Child Support Enforcement Program; State Plan Requirements, Standards for Program Operations, and Federal Financial Participation

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Parts 302, 303, and 304

RIN 0970-AB69

Child Support Enforcement Program; State Plan Requirements,

Standards for Program Operations, and Federal Financial Participation

AGENCY: Office of Child Support Enforcement (OCSE), Administration for

Children and Families, HHS.

ACTION: Final rule.

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SUMMARY: This final rule implements part of the paternity establishment

provisions contained in section 331 of the Personal Responsibility and

Work Opportunity Reconciliation Act of 1996 (PRWORA) Pub. L. 104-193

and amended by section 5539 of Pub. L. 105-33, which impose new

statutory requirements for a State's voluntary paternity acknowledgment

process and require the Secretary to promulgate regulations governing

voluntary paternity establishment services and identifying the types of

entities other than hospitals and birth record agencies that may be

allowed to offer voluntary paternity establishment services. States

will be required to adopt laws and procedures that are in accordance

with the statutory and regulatory provisions. These regulations address

these procedures and related provisions.

EFFECTIVE DATE: The final rule is effective: April 9, 1999.

FOR FURTHER INFORMATION CONTACT: Jan Rothstein, OCSE Division of Policy

and Planning, (202) 401-5073. Hearing impaired individuals may call the

Federal Dual Party Relay Service at 800-877-8339 between 8:00 a.m. and

7:00 p.m. Eastern time.

SUPPLEMENTARY INFORMATION:

Background

Paternity establishment is a necessary first step for obtaining

child support in cases where a child is born out-of-wedlock. In

addition to child support, there are other potential financial benefits

to establishing paternity, including establishing a child's rights to

the father's social security benefits, veterans' benefits, pension

benefits, and other rights of inheritance. Paternity establishment

could also be the first step in developing a psychological and social

bond between the father and child, in giving the child social and

psychological advantages and a sense of family heritage, and in

providing access to important medical history information.

Congress and the Federal government have long recognized the

importance of paternity establishment. In 1975, Title IV-D of the

Social Security Act was enacted to require States to establish public

child support agencies. These IV-D agencies provided child support

enforcement services, including paternity establishment services. The

Child Support Enforcement Amendments of 1984 required States to permit

paternity to be established until a child's 18th birthday.

The Family Support Act of 1988 contained several provisions

designed to improve paternity establishment, including performance

standards, timeframes for case processing, enhanced funding (90%

Federal financial participation) for genetic testing, a requirement

that States compel all parties in a contested paternity case to submit

to genetic testing upon the request of a party, a requirement that

States compel each parent to provide his or her social security number

as part of the birth certificate issuance process, and a clarification

of the earlier expansion of the requirement permitting paternity

establishment to 18 years of age.

The Omnibus Reconciliation Act of 1993 (OBRA '93) further reformed

the child support enforcement program to increase the performance

standards for both the number of paternities established for children

born out-of-wedlock and the timeliness with which paternity

establishment is accomplished. One major provision of OBRA '93 was the

requirement that States have laws providing for voluntary paternity

establishment services at birthing hospitals statewide.

Partly as a result of these Federal and State statutory provisions

and their implementation, the number of paternities established each

year by the Title IV-D Child Support Enforcement program has increased

substantially from about 270,000 in fiscal year (FY) 1987 to over

553,000 in FY 1993, an increase of over 100 percent in just six years.

Nearly a million paternities were established in FY 1996, an increase

of

[[Page 11803]]

over 80 percent in the three years since enactment of OBRA '93.

Finally, in section 101 of PRWORA, Congress cited a number of

social and statistical findings relating to the need for paternity

establishment. In 1992, only 54 percent of single-parent families with

children had a child support order established and, of that number,

only about one-half received the full amount due. Of the cases enforced

through the public child support enforcement system, only 18 percent of

the caseload has a collection. The number of individuals receiving

services under Title IV-A of the Social Security Act more than tripled

since 1965, and more than two-thirds of these recipients are children,

with eighty-nine percent of children receiving Aid to Families with

Dependent Children benefits living in homes in which no father is

present. The increase in the number of children receiving public

assistance is closely related to the increase in births to unmarried

women. Congress further cited that between 1970 and 1991, the

percentage of live births to unmarried women increased nearly

threefold, from 10.7 percent to 29.5 percent, and if the current trend

continues, 50 percent of all births by the year 2015 will be out-of-

wedlock. The estimated rate of nonmarital teen pregnancy rose 23

percent from 54 pregnancies per 1,000 unmarried teenagers in 1976 to

66.7 pregnancies in 1991, while the overall rate of nonmarital

pregnancy rose 14 percent from 90.8 pregnancies per 1,000 unmarried

women in 1980 to 103 in both 1991 and 1992.

Response to Comments

On January 5, 1998, we published a Notice of Proposed Rulemaking in

the Federal Register with a 60 day comment period (63 FR 187). We

received 31 comments from State and local IV-D agencies, national child

support enforcement organizations, advocacy groups representing

custodial parents and children, and the general public. A summary of

the comments received and our responses follow:

Description of Regulatory Provisions--Section 302.70(a)(5)(iii)

Section 302.70(a)(5)(iii) requires a State to have in effect laws

requiring procedures for a simple civil process for voluntarily

acknowledging paternity. Under these procedures, before a mother and

putative father can sign a voluntary acknowledgment of paternity, the

mother and the putative father must be given notice, orally or through

the use of video or audio equipment and in writing, of the alternatives

to, the legal consequences of, and the rights (including any rights, if

a parent is a minor, due to minority status) and responsibilities of

acknowledging paternity, and ensure that due process safeguards are

afforded.

Paragraph (a)(5)(iii)(B) requires that State procedures must

include a program for voluntary acknowledgment of paternity in State

birth record agencies, and in other entities designated by the State

and participating in the State's voluntary paternity establishment

program. Paragraph (a)(5)(iii)(C) requires that State procedures

governing hospital-based programs and birth record agencies must also

apply to other entities designated by the State and participating in

the State's voluntary paternity establishment program, including the

use of the same notice provisions, the same materials, the same

evaluation methods, and the same training for the personnel of these

other entities providing voluntary paternity establishment services.

Response to Comments on Section 302.70 Required State Laws

1. Comment: One commenter was concerned that the regulation appears

to require the State birth record agency to offer voluntary paternity

services. The State currently uses a collaborative method in which the

IV-D agency, birthing hospitals and birth record agencies work together

to secure acknowledgments of paternity. The commenter wondered if the

entities have to establish separate programs under these revised

regulations?

Response: The State must make voluntary paternity establishment

services available at birthing hospitals and the State birth record

agency. However, these agencies may share staff to provide the services

to parents. For example, many States station IV-D staff in hospitals to

facilitate the acknowledgment process.

2. Comment: One commenter was concerned that the Notice of Proposed

Rulemaking published January 5, 1998 (63 FR 187) gives no guidance to

States on how to carry out the oral presentation on rights and

responsibilities and no guidance on what to include on the

acknowledgment form about how parents were given oral notice.

Response: We encourage States to place the explanation of rights

and responsibilities in writing on the acknowledgment form itself.

However, consistent with past policy, we are not mandating detailed

Federal due process requirements. The explanation of rights and

responsibilities should describe the rights and responsibilities,

including the duty to support the child financially, that each party

will assume as a result of signing the acknowledgment. It should also

describe rights that each party may be giving up by signing the

acknowledgment (e.g., right to genetic testing). These rights and

responsibilities will vary by State, depending on State law. Generally,

we think a State is in a better position than the Federal government to

determine the exact nature of such requirements in light of the State's

particular circumstances. States' due process requirements also vary

depending on State law and court rulings. However, because of the

importance of the due process and rights and responsibilities issue,

OCSE is committed to providing technical assistance, within its

available resources, including sharing sample forms and materials from

other jurisdictions, in order to assist States.

The oral presentation of rights and responsibilities may be made in

several ways: through conversation with the mother and putative father,

through use of an audio or video tape played for the mother and

putative father or through the use of a tape recorded message the

mother and putative father can call at their convenience.

3. Comment: One commenter wanted the regulation to include a date

certain by which all States are to implement the oral presentation.

Response: Section 395 of PRWORA established dates for

implementation of the oral presentation. The dates vary, depending on

the beginning and ending of legislative sessions in each State.

Statutory requirements should be in effect in all jurisdictions.

4. Comment: One commenter was concerned about the potential burden

on States and other entities if they have to provide for the needs of

hearing impaired mothers and putative fathers.

Response: While we are concerned that parents with special needs

are also able to learn of their rights and responsibilities, we do not

believe that this regulation should specify how the States

operationalize these program requirements when interacting with parents

with special needs. We are confident that each State has appropriate

procedures for use with all parents and see our role as providing the

overall program direction, to be implemented by the States in an

appropriate manner for the particular circumstance.

5. Comment: One commenter proposed using other entities as

``referral centers'' that would direct parties to the locations already

equipped to provide voluntary paternity services (i.e., hospitals). The

commenter

[[Page 11804]]

suggested revising this section of the regulations to allow a category

of entities which could assist in the establishment process without

being subject to the procedures currently governing State hospital-

based programs.

Response: States may choose to make voluntary paternity

establishment services available in as few or as many entities beyond

hospitals and birth record agencies as they see fit. If a State would

prefer to make information about voluntary paternity services available

at many locations but to restrict the number of entities actually

providing the service, that would be perfectly within State

flexibility. We do not think it is necessary to revise the regulations

to grant States this flexibility. However, any entity that is providing

voluntary paternity acknowledgment services will be subject to the

procedures governing hospitals and birth record agencies.

6. Comment: One commenter requested that the regulations make it

absolutely clear that State law must provide that, for a paternity

acknowledgment to be valid, it must be signed by both parents. The

commenter advised moving the language from section 303.5(g)(4) to

section 302.70 so it is clear that this is a State plan requirement.

The commenter further suggested that this section specify that it is a

State plan requirement that both parents' signatures be authenticated

for an acknowledgment to be valid and add a State plan requirement

about the minimum data elements of the paternity acknowledgment form.

Response: The statute requires States to develop procedures under

which the name of the father will be included on the record of birth of

unmarried parents only if the father and mother have signed a voluntary

acknowledgment of paternity or a court or an administrative agency has

issued an adjudication of paternity. The State plan requirement at

section 454(20) cross references all of section 466. Therefore,

compliance with the paternity establishment requirements of section

466(a)(5) and the implementing regulations at 45 CFR 303.5(g) is

required of all States in order to receive Federal funding under Title

IV-D. As we stated in the preamble to the NPRM, we have not regulated

the use of data elements set forth in OCSE-AT-98-02 paternity

acknowledgment affidavit. We continue to think that is appropriate

because, whether or not referenced in the regulations, States must

include the mandated data elements developed by the Secretary in their

paternity acknowledgment affidavits.

7. Comment: One commenter recommended the regulations provide more

information on what the consequences of signing the acknowledgment are.

Response: Since the specific consequences may vary State-by-State

and we are concerned about giving States more flexibility in designing

their programs and the materials to be used to explain them, we think

it is better to avoid being overly prescriptive and to avoid developing

Federal requirements that would unnecessarily disrupt or interfere with

the operation of existing, successfully functioning programs. Possible

consequences include: establishment of a child support order, income

withholding to pay child support ordered, and custody and visitation

issues.

8. Comment: Two commenters objected to expanding the program to

other entities including the State and local birth record agencies. At

a minimum, this commenter felt States should have flexibility to

determine what entities other than birthing hospitals and IV-D agencies

should be involved in the program.

Response: Section 466(a)(5)(C)(iii)(I) of the Act requires that the

State's procedures must require the State agency responsible for

maintaining birth records to offer voluntary paternity establishment

services. Section 466(a)(5)(C)(iii)(II) of the Act requires the

Secretary to prescribe regulations governing voluntary paternity

establishment services offered by hospitals and birth record agencies

and to prescribe regulations specifying the types of other entities

that may offer voluntary paternity establishment services. Thus, the

statute and this regulation give States the flexibility to determine

what entities, other than hospitals and birth record agencies, should

be involved in the voluntary paternity establishment program. A State

may choose to make the program available at one or all of the locations

described in section 303.5(g)(1) of the final regulation.

9. Comment: One commenter was concerned that the requirement for

oral and written notice would make it problematic to inform parents who

are unable to come to an office of their rights and responsibilities.

Response: Parents do not need to be present in order to receive an

explanation of their rights and responsibilities. Oral notice may be

provided to parents via a phone line with recorded information, if the

parents are given the number to call. Furthermore, we encourage States

to place a written explanation of the parent's rights and

responsibilities on the paternity acknowledgment form itself.

Description of Regulatory Provisions--Section 303.5(g)

Section 303.5(g)(1) requires that the State's voluntary paternity

establishment program be available at hospitals, State birth record

agencies, and other entities designated by the State and participating

in the State's voluntary paternity establishment program. The

designation of the particular entities that may offer voluntary

paternity establishment services is the responsibility of the State.

These entities to be identified by the State could include the

following and similar entities: public health clinics (including

Supplementary Feeding Program for Women, Infants, and Children (WIC)

and Maternal and Child Health (MCH) clinics); private health care

providers (including obstetricians, gynecologists, pediatricians, and

midwives); agencies providing assistance or services under Title IV-A

of the Act; agencies providing food stamp eligibility services;

agencies providing child support enforcement (IV-D) services; Head

Start and child care agencies (including child care information and

referral providers); individual child care providers; Community Action

Agencies and Community Action Programs; secondary schools (particularly

those that have parenthood education curricula); Legal Aid agencies;

and private attorneys; and any similar public or private health,

welfare, or social services organization.

Sections 303.5(g)(2)-(8) apply to all hospitals, State birth record

agencies, and other entities designated by the State and participating

in the State's voluntary paternity establishment program. This is

consistent with the statutory requirement that the Secretary prescribe

regulations governing the provision of services by the other entities.

The statute specifies that the other entities participating in the

State's voluntary paternity establishment program must use the same

materials and be trained and evaluated in the same manner as the

voluntary paternity establishment programs of hospitals and birth

record agencies. We believe this consistency will greatly facilitate

the establishment of paternities by entities other than hospitals and

birth record agencies.

Section 303.5(g)(2)(i)(C) and 303.5(g)(5)(iii) require that

hospitals, State birth record agencies, and other entities designated

by the State and participating in the State's voluntary

[[Page 11805]]

paternity establishment program provide the mother and putative father

an oral as well as written description of the consequences of

voluntarily acknowledging paternity. The information about consequences

may also be provided through the use of video or audio equipment. In

response to comments, we revised this section to delete the phrase ``if

he is present'' in reference to the father. We agreed that the phrase

could lead some to think that the mother and father should be treated

differently by the entity participating in the State's voluntary

paternity establishment program.

The NPRM proposed to replace the reference to the requirement in

section 303.5(g)(8) that the State designate an entity to which the

voluntary acknowledgment program must forward completed voluntary

acknowledgment forms or copies with a requirement that the State

designate the State registry of birth records as the entity to which

the voluntary acknowledgment program must forward completed voluntary

acknowledgment forms or copies. In response to comments, we revised

section 303.5(g)(8) to reflect that a State must designate an entity to

which hospitals, State birth record agencies, and other entities

designated by the State and participating in the State's voluntary

paternity establishment program must forward completed voluntary

acknowledgments or copies in accordance with section 303.5(g)(2)(iv).

If States opt to file the signed original voluntary acknowledgment or

an adjudication of paternity with an entity other than the State

registry of birth records, a copy must be filed with the State birth

record registry, in accordance with section 303.5(g)(2)(iv).

Response to Comments on Section 303.5 Establishment of Paternity

Section 303.5(g)(1)

1. Comment: One commenter expressed fear that the wholesale

involvement of other agencies in acknowledging paternity may not

provide the kind of support that parents need to make an informed

choice about completing a voluntary paternity acknowledgment.

Response: We are confident that States will not expand the program

too quickly. We also feel that the protections built into section

303.5(g)(6) will require States to expand the program in a thoughtful

and deliberate manner.

2. Comment: One commenter suggested adding correctional officers to

the list of entities that may participate in a State's voluntary

paternity establishment program.

Response: States may choose to add to the list at section

303.5(g)(1). We intentionally added the sentence ``any similar public

or private health, welfare or social services organization'' at section

303.5(g)(1)(G) to allow States the flexibility to add to the list of

entities as they saw fit. However, correctional officers are law

enforcement or penal officers and do not qualify as health, welfare or

social service organizations. Due to the nature of the relationship

between such officers and their charges and the authority or power of

such officers over their charges, there would be significant risk for

coercion. We do not believe they would be an appropriate category to be

added for participation in the voluntary paternity establishment

program.

3. Comment: One commenter wanted to know if a State would be in

compliance if it only choose to identify one entity in addition to

hospitals and birth record agencies to provide voluntary paternity

services.

Response: Yes. The regulations require voluntary paternity

establishment services to be available at hospitals and at State birth

record agencies. States may choose to also make the services available

at one or more of the other entities listed in the regulations at

section 303.5(g)(1).

4. Comment: Several commenters were concerned that birth record

agencies as the term is used in section 466(a)(5)(C)(iii)(II)(aa)

should be interpreted to mean only State level birth record agencies

and not to refer to local-level birth record agencies.

Response: We agree and have made several slight changes to

emphasize that fact in the final regulations. Local birth record

agencies i.e., those operated by county or municipal agencies, may

participate in a State's voluntary paternity establishment program if

designated by the State, but are not Federally-mandated to participate.

5. Comment: One commenter recommended the preamble address the

issue of the right to rescind a voluntary paternity acknowledgment and

provide guidance on appropriate procedures for States.

Response: Section 466(a)(5)(D)(ii) of the Act requires the States

to enact laws and develop procedures under which an individual who has

signed a voluntary acknowledgment has the right to rescind that

acknowledgment within the earlier of 60 days or the date of an

administrative or judicial proceeding relating to the child. We think

this is an area where further regulation is not needed at this time. We

are prepared to work with States to help them address any specific

problems they face in implementing the minimum data requirements of the

paternity affidavit which include a reference to the 60-day recession

requirement. OCSE's paternity establishment workgroup has distributed

copies of a model rescission form that has been proposed by the

Association for Public Health Statistics and Information Systems. In

addition, OCSE regional staff will be compiling information on State

paternity programs including how States manage the 60 day rescission.

Once the information has been compiled, it will be disseminated via the

``State Paternity Profiles.''

6. Comment: One commenter proposed that States establish voluntary

paternity establishment services in cooperation with all birthing

hospitals but not in cooperation with every hospital in the State.

Response: Neither the statute nor the regulations require that the

State's procedures must include a program in all hospitals in the

State. The hospital-based program requirement is limited to hospitals

that either have an obstetric care unit or that provide obstetric

services, consistent with previously issued regulations. A clarifying

change was made by adding the word ``all'' and the regulation now reads

``all private and public birthing hospitals'' at section

303.5(g)(1)(i).

7. Comment: One commenter proposed revising this section to clarify

that the staff of a paternity establishment services provider may be

based out of any agency or contractor designated by the State, and need

not be available outside of normal business hours.

Response: States are free to make voluntary paternity

acknowledgment services available in as many locations and at any times

they choose, so long as the services are available at hospitals and at

State birth record agencies. We want to encourage States to make

paternity acknowledgment services available to as many parents as

possible after a thorough explanation of the rights and

responsibilities of doing so. In fact, States have been successful

making staff available outside of normal business hours, to recognize

after-working-hour visits to the hospital.

8. Comment: One commenter recommended OCSE assist States in

implementing in-hospital paternity acknowledgment before expanding

paternity establishment services to other entities.

Response: OCSE has assisted States in several ways as they have

moved to implement the OBRA '93 provisions related to in-hospital

paternity

[[Page 11806]]

establishment. In the past, we have conducted meetings with our

Regional Offices to bring together hospital personnel, IV-D staff and

birth registry personnel to air issues and concerns about in-hospital

paternity establishment and more recently we are moving to develop a

national video on paternity establishment for unmarried parents

regarding the benefits, rights, and legal consequences of signing a

voluntary acknowledgment of paternity. We have also provided States

copies of model agreements between State IV-D agencies and hospitals

and will be publishing a resource handbook entitled ``State Paternity

Profiles,'' which will allow States to learn from other States what

works to increase paternity establishment. In addition, we will be

preparing a national paternity establishment training video for

personnel directly involved in providing paternity acknowledgment

services in entities designated by the State as participating in the

State's voluntary paternity acknowledgment program.

Section 303.5(g)(2)

1. Comment: One commenter recommended deleting ``if he is present''

because in the context of participating entities it is likely to cause

confusion, leading the entity to think it has to deal in person with

the mother and by some other means with the father, but not to deal in

person with the father and by some other means with the mother.

Response: We agree and are deleting the phrase in the two places in

section 303.5(g)(2) where it appeared. All entities participating in

the State's voluntary paternity establishment program should treat the

mother and father equally and ensure that each has access to all the

same information before signing the voluntary acknowledgment of

paternity.

2. Comment: One commenter suggested adding a reference in the

regulations to the effect that participating entities must provide both

the mother and the father assurance that their eligibility for services

from the entity would not be affected by their decision to acknowledge

paternity. The same commenter also suggested adding a timeframe within

which the entity must forward the acknowledgment to the State registry

of birth records, and adding a requirement that State registries of

birth records send written notice of receipt of the acknowledgment to

both parents.

Response: We think that these suggestions warrant consideration by

the States. As discussed in more detail in the regulatory philosophy

section above, we believe it is prudent at this time to use these

regulations to extend existing regulatory requirements which govern

voluntary paternity acknowledgment in hospitals to govern State birth

record agencies and other entities participating in the State's

voluntary paternity establishment program.

3. Comment: One commenter recommended that the consequences of

acknowledging paternity vis-a-vis custody and visitation should be

explained to both the mother and father.

Response: We are not specifying explicit rights and

responsibilities regarding custody and visitation because these are

essentially State matters, governed by State law. States are required

by section 466(a)(5)(C)(i) of the Act to explain the alternatives to,

the legal consequences of, and the rights and responsibilities that

arise from signing the acknowledgment. When giving the parents the

opportunity to voluntarily acknowledge paternity, we would also

encourage that both parents receive an explanation about the potential

impact of an acknowledgment under State law on custody and visitation,

as well as the consequences.

4. Comment: One commenter recommended the regulation be amended to

require that entities participating in the State's voluntary paternity

establishment program afford parents a ``reasonable'' opportunity to

speak with staff. The commenter was concerned that without this

restriction, the language in section 303.5(g)(2) could be interpreted

to mean staff would have to be available to answer questions 24-hours

per day.

Response: Section 303.5(g)(2) was added to the regulations as a

result of OBRA '93 (59 FR 66204) and it is only being amended by this

final rule to reflect that it now applies to not only hospital-based

programs, but to all entities participating in the State's voluntary

paternity establishment program. As established in OBRA '93, to meet

this requirement an entity participating in the State's program must:

(1) have staff available during its regular business hours to talk with

parents in person, or (2) provide written materials with a telephone

number for State agency (IV-D or other agency) personnel that the

parties may contact for additional information. A program may utilize

both of these approaches. The technical amendments to PRWORA added

videos to the list of material that can be used.

5. Comment: One commenter proposed the regulations be revised to

apply only when both parents intend to sign an acknowledgment so as not

to waste the valuable time of staff.

Response: We do not agree that the regulations need to be revised

in this manner. States can not know the intent of a parent when he or

she volunteers to acknowledge paternity. States can only attempt to

ensure that parents are fully informed of their rights and

responsibilities before signing the form.

6. Comment: One commenter recommended that the text in section

303.5(g)(2)(i)(C) regarding notice be stated in a manner similar to

that in section 302.70(a)(5)(iii). The commenter suggested the phrasing

was confusing as written.

Response: We agree that the section could be written more clearly

and have rewritten the section to more fully mirror the language in

section 302.70(a)(5)(iii).

Section 303.5(g)(4)

1. Comment: One commenter recommended the preamble to the

regulations make it plain that a State may determine that two separate

acknowledgments (one signed by the mother and one by the father) will

suffice to establish paternity.

Response: The Federal statute does not require both signatures on

the same acknowledgment form.

Section 303.5(g)(6)

1. Comment: One commenter was concerned that the regulations could

be interpreted as precluding a State from furnishing offices such as

those of obstetricians/gynecologists with informational brochures

concerning voluntary paternity acknowledgment without designating such

offices as participating in the State's voluntary paternity

acknowledgment program. Another commenter recommended communicating

information about voluntary paternity acknowledgment services through

expanded outreach efforts.

Response: Nothing in this regulation precludes a State from

providing informational brochures or otherwise promoting the concept of

the voluntary acknowledgment of paternity in any setting the State may

choose. States select the entities (beyond hospitals and State birth

record agencies) that will provide voluntary paternity acknowledgment

services and they certainly can use other sites to promote the program.

A site may be chosen to promote as well as to provide paternity

services, or only to promote such services.

2. Comment: One commenter recommended the regulations distinguish

between entities which offer

[[Page 11807]]

paternity establishment services and entities which participate in a

State's voluntary paternity acknowledgment program. An example would be

lawyers who may offer paternity services in their offices without

participating in the State's program.

Response: These regulations apply only to those entities that are

providing voluntary paternity acknowledgment services to parents in

conjunction with the State IV-D agency's voluntary paternity

acknowledgment program. They do not preclude private attorneys from

helping parents with paternity establishment or contested paternity

establishment. The regulations consistently refer to ``entities

participating in the State's voluntary paternity establishment

program'' to make it clear as to what entities are covered.

3. Comment: One commenter was concerned about the potential that

exists for a lack of quality control if multiple entities are providing

voluntary paternity acknowledgment services to the public.

Response: It is for that reason that the regulations require States

to provide training, guidance, and written instructions regarding

voluntary acknowledgment of paternity as necessary to operate the

program to all entities providing these services. States must assure

quality control by participating entities through evaluation and

training.

Section 303.5(g)(7)

1. Comment: One commenter recommended the regulations provide

general evaluation criteria for the annual assessment of entities

participating in the State's voluntary paternity establishment program.

Response: Existing prior requirements did not set specific

evaluation criteria related to in-hospital paternity establishment

programs because that is a State responsibility. In addition, since the

statute and regulations require States to apply the same evaluation

standard to other entities that they currently apply to the in-hospital

paternity program, we do not want to introduce a new standard when

States are already evaluating their in-hospital paternity program under

existing requirements and State procedures.

Section 303.5(g)(8)

1. Comment: We received several comments regarding the proposed

requirement that States designate the State registry of birth records

as the entity to which hospitals, birth record agencies and other

entities participating in the State's voluntary paternity establishment

program must forward completed voluntary acknowledgments or copies in

accordance with section 303.5(g)(2)(iv). Most comments concerned

allowing States to designate an agency other than the State registry of

birth records as the agency to receive and process the completed

acknowledgment of paternity forms.

Response: We agree that the statute only requires States to develop

procedures under which voluntary acknowledgments and adjudications of

paternity by judicial or administrative processes are filed with the

State registry of birth records for comparison with information in the

State case registry. We also recognize that a number of States have

established alternative repositories for voluntary acknowledgments.

Therefore, States must file a copy of the signed original voluntary

acknowledgment or an adjudication of paternity with the State registry

of birth records if they file the original with another designated

entity (e.g. the State IV-D agency or another agency or a contractor as

the State deems appropriate). We do not think it is necessary that the

State choose the State registry of birth records as the sole repository

of these records. We have amended the regulation to allow States to

designate an entity to which hospitals, birth record agencies and other

entities must forward completed voluntary acknowledgments or copies. In

accordance with section 303.5(g)(2)(iv), if the entity designated is

not the birth record agency, a copy must be filed with the birth record

agency.

2. Comment: One commenter was under the impression that States

would be able to select the central registry of their choice via waiver

or comparable process and wants that flexibility.

Response: The regulation allows States to designate another entity

to which acknowledgments may be sent, as long as the birth registry

also receives a copy. However, if a State does not want to send a copy

to the birth record agency, as authorized by section 466(d), States may

request an exemption from the requirement that acknowledgments be filed

with the State registry of birth records, in accordance with OCSE-AT-

97-02 which was issued February 10, 1997. The State must demonstrate

that implementing this requirement will not increase the effectiveness

and efficiency of its child support program. Until such request is

approved, a State must comply with the requirement for filing with the

State registry of birth records.

Description of Regulatory Provisions--Section 304.20(b)(2)

We have revised sections 304.20 (b)(2)(vi), (vii), and (viii) to

provide that Federal financial participation is available for allowable

costs with respect to hospitals, State birth record agencies, and other

entities designated by the State and participating in the State's

voluntary paternity establishment program. This is consistent with the

expansion of the applicability of all existing provisions in sections

303.5(g)(2)-(8) to birth record agencies and other entities designated

by the State and participating in the State's voluntary paternity

establishment program.

Response to Comments on Section 304.20 Availability and Rate of

Federal Financial Participation

1. Comment: One commenter proposed deleting the reference to

``short-term'' as the training itself is not short-term in nature.

Response: We think it continues to be appropriate to refer to this

training as short-term, especially as this section contains a

discussion of the sorts of activity Federal financial participation

(FFP) will be available for. As the regulations state, FFP is available

for reasonable and essential short-term training regarding voluntary

acknowledgments of paternity associated with a State's program of

voluntary paternity establishment services under section 303.5(g).

Although the training must be short-term in order to be eligible for

FFP, training of new staff may be provided on a periodic basis as

necessary to assure understanding of the process and indeed, we think

that is the most reasonable manner in which to provide it.

2. Comment: One commenter recommended FFP be made available to the

IV-D agency to pay the State registry of birth records for costs

relating to the statewide paternity database.

Response: According to the Office of Management and Budget's

Circular A-87, ``Cost Principles for State and Local Governments,'' the

general rule governing this issue is that Federal funds are not

available to offset the general costs of a State or local government.

(See OMB Circular A-87, attachment B, #23.) That is, Federal funds may

not be used to finance general types of government services normally

provided to the public, such as the filing of birth records. Under this

principle, FFP is not available for paying the start-up or ongoing

costs of the State or local birth record agency

[[Page 11808]]

that has responsibility for maintaining completed acknowledgments of

paternity. Likewise, FFP is also not available to reimburse a State or

local vital records office for the costs of establishing a system to

process or store paternity affidavits because those activities are

required of those entities under general State law. However, as

previously stated in OCSE-AT-94-06, ``Final Rule--Paternity

Establishment and Revision of Child Support Enforcement Program and

Audit Regulations,'' FFP is available for the IV-D agency's cost in

determining whether a voluntary acknowledgment has been recorded with

the statewide database in IV-D cases needing paternity establishment.

In addition, FFP is available for the IV-D agency's cost incurred under

an agreement governing the routine exchange of information or documents

regarding acknowledgments between the IV-D agency and the agency that

maintains the statewide database.

3. Comment: One commenter recommended amending the regulations to

clarify that FFP is available for the costs associated with the

recording of and access to identifying information and documentation.

Response: FFP is available for three related costs. First, under

section 304.20(b)(2)(i), which allows FFP for costs associated with

reasonable efforts to determine the identity of a child's father, FFP

is available for the IV-D agency's costs in determining, in accordance

with section 303.5(h), whether a voluntary acknowledgment has been

recorded with the statewide data base in IV-D cases needing paternity

establishment. Second, FFP is available for reasonable and necessary

costs, including fees, incurred by the IV-D agency in obtaining copies

of documents such as voluntary acknowledgments or birth certificates.

Third, FFP is available, under previously-existing policy, for the IV-D

agency's costs of establishing an agreement, governing the routine

exchange of information or documents regarding acknowledgments, between

the IV-D agency and the entity designated in section 303.5(g)(8), the

agency that maintains the statewide database, or any entity that gives

the IV-D agency access to copies of acknowledgments.

4. Comment: One commenter wrote that FFP should be available for

the costs of hiring and training hospital and other entity staff.

Response: As stated above, FFP is available for only a limited

range of activities. While FFP is available for training of staff, it

is not available for hiring staff outright.

5. Comment: One commenter wondered if a State would have to have

agreements with local Health Departments if these are to provide

services or will a State level agreement suffice?

Response: Consistent with past policy, we are not mandating at what

level of State government agreements between entities participating in

a State's voluntary paternity acknowledgment program and the IV-D

agency must be reached. We think this is an area where States should be

granted flexibility. However, it is critical to ensure that all

entities participating in a State's program of voluntary paternity

establishment meet all Federal requirements.

6. Comment: One commenter suggested the regulations be amended to

provide guidance to States on the development of materials in languages

other than English, the design of materials for the visually or hearing

impaired, and the proper literacy level for materials to be presented

to the public.

Response: Just as we defer to State law regarding due process

protections for persons with such limited abilities, we think it is

appropriate to give States discretion in this matter. We encourage and

expect States to address the special circumstances of individuals with

limited understanding of English and to prepare materials geared to the

general population in language and at reading levels appropriate to

them.

7. Comment: One commenter felt the regulations should address the

legal structure of the relationship between the State and the various

entities participating in the voluntary paternity establishment

program.

Response: We think this is legitimately an area where each State

must have flexibility. Each State will have to determine for itself the

structure of the relationship with the entities that will participate

in the State's voluntary paternity establishment program.

8. Comment: One commenter felt the regulations should be more

explicit that entities participating in the State's voluntary paternity

establishment program have to use materials provided by the State.

Response: We think the statute and regulations are already quite

clear that in order to participate in a State's voluntary paternity

establishment program, an entity must use the same notice provisions

used by, use the same materials used by, provide the personnel

providing such services with the same training provided by, and

evaluate the provision of such services in the same manner as the

provision of such services is evaluated by voluntary paternity

establishment programs of hospitals and State birth record agencies.

Regulatory Impact Analyses

Paperwork Reduction Act

Section 466(a)(5)(C) of the Social Security Act (the Act) (42

U.S.C. 666(a)(5)(C)), as added by section 331 of Pub. L. 104-193 and

amended by section 5539 of Pub. L. 105-33, contains a requirement that

information be disclosed to a third party. As required by the Paperwork

Reduction Act of 1995 (44 U.S.C. 3507(d)), this request for approval of

a new information collection has been approved by Office of Management

and Budget as of March 2, 1998 under OMB control number 0970-0175. An

agency may not conduct or sponsor, and a person is not required to

respond to, a collection of information unless it displays a currently

valid OMB control number.

Section 466(a)(5)(C) of the Act requires States to pass laws

ensuring a simple civil process for voluntarily acknowledging paternity

under which the State must provide that, before a mother and putative

father can sign a voluntary acknowledgment of paternity, the mother and

putative father must be given notice, orally or through the use of

video or audio equipment and in writing of the alternatives to, the

legal consequences of, and the rights (including any rights, if a

parent is a minor, due to minority status) and responsibilities of

acknowledging paternity. To comply with this requirement States must

disclose information about these rights in written and oral formats or

through the use of video or audio equipment to mothers and putative

fathers. We estimate the time needed to disclose the information to

mothers and putative fathers to be approximately 10 minutes (0.17

hours). In order to ensure effective disclosure of this information,

States will need to provide training to other State employees and the

employees of local governments, non-profit and for profit businesses.

We estimate this training will take an additional 1,600 hours yearly

for all entities. We have added these hours to the time estimated to be

necessary for the third party disclosure in order to establish the

total estimated burden hours for this requirement. The total burden

hours estimated for the third party disclosure are 76,059.

[[Page 11809]]

Regulatory Flexibility Act

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

Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not

result in a significant impact on a substantial number of small

entities. The primary impact of these regulations is on State

governments, which are not considered small entities under the

Regulatory Flexibility Act. Most of the requirements being imposed on

entities are required by statute. The regulations require hospitals,

birth record agencies and the other entities participating in the

State's voluntary paternity establishment program to be subject only to

certain minimal requirements. These requirements include: undergoing

training, being evaluated annually, providing oral and written

information to mothers and putative fathers, and transmitting the

acknowledgments to the State registry of birth records. The information

about consequences may also be provided through the use of video or

audio equipment. The Federal regulations do not specify the nature or

extent of the training, evaluation or materials to be provided. The

States will furnish the training, conduct the evaluation, and provide

the materials and forms to be used. The requirements imposed by the

regulations do not result in a significant impact on a substantial

number of small entities. Therefore, the Secretary certifies, under 5

U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L.

96-354), that these regulations will not result in a significant impact

on a substantial number of small entities.

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. The

regulations are required by PRWORA and represent expansion of the

existing regulations to cover birth record agencies and other entities.

Unfunded Mandates Act

The Department has determined that this final rule is not a

significant regulatory action within the meaning of the Unfunded

Mandates Reform Act of 1995.

Congressional Review of Regulations

This final rule is not a ``major'' rule as defined in Chapter 8 of

5 U.S.C.

List of Subjects in 45 CFR Parts 302, 303, and 304

Accounting, Child support, Grant programs--social programs, and

Reporting and recordkeeping requirements.

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

Support Enforcement Program)

Dated: October 21, 1998.

Olivia A. Golden,

Assistant Secretary for Children and Families.

Approved: December 1, 1998.

Donna E. Shalala,

Secretary, Department of Health and Human Services.

For the reasons set forth in the preamble, 45 CFR chapter III of

the Code of Federal Regulations is amended as follows:

PART 302--STATE PLAN REQUIREMENTS

1. The authority citation for part 302 continues to read as

follows:

Authority: 42 U.S.C. 651 through 658, 664, 666, 667, 1302,

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

2. Section 302.70 is amended by revising paragraph (a)(5)(iii)

introductory text by revising paragraph (a)(5)(iii)(B), and by adding

paragraph (a)(5)(iii)(C) to read as follows:

Sec. 302.70 Required State laws.

(a) * * *

(5) * * *

(iii) Procedures for a simple civil process for voluntarily

acknowledging paternity under which the State must provide that, before

a mother and putative father can sign a voluntary acknowledgment of

paternity, the mother and the putative father must be given notice,

orally or through video or audio equipment, and in writing, of the

alternatives to, the legal consequences of, and the rights (including

any rights, if a parent is a minor, due to minority status) and

responsibilities of acknowledging paternity, and ensure that due

process safeguards are afforded. Such procedures must include:

(A) * * *

(B) A process for voluntary acknowledgment of paternity in

hospitals, State birth record agencies, and in other entities

designated by the State and participating in the State's voluntary

paternity establishment program; and

(C) A requirement that the procedures governing hospital-based

programs and State birth record agencies must also apply to other

entities designated by the State and participating in the State's

voluntary paternity establishment program, including the use of the

same notice provisions, the same materials, the same evaluation

methods, and the same training for the personnel of these other

entities providing voluntary paternity establishment services.

* * * * *

PART 303--STANDARDS FOR PROGRAM OPERATIONS

3. The authority citation for part 303 continues to read as

follows:

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

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

4. Section 303.5 is amended by revising paragraph (g) to read as

follows:

Sec. 303.5 Establishment of paternity.

* * * * *

(g) Voluntary paternity establishment programs. (1) The State must

establish, in cooperation with hospitals, State birth record agencies,

and other entities designated by the State and participating in the

State's voluntary paternity establishment program, a program for

voluntary paternity establishment services.

(i) The hospital-based portion of the voluntary paternity

establishment services program must be operational in all private and

public birthing hospitals statewide and must provide voluntary

paternity establishment services focusing on the period immediately

before and after the birth of a child born out-of-wedlock.

(ii) The voluntary paternity establishment services program must

also be available at the State birth record agencies, and at other

entities designated by the State and participating in the State's

voluntary paternity establishment program. These entities may include

the following types of entities:

(A) Public health clinics (including Supplementary Feeding Program

for Women, Infants, and Children (WIC) and Maternal and Child Health

(MCH) clinics), and private health care providers (including

obstetricians, gynecologists, pediatricians, and midwives);

(B) Agencies providing assistance or services under Title IV-A of

the Act, agencies providing food stamp eligibility service, and

agencies providing child support enforcement (IV-D) services;

(C) Head Start and child care agencies (including child care

information and referral providers), and individual child care

providers;

(D) Community Action Agencies and Community Action Programs;

[[Page 11810]]

(E) Secondary education schools (particularly those that have

parenthood education curricula);

(F) Legal Aid agencies, and private attorneys; and

(G) Any similar public or private health, welfare or social

services organization.

(2) The hospitals, State birth record agencies, and other entities

designated by the State and participating in the State's voluntary

paternity establishment program must, at a minimum:

(i) Provide to both the mother and alleged father:

(A) Written materials about paternity establishment,

(B) The forms necessary to voluntarily acknowledge paternity,

(C) Notice, orally or through video or audio equipment, and in

writing, of the alternatives to, the legal consequences of, and the

rights (including any rights, if a parent is a minor, due to minority

status) and responsibilities or acknowledging paternity, and

(D) The opportunity to speak with staff, either by telephone or in

person, who are trained to clarify information and answer questions

about paternity establishment;

(ii) Provide the mother and alleged father the opportunity to

voluntarily acknowledge paternity;

(iii) Afford due process safeguards; and

(iv) File signed original of voluntary acknowledgments or

adjudications of paternity with the State registry of birth records (or

a copy if the signed original is filed with another designated entity)

for comparison with information in the State case registry.

(3) The hospitals, State birth record agencies, and other entities

designated by the State and participating in the State's voluntary

paternity establishment program need not provide services specified in

paragraph (g)(2) of this section in cases where the mother or alleged

father is a minor or a legal action is already pending, if the

provision of such services is precluded by State law.

(4) The State must require that a voluntary acknowledgment be

signed by both parents, and that the parents' signatures be

authenticated by a notary or witness(es).

(5) The State must provide to all hospitals, State birth record

agencies, and other entities designated by the State and participating

in the State's voluntary paternity establishment program:

(i) Written materials about paternity establishment,

(ii) Form necessary to voluntarily acknowledge paternity, and

(iii) Copies of a written description of the alternatives to, the

legal consequences of, and the rights (including any rights, if a

parent is a minor, due to minority status) and responsibilities of

acknowledging paternity.

(6) The State must provide training, guidance, and written

instructions regarding voluntary acknowledgment of paternity, as

necessary to operate the voluntary paternity establishment services in

the hospitals, State birth record agencies, and other entities

designated by the State and participating in the State's voluntary

paternity establishment program.

(7) The State must assess each hospital, State birth record agency,

local birth record agency designated by the State, and other entity

participating in the State's voluntary paternity establishment program

that are providing voluntary paternity establishment services on at

least an annual basis.

(8) Hospitals, State birth record agencies, and other entities

designated by the State and participating in the State's voluntary

paternity establishment program must forward completed voluntary

acknowledgments or copies to the entity designated by the State. If any

entity other than the State registry of birth records is designated by

the State, a copy must be filed with the State registry of birth

records, in accordance with section 303.5(g)(2)(iv). Under State

procedures, the designated entity must be responsible for promptly

recording identifying information about the acknowledgments with a

statewide database, and the IV-D agency must have timely access to

whatever identifying information and documentation it needs to

determine in accordance with Sec. 303.5(h) if an acknowledgment has

been recorded and to seek a support order on the basis of a recorded

acknowledgment in accordance with Sec. 303.4(f).

* * * * *

PART 304--FEDERAL FINANCIAL PARTICIPATION

5. The authority citation for part 304 continues to read as

follows:

Authority: 42 U.S.C. 651 through 655, 657, 1302, 1396a(a)(25),

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

6. Section 304.20 is amended by revising paragraph (b)(2)(vi)

through paragraph (b)(2)(viii) to read as follows:

Sec. 304.20 Availability and rate of Federal financial participation.

(b) * * *

(2) * * *

(vi) Payments up to $20 to hospitals, State birth record agencies,

and other entities designated by the State and participating in the

State's voluntary paternity establishment program, under Sec. 303.5(g)

of this chapter, for each voluntary acknowledgment obtained pursuant to

an agreement with the IV-D agency;

(vii) Developing and providing to hospitals, State birth record

agencies, and other entities designated by the State and participating

in the State's voluntary paternity establishment program, under

Sec. 303.5(g) of this chapter, written and audiovisual materials about

paternity establishment and forms necessary to voluntarily acknowledge

paternity; and

(viii) Reasonable and essential short-term training associated with

the State's program of voluntary paternity establishment services under

Sec. 303.5(g).

* * * * *

[FR Doc. 99-5832 Filed 3-9-99; 8:45 am]

BILLING CODE 4184-01-P