[Federal Register Volume 65, Number 48 (Friday, March 10, 2000)]
[Notices]
[Pages 12998-12999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5921]


-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families


South Carolina's State Child Support Enforcement Plan; Appeal

AGENCY: Department of Health and Human Services, Administration for 
Children and Families

ACTION: Notice of appeal.

-----------------------------------------------------------------------

SUMMARY: By designation of the Administration for Children and 
Families, a member of the Departmental Appeals Board has been appointed 
as the presiding officer for an appeal of the Administration for 
Children and Families' (ACF) proposed disapproval of South Carolina's 
State Child Support Enforcement Plan submitted pursuant to the Social 
Security Act. ACF asserts that there are no facts in dispute, and has 
requested that South Carolina's request for a hearing be denied and a 
decision be made on the existing record. The purpose of this notice is 
to give interested parties an opportunity to participate.

REQUESTS TO PARTICIPATE: Requests to participate as a party or as 
amicus curiae must be submitted to the Departmental Appeals Board in 
the form specified at 45 CFR Sec. 213.15 by March 27, 2000. Within that 
time, those persons or organizations seeking participation as parties 
or amici may file petitions or request extensions of time for 
submitting petitions to participate, and may also contact the Board to 
obtain copies of the briefs that the parties have filed.

FOR FURTHER INFORMATION CONTACT: Jeffrey Sacks, Staff Attorney, 
Departmental Appeals Board, Department of Health and Human Services, 
Room 635-F, Hubert H. Humphrey Building, 200 Independence Avenue, SW., 
Washington, DC 20201, Telephone Number (202) 690-8011, 
[email protected].

SUPPLEMENTARY INFORMATION: Notice of appeal is hereby given as set 
forth in the following letter, which has been sent to the State of 
South Carolina.

Washington, DC, (date)

Virginia Williamson, General Counsel, South Carolina Department of 
Social Services, P.O. Box 1520, Columbia, South Carolina 29202-1520

    and

Robert E. Keith, Associate General Counsel
Linda Grabel, Assistant General Counsel, Children, Families and Aging 
Division, Room 411-D, HHH Building, 200 Independence Avenue, SW., 
Washington, DC 20201

    Counsel: This letter is in response to the State of South 
Carolina's (State) request for a hearing to contest the Administration 
for Children and Families' (ACF) proposed disapproval of the State's 
plan for implementing Title IV-D of the Social Security Act (Child 
Support and Establishment of Paternity).
    The basis for the proposed disapproval is South Carolina's failure 
to submit by October 1, 1997 a state IV-D plan certifying that it is 
operating an automated data processing and information retrieval system 
for child support, as required by section 454(24)(A) of the Social 
Security Act (Act).
    I have designated M. Terry Johnson, a Departmental Appeals Board 
Member, as the presiding officer pursuant to 45 CFR 213.21. ACF and the 
State are now parties in this matter. 45 CFR 213.15(a). South Carolina 
has conceded that it does not have an approvable automated data 
processing and information retrieval system for child support. The 
parties therefore agreed that prior to any factual presentation, they 
would brief the threshold legal questions of whether ACF has the 
authority to grant South Carolina relief for noncompliance short of 
disapproval of its state plan, and what the applicable standard for 
such relief would be. If the presiding officer rules that relief other 
than disapproval of the state plan is authorized by statute or 
regulation, an evidentiary hearing would be provided at which South 
Carolina could present evidence regarding the circumstances that 
prevented its compliance with the requirement that it have a statewide 
automated child support enforcement system.
    The parties have briefed this threshold issue before the presiding 
officer. South Carolina argued that ACF has the discretion to grant 
relief short of disapproving its IV-D plan. South Carolina argued that 
federal agencies such as ACF generally have inherent, equitable 
authority to create exemptions from statutory requirements, such as the 
requirement of plan approval, on a case-by-case basis, and that South 
Carolina's

[[Page 12999]]

reasonable good-faith efforts to comply with the Act, and mitigating 
circumstances concerning its failure to operate an approvable automated 
system, were sufficient to permit ACF to use its inherent discretion to 
grant some relief short of state plan disapproval. South Carolina also 
argued that ACF must concede that it has discretion in so much as it 
grants conditional certification to states that are not fully compliant 
even though there is no explicit congressional authorization for such 
action. South Carolina further argued that regulations governing the 
administration of grants at 45 CFR Part 92 provide federal agencies 
with greater flexibility to address noncompliance than state plan 
disapproval, and that failure to consider the reasons for noncompliance 
would be fundamentally unfair and would amount to poor public policy by 
failing to consider South Carolina's actual performance in achieving 
the overall goals of the IV-D program.
    ACF argued that the statutory language at section 454(24)(A) of the 
Act requires that a state operate an automated system which meets the 
specified requirements as a condition of plan approval, and affords ACF 
no discretion to excuse noncompliance. ACF argued that it has 
consistently stated in its program issuances that it is not authorized 
to provide federal IV-D funds to a state that does not have an approved 
IV-D state plan and that it is required to disapprove a state's plan 
where the state is not operating an automated system. ACF argued that 
court decisions that South Carolina cited in its brief are not 
applicable to the facts and the statutory requirements at issue here, 
and that 45 CFR Part 92 applies only where not inconsistent with the 
more specific statutory provisions addressing IV-D plan approval and 
the requirement of an operating automated system. ACF further argued 
that South Carolina presented no standards for granting relief from 
noncompliance short of plan disapproval, and that the presiding 
officer's authority is limited to recommending a decision as to whether 
or not a state plan meets federal requirements.
    ACF's and South Carolina's briefs are available for inspection by 
the public, including persons and organizations who file timely 
requests to participate as parties or amici.
    A ruling in ACF's favor on this threshold issue would limit the 
appeal to the sole question of whether or not South Carolina's state 
plan is in compliance with federal requirements. Given South Carolina's 
concession that it does not have an approvable automated data 
processing and information retrieval system for child support, such a 
ruling in ACF's favor would end the reconsideration process without an 
evidentiary hearing. Consequently, the presiding officer is affording 
interested parties the opportunity to participate prior to the issuance 
of a ruling.
    A copy of this letter will appear as a Notice in the Federal 
Register and any person wishing to request recognition as a party will 
be entitled to file a petition pursuant to 45 CFR 213.15(b) with the 
Departmental Appeals Board within 15 days after that notice has been 
published. A copy of the petition should be served on each party of 
record at that time. The petition must explain how the issues to be 
considered have caused them injury and how their interest is within the 
zone of interests to be protected by the governing Federal statute. 45 
CFR 213.15(b)(1). In addition, the petition must concisely state 
petitioner's interest in the proceeding, who will represent petitioner, 
and the issues on which petitioner wishes to participate. 45 CFR 
213.15(b)(2). Additionally, if petitioner believes that there are 
disputed issues of fact which require an in-person evidentiary hearing, 
petitioner should concisely specify the disputed issues of fact in the 
petition, and also state whether petitioner intends to present 
witnesses. Petitioners may also, within 15 days after this notice has 
been published, request extensions of the time for requesting 
participation for the purpose of obtaining and reviewing copies of the 
parties' briefs.
    Any party may, within 5 days of receipt of such petition, file 
comments thereon; the presiding officer will subsequently issue a 
ruling on whether and on what basis participation will be permitted.
    Any interested person or organization wishing to participate as 
amicus curiae may also file a petition with the Board, which shall 
conform to the requirements at 45 CFR 213.15(c)(2). This petition, or a 
request for an extension of time to review the briefs, must be filed 
within 15 days after this notice, in time to permit the presiding 
officer an adequate opportunity to consider and rule upon it.
    If the presiding officer denies ACF's request for a decision on the 
written record and rules that a hearing should be held, South Carolina 
shall be provided a notice of hearing, which shall be held not less 
than 30 days nor more than 60 days after the date that notice of the 
hearing is furnished to South Carolina. The notice of the hearing shall 
also be published in the Federal Register to afford notice to 
interested parties.
    Any further inquiries, submissions, or correspondence regarding 
this matter should be filed in an original and two copies with Ms. 
Johnson at the Departmental Appeals Board, Room 637-D, Hubert H. 
Humphrey Building, 200 Independence Avenue, S.W., Washington, DC 20201, 
where the record in this matter will be kept.
    That record is available for public inspection; interested persons 
or organizations seeking participation as parties or amici may contact 
Jeffrey Sacks, Board Staff Attorney, at 202-69-8011 (or at 
[email protected]) to arrange for inspection and copying of the 
record. Each submission must include a statement that a copy of the 
submission has been sent to the other parties, identifying when and to 
whom the copy was sent. For convenience please refer to Board Docket 
No. A-99-80.

    Dated: March 7, 2000.
Olivia A. Golden,
Assistant Secretary for Children and Families.
[FR Doc. 00-5921 Filed 3-9-00; 8:45 am]
BILLING CODE 4510-04-P