Implementation of Section 403(a)(2) of Social Security Act; Bonus To Reward Decrease in Illegitimacy Ratio
Federal RegisterApr 14, 1999
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 283
RIN 0970-AB79
Implementation of Section 403(a)(2) of Social Security Act; Bonus
To Reward Decrease in Illegitimacy Ratio
AGENCY: Administration for Children and Families, HHS.
ACTION: Final rule
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SUMMARY: The Administration for Children and Families is issuing a
final rule describing how we will award a bonus to those States that
experience the largest decreases in out-of-wedlock childbearing and
also reduce their abortion rates. The total amount of the bonus will be
up to $100 million in each of fiscal years 1999 through 2002, and the
award for each eligible State in a given year will be $25 million or
less.
This incentive provision is a part of the welfare reform block
grant program enacted in 1996--the Temporary Assistance for Needy
Families, or TANF, program.
DATES: This regulation is effective June 14, 1999.
FOR FURTHER INFORMATION CONTACT: Kelleen Kaye, Senior Program Analyst,
Office of the Assistant Secretary for Planning and Evaluation, at (202)
401-6634; or Ken Maniha, Senior Program Analyst, Administration for
Children and Families, at (202) 401-5372.
Deaf and hearing-impaired individuals may call the Federal Dual
Party Relay Service at 1-800-877-8339 between 8:00 a.m. and 7:00 p.m.
Eastern time.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. The Personal Responsibility and Work Opportunity Reconciliation Act
II. The Bonus Award
A. Legislative History
B. Summary of the Bonus Award Process
III. Development of the Final Rule
A. Consultations
B. Regulatory Reform
C. Notice of Proposed Rulemaking
D. Section-by-Section Discussion of the Final Rule
E. Response to Comments that Were Outside the Scope of this Final
Rule
IV. Departmental Activities Related to Out-of-Wedlock Births
V. Regulatory Impact Analyses
A. Executive Order 12866
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act of 1995
E. Congressional Review
I. The Personal Responsibility and Work Opportunity Reconciliation
Act
On August 22, 1996, President Clinton signed ``The Personal
Responsibility and Work Opportunity Reconciliation Act of 1996''--or
PRWORA--into law. The first title of this law (Pub.L. 104-193)
established a comprehensive welfare reform program designed to change
the nation's welfare system dramatically. The program is called
Temporary Assistance for Needy Families, or TANF, in recognition of its
focus on moving recipients into work and time-limited assistance.
PRWORA repealed the prior welfare program known as Aid to Families
with Dependent Children (AFDC), which provided cash assistance to needy
families on an entitlement basis. It also repealed the related programs
known as the Job Opportunities and Basic Skills Training program (JOBS)
and Emergency Assistance (EA).
The TANF program went into effect on July 1, 1997, except in States
that elected to submit a complete plan and implement the program at an
earlier date. It challenges Federal, State, Tribal and local
governments to foster positive changes in the culture of the welfare
system and to take more responsibility for program results and
outcomes.
It also gives States the authority to use Federal welfare funds
``in any manner that is reasonably calculated to accomplish the
purpose'' of the new program (see Legislative History below). It
provides them broad flexibility to set eligibility rules and decide
what benefits are most appropriate, and it offers States an opportunity
to try new, far-reaching ideas so they can respond more effectively to
the needs of families within their own unique environments.
II. The Bonus Award
A. Legislative History
One of the greatest concerns of Congress in passing the PRWORA was
the negative effect of out-of-wedlock births. This concern is reflected
in the Congressional findings at section 101 of PRWORA. Here, Congress
described the need to address issues relating to marriage, the
stability of families, and the promotion of responsible fatherhood and
motherhood. The issues cited were: the increasing number of children
receiving public assistance; the increasing number of out-of-wedlock
births; the negative consequences of an out-of-wedlock birth to the
mother, the child, the family, and society; and the negative
consequences of raising children in single-parent homes.
Congressional concern is also reflected in the goals of the TANF
program and the inclusion of a performance bonus entitled ``Bonus to
Reward Decrease in Illegitimacy Ratio.'' One purpose of the TANF
program, as stated in section 401(a)(3) of the Social Security Act, is
to ``prevent and reduce the incidence of out-of-wedlock pregnancies and
establish annual numerical goals for preventing and reducing the
incidence of these pregnancies.'' In enacting the bonus provision,
Congress intended to provide greater impetus to State efforts in this
area and encourage State creativity in developing effective solutions.
B. Summary of the Bonus Award Process
This final rule implements section 403(a)(2) of the Social Security
Act (the Act), ``Bonus to Reward Decrease in Illegitimacy Ratio.'' In
this final rule, we use the term ``bonus'' to refer to the bonus in
section 403(a)(2) of the Act. We use the term ``ratio'' to refer to the
ratio of out-of-wedlock births to total births.
As specified in section 403(a)(2) of the Act, we will award up to
$100 million annually, in each of fiscal years 1999 through 2002. The
amount of the bonus for each eligible State in a given year will be $25
million or less. For the purposes of this award, States include the 50
States of the United States, the District of Columbia, the Commonwealth
of Puerto Rico, Guam, the United States Virgin Islands, and American
Samoa. While the criteria for determining bonus eligibility for Guam,
the Virgin Islands, and American Samoa are the same as for the
remaining States, their eligibility is determined separately and the
determination of their bonus amount is different, as specified in the
statute in sections 403(a)(2)(B)(ii) (Amount of Grant) and
403(a)(2)(C)(i)(I) (definition of eligible State).
Briefly, we will award the bonus as follows:
We will calculate the ratio of out-of-wedlock births to
total births for each State for the most recent two-year period for
which data are available and for the prior two-year period. To compute
these ratios, we will use the vital statistics data compiled annually
by the National Center for Health Statistics and based on records
submitted by the States.
For States other than Guam, the Virgin Islands, and
American Samoa, we will identify the five States that had the largest
proportionate decrease in
[[Page 18485]]
their ratios between the most recent two-year period for which data are
available and the prior two-year period. These States are potentially
eligible.
For Guam, the Virgin Islands, and American Samoa, we will
identify which jurisdictions had a comparable decrease in their ratios
(i.e., a decrease at least as large as the smallest decrease among the
other qualifying States or a decrease that ranks among the top five
decreases when all States and Territories are ranked together). These
additional States will also be potentially eligible.
We will notify the potentially eligible States that, to be
considered for the bonus, they need to submit data and information on
the number of abortions performed in their State for the most recent
year and for 1995.
We will determine which of the potentially eligible States
also experienced a decrease in their rate of abortions (defined for the
purposes of this bonus to be ratio of the abortions to live births) for
the most recent calendar year compared to 1995, the base year specified
in the Act. These States will receive a bonus award.
III. Development of the Final Rule
A. Consultations
In the spirit of both regulatory reform and PRWORA, we implemented
a broad consultation strategy prior to the drafting of all proposed
regulations for the TANF program, including this bonus provision. We
discussed major issues related to the proposed rulemaking with outside
parties at several meetings. We spoke with a number of different
audiences including representatives of State and local government,
State TANF agencies, national advocacy organizations, and data
collection experts. These consultations were helpful to us in
identifying key issues and evaluating policy options.
B. Regulatory Reform
In its latest Document Drafting Handbook, the Office of the Federal
Register supports the efforts of the National Performance Review (now
the National Partnership for Reinventing Government) to encourage
Federal agencies to produce more reader-friendly regulations and
regulations written in plain language. In drafting this final rule, we
have paid close attention to this guidance. Individuals who are
familiar with prior welfare regulations should notice that this package
incorporates a distinctly different, more readable style.
In the spirit of facilitating understanding, we have included some
of the preamble discussion from the NPRM as well as additional
information related to the final rule to provide further explanation
and context for the reader. This information is under the heading
``Additional Information Related to This Section.'' We also have
exercised some editorial discretion to make the discussion more
succinct or clearer in places. However, where we made significant
changes in the preamble material or the regulatory text, the preamble
explains these changes.
C. Notice of Proposed Rulemaking
On March 2, 1998, the Administration for Children and Families
published a Notice of Proposed Rulemaking (NPRM) to implement section
403(a)(2) of the Act. We provided a 60-day comment period which ended
on May 1, 1998 (63 FR 10264).
We offered those interested the opportunity to submit comments
either by mail or electronically via our Web site. Several commenters
took advantage of the electronic access, but we received most comments
by mail.
In addition, we held a briefing on the provisions of the NPRM for
interested organizations and entities on March 12, 1998. The purpose of
the briefing was to answer questions on the NPRM and provide clarifying
information.
We received 17 letters commenting on the NPRM from five States, one
local government agency, one State legislator, one national
organization representing State interests, seven national nonprofit
research and advocacy organizations, and three individuals. (One letter
was signed by two national organizations.)
In general, the comments expressed qualified approval for our
proposed approach to this highly technical statutory provision. Some
commenters recognized that we were constrained by the statute in
developing the NPRM, but, within those limitations, commended our
approach for ``in some instances, minimizing the potential problems
posed by the bonus.'' Other commenters supported specific aspects of
the NPRM, such as:
The proposed use of existing data (no new data collection
requirements);
Not ranking States based on their abortion data;
Our stated preference for residence data on abortions
while proposing to accept either occurrence or residence data;
Recognizing the differences in the States' methods of
collecting data on abortions and providing for State changes in State
methodology; and
Designing a process which would allow all States to
compete for the bonus, if they so choose.
Several commenters, however, expressed serious concern about
possible unintended effects of the bonus and about the quality of the
abortion data on which the bonus award would be based. They urged
increased attention to and recommended that we place additional
requirements on the collection of abortion data. They also urged
greater Departmental involvement to prevent, for example, actions that
might restrict access to abortion. Several commenters recommended
specific steps the Department might take to help assure that the bonus
award was not based on a State's legislation or policies to restrict
abortion services. They also recommended ways in which the Department
might use this bonus award process to evaluate out-of-wedlock and teen
pregnancy prevention programs, improve the quality of the abortion
data, and disseminate information on best practices.
We appreciate the thoughtful and policy-focused comments we
received and have seriously considered all concerns and
recommendations. We have made several changes in the final rule based
on the comments. We will discuss all comments below. Briefly, however,
we have:
Revised the definition of ``abortion'' to exclude
spontaneous abortions;
Specified that if a State changes its methodology for the
collection of abortion data, it must describe the nature of the change
and submit this explanatory information along with the number of
abortions performed after adjusting for these changes;
For changes in the collection of data on out-of-wedlock
births implemented prior to 1998, reduced the period of time States
have to submit this information from one year following publication of
the final rule to 60 days following publication of the final rule;
Clarified the time limit on the expenditure of the bonus
award funds;
Clarified the scope of the activities and services that
may be funded using bonus award funds and the limitations on the use of
these funds;
Clarified that, for Puerto Rico, Guam, the Virgin Islands,
and American Samoa, bonus award funds are not subject to the mandatory
funding ceilings established in section 1108(c)(4) of the Act. (Section
1108(c)(4) limits the total amount of TANF block grant funding for
these jurisdictions.)
We were not able to accept recommendations that were inconsistent
with the statute or our regulatory authority. Examples of these
recommendations included:
That we design a process to ensure that five States (other
than Guam, the
[[Page 18486]]
Virgin Islands, and American Samoa) would receive bonus awards
annually;
That States that do not collect abortion data be allowed
to submit abortion data based on a sub-state population such as
Medicaid recipients;
That we require States to submit information on the policy
measures they followed to lower their out-of-wedlock births; and
That, when determining eligibility, we discount changes in
abortion that result from changes in availability of abortion services.
These and other comments and recommendations will be discussed
below.
D. Section-By-Section Discussion of the Final Rule
Section 283.1 What Does This Part Cover?
This section of the NPRM provided a summary of the content of part
283 covering how we would determine which States qualify for the bonus
award, what data we would use to make this determination, and how we
would determine the amount of the award.
We received no specific comments on and have made no changes in
this section.
Section 283.2 What Definitions Apply to This Part?
This section of the NPRM proposed definitions of the terms used in
part 283. Some of these definitions assigned a one-word term to
represent a frequently used phrase. For example, ``bonus'' is defined
to mean the Bonus to Reward Decrease in Illegitimacy Ratio authorized
under section 403(a)(2) of the Act. Other definitions add clarity and
precision to key technical terms. For example, we defined the ``most
recent year for which abortion data are available'' as the year that is
two calendar years prior to the current calendar year.
We received several comments relating to definitions in this part.
These comments referred to definitions for ``abortion,'' ``most recent
period for which birth data are available,'' most recent year for which
abortion data are available,'' and ``number of out-of-wedlock births.''
Comment: One commenter recommended that we modify the definition of
``abortion'' to make clear that spontaneous abortions, i.e.,
miscarriages, are not included in this definition.
Response: We agree and have revised the definition accordingly.
Comment: One commenter interpreted the definition of ``most recent
two-year period for which birth data are available'' as variable across
States. This commenter recommended that we measure potential State
eligibility for the bonus based on identical time periods across
States.
Response: We agree that the determination of eligibility will be
based on birth data for an identical time period across States. We have
clarified the definition of ``most recent two-year period for which
birth data are available'' to indicate that this will be the most
recent period for which the National Center for Health Statistics
(NCHS) has released final birth data by State. Final data released by
NCHS covers the same year for all reporting States, as noted in the
NPRM.
Comment: One commenter objected to this same definition on
different grounds. In the NPRM, we said in the preamble discussion to
Sec. 283.4 that in bonus year 1999, we would likely compare births in
calendar years 1996 and 1997 to births in years 1994 and 1995. The
commenter believed that this would not provide a fair comparison among
States, particularly those States that had implemented programs to
reduce out-of-wedlock births since enactment of PRWORA. The commenter
also believed that it did not make sense to compare years prior to
enactment of the TANF program and suggested that we use more recent
birth data that would reflect recent State efforts to reduce out-of-
wedlock births, delaying the bonus award if necessary.
Response: We recognize the importance of basing the bonus on the
most recent data available and incorporating data that reflect State
efforts to reduce out-of-wedlock childbearing. The rule clearly states
that eligibility will be based on the most recent data released by
NCHS. In all but the first bonus year, eligibility will likely be based
on data that reflect post-TANF outcomes. For example, in the first
bonus year, FY 1999, we will base awards on a data period including
1997; awards in FY 2000 will reflect data for 1998.
However, after carefully considering this matter, we have
determined that the Department must obligate the first-year bonus funds
in fiscal year 1999, and therefore determination of eligibility in the
first year cannot be delayed beyond fiscal year 1999.
Comment: One commenter objected to the definition of ``most recent
year for which abortion data are available.'' The NPRM defined this
term as ``the year that is two calendar years prior to the current
calendar year.'' We provided the example that in calendar year 1999,
the most recent year for which abortion data are available would be
calendar year 1997. The commenter recommended that we change the
definition to read: ``the year that is no later than two calendar years
prior to the current calendar year.'' The commenter believed that if
more timely data were available, States should be allowed to use these
data, particularly if the data would have a positive effect on the
State's eligibility for the bonus, since the data would not affect
another State's eligibility.
Response: The definition stated in the NPRM bases eligibility on
reasonably current abortion data gathered for a consistent time period.
While States do not compete directly with respect to their abortion
measures, it is important to define this period consistently. If each
State were to use their most recent year of abortion data, eligibility
could be affected not only by changes in the abortion rate but also by
changes in the State's decision regarding when to release the next year
of data, which is not the intent of the bonus provision. The final rule
was not changed with respect to this comment.
Comment: One commenter objected to the definition of ``number of
out-of-wedlock births'' and ``number of total births'' because she
interpreted the definitions to mean the number of births occurring in
the State. The commenter recommended that the number of births be
measured according to the state of residence rather than the state of
occurrence.
Response: We agree that the number of out-of-wedlock and total
births will be measured according to state of residence rather than
state of occurrence, and the definitions proposed in the NPRM for out-
of-wedlock and total births already reflect this. Therefore, no changes
were needed in the final rule. We retained the two pertinent
definitions proposed in the NPRM as follows:
``Number of out-of-wedlock births for the State'' means the final
number of births occurring outside of marriage to residents of the
State, as reported in NCHS vital statistics data. ``Number of total
births for the State'' means the final total number of live births to
residents of the State, as reported in NCHS vital statistics data.
Section 283.3 What Steps Will We Follow to Award the Bonus?
This section of the NPRM described the process we proposed to
follow for identifying which States would be eligible for the bonus and
what the amount of the bonus would be. This process was based on the
definition of ``eligible State'' in section 403(a)(2)(C)(i)(I). This
definition
[[Page 18487]]
indicates that a State must have a qualifying decrease in its ratio
(i.e., its ratio of live out-of-wedlock births to total births) and
also experience a decrease in its abortion rate (i.e. its ratio of
abortions to live births). We proposed to base the bonus award on birth
and abortion data for the State population as a whole, not on data for
TANF recipients or other sub-state populations.
We received several comments in support of the general process for
awarding the bonus. Commenters supported the two-year comparison period
for State birth data. They also supported the use of NCHS data on
births because it avoids duplicate State data collection and allows the
bonus to be awarded based on statistics similar for all States.
Commenters also supported the use of the proportionate ratio method in
ranking States based on birth data because it allows States to compete
on a more level playing field, regardless of population size or
previous decreases in out-of-wedlock birth ratios.
We also received several comments expressing concerns related to
this section. These included comments regarding the determination of
eligibility for Guam, American Samoa and the Virgin Islands, comments
regarding the number of potentially eligible States, and comments that
the final rule should include an appeals process for those who do not
receive the bonus.
Comment: One commenter questioned our preamble discussion on how
the bonus for Guam, the Virgin Islands, and American Samoa would be
computed and recommended that the process for making awards to these
jurisdictions be the same as for other States.
Response: We agree that, for these jurisdictions, the criteria for
how bonus eligibility will be determined is the same as for other
States, and we have clarified this in paragraph (a)(3). It is only the
amount of the award that will be different.
Comment: One commenter recommended that the Department design a
process that would ensure that the maximum number of States (five other
than Guam, American Samoa and the Virgin Islands) receive a bonus each
year. They suggested informing more than just five States (e.g.,
between 7-10 States) that they were potentially eligible for the bonus
based on their birth data. Among this larger group of potentially
eligible States, even if some States were not eligible based on their
abortion data, DHHS would still be able to identify five eligible
States.
Response: Section 403(a)(2)(C)(i)(I) of the Act clearly indicates
that an eligible State must meet two criteria; it must be among the top
five States with the largest decrease in the ratio of out-of-wedlock to
total births and it must have a reduction in its abortion rate. A State
that is not among the top five States would not meet the definition of
eligibility stated in the Act, and the Act clearly provides for the
possibility that fewer than five States will receive the bonus. We did
not change the final rule with respect to this comment.
Comment: Another comment that did not directly reference Sec. 283.3
but is related most closely to this section, recommended that the final
rule include an appeals process for those States that did not qualify
for the bonus.
Response: We recognize the importance of awarding the bonus fairly.
To accomplish this, the final rule bases eligibility on widely accepted
and standard measures of births and clearly describes the objective
criteria we will follow in ranking and identifying those States with
the largest decrease in the ratio of out-of-wedlock to total births.
The final rule also clearly defines what abortion data the State must
submit to be eligible for the bonus and assigns to the States the
responsibility of collecting those data and calculating any necessary
adjustment. Because eligibility is based on nondiscretionary, objective
criteria and data that are largely submitted by the States, we do not
believe an appeals process is appropriate.
Therefore, the final rule does not provide for an appeals process
and no changes to the final rule were made with respect to this
comment. While section 410 of the Act does provide for an appeals
process, this section applies only to adverse actions such as the
imposition of penalties and does not apply to bonus awards.
Finally, we have made editorial changes for clarity.
Additional Information Related to This Section
This final rule places no mandates on States with respect to data
collection. Competition for the bonus is entirely voluntary. Also,
where possible, this final rule uses existing data sources or data that
are the least burdensome to collect and report.
When calculating decreases in the ratios of out-of-wedlock to total
births, we will use the NCHS vital statistics data for total births and
out-of-wedlock births, which are based on data submitted by the States.
Vital statistics data include information on virtually all births
occurring in the United States and are already reported by State Health
Departments to NCHS through the Vital Statistics Cooperative Program
(VSCP). Hospitals and other facilities report this information to the
State health departments on a standard birth certificate, following
closely the format and content of the U.S. Standard Certificate of Live
Birth. The States process all of their birth records and send their
files to NCHS in electronic form in a standard format. The mother of
the child or other informant provides the demographic information on
the birth certificate.
We chose vital statistics data to measure births because we viewed
them as the most reliable and standard data available across States.
Also, using vital statistics data from NCHS will allow us to measure
the same years for all States and will give States a reasonable and
standard time frame in which to submit the data. This is particularly
important for birth data because we will rank States on their decreases
in the ratio based on these data.
We also determined that obtaining these data directly from NCHS
rather than from the individual States will avoid a duplicate
information collection activity and will be less burdensome for the
States and for us. In most cases, States will not need to provide any
new data or information related to births beyond what they already
submit to NCHS.
As specified in section 403(a)(2) of the Act, once we have
identified the potentially eligible States with the largest decreases
in their ratios, we will notify those States that, to be considered for
eligibility for the bonus award, they must submit the necessary data on
the number of abortions for both 1995 and the most recent year as well
as information on any adjustment to these data.
There is no need for all States to submit data on abortions, based
on the definition of ``eligible State'' in section 403(a)(2)(C)(i)(I).
A State cannot qualify for the bonus unless it is among the top five
with the largest decrease in the ratio of live out-of-wedlock to total
births (or it is one of the previously mentioned territories and has a
comparable decrease).
Even if some potentially eligible States later become ineligible
based on their abortion data, all States that were previously
ineligible based on their birth data remain ineligible. Therefore, one
State's abortion rate does not affect whether another State qualifies.
Thus, while abortion data affects whether an individual State receives
the bonus, competition among States for the bonus depends on the birth
data.
[[Page 18488]]
Section 283.4 If a State Wants To Be Considered for Bonus Eligibility,
What Birth Data Must It Submit?
This section of the NPRM described in more detail what birth data a
State must have submitted to NCHS for each year in the calculation
period as a first step in qualifying for the bonus. This section also
described what the State must do if it changed its methodology for
collecting or reporting birth data, i.e., the method for determining
marital status at the time of birth.
Several commenters agreed with the proposed approach in this
section. They were pleased that we proposed to rely on statistics
already submitted by States. They also were pleased that we recognized
that some States may have changed (or may plan to change) their
methodology or classification procedures for collecting out-of-wedlock
birth data and agreed with our proposed approach that would allow those
States to be eligible to compete for the bonus. However, commenters
also expressed several concerns.
Comment: One commenter was concerned that the NPRM included no
standards by which NCHS ``must fairly evaluate the adjustment methods
used by a State which had changed its reporting methodology'' for birth
data. They suggested that the final rule clarify these standards in
order to assure fair and consistent review of the additional
information submitted by a State.
Response: We recognize the importance of fairly adjusting for
changes in data collection. The NPRM proposed in Sec. 283.4(b) that if
a State changed its data collection methodology regarding nonmarital
births, it would have to submit additional detailed information
regarding this change, in addition to submitting the number of out-of-
wedlock and total births. This information included an alternative
calculation showing, to the greatest extent possible, what the number
of out-of-wedlock births would have been under the prior methodology,
documentation of the changes in data collection methodology, and how it
determined the alternative number.
In the preamble we stated that NCHS would then calculate an
adjustment factor based on this information. NCHS has extensive
expertise in working with the State vital statistics data and working
with States regarding the collection of these data.
Specifying in greater detail how NCHS will calculate the adjustment
is not feasible until more specific information is available regarding
the actual changes a State might make in data collection. However, NCHS
will examine all information submitted with respect to this requirement
to ensure that it is statistically valid.
Comment: Two commenters believed that the final rule should require
States seeking the bonus to submit information regarding the policies
they undertook to reduce their out-of-wedlock births, and that we
should evaluate these efforts and disseminate the findings. The
commenters cited sections 413(a) (research) and 413(c) (dissemination)
of the Act in support of this suggestion. They believed that without
such information, the Federal government might award significant sums
of money without learning sufficiently about effective practices to
lower out-of-wedlock births. Another commenter expressed the importance
of learning from best practices regarding reduction in unintended
pregnancies and out-of-wedlock births, but did not recommend that such
information be required as part of this final rule.
Response: We recognize the importance of disseminating information
on effective practices regarding efforts to reduce out-of-wedlock
births and unintended pregnancies, and the Department has made it a
priority to continue facilitating the collection, review, and
dissemination of this information in the future. We will build on our
existing efforts described in section IV of the preamble,
``Departmental Activities Related to Out-of-Wedlock Births'' and
explore further ways to disseminate information on State best practices
and winning strategies. The final rule was not changed to reflect our
research and dissemination efforts because they are beyond the scope of
section 403(a)(2) of the Act, to which this final rule pertains.
Also, the final rule does not require States to submit information
on the policies they undertook to reduce out-of-wedlock births because
such a requirement would be inconsistent with the eligibility
requirements specified in section 403(a)(2) of the Act. The Act
specifies that if a State is among the top five States with the largest
decrease in its ratio of out-of-wedlock to total births and its
abortion rate is lower than the rate in 1995, they are eligible for the
bonus. This definition does not provide for making eligibility
contingent on supplying information regarding policies aimed at
reducing out-of-wedlock births.
Sections 413(a) and 413(c) of the Act direct the Secretary to
conduct research on ``the benefits, effects and costs of State programs
funded under [TANF]'' and disseminate information. However, these
sections do not give us the authority to require such information from
States, or to make bonus eligibility contingent on this information. In
addition, efforts initiated by States to reduce out-of-wedlock births
may be, but are not necessarily, ``programs funded under TANF.''
In addition, after reviewing the language of the NPRM, we have made
two changes in paragraph Sec. 283.4(b) of the final rule. The first
change gives States greater flexibility regarding the information they
submit with respect to changes in methodology for collecting birth
data. In paragraph (b)(2) of the NPRM, we proposed that, in a year when
a State changed its methodology for collecting birth data, the State
must generate an alternative number of out-of-wedlock births based on a
consistent methodology for the year of the change and the previous
year. In the final rule, States for which NCHS agrees it would be
technically infeasible to produce the alternative number would have the
option of accepting an NCHS estimate of the alternative number. We made
this change based on our identification of several complexities
regarding the changes in birth data collection that have occurred. This
change reflects our efforts to be accommodating of technical
difficulties that States might face, while maintaining an award process
that is fair and methodologically sound. Because NCHS will evaluate all
information submitted by States to ensure it is methodologically valid,
we strongly encourage States to work with NCHS as they respond to this
eligibility criterion. Paragraphs (b)(2) and (3) reflect this change.
The second change affects when information must be submitted to
NCHS on changes in a State's methodology for collecting birth data.
Paragraph (b)(4) of the NPRM proposed that States must submit
documentation on such changes made prior to 1998 and prior to the
publication of the final rule within one year of publication of the
final rule.
In the final rule, we have reduced this time period to two months
for changes pertaining to 1997 or earlier years. Information pertaining
to changes in data for 1998 or later years will not be due until the
end of calendar year 1999 or the deadline that normally applies to the
State's submission of vital statistics data for that year, whichever is
later. This changes reflects a balance between our need to base the
1999 award on timely information and our efforts to allow States as
much time as possible to submit the required information. This change
is reflected in paragraph (b)(4).
[[Page 18489]]
Additional Information Related to This Section
As specified in section 403(a)(2)(C)(i)(I)(aa) of the Act, the
calculation period for each bonus year covers four years, i.e., the
most recent two calendar years for which NCHS has final data and the
prior two calendar years. Consider the hypothetical example where bonus
eligibility is being determined in July of 1999 and the most recent
year for which NCHS has final data for all reporting States is 1997. In
this example, the calculation period would be calendar years 1997,
1996, 1995, and 1994.
If a State did not change its method for determining marital status
at any time during the calculation period, it will not need to submit
any additional information beyond the information submitted to the NCHS
as part of the vital statistics program. States must have submitted
these vital statistics files for each year in the calculation period.
NCHS will use these data to tabulate the number of total and out-of-
wedlock births occurring to residents of each State.
While the determination of marital status at the time of birth is
fairly standard across States, there is some variation. Most States use
a direct question on marital status, while a few infer marital status
based on various pieces of information.
Section 403(a)(2)(C)(i)(II)(aa) of the Act requires us to disregard
changes in a State's birth data due to changed reporting methods.
Examples of such changes in data collection include replacing an
inferential procedure with a direct question on marital status, or
changing the data items from which marital status is inferred.
Accordingly, if a State implemented changes that affected its data
on out-of-wedlock births for the calculation period, the State must
provide additional information to NCHS as specified in Sec. 283.4. This
additional information is necessary only if a State chooses to be
considered for the bonus. It is not required as part of the Vital
Statistics Cooperative Program.
Section 283.5 How Will We Use These Birth Data to Determine Bonus
Eligibility?
This section of the NPRM explained how we would identify which
States have the largest decrease in their ratios.
The comments we received on this section expressed support for the
use of the proportionate ratio calculation and recommended that we
design a process to award bonus funds to the maximum number of States
each year. These latter comments were addressed in a prior section of
the preamble.
We have made only editorial changes in the final rule for clarity.
Section 283.6 If a State Wants To Be Considered for Bonus Eligibility,
What Data on Abortions Must It Submit?
This section of the NPRM described the data that a potentially
eligible State also must submit on abortions in order to qualify for
the bonus. As noted above, only those States that are potentially
eligible based on their ratios of out-of-wedlock to total births would
need to submit abortion data in each year. Other States cannot be
eligible and, therefore, do not need to submit abortion numbers.
We received a number of comments in support of various provisions
of this section. Various commenters supported:
The proposal to review State abortion data only for those
States with a decrease in out-of-wedlock births large enough to make
them potentially eligible;
The proposal that States will not be ranked according to
their abortion data;
The 60-day time period to report abortion data after a
State is notified that it is potentially eligible;
The approach in the NPRM which gave States flexibility to
change their abortion data collection methodology over time and provide
appropriately adjusted data to account for the change;
The proposal that abortion data based on state of
residence is preferred, but that States have flexibility to submit data
based on either state of residence or state of occurrence; and
The proposal that the responsibility for certifying the
validity of abortion data lies with the Offices of the Governors and
that ACF would not conduct further review or analysis of the data.
We also received several comments recommending changes in this
section of the final rule. These include recommendations that state of
residence data be required, that abortion data should not be required
to cover the entire State population, that States should be allowed to
adjust 1995 abortion data, and that there should be more Federal
oversight regarding abortion data.
Comment: Several commenters questioned the provision that would
allow States to submit data on either the total number of abortions
performed within the State, or the total number of abortions performed
within the State on in-state residents. Some commenters strongly
recommended that the final rule require States to count only abortions
to in-state residents. Other commenters recommended that the final rule
should require States to count out-of-state abortions obtained by their
residents as well. Some commenters believed that these changes were the
only method to assure fairness, while other commenters believed these
changes would reduce the unintended consequences that the bonus may
have regarding the availability of abortion services.
Response: We recognize the value of using abortion data based on
state of residence and the final rule continues to emphasize this as
the preferred measure. However, the final rule does not require data
based on state of residence because numerous States did not have data
based on state of residence for the base year of 1995 and, therefore,
would have no opportunity to compete for the bonus. In addition, we
also did not accept the recommendation that a potentially eligible
State obtain data from other States on abortions obtained by its
residents in other States. This is because the degree to which
neighboring States will have information on state of residence for
abortions will vary across States, and because we have no authority to
require all States to report this information. The final rule was not
changed with respect to these comments.
Comment: One commenter urged that, for a State that does not have
mandatory statewide reporting of abortion data and does not collect
abortion statistics, the final rule permit such a State to report less
than total population data, e.g., abortion data on the title XIX
(Medicaid) population.
Response: Section 403(a)(2) of the Act clearly indicates that
eligibility shall be based on the number of abortions performed in the
State and does not provide for a measure based on other more narrowly
defined populations. We did not change the final rule with respect to
this comment.
Comment: One commenter observed that NCHS, through its Vital
Statistics Cooperative Program, previously supported abortion data
collection by grants to 14 States, and that the funding support was
discontinued in the commenter's State during 1994. The commenter
observed that this cessation in funding caused a reduction in effort to
collect 1995 abortion data, and the 1995 abortion rate is a low point
for that State. This has implications for that State in terms of the
bonus, as 1995 is the base year for comparison purposes.
Response: We recognize that this Federal funding for collection of
abortion data in 14 States was eliminated in 1995. To the extent that
this elimination of funding led to
[[Page 18490]]
differences in data collection or reporting between 1995 and subsequent
years in the bonus period, the final rule allows States to adjust their
number of abortions to account for these differences. No change in the
final rule was necessary in response to this comment.
Comment: Several commenters recommended more specific Federal
requirements with respect to the submission of abortion data for the
bonus and any adjustments to that data. (The Act states that States
must adjust their abortion data if the data reporting methodology
changed between 1995 and the evaluation year.) These commenters made
the following recommendations:
That the final rule provide guidelines for how a State
should calculate the adjustment;
That we make clear that States should adjust for changes
in reporting among providers (e.g. changes in the proportion or makeup
of providers reporting);
That the final rule require States to report any
legislative or policy changes in the State that could impact the
collection or reporting of abortion data; and
That we review the abortion data and information provided
by States regarding changes in data collection.
Response: We agree that we should be more specific regarding
adjustments for changes in abortion data collection and should require
additional information from those States that adjust their abortion
data. We have revised paragraph (d) of the final rule to reflect this.
We have stated more specifically in paragraph (d) what changes in
data collection or reporting entails, including such things as changes
in the response rate of providers in reporting abortion data. We have
also stated that to qualify for the bonus, States must indicate whether
or not they have adjusted their abortion data and, if so, give the
rationale for the adjustment (e.g. describe how legislative, policy or
procedural changes impacted data collection and necessitated the
adjustment).
The final rule does not give more specific requirements regarding
how States should adjust for changes in data collection because it is
not feasible at this time to anticipate what these changes might be and
how to best adjust for them. In the final rule, the States remain
responsible for calculating any adjustment and certifying as to the
correctness of the abortion data submitted.
Comment: Another commenter suggested that when submitting data on
the number of abortions for the most recent year, the State should
demonstrate that any decreases were not the result of restrictions in
access to abortion services. The commenter expressed strong concern
that without such an adjustment, the bonus provision could encourage
States to restrict access to abortion services, given that States must
have an abortion rate lower than their 1995 rate in order to qualify
for the bonus.
Response: Section 403(a)(2)(C)(i)(I) of the Act specifies that if a
State is among the top five States with the largest decrease in its
ratio of out-of-wedlock to total births and its abortion rate (i.e.,
ratio of abortions to live births) is lower than the rate in 1995, it
is eligible for the bonus. This definition does not provide for making
eligibility contingent on access to abortion services. Therefore, we
have not changed the final rule with respect to this comment.
Finally, we have deleted the phrase ``by the end of calendar year
1997'' in paragraph (c) as no longer applicable, and made other
editorial changes for clarity in paragraph (d).
Additional Information Related to This Section
The information the State must submit for 1995 and the most recent
year is either the number of all abortions (i.e., both medically and
surgically induced abortions) performed within the State, or the number
of all abortions performed within the State on in-state residents. We
will accept either measure. However, we prefer the second measure
because the population of in-state residents is more relevant for the
intent of this provision. We assume that State policies to reduce out-
of-wedlock childbearing will affect in-state residents most directly.
We received numerous comments during our external consultation,
prior to publication of the NPRM, that the measure should be based on
in-state residents, if possible. We understand, however, that some
States collect data only on total abortions that occurred within the
State and do not separately identify abortions provided to in-state or
out-of-state residents. While such States could begin to collect the
data on a state-resident basis in the future, their 1995 data would not
have been collected on this basis. We investigated whether a State
could adjust its 1995 data to make it comparable to future data based
on in-state residents. After extensive consultation, we concluded this
would not be technically feasible. We have retained this policy
position in the final rule.
The State must use the same definition to measure abortions in
later years as it chooses for 1995. For example, if a State submitted
data on abortions performed in the State in 1995, it also must submit
data on abortions performed in the State in 1999.
Most States have reporting systems in place for abortion data and
these are the preferred data to use for purposes of this bonus.
However, States have the flexibility to choose the source of the
abortion data they submit, allowing States that do not already have
their own reporting system in place to compete for the bonus using data
from other sources. Regardless of the data source, the data must cover
the entire State population, and not be limited to other more narrowly
defined populations such as Medicaid recipients.
The State also has some flexibility to change its abortion
reporting over time. However, the State must adjust for effects of
these changes. This flexibility allows States to improve their abortion
reporting systems without making them ineligible for the bonus. The
Governor, or his or her designee, must certify that the State has made
the appropriate adjustments.
These abortion reporting restrictions, including the need to adjust
for changes in data reporting and the need to define the population
consistently over time, apply only to the number of abortions reported
to ACF for purposes of this bonus. Therefore, the number of abortions
reported for purposes of the bonus might or might not equal the number
of abortions reported in public health statistics.
The NPRM did not specify what methodology States must use to adjust
for changes in data collection. After extensive consultation, we do not
believe it is feasible to design a single methodology that would
address all possible changes in data reporting. In addition, we
understand that some State privacy laws restrict the types of abortion
provider information that can be reported. Some of the more specific
reporting requirements we considered as a way of ensuring a more
uniform methodology appeared to conflict with these State
confidentiality laws.
Our aim in this section of the final rule is to obtain from States
the best quality and most standard abortion data possible. We believe
this is necessary for the fair and equitable distribution of these
bonus awards. We also believe, however, that this rule provides States
with important flexibility that would
[[Page 18491]]
make it technically feasible for States to submit the necessary data if
they choose to compete for the bonus. We believe that this flexibility
better incorporates State program knowledge and expertise in measuring
abortions.
This flexibility could introduce variation in measurement of
abortions across States for purposes of the bonus and could raise
concerns about fair competition for the bonus. However, these concerns
are greatly mitigated by the fact that States are not competing with
each other on their abortion rates. As noted above, a State's abortion
rate affects its own qualification only, not the qualification of any
other State.
A State cannot be eligible for the bonus unless it submits the
necessary abortion data. However, as competition for the bonus is
voluntary, this provision places no requirement on States to submit
these data.
Section 283.7 How Will We Use These Data on Abortions To Determine
Bonus Eligibility?
This section of the NPRM described how we would use the abortion
data to identify which States are eligible for the bonus.
Comment: We received one comment specifically on this section. Two
organizations recommended an alternative ratio for computing the
abortion ratio. The NPRM proposed to calculate the rate of abortions
for 1995 and for the most recent year for which abortion data are
available. The rate would be equal to the number of abortions divided
by the total number of live births in the State. The commenters
believed that this ratio might encourage States to manipulate birth
rates. They recommended that the ratio be based on abortions per 1,000
women ages 15 to 44. They stated that this is a standard measure,
consistent with the statute, and would more directly reflect the number
of abortions and would not unnecessarily incorporate birthrate data
into the calculation.
Response: We recognize the importance of using standard measures to
calculate changes in abortion rates, and in developing the NPRM, we
considered using the number of abortions per 1,000 women ages 15 to 44.
However, the number of women ages 15 to 44 in each State is difficult
to measure precisely between census years. Typically, these measures
come from intercensal population estimates. The degree of error in
these data varies from year to year and from State to State, and the
estimates decline in reliability as the interval since the last census
increases. This makes it difficult to separate actual changes in the
abortion rate from year to year changes in estimation error. The number
of births occurring to residents of the State is highly reliable
because it is based on a complete count of all births in the State. In
contrast, data on the number of women in the State are based on
intercensal population estimates. We made no changes to the final rule
with respect to this comment.
Additional Information Related to This Section
We will use the abortion data that States provide to calculate a
rate of abortions. This rate would equal the number of abortions in a
State for the most recent year, divided by the number of total resident
live births for the same year as reported by NCHS. This statistic is
also known as the ``abortion to live birth ratio.'' It is a standard
statistic used to measure abortions and incorporates the same
denominator as the ratio of live out-of-wedlock births to total births.
Section 283.8 What Will be the Amount of the Bonus?
This section of the NPRM explained how we would determine the
amount of the bonus for eligible States. These amounts are specified in
section 403(a)(2)(B) of the Act.
For Guam, the Virgin Islands, and American Samoa, the award would
be 25 percent of their mandatory ceiling amount as defined in section
1108 of the Act. Any bonuses paid to the these States would be
subtracted from $100 million (the total annual amount available for the
bonus awards), and the remainder would be divided among the other
qualifying States up to a maximum award of $25 million per State. If
Guam, the Virgin Islands, and American Samoa are not among the
qualifying States, the bonus for each State would be $20 million if
five States qualified and $25 million if fewer States qualified.
Consider the hypothetical example where American Samoa and four
States other than American Samoa, Guam and the Virgin Islands qualify
for the bonus. In this case, American Samoa would receive $250,000 (25
percent of their mandatory ceiling amount of $1,000,000) and the
remaining eligible States would each receive $24,937,500 ($100,000,000
minus $250,000 all divided by four). If American Samoa and two States
other than Guam, American Samoa and the Virgin Islands qualified for
the bonus, American Samoa would receive $250,000 and the remaining
States would receive $25 million, which is the maximum amount that any
State can receive.
We received no comments on and have made no changes in this section
of the final rule.
Section 283.9 What Do Eligible States Need To Know To Access and Use
the Bonus Funds?
This section of the NPRM specified additional information on how we
would pay the bonus and how States may use bonus award funds. In the
NPRM, we proposed to pay the award to the Executive Office of the
Governor. We also specified that States must use bonus funds to carry
out the purposes of the TANF program and that bonus award funds are
subject to the limitations in, and the requirements of, sections 404
and 408 of the Act.
We made one change in this section after further internal ACF
discussion and made other changes in response to comments. In the final
rule, we deleted the proposed provision to pay the bonus to the
Executive Office of the Governor. We continue to believe that the
Governor, as Chief Executive Officer of the State, is responsible not
only for the TANF block grant program but for the well-being of all
citizens of the State, including efforts to reduce out-of-wedlock
childbearing for the State population as a whole. Therefore, we will
award the bonus to the Governor of the winning State(s) and other
jurisdiction(s), but, for uniform fiscal reporting and accounting
purposes, we will issue the bonus award grant funds to the TANF agency.
Comment: Several commenters asked for a clarification of and more
information on how bonus funds may be used and what limitations apply
to the use of these funds. One commenter suggested that the final rule
direct States to use bonus funds only on specific programs, i.e.,
public family planning education and contraception services, child
health and child day care, and job training for women. Other commenters
questioned why the prohibitions and limitations in sections 404 and 408
of the Act applied to bonus award funds given that the funds related to
the State's entire population, not just the TANF population.
Response: We agree that clarification is needed regarding the
provisions of this section. First, in the context of the flexibility
provided to States under the TANF block grant program, we decline to
specify how States must use these bonus award funds. We want to make
clear that the State has the same flexibility on the use of these funds
that it has in the use of the TANF block grant funds. We have added an
example in paragraph (a) of the final rule to clarify that States may
use bonus award funds
[[Page 18492]]
for statewide programs to prevent and reduce the incidence of out-of-
wedlock pregnancies, a purpose of the TANF program in section 401 of
the Act.
Second, the prohibitions and limitations in sections 404 and 408
are statutory requirements. Grants made to a State under section 403 of
the Act--whether TANF block grant funds, bonus award funds, or Welfare-
to-Work grants--are subject to these conditions, as applicable. Section
404(a)(1) of the Act provides that the State may use grants made under
section 403 (including the bonus award) ``. . . in any manner that is
reasonably calculated to accomplish the purpose of this part . . .''
The purposes of this part (i.e., title IV, Part A, of the Act) are
found in section 401 of the Act. The funds may also be used ``. . . in
any manner that the State was authorized to use the funds . . . under
prior programs'' (i.e., title IV-A and title IV-F of the Act).
However, sections 404 (b) through (j) and section 408 of the Act
specify a number of limitations on the use of TANF funds. For example,
if a State uses bonus funds to provide assistance, the prohibitions
against providing assistance to certain individuals in section 408 of
the Act will apply. If a State uses bonus funds for activities that are
not defined as assistance, then these prohibitions are not applicable.
Finally, some of the general requirements in sections 404 and 408
of the Act will apply regardless of how the State chooses to use these
funds. For example, the 15 percent limitation on the use of TANF grant
funds for administrative purposes (section 404(b)) means that any bonus
award funds will be added to the State's total TANF grant funds and the
administrative cost percentage will be computed based on the total.
Comment: We received several comments asking us to clarify the
expenditure period for bonus award funds. One commenter suggested that
the State be allowed three years to expend these funds.
Response: Because there is no expenditure period for TANF funds,
and because bonus award funds are a part of the total TANF funds
awarded to States under section 403 of the Act, there is no expenditure
period for bonus award funds. In using bonus award funds, States must
report on the use of these funds as they do other TANF funds.
Comment: One commenter recommended that we state explicitly in the
rule that bonus award funds to Puerto Rico, Guam, the Virgin Islands,
and American Samoa are not subject to the mandatory funding ceilings
for these jurisdictions in section 1108(c)(4) of the Act.
Response: We agree and have added a new paragraph (c) to this
section to specify this information. It is important to clarify this
provision because section 1108(c)(4) sets a statutory limit on the TANF
funds these jurisdictions may receive. We provide explicitly that any
bonus funds received by Puerto Rico, the Virgin Islands, Guam or
American Samoa will not be counted toward this limitation.
E. Response to Comments That Were Beyond the Scope of the Final Rule
Several comments we received were outside the scope of this
rulemaking. These include comments expressing concern that a
competitive bonus is not the appropriate way to try to reduce out-of-
wedlock childbearing, that efforts to reduce out-of-wedlock births
should not place the burden solely on women, and that policies
addressing single parent families should not place unreasonable burdens
on men. Because these comments focused on general criticisms of the
statutory language or criticisms of other policies (which cannot be
addressed within this final rule), we made no changes to the final rule
with respect to these comments.
IV. Departmental Activities Related to Out-of-Wedlock Births
The Department has various activities underway related to reducing
out-of-wedlock births. Given public comments on the Department's role
in providing information on this important topic, we summarize some of
these activities below, and have made materials regarding these efforts
available to the public.
In 1995, the Department produced the Report to Congress on Out-of-
Wedlock Childbearing, and Beginning too Soon: Adolescent Sexual
Behavior, Pregnancy and Parenthood, both reports that contained
valuable information regarding the occurrence of out-of-wedlock and
teen pregnancy as well as strategies for addressing these concerns.
Since then, the Department has undertaken many additional initiatives
to support programs and research focused on reducing out-of-wedlock
childbearing.
In 1997, the Department developed the National Strategy to Prevent
Teen Pregnancy, as required in section 905 of PRWORA. The Department
has recently released its first annual report to Congress, citing,
among other things, that HHS has funded teen pregnancy prevention
programs in at least 31 percent of communities across the country. The
report also lists more than twenty departmental programs aimed at
educating teens and preventing pregnancy, including Girl Neighborhood
Power! and demonstration grants to communities in 11 States funded
through The Center for Disease Control and Prevention Community
Coalition Partnership Programs.
To help disseminate information on efforts to reduce teen
pregnancy, the Department is currently working with the National
Campaign to Prevent Teen Pregnancy to develop a ``Tool Kit'' that will
provide States and communities with practical advice on how to
implement a wide range of teen pregnancy prevention initiatives. The
Department will be disseminating additional information to communities
regarding programs that specifically target boys and young men.
HHS is also administering the State Abstinence Education Program as
authorized by section 912 of the PRWORA. This program authorizes $50
million per year beginning in FY 1998. By July 1997, every State had
applied for this money to build on their State efforts to prevent teen
pregnancy (although New Hampshire has now declined their funding for FY
1998). As mandated in the Balanced Budget Act of 1997, the Department
is conducting an evaluation of these programs, and will include five
sites involving random assignment and one involving a rigorous
evaluation of comprehensive community approaches.
The Office of the Assistant Secretary for Planning and Evaluation
also is providing additional funding to three existing rigorous teen
pregnancy prevention evaluations. These three programs each have a
unique approach, including differing levels of pregnancy prevention
services, a statewide program targeted at siblings of adolescent
mothers, and a statewide teen pregnancy prevention program that allows
each local community to develop its own intervention.
The Department also is actively supporting expanding pregnancy
prevention efforts to include a focus on boys and young men. Through
the HHS Regional Offices $2 million in small grants have been awarded
to Title X Family Planning Clinics to develop pilot programs designed
to prevent premature fatherhood. These projects employ male high school
students as interns to provide them with on-the-job training in clinic
operations and allied health occupations and provide education about
male responsibility, family planning and reproductive health.
In addition to these programmatic initiatives, the Department has
supported numerous research and
[[Page 18493]]
evaluation projects. The National Study of Adolescent Health, the
National Survey of Family Growth, and the National Survey of Adolescent
Males have all provided important insight into adolescent risk
behaviors including sexual activity and response to pregnancy.
V. Regulatory Impact Analyses
A. Executive Order 12866
Executive Order 12866 requires that regulations be drafted 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. This
rulemaking implements statutory authority based on broad consultation
and coordination.
The Executive Order encourages agencies, as appropriate, to provide
the public with meaningful participation in the regulatory process. As
described elsewhere in the preamble, ACF consulted with State and local
officials, their representative organizations, and a broad range of
technical and interest group representatives.
To a considerable degree, this final rule reflects the comments we
received in response to the NPRM. We appreciate and have seriously
considered all of the detailed and thoughtful comments we received.
B. Regulatory Flexibility Analysis
The Regulatory Flexibility Act (5 U.S.C. Ch. 6) requires the
Federal government to anticipate and reduce the impact of rules and
paperwork requirements on small businesses and other small entities.
Small entities are defined in the Act to include small businesses,
small non-profit organizations, and small governmental agencies. This
rule will affect only States. Therefore, the Secretary certifies that
this rule will not have a significant impact on small entities.
C. Paperwork Reduction Act
This rule does not contain information collection activities that
are subject to review and approval by the Office of Management and
Budget. The birth data on which we will base the computation of the
bonus are currently available from the NCHS. Therefore, no new data
collection is required to measure out-of-wedlock birth ratios. The
abortion data would be solicited only for up to eight States, i.e.,
five States and three Territories. This does not meet the criteria for
OMB review and approval.
D. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that a covered agency prepare a budgetary impact statement before
promulgating a rule that includes any Federal mandate that may result
in the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year.
We have determined that this rule would not impose a mandate that
will result in the expenditure by State, local, and Tribal governments,
in the aggregate, or by the private sector, of more than $100 million
in any one year. Accordingly, we have not prepared a budgetary impact
statement, specifically addressed the regulatory alternatives
considered, or prepared a plan for informing and advising any
significantly or uniquely impacted small government.
E. Congressional Review
This final rule is not a major rule as defined in 5 U.S.C., Chapter
8.
List of Subjects in 45 CFR Part 283
Health statistics, Family planning, Maternal and child health,
Public assistance programs.
(Catalogue of Federal Domestic Assistance Programs: 17.253
Employment and Training Assistance--Welfare-to-Work Grants to States
and Local Entities for Hard-to-Employ Welfare Recipient Programs;
93.558 TANF Programs-State Family Assistance Grants, Assistance
Grants to Territories, Matching Grants to Territories, Supplemental
Grants for Population Increases and Contingency Fund; 93.559-Loan
Fund; and 93.595-Welfare Reform Research, Evaluations and National
Studies)
Dated: December 24, 1998.
Olivia A. Golden,
Assistant Secretary for Children and Families.
Approved: January 11, 1999.
Donna E. Shalala,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, we are amending 45 CFR
chapter II by adding Part 283 to read as follows:
PART 283--IMPLEMENTATION OF SECTION 403(A)(2) OF THE SOCIAL
SECURITY ACT BONUS TO REWARD DECREASE IN ILLEGITIMACY RATIO
Sec.
283.1 What does this part cover?
283.2 What definitions apply to this part?
283.3 What steps will we follow to award the bonus?
283.4 If a State wants to be considered for bonus eligibility, what
birth data must it submit?
283.5 How will we use these birth data to determine bonus
eligibility?
283.6 If a State wants to be considered for bonus eligibility, what
data on abortions must it submit?
283.7 How will we use these data on abortions to determine bonus
eligibility?
283.8 What will be the amount of the bonus?
283.9 What do eligible States need to know to access and use the
bonus funds?
Authority: 42 U.S.C. 603
Sec. 283.1 What does this part cover?
This part explains how States may be considered for the ``Bonus to
Reward Decrease in Illegitimacy Ratio,'' as authorized by section
403(a)(2) of the Social Security Act. It describes the data on which we
will base the bonus, how we will make the award, and how we will
determine the amount of the award.
Sec. 283.2 What definitions apply to this part?
The following definitions apply to this part:
Abortions means induced pregnancy terminations, including both
medically and surgically induced pregnancy terminations. This term does
not include spontaneous abortions, i.e., miscarriages.
Act means the Social Security Act.
Bonus refers to the Bonus to Reward Decrease in Illegitimacy Ratio,
as set forth in section 403(a)(2) of the Act.
Calculation period refers to the four calendar years used for
determining the decrease in the out-of-wedlock birth ratios for a bonus
year. (The years included in the calculation period change from year to
year.)
Most recent two-year period for which birth data are available
means the most recent two calendar years for which the National Center
for Health Statistics has released final birth data by State.
Most recent year for which abortion data are available means the
year that is two calendar years prior to the current calendar year.
(For example, for eligibility determinations made during calendar year
1999, the most recent year for which abortion data are available would
be calendar year 1997.)
NCHS means the National Center for Health Statistics, of the
Centers for Disease Control and Prevention, U.S. Department of Health
and Human Services.
Number of out-of-wedlock births for the State means the final
number of births occurring outside of marriage to residents of the
State, as reported in NCHS vital statistics data.
Number of total births for the State means the final total number
of live births to residents of the State, as reported in NCHS vital
statistics data.
Rate of abortions means the number of abortions reported by the
State in the
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most recent year for which abortion data are available divided by the
State's total number of resident live births reported in vital
statistics for that same year. (This measure is also more traditionally
known as the ``abortion to live birth ratio.'')
Ratio refers to the ratio of live out-of-wedlock births to total
live births, as defined in Sec. 283.5(b).
State means the 50 States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the United States Virgin
Islands, Guam, and American Samoa, as provided in section 419(a)(5) of
the Act.
Vital statistics data means the data reported by State health
departments to NCHS, through the Vital Statistics Cooperative Program
(VSCP).
We (and any other first person plural pronouns) means the Secretary
of Health and Human Services or any of the following individuals or
organizations acting in an official capacity on the Secretary's behalf:
the Assistant Secretary for Children and Families, the Regional
Administrators for Children and Families, the Department of Health and
Human Services, and the Administration for Children and Families.
Sec. 283.3 What steps will we follow to award the bonus?
(a) For each of the fiscal years 1999 through 2002, we will:
(1) Based on the vital statistics data provided by NCHS as
described in Sec. 283.4, calculate the ratios for the most recent two
years for which final birth data are available, and for the prior two
years, as described in Sec. 283.5;
(2) Calculate the proportionate change between these two ratios, as
described in Sec. 283.5.
(3) Identify as potentially eligible a maximum of eight States,
i.e., Guam, the Virgin Islands, and American Samoa, and five other
States, that have qualifying decreases in their ratios, using the
methodology described in Sec. 283.5;
(4) Notify these potentially eligible States that we will consider
them for the bonus if they submit data on abortions as stated in
Sec. 283.6; and
(5) Identify which of the potentially eligible States that
submitted the required data on abortions have experienced decreases in
their rates of abortion relative to 1995, as described in Sec. 283.7.
These States will receive the bonus.
(b) We will determine the amount of the grant for each eligible
State, based on the number of eligible States, and whether Guam,
American Samoa, or the Virgin Islands are eligible. No State will
receive a bonus award greater than $25 million in any year.
Sec. 283.4 If a State wants to be considered for bonus eligibility,
what birth data must it submit?
(a) To be considered for a bonus, the State must have submitted
data on out-of-wedlock births as follows:
(1) The State must have submitted to NCHS the final vital
statistics data files for all births occurring in the State. These
files must show, among other elements, the total number of live births
and the total number of out-of-wedlock live births occurring in the
State. These data must conform to the Vital Statistics Cooperative
Program contract for all years in the calculation period. This contract
specifies, among other things, the guidelines and time-lines for
submitting vital statistics data files; and
(2) The State must have submitted these data for the most recent
two years for which NCHS reports final data, as well as for the
previous two years.
(b) If a State has changed its method of determining marital status
for the purposes of these data, the State also must have met the
following requirements:
(1) The State has identified all years for which the method of
determining marital status is different from that used for the previous
year;
(2) For those years identified under paragraph (b)(1) of this
section, the State has either:
(i) Replicated as closely as possible a consistent method for
determining marital status at the time of birth, and the State has
reported to NCHS the resulting alternative number of out-of-wedlock
births; or
(ii) If NCHS agrees that such replication is not methodologically
feasible, the State may chose to accept an NCHS estimate of what the
alternative number would be;
(3) The State has submitted documentation to NCHS on what changes
occurred in the determination of marital status for those years and, if
appropriate, how it determined the alternative number of out-of-wedlock
births for the State; and
(4) For methodological changes that were implemented prior to 1998
and applicable to data collected for the bonus period, the State has
submitted the information described in paragraphs (b)(1), (2) and (3)
of this section within two months after April 14, 1999. For such
changes implemented during or after 1998, the State must submit such
information either by the end of calendar year 1999 or according to the
same deadline that applies to its vital statistics data for that year,
whichever is later.
Sec. 283.5 How will we use these birth data to determine bonus
eligibility?
(a) We will base eligibility determinations on final vital
statistics data provided by NCHS showing the number of out-of-wedlock
live births and the number of total live births among women living in
each State and a factor provided by NCHS to adjust for changes in data
reporting for those States that have changed their methodology for
collecting data on out-of-wedlock births during the bonus period.
(b) We will use the number of total live births and the number of
out-of-wedlock births, adjusted for any changes in data collection or
reporting, to calculate the decrease in the ratio of out-of-wedlock to
total births for each State as follows:
(1) We will calculate the ratio as the number of out-of-wedlock
births for the State during the most recent two-year period for which
NCHS has final birth data divided by the number of total births for the
State during the same period. We will calculate, to three decimal
places, the ratio for each State that submits the necessary data on
total and out-of-wedlock births described in Sec. 283.4.
(2) We will calculate the ratio for the previous two-year period
using the same methodology.
(3) We will calculate the proportionate change in the ratio as the
ratio of out-of-wedlock births to total births for the most recent two-
year period minus the ratio of out-of-wedlock births to total births
from the prior two-year period, all divided by the ratio of out-of-
wedlock births to total births for the prior two-year period. A
negative number will indicate a decrease in the ratio and a positive
number will indicate an increase in the ratio.
(c) We will identify which States have a decrease in their ratios
large enough to make them potentially eligible for the bonus, as
follows:
(1) For States other than Guam, American Samoa and the Virgin
Islands, we will use this calculated change to rank the States and
identify which five States have the largest decrease in their ratios.
Only States among the top five will be potentially eligible for the
bonus. We will identify fewer than five such States as potentially
eligible if fewer than five experience decreases in their ratios. We
will not include Guam, American Samoa and the Virgin Islands in this
ranking.
(2) If we identify more than five States due to a tie in the
decrease, we will
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recalculate the ratio and the decrease in the ratio to as many decimal
places as necessary to eliminate the tie. We will identify no more than
five States.
(3) For Guam, American Samoa and the Virgin Islands, we will use
the calculated change in the ratio to identify which of these States
experienced a decrease that is either at least as large as the smallest
qualifying decrease identified in paragraph (c)(1) of this section, or
a decrease that ranks within the top five decreases when all States and
Territories are ranked together. These identified States will be
potentially eligible for the bonus also.
(4) We will notify the potentially eligible States, as identified
under paragraphs (a) through (c) of this section that they must submit
the information on abortions specified under Sec. 283.6 if they want to
be considered for the bonus.
Sec. 283.6 If a State wants to be considered for bonus eligibility,
what data on abortions must it submit?
(a) To be considered further for bonus eligibility, each
potentially eligible State, as identified under Sec. 283.5, must submit
to ACF data and information on the number of abortions for calendar
year 1995 within two months of this notification. This number must
measure either of the following:
(1) For calendar year 1995, the total number of abortions performed
by all providers within the State; or
(2) For calendar year 1995, the total number of abortions performed
by all providers within the State on the total population of State
residents only. This is the preferred measure.
(b) States must have obtained these data on abortions for calendar
year 1995 within 60 days of publication of the final rule and must
include with their submission of 1995 data an official record
documenting when they obtained the abortion data.
(c) Within two months of notification by ACF of potential
eligibility, the State must submit:
(1) The number of abortions performed for the most recent year for
which abortion data are available (as defined in Sec. 283.2 to mean the
year that is two calendar years prior to the current calendar year). In
measuring the number of abortions, the State must use the same
definition, either under paragraph (a)(1) or paragraph (a)(2) of this
section, for both 1995 and the most recent year; or
(2) If applicable, the adjusted number and information specified in
paragraph (d) of this section.
(d) If the State's data collection or reporting methodology changed
between 1995 and the bonus year in such a way as to reflect an increase
or decrease in the number of abortions that is different than what
actually occurred during the period, the State must:
(1) When submitting the number of abortions for the most recent
year under paragraph (c)(2), adjust the number to exclude increases or
decreases in the number due to changes in methodology for collecting or
reporting the data. For example, this calculation should include
adjustments for increases or decreases in response rates for providers
in reporting abortion data;
(2) Provide a rationale for the adjustment, i.e., a description of
how the data collection or reporting methodology was changed. This
could include a description of how legislative, policy or procedural
changes affected the collection or reporting of abortion data, or an
indication of changes in the response rate of providers in reporting
abortion data; and
(3) Provide a certification by the Governor, or his or her
designee, that the number of abortions reported to ACF accurately
reflects these adjustments for changes in data collection or reporting
methodology.
Sec. 283.7 How will we use these data on abortions to determine bonus
eligibility?
(a) For those States that have met all the requirements under
Secs. 283.1 through 283.6, we will calculate the rate of abortions for
calendar year 1995 and for the most recent year for which abortion data
are available as defined in Sec. 283.2. These rates will equal the
number of abortions reported by the State to ACF for the applicable
year, divided by total live births among women living in the State
reported by NCHS for the same year. We will calculate the rates to
three decimal places.
(b) If ACF determines that the State's rate of abortions for the
most recent year for which abortion data are available is less than the
rate for 1995, and, if the State has met all the requirements listed
elsewhere under this part, the State will receive the bonus.
Sec. 283.8 What will be the amount of the bonus?
(a) If, for a bonus year, none of the eligible States is Guam,
American Samoa or the Virgin Islands, then the amount of the grant
shall be:
(1) $20 million per State if there are five eligible States; or
(2) $25 million per State if there are fewer than five eligible
States.
(b) If for a bonus year, Guam, the Virgin Islands, or American
Samoa is an eligible State, then the amount of the grant shall be:
(1) In the case of such a State, 25 percent of the mandatory
ceiling amount as defined in section 1108 of the Act; and
(2) In the case of any other State, $100 million, minus the total
amount of any bonuses paid to Guam, the Virgin Islands, and American
Samoa, and divided by the number of eligible States other than Guam,
American Samoa and the Virgin Islands, not to exceed $25 million per
State.
Sec. 283.9 What do eligible States need to know to access and use the
bonus funds?
(a) States must use the bonus funds to carry out the purposes of
the Temporary Assistance for Needy Families Block Grant in section 401
and 404 of the Act. This may include statewide programs to prevent and
reduce the incidence of out-of-wedlock pregnancies.
(b) As applicable, these funds are subject to the requirements in,
and the limitations of, sections 404 and 408 of the Act.
(c) For Puerto Rico, Guam, the Virgin Islands, and American Samoa,
the bonus award funds are not subject to the mandatory ceilings on
funding established in section 1108(c)(4) of the Act.
[FR Doc. 99-8866 Filed 4-13-99; 8:45 am]
BILLING CODE 4184-01-P
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