Amicus Curiae Brief — Blessing v. Freestone

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No. 95-1481 L 28 ol

IN THE Quek

Supreme Court of the Billed States

OCTOBER TERM, 1995

LINDA J. BLESSING, Director, Arizona Department

of Economic Security, in her official capacity,

r Petitioner,

CATHY FREESTONE, SUSAN HARRINGTON, SONYA MADRID,

JUDITH ROGERS and ESPERANZA LAUSTAUNAU,

individually, on behalf of their minor children and on behalf

of all persons similarly situated,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE

THE STATES OF ILLINOIS, ALABAMA, ALASKA, CALIFORNIA,

COLORADO, CONNECTICUT, DELAWARE, FLORIDA,

GEORGIA, HAWAII, IDAHO, INDIANA, IOWA, KANSAS,

LOUISIANA, MAINE, MARYLAND, MASSACHUSETTS,

MICHIGAN, MISSISSIPPI, MONTANA, NEBRASKA, NEVADA,

NEW HAMPSHIRE, NEW JERSEY, NEW YORK, NORTH

CAROLINA, NORTH DAKOTA, OHIO, OKLAHOMA, OREGON,

PENNSYLVANIA, RHODE ISLAND, SOUTH CAROLINA,

SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH, VERMONT,

VIRGINIA, WASHINGTON, WYOMING, AND THE DISTRICT

OF COLUMBIA, AMERICAN SAMOA, GUAM, AND

THE VIRGIN ISLANDS IN SUPPORT OF PETITIONER

JAMES E. RYAN JAMES C. 0’CONNELL*

Attorney General of Illinois BARBARA L. GREENSPAN

BARBARA A. PREINER JAMES C. STEVENS

we es Special Assistant Attorneys General

Solicitor General of Illinois 169 N, LaSalle Street, Suite N-1000

Chicago, Illinois 60601

(312) 793-2380

Attorneys for Amicus Curiae,

* Counsel of Record State of Illinois

(Additional Attorneys General Listed on Following Page)

Printed by Authority of the State of Illinois (P.O. 36607—60—7-26-96)

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a a ee a EN CL ON Oe Oe ee ES

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................

STATEMENT OF INTEREST ...............

SUMMARY OF ARGUMENT ................

CONGRESS NEVER INTENDED TITLE IV-D

OF THE SOCIAL SECURITY ACT TO CRE-

ATE ENFORCEABLE RIGHTS TO CHILD

SUPPORT ENFORCEMENT SERVICES ....

A. Standard Of Review And Legislative In-

tent

The History Of Federal Child Support

Enforcement

Demonstrates

That Title IV-D Does Not Create En-

forceable Rights .............sesee08:

1.

Title IV-D was enacted to reduce the

costs of welfare to society and not

12

Il.

THE COMPREHENSIVE INTERNAL EN.-

FORCEMENT SCHEME OF TITLE IV-D ES-

TABLISHES A LEGISLATIVE INTENT TO

FORECLOSE PRIVATE ACTIONS UNDER 42

WBS. GERD oc ccccccccccccccsccccccceseses

CORTE ASS cccccccccccccssccceccccesssese

iii

TABLE OF CITED AUTHORITIES

Cases PaGE(s)

Albiston v. Maine Commissioner of Human Ser-

vices, 7 F.3d 258 (Ist Cir. 1993)........... l

Behunin v. Jefferson County Department of Social

Services, 744 F. Supp. 255 (D. Colo. 1990) .... l

Carelli v. Howser, 923 F.2d 1208 (6th Cir. 1991) . 24

Cort v. Ash, 422 U.S. 66 (1975) ............. 5, 19, 20

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

Edwards v. District of Columbia, 821 F.2d 651

Ds i Pi cispiccadbuseoesssedsbouseée 5

Freestone v. Cowan, 68 F.3d 1141 (9th Cir. 1995) . 1

Golden State Transit Corp. v. Los Angeles, 493

& | Fey re eee a 4

Howe v. Ellenbecker, 8 F.3d 1258 (8th Cir. 1983) . 1

King v. Bradley, 829 F. Supp. 989 (N.D. Ill. 1993). 1,17

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . 19

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) . 19

Merrell Dow Pharmaceutical, Inc. v. Thompson,

GED D> GS GED cc cccccccccccccccseses 5, 19, 20

Monzon v. Martinez, 833 F. Supp. 479 (E.D. Pa.

SED ced nddedecsbeseussckscaducueiencesece 1

Pennhurst State School & Hospital v. Halderman,

Se We OE GEE cbddbccdecbecvovescecséese 3, 4,5

State of Ohio, DHS v. Sullivan, 789 F. Supp. 1395

Se GE SE cdsucoccecesonsdbsncssdcee 16

Sullivan v. Stroop, 496 U.S. 478 (1990) ........ 6

Suter v. Artist M., 503 U.S. 347 (1992)..... 3, 4, 5, 17

iv

Thompson v. Thompson, 484 U.S. 174 (1988) .. 5

Victorian v. Miller, 813 F.2d 718 (5th Cir. 1987) .. 21

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

BD encccsocssdcntsedascbassddeunueuniny 6, 7, 24

Wilder v. Virginia Hospital Association, 496 U.S.

GD GERD occ cccusccccudecocscéscocééecese 4,6

Wright v. Roanoke Redevelopment and Housing

Authority, 479 U.S. 418 (1987) ............ passim

Constitution

ES) FO rn ee eee 7

Statutes

DF Os EEE ngs cecccntcoscosueesences 8

42 U.S.C. § 9D4 (1986) 2... cece ccc cc cececeeces 23, 24

42 U.S.C. § 508 (b) (1996) . 0... cece ee ees 23, 24

42 U.S.C. §§ 601-617 (1935) (amended 1975) ....... 6

42 U.S.C. § G02 (a) (1996) .. 0... cece eee eee 8

42 U.S.C. § 602 (a) (26) (1996) ... 2... cece ees )

42 U.S.C. § 603 (h) (1996) .... 2... eee eee, 9, 20, 21, 22

42 U.S.C. § 608 (h) (1984) . 0... cee eee 11, 13

42 U.S.C. § 604 (a) (1996) 0... cece eens 23, 24

42 U.S.C. § 651 (1975) (amended 1984) ........... 6, 11

42 U.S.C. §§ 651-669 (1975) . 0... eee ee 6

BUBC. CGBGIUD .....cccccccccvccccccsess 9

Gp Gee SEED cScbcccvccscccdbeseceecees 13

42 U.S.C. § 652 (1988) ....... cc ccc cece wee eens 15, 24

42 U.S.C. § 652 (1996) .... 6... eee eee eens 16, 19, 23, 24

42 U.S.C. § 654 (1975) 2... ccc cece eee eee ees 9

42 U.S.C. § 654 (6) (1975) (amended 1981) ........ 10

42 U.S.C. $ 964 (c) (2) (1996) ... 6... cece e eee ees ll

42 U.S.C. § 655 (a) (1) (C) (1988) .... 2.6... eee eee 24

42 U.S.C. § 666 (b) 1984) (amended 1988) ......... 12

42 U.S.C. § 681 (1988) ....... cece cece eee eens 14

42 U.S.C. § 682 (h) (1988) .... 6... cece ees 15

42 U.S.C. § 1204 (1996) ....... cece eee e eens 23, 24

42 U.S.C. § 1316 (1996) ....... cece cece eee ees 23

GBs © EE coc esvccceccccccccescccccccss passim

Regulations

45 C.F.R. § 308.72 (a) (1994)... 6.6 c cee cece ees ll

46 C.P.R., Part B06 20... cccccccccccccvccsccces 15

45 C.F.R. § 305.11 (1994) 2.0... 6 cece eee ees 20, 21

45 C.F.R. § 305.20 (1985)... 0.0... e eee ee 13

45 C.F.R. § 305.20 (a) (2) (1985) ..... 6... ee eee e ee 14

45 C.F.R. § 305.20 (a) (4) (1994) ....... 66. c eee ees 16

45 C.F.R. § 305.21 (d) (1994) .... 6.6... cece e eee 18

45 C.F.R. § 305.98 (1985)... 0... e ees 13

45 C.F.R. § 305.99 (1994) .. 0.6... 22

45 C.F.R. § 305.99 (c) (1994) 2.2... 6c e ee eee 20, 21

45 C.F.R. § 305.99 (d) (1994) ... 0.6... cee ee eens 23

Legislative Materials

Pub. L. No. 88-525, §2, 78 Stat. 703 (1964)...

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

93-647, § 451, 1974 U.S.C.C.A.N. (88 Stat.)

TE éncnssdcetesbucchssesadussisaeenben

Family Support Act of 1988, Pub. L. No. 100-485,

§ 401, 1983 U.S.C.C.A.N. (102 Stat.) 2343 ....

S. Rep. No. 93-1356, 98d Cong., 2d Sess. (1974),

reprinted in 1974 U.S.C.C.A.N. 8133 .......

S. Rep. No. 98-387, 98th Cong., 2d Sess (1984),

reprinted in 1984 U.S.C.C.A.N. 2397..... 5, 20, 21

Staff of Senate Comm. on Finance, 94th Cong., Ist

Sess., Child Support Data and Materials

CE. HUD Bee ccc vcvéncccdoccacadscss

Child Support Enforcement Program: Hearings

Before the Subcomm. on Public Assistance and

Unemployment Compensation of the House

Comm. on Weys and Means, 100th Cong., 2d

es GED 0-00 cencecdacecbesesbbctckéedens

Welfare: Reform or Replacement? Hearing Before

the Subcomm. on Social Security and Family

Policy of the Senate Comm. on Finance 100th

CO, BR TR, Gee cc ccckevccccecsscce

15

14

Miscellaneous

Child Support Enforcement Nineteenth Annual

Report to Congress (1994), U.S. Department of

Health and Human Services, Administration for

Children and Families, Office of Child Support

PEED o6unbddgheocbunewesedocesecacee

Child Support Enforcement Program: Paternity

Establishment and Revision of Child Support

Enforcement Program and Audit Regulations,

59 Fed. Reg. 66204 (1994).............. 15, 16, 17

Estimates of Cost Avoidance Attributable to Child

Support Enforcement, Advanced Sciences, Inc.

and SRA Technologies, Arlington, VA. 1987, for

the Office of Child Support Enforcement, Family

Support Administration, U.S. Department of

Health and Human Services ...............

Garfinkel & McLanahan, Single Mothers and Their

Children: A New American Dilemma, Urban

Institute Press, Washington, D.C. (1986) ....

ll

7

se)

we

STATEMENT OF INTEREST

The amici curiae States of Illinois, Alabama, Alaska,

California, Colorado, Connecticut, Delaware, Florida,

Georgia, Hawaii, Idaho, Indiana, lowa, Kansas, Louisi-

ana, Maine, Maryland, Massachusetts, Michigan, Missis-

sippi, Montana, Nebraska, Nevada, New Hampshire,

New Jersey, New York, North Carolina, North Dakota,

Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island,

South Carolina, South Dakota, Tennessee, Texas, Utah,

Vermont, Virginia, Washington, and Wyoming, the Dis-

trict of Columbia, American Samoa, Guam, and the Vir-

gin Islands, submit this brief pursuant to Supreme Court

Rule 37 in support of the Petitioner, Linda J. Blessing,

Director, Arizona Department of Economic Security, re-

questing reversal of the decision rendered by the United

States Court of Appeals for the Ninth Circuit in Free-

stone v. Cowan, 68 F.3d 1141 (9th Cir. 1995).

The Freestone decision, and the other cases which are

in accord,’ substantially broaden the scope of State liabil-

ity under 42 U.S.C. §1983 by allowing courts to find that

federal regulations create enforceable rights to sue State

actors in federal court. The Ninth Circuit decision, if

affirmed, will dramatically alter the States’ responsibil-

ities for child support enforcement. There will also be an

increased burden on the federal courts, since any individ-

ual who claims not to have received some child support

' Albiston v. Maine Commissioner of Human Services, 7 F.3d

258 (1st Cir. 1993); Davis v. McClaran, 909 S.W.2d 412 (Tenn.

1995); Howe v. Ellenbecker, 8 F.3d 1258 (8th Cir. 1993); King

v. Bradley, 829 F. Supp. 989 (N.D. Ill. 1993); Monzon v. Mar-

tinez, 833 F. Supp. 479 (E.D. Pa. 1993); Behunin v. Jefferson

County Department of School Services, 744 F. Supp. 255 (D.

. 1990).

7)

ante

enforcement service will have the ability to bring an

action in federal court. The State IV-D agencies, and the

State courts, would be subject to varying orders from

State and federal courts to “hurry up” or to engage in a

court-created process in each of these individual cases.

There would be a concomitant increase in each State’s

cost of providing child support enforcement services. Ulti-

mately, this would divert fiscal resources from the actual

collection of child support and impose enormous financial

and programmatic burdens on State IV-D programs. This

ruling would open the door for multitudinous suits to

determine individual rights created by federal regulation.

Everyone agrees child support enforcement programs

are a necessity in today’s society. Collecting child support

to remove families from welfare and prevent other fam-

ilies from entering the welfare system is sound public

policy. Since the original legislation in 1975, this country

has moved steadily toward establishing effectively run

child support enforcement programs at both the State

and federal levels. New and innovative methods of col-

lecting child support from errant responsible relatives

are being tested on an ongoing basis. Some methods have

proven to work better than others. The most effective

methods of collecting child support are being put into

place.

It must be acknowledged, however, that child support

enforcement programs are not yet perfect. In fact, it is

questionable whether they will ever become perfect.

Reality dictates otherwise. Congress has never expected

or required the States to run perfect [V-D programs. For

this Court to allow litigants to sue to require more from

the States is contrary to Congress’ intent and sound pub-

lic policy.

- =

SUMMARY OF ARGUMENT

At issue before this Court is the ruling of the United

States Court of Appeals for the Ninth Circuit holding

that Title IV-D of the Social Security Act creates enforce-

able rights in the plaintiff class and that the statute does

not contain an enforcement scheme sufficiently compre-

hensive to preclude a §1983 action. The enforceable

rights analysis of the Ninth Circuit reflects a disregard

of the governing principles expressed by this Court in

Pennhurst State School & Hospital v. Halderman, 451

U.S. 1 (1981) (*Pennhurst I”), and Suter v. Artist M., 503

U.S. 347 (1992). Congress did not intend to create a new

federal entitlement to child support enforcement services

by enacting Title [V-D in 1975, or by any of the subse-

quent additions and amendments. Or, if Title IV-D was

intended to create new federal property rights, Congress

certainly did not intend for the federal courts to oversee

the provision of State court family law services by State

officials through private §1983 enforcement actions.

Title IV-D contains a complex and comprehensive in-

ternal regulatory enforcement mechanism. Congress

created an entirely new and separate administrative

agency in the Office of Child Support Enforcement (here-

inafter “OCSE”), within the Department of Health and

Human Services (hereinafter “HHS”), to implement,

assess, and enforce Title IV-D. Considerable technical ex-

pertise is necessary to understand what is required for

each State to develop an efficient and effective child sup-

port enforcement program which works efficiently and

effectively with the other States and Territories. Con-

gress committed this task to the OCSE and not to the

federal judiciary, except by the normal process of judicial

review of administrative agency action.

_

ARGUMENT

L

CONGRESS NEVER INTENDED TITLE IV-D OF THE

SOCIAL SECURITY ACT TO CREATE ENFORCEABLE

RIGHTS TO CHILD SUPPORT ENFORCEMENT SER-

VICES.

A. Standard Of Review And Legislative Intent.

This Court has held that there are two distinct ques-

tions of law which control whether a federal cause of

action results from the interaction of a federal statute

and 42 U.S.C. §1983. A court must first decide whether

Congress intended the statute to create rights sufficient-

ly definite and certain for enforcement by the §1983 rem-

edy. Suter v. Artist M., 503 U.S. 347, 357 (1992); Wilder

v. Virginia Hospital Association, 496 U.S. 498, 508

(1990); Wright v. Roanoke Redevelopment and Housing

Authority, 479 U.S. 418, 423 (1987); Pennhurst State

School & Hospital v. Halderman (Pennhurst I), 451 U.S.

1, 18-28 (1981). If the statute was intended to benefit the

putative plaintiff, “the provision creates an enforceable

right unless it reflects merely a ‘congressional preference’

for a certain kind of conduct rather than a binding obli-

gation on the governmental unit, .. . or unless the in-

terest the plaintiff asserts is ‘too vague and amorphous’

such that it is ‘beyond the competence of the judiciary to

enforce.’ ” Wilder, 496 U.S. at 509 (citing Golden State

Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989),

quoting Wright v. Roanoke, 479 U.S. at 431-32). Finally,

if a statute does create enforceable rights within the

meaning of §1983, a court must then decide whether

Congress has foreclosed enforcement of the statute in the

enactment itself. Jd. at 508.

adie:

The first inquiry is to determine the intent of federal

legislation. Congressional intent may be discerned from

legislative history, the language of the statutes them-

selves, and the structure of the statutory scheme as a

whole. Suter, 503 U.S. at 357. Courts have focused pri-

marily on whether the statutory language is literally

mandatory, and its degree of specificity. Pennhurst I, 451

U.S. at 19; see, e.g., Edwards v. District of Columbia, 821

F.2d 651, 654-656 (D.C. Cir. 1987).

This Court has previously identified four factors which

are present when a federal statute does not create en-

forceable rights:

(1) the plaintiffs are not part of the class for whose

especial benefit the statute was passed; (2) the indi-

cia of legislative intent reveals no congressional pur-

pose to provide a private cause of action; (3) a federal

cause of action would not further the underlying pur-

poses of the legislative scheme; and (4) the respon-

dents’ cause of action is a subject traditionally rele-

gated to state law.’

Cort v. Ash, 422 U.S. 66, 78-79 (1975); see also Merrell

Dow Pharmaceutical, Inc. v. Thompson, 478 U.S. 804,

810-12 (1986). Although these four factors were used to

determine whether a statute creates an implied right of

action in favor of a particular plaintiff, there is a signifi-

cant area of overlap remaining between that determina-

* This case involves child Tete 2 a enfeoment and establish-

ment of ——. that the basic re-

sponsibility for nt of paternity

Todt aye , 2d Sess.

6-7 (1984), reprinted in 1 U.S.C.C.A.N. 2397, 2402-2403.

Moreover, . there has been a long-standing tradition of reserv-

ing domestic relations matters to the States. Thompson v.

Thompson, 484 U.S. 174, 186 n.4 (1988).

enffies

tion and the determination of whether a federal statute

confers substantive rights on a § 1983 plaintiff. See Wild-

er, 496 U.S. at 525-26 (Rehnquist, C.J., dissenting).

B. The History Of Federal Child Support Enforcement

Legislation Demonstrates That Title IV-D Does Not

Create Enforceable Rights.

1. Title IV-D was enacted to reduce the costs of wel-

fare to society and not for the especial benefit of

custodial parents and their children.

Title [V-D, “Child Support and Establishment of Pater-

nity,” was added to the Social Security Act in 1975. 42

U.S.C. §§651-669 (1975). Title [IV-D has always been

inextricably intertwined with Title [V-A, Aid to Families

with Dependent Children (“AFDC”). 42 U.S.C. §§601-617

(1935) (amended 1975); Sullivan v. Stroop, 496 U.S. 478,

483 (1990). Both Title [V-A and Title [IV-D operate

through federal grants-in-aid contracts with participating

States; States receive federal matching funds for State

expenditures for programs which must meet federal leg-

islative and contractual requirements.

The legislative history, the structural connections be-

tween Title [V-D and Title [V-A statutes, and certain

features of the statutes themselves, show that Congress

intended IV-D to produce general benefits to society as

a whole, the most immediate and direct being welfare

cost avoidance by reducing poverty in the rapidly grow-

ing class of children of absent parents and their custodi-

ans. See Wehunt v. Ledbetter, 875 F.2d 1558, 1565 (11th

Cir. 1989). The purpose of federal child support legisla-

tion has always been to mitigate the social costs which

flow from the sharp and continuing proportional increase

—_ =

of impoverished single parents and children.’ Congress

hoped to realize several national welfare benefits by im-

proving the socio-economic status of a distinct group bur-

dened with a particular set of disadvantages. Congress

never intended the legislation making federal funds

available for State child support enforcement programs

to confer a new federal “entitlement” on millions of indi-

viduals who must or may receive IV-D services.

AFDC, which was constitutionally grounded on the fed-

eral spending powers, originated during the 1930's.‘ Title

IV-A has always been a joint federal and State welfare

program, administered by the States in accordance with

federal requirements, delivering financial assistance to

poor families with children who are economically de-

prived of support from two parents due to absence, inca-

pacity, or death of one parent.°

* This trend is not limited to the United States; it is global,

and generally attributed by scholars and researchers to the

effect of modern industrial and economic systems

on family and social structures. See nkel & McLanahan,

Single Mothers and Their Children: A New American Dilem-

ma, Urban Institute Press, Washington, D.C. (1986), pp. 12.

46, 55-85, 173.

* Article I, § 8, cl. 1, of the U.S. Constitution contains the

spending power, which provides, shall have Power

TP sax ide for the . general Welfare of the United

epee tle IV-D was also enacted by Congress t to

a oe att sani Social Services Amendments of 1974, Pub.

L No. 93-64 1 et seq., 1974 U.S.C.C.A.N. (88 Stat.) 2716,

2732. See also Wehone v. Ledbetter, 875 F.2d at 1563.

* In 1961, States were given the option of extending AFDC

——— to two parent families where ~ & a

is underemployed, or unem

ene wey tom ow tee pemity Satpere Ast

(continued...)

==

The original! federal child support enforcement provi-

sions were exclusively directed at collecting support to

decrease the costs of AFDC and other welfare programs.°

Any support collected was paid to the family, and was

counted as income to the recipients for purposes of AFDC

eligibility. In 1975, Congress decided to: separate the

State child support enforcement activities organizational-

ly from IV-A financial assistance activities; overrule judi-

cial decisions which had prevented garnishment of fed-

eral payments to child support obligators; impose federal

requirements designed to achieve both improved State

family law enforcement mechanisms and national con-

sistency in certain aspects of family law; include non-

AFDC recipients; provide increased incentives to States

to actively pursue child support enforcement; and in-

crease federal assistance to and oversight of State pro-

grams. Social Services Amendments of 1974, Pub. L. 93-

647, §451 et seq., 1974 U.S.C.C.A.N. (88 Stat.) 2716, 2732

(codified at 42 U.S.C. §602 (a)).

> (..continued)

of 1988 made AFDC-UP mandatory for all [V-A programs for

a trial period to end in 1998. Family Support Act of 1988, Pub.

Ay 100-485, §401, 1988 U.S.C.C.A.N. (102 Stat.) 2343,

° AFDC recipients are automatically eligible for food stamps,

and housing ts, due to the relative eligibility standards.

7 U.S.C. §2014 et seg. (1996). Food stamps began in 1964. Pub.

L. No. 88-525, §2, 78 Stat. 703 (1964). Benefits between all

three are coordinated, as the monetary value of a

family’s monthly food stamps allotment and housing subsidies

may be counted as income for purposes of AFDC benefits. Cost

avoidance in non-AFDC welfare programs has always been a

goal of federal child support legislation.

collins

Title [V-A required participation in a separate child

support enforcement program under Title IV-D as a con-

dition of IV-A participation. Jd., 1974 U.S.C.C.A.N. (88

Stat.) 2716, 2742. The sanction for failing to operate a

State IV-D program in compliance with federal require-

ments was, and still is, reduction in federal IV-A pay-

ments. There has never, however, been a noncompliance

sanction on federal IV-D payments. 42 U.S.C. §603 (h)

(1996).

The federal child support enforcement program estab-

lished in Title [V-D remains adjunct to [V-A; States must

participate in both to participate in either. Applicants

and recipients are required to: 1) assign to the granting

State all rights to support from any third party which

have accrued at the time of assignment; and 2) cooperate

in establishing paternity and support obligations and in

enforcing assigned obligations, unless the State IV-A

agency finds good cause for failure to cooperate, based on

federal standards considering the child’s best interests.

42 U.S.C. §602 (a) (26) (1996).

Congress created a separate organizational unit within

HHS to administer Title IV-D, the OCSE. 42 U.S.C. §652

(1975). Congress delegated to OSCE the discretionary

authority to define an “efficient and effective” State child

support program, to decide whether States were comply-

ing with federal [IV-D requirements based on annual pro-

gram audits. Jd. The original [IV-D services included lo-

cating absent parents, establishing paternity and support

obligations, and enforcing support obligations assigned to

the State under U.S.C. §602 (a) (26). 42 U.S.C. §654

(1975).

Congress also decided that non-AFDC families should

receive IV-D enforcement services which again shows the

=

legislative focus on cost avoidance, rather than creation

of a new entitlement. 42 U.S.C. §654 (6) (1975) (amended

1981). Extending IV-D services to non-AFDC families

produced significant cost avoidance.

(T}he problem of non-support is broader than the

AFDC rolls and .. . many families might be able to

avoid the necessity of applying for welfare in the first

place if they had adequate assistance in obtaining

the support due from absent parents.

S. Rep. No. 93-1356, 93d Cong., 2d Sess. (1974), reprinted

in 1974 U.S.C.C.A.N. 8133, 8158. The staff materials

prepared for the Senate Committee on Finance regarding

the Title [V-A and IV-D legislation of 1975 can leave

little doubt that economic and spending issues were of

paramount importance to the legislators. Staff of Senate

Comm. on Finance, 94th Cong., 1st Sess., Child Support

Data and Materials, pp. 1-5, and Appendixes, pp. 123-

139 (Comm. Print 1975).

In 1984, Congress took steps to insure that State IV-D

programs would obtain the welfare cost avoidance bene-

fits from both non-AFDC support collections and recovery

of AFDC costs. While many of the savings in social and

governmental costs realized by redistributing income

from absent parents to the custodial family are intangi-

ble or so indirect that measurement is difficult or im-

possible, research demonstrates some significant success

in achieving welfare cost avoidance from non-AFDC sup-

port collections. A study commissioned by OCSE found

that during 1983 and 1984, every $5.00 in non-AFDC

child support collected represented $1.00 in welfare cost

savings because collections either prevented non-AFDC

families from participating in AFDC, Medicaid, and/or

aufiies

food stamps, or reduced the amount of assistance pay-

ments.’

In 1980, the 75% federal financial participation for

non-AFDC IV-D services was made permanent, but this

incentive had not prompted all States to pursue non-

AFDC cases. Therefore in 1984, Congress changed the

purpose statement for IV-D to specifically state the pro-

gram was intended to establish and enforce parental

duties of support to all children who need assistance, re-

gardless of whether they receive AFDC. 42 U.S.C. §651

(1975) (amended 1984). Congress wanted AFDC reim-

bursement as well as achieving other kinds of welfare

cost avoidance flowing from non-AFDC collections.

Despite the legislative directive to provide IV-D ser-

vices to non-AFDC families, certain distinctions remain

between these AFDC and non-AFDC participants. For

example, while the I.R.S. intercept of federal income tax

returns is available in AFDC cases for past due support

after the child is 18, the child must still be under 18 for

L.R.S. intercepts in non-AFDC cases. 42 U.S.C. §664 (c)

(2) (1996); 45 C.F.R §303.72 (a) (1994).

Another result of the 1984 amendments was the adop-

tion of an internal regulatory scheme significantly dif-

ferent from the original audit and penalty provisions,

which were functionally identical to those which still

apply to virtually all welfare entitlement programs. 42

U.S.C. §603 (h) (1984). The new focus was on effective-

’ Estimates of Cost Avoidance Attributable to Child Support

Enforcement, Advance Sciences, Inc. and SRA Technologies,

Arlington, Va. 1987, for the Office of Child Support Enforce-

ment, Family Support Administration, U.S. Dept. of Health

and Human Services.

aniithan

ness and efficiency, rather than technical compliance

with mandatory process and procedures defined by the

State plan requirements.

In both the 1984 and 1988 amendments to IV-D, Con-

gress decided to compel the States to enact wage with-

holding statutes, thereby requiring the assistance of

private employers for child support enforcement in order

to achieve general social benefits. 42 U.S.C. §666 (b)

(1984) (amended 1988). There is no clearer indication

that the legislative purpose of IV-D was to secure overall

benefits to large groups of citizens than the mandate in

IV-D to enlist private resources to improve the economic

status of children with absent parents. Federal en-

titlements involve providing money, money equivalents

(food stamps), or subsistence needs (housing, medical

care, and medicines) to a beneficiary class, from public

funds. Title IV-D is not intended to deliver any particu-

lar benefits to any particular individuals or family; fur-

ther, any economic benefits to individuals or families

which do result are paid by private, not public funds.

2. Legislative intent reveals no congressional pur-

pose to provide enforcement rights to Title IV-D

services.

The foregoing discussion demonstrates that the legisla-

tive purpose behind Title IV-D is cost avoidance. In addi-

tion, the statutory scheme of Title IV-D establishes that

Congress never intended to create enforceable rights to

child support enforcement services. Instead, Congress in-.,

tended to monitor and evaluate State programs, give

technical assistance to the States, and, in certain in-

stances, require the States to run more effective child

support enforcement programs.

= =

Congress by statute delegated authority to the Secre-

tary of HHS to define what level of performance was re-

quired to substantially comply with the federal mandate

to operate an effective and efficient IV-D program.* 42

U.S.C. §652 (1984). In response, OCSE by regulation

added new program performance indicators to the IV-D

internal enforcement scheme. The new indicators were

designed to compel States to achieve both AFDC cost

recovery and welfare cost avoidance by non-AFDC col-

lections, and to set minimum cost-effectiveness standards

for State IV-D operations. 45 C.F.R. §§305.20 and 305.98

(1985). At the same time, the Secretary of HHS, through

OSCE, developed new program compliance and audit cri-

teria to define “substantial” compliance, as required by

the statutory amendment. 42 U.S.C. §603 (h) (1) (1984).

The 1985 OSCE regulations provided that for the fiscal

year 1984 audit period certain listed audit criteria re-

lated primarily to administrative or fiscal matters “must

be met” and that the procedures required by nine audit

criteria related to basic services provided under a Title

IV-D plan “must be used in 75 percent of the cases

* Prior to 1984, under §403 (h) of the Act a State was subject

to a 5% reduction of its AFDC funds if an audit found that the

State was not in full compliance with statutory and regulatory

requirements. OCSE began performing compliance audits after

December 21, 1976, but Congress enacted a moratorium on the

5% penalty and extended the moratorium several times.

Therefore, no State actually had its AFDC funding reduced.

On August 16, 1984, Congress changed the standard of com-

pliance from full compliance to substantial compliance and

provided for gradual reductions starting with a reduction of

not less than 1%, nor more than 2% and increasing to a maxi-

mum of 5% with each consecutive finding that a State is not

complying substantially with Title [IV-D requirements. 42

U.S.C. $603 (h) (1) (1984).