Aid To Families With Dependent Children; AFDC/Child Support Program Cooperation and Referral

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Parts 232 and 235

Aid To Families With Dependent Children; AFDC/Child Support

Program Cooperation and Referral

AGENCY: Administration for Children and Families (ACF), HHS.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This proposed rule is part of President Clinton's recently

announced initiative to strengthen the child support enforcement system

and promote parental responsibility. ACF is proposing to amend the

regulations for the Aid to Families with Dependent Children (AFDC)

program under title IV-A of the Social Security Act to improve

cooperation requirements as follows:

Prior to receipt of AFDC, applicants will be required to provide

sufficient information to located the non-custodial parent, establish

the paternity of a child born out of wedlock and secure child support.

By making the receipt of benefits conditional upon fulfillment of the

cooperation requirement at the time of application, this policy will

increase the likelihood of success in locating non-custodial parents,

establishing paternity, and securing support.

Applicants and recipients will be held to a strict

cooperation standard. They will be required to provide the name of the

father and identifying information available to the caretaker such as

the address, Social Security Number, telephone number, place of

employment or school, and names of relatives, etc.

To ensure effective due process protection, States will be

required to establish criteria to determine when the individual cannot

reasonably be expected to know the required identifying information.

The AFDC agency will be required to refer applicants to

the child support agency within two working days of application so that

the non-custodial parent can be located and paternity action can be

initiated right away.

To ensure that clients are protected from delays in

processing applications, the prohibition on State or local agencies

from denying, delaying or discontinuing assistance pending a good cause

determination will also apply to the cooperation determination.

To provide additional flexibility, States may request

waivers under the Intergovernmental Cooperation Act to have the child

support agency, rather than the AFDC agency, make the good cause and

cooperation determination. Since the child support agency has the

responsibility to bring legal action to establish paternity, it is

often in the best position to make this determination.

The current good cause provisions are unchanged. Applicants and

recipients who have good cause will continue to be exempt from

cooperating.

DATES: Interested persons and agencies are invited to submit written

comments concerning these regulations no later than September 16, 1996.

ADDRESSES: Comments should be submitted in writing to the Assistant

Secretary for Children and Families, ATTENTION: Mr. Mack A. Storrs,

Director, Division of AFDC/JOBS, 5th Floor, Office of Family

Assistance, 370 L'Enfant Promenade, S.W., Washington, D.C. 20447 or

delivered to the Office of Family Assistance, 5th Floor, Aerospace

Building, 901 ``D'' St., S.W., Washington, D.C. 20447, between 8:00

a.m. and 4:30 p.m. on regular business days. Comments received may be

inspected during these hours by making arrangements with the contact

person.

FOR FURTHER INFORMATION CONTACT: Mr. Mack A. Storrs, Administration for

Children and Families, Office of Family Assistance, 5th Floor, 370

L'Enfant Promenade, S.W., Washington, D.C. 20447, telephone (202) 401-

9289.

SUPPLEMENTARY INFORMATION:

Background

Recently, President Clinton announced a new initiative to

strengthen the child support

[[Page 37237]]

enforcement system and promote parental responsibility. The President

directed the Secretary to exercise her legal authority to propose new

rules which would require all applicants for welfare to cooperate by

providing sufficient information, prior to receipt of AFDC, to locate

the non-custodial parent, establish the paternity of a child born out

of wedlock and secure child support. The new regulations will also

require AFDC recipients to similarly cooperate at their next

redetermination.

Currently, more than 1.2 million children are born each year to

unwed parents. These children deserve to have their relationship with

their father legally acknowledged and to receive financial and

emotional support from him. No father should be able to bring a child

into this world and then just walk away. A clear message must be

conveyed to parents, especially young parents, that bringing a child

into this world brings with it significant, long-term responsibilities.

Paternity establishment is the crucial, first step toward securing

financial support for a child, and, perhaps even more importantly,

promoting the development of a nurturing relationship with the father.

If paternity is not established, the child may be denied a lifetime of

emotional, psychological and economic benefits. While a parental link

opens the door to child support and other potential financial benefits,

it also provides qualitative benefits to the child, such as the value

of a father's legal acknowledgement of their relationship, an

opportunity for extended family ties, and access to medical history and

genetic information.

The Administration has made paternity establishment a top priority.

In the Omnibus Reconciliation Act of 1993, the Administration proposed,

and Congress enacted, a requirement for States to establish voluntary

paternity acknowledgment programs in hospitals as an effective way to

establish child/father bonds right from the start of a child's life.

Voluntary data from thirty-one States show that more than 200,000

paternities were established through the in-hospital program in 1995.

In addition, the total number of paternities established by child

support agencies has increased by 40 percent since 1992. Still, more

needs to be done. That is why the President has ordered the Secretary

of the Department of Health and Human Services to exercise her legal

authority to propose new regulations on paternity establishment and

child support cooperation in the AFDC program.

Unless paternity is established for a child in a family seeking

welfare, the government pays the costs of raising the child--costs that

the father should be sharing. As a condition of receipt of welfare

benefits, mothers are currently required to cooperate with paternity-

establishment efforts. However, the process of cooperating is seldom

completed during the application process, and efforts to determine

cooperation and establish paternity are often not made until after the

mother has begun receiving benefits. Research shows that a greater

percentage of mothers know the identity and whereabouts of the father

of their child than is currently reported to welfare agencies. Because

agencies do not receive all relevant information, paternity is often

not established. In fact, the national rate for paternity establishment

in welfare cases is only about 40 percent. Under these proposed rules,

quick action would be taken to improve life prospects for families.

Since passage of the Family Support Act in 1988, States have been

dramatically changing the culture of welfare to emphasize that

assistance ought to be temporary while families take the necessary

steps to become self-sufficient. Establishing paternity and getting

child support from the non-custodial parent, combined with finding and

holding a job, are critical components of a financial base leading to

independence. In addition to assuring that eligible applicants receive

prompt and accurate benefits, eligibility staff should know, understand

and communicate the benefits and need for paternity establishment and

self-sufficiency.

Discussion of Proposed Changes

In cases of a child born out of wedlock, the establishment of

paternity is a critical first step in the child support enforcement

process. The earlier paternity is established, the sooner the child may

benefit from child support, the father's medical benefits, and

information about his medical history. The child may also gain access

to other financial benefits such as dependent's benefits under Social

Security, pensions, veterans' benefits, and rights of inheritance.

Section 402(a)(26)(B) of the Social Security Act provides that, as

a condition of eligibility for aid, each applicant or recipient will be

required to cooperate with the State in establishing the paternity of a

child born out of wedlock, in locating the non-custodial parent and in

obtaining support or any other payments or property due such applicant

or such child, unless there is good cause for refusing to cooperate.

Good cause determinations are rendered by the AFDC agency, based on

standards prescribed by the Secretary.

Current rules at Sec. 232.12(b) provide that the applicant or

recipient shall provide information, but allow an individual to

``attest to the lack of information, under penalty of perjury.'' Many

unmarried applicants are routinely attesting that they do not have the

basic information needed to locate the father and establish paternity.

As a result, paternity is established in only about 40 percent of these

cases.

To increase the rate of paternity determinations, a number of

States have requested that we tighten the definition of cooperation by

requiring that applicants and recipients furnish specific information

about the identity of the non-custodial parent. Under waivers in their

welfare reform demonstrations, a number of States have modified or

proposed modifications to the cooperation criteria to define

cooperation as providing specific information. Some of these

modifications have subsequently been challenged in court for providing

no exceptions. Advocacy groups have also expressed concern about

changes in the cooperation rules because some caretaker relatives do

not have or cannot be reasonably expected to obtain the necessary

information to identify and locate the non-custodial parents. We are

proposing a regulation which we believe balances these concerns.

Recognizing how important it is to establish paternity or secure

child support at the earliest possible time, we propose to amend the

regulations at Sec. 232.12 and Sec. 235.70 to require that States take

action to secure the applicant's cooperation on paternity and child

support within the application-processing period. Except in

circumstances where the client cannot be reasonably expected to know or

obtain the information, or claims good cause, the applicant will be

required to provide the name and sufficient information necessary to

identify the non-custodial parent.

We propose to amend Sec. 232.12(b) to require States to establish

effective procedures to obtain necessary information to identify the

non-custodial parent. We have specified at the revised

Sec. 232.12(b)(3) that the required cooperation includes providing both

the name of the putative father and other information sufficient to

verify the identity of the person named. The other information which

must be given could include: the social security number, date of birth,

past or present address,

[[Page 37238]]

telephone number, past or present place of employment, past or present

school attended, names and addresses of parents, friends or relatives

able to provide location information, or other information which could

enable service of process on such person. This requirement is intended

to ensure that the mother provide at least the name of the father and

sufficient additional information so that the State or local agency can

verify that the person named is an actual person and not a fictitious

name and to elicit information that can aid the agency in locating the

person. This new specific requirement does not change the general

requirement at Sec. 232.12(b)(1) that the mother must provide any other

verbal or written information, or documentary evidence known to,

possessed by, or reasonably obtainable by the applicant or recipient.

Further, the revised regulation would replace the attestation rule

at Sec. 232.12(b)(3) with a provision that would allow States to

establish criteria for determining cooperation in cases where the

applicant or recipient cannot reasonably be expected to know the

identifying information about the non-custodial parent. We recognize

that the kind and amount of information that a client may have depends

on the nature of the relationship and believe that States are in the

best position to make this determination. We have included an example

of one common situation that the criteria must address--cases where

recipients do not know or have the required information due to a long

lapse of time since contact with the non-custodial parent. This will

allow States to require more than a mere attestation but to accept less

than the required information, as specified by the State, in limited

circumstances. Providing States this flexibility is reasonable since

they are in the best position to develop criteria that respond to their

administrative needs and caseload characteristics. States are

encouraged to elicit and seriously consider the views of client

representatives and advocates when formulating the new criteria.

Section 232.46 prohibits State or local agencies from denying,

delaying or discontinuing assistance pending a good cause

determination. To ensure that clients are protected from delays in

processing applications, we are proposing that this requirement also

apply to the cooperation determination. For example, if the name and

identifying information provided by the applicant cannot be verified

within the application processing timeframe (no later than 45 days from

the filing date or a shorter period as elected by the State) and the

delay is not due to inaction on the part of the applicant, then

benefits must be authorized once other eligibility and payment factors

have been met. This also applies to all application filed under any

State-defined criteria for emergency processing.

So that the non-custodial parent can be located and paternity or

child support action can be initiated right away, we are proposing that

the AFDC agency be required to send a prompt notice to the child

support agency that an application has been filed on behalf of a child

who is deprived of parental support or care due to the continued

absence of a parent. Section 235.70 will be amended to define a

``prompt notice'' as one that is sent to the child support agency

within two working days of the date that the application for AFDC is

filed, rather than the current requirement of within two working days

of when assistance is granted.

We propose that these new cooperation requirements be effective 90

days after publication of the final rule or, for States requiring new

legislation, no later than the first day of the first calendar quarter

beginning after the close of the first legislative session that begins

after the date of the final rule. For purposes of the previous

sentence, in the case of a State that has a 2-year legislative session,

each year of such session shall be deemed to be a separate regular

session of the State legislature. The new requirements will apply to

all applicants after that date, and to current recipients no later than

the next redetermination after that date. Before imposing the new

requirements on recipients, States shall notify recipients in writing

about their responsibilities to provide additional information, the

consequences of failure to cooperate and their rights to claim good

cause and to appeal adverse actions.

For current recipients, we expect States to review the records of

cases where paternity or support has not been established, or the

whereabouts of the non-custodial parent is not known. The purpose of

the review is to determine, based on case situation, whether the

recipient may have additional information or has cooperated under these

new requirements. States should pay particular attention to their

criteria for assessing the recipient's lack of information, based on

the lapse of time or age of a child for whom paternity has not been

established. States may apply the new requirements at any time after

the notice to recipients, but shall apply them no later than the next

redetermination.

Several States have also persuasively argued that the child support

agency, rather than the AFDC agency, should be permitted to make the

good cause and cooperation decisions. Allowing child support staff to

make the decisions may be more efficient because it eliminates delays

caused by the ``back-and-forth'' referrals between child support and

AFDC staff. It also encourages client responsibility and rapport in

dealing with workers who help establish paternity and obtain child

support. We believe these arguments have merit. Although we are not

proposing a regulatory change in this area, States that are interested

in having the child support agency render the good cause and

cooperation decisions are encouraged to request a waiver under section

204 of the Intergovernmental Cooperation Act of 1968.

Under the Intergovernmental Cooperation Act, the Governor or the

appropriate executive of the single State agency may request a waiver

and explain: (1) Why the proposed organizational arrangement is more

effective and efficient within the State government; and (2) how the

objectives of title IV-A will be met by the alternative arrangement

that is being requested (e.g., having the child support agency render

the good cause and cooperation decisions). The formal request for a

waiver, together with the State plan preprint pages (i.e., Section 1.1-

2, page 1 and Attachment 1.1-B) should be submitted to the appropriate

ACF Regional Office for review and approval.

We also want to clarify that no changes are proposed in several

areas related to cooperation. Pursuant to section 402(a)(26) of the

Social Security Act, a failure to cooperate, without good cause, either

at application or subsequently will result in the removal of the

caretaker's needs from the grant. This consequence is not changed.

Likewise, States are still required to inform all applicants or

recipients who fail to cooperate of their right to a fair hearing to

appeal the determination. If an individual fails to cooperate and is

determined ineligible for benefits, but subsequently chooses to

cooperate and takes appropriate action, benefits will be reinstated.

Finally, the current requirements regarding good cause for not

cooperating because it would be ``against the best interests of the

child'' are not changed.

Regulatory Procedures

Executive Order 12866 on Regulatory Planning and Review

Executive Order 12866 requires that regulations be reviewed to

ensure that they are consistent with the priorities

[[Page 37239]]

and principles set forth in the Executive Order. The Department has

determined that these rules are consistent with these priorities and

principles. An assessment of the costs and benefits of available

regulatory alternatives (including not regulating) demonstrated that

the approach taken in the regulation is the most cost-effective and

least burdensome while still achieving the regulatory objectives.

The proposed rule is designed to provide that applicants and

recipients provide sufficient information to establish paternity and

obtain support, and that information be provided on a timely basis--

i.e., before establishing welfare eligibility, if possible. At the same

time, it seeks to both protect cooperative individuals against

unreasonable requirements and prevent unnecessary legal challenges in

the States. Thus, we believe it properly balances our interests in

improving the effectiveness of paternity establishment and child

support efforts against our concern about the burdens imposed both on

governmental agencies and needy families seeking assistance.

The requirement on welfare agencies to make referrals within two

days of application may initially be burdensome in some States or

localities, but we believe that the broad automation of welfare and

child support enforcement programs substantially mitigates any such

burden, and that the two-day requirement is necessary to ensure timely

and effective paternity establishment efforts. Nevertheless, we welcome

specific comments on the administrative burden associated with this

two-day requirement.

Paperwork Reduction Act

This NPRM contains information collection requirements in sections

232.12, 232.46, and 235.70. As required by the Paperwork Reduction Act

of 1995 (44 U.S.C. 3507(d)), the Administration for Children and

Families has submitted a copy of these sections to the Office of

Management and Budget (OMB) for review.

More specifically, sections 232.12 and 232.46 both include State

plan amendments; section 232.12(b) includes information to be provided

to the State welfare agency by the parent seeking assistance; and

section 235.70 revises prompt notice requirements.

One group of respondents to the proposed information collection

requirements is State welfare agencies. These agencies will be required

to revise their State plans to specify: (1) The actions, documents and

information required for cooperation of applicants and recipients--

including what additional information (beyond a name) individuals must

provide in order to establish paternity [at section 232.12(b)(3)]; (2)

the criteria for determining cooperation when individuals cannot

reasonably be expected to know the required identifying information

[also at section 232.12(b)(3)]; and (3) provision of benefits pending a

determination of cooperation or good cause in cases of compliance with

other requirements [at section 232.46]. The State plan changes are

necessary to ensure that States are making necessary changes to improve

the effectiveness of their paternity establishment and child support

efforts, while protecting needy individuals from undue harm and

unreasonable requirements. By requiring specification of these policies

and procedures in the State plans, we help to ensure broad public

access to information on the policies and procedures being implemented

by States and expand the opportunities for public comment on them. To

minimize the burden on respondents, we will be providing preprint pages

for their use. Adding this additional plan language will create a one-

time burden for the 54 State agencies, which we estimate will average 5

hours per State, for a total burden of 270 hours.

We expect State and local welfare agencies implementing these new

plan provisions will also spend additional time collecting, documenting

and inputting information when individuals apply for welfare and, if

needed, when recipients have their benefits redetermined. However, we

believe that the burden of collecting this information up front in the

welfare office should be substantially, if not fully, offset by a

reduced burden on child support and Medicaid agencies. These latter

agencies will face a reduction in their own administrative burdens

because they will be receiving more complete and more useful

information on the cases that are referred from the welfare office.

We estimate that 240,000 applicants per year would be affected by

these additional requirements (160,000 of which would become

recipients). We also estimate that each year about 55,000 recipients

who were previously affected by these requirements and previously

provided sufficient information would be again affected because of the

birth of a new child. Thus, a total of 295,000 applicants and

recipients would be affected on an annual basis.

In addition, over the first couple of years, as these requirements

are implemented, we estimate that 360,000 recipients would be affected

at the time of their first subsequent redetermination. The vast

majority of recipients will only be affected one time--at their first

redetermination following the implementation of the new requirements.

The burden on parents seeking assistance will be more significant,

but the precise impact is difficult to determine. We do not know the

specific policies and procedures the States will put into effect. We

also do not know what percentages of paternity cases are already

providing ``sufficient information'' under existing program rules.

Nevertheless, with these caveats in mind, we estimate that the number

of affected applicants and recipients per year would be 295,000 and the

average additional time required of each of these applicants and

recipients would be 30 minutes (i.e., 0.5 hours). Thus, the total

ongoing impact would be 147,500 hours per annum.

Likewise, we estimate that 360,000 recipients would be affected on

a one-time basis over the first couple of years as the new requirements

are implemented. Assuming a slightly higher hourly burden on these

recipient parents (of 45 minutes, or 0.75 hours, per individual) would

produce a total burden estimate of 270,000 hours.

We do not expect that the overall burden on State and local

agencies associated with the prompt notice requirements will be

affected by this proposed rule.

In summary, therefore, we estimate a net one-time burden on State

and local agencies of 270 burden hours; annual burdens for parents who

are either applicants or recipients with new infants of 147,500 burden

hours; and a one-time burden on recipient parents who are newly subject

to these requirements of 270,000 burden hours.

The Administration for Children and Families (ACF) will consider

comments by the public on these proposed collections of information in:

Evaluating whether the proposed collections are necessary

for the proper performance of the functions of ACF, including whether

the information will have practical utility;

Evaluating the accuracy of ACF's estimate of the burden of

the proposed collections of information, including the validity of the

methodology and assumptions used;

Enhancing the quality, usefulness, and the clarity of the

information to be collected;

Minimizing the burden of the collection of information on

those who are to respond, including through the use of appropriate

automated, electronic, mechanical, or other

[[Page 37240]]

technology, e.g., permitting electronic submission of responses.

To ensure that public comments are fully understood and have the

maximum effect on the development of final regulations, ACF urges that

each comment clearly identify the specific section or sections of the

regulations at issue and the type of respondent being addressed.

OMB is required to make a decision concerning the collections of

information contained in these proposed regulations between 30 and 60

days after publication of this document in the Federal Register.

Therefore, a comment is best assured of having its full effect if OMB

receives it within 30 days of publication. This does not affect the

deadline for the public to comment on the proposed regulations. Written

comments to OMB on the proposed information collections should be sent

directly to the following: Office of Management and Budget, Paperwork

Reduction Project, 725 17th Street, NW., Washington, DC 20503, ATTN:

Ms. Wendy Taylor.

Regulatory Flexibility Act

The Regulatory Flexibility Act (Pub. L. 96-354) requires the

Federal government to anticipate and reduce the impact of regulations

and paperwork requirements on small businesses. The Secretary certifies

that these proposed regulations will not have a significant economic

impact on a substantial number of small entities because the primary

impact of these regulations is on State governments and individuals. We

do not believe that any provision will have direct impact on small

businesses or other small entities within the scope of the Regulatory

Flexibility Act and therefore, a regulatory flexibility analysis is not

required.

List of Subjects

45 CFR Part 232

Aid to families with dependent children, Child support, Grant

programs-social programs.

45 CFR Part 235

Aid to families with dependent children, Fraud, Grant programs-

social programs, Public assistance programs.

(Catalog of Federal Domestic Assistance Programs 93.020, Assistance

Payments Maintenance Assistance.)

Dated: June 21, 1996.

Mary Jo Bane,

Assistant Secretary for Children and Families.

Approved: July 1, 1996.

Donna E. Shalala,

Secretary, Department of Health and Human Services.

For the reasons set forth in the preamble, we propose to amend

Chapter II of Title 45 of Code of Federal Regulations as follows:

PART 232--SPECIAL PROVISIONS APPLICABLE TO TITLE IV-A OF THE SOCIAL

SECURITY ACT

1. The authority citation for Part 232 is amended to read as

follows:

Authority: 42 U.S.C. 602, and 1302.

2. Section 232.12 is amended by revising the introductory text of

paragraph (b) and paragraphs (b)(1) and (b)(3).

Sec. 232.12 Cooperation in obtaining support.

* * * * *

(b) The plan shall specify that ``cooperate'' includes any of the

actions reflected in paragraphs (b) (1), (2), (3), or (4) of this

section that are relevant to, or necessary for, the achievement of the

objectives specified in paragraph (a) of this section:

(1) Appearing at an office of the State or local agency or the

child support agency as necessary prior to receipt of benefits (or, if

necessary for recipients, at redetermination) to provide verbal or

written information, or documentary evidence known to, possessed by, or

reasonably obtainable by the applicant or recipient.

(i) An applicant or recipient who knowingly provides false

information shall be subject to prosecution for perjury.

(ii) States shall specify the actions, documents and information

required of applicants and recipients to cooperate in achieving the

objectives specified in paragraph (a).

(2) * * *

(3)(i) As part of the requirement to cooperate in paternity

establishment, providing:

(A) The name of the putative father; and

(B) Sufficient additional information to enable the State agency,

if reasonable efforts were made, to verify the identity of the person

named; including such information as the putative father's social

security number; date of birth; past or present address; telephone

number; past or present place of employment; past or present school

attended; names and addresses of parents, friends or relatives able to

provide location information; or other information which could enable

service of process on such person.

(ii) The State shall establish criteria for determining cooperation

in cases where the individual cannot reasonably be expected to know the

required identifying information about the father (including, but not

limited to, cases where long term recipients do not know the required

information due to a lapse of a long period of time since contact with

the father).

* * * * *

3. Section 232.46 is revised to read as follows:

Sec. 232.46 Granting or continuation of assistance.

The plan shall provide that the State or local agency will not

deny, delay, or discontinue assistance pending a determination of

cooperation or good cause for refusal to cooperate if the applicant or

recipient has complied with the requirements of Secs. 232.12, 232.40(c)

and 232.43 to furnish corroborative evidence and information. This

requirement applies to the 45-day application processing time frame, a

shorter application period as elected by the State and to all

applications filed under any State-defined criteria for emergency

processing.

PART 235--ADMINISTRATION OF FINANCIAL ASSISTANCE PROGRAMS

1. The authority citation for Part 235 continues to read as

follows:

Authority: 42 U.S.C. 603, 616, and 1302.

2. Section 235.70 is amended by revising paragraph (b)(2), removing

paragraph (b)(3), and redesignating paragraph (b)(4) as (b)(3) to read

as follows:

Sec. 235.70 Prompt notice to child support or Medicaid agency.

* * * * *

(b) * * *

(1) * * *

(2) Prompt notice means written notice including a copy of the AFDC

case record, or all relevant information as prescribed by the child

support agency. Prompt notice must also include all relevant

information as prescribed by the State medicaid agency for the pursuit

of liable third parties. The prompt notice shall be provided within two

working days of the filing of the application.

* * * * *

[FR Doc. 96-18116 Filed 7-16-96; 8:45 am]

BILLING CODE 4150-04-M