[Federal Register Volume 63, Number 36 (Tuesday, February 24, 1998)]
[Proposed Rules]
[Pages 9172-9175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4229]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
Office of Child Support Enforcement
45 CFR Part 303
RIN 0970-AB82
Child Support Enforcement Program, Standards for Program
Operations
AGENCY: Office of Child Support Enforcement (OCSE), HHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This proposed rule would amend Federal regulations governing
procedures for the case closure process in the child support program.
The proposed rule clarifies the situations in which States may close
child support cases and makes other technical changes.
DATES: Consideration will be given to comments received by April 27,
1998.
ADDRESSES: Send comments to Director, Office of Child Support
Enforcement, Administration for Children and Families, 370 L'Enfant
Promenade, SW., 4th floor, Washington, DC 20447. Attention: Director,
Policy and Planning Division, Mail Stop: OCSE/DPP. Comments will be
available for public inspection Monday through Friday, 8:30 a.m. to 5
p.m. on the 4th floor of the Department's offices at the above address.
FOR FURTHER INFORMATION CONTACT: Craig Hathaway, Policy Branch, OCSE
(202) 401-5367, e-mail: [email protected]. Deaf and hearing-
impaired individuals may call the Federal Dual Party Relay Service at
1-800-877-8339 between 8 a.m. and 7 p.m.
SUPPLEMENTARY INFORMATION:
Statutory Authority
These proposed regulatory changes are made under the authority
granted to the Secretary by section 1102 of the Social Security Act
(the Act). Section 1102 of the Act requires the Secretary to publish
regulations that may be necessary for the efficient administration of
the functions for which she is responsible under the Act. In accordance
with the Presidential directive of March 4, 1995 to executive branch
regulatory agencies to identify existing regulations that are redundant
or obsolete, OCSE has examined Part 300 of Title 45, Code of Federal
Regulations to evaluate those areas where regulations should be revised
and/or removed. Accordingly, we are revising and removing existing
regulations concerning criteria to close child support enforcement
cases.
Background
The Child Support Enforcement program was established under Title
IV-D by the Social Services Amendments of 1974, for the purpose of
establishing paternity and child support obligations, and enforcing
support owed by noncustodial parents. At the request of the States,
OCSE originally promulgated regulations in 1989 which established
criteria for States to follow in determining whether and how to close
child support cases. In the final Program Standards regulations dated
August 4, 1989, we gave examples of appropriate instances in which to
close cases. In the Supplementary Information accompanying the final
regulations, we stated that the goal of the case closure regulations
was not to mandate that cases be closed, but rather to clarify
conditions under which cases may be closed. The regulations allowed
States to close cases that were not likely to result in any collection
in the near future and to concentrate their efforts on the cases that
presented a likelihood of collection.
In an effort to be responsive to the President's Memorandum of
March 4, 1995 which announced a government-wide Regulatory Reinvention
Initiative to reduce or eliminate burdens on States, other governmental
agencies or the private sector, and in compliance with section 204 of
the Unfunded Mandates Reform Act of 1995, Public Law 104-4, OCSE formed
a regulation reinvention workgroup to exchange views, information and
advice with respect to the review of existing regulations in order to
eliminate or revise those regulations that are outdated, unduly
burdensome, or unproductive. This group is made up of representatives
of Federal, State and local government elected officials and their
staffs.
As part of the regulation reinvention effort, Sec. 303.11 on case
closure criteria was reviewed to determine what
[[Page 9173]]
changes could be made to help States with their case closure process,
while ensuring all viable cases remain opened. Somewhat earlier, the
State IV-D Directors' Association had established a committee to
examine the case closure issue. The committee developed several
recommendations, which were considered in the development of the
proposed regulation. We also consulted with several advocates and other
interested parties and stakeholders, including custodial parents and
groups advocating on their behalf, to discuss their concerns with the
IV-D Directors' Association recommendations and about the case closure
criteria in general. Their concerns were considered throughout the
deliberations on each area under consideration for addition, deletion
or revision. As the result of these exchanges of information,
recommendations for changes in the criteria which States must use to
determine whether child support cases may be closed were developed.
These recommendations are reflected in the proposed rule.
The deliberative process to develop this proposal operated under a
set of principles that balanced our joint concern that all children
receive the help they need in establishing paternity and securing
support, while being responsive to administrative concerns for
maintaining caseloads that include only those cases in which there is
adequate information or likelihood of successfully providing services.
The circumstances under which a case could be closed include, for
example, instances in which legitimate and repeated efforts over time
to locate putative fathers or obligors are unsuccessful because of
inadequate identifying or location information, or in interstate cases
in which the responding State lacks jurisdiction to work a case and the
initiating State has not responded to a request for additional
information or case closure. Decision to close cases are linked with
notice to recipients of the intent to close the case and an opportunity
to respond with information or a request that the case be kept open.
The proposals in this regulation balance good management and workable
administrative decisions with providing needed services, always erring
in favor of including any case in which there is any chance of success.
For example, cases would remain open even if there is no likelihood of
immediate or great success in securing support, perhaps because of a
period of incarceration. In our consultations, we were consistently
impressed with the commitment of all those involved to these operating
principles.
The IV-D Directors' Association recommended that the requirement
that a case in which the agency is unable to locate the putative father
or noncustodial parent remain open with ongoing locate efforts for
three years be changed to require a shorter time in cases in which the
biological father is unknown or there is insufficient information to
initiate a locate effort. This recommendation was accepted and is
incorporated in the proposed rules.
We are aware of the concerns of the advocacy groups about closing
cases too soon. However, we believe the requirements of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, Public
Law 104-193 (PRWORA) provide adequate safeguards to prevent this from
happening. Section 333 of PRWORA requires that the applicant for
assistance under Title IV-A of the Act provide the IV-D agency with the
name of the putative father, as well as additional identifying
information. Failure to do so constitutes noncooperation and
compromises the eligiblity for benefits. Determinations of
noncooperation are to be documented, with notice provided to the
applicant. We anticipate that cases under this changed criterion will
be few and will be well documented.
The IV-D Directors' Association also recommended that the
regulations be changed to allow notice of intent to close a case to be
sent by first class mail, as opposed to the current requirement of
certified mail. This recommendation was accepted, as well. The IV-D
Directors' Association further recommended that immediate case closure
be permitted in cases in which the parental rights of the noncustodial
parent have been terminated by the court, unless an arrearage remains.
Upon consideration of this suggestion we concluded that closure of such
a case is already permitted by current regulations which allow closure
in cases in which there is no loner a current obligation and in which
there are no arrearages owed. The IV-D Directors' Association also
recommended that case closure be permitted in cases in which neither
party is a legal resident of the State, there is no order from the
State and there is no State jurisdiction over the noncustodial parent.
We concluded that this recommendation is contrary to the requirements
section 454(6) of the Social Security Act, and, thus, declined to
accept it. The IV-D Directors' Association recommended that cases
involving an interstate request to locate an individual be eligible for
closure by the responding State after all sources of information to
help locate the individual have been exhausted and results forwarded to
the initiating State, or when the initiating State has not provided
enough information to the responding State to locate the noncustodial
parent. In response, new criteria have been added to allow a responding
State to close an interstate case if it can document inaction by the
initiating State that renders the responding State unable to proceed
with the case, as it would close a case for failure to cooperate by the
recipient of services. Finally, the IV-D Directors' Association
recommended that case closure be allowed after sixty days in cases in
which the custodial parent's address is unknown and repeated attempts
to contact the custodial parent are unsuccessful, with the States to
have the flexibility to determine what type of locate attempts will be
appropriate. In response, we decided to extend the time period to sixty
days from thirty, and to require at least one letter by first class
mail, as opposed to the current requirement of certified mail and a
phone call. The allowance of a first class letter was thought to be in
accord with the new requirements in welfare reform.
Description of Regulatory Provisions
We propose to amend and make technical changes to Sec. 303.11 Case
Closure Criteria. Under Sec. 303.11, paragraph (b)(1) allows closure of
a case where the child has reached the age of majority, there is no
longer a current support order, and either no arrearages are owed or
arrearages are under $500 or unenforceable under State law. In
addition, paragraph (b)(2) currently allows case closure where the
child has not reached the age of majority, arrearages are less than
$500 or unenforceable under State law, and there is no longer a current
support order.
In the final Program Standards regulations published in 1989, we
gave examples of instances in which it would be appropriate to close
cases under subsection (b)(1) and (b)(2); however, after reviewing the
two subparagraphs, it is apparent that the distinction between
subsections (b)(1) and (b)(2) which is based upon whether or not the
child has reached the age of majority is unnecessary, as the criteria
are the same. Therefore, we propose combining (b)(1) and (b)(2) to
read, ``There is no longer a current support order and arrearages are
under $500 or unenforceable under State law[.]''
Paragraphs (b)(3) through (b)(12) would be renumbered as (b)(2)
through (b)(11), and ``absent parent'' would be revised to read
``noncustodial parent''
[[Page 9174]]
throughout, for consistency with preferred statutory terminology under
PRWORA.
Under the new redesignated paragraph (b)(3), we would add a new
subparagraph (3)(iv) to read, ``The identity of the biological father
is unknown and cannot be identified after diligent efforts, including
at least one interview by the IV-D agency with the recipient of
services.'' The IV-D Directors, concerned about having an abundance of
unenforceable cases within the system, requested that the amount of
time a case is required to remain open be reduced. Additionally,
several States reported increased success in obtaining information to
help identify a putative father when the recipient of services is
interviewed personally. The interview is intended to be an attempt to
gain additional information to aid the IV-D agency in establishing
paternity. Therefore, the interview must be conducted by IV-D staff;
the initial intake interview for another public assistance program is
not sufficient to satisfy the requirement of an interview with the
recipient of services.
Under the new redesignated paragraph (b)(4), we propose to delete,
``over a three-year period'' and to add new subparagraphs (i) and (ii)
to read, ``(i) over a three-year period when there is sufficient
information to initiate automated locate efforts; or (ii) over a one-
year period when there is not sufficient information to initiate
automated locate efforts.'' As discussed above, the IV-D Directors
expressed a desire to be permitted to close cases in which it is
impossible to undertake any locate effort due to the scarcity of
information. This change would allow States to close a case in which
the recipient of services does not have even minimum information, such
as name, date of birth, or social security number of the putative
father or noncustodial parent.
In new redesignated paragraphs (b)(8), (b)(10) and (b)(11)
``custodial parent'' would be revised to read ``recipient of
services.'' In certain situations, such as paternity establishment or
review and adjustment, the noncustodial parent may have opened the
case. This language change would more accurately encompass all
situations to which these provisions apply.
We propose to revise redesignated paragraph (b)(9) to add IV-D
agencies to the list as an option for making good cause determinations.
This section identifies the entities that may make a determination of
good cause for failure to cooperate with IV-D efforts. Section 333 of
PRWORA provides flexibility to the States to identify the agency which
may make good cause determinations. Good cause for noncooperation may
arise after IV-D services have been undertaken; the addition of this
provision would allow the IV-D agency itself to determine whether good
cause exists in appropriate cases.
In the redesignated paragraph (b)(10), we propose to revise the
language after ``within a'' to read ``60 calendar day period despite an
attempt by at least one letter sent by first class mail to the last
known address; or[.]'' The IV-D directors, concerned about having an
abundance of unenforceable cases within the system, requested that we
reduce the amount of time a case is required to remain open despite an
inability to contact the recipient of services.
Under Sec. 303.11, we propose to add a new subparagraph (12) to
read, ``The IV-D agency documents failure by the initiating State to
take an action which is essential for the next step in providing
services.'' Under the current regulations, a responding State is not
free to close a case without the permission of the initiating State. In
some of these cases, the responding State may be unable to locate the
noncustodial parent, or may locate him or her in another State, and
request to close the case. If the initiating State fails to respond to
this request, the responding State is obligated to leave the case open
in its system. Similarly, if the initiating State fails to provide
necessary information to enable the responding State to provide
services, and fails to respond to requests to provide the information,
the responding State is required to keep the case open, although it is
unable to take any action on it. The proposed changes would permit the
responding State to close the case if it is unable to process the case
due to lack of cooperation by the initiating State.
In paragraph (c), we propose revisions based upon the proposed
renumbering of paragraph (b). In the first sentence, the reference to
``paragraphs (b)(1) through (7) and (11) and (12) of this section''
would be changed to read ``paragraphs (b)(1) through (6) and (10) and
(11) of this section[.]'' In addition, the references to ``custodial
parent'' would be revised to read ``recipient of services,'' for the
reasons explained above. Also, in the second sentence, we propose to
replace the reference to ``paragraph (b)(11)'' with paragraph
``(b)(10),'' based upon the proposed renumbering of paragraph (b).
In paragraph (d), we propose to remove the reference to ``Subpart
D,'' as that subpart has been reassigned and no longer addresses the
issue of record retention.
Regulatory Flexibility Analysis
The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the
Regulatory Flexibility Act (Pub. L. 96-354), that this proposed
regulation will not result in a significant impact on a substantial
number of small entities. The primary impact is on State governments
and individuals. State governments are not considered small entities
under the Act.
Executive Order 12866
Executive Order 12866 requires that regulations be reviewed to
ensure that they are consistent with the priorities and principles set
forth in the Executive Order. The Department has determined that this
rule is consistent with these priorities and principles. No costs are
associated with this proposed rule.
Unfunded Mandates Act
The Department has determined that this proposed rule is not a
significant regulatory action within the meaning of the Unfunded
Mandates Reform Act of 1995.
Paperwork Reduction Act
This rule does not contain information collection provisions
subject to review by the Office of Management and Budget under the
Paperwork Reduction Act of 1995.
List of Subjects in 45 CFR Part 303
Child support, Grant programs/social programs, Reporting and
recordkeeping requirements.
(Catalog of Federal Domestic Assistance Programs No. 93.563, Child
Support Enforcement Program)
Dated: August 8, 1997.
Olivia A. Golden,
Principal Deputy Assistant Secretary for Children and Families.
Approved: November 4, 1997.
Donna E. Shalala,
Secretary, Department of Health and Human Services.
For the reasons discussed above, we propose to amend title 45 CFR
Chapter III of the Code of Federal Regulations as follows:
PART 303--STANDARDS FOR PROGRAM OPERATIONS
1. The authority citation of Part 303 continues to read as follows:
Authority: 42 U.S.C. 651 through 658, 660, 663, 664, 666, 667,
1302, 1396a(a)(25), 1396(d)(2), 1396b(o), 1396b(p), and 1396(k).
[[Page 9175]]
Sec. 303.11 Case closure criteria. [Amended]
2. Section 303.11 is amended as follows:
a. Paragraph (b)(1) is revised and paragraph (b)(2) is removed to
read as follows:
* * * * *
(b) * * *
(1) There is no longer a current support order and arrearages are
under $500 or unenforceable under State law.
* * * * *
b. Paragraph (b)(3) is redesignated as paragraph (b)(2).
c. Paragraph (b)(4) is redesignated as paragraph (b)(3) and amended
by adding paragraph (b)(3)(iv) to read as follows:
* * * * *
(b) * * *
(3) * * *
(iv) The identity of the biological father is unknown and cannot be
identified after diligent efforts, including at least one interview by
the IV-D agency with the recipient of services.
* * * * *
d. Paragraph (b)(5) is redesignated as paragraph (b)(4) and revised
to read as follows:
* * * * *
(b) * * *
(4) The noncustodial parent's location is unknown, and the State
has made regular attempts using multiple sources, all of which have
been unsuccessful, to locate the noncustodial parent
(i) Over a three-year period when there is sufficient information
to initiate an automated locate effort, or
(ii) Over a one-year period when there is not sufficient
information to initiate an automated locate effort.
* * * * *
e. Paragraphs (b)(6) through (b)(12) are redesignated as paragraphs
(b)(5) through (b)(11), respectively.
f. Newly redesignated paragraph (b)(9) is revised to read as
follows:
* * * * *
(b) * * *
(9) There has been a finding of good cause as set forth at
Sec. 302.31(c) and either Sec. 232.40 of this chapter or 42 CFR 433.147
and the State or local IV-A, IV-D, IV-E, or Medicaid agency has
determined that support enforcement may not proceed without risk of
harm to the child or caretaker relative[.]
* * * * *
g. Newly redesignated paragraph (b)(10) is revised to read as
follows:
* * * * *
(b) * * *
(10) In a non-IV-A case receiving services under Sec. 302.33(a)(1)
(i) or (iii), the IV-D agency is unable to contact the recipient of
services within a 60 calendar day period despite an attempt by at least
one letter sent by first class mail to the last known address, or[.]
* * * * *
h. Paragraph (b)(12) is added to read as follows:
* * * * *
(b) * * *
(12) The IV-D agency documents failure by the initiating State to
take an action which is essential for the next step in providing
services.
* * * * *
i. Paragraph (c) is revised to read as follows:
* * * * *
(c) In cases meeting the criteria in paragraphs (b) (1) through (6)
and (10) and (11) of this section, the State must notify the recipient
of services in writing 60 calendar days prior to closure of the case of
the State's intent to close the case. The case must be kept open if the
recipient of services supplies information in response to the notice
which could lead to the establishment of paternity or a support order
or enforcement of an order, or, in the instance of paragraph (b)(10) of
this section, if contact is reestablished with the recipient of
services. If the case is closed, the recipient of services may request
at a later date that the case be reopened if there is a change in
circumstances which could lead to the establishment of paternity or a
support order or enforcement of an order.
* * * * *
j. Paragraph (d) is revised to read as follows:
* * * * *
(d) The IV-D agency must retain all records for cases closed
pursuant to this section for a minimum of three years, in accordance
with 45 CFR part 74.
* * * * *
k. In addition to the amendments set forth above, remove the words
``absent parent,'' and add, in their place, the words ``noncustodial
parent'' in the following places:
(1) Newly redesignated paragraph (b)(2);
(2) Newly redesignated paragraph (b)(4);
(3) Newly redesignated paragraph (b)(5); and
(4) Newly redesignated paragraph (b)(6).
l. In addition to the amendments set forth above, remove the words
``custodial parent,'' and add, in their place, the words ``recipient of
services'' in the following places:
(1) Newly redesignated paragraph (b)(8);
(2) Newly redesignated paragraph (b)(10); and
(3) Newly redesignated paragraph (b)(11).
[FR Doc. 98-4229 Filed 2-23-98; 8:45 am]
BILLING CODE 4190-11-M