[Federal Register Volume 64, Number 46 (Wednesday, March 10, 1999)]
[Rules and Regulations]
[Pages 11810-11818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5831]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 303
RIN 0970-AB82
Child Support Enforcement Program; Standards for Program
Operations
AGENCY: Office of Child Support Enforcement (OCSE), Administration for
Children and Families, HHS.
ACTION: Final rule.
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SUMMARY: This final rule amends Federal regulations which govern the
case closure procedures for the child support enforcement program. The
final rule clarifies the situations in which States may close child
support cases and makes other technical changes.
EFFECTIVE DATE: The final rule is effective: April 9, 1999.
FOR FURTHER INFORMATION CONTACT: Betsy Matheson, Director, Division for
Policy and Planning, Office of Child Support Enforcement, 202-401-9386.
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.
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
This rule does not contain information collection provisions
subject to review by the Office of
[[Page 11811]]
Management and Budget under the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)).
Statutory Authority
This regulation is issued 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.
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 (54 FR 32284), and issued in OCSE-AT-89-15, we gave
examples of appropriate instances in which to close cases. In the
Supplementary Information section 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 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, Pub. L. 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 changes could be made
to help States with their case closure process, while ensuring that all
viable cases remained open. 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 notice of proposed rulemaking,
published in the Federal Register on February 24, 1998 (63 FR 9172). In
preparing the notice of proposed rulemaking, 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. Thirty-
one individuals or organizations provided comments to the proposed
rule.
This final rule balances our 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. Decisions 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 final rule balances good case
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 must remain open even if
there is no likelihood of immediate or great success in securing
support, perhaps because of a period of incarceration.
Discussion of the Regulation
Description of Regulatory Provisions---Sec. 303.11; Case Closure
Criteria
This final rule revises Sec. 303.11 to eliminate the term ``absent
parent'' and replace it with the term ``noncustodial parent''
throughout, for consistency with preferred statutory terminology under
the Personal Responsibility and Work Opportunity Reconciliation Act of
1996 (PRWORA), Public Law 104-193.
Section 303.11(b)(1) as revised, provides that, ``There is no
longer a current support order and arrearages are under $500 or
unenforceable under State law[.]'' Previously, the only distinction
between paragraphs (b)(1) and (b)(2) was whether the child had reached
the age of majority. Since the criteria is the same for both
subsections, the distinction is unnecessary. Therefore, the final rule
removes the reference to the child's age, thereby eliminating any
distinction between paragraphs (b)(1) and (b)(2). Accordingly,
paragraph (b)(2) is removed. The removal of (b)(2) necessitates that
paragraphs (b)(3) and (b)(4) be redesignated as paragraphs (b)(2) and
(b)(3).
This final rule amends redesignated paragraph (b)(3) to include a
new subparagraph (iv). Paragraph (b)(3)(iv) allows a case to be closed
when the identity of the biological father is unknown, and cannot be
identified after diligent efforts, including at least one interview by
the Title IV-D agency with the recipient of services.
Paragraph (b)(5) is redesignated as paragraph (b)(4). This final
rule amends redesignated paragraph (b)(4) by adding new subparagraphs
(i) and (ii). Paragraph (b)(4) allows a case to be closed when the
noncustodial parent's location is unknown, and the State has made
diligent efforts in accordance with Section 303.3 of this part, all of
which have been unsuccessful, to locate the noncustodial parent ``(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.''
Paragraphs (b)(6) through (b)(12) are renumbered as (b)(5) through
(b)(11). In redesignated paragraphs (b)(8), (b)(10) and (b)(11) the
term ``custodial parent'' is revised to read ``recipient of services''
to reflect that Title IV-D child support enforcement services may be
requested by either the custodial or noncustodial parent.
Redesignated paragraph (b)(9) adds IV-D and food stamp agencies to
the list of State agencies with the authority to make good cause
determinations. The addition of the Title IV-D and food stamp agencies
to this list is required by section 454(29) of the Act, which provides
flexibility to the States in selecting the agency authorized to make
good cause determinations. The Act allows States to place the
responsibility for making the good cause determination in either the
State IV-D agency or the State agency funded under part A, part E or
Title XIX. In the case of the food stamp program, the Act
[[Page 11812]]
requires that the good cause determination in food stamp cases subject
to referral to the State IV-D agency be administered by the food stamp
agency itself. In addition, the final rule revises paragraph (b)(9) to
expand good cause to include ``other exceptions'' from cooperation, to
more accurately implement the requirements of section 454(29) of the
Act. Finally, redesignated paragraph (b)(9) removes the reference to
Federal AFDC regulations concerning the good cause determination
because that regulation is obsolete.
Redesignated paragraph (b)(10) allows a nonassistance case to be
closed when the State IV-D agency is unable to contact the service
recipient within a 60 calendar day period despite an attempt by at
least one letter, sent by first class, to the service recipient's last
known address. In order to actually close the case, the State IV-D
agency must send the letter required by paragraph (c) notifying the
service recipient of the intent to close the case. This second letter
is separate from the letter of contact described in paragraph (b)(10).
The final rule adds a new paragraph, (b)(12) to Sec. 303.11.
Paragraph (b)(12) allows a case to be closed when ``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 previous
case closure regulations, a responding State was not free to close a
case without the permission of the initiating State. In some of these
cases, the responding State may have been unable to locate the
noncustodial parent, or may have located him or her in another State.
If, in these instances, the initiating State failed to respond to the
responding State's request for case closure, the responding State was
obligated to leave the case open in its system. Similarly, if the
initiating State failed to provide necessary information to enable the
responding State to provide services, and failed to respond to requests
to provide the information, the responding State was required to keep
the case open, although it was unable to take any action on it. The
final rule permits the responding State to close the case if it is
unable to process the case due to lack of cooperation by the initiating
State.
Paragraph (c) is revised to incorporate the renumbering of
paragraph (b). In the first sentence, the reference to ``paragraphs
(b)(1) through (7) and (11) and (12) of this section'' is changed to
read ``paragraphs (b)(1) through (6) and (10) through (12) of this
section[.]'' Paragraph (c) was also revised to clarify that the
responding State, upon deciding to close a case pursuant to the
authority of paragraph (b)(12) must send a notice of case closure to
the initiating State. In addition, the references to ``custodial
parent'' are revised to read ``recipient of services,'' for the reasons
explained above. Also, in the second sentence, the reference to
``paragraph (b)(11)'' is changed to ``paragraph (b)(10),'' based upon
the renumbering of paragraph (b).
In paragraph (d), we are making a technical amendment to the rule
by removing the reference to ``subpart D,'' as that subpart has been
reassigned and no longer addresses the issue of record retention.
Response to Comments
We received thirty-one comments from representatives of State and
local IV-D agencies, national organizations, advocacy groups and
private citizens on the proposed rule published February 24, 1998 in
the Federal Register (63 FR 9172). A summary of the comments received
and our responses follows:
General Comments
1. Comment: One commenter suggested the addition of a new criterion
for case closure. This commenter suggested that the State IV-D agency
be authorized to close a case when the obligor presented a risk of
serious harm to State or local IV-D staff.
Response: The State is obligated under the Title IV-D program to
provide child support enforcement services to eligible families. The
protection of IV-D staff is the responsibility of the State, and States
should develop procedures to deal with such situations. However,
families needing child support enforcement services should not be
punished for the possible threats or actions of obligors. Each State
has laws designed to afford protection to the general public, including
civil servants. In addition, IV-D offices can be designed in such a
fashion to heighten the personal safety and security of staff. In light
of these considerations, this recommendation was not adopted.
2. Comment: One commenter suggested that this regulation allow a
State to close the non-IV-D case that remains in existence (e.g.,
payment registry responsibility) after a IV-D case is closed.
Response: We are unable to adopt this recommendation because it is
inconsistent with Federal law. Specifically, section 454B(a)(1)(B) of
the Social Security Act (the Act) requires that payment registry
services be provided to non-IV-D orders meeting the eligibility
criteria.
3. Comment: Two commenters objected to the incorporation of the
term ``recipient of services'' into the case closure regulation. One
commenter objected because he saw this term as subject to change within
a case. Another commenter objected that this term was too broad and
recommended that the term ``custodial parent'' be retained.
Response: These comments will not be incorporated because we
believe that the term ``recipient of services'' best describes the
individual at issue. Under section 454(4) of the Act, a IV-D case is
established in response to two scenarios: (1) an individual applies
for, and receives, certain forms of public assistance (TANF, IV-E
foster care, medical assistance under Title XIX, and when cooperation
with IV-D is required of a Food Stamp recipient) and good cause or
another exception to cooperation with IV-D does not exist; or (2) when
an individual not receiving the aforementioned types of public
assistance makes an application for such services. IV-D services are
available to both custodial and noncustodial parents. Finally, once a
IV-D case is established, it is inappropriate to ``change'' the service
recipient to another individual who neither received the appropriate
form of public assistance nor applied for IV-D services.
4. Comment: One commenter recommended that OCSE consider a ``soft
closure'' case type, for use in removing certain cases (low collection
potential or where payments are legally being made directly to the
family outside of the IV-D program) from the State's open case count.
Response: This comment will not be incorporated. The rule, as
revised, provides the IV-D agencies with sufficient flexibility to
manage cases with ``low collection potential.'' At
Sec. 303.11(b)(3)(iv), the final rule allows a case to be closed when
paternity is in issue and the identity of the biological father cannot
be identified after diligent efforts, which include at least one
interview of the service recipient by the IV-D agency. In addition,
Sec. 303.11(b)(4) allows the IV-D agency to close cases in one year
when the location of the noncustodial parent is unknown and the State
has been unsuccessful, after regular attempts of multiple sources, to
locate the parent, and insufficient information exists to allow the
agency to conduct automated locate efforts. This paragraph also allows
the IV-D agencies to close cases after three years where the
noncustodial parent's location is unknown and the State has been
unsuccessful, after regular attempts of multiple sources, to locate the
parent when there is sufficient information to
[[Page 11813]]
allow the agency to conduct automated locate efforts.
With respect to the example in the comment of payments being made
directly to the family, in IV-D cases, payments must be made through
the State IV-D agency and then forwarded to the family. Therefore, we
are unaware of any circumstances in which payments in a IV-D case flow
directly from the obligor to obligee.
OCSE believes that attempts to further define cases with ``low
collection potential'' in regulation is inappropriate. PRWORA has
greatly expanded the pool of locate resources which, when all States
are automated, will have a significant impact upon this universe of
cases. Finally, the term ``low collection potential'' is extremely
difficult to define in an objective fashion. As stated in the preamble
to the proposed rule, although OCSE is revising this regulation to
provide the States with additional flexibility to manage their IV-D
caseloads, we are aware of the necessity to balance this flexibility
against the program's mission to ensure that the public receives needed
child support enforcement services. When these two factors came into
direct conflict, we attempted to resolve the issue in favor of keeping
a case open if there is a chance of success.
5.Comment: One commenter suggested that, in light of PRWORA, a
reduction in the time required for automated searches was unreasonable.
Response: The reduction of the case closure time frame, from three
years to one year, appears in Sec. 303.11(b)(4)(ii). In order for a
case to be eligible for closure under this authority there are three
requirements. First, the location of the noncustodial parent must be
unknown. Second, the State must have made diligent efforts in
accordance with the Federal locate requirements in cection 303.3, using
multiple sources, to locate the noncustodial parent. Finally, there
must be insufficient information concerning this noncustodial parent to
perform an automated locate search. OCSE reminds States that
enhancements to the Enumeration Verification System (EVS) frequently
allow unknown or incomplete social security numbers to be identified by
the Social Security Administration when the State has an individual's
full name and date of birth. OCSE Central Office coordinates the EVS
program with the Social Security Administration. In addition,
information provided by the custodial parent such as former addresses
or employers could lead to identification of the noncustodial parent's
social security number.
Although it is true that PRWORA provides expansive new locate
resources to the IV-D community, the fact remains that you must have
sufficient identifying information concerning the individual you are
trying to locate in order to take advantage of these new locate tools.
The reduction in this case closure time frame only applies to those
cases where the IV-D agency is unable to make an automated locate
effort.
6. Comment: One commenter raised the concern that the NPRM's
proposed revisions to the case closure regulation would result in the
closure of many cases that should not be closed.
Response: As stated in the preamble to the NPRM, one of the
objectives of this revision to the case closure regulation was to
provide the States with additional flexibility to manage their IV-D
caseloads in an efficient manner. However, the NPRM also noted that any
additional flexibility provided to the States was always balanced
against the need to provide families with effective child support
enforcement services. OCSE believes that this final rule is successful
in striking a good balance between these two factors and, as a result,
we expect that the public will receive improved services from the IV-D
program.
Comments to Paragraph 303.11(b)(1)
1. Comment: One reviewer questioned whether a temporary order would
apply to the requirement at paragraph (b)(1) that ``there is no longer
a current support order?''
Response: Under the appropriate circumstances, a temporary order
could apply to this requirement in paragraph (b)(1). State law governs
the particular circumstances and duration for which a temporary child
support order is enforceable. However, if the application of State law
resulted in the termination of a temporary child support order during
the minority of a child, it would be incumbent upon the State IV-D
agency to attempt to establish a final order, provided the parent's
legal liability to provide child support continued beyond the
termination of the temporary order. If the next appropriate action in
the case was the establishment of a final order, then the case could
not be closed.
2. Comment: One commenter asked if paragraph (b)(1) could be used
as authority for a IV-D agency to close a case that was opened after a
child attained the age of majority, during which there was no need for
a child support order, but subsequently (after emancipation) became
disabled and under State law a support order was entered against this
individual's parents?
Response: Under the IV-D program, the State is not required to open
a case under these circumstances and this individual is not entitled to
receive IV-D services because the obligation to provide support did not
arise until after the child became emancipated. A State would not be
entitled to receive FFP under the IV-D program for its efforts to
establish and/or enforce such an order.
3. Comment: One commenter requested that paragraph (b)(1) be
expanded to allow for the closure of a case which has a valid
enforceable current support order, but where there has been no
collection for a period of three years, to allow a State to close cases
with low collection potential.
Response: This suggestion was not incorporated into the final rule
because the reviewer is confusing ``unenforceable'' to mean ``low
collection potential.'' The purpose of the case closure rule is to
allow States to close unworkable cases thereby allowing each State to
focus its resources on those cases which are workable. According to
paragraph (b)(1), a case is ``unworkable'' if there is no current
support order and the arrears are either under $500, or unenforceable
under State law. Clearly, a case with a current child support order
that does not qualify for closure under any other criteria in
Sec. 303.11(b), cannot be closed pursuant to paragraph (b)(1) simply
because it has been deemed a low collection potential case.
Comments to Subparagraph 303.11(b)(3)(iv)
1. Comment: Two commenters requested clarification of the
requirement in subparagraph (b)(3)(iv) that at least one interview of
the recipient of services be conducted by IV-D staff. Specifically,
these commenters asked if an entity working with the IV-D agency via a
cooperative agreement would qualify as IV-D staff?
Response: If the IV-D agency enters into a cooperative agreement to
implement this requirement in accordance with the authority at 45 CFR
302.12(a)(3), then the other entity would perform this interview as IV-
D staff. As stated in the NPRM's Description of Regulatory Provisions,
the purpose of this requirement was to clarify that the eligibility
interview conducted by staff associated with the State's public
assistance agency would not be sufficient for purposes of this
subparagraph.
2. Comment: Nine commenters asked for clarification of the nature
of the interview of the recipient of IV-D
[[Page 11814]]
services. Specifically, they asked if the interview was required to be
conducted ``face-to-face,'' or could a separate IV-D interview be
conducted over the telephone?
Response: OCSE recommends that, when logistically practicable, the
interview of the recipient of services be conducted in-person. However,
we recognize that in many States there are great distances between the
public and the closest IV-D office and working parents may not be able
to take time off for a face-to-face interview. Therefore, the IV-D
interview of the recipient of services need not be a face-to-face
interview, but may be conducted via the telephone, when appropriate.
3. Comment: Two commenters requested clarification of the
application of subparagraph (b)(3)(iv) with respect to TANF recipients.
These commenters were concerned that, in the event the identity of the
biological father remained unknown following the IV-D interview of the
recipient of services, the recipient of services would be determined to
be not cooperating with the State IV-D agency for purposes of TANF
eligibility.
Response: Under sections 408(a)(2) and 454(29)(A) of the Act, the
State's IV-D agency is responsible for making the determination as to
whether or not a TANF recipient is cooperating with the IV-D agency.
Clearly, not every TANF recipient will be able to provide the IV-D
agency with sufficient information about the biological father to allow
the IV-D agency to proceed with an action to establish paternity.
Because of this, not every individual who is unable to provide the IV-D
agency with sufficient information should be determined to be not
cooperating with the IV-D agency. Similarly, should the State close a
IV-D case in accordance with paragraph (b)(3) or (4), for example,
because the location of the individual being sought is unknown, IV-D
case closure alone may not be used to determine noncooperation by a
TANF recipient.
4. Comment: One commenter asked that the term ``identity'' be
clarified in the final rule. The commenter was questioning whether this
term meant more than a name.
Response: For purposes of subparagraph (b)(3)(iv), the term
``identity'' means the name of the biological father. That is, a case
may be closed under the authority of this subparagraph only when, after
diligent efforts (including at least one interview by the IV-D agency
with the recipient of services), the name of the biological father
remains unknown. If the IV-D agency knows the name of the biological
father but cannot proceed because it does not have any additional
information to locate this individual, then the case would be eligible
for closure under the authority of subparagraph (b)(4)(ii).
5. Comment: Two commenters requested that the final rule clarify
the use of the term ``diligent efforts'' in subparagraph (b)(3)(iv).
Response: In order for a paternity establishment case to be
eligible for closure under subparagraph (b)(3)(iv), a State must make a
meaningful attempt to identify the biological father. Under this
subparagraph, this attempt to identify the biological father must
include an interview of the recipient of services by IV-D staff. If,
for example, the interview with the recipient of services failed to
result in the identity of the biological father, but did result in a
last known address or employer, a ``diligent effort'' to identify the
biological father requires the IV-D agency to pursue these leads in an
attempt to identify the biological father. States are required to
comply with Federal locate requirements in 45 CFR 303.3 and to make a
serious and meaningful attempt to identify the biological father (or
any individual sought by the IV-D agency.)
Comments to Paragraph 303.11(b)(4)
1. Comment: One commenter requested a clarification of the term
``regular'' attempts to locate.
Response: Use of the term ``regular'' attempts in the proposed rule
was intended to include attempts conducted in accordance with the
program standards set forth in 45 CFR 303.3, which contains Federal
location requirements. However, for clarity and consistency with
terminology used in paragraph (b)(3)(iv), we have replaced ``regular
attempts'' with ``diligent efforts'', and added a cross reference to
locate regulations at 45 CFR 303.3.
2. Comment: Four commenters requested a clarification of the term
``sufficient information to initiate an automated locate effort.''
Response: As a general rule, the data elements needed to conduct an
automated locate effort include an individual's name and social
security number. It is possible that additional data elements will be
required to undertake some automated locate efforts. For example, some
entities identify individuals by name and date of birth. However, for
purposes of this paragraph the data elements required for an automated
locate effort are simply the individual's name and social security
number. As stated above, in response to comment #5 (General Comments),
the Enumeration Verification System will assist States in the
identification of missing or incomplete social security numbers. Also,
since States must meet Federal location requirements set forth in 45
CFR 303.3, diligent efforts to obtain the data elements critical for an
automated search must occur and be unsuccessful before a State may
consider closing the case using criteria in paragraph (b)(4).
3. Comment: One commenter asks if paragraph (b)(4)'s use of the
term ``noncustodial parent's location is unknown'' means the physical
address and the location of any assets attributable to the noncustodial
parent?
Response: For purposes of paragraph (b)(4), the term ``noncustodial
parent's location'' means the resident or employment address of the
noncustodial parent. Under this paragraph, a case would not be
available for closure if the resident address of the noncustodial
parent was known but the IV-D agency was unable to locate any assets
attributable to the noncustodial parent.
4. Comment: One commenter objected to paragraph (b)(4) on the basis
that it assumes a level of State automation which does not currently
exist.
Response: Automated location attempts do not require statewide
automated systems. While it is true that, as of the date of this final
rule, not all States have certified statewide automated systems in
place, States do have automated locate systems capability and the
majority of States have Statewide systems mandated by section 454(16)
of the Social Security Act. In addition, this final rule is intended to
provide program guidance well into the future. Because OCSE expects
that all States will implement certified statewide automated systems as
required by law, we are confident that this rule's reliance upon
enhanced automated locate resources will prove beneficial to both the
IV-D program and the families we serve.
5. Comment: One commenter suggested adding to the case closure
criteria set forth in paragraph (b)(4) that the IV-D agency interview
the recipient of services.
Response: In this final rule OCSE makes a distinction between
``identifying'' and ``locating'' the noncustodial parent. When the IV-D
agency is unable to identify the noncustodial parent, the only resource
available to assist the IV-D agency is the recipient of services.
However, if the identity of the noncustodial parent is known, but his/
her location is unknown, then there are multiple locate resources
available to the IV-D agency.
[[Page 11815]]
Certainly one of these resources is the recipient of services. In fact,
45 CFR 303.2(b)(1) requires the IV-D agency to ``solicit necessary and
relevant information from the custodial parent.''
6. Comment: Two commenters questioned the wisdom of the one-year
waiting period before a case can be closed under the authority of
subparagraph (b)(4)(ii) when the noncustodial parent's location is
unknown and the IV-D agency does not have sufficient information to
initiate an automated locate effort. Conversely, another commenter
objected to reducing the existing three-year period to one year.
Response: As discussed in the preamble to the NPRM, the
establishment of the new case closure criterion that appears at
subparagraph (b)(4)(ii), which allows a case to be closed after one
year when the location of the noncustodial parent is unknown and
insufficient information exists to conduct an automate locate effort,
was made at the request of the IV-D Directors' Association. We believe
a one-year waiting period achieves a reasonable balance between the
desire to assure that workable cases remain open and the desire to
close those cases which show no promise of being workable. During that
time period, a State IV-D agency must meet location requirements within
specified timeframes as set forth in section 303.3. As stated in the
preamble to the NPRM, we continue to believe that PRWORA's cooperation
requirements will provide adequate safeguards against the premature
closing of cases where a reasonable potential for establishment or
enforcement exists. Should the recipient of services provide additional
information that allows the State IV-D agency to locate the
noncustodial parent, the case will remain open.
Comments to Paragraph 303.11(b)(9)
1. Comment: One commenter requested the final rule include a
definition of the term ``good cause.''
Response: Section 454(29) of the Act provides the States the option
to have good cause determined by either the State IV-D agency, or the
agencies administering the State's TANF, IV-E or Title XIX funded
program. For the food stamp program, the State agency responsible for
administering that program is also responsible for determining good
cause. Congress made it clear that determinations of good cause were to
be ``defined, taking into account the best interests of the child, and
applied'' by the State agency. Because of this directive OCSE is unable
to adopt the suggestion of this commenter.
2. Comment: One commenter recommended that the reference to 45 CFR
232.40 be removed from paragraph (b)(9) because this Federal regulation
was obsolete.
Response: OCSE concurs with this suggestion and the reference to 45
CFR 232.40 is removed from the final rule.
3. Comment: Two commenters observed that section 454(29) of the Act
exempts a public assistance recipient from the requirement to cooperate
with the IV-D program for good cause ``and other exceptions.'' Both
commenters recommended that a reference to ``other exceptions'' be
included in paragraph (b)(9) when the final rule was issued.
Response: OCSE concurs with this recommendation and the final rule
revises paragraph (b)(9) to expand good cause to include ``other
exceptions.''
Comments to Paragraph 303.11(b)(10)
1. Comment: One commenter asked if a State could retain a
requirement that one attempt to contact the service recipient be by
certified mail?
Response: A State is free to continue the requirement that at least
one attempt to contact the service recipient be conducted by certified
mail. The Federal regulations set forth the minimum program standards
with which the States must comply. As previously stated in the preamble
to the final case closure rule issued on August 4, 1989, (54 FR 32284)
and in OCSE-AT-89-15, there is nothing to prohibit a State from
establishing criteria which make it harder to close a case than those
established in paragraph (b).
2. Comment: Five commenters asked if the 60 calendar day period
(related to time frame in which the IV-D agency is unable to contact
the recipient of services) referenced in paragraph (b)(10) could be
viewed as satisfying the 60 calendar day period (related to the notice
of case closure time frame during which the recipient of services may
respond to the notice) referenced in paragraph (c). Conversely, one
commenter expressed a concern that the States would compress these two
60 calendar day time frames into a single 60 calendar day period.
Response: The 60 calendar day time periods that appear in paragraph
(b)(10) and paragraph (c) are independent time frames. It is not
appropriate for a State to close a case upon the occurrence of the
criterion set forth in paragraph (b)(10) without fully complying with
the requirements of paragraph (c). In other words, when the IV-D agency
is unable to contact the non-IV-A recipient of services during a 60
calendar day period, the IV-D agency may not automatically close that
case without first complying with the requirement in paragraph (c) by
providing the recipient of services 60 calendar days to respond to a
written notice of the State's intent to close the case.
3. Comment: One commenter objected to the criterion of (b)(10) on
the basis that this would allow the States to close many ``workable''
cases.
Response: By definition, the criterion for closing a case set forth
in paragraph (b)(10) applies only to non-IV-A cases. In non-IV-A cases
the IV-D program is required to distribute child support collections to
the recipient of services. If the recipient of services fails to keep
the IV-D program apprised of his/her mailing address, child support
cannot be distributed. In these instances the case is no longer
``workable'' under the requirements of IV-D, and, therefore, it is
appropriate for the IV-D agency to close the case. If, following the
closure of the case, the former recipient of services wishes to reapply
for IV-D services, he/she may do so.
4. Comment: One commenter requested an explanation as to what
triggered the start of the 60 calendar day time period referenced in
paragraph (b)(10).
Response: The 60 calendar day time period appearing in paragraph
(b)(10) commences with the date the letter is mailed to the recipient
of services.
5. Comment: One commenter asked that if the letter sent to the
recipient of services in accordance with paragraph (b)(10) is returned
to the IV-D agency with a notation by the Postal Service that the
addressee has moved and left no forwarding address, is it still
necessary to wait 60 calendar days before commencing the case closure
process detailed in paragraph (c)?
Response: Yes, it is appropriate to provide the 60 calendar day
time frame in instances where the letter sent to the recipient of
services is returned marked ``moved, left no forwarding address.'' The
reason for this is to allow the recipient of services, who may have
just moved, sufficient time to contact the IV-D agency to provide his/
her new address. In addition, if the paragraph (b)(10), 60 calendar day
time frame was waived in these instances, and the IV-D agency
immediately issued the written closure notice required in paragraph
(c), this notice would undoubtedly be sent to the very same address
reported by the Postal Service to be obsolete. OCSE recognizes that in
some cases the recipient of services will fail to contact the IV-D
agency during the paragraph (b)(10), 60 day time period and the agency
will be required
[[Page 11816]]
to issue a notice to an address they know to be obsolete. However, OCSE
believes that a good number of these service recipients will contact
the IV-D program and provide their new addresses. By waiting an
additional 60 calendar days, a State will be able to save itself the
time and trouble of closing and then reopening a great number of cases.
6. Comment: One commenter objected to the replacement of the former
``certified'' mailing requirement with the current ``regular'' mailing
requirement.
Response: As stated in the preamble to the NPRM, the allowance of
the first class letter is in accord with the new requirements in
welfare reform. In addition, it must be kept in mind that the
individuals the IV-D agency is attempting to contact with this mailing
are recipients of services who are not receiving public assistance.
These are the individuals to whom the IV-D agency is required to send
the child support collection. If non-IV-A recipients of services fail
to keep the IV-D agency apprised of their current addresses, they
effectively deny that agency the ability to provide child support
enforcement services to them.
7. Comment: One commenter objected to the minimum requirement of
``one'' attempt to contact the non-IV-A recipient of services by
regular mail on the basis of the commenter's belief that the Postal
Service provides poor mail service to low income communities.
Response: OCSE is not aware of any authority for the statement that
the Postal Service provides poor mail service to low income
communities. As previously stated in the preamble to the NPRM for this
rule, the trend is moving toward a reduction in the mailing standard.
Both PRWORA and the Uniform Interstate Family Support Act (UIFSA)
frequently allow notices to be sent by regular mail. For these reasons,
OCSE has determined that a regular first class mailing is appropriate
for the purposes of paragraph (b)(10).
Comments to Paragraph 303.11(b)(12)
1. Comment: Two commenters objected to what they perceived to be a
subjective standard in paragraph (b)(12) under which the responding
State is authorized to close an interstate case when it documents a
failure on the part of the initiating State to take an action which is
essential for the next step in providing services.
Response: This standard of review, as to when an action is
``essential'' for taking the next step in a IV-AD case, is not new. In
fact, this standard has been in existence since 1989, when the Federal
case closure regulation was originally promulgated and remains the
basis for case closure under former paragraph (b)(12)/new paragraph
(b)(11). The States have been successful in implementing this standard
of review and OCSE has no reason to believe that this standard, when
applied to an initiating State as opposed to a custodial parent, will
become problematic.
One example which would not meet the condition for case closure
under section 303.11(b)(12) involves direct withholding under the
Uniform Interstate Family Support Act. Under UIFSA, States may send a
withholding notice directly to an employer in another State.
Traditionally, interstate case processing goes from a IV-AD agency in
one State to a IV-AD agency in another State, which then forwards a
withholding order to an employer in its State. However, if a State,
using authority under its UIFSA statute, sends a withholding notice
directly to an employer in another State, it cannot be considered
noncooperation and a rationale for case closure under section
303.11(b)(12) by the employer's State which is otherwise processing an
interstate case for the State that sends the direct withholding.
2. Comment: Two commenters requested a revision to paragraph
(b)(12) to provide for specific criteria which would support the case
closure decision made by a responding State. Three other commenters
offered related recommendations that the final rule clarify that the
interstate program standards in 45 CFR 303.7 apply to the application
of paragraph (b)(12).
Response: Because this paragraph only applies to interstate cases,
the program standards appearing at Sec. 303.7 apply and will drive the
decision as to whether or not an initiating State has failed to take an
action that is essential to the next step in providing services. The
requirements and time frames of Sec. 303.7 are to be used by the
responding State in making this determination.
3. Comment: One commenter requested that the final rule require the
responding State, upon deciding to close a case pursuant to the
authority of paragraph (b)(12), to send a notice of case closure to the
initiating State.
Response: Yes, OCSE concurs with this recommendation and the final
rule revises paragraph (c) to require the responding State, upon
deciding to close a case pursuant to the authority of paragraph
(b)(12), to send a notice of case closure to the initiating State.
4. Comment: One commenter suggested that the final rule incorporate
a 60 calendar day time frame to the paragraph (b)(12) interstate case
closure criterion.
Response: Yes, this recommendation was adopted by including
paragraph (b)(12) closures in the sections referenced by paragraph (c),
which incorporates a 60 calendar day case closure time frame.
5. Comment: One commenter requested that the final rule clarify
that paragraph (b)(12) applied in both assistance and nonassistance
cases.
Response: Paragraph (b)(12) applies to all interstate IV-D cases,
assistance and nonassistance alike.
6. Comment: One commenter recommended that the final rule require
the responding State to send a notice of case closure directly to the
custodial parent in the initiating State.
Response: This suggestion is inconsistent with OCSE's long-standing
interstate policy that the responding State not have direct contact
with the custodial parent residing in, and receiving IV-D services
from, the initiating State. In OCSE-AT-88-02, in response to a similar
suggestion, OCSE announced that ``it is not the responding State's
responsibility to be in direct contact with the custodial parent and it
would be overly burdensome to require them to do so.'' Another reason
why it would be imprudent to adopt this recommendation is that the
interstate request for services may be based solely upon an arrearage
owed to the initiating State, and the whereabouts of the custodial
parent may be unknown to both States.
Comments to Paragraph 303.11(c)
1. Comment: One commenter requested that the 60 calendar day notice
of case closure time frame appearing in paragraph (c) be reduced to a
period of 30 calendar days.
Response: The 60 calendar day time frame the commenter is
addressing has been required under Federal case closure regulations
since the original final rule was promulgated on August 4, 1989. The 60
calendar day time frame has worked well for the past ten years and, at
this time, OCSE does not believe that it would be appropriate to reduce
it to 30 days.
2. Comment: One commenter requested that the final rule expressly
provide that the paragraph (c) notice of case closure may be sent by
first class mail.
Response: OCSE believes that, by remaining silent on the manner in
which the notice of case closure is to be sent, the States are provided
the maximum amount of flexibility. As noted above, one State responded
to the NPRM with the request that they be
[[Page 11817]]
allowed to continue to use certified mailings for their case closure
notices. As currently drafted, the paragraph (c) notice of case closure
may be sent by either first class or certified mail. For these reasons
OCSE decided not to adopt this recommendation.
3. Comment: Two commenters responded to the NPRM by asking that
paragraph (c) exempt a number of factual situations from the
requirement that a notice of case closure be sent. The following
examples of such fact patterns were received: when the obligor, obligee
or child has died; when the obligor's duty to support the child has
been terminated by a court; when the obligor and obligee reconcile; and
when the child leaves a IV-E funded foster care placement.
Response: OCSE has decided not to adopt this suggestion. In fact,
in some of these situations, it may not be appropriate to close the
case, let alone send the notice of case closure. For example, the
obligor's duty to provide child support survives the death of the
obligee. If arrears are owed in the case, the obligor's duty to repay
these arrears will survive the death of a child. The existing
regulations have included the requirement to send this notice in
situations where the case is closed under former paragraph (b)(3)/new
paragraph (b)(2) which is based upon the death of the obligor because
the recipient of services may have knowledge of available assets in the
decedent's estate. OCSE is addressing the continuation of services
issue in IV-E cases in another rulemaking activity. In addition to what
has already been stated in this response, OCSE believes that it is
important for the IV-D agency to notify the recipient of services of
its intention to close a case based upon the criteria identified in
paragraph (c).
4. Comment: One commenter recommended that paragraphs (b) (1), (2)
and (3) be removed from the requirement to send the notice of case
closure in paragraph (c) because those criteria did not pertain to the
recipient of services' cooperation.
Response: The reasoning behind the paragraph (c) requirement that
the recipient of services receive notice of the case closure is based
upon the duty of the IV-D agency to keep the recipient of services
informed of the actions undertaken on his/her child support case. The
notice of case closure is not to be limited solely to instances where
the case is being closed due to the noncooperation of the recipient of
services. For these reasons, OCSE has decided not to adopt this
recommendation.
5. Comment: Two commenters requested that the final rule clarify
that, should a former recipient of services contact the IV-D agency to
request child support enforcement services subsequent to the closure of
his/her case, then this former recipient of services would be required
to complete a new application and pay any applicable application fee.
Another commenter offered a related suggestion. This commenter
requested that paragraph (c) be revised to indicate that the
``recipient of services'' is, in fact, the ``former'' recipient of
services when this term is referencing an individual whose case has
been closed.
Response: OCSE concurs with both of these suggestions. After a IV-D
agency has closed a case pursuant to the procedures outlined in 45 CFR
303.11, the former recipient of services may reapply for services at
any time, provided this individual is otherwise eligible to receive IV-
D services. Should a former recipient of services request IV-D services
be resumed, this individual would be required to complete a new
application for IV-D services and pay any applicable application fee.
6. Comment: One commenter noted the change in terminology from
``custodial parent'' to ``recipient of services'' and asked if this
meant the States needed to change this term on all of their local
forms.
Response: It is not necessary for a State to change the terminology
within its local forms to comply with such changes OCSE is making in
this final rule. However, OCSE encourages the States to keep this issue
in mind when they are otherwise revising their local forms. If the term
``recipient of services'' more accurately reflects the individual at
issue, then the States should consider making a change in this
terminology at that time.
Regulatory Impact Analyses
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 (44 U.S.C. 3507(d)).
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 rule will
not result in a significant impact on a substantial number of small
entities. The primary impact is on State governments. 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 final rule.
Unfunded Mandates Act
The Department has determined that this final rule is not a
significant regulatory action within the meaning of the Unfunded
Mandates Reform Act of 1995.
Congressional Review of Rulemaking
This final rule is not a ``major'' rule as defined in Chapter 8 of
5 U.S.C.
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: October 21, 1998.
Olivia A. Golden,
Assistant Secretary for Children and Families.
Approved: November 30, 1998.
Donna E. Shalala,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, 45 CFR Part 303 is
amended as follows:
PART 303--STANDARDS FOR PROGRAM OPERATIONS
1. The authority citation for Part 303 continues to read as
follows:
Authority: 42 U.S.C. 651 through 658, 660, 663, 664, 666, 667,
1302, 1396a(a)(25), 1396(d)(2), 1396b(o), 1396b(p), and 1396(k).
Sec. 303.11 [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) * * *
[[Page 11818]]
(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 diligent efforts using multiple sources, in accordance with
Sec. 303.3, 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 by the responsible State agency of
good cause or other exceptions to cooperation with the IV-D agency and
the State or local IV-A, IV-D, IV-E, Medicaid or food stamp 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 of at least
one letter sent by first class mail to the last known address;
* * * * *
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) through (12) of this section, the State must notify the
recipient of services, or in an interstate case meeting the criteria
for closure under (b)(12), the initiating State, 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 or the
initiating State 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 former 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 by completing a new
application for IV-D services and paying any applicable application
fee.
* * * * *
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('s)'', and add, in their place, the words
``noncustodial parent('s)'' 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('s)'', and add, in their place, the words
``recipient('s) 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. 99-5831 Filed 3-9-99; 8:45 am]
BILLING CODE 4184-01-P
