er

“of any rights, privileges, or immunities secured by the

Constitution and laws” of the United States. 42 U.S.C.

1983. This Court held in Maine v. Thiboutot, 448 U.S.

1 (1980), that Section 1983 authorizes suits by private

individuals against state actors who violate rights created

by federal statutes, specifically including the Social Secu-

rity Act. /d. at 4-8. Petitioner asks (Br. 32) this Court

laws that may be enforced under Section 1983. There is

no basis for doing so.”’

Pr.nciples of stare decisis counsel strongly against un-

ravehug more than a decade and a half of precedent.

“{S|tare decisis promotes the evenhanded, predictable,

and consistent development of legal principles, fosters re-

1 Petitioner did not present this issue in her petition for

certiorari. Sup. Ct. R. 14.1(a). The petition did not mention

liance on judicial decisions, and contributes to the actual

and perceived integrity of the judicial process.” United

States v. International Business Machines Corp., 116 §.

Ct. 1793, 1801 (1996) (internal quotation marks

omitted). Both the doctrine and its underlying purposes

apply with “special force” to issues of Statutory construc-

tion. Patterson v. McLean Credit Union, 491 U.S. 164,

Struing a federal statute only if (i) intervening law has

nd the “ on —

Court is provided “compelling evidence bearing on Con-

gress’ original intent.” Neal, 116 S. Ct. at 769. None of

those “special justification[s}” is present here. Arizona

Vv. Rumsey, 467 U.S. 203, 212 (1984). Quite the oppo-

Site is true.

Intervening law has repeatedly followed and reaffirmed

Thiboutot. Just two Terms ago, this Court unanimously

reconfirmed and applied Thiboutot’s holding in Livadas

Vv. Bradshaw, 114 S. Ct. 2068, 2083 (1994). No Justice

has suggested that Thiboutot should be reexamined, and

Thiboutot has come to occupy an active and vital position

in the law, as petitioner recognizes. See Pet. Br. App.

ok Petitioner offers no new or compelling evidence of

Congress's original intent to suggest that Section 1983 no

longer “means what it says” (Thiboutot, 448 U.S. at 4).

%@ Petitioner's suggestion (Br. 81) that Thiboutot is “in conflict”

with precedent concerning implied rights of action ignores the

difference between the two inquiries:

(The implied cause of action inquiry) reflects a concern,

grounded in separation of powers, that Congress rather than

the courts controls the availability of remedies for violations

ity

federal to the extent they were able to prior

* " © Suter v. Artist M.”); 140 Cong. Rec. $15,024

(daily ed. Oct. 8, 1994) (Sen. Rockefeller).* This

Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 n.9 (1990) (cita-

tions omitted). Indeed, it would be inconsistent with the separation

of powers to require that courts themselves find an implied right

™ Section 1820a-2 (like Section 1820a-10) provides:

In an action brought to enforce a provision of this chapter,

such provision is not to be deemed unenforceable because of

its inclusion in a section of this chapter requiring a State plan

or specifying the required contents of a State plan. This sec-

overturning any such grounds

—

Court’s pre-Suter precedents therefore must continue to

govern the availability of suits under Section 1983 to en-

force provisions of the Social Security Act.

B. Private Enforcement Comports With Principles Of

Federalism And The Eleventh Amendment

1. Petitioner’s invocation of “principle[s] of federal-

ism” (Br. 24) to bar recognition of a Section 1983 ac-

tion must be placed in context. Title IV-D is one of the

most generous federal spending programs in existence,

financing from 66% to 90% of the States’ child support

enforcement efforts. Indeed, most States profit from their

Title IV-D programs.” This case, therefore, is primarily

about how federal money is spent. “Requiring States to

honor the obligations voluntarily assumed as a condition

of federal funding * * * simply does not intrude on their

sovereignty.” Bell v. New Jersey, 461 U.S. 773, 790

(1983).

Child support enforcement, moreover, is not an

area of purely local concern. Interstate cases present “one

of the most difficult areas of child support enforcement.”

S. Rep. No. 387, supra, at 34. The mobility of absent

parents makes cooperation among States and uniform

national enforcement standards of critical importance.

See, e.g., id. at 27; 142 Cong. Rec. H7759 (daily ed.

July 17, 1996) (Rep. Roukema) (noting “absolute re-

quirement for interstate enforcement of child support,

because the current, State-based system is only as good

as its weakest link”) .**

In 1994, States realized $484 million in savings, at a cost to

the federal government of nearly $1 billion. See Nineteenth Annual

Report 77-78; Staff of House Comm. on Ways and Means, 103d

Cong., 2d Sess., Overview of Entitlement Programs: 1994 Green

Book 494-499 (Comm. Print 1994) (WMCP:103-27).

#¢ This case thus stands in sharp contrast to Suter, in which the

Secretary, consistent with congressional intent, rejected national

standards and opted to permit States substantial flexibility to tailor

their efforts to the needs of each case. 508 U.S. at 360-363.

Finally, the administration of welfare programs is an

area in which Congress itself has been responsive to the

States’ interests and deferred to state autonomy when it

found that cause appropriate. The 1996 Act vividly

demonstrates that the political process can address state

concerns about excessive regulation, entitlements, un-

funded mandates, and impediments to experimentation.

Congress’s decision in the same Act to carve Title TV-D

Out for more directive treatment reflects a deliberate

determination that the problem of child support in this

Nation can be combatted effectively only through a

closely coordinated, comprehensive, and vigorously en-

forced federal-state program. See H.R. Rep. No. 651,

104th Cong., 2d Sess. 1331 (1996).

2. The Eleventh Amendment bars suits against States,

not against state officers. Almost 90 years ago, this

Court held that the Eleventh Amendment does not bar

suits for injunctive relief against state officers. Ex parte

Young, 209 U.S. 123, 155-157 ( 1908). That decision

has been consistently reaffirmed. See, e.g., Seminole Tribe

of Florida v. Florida, 116 S. Ct. 1114, 1132 (1996);

Will v. Michigan Dep't of State Police, 491 U.S. 58, 71

n.10 (1989); see also Edelman v. Jordan, 415 U.S. 651,

664-668 (1974) (Ex parte Young suit permitted to en-

force provisions of Social Security Act). Respondents

have not named the State of Arizona or one of its

agencies as a defendant in this action. The suit is brought

against a state official seeking only injunctive and declar-

atory relief. The suit thus falls squarely within the tradi-

tional boundaries of Ex parte Young and does not trans-

gress the Eleventh Amendment.””

17 Much of petitioner’s argument stems from a concern that

courts should not enforce Title IV-D’s “substantial compliance”

provision, because relief necessarily would operate against the

State, not a state official. As we argue below (see p. 20, infra),

however, the “substantial compliance” provision is not enforceable

under Section 1988. On the other hand, a suit seeking compliance

with a provision of Title IV-D that is enforceable by custodial

Petitioner’s reliance (Br. 26-30) on Seminole Tribe

is misplaced. The Ex parte Young aspect of that deci-

sion was based on statutory construction, not constitu-

tional limitations. 116 S. Ct. at 1133 & n.17. Because

“Congress ha[d] prescribed a detailed remedial scheme

for the enforcement against a State of a Statutorily cre-

ated right,” the Court concluded that Congress did not

intend to permit an Ex parte Young suit. Id. at 1132.

Here, by contrast, there is no “carefully crafted and in-

tricate remedial scheme” that would be rendered “super-

fluous” (id. at 1132, 1133) by permitting private en-

forcement under Section 1983. Unlike the statute at

issue in Seminole Tribe, Title IV-D contains no alter-

native avenue for judicial enforcement by non-federal

parties in a suit directly against the State itself, and pri-

vate suits against state officials under Section 1983 in

appropriate circumstances would complement the Secre-

tary’s programmatic audit and enforcement powers.

C. Title IV-D Creates Judicially Enforceable Rights

Not every violation of a federal statute constitutes the

deprivation of a “right * * * secured by federal law”

within the meaning of Section 1983. Goiden State Tran-

sit Corp. v. City of Los Angeles, 493 US. 103, 106

(1989). The statute in question must create judicially

enforceable rights. Ibid.; see also Wilder v. Virginia

Hosp. Ass'n, 496 U.S. 498, 509 (1990); Pennhurst

State Sch. & Hosp. v. Halderman, 451 US. 1, 15-30

(1981). A federal statute creates an enforceable “right”

if (i) Congress intended the provision in question to

benefit the putative plaintiff; (ii) the provision is binding

and mandatory on the Stetes, rather than precatory; and

(iii) the right is not beyond the competence of the judi-

ciary to enforce. Wilder, 496 U.S. at 509: Golden State,

parents and children will necessitate nothing more than the typical

Ex parte Young relief: an injunction directing agency officials to

perform specific duties that are spelled out in the Act and regula-

tions.

493 U.S. at 106. All three factors weigh in favor of

finding enforceable rights under Title IV-D."*

1. Needy Children And Their Custodial Parents Are

Title 1V-D’s Intended Beneficiaries

Title IV-D’s plain language identifies children and cus-

todial parents in need of support services as the intended

beneficiaries. Congress enacted the program “[fjor the

purpose of enforcing the support obligations owed by

absent parents to their children and the spouse * * *,

locating absent parents, establishing paternity, obtaining

child and spousal support, and assuring that assistance

in obtaining support will be available under this part to

all children.” 42 U.S.C. 651. Title IV-D offers free

(or highly subsidized) child Support services to all per-

sons in need of such assistance,” and individuals have a

right to receive those services regardless of whether they

Comm’r of Human Servs., 7 F.8d 258, 264-268 (1st Cir. 1998) ;

Carelli v. Howser, 923 F.2d 1208, 1210-1212 (6th Cir. 1991) ; King

Vv. Bradley, 829 F. Supp. 989, 992-995 (N.D. Ill. 1993) ; Behunin vy.

Conn. 1987) ; Davis y. McClaran, 909 S.W.2d 412, 416-417, 419-420

(Tenn. 1995), cert. denied, 116 S. Ct. 1870 (1996) ; see also Wehunt

Vv. Ledbetter, 875 F.2d 1558, 1568-1577 (11th Cir. 1989) (Clark, J.,

dissenting), cert. denied, 494 U.S. 1027 (1990). But see Wehunt,

875 F.2d at 1565-1566; Mason v. Bradley, 789 F. Supp. 273, 276-277

(N.D. Ill. 1992); Oliphant v. Bradley, No. 91 C 3056, 1992 WL

153637, at *5-*7 (N.D. Ill. Feb. 20, 1992).

** The application fee charged non-AFDC families is nominal and

often paid by the State. 42 U.S.C. 654(6); 45 C.F.R. 302.88. Ac-

cording to its state plan, Arizona charges a $1 fee, which the State

pays, and does not recoup collection coats from the family.

will ultimately prove beneficial.” Thus, the rights se-

cured by Title IV-D are similar to a statutory right to

educational or medical services, which individuals may

receive even if they may not actually learn or enjoy better

health as a result. See, e.g., Smith v. Robinson, 468

U.S. 992, 1010 (1984). The right to child support

services has recently taken on added importance be-

cause the 1996 Act’s five-year cap on welfare benefits

makes the opportunity for families to secure alternative

income sources particularly valuable.”

The legislative history confirms that Title IV-D is “a

bill of rights for children” and custodial parents. 121

Cong. Rec. 26,541 (1975) (Sen. Nunn). The 1975

Senate Report declared that “children have the right to

receive support from their fathers”; that Title IV-D will

“help children attain this right, including the right to

have their fathers identified so that support can be ob-

tained”; and that Title IV-D’s vigorous implementation

will “deter[] [parents] from deserting their families to

welfare and children will be spared the effects of family

breakup.” S. Rep. No. 1356, supra, at 42. The 1984

amendments reaffirmed Congress's commitment to chil-

* Many of Title IV-D’s provisions speak in terms of state obliga-

tions running to individuals. See, ¢.g., 42 U.S.C. 654(4) (“State

will” provide paternity services to “each child”), 654(5) (individual

notification and right to request review of order), 654(6) (child

Support and paternity services available to any individual),

657 (outlining distribution of collections to families); 1996 Act,

§§ 304(a), 312(b), 110 Stat. 2205, 2208 (to be codified at 42 U.S.C.

654 (12), 654b(b) (4)) (right of “individuals” to notice of proceed-

ings and information about support collected) .

*1 Petitioner’s reliance (Br. 16-17) on Linda R.S. vy. Richard

D., 410 U.S. 614 (1978), is misplaced. Respondents do not seek to

compel state officials to bring a criminal prosecution or civil action,

and they do not rely on a non-statutory interest in child support

services. Respondents instead seek to enforce a federal statutory

right to services due from the State, even if those services may not,

in turn, succeed in obtaining support payments. Cf. id. at 617 n.8

(“Congress may enact statutes creating legal rights, the invasion

of which creates standing, even though no injury would exist with-

out the statute.”’).

dren and their custodial parents. H.R. Rep. No. 527,

supra, at 29 (Title IV-D is “aimed at serving children”);

S. Rep. No. 387, supra, at 6. Finally, while the 1996

Act provides that some provisions of the Social Security

Act do not create individual entitlements (1996 Act,

§ 103(a) (1), 110 Stat. 2113 (to be codified at 42 U.S.C.

601(b)), similar language with respect to Title IV-D

was not enacted. See H.R. 4, supra. “[W]here Congress

includes particular language in one section of a statute

but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” Brown

v. Gardner, 115 S. Ct. 552, 556 (1994); accord John

Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank,

510 U.S. 86, 100 (1993) (“we are mindful that Con-

gress had before it, but failed to pass, just such a

scheme”).

Petitioner is wrong in arguing (Br. 15, 20-21, 26)

that Congress enacted Title IV-D primarily to benefit

the public fisc by reducing welfare expenditures. Noth-

ing in Title IV-D’s stated purpose or text evinces such

a narrow focus, and the requirement that States offer

their services to non-AFDC beneficiaries (who now out-

number AFDC beneficiaries, Nineteenth Annual Report

118) refutes that contention. The 1984 amendments

responded to congressional concern that States measured

their success “solely in terms of welfare savings,” since

“[t]he objectives behind the program are greater than

merely recouping federal and state AFDC expenditures.”

H.R. Rep. No. 527, supra, at 29-30. Congress intended

Title IV-D to effectuate “the larger societal responsibility

for making sure that all children receive financial support

from both their parents to the fullest extent possible.”

Id. at 30; see also S. Rep. No. 1356, supra, at 42 (pro-

tection of children is “more important[]” than potential

financial benefit to government): 130 Cong. Rec. 9843

(1984) (Sen. Dole). The 1996 Act reaffirms that Title

[V-D’s “fundamental goal * * * is to increase the finan-

my Peed of children.” H.R. Rep. No. 651, supra,

at .

Certain of Title IV-D’s provisions, however, do not give

rise to enforceable rights because they do not provide

for specific child support services or confer individual

benefits. See Golden State, 493 U.S. at 106 (plaintiff

must show that “the provision in question” benefits her).

In particular, the requirement that a State Operate its

child support program in “substantial compliance” with

Title IV-D does not create a right running to individuals.

Rather, “substantial compliance” establishes a floor be-

low which a State program’s performance warrants the

assessment of financial penalties by the federal govern-

ment. See, e.g., Albiston vy. Maine Comm'’r of Human

Servs., 7 F.3d 258, 266 (1st Cir. 1993) (substantial

compliance “is not * * * the measure of what the regu-

lations require; it is intended to measure how great a

failure to meet those requirements should cause funds to

be cut off”) (quoting Withrow v. Concannon, 942 F.2d

1385, 1387 (9th Cir. 1991)); cf. Bennett v. Kentucky

Dep't of Educ., 470 U.S. 656, 663-664 (1985). Indeed,

the phrase appears in Title IV-A and IV-D only in penalty

provisions. See 42 U.S.C. 652(g); 1996 Act, § 103

(a)(1), 110 Stat. 2145 (to be codified at 42 U.S.C.

609(a)(8)).~ Because achieving “substantial compli .

ance” on a program-wide basis js not a distinct child

support service for any individual child or parent, the

court of appeals erred in finding that standard enforceable

under Section 1983. See Pet. App. 14a-15a, 18a.

* Prior to the 1996 Act, a reference to “substantial compliance”

was included in the provision obligating States participating in

AFDC to maintain a Title IV-D Program. 42 U.S.C. 602(a) (27),

The 1996 Act reconfirmed that “substantial compliance” is a penalty

trigger by deleting the phrase from Section 602 (a) (27) and con-

fining it to the penalty provision. 1996 Act, § 108 (a) (1), 110 Stat.

2145 (to be codified at 42 U.S.C. 609 (a) (8)).

2. Title 1V-D’s Requirements Are Clear And Manda-

tory

a. Because the enforceable provisions of Title IV-D

are concrete, mandatory, and binding, they provide States

with ample notice of the services they must provide as

a condition of receiving federal funds. See Golden State,

493 U.S. at 106. Title IV-D lists 33 specific requirements

that state plans “must provide” for the State to receive

Title IV-A and IV-D funds. 42 U.S.C. 654 (e.g., pater-

nity establishment, parent locator service, payment dis-

tribution order, collection of overdue child support, in-

terception of federal income tax refunds; services “shall”

be made availab'e to non-Title [V-A families). Title

IV-D also lists 22 laws that States “must have in effect”

(42 U.S.C, 666), and provides that States “shall imple-

ment” the procedures under those laws (42 U.S.C.

654(20)); see also 42 U.S.C. 657 (directing how col-

lections “shall be distributed”), 667 (States “must estab-

lish guidelines” for child support awards). Likewise, Title

IV-D provides for the establishment of time limits within

which States “must accept and respond to” requests for

services and “must distribute” funds collected. 42 U.S.C.

652(h) and (i). Compare Wilder, 496 U.S. at 512 (re-

quirement that state plan “must provide” for specified

manner of payment is mandatory and binding).”

By contrast, when Congress wished only to encourage

state action or to make certain Title IV-D program com-

ponents and services optional, it spoke in non-binding,

precatory terms. See 42 U.S.C. 654(21)(A) (imposi-

tion of fees is “at the option of the State”), 668 (States

“encouraged” to adopt simplified civil process for pater-

nity establishment in contested cases); 1996 Act, § 904,

110 Stat. 2349 (“sense of the Senate” that States should

pursue efforts and adopt pilot programs to collect support

* The regulations speak in equally mandatory terms. See 45

C.F.R. Pts. 302 (listing what States “shall provide”), 303 (listing

services States “must” provide and timeframes that “must” be

met).

from unemployed parents or those who refuse to );

Pub. L. No. 98-378, § 23(a)(2) and (5), (b)(1), 98

Stat. 1329-1330 (“sense of the Congress” that States

should develop measures to enhance enforcement).

ments, how services must operate, timeframes for per-

a nce, — required content of state laws and admin-

istrative procedures, and a specific for

distributions. See 42 U.S.C. 654, re A 667. 1996

Act, §§ 313(b), 351, 110 Stat. 2210, 2211-2212, 2239

(to be codified at 42 U.S.C. 653a(b), (e) and (g),

666(a)(10)). The ’s regulations offer even

more detailed direction, setting precise time limits for

many administrative actions and mapping out specific

administrative responses to a variety of child

service requests and problems. 45 C.F.R. Pts. 302, 303.4

Unlike the statutory provision in Suter, then, Title

IV-D demands far more of States than the mere sub-

mission of a plan that duly recites the obligatory com-

** Petitioner cannot claim a !ack of notice that she

would ha

—_ with the Secretary's regulations. The statutory text setiie

that she will be bound by regulations (e.g., 42 U.S.C. 652 (f)

(h) and (i), 654(3), (9) and (14)), and the State’s plan must

parents, establishing paternity, obtaining support orders, and col-

lecting support payments.” 42 U.S.C. 654(13) (as comets te

1996 Act, §395(d)(1)(D), 110 Stat. 2259). Even without such

provisions, the statutory text is not the sole source of binding obli-

gations enforceable under Section 1983. Suter, 508 U.S. at 359:

Wilder, 496 U.S. at 519; School Bd. of Nassau County v. Arline

480 U.S. 273, 286 n.15 (1987) ; ef. Dennis v. Higgins, 498 U.S. 439

447 n.7 (1991) ; Golden State, 498 U.S. at 112 (enforceable right

implicit in statutory language).

ponents listed in the Act. Cf. Suter, 503 U.S. at 358;

also 42 U.S.C. 1320a-2 and 1320a-10 (directing

application of pre-Suter precedent). Title IV-D specifies

what state child support services and laws shall be “in

effect.” 42 U.S.C. 654, 657, 666, 667. Indeed, in enact-

ing Title IV-D in 1975, Congress expressed frustration

that previous legislation had entailed little more than a

see

hild support program

which complies with the law.” S. Rep. No. 1356, supra,

at 47. Congress made clear that such “paper compliance

would no longer suffice.” [bid.™

Nor can petitioner fairly claim that Title IV-D re-

quires only “substantial compliance” with its terms. As

noted above (see p. 20, supra), “substantial compliance”

governs the assessment of penalties against States, and the

definition of “substantial compliance” alerts States that

it does not express the full measure of their obligations

under the program. 42 U.S.C. 603(h)(3) (contrasting

“substantial compliance” with a State’s “full compliance

with the requirements of this part,” and characterizing

any failure to be in full compliance as “noncompliance” ) ;

see also Bennett, 470 U.S. at 663 (“substantial compli-

ance” provision in education program is prospective pen-

alty that does not limit duty to comply with statutory

conditions); Albiston, 7 F.3d at 266 (“the ‘substantial’

compliance required to avoid administrative penalties

* * * is independent of, and narrower than, the sxate’s

direct obligation to AFDC recipients”) (citing Wilder,

496 U.S. at 514-515 & n.11).”

% Title TV-D leaves no doubt that compliance with the Act’s

specific mandates is a condition of receiving federal funds. 42

U.S.C. 608(h) (federal funds reduced if program fails to comply

substantially), 652(a) (4) and (g) (conditions for Title IV-A and

Title IV-D funds), 655(a)(1); 45 C.F.R. Pt. 301 (same); cf.

Pennhurst, 451 U.S. at 24-25 (no right where States were unaware

that substantive conduct was a condition of federal funding).

2 See also 59 Fed. Reg. 66,212 (1994) (“States are required to

meet all Federal requirements contained in program regulations,

In short, Judge Kleinfeld’s assertion in dissent below

that Title IV-D requires only that States “do a pretty

job” (Pet. App. 37a) is irreconcilable with Congress’s

provision of major federal funding conditioned on com-

Pliance with ever-increasing and detailed statutory direc-

tives. Congress’s enduring commitment to “the country’s

most neglected children” (Child Support and the Work

Bonus: Hearing on S. 1842 & S. 2081 Before the Senate

Comm. on Finance, 93d Cong., Ist Sess. 59 (Sept. 25,

—— demands more than such casual attention to the

c. Petitioner does not dispute the mandatory nature of

Title IV-D's language. Nor does she claim ignorance of

the character and caliber of child support services that

Title IV-D requires. What petitioner claims instead (Br.

7, 15-16) is that she did not know that those

ments would be enforceable under Section 1983. This

Court, however, has required only that the statutory “pro-

vision in question” create binding obligations, Golden

State, 493 U.S. at 106, and that Congress “express clearly

its intent to impose conditions on the grant of federal

funds,” Pennhurst, 451 U.S. at 24. This Court has never

required Congress, in addition, to notify state officials in

advance that a Section 1983 action will be available. Bell,

461 U.S. at 790 n.17 (Pennhurst concerned “imposing an

unexpected condition for compliance,” not “the remedies

available against a noncomplying State”). None of the

Statutes at issue in Wilder, Golden State, Thiboutot, or

other cases in which this Court found an action under

Section 1983 available, contained such language.

In any event, Section 1983’s text and this Court's cases

construing it independently provide sufficient notice.

States, therefore, are fairly charged with the knowledge

that Section 1983 “must be broadly construed,” Golden

whether or not the requirements are included under [the regulatory

definition of ‘substantial compliance’].”); 50 Fed. Reg. 19,623

(1985); 49 Fed. Reg. 36,773 (1984) (“substantial compliance”

should not be “construed to imply that it would be permissible for

States to neglect or exclude certain cases or classes of cases”).

State, 493 U.S. at 105, and that a cause of action under

Section 1983 “remains a generally and presumptively

available remedy for claimed violations of federal law,”

Livadas, 114 S. Ct. at 2083. No serious federalism or

comity benefit would be gained by requiring Congress to

furnish still further and particularized advance notice to

state officials that admittedly clear conditions on federal

funding may be enforced under Section 1983, especially

since such suits would result only in injunctive or declara-

tory relief requiring state officials to comply with those

conditions in the future.

Nor would petitioner's proposal aid in identifying the

“rights” secured by federal law; a provision in Title IV-D

confirming the existence of a Section 1983 action would

leave open that question. Even when a federal law does

create enforceable rights, however, petitioner wants to re-

quire that Congress affirmatively confirm that a Section

1983 action is available. The rule is exactly the opposite:

“[W]e recognize an exception to the general rule that

§ 1983 provides a remedy for violation of federal statu-

tory rights only when Congress has affirmatively with-

drawn the remedy.” Wilder, 496 U.S. at 509 n.9 (em-

phasis added); see also Livadas, 114 S. Ct. at 2083;

Golden State, 493 U.S. at 107 (burden on defendant to

show that Congress has withdrawn Section 1983 remedy).

Congress has not done so here. See pp. 27-30, infra.

Petitioner's proposal is also reminiscent of ‘he failed

argument that an express right of action under Section

1983 is available only if an implied right of action would

be available. Wilder, 496 U.S. at 508 n.9. As Wilder

recognized, Congress has already told the States, through

Section 1983, that a cause of action is available to enforce

rights created by federal law. Congress said it again

(twice) in 1994, with particular reference to enforcement

of the Social Security Act, when it enacted 42 U.S.C.

1320a-2 and 1320a-10. Nothing in principles of federal-

ism suggests that it would be appropriate for this Court

to compel a coordinate Branch to say again what it has

said three times before. Congress, after all, can always

“affirmatively withdraw[] the retaedy.” Wilder, 496 U.S.

at 509 n.9.

3. Some, But Not All, Of Title 1V-D’s Child Support

Enforcement Provisions Are Judicially Enforceable

A statutory right will not be found if its enforcement

“would strain judicial competence.” Livadas, 114 S. Ct.

at 2083. Many of the requirements that Title IV-D im-

poses on state child support services are straightforward

administrative and ministerial tasks of a sort that courts

can and do routinely enforce. For example, the require-

ment that a State pay the support it collects to non-Title

IV-A families, 42 U.S.C. 657, is a specific, direct, and

nondiscretionary duty that courts are fully capable of

enforcing.” Likewise, due to developments in state law

and the automation of government records, the require-

ment that States implement income withholding to en-

force child support orders is mechanical and virtually min-

isterial, at least in cases (like respondents’) in which the

father and his source of income have already been located

and the support order established. 42 U.S.C. 666(a)(1)

and (b); 45 C.F.R. 303.100.

By contrast, Congress has expressly preserved the

States’ discretion with respect to other aspects of child

Support enforcement. For example, although Title IV-D

requires States to have laws that permit the imposition of

liens, state tax refund intercepts, bond requirements, and

references to consumer credit ing agencies to col-

lect overdue support (42 U.S.C. 666(a)(3), (4), (6)

and (7)), States retain discretion to decide in individual

cases whether use of those procedures will “carry out the

purposes of this part or would be otherwise inappropriate

in the circumstances” (42 U.S.C. 666(a)). Because the

propriety of such measures “will obviously vary with the

circumstances of each individual case,” and because Con-

gress left those enforcement decisions to the States, re-

*7 The former requirement that States pay the first $50 of child

support collected each month to an AFDC family fell in the same

category. 42 U.S.C. 602(a) (8) (A) (vi), 657(b) (1), repealed 1996

Act, § 802(a), 110 Stat. 2200 (to be codified at 42 U.S.C. 657(a)(2)).

Spondents would not have a right under Section 1983 to

force a child support agency to take one of those meas-

ures. Suter, 503 U.S. at 360. Similarly, Title IV-D leaves

to tie State the discretion to “determin[e] when it would

be appropriate to take an enforcement action in the fu-

ture” (45 C.F.R. 303.6(c)(4)), preserving the State’s

traditional prosecutorial discretion in deciding which

cases to bring to court. Decisions of that sort are not

readily susceptible to judicial review or enforcement. See

Heckler v. Chaney, 470 U.S. 821, 831-835 (1985); but

cf. Dunlop v. Bachowski, 421 U.S. 560 (1975).

In short, whether Title IV-D creates a judicially en-

forceable right depends upon the nature of the provision

a plaintiff seeks to enforce. Because the court of appeals

did not order particular relief, it is unnecessary for this

Court to parse Title IV-D and its implementing regula-

tions to determine which Provisions create rights and

which do not, and what remedy would be appropriate for

a violation.” This Court may leave it to the district court

on remand to determine which claims are susceptible to

judicial enforcement, based on the facts alleged, an eval-

uation of the applicable statutory and regulatory provi-

sions, and traditional notions of prosecutorial discretion.

D. Congress Has Not Foreclosed Actions Under Section

1983

Even if a federal law creates private rights, judicial en-

forcement is not available under Section 1983 if Con

has specifically foreclosed that avenue of relief. Golden

State, 493 U.S. at 106: see also Robinson, 468 U.S. at

1009-1013; Middlesex County Sewerage Auth. v. Na-

tional Sea Clammers Ass'n, 453 U.S. 1, 13-20 (1981).

This Court, however, “do[es] not lightly conclude that

Congress intended to preclude reliance on § 1983 as a

remedy for the deprivation of a federally secured right.”

Wilder, 496 U.S. at 520 ( quoting Wright v. City of

28 At least some of respondents’ claims involve enforceable rights.

» €g., Complaint {ff 9-23, 29-39, 42-51, 56-61 (J.A. 7-9, 10-11,

12-15) (wage withholding, parent locator searches, commencing

interstate collections, administrative paternity establishment).

Roanoke Redevelopment & Housing Auth., 479 USS. 418,

423-424 (1987)). Here, nothing in Title IV-D's =

legislative history suggests that Congress withdrew a “

tion 1983 remedy, cf. Robinson, 468 U.S. at 1009 ——

tory text and legislative history directed that claims

i * and in-

djudicated through special statutory scheme), and in

dividual beneficiaries have no alternative means of vindi-

cating their own Title IV-D rights. Cf. ibid.; Sea Clam-

S. at 13-18.” .

pF ets triennial audit powers do not displace a

private cause of action under Section 1983. As earene

repeatedly notes, the Secretary audits for “substantia

compliance” on a programmatic basis, rather than to

vindicate the rights of individual applicants for services.

The nature of the Secretary's task, combined with its

infrequency, precludes characterizing it as sufficiently

“comprehensive” to foreclose a Section 1983 action.

Wilder, 496 U.S. at 521-522; Wright, 479 US. at 428

2 courts have divided on whether the Secretary's enforce-

Prats preclude a Section 1988 action. See Howe, 8 at

1263 (not foreclosed) ; Albiston, 7 F.3d at 268-269 (same) ; “yo

829 F. Supp. at 995 (same); Behunin, 744 F. Supp. at a “

(same) ; Davis, 909 S.W.2d at 417-419 (same); see also ~~ =

875 F.2d at 1575-1577 (Clark, J., dissenting) (same); Car ~~

F.2d at 1212-1216 (foreclosed on particular facts) ; Oliphant,

WL 158637, at *9-*10 (foreclosed).

hts

% While beneficiaries could stili enforce their support rig

Po. the absent parent under state law, that would do oo

to vindicate their federal rights under Title IV-D to receive c

support services from the State (just as a plaintiff's ability to _

chase educational or medical services in the marketplace — —

constitute an adequate substitute for a right to educa ~~ S

medical services from the State). Furthermore, the > _

agency has access to enforcement tools and sources of in a 0

that a beneficiary or private attorney would not. Arizona a —

allow suits, under some circumstances, to compel og A -

Ariz. Rev. Stat. Ann. §§ 12-820 to 12-826 (1992 & Supp. 4), -

not for the “exercise of an administrative function Lagaee ew

determination of fundamental ee yk open

event, the av

a a a pag term an action under Section 1983. Cf.

Patsy v. Board of Regents, 457 U.S. 496, 606-507 (1982).

(“generalized powers” “to audit, enforce annual con-

tributions contracts, and cut off federal funds” are “in-

sufficient to indicate a congressional intention to fore-

close § 1983 remedies”). In the Secretary's judgment,

under the principles and limitations set forth above, pri-

vate enforcement of those provisions of Title IV-D that

create enforceable rights would furnish an important

complement to the Secretary’s necessarily macroscopic

oversight of the States, by ensuring that the States carry

out the specific duties to children and custodial parents

that they have voluntarily assumed under Title IV-D,

while at the same time affording protection for the States

in those areas Congress has left to their discretion.”

Albiston, 7 F.3d at 269 (audit “protect[s] important

federal interests * * * [in] overall performance,” while

Section 1983 “safeguards the individual AFDC recip-

ient’s interests in the timely receipt of the mandated fed-

eral benefits”) .™

*! This is not to suggest that States are generally lax in their

enforcement of child support obligations. Under Title IV-D, States

have become more aggressive and successful in establishing orders

and collecting support. See generally HHS, Child Support Enforce-

ment: FY 1995 Preliminary Data Report 18-36 (May 1996).

%2 Concerns voiced by petitioner and her amici that allowing ac-

tions under Section 1983 will open the litigation floodgates and

divert valuable resources are misplaced. The majority of courts

that have addressed the issue have already approved Section 1983

actions (see n.18, supra), without any of those dire predictions

coming to pass. By way of comparison, no such avalanche followed

this Court’s decision in Edelman, which held that individuals can

sue under Section 1983 to force States to comply with federal time

limits in administering the former Aid to the Aged, Blind and

Disabled program. Indeed, some of the most successful and efficient

Title IV-D programs are in States where Section 1983 actions have

been permitted. Nineteenth Annual Report 10-11. Principles of

standing and ripeness may prevent claims concerning inconse-

quential deviations from technical statutory and regulatory require-

ments that resulted in no real injury to persons seeking services.

Cf. Williamson County Regional Planning Comm'n vy. Hamilton Bank

of Johnson City, 473 U.S. 172 (1985). In addition, courts will

always retain their traditional equitable discretion to withhold

Common sense also dictates that the Secretary’s super-

visory audit powers do not foreclose private enforcement.

Congress has spent the last 20 years legislating in ever-

increasing detail the standards for state child support

services, and it has given the States billions of dollars of

the taxpayers’ money expressly conditioned on their com-

pliance with those standards. Given the amount of money

allocated and the breadth and depth of regulation, there

is no basis for believing that Congress, in seeking to pro-

tect the “millions of women and children who are victim-

ized by the nonpayment of child support” (129 Cong.

Rec. 33,037 (1983) (Rep. Biaggi)), intended to rely

entirely on a federal audit that occurs only once every

three years and that (at least by petitioner’s characteriza-

tion) disregards whether fully one-fourth of Title TV-D’s

targeted beneficiaries is entirely neglected by the system.

relief when the departure from federal law is inconsequential or

the state default has been corrected. See Withrow, 942 F.2d at

1388; Haskins v. Stanton, 794 F.2d 1278, 1277 (7th Cir. 1986).

And limitations on class actions under Fed. R. Civ. P. 23 must, of

course, be enforced. See also Pub. L. No. 104-134, § 504(a) (7),

110 Stat. 1821-58 (barring use of funds furn':jied by Legal Services

Corporation to support class actions). Should litigation neverthe-

less prove burdensome, Congress can readily respond by imposing

an exhaustion requirement or otherwise limiting the availability

of Section 1988 in this context. Cf. 42 U.S.C. 1997e (imposing

exhaustion requirement on prisoner suits). Finally, if the specific

requirements and timetables that Congress has enacted and

strengthened under Title IV-D prove unworkable in practice, that

is a problem for Congress to fix by amending Title IV-D itself.

CONCLUSION

The judgment of the court of appeals should be

eg te with provision for remand to the district court

or further proceedings with respect to respondents’

particular claims.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

FRANK W. HUNGER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor General

WILLIAM KANTER

ALFRED MOLLIN

Attorneys

OCTOBER 1996

APPENDIX

Title IV-D of the Social Security Act, 42 U.S.C. 651

et seq., as amended by the Personal Responsibility and

Work Opportunity Reconciliation Act of 1996, Pub. L.

No. 104-193, 110 Stat. 2105, provides *:

TITLE 42—THE PUBLIC HEALTH AND WELFARE

CHAPTER 7—SOCIAL SECURITY

SUBCHAPTER IV—GRANTS TO STATES FOR

AID AND SERVICES TO NEEDY FAMILIES

WITH CHILDREN AND FOR

CHILD-WELFARE SERVICES

Part D—Child Support and Establishment of Paternity

Sec. 651. Authorization of appropriations

For the purpose of enforcing the support obligations

owed by absent noncustodial parents to their children and

the spouse (or former spouse) with whom such children

are living, locating absent noncustodial parents, establish-

ing paternity, obtaining child and spousal support, and

assuring that assistance in obtaining support will be avail-

able under this part to all children (whether or not eli-

gible for aid assistance under a State program funded

under part A of this subchapter) for whom such assistance

is requested, there is hereby authorized to be appropriated

for each fiscal year a sum sufficient to carry out the pur-

poses of this part.

Sec. 652. Duties of Secretary

(a) Establishment of separate organizational unit; duties

The Secietary shall establish, within the Department of

Health and Human Services a separate organizational unit,

1 Statutory language added by the 1996 Act appears in bold

print. Statutory language deleted by the 1996 Act is italicized.

(la)

2a 3a

under the direction of a designee of the Secretary, who

shall report directly to the Secretary and who shall—

vide to the State comments, recommendations

(1) establish such standards for State programs

for locating absent noncustodial parents, establishing

paternity, and obtaining child support and support

for the spouse (or former spouse) with whom the

absent noncustodial parent’s child is living as he de-

termines to be necessary to assure that such pro-

grams will be effective;

(2) establish minimum organizational and staffing

requirements for State units engaged in carrying out

such programs under plans approved under this part;

(3) review and approve State plans for such pro-

grams;

(4) evaluate the implementation of State programs

established pursuant to such plan, conduct such

audits of State programs established under the plan

approved under this part as may be necessary to as-

sure their conformity with the requirements of this

part, and, not less often than once every three years

(or not less often than annually in the case of any

State to which a reduction is being applied under

section 603(h)(1) of this title, or which is operating

under a corrective action plan in accordance with

section 603(h)(2) of this title), conduct a complete

audit of the programs established under such plan in

each State and determine for the purposes of the

penalty provision of section 603(h) of this title

whether the actual operation of such programs in

each State conforms to the requirements of this part;

(4)(A) review data and calculations transmitted

by State agencies pursuant to section 654(15)(B) on

State program accomplishments with respect to per-

formance indicators for purposes of subsection (g)

of this section and section 658;

(B) review annual reports submitted pursuant

to section 654(15)(A) and, as appropriate, pro-

Government auditing standards of the Comp-

troller General of the United States—

(i) at least once every 3 years (or more

frequently, in the case of a

(iii) for such other purposes as the Sec-

retary may find necessary;

(5) assist States in establishing adequate reporting

procedures and maintain records of the operations

of programs established pursuant to this part in each

collecting such amounts;

(7) provide technical assistance to the States to

help them establish effective systems for collecting

child and spousal support and establishing paternity,

(8) receive applications from States for permis-

sion to utilize the courts of the United States to en-

force court orders for support against absent non-

custodial parents and, upon a finding that (A) an-

other State has not undertaker to enforce the court

order of the originating State against the absent non-

custodial parent within a reasonable time, and (B)

that utilization of the Federal courts is the only rea-

sonable method of enforcing such order, approve

such applications;

(9) operate the Federal Parent Locator Service es-

tablished by section 653 of this title; and

(10) not later than three months after the end of

each fiscal year, beginning with the year 1977, sub-

mit to the Congress a full and complete report on all

activities undertaken pursuant to the provisions of

this part, which report shall include, but not be lim-

ited to, the following:

(A) total program costs and collections set

forth in sufficient detail to show the cost to the

States and the Federal Government, the distribu-

tion of collections to families, State and local

governmental units, and the Federal Govern-

ment; and an identification of the financial im-

pact of the provisions of this part; this part,

(B) costs and staff associated with the Office

of Child Support Enforcement;

required under each clause being separately

stated for cases separately stated for cases

where the child is receiving aid to families with

maintenance payments under part E of this

subchapter), cases where the child was formerly

receiving or formerly received such aid such

assistance or payments and the State is continu-

ing to collect support assigned to it under sec-

tion 602(a)(26) or pursuant to section 608

(a)(3) or under section 671(a)(17) or 1912

of this title, and for all other cases under this

part:

(i) the total number of cases in which

a support obligation has been established

in the fiscal year for which the report is

submitted, and the total amount of such

obligations,

(ii) the total number of cases in which

a support obligation has been established,

and the total amount of such obligations,

(iii) the number of cases described in

clause (i) in which support was collected

during such fiscal year, and the total

(iv) the number of cases described in

clause (ii) in which support was collected

during such fiscal year, and the total

amount of such collections; and

for

(v) (vii) the number of child support

cases filed in each State in such fiscal year,

and the amount of the collections made in

each State in such fiscal year, on behalf of

children residing in another State or against

parents residing in another State;

(D) the status of all State plans under this

part as of the end of the fiscal year last ending

before the report is submitted, together with

an explanation of any problems which are de-

laying or preventing approval of State plans

under this part;

(E) data, by State, on the use of the Fed-

eral Parent Locator Service, and the number

of locate requests submitted without the absent

noncustodial parent’s social security account

number;

(F) the number of cases, by State, in which

an applicant for or recipient of aid under a

State plan approved assistance under a State

program funded under part A of this subchap-

ter has refused to cooperate in identifying and

locating the absent noncustodial parent and the

number of cases in which refusal so to cooper-

ate is based on good cause (as determined in

accordance with the standards referred to in

section 602(a)(26)(B)(ii) of this title by the

State ) ;

(G) data, by State, on the use of Federal

courts and on use of the Internal Revenue Serv-

ice for collections, the number of court orders

on which collections were made, the number

of paternity determinations made and the num-

ber of parents located, in sufficient detail to

show the cost and benefits to the States and to

the Federal Government;

(H) the major problems encountered which

have delayed or prevented implementation of

the provisions of this part during the fiscal year

last ending prior to the submission of such

report; and

(1) the amount of administrative costs which

are expended in each functional category of

expenditures, including establishment of pater-

nity; and

(J) compliance, by State, with the standards

established pursuant to subsections (h) and (i).

The information contained in any such report under sub-

paragraph (A) shall specifically include (i) the total

amount of child support payments collected as a result

of services furnished during the fiscal year involved to in-

dividuals under section 654(6) of this title, (ii) the cost

to the States and to the Federal Government of furnishing

such services to those individuals, and (iii) the extent to

which the furnishing of such services was successful in

providing sufficient support to those individuals to assure

that they did not require assistance under the State plan

approved under part A of this subchapter.; and

(11) not later than October 1, 1996, after con-

sulting with the State directors of programs under

this part, promulgate forms to be used by States in

interstate cases for—

(A) collection of child support through in-

(b) Certification of child support obligations to Secre-

tary of the Treasury for collection

The Secretary shall, upon the request of any State hav-

ing in effect a State plan approved under this part, certify

to the Secretary of the Treasury for collection pursuant to

the provisions of section 6305 of the Internal Revenue

Code of 1986 the amount of any child support obligation

(including any support obligation with respect to the

parent who is living with the child and receiving aid under

the State plan approved under part A assistarc. under

the State program funded under part A of this sub-

chapter) which is assigned to such State or is undertaken

to be collected by such State pursuant to section 654(6)

654(4) of this title. No amount may be certified for

collection under this subsection except the amount of

the delinquency under a court or administrative order for

support and upon a showing by the State that such State

has made diligent and reasonable efforts to collect such

amounts utilizing its own collection mechanisms, and

upon an agreement that the State will reimburse the Sec-

retary of the Treasury for any costs involved in making

the collection. All reimbursements shall be credited to

the appropriation accounts which bore all or part of the

costs involved in making the collections. The Secretary

after consultation with the Secretary of the Treasury may,

by regulation, establish criteria for accepting amounts for

collection and for making certification under this sub-

section including imposing such limitations on the ire-

quency of making such certifications under this subsection.

The Secretary of the Treasury shall from time to time

pay to each State for distribution in accordance with the

provisions of section 657 of this title the amount of each

collection made on behalf of such State pursuant to sub-

section (b) of this section.

(d) Child support management information system

(1) Except as provided in paragraph (3), the

Secretary shall not approve the initial and annually

updated advance automated data processing planning

document, referred to in section 654( 16) of this title,

unless he finds that such document, when imple-

mented, will generally carry out the objectives of the

management system referred to in such subsection,

and such document—

(A) provides for the conduct of, and reflects

the results of, requirements analysis studies,

which include consideration of the program

mission, functions, organization, services, con-

straints, and current support, of, in, or relating

to, such system.

(B) contains a description of the proposed

management system referred to in section 655

10a

(a)(1)(B) of this title, including a description

of information flows, input data, and output re-

ports and uses,

quirements to be employed in such manage-

ment system,

(D) describes the projected resource require-

ments for staff and other needs, and the re-

sources available or expected to be available to

meet such requirements,

(E) contains an implementation plan and

backup procedures to handle possible failures,

(F) contains a summary of proposed im-

provement of such management system in terms

of qualitative and quantitative benefits, and

(G) provides such other information as the

Secretary determines under regulation is neces-

sary.

(2)(A) The Secretary shall through the separate

organizational unit established pursuant to subsec-

tion (a) of th's section, on a continuing basis, re-

view, assess, and inspect the planning, design, and

operation of, management information systems re-

ferred to in section 655(a)(1)(B) of this title, with

a view to determining whether, and to what extent,

such systems meet and continue to meet requirements

imposed under paragraph (1) and the conditions

specified under section 654(16) of this title.

(B) If the Secretary finds with respect to

any statewide management information system

referred to in section 655(a)(1)(B) of this

title that there is a failure substantially to com-

ply with criteria, requirements, and other under-

takings, prescribed by the advance automated

data processing planning document theretofore

approved by the Secretary with respect to such

lla

system, then the Secretary shal! suspend his

approval of such document until there is no

longer any such failure of such system to com-

ply with such criteria, requirements, and other

undertakings so prescribed.

(3) The Secretary may waive any requirement of

paragraph (1) or any condition specified under sec-

tion 654(16) of this title with respect to a State if—

(A) the State demonstrates to the satisfac-

tion of the Secretary that the State has an alter-

native system or systems that enable the State,

for purposes of section 603(h) of this title, to

be in substantial compliance with other require-

ments of this part; and

(B) (i) the waiver meets the criteria of para-

graphs (1), (2), and (3) of section /3/5(c)

1315(b) of this title, or

(ii) the State provides assurances to the

Secretary that steps will be taken to other-

wise improve the State’s child support en-

forcement program.

(e) Technical assistance to States

The Secretary shall provide such technical assistance to

States as he determines necessary to assist States to plan,

design, develop, or install and provide for the security

of, the management information systems referred to in

section 655(a)(1)(B) of this title.

(f) Regulations

The Secretary shall issue regulations to require that

State agencies administering the child support enforce-

ment program under this part petition for the inclusion

of medical support as part of any child support order

whenever health care coverage is available to the absent

12a

noncustodial parent at a reasonable cost. Such regula-

tion shall also provide for improved information exchange

between such State agencies and the State agencies admin-

istering the State medicaid programs under subchapter

XIX of this chapter with respect to the availability of

health insurance coverage.

(g) Performance standards for State paternity establish-

ment programs

(1) A State’s program under this part shall be

found, for purposes of section 603(h) of this title,

not to have complied substantially with the require-

ments of this part unless, for any fiscal year begin-

ning on or after October 1, 1994, its paternity es-

tablishment percentage for such fiscal year is based

on reliable data and (rounded to the nearest whole

percentage point) equals or exceeds—

(A) 75 90 percent;

(B) for a State with a paternity establishment

percentage of not less than 75 percent but less

than 90 percent for such fiscal year, the pater-

nity establishment percentage of the State for

the mennry ces preceding fiscal year plus 2

(BC) for a State with a paternity establish-

ment percentage of not less than 50 percent but

less than 75 percent for such fiscal year, the

paternity establishment percentage of the State

for the immediately preceding fiscal year plus

3 percentage points;

(C)(D) for a State with a paternity establish-

ment percentage of not less than 45 percent

but less than 50 percent for such fiscal year,

the paternity establishment percentage of the

State for the immediately preceding fiscal year

plus 4 percentage points;

l3a

(D)(E) for a State with a paternity establish-

ment percentage of not less than 40 percent

but less than 45 percent for such fiscal year,

the paternity establishment percentage of the

State for the immediately preceding fiscal year

plus 5 percentage points; or

(E)(F) for a State with a paternity establish-

ment percentage of less than 40 percent for

such fiscal year, the paternity establishment per-

centage of the State for the immediately pre-

ceding fiscal year plus 6 percentage points.

In determining compliance under this section, a State may

use as its paternity establishment percentage either the

State’s IV-D paternity establishment percentage (as de-

fined in paragraph (2)(A)) or the State’s statewide pa-

ternity establishment percentage (as defined in paragraph

(2)(B)).

(2) For purposes of this section—

(A) the term “paternity establishment per-

centage IV-D paternity establishment percent-

age” means, with respect to a State (or all

States, as the case may be) for a fiscal year,

the ratio (expressed as a percentage) that the

total number of children—

(i) who have been born out of wedlock,

(ii)(1) except as provided in the last

sentence of this paragraph, with respect to

whom aid is being paid under the State's

plan approved under part A or E assist-

ance was being provided under the State

program funded under part A of this sub-

chapter in the fiscal year, at the option of

the State, as of the end of such year, or

(II) with respect to whom services are be-

ing provided under the State’s plan ap-

proved under this part in the fiscal year or,

l4a

at the option of the State, as of the end

of such year pursuant to an application

submitted under section 654(6) 654(4)

(A)(ii) of this title, and

(iii) the paternity of whom has been

established or acknowledged, bears to the

total number of children born out of wed-

lock and (except as provided in such last

sentence ) with respect to whom aid was

being paid under the State’s plan approved

under part A or E assistance was being

provided under the State program funded

under part A of this subchapter as of the

end of the preceding fiscal year or with re-

spect to whom services were being pro-

vided under the State’s plan approved

under this part as of the end of the pre-

ceding fiscal year pursuant to an applica-

tion submitted under section 654(6) 654

(4)(A)(ii) of this title; and

(B) the term ‘statewide paternity establish-

ment percentage’ means, with respect to a State

for a fiscal year, the ratio (expressed as a per-

centage) that the total number of minor chil-

ang) Whe have heen bem out of wedlock,

(ii) the paternity of whom has been es-

tablished or acknowledged during the fiscal

year, bears to the total number of children

born out of wedlock during the preceding

fiscal vear; and

(B)(C) the term “reliable data” means the

most recent data available which are found by

the Secretary to be reliable for purposes of this

section.

15a

For purposes of subparagraph (A), the total number of

children shall not include any child who is a dependent

child with respect to whom assistance is being provided

under the State program funded under part A by reason

of the death of a parent unless paternity is established for

such child or any child with respect to whom an applicant

or recipient is found by the State to have good cause for

refusing to cooperate under section 602(a)(26) to qualify

for a good cause or other exception to cooperation pur-

suant to section 654(29) of this title or any child with

respect to whom the State agency administering the plan

under part E of this subchapter determines (as provided

in section 654(4)(B) of this title) that it is against the best

interests of such child to do so.

(3)(A) The requirements of this subsection are

in addition to and shall not supplant any other re-

quirement (that is not inconsistent with such require-

ments) established in regulations by the Secretary for

the purpose of determining (for purposes of section

603(h) of this title) whether the program of a State

operated under this part shall be treated as comply-

ing substantially with the requirements of this part.

(B)(A) The Secretary may modify the re-

quirements of this subsection to take into ac-

count such additional variables as the Secretary

identifies (including the percentage of children

born out of wedlock in a State the percentage

of children in a State who are born out of wed-

lock or for whom support has not been estab-

lished) that affect the ability of a State to meet

the requirements of this subsection.

(C)(B) The Secretary shall submit an annual

report to the Congress that sets forth the data

upon which the paternity establishment per-

centages for States for a fiscal year are based,

16a

lists any additional! variables the Secretary has

identified under subparagraph (A), and describes

State performance in establishing paternity.

(h) Prompt State response to requests for child support

assistance

The standards required by subsection (a)(1) of this

section shall include standards establishing time limits

governing the period or periods within which a State must

accept and respond to requests (from States, jurisdictions

thereof, or individuals who apply for services furnished

by the State agency under this part or with respect to

whom an assignment under section 602(a)(26) pursuant

to section 608(a)(3) of this title is in effect) for assist-

ance in establishing and enforcing support orders, in-

cluding requests to locate absent noncustodial parents,

establish paternity, and initiate proceedings to establish

and collect child support awards.

(i) Prompt State distribution of amounts collected as child

support

The standards required by subsection (a)(1) of this

section shall include standards establishing time limits gov-

erning the period or periods within which a State must

distribute, in accordance with section 657 of this title,

amounts collected as child support pursuant to the State's

plan approved under this part.

(j) Out of any money in the Treasury of the

States not otherwise appropriated, there is hereby

priated, to the Secretary for each fiscal year an

equal to 1 percent of the total amount paid to the F

eral Government pursuant to section 657(a) during

immediately preceding fiscal year (as determined on

basis of the most recent reliable data available to the

retary as of the end of the third calendar quarter

;

ili

curred by the Secretary for—

1) information dissemination and technical as-

_ to States, training of State and Federal staff,

Sec. 653. Federal Parent Locator Service

(a) Establishment; purpose

The Secretary shall establish and conduct a Federal

Parent Locator Service, under the direction of the de-

signee of the Secretary referred to in section 652(a) of

18a

this title, which shall be used to obtain and transmit to

any authorized person (as defined in subsection (c)) of

this section information as to the whereabouts of any

absent parent when such information is to be used to lo-

cate such parent for the purpose of enforcing support obli-

gations agaivss such parent, for the purpose of establish-

(b) Disclosure of information to authorized persons

Upon request, filed in accordance with subsection (d)

of this section of any authorized person (as defined in

subsection (c) of this section) for the social Security ac-

count number (or numbers, if the individual involved has

more than one such number) and the most recent address

19a

and place of employment of any absent parent informa-

tion described in subsection (a), the Secretary shall, not-

withstanding any other provision of law, provide through

the Federal Parent Locator Service such information to

such person, if such information—

(1) is contained in any files or records maintained

by the Secretary or by the Department of Health and

Human Services; or

(2) is not contained in such files or records, but

can be obtained by the Secretary, under the authority

conferred by subsection (e) of this section, from any

other department, agency, or instrumentality of the

United States or of any State.

No information shall be disclosed to any person if the

disclosure of such information would contravene the na-

tional policy or security interests of the United States or

the confidentiality of census data. The Secretary shall give

priority to requests made by any authorized person de-

scribed in subsection (c)(1) of this section. No informa-

any amounts owed as child and spousal support sup-

20a

port or to seek to enforce orders providing child cus-

tody or visitation rights (including, when authorized

under the State plan, any official of a political sub-

division);

(2) the court which has authority to issue an order

against an absent a noncustodial parent for the sup-

port and maintenance of a child, or any agent of such

court, and or to issue an order against a resident par-

ent for child custody or visitation rights, or any agent

of such court;

(3) the resident parent, legal guardian, attorney,

or agent of a child (other than a child receiving aid

under part A of this subchapter assistance under a

State program funded under part A) (as determined

by regulations prescribed by the Secretary) without

regard to the existence of a court order against an

absent a nencustodial parent who has a duty to sup-

port and maintain any such child.

(d) Form and manner of request for information

A request for information under this section shall be

filed in such manner and form as the Secretary shall by

regulation prescribe and shall be accompanied or sup-

ported by such documents as the Secretary may determine

to be necessary.

(ce) Compliance with request; search of files and records

by head of any department, etc., of United States: trans-

mittal of information to Secretary; reimbursement for cost

of search; fees

(1) Whenever the Secretary receives a request

submitted under subsection (b) of this section which

he is reasonably satisfied meets the criteria estab-

lished by subsections (a), (b), and (c) of this section,

he shall promptly undertake to provide the informa-

tion requested from the files and records maintained

2la

by any of the departments, agencies, or instrumentali-

ties of the United States or of any State. — 1.

(2) Notwithstanding any other provision of law,

files and records

cause a search to be made of the F

maintained by such department, agency, or ay

mentality with a view t determining wheter. oe

information requested is contained in any such fi

or records. If such search discloses the information

him in an

amount which the Secretary determines to be reason-

able payment for the information exchange (which

amount shall not include payment for the costs of

22a

cess for the Secretary (in accordance with this subsec-

tion) to the wage and unemployment compensation

claims information and data maintained by or for

the Department of Labor or State employment se-

curity agencies.

(f) Arrangements and cooperation with State agencies

The Secretary, in carrying out his duties and functions

under this section, shall enter into arrangements with

State agencies administering State plans approved under

this part for such State agencies to accept from resident

parents, legal guardians, or agents of a child described in

subsection (c)(3) of this section and to transmit to the

Secretary requests for information with regard to the

whereabouts of absent noncustodial parents and otherwise

to cooperate with the Secretary in carrying out the pur-

poses of this section.

(g) Reimbursement for reports by State agencies.

24a

Revenue Code of 1986, or the advance payment of

the earned income tax credit under section 3507 of

such Code, and verifying a claim with respect to

employment in a tax return.

(4) List of multistate employers—The Secretary

shall maintain within the National Directory of New

Hires a list of multistate employers that report in-

formation regarding newly hired employees pursuant

to section 653A(b)(1)(B), and the State which each

such employer has designated to receive such infor-

mation.

(j) Information comparisons and other disclosures.

(1) Verification by Social Security Administra-

tion.—

(A) In general.—The Secretary shall trans-

mit information on individuals and employers

maintained under this section to the Social Se-

curity Administration to the extent necessary for

verification in accordance with subparagraph

(B).

(B) Verification by SSA.—The Social Secv-

rity Administration shall verify the accuracy of,

correct, or supply to the extent possible, and re-

port to the Secretary, the following information

supplied by the Secretary pursuant to subpara-

graph (A):

(i) The name, social security number,

and birth date of each such individual.

(ii) The employer identification number

of each such employer.

(2) Information comparison.—For the purpose of

locating individuals in a paternity establishment case

or a case involving the establishment, modification,

or enforcement of a support order, the Secretary

shall—

25a

(A) compare information in the National Di-

rectory of New Hires against information in the

support case abstracts in the Federal Case Reg-

istry of Child Support Orders not less often than

every 2 business days; and

(B) within 2 business days after such a com-

parison reveals a match with respect to an in-

dividual, report the information to the State

agency responsible for the case.

(3) Information comparisons and disclosures of

information in all registries for Title [V program pur-

poses.-—To the extent and with the frequency that

the Secretary determines to be effective in assisting

States to carry out their responsibilities under pro-

grams operated under this part and programs funded

under part A, the Secretary shall—

(A) compare the information in each com-

ponent of the Federal Parent Locator Service

maintained under this section against the in-

formation in each other such component (other

than the comparison required by paragraph (2)),

and report instances in which such a compari-

son reveals a match with respect to an individual

to State agencies operating such programs; and

.8) disclose information in such registries to

such State agencies.

(4) Provision of new hire information to the So-

cial Security Administration —The National Direc-

tory of New Hires shall provide the Commissioner of

Social Security with all information in the National

(5) Research.—The Secretary may provide ac-

cess to information reported by employers pursuant

to section 653A(b) for research purposes found by

the Secretary to be likely to contribute to achieving

26a

the purposes of part A or this part, but without per-

sonal identifiers.

(k) Fees.—

(1) For SSA verification.—The Secretary shall re-

imburse the Commissioner of Social Security, at a

rate negotiated between the Secretary and the Com-

missioner, for the costs incurred by the Commissioner

in performing the verification services described in

subsection (j).

(2) For information from State directories of new

hires—The Secretary shall rcimburse costs incurred

by State directories of new hires in furnishing infor-

mation as required by subsection (j)(3), at rates

which the Secretary determines to be reasonable

(which rates shall not include payment for the costs

of obtaining, compiling, or maintaining such in-

formation).

(3) For information furnished to State and Fed-

eral agencies.—A State or Federal agency that re-

ceives information from the Secretary pursuant to this

section shall reimburse the Secretary for costs in-

curred by the Secretary in furnishing the informa-

tion, at rates which the Secretary determines to be

reasonable (which rates shall include payment for the

costs of obtaining, verifying, maintaining, and com-

paring the information).

(1) Restriction on disclosure and use.—Information in

the Federal Parent Locator Service, and information re-

sulting from comparisons using such information, shall

not be used or disclosed except as expressly provided in

this section, subject to section 6103 of the Internal Reve-

nue Code of 1986.

(m) Information integrity and security—The Secretary

shall establish and implement safeguards with respect to

the entities established under this section designed to—

27a

(1) ensure the accuracy and completeness of in-

formation in the Federal Parent Locator Service; and

(2) restrict access to confidential information in

the Federal Parent Locator Service to authorized

persons, and restrict use of such information to au-

thorized purposes.

(n) Federal Government reporting.—Each department,

agency, and instrumentality of the United States shall on

a quarterly basis report to the Federal Parent Locator

Service the name and social security number of each em-

ployee and the wages paid to the employee during the

previous quarter, except that such a report shall not be

filed with respect to an employee of a department, agency,

or instrumentality performing intelligence or counterin-

telligence functions, if the head of such department,

agency, or instrumentality has determined that filing such

a report could endanger the safety of the employee or

compromise an ongoing investigation or intelligence mis-

sion.

(0) Recovery of costs.—Out of any money in the Treas-

ury of the United States not otherwise appropriated,

there is hereby appropriated to the Secretary for each

fiscal year an amount equal to 2 percent of the total

amount paid to the Federal Government pursuant to sec-

tion 657(a) during the immediately preceding fiscal year

(as determined on the basis of the most recent reliable

data available to the Secretary as of the end of the 3rd

calendar quarter following the end of such preceding fiscal

year), to cover costs incurred by the Secretary for opera-

tion of the Federal Parent Locator Service under this sec-

tion, to the extent such costs are not recovered through

user fees.

(p) Support order defined.—As used in this part, the

term ‘support order’ means a judgment, decree, or or-

Sec. 653A. State Directory Of New Hires.

(a) Establishment.—

(1) In general.—

(A) Requirement for States that have no di-

rectory.—Except as provided in su

(B), not later than October 1, 1997, each State

shall establish an automated directory (to be

known as the ‘State Directory of New Hires’)

which shall contain information supplied in ac-

cordance with subsection (b) by employers on

each newly hired employee.

(B) States with new hire reporting law in

existence.—A State which has a new hire report-

ing law in existence on the date of the enact-

ment of this section may continue to operate

under the State law, but the State must meet

the requirements of subsection (g)(2) not later

than October 1, 1997, and the requirements of

this section (other than subsection (g)(2)) not

later than October 1, 1998.

(2) Definitions.—As used in this section:

(A) Employee.—The term ‘employee’—

(i) means an individual who is an em-

ployee within the meaning of chapter 24

29a

of the Internal Revenue Code of 1986;

and

(ii) does not include an employee of a

Federal or State agency performing intel-

ligence or counterintelligence functions, if

the head of such agency has determined

that reporting pursuant to paragraph (1)

with respect to the employee could en-

danger the safety of the employee or com-

promise an ongoing investigation or intelli-

gence mission.

(i) In general—The term ‘employer

has the meaning given such term in sec-

tion 3401(d) of the Internal Revenue Code

of 1986 and includes any governmental en-

tity and any labor organization.

(ii) Labor organization——The term ‘a-

bor organization’ shall have the meaning

given such term in section 2(5) of the Na-

tional Labor Relations Act, and includes

any entity (also known as a ‘hiring hall’)

which is used by the organization and an

employer to carry out requirements de-

scribed in section 8(f)(3) of seach Act of an

agreement between the organization and

the employer.

(b) Employer information.—

(1) Reporting requirement.—

(A) In general.—Except as provided in sub-

paragraphs (B) and (C), each employer shall

furnish to the Directory of New Hires of the

State in which a newly hired employee works,

a report that contains the name, address, and

30a

social security number of the employee, and the

name and address of, and identifying number

assigned under section 6109 of the Internal

(A) by designating 1 State in which such em-

ployer has employees to which the employer will

transmit the report described in subparagraph

(A), and transmitting such report to such State.

Any employer that transmits reports pursuant

to this subparagraph shall notify the Secretary

in writing as to which State such employer des-

ignates for the purpose of sending reports.

department, agency, or instrumentality of the

United States shall comply with subparagraph

(A) by transmitting the report described in sub-

paragraph (A) to the National Directory of New

Hires established pursuant to section 653.

(2) Timing of report.—Each State may provide

the time within which the report required by para-

graph (1) shall be made with respect to an employee,

but such report shall be made—

(A) not later than 20 days after the date the

employer hires the employee; or

(B) in the case of an employer transmitting

reports magnetically or electronically, by 2

monthly transmissions (if necessary) not less

than 12 days nor more than 16 days apart.

by subsection (b) shall be made on a W-4 form or, at the

option of the employer, an equivalent form, and may be

(1) $25; or

(e) Entry of employer information.—Information shall be

entered into the data base maintained by the State Direc-

tory of New Hires within 5 business days of

an employer pursuant to subsection (b).

(f) Information comparisons.—

32a

(g) Transmission of information.—

(1) Transmission of wage withholding

employers.—Within 2 business days after

Pee

33a

(h) Other uses of new hire information.—

Sec. 654. State plan for child and spousal support

A State plan for child and spousal support must—

(1) provide that it shall be in effect in all political

subdivisions of the State;

(2) provide for financial participation by the

State;

(3) provide for the establishment or designation

of a single and separate organizational unit, which

meets such staffing and organizational requirements

as the Secretary may by regulation prescribe, within

the State to administer the plan;

(4) provide that such State will undertake—

34a

(A) in the case of a child born out of wed-

lock with respect to whom an assignment under

section 602(a)(26) of this title or section 1396k

of this title is effective, to establish the paternity

of such child, unless the agency administering

the plan of the State under part A of this sub-

chapter determines in accordance with the stand-

ards prescribed by the Secretary pursuant to

section 602(a)(26)(B) of this title that it is

against the best interests of the child to do so,

or, in the case of such child with respect to

whom an assignment under section 1396k of

this title is in effect, the State agency adminis-

tering the plan approved under subchapter X1X

of this chapter determines pursuant to section

1396k(a)(1)(B) of this title that it is against the

best interests of the child to do so, and

(B) in the case of any child with respect to

whom such assignment is effective, including an

assignment with respect to a child on whose be-

half a State agency is making foster care main-

tenance payments under part E of this subchap-

ter, to secure support for such child from his

parent (or from any other person legally liable

for such support), and from such parent for his

spouse (or former spouse) receiving aid to fam-

ilies with dependent children or medical assist-

ance under a State plan approved under sub-

chapter XIX of this chapter (but only if a

support obligation has been established with re-

spect to such spouse, and only if the support

obligation established with respect to the child

is being enforced under the plan), utilizing any

reciprocal arrangements adopted with other

States (unless the agency administering the plan

of the State under part A or E of this subchap-

ter determines in accordance with the standards

35a

prescribed by the Secretary pursuant to section

602(a)(26)(B) of this title that it is against the

best interests of the child to do so), except that

when such arrangements and other means have

proven ineffective, the State may utilize the

Federal courts to obtain or enforce court orders

for support;

4) zt

(ii) the custodial parent of such a child;

(5) provide that (A) in any case in which support

payments are collected for an individual with respect

to whom an assignment under section 602(a)(26)

pursuant to section 608(a)(3) of this title is effective,

36a

such payments shall be made to the State for distri-

bution pursuant to section 657 of this title and shall

not be paid directly to the family, and the individual

will be notified on a monthly basis (or on a quarterly

basis for so long as the Secretary determines with

respect to a State that requiring such notice on a

monthly basis would impose an unreasonable admin-

istrative burden) of the amount of the support pay-

ments collected; except that this paragraph shall not

apply to such payments for any month following the

first month in which the amount collected is suffi-

cient to make such family ineligible for assistance

under the State plan approved under part A of this

subchapter;, and (B) in any case in which support

payments are collected for an individual pursuant to

the assignment made under section 1396k of this

title, such payments shall be made to the State for

distribution pursuant to section 1396k of this title,

except that this clause shall not apply to such pay-

ments for any month after the month in which the

individual ceases to be eligible for medical assistance:

(6) provide that provide that—

(A) the child support collection or paternity

determination services established under the

plan shall be made available to any individual

not otherwise eligible for such services upon ap-

plication filed by such individual with the State,

including support collection services for the

spouse (or former spouse) with whom the ab-

sent parent's child is living (but only if a sup-

port obligation has been established with respect

to such spouse, and only if the support obliga-

tion established with respect to the child is being

enforced under the plan),

(A) services under the plan shall be made

available to residents of other States on the same

37a

as to residents of the State submitting the

under part A, which shall be paid by the

individual applying for such services, or recov-

ered from the absent parent, or paid by the State

out of its own funds (the payment of which

from State funds shall not be considered as an

administrative cost of the State for the opera-

tion of the plan, and shall be considered income

to the program), the amount of which (i) will

not exceed $25 (or such higher or lower amount

(which shall be uniform for all States) as the

Secretary may determine to be appropriate for

any fiscal year to reflect increases or decreases

in administrative costs), amd (li) may vary

among such individuals on the basis of ability

to pay (as determined by the State ),; .

posed in any case where the State requests the

Secretary of the Treasury to withhold past-due

support owed to or on behalf of such individual

from a tax refund pursuant to section 664(a)(2)

of this title,;

(D) a fee (in accordance with regulations of

the Secretary) for performing genetic tests may

be imposed on any individual who is not a re-

cipient of aid under a State plan approved

assistance under a State program funded under

part A of this subchapter,; and

(E) any costs in excess of the fees so im-

posed may be collected—

(i) from the parent who owes the child

or spousal support obligation involved, or

(ii) at the option of the State, from the

individual to whom such services are made

38a

available, but only if such State has in ef-

fect a procedure whereby all persons in

such State having authority to order child

or spousal support are informed that such

costs are to be collected from the individ-

ual to whom such services were made avail-

able;

(7) provide for entering into cooperative arrange-

ments with appropriate courts and law enforcement

Officials and Indian tribes or tribal organizations (as

defined in subsections (e) and (1) of section 4 of the

Indian Self-Determination and Education Assistance

Act (25 U.S.C, 450b))

(A) to assist the agency administering the

plan, including the entering into of financial ar-

rangements with such courts and officials in or-

der to assure optimum results under such pro-

gram, and

(B) with respect to any other matters of

common concern to such courts or officials and

the agency administering the plan;

(8) provide that the agency administering the plan

will establish a service to locate absent noncustodial

parents utilizing—

(A) all sources of information and available

records, and

(B) the Parent Locator Service in the De-

partment of Health and Human Services; (B) the

Federal Parent Locator Service established un-

der section 653;

(9) provide that the State will, in accordance with

standards prescribed by the Secretary, cooperate with

any other State—

(A) in establishing paternity, if necessary,

(B) in locating an absent a noncustodial

parent residing in the State (whether or not

39a

permanently) against whom any action is being

taken under a program established under a

plan approved under this part in another State,

noncustodial parent residing in such State

(whether or not permanently) with an order

issued by a court of competent jurisdiction

against such parent for the support and main-

tenance of the child or children or the parent

of such child or children with respect to whom

aid is being provided under the plan of such

other State, and

(D) in carrying out other functions required

under a plan approved under this part; and

(E) not later than March 1, 1997, in using

the forms promulgated pursuant to section 652

(a)(11) for income withholding, imposition of

liens, and issuance of administrative subpoenas

in interstate child support cases;

(10) provide that the State will maintain a full

record of collections and disbursements made under

the plan and have an adequate reporting system,

(11)(11)(A) provide that amounts collected as

support shall be distributed as provided in section

657 of this title; and

(12)(B) provide that any payment required

to be made under section 656 or 657 of this

title to a family shall be made to the resident

parent, legal guardian, or caretaker relative hav-

ing custody of or responsibility for the child or

children;

(12) provide for the establishment of procedures

to require the State to provide individuals who are

applying for or receiving services under the State

plan, or who are parties to cases in which services are

being provided under the State plan—

14 days after issuance of such order or deter-

mination;

(13) provide that the State will comply with such

other requirements and standards as the Secretary

determines to be necessary to the establishment of an

effective program for locating absent noncustodial

parents, eStablishing paternity, obtaining support

orders, and collecting support payments and provide

that information requests by parents who are resi-

dents of other States be treated with the same priority

as requests by parents who are residents of the State

submitting the plan;

(14)(144)(A) comply with such bonding require-

ments, for employees who receive, disburse, handle,

or have access to, cash, as the Secretary shall by

regulations prescribe;

(15)(14)(B) maintain methods of administration

which are designed to assure that persons responsible

for handling cash receipts shall not participate in

accounting or operating functions which would per-

mit them to conceal in the accounting records the

misuse of cash receipts (except that the Secretary

shall by regulations provide for exceptions to this

requirement in the case of sparsely populated areas

where the hiring of unreasonable additional staff

would otherwise be necessary);

(15) provide for—

(A) a process for annual reviews of and re-

ports to the Secretary on the State program op-

4la

erated under the State plan approved under this

part, including such information as may be nec-

essary to measure State compliance with Fed-

eral requirements for expedited procedures, us-

ing such standards and procedures as are re-

quired by the Secretary, under which the State

agency will determine the extent to which the

program is operated in compliance wiih this

part; and

(B) a process of extracting from the auto-

mated data processing system required by para-

graph (16) and transmitting to the Secretary

data and calculations concerning the levels of

accomplishment (and rates of improvement)

with respect to applicable performance indica-

tors (including paternity establishment percent-

ages) to the extent necessary for purposes of

sections 652(g) and 658;

(16) provide, ai the option of the State, for the

establishment and operation by the State agency, in

accordance with an (initial and annually updated)

advance automated data processing planning docu-

ment approved under section 652(d) of this title, of

a statewide automated data processing and informa-

tion retrieval system meeting the requirements of

section 654A designed effectively and efficiently to

assist management in the administration of the State

plan, in the State and localities thereof, so as

(A) so as to control, account for, and moni-

tor

(i) all the factors in the support enforce-

ment collection and paternity determina-

tion process under such plan (including,

but not limited to, (I) identifiable cor-

relation factors {such as social security

numbers, names, dates of birth, home ad-

42a

dresses and mailing addresses (including

postal ZIP codes) of any individual with

respect to whom support obligations are

sought to be established or enforced and

with respect to any person to whom such

support obligations are owing) to assure

sufficient compatibility among the systems

of different jurisdictions to permit periodic

screening to determine whether such in-

dividual is paying or is obligated to pay

support in more than one jurisdiction,

(11) checking of records of such individuals

on a periodic basis with Federal, intra and

inter State, and local agencies, (III) main-

taining the data necessary to meet the Fed-

eral reporting requirements on a timely

basis, and (IV) delinquency and enforce-

ment activities),

(ii) the collection and distribution of

support payments (both intra and inter

State), the determination, collection, and

distribution of incentive payments both

inter and intra State, and the maintenance

of accounts receivable on all amounts

owed, collected and distributed, and

(iii) the costs of all services rendered,

either directly or by interfacing with State

financial management and expenditure in-

formation,

(B) to provide interface with records of the

State’s aid to families with dependent children

program in order to determine if a collection of

a support payment causes a change affecting

eligibility for or the amount of aid under such

program,

ized access to, or use of, the data in such sys-

tem,

43a

(D) to facilitate the development and im-

provement of the income withholding and other

procedures required under section 666(a) of

this title through the monitoring of support pay-

ments, the maintenance of accurate records re-

garding the payment of support, and the prompt

ae of notice to appropriate officials with

ct to any arre j

nade _ 7 — in support payments

(E) to provide management information on

all cases under the State plan from initial re-

ferral or application through collection and en-

forcement;;

(17) in the case of a State which has in effect an

agreement with the Secretary entered into pursuant

to section 663 of this title for the use of the Parent

Locator Service established under section 653 of this

title, provide that the State will accept and transmit

- by b egemwne A requests for information authorized

~ provisions of the agreement to be furnished

y such Service to authorized persons, will impose

and collect (in accordance with regulations of the

Secretary) a fee sufficient to cover the costs to the

State and to the Secretary incurred by reason of such

requests, will transmit to the Secretary from time to

7 (in accordance with such regulations) so much

the fees collected as are attributable to such costs

to the Secretary so incurred, and during the period

mn such agreement is in effect will otherwise comply

ie peaireeee and regulations of the Secretary

(18) provide that the State has in effect pr

dures necessary to obtain payment of cates -

port from overpayments made to the Secretary of

the Treasury as set forth in section 664 of this title,

and i

awe a necessary to implement and utilize

44a

(19) provide that the agency administering the

(A) shall determine on a periodic basis,

from information supplied pursuant to section

508 of the Unemployment Compensation

Amendments of 1976, whether any individuals

receiving compensation under the State’s unem-

ployment compensation law (including amounts

payable pursuant to any agreement under any

Federal unemployment compensation law) owe

child support obligations which are being en-

forced by such agency, and

(B) shall enforce any such child support ob-

ligations which are owed by such an individual

but are not being met—

(i) through an agreement with such in-

dividual to have specified amounts withheld

from compensation otherwise payable to

such individual and by submitting a copy

of any such agreement to the State agency

administering the unemployment compen-

sation law, or

(ii) in the absence of such an agree-

ment, by bringing legal process (as defined

in section 662(e) of this title) to require

the withholding of amounts from such com-

pensation;

(20) provide, to the extent required by section

666 of this title, that the State (A) shall have in

effect all of the laws to improve child support en-

forcement effectiveness which are referred to in that

section, and (B) shall implement the procedures

which are prescribed in or pursuant to such laws;

(21)(A) at the option of the State, impose a late

payment fee on all overdue support (as defined in

section 666(e) of this title) under any obligation be-

45a

ing enforced under this part, m an amount equal to

a uniform percentage determined by the State (not

less than 3 percent nor more than 6 percent) of the

overdue support, which shall be payable by the absent

noncustodial parent owing the overdue support; and

(B) assure that the fee will be collected in

addition to, and only after full payment of, the

overdue support, and that the imposition of the

late payment fee shall not directly or indirectly

result m a decrease in the amount of the sup-

port which is paid to the child (or spouse) to

whom, or on whose behalf, it is owed;

(22) in order for the State to be eligible to receive

any imcentive payments under section 658 of this

title, provide that, if one or more political subdivi-

sions of the State participate in the costs of carrying

Out activities under the State plan during any period,

each such subdivision shall be entitled to receive an

appropriate share (as determined by the State) of

any such incentive payments made to the State for

such period, taking into account the efficiency and

effectiveness of the activities carried out under the

State plan by such political subdivision;

(23) provide that the State will regularly and fre-

quently publicize, through public service announce-

ments, the availability of child support enforcement

services under the plan and otherwise, including in-

formation as to any application fees for such services

and a telephone number or postal address at which

further information may be obtained and will pub-

licize the availability and encourage the use of pro-

cedures fer voluntary establishment of paternity and

a support by means the State deems appropriate;

(24) provide that if the State, as of October 13,

1988, does not have in effect an automated data

46a

processing and information retrieval system meeting

all of the requirements of paragraph (16), the State—-

(A) will submit to the Secretary by October

1, 1991, for review and approval by the Secre-

tary within 9 months after submittal an ad-

vance automated data processing planning docu-

ment of the type referred to in such paragraph;

and

(B) will have in effect by October 1, 1995,

an operational automated data processing and

information retrieval system, meeting all the re-

quirements of that paragraph, which has been

approved by the Secretary. and;

pstaee

erage

25868

tre

Tih

tiles :

Tit

eee 2

processing

section 654A(g)); and

48a 49a

(ii) take the actions described in section Se ee eS aa

an acknowledgment, may req

666(c)(1) in appropriate cases; individual to sign an acknowledgment or other-

(28) provide that, on and after October 1, 1997, wise relinquish the right to genetic tests as a

the State will operate a State Directory of New Hires condition of cooperation and eligibility for as-

im accordance with section 653A; sistance under the State program funded under

(29) provide that the State agency responsible for Se ee ee

admintstering the State plan—

(A) shall make the determination (and _re- ait ent ee

determination at appropriate intervals) as to aunhed Wider oane A endl Gav Cate con od

ee ee ee ee ministering the State program under title XIX,

funded under part A of this title or the State » ng phe er yw 9) es

program under title XIX is cooperating in good determined, therefor;

faith with the State in establishing the paternity (30) provide that the State shall use the defini-

of, or in establishing, modifying, or enforcing a tions established under section 652(a)(5) in collect-

support order for, any child of the individual by ing and reporting information as required under this

providing the State agency with the name of, part;

and such ether information as the State agenc (31) provide that the State agency will have in

may require with respect te, the noncustodial effect a procedure for certifying to the Secretary, for

parent of the child, subject to good cause and purposes of the procedure under section 652(k), de-

other exceptions which— terminations that individuals owe arrearages of child

(i) shall be defined, taking into account support in an amount exceeding $5,000, under which

the best interests of the child, and procedure

(ii) shall be applied in each case, rn ee cement & uted ae

by, at the option of the State, the State agency An npn ayy ew

administering the State program under part A, termination; and opportunity ontest

this part, or title XIX;

oe See ae Sp Seen ery a

voluntary acknowledgment of paternity, after

(B) the certification by the State agency is

furnished to the Secretary in such format, and

accompanied by such supporting documentation,

as the Secretary may require;

(32)(A) provide that any request for services un-

der this part by a foreign reciprocating country or a

foreign country with which the State has an arrange-

ment described in section 659A(d)(2) shall be treated

as a request by a State;

50a

(B) provide, at State option, notwithstanding

(33) provide that a State that receives funding

pursuant to section 628 and that has within its bor-

ders Indian country (as defined in sec

title 18, United States Code) may enter into coopera-

tive agreements with an Indian tribe or tribal organi-

zation (as defined in subsections (e) and (1) of section

4 of the Indian Self-Determination and Education

Assistance Act (25 U.S.C. 450b)), if the Indian tribe

or tribal organization demonstrates that such tribe

or organization has an established tribal court system

or a Court of Indian Offenses with the authority to

establish paternity, establish, modify, and enforce

support orders, and to enter support orders in accord-

ance with child support guidelines established by such

tribe or organization, under which the State and tribe

or organization shall provide for the cooperative de-

livery of child support enforcement services in Indian

country and for the forwarding of all funding col-

lected pursuant to the functions performed by the

tribe or organization to the State agency, or con-

versely, by the State agency to the tribe or organiza-

tion, which shall distribute such funding in accord-

ance with such agreement; and

Nothing in paragraph (33) shall void any provision of any

cooperative agreement entered into before the date of the

Sla

enactment of such paragraph, nor shall such paragraph

deprive any State of jurisdiction over Indian country (as

so defined) that is lawfully exercised under section 402 of

the Act entitled ‘An Act to prescribe penalties for certain

acts of violence or intimidation, and for other purposes’,

appreved April 11, 1968 (25 U.S.C. 1322).

The State may allow the jurisdiction which makes the

collection involved to retain any application fee under

paragraph (6)(B) or any late payment fee under para-

graph (21).

Sec. 654A. Automated data processing

(a) In general.—In order for a State to meet the re-

quirements of this section, the State agency administering

the State program under this part shall have in operation

a single statewide automated data processing and informa-

tion retrieval system which has the capability to perform

the tasks specified in this section with the frequency and

in the manner required by or under this part.

(b) Program management.—The automated system _re-

quired by this section shall perform such functions as the

Secretary may specify relating to management of the

State program under this part, including—

(1) controlling and accounting for use of Federal,

State, and local funds in carrying out the program;

and

(2) maintaining the data necessary to meet Fed-

eral reporting requirements under this part on a

timely basis.

enable the Secretary to determine the incentive payments

and penalty adjustments required by sections 652(g) and

658, the State agency shall—

52a

(1) use the automated system—

(A) to maintain the requisite data on State

performance with respect to paternity establish-

ment and child support enforcement in the State;

and

(B) to calculate the paternity establishment

percentage for the State for each fiscal year; and

(2) have im place systems controls to ensure the

completeness and reliability of, and ready access to,

the data described in paragraph (1)(A), and the ac-

curacy of the calculations described in paragraph

(1)(B).

(d) Information integrity and security.—The State agency

shall have in effect safeguards on the integrity, accuracy,

and completeness of, access to, and use of data in the

automated system required by this section, which shall in-

clude the following (in addition to such other safeguards

as the Secretary may specify in regulations):

(1) Policies restricting access.—Written policies

concerning access to data by State agency personnel,

and sharing of data with other persons, which—

(A) permit access to and use of data only to

the extent necessary to carry out the State pro-

gram under this part; and

(B) specify the data which may be used for

particular program purposes, and the personnel

permitted access to such data.

(2) Systems controls.—Systems controls (such as

passwords or blocking of fields) to ensure strict ad-

herence to the policies described in paragraph (1).

(3) Monitoring of access.—Routine monitoring of

access to and use of the automated system, through

methods such as audit trails and feedback mechan-

isms, to guard against and promptly identify unau-

thorized access or use.

53a

(4) Training and information.—Procedures to en-

sure that all personnel (including State and local

agency staff and contractors) who may have access

to or be required to use confidential program daia

are informed of applicable requirements and penalties

(including those in section 6103 of the Internal Reve-

nue Code of 1986), and are adequately trained in

security procedures.

(5) Penalties.—Administrative penalties (up to

and including dismissal from employment) for un-

authorized access to, or disclosure or use of, confi-

dential data.

(e) State case registry.—

(1) Contents.—The automated system required by

this section shall include a registry (which shall be

known as the ‘State case registry’) that contains rec-

ords with respect to—

(A) each case in which services are being

provided by the State agency under the State

plan approved under this part; and

(B) each support order established or modi-

fied in the State on or after October 1, 1998.

(2) Linking of local registries.—The State case

registry may be established by linking local case

registries of support orders through an automated

information network, subject to this section.

(3) Use of standardized data elements.—Such

records shall use standardized data elements for both

parents (such as names, social security numbers and

other uniform identification numbers, dates of birth,

and case identification numbers), and contain such

other information (such as on case status) as the

Secretary may require.

(4) Payment records.—Each case record in the

State case registry with respect to which services are

(D) the birth date of any child for whom the

order requires the provision of support; and

(E) the amount of any lien imposed with re-

spect to the order pursuant to section 666(a)(4).

(5) Updating and monitoring.—The State agency

operating the automated system required by this sec-

tion shall promptly establish and update, maintain,

and regularly monitor, case records in the State case

registry with respect to which services are being pro-

vided under the State plan approved under this part,

on the basis of —

(A) information on administrative actions

and administrative and judicial proceedings and

orders relating to paternity and support;

(B) information obtained from comparison

Federal, State, or local sources of informa-

tion;

distributions; and

(D) any other relevant information.

(f) Information comparisons and other disclosures of in-

formation. The State shall use the automated system re-

quired by this section to extract information from (at such

times, and in such standardized format or formats, as may

55a

be required by the Secretary), to share and compare in-

formation with, and to receive information from, other

data bases and information comparison services, in order

to obtain (or provide) information necessary to enable

the State agency (or the Secretary or other State or Fed-

eral agencies) to carry out this part, subject to section

6103 of the Internal Revenue Code of 1986. Such infor-

mation comparison activities shall include the following:

(1) Federal Case Registry of Child Support Or-

ders.—Furnishing to the Federal Case Registry of

Child Support Orders established under section

653(h) (and update as necessary, with information

including notice of expiration of orders) the mini-

mum amount of information on child support cases

recorded in the State case registry that is necessary to

operate the registry (as specified by the Secretary in

regulations).

(2) Federal Parent Locator Service.—Exchanging

information with the Federal Parent Locator Service

for the purposes specified in section 653.

(3) Temporary family assistance and medicaid

agencies.—Exchanging information with State agen-

cies (of the State and of other States) administering

programs funded under part A, programs operated

under a State plan approved under title XIX, and

other programs designated by the Secretary, as nec-

essary to perform State agency responsibilities under

this part and under such programs.

(4) Intrastate and interstate information compari-

sons.—Exchanging information with other agencies

of the State, agencies of other States, and interstate

information networks, as necessary and appropriate

to carry out (or assist other States to carry out) the

purposes of this part.

56a

(g) Collection and distribution of support payments.—-

(1) In general.—The State shall use the automated

system required by this section, to the maximum ex-

tent feasible, to assist and facilitate the collection

and disbursement of support payments through the

State disbursement unit operated under section 654B,

through the performance of functions, including, at a

minimum—

(A) transmission of orders and notices to em-

ployers (and other debtors) for the withholding

of mcome—

(i) within 2 business days after receipt

of notice of, and the income source subject

to, such withholding from a court, another

State, an employer, the Federal Parent Lo-

cator Service, or another source recognized

by the State; and

(ii) using uniform formats prescribed by

the Secretary;

(B) ongoing monitoring to promptly identify

failures to make timely payment of support; and

(including procedures authorized pursuant to

section 666(c)) if payments are not timely made.

(2) Business day defined.—As used in paragraph

(1), the term ‘business day’ means a day on which

State offices are open for regular business.

(h) Expedited administrative procedures.—The automated

system required by this section shall be used, to the maxi-

mum extent feasible, to implement the expedited adminis-

trative procedures required by section 666(c).

57a

Sec. 654B. Collection and disbursement of support pay-

ments.

(a) State disbursement unit.—

(1) In general.—In order for a State to meet the

requirements of this section, the State agency must

establish and operate a unit (which shall be known

as the ‘State disbursement unit’) for the collection and

disbursement of payments under support orders—

(A) in all cases being enforced by the State

pursuant to section 654(4); and

(2) Operation.—The State disbursement unit shall

be operated—

(A) directly by the State agency (or 2 or

more State agencies under a regional coopera-

tive agreement), or (to the extent appropriate)

by a contractor responsible directly to the State

agency; and

(B) except in cases described in paragraph

(1)(B), in coordination with the automated sys-

tem established by the State pursuant to section

654A.

(3) Linking of local disbursement units.—The

State disbursement unit may be established by link-

ing local disbursement units through an automated

information network, subject to this section, if the

Secretary agrees that the system will not cost more

nor take more time to establish or operate than a

centralized system. In addition, employers shall be

given 1 location to which income withholding is sent.

58a

b uired procedures.—The State disbursement unit

shall use automated procedures, electronic proceses, and

computer-driven technology to the maximum extent

ible, efficient, and economical, for the collection and dis-

bursement of support payments, including procedures—

1) for receipt of payments from parents, employ-

acu. pad ether Diate, gad for didbersements (0 cu>

todial parents and other obligees, the State agency,

and the agencies «! other States;

to the except that in cases described

cchueatin IND), Go State Gkbenement walt

shall not be required to convert and maintain in

automated form records of payments kept pursuant

to section 666(a)(8)(B)(iii) before the effective date

1) In general.—Except as provided in

ah ae State disbursement unit shall distribute all

amounts payable under section 657(a) within 2 busi-

ness days after receipt from the employer or other

sources of periodic income, if sufficient information

identifying the payee is provided.

(2) Permissive retention of arrearages.—The State

disbursement unit may delay the distribution of col-

lections toward arrearages until the resolution of any

timely appeal with respect to such arrearages.

Business defined.— As used in this section, the

Se ees der en 0 tay on viet: Ghee eilion

are open for regular business.

59a

Sec. 655. Payments to States

(a) Amounts payable each quarter

(1) From the sums appropriated therefor, the

Secretary shall pay to each State for each quarter an

amount—

(A) equal to the percent specified in para-

graph (2) of the total amounts expended by

such State during such quarter for the operation

of the plan approved under section 654 of this

title,

(B) equal to 90 percent the percent specified

in paragraph (3) (rather than the percent speci-

fied in subparagraph (A)) of so much of the

sums expended during such quarter as are at-

tributable to the planning, design, development,

installation or enhancement of an automatic

data processing and information retrieval system

(including in such terms the full cost of the

hardware components of such system) which the

Secretary finds meets the requirements specified

in section 654(16) of this title, or meets such

requirements without regard to clause (D)

thereof, and, and

percentage specified in subparagraph (A)) of

so much of the sums expended during such

quarter as are attributable to laboratory costs

incurred in determining paternity;

except that no amount shall be paid to any State on ac-

count of amounts expended to carry out an agreement

whicii it has entered into pursuant to section 663 of this

title. In determining the total amounts expended by any

State during a quarter, for purposes of this subsection.

there shall be excluded an amount equal to the total of any

60a

fees collected or other income resulting from services pro-

vided under the plan approved under this part.

(2) The percent applicable to quarters in a fiscal

year for purposes of paragraph (1) (A) is—

(A) 70 percent for fiscal years 1984, 1985,

1986, and 1987,

(B) 68 percent for fiscal years 1988 and

1989, and

tion as the Secretary may find necessary.

(2) Subject to subsection (d) of this section, the

Secretary shall then pay, in such installments as he

may determine, to the State the amount so estimated,

tion.

(3) Upon the making of any estimate by the

Secretary under this subsection, any appropriations

available for payments under this section shall be

deemed obligated.

Sept. 3, 1982, 96 Stat. 403

(d) State reports

Notwithstanding any other provision of law, no amount

shall be paid to any State under this section for any

quarter, prior to the close of such quarter, unless for the

period consisting of all prior quarters for which payment

is authorized to be made to such State under subsection

(a) of this section, there shall have been submitted by

the State to the Secretary, with respect to each quarter

in such period (other than the last two quarters in such

period), a full and complete report (in such form and

62a

manner and containing such information as the Secretary

shall prescribe or require) as to the amount of child

support collected and disbursed and all expenditures with

respect to which payment is authorized under subsection

(a) of this section.

(e) Special project grants for interstate enforcement; ap-

propriations

(1) In order to encourage and promote the de-

velopment and use of more effective methods of

enforcing support obligations under this part in cases

where either the children on whose behalf the sup-

port is sought or their absent noncustodial parents do

not reside in the State where such cases are filed, the

Secretary is authorized to make grants, in such

amounts and on such terms and conditions as the

Secretary determines to be appropriate, to States

which propose to undertake new or innovative

methods of support collection in such cases and

which will use the proceeds of such grants to carry

out special projects designed to demonstrate and test

such methods.

(2) A grant under this subsection shall be made

only upon a finding by the Secretary that the project

involved is likely to be of significant assistance in

carrying out the purpose of this subsection; and with

respect to such project the Secretary may waive any

of the requirements of this part which would other-

wise be applicable, to such extent and for such period

as the Secretary determines is necessary or desirable

in order to enable the State to carry out the project.

(3) At the time of its application for a grant

under this subsection the State shall submit to the

Secretary a statement describing in reasonable detail

the project for which the proceeds of the grant are

to be used, and the State shall from time to time

thereafter submit to the Secretary such reports with

respect to the project as the Secretary may specify.

63a

(4) Amounts expended by a State in carrying out

a special project assisted under this section shall be

considered, for purposes of section 658(b) of this

title (as amended by section 5(a) of the Child Sup-

port Enforcement Amendments of 1984), to have

been expended for the operation of the State’s plan

approved under section 654 of this title.

(5) There is authorized to be appropriated the

sum of $7,000,000 for fiscal year 1985, $12,000,000

for fiscal year 1986, and $15,000,000 for each fiscal

year thereafter, to be used by the Secretary in mak-

ing grants under this subsection.

({f])(b) The Secretary may, in appropriate cases, make di-

rect payments under this part to an Indian tribe or tribal

ligation to State;

(a)(1) The support rights assigned to the State under

section 602(a)(26) of this title or secured on behalf of a

child receiving foster care maintenance payments shall

constitute an obligation owed to such State by the in-

dividual responsible for providing such support. Such ob-

ligation shall be deemed for collection purposes to be

collectible under all applicable State and local processes.

(2) The amount of such obligation shall be—

(A) the amount specified in a court order

which covers the assigned support rights, or

(B) if there is no court order, an amount

determined by the State in accordance with a

formula approved by the Secretary, and

64a

(3) Any amounts collected from an absent a

noncustodial parent under the plan shall reduce,

dollar for dollar, the amount of his obligation under

subparagraphs (A) and (B) of paragraph (2).

(b) A debt which is a child support obligation assigned

to a State under section 602(a)(26) of this title is not

released by a discharge in bankruptcy under title 11.

(b) Nondischargeability—A debt (as defined in section

101 of title 11 of the U

State law to a State (as defined in such section) or mu-

nicipality (as defined in such section) that is in the nature

of support and that is enforceable under this part is not

released by a discharge in bankruptcy under title 11 of

the United States Code.

Sec. 657. Distribution of proceeds

(a) Amount collected during fifteen month period begin-

ning July 1, 1975

The amounts collected as child support by a State pur-

suant to a plan approved under this part during the 15

months beginning July 1, 1975, shall be distributed as

follows:

(1) 40 per centum of the first $50 of such amounts

as are collected periodically which represent monthly

support payments shall be paid to the family without

any decrease in the amount paid as assistance to such

family during such month;

(2) such amounts as are collected periodically

which are in excess of any amount paid to the family

under paragraph (1) which represent monthly sup-

port payments shall be retained by the State to

reimburse it for assistance payments to the family

during such period (with appropriate reimbursement

of the Federal Government to the extent of its

participation in the financing);

65a

(3) such amounts as are in excess of amounts

retained by the State under paragraph (2) and are

not in excess of the amount required to be paid dur-

ing such period to the family by a court order shall

be paid to the family; and

(4) such amounts as are in excess of amounts

required to be distributed under paragraphs (1), (2),

and (3) shall be (A) retained by the State (with

appropriate reimbursement of the Federal Govern-

ment to the extent of its participation in the financ-

ing) as reimbursement for any past assistance pay-

ments made to the family for which the State has

not been reimbursed or (B) if no assistance payments

have been made by the State which have not been

repaid, such amounts shall be paid to the family.

(b) Amount collected during any fiscal year beginning

after September 30, 1976

The amounts collected as support by a State pursuant

to a plan approved under this part during any fiscal year

beginning afier September 30, 1976, shall (subject to sub-

section (d) of this section) be distributed as follows:

(1) of such amounts as are collected periodically

which represent monthly support payments, the first

$50 of any payments for a month received in that

month, and the first $50 of payments for each prior

month received in that month which were made by

the absent parent in the month when due, shall be

paid to the family without affecting its eligibility for

assistance or decreasing any amount otherwise pay-

able as assistance to such family during such month;

(2) such amounts as are collected periodically

which are in excess of any amount paid to the family

under paragraph (1) and which represent monthly

support payments shall be retained by the State to

reimburse it for assistance payments to the family

during such period (with appropriate reimbursement

66a

of the Federal Government to the extent of its par-

ticipation in the financing);

(3) such amounts as are in excess of amounts re-

tained by the State under paragraph (2) and are not

in excess of the amount required to be paid during

such period to the family by a court or administrative

order shall be paid to the family; and

(4) such amounts as are in excess of amounts re-

quired to be distributed under paragraphs (1), (2),

and (3) shall be (A) retained by the State (with ap-

propriate reimbursement of the Federal Government

to the extent of its participation in the financing) as

reimbursement for any past assistance Payments

made to the family for which the State has not been

reimbursed or (B) if no assistance Payments have

been made by the State which have not been repaid,

such amounts shall be paid to the family.

of support proceeds

Whenever a family with respect to which child support

enforcement services have been provided pursuant to sec-

tion 654(4) of this title ceases to receive assistance under

part A of this subchapter, the State shall provide appro-

priate notice to the family and continue to provide such

services, and pay any amount of support collected, subject

to the same conditions and on the same bacis as in the case

of the individuals to whom services are furnished pursuant

to section 654(6) of this title, except that no application

or other request to continue services shall be required of

a family to which this subsection applies, and the provi-

sions of section 654(6)(B) of this title may not be applied.

(d) Disposition of amounts collected by State as child

support on behalf of children for whom public agencies

make foster care payments

Notwithstanding the preceding provisions of this sec-

tion, amounts collected by a State as child support for

67a

months in any period on behalf of a child for whom a

public agency is making foster care maintenance Payments

under part E of this subchapter

(1) shall be retained by the State to the extent

necessary to reimburse it for the foster care mainte-

nance payments made with respect to the child dur-

ing such period (with appropriate reimbursement of

the Federal Government to the extent of its participa-

tion in the financing);

(2) shall be paid to the public agency responsible

for supervising the placement of the child to the ex-

tent that the amounts collected exceed the foster care

maintenance payments made with respect to the child

during such period but n

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