[Federal Register Volume 64, Number 60 (Tuesday, March 30, 1999)]
[Rules and Regulations]
[Pages 15132-15136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7667]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 303
RIN 0970-AB72
Child Support Enforcement Program; Grants to States for Access
and Visitation Programs: Monitoring, Evaluation, and Reporting
AGENCY: Office of Child Support Enforcement (OCSE), HHS.
ACTION: Final rule.
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SUMMARY: This final rule implements provisions contained in section 391
of the Personal Responsibility and Work Opportunity Reconciliation Act
of 1996 and establishes the requirements for State monitoring,
reporting and evaluation of Grants to States for Access and Visitation
Programs. Access and Visitation programs support and facilitate non-
custodial parents' access to and visitation of their children by means
of activities including mediation (both voluntary and mandatory),
counseling, education, development of parenting plans, visitation
enforcement (including monitoring, supervision and neutral drop-off and
pickup) and development of guidelines for visitation and alternative
custody arrangements.
EFFECTIVE DATE: April 29, 1999.
FOR FURTHER INFORMATION CONTACT: David Arnaudo, OCSE, Division of
Automation and Special Projects, (202) 401-5364. Hearing impaired
individuals may call the Federal Dual Relay Service at 1-800-877-8339
between 8:00 a.m. and 7:00 p.m.
SUPPLEMENTARY INFORMATION:
Statutory Authority
The final regulations are published under the authority of section
469B of the Social Security Act (the Act), as added by section 391 of
the Personal Responsibility and Work Opportunity Reconciliation Act of
1996 (PRWORA) (Pub. L. 104-193), and section 1102 of the Act. Section
469B(e)(3) requires that each State receiving a grant for Access and
Visitation Programs shall monitor, evaluate, and report on such
programs in accordance with regulations prescribed by the Secretary.
Background
Notice of Proposed Rulemaking
On March 31, 1998 a Notice of Proposed Rulemaking (NPRM) was
published in the Federal Register. Public comments were formally
requested. Comments received in response to this request are discussed
and summarized below.
History of Federal Involvement in Access and Visitation
The Federal financial involvement in access and visitation began
when the Family Support Act of 1988 (Pub. L. 100-485) authorized up to
$4 million each year for fiscal years 1990 and 1991 for State
demonstration projects to develop, improve, or expand activities
designed to increase compliance with child access provisions of court
orders. The legislation required an evaluation of these projects and a
Report to Congress on the findings. In October 1996, the Department of
Health and Human Services transmitted to Congress the report entitled,
``Evaluation of the Child Access Demonstration Projects''. The report
indicated that requiring both parents to attend mediation sessions and
developing parenting plans was successful for cases without extensive
long-term problems.
In September, 1996, the U.S. Commission on Child and Family Welfare
submitted a report to the President and Congress which strongly
endorsed additional emphases at all government levels, especially State
and local levels, to ensure that each child from a divorced or unwed
family have a parenting plan which encourages and enables both parents
to stay emotionally involved with the child(ren).
Finally, PRWORA added a new provision at section 391 to award funds
annually to States to establish and administer programs to support and
facilitate non-custodial parents' (fathers or mothers) access to, and
visitation of, their children. Activities funded by this program
include mediation (both voluntary and mandatory), counseling,
education, development of parenting plans, visitation enforcement
(including monitoring, supervision, neutral drop-off and pickup),
development of guidelines for visitation and alternative custody
arrangements. States may administer programs directly or through
contracts or grants with courts, local public agencies, or nonprofit
private entities; States are not required to
[[Page 15133]]
operate such programs on a statewide basis.
Under this provision, the amount of the grant to be made to the
State shall be the lesser of 90 percent of State expenditures during
the fiscal year for activities just described or the allotment to the
State for the fiscal year. The Federal government will pay for 90
percent of project costs, up to the amount of the grant allotment. In
other words, States are required to provide for at least ten percent of
project funding even if they do not spend their entire allotment. The
allotment would be determined as follows: an amount which bears the
same ratio to $10,000,000 for grants as the number of children in the
State living with only 1 biological parent bears to the total number of
such children in all States. Such allotments are to be adjusted so that
no State is allotted less than $50,000 for fiscal years 1997 and 1998
or $100,000 for any succeeding fiscal year. These funds may not be used
to supplant expenditures by the State for authorized activities;
rather, States shall use the grant to supplement such expenditures at a
level at least equal to the level of such expenditures for fiscal year
1995.
In September 1997, the Office of Child Support Enforcement awarded
54 States and independent jurisdictions Access and Visitation Grants
covering all the activities mentioned in the Act. A second round of
grants was issued in September 1998; all States and Territories, except
Guam, received grants. Guam did not apply.
Description of Regulatory Provisions
Paragraph 303.109(a) has been added to 45 CFR part 303 containing
procedures for States to follow in monitoring, evaluating and reporting
on their Grants for Access and Visitation Programs. This rule requires
States to monitor all access and visitation programs to ensure that
these programs are: (1) Providing services authorized under section
469B(a) of the Act; (2) being conducted efficiently and effectively;
(3) complying with reporting and evaluation requirements, as set forth
in paragraphs 303.109(b) and 303.109(c); and (4) providing appropriate
safeguards to insure the safety of children and parents.
Paragraph 303.109(b) allows States to evaluate programs funded by
section 469B of the Act, but does not require these programs to be
evaluated. States are, however, required to assist in the evaluation of
programs deemed significant or promising by the Department, as directed
by program memorandum.
Paragraph 303.109(c) requires that States provide a detailed
description of each funded program including such information as:
service providers and administrators, service area, population served,
program goals, application or referral process, referral agencies,
nature of the program, activities provided, and length and features of
a ``completed'' program. This paragraph also requires, with regard to
programs which provide services: the number of applicants or referrals
for each program, the total number of participating individuals and the
number of persons completing program requirements by authorized
activities (e.g., mediation, education etc.). This information will
help the Office of Child Support Enforcement assess: (1) The demand for
the program, the effectiveness of outreach and ability of the program
to meet demand; (2) the services being delivered and the number and the
characteristics of the individuals being served; and (3) whether such
individuals are completing standard program requirements.
Paragraph 303.109(c)(3) requires States to report information
specified in paragraphs 303.109(c)(1) and (c)(2) annually, collected at
a date and in a form as the Secretary may prescribe.
Response to Comments
We received comments from representatives of 14 States and local
IV-D agencies, national organizations, advocacy groups and private
citizens on the proposed rule published March 31, 1998, in the Federal
Register (63 FR 15351-53). A summary of the comments received and our
responses follows; similar or identical comments have been grouped
together:
Comment: One commenter suggested that Sec. 303.109(a) of the
regulation calling for monitoring of ``all access and visitation
programs'' should be restricted to mean only those programs funded by
DHHS' grants to States for Access and Visitation Programs and other
funded programs.
Response: In this final rule, OCSE states that: ``The State must
monitor all programs funded under Grants to States for Access and
Visitation Programs * * *.'' This addresses the commenter's concern. In
one section of the NPRM this qualifier, ``funded under Grants to States
for Access and Visitation Programs'', was not used, thereby giving an
inaccurate impression. It was not our intent to extend the monitoring
requirement to other funded programs.
Comment: There was a concern among commenters that the regulation
contains no requirement to monitor whether States are screening
potential clients for domestic violence (spousal or child abuse) to
ensure that the battered spouse is not put at further risk.
Response: We share the concerns for safety expressed by
commentators who wrote about domestic violence. Access and visitation
by a non-custodial parent can lead to dangerous situations for some
parents and their children. The safety of the custodial parents and
their children must be addressed when it is a problem. It is our intent
to encourage States to ensure safety when necessary in implementing
grants under this program. States should develop procedures to assess
the degree of danger, weighing sensitively the assertions of both
parents.
In response to the comments, we have added to the regulation a new
requirement under Sec. 303.109(a) requiring States to monitor programs
to safeguard against domestic violence, as follows:
``(a) Monitoring. The State must monitor all programs funded under
Grants to States for Access and Visitation Programs to ensure that the
programs * * * contain safeguards to ensure the safety of parents and
children.''
Comment: Several commenters suggested that the regulation require
specific approaches for addressing problems that may occur in
activities funded by these grants. Concerns were noted regarding
mandated mediation and supervised transfer and visitation of children.
Response: Since we wish to provide maximum flexibility to the
States, we have not required specific approaches to dealing with issues
of domestic violence. Consistent with our authority under the Statute
to regulate what the States need to monitor, we require States to
monitor their grantees to ensure that there are procedures in place and
being used to ensure safety.
Regarding mandated mediation, we wish to make clear that the
statute does not mandate mediation for any particular clients.
Mediation mandated by the courts for contending parents is one service
that the States may chose to fund. We recognize that in some cases,
mediation may be dangerous for the victim of abuse. There is also
evidence that in some cases involving partner abuse, mediation has been
effective. This is a service that warrants careful monitoring by States
to ensure that safety assessments are conducted. When it is determined
not to be warranted, alternative forms of conflict resolution should be
used.
States may choose to use their grants to fund supervised transfer
and visitation of children by non-custodial
[[Page 15134]]
parents. Neutral drop-off or pickup of children (supervised transfer)
is designed to provide for the transfer of children without danger for
the abused parent or hostile actions between the parents when domestic
violence or other situations involving acrimony between parents exist.
Supervised visitation is designed to promote and protect the safety of
the visited child. States should monitor such programs when funded by
this authority (as discussed above) to ensure that adequate and
appropriate procedures are in place and being used to ensure safety.
Comment: Commenters suggested that grantees be required to consult
local domestic violence agencies about appropriate procedures for
identifying and assisting battered parents.
Response: Based on our experience with other service sectors that
have addressed domestic violence, consultation with community based
domestic violence experts is often very useful. While requiring such
consultation would go beyond the scope of this regulation, we do
believe domestic violence experts have important experience and
knowledge that can be useful to access and visitation programs. We
encourage all access and visitation grantees to hold consultations with
experts in the field of domestic violence.
Comment: One commenter wanted to include domestic violence as one
category of participant data reported.
Response: We have not included domestic violence as a category of
participant data reported because the quality of information collected
is not likely to be consistent or useful. It would be difficult to
reach any agreement for reporting responses on how domestic violence
should be defined or how the determination would be made that domestic
violence had occurred. Additionally, services and targeted clientele
will vary widely from State to State, and even within States, making
comparisons even more inappropriate. We do encourage States to use
their own State protocols and definitions of domestic violence to
monitor and evaluate how their programs are protecting the safety of
parents and children.
Comment: One commenter suggested that Grants for Access and
Visitation Programs be conducted by those with domestic violence
training.
Response: The legislation mandates that the Governor of each State
determine the organizational entity responsible for the grant program.
Each State has the flexibility and responsibility to determine the
services to be provided and qualifications of the providers.
Comment: Another domestic violence related concern is that the
final rule should acknowledge that domestic violence occurs in many of
the access and visitation cases before the family court and, therefore,
the statement that involvement by non-custodial parents is desirable
for children should be dropped or amended.
Response: In response to the concern about domestic violence we
have added to the regulations a requirement that all States monitor
access and visitation programs to ensure that programs have safeguards
to ensure the safety of parents and children.
Comment: One commenter stated that visitation and access should not
be mandatory for the non-custodial parent. The commenter also suggests
that evaluation requirements should look at the success of visitation
and not just the number of visits.
Response: The Act does not require the noncustodial parent to visit
the child; rather, it funds activities to facilitate and encourage non-
custodial parents to participate in raising the child(ren) as
determined appropriate by the parents and the court. There are no
specific evaluation requirements placed on either State or Federal
government evaluation activities regarding visitation programs or any
other allowable services provided under the program. We would encourage
any evaluators of visitation programs to carefully determine the most
appropriate measures of success for program evaluation purposes.
Comment: One commenter had several suggestions:
(i) OCSE should include in the monitoring requirements that States
assure that the Access and Visitation Programs funded under Federal
grants do not merely replace existing programs.
Response: Section 469B(d) of the Act does not allow States to
supplant or use Federal funds authorized under this Act to replace or
displace State funds spent for the same purposes as specified by
section 469B(a) of the Act. States must use these Federal grant funds
to supplement these expenditures at a level at least equal to the level
of such expenditures as existed in fiscal year 1995. States are
required to follow all requirements in the statute, therefore, it is
not necessary to repeat the requirement in the regulation.
(ii) OCSE should prohibit use of funds for programs that are
available only to children of divorced or separated parents, on the one
hand, or children of unmarried parents on the other hand.
Response: The philosophy of this Act is to allow States maximum
flexibility. Some States may concentrate their efforts only on unwed
families (or on divorced families) because there are already State
programs serving other families. We would not want to limit the
flexibility States have under this act to address unmet needs.
(iii) OCSE should require that the States report on the economic
status of program participants.
Response: This has been done in the reporting requirements for a
description of the program under Sec. 303.109(c)(1) of this final
regulation. Under these requirements States must report as follows:
(c) Reporting: the State must: report a detailed description of
each program funded, providing the following information as
appropriate: * * * population served (income * * *) * * *.
(iv) OCSE should involve experts on the life situations and needs
of the children of unmarried parents in setting up their programs.
Response: The philosophy behind this program is to give the States
maximum flexibility. Most States are delivering programs through
experienced community-based organizations or court agencies.
Comment: One commenter noted that some States are using grant funds
in the first year to assess which access and visitation program
strategies to undertake; in such States there would be no reporting of
cases. Reporting requirements are only where services are provided.
Response: It is appropriate to footnote any report with this
information. Thus no change needs to be made to the regulation.
Comment: Two commenters had comments on reporting responsibilities
and definitions as follows: In the requirement for description of
project--Sec. 303.109(c)--an addition should be made for ``outcome
measures''. There should be some data elements that measure whether the
program is achieving its goals; the current data elements do not.
Response: We have chosen not to include outcome measures in our
initial reporting requirements. First, States can and are providing a
wide variety of services. It would be premature at this early stage of
program implementation to specify a limited set of outcomes, that may
or may not measure the outcomes or changes that States are attempting
to achieve. Second, program outcomes in this area are often difficult
and expensive to measure. Given the limited resources of this program
it is more cost
[[Page 15135]]
effective to focus routine reporting on service delivery and use
evaluation efforts to measure outcomes.
Comment: The data requirement for program ``graduates'' could be
meaningless due to definitional inconsistencies between States and
projects.
Response: For clarity, we have revised the wording to read:
``Number of persons who have completed program requirements.'' Even
though each program and project may have a different set of program
requirements for recipients, this data element will measure the extent
to which programs were successful in ensuring that participants
completed these requirements.
Comment: In Sec. 303.109(a) ``effective'' and ``efficient'' should
be defined.
Response: Effective means whether the programs are actually doing
what they are intended to do. Efficient means that they are
accomplishing their mission using a reasonable amount of resources.
Because each State may provide very different services there is no way
to standardize these definitions for reporting purposes.
Comment: ACF should work with States to create a standardized
database to track program information.
Response: Given the variety of programs, this is what we have
attempted to do, while at the same time preserving State flexibility
and minimizing burden.
Comment: ``Urban/rural'' as part of the required description of a
project should be defined due to the different nature of rural and
urban in States of different sizes.
Response: We are not making a change in the regulation. However, in
the instructions that accompany the reporting form, we have indicated
that an urban project is defined as operating within a Standard
Metropolitan Statistical Area (SMSA) and that a rural project is
defined as operating outside a SMSA. We have added the category
``mixed'' to cover a project area that serves both SMSA and non-SMSA
areas.
Comment: There are two comments about reporting on the nature of
the referral. One commenter suggested that the providers should have to
report on the type of the referral. Another commenter indicated that in
Sec. 303.109(c)(2), referral reporting should distinguish between
court-referred and self-referred.
Response: The regulation at Sec. 303.109(c)(2) does indicate that
the source of referral will be included in the reporting requirements.
Source of referral will include such categories as courts, social
services agencies, responsible fatherhood programs, churches and self-
referral. Additionally, the reporting forms will indicate whether
clients are receiving services on a mandatory or voluntary basis. In
general, mandatory services will include services that a court or other
agency requires an individual to participate in. Voluntary services
will include non-mandatory referrals and self-referrals. We believe
these two categories of source of referral and mandatory versus
voluntary participation will provide us with the information we need
about the nature of participation. Self-referred relates to individuals
signing up for access and visitation services on their own accord or on
a voluntary basis.
Comment: What is meant by program participant families and
individuals?
Response: We have revised the final rule to ask only for
information on individuals. We have done this to avoid confusion about
reporting of families or individuals. This is because in some cases
only the non custodial parent receives services. However, sometimes
services would be received jointly by both ex-spouses or father and
mother as in the case of mediation. Occasionally the child is involved.
As such, if we use family as a measure of service, all three of these
types could be considered a family; however, the service provider is
not given credit for the differential costs of serving different
numbers of people. Also, use of individual as opposed to families is
easier to do if the family under consideration changes (e.g., if a man
applies for services, and then the ex-spouse becomes involved etc.). As
such, we would have the States count individuals only and not families;
however, on the survey form we would have individuals identified as
non-custodial parents, custodial parents and/or child(ren) to provide a
more precise definition.
Comment: Does this language contemplate a father and his family in
a supervised visitation program? How about a custodial parent? Do all
individuals in a family have to be recorded? More precision is needed
in defining individuals and families.
Response: As discussed above, we have changed reporting to count
individuals only. As such, if a family of three (e.g., husband, ex-
spouse, and child) is served, States would count three individuals and
not one family. The individual becomes the service unit. In the survey
form, individuals would be counted as non-custodial parents, custodial
parents and/or child(ren).
In the case of supervised visitation, a non-custodial father and a
child or children and a third person (the supervisor) are involved.
However, only the non-custodial father and the child or children are
served; this translates into two to three or more individual service
units. The supervisor would not be considered a service unit since this
is part of the service, not someone served.
Comment: The definition of when a program is significant to require
an evaluation by the State should be defined. Will such evaluations be
funded by the Federal government?
Response: The regulations permit, but do not require, States to
evaluate their access and visitation programs. State initiated
evaluations can be paid for out of State access and visitation grant
funds or other State funds. States must cooperate in any federally
initiated evaluations of the access and visitation grant program. It is
not possible to determine in advance what type of programs might be
considered significant or promising. These decisions will be based on
our review of State program activities. Specific decisions regarding
cost sharing will be made in the context of specific evaluation
designs.
Comment: One commenter recommended that OCSE develop an on-line
database for reporting of data. Client satisfaction should be reported.
Response: We will consider the suggestion for an on-line database.
We have not included client satisfaction in the requirements since we
wanted to avoid complexity and ambiguity.
Comment: One commenter believed that the requirement asking for
information on race of recipients is inappropriate, and in many cases
where work is handled by the phone, it would be awkward for mediators
to ask the race question. The commenter recommended either eliminating
this question or making it optional.
Response: We agree that there are circumstances in which it would
be inappropriate or awkward. We will therefore include on the reporting
form the designation ``unknown'' in recognition that sometimes this
information cannot be collected.
Comment: One commenter felt that the State child support
enforcement agency should not be required to report on the Access and
Visitation Grants when the agency in the State administering this grant
is not the child support agency.
Response: We agree. The reporting agency is the State agency
administering the Access and Visitation Program. This, in many cases,
is not the child support enforcement agency.
Comment: One commenter believed that enforcement of visitation
rights is vital.
[[Page 15136]]
Response: Visitation enforcement is an allowable program activity
under section 469B(a) of the Act. Since there are no specific
reporting, monitoring, or evaluation provisions dealing with visitation
enforcement in isolation, it is not specifically mentioned in the
regulation.
Paperwork Reduction Act
The new regulation at Sec. 303.109(c) contains an information
collection requirement. As required by the Paperwork Reduction Act of
1995 (44 U.S.C. 3507(d)), the Administration for Children and Families
has submitted a copy of this section to the Office of Management and
Budget (OMB) for its review and has received approval. The OMB control
number is 0970-0178.
Legal Significance Statement: An agency may not conduct or sponsor,
and a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
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 final regulation
will not result in a significant impact on a substantial number of
small entities. The primary impact of the regulation will be on State
governments, which are not considered small entities under this 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 the
rule is consistent with these priorities and principles. Statutory
provisions require States that receive grants for child access and
visitation programs to monitor, evaluate, and report on such programs
in accordance with regulations prescribed by the Secretary.
Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4) 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.
The Department has determined that this final rule will 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. The Department has determined that
this rule is not a significant regulatory action within the meaning of
the Unfunded Mandates Reform Act of 1995.
Congressional Review of Rulemaking
This rule is not a major rule as defined in Chapter 8 of 5 U.S.C.
List of Subjects 45 CFR Part 303
Child support, Grant programs--social programs, Reporting and
recordkeeping requirements.
(Catalog of Federal Domestic Assistance Programs No. 93.597, Grants
to States for Access and Visitation).
Dated: March 10, 1999.
Olivia A. Golden,
Assistant Secretary for Children and Families.
For reasons stated in the preamble, we are amending 45 CFR Part 303
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), 1396b(d)(2), 1396b(o), 1396b(p), and 1396(k).
2. A new section 303.109 is added to read as follows:
Sec. 303.109 Procedures for State monitoring, evaluation and reporting
on programs funded by Grants to States for Access and Visitation
Programs.
(a) Monitoring. The State must monitor all programs funded under
Grants to States for Access and Visitation Programs to ensure that the
programs are providing services authorized in section 469B(a) of the
Act, are being conducted in an effective and efficient manner, are
complying with Federal evaluation and reporting requirements, and
contain safeguards to insure the safety of parents and children.
(b) Evaluation. The State:
(1) May evaluate all programs funded under Grants to States for
Access and Visitation Programs;
(2) Must assist in the evaluation of significant or promising
projects as determined by the Secretary;
(c) Reporting. The State must:
(1) Report a detailed description of each program funded, providing
the following information, as appropriate: service providers and
administrators, service area (rural/urban), population served (income,
race, marital status), program goals, application or referral process
(including referral sources), voluntary or mandatory nature of the
programs, types of activities, and length and features of a completed
program;
(2) Report data including: the number of applicants/referrals for
each program, the total number of participating individuals, and the
number of persons who have completed program requirements by authorized
activities (mediation--voluntary and mandatory, counseling, education,
development of parenting plans, visitation enforcement--including
monitoring, supervision and neutral drop-off and pickup) and
development of guidelines for visitation and alternative custody
arrangements; and
(3) Report the information required in paragraphs (c)(1) and (c)(2)
of this section annually, at such time, and in such form, as the
Secretary may require.
[FR Doc. 99-7667 Filed 3-29-99; 8:45 am]
BILLING CODE 4184-01-P