[Federal Register Volume 64, Number 46 (Wednesday, March 10, 1999)]
[Rules and Regulations]
[Pages 11802-11810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5832]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Parts 302, 303, and 304
RIN 0970-AB69
Child Support Enforcement Program; State Plan Requirements,
Standards for Program Operations, and Federal Financial Participation
AGENCY: Office of Child Support Enforcement (OCSE), Administration for
Children and Families, HHS.
ACTION: Final rule.
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SUMMARY: This final rule implements part of the paternity establishment
provisions contained in section 331 of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (PRWORA) Pub. L. 104-193
and amended by section 5539 of Pub. L. 105-33, which impose new
statutory requirements for a State's voluntary paternity acknowledgment
process and require the Secretary to promulgate regulations governing
voluntary paternity establishment services and identifying the types of
entities other than hospitals and birth record agencies that may be
allowed to offer voluntary paternity establishment services. States
will be required to adopt laws and procedures that are in accordance
with the statutory and regulatory provisions. These regulations address
these procedures and related provisions.
EFFECTIVE DATE: The final rule is effective: April 9, 1999.
FOR FURTHER INFORMATION CONTACT: Jan Rothstein, OCSE Division of Policy
and Planning, (202) 401-5073. Hearing impaired individuals may call the
Federal Dual Party Relay Service at 800-877-8339 between 8:00 a.m. and
7:00 p.m. Eastern time.
SUPPLEMENTARY INFORMATION:
Background
Paternity establishment is a necessary first step for obtaining
child support in cases where a child is born out-of-wedlock. In
addition to child support, there are other potential financial benefits
to establishing paternity, including establishing a child's rights to
the father's social security benefits, veterans' benefits, pension
benefits, and other rights of inheritance. Paternity establishment
could also be the first step in developing a psychological and social
bond between the father and child, in giving the child social and
psychological advantages and a sense of family heritage, and in
providing access to important medical history information.
Congress and the Federal government have long recognized the
importance of paternity establishment. In 1975, Title IV-D of the
Social Security Act was enacted to require States to establish public
child support agencies. These IV-D agencies provided child support
enforcement services, including paternity establishment services. The
Child Support Enforcement Amendments of 1984 required States to permit
paternity to be established until a child's 18th birthday.
The Family Support Act of 1988 contained several provisions
designed to improve paternity establishment, including performance
standards, timeframes for case processing, enhanced funding (90%
Federal financial participation) for genetic testing, a requirement
that States compel all parties in a contested paternity case to submit
to genetic testing upon the request of a party, a requirement that
States compel each parent to provide his or her social security number
as part of the birth certificate issuance process, and a clarification
of the earlier expansion of the requirement permitting paternity
establishment to 18 years of age.
The Omnibus Reconciliation Act of 1993 (OBRA '93) further reformed
the child support enforcement program to increase the performance
standards for both the number of paternities established for children
born out-of-wedlock and the timeliness with which paternity
establishment is accomplished. One major provision of OBRA '93 was the
requirement that States have laws providing for voluntary paternity
establishment services at birthing hospitals statewide.
Partly as a result of these Federal and State statutory provisions
and their implementation, the number of paternities established each
year by the Title IV-D Child Support Enforcement program has increased
substantially from about 270,000 in fiscal year (FY) 1987 to over
553,000 in FY 1993, an increase of over 100 percent in just six years.
Nearly a million paternities were established in FY 1996, an increase
of
[[Page 11803]]
over 80 percent in the three years since enactment of OBRA '93.
Finally, in section 101 of PRWORA, Congress cited a number of
social and statistical findings relating to the need for paternity
establishment. In 1992, only 54 percent of single-parent families with
children had a child support order established and, of that number,
only about one-half received the full amount due. Of the cases enforced
through the public child support enforcement system, only 18 percent of
the caseload has a collection. The number of individuals receiving
services under Title IV-A of the Social Security Act more than tripled
since 1965, and more than two-thirds of these recipients are children,
with eighty-nine percent of children receiving Aid to Families with
Dependent Children benefits living in homes in which no father is
present. The increase in the number of children receiving public
assistance is closely related to the increase in births to unmarried
women. Congress further cited that between 1970 and 1991, the
percentage of live births to unmarried women increased nearly
threefold, from 10.7 percent to 29.5 percent, and if the current trend
continues, 50 percent of all births by the year 2015 will be out-of-
wedlock. The estimated rate of nonmarital teen pregnancy rose 23
percent from 54 pregnancies per 1,000 unmarried teenagers in 1976 to
66.7 pregnancies in 1991, while the overall rate of nonmarital
pregnancy rose 14 percent from 90.8 pregnancies per 1,000 unmarried
women in 1980 to 103 in both 1991 and 1992.
Response to Comments
On January 5, 1998, we published a Notice of Proposed Rulemaking in
the Federal Register with a 60 day comment period (63 FR 187). We
received 31 comments from State and local IV-D agencies, national child
support enforcement organizations, advocacy groups representing
custodial parents and children, and the general public. A summary of
the comments received and our responses follow:
Description of Regulatory Provisions--Section 302.70(a)(5)(iii)
Section 302.70(a)(5)(iii) requires a State to have in effect laws
requiring procedures for a simple civil process for voluntarily
acknowledging paternity. Under these procedures, before a mother and
putative father can sign a voluntary acknowledgment of paternity, the
mother and the putative father must be given notice, orally or through
the use of video or audio equipment and in writing, of the alternatives
to, the legal consequences of, and the rights (including any rights, if
a parent is a minor, due to minority status) and responsibilities of
acknowledging paternity, and ensure that due process safeguards are
afforded.
Paragraph (a)(5)(iii)(B) requires that State procedures must
include a program for voluntary acknowledgment of paternity in State
birth record agencies, and in other entities designated by the State
and participating in the State's voluntary paternity establishment
program. Paragraph (a)(5)(iii)(C) requires that State procedures
governing hospital-based programs and birth record agencies must also
apply to other entities designated by the State and participating in
the State's voluntary paternity establishment program, including the
use of the same notice provisions, the same materials, the same
evaluation methods, and the same training for the personnel of these
other entities providing voluntary paternity establishment services.
Response to Comments on Section 302.70 Required State Laws
1. Comment: One commenter was concerned that the regulation appears
to require the State birth record agency to offer voluntary paternity
services. The State currently uses a collaborative method in which the
IV-D agency, birthing hospitals and birth record agencies work together
to secure acknowledgments of paternity. The commenter wondered if the
entities have to establish separate programs under these revised
regulations?
Response: The State must make voluntary paternity establishment
services available at birthing hospitals and the State birth record
agency. However, these agencies may share staff to provide the services
to parents. For example, many States station IV-D staff in hospitals to
facilitate the acknowledgment process.
2. Comment: One commenter was concerned that the Notice of Proposed
Rulemaking published January 5, 1998 (63 FR 187) gives no guidance to
States on how to carry out the oral presentation on rights and
responsibilities and no guidance on what to include on the
acknowledgment form about how parents were given oral notice.
Response: We encourage States to place the explanation of rights
and responsibilities in writing on the acknowledgment form itself.
However, consistent with past policy, we are not mandating detailed
Federal due process requirements. The explanation of rights and
responsibilities should describe the rights and responsibilities,
including the duty to support the child financially, that each party
will assume as a result of signing the acknowledgment. It should also
describe rights that each party may be giving up by signing the
acknowledgment (e.g., right to genetic testing). These rights and
responsibilities will vary by State, depending on State law. Generally,
we think a State is in a better position than the Federal government to
determine the exact nature of such requirements in light of the State's
particular circumstances. States' due process requirements also vary
depending on State law and court rulings. However, because of the
importance of the due process and rights and responsibilities issue,
OCSE is committed to providing technical assistance, within its
available resources, including sharing sample forms and materials from
other jurisdictions, in order to assist States.
The oral presentation of rights and responsibilities may be made in
several ways: through conversation with the mother and putative father,
through use of an audio or video tape played for the mother and
putative father or through the use of a tape recorded message the
mother and putative father can call at their convenience.
3. Comment: One commenter wanted the regulation to include a date
certain by which all States are to implement the oral presentation.
Response: Section 395 of PRWORA established dates for
implementation of the oral presentation. The dates vary, depending on
the beginning and ending of legislative sessions in each State.
Statutory requirements should be in effect in all jurisdictions.
4. Comment: One commenter was concerned about the potential burden
on States and other entities if they have to provide for the needs of
hearing impaired mothers and putative fathers.
Response: While we are concerned that parents with special needs
are also able to learn of their rights and responsibilities, we do not
believe that this regulation should specify how the States
operationalize these program requirements when interacting with parents
with special needs. We are confident that each State has appropriate
procedures for use with all parents and see our role as providing the
overall program direction, to be implemented by the States in an
appropriate manner for the particular circumstance.
5. Comment: One commenter proposed using other entities as
``referral centers'' that would direct parties to the locations already
equipped to provide voluntary paternity services (i.e., hospitals). The
commenter
[[Page 11804]]
suggested revising this section of the regulations to allow a category
of entities which could assist in the establishment process without
being subject to the procedures currently governing State hospital-
based programs.
Response: States may choose to make voluntary paternity
establishment services available in as few or as many entities beyond
hospitals and birth record agencies as they see fit. If a State would
prefer to make information about voluntary paternity services available
at many locations but to restrict the number of entities actually
providing the service, that would be perfectly within State
flexibility. We do not think it is necessary to revise the regulations
to grant States this flexibility. However, any entity that is providing
voluntary paternity acknowledgment services will be subject to the
procedures governing hospitals and birth record agencies.
6. Comment: One commenter requested that the regulations make it
absolutely clear that State law must provide that, for a paternity
acknowledgment to be valid, it must be signed by both parents. The
commenter advised moving the language from section 303.5(g)(4) to
section 302.70 so it is clear that this is a State plan requirement.
The commenter further suggested that this section specify that it is a
State plan requirement that both parents' signatures be authenticated
for an acknowledgment to be valid and add a State plan requirement
about the minimum data elements of the paternity acknowledgment form.
Response: The statute requires States to develop procedures under
which the name of the father will be included on the record of birth of
unmarried parents only if the father and mother have signed a voluntary
acknowledgment of paternity or a court or an administrative agency has
issued an adjudication of paternity. The State plan requirement at
section 454(20) cross references all of section 466. Therefore,
compliance with the paternity establishment requirements of section
466(a)(5) and the implementing regulations at 45 CFR 303.5(g) is
required of all States in order to receive Federal funding under Title
IV-D. As we stated in the preamble to the NPRM, we have not regulated
the use of data elements set forth in OCSE-AT-98-02 paternity
acknowledgment affidavit. We continue to think that is appropriate
because, whether or not referenced in the regulations, States must
include the mandated data elements developed by the Secretary in their
paternity acknowledgment affidavits.
7. Comment: One commenter recommended the regulations provide more
information on what the consequences of signing the acknowledgment are.
Response: Since the specific consequences may vary State-by-State
and we are concerned about giving States more flexibility in designing
their programs and the materials to be used to explain them, we think
it is better to avoid being overly prescriptive and to avoid developing
Federal requirements that would unnecessarily disrupt or interfere with
the operation of existing, successfully functioning programs. Possible
consequences include: establishment of a child support order, income
withholding to pay child support ordered, and custody and visitation
issues.
8. Comment: Two commenters objected to expanding the program to
other entities including the State and local birth record agencies. At
a minimum, this commenter felt States should have flexibility to
determine what entities other than birthing hospitals and IV-D agencies
should be involved in the program.
Response: Section 466(a)(5)(C)(iii)(I) of the Act requires that the
State's procedures must require the State agency responsible for
maintaining birth records to offer voluntary paternity establishment
services. Section 466(a)(5)(C)(iii)(II) of the Act requires the
Secretary to prescribe regulations governing voluntary paternity
establishment services offered by hospitals and birth record agencies
and to prescribe regulations specifying the types of other entities
that may offer voluntary paternity establishment services. Thus, the
statute and this regulation give States the flexibility to determine
what entities, other than hospitals and birth record agencies, should
be involved in the voluntary paternity establishment program. A State
may choose to make the program available at one or all of the locations
described in section 303.5(g)(1) of the final regulation.
9. Comment: One commenter was concerned that the requirement for
oral and written notice would make it problematic to inform parents who
are unable to come to an office of their rights and responsibilities.
Response: Parents do not need to be present in order to receive an
explanation of their rights and responsibilities. Oral notice may be
provided to parents via a phone line with recorded information, if the
parents are given the number to call. Furthermore, we encourage States
to place a written explanation of the parent's rights and
responsibilities on the paternity acknowledgment form itself.
Description of Regulatory Provisions--Section 303.5(g)
Section 303.5(g)(1) requires that the State's voluntary paternity
establishment program be available at hospitals, State birth record
agencies, and other entities designated by the State and participating
in the State's voluntary paternity establishment program. The
designation of the particular entities that may offer voluntary
paternity establishment services is the responsibility of the State.
These entities to be identified by the State could include the
following and similar entities: public health clinics (including
Supplementary Feeding Program for Women, Infants, and Children (WIC)
and Maternal and Child Health (MCH) clinics); private health care
providers (including obstetricians, gynecologists, pediatricians, and
midwives); agencies providing assistance or services under Title IV-A
of the Act; agencies providing food stamp eligibility services;
agencies providing child support enforcement (IV-D) services; Head
Start and child care agencies (including child care information and
referral providers); individual child care providers; Community Action
Agencies and Community Action Programs; secondary schools (particularly
those that have parenthood education curricula); Legal Aid agencies;
and private attorneys; and any similar public or private health,
welfare, or social services organization.
Sections 303.5(g)(2)-(8) apply to all hospitals, State birth record
agencies, and other entities designated by the State and participating
in the State's voluntary paternity establishment program. This is
consistent with the statutory requirement that the Secretary prescribe
regulations governing the provision of services by the other entities.
The statute specifies that the other entities participating in the
State's voluntary paternity establishment program must use the same
materials and be trained and evaluated in the same manner as the
voluntary paternity establishment programs of hospitals and birth
record agencies. We believe this consistency will greatly facilitate
the establishment of paternities by entities other than hospitals and
birth record agencies.
Section 303.5(g)(2)(i)(C) and 303.5(g)(5)(iii) require that
hospitals, State birth record agencies, and other entities designated
by the State and participating in the State's voluntary
[[Page 11805]]
paternity establishment program provide the mother and putative father
an oral as well as written description of the consequences of
voluntarily acknowledging paternity. The information about consequences
may also be provided through the use of video or audio equipment. In
response to comments, we revised this section to delete the phrase ``if
he is present'' in reference to the father. We agreed that the phrase
could lead some to think that the mother and father should be treated
differently by the entity participating in the State's voluntary
paternity establishment program.
The NPRM proposed to replace the reference to the requirement in
section 303.5(g)(8) that the State designate an entity to which the
voluntary acknowledgment program must forward completed voluntary
acknowledgment forms or copies with a requirement that the State
designate the State registry of birth records as the entity to which
the voluntary acknowledgment program must forward completed voluntary
acknowledgment forms or copies. In response to comments, we revised
section 303.5(g)(8) to reflect that a State must designate an entity to
which hospitals, State birth record agencies, and other entities
designated by the State and participating in the State's voluntary
paternity establishment program must forward completed voluntary
acknowledgments or copies in accordance with section 303.5(g)(2)(iv).
If States opt to file the signed original voluntary acknowledgment or
an adjudication of paternity with an entity other than the State
registry of birth records, a copy must be filed with the State birth
record registry, in accordance with section 303.5(g)(2)(iv).
Response to Comments on Section 303.5 Establishment of Paternity
Section 303.5(g)(1)
1. Comment: One commenter expressed fear that the wholesale
involvement of other agencies in acknowledging paternity may not
provide the kind of support that parents need to make an informed
choice about completing a voluntary paternity acknowledgment.
Response: We are confident that States will not expand the program
too quickly. We also feel that the protections built into section
303.5(g)(6) will require States to expand the program in a thoughtful
and deliberate manner.
2. Comment: One commenter suggested adding correctional officers to
the list of entities that may participate in a State's voluntary
paternity establishment program.
Response: States may choose to add to the list at section
303.5(g)(1). We intentionally added the sentence ``any similar public
or private health, welfare or social services organization'' at section
303.5(g)(1)(G) to allow States the flexibility to add to the list of
entities as they saw fit. However, correctional officers are law
enforcement or penal officers and do not qualify as health, welfare or
social service organizations. Due to the nature of the relationship
between such officers and their charges and the authority or power of
such officers over their charges, there would be significant risk for
coercion. We do not believe they would be an appropriate category to be
added for participation in the voluntary paternity establishment
program.
3. Comment: One commenter wanted to know if a State would be in
compliance if it only choose to identify one entity in addition to
hospitals and birth record agencies to provide voluntary paternity
services.
Response: Yes. The regulations require voluntary paternity
establishment services to be available at hospitals and at State birth
record agencies. States may choose to also make the services available
at one or more of the other entities listed in the regulations at
section 303.5(g)(1).
4. Comment: Several commenters were concerned that birth record
agencies as the term is used in section 466(a)(5)(C)(iii)(II)(aa)
should be interpreted to mean only State level birth record agencies
and not to refer to local-level birth record agencies.
Response: We agree and have made several slight changes to
emphasize that fact in the final regulations. Local birth record
agencies i.e., those operated by county or municipal agencies, may
participate in a State's voluntary paternity establishment program if
designated by the State, but are not Federally-mandated to participate.
5. Comment: One commenter recommended the preamble address the
issue of the right to rescind a voluntary paternity acknowledgment and
provide guidance on appropriate procedures for States.
Response: Section 466(a)(5)(D)(ii) of the Act requires the States
to enact laws and develop procedures under which an individual who has
signed a voluntary acknowledgment has the right to rescind that
acknowledgment within the earlier of 60 days or the date of an
administrative or judicial proceeding relating to the child. We think
this is an area where further regulation is not needed at this time. We
are prepared to work with States to help them address any specific
problems they face in implementing the minimum data requirements of the
paternity affidavit which include a reference to the 60-day recession
requirement. OCSE's paternity establishment workgroup has distributed
copies of a model rescission form that has been proposed by the
Association for Public Health Statistics and Information Systems. In
addition, OCSE regional staff will be compiling information on State
paternity programs including how States manage the 60 day rescission.
Once the information has been compiled, it will be disseminated via the
``State Paternity Profiles.''
6. Comment: One commenter proposed that States establish voluntary
paternity establishment services in cooperation with all birthing
hospitals but not in cooperation with every hospital in the State.
Response: Neither the statute nor the regulations require that the
State's procedures must include a program in all hospitals in the
State. The hospital-based program requirement is limited to hospitals
that either have an obstetric care unit or that provide obstetric
services, consistent with previously issued regulations. A clarifying
change was made by adding the word ``all'' and the regulation now reads
``all private and public birthing hospitals'' at section
303.5(g)(1)(i).
7. Comment: One commenter proposed revising this section to clarify
that the staff of a paternity establishment services provider may be
based out of any agency or contractor designated by the State, and need
not be available outside of normal business hours.
Response: States are free to make voluntary paternity
acknowledgment services available in as many locations and at any times
they choose, so long as the services are available at hospitals and at
State birth record agencies. We want to encourage States to make
paternity acknowledgment services available to as many parents as
possible after a thorough explanation of the rights and
responsibilities of doing so. In fact, States have been successful
making staff available outside of normal business hours, to recognize
after-working-hour visits to the hospital.
8. Comment: One commenter recommended OCSE assist States in
implementing in-hospital paternity acknowledgment before expanding
paternity establishment services to other entities.
Response: OCSE has assisted States in several ways as they have
moved to implement the OBRA '93 provisions related to in-hospital
paternity
[[Page 11806]]
establishment. In the past, we have conducted meetings with our
Regional Offices to bring together hospital personnel, IV-D staff and
birth registry personnel to air issues and concerns about in-hospital
paternity establishment and more recently we are moving to develop a
national video on paternity establishment for unmarried parents
regarding the benefits, rights, and legal consequences of signing a
voluntary acknowledgment of paternity. We have also provided States
copies of model agreements between State IV-D agencies and hospitals
and will be publishing a resource handbook entitled ``State Paternity
Profiles,'' which will allow States to learn from other States what
works to increase paternity establishment. In addition, we will be
preparing a national paternity establishment training video for
personnel directly involved in providing paternity acknowledgment
services in entities designated by the State as participating in the
State's voluntary paternity acknowledgment program.
Section 303.5(g)(2)
1. Comment: One commenter recommended deleting ``if he is present''
because in the context of participating entities it is likely to cause
confusion, leading the entity to think it has to deal in person with
the mother and by some other means with the father, but not to deal in
person with the father and by some other means with the mother.
Response: We agree and are deleting the phrase in the two places in
section 303.5(g)(2) where it appeared. All entities participating in
the State's voluntary paternity establishment program should treat the
mother and father equally and ensure that each has access to all the
same information before signing the voluntary acknowledgment of
paternity.
2. Comment: One commenter suggested adding a reference in the
regulations to the effect that participating entities must provide both
the mother and the father assurance that their eligibility for services
from the entity would not be affected by their decision to acknowledge
paternity. The same commenter also suggested adding a timeframe within
which the entity must forward the acknowledgment to the State registry
of birth records, and adding a requirement that State registries of
birth records send written notice of receipt of the acknowledgment to
both parents.
Response: We think that these suggestions warrant consideration by
the States. As discussed in more detail in the regulatory philosophy
section above, we believe it is prudent at this time to use these
regulations to extend existing regulatory requirements which govern
voluntary paternity acknowledgment in hospitals to govern State birth
record agencies and other entities participating in the State's
voluntary paternity establishment program.
3. Comment: One commenter recommended that the consequences of
acknowledging paternity vis-a-vis custody and visitation should be
explained to both the mother and father.
Response: We are not specifying explicit rights and
responsibilities regarding custody and visitation because these are
essentially State matters, governed by State law. States are required
by section 466(a)(5)(C)(i) of the Act to explain the alternatives to,
the legal consequences of, and the rights and responsibilities that
arise from signing the acknowledgment. When giving the parents the
opportunity to voluntarily acknowledge paternity, we would also
encourage that both parents receive an explanation about the potential
impact of an acknowledgment under State law on custody and visitation,
as well as the consequences.
4. Comment: One commenter recommended the regulation be amended to
require that entities participating in the State's voluntary paternity
establishment program afford parents a ``reasonable'' opportunity to
speak with staff. The commenter was concerned that without this
restriction, the language in section 303.5(g)(2) could be interpreted
to mean staff would have to be available to answer questions 24-hours
per day.
Response: Section 303.5(g)(2) was added to the regulations as a
result of OBRA '93 (59 FR 66204) and it is only being amended by this
final rule to reflect that it now applies to not only hospital-based
programs, but to all entities participating in the State's voluntary
paternity establishment program. As established in OBRA '93, to meet
this requirement an entity participating in the State's program must:
(1) have staff available during its regular business hours to talk with
parents in person, or (2) provide written materials with a telephone
number for State agency (IV-D or other agency) personnel that the
parties may contact for additional information. A program may utilize
both of these approaches. The technical amendments to PRWORA added
videos to the list of material that can be used.
5. Comment: One commenter proposed the regulations be revised to
apply only when both parents intend to sign an acknowledgment so as not
to waste the valuable time of staff.
Response: We do not agree that the regulations need to be revised
in this manner. States can not know the intent of a parent when he or
she volunteers to acknowledge paternity. States can only attempt to
ensure that parents are fully informed of their rights and
responsibilities before signing the form.
6. Comment: One commenter recommended that the text in section
303.5(g)(2)(i)(C) regarding notice be stated in a manner similar to
that in section 302.70(a)(5)(iii). The commenter suggested the phrasing
was confusing as written.
Response: We agree that the section could be written more clearly
and have rewritten the section to more fully mirror the language in
section 302.70(a)(5)(iii).
Section 303.5(g)(4)
1. Comment: One commenter recommended the preamble to the
regulations make it plain that a State may determine that two separate
acknowledgments (one signed by the mother and one by the father) will
suffice to establish paternity.
Response: The Federal statute does not require both signatures on
the same acknowledgment form.
Section 303.5(g)(6)
1. Comment: One commenter was concerned that the regulations could
be interpreted as precluding a State from furnishing offices such as
those of obstetricians/gynecologists with informational brochures
concerning voluntary paternity acknowledgment without designating such
offices as participating in the State's voluntary paternity
acknowledgment program. Another commenter recommended communicating
information about voluntary paternity acknowledgment services through
expanded outreach efforts.
Response: Nothing in this regulation precludes a State from
providing informational brochures or otherwise promoting the concept of
the voluntary acknowledgment of paternity in any setting the State may
choose. States select the entities (beyond hospitals and State birth
record agencies) that will provide voluntary paternity acknowledgment
services and they certainly can use other sites to promote the program.
A site may be chosen to promote as well as to provide paternity
services, or only to promote such services.
2. Comment: One commenter recommended the regulations distinguish
between entities which offer
[[Page 11807]]
paternity establishment services and entities which participate in a
State's voluntary paternity acknowledgment program. An example would be
lawyers who may offer paternity services in their offices without
participating in the State's program.
Response: These regulations apply only to those entities that are
providing voluntary paternity acknowledgment services to parents in
conjunction with the State IV-D agency's voluntary paternity
acknowledgment program. They do not preclude private attorneys from
helping parents with paternity establishment or contested paternity
establishment. The regulations consistently refer to ``entities
participating in the State's voluntary paternity establishment
program'' to make it clear as to what entities are covered.
3. Comment: One commenter was concerned about the potential that
exists for a lack of quality control if multiple entities are providing
voluntary paternity acknowledgment services to the public.
Response: It is for that reason that the regulations require States
to provide training, guidance, and written instructions regarding
voluntary acknowledgment of paternity as necessary to operate the
program to all entities providing these services. States must assure
quality control by participating entities through evaluation and
training.
Section 303.5(g)(7)
1. Comment: One commenter recommended the regulations provide
general evaluation criteria for the annual assessment of entities
participating in the State's voluntary paternity establishment program.
Response: Existing prior requirements did not set specific
evaluation criteria related to in-hospital paternity establishment
programs because that is a State responsibility. In addition, since the
statute and regulations require States to apply the same evaluation
standard to other entities that they currently apply to the in-hospital
paternity program, we do not want to introduce a new standard when
States are already evaluating their in-hospital paternity program under
existing requirements and State procedures.
Section 303.5(g)(8)
1. Comment: We received several comments regarding the proposed
requirement that States designate the State registry of birth records
as the entity to which hospitals, birth record agencies and other
entities participating in the State's voluntary paternity establishment
program must forward completed voluntary acknowledgments or copies in
accordance with section 303.5(g)(2)(iv). Most comments concerned
allowing States to designate an agency other than the State registry of
birth records as the agency to receive and process the completed
acknowledgment of paternity forms.
Response: We agree that the statute only requires States to develop
procedures under which voluntary acknowledgments and adjudications of
paternity by judicial or administrative processes are filed with the
State registry of birth records for comparison with information in the
State case registry. We also recognize that a number of States have
established alternative repositories for voluntary acknowledgments.
Therefore, States must file a copy of the signed original voluntary
acknowledgment or an adjudication of paternity with the State registry
of birth records if they file the original with another designated
entity (e.g. the State IV-D agency or another agency or a contractor as
the State deems appropriate). We do not think it is necessary that the
State choose the State registry of birth records as the sole repository
of these records. We have amended the regulation to allow States to
designate an entity to which hospitals, birth record agencies and other
entities must forward completed voluntary acknowledgments or copies. In
accordance with section 303.5(g)(2)(iv), if the entity designated is
not the birth record agency, a copy must be filed with the birth record
agency.
2. Comment: One commenter was under the impression that States
would be able to select the central registry of their choice via waiver
or comparable process and wants that flexibility.
Response: The regulation allows States to designate another entity
to which acknowledgments may be sent, as long as the birth registry
also receives a copy. However, if a State does not want to send a copy
to the birth record agency, as authorized by section 466(d), States may
request an exemption from the requirement that acknowledgments be filed
with the State registry of birth records, in accordance with OCSE-AT-
97-02 which was issued February 10, 1997. The State must demonstrate
that implementing this requirement will not increase the effectiveness
and efficiency of its child support program. Until such request is
approved, a State must comply with the requirement for filing with the
State registry of birth records.
Description of Regulatory Provisions--Section 304.20(b)(2)
We have revised sections 304.20 (b)(2)(vi), (vii), and (viii) to
provide that Federal financial participation is available for allowable
costs with respect to hospitals, State birth record agencies, and other
entities designated by the State and participating in the State's
voluntary paternity establishment program. This is consistent with the
expansion of the applicability of all existing provisions in sections
303.5(g)(2)-(8) to birth record agencies and other entities designated
by the State and participating in the State's voluntary paternity
establishment program.
Response to Comments on Section 304.20 Availability and Rate of
Federal Financial Participation
1. Comment: One commenter proposed deleting the reference to
``short-term'' as the training itself is not short-term in nature.
Response: We think it continues to be appropriate to refer to this
training as short-term, especially as this section contains a
discussion of the sorts of activity Federal financial participation
(FFP) will be available for. As the regulations state, FFP is available
for reasonable and essential short-term training regarding voluntary
acknowledgments of paternity associated with a State's program of
voluntary paternity establishment services under section 303.5(g).
Although the training must be short-term in order to be eligible for
FFP, training of new staff may be provided on a periodic basis as
necessary to assure understanding of the process and indeed, we think
that is the most reasonable manner in which to provide it.
2. Comment: One commenter recommended FFP be made available to the
IV-D agency to pay the State registry of birth records for costs
relating to the statewide paternity database.
Response: According to the Office of Management and Budget's
Circular A-87, ``Cost Principles for State and Local Governments,'' the
general rule governing this issue is that Federal funds are not
available to offset the general costs of a State or local government.
(See OMB Circular A-87, attachment B, #23.) That is, Federal funds may
not be used to finance general types of government services normally
provided to the public, such as the filing of birth records. Under this
principle, FFP is not available for paying the start-up or ongoing
costs of the State or local birth record agency
[[Page 11808]]
that has responsibility for maintaining completed acknowledgments of
paternity. Likewise, FFP is also not available to reimburse a State or
local vital records office for the costs of establishing a system to
process or store paternity affidavits because those activities are
required of those entities under general State law. However, as
previously stated in OCSE-AT-94-06, ``Final Rule--Paternity
Establishment and Revision of Child Support Enforcement Program and
Audit Regulations,'' FFP is available for the IV-D agency's cost in
determining whether a voluntary acknowledgment has been recorded with
the statewide database in IV-D cases needing paternity establishment.
In addition, FFP is available for the IV-D agency's cost incurred under
an agreement governing the routine exchange of information or documents
regarding acknowledgments between the IV-D agency and the agency that
maintains the statewide database.
3. Comment: One commenter recommended amending the regulations to
clarify that FFP is available for the costs associated with the
recording of and access to identifying information and documentation.
Response: FFP is available for three related costs. First, under
section 304.20(b)(2)(i), which allows FFP for costs associated with
reasonable efforts to determine the identity of a child's father, FFP
is available for the IV-D agency's costs in determining, in accordance
with section 303.5(h), whether a voluntary acknowledgment has been
recorded with the statewide data base in IV-D cases needing paternity
establishment. Second, FFP is available for reasonable and necessary
costs, including fees, incurred by the IV-D agency in obtaining copies
of documents such as voluntary acknowledgments or birth certificates.
Third, FFP is available, under previously-existing policy, for the IV-D
agency's costs of establishing an agreement, governing the routine
exchange of information or documents regarding acknowledgments, between
the IV-D agency and the entity designated in section 303.5(g)(8), the
agency that maintains the statewide database, or any entity that gives
the IV-D agency access to copies of acknowledgments.
4. Comment: One commenter wrote that FFP should be available for
the costs of hiring and training hospital and other entity staff.
Response: As stated above, FFP is available for only a limited
range of activities. While FFP is available for training of staff, it
is not available for hiring staff outright.
5. Comment: One commenter wondered if a State would have to have
agreements with local Health Departments if these are to provide
services or will a State level agreement suffice?
Response: Consistent with past policy, we are not mandating at what
level of State government agreements between entities participating in
a State's voluntary paternity acknowledgment program and the IV-D
agency must be reached. We think this is an area where States should be
granted flexibility. However, it is critical to ensure that all
entities participating in a State's program of voluntary paternity
establishment meet all Federal requirements.
6. Comment: One commenter suggested the regulations be amended to
provide guidance to States on the development of materials in languages
other than English, the design of materials for the visually or hearing
impaired, and the proper literacy level for materials to be presented
to the public.
Response: Just as we defer to State law regarding due process
protections for persons with such limited abilities, we think it is
appropriate to give States discretion in this matter. We encourage and
expect States to address the special circumstances of individuals with
limited understanding of English and to prepare materials geared to the
general population in language and at reading levels appropriate to
them.
7. Comment: One commenter felt the regulations should address the
legal structure of the relationship between the State and the various
entities participating in the voluntary paternity establishment
program.
Response: We think this is legitimately an area where each State
must have flexibility. Each State will have to determine for itself the
structure of the relationship with the entities that will participate
in the State's voluntary paternity establishment program.
8. Comment: One commenter felt the regulations should be more
explicit that entities participating in the State's voluntary paternity
establishment program have to use materials provided by the State.
Response: We think the statute and regulations are already quite
clear that in order to participate in a State's voluntary paternity
establishment program, an entity must use the same notice provisions
used by, use the same materials used by, provide the personnel
providing such services with the same training provided by, and
evaluate the provision of such services in the same manner as the
provision of such services is evaluated by voluntary paternity
establishment programs of hospitals and State birth record agencies.
Regulatory Impact Analyses
Paperwork Reduction Act
Section 466(a)(5)(C) of the Social Security Act (the Act) (42
U.S.C. 666(a)(5)(C)), as added by section 331 of Pub. L. 104-193 and
amended by section 5539 of Pub. L. 105-33, contains a requirement that
information be disclosed to a third party. As required by the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)), this request for approval of
a new information collection has been approved by Office of Management
and Budget as of March 2, 1998 under OMB control number 0970-0175. 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.
Section 466(a)(5)(C) of the Act requires States to pass laws
ensuring a simple civil process for voluntarily acknowledging paternity
under which the State must provide that, before a mother and putative
father can sign a voluntary acknowledgment of paternity, the mother and
putative father must be given notice, orally or through the use of
video or audio equipment and in writing of the alternatives to, the
legal consequences of, and the rights (including any rights, if a
parent is a minor, due to minority status) and responsibilities of
acknowledging paternity. To comply with this requirement States must
disclose information about these rights in written and oral formats or
through the use of video or audio equipment to mothers and putative
fathers. We estimate the time needed to disclose the information to
mothers and putative fathers to be approximately 10 minutes (0.17
hours). In order to ensure effective disclosure of this information,
States will need to provide training to other State employees and the
employees of local governments, non-profit and for profit businesses.
We estimate this training will take an additional 1,600 hours yearly
for all entities. We have added these hours to the time estimated to be
necessary for the third party disclosure in order to establish the
total estimated burden hours for this requirement. The total burden
hours estimated for the third party disclosure are 76,059.
[[Page 11809]]
Regulatory Flexibility Act
The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the
Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not
result in a significant impact on a substantial number of small
entities. The primary impact of these regulations is on State
governments, which are not considered small entities under the
Regulatory Flexibility Act. Most of the requirements being imposed on
entities are required by statute. The regulations require hospitals,
birth record agencies and the other entities participating in the
State's voluntary paternity establishment program to be subject only to
certain minimal requirements. These requirements include: undergoing
training, being evaluated annually, providing oral and written
information to mothers and putative fathers, and transmitting the
acknowledgments to the State registry of birth records. The information
about consequences may also be provided through the use of video or
audio equipment. The Federal regulations do not specify the nature or
extent of the training, evaluation or materials to be provided. The
States will furnish the training, conduct the evaluation, and provide
the materials and forms to be used. The requirements imposed by the
regulations do not result in a significant impact on a substantial
number of small entities. Therefore, the Secretary certifies, under 5
U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L.
96-354), that these regulations will not result in a significant impact
on a substantial number of small entities.
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. The
regulations are required by PRWORA and represent expansion of the
existing regulations to cover birth record agencies and other entities.
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 Regulations
This final rule is not a ``major'' rule as defined in Chapter 8 of
5 U.S.C.
List of Subjects in 45 CFR Parts 302, 303, and 304
Accounting, Child support, Grant programs--social programs, and
Reporting and recordkeeping requirements.
(Catalog of Federal Domestic Assistance Program No. 93.563, Child
Support Enforcement Program)
Dated: October 21, 1998.
Olivia A. Golden,
Assistant Secretary for Children and Families.
Approved: December 1, 1998.
Donna E. Shalala,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, 45 CFR chapter III of
the Code of Federal Regulations is amended as follows:
PART 302--STATE PLAN REQUIREMENTS
1. The authority citation for part 302 continues to read as
follows:
Authority: 42 U.S.C. 651 through 658, 664, 666, 667, 1302,
1396a(a)(25), 1396b(d)(2), 1396b(o), 1396b(p) and 1396(k).
2. Section 302.70 is amended by revising paragraph (a)(5)(iii)
introductory text by revising paragraph (a)(5)(iii)(B), and by adding
paragraph (a)(5)(iii)(C) to read as follows:
Sec. 302.70 Required State laws.
(a) * * *
(5) * * *
(iii) Procedures for a simple civil process for voluntarily
acknowledging paternity under which the State must provide that, before
a mother and putative father can sign a voluntary acknowledgment of
paternity, the mother and the putative father must be given notice,
orally or through video or audio equipment, and in writing, of the
alternatives to, the legal consequences of, and the rights (including
any rights, if a parent is a minor, due to minority status) and
responsibilities of acknowledging paternity, and ensure that due
process safeguards are afforded. Such procedures must include:
(A) * * *
(B) A process for voluntary acknowledgment of paternity in
hospitals, State birth record agencies, and in other entities
designated by the State and participating in the State's voluntary
paternity establishment program; and
(C) A requirement that the procedures governing hospital-based
programs and State birth record agencies must also apply to other
entities designated by the State and participating in the State's
voluntary paternity establishment program, including the use of the
same notice provisions, the same materials, the same evaluation
methods, and the same training for the personnel of these other
entities providing voluntary paternity establishment services.
* * * * *
PART 303--STANDARDS FOR PROGRAM OPERATIONS
3. 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), 1396b(d)(2), 1396b(o), 1396b(p) and 1396(k).
4. Section 303.5 is amended by revising paragraph (g) to read as
follows:
Sec. 303.5 Establishment of paternity.
* * * * *
(g) Voluntary paternity establishment programs. (1) The State must
establish, in cooperation with hospitals, State birth record agencies,
and other entities designated by the State and participating in the
State's voluntary paternity establishment program, a program for
voluntary paternity establishment services.
(i) The hospital-based portion of the voluntary paternity
establishment services program must be operational in all private and
public birthing hospitals statewide and must provide voluntary
paternity establishment services focusing on the period immediately
before and after the birth of a child born out-of-wedlock.
(ii) The voluntary paternity establishment services program must
also be available at the State birth record agencies, and at other
entities designated by the State and participating in the State's
voluntary paternity establishment program. These entities may include
the following types of entities:
(A) Public health clinics (including Supplementary Feeding Program
for Women, Infants, and Children (WIC) and Maternal and Child Health
(MCH) clinics), and private health care providers (including
obstetricians, gynecologists, pediatricians, and midwives);
(B) Agencies providing assistance or services under Title IV-A of
the Act, agencies providing food stamp eligibility service, and
agencies providing child support enforcement (IV-D) services;
(C) Head Start and child care agencies (including child care
information and referral providers), and individual child care
providers;
(D) Community Action Agencies and Community Action Programs;
[[Page 11810]]
(E) Secondary education schools (particularly those that have
parenthood education curricula);
(F) Legal Aid agencies, and private attorneys; and
(G) Any similar public or private health, welfare or social
services organization.
(2) The hospitals, State birth record agencies, and other entities
designated by the State and participating in the State's voluntary
paternity establishment program must, at a minimum:
(i) Provide to both the mother and alleged father:
(A) Written materials about paternity establishment,
(B) The forms necessary to voluntarily acknowledge paternity,
(C) Notice, orally or through video or audio equipment, and in
writing, of the alternatives to, the legal consequences of, and the
rights (including any rights, if a parent is a minor, due to minority
status) and responsibilities or acknowledging paternity, and
(D) The opportunity to speak with staff, either by telephone or in
person, who are trained to clarify information and answer questions
about paternity establishment;
(ii) Provide the mother and alleged father the opportunity to
voluntarily acknowledge paternity;
(iii) Afford due process safeguards; and
(iv) File signed original of voluntary acknowledgments or
adjudications of paternity with the State registry of birth records (or
a copy if the signed original is filed with another designated entity)
for comparison with information in the State case registry.
(3) The hospitals, State birth record agencies, and other entities
designated by the State and participating in the State's voluntary
paternity establishment program need not provide services specified in
paragraph (g)(2) of this section in cases where the mother or alleged
father is a minor or a legal action is already pending, if the
provision of such services is precluded by State law.
(4) The State must require that a voluntary acknowledgment be
signed by both parents, and that the parents' signatures be
authenticated by a notary or witness(es).
(5) The State must provide to all hospitals, State birth record
agencies, and other entities designated by the State and participating
in the State's voluntary paternity establishment program:
(i) Written materials about paternity establishment,
(ii) Form necessary to voluntarily acknowledge paternity, and
(iii) Copies of a written description of the alternatives to, the
legal consequences of, and the rights (including any rights, if a
parent is a minor, due to minority status) and responsibilities of
acknowledging paternity.
(6) The State must provide training, guidance, and written
instructions regarding voluntary acknowledgment of paternity, as
necessary to operate the voluntary paternity establishment services in
the hospitals, State birth record agencies, and other entities
designated by the State and participating in the State's voluntary
paternity establishment program.
(7) The State must assess each hospital, State birth record agency,
local birth record agency designated by the State, and other entity
participating in the State's voluntary paternity establishment program
that are providing voluntary paternity establishment services on at
least an annual basis.
(8) Hospitals, State birth record agencies, and other entities
designated by the State and participating in the State's voluntary
paternity establishment program must forward completed voluntary
acknowledgments or copies to the entity designated by the State. If any
entity other than the State registry of birth records is designated by
the State, a copy must be filed with the State registry of birth
records, in accordance with section 303.5(g)(2)(iv). Under State
procedures, the designated entity must be responsible for promptly
recording identifying information about the acknowledgments with a
statewide database, and the IV-D agency must have timely access to
whatever identifying information and documentation it needs to
determine in accordance with Sec. 303.5(h) if an acknowledgment has
been recorded and to seek a support order on the basis of a recorded
acknowledgment in accordance with Sec. 303.4(f).
* * * * *
PART 304--FEDERAL FINANCIAL PARTICIPATION
5. The authority citation for part 304 continues to read as
follows:
Authority: 42 U.S.C. 651 through 655, 657, 1302, 1396a(a)(25),
1396b(d)(2), 1396b(o), 1396b(p) and 1396(k).
6. Section 304.20 is amended by revising paragraph (b)(2)(vi)
through paragraph (b)(2)(viii) to read as follows:
Sec. 304.20 Availability and rate of Federal financial participation.
(b) * * *
(2) * * *
(vi) Payments up to $20 to hospitals, State birth record agencies,
and other entities designated by the State and participating in the
State's voluntary paternity establishment program, under Sec. 303.5(g)
of this chapter, for each voluntary acknowledgment obtained pursuant to
an agreement with the IV-D agency;
(vii) Developing and providing to hospitals, State birth record
agencies, and other entities designated by the State and participating
in the State's voluntary paternity establishment program, under
Sec. 303.5(g) of this chapter, written and audiovisual materials about
paternity establishment and forms necessary to voluntarily acknowledge
paternity; and
(viii) Reasonable and essential short-term training associated with
the State's program of voluntary paternity establishment services under
Sec. 303.5(g).
* * * * *
[FR Doc. 99-5832 Filed 3-9-99; 8:45 am]
BILLING CODE 4184-01-P
