Child Support Enforcement Program, Standards for Program Operations

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

Office of Child Support Enforcement

45 CFR Part 303

RIN 0970-AB82

Child Support Enforcement Program, Standards for Program

Operations

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule would amend Federal regulations governing

procedures for the case closure process in the child support program.

The proposed rule clarifies the situations in which States may close

child support cases and makes other technical changes.

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

1998.

ADDRESSES: Send comments to Director, Office of Child Support

Enforcement, Administration for Children and Families, 370 L'Enfant

Promenade, SW., 4th floor, Washington, DC 20447. Attention: Director,

Policy and Planning Division, Mail Stop: OCSE/DPP. Comments will be

available for public inspection Monday through Friday, 8:30 a.m. to 5

p.m. on the 4th floor of the Department's offices at the above address.

FOR FURTHER INFORMATION CONTACT: Craig Hathaway, Policy Branch, OCSE

(202) 401-5367, e-mail: [email protected]. Deaf and hearing-

impaired individuals may call the Federal Dual Party Relay Service at

1-800-877-8339 between 8 a.m. and 7 p.m.

SUPPLEMENTARY INFORMATION:

Statutory Authority

These proposed regulatory changes are made under the authority

granted to the Secretary by section 1102 of the Social Security Act

(the Act). Section 1102 of the Act requires the Secretary to publish

regulations that may be necessary for the efficient administration of

the functions for which she is responsible under the Act. In accordance

with the Presidential directive of March 4, 1995 to executive branch

regulatory agencies to identify existing regulations that are redundant

or obsolete, OCSE has examined Part 300 of Title 45, Code of Federal

Regulations to evaluate those areas where regulations should be revised

and/or removed. Accordingly, we are revising and removing existing

regulations concerning criteria to close child support enforcement

cases.

Background

The Child Support Enforcement program was established under Title

IV-D by the Social Services Amendments of 1974, for the purpose of

establishing paternity and child support obligations, and enforcing

support owed by noncustodial parents. At the request of the States,

OCSE originally promulgated regulations in 1989 which established

criteria for States to follow in determining whether and how to close

child support cases. In the final Program Standards regulations dated

August 4, 1989, we gave examples of appropriate instances in which to

close cases. In the Supplementary Information accompanying the final

regulations, we stated that the goal of the case closure regulations

was not to mandate that cases be closed, but rather to clarify

conditions under which cases may be closed. The regulations allowed

States to close cases that were not likely to result in any collection

in the near future and to concentrate their efforts on the cases that

presented a likelihood of collection.

In an effort to be responsive to the President's Memorandum of

March 4, 1995 which announced a government-wide Regulatory Reinvention

Initiative to reduce or eliminate burdens on States, other governmental

agencies or the private sector, and in compliance with section 204 of

the Unfunded Mandates Reform Act of 1995, Public Law 104-4, OCSE formed

a regulation reinvention workgroup to exchange views, information and

advice with respect to the review of existing regulations in order to

eliminate or revise those regulations that are outdated, unduly

burdensome, or unproductive. This group is made up of representatives

of Federal, State and local government elected officials and their

staffs.

As part of the regulation reinvention effort, Sec. 303.11 on case

closure criteria was reviewed to determine what

[[Page 9173]]

changes could be made to help States with their case closure process,

while ensuring all viable cases remain opened. Somewhat earlier, the

State IV-D Directors' Association had established a committee to

examine the case closure issue. The committee developed several

recommendations, which were considered in the development of the

proposed regulation. We also consulted with several advocates and other

interested parties and stakeholders, including custodial parents and

groups advocating on their behalf, to discuss their concerns with the

IV-D Directors' Association recommendations and about the case closure

criteria in general. Their concerns were considered throughout the

deliberations on each area under consideration for addition, deletion

or revision. As the result of these exchanges of information,

recommendations for changes in the criteria which States must use to

determine whether child support cases may be closed were developed.

These recommendations are reflected in the proposed rule.

The deliberative process to develop this proposal operated under a

set of principles that balanced our joint concern that all children

receive the help they need in establishing paternity and securing

support, while being responsive to administrative concerns for

maintaining caseloads that include only those cases in which there is

adequate information or likelihood of successfully providing services.

The circumstances under which a case could be closed include, for

example, instances in which legitimate and repeated efforts over time

to locate putative fathers or obligors are unsuccessful because of

inadequate identifying or location information, or in interstate cases

in which the responding State lacks jurisdiction to work a case and the

initiating State has not responded to a request for additional

information or case closure. Decision to close cases are linked with

notice to recipients of the intent to close the case and an opportunity

to respond with information or a request that the case be kept open.

The proposals in this regulation balance good management and workable

administrative decisions with providing needed services, always erring

in favor of including any case in which there is any chance of success.

For example, cases would remain open even if there is no likelihood of

immediate or great success in securing support, perhaps because of a

period of incarceration. In our consultations, we were consistently

impressed with the commitment of all those involved to these operating

principles.

The IV-D Directors' Association recommended that the requirement

that a case in which the agency is unable to locate the putative father

or noncustodial parent remain open with ongoing locate efforts for

three years be changed to require a shorter time in cases in which the

biological father is unknown or there is insufficient information to

initiate a locate effort. This recommendation was accepted and is

incorporated in the proposed rules.

We are aware of the concerns of the advocacy groups about closing

cases too soon. However, we believe the requirements of the Personal

Responsibility and Work Opportunity Reconciliation Act of 1996, Public

Law 104-193 (PRWORA) provide adequate safeguards to prevent this from

happening. Section 333 of PRWORA requires that the applicant for

assistance under Title IV-A of the Act provide the IV-D agency with the

name of the putative father, as well as additional identifying

information. Failure to do so constitutes noncooperation and

compromises the eligiblity for benefits. Determinations of

noncooperation are to be documented, with notice provided to the

applicant. We anticipate that cases under this changed criterion will

be few and will be well documented.

The IV-D Directors' Association also recommended that the

regulations be changed to allow notice of intent to close a case to be

sent by first class mail, as opposed to the current requirement of

certified mail. This recommendation was accepted, as well. The IV-D

Directors' Association further recommended that immediate case closure

be permitted in cases in which the parental rights of the noncustodial

parent have been terminated by the court, unless an arrearage remains.

Upon consideration of this suggestion we concluded that closure of such

a case is already permitted by current regulations which allow closure

in cases in which there is no loner a current obligation and in which

there are no arrearages owed. The IV-D Directors' Association also

recommended that case closure be permitted in cases in which neither

party is a legal resident of the State, there is no order from the

State and there is no State jurisdiction over the noncustodial parent.

We concluded that this recommendation is contrary to the requirements

section 454(6) of the Social Security Act, and, thus, declined to

accept it. The IV-D Directors' Association recommended that cases

involving an interstate request to locate an individual be eligible for

closure by the responding State after all sources of information to

help locate the individual have been exhausted and results forwarded to

the initiating State, or when the initiating State has not provided

enough information to the responding State to locate the noncustodial

parent. In response, new criteria have been added to allow a responding

State to close an interstate case if it can document inaction by the

initiating State that renders the responding State unable to proceed

with the case, as it would close a case for failure to cooperate by the

recipient of services. Finally, the IV-D Directors' Association

recommended that case closure be allowed after sixty days in cases in

which the custodial parent's address is unknown and repeated attempts

to contact the custodial parent are unsuccessful, with the States to

have the flexibility to determine what type of locate attempts will be

appropriate. In response, we decided to extend the time period to sixty

days from thirty, and to require at least one letter by first class

mail, as opposed to the current requirement of certified mail and a

phone call. The allowance of a first class letter was thought to be in

accord with the new requirements in welfare reform.

Description of Regulatory Provisions

We propose to amend and make technical changes to Sec. 303.11 Case

Closure Criteria. Under Sec. 303.11, paragraph (b)(1) allows closure of

a case where the child has reached the age of majority, there is no

longer a current support order, and either no arrearages are owed or

arrearages are under $500 or unenforceable under State law. In

addition, paragraph (b)(2) currently allows case closure where the

child has not reached the age of majority, arrearages are less than

$500 or unenforceable under State law, and there is no longer a current

support order.

In the final Program Standards regulations published in 1989, we

gave examples of instances in which it would be appropriate to close

cases under subsection (b)(1) and (b)(2); however, after reviewing the

two subparagraphs, it is apparent that the distinction between

subsections (b)(1) and (b)(2) which is based upon whether or not the

child has reached the age of majority is unnecessary, as the criteria

are the same. Therefore, we propose combining (b)(1) and (b)(2) to

read, ``There is no longer a current support order and arrearages are

under $500 or unenforceable under State law[.]''

Paragraphs (b)(3) through (b)(12) would be renumbered as (b)(2)

through (b)(11), and ``absent parent'' would be revised to read

``noncustodial parent''

[[Page 9174]]

throughout, for consistency with preferred statutory terminology under

PRWORA.

Under the new redesignated paragraph (b)(3), we would add a new

subparagraph (3)(iv) to read, ``The identity of the biological father

is unknown and cannot be identified after diligent efforts, including

at least one interview by the IV-D agency with the recipient of

services.'' The IV-D Directors, concerned about having an abundance of

unenforceable cases within the system, requested that the amount of

time a case is required to remain open be reduced. Additionally,

several States reported increased success in obtaining information to

help identify a putative father when the recipient of services is

interviewed personally. The interview is intended to be an attempt to

gain additional information to aid the IV-D agency in establishing

paternity. Therefore, the interview must be conducted by IV-D staff;

the initial intake interview for another public assistance program is

not sufficient to satisfy the requirement of an interview with the

recipient of services.

Under the new redesignated paragraph (b)(4), we propose to delete,

``over a three-year period'' and to add new subparagraphs (i) and (ii)

to read, ``(i) over a three-year period when there is sufficient

information to initiate automated locate efforts; or (ii) over a one-

year period when there is not sufficient information to initiate

automated locate efforts.'' As discussed above, the IV-D Directors

expressed a desire to be permitted to close cases in which it is

impossible to undertake any locate effort due to the scarcity of

information. This change would allow States to close a case in which

the recipient of services does not have even minimum information, such

as name, date of birth, or social security number of the putative

father or noncustodial parent.

In new redesignated paragraphs (b)(8), (b)(10) and (b)(11)

``custodial parent'' would be revised to read ``recipient of

services.'' In certain situations, such as paternity establishment or

review and adjustment, the noncustodial parent may have opened the

case. This language change would more accurately encompass all

situations to which these provisions apply.

We propose to revise redesignated paragraph (b)(9) to add IV-D

agencies to the list as an option for making good cause determinations.

This section identifies the entities that may make a determination of

good cause for failure to cooperate with IV-D efforts. Section 333 of

PRWORA provides flexibility to the States to identify the agency which

may make good cause determinations. Good cause for noncooperation may

arise after IV-D services have been undertaken; the addition of this

provision would allow the IV-D agency itself to determine whether good

cause exists in appropriate cases.

In the redesignated paragraph (b)(10), we propose to revise the

language after ``within a'' to read ``60 calendar day period despite an

attempt by at least one letter sent by first class mail to the last

known address; or[.]'' The IV-D directors, concerned about having an

abundance of unenforceable cases within the system, requested that we

reduce the amount of time a case is required to remain open despite an

inability to contact the recipient of services.

Under Sec. 303.11, we propose to add a new subparagraph (12) to

read, ``The IV-D agency documents failure by the initiating State to

take an action which is essential for the next step in providing

services.'' Under the current regulations, a responding State is not

free to close a case without the permission of the initiating State. In

some of these cases, the responding State may be unable to locate the

noncustodial parent, or may locate him or her in another State, and

request to close the case. If the initiating State fails to respond to

this request, the responding State is obligated to leave the case open

in its system. Similarly, if the initiating State fails to provide

necessary information to enable the responding State to provide

services, and fails to respond to requests to provide the information,

the responding State is required to keep the case open, although it is

unable to take any action on it. The proposed changes would permit the

responding State to close the case if it is unable to process the case

due to lack of cooperation by the initiating State.

In paragraph (c), we propose revisions based upon the proposed

renumbering of paragraph (b). In the first sentence, the reference to

``paragraphs (b)(1) through (7) and (11) and (12) of this section''

would be changed to read ``paragraphs (b)(1) through (6) and (10) and

(11) of this section[.]'' In addition, the references to ``custodial

parent'' would be revised to read ``recipient of services,'' for the

reasons explained above. Also, in the second sentence, we propose to

replace the reference to ``paragraph (b)(11)'' with paragraph

``(b)(10),'' based upon the proposed renumbering of paragraph (b).

In paragraph (d), we propose to remove the reference to ``Subpart

D,'' as that subpart has been reassigned and no longer addresses the

issue of record retention.

Regulatory Flexibility Analysis

The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the

Regulatory Flexibility Act (Pub. L. 96-354), that this proposed

regulation will not result in a significant impact on a substantial

number of small entities. The primary impact is on State governments

and individuals. State governments are not considered small entities

under the Act.

Executive Order 12866

Executive Order 12866 requires that regulations be reviewed to

ensure that they are consistent with the priorities and principles set

forth in the Executive Order. The Department has determined that this

rule is consistent with these priorities and principles. No costs are

associated with this proposed rule.

Unfunded Mandates Act

The Department has determined that this proposed rule is not a

significant regulatory action within the meaning of the Unfunded

Mandates Reform Act of 1995.

Paperwork Reduction Act

This rule does not contain information collection provisions

subject to review by the Office of Management and Budget under the

Paperwork Reduction Act of 1995.

List of Subjects in 45 CFR Part 303

Child support, Grant programs/social programs, Reporting and

recordkeeping requirements.

(Catalog of Federal Domestic Assistance Programs No. 93.563, Child

Support Enforcement Program)

Dated: August 8, 1997.

Olivia A. Golden,

Principal Deputy Assistant Secretary for Children and Families.

Approved: November 4, 1997.

Donna E. Shalala,

Secretary, Department of Health and Human Services.

For the reasons discussed above, we propose to amend title 45 CFR

Chapter III of the Code of Federal Regulations as follows:

PART 303--STANDARDS FOR PROGRAM OPERATIONS

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

Authority: 42 U.S.C. 651 through 658, 660, 663, 664, 666, 667,

1302, 1396a(a)(25), 1396(d)(2), 1396b(o), 1396b(p), and 1396(k).

[[Page 9175]]

Sec. 303.11 Case closure criteria. [Amended]

2. Section 303.11 is amended as follows:

a. Paragraph (b)(1) is revised and paragraph (b)(2) is removed to

read as follows:

* * * * *

(b) * * *

(1) There is no longer a current support order and arrearages are

under $500 or unenforceable under State law.

* * * * *

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

c. Paragraph (b)(4) is redesignated as paragraph (b)(3) and amended

by adding paragraph (b)(3)(iv) to read as follows:

* * * * *

(b) * * *

(3) * * *

(iv) The identity of the biological father is unknown and cannot be

identified after diligent efforts, including at least one interview by

the IV-D agency with the recipient of services.

* * * * *

d. Paragraph (b)(5) is redesignated as paragraph (b)(4) and revised

to read as follows:

* * * * *

(b) * * *

(4) The noncustodial parent's location is unknown, and the State

has made regular attempts using multiple sources, all of which have

been unsuccessful, to locate the noncustodial parent

(i) Over a three-year period when there is sufficient information

to initiate an automated locate effort, or

(ii) Over a one-year period when there is not sufficient

information to initiate an automated locate effort.

* * * * *

e. Paragraphs (b)(6) through (b)(12) are redesignated as paragraphs

(b)(5) through (b)(11), respectively.

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

follows:

* * * * *

(b) * * *

(9) There has been a finding of good cause as set forth at

Sec. 302.31(c) and either Sec. 232.40 of this chapter or 42 CFR 433.147

and the State or local IV-A, IV-D, IV-E, or Medicaid agency has

determined that support enforcement may not proceed without risk of

harm to the child or caretaker relative[.]

* * * * *

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

follows:

* * * * *

(b) * * *

(10) In a non-IV-A case receiving services under Sec. 302.33(a)(1)

(i) or (iii), the IV-D agency is unable to contact the recipient of

services within a 60 calendar day period despite an attempt by at least

one letter sent by first class mail to the last known address, or[.]

* * * * *

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

* * * * *

(b) * * *

(12) The IV-D agency documents failure by the initiating State to

take an action which is essential for the next step in providing

services.

* * * * *

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

* * * * *

(c) In cases meeting the criteria in paragraphs (b) (1) through (6)

and (10) and (11) of this section, the State must notify the recipient

of services in writing 60 calendar days prior to closure of the case of

the State's intent to close the case. The case must be kept open if the

recipient of services supplies information in response to the notice

which could lead to the establishment of paternity or a support order

or enforcement of an order, or, in the instance of paragraph (b)(10) of

this section, if contact is reestablished with the recipient of

services. If the case is closed, the recipient of services may request

at a later date that the case be reopened if there is a change in

circumstances which could lead to the establishment of paternity or a

support order or enforcement of an order.

* * * * *

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

* * * * *

(d) The IV-D agency must retain all records for cases closed

pursuant to this section for a minimum of three years, in accordance

with 45 CFR part 74.

* * * * *

k. In addition to the amendments set forth above, remove the words

``absent parent,'' and add, in their place, the words ``noncustodial

parent'' in the following places:

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

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

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

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

l. In addition to the amendments set forth above, remove the words

``custodial parent,'' and add, in their place, the words ``recipient of

services'' in the following places:

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

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

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

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

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