[Federal Register Volume 61, Number 138 (Wednesday, July 17, 1996)]
[Proposed Rules]
[Pages 37236-37240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18116]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Parts 232 and 235
Aid To Families With Dependent Children; AFDC/Child Support
Program Cooperation and Referral
AGENCY: Administration for Children and Families (ACF), HHS.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This proposed rule is part of President Clinton's recently
announced initiative to strengthen the child support enforcement system
and promote parental responsibility. ACF is proposing to amend the
regulations for the Aid to Families with Dependent Children (AFDC)
program under title IV-A of the Social Security Act to improve
cooperation requirements as follows:
Prior to receipt of AFDC, applicants will be required to provide
sufficient information to located the non-custodial parent, establish
the paternity of a child born out of wedlock and secure child support.
By making the receipt of benefits conditional upon fulfillment of the
cooperation requirement at the time of application, this policy will
increase the likelihood of success in locating non-custodial parents,
establishing paternity, and securing support.
Applicants and recipients will be held to a strict
cooperation standard. They will be required to provide the name of the
father and identifying information available to the caretaker such as
the address, Social Security Number, telephone number, place of
employment or school, and names of relatives, etc.
To ensure effective due process protection, States will be
required to establish criteria to determine when the individual cannot
reasonably be expected to know the required identifying information.
The AFDC agency will be required to refer applicants to
the child support agency within two working days of application so that
the non-custodial parent can be located and paternity action can be
initiated right away.
To ensure that clients are protected from delays in
processing applications, the prohibition on State or local agencies
from denying, delaying or discontinuing assistance pending a good cause
determination will also apply to the cooperation determination.
To provide additional flexibility, States may request
waivers under the Intergovernmental Cooperation Act to have the child
support agency, rather than the AFDC agency, make the good cause and
cooperation determination. Since the child support agency has the
responsibility to bring legal action to establish paternity, it is
often in the best position to make this determination.
The current good cause provisions are unchanged. Applicants and
recipients who have good cause will continue to be exempt from
cooperating.
DATES: Interested persons and agencies are invited to submit written
comments concerning these regulations no later than September 16, 1996.
ADDRESSES: Comments should be submitted in writing to the Assistant
Secretary for Children and Families, ATTENTION: Mr. Mack A. Storrs,
Director, Division of AFDC/JOBS, 5th Floor, Office of Family
Assistance, 370 L'Enfant Promenade, S.W., Washington, D.C. 20447 or
delivered to the Office of Family Assistance, 5th Floor, Aerospace
Building, 901 ``D'' St., S.W., Washington, D.C. 20447, between 8:00
a.m. and 4:30 p.m. on regular business days. Comments received may be
inspected during these hours by making arrangements with the contact
person.
FOR FURTHER INFORMATION CONTACT: Mr. Mack A. Storrs, Administration for
Children and Families, Office of Family Assistance, 5th Floor, 370
L'Enfant Promenade, S.W., Washington, D.C. 20447, telephone (202) 401-
9289.
SUPPLEMENTARY INFORMATION:
Background
Recently, President Clinton announced a new initiative to
strengthen the child support
[[Page 37237]]
enforcement system and promote parental responsibility. The President
directed the Secretary to exercise her legal authority to propose new
rules which would require all applicants for welfare to cooperate by
providing sufficient information, prior to receipt of AFDC, to locate
the non-custodial parent, establish the paternity of a child born out
of wedlock and secure child support. The new regulations will also
require AFDC recipients to similarly cooperate at their next
redetermination.
Currently, more than 1.2 million children are born each year to
unwed parents. These children deserve to have their relationship with
their father legally acknowledged and to receive financial and
emotional support from him. No father should be able to bring a child
into this world and then just walk away. A clear message must be
conveyed to parents, especially young parents, that bringing a child
into this world brings with it significant, long-term responsibilities.
Paternity establishment is the crucial, first step toward securing
financial support for a child, and, perhaps even more importantly,
promoting the development of a nurturing relationship with the father.
If paternity is not established, the child may be denied a lifetime of
emotional, psychological and economic benefits. While a parental link
opens the door to child support and other potential financial benefits,
it also provides qualitative benefits to the child, such as the value
of a father's legal acknowledgement of their relationship, an
opportunity for extended family ties, and access to medical history and
genetic information.
The Administration has made paternity establishment a top priority.
In the Omnibus Reconciliation Act of 1993, the Administration proposed,
and Congress enacted, a requirement for States to establish voluntary
paternity acknowledgment programs in hospitals as an effective way to
establish child/father bonds right from the start of a child's life.
Voluntary data from thirty-one States show that more than 200,000
paternities were established through the in-hospital program in 1995.
In addition, the total number of paternities established by child
support agencies has increased by 40 percent since 1992. Still, more
needs to be done. That is why the President has ordered the Secretary
of the Department of Health and Human Services to exercise her legal
authority to propose new regulations on paternity establishment and
child support cooperation in the AFDC program.
Unless paternity is established for a child in a family seeking
welfare, the government pays the costs of raising the child--costs that
the father should be sharing. As a condition of receipt of welfare
benefits, mothers are currently required to cooperate with paternity-
establishment efforts. However, the process of cooperating is seldom
completed during the application process, and efforts to determine
cooperation and establish paternity are often not made until after the
mother has begun receiving benefits. Research shows that a greater
percentage of mothers know the identity and whereabouts of the father
of their child than is currently reported to welfare agencies. Because
agencies do not receive all relevant information, paternity is often
not established. In fact, the national rate for paternity establishment
in welfare cases is only about 40 percent. Under these proposed rules,
quick action would be taken to improve life prospects for families.
Since passage of the Family Support Act in 1988, States have been
dramatically changing the culture of welfare to emphasize that
assistance ought to be temporary while families take the necessary
steps to become self-sufficient. Establishing paternity and getting
child support from the non-custodial parent, combined with finding and
holding a job, are critical components of a financial base leading to
independence. In addition to assuring that eligible applicants receive
prompt and accurate benefits, eligibility staff should know, understand
and communicate the benefits and need for paternity establishment and
self-sufficiency.
Discussion of Proposed Changes
In cases of a child born out of wedlock, the establishment of
paternity is a critical first step in the child support enforcement
process. The earlier paternity is established, the sooner the child may
benefit from child support, the father's medical benefits, and
information about his medical history. The child may also gain access
to other financial benefits such as dependent's benefits under Social
Security, pensions, veterans' benefits, and rights of inheritance.
Section 402(a)(26)(B) of the Social Security Act provides that, as
a condition of eligibility for aid, each applicant or recipient will be
required to cooperate with the State in establishing the paternity of a
child born out of wedlock, in locating the non-custodial parent and in
obtaining support or any other payments or property due such applicant
or such child, unless there is good cause for refusing to cooperate.
Good cause determinations are rendered by the AFDC agency, based on
standards prescribed by the Secretary.
Current rules at Sec. 232.12(b) provide that the applicant or
recipient shall provide information, but allow an individual to
``attest to the lack of information, under penalty of perjury.'' Many
unmarried applicants are routinely attesting that they do not have the
basic information needed to locate the father and establish paternity.
As a result, paternity is established in only about 40 percent of these
cases.
To increase the rate of paternity determinations, a number of
States have requested that we tighten the definition of cooperation by
requiring that applicants and recipients furnish specific information
about the identity of the non-custodial parent. Under waivers in their
welfare reform demonstrations, a number of States have modified or
proposed modifications to the cooperation criteria to define
cooperation as providing specific information. Some of these
modifications have subsequently been challenged in court for providing
no exceptions. Advocacy groups have also expressed concern about
changes in the cooperation rules because some caretaker relatives do
not have or cannot be reasonably expected to obtain the necessary
information to identify and locate the non-custodial parents. We are
proposing a regulation which we believe balances these concerns.
Recognizing how important it is to establish paternity or secure
child support at the earliest possible time, we propose to amend the
regulations at Sec. 232.12 and Sec. 235.70 to require that States take
action to secure the applicant's cooperation on paternity and child
support within the application-processing period. Except in
circumstances where the client cannot be reasonably expected to know or
obtain the information, or claims good cause, the applicant will be
required to provide the name and sufficient information necessary to
identify the non-custodial parent.
We propose to amend Sec. 232.12(b) to require States to establish
effective procedures to obtain necessary information to identify the
non-custodial parent. We have specified at the revised
Sec. 232.12(b)(3) that the required cooperation includes providing both
the name of the putative father and other information sufficient to
verify the identity of the person named. The other information which
must be given could include: the social security number, date of birth,
past or present address,
[[Page 37238]]
telephone number, past or present place of employment, past or present
school attended, names and addresses of parents, friends or relatives
able to provide location information, or other information which could
enable service of process on such person. This requirement is intended
to ensure that the mother provide at least the name of the father and
sufficient additional information so that the State or local agency can
verify that the person named is an actual person and not a fictitious
name and to elicit information that can aid the agency in locating the
person. This new specific requirement does not change the general
requirement at Sec. 232.12(b)(1) that the mother must provide any other
verbal or written information, or documentary evidence known to,
possessed by, or reasonably obtainable by the applicant or recipient.
Further, the revised regulation would replace the attestation rule
at Sec. 232.12(b)(3) with a provision that would allow States to
establish criteria for determining cooperation in cases where the
applicant or recipient cannot reasonably be expected to know the
identifying information about the non-custodial parent. We recognize
that the kind and amount of information that a client may have depends
on the nature of the relationship and believe that States are in the
best position to make this determination. We have included an example
of one common situation that the criteria must address--cases where
recipients do not know or have the required information due to a long
lapse of time since contact with the non-custodial parent. This will
allow States to require more than a mere attestation but to accept less
than the required information, as specified by the State, in limited
circumstances. Providing States this flexibility is reasonable since
they are in the best position to develop criteria that respond to their
administrative needs and caseload characteristics. States are
encouraged to elicit and seriously consider the views of client
representatives and advocates when formulating the new criteria.
Section 232.46 prohibits State or local agencies from denying,
delaying or discontinuing assistance pending a good cause
determination. To ensure that clients are protected from delays in
processing applications, we are proposing that this requirement also
apply to the cooperation determination. For example, if the name and
identifying information provided by the applicant cannot be verified
within the application processing timeframe (no later than 45 days from
the filing date or a shorter period as elected by the State) and the
delay is not due to inaction on the part of the applicant, then
benefits must be authorized once other eligibility and payment factors
have been met. This also applies to all application filed under any
State-defined criteria for emergency processing.
So that the non-custodial parent can be located and paternity or
child support action can be initiated right away, we are proposing that
the AFDC agency be required to send a prompt notice to the child
support agency that an application has been filed on behalf of a child
who is deprived of parental support or care due to the continued
absence of a parent. Section 235.70 will be amended to define a
``prompt notice'' as one that is sent to the child support agency
within two working days of the date that the application for AFDC is
filed, rather than the current requirement of within two working days
of when assistance is granted.
We propose that these new cooperation requirements be effective 90
days after publication of the final rule or, for States requiring new
legislation, no later than the first day of the first calendar quarter
beginning after the close of the first legislative session that begins
after the date of the final rule. For purposes of the previous
sentence, in the case of a State that has a 2-year legislative session,
each year of such session shall be deemed to be a separate regular
session of the State legislature. The new requirements will apply to
all applicants after that date, and to current recipients no later than
the next redetermination after that date. Before imposing the new
requirements on recipients, States shall notify recipients in writing
about their responsibilities to provide additional information, the
consequences of failure to cooperate and their rights to claim good
cause and to appeal adverse actions.
For current recipients, we expect States to review the records of
cases where paternity or support has not been established, or the
whereabouts of the non-custodial parent is not known. The purpose of
the review is to determine, based on case situation, whether the
recipient may have additional information or has cooperated under these
new requirements. States should pay particular attention to their
criteria for assessing the recipient's lack of information, based on
the lapse of time or age of a child for whom paternity has not been
established. States may apply the new requirements at any time after
the notice to recipients, but shall apply them no later than the next
redetermination.
Several States have also persuasively argued that the child support
agency, rather than the AFDC agency, should be permitted to make the
good cause and cooperation decisions. Allowing child support staff to
make the decisions may be more efficient because it eliminates delays
caused by the ``back-and-forth'' referrals between child support and
AFDC staff. It also encourages client responsibility and rapport in
dealing with workers who help establish paternity and obtain child
support. We believe these arguments have merit. Although we are not
proposing a regulatory change in this area, States that are interested
in having the child support agency render the good cause and
cooperation decisions are encouraged to request a waiver under section
204 of the Intergovernmental Cooperation Act of 1968.
Under the Intergovernmental Cooperation Act, the Governor or the
appropriate executive of the single State agency may request a waiver
and explain: (1) Why the proposed organizational arrangement is more
effective and efficient within the State government; and (2) how the
objectives of title IV-A will be met by the alternative arrangement
that is being requested (e.g., having the child support agency render
the good cause and cooperation decisions). The formal request for a
waiver, together with the State plan preprint pages (i.e., Section 1.1-
2, page 1 and Attachment 1.1-B) should be submitted to the appropriate
ACF Regional Office for review and approval.
We also want to clarify that no changes are proposed in several
areas related to cooperation. Pursuant to section 402(a)(26) of the
Social Security Act, a failure to cooperate, without good cause, either
at application or subsequently will result in the removal of the
caretaker's needs from the grant. This consequence is not changed.
Likewise, States are still required to inform all applicants or
recipients who fail to cooperate of their right to a fair hearing to
appeal the determination. If an individual fails to cooperate and is
determined ineligible for benefits, but subsequently chooses to
cooperate and takes appropriate action, benefits will be reinstated.
Finally, the current requirements regarding good cause for not
cooperating because it would be ``against the best interests of the
child'' are not changed.
Regulatory Procedures
Executive Order 12866 on Regulatory Planning and Review
Executive Order 12866 requires that regulations be reviewed to
ensure that they are consistent with the priorities
[[Page 37239]]
and principles set forth in the Executive Order. The Department has
determined that these rules are consistent with these priorities and
principles. An assessment of the costs and benefits of available
regulatory alternatives (including not regulating) demonstrated that
the approach taken in the regulation is the most cost-effective and
least burdensome while still achieving the regulatory objectives.
The proposed rule is designed to provide that applicants and
recipients provide sufficient information to establish paternity and
obtain support, and that information be provided on a timely basis--
i.e., before establishing welfare eligibility, if possible. At the same
time, it seeks to both protect cooperative individuals against
unreasonable requirements and prevent unnecessary legal challenges in
the States. Thus, we believe it properly balances our interests in
improving the effectiveness of paternity establishment and child
support efforts against our concern about the burdens imposed both on
governmental agencies and needy families seeking assistance.
The requirement on welfare agencies to make referrals within two
days of application may initially be burdensome in some States or
localities, but we believe that the broad automation of welfare and
child support enforcement programs substantially mitigates any such
burden, and that the two-day requirement is necessary to ensure timely
and effective paternity establishment efforts. Nevertheless, we welcome
specific comments on the administrative burden associated with this
two-day requirement.
Paperwork Reduction Act
This NPRM contains information collection requirements in sections
232.12, 232.46, and 235.70. As required by the Paperwork Reduction Act
of 1995 (44 U.S.C. 3507(d)), the Administration for Children and
Families has submitted a copy of these sections to the Office of
Management and Budget (OMB) for review.
More specifically, sections 232.12 and 232.46 both include State
plan amendments; section 232.12(b) includes information to be provided
to the State welfare agency by the parent seeking assistance; and
section 235.70 revises prompt notice requirements.
One group of respondents to the proposed information collection
requirements is State welfare agencies. These agencies will be required
to revise their State plans to specify: (1) The actions, documents and
information required for cooperation of applicants and recipients--
including what additional information (beyond a name) individuals must
provide in order to establish paternity [at section 232.12(b)(3)]; (2)
the criteria for determining cooperation when individuals cannot
reasonably be expected to know the required identifying information
[also at section 232.12(b)(3)]; and (3) provision of benefits pending a
determination of cooperation or good cause in cases of compliance with
other requirements [at section 232.46]. The State plan changes are
necessary to ensure that States are making necessary changes to improve
the effectiveness of their paternity establishment and child support
efforts, while protecting needy individuals from undue harm and
unreasonable requirements. By requiring specification of these policies
and procedures in the State plans, we help to ensure broad public
access to information on the policies and procedures being implemented
by States and expand the opportunities for public comment on them. To
minimize the burden on respondents, we will be providing preprint pages
for their use. Adding this additional plan language will create a one-
time burden for the 54 State agencies, which we estimate will average 5
hours per State, for a total burden of 270 hours.
We expect State and local welfare agencies implementing these new
plan provisions will also spend additional time collecting, documenting
and inputting information when individuals apply for welfare and, if
needed, when recipients have their benefits redetermined. However, we
believe that the burden of collecting this information up front in the
welfare office should be substantially, if not fully, offset by a
reduced burden on child support and Medicaid agencies. These latter
agencies will face a reduction in their own administrative burdens
because they will be receiving more complete and more useful
information on the cases that are referred from the welfare office.
We estimate that 240,000 applicants per year would be affected by
these additional requirements (160,000 of which would become
recipients). We also estimate that each year about 55,000 recipients
who were previously affected by these requirements and previously
provided sufficient information would be again affected because of the
birth of a new child. Thus, a total of 295,000 applicants and
recipients would be affected on an annual basis.
In addition, over the first couple of years, as these requirements
are implemented, we estimate that 360,000 recipients would be affected
at the time of their first subsequent redetermination. The vast
majority of recipients will only be affected one time--at their first
redetermination following the implementation of the new requirements.
The burden on parents seeking assistance will be more significant,
but the precise impact is difficult to determine. We do not know the
specific policies and procedures the States will put into effect. We
also do not know what percentages of paternity cases are already
providing ``sufficient information'' under existing program rules.
Nevertheless, with these caveats in mind, we estimate that the number
of affected applicants and recipients per year would be 295,000 and the
average additional time required of each of these applicants and
recipients would be 30 minutes (i.e., 0.5 hours). Thus, the total
ongoing impact would be 147,500 hours per annum.
Likewise, we estimate that 360,000 recipients would be affected on
a one-time basis over the first couple of years as the new requirements
are implemented. Assuming a slightly higher hourly burden on these
recipient parents (of 45 minutes, or 0.75 hours, per individual) would
produce a total burden estimate of 270,000 hours.
We do not expect that the overall burden on State and local
agencies associated with the prompt notice requirements will be
affected by this proposed rule.
In summary, therefore, we estimate a net one-time burden on State
and local agencies of 270 burden hours; annual burdens for parents who
are either applicants or recipients with new infants of 147,500 burden
hours; and a one-time burden on recipient parents who are newly subject
to these requirements of 270,000 burden hours.
The Administration for Children and Families (ACF) will consider
comments by the public on these proposed collections of information in:
Evaluating whether the proposed collections are necessary
for the proper performance of the functions of ACF, including whether
the information will have practical utility;
Evaluating the accuracy of ACF's estimate of the burden of
the proposed collections of information, including the validity of the
methodology and assumptions used;
Enhancing the quality, usefulness, and the clarity of the
information to be collected;
Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other
[[Page 37240]]
technology, e.g., permitting electronic submission of responses.
To ensure that public comments are fully understood and have the
maximum effect on the development of final regulations, ACF urges that
each comment clearly identify the specific section or sections of the
regulations at issue and the type of respondent being addressed.
OMB is required to make a decision concerning the collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment is best assured of having its full effect if OMB
receives it within 30 days of publication. This does not affect the
deadline for the public to comment on the proposed regulations. Written
comments to OMB on the proposed information collections should be sent
directly to the following: Office of Management and Budget, Paperwork
Reduction Project, 725 17th Street, NW., Washington, DC 20503, ATTN:
Ms. Wendy Taylor.
Regulatory Flexibility Act
The Regulatory Flexibility Act (Pub. L. 96-354) requires the
Federal government to anticipate and reduce the impact of regulations
and paperwork requirements on small businesses. The Secretary certifies
that these proposed regulations will not have a significant economic
impact on a substantial number of small entities because the primary
impact of these regulations is on State governments and individuals. We
do not believe that any provision will have direct impact on small
businesses or other small entities within the scope of the Regulatory
Flexibility Act and therefore, a regulatory flexibility analysis is not
required.
List of Subjects
45 CFR Part 232
Aid to families with dependent children, Child support, Grant
programs-social programs.
45 CFR Part 235
Aid to families with dependent children, Fraud, Grant programs-
social programs, Public assistance programs.
(Catalog of Federal Domestic Assistance Programs 93.020, Assistance
Payments Maintenance Assistance.)
Dated: June 21, 1996.
Mary Jo Bane,
Assistant Secretary for Children and Families.
Approved: July 1, 1996.
Donna E. Shalala,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, we propose to amend
Chapter II of Title 45 of Code of Federal Regulations as follows:
PART 232--SPECIAL PROVISIONS APPLICABLE TO TITLE IV-A OF THE SOCIAL
SECURITY ACT
1. The authority citation for Part 232 is amended to read as
follows:
Authority: 42 U.S.C. 602, and 1302.
2. Section 232.12 is amended by revising the introductory text of
paragraph (b) and paragraphs (b)(1) and (b)(3).
Sec. 232.12 Cooperation in obtaining support.
* * * * *
(b) The plan shall specify that ``cooperate'' includes any of the
actions reflected in paragraphs (b) (1), (2), (3), or (4) of this
section that are relevant to, or necessary for, the achievement of the
objectives specified in paragraph (a) of this section:
(1) Appearing at an office of the State or local agency or the
child support agency as necessary prior to receipt of benefits (or, if
necessary for recipients, at redetermination) to provide verbal or
written information, or documentary evidence known to, possessed by, or
reasonably obtainable by the applicant or recipient.
(i) An applicant or recipient who knowingly provides false
information shall be subject to prosecution for perjury.
(ii) States shall specify the actions, documents and information
required of applicants and recipients to cooperate in achieving the
objectives specified in paragraph (a).
(2) * * *
(3)(i) As part of the requirement to cooperate in paternity
establishment, providing:
(A) The name of the putative father; and
(B) Sufficient additional information to enable the State agency,
if reasonable efforts were made, to verify the identity of the person
named; including such information as the putative father's social
security number; date of birth; past or present address; telephone
number; past or present place of employment; past or present school
attended; names and addresses of parents, friends or relatives able to
provide location information; or other information which could enable
service of process on such person.
(ii) The State shall establish criteria for determining cooperation
in cases where the individual cannot reasonably be expected to know the
required identifying information about the father (including, but not
limited to, cases where long term recipients do not know the required
information due to a lapse of a long period of time since contact with
the father).
* * * * *
3. Section 232.46 is revised to read as follows:
Sec. 232.46 Granting or continuation of assistance.
The plan shall provide that the State or local agency will not
deny, delay, or discontinue assistance pending a determination of
cooperation or good cause for refusal to cooperate if the applicant or
recipient has complied with the requirements of Secs. 232.12, 232.40(c)
and 232.43 to furnish corroborative evidence and information. This
requirement applies to the 45-day application processing time frame, a
shorter application period as elected by the State and to all
applications filed under any State-defined criteria for emergency
processing.
PART 235--ADMINISTRATION OF FINANCIAL ASSISTANCE PROGRAMS
1. The authority citation for Part 235 continues to read as
follows:
Authority: 42 U.S.C. 603, 616, and 1302.
2. Section 235.70 is amended by revising paragraph (b)(2), removing
paragraph (b)(3), and redesignating paragraph (b)(4) as (b)(3) to read
as follows:
Sec. 235.70 Prompt notice to child support or Medicaid agency.
* * * * *
(b) * * *
(1) * * *
(2) Prompt notice means written notice including a copy of the AFDC
case record, or all relevant information as prescribed by the child
support agency. Prompt notice must also include all relevant
information as prescribed by the State medicaid agency for the pursuit
of liable third parties. The prompt notice shall be provided within two
working days of the filing of the application.
* * * * *
[FR Doc. 96-18116 Filed 7-16-96; 8:45 am]
BILLING CODE 4150-04-M
