[Federal Register Volume 59, Number 246 (Friday, December 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31313]
[[Page Unknown]]
[Federal Register: December 23, 1994]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Parts 301, 302, 303, 304 and 305
RIN-0970-AB40
Child Support Enforcement Program: Paternity Establishment and
Revision of Child Support Enforcement Program and Audit Regulations
AGENCY: Office of Child Support Enforcement (OCSE), ACF, HHS.
ACTION: Final rule.
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SUMMARY: This final rule contains provisions regarding both paternity
establishment and the audit. The paternity establishment provisions
implement the requirements of section 13721 of the Omnibus Budget
Reconciliation Act of 1993 (OBRA '93) signed by the President on August
10, 1993, which amends title IV-D of the Social Security Act (the Act).
These provisions require States to adopt procedures for a simple civil
process for the voluntary acknowledgment of paternity, including early
paternity establishment programs in hospitals. For paternity cases that
remain contested, the statutory provisions require States to adopt a
variety of procedures designed to streamline the paternity
establishment process. These include the use of default orders, a
presumption of paternity based on genetic test results, conditions for
admission of genetic test results as evidence, and expedited decision-
making processes for paternity cases in which title IV-D services are
being provided.
In addition, this final regulation amends the Child Support
Enforcement program regulations governing the audit of State Child
Support Enforcement (IV-D) programs and the imposition of financial
penalties for failure to substantially comply with the requirements of
title IV-D of the Act. This regulation specifies how audits will
evaluate State compliance with the requirements set forth in title IV-D
of the Act and Federal regulations, including requirements resulting
from the Family Support Act of 1988 and section 13721 of OBRA '93. This
final regulation also redefines substantial compliance to place greater
focus on performance and streamlines Part 305 by removing unnecessary
sections.
EFFECTIVE DATE: December 23, 1994. For applicability provisions, see
Supplementary Information Section.
FOR FURTHER INFORMATION CONTACT: Policy Branch, OCSE, specifically:
Andrew Williams, (202) 401-1467 regarding paternity establishment
provisions; Marilyn R. Cohen, (202) 401-5366 regarding expedited
processes; and Lourdes Henry, (202) 401-5440 regarding the audit
regulations.
SUPPLEMENTARY INFORMATION:
Applicability Provisions
1. Paternity Establishment Provisions. The paternity establishment
provisions of these regulations are applicable on and after December
23, 1994, or the statutory effective date as described below, whichever
occurs later. The Federal law provides that the statutory requirements
are effective on the later of: (1) October 1, 1993, or (2) enactment by
the State legislature of all required laws necessary to conform to the
requirements. However, in no event shall the statutory requirements be
effective later than the first day of the first calendar quarter
beginning after the close of the first regular session of the State
legislature that begins after August 10, 1993. In the case of a State
that has a two-year legislative session, each year of such session
shall be deemed to be a separate regular session of the State
legislature.
2. Audit Provisions. The audit provisions of these regulations are
applicable for audits conducted for periods beginning on or after
December 23, 1994.
Paperwork Reduction Act
The information collection requirement regarding submittal of the
State plan preprint page for the new paternity requirements was
approved by the Office of Management and Budget under OMB control
number 0970-0017. Otherwise, this rule does not require information
collection activities and, therefore, no additional approvals are
necessary under the Paperwork Reduction Act.
Statutory Authority
1. Paternity Establishment Provisions. This final rule is published
under the authority of section 466(a) of the Social Security Act (the
Act), as amended by the Omnibus Budget Reconciliation Act of 1993 (OBRA
'93) (Pub. L. 103-66). Section 466(a)(2), as amended, eliminates the
State option for including paternity establishment in expedited
processes, thereby requiring States to include paternity establishment
in expedited processes. Subsection 466(a)(5)(C) requires States to have
laws and procedures for a simple civil process for voluntarily
acknowledging paternity under which the State must provide that the
rights and responsibilities of acknowledging paternity are explained
and ensure that due process safeguards are afforded. Such procedures
must include a hospital-based program for the voluntary acknowledgment
of paternity during the period immediately before or after the birth of
a child. Subsection 466(a)(5)(D) requires States to have laws and
procedures under which the voluntary acknowledgment of paternity
creates a rebuttable, or at the option of the State, conclusive
presumption of paternity, and under which such voluntary acknowledgment
is admissible as evidence of paternity. Subsection 466(a)(5)(E)
requires States to have laws and procedures under which the voluntary
acknowledgment of paternity must be recognized as a basis for seeking a
support order without requiring any further proceedings to establish
paternity.
Subsection 466(a)(5)(F) requires States to have laws and procedures
which provide that (i) any objection to genetic test results must be
made in writing within a specified number of days before any hearing at
which such results may be introduced into evidence, and (ii) if no
objection is made, the test results are admissible as evidence of
paternity without the need for foundation testimony or other proof of
authenticity or accuracy. Subsection 466(a)(5)(G) requires States to
have laws and procedures which create a rebuttable or, at the option of
the State, conclusive presumption of paternity upon genetic testing
results indicating a threshold probability of the alleged father being
the father of the child.
Subsection 466(a)(5)(H) requires States to have laws and procedures
requiring a default order to be entered in a paternity case upon a
showing of service of process on the defendant and any additional
showing required by State law. Section 466(a)(11) requires States to
have laws and procedures under which the State must give full faith and
credit to a determination of paternity made by any other State, whether
established through voluntary acknowledgment or through administrative
or judicial processes. These final regulations are also published under
the general authority of section 1102 of the Act, which requires the
Secretary to publish regulations that may be necessary for the
efficient administration of the functions for which she is responsible
under the Act.
2. Audit Provisions. This final regulation is published under the
authority of sections 1102, 402(a)(27), 452(a)(4), and 403(h) of the
Act. Section 1102 authorizes the Secretary to publish regulations not
inconsistent with the Act which may be necessary to efficiently
administer the Secretary's functions under the Act. Section 402(a)(27)
requires each State to operate a child support program in substantial
compliance with the title IV-D State plan. Section 452(a)(4) requires
an audit of each State IV-D program to assure compliance with title IV-
D requirements at least once every three years (or not less often than
annually in the case of any State which is being penalized, or is
operating under a corrective action plan). Finally, section 403(h)
provides for the imposition of an audit penalty of not less than 1 nor
more than 5 percent of a State's AFDC funding for any State which fails
to substantially comply with title IV-D requirements within the period
of time the Secretary determines to be appropriate for corrective
action.
Background
This final rule contains regulations that: (1) Implement the
paternity establishment provisions of OBRA '93, and (2) revise the
child support enforcement audit regulations. The proposed audit rule
was published September 9, 1993 (58 FR 47417), and the proposed
paternity rule on November 29, 1993 (58 FR 62599), each with 60-day
public comment periods. These two proposed regulations overlapped in
some areas. In particular, the ``credit for providing services''
portion of the proposed audit regulation was affected by changes to
expedited process requirements made by the proposed paternity
regulation. Furthermore, changes to paternity establishment
requirements made by the proposed paternity regulation impacted which
paternity requirements would be audited under the audit regulation.
Because the two proposed regulations were at similar stages of the
regulatory process and because they overlapped in certain areas, we
decided to combine them in this final regulation.
1. Paternity Establishment Provisions. Paternity establishment is a
necessary first step in the child support enforcement process in cases
where a child is born out-of-wedlock. In addition to child support,
paternity establishment may result in other financial benefits for the
child, including Social Security dependents' benefits, pension
benefits, veterans' benefits, and possible rights of inheritance.
Furthermore, paternity establishment may give children social and
psychological advantages and a sense of family heritage, be a first
step in creating a psychological and social bond between father and
child, and provide important medical history information.
The Federal government has long recognized the importance of
paternity establishment. In 1975, by enactment of Title IV-D of the
Social Security Act, Congress required States to establish public child
support enforcement agencies and to provide paternity establishment
services. The Child Support Enforcement Amendments of 1984 (Pub. L. 98-
378) required States to permit paternity to be established until a
child's 18th birthday. The Family Support Act of 1988 (Pub. L. 100-485)
contained several provisions designed to improve paternity
establishment: A performance standard, timeframes for case processing,
enhanced funding (90 percent 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 expansion of the requirement
permitting paternity establishment to 18 years of age.
Partly as a result of these Federal efforts, the number of
paternities established each year by the IV-D program has increased
substantially from about 270,000 in FY 1987 to more than 553,000 in FY
1993--an increase of over 100 percent in just six years. However, the
percentage of children born out-of-wedlock also continues to increase.
In 1991, almost 30 percent of American children, over 1.2 million
children, were born to unmarried mothers. Currently, as reported by
State agencies, paternity is only established for about one-sixth of
the children who need it per year. Even in cases where paternity is
established, the process is often lengthy and adversarial in nature.
Therefore, the President and Congress decided to further reform the
system through changes to title IV-D in the OBRA '93. The
Administration proposed the new paternity requirements as an initial
step in the President's efforts to improve the child support
enforcement program. While this rule is based on existing law, it
serves as a foundation for additional reforms proposed by the
President's Welfare Reform bill.
The amended statute and these implementing regulations are intended
to increase both the number of paternities established for children
born out-of-wedlock and the timeliness with which paternity
establishment is accomplished. In particular, these provisions will
increase the number of paternities established by voluntary
acknowledgment. However, some cases will remain contested, and these
reforms should expedite the process for resolving those cases as well.
Many of these reforms are based on innovative State practices and
recommendations of the U.S. Commission on Interstate Child Support.
Congress created the Interstate Commission as part of the Family
Support Act of 1988 to recommend ways of improving the interstate
establishment and enforcement of child support awards. In 1992, the
Commission issued its comprehensive final report to the Congress which
contained numerous recommendations, including recommendations for
improving paternity establishment in both interstate and intrastate
cases.
Because Congress added the newly-mandated practices to section
466(a) of the Act, they are requirements which States must meet as a
condition of State plan approval under section 454(20) of the Act.
These regulations add the new State plan requirements to 45 CFR 302.70.
Each State's title IV-D plan must be approved for the State to receive
Federal financial participation in the operation of its Child Support
Enforcement program.
2. Audit Provisions. As a result of the enactment of the Child
Support Enforcement Amendments of 1984, OCSE published final audit
regulations on October 1, 1985, which governed the audits of State IV-D
programs beginning in FY 1984. Section 452(a)(4) of the Act and
implementing regulations require that OCSE conduct audits of the
effectiveness of State Child Support Enforcement programs at least once
every three years; specify that OCSE use a substantial compliance
standard to determine whether each State has an effective IV-D program;
provide that any State found not to have an effective IV-D program in
substantial compliance with the requirements of title IV-D of the Act
be given an opportunity to submit a corrective action plan and, upon
approval by OCSE, to take the corrective action necessary to achieve
substantial compliance with those requirements; provide for the use of
a graduated penalty of not less than 1 nor more than 5 percent of the
Federal share of a State's Aid to Families with Dependent Children
(AFDC) program funds if a State is not in substantial compliance; and
specify the period of time during which a penalty is effective.
On August 4, 1989, a final rule, Standards for Program Operations,
was published (54 FR 32284) to implement the requirements of sections
121 and 122 of the Family Support Act. Specifically, this final rule
revised 45 CFR parts 302 and 303 to specify standards for processing
child support enforcement cases and timeframes for distributing child
support collections under title IV-D of the Act. States were required
to meet these standards beginning October 1, 1990.
With regard to other Family Support Act requirements, on May 15,
1991, a final rule was published which implemented the requirements
governing $50 pass-through payments, guidelines for setting child
support awards, mandatory genetic testing, paternity establishment and
laboratory testing (56 FR 22335). The requirements governing immediate
wage withholding, review and adjustment of support obligations and
monthly notice of support collections were published on July 10, 1992
(57 FR 30658). A final rule was published on November 19, 1992 (57 FR
54515) to clarify timeframes for processing child support collections.
Additional review and adjustment requirements were published December
28, 1992 (57 FR 61559).
As a result of the passage of time, the child support provisions of
the Family Support Act and OBRA '93, and the necessary changes to
program regulations, we reexamined the audit process and regulations
and developed this final regulation. In doing so, we considered the
impact of the new requirements on States and our experience with the
audit process to date. We considered comments received in response to
our notice of proposed rulemaking published September 9, 1993 (58 FR
47417).
Furthermore, we considered the concerns that many States and other
groups have expressed about the current audit process. First, there is
a concern that the scope, complexity, and length of the audit is
expanding. OCSE audits cover numerous criteria and sub-criteria. The
child support provisions of the Family Support Act of 1988 add to the
complexity of the support enforcement program, and hence the audit
process, by significantly expanding the number of criteria to be
reviewed. Partly as a result of this growing scope and complexity, it
takes an increasingly greater amount of time and effort to conduct
audits. This may cause delays in obtaining results and in performing
audits in other States. In addition, although service delivery is
already the primary focus of the audit (i.e., the 75 percent case
action standard), there is a concern that the audit should focus more
on outcomes and results. Focusing more on outcomes and results,
including the timeliness of providing services, would allow the audit
to better measure State program performance.
In response to concerns about the expanding scope of the audit, we
have redefined substantial compliance to focus on certain criteria: (1)
Service-related criteria that a significant number of States have
failed to comply with in the past; and (2) new or newly-revised
criteria. Eliminating certain administrative or procedural criteria and
focusing on service-related criteria to the extent possible will
produce a more results-oriented audit. The audit process is not the
sole means through which State program development and compliance is
determined. OCSE uses program reviews, the State plan approval process,
the program audit process, and the audit resolution and tracking system
to review and monitor State compliance and performance.
This final regulation also specifies how audits would evaluate
State compliance with the standards for program operations as well as
other requirements mandated by the Family Support Act of 1988 and
paternity establishment requirements of OBRA '93 by setting forth new
and revised audit criteria and processes. The rule combines related
requirements into groupings, and streamlines part 305 by removing
unnecessary sections. The requirements in this final regulation are
effective for audits conducted for periods beginning on or after
December 23, 1994.
Description of Regulatory Provisions
1. Paternity Establishment Provisions.
Required State Laws--Section 302.70(a)
Section 466(a) of the Act requires a State to have laws that
require the use of these new paternity procedures. Consistent with the
rules implementing the Family Support Act requirements, a State may
comply by issuing regulations, procedures, or court rules, instead of
enacting laws, if they have the same force and effect under State law
on the parties to whom they apply.
To simplify the regulatory language, we have deleted effective
dates of IV-D State plan requirements previously listed in
Sec. 302.70(a).
Simple Civil Process for Voluntarily Acknowledging Paternity--Sections
302.70(a)(5)(iii) and 303.5(a)
This rule implements the requirements of new section 466(a)(5)(C)
of the Act by amending Sec. 302.70(a)(5) to add new paragraph (iii).
This provision requires each State to have laws and procedures for a
simple civil process for voluntarily acknowledging paternity. Under
such process, the State must provide that the rights and
responsibilities of acknowledging paternity are explained and ensure
that due process safeguards are afforded.
The statute requires that the voluntary acknowledgment procedures
include hospital-based programs. However, because the statute includes
hospital-based programs as part of a broader requirement for voluntary
acknowledgment procedures, we believe Congress intended these
procedures to encompass more than just hospital-based programs.
Therefore, new Sec. 302.70(a)(5)(iii)(B) requires that the procedures
include a process for voluntarily acknowledging paternity outside of
hospitals.
IV-D Agency Activity. To reflect the newly-mandated procedures for
the voluntary acknowledgment of paternity, Sec. 303.5(a) requires, for
all cases referred to the IV-D agency or applying for services under
Sec. 302.33 in which paternity has not been established, the IV-D
agency must, as appropriate: (1) Provide an alleged father the
opportunity to voluntarily acknowledge paternity, in accordance with
Sec. 302.70(a)(5)(iii), and (2) attempt to establish paternity by legal
process under State law. (The IV-D agency is not required to take
additional action to establish paternity if, under State law, the
acknowledgment itself establishes paternity).
Hospital-Based Paternity Establishment Programs--Sections 301.1,
302.70(a)(5)(iii)(A), 303.5 (g) and (h), 304.20(b)(2), and 304.23(d)
In enacting OBRA '93, the President and Congress recognized the
importance of establishing a child's paternity as close to the time of
birth as possible, by requiring hospital-based programs for obtaining
voluntary acknowledgments. New Sec. 302.70(a)(5)(iii)(A) implements
section 466(a)(5)(C) of the Act by requiring each State to have laws,
regulations, and/or binding procedures for a hospital-based program for
the voluntary acknowledgment of paternity during the period immediately
before or after the birth of a child. At a minimum, new
Sec. 302.70(a)(5)(iii)(A) requires State law, regulation, and/or
binding procedure to compel all public and private birthing hospitals
to participate in hospital-based programs, as defined in
Sec. 303.5(g)(2). (However, under Sec. 302.70(d), a State may apply for
an exemption from enacting a law, regulation, or procedure providing
for a hospital-based program, if the State can assure that a hospital-
based program otherwise meeting Federal requirements is implemented in
every birthing hospital in the State by January 1, 1995 (or later if
Federal law governing the effective date allows) without the necessity
of enacting binding laws or regulations). We define ``birthing
hospital'' at Sec. 301.1 as a hospital that has an obstetric care unit
or that provides obstetric services, or a birthing center associated
with a hospital.
Section 303.5(g) describes the State's responsibilities in
implementing the hospital-based program. To accommodate divergent State
practices, the State as a whole, rather than the IV-D agency in
particular, is responsible for meeting the hospital-based program
requirements at Sec. 303.5(g). This approach in no way relieves the
State of the responsibility to meet Federal requirements as a condition
of IV-D State plan approval.
Section 303.5(g)(1) requires the State to establish, in cooperation
with hospitals, a hospital-based program in every public and private
birthing hospital. States must have laws, regulations, and/or binding
procedures in place on October 1, 1993 (or if legislation is required,
the beginning of the first calendar quarter after the close of the
first regular session of the State legislature that began after August
10, 1993). The programs must be operational in birthing hospitals
statewide no later than January 1, 1995 (unless Federal law governing
the effective date gives the State additional time; i.e., unless the
State's first regular legislative session beginning after August 10,
1993 precludes enactment by January 1, 1995).
Elements of a Hospital-Based Program. Section 303.5(g)(2) defines a
hospital-based program by listing the services and functions such a
program must, at a minimum, provide during the period immediately
before or after the birth of a child to an unmarried woman in the
hospital. These services are based on information provided by States
that previously implemented hospital-based programs. The State must
ensure, in cooperation with the hospitals, that the program performs
all of these functions.
Each hospital-based program must provide voluntary acknowledgment
services to unmarried mothers and alleged fathers. The program must
provide services regardless of the child's public assistance status or
whether an application has been filed for IV-D child support services.
Under Sec. 303.5(g)(2)(i), a hospital-based program provides to
both the mother and alleged father, if he is present in the hospital:
(A) Written materials about paternity establishment, (B) the forms
necessary to voluntarily acknowledge paternity, (C) a written
description of the rights and responsibilities of 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. In a case where the
alleged father is not present at the hospital, the hospital-based
program should provide to the unmarried mother the services described
in Sec. 303.5(g)(2)(i).
Under Sec. 303.5(g)(2)(ii), a hospital-based program provides the
unmarried mother and alleged father, if he is present, the opportunity
to voluntarily acknowledge paternity in the hospital. A hospital-based
program, under Sec. 303.5(g)(2)(iii), must afford due process
safeguards, as required by State law and procedure.
Under Sec. 303.5(g)(2)(iv), a hospital-based program must forward
completed acknowledgments or copies to the entity designated under
Sec. 303.5(g)(8). This will ensure that the IV-D agency has access to
and can use the acknowledgments in cases that become IV-D cases.
Under Sec. 303.5(g)(3), a hospital-based program need not provide
services related to acknowledging paternity in cases where the mother
or alleged father is a minor or a legal action (e.g., adoption) is
already pending, if provision of such services is precluded by State
law.
Under Sec. 303.5(g)(4), the State must require that a voluntary
acknowledgment obtained through a hospital-based program be signed by
both parents, and that the parents' signatures be authenticated by a
notary or witness(es).
Section 303.5(g)(5) requires the State to provide to all public and
private birthing hospitals in the State written materials about
paternity establishment, forms necessary to voluntarily acknowledge
paternity, and copies of a written description of the rights and
responsibilities of acknowledging paternity. Hospital-based programs
will then distribute these materials and forms to unmarried mothers and
alleged fathers in accordance with Sec. 303.5(g)(2)(i). While not a
requirement, States may also wish to provide applications for, and
materials relating to, IV-D services to hospitals for distribution to
maternity patients or other interested parties.
Section 303.5(g)(6) requires the State to provide staff training,
guidance, and written instructions regarding the voluntary
acknowledgment of paternity as necessary to operate the hospital-based
program. Section 303.5(g)(7) requires the State to assess each birthing
hospital's program on at least an annual basis.
Section Sec. 303.5(g)(8) requires the State to designate an entity
to which hospital-based programs must forward completed voluntary
acknowledgments or copies. Under State procedures, this 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).
Under Sec. 303.5(h), in IV-D cases needing paternity establishment, the
IV-D agency must determine if identifying information about a voluntary
acknowledgment has been recorded in the statewide database, in
accordance with Sec. 303.5(g)(8).
FFP Availability for Hospital-Based Programs. This regulation
expands Federal financial participation (FFP) availability for certain
costs associated with hospital-based programs. Under
Sec. 304.20(b)(2)(vi), FFP is available for payments of up to $20 to
birthing hospitals and other entities that provide prenatal or birthing
services for each voluntary acknowledgment obtained pursuant to an
agreement with the IV-D agency. Section 304.20(b)(2)(vii) makes FFP
available for the costs of developing written and audiovisual materials
about paternity establishment and forms necessary to voluntarily
acknowledge paternity and providing such materials to birthing
hospitals and other entities that provide prenatal or birthing
services. Section 304.20(b)(2)(viii) makes FFP available for reasonable
and essential short-term training regarding voluntary acknowledgment of
paternity associated with a State's hospital-based program as defined
by Sec. 303.5(g)(2). This rule also modifies Sec. 304.23(d), which
limits the availability of FFP for training to specific circumstances,
to allow for FFP as provided for in Sec. 304.20(b)(2)(viii).
Effect of Voluntary Acknowledgment: Presumption of Paternity;
Admissible as Evidence--Section 302.70(a)(5)(iv)
This rule implements the requirements of section 466(a)(5)(D) of
the Act by adding Sec. 302.70(a)(5)(iv). This provision requires each
State to have laws and procedures under which the voluntary
acknowledgment of paternity creates a rebuttable or, at the option of
the State, conclusive presumption of paternity, and under which such
voluntary acknowledgment is admissible as evidence of paternity. It is
designed to ensure that voluntary acknowledgments are meaningful and
used to expedite paternity establishment in every State.
A rebuttable presumption shifts the burden of proof to the presumed
father to disprove a paternity allegation. A conclusive presumption has
the same effect as a judgment for paternity. Even if a State chooses to
adopt a conclusive presumption, it may provide for conditions under
which the presumption, like a judgment, can be challenged and
potentially overturned (e.g., in cases where there is evidence that the
acknowledgment was obtained by fraud or coercion, or where signatures
were forged).
Conditions for Admission of Genetic Test Results as Evidence--Section
302.70(a)(5)(v)
In recent years, scientific advancements in genetic testing have
revolutionized the paternity determination process in contested cases.
Genetic tests can not only produce exclusionary evidence eliminating a
man from consideration as the biological father, but can also provide
convincing evidence reflecting the high probability that a particular
man is the alleged father (inclusionary results), leaving little or no
doubt as to whether an alleged father is actually the biological
father. Statutory or case law in virtually all States provides that
genetic test results are admissible as evidence. However, in some
States, the process for admitting such evidence can be cumbersome.
Section 302.70(a)(5)(v), which implements section 466(a)(5)(F) of
the Act, should improve the process for admitting test results in legal
proceedings. It requires each State to have laws and procedures which
provide that any objection to genetic testing results must be made in
writing within a specified number of days before any hearing at which
such results may be introduced into evidence. Further, laws and
procedures must specify that if no objection is made, a written report
of the test results is admissible as evidence of paternity without the
need for foundation testimony or other proof of authenticity or
accuracy.
Presumption of Paternity Based on Genetic Test Results--Section
302.70(a)(5)(vi)
Section 466(a)(5)(G) of the Act and implementing regulation at
Sec. 302.70(a)(5)(vi) require each State to have laws and procedures
which create a rebuttable or, at the option of the State, conclusive
presumption of paternity based on genetic testing results which
indicate a threshold probability of the alleged father being the father
of the child. A presumption of paternity should expedite paternity
resolution.
Voluntary Acknowledgment Is Basis for Seeking Support Order--Sections
302.70(a)(5)(vii) and 303.4(f)
We are implementing section 466(a)(5)(E) of the Act by adding
Sec. 302.70(a)(5)(vii). This provision requires each State to have laws
and procedures under which a voluntary acknowledgment must be
recognized as a basis for seeking a support order without requiring any
further proceedings to establish paternity. As a result, filing a
petition seeking a support order and information-gathering necessary
for support order establishment should begin in a IV-D case as soon as
a voluntary acknowledgment is obtained. This should help ensure that
the child receives financial support at the earliest possible date.
To reflect that a voluntary acknowledgment must serve as sufficient
basis to seek establishment of a support order, we amended Sec. 303.4
by adding paragraph (f). Section 303.4(f) requires the IV-D agency, in
cases where a support order has not been established, to seek a support
order based on a voluntary acknowledgment in accordance with
Sec. 302.70(a)(5)(vii). Therefore, the IV-D agency must gather
information and establish support administratively, by consent, or by
filing a petition for support order establishment upon receipt of a
voluntary acknowledgment of paternity.
Default Orders--Sections 302.70(a)(5)(viii) and 303.5(f)
We have implemented the requirements of new section 466(a)(5)(H) of
the Act by adding Sec. 302.70(a)(5)(viii). Under this provision, each
State must have laws and procedures requiring that a default order be
entered in a paternity case upon a showing that process has been served
on the defendant in accordance with State law, that the defendant has
failed to respond to service in accordance with State procedures, and
any additional showing required by State law. State law must require,
not simply allow, tribunals, upon proper motion, to enter default
orders under these conditions.
To reflect the new default order requirement, we added
Sec. 303.5(f). It requires the IV-D agency to seek entry of a default
order by the court or administrative authority in a paternity case by
showing that process has been served on the defendant, that the
defendant has failed to respond to service in accordance with State
procedures, and any additional showing required by State law, in
accordance with Sec. 302.70(a)(5)(viii).
Full Faith and Credit for Paternity Determinations--Section
302.70(a)(11)
We implemented the requirements of section 466(a)(11) of the Act by
adding Sec. 302.70(a)(11). This provision requires each State to have
laws and procedures under which the State must give full faith and
credit to a determination of paternity made by any other State, whether
established through voluntary acknowledgment or through administrative
or judicial processes.
This provision should improve interstate processing since a State,
upon receiving a paternity determination made by another State, must
recognize such determination and move forward with the next step (e.g.,
support order establishment or enforcement) without questioning or
reopening the paternity issue.
Expedited Processes for Paternity Establishment--Sections 302.70(a)(2),
303.4(d), and 303.101
The Child Support Enforcement Amendments of 1984 (Pub. L. 98-378)
required States to have an expedited process within their judicial or
administrative systems for obtaining and enforcing child support
orders. At the option of the State, the expedited processes could also
include actions for establishment of paternity. Expedited process
timeframes, established by regulation, have been effective in prompting
States to adopt expedited administrative and quasi-judicial processes
for establishing and enforcing support orders. Prior to enactment of
OBRA '93, according to the IV-D State plans, 19 States had also opted
to extend expedited processes to paternity establishment. However, in
many jurisdictions the paternity establishment process, particularly in
contested cases, is still protracted.
To address this problem, OBRA '93 amended section 466(a)(2) of the
Act to mandate use of expedited processes for establishing paternity.
We have implemented this new provision by revising Sec. 302.70(a)(2) to
require each State to have laws and procedures for expedited processes
to establish paternity, in addition to the previously mandated
expedited processes for establishing and enforcing child support
orders.
As specified in section 466(a)(2) of the Act, expedited processes
are defined in Federal regulations. The provision of the Act regarding
expedited processes for support order establishment and enforcement was
previously implemented by Sec. 303.101. This rule amends these
regulations to require expedited processes for paternity establishment.
It also deletes Sec. 303.101(b)(3), which gave States the option of
including paternity establishment in their expedited processes, since
use of an expedited process for handling paternity cases is now
mandatory.
As with the expedited processes for support order establishment and
enforcement, under expedited paternity establishment processes both
intrastate and interstate cases must be included as required by
Sec. 303.101(b)(1).
Paternity and Support Establishment Timeframe. The regulatory
definition of expedited process is based on timeframes--States must
process IV-D cases within specified timeframes in order to be
determined to be operating an expedited process. Because OBRA '93
mandates the expansion of expedited processes to include paternity
establishment, and because the regulatory definition of expedited
process is based on timeframes, we reexamined previously-existing
expedited process and program standard timeframes.
Although paternity establishment was not included in expedited
process prior to enactment of OBRA '93, there were two timeframes
governing paternity establishment under standards for program
operations (see chart below). First, former Sec. 303.5(a)(1) was a
``front-end'' timeframe governing IV-D agency activity. It allowed the
IV-D agency 90 calendar days, from the date of locating the alleged
father, to file for paternity establishment or serve process (or
document unsuccessful efforts), whichever occurred later in accordance
with State procedures. Second, former Sec. 303.5(a)(2) was a ``back-
end'' timeframe governing court or administrative agency activity. It
allowed one year, from successful service of process or the child
becoming six months of age, to establish paternity or exclude the
alleged father.
There were also two sets of timeframes for support order
establishment. First, there was a ``front-end'' timeframe at former
Sec. 303.4(d) for IV-D agency activity. It allowed the IV-D agency 90
calendar days, from establishing paternity or locating the obligor, to
establish a support order (by consent) or complete service of process
necessary to commence proceedings to establish a support order (or
document unsuccessful efforts). Second, there were expedited process
timeframes for support order establishment at previous
Sec. 303.101(b)(2) governing activity within a State's quasi-judicial
or administrative agency. Expedited process timeframes were designed to
ensure that cases were adjudicated expeditiously in the State's court
or administrative system. Under the previous definition of expedited
process, a State's process or combination of processes was considered
``expedited'' when the State completed support order establishment from
service of process to disposition in 90 percent of all cases in 3
months, 98 percent in 6 months, and 100 percent in 12 months. These
timeframes also applied to enforcement actions.
Former Timeframes for Paternity and Order Establishment
----------------------------------------------------------------------------------------------------------------
Action needed Reg cite Starting point Time period Ending point
----------------------------------------------------------------------------------------------------------------
Establish Paternity 303.5(a)(1)............ Locate............ 90 calendar days.. File for paternity or SOP,
whichever later.
303.5(a)(2)............ SOP or child's 1 year............ Paternity established or
sixth month. man excluded.
Establish Support 303.4(d)............... Paternity 90 calendar days.. Support order established
Order. establishment or or SOP.
locate.
303.101(b) (2)......... Service of process 90% in 3 months; Support order established/
98% in 6 months; recorded or action
100% in 1 year. dismissed.
----------------------------------------------------------------------------------------------------------------
SOP=Service of process; if agency is unable to serve process, it must document unsuccessful efforts.
This rule replaces the timeframes for paternity and support order
establishment at Secs. 303.4(d), 303.5(a)(1), 303.5(a)(2), and
303.101(b)(2) with two new timeframes (see chart below) at
Secs. 303.4(d) and 303.101(b)(2)(i). Both of the new timeframes apply
to IV-D cases needing support order establishment, regardless of
whether paternity has been established.
New Timeframes for Establishment of Support Order and, if Necessary, Paternity
----------------------------------------------------------------------------------------------------------------
Action needed Reg cite Starting point Time period Ending point
----------------------------------------------------------------------------------------------------------------
Establish Support 303.4(d)............... Locate............ 90 calendar days.. Support order established
Order and, if or SOP.
Necessary,
Paternity.
303.101(b)(2)(i)....... Service of process 75% in 6 months; Support order established/
90% in 12 months. recorded or action
dismissed.
----------------------------------------------------------------------------------------------------------------
SOP=Service of process; if agency is unable to serve process, it must document unsuccessful efforts.
The new ``front-end'' timeframe at Sec. 303.4(d) requires the IV-D
agency, within 90 calendar days of locating the alleged father or
noncustodial parent, to establish a support order or complete service
of process necessary to commence proceedings to establish a support
order and, if necessary, paternity (or document unsuccessful attempts
to serve process, in accordance with the State's guidelines defining
diligent efforts under Sec. 303.3(c)).
In addition, a State must meet the new ``back-end'' timeframe at
Sec. 303.101(b)(2)(i) in order to have an expedited process for
paternity establishment and support order establishment. This timeframe
requires that actions to establish support orders be completed from the
date of service of process to the time of disposition within the
following timeframes: (A) 75 percent in 6 months; and (B) 90 percent in
12 months.
We define ``disposition'' in regulation at Sec. 303.101(b)(2)(iv)
as the date on which a support order is officially established and/or
recorded or the action is dismissed. This definition codifies policy
previously stated at OCSE-AT-88-19. However, we have changed the word
``obligation'' (contained in previous policy and the proposed rule) to
``order'', at the suggestion of a commenter. Parents have the
obligation to support their children from the time of birth; the
establishment or recording of a child support order should be used to
measure case disposition.
Under Sec. 303.101(b)(2)(iii), for purposes of the expedited
process timeframe for paternity and support order establishment, in
cases where the IV-D agency uses long-arm jurisdiction and disposition
occurs within 12 months of the date of service of process, the case may
be counted as successful within the 6 month tier of the timeframe,
regardless of when disposition occurs within the 12 months. Crediting
the State's efforts to keep the proceeding as a one-State case in this
way should encourage States to rely upon long-arm jurisdiction to the
greatest extent possible.
Unlike the previous paternity establishment timeframe at former
Sec. 303.5(a)(2), the new expedited process timeframe begins with
service of process, regardless of the age of the child.
Enforcement Timeframes. The expedited process timeframe at
Sec. 303.101(b)(2)(i) does not apply to enforcement. Instead,
Sec. 303.101(b)(2)(ii) specifies that in IV-D cases where a support
order has been established, actions to enforce the support order must
be taken within the timeframes specified in Secs. 303.6(c)(2) and
303.100. States will be required to meet the existing timeframe at
Sec. 303.6(c)(2) for all enforcement actions other than income
withholding and State/Federal income tax refund offset. The timeframe
at Sec. 303.6(c)(2) requires enforcement action within no more than 30
calendar days (if service of process is not needed) or 60 calendar days
(if service of process is needed) of identifying a delinquency or other
support-related noncompliance, or location of the absent parent,
whichever is later. States will also be required to meet the existing
timeframes at Sec. 303.100 in income withholding cases.
Judges as Presiding Officers. By deleting the phrase ``and under
which the presiding officer is not a judge of the court'' in former
Sec. 303.101(a), we have eliminated the requirement which precluded
using a judge as a presiding officer in carrying out expedited
processes. With this change, expedited processes are now defined in
Sec. 303.101(a) as administrative or expedited judicial processes, or
both, which increase effectiveness and meet processing timeframes.
Other Changes. We amended the safeguards required under
Sec. 303.101(c) to include paternity establishment as well as support
order establishment and enforcement. We revised Sec. 303.101(c)(1) to
require that paternities as well as support orders established via
expedited process, by means other than judicial process, must have the
same effect under State law as paternities and orders established by
full judicial process within the State. We also revised
Sec. 303.101(c)(3) to require that the parties be provided a copy of
the voluntary acknowledgment of paternity, paternity determination,
and/or support order. The remaining safeguards are unchanged except
that they now also apply to expedited paternity processes: The due
process rights of the parties involved must be protected as required by
Sec. 303.101(c)(2); there must be written procedures for ensuring the
qualification of presiding officers as required by Sec. 303.101(c)(4);
recommendations of presiding officers may be ratified by a judge as
allowed by Sec. 303.101(c)(5); and action taken may be reviewed under
the State's generally applicable judicial procedures as provided by
Sec. 303.101(c)(6).
We amended the functions of presiding officers in Sec. 303.101(d)
to cover paternity establishment as well as support order establishment
and enforcement. Section 303.101(d)(2) requires presiding officers to
evaluate evidence and make recommendations to establish paternity as
well as to establish and enforce orders. Section 303.101(d)(3) requires
presiding officers to accept voluntary acknowledgments of paternity, in
addition to voluntary acknowledgments of support liability and
stipulated agreements setting the amount of support to be paid.
Presiding officers will continue to have authority to enter default
orders. However, we amended this requirement at Sec. 303.101(d)(4) to
reflect the language of the default order provision in new
Secs. 302.70(a)(5)(viii) and 303.5(f). As amended, Sec. 303.101(d)(4)
requires that the functions of presiding officers include entering
default orders upon showing that process has been served on the
defendant in accordance with State law, that the defendant has failed
to respond to service in accordance with State procedures, and any
additional showing required by State law. This default order provision
applies to paternity as well as support order establishment cases. We
also added a new function for presiding officers in paternity cases at
Sec. 303.101(d)(5)--ordering genetic tests in contested paternity cases
in accordance with Sec. 303.5(d)(1).
Furthermore, we amended Sec. 303.101(e) regarding exemptions from
expedited process to recognize that expedited process now includes
paternity establishment. Under the amended provision, a State is able
to request an exemption from any of the expedited process requirements
for a political subdivision on the basis of the effectiveness and
timeliness of paternity establishment, support order issuance or
enforcement within the political subdivision in accordance with the
provisions of Sec. 302.70(d).
2. Audit Provisions. This final regulation amends Part 305 in
several ways: by revising the evaluation criteria to reflect
requirements in 45 CFR parts 302 and 303 in effect prior to the Family
Support Act that the States often had not substantially complied with
in the past; by adding criteria to reflect the enactment of the Family
Support Act of 1988 including those governing standards for program
operations, guidelines for setting child support awards, immediate wage
withholding, and review and adjustment of child support orders; by
eliminating duplicative regulations from part 305; by adding evaluation
criteria to reflect the paternity establishment provisions of the OBRA
'93; and, by redefining criteria that States must meet to be determined
to be in substantial compliance.
General Definitions--Sec. 301.1
For consistency with the changes to part 305, the definition of
``procedures'' is removed from Sec. 305.1(b) and placed in alphabetical
order in Sec. 301.1.
Scope of Part 305--Sec. 305.0
Regulations at Sec. 305.0 describe 45 CFR part 305 section by
section. Sections 305.10 through 305.13 describe the audit; Sec. 305.20
defines an effective program for purposes of an audit; Sec. 305.98 sets
forth performance indicators; Sec. 305.99 governs the notice and
corrective action period; and Sec. 305.100 governs the imposition of a
penalty.
Previously, sections 305.21 through 305.57 set forth criteria used
to determine program effectiveness. However, Secs. 305.21 through
305.57 merely cross-referenced and/or restated the requirements in the
corresponding State plan regulations in part 302 and related program
requirements in part 303. Accordingly, we have removed Secs. 305.21
through 305.57 and, revised Sec. 305.20 which lists administrative
criteria States must meet and service-related criteria for which States
must have and use required procedures in a specified percentage of the
cases reviewed for each criterion. In addition, we have revised
Sec. 305.20 to permit the States, when timeframes are not met, to
receive credit when the necessary service is provided during the audit
period. Also, Sec. 305.20 cross-references relevant State plan and
program regulations contained in parts 302 and 303.
Accordingly, Sec. 305.0 is revised to state: Sections 305.10
through 305.13 describe the audit; Sec. 305.20 sets forth audit
criteria and subcriteria OCSE will use to determine program
effectiveness and defines an effective program for purposes of an
audit; Sec. 305.98 sets forth the performance indicators OCSE will use
to determine State IV-D program effectiveness; Sec. 305.99 provides for
the issuance of a notice and corrective action period if a State is
found by the Secretary not to have an effective IV-D program; and
Sec. 305.100 provides for the imposition of a penalty if a State is
found by the Secretary not to have had an effective program and to have
failed to take corrective action and achieve substantial compliance
within the period prescribed by the Secretary.
Definitions--Sec. 305.1
As previously discussed, the definition of ``procedures'' in
Sec. 305.1(b) was moved to Sec. 301.1. Section 305.1 continues to
provide that the definitions found in Sec. 301.1 apply to part 305.
Timing and Scope of the Audit--Sec. 305.10
For consistency with the changes made elsewhere in part 305,
Sec. 305.10(a) is revised to state that the audit of each State's
program will be a comprehensive review using the criteria prescribed in
Secs. 305.20 and 305.98. As a technical change, the title ``Standards
for Audit of Governmental Organizations, Programs, Activities, and
Functions'' in paragraph (c)(2) is changed to ``Government Auditing
Standards.''
State Comments--Sec. 305.12
Previous regulations at Sec. 305.12(a) provided for informing the
IV-D agency during the audit entrance conference of those political
subdivisions of the State that would be audited and making preliminary
arrangements for personnel and information to be made available. We
replaced this provision with more general language indicating that any
necessary arrangements for conducting the audit will be made at the
audit entrance conference. However, no change in current practice, or
in the information provided to States, is intended or anticipated as a
result of this change. States will continue to be notified in the
letter they receive from OCSE in the quarter preceding commencement of
the audit of all information necessary to prepare for the audit.
Effective Support Enforcement--Sec. 305.20
Previous regulations at Sec. 305.20 set forth the criteria which
are used to measure State compliance with the requirements of title IV-
D of the Act.
1. Revised definition of substantial compliance. Section 305.20
redefines the criteria that States must meet to be determined to be in
substantial compliance. As part of this final rule, Sec. 305.20 is
changed to address regulatory requirements including non-AFDC Medicaid
and former AFDC cases, program standards and timeframes requirements,
other program requirements under Pub. L. 100-485 (e.g., guidelines for
setting child support awards, review and adjustment of child support
orders, monthly notice of support collections, mandatory genetic
testing, and immediate wage withholding) and paternity establishment
requirements under OBRA '93.
While program regulations specify how States must operate IV-D
programs to be in compliance with State plan requirements and what
program expenditures may qualify for Federal funding, audit regulations
specify those requirements which must be met in order for a State to be
determined to be in substantial compliance with the requirements of
title IV-D of the Act and to avoid fiscal penalties. We have redefined
substantial compliance to focus on certain criteria: (1) Service-
related criteria with which a significant number of States have failed
to comply in the past; and (2) new or newly-revised criteria. Focusing
on these criteria eliminates many of the administrative or procedural
criteria which were previously part of substantial compliance
determinations and which are currently being met, thereby making the
audit more results-oriented. As previously stated, the audit process is
not the sole means through which State program development and
compliance is determined. OCSE uses program reviews, the State plan
approval process, the program audit process, and the audit resolution
and tracking system to review and monitor State compliance and
performance.
a. Ten percent materiality test. First, the determination of
substantial compliance includes criteria that, based on past audits,
many States have failed. In selecting these criteria, we specifically
examined initial and annual audits conducted under the prior audit
regulations, and determined the number of States that had failed each
existing criterion compared to the number of audit reports issued since
that criterion became effective.
Therefore, the determination of substantial compliance includes
examination of those criteria which, in general, more than ten percent
of the States had failed during that period.
The ten percent test is consistent with the auditing concept of
``materiality.'' According to auditing theory, an audit should be able
to detect errors and conditions that materially affect the ability of
the child support program to achieve desired results and benefits. Ten
percent is commonly used as a benchmark for materiality. In this case,
we believe that if less than ten percent of States are failing a given
criterion, we can omit that criterion from the determination of
substantial compliance without materially affecting the audit's
conclusions about the child support program in the State. However, if a
specific criterion meets the other test for inclusion in substantial
compliance (e.g., it is new or newly-revised), it is not deleted.
More than ten percent of the States failed the following criteria:
Reports and maintenance of records; separation of cash handling and
accounting functions; establishing paternity; distribution; services to
individuals not receiving AFDC or title IV-E foster care assistance;
State parent locator service; support obligations; notice of collection
of assigned support; Federal income tax refund offset; withholding of
unemployment compensation; wage or income withholding; imposition of
liens against real and personal property; posting security, bond or
guarantee to secure payment of overdue support; and medical support
enforcement.
b. New and newly-revised criteria. After applying the ten percent
materiality test to existing audit criteria, we turned to new
requirements (for the most part, based on the Family Support Act of
1988) that have not been audited in the past and which, therefore,
cannot be judged by the ten percent materiality rule. All of these
requirements will be evaluated in the determination of whether a
State's IV-D program is in substantial compliance. Additionally,
because there have been regulatory revisions to several other pre-
existing requirements (e.g., provision of services in interstate IV-D
cases, services to individuals not receiving AFDC or title IV-E foster
care assistance, and medical support requirements), we retained these
revised criteria in the determination of substantial compliance.
Based on past experience with State implementation of new or
significantly-changed program requirements, we believe that States'
activities related to requirements mandated by the Family Support Act
and the OBRA '93 and revised, pre-existing requirements must be audited
to ensure State compliance. These criteria are: Collection and
distribution of support payments by the IV-D agency, Sec. 302.32;
distribution of support collections, Sec. 302.51; notice of collection
of assigned support, Sec. 302.54; guidelines for setting child support
awards, Sec. 302.56; establishment of cases and maintenance of case
records, Sec. 303.2; location of non-custodial parents, Sec. 303.3;
establishment of support obligations, Sec. 303.4; establishment of
paternity, Sec. 303.5; enforcement of support obligations, Sec. 303.6;
State income tax refund offset, Sec. 303.6; provision of services in
interstate IV-D cases, Sec. 303.7; review and adjustment of support
obligations, Sec. 303.8; case closure, Sec. 303.11; securing medical
support information, Sec. 303.30; securing and enforcing medical
support obligations, Sec. 303.31; procedures for wage or income
withholding, Sec. 303.100, and expedited processes, under Sec. 303.101.
We emphasize that States are required to meet all Federal
requirements contained in program regulations, whether or not the
requirements are included under Sec. 305.20. Auditors may still examine
requirements that are not contained in Sec. 305.20, but would issue
management recommendations, instead of findings of substantial
noncompliance, for failure to meet program requirements not included
under Sec. 305.20. Implementation of management recommendations should
help States to improve their performance. In addition, compliance with
all program requirements will continue to be monitored by Regional
Offices of the Administration for Children and Families through program
and financial reviews and the State plan approval process.
In addition to narrowing the number of criteria contained in the
determination of substantial compliance, we have streamlined the audit
regulations by grouping related requirements under certain criteria
(e.g., wage or income withholding under enforcement).
Grouping is merely a way to evaluate related requirements and will
allow audit results to be reported in a more timely manner. States must
still meet the requirements of each specific regulation cited.
2. Criteria States must meet to be determined to be in substantial
compliance. Section 305.20(a) requires that, for audit periods
beginning on or after December 23, 1994, a State must meet the IV-D
State plan requirements contained in part 302 of this chapter measured
as set forth in paragraph (a).
a. Administrative criteria. Under Sec. 305.20(a)(1), the State must
meet the requirements under the following criteria:
(1) Statewide Operations, Sec. 302.10;
(2) Reports and Maintenance of Records, Sec. 302.15(a);
(3) Separation of cash handling and accounting functions,
Sec. 302.20; and
(4) Notice of Collection of Assigned Support, Sec. 302.54.
b. Service-related criteria.
i. 90 percent standard for case opening and closure. Unless
applications are provided upon request and accepted in a timely manner
and cases are opened and maintained appropriately, needed IV-D services
cannot be provided. Furthermore, with regard to case closure criteria,
it is essential that only those cases for which there is no reasonable
expectation of establishing paternity, obtaining a support order, or
collecting child support, either now or in the future, are closed.
In response to our request for comments regarding the 90 percent
standard proposed in the September 9, 1993 proposed rule, we received
many insightful comments, which are set forth later in this preamble.
In reviewing comments to the proposed rule, we agree that all program
services should be evaluated using a consistent standard (75 percent),
and are limiting the application of the 90 percent standard to case
opening requirements in Sec. 303.2(a) and case closure requirements in
Sec. 303.11. The requirements at Sec. 303.2(b) regarding the standard,
and the requirements at Sec. 303.2(a) regarding the opening of a case
will be evaluated using the 90 percent standard establishment of a case
record and determination of necessary action on the case will be
evaluated using the 75 percent. Therefore, we require that, in order to
be determined to be in substantial compliance, States must have and use
the procedures for providing applications and information and accepting
applications set forth in Sec. 303.2(a) and case closure requirements
at Sec. 303.11, which were effective October 1, 1990, in at least 90
percent of the cases reviewed for each criterion.
To reflect the changes discussed above, Sec. 305.20(a)(2) provides
that, for audits conducted for any period beginning on or after
December 23, 1994, to be determined to be in substantial compliance,
the State must have and use procedures required under the following
criteria in at least 90 percent of the cases reviewed for each
criterion:
(1) Establishment of Cases, Sec. 303.2(a); and
(2) Case Closure, Sec. 303.11.
Under the case closure criteria, auditors will evaluate cases
closed during the audit period to determine compliance with the
requirements of Sec. 303.11. It is important to recognize that States
will be evaluated to determine whether closure of cases was
appropriate. As explained in response to comments in the final rule
governing Standards for Program Operations (54 FR at 32303), States are
not required to close cases, however, and should a case which meets the
criteria for case closure be left open, it would not count against the
State for the purpose of determining compliance.
ii. 75 percent standard for providing services. Section
305.20(a)(3) provides that, for audit periods beginning on or after
December 23, 1994, to be determined to be in substantial compliance,
the State must have and use procedures required under the following
criteria in at least 75 percent of the cases reviewed for each
criterion:
(1) Collection and Distribution of Support Payments, including:
Collection and distribution of support payments by the IV-D agency
under Secs. 302.32(b) and (f); distribution of support collections
under Sec. 302.51; and distribution of support collected in title IV-E
foster care maintenance cases under Sec. 302.52;
(2) Establishment of paternity and support orders, including:
Establishment of a case under Sec. 303.2(b); services to individuals
not receiving AFDC or title IV-E foster care assistance, under
Secs. 302.33(a)(1) through (4); provision of services in interstate IV-
D cases under Secs. 303.7 (a), (b), and (c)(1) through (6), and (8)
through (10); location of non-custodial parents under Sec. 303.3;
establishment of paternity under Secs. 303.5(a) and (f); guidelines for
setting child support awards under Sec. 302.56; and establishment of
support obligations under Secs. 303.4 (d), (e) and (f);
(3) Enforcement of support obligations, including, in all
appropriate cases: Establishment of a case under Sec. 303.2(b);
services to individuals not receiving AFDC or title IV-E foster care
assistance, under Secs. 302.33 (a)(1) through (4); provision of
services in interstate IV-D cases under Secs. 303.7(a), (b), and (c)
(1) through (6), and (8) through (10); location of non-custodial
parents under Sec. 303.3; enforcement of support obligations under
Sec. 303.6, including submitting once a year all appropriate cases in
accordance with Sec. 303.6(c)(3) to State and Federal income tax refund
offset; and wage withholding under Sec. 303.100. In cases in which wage
withholding cannot be implemented or is not available and the non-
custodial parent has been located, States must use or attempt to use at
least one enforcement technique available under State law in addition
to Federal and State income tax refund offset, in accordance with State
laws and procedures and applicable State guidelines developed under
Sec. 302.70(b) of this chapter;
(4) Review and adjustment of child support orders, including:
Establishment of a case under Sec. 303.2(b); services to individuals
not receiving AFDC or title IV-E foster care assistance, under
Secs. 302.33(a)(1) through (4); provision of services in interstate IV-
D cases under Secs. 303.7 (a), (b), and (c)(1) through (6), and (8)
through (10); location of non-custodial parents under Sec. 303.3;
guidelines for setting child support awards under Sec. 302.56; and
review and adjustment of support obligations under Sec. 303.8; and
(5) Medical support, including: Establishment of a case under
Sec. 303.2(b); services to individuals not receiving AFDC or title IV-E
foster care assistance, under Secs. 302.33(a)(1) through (4); provision
of services in interstate IV-D cases under Secs. 303.7(a), (b), and (c)
(1) through (6), and (8) through (10); location of non-custodial
parents under Sec. 303.3; securing medical support information under
Sec. 303.30; and securing and enforcing medical support obligations
under Sec. 303.31.
In this final regulation, we have established a standard for
expedited processes at Secs. 303.101(b)(2) (i) and (iii), and
corresponding audit criteria at Sec. 305.20(a)(5) to measure the
establishment of a support order and, when necessary, the establishment
of paternity. These changes reflect the paternity establishment
provisions of the OBRA '93. Since States that need to establish
paternity and a support order often complete both activities at about
the same time, and the new expedited processes standard covers both
activities, we have combined into a single grouping the audit criteria
we will use to evaluate State compliance with Federal requirements for
establishment of an order and paternity establishment under the 75
percent audit standard. We believe that this change will further
streamline the audit process.
Location Evaluated as Part of Services Provided. Under this final
regulation, location is not listed as a separate criterion but is
included under the paternity and support order establishment,
enforcement, review and adjustment, and medical support criteria. The
location function is not an end in itself, but an essential component
of delivering program services. We do not believe that this diminishes
the significance of the location function. On the contrary, it
underscores the need to use all appropriate location sources in order
to proceed with delivering the necessary services in the case.
Moreover, it is illustrative of the transition to a more results-
oriented, outcome-focused audit.
Thus, if a case requires establishment of a support obligation and
the non-custodial parent's whereabouts are unknown, the State must meet
the applicable location requirements at Sec. 303.3 and, if the non-
custodial parent has been successfully located, the requirements for
support obligation establishment at Secs. 303.4 (d), (e), and (f) and
Sec. 302.56 in any case reviewed for purposes of the audit. If the
State does not meet the location requirements in a case requiring
support obligation establishment, it would be counted against the State
in computing the efficiency rate for support obligation establishment
and the audit findings would reflect that the State failed to
substantially comply with the support obligation establishment
requirements due, at least in part, to a failure to meet the location
requirements. In response to our request for specific comments
regarding the potential effect of evaluating locate as a component of
other services rather than as a specific service, we received valuable
and constructive input, which is described more extensively in the
Response to Comments section later in this preamble.
If a support obligation cannot be established because the parent
from whom support is sought is not located, even though the State met
all other location requirements (i.e., checked all appropriate sources
and repeated location attempts) this would not be counted against the
State. There is, currently, a perceived misunderstanding that States
must obtain a successful outcome in a case in order to receive credit
for having worked that case. We would like to clarify that if a State
meets all Federal requirements, including timeframes, with respect to a
particular case but cannot locate the non-custodial parent or alleged
father, for example, the State would not be penalized for failure to
provide the necessary service. Instead, we would credit the State with
taking appropriate action.
Interstate and Non-AFDC Services as Part of Services Provided.
Under this final regulation, the provision of services in interstate
cases, and services to individuals not receiving AFDC or title IV-E
foster care are included under the paternity and support order
establishment, enforcement, review and adjustment, and medical support
criteria. It is long-standing Federal policy that all appropriate
services should be provided in all cases regardless of type (non-AFDC
IV-D; interstate IV-D). Therefore, we believe that all types of IV-D
cases (i.e., AFDC, title IV-E foster care, non-AFDC, and interstate)
should be evaluated in a similar manner. In addition, the requirements
unique to interstate and non-AFDC cases are not an end in themselves,
but an essential component of delivering program services for such
cases. Furthermore, these changes are illustrative of a transition to a
more results-oriented outcome-focused audit.
Under this approach, States will still be held accountable for
meeting requirements that are unique to interstate cases,
Secs. 303.7(a), (b), (c)(1) through (6) and (8) through (10), as well
as functions and services otherwise covered by criteria under
Sec. 305.20 to determine whether the State is in substantial compliance
with the requirement to provide appropriate services in an interstate
case. Similarly, States will still be held accountable for meeting
those aspects of Sec. 302.33 unique to non-AFDC IV-D cases (i.e.,
Secs. 302.33(a)(1) through (4)) to determine whether the State is in
substantial compliance with requirements to provide services to non-
AFDC individuals. These changes are also addressed in the response to
comments section of this preamble.
Enforcement. Under this final regulation, use of some enforcement
techniques would be mandatory in all appropriate cases in accordance
with Federal requirements, i.e., wage withholding and submitting once a
year all cases, in accordance with Sec. 303.6(c)(3), to State and
Federal income tax refund offset. States must take these actions in all
appropriate cases, in accordance with Sec. 303.6. Section 303.6(c)(3)
requires annual submittal for income tax refund offset of all cases
which meet the certification requirements under Sec. 303.102 and State
guidelines developed under Sec. 302.70(b) for State income tax refund
offset, and which meet the certification requirements under Sec. 303.72
for Federal income tax refund offset.
Cases exist in which wage withholding is not available or
appropriate because, for example, the obligated parent is self-
employed, unemployed, or does not have a source of income subject to
withholding; or the obligor and/or employer cannot be located. In these
cases, if the non-custodial parent has been successfully located, some
other enforcement technique, in addition to Federal and State income
tax refund offset, must be used. States have discretion with respect to
the use of other enforcement techniques (besides wage withholding and
Federal and State income tax refund offset) as long as there is
compliance with Federal regulations, State procedures, and guidelines
developed by the State under Sec. 302.70(b) which outline when it is
inappropriate to use an enforcement technique.
Under this final regulation, for cases in which wage withholding
cannot be implemented or is unavailable, States will receive credit,
for audit purposes, for taking or attempting an enforcement action if
they do any one of the following in accordance with Sec. 303.6: Impose
a lien against real and personal property under Sec. 303.103; require
the obligor to post security, bond, or other guarantee to secure
payment of overdue support under Sec. 303.104; make information
available to consumer credit reporting agencies under Sec. 303.105;
withhold unemployment compensation under Sec. 302.65; or request full
collection services by the Secretary of the Treasury under Sec. 303.71.
A State will also receive credit for enforcement if it takes an
enforcement action that is not specifically listed above, if the action
is consistent with Federal or State laws and procedures.
This final regulation emphasizes the use of wage withholding and
income tax refund offset, which are often the most effective
enforcement techniques, yet ensures that more difficult cases in which
wage withholding cannot be utilized, are not ignored. For those cases
in which wage withholding is not implemented, it ensures that at least
one enforcement action is taken in each case during the audit period.
States are encouraged to implement several enforcement techniques
concurrently, although they will not be penalized for failure to do so.
iii. Credit for providing services. Paragraph (a)(4) indicates
that, with respect to meeting the 75 percent standard under
Sec. 305.20(a)(3), for any audit period beginning on or after December
23, 1994:
(1) Notwithstanding timeframes for establishment of cases in
Sec. 303.2(b); provision of services in interstate IV-D cases under
Secs. 303.7 (a), (b), and (c) (4) through (6), (8) and (9); location
and support order establishment under Secs. 303.3(b) (3) and (5), and
303.4(d), if a support order needs to be established in a case and an
order is established during the audit period in accordance with the
State's guidelines for setting child support awards, the State will be
considered to have taken appropriate action in that case for audit
purposes.
(2) Notwithstanding timeframes for establishment of cases in
Sec. 303.2(b); provision of services in interstate IV-D cases under
Secs. 303.7 (a), (b), and (c) (4) through (6), (8) and (9); location
and review and adjustment of support orders contained in Secs. 303.3(b)
(3) and (5), and 303.8, if a particular case has been reviewed and
meets the conditions for adjustment under State laws and procedures in
Sec. 303.8, and the order is adjusted, or a determination is made, as a
result of a review that an adjustment is not appropriate, during the
audit period in accordance with the State's guidelines for setting
child support awards, the State will be considered to have taken
appropriate action for review and adjustment of orders in that case for
audit purposes.
(3) Notwithstanding timeframes for establishment of cases in
Sec. 303.2(b); provision of services in interstate IV-D cases under
Secs. 303.7 (a), (b), and (c) (4) through (6), (8) and (9); location
and wage withholding in Secs. 303.3(b) (3) and (5), and 303.100, if
wage withholding is appropriate and implemented in a particular case,
and wages are withheld during the audit period, the State will be
considered to have taken appropriate action in that case for audit
purposes.
(4) Notwithstanding timeframes for establishment of cases in
Sec. 303.2(b); provision of services in interstate IV-D cases under
Secs. 303.7 (a), (b), and (c) (4) through (6), (8) and (9); location
and enforcement of support obligations in Secs. 303.3(b) (3) and (5),
and 303.6, if wage withholding is not appropriate in a particular case,
and the State uses at least one enforcement technique available under
State law in addition to Federal and State income tax refund offset,
which results in a collection received during the audit period, the
State will be considered to have taken appropriate action in the case
for audit purposes.
When a State is considered to have taken an appropriate action in a
case for audit purposes, as stated above, the case would count towards
meeting the 75 percent standard in Sec. 305.20(a)(3) for paternity and
support order establishment, review and adjustment of support orders,
and enforcement of support obligations, as appropriate. Under paragraph
(a)(4), a State would receive credit in such an instance for taking an
action in a case even if relevant timeframes are missed. These
timeframes include the timeframe for establishment of cases under
Sec. 303.2(b); timeframes for location in Secs. 303.3(b) (3) and (5);
and timeframes for provision of services in interstate IV-D cases under
Secs. 303.7 (a), (b), and (c) (4) through (6), (8) and (9).
These credits are another indication of the transition to a more
results-oriented audit. We believe that, for audit purposes, a State
should not be penalized when intermediate timeframes are missed in a
case if a successful result is achieved within the audit period (i.e.,
paternity and a support order are established, an order is adjusted or
determined to be not needed, wages are withheld, or a collection is
made), since these results are the primary goals of the child support
enforcement program.
Furthermore, we believe that this position is responsive to the
concerns of States that missing an interim timeframe may create a
disincentive to work the case through to completion of the action.
However, under this final regulation, if interim timeframes are not
met in a case, States would only get credit for taking an appropriate
action if the action is successfully completed, not simply attempted,
within the audit period. For example, if timeframes are missed in a
case, a State can get credit for: Paternity and order establishment,
only if paternity (if needed) and a support order are established; wage
withholding, only if withholding is implemented and wages are withheld
as a result; and support order adjustment, only if the order is
adjusted or determined to not require adjustment.
We emphasize that a State has to successfully complete an action in
order to receive credit in a case only if timeframes are not met in the
case. If, in a particular case, a State complies with the requirements,
including the timeframes, the State will get credit for taking an
action in that case even if the action is not successful.
Collection of unpaid support through enforcement is a major goal of
the program. As a result, when enforcement timeframes are missed, the
State will be credited for wage withholding, or, if wage withholding is
not appropriate in a given case, the use of some other appropriate
enforcement technique available under State law, in addition to the
Federal and State income tax refund offset, if such action results in a
collection during the audit period. Wage withholding is subject to
specific timeframes in Sec. 303.100. State and Federal income tax
refund offset, also a highly efficient and effective procedure, are not
subject to similar case processing timeframes. Other enforcement
techniques are subject to the general timeframe in Sec. 303.6.
Since some enforcement techniques, such as liens and consumer
credit reporting, may not immediately result in collections and because
it is difficult to determine when and if these actions have been
successful in collecting support, States will only be credited when a
collection is received. In successful wage withholding cases,
collections usually occur almost immediately, so it is easy to
determine when it has been successfully completed.
We emphasize that all timeframes, including those for paternity and
support order establishment, review and adjustment, and wage
withholding, are still Federal requirements that States must meet.
However, as described above, States may receive credit for taking an
action under Sec. 305.20(a)(4) when the outcome is successful even if
timeframes are missed in a case.
c. Expedited processes. Paragraph (a)(5) requires that, for audit
periods beginning on and after December 23, 1994, the State must meet
the requirements for Expedited Processes under Sec. 303.101 to be in
substantial compliance. Prior to the issuance of this final rule, the
compliance percentages contained in the expedited processes regulation
were used to evaluate State performance rather than the 75 percent
audit standard. The new compliance percentages contained in the
expedited processes regulation revised in this final rule will be
evaluated in the same manner. Therefore, the evaluation of the
expedited processes compliance percentages discussed earlier in this
preamble will continue to be separated from the service-related
category which is evaluated using a 75 percent standard.
d. Performance indicators. Paragraph (a)(6) continues to require
that the State must meet the criteria referred to in Sec. 305.98(c) of
this part relating to the performance indicators prescribed in
paragraph (a) of that section.
Paternity Establishment Percentage Standard--Proposed Sec. 305.97
Section III of the Family Support Act of 1988 amended section 452
of the Act by adding a new paternity establishment standard, at
subsection (g), that States must meet for any fiscal year beginning on
or after October 1, 1991. In the proposed rule, we proposed to add a
new Sec. 305.97, titled Paternity Establishment Percentage Standard,
which would set forth the requirements States must meet in order to be
determined to be in substantial compliance with title IV-D of the Act.
However, because of recent statutory changes to the standard, it will
be dealt with separately and is not included in this final rule. As
part of the OBRA '93 (Pub. L. 103-66), Congress revised the paternity
establishment standard, including the description of data needed to
calculate the ratio. Subsequently, Congress enacted Pub. L. 103-432
which included technical amendments that corrected the description of
the terms of the standard.
Performance Indicators--Sec. 305.98
Section 305.98(c) is revised to indicate that OCSE continues to use
the procedures and audit criteria in that paragraph to measure State
performance. Paragraph (d) is revised to state that the performance
indicator scoring system will be described and updated periodically by
the Office (i.e., OCSE). We will publish any changes to the scoring
system in the Federal Register in advance of their effective date.
Notice and Corrective Action Period--Sec. 305.99
Former Sec. 305.99(b)(2) provided that the notice of substantial
noncompliance identify any audit criteria listed in Secs. 305.20
(a)(2), (b)(2) or (c)(2) that the State met only marginally (that is,
in 75 to 80 percent of the cases reviewed). Revised Sec. 305.99(b)(2)
provides that the notice of substantial noncompliance identify any
audit criteria listed in Sec. 305.20(a)(3) of this part that the State
met only marginally [that is, in 75 to 80 percent of cases reviewed for
criteria in (a)(3)]. This change replaces the reference to Secs. 305.20
(a)(2), (b)(2) or (c)(2) with Sec. 305.20(a)(3).
Response to Comments
1. Paternity Establishment Provisions.
In response to the Notice of Proposed Rulemaking published November
29, 1993, in the Federal Register (58 FR 62599), we received over 60
comments from representatives of State and local IV-D agencies,
national organizations, advocacy groups, and private citizens. Their
comments and our responses are as follows:
General Comments
1. Comment: One commenter requested that OCSE liberally grant
waivers from the new requirements if a State has laws, processes, or
procedures which achieve the aims of the statutory paternity provisions
under OBRA '93.
Response: Procedures regarding exemptions are delineated at
Sec. 302.70(d) and OCSE-AT-88-19. (Although the procedures in OCSE-AT-
88-19 refer to former expedited process requirements, these procedures
may be used until they are updated to reflect the new expedited process
requirements). A State may apply for an exemption from adopting any of
the required State laws at Sec. 302.70(a) by submitting a request for
an exemption to the Federal Regional Office. The Secretary will grant a
State (or political subdivision in the case of expedited process
requirements) an exemption for a period of up to three years in the
limited instances where the State demonstrates that compliance would
not increase the effectiveness and efficiency of its IV-D program.
2. Comment: One commenter suggested that the statutory effective
date should apply only to the Federal statutory provisions, and that
States should be given additional time, after the issuance of final
regulations, to comply with any Federal regulatory requirements
implementing the statutory provisions. According to this commenter, the
effective date of any regulatory requirements based upon the Federal
statute should be linked to the end of each State's next legislative
session following publication of the final rule.
Response: We are not linking the effective date of this regulation
to each State's next legislative session following publication of this
rule. The statutory effective date, which is linked to States'
legislative sessions, applies to statutory requirements, even if the
statutory effective date occurred prior to publication of these final
regulations. If the Federal statutory effective date for a State occurs
after publication of these regulations, these regulations will not be
effective until the statutory effective date. Furthermore, these
regulations allow States until January 1, 1995 (or the Federal
statutory effective date, if later) to implement hospital-based
programs statewide. Therefore, we do not believe additional
implementation time for regulatory requirements is necessary.
3. Comment: One commenter suggested that we retain the list of
effective dates, previously at Sec. 302.70(a), for required State laws.
Response: To simplify the regulatory language, we have deleted
effective dates of IV-D State plan requirements previously listed in
Sec. 302.70(a). The effective dates had been listed to differentiate
between requirements that became effective at different times. However,
since all requirements listed at Sec. 302.70(a) are now effective, we
believe it is unnecessarily cumbersome to enumerate all the various
effective dates in the regulation. Each IV-D State plan requirement,
including the new paternity ones, remains effective on the date
indicated by the statute or implementing regulation.
Simple Civil Process for Voluntarily Acknowledging Paternity--Sections
302.70(a)(5)(iii) and 303.5(a)
a. General Requirements, Rights and Responsibilities, and Due
Process.
1. Comment: Several commenters questioned why requirements
regarding general voluntary acknowledgment procedures are not as
detailed as the requirements regarding hospital-based voluntary
acknowledgment programs.
Response: Regulations regarding the general voluntary
acknowledgment process are not as detailed as those covering hospital-
based programs. The reason for this differentiation is that the vast
majority of States, if not all States, had already implemented general
voluntary acknowledgment procedures prior to the passage of OBRA '93.
Given that no national problem has been identified regarding these
existing State procedures, we do not want to impede their successful,
ongoing operation. For example, States have already developed forms and
materials that meet the requirements of State law and that have
withstood judicial review. We do not want to impose detailed Federal
requirements that would unnecessarily force States to develop new forms
and materials.
We do, however, encourage States to reexamine their existing
voluntary acknowledgment procedures to ensure that they are simple,
provide sufficient information to the parties, and are regularly used.
The voluntary acknowledgment process should be available at any time to
fathers who want to voluntarily acknowledge paternity. Ideally, States
will allow fathers multiple opportunities to voluntarily acknowledge at
any stage in the process. Even if a man is initially reluctant to
voluntarily acknowledge parentage because he is unsure whether he is
actually the father, he may be willing to do so after receiving genetic
test results which indicate a high probability of paternity.
While we have tried to avoid unnecessary Federal intervention
regarding general voluntary acknowledgment requirements, there is a
need for detailed Federal requirements regarding hospital-based
programs. While some States had organized hospital-based programs prior
to passage of OBRA '93, most of these programs were not statewide in
scope. Therefore, in many parts of the country such programs do not yet
exist or are not well-established. Detailed Federal requirements should
help to ensure that such programs are properly implemented. As several
commenters on the proposed rule pointed out, States which have
implemented hospital-based programs have found that programs are most
effective where trained staff and explanatory materials are available
to assist the parents.
In addition, the special circumstances of a hospital environment
warrant detailed Federal oversight. For medical records staff and
health care workers in hospital-based programs, providing voluntary
acknowledgment services is only an ancillary activity to their main
responsibilities. Hospital staff may not be as familiar with paternity
and child support issues as IV-D or court staff involved in voluntary
acknowledgment procedures outside of hospitals.
Furthermore, as several commenters pointed out, during the hours
following birth, the mother may be in physical pain, mentally exhausted
or preoccupied, and inundated with information regarding the health and
care of her newborn child. Hospital staff providing voluntary
acknowledgment services may not be aware of salient issues in a case,
such as domestic violence. (When voluntary acknowledgments are made
outside of the hospital, child support personnel may be more likely to
learn of such issues during initial interviews with the woman).
In light of these special circumstances, the detailed requirements
at Sec. 303.5(g) are designed to ensure that the voluntary
acknowledgment process in hospitals is truly voluntary and appropriate,
and that both the mother and alleged father have adequate information
to make an informed decision.
2. Comment: Many commenters recommended detailed and specific
Federal requirements regarding the explanation of rights and
responsibilities and due process safeguards.
Response: We agree with commenters about the importance of this
issue. Under regulations at Sec. 302.70(a)(5)(iii), States are required
to explain to both parents the rights and responsibilities of
acknowledging paternity. The explanation 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.
For out-of-hospital acknowledgments, as long as the explanation
meets State due process requirements, it may be verbal or in writing.
However, we recommend that this disclosure of rights be provided in a
written format that is clear and easily understood. Furthermore, we
encourage States to place this written explanation on the
acknowledgment form itself. As one commenter indicated, if a party
later challenges the validity of an acknowledgment, a written
explanation of rights and responsibilities on the form will provide
evidence that notification occurred. Section 302.70(a)(5)(iii) also
requires a State to meet any due process requirements necessary under
State law and court rulings. (Federal requirements regarding hospital-
based programs are somewhat more prescriptive due to the special
circumstances of a hospital environment as previously discussed.
Hospital-based program requirements are discussed in greater detail
later in this preamble).
However, consistent with past policy, we are not mandating detailed
Federal due process requirements. Generally, 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. As
one commenter stressed, a State needs to tailor its requirements to
address the legal effect of the acknowledgment under State law--e.g.,
whether the acknowledgment creates a rebuttable or conclusive
presumption. 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.
We also encourage States to consider, for both in-hospital and out-
of-hospital acknowledgments, a number of suggestions recommended by
commenters, including providing: Both a verbal and a written
description of the rights, responsibilities, and consequences resulting
from acknowledging paternity; a clear, written explanation of the legal
significance of a paternity acknowledgment under State law; a written
notice that the parties may wish to seek legal advice prior to signing
the acknowledgment; a written statement explaining that completion of
the form is voluntary; procedures requiring the acknowledging parents
to sign a statement indicating that they understand their rights and
responsibilities; and training of staff and making IV-D agency staff
available in person or by telephone to ensure that acknowledgments are
voluntary and completed only after parents understand the consequences.
3. Comment: Several commenters argued that special protections are
needed, as a part of both in-hospital and out-of-hospital voluntary
acknowledgment procedures, for cases involving illiterate, non-English
speaking, mentally incapacitated, blind, or hearing-impaired persons.
Response: We agree that special protections may be needed in such
cases. However, just as a State generally has discretion regarding due
process safeguards in ``regular'' cases, we are also giving States
discretion in cases involving special circumstances. This allows each
State to formulate policies which address its own particular
requirements, including case law, regarding due process. States, IV-D
agencies, and birthing hospitals are in the best position to determine
the details of how to respond to special circumstances in their State's
population or a facility's service area (e.g., languages other than
English in which to publish materials and forms).
Despite this discretion, we encourage and expect States and IV-D
agencies to address the special circumstances mentioned by commenters,
as necessary, by setting appropriate policies, developing materials,
and providing training to both hospital-based program and IV-D staff.
As commenters cautioned, acknowledgments in such cases may be
challenged if appropriate safeguards are not followed. We believe that
States have already shown sensitivity to these special circumstances
and there is no need for direct Federal intervention. For example,
several States have developed paternity establishment materials and
forms in languages other than English.
4. Comment: Several commenters suggested the need to include
provisions regarding custody and visitation as part of the
acknowledgment process. Some commenters suggested that parents, when
given the opportunity to voluntarily acknowledge paternity, ought to be
given the chance to complete forms regarding custody and visitation.
Another commenter suggested that if the alleged father acknowledges
paternity at the hospital, a custody order should also be entered for
the mother at the same time to protect the mother's parental rights.
Response: We are not mandating requirements regarding custody and
visitation because the paternity provisions of OBRA '93 and the other
provisions of title IV-D of the Act do not address custody or
visitation issues, and these are essentially State matters. However,
when giving the parents the opportunity to voluntarily acknowledge
paternity, we would also encourage that both parents receive an
explanation, either in writing or verbally, about the potential impact
of an acknowledgment under State law on custody and visitation.
b. Acknowledgment Form.
1. Comment: We received numerous comments regarding the proposal to
require that States use a standard acknowledgment form incorporating
certain minimum elements. Some commenters objected to the mandated use
of an acknowledgment form and questioned whether it would prohibit
States from using other, previously-established methods for obtaining
voluntary acknowledgments.
Other commenters expressed concern about the specific elements that
we proposed the forms should include. Commenters objected to mandating
inclusion of: (1) Filing instructions because the instructions would
not be applicable to all situations, (2) a line for the parents' social
security numbers due to privacy concerns, and (3) parents' addresses
due to the transitory nature of addresses. On the other hand, several
commenters suggested that the form contain both the parents' and
child's dates of birth--data elements that we had not proposed to
require. Other commenters maintained that mandating any minimum form
elements was unduly restrictive and that States should be allowed to
design their own forms.
Response: In response to commenters' concerns, we are not mandating
use of a uniform acknowledgment form. As stated in the preamble to the
proposed rule, mandating a form with minimum elements was intended to
standardize interstate case processing. However, based on comments to
the proposed rule, it is clear that our proposal would not have solved
interstate problems. Some States use voluntary acknowledgment
procedures, other than an acknowledgment form, that do not contain the
uniform elements. Furthermore, because there is no agreement among
States regarding what the elements of an acknowledgment form should be,
State forms would have continued to vary in many respects even if some
uniform elements were mandated. (Differences in State forms or
procedures should not be an issue if an acknowledgment creates a
determination of paternity subject to full faith and credit, but may be
an issue if an acknowledgment does not create a determination of
paternity). As one commenter pointed out, in order to avoid interstate
problems, we would have to mandate use of a standardized national form.
However, we believe a standardized national form would unnecessarily
disrupt many States' long-standing and successfully-operating voluntary
acknowledgment procedures.
Although we are not mandating the use of a form with minimum
elements, States must have procedures for a simple civil process for
voluntarily acknowledging paternity in accordance with
Sec. 302.70(a)(5)(iii). We anticipate that most States will use some
type of acknowledgment form, and we encourage States to include on the
form data elements that provide valuable locate and identifying
information. These elements may include: Parents' social security
numbers, dates of birth, and addresses. If a State's form includes the
social security numbers of the parents, the recording of voluntary
acknowledgments might be a way of obtaining social security numbers
from parents as required during the birth registration process by
section 205(c)(2)(C)(ii) of the Social Security Act. OCSE plans to
provide States with examples of voluntary acknowledgment forms used in
various jurisdictions around the country.
2. Comment: Several commenters objected to the proposed requirement
that a voluntary acknowledgment be signed by both parents. This
provision of the proposed rule would have also required that the
parents' signatures be authenticated by a notary or witness(es).
According to commenters, it would be burdensome, time-consuming,
costly, and unnecessary to have both parents sign the same form,
particularly if the parents live in different States. These commenters
noted that frequently in IV-D cases the mother is not present when the
father acknowledges paternity but that she has previously named the
acknowledging man as the father in writing. As one commenter suggested,
the proposal may have made it necessary for the IV-D agency to find the
mother once the man acknowledged, even if she had previously named the
man as the father, to have her sign in front of a notary or witness the
same acknowledgment form that the father signed. In addition,
commenters noted that, under some existing State laws, a man can
voluntarily acknowledge paternity without the mother's consent (only
under certain circumstances in some States; e.g., if genetic test
results create a presumption of paternity, or the mother is deceased or
mentally incapacitated).
Response: In response to commenters' concerns, for general
voluntary acknowledgment procedures, we are not requiring that both
parents sign the same form in front of a notary public or witness(es).
We want to avoid unnecessary Federal interference with State's
previously-established and successfully-operating voluntary
acknowledgment procedures. We note, however, that if an acknowledgment
form with signature lines for both parents contains space for a notary
or witness to authenticate each signature separately (as recommended by
one commenter), the parents do not necessarily have to sign the form at
the same time.
This rule does compel the State to require that a voluntary
acknowledgment obtained through a hospital-based program be signed by
both parents, and that the parents' signatures be authenticated by a
notary or witness(es). We are including this requirement at
Sec. 303.5(g)(4), rather than at Sec. 302.70 as in the proposed rule,
since we are limiting its scope to hospital-based programs. Regarding
mandating the use of notaries, we believe such a requirement would
unnecessarily interfere with State practice and create problems in
hospitals where notaries may not always be readily available.
Since the mother will be present in cases in which the father signs
a voluntary acknowledgment at the hospital, it is not burdensome to
require that both parents sign in such cases (although they need not
both sign the form at the same time). Furthermore, we want to ensure
that the process at the hospital is truly voluntary and that an
acknowledgment is made only when both parents agree about the man's
paternity. Even if a man is willing to acknowledge paternity, the
mother may deny that he is the father, or may not want paternity to be
established (due to domestic violence or other circumstances).
Hospitals should not have to mediate disputes or pursue cases where the
parties disagree about the man's paternity. If a party in such a case
wishes to establish paternity without the cooperation of the other
party, he or she could contact the IV-D agency or a private attorney.
States can meet the requirements of Sec. 303.5(g)(4) by developing
and mandating the use of a form for hospital-based programs which
contains signature lines for both parents and a notary public or
witness(es).
c. IV-D Agency Activity.
1. Comment: One commenter suggested that the proposed requirement
at Sec. 303.5(a), requiring the IV-D agency to offer the alleged father
the opportunity to acknowledge paternity in IV-D cases in which
paternity has not been established and a voluntary acknowledgment has
not been obtained, was overly broad. The commenter suggested that there
are cases, particularly under some State laws, where it is
inappropriate to pursue a voluntary acknowledgment--e.g., cases where
the alleged father is a minor or lacks the requisite mental capacity.
Response: We revised this provision to require that the IV-D agency
offer the alleged father, as appropriate, the opportunity to
acknowledge paternity. If a IV-D agency determines that it would not be
appropriate to offer the alleged father an opportunity to voluntarily
acknowledge paternity, it must: (1) Document in the case record the
specific reason it is inappropriate to seek an acknowledgment, and (2)
attempt to establish paternity by legal process established under State
law.
Adding ``as appropriate'' allowed us to delete the phrase ``and a
voluntary acknowledgment has not been obtained'' in the proposed
introductory language of Sec. 303.5(a) describing the applicability of
the provision. Since the IV-D agency acts in accordance with
Sec. 303.5(a) ``as appropriate'', the provision now applies broadly to
any case ``in which paternity has not been established''. Seeking a
voluntary acknowledgment in a case where an acknowledgment has
previously been obtained would not be appropriate.
2. Comment: One commenter asked if mailing an acknowledgment form
to the alleged father's last known address with no verification of
receipt would meet the requirement at Sec. 303.5(a) for providing the
alleged father the opportunity to voluntarily acknowledge paternity.
Response: In order to satisfy this requirement, IV-D staff may
contact the alleged father by telephone, written notice, or in person
as appropriate under the circumstances and State law. Written notice
may be given by mail, personal service, or other means; however, it
must be addressed specifically to the individual alleged father. We
strongly encourage that language in written notices be ``reader-
friendly'': i.e., clear and easy to understand. The IV-D agency should
advise the man that the mother has named him as the father of the
child, describe the procedures for voluntarily acknowledging paternity,
and advise him of his rights and responsibilities. The IV-D agency must
document in the case record when and how the alleged father is sent or
given notice of the paternity action and the opportunity to voluntarily
acknowledge.
Mailing an acknowledgment form to the alleged father's last known
address will satisfy this requirement, if the man can acknowledge
paternity by completing and returning the form. However, the IV-D
agency must meet the requirements mentioned above (advising the man
that the mother has named him as the father of the child, describing
the procedures for voluntarily acknowledging paternity, and advising
him of his rights and responsibilities) via the form, attached written
materials, or other means.
Although mailing a form is sufficient to meet the requirement at
Sec. 303.5(a), we encourage States to make additional efforts to
facilitate acknowledgments. For instance, several States ask the father
to come to the IV-D agency for a conference or hearing where he may
voluntarily acknowledge. The conference allows IV-D staff to explain,
in person, the rights and responsibilities associated with the
establishment of paternity. Designated agency personnel are available
to witness or notarize signatures on voluntary acknowledgments.
If an alleged father refuses or is reluctant to voluntarily
acknowledge paternity, States should encourage genetic testing. Men who
are unsure, but willing to cooperate, will frequently consent to
genetic testing. States could adopt procedures for conducting testing,
if the alleged father consents, prior to a formal filing of an action
to establish paternity with the court or administrative authority. Even
in cases where the man is initially unwilling to voluntarily
acknowledge, he may consent to genetic testing and subsequently
acknowledge paternity if the test results show a high probability of
paternity, without the need for a hearing or formal adjudication.
3. Comment: One commenter requested clarification regarding whether
the opportunity to voluntarily acknowledge could be given either before
or after initiating legal action to establish paternity.
Response: The IV-D agency may meet the requirement at Sec. 303.5(a)
by offering the alleged father the opportunity to acknowledge paternity
at any time--before or after initiating legal action to establish
paternity. To clarify this, we have omitted the phrase ``if he fails to
voluntarily acknowledge paternity'' (which was included in the text of
the proposed Sec. 303.5(a)(2)), since it implied that the IV-D agency
should seek a voluntary acknowledgment before attempting to establish
paternity by legal process. Although we generally encourage States to
offer the alleged father the opportunity to acknowledge before
initiating legal process, we realize that some men will flee or
otherwise avoid service of process if notified of the paternity issue
prior to service.
If a IV-D agency offers the man the opportunity to voluntarily
acknowledge paternity prior to the initiation of legal action, the IV-D
agency may want to inform the alleged father at the time it provides
him an opportunity to acknowledge that formal paternity establishment
action will begin if the alleged father does not acknowledge within a
specified timeframe. On the other hand, a IV-D agency may choose to
combine service of process necessary for a legal paternity
determination with the offer of the opportunity to voluntarily
acknowledge. For example, some States serve a notice or claim of
alleged paternity and support obligation on the putative father,
informing him of the opportunity to voluntarily acknowledge paternity.
If the man fails to voluntarily acknowledge, the State can then
adjudicate paternity based on the initial notice.
Hospital-Based Paternity Establishment Programs--Sections 301.1,
302.70(a)(5)(iii)(A), 303.5 (g) and (h), 304.20(b)(2), and 304.23(d)
a. General Requirement; State Law.
1. Comment: One commenter questioned whether hospital-based
programs would be effective, particularly since mothers of newborns
stay in the hospital for such a short period of time.
Response: Prior to the enactment of OBRA '93, about half of the
States had already developed hospital-based programs to obtain
voluntary acknowledgments of paternity (although often on less than a
statewide basis). Even some hospitals in States without proactive,
organized programs have, for years, accepted voluntary acknowledgments
of paternity from maternity patients and alleged fathers. Typically, in
an organized program, trained hospital employees provide information
about paternity establishment to the parents, inform them of their
rights, and give the putative father the opportunity to voluntarily
acknowledge paternity. Such programs have been quite effective in
obtaining voluntary paternity acknowledgments; some hospital-based
programs have successfully obtained voluntary acknowledgments for about
40 percent of their out-of-wedlock births. In developing these
regulations, OCSE met with officials from established hospital-based
programs in several States.
The experience of States indicates a father of a child born to an
unmarried mother is more likely to be present and to admit paternity
during the time surrounding birth than later on. Early paternity
establishment reduces location difficulties and administrative costs
which can occur if paternity establishment is delayed. The earlier
paternity is established, the sooner the child will have access to the
father's medical benefits, medical history information, a legal
relationship with the father, child support, and other benefits
resulting from paternity establishment.
To address the fact that mothers of newborns stay in the hospital
only a short period of time after birth, States and their hospital-
based programs should attempt to offer paternity acknowledgment
services during peak hospital visiting hours, which may be in the
evening, to ensure that all unmarried parents have the opportunity to
voluntarily acknowledge paternity. In addition, States are encouraged
to provide information on the importance of paternity establishment
prior to the birth of the child (e.g., at prenatal clinics and maternal
and child health programs).
2. Comment: Some commenters expressed concern that the proposed
January 1, 1995 effective date for statewide implementation of the
hospital-based program would be difficult to meet. One commenter
suggested that OCSE provide training and technical assistance to help
States meet this deadline. Commenters pointed out that in a few States
the first legislative session after enactment of OBRA '93 will be in
1995.
Response: With one adjustment, we are keeping the effective dates
as proposed. As required by the Federal statute, States must have laws,
regulations and/or binding procedures required under
302.70(a)(5)(iii)(A) in place on October 1, 1993 (or if legislation is
required, by the beginning of the first calendar quarter after the
close of the first regular session of the State legislature that begins
after August 10, 1993).
Under Sec. 303.5(g)(1), the hospital-based programs must be
operational in birthing hospitals statewide no later than January 1,
1995. Given the increasing number of out-of-wedlock births, we believe
Congress intended these hospital-based programs to be implemented as
quickly as possible, and we cannot justify further delay. Depending on
State circumstances, the January 1, 1995 effective date gives States
over a full year after the Federal mandate's effective date to gear-up
to a statewide program. In the preamble to the proposed rule (58 FR
62599, 62603), we encouraged States to begin implementing their
hospital-based programs immediately, even if a State law had not yet
passed, by contacting hospitals and appropriate agencies and developing
forms, written materials, and training procedures.
However, as commenters pointed out, OCSE cannot impose a regulatory
effective date that is stricter than the statutory one. Therefore, we
have added the phrase ``unless Federal law governing the effective date
gives the State additional time'' to the January 1, 1995 effective date
at Sec. 303.5(g)(1). This phrase only applies to States where: (1) the
end of first regular legislative session beginning after enactment of
OBRA '93 (on August 10, 1993) occurs after January 1, 1995, and (2) the
State legislature needs to pass law regarding the hospital-based
program in order for the State to comply with
Sec. 302.70(a)(5)(iii)(A). A State meeting these conditions will have
until the effective date contained in Federal statute to implement its
hospital-based program statewide. Such a State, however, must have both
its law in place and have its hospital-based program operational
statewide by the Federal statutory effective date. We encourage States
to establish their hospital-based program and mandate participation by
birthing hospitals through regulation or procedure with the full force
and effect of law. However, if enabling State legislation is necessary,
the State can proceed with implementation planning and arrangements
concurrent with consideration of the legislation.
To facilitate the establishment of hospital-based programs, the IV-
D agency may enter into agreements or contracts with birthing hospitals
or other State agencies. (Some type of formal agreement is required in
order to receive FFP for $20 payments per acknowledgment; see
discussion below). A State could also contract with a private entity or
organization to implement the hospital-based program. For purposes of
Title IV-D State plan requirements, the State will still be liable for
ensuring that the required process has been implemented. We encourage
the State to work closely with the State hospital association; State
staff who have implemented existing programs indicate the hospital
association was a key player in implementation.
OCSE is committed to continuing to provide technical assistance to
help States implement hospital-based programs quickly. To date, OCSE
has sponsored a well-attended national conference for State agency
personnel, published and disseminated ``In-Hospital Paternity
Establishment: A Resource Guide'', and run feature stories in its
nationally disseminated periodical, the Child Support Report, all of
which addressed hospital-based program implementation issues.
3. Comment: Two commenters requested that the regulations include
an enforcement mechanism regarding the participation of birthing
hospitals.
Response: The statute did not include a Federal enforcement
mechanism targeted directly at hospitals (such as a link to Medicaid or
Medicare funding), and OCSE does not have the authority to establish
such a mechanism by regulation.
However, a State must meet the hospital-based program requirement
at Sec. 302.70(a)(5)(iii)(A) as a condition of IV-D State plan
approval. Each State's title IV-D plan must be approved for the State
to receive Federal financial participation in the operation of its
Child Support Enforcement program. At a minimum, new
Sec. 302.70(a)(5)(iii)(A) requires State law, regulation, and/or
binding procedure to compel all public and private birthing hospitals
to participate in hospital-based programs as defined in
Sec. 303.5(g)(2). At State option, State law may include an enforcement
mechanism for dealing with noncompliance by hospitals.
4. Comment: In the proposed rule, we suggested defining ``birthing
hospital'' as a hospital that has a licensed obstetric care unit or is
licensed to provide obstetric services, or a licensed birthing center
associated with a hospital. One commenter argued that this proposed
definition was too restrictive and did not account for the variety of
licensing procedures used by States. According to the commenter, at
least one State licenses hospitals generally, not according to whether
they provide birthing services.
Response: We have changed the definition of birthing hospital at
Sec. 301.1 from what was originally proposed. A birthing hospital is
now defined as a hospital that has an obstetric care unit or provides
obstetric services, or a birthing center associated with a hospital. If
a State licenses hospitals according to whether they have obstetric
units or provide obstetric services, or if a State licenses birthing
centers, the State may use the list of licensed entities to determine
in which facilities hospital-based programs should be established.
Since we do not believe programs should be mandated in hospitals
(such as geriatric hospitals) that do not provide maternity services,
we have limited the hospital-based program requirement to hospitals
that either have an obstetric care unit or that provide obstetric
services. In the definition of birthing hospital, we also include
birthing centers associated with a hospital. A birthing center is a
facility physically located outside a hospital that provides maternity
services. Generally, such centers use midwives and provide services for
women who expect no complications during birth. Frequently, a hospital
will provide back-up services to a birthing center if complications
develop. Since in some localities, a significant number of births occur
in birthing centers, we believe voluntary acknowledgment programs
should be established in such centers that are associated with
hospitals.
5. Comment: One commenter asked how the Federal OCSE would monitor
State compliance with the hospital-based program requirements.
Response: Section 454(20) of the Act requires that the State IV-D
plan provide that the State shall have in effect all the laws required
under the mandatory procedures established in section 466 of the Act.
Since the requirements for hospital-based programs are part of the
mandatory procedures set forth in section 466, States must demonstrate
conformity with these requirements as a condition for having an
approved State IV-D plan. As a condition of State plan approval, States
must have a law (or procedure, rule, or regulation with the force of
law) providing for a hospital-based program and requiring that all
public and private birthing hospitals participate in the program in
accordance with Sec. 302.70(a)(5)(iii)(A). In addition, as part of the
State plan approval process, States will be asked to certify that
hospital-based programs are operational in birthing hospitals statewide
no later than January 1, 1995 (unless Federal law governing the
effective date gives the State additional time) in accordance with
Sec. 303.5(g)(1). States failing to demonstrate conformity with these
requirements will be subject to State plan disapproval procedures
outlined in OCSE-AT-86-21. Non-conformity could result in the
suspension of all IV-D funding as well as loss of a portion of title
IV-A funding to the State.
b. Elements of a Hospital-Based Program.
1. Comment: Numerous commenters recommended that Federal hospital-
based program requirements include detailed and specific provisions
regarding due process safeguards and the explanation of rights and
responsibilities. For example, some commenters suggested federally-
mandated training protocols, and safeguards to protect the mother,
particularly in cases involving domestic violence.
Response: As discussed earlier in response to comments, although we
agree with the importance of affording due process and explaining
rights and responsibilities, we have tried to avoid overly prescriptive
Federal requirements that would unnecessarily disrupt or interfere with
the operation of existing, successfully-functioning programs.
However, OCSE is committed, within its available resources, to
offering technical assistance and ``best practices'' regarding forms,
written materials, and training procedures. Moreover, Federal
requirements regarding hospital-based requirements are somewhat more
detailed than the general voluntary acknowledgment requirements, due to
the special conditions, discussed earlier, surrounding hospital-based
programs.
Under Sec. 303.5(g)(2)(i), a hospital-based program must provide to
both the mother and alleged father, if he is present in the hospital:
(A) Written materials about paternity establishment, (B) the forms
necessary to voluntarily acknowledge paternity, (C) a written
description of the rights and responsibilities of 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.
The written materials about paternity establishment can be
brochures, pamphlets, or similar materials that describe the benefits
of paternity establishment and the consequences of a voluntary
acknowledgment. Some States have begun using informational films or
videos, in addition to written materials. The State may want to include
a discussion of the potential impact of an acknowledgment on custody,
visitation, and adoption.
The description of rights and responsibilities may be a separate
document or be included on the other written materials or forms.
However, we encourage States to include the description on the form
itself to serve as proof that notice of the rights and responsibilities
was provided in the event the acknowledgment is later challenged. The
description should list the rights each party is conceding by signing
the acknowledgment. It should also 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.
These rights and responsibilities will vary by State, depending on
State law.
In accordance with Sec. 303.5(g)(5), the State must provide the
written materials, written description of rights and responsibilities,
and acknowledgment forms to the birthing hospitals for distribution.
The materials should be written in clear, easily understandable terms.
The State is responsible for ensuring that birthing hospitals have an
adequate supply of these items to distribute to unmarried mothers and
alleged fathers upon birth of a child. Hospitals already distribute a
variety of materials and forms to patients and can incorporate
paternity materials and forms into their existing distribution
procedures.
Under Sec. 303.5(g)(4), the State must require that a voluntary
acknowledgment obtained through a hospital-based program be signed by
both parents, and that the parents' signatures be authenticated by a
notary or witness(es). Therefore, an acknowledgment of paternity cannot
be made in the hospital unless both the mother and the alleged father
agree to acknowledge the man's paternity. The form used for
acknowledging paternity in a hospital-based program should contain
lines for both parents' signatures and authentication by a notary or
witness(es).
Under Sec. 303.5(g)(2)(iii), a hospital-based program must also
afford any additional due process safeguards necessary under State law,
court rulings, and special circumstances. We encourage States to work
with hospitals to ensure that the voluntary aspect of the program is
promoted and maintained. Neither the mother nor the father should be
pressured into signing acknowledgments.
One way of ensuring that the process remains voluntary is through
training of appropriate personnel. Under Sec. 303.5(g)(6), the State
must provide training, guidance, and written instructions regarding
voluntary acknowledgment of paternity, as necessary to operate the
hospital-based program. States may use classroom sessions, written
instructions or handbooks, audio or video tapes, technical assistance
provided via telephone, or other means to meet this requirement.
Regardless of the method or combination of approaches, the State should
ensure that staff, as they assume the responsibility, are instructed in
the operations of the program. One State with an existing program has
provided formal training every few years, while providing technical
assistance and guidance via telephone and written instructions to
supplement the training sessions. Another State is developing a
videotape for training hospital-based program staff. OCSE plans to
share knowledge of materials and experiences regarding training
protocols and procedures.
Finally, we encourage States to consider other safeguards suggested
by commenters as a means of protecting women in cases potentially
involving domestic violence. These include training workers to
recognize possible domestic violence, and talking with the mother and
alleged father separately so that the mother can raise any concerns
privately and discreetly.
2. Comment: Several commenters objected to the proposed requirement
that a hospital-based program provide to both the mother and alleged
father, if he is present in the hospital, the opportunity, prior to
discharge from the hospital, to speak with staff, either by telephone
or in person, who are trained to clarify information and answer
questions about paternity establishment. The commenters suggested that,
since mothers usually stay in the hospital only a short time after
birth and the alleged father may only appear briefly at the hospital,
it is unrealistic to expect hospital or IV-D workers to be able to talk
with all parents about paternity establishment prior to discharge,
particularly during weekend or evening hours. Some commenters also
expressed concerns about the ability and propriety of hospital workers
to respond to complex legal questions.
Response: In response to commenters, we have not included the
phrase ``prior to discharge'' in the final requirement at
Sec. 303.5(g)(2)(i)(D). Therefore, a hospital-based program must give
parents an opportunity to talk with staff, but not necessarily prior to
discharge. The staff could either be hospital staff (e.g., medical
social workers, medical records technicians, or medical provider
staff), IV-D, or other agency staff. Most existing programs use
hospital staff.
To meet this requirement, a hospital-based program must: (1) Have
staff in the hospital 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 hospital-based program may utilize both of these
approaches.
We encourage hospital-based programs to have staff in the hospitals
available to talk with the parties in person. Each program should make
staff available, especially during evening and weekend visiting hours,
to ensure that all unmarried mothers and alleged fathers present at the
hospital are afforded an opportunity to acknowledge paternity. Notaries
public or witnesses (designated hospital staff in some ongoing
programs), as required under State law, should also be available to
authenticate acknowledgments in the hospital. Staff can answer simple
questions and assist parents in completing the forms. However, as
commenters pointed out, hospital staff may not be able to answer legal
questions regarding paternity establishment. In fact, at least one
existing hospital-based program advises program staff not to answer
legal questions; instead, the parents are given the telephone number of
a State agency to contact. A hospital-based program may also want to
advise parents that, if they have such questions, they should contact a
legal services agency or an attorney.
Some parents may not be able to reach State agency personnel via
telephone, or may not decide to acknowledge, until after discharge from
the hospital. Therefore, we recommend that acknowledgment forms include
clear instructions that allow the parents to complete and mail an
acknowledgment some time after leaving the hospital.
3. Comment: Numerous commenters requested clarification regarding
whether a hospital-based program must seek a voluntary acknowledgment
prior to the birth of a child.
Response: Regulations at Secs. 302.70(a)(5)(iii)(A) and 303.5(g)
require hospital-based programs for the voluntary acknowledgment of
paternity during the period immediately before or after the birth of a
child to an unmarried woman in the hospital. The phrase ``during the
period immediately before or after the birth of a child'' comes from
section 466(a)(5)(C) of the statute. These provisions do not require a
hospital-based program to seek a voluntary acknowledgment prior to the
birth of a child. A hospital-based program should not seek a completed
acknowledgment prior to birth unless State law recognizes the validity
of pre-birth acknowledgments.
However, regardless of whether a State's law recognizes pre-birth
acknowledgments, the period prior to birth offers an opportunity to
inform both parents about the value of paternity establishment and
their rights and responsibilities. Several States have developed
outreach programs in prenatal clinics and other facilities. These
programs give parents the time and knowledge to make an informed
decision, particularly since most mothers only stay a short period of
time in the hospital after giving birth.
4. Comment: Several commenters suggested that genetic testing be
required for all newborns as a means of determining or confirming their
parentage and preventing fraudulent acknowledgments of paternity. Other
commenters recommended expanding the role of hospital-based programs to
include voluntary genetic testing services.
Response: We are not requiring genetic testing for all births as a
means of preventing fraudulent acknowledgments. Under Sec. 303.5(g)(4),
a State must require that a voluntary acknowledgment obtained through a
hospital-based program be signed by both parents, and that the parents'
signatures be authenticated by a notary or witness(es). We believe the
number of cases where both parties would be willing to make a false
claim of paternity is very small. Furthermore, the cost of providing
genetic testing as a condition of acknowledging paternity in all cases
would be significant. Fraudulent acknowledgments could be challenged in
court where genetic tests could, of course, be ordered.
Furthermore, we are not requiring hospital-based programs to offer
the option of genetic testing as part of hospital-based programs. The
statutory requirement for hospital-based programs does not include
genetic testing, and we believe that imposing additional requirements
will make statewide compliance by January 1, 1995 more difficult.
Although not a requirement, we encourage States to incorporate the
opportunity for genetic testing into their hospital-based programs. A
readily available testing capability may persuade additional fathers to
voluntarily acknowledge or expeditiously resolve any doubts as to
paternity. A few States have begun to offer genetic testing in
hospitals. Another State routinely obtains stipulations in the hospital
where both parties agree to undergo genetic testing at a later date.
c. Withholding Services in Some Cases.
1. Comment: Several commenters suggested that a hospital-based
program should not have to provide services in cases where the mother
is considering adoption (even though an adoption is not yet pending) or
is otherwise reluctant to acknowledge the man's paternity.
Response: We have retained the requirement at Sec. 303.5(g)(3) as
proposed. This allows a hospital-based program to withhold services
related to acknowledging paternity, when necessitated by State law, in
cases where the mother or alleged father is a minor or a legal action
(e.g., relinquishment of parental rights for purposes of adoption) is
already pending. Some States may have laws which prohibit voluntary
acknowledgments of paternity by minors, or the State may want hospital-
based personnel to avoid interference in cases where a legal action is
pending. Therefore, the hospital-based program is not required to
provide services to the mother and alleged father in such cases, if
provision of services is prohibited by State law. However, the services
listed in Sec. 303.5(g)(2) should be provided to other unmarried
parents.
Certainly, if a mother is considering adoption (but action is not
yet pending) or, for some other reason, does not want to acknowledge
the man's paternity, she may decline to sign the voluntary
acknowledgment. The in-hospital process is entirely voluntary, and an
acknowledgment obtained through a hospital-based program requires the
signatures of both parents. If the mother does not wish to participate
and declines to identify the father, no further action is required on
the part of the hospital.
2. Comment: One commenter asked how the hospital will find out that
circumstances in a particular situation permit paternity acknowledgment
services to be withheld.
Response: Generally, hospitals will be able to obtain this
information from the patient (if an adoption is pending) or from
hospital records (if a termination of parental rights or other
proceeding is pending). In other cases, hospitals may only learn of the
circumstances after talking with both the mother and alleged father
(e.g., if he is a minor).
3. Comment: Commenters asked if a hospital-based program must
provide services in cases where the parents are not residents of the
State, or in cases involving illegal aliens.
Response: An individual's residency or citizenship status may not
be a basis for excluding the person from an opportunity to acknowledge
paternity. A hospital-based program must provide services to unmarried
parents regardless of whether they are nonresidents or illegal aliens.
Paternity establishment is a service in the best interest of the child
and the residency or citizenship status of the parents does not reduce
the child's interest in having legal paternity established.
d. Annual Assessment.
1. Comment: Several commenters objected to the proposed requirement
mandating an annual assessment of each birthing hospital's program.
Commenters suggested the requirement was overly burdensome, was not
necessary to determine a program's effectiveness, and would require
data that are not readily available. Other commenters suggested that
the intent and requirements of the provision needed clarification.
Response: We retained the assessment requirement in the final
regulation. States must assess each birthing hospital's program on at
least an annual basis. It is essential that a State not only establish
hospital-based program procedures, but also follow-up to determine if
such procedures are working. The intent of this requirement is not to
establish performance quotas or to create pressure for hospitals to
obtain acknowledgments, but rather to ensure that hospitals are
actually operating programs. Staff turnover among hospital personnel or
a depleted supply of forms or materials may disrupt or even suspend a
hospital-based program's operation. The annual assessment will allow
the State to detect whether such problems occur, and to take
appropriate action (periodic staff training, regularly supplying new
forms) to prevent them.
The annual assessment requirement does not mandate a formal
investigation or audit. Rather, it simply requires States to examine
data which, in most States, should be available without the need for a
special data collection. At a minimum, the annual assessment must
examine the number of acknowledgments received from each hospital. If
the State makes payments to the birthing hospitals for each voluntary
acknowledgment obtained, it should already have access to data
regarding the number of acknowledgments per hospital. We encourage the
State to consider the number of acknowledgments as a percentage of the
number of out-of wedlock births during the same period at each
hospital, if data regarding births are available. This percentage will
provide a more accurate measure of a hospital-based program's
operation. Data regarding the number of out-of-wedlock births per
hospital are already collected by vital statistics agencies in some
States.
If the number of acknowledgments received from a hospital seems
unusually low or has declined significantly from the number received in
the past, the State should contact the hospital to determine whether
training or other assistance is needed.
e. Forwarding and Recording Acknowledgments.
1. Comment: We received numerous comments regarding the proposal to
require procedures for filing voluntary acknowledgments with either the
State IV-D agency or a centralized State agency that provides the State
IV-D agency access to copies of, and identifying information on, the
acknowledgments. The proposed rule also would have required the IV-D
agency, in IV-D cases needing paternity establishment, to determine if
a voluntary acknowledgment had been filed with the agency designated by
the State.
Many commenters suggested that, while a central database of
information regarding acknowledgments might be useful, there is little,
if any, benefit in requiring States to file actual copies of
acknowledgments with a central entity. Actual copies may be needed at
the local level by a court or agency, but not at the central or State
level, during support order establishment or other proceedings. The
commenters explained that many States already have procedures for
filing acknowledgments with a local court or agency.
One commenter suggested that we require all voluntary
acknowledgments, not just those obtained through hospital-based
programs, to be filed with a central entity.
Response: We have significantly revised this requirement in light
of comments to the proposed rule. The final regulation, at
Sec. 303.5(g)(2)(iv) requires a hospital-based program to forward
completed acknowledgments or copies to the entity designated under
Sec. 303.5(g)(8). Section 303.5(g)(8) requires the State to designate
an entity to which hospital-based programs must forward completed
voluntary acknowledgments or copies. Under State procedures, this
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).
A State's procedures may provide for forwarding acknowledgments or
copies to any entity designated by the State--a local court or agency,
the vital statistics agency, the IV-D agency, or some other entity. We
are not, as one commenter suggested, requiring the designated entity to
be the State's vital statistics agency; we want to avoid unnecessary
interference with States' previously-established procedures. A State
can have more than one designated entity. The designated entity is
responsible for recording identifying information about the
acknowledgments with a statewide database (or, alternatively, for
forwarding the acknowledgments or identifying information to another
entity responsible for recording the identifying information with the
statewide database). No matter what entity a State designates, the
information should be recorded promptly so that necessary information
and documentation will be readily available to the IV-D agency.
The State must have one centralized, statewide database, which may
be automated at State option, that contains identifying information
about acknowledgments. The identifying information must be maintained
in one automated database (if automated) or one central location (if
not automated). The database may be established and maintained by the
State IV-D agency, some other State agency, or a contractor under
agreement with a State agency. If a State's database is maintained by
the IV-D agency, we encourage the IV-D agency to incorporate the
database into its statewide computerized support enforcement system.
The database may be maintained by an agency other than the designated
entity, as long as the designated entity records (or forwards to
another entity for recording) with the statewide database identifying
information about acknowledgments forwarded to the entity. The State
may, at State option, develop procedures for filing or recording actual
copies of acknowledgments, in addition to identifying information, in a
statewide database.
As with the proposed rule (58 FR 62599, 62601), the requirement for
forwarding acknowledgments or copies is limited to hospital-based
programs. (To clarify the applicability of this requirement, we are
including it in the hospital-based program section at Sec. 303.5(g)
rather than in Sec. 302.70 as proposed). We do not have authority to
mandate that persons or entities in non-IV-D cases (except for
hospital-based programs, which are required as a condition of IV-D
State plan approval) adhere to these procedures. Forwarding/recording
procedures are not necessary to link IV-D cases with acknowledgments
obtained through the IV-D program, since the IV-D agency is already
aware of such acknowledgments. However, for purposes of uniformity and
centralized access, we strongly encourage States to expand their
statewide databases to include identifying information on voluntary
acknowledgments obtained from sources other than hospital-based
programs. At State option, procedures for forwarding acknowledgments to
the designated entity may be made available to any party who wishes to
use the procedures. States may want to include instructions for
forwarding the acknowledgment on the acknowledgment form itself. If a
State's vital statistics agency (or similar agency responsible for
birth registration) is the designated entity or maintains the statewide
database of identifying information, the State may choose to link these
forwarding/recording instructions with instructions for adding the
father's name to the birth certificate.
The purpose of these procedures is to ensure that the IV-D agency
has a source for determining, in a IV-D case needing paternity
establishment, whether or not an acknowledgment was obtained outside
the IV-D system (e.g., at the hospital). The IV-D agency should use
such previously-obtained acknowledgments of paternity as the basis for
establishing and enforcing a child support order.
To ensure that voluntary acknowledgments are used in IV-D case
processing, Sec. 303.5(h) compels each IV-D agency to determine, in
cases needing paternity establishment, if identifying information about
a voluntary acknowledgment has been recorded in the statewide database
mandated by Sec. 303.5(g)(8). Once a IV-D agency matches a case with a
voluntary acknowledgment recorded in the statewide database, it must
then use that acknowledgment to seek a support order in IV-D cases.
When attempting to determine if a voluntary acknowledgment of
paternity has previously been completed in a IV-D case needing
paternity establishment, we encourage the IV-D agency to first ask the
custodial parent whether the alleged father voluntarily acknowledged
paternity at the hospital or at some other time. However, unless the
custodial parent is able to provide a copy of the acknowledgment,
asking the custodial parent, by itself, does not satisfy the
requirement at Sec. 303.5(h) under which the IV-D agency must determine
if an acknowledgment has been recorded with the statewide database. A
recent evaluation of one city's hospital-based program found that, in
IV-D cases where a voluntary acknowledgment had previously been
obtained at the hospital, the IV-D agency was not aware of the
acknowledgment in about half of the cases. Custodial parents may be
unable or unwilling to tell the IV-D agency about a voluntary
acknowledgment previously obtained in the hospital. Therefore, a State
must have some other means, either automated or manual, for checking
the records of the statewide database to determine if identifying
information about an acknowledgment has been recorded with the
statewide database. Although we encourage use of automated matching, we
are not requiring such since the records of a State's designated entity
may not be automated and we are not providing Federal financial
participation for the development of a computer system for the
designated entity. Regardless of whether the State uses an automated or
manual process, the IV-D agency must have access to up-to-date
information.
A IV-D agency does not need to determine if a voluntary
acknowledgment has been recorded with the statewide database in a case
where the IV-D agency: (1) Is already aware that an acknowledgment has
been completed and has documentation necessary to seek a support order
on the basis of that acknowledgment; (2) knows that it is unlikely that
an acknowledgment is recorded with the statewide database (e.g., the
child's birth certificate indicates that the child was born in another
State); or (3) does not have sufficient information to make a
determination. In a case where a child was born in another State, the
IV-D agency may check with the other State to determine if identifying
information about an acknowledgment has been recorded. With respect to
situations where sufficient information is lacking, we encourage the
IV-D agency to search for an acknowledgment under the child's name if
the custodial parent fails to provide the name of an alleged father.
Failure of the custodial parent to provide the name of an alleged
father is not a sufficient basis, by itself, for deciding not to
determine if an acknowledgment has been recorded.
Under State procedures, the IV-D agency must have timely access to
whatever identifying information and documentation it needs, in a IV-D
case, to determine in accordance with Sec. 303.5(h) if an
acknowledgment has been recorded in the statewide database and to seek
a child support order on the basis of a recorded acknowledgment in
accordance with Sec. 303.4(f). This identifying information must
include sufficient information to enable the IV-D agency to determine
if an acknowledgment recorded in the statewide database matches a IV-D
case needing paternity establishment--for example, names and social
security numbers.
Concerning documentation, in some States, the IV-D agency may need
the original acknowledgment or an authenticated copy in order to
establish a support order on the basis of the recorded acknowledgment.
If this is the case, in order to satisfy Sec. 303.5(g)(8), under which
the IV-D agency must have timely access to necessary information and
documentation, the State may need procedures under which some entity
(perhaps the entity designated to receive acknowledgments or copies
from hospital-based programs under Sec. 303.5(g)(8)) maintains
acknowledgments and gives the IV-D agency access to acknowledgments or
copies. Identifying information in the statewide database should
indicate the location where an acknowledgment or copy is maintained, if
such information is necessary.
If necessary, the IV-D agency should enter into agreements with:
(1) The agency responsible for maintaining the statewide database (in
order to obtain identifying information about acknowledgments recorded
in the database), and (2) the entity that maintains the acknowledgments
(in order to obtain authenticated copies). If allowable under State
law, a State may also choose to give other agencies, besides the IV-D
agency, access to the statewide database (e.g., agencies which need the
records to establish benefit claims, such as Social Security).
2. Comment: Several commenters requested that Federal financial
participation (FFP) be available for costs associated with filing
copies of acknowledgments with entities such as vital statistics
agencies. One commenter asked whether 90 percent enhanced funding would
be available for automated systems changes associated with filing
procedures.
Response: FFP is available for three related costs. First, under
Sec. 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 Sec. 303.5(h), whether a voluntary acknowledgment has been
recorded with the statewide database 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
from an entity of documents such as voluntary acknowledgments or birth
certificates. Third, FFP is available, under previously-existing
policy, for the IV-D agency's costs incurred under an agreement,
including 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 designated entity
(required by Sec. 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 (if such an agreement is necessary).
However, FFP is not available for the costs of establishing,
maintaining, or operating the designated entity (required under
Sec. 303.5(g)(8)) or any entity where copies of acknowledgments are
filed or maintained, unless that entity is theP IV-D agency. Similarly,
FFP is not available for the costs of establishing, maintaining, or
operating the statewide database of identifying information about
voluntary acknowledgments, unless the agency that maintains that
database is the IV-D agency.
In addition, if a State needs to make changes to its IV-D statewide
automated system in order to accommodate these new voluntary
acknowledgment requirements (or other requirements in this rule),
enhanced FFP is available for automated systems until September 30,
1995. If changes are required after that date, regular FFP is
available.
3. Comment: We received several comments urging us to require that
the State add the father's name to the child's birth certificate once
the father acknowledges paternity.
Response: Although we encourage such procedures and encourage
States to consider any changes in law or procedure to facilitate this
outcome as part of their implementation of OBRA '93 requirements, we
have no authority to regulate State birth registration procedures. If a
State chooses its vital statistics agency (or similar agency
responsible for birth registration) as the designated entity or the
agency responsible for its statewide database of identifying
information on acknowledgments (required under Sec. 303.5(g)(8)), the
State may want to link the forwarding/recording process with procedures
for including the father's name on the birth certificate if an
acknowledgment is sufficient basis for including the father's name on
the certificate under State law. If a State's acknowledgment form
includes the social security numbers of the parents, the recording of
voluntary acknowledgments with a vital statistics agency may also be a
way of obtaining social security numbers from parents as required
during the birth registration process by section 205(c)(2)(C)(ii) of
the Social Security Act.
4. Comment: Some commenters requested that we prohibit filing
agencies (such as vital statistics agencies or courts) from charging
the State IV-D agency or IV-D agencies in other States fees for
obtaining copies of voluntary acknowledgments or other records.
Response: We do not have the authority to issue regulations
forbidding State entities from charging fees for records.
However, as mentioned above, Federal financial participation is
available for reasonable and necessary costs, including fees, incurred
by the IV-D agency in obtaining from an entity copies of documents such
as voluntary acknowledgments or birth certificates.
5. Comment: One commenter suggested that we mandate a system for
officially recording and documenting genetic test results which create
a presumption of paternity.
Response: We do not think such a system is necessary. Most genetic
testing takes place in the context of ongoing action to establish
paternity. Once genetic test results either exclude an alleged father,
create a presumption of paternity, or reflect inclusionary findings not
rising to the level of a presumption, the action will move to the next
step in the process. By contrast, a database of voluntary
acknowledgments is needed since a large number of acknowledgments are
obtained outside of an ongoing paternity/support order establishment
process (e.g., in hospital-based programs).
f. FFP Availability for Hospital-Based Programs.
1. Comment: Numerous commenters requested that Federal financial
participation (FFP) for hospital-based programs be expanded to cover
additional costs, including the costs of hospital staff; travel for
hospital staff attending training sessions; notaries; and other
operating costs. Other commenters suggested that FFP availability
should be extended to schools, WIC agencies, town clerks, and other
agencies that might provide voluntary acknowledgment services.
Response: FFP is available for certain costs associated with
hospital-based programs. First, under previously-existing policy, FFP
is available for the IV-D agency's costs incurred under necessary
agreements between the IV-D agency and birthing hospitals or other
State agencies, including the IV-D agency's costs of establishing such
agreements. Second, FFP is available for IV-D staff that work on
developing and implementing (e.g., training, drafting materials,
meeting with hospital officials) the hospital-based program.
Third, under new Sec. 304.20(b)(2)(vi), FFP is available for
payments of $20 or less actually made to birthing hospitals for each
voluntary acknowledgment obtained through a hospital-based program as
defined by Sec. 303.5(g)(2). Several States have found such payments to
be successful in obtaining the cooperation of hospitals. The $20 per
voluntary acknowledgment is also available for voluntary
acknowledgments obtained in other entities that provide prenatal or
birthing services. In order for payments to be eligible for FFP, the
birthing hospital or other entity must, however, have a formal
agreement with the IV-D agency. States are not required to provide
payments to hospitals.
Fourth, Sec. 304.20(b)(2)(vii) makes FFP available for the costs of
developing and providing to birthing hospitals and other entities that
provide prenatal or birthing services written and audiovisual materials
about paternity establishment and forms necessary to voluntarily
acknowledge paternity.
Finally, Sec. 304.20(b)(2)(viii) makes FFP available for reasonable
and essential short-term training regarding voluntary acknowledgment of
paternity associated with a State's hospital-based program as defined
by Sec. 303.5(g)(2). Although the training must be short-term in order
to be eligible for FFP, training may be provided on a periodic basis,
as suggested by one commenter. This rule also modifies Sec. 304.23(d),
which limits the availability of FFP for training to specific
circumstances, to allow for FFP as provided for in
Sec. 304.20(b)(2)(viii). Consistent with existing policy which allows
FFP for the cost of judge's travel to attend training not associated
with the judicial determination process, FFP would be available for the
cost of hospital personnel's travel to attend reasonable and essential
short-term training sessions regarding the hospital-based program.
We encourage, but do not require, States to extend their hospital-
based programs beyond birthing hospitals to clinics, health
departments, and other facilities. Since a mother's stay in a hospital
after giving birth is relatively short, parents may benefit from
receiving information about paternity establishment before birth, in
prenatal clinics for example. To encourage the expansion of early
paternity establishment programs beyond hospitals, FFP is available for
developing and providing materials about paternity establishment and
forms necessary to acknowledge, not only to hospitals, but to other
entities that provide prenatal or birthing services. Similarly, FFP is
available for payments of $20 or less, not only to birthing hospitals,
but to other entities that provide prenatal or birthing services and
obtain a voluntary acknowledgment pursuant to a written agreement with
the IV-D agency.
However, FFP is not available for other costs, including hospital
operational and staff costs. We are not providing FFP for costs
associated with voluntary acknowledgment services provided by schools,
WIC agencies, town clerks, or other such entities. Except in limited
and clearly defined circumstances as already enunciated, we do not
believe the IV-D program should finance costs of hospitals, health care
providers, vital statistics agencies, or public educational programs.
As previously stated, FFP is available for payments of up to $20 per
acknowledgment to birthing hospitals (and other providers of prenatal
and birthing services who obtain acknowledgments). These hospitals may
spend this money any way they choose--to pay for notaries, hospital
staff, or other costs.
FFP is available for the costs of developing and providing
materials and forms as well as for the costs of training, as described
above, regardless of whether these services are provided through a
contractor or directly by the State. If an entity or organization other
than the IV-D agency develops or distributes the paternity
establishment materials, provides nominal payments per acknowledgment,
or provides training to hospital-based program staff, that entity must
have a written agreement with the IV-D agency in order for the State to
receive FFP for these activities.
2. Comment: One commenter asked whether the availability of FFP for
payments of up to $20 per acknowledgment was contingent upon the
establishment of an agreement between the IV-D agency and the birthing
facility receiving the payment.
Response: Yes, a written agreement is necessary. To clarify this,
we have added the phrase ``pursuant to an agreement with the IV-D
agency'' to the regulatory provision at Sec. 304.20(b)(2)(vi) allowing
FFP for such payments.
Effect of a Voluntary Acknowledgment: Presumption of Paternity;
Admissible as Evidence--Section 302.70(a)(5)(iv)
1. Comment: Several commenters asked us to mandate that a voluntary
acknowledgment creates a conclusive presumption of paternity, as a way
of giving children finality and improving interstate uniformity.
Conversely, other commenters argued that a presumption arising from a
voluntary acknowledgment should always be rebuttable, since some
acknowledging parents may mistakenly acknowledge paternity. One
commenter asked that we specify a process for how to handle a case when
a party who previously signed a voluntary acknowledgment of paternity
later denies that the man named on the acknowledgment is the father.
Response: We do not have the authority to either mandate or prevent
a State from having laws under which a voluntary acknowledgment creates
a conclusive presumption of paternity. Subsection 466(a)(5)(D) of the
Act requires States to have laws and procedures under which the
voluntary acknowledgment of paternity creates a rebuttable, or at the
option of the State, conclusive presumption of paternity.
Despite the concerns of commenters, we would like to emphasize the
benefits of this provision of the Federal law. Prior to enactment of
OBRA '93, in many States an acknowledgment was simply considered some
evidence of paternity. The new Federal law and this implementing
regulation ensure that the acknowledgment creates a rebuttable or
conclusive presumption instead.
In a paternity case, a rebuttable presumption is a rule of evidence
that shifts the burden of proof to the presumed father to disprove
paternity, if he chooses to contest paternity after the acknowledgment.
A conclusive presumption has the same legal effect as a judgment for
paternity. If a State enacts laws under which a voluntary
acknowledgment creates a conclusive presumption, the State may still
allow certain challenges, just as judgments can now be challenged. The
mechanics of challenging an acknowledgment, whether a rebuttable or
conclusive presumption, are left to State law and procedure.
2. Comment: One commenter suggested that the term ``conclusive
presumption,'' used in connection with both voluntary acknowledgments
and genetic test results meeting a State's threshold, is confusing and
subject to multiple interpretations.
Response: We use the term ``conclusive presumption'' because it is
used in the statute. Basically, a conclusive presumption has the same
legal effect as a judgment or determination of paternity. For example,
the law of one State where a voluntary acknowledgment creates a
conclusive presumption reads: ``A written acknowledgment by both the
man and woman that the man is the father of the named child legally
establishes the man as the father of the child for all purposes.''
Another State's law reads: ``The parent and child relationship between
a child and a man may be established by a written statement of the
father and mother made under oath acknowledging paternity * * *. Such
statement * * * shall have the same legal effect as a judgment * * *.''
However, a State may still allow challenges to a conclusive
presumption, just as judgments can be challenged (e.g., in cases where
there is evidence that the acknowledgment was obtained by fraud or
coercion, or where signatures were forged).
Conditions for Admission of Genetic Test Results as Evidence--Section
302.70(a)(5)(v)
1. Comment: Several commenters complained that the requirement
regarding admission of genetic test results as evidence would interfere
with their existing procedures. Some of these commenters requested that
we allow alternative procedures, besides those contained in the
proposed rule, for admission of genetic test results. One commenter
asked us to permit a timeframe, within which objections to genetic test
results must be made, triggered by the date of receipt of genetic test
results.
Response: Section 302.70(a)(5)(v) requires States to have laws and
procedures under which any objection to genetic test results must be
made in writing within a specified number of days before any hearing at
which such results may be introduced into evidence; and if no objection
is made, a written report of the test results is admissible as evidence
of paternity without the need for foundation testimony or other proof
of authenticity or accuracy.
This provision has two major benefits. First, by only allowing
challenges that are made within a designated timeframe, it prevents
last-minute challenges to genetic test results. Last-minute challenges
are particularly difficult to meet since they may require testimony
from laboratory technicians and experts who often live out-of-state and
must travel long distances.
Second, in cases where no objection is timely raised, this
provision expedites the process by allowing admission of a written
report of the genetic test results without the need for foundation
testimony. Prior to the enactment of OBRA '93, some States had
cumbersome foundation requirements (e.g., requiring the testimony of
every person involved with the chain of custody of the blood sample)
that are unnecessary if no objection to the test results is raised.
In some respects, this provision of the law and regulation gives
States flexibility. States may set the ``specified number of days''
within which objections to genetic test results must be made before a
hearing. The U.S. Commission on Interstate Child Support recommended
that States require any objection to genetic testing results be made in
writing at least 21 days prior to trial. Before the enactment of OBRA
'93, at least four States had a timeframe that required an objection to
genetic test results be made at least 20 days prior to trial; two
States required objections to be made at least 30 days prior to trial.
Furthermore, while this rule requires that genetic test results be
admissible without foundation in cases where no timely objection is
raised, the judge or decisionmaker who determines matters of fact still
must decide what weight to accord the test results, in light of other
evidence presented, if the results do not reach the State's threshold
for creating a presumption of paternity. Moreover, this provision does
not prevent a State or its tribunals from setting standards for
laboratory accreditation or procedures and parameters regarding what
type of tests can be admissible as evidence. While we encourage all
States to admit genetic testing results that have proven to be
reliable, we recognize that as new testing technologies are developed,
there may be a need to critically examine new procedures in the
scientific community and in the courts before test results from such
procedures are used on a widespread basis.
In other respects, however, this provision is very specific.
Section 466(a)(5)(F) of the Act requires that an objection must be made
``a specified number of days before a hearing at which such results may
be introduced into evidence''. State timeframes that allow objections
within a specified number of days of ``receiving a copy of the testing
report'' or ``after service of the written test results'' do not
require objections to be raised a specified period prior to the
hearing, and therefore do not meet the requirements of Federal law.
However, a State with such a timeframe would satisfy Federal
requirements if: (1) Its State law also includes a timeframe for
raising objections within a specified number of days prior to a
hearing, or (2) its State law requires that a request for genetic tests
must be made, and testing completed, within a specified number of days
prior to the hearing. In other words, a State law which specified that
objections must be made, for example, ``within 20 days of receipt of
genetic testing results or 20 days prior to the hearing, whichever date
is earliest,'' would meet the requirements of this rule.
State statutes must require objections to be raised within a
specified number of days before a hearing. Allowing objections ``within
the time limit'' or ``within the time allowed by the court'' do not
meet Federal requirements unless court rules, regulations, or other
procedures also specify a standard number of days allowed by law.
State law, in addition to including timeframes for raising
objections to genetic test results, must also indicate that a written
report of such results is admissible as evidence without foundation
testimony if no written objection is raised. A State, through statute,
regulation, or binding procedure, must meet both parts of the
requirement at Sec. 302.70(a)(5)(v).
2. Comment: To ensure due process, one commenter urged that States
should be able to require foundation testimony (e.g., setting forth the
chain of custody of the blood sample) unless the parties stipulate that
genetic test results may be introduced as evidence.
Response: As clearly indicated by the Federal statute, State law
must provide that if no timely objection is made, genetic test results
are admissible as evidence of paternity without the need for foundation
testimony or other proof of authenticity or accuracy. This requirement
does not compromise due process protections. The timeframe requiring
objections to be made in writing before the hearing merely ensures that
the other party is fairly informed and given a specified period within
which to arrange for witnesses to testify in support of the test
results. The alleged father can object to test results within the time
period specified by the State in accordance with Sec. 302.70(a)(5)(v)
and make any challenges warranted. If the test results are admitted,
the alleged father can introduce other evidence (e.g., regarding his
relationship with the mother during the probable period of conception).
Even if the test results meet the State's threshold and create a
presumption of paternity, the alleged father can attempt to rebut the
presumption by presenting other evidence. It should be recognized that
genetic test results are a unique form of material evidence in a
paternity hearing. If there are serious doubts concerning chain of
custody, laboratory procedures or analysis of the results, the testing
can simply be replicated at the same facility or another laboratory.
All ``objections'' to the evidence can and should be resolved before
any hearing ever occurs.
3. Comment: One commenter asked if a State could include an
exception to its timeframe for raising objections to genetic test
results, for cases where the party does not receive the genetic test
results in time to comply with the objection period. Under the
exception, the party would have to respond at least 24 hours (or a
similar short period) prior to the hearing. This would prevent the IV-D
office from having to request a continuance of the hearing in cases in
which the test results are received after the timeframe for objecting
has already expired.
Response: Such an exception is allowable. Basically, the State
would have two timeframes--a regular timeframe and a shorter timeframe
for use when test results are received late (after the regular
timeframe for objecting has elapsed). Federal requirements do not
prevent a State from having more than one timeframe, as long as each
timeframe includes a ``specified number of days'' and satisfies other
requirements at Sec. 302.70(a)(5)(v).
Presumption of Paternity Based on Genetic Test Results--Section
302.70(a)(5)(vi)
1. Comment: Some commenters suggested that OCSE set a standard
national threshold or a minimum threshold for creating a conclusive
presumption of paternity.
Response: We believe that by using the open-ended phrase ``a
threshold probability'', the statute gives States flexibility to
designate a specific threshold probability that creates a presumption
of paternity. There appears to be no widespread agreement in the child
support or genetic testing community presently regarding what
percentage should be designated as the threshold, and commenters failed
to suggest a specific threshold. Prior to the enactment of OBRA '93,
about half of the States had adopted a presumption of paternity
standard based on genetic test results. These States' statutory
threshold probabilities generally fall at a point in the range of 95 to
99 percent. We recommend that the remaining States choose a percentage
within this range.
2. Comment: In the preamble to the proposed rule, we suggested that
the threshold probability should be the inclusionary probability that
the alleged father is the biological father of the child. Some
commenters requested that States be allowed to tie the threshold to
either the paternity index or another statistical standard determined
by the State based upon the results of the genetic tests.
Response: The statute, and implementing regulation at
Sec. 302.70(a)(5)(vi) require that a presumption of paternity be based
upon genetic test results indicating a threshold probability of the
alleged father being the father of the child. We are allowing a State
to tie its threshold to an inclusionary probability, whether expressed
as the paternity index or another statistical standard that indicates
the probability, based upon the results of the specific testing
performed, that the accused man is the biological father of the child.
The paternity index expresses the likelihood that the alleged
father is the true biological father compared to the likelihood that a
random man of the same race is the father. The paternity index can be
converted to a probability of paternity through a mathematical
calculation, and is merely another way of expressing the ``likelihood''
or the inclusionary probability of paternity.
3. Comment: One commenter suggested that tighter standards
regarding the use or acceptance of genetic test results are needed if
test results can create a conclusive presumption of paternity.
Response: While OCSE does not have the statutory authority to
establish such testing standards, some private entities do accredit
genetic testing laboratories and techniques. We encourage States to use
high-quality laboratories. OCSE provided a listing of laboratories in
Directory: Genetic Testing Laboratories (July 1993, 3rd Edition).
4. Comment: One commenter requested clarification regarding how
States are to resolve cases involving both presumed and putative
fathers or more than one presumed father.
Response: In some cases, the presumption of paternity created by
genetic test results may conflict with a presumption created by a
voluntary acknowledgment, a presumption of legitimacy created by
marriage, or another presumption. For example, a child born to a
married woman is presumed to have been fathered by the woman's husband
in most States; however, genetic test results could create a
presumption (either rebuttable or conclusive) that another man is
actually the father. State law determines how conflicting presumptions
are handled, and several States have enacted legislation to address
this issue. The Uniform Parentage Act (UPA), a model State law that
approximately 18 States have enacted, provides that if two or more
presumptions arise which conflict with each other, the presumption
which, on the facts, is founded on the weightier considerations of
policy and logic controls. Presumptions may be rebutted and, finally,
the paternity issue is resolved by a court or administrative decree.
The presumption based on genetic test results required by
Sec. 302.70(a)(5)(vi) and the presumption based on a voluntary
acknowledgment required by Sec. 302.70(a)(5)(iv) are evidentiary
requirements. States may have laws which establish additional
presumptions, and rules for resolving apparent conflicts. A conclusive
presumption would take precedence over a rebuttable presumption. In
cases where two or more rebuttable presumptions applied, the trier of
fact would be required to sort out the evidentiary considerations and
make the ultimate decision.
Voluntary Acknowledgment is Basis for Seeking Support Order--Sections
302.70(a)(5)(vii) and 303.4(f)
1. Comment: Numerous commenters objected to the proposed provision
under which genetic test results meeting or exceeding a State's
threshold probability must be recognized as the basis for seeking a
support order without requiring any further proceedings to establish
paternity. Many commenters suggested that since this provision was not
in the Federal statute, OCSE did not have the authority to include it
in regulation. Commenters also argued that such a requirement would
unnecessarily interfere with existing, successful State procedures. For
instance, according to commenters, since some States require a
paternity proceeding to be filed before genetic test results can be
obtained, paternity actions would have to be filed and immediately
dismissed upon receipt of test results in most cases (either because
the threshold probability was met, requiring action to seek a support
order to begin, or because the man was excluded). According to another
commenter, at least one State's law prohibits discovery of assets and
income (necessary for support order establishment) until after
paternity has been established or action is filed in court. Other
commenters worried that this requirement would impede due process by
not giving the alleged father sufficient opportunity to challenge the
genetic testing evidence.
Response: While we believe we do have authority under section 1102
of the Act to include such a requirement, we are, in response to the
overwhelming number of commenters, encouraging, but not mandating, that
genetic test results meeting or exceeding the State's threshold be
recognized as the basis for seeking a support order without further
action to establish paternity. We are limiting the requirement at
Sec. 302.70(a)(5)(vii) to what is explicitly mandated by the statute--a
voluntary acknowledgment must be recognized as the basis for seeking a
support order without further action to establish paternity.
We had proposed to expand this requirement to genetic test results
meeting a State's threshold as a way of ensuring that support orders
are established as quickly as possible. However, as some commenters
pointed out, as long as a State meets the expedited process timeframes
under Sec. 303.101(b)(2), there is no need to unnecessarily interfere
with a State's procedures. By limiting this requirement to what is
mandated by statute, we are giving States more flexibility. This
approach is more results-oriented since it ensures expeditious outcomes
through timeframes rather than a prescriptive procedural requirement.
However, we still encourage States to consider implementing
procedures under which genetic test results meeting or exceeding the
State's threshold must be recognized as the basis for seeking a support
order without further action to establish paternity. In fact, such
procedures may help States meet expedited process timeframes. For the
purpose of consistency, a State may want to give the same weight to
genetic test results (at a certain threshold level) as it does to a
voluntary acknowledgment as the basis for seeking a support order. We
do not believe such procedures compromise due process. If the
presumption, based upon genetic test results, is rebuttable, and a
written objection is timely filed, the alleged father may be given the
opportunity during the support establishment proceeding to contest
paternity.
2. Comment: For States where a voluntary acknowledgment creates a
rebuttable presumption of paternity, several commenters expressed
confusion about how the State could seek a paternity determination
based on the acknowledgment when OBRA '93 requires State law to
recognize a voluntary acknowledgment as the basis for seeking a support
order without further proceedings to establish paternity. One commenter
asked whether a paternity determination is required if a support order
can be entered without a paternity determination. Several other
commenters suggested that if a State's voluntary acknowledgment creates
a rebuttable presumption of paternity, the presumption should
automatically ``ripen'' into a conclusive presumption or determination
of paternity within a specified period of time.
Response: Although a voluntary acknowledgment must serve as the
basis for seeking a support order without further proceedings to
establish paternity, the IV-D agency must still establish paternity in
accordance with State law. The statute merely precludes State
requirements that the paternity determination must be a separate,
preliminary action prior to a proceeding seeking support for the child.
The voluntary acknowledgment may be the basis for seeking an immediate
temporary support order, pending a final determination of paternity, or
the request for support and the paternity proceeding could be combined.
The IV-D agency must meet two requirements once a father
voluntarily acknowledges paternity. First, action to seek a child
support order must begin based upon the acknowledgment, without waiting
for further proceedings to establish paternity. Second, unless the
acknowledgment by itself establishes paternity, the IV-D agency must
take further action to establish paternity in accordance with legal
process under State law.
In order to meet both of these requirements, we encourage States
where a voluntary acknowledgment creates a rebuttable presumption of
paternity to combine paternity and support order establishment in the
same proceeding, if both are needed in a case. If the IV-D agency seeks
both paternity and support in the same proceeding, it may also be
possible to obtain a temporary support order pending a final judgment.
Alternatively, a State may choose to establish support awards on
the basis of a rebuttable presumption of paternity, and to convert the
presumption to a final paternity determination through subsequent
administrative or judicial processes. For example, State law could
provide that the rebuttable presumption of paternity becomes, by
operation of State law, a conclusive presumption or a determination of
paternity if not challenged within a specified period of time. Another
option would be to permit the presumption to be challenged in a
separate proceeding after the intermediate support order is entered
based upon the voluntary acknowledgment. In any event, paternity
establishment is a mandatory IV-D function, and a final determination
must be made in accordance with the timeframes.
If under State law, a voluntary acknowledgment creates a conclusive
presumption of paternity (which is a legal determination of paternity),
the IV-D agency does not need to take any further action to establish
paternity and may immediately move to seek a support order on the basis
of an acknowledgment.
3. Comment: Several States' procedures provide for the filing or
ratification of voluntary acknowledgments by a court or administrative
agency. Commenters asked whether such filing/ratification could occur
prior to initiation of action to establish a support order on the basis
of the acknowledgment, or whether filing/ratification would be
considered ``further proceedings to establish paternity'' under
Sec. 302.70(a)(5)(vii). Other commenters asked if such filing/
ratification could occur as a prerequisite to the acknowledgment
creating a rebuttable or conclusive presumption of paternity in
accordance with Sec. 302.70(a)(5)(iv), or whether the acknowledgment
itself would have to create a presumption of paternity.
Response: In IV-D cases, we would not construe mere filing or
ratification of an acknowledgment by a court or administrative agency
as ``further proceedings to establish paternity'' (emphasis added) if
such filing/ratification did not require a hearing and did not
unreasonably delay seeking a support order. In most States with filing
or ratification procedures, the process is pro forma and completed in a
matter of days. If a State's filing/ratification procedures meet these
conditions, it may file or ratify an acknowledgment prior to initiating
support proceedings in IV-D cases. However, we encourage States to
combine any filing/ratification process with the support order
establishment process so that there will be no delay (e.g., if an
acknowledgment must be filed with the court it could be done as part of
the proceeding for support order establishment).
Similarly, under current law, filing/ratification of an
acknowledgment can be a prerequisite to the creation of a rebuttable or
conclusive presumption of paternity. For example, the Uniform Parentage
Act (UPA) establishes a presumption of paternity if a man
``acknowledges his paternity of the child in a writing filed with the
appropriate court or Vital Statistics Bureau (emphasis added) * * *.''
Some States require filing with a court or agency as part of the
voluntary acknowledgment process itself. The issue of whether or not
filing/ratification is part of the voluntary acknowledgment process or
a post-acknowledgment prerequisite to the establishment of a
presumption of a paternity is largely a matter of semantics. These
procedures are matters of State discretion so long as the
acknowledgment, ultimately, has presumptive evidentiary value and is
recognized as the basis for seeking a support order.
Default Orders--Sections 302.70(a)(5)(viii) and 303.5(f)
1. Comment: Commenters asked whether State law must provide for
entry of a default order for both failure to appear at a hearing and
failure to respond to a notice. Other commenters asked whether State
law must require default orders even in cases where the defendant
initially files an answer or other appropriate response, but later
fails to appear at a hearing. In some States, a default order cannot be
issued once the defendant files an initial answer or response, unless
that initial answer is stricken.
Response: We have reworded Sec. 302.70(a)(5)(viii) for clarity.
State law must require entry of default orders upon showing that the
alleged father failed to respond to service of process in accordance
with State procedures (assuming that process was served and any other
showing required under State law has been met). State procedures
generally require the alleged father to file a written response within
a certain timeframe or to appear on a specific date or within a
reasonable period of time specified by the State. A State should link
entry of a default order to failure of the alleged father to act in
accordance with the procedure the State has established.
In addition, State law need not require a default order to be
entered if the alleged father initially responds in accordance with
State procedures but later fails to appear at a hearing or respond to a
notice. Section 302.70(a)(5)(viii) only requires States to enter
default orders in cases where there is no initial response from the
alleged father (upon showing of service of process and any additional
showing required under State law). States may, however, choose to go
beyond this minimum requirement by compelling tribunals to enter
default orders in cases even if the alleged father initially responds.
For example, some States provide for the use of default judgments to
address situations in which the alleged father fails to cooperate with
an order to appear for genetic testing.
2. Comment: One commenter suggested that all alleged fathers should
be provided advance notice specifying the conditions under which a
default order may be entered.
Response: We are leaving this matter to State law. We believe that
States already provide advance notice whenever there is the potential
for a default order, generally as part of the notice sent to the
alleged father requesting him to respond or appear at a hearing. Some
States may require additional proceedings prior to entry of the default
order to ensure that the alleged father was properly notified and is
competent to respond. States also may have procedures for challenging
and setting aside default orders, and may notify the parties of this
process when default orders are entered.
3. Comment: One commenter suggested that the provision regarding
default orders should be permissive rather than mandatory, thereby
allowing exercise of judicial discretion based on the specific
circumstances of each case.
Response: To meet the requirements of the Federal statute, States
must require, not simply allow, tribunals to enter default orders
establishing paternity in accordance with Sec. 302.70(a)(5)(viii).
Prior to enactment of OBRA '93, most States already had provisions for
entry of judgments by default as part of their civil procedure code or
statute. At least eleven States also had default provisions that
applied specifically to paternity cases. However, in many States the
default provision was permissive rather than compulsory. States may
need to change such permissive default laws to meet Federal statutory
requirements, which will ensure that default orders are routinely
issued in paternity cases, where appropriate. Judicial discretion not
to enter the default order still may be applied, for instance, where
the circumstances indicate that the alleged father may not have been
properly served or may not have had the capability to respond (e.g., he
has a mental deficiency or is a minor).
4. Comment: One commenter asked why the proposed regulation
required State default laws to apply to contested paternity cases.
Response: We have not included the word ``contested'' in the final
requirement at Sec. 302.70(a)(5)(viii). We agree that use of the word
``contested'' is unnecessary. Under some States' definition of a
``contested'' case, a case may not actually be contested until the
alleged father responds and denies paternity. The default provision
applies to cases where the alleged father fails to respond.
5. Comment: One commenter requested that we expand the default
requirement to apply to support establishment actions as well as
paternity actions.
Response: Because the statute specifically limits the scope of the
default provision to paternity establishment, we are limiting its
application in this regulation. Therefore, these regulations do not
compel State law to require that default orders be entered in support
order establishment actions.
Regulations at Sec. 303.101(d)(4) do require that presiding
officers under expedited processes have the ability to enter default
orders in both paternity and support establishment cases. However,
State law may give the presiding officers discretion regarding whether
or not to actually enter the default orders in support establishment
actions. For example, if there is no evidence sufficient to apply the
guidelines, it may be impossible to enter a support order by default.
We encourage presiding officers to enter default orders in appropriate
support establishment cases. In paternity establishment cases, State
law must compel, not simply allow, presiding officers to enter default
orders in accordance with Sec. 302.70(a)(5)(viii).
6. Comment: Some commenters asked us to specify what ``additional
showing'' is required for entry of a default order in accordance with
Sec. 302.70(a)(5)(viii). For example, one commenter suggested that we
specify that ``additional showing'' means a prima facie case.
Response: Since the statute says ``any additional showing required
by State law'' (emphasis added), States have discretion to specify
their own requirements. These regulations reflect the discretion
afforded by the statute. We recommend, in order to withstand possible
future challenge, that States require some evidence of paternity, such
as a sworn statement or allegation by the mother, before entering a
default order. In addition, States may require some evidence or showing
that the alleged father is not under a legal or medical disability or
subject to protection of the Soldiers and Sailors Civil Relief Act (50
U.S.C. Secs. 501-591).
Full Faith and Credit for Paternity Determinations--Section
302.70(a)(11)
1. Comment: Several commenters questioned how a State should treat
a voluntary acknowledgment or genetic test results obtained by another
State, particularly if the acknowledgment or test results created a
rebuttable presumption in one State and a conclusive presumption in the
other.
Response: Under the principle of full faith and credit, an out-of-
State paternity judgment is to be given the same force and effect in
other States as it is given in the State of origin. When a State gives
full faith and credit to another State's paternity judgment, it honors
that judgment according to its terms, just as if it had been entered in
the second State.
Under OBRA '93, a State must have laws providing that it will
recognize a determination of paternity made by another State whether it
is established through voluntary acknowledgment or through
administrative or judicial processes. A conclusive presumption based
upon genetic test results or a voluntary acknowledgment which creates a
conclusive presumption of paternity in the State where it is
acknowledged should have the same force and effect as a judgment for
paternity. Other States must give full faith and credit to paternity
determinations based upon another State's conclusive presumption.
Generally, if no determination of paternity has previously been
made, State law of the forum State (i.e., the State where the
paternity/support action occurs) will determine the legal weight given
to a voluntary acknowledgment, genetic test results, or other evidence
(regardless of whether the acknowledgment, test results, or evidence
were obtained by or in the State or by another State).
2. Comment: Some commenters asked whether a paternity determination
made by one State could be contested or overcome in another State, and
if so, which State's laws and procedures are applicable.
Response: A paternity determination, like a judgment, even though
entitled to full faith and credit is generally subject to collateral
attack. Depending on State law, a paternity determination could be
attacked if it was fraudulently obtained, for example, or if the
issuing tribunal lacked jurisdiction. A collateral attack may be
barred, however, if the party challenging the determination had the
opportunity to raise or previously raised the same issues at the time
the paternity determination was made. The forum State's law governing
choice of law will determine which State's laws and procedures apply
when a judgment or paternity determination, otherwise entitled to full
faith and credit, is challenged.
3. Comment: One commenter requested guidance regarding the degree
to which determinations of paternity established by default are subject
to full faith and credit, since default orders are especially
vulnerable to collateral attack based on claims of improper service of
process.
Response: A State must give full faith and credit to any
determination of paternity, including a determination established by
default. It is imperative that State tribunals require a showing of
service of process prior to entry of a default order in accordance with
Sec. 302.70(a)(5)(viii) in order to limit future challenges based on
inadequate service.
4. Comment: With the option for each State to implement rebuttable
or conclusive presumptions both for voluntary acknowledgments and
genetic test results meeting a State's threshold, one commenter asked
how a State can determine the legal effect of an acknowledgment or test
results obtained in another State for purposes of determining if that
acknowledgment/test results should be afforded full faith and credit.
Response: States may consult the Interstate Roster and Referral
Guide which will continue to be regularly updated. Furthermore, in an
interstate case, the initiating State should notify the responding
State of the legal significance of any previously-obtained voluntary
acknowledgment, genetic test results, or other presumptive evidence of
paternity.
5. Comment: One commenter asked that we require States to give full
faith and credit to a paternity determination made by a Tribal Court.
Response: The Full Faith and Credit Clause of the U.S. Constitution
provides that ``full faith and credit shall be given in each State to
the Public Acts, Records, and Judicial Proceedings of every other
State.'' Congress, by enactment of 28 U.S.C. 1738 expanded full faith
and credit to the judicial proceedings of any court of any ``State,
Territory, or Possession of the United States''. Some States have
interpreted that language to include tribal governments, and other
States and Tribal Courts have voluntarily recognized and deferred to
each others judgments and laws as a matter of comity.
``Full faith and credit'' is a concept based upon the respect and
deference which the forum jurisdiction accords to the original
rendering jurisdiction. We believe that paternity determinations made
by Tribal Courts, especially those entered pursuant to cooperative
agreement with the IV-D agency in accordance with State laws and
Federal requirements, are entitled to such deference. We encourage
States to voluntarily grant full faith and credit to tribal
determinations of paternity, whether they are required to by Federal
statute or not.
Expedited Processes for Paternity Establishment--Sections 302.70(a)(2),
303.4(d), and 303.101
a. Paternity and Support Establishment Timeframe.
1. Comment: We received numerous comments regarding the proposed
use of ``date of locating the alleged father or noncustodial parent''
as the starting point for the expedited process timeframe at
Sec. 303.101(b)(2)(i). Most of these commenters objected to using
location as the starting point. Several commenters recommended that the
timeframe begin with ``date of service of process'' instead. According
to the commenters, location should not be the starting point of the
timeframe because: (1) Expedited process timeframes should only measure
activity in a State's administrative/judicial system; (2) States might
initiate administrative or judicial action in each case at the
beginning of the expedited process timeframe (i.e., upon location),
foregoing attempts to obtain voluntary acknowledgments of paternity or
consent support orders due to a fear of exceeding the timeframe if
administrative/judicial adjudication later became necessary; (3) the
meaning of ``date of locating'' is unclear and hard to define; and (4)
many cases require additional location services after initial location
is completed, potentially resulting in the stopping (and subsequent
restarting) of the expedited process timeframe each time a case needs
additional location services.
Response: In response to these numerous comments, the new expedited
process timeframe at Sec. 303.101(b)(2)(i) begins with ``date of
service of process'' rather than ``date of locating the alleged father
or noncustodial parent''. By beginning with service of process, the new
expedited process timeframe, compared to the timeframe in the proposed
rule, is more consistent with the long-standing purpose of the
expedited process requirement: to measure the timeliness of child
support activity in a State's administrative or judicial system.
However, as under prior regulations, timeframes are still needed to
ensure that activity prior to service of process is completed quickly.
The existing timeframe at Sec. 303.3(b)(3) measures the timeliness of
location activity. In this final regulation, because we are retaining
service of process as the starting point of the expedited process
timeframe, we must also retain at Sec. 303.4(d) a timeframe which will
measure activity between location and service of process. Therefore, we
require that, within 90 calendar days of locating the alleged father or
noncustodial parent, the IV-D agency must, regardless of whether
paternity has been established, establish an order for support or
complete service of process necessary to commence proceedings to
establish a support order and, if necessary, paternity (or document
unsuccessful attempts to serve process, in accordance with the State's
guidelines defining diligent efforts under Sec. 303.3(c)).
The new timeframe at Sec. 303.4(d) replaces the two former program
standard timeframes previously at Secs. 303.4(d) and 303.5(a)(1). In
cases where paternity establishment is needed, the IV-D agency would
need to obtain both a voluntary acknowledgment of paternity and a
consent support order, or else serve process, within the 90-calendar-
day timeframe. We have replaced two timeframes with one because we
believe having separate timeframes for paternity and support
establishment may have encouraged States to have separate proceedings
for paternity establishment and support order establishment (and to
take advantage of both timeframes). Instead, we want to encourage
States to establish paternity and support (if both are needed) quickly
and in the same proceeding whenever possible. This goal is also
reflected in the new expedited process timeframe at
Sec. 303.101(b)(2)(i) which subsumes paternity establishment (if
necessary) within the requirement for support order establishment.
In cases needing both paternity and support order establishment,
the timeframe at Sec. 303.4(d) will encourage IV-D agencies to seek
both a voluntary acknowledgment of paternity and a consent support
order within 90 calendar days. Studies show that about a third of
alleged fathers will voluntarily acknowledge paternity simply as a
result of being given the opportunity. Even more fathers will
acknowledge if genetic testing is completed and the test results show a
high probability of paternity. A study of one locality in the early
1980s, at a time when genetic testing was less powerful than it is
using today's technology, found that about 90 percent of alleged
fathers voluntarily acknowledged paternity after receiving genetic test
results that showed a probability of paternity. In order to facilitate
voluntary acknowledgments of paternity, a IV-D agency may want to offer
parents the opportunity to voluntarily submit to genetic testing prior
to commencing an administrative or judicial action. Just as the use of
voluntary acknowledgment procedures in paternity cases should
facilitate expeditious establishment of paternity, the use of
stipulations and consent judgments should help expedite support order
establishment.
If unable to establish a support order by consent within the 90-
calendar-day timeframe, the IV-D agency must serve process (or document
unsuccessful attempts to serve process) before the end of the 90
calendar days. The service of process must be sufficient to commence
administrative/judicial proceedings to establish a support order and,
if necessary, paternity.
For purposes of the timeframes at Secs. 303.4(d) and
303.101(b)(2)(i), we will construe the term ``service of process''
broadly as any action that gives the State jurisdiction over the
defendant under State law. This could include traditional service of
process (e.g., personal service, certified mail) or consent to
jurisdiction (e.g., waiver of formal service by signing a voluntary
appearance), as long as the date the service event occurs is documented
in the case record. Therefore, if a IV-D agency established a support
order by consent, the date the noncustodial parent consented to
jurisdiction could count as the date of service of process. If the
consent order was established within 90 calendar days from location,
the State could count the action as successful under the timeframe at
Sec. 303.4(d). In addition, the case would count as disposition under
the expedited process timeframe at Sec. 303.101(b)(2) since consent to
jurisdiction would be considered ``service of process''. Allowing a
consent order to be counted as disposition under expedited process
should provide States an incentive to attempt to establish orders
quickly by consent.
To further encourage voluntary paternity acknowledgments and
consent support orders, we will also allow States to satisfy the
Sec. 303.4(d) timeframe by ``commencing proceedings'' with a formal
notice requesting the alleged father/noncustodial parent to
voluntarily: either (1) acknowledge paternity or consent to entry of a
support order; or (2) appear at a conference or other proceeding where
he may acknowledge paternity or consent to entry of a support order.
The notice must be documented in the case records. It may be delivered
or served by any procedure which meets State requirements, as long as a
verifiable date of formal ``commencement of proceedings'' is returned
and maintained in the case record. However, if the State counts such
notices for purposes of the Sec. 303.4(d) timeframe, it must meet the
expedited process timeframe at Sec. 303.101(b)(2)(i), which would be
triggered by the notice. Under such circumstances, the IV-D agency
would have additional time (longer than 90 calendar days) to obtain a
consent order prior to filing an action with a court/administrative
authority, but still must establish an order within the expedited
process timeframe at Sec. 303.101(b)(2)(i), which would begin on the
date that formal notice is given to the alleged father/noncustodial
parent.
The definition of location, the starting point of the revised
timeframe at Sec. 303.4(d), will remain as stated in Sec. 303.3(a).
Location means information concerning the physical whereabouts of the
absent parent, or the absent parent's employer(s), other sources of
income or assets, as appropriate, which is sufficient and necessary to
take the next appropriate action in a case. As stated in the preamble
to the final regulation implementing standards for program operations
published on August 4, 1989 (54 FR 32284, 32297), States should
determine whether the information is sufficient to proceed with
necessary action, which may include service of process. Verification of
the information would not be necessary in a situation where the State
knows the information is sufficient to take the next appropriate
action. At such time as it is determined that service of process cannot
be effected because the information is not sufficient to take the next
appropriate action, the case would be referred for additional location
attempts.
2. Comment: We received several comments regarding the proposal to
create one expedited process timeframe for support establishment cases
that would apply regardless of whether paternity had been established.
Some commenters endorsed the simplicity and results-oriented nature of
this approach. A few commenters opposed this proposal, arguing in favor
of a separate timeframe for paternity establishment. According to
opponents of a combined timeframe, establishing paternity and support
in the same proceeding is untenable since, in some States, income and
employment data cannot be obtained and/or verified until paternity is
established, and the verification process can take several weeks.
Response: We decided against having a separate timeframe with
paternity establishment as an ``endpoint''. Instead, the new expedited
process timeframe at Sec. 303.101(b)(2)(i) applies to IV-D cases
needing support order establishment regardless of whether paternity has
been established. The endpoint of the timeframe is either the date a
support order is established/recorded or the date the action is
dismissed. Therefore, in cases where paternity and support order
establishment are needed, the IV-D agency must accomplish both actions
within the timeframe (unless action is dismissed).
We chose this approach for several reasons. First, it encourages
States to establish paternity and support in the same proceeding,
whenever possible, in cases where both actions are needed. A separate
expedited process timeframe for paternity establishment would have
suggested that States could have two separate proceedings (and both
time periods) for paternity establishment and support order
establishment. The combined timeframe covering both paternity and
support order establishment at Sec. 303.101(b)(2)(i) does not require
States to establish paternity and support concurrently in every case.
After paternity is established in some cases, a continuance or other
delay may be necessary to collect or verify financial information
necessary to calculate a support order amount (particularly in a State
where the guidelines calculation is complex). However, we want to
encourage States to move quickly from paternity establishment to
support order establishment and to complete both processes in the same
proceeding whenever possible.
Second, having one expedited process timeframe that encompasses
both paternity and support order establishment provides an incentive
for States to aggressively pursue early paternity establishment through
hospital-based and similar programs. If paternity is established or
acknowledged at birth, the State will have a head-start on meeting the
expedited process timeframe if the case subsequently becomes a IV-D
case, since one timeframe applies regardless of whether or not
paternity needs to be established.
Third, having one timeframe for establishment makes the expedited
process requirement simpler and easier to understand.
Finally, this approach is more results-oriented and gives States
greater flexibility while still assuring expeditious outcomes. Instead
of having an interim timeframe solely measuring paternity
establishment, States are measured according to their ability to reach
the end result (a support order) in an expeditious manner.
3. Comment: We received several comments regarding the proposed
percentage standards (75, 85, and 90 percent) in the expedited process
timeframe for paternity and support order establishment. Several
commenters argued that a 90 percent standard was too low since 10
percent of cases would not be covered. Other commenters thought the
percentage standards were reasonable, while one commenter thought they
were too stringent. One commenter suggested that the timeframe have
only two tiers--75 percent and 90 percent.
Response: The expedited process timeframe for establishment cases
at Sec. 303.101(b)(2)(i) contains 75 and 90 percent standards. As
suggested by a commenter, for purposes of greater simplicity, we
deleted the 85 percent standard.
The tiered-nature of the timeframe (75 percent and 90 percent) is
similar to the former expedited process timeframe. These tiers
recognize that some cases take longer to process than others. They
require that the significant majority of cases be processed within the
shortest tier of the timeframe, but allow a longer period for some
cases. The first tier is 75 percent--the audit standard that has
traditionally been used for evaluating compliance with case processing
requirements. The highest standard in the timeframe is 90 percent of
cases, not 100 percent as in the previous expedited process
requirement. By not imposing an absolute standard (100 percent of
cases), we have recognized that there are complex cases, particularly
some contested paternity cases, that cannot be resolved within the
required time period.
The 90 percent standard is also justified because we eliminated the
provision which allowed IV-D agencies to exclude complex cases from
expedited process. We deleted Sec. 303.101(b)(4) which allowed the
State, if a case involved complex issues requiring judicial resolution,
to establish a temporary support order under expedited processes and
then refer the unresolved issues to the full judicial system for
resolution. Since the new expedited process timeframe includes a 90
percent standard rather than a 100 percent standard, States will be
judged by their ability to meet the timeframe in all cases, including
cases involving complex issues.
4. Comment: We received several comments about the length of the
proposed expedited process timeframe for establishment cases. Some
commenters praised the reasonableness of the timeframe. Other
commenters suggested that the timeframe be shortened, while one
commenter thought it should be lengthened.
Response: We have adjusted the length of the timeframe, from what
we had proposed, since activity between locate and service of process
will be measured by the 90-calendar-day timeframe at Sec. 303.4(d)
rather than the expedited process timeframe at Sec. 303.101(b)(2)(i).
The new expedited process timeframe requires disposition within 6
months in 75 percent of cases and 12 months in 90 percent of cases.
Under the new timeframe, an IV-D agency will generally have a
shorter amount of time than under previously-existing timeframes to
establish paternity and support in cases requiring both actions.
However, it is difficult to directly compare the new expedited process
timeframe to the previously-existing one since the two timeframes apply
to different universes of cases. The former timeframe applied to cases
requiring support order establishment, while the new timeframe applies
to a broader universe--cases requiring support order establishment,
regardless of whether paternity has been established.
While a direct comparison between the former and new timeframes is
difficult, we believe the length of the new timeframe is reasonable and
is based on careful consideration of several factors. We took into
account all of the steps in the paternity and support establishment
processes. For paternity establishment, we considered that in some
cases time is needed for contacting the alleged father to offer him the
opportunity to voluntarily acknowledge; serving process; scheduling and
conducting genetic testing; completing discovery; and scheduling and
conducting trials or hearings. We also considered the amount of time
that it takes for an IV-D agency to obtain test results from genetic
testing laboratories in paternity cases. According to laboratories that
we contacted, it generally takes about three weeks to receive the
written report of results from the lab in a typical case. Although two
commenters suggested that three weeks is inadequate, particularly in
cases involving unusual circumstances, we believe the turnaround time
for receiving genetic testing results is only a small portion of the
expedited process timeframe and does not warrant expansion of the
timeframe.
For support order establishment, we considered that time may be
needed for contacting the noncustodial parent; attempting to obtain a
stipulation to an order; serving process; collecting income data and
other information needed to determine the award amount; calculating the
award amount using guidelines; and scheduling and conducting hearings.
Many of these steps required for support order establishment can be
accomplished in conjunction with paternity establishment in cases
requiring both paternity and support order establishment. For example,
an IV-D agency can serve process and obtain jurisdiction for paternity
and support order establishment at the same time.
In addition to carefully considering comments on the proposed rule
regarding the timeframe, we contacted national organizations and State
IV-D agencies to obtain whatever information exists regarding the
amount of time it typically takes, overall, to establish paternity and
support orders. We also looked at data gathered in OCSE audits.
However, prior to the enactment of OBRA '93, few, if any, States
had an array of laws which included all of the required features of the
revised Federal statute. Although each reform, by itself, should
expedite paternity establishment, the combined effect of adopting the
entire spectrum of requirements holds tremendous potential for
expediting the process.
In particular, the voluntary acknowledgment procedures should allow
States to establish paternity quickly in many cases. For those cases
that remain contested, the regulations regarding default orders,
admissibility of genetic tests, and presumptions of paternity based on
genetic test results should collectively contribute to expediting the
paternity determination process in contested cases.
States may certainly go beyond the basic requirements of this rule
and utilize a variety of other reforms to expedite the process for both
paternity establishment and support order establishment. These reforms
may include use of administrative procedures, court hearing officers,
more efficient case scheduling, pretrial conferences, and improved
coordination between the IV-D agency and the courts. In paternity
cases, States may also want to seriously reexamine the necessity of
allowing trial by jury. At least one State, for instance, has a law
which provides that the alleged father does not have the right to
demand a jury trial if genetic test results show a probability of
paternity of 99 percent or higher.
5. Comment: One commenter suggested that the timeframe should run
from the date of locating ``the last necessary party to the action'',
not from the date of locating ``the alleged father or noncustodial
parent''. The commenter pointed out that an alleged father or non-
custodial parent may apply for IV-D services. In addition, some cases
may involve both an alleged father and a presumed father.
Response: Although, as discussed above, we did not implement the
proposal to begin expedited process timeframes with the date of
location, the commenter's suggestion is still relevant to the new
timeframe at Sec. 303.4(d). However, in the interest of maintaining
clarity and consistency with other regulatory requirements, we did not
adopt the commenter's suggestion. We believe the phrase ``the last
necessary party to the action'' would make the regulatory language too
vague. In the vast majority of cases, it is the alleged father or
noncustodial parent who must be located.
However, in a case where the custodial parent, presumed father, or
some other party besides the alleged father or noncustodial parent must
be located and served in order for the case to proceed, the timeframe
at Sec. 303.4(d) would not begin until that party is located.
6. Comment: In the preamble to the proposed rule, we said there may
be paternity establishment cases where under State law or procedures,
it is inappropriate to establish a support order (e.g., if the
noncustodial parent is a minor, incapacitated, or incarcerated). Such a
case would still be counted as disposition if a duty to support is
established within the timeframe (58 FR 62599, 62611). One commenter
asked what we meant by ``duty to support''. In the commenter's State,
it is a civic duty for any parent to support his or her child; the
commenter asked if this duty to support by operation of law would
suffice for disposition if the parent was a minor, incapacitated,
incarcerated, or financially unable at the moment.
Response: A duty to support, in this instance, means a judicial or
administrative determination of the parent's legal obligation. A
determination, under the guidelines or based upon specific
circumstances, that there is no present ability to pay support would
count as a disposition.
7. Comment: We received two comments asking if exclusionary genetic
test results, obtained from testing which was completed voluntarily or
by stipulation prior to the filing of an action with a court or
administrative authority, would count as disposition under expedited
process.
Response: Such test results will count as disposition if they are
obtained after ``service of process'', as broadly defined for purposes
of the timeframes at Secs. 303.4(d) and 303.101(b)(2)(i). (See
discussion above). Because we are defining ``service of process''
broadly, ``service of process'' may occur prior to filing of an action
with a court or administrative authority.
If exclusionary test results are obtained and the man is eliminated
from consideration as a possible father before a formal commencement of
proceedings, the case would be excluded from the universe of cases
evaluated under the expedited process timeframe, and would count
neither as a ``success'' nor a ``failure'' under the timeframe.
Presumably, in exclusion cases, the mother would be interviewed again
and location efforts would begin to find the actual father.
8. Comment: We received several comments requesting that a
temporary order count as disposition under the expedited process
timeframe.
Response: A temporary order counts as disposition under the
expedited process timeframe provided that the amount of support is
determined in accordance with the State's guidelines for setting child
support awards or there is a finding on the record that the application
of guidelines would be unjust or inappropriate as specified under
Sec. 302.56.
9. Comment: Several commenters objected to the proposal that
documented unsuccessful efforts to serve process would no longer stop
timeframes. Commenters argued that some parents move frequently or
purposely evade service making it virtually impossible to complete
service in a short period of time.
Response: In response to commenters, the new timeframe at
Sec. 303.4(d) stops if the IV-D agency documents unsuccessful attempts
to serve process, in accordance with the State's guidelines defining
diligent efforts under Sec. 303.3(c). This is consistent with the
program standards timeframes previously at Secs. 303.4(d) and
303.5(a)(1).
10. Comment: Several commenters suggested that certain cases be
excluded from expedited processes. Specifically, commenters suggested
excluding cases where it would be difficult to meet the timeframes,
such as where the noncustodial parent is in the military, has filed for
bankruptcy, or lives in another State. According to one commenter,
without such an exclusion, a IV-D agency will be forced to dismiss (and
later refile) difficult cases in order to meet the timeframe. In
addition, some commenters suggested excluding cases where there is no
legally reachable income on which to base an award or where the
noncustodial parent has no ability to pay. According to commenters,
actions to establish orders in such cases are futile and a waste of
time and resources. Finally, one commenter asked that cases in which
the custodial parent fails to cooperate be excluded from expedited
process timeframes.
Response: Although paternity cases involving alleged fathers in the
military service, or who have declared bankruptcy, or who live in a
different State often present additional challenges and may be more
complicated, we are not excluding such cases from the expedited process
requirement. Although some cases present more difficulty, all cases
should be worked as quickly as possible. Nor are we aware of any
empirical data upon which to identify and exclude particular categories
of cases from expedited process. Even in the previous illustrations, we
believe that actions can generally be pursued, and most cases will be
resolved within the established timeframes. As an alternative to
wholesale exclusions, we developed a 90 percent standard in recognition
that it may be difficult to meet the timeframe in certain cases. This
approach allows the IV-D agency to exceed the timeframes in a small
percentage of cases, but does not allow the IV-D agency to
automatically exempt entire categories of cases from receiving timely
services.
States should not dismiss a case simply to meet the timeframe. We
believe the timeframe is reasonable for the great majority of cases,
and IV-D agencies are allowed to exceed the timeframe in 10 percent of
cases. Section 303.4(e) requires that if the court or administrative
authority dismisses a petition for a support order without prejudice,
the IV-D agency must, at the time of dismissal, examine the reasons for
dismissal and determine when it would be appropriate to seek an order
in the future, and seek a support order at that time. As part of this
process, the reason for dismissal should be documented in the case
record. A case dismissed for inappropriate reasons (i.e., simply to
meet the timeframe), will be considered, for audit purposes, an error,
rather than a success, under expedited process requirements.
Furthermore, we are not allowing IV-D agencies to exclude from
expedited process cases where there is no legally reachable income on
which to base an award or where the noncustodial parent has no ability
to pay. Prior to support establishment action (e.g., the discovery
process, a hearing), it may be impossible to accurately identify cases
where a noncustodial parent actually has no reachable income or ability
to pay. Furthermore, even if a noncustodial parent currently has little
or no ability to pay, his earnings may increase in the future. When
that time comes, it may be easier for the IV-D agency to collect
support if a nominal support order, or at least a finding of the duty
to support, was previously entered. Although we are not explicitly
excluding cases where the noncustodial parent has no ability to pay, in
certain circumstances a determination that it would be inappropriate to
establish a support order in a case (e.g., if the noncustodial parent
is a minor, incapacitated, or incarcerated) may count as a disposition
under expedited process requirements, as explained previously. See
comment 6.
Finally, as mentioned above, one commenter requested that AFDC
cases where the custodial parent fails to cooperate (but IV-A fails to
sanction noncooperation quickly) should be excluded from expedited
process timeframes. Since the expedited process timeframe begins with
service of process, cases where the custodial parent refuses to
cooperate from the outset of the case are not a concern in meeting the
timeframe. However, in other cases, the custodial parent may only
refuse to cooperate later in the case (e.g., refusal to cooperate with
genetic testing). The IV-D agency should clearly document the custodial
parent's noncooperation and notify the IV-A agency for action in
accordance with 45 CFR 232.12(c). If noncooperation is the reason for
the IV-D agency's inability to move forward in a case (e.g., the
custodial parent refuses to provide a blood sample for genetic
testing), and the IV-D agency has taken all appropriate action, the
case will be excluded from the audit sample.
11. Comment: One commenter requested clarification regarding the
extent to which States can claim credit under expedited process for
acknowledgments of paternity obtained through a hospital-based program
or simple, civil acknowledgment process.
Response: Under the new expedited process requirement, a State can
only count a case as a success once disposition is reached--i.e., once
a support order is established/recorded or action is dismissed.
Paternity establishment by itself, without a support order or
determination that an order for support is not appropriate, will not
count as a disposition, regardless of whether the paternity was
established by voluntary acknowledgment or some other method. However,
as States implement hospital-based and other simple voluntary
acknowledgment programs, paternity will be presumed or established in
more instances prior to the opening of a IV-D case. In these cases, the
IV-D agency will be able to move directly to establishing a support
order, making it easier to meet the expedited process timeframe.
12. Comment: In the preamble to the proposed rule, we solicited
comments regarding the proposal to begin paternity establishment
timeframes at the same point in all cases, regardless of whether a
child is younger than six months of age. Some commenters supported the
proposal, while others opposed it. Opponents argued that some
jurisdictions refuse to order genetic testing on infants under six
months of age. According to these commenters, many of the new genetic
testing technologies which make testing on infants easier have not yet
been widely accepted in the scientific community, have not been
certified by the American Association of Blood Banks (AABB), and are
not covered by most States' existing contracts with genetic testing
laboratories. One commenter also expressed concern about the workload
impact on hospital staff (in cases involving umbilical cord sampling)
and the fiscal impact on IV-D agencies and unmarried parents (due to
the higher cost of new testing technologies). Another commenter
suggested that a six-month delay was inconsequential since fathers in
many AFDC cases provide little or no support.
Response: The one-year paternity establishment timeframe at former
Sec. 303.5(a)(2) included an exception for cases needing paternity
establishment where the child was less than six months old. Under this
exception, the timeframe did not begin in a case until the child
reached six months of age. The exception reflected the practice of
waiting to draw blood samples for certain genetic tests until after the
infant was at least six months old.
At the time that the six-month-old-child exception was included in
regulation, we indicated, in the preamble to the Standards for Program
Operations final rule, that in the future we would reexamine the
exception in light of testing which does not require the child to be
six months old (54 FR 32284, 32301). We have now reexamined the
exception and deleted it. The expedited process timeframe at
Sec. 303.101(b)(2)(i) begins with the date of service of process
regardless of the age of the child.
According to genetic testing laboratories that we contacted,
genetic tests are valid when performed on a child under six months of
age, as long as certain tests are not used. The American Association of
Blood Banks (AABB) states that children under six months of age should
not be tested for two serum protein genetic markers (Gm and Km).
Testing for these markers could reveal maternal typings, rather than
those of the child, in cases involving infants. However, many other
tests, including those which examine red blood cell antigens, human
leukocyte antigens (HLA) and deoxyribonucleic acid (DNA) can be
accurately performed on infants.
Although difficulty may be encountered in drawing a sufficient
quantity of blood from a small infant in some cases, emerging
technology helps to address this problem. This technology includes DNA
testing which can be performed using a single spot of blood (obtained,
for example, by a heel stick), DNA testing (where samples of the buccal
cells lining the child's cheek are taken on a swab from inside the
baby's mouth), and umbilical cord sampling where blood samples are
taken from the newborn's umbilical cord. As a consequence, there is no
longer any scientific necessity or basis for allowing the six-month-of-
age exception.
In response to commenters concerns, we are not requiring that
States use these new genetic testing technologies. We believe that
Federal timeframes allow sufficient time even if such technologies are
not used. Because the top tier of the expedited process timeframe is 90
percent, States are allowed to exceed the timeframe in 10 percent of
cases.
While removal of the six-month exception does not require the use
of certain genetic testing technologies, it does encourage States to
initiate the paternity establishment process as soon as possible in
each case. Even in a case where the father can initially provide only
minimum support, the father's income may increase with time.
Furthermore, it is often easier to locate the father and obtain his
cooperation soon after birth. The earlier paternity is established, the
sooner the child will have access to the father's medical benefits,
medical history information, a relationship with the father, child
support, and other benefits resulting from paternity establishment.
13. Comment: We received a number of comments regarding the
application of the expedited process establishment timeframe to
interstate cases. One commenter suggested that we create a separate
timeframe for interstate cases. The commenters also requested
clarification and made suggestions regarding which state would be
responsible for meeting the timeframe and when the timeframe would
start in an interstate case.
Response: As stated in Sec. 303.101(b)(1), expedited process
requirements apply to both interstate and intrastate cases. We have not
created a separate timeframe for interstate cases. This policy is
consistent with policy regarding other timeframes, including program
standard timeframes, which apply to interstate cases as well as
intrastate cases. We believe the expedited process timeframe is
reasonable for most interstate cases, and IV-D agencies are allowed to
exceed the timeframe in 10 percent of cases. The timeframe at
Sec. 303.4(d) also applies to both interstate and intrastate cases.
The responding State is responsible for meeting timeframes,
including the expedited process timeframe, in interstate cases.
Regarding the starting point of the timeframe in an interstate case,
the new expedited process timeframe begins with the date of service of
process in the responding State. The timeframe at Sec. 303.4(d) begins
upon receipt of a case by the local IV-D agency in the responding State
responsible for the establishment of support orders. This approach is
consistent with previously-issued policy regarding program standard
timeframes that begin with the date of location (e.g., see preamble to
final regulations on standards for program operations published August
4, 1989 at 54 FR 32284, 32300).
14. Comment: One commenter requested clarification regarding
whether the new expedited process provision at Sec. 303.101(b)(2)(iii)
required States to use long-arm jurisdiction. The commenter suggested
that States should have flexibility to determine, on a case-by-case
basis, whether or not to use long-arm in a case.
Response: In paternity cases, Federal regulations at
Sec. 303.7(b)(1) require a State to use its long-arm statute, if it has
such a statute, where appropriate. OCSE also encourages, but does not
require, States to use long-arm statutes in support establishment
cases.
In developing the new expedited process timeframe, we considered
its impact on the use of long-arm jurisdiction. Cases brought under
long-arm jurisdiction may require some additional work to establish
jurisdiction over a nonresident. Therefore, IV-D agencies may have more
difficulty meeting the expedited process timeframe in cases involving
nonresident alleged fathers. Because we do not want the timeframe to
force a IV-D agency to refer a case involving a nonresident alleged
father/obligor to the State of his residence rather than asserting
local jurisdiction over him whenever possible, a State will be given
``credit'' for disposing of a case using long-arm jurisdiction. Under
Sec. 303.101(b)(2)(iii), for purposes of the expedited process
timeframe for paternity and support order establishment, in cases where
the IV-D agency uses long-arm jurisdiction and disposition occurs
within 12 months of service of process upon the alleged father or
noncustodial parent, the case may be counted as a success within the 6-
month tier of the timeframe, regardless of when disposition occurs in
the 12-month span following service of process.
15. Comment: One commenter asked how a case would be evaluated
under the audit if action to establish paternity or support using long-
arm jurisdiction is ``in process'' at the time of the audit but there
has been no disposition.
Response: A case where long-arm jurisdiction is used will be
excluded from consideration under the audit for both the 6- and 12-
month tiers of the expedited process timeframe at
Sec. 303.101(b)(2)(i), if action to establish paternity or support was
still in progress and the 12-month-tier of the timeframe had not yet
expired during the audit period. If the 12-month-tier of the timeframe
had expired during the audit period without disposition, the case will
count as an error under the 12-month standard but will be excluded from
an evaluation of the 6-month standard.
Generally, for cases worked by means other than long-arm
jurisdiction, a case will only be evaluated under a particular
timeframe if the timeframe expires during the audit period. However, if
a timeframe expires during or after the audit period for a case with
disposition within the audit period, the case will count as a success.
If a timeframe expires during the audit period for a case without
disposition within the audit period, the case will count as an error.
16. Comment: One commenter asked if actions to establish medical
support orders would still be subject to the expedited process
timeframe.
Response: Yes, establishment of medical support orders will be
subject to the expedited process timeframe at Sec. 303.101(b)(2)(i).
However, since medical support is usually included as a part of the
child support order, not as a separate order, this should not be an
issue.
b. Enforcement Timeframes.
1. Comment: Several commenters argued that expedited process
timeframes for enforcement should not be deleted. They stressed the
importance of ensuring that orders are enforced in a timely manner.
Response: We agree about the importance of timely enforcement.
However, to simplify and clarify enforcement requirements, we have
deleted the expedited process timeframe for enforcement formerly at
Sec. 303.101(b)(2). Under this timeframe, from the date of service of
process, disposition had to occur within 3 months for 90 percent of
cases, 6 months for 98 percent of cases, and 12 months for 100 percent
of cases. The scope of this timeframe had been limited, applying only
to enforcement activity in a State's administrative or judicial system
that occurred after service of process. The timeframe was further
limited since in the preamble to the final regulations implementing the
Child Support Enforcement Amendments of 1984 (50 FR 19608, 19629) we
stated that ``we did not require State's expedited processes to provide
for bench warrants and subpoena and contempt powers.''
It is much simpler and clearer to have one timeframe at
Sec. 303.6(c)(2) covering all enforcement activities (other than income
withholding and Federal/State income tax refund offset). This timeframe
will ensure that States expeditiously enforce child support orders in
IV-D cases. It requires enforcement action within no more than 30
calendar days (if service of process is not needed) or 60 calendar days
(if service of process is needed) of identifying a delinquency or other
support-related noncompliance, or location of the absent parent,
whichever is later.
The preamble to the final rule governing standards for program
operations (54 FR 32284, 32302) indicated that the 30/60 calendar-day
timeframe at Sec. 303.6(c)(2) would apply to ``consent procedures and
administrative procedures such as debt collection, telephone contact,
demand letters, or publication of names''. However, we are now
expanding the scope of this timeframe to cover all enforcement
techniques other than wage withholding and State/Federal income tax
refund offset. This includes, but is not limited to imposing liens on
real or personal property; requiring the obligor to post security,
bond, or other guarantee to secure payment of overdue support;
reporting delinquency information to a consumer credit agency;
withholding unemployment compensation; and other State remedies.
The timeframes at Sec. 303.100 will continue to apply in wage
withholding cases. These regulations, for example, include timeframes
for sending advance notice to the obligor in initiated withholding
cases, timeframes for procedures to contest withholding, and timeframes
for interstate wage withholding.
2. Comment: Two commenters contended that the timeframe at
Sec. 303.6(c)(2) did not allow sufficient time for some enforcement
actions. One of these commenters thought the timeframe would be
particularly difficult to meet when using judicial enforcement remedies
such as contempt. The other commenter pointed out that it was not cost-
effective to have frequent enforcement hearings in rural areas, due to
the travel costs for IV-D attorneys and the tribunal's decisionmaker.
Another commenter maintained that the 30/60 day timeframe was
sufficient, provided that States adopt high volume enforcement
procedures.
Response: The timeframe at Sec. 303.6(c)(2) has been in effect
since October 1, 1990 under regulations governing standards for program
operations (54 FR 32284). We believe it is reasonable to expect that a
support order be enforced within 30/60 calendar days (depending on
whether service of process is necessary) of identifying a delinquency
or location of the absent parent, whichever is later, as required by
Sec. 303.6(c)(2). The timeframe allows for additional time in cases
requiring service of process.
In addition, we concur with the commenter who recommended that
States adopt high volume enforcement procedures. Through extensive use
of automation and administrative processes, a State can effectively and
swiftly enforce a large number of cases.
We are aware, however, that there may be some instances where it is
difficult to meet the timeframe. Use of the 75 percent standard for
audit purposes recognizes that action may take longer in some cases
(such as cases involving the Soldiers and Sailors Relief Act (50 U.S.C.
501-591)). Furthermore, the new ``credit for results'' provision of the
audit regulation at Sec. 305.20(a)(4)(iv) will consider the State to
have taken appropriate action for audit purposes, regardless of whether
timeframes at Sec. 303.6 and other specified timeframes are met, if, in
a case where wage withholding is not appropriate, the State uses at
least one enforcement technique (in addition to Federal and State
income tax refund offset) and a collection is received during the audit
period.
3. Comment: Two commenters questioned how often, if at all, a IV-D
agency must take enforcement action in accordance with Sec. 303.6(c)(2)
in chronic enforcement cases where the obligor has neither the assets
nor the intent to comply with the order. One of the commenters argued
that attempting enforcement action in a case where the IV-D agency
knows the noncustodial parent cannot pay is a waste of resources.
Response: Enforcement action may be appropriate even in cases where
the IV-D agency believes that the obligor cannot pay since it is
sometimes difficult for the IV-D agency to detect ``hidden'' assets or
income. Enforcement action such as a contempt may stimulate an obligor
to pay, even if he initially claimed he was unable.
States have discretion with respect to which enforcement techniques
other than wage withholding and Federal/State income tax refund offset
are appropriate, as long as there is compliance with Federal
regulations, State procedures, and guidelines developed under
Sec. 302.70(b) which outline when it is not appropriate to use certain
enforcement techniques.
At a minimum, a IV-D agency must take any appropriate enforcement
action (other than income withholding and Federal/State income tax
refund offset) within 30 calendar days of identifying a delinquency, or
60 calendar days if service is required. Once initial enforcement
action is taken, if arrears are paid, but the obligor later falls into
arrears again, the IV-D agency must again take any appropriate
enforcement action within the 30/60-calendar-day timeframe.
If an obligor fails to resume payments and/or pay arrearages after
initial enforcement actions are taken, the IV-D agency should determine
on a case-by-case basis the frequency with which it will take follow-up
enforcement action (besides income withholding and Federal/State income
tax refund offset). Under Sec. 303.6(c)(4), a IV-D agency must, in
cases in which enforcement attempts have been unsuccessful, at the time
an attempt to enforce fails, examine the reason the enforcement attempt
failed and determine when it would be appropriate to take an
enforcement action in the future, and take an enforcement action in
accordance with the requirements of Sec. 303.6 at that time.
Certainly, an obligor who claims no ability to pay could request a
review, and an adjustment of the support order amount can be pursued if
appropriate.
4. Comment: Another commenter suggested that the terms ``taking an
enforcement action'' and ``enforcement action taken'' in
Sec. 303.6(c)(2) need to be defined.
Response: Within the 30/60-calendar-day timeframe at
Sec. 303.6(c)(2), the IV-D agency must ``take'' appropriate enforcement
action. This means that the IV-D agency must, within the timeframe,
commence and complete appropriate enforcement action that will
potentially result in collections. Collections do not necessarily have
to be received within the timeframe as a result of the enforcement
action in order for the action to be considered ``taken'' and counted
as a success under the timeframe. Examples of enforcement actions that
would be considered ``taken'' for purposes of the timeframe at
Sec. 303.6(c)(2) include, but are not limited to: Reporting arrearages
to a credit reporting agency, imposing a lien against real or personal
property, suspending or denying a professional or driver's license, or
seizing property.
5. Comment: We received comments seeking clarification regarding
how enforcement timeframes would be audited. One commenter asked if the
75 percent audit standard applied to the enforcement timeframes.
Another commenter asked if a State that was out of compliance with the
enforcement timeframes would also be out of compliance with expedited
process requirements.
Response: The 75 percent audit standard applies to enforcement
timeframes at Secs. 303.6(c)(2) and 303.100. Failure to meet these
timeframes in 75 percent of cases may result in an audit finding under
the enforcement criteria at Sec. 305.20(a)(3)(iii), not the expedited
process criteria at Sec. 305.20(a)(5).
c. Judges as Presiding Officers.
1. Comment: Several comments related to the use of judges in
expedited processes. Favorable comments supported the results-oriented
nature of the proposal. One commenter said the proposal would assist
small counties that cannot justify the hiring of a referee or
magistrate. Other commenters objected to the proposed change, arguing
that it would weaken the use of administrative processes.
Response: As we stated in the proposed rule, with the addition of
paternity establishment to expedited processes, it is necessary to
remove the prohibition against the use of judges as presiding officers
in expedited processes. Currently, most States use judges as
decisionmakers in the majority of paternity cases. Even States that
effectively use an administrative process within the executive branch
of government to process uncontested cases frequently transfer
contested cases to the judicial system. If the Federal government
suddenly and completely banned the use of judges as presiding officers
in paternity establishment cases, the disruption caused by this abrupt
change would offset the benefits of including paternity establishment
in expedited process.
Our approach gives States more flexibility while still achieving
the desired outcome--expeditious processing of cases. By allowing
States to use judges, States have the option to carry out the duties of
a presiding officer by either a judge or a judge surrogate, according
to their needs. A judge surrogate may be a hearing officer, referee,
court master or other decision maker outside of the traditional court
system.
Allowing the use of judges as presiding officers is consistent with
the statute. States have the option of using their existing judicial
system or administrative processes for expedited processes as long as
actions are performed in an effective and timely manner. The Act does
not prohibit using a judge as the presiding officer for expedited
processes.
This revision is in no way a suggestion that States should abandon
established quasi-judicial or administrative processes, nor is it meant
to discourage other States from implementing such procedures. Many
States have found administrative process to be crucial in expediting
case processing. States currently using their judicial systems for
paternity and child support cases may need to reconsider their present
decision-making process in order to meet the new expedited process
timeframes. Our intent in allowing judges to serve as presiding
officers is to maximize the State's capability of operating a child
support program that is effective and efficient and meets the needs of
children.
2. Comment: There were a few comments recommending deleting the
prohibition of FFP for judges. One commenter asked whether FFP would be
available under expedited judicial process for the costs of a court
bailiff, court reporter, court secretary, court personnel, court space
and court administrative costs resulting from IV-D activities.
Response: Federal funding continues to be available for
administrative costs associated with decisionmakers in administrative
and quasi-judicial processes but is unavailable for costs of
compensation of judges and other judicial expenses. Under
Sec. 304.21(b), FFP is not available for the costs of:
(1) Service of process and court filing fees unless the court or
law enforcement agency would normally be required to pay the cost of
such fees;
(2) compensation (salary and fringe benefits) of judges;
(3) travel and training related to the judicial determination
process incurred by judges;
(4) office-related costs, such as space, equipment, furnishings and
supplies, incurred by judges; and
(5) compensation (salaries and fringe benefits), travel and
training, and office-related costs incurred by administrative and
support staffs of judges. Administrative and support staffs of judges
include court bailiffs, court reporters, court secretaries, and other
court personnel.
Federal regulations at Sec. 304.10 provide that, as a condition for
FFP, the provisions of 45 CFR part 74, which establish uniform
administrative requirements and cost principles, shall apply to all
grants made to States under the IV-D program. Section 74.171 states
that the rules for determining which services and activities meet the
necessary expenditure test for Federal funding are provided by the
Office of Management and Budget's (OMB) Circular A-87, ``Cost
Principles for State and Local Governments.'' Attachment A., Section
C.1.a. provides that allowable costs must ``(b)e necessary and
reasonable for proper and efficient administration of the grant
programs, be allocable thereto under these principles, and except as
specifically provided herein, not be a general expense required to
carry out the overall responsibilities of State (or) local * * *
governments.''
We do not believe compensation of judges and related court costs
are allowable under the prescriptions of OMB Circular A-87. In the
context of the IV-D program, expenditures are considered general State
expenses if they are incurred as a result of general State requirements
which are neither dependent on nor confined to the IV-D program. Most
judges and courts have multiple responsibilities besides child support
enforcement, and it would be difficult or impossible to accurately
determine which costs are attributable to child support activities.
Furthermore, OMB has proposed revisions of Circular A-87 issued
October 14, 1988 (53 FR 40359). Attachment B, section 21.a of these
proposed revisions specifies that general costs of government
interagency services for which FFP is not available include ``(c)ost of
the judiciary branch.'' While such an explicit reference to ``cost of
the judiciary branch'' is not contained within the current version of
Circular A-87, the proposed language indicates OMB's intent to treat
such costs as general State or local government expenses.
In addition to the OMB policy, the Senate Committee on Finance, in
its report on H.R. 4325, which became the Child Support Enforcement
Amendments of 1984, Pub. L. 98-378, stated that ``(i)t is not the
intent of the Congress to match all costs that might be related to
operating a child support enforcement program.'' (See S. Rep. No. 387,
98th Cong., 2d Sess. 23 reprinted in 1984 U.S. Code Cong. & Admin News
2397, 2419).
Finally, while we have amended the expedited process requirements
to give States the flexibility to determine the best way, including the
possible use of judges, to expedite their procedures, we strongly urge
States with administrative and quasi-judicial procedures to continue
using such procedures. We also want to encourage other States to
consider adopting such procedures. If we were to provide FFP for judges
and related court costs, States with court-based systems would have
less of an incentive to consider alternative, and potentially more
expeditious, processes for providing services.
3. Comment: One commenter requested clarification regarding which
expedited process requirements a State could request an exemption from
under Sec. 303.101(e).
Response: The provision allowing exemptions from expedited process
requirements is codified at section 466(a)(2) of the Act. By deleting
the requirement that a presiding officer may not be a judge, these
final regulations should reduce the necessity for exemptions for
expedited processes. In fact, we do not believe any of the expedited
process requirements would now be a logical basis for an exemption.
Since exemptions were routinely granted to jurisdictions using
judges that meet the expedited process timeframes, this rule allows
jurisdictions that meet the timeframes to use judges without having to
go through the exemption request and renewal processes. However,
jurisdictions which use judges will be subject to audit scrutiny to
determine if they are meeting the required expedited process
timeframes, and will be subject to possible penalty if they fail to
meet the timeframes. This approach will save time and money for both
local and State agencies and the Federal Government, without
sacrificing expediency in case processing.
d. Other Issues.
1. Comment: We received three comments regarding the requirement at
Sec. 303.101(c)(3) that parties must be provided a copy of the
paternity determination and support order. One commenter asked if
``paternity determination'' includes a voluntary acknowledgment.
Another commenter said furnishing an actual copy of the determination/
order is not possible when a party cannot be located, and suggested
that the parties be provided notice, rather than a copy, of an order/
determination at the last known address. The third commenter requested
clarification of initiating and responding State responsibilities under
this requirement in interstate cases.
Response: Section 303.101(c)(3) requires that the parties be
provided a copy of any voluntary acknowledgment of paternity, paternity
determination, or support order that is obtained or established through
the IV-D agency's expedited process. We added voluntary acknowledgment
of paternity to this requirement in response to the comment mentioned
above. States must send an actual copy of the acknowledgment,
determination, or order, not simply a notice. If allowable under State
law and procedure, the copy may be mailed to the last known address of
each party.
Under this requirement, copies should be provided to both parents
in AFDC and non-AFDC cases, and to any other State which has an
assignment of support rights in the case.
In an interstate case, the responding State should send a copy to
the IV-D agency in the initiating State, rather than directly to the
parent residing in the initiating State. The initiating State would
then be responsible for forwarding a copy to the parent residing in the
initiating State.
2. Comment: We received two comments regarding changes to State
automated systems necessitated by the new expedited process
requirements. One commenter asked if enhanced Federal funding will be
available for making changes to State systems to accommodate changes to
expedited process requirements. Another commenter asked that the
effective date of the expedited process requirements be delayed a year
after issuance of final regulations to permit States to make necessary
changes on automated systems to track the new standards.
Response: FFP at the enhanced rate is available for development of
statewide computerized support enforcement systems, including system
changes necessitated by changes in Federal law (e.g., modifications
necessary to implement changes to expedited processes) until September
30, 1995. If modifications to the statewide computerized support
enforcement systems are made after that date, regular FFP is available
for the costs of those system modifications. The Child Support
Enforcement systems certification review mandated by Sec. 302.85 will
be based on the functionality to support requirements from the Family
Support Act of 1988 and preceding requirements. If, however, a State
requests certification subsequent to publication of these rules, we
would permit the State the option of designing their paternity
timeframes to meet OBRA '93 requirements.
Since the statute has an effective date of October 1, 1993 (or
later if enactment of State law is necessary to conform to the
requirements), the effective date of these regulations cannot be
delayed further. Although we recognize the demands placed upon States
by the new requirements, we believe that Congress did not intend to
delay implementation of these requirements beyond the effective date of
the statute.
3. Comment: One commenter asked if non-compliance with expedited
process requirements would be treated as an audit issue or a State plan
issue.
Response: Section 302.70(a)(2) requires State plans to include laws
and procedures for expedited processes. Therefore, failure to have
relevant laws and procedures could result in disapproval of a State
plan. States may need laws and procedures to implement required
safeguards under Sec. 303.101(c) or functions under Sec. 303.101(d).
Section 305.20(a)(5) requires that a State, as a condition of being
determined in substantial compliance with title IV-D requirements, meet
the requirements for expedited processes under Secs. 303.101(b)(2) (i)
and (iii), and (e). Therefore, failure to meet expedited process
timeframes could result in a determination of substantial noncompliance
and imposition of the penalty.
2. Audit Provisions.
In response to the Notice of Proposed Rulemaking published
September 9, 1993, in the Federal Register (58 FR 47417), OCSE received
over 30 comments from State and local child support agencies and
advocacy organizations. An overwhelming number of these commenters
expressed their endorsement of, and appreciation for, OCSE's efforts to
simplify audit regulatory provisions by consolidating and eliminating
restatements of other provisions. Many commended the transition to a
more results-oriented, outcome-focused process for conducting audits of
State program performance. Following is a summary of the comments
received and our responses:
Timing and Scope of the Audit--Sec. 305.10
One comment was received regarding this provision, essentially
indicating support for OCSE's use of government auditing standards as
promulgated by the Comptroller General of the United States.
State Comments: Sec. 305.12
1. Comment: Several commenters expressed concern that not advising
States of information needed to conduct the audit until the time of the
entrance conference will result in delay. They suggested that notice of
such information requirements should be supplied in advance of the
entrance conference. One commenter requested additional lead time to
prepare for an audit. Another commenter urged that regulations be
consistent with current audit practices relating to advance notice so
as to allow States a sufficient preparatory period.
Response: Written notice of an impending audit and information
needed to perform the audit will be given to States, as is currently
done, at least one quarter prior to the entrance conference. Changes to
Sec. 305.12 only relate to the entrance conference, at which time
auditors will explain how the audit will be performed and make any
necessary arrangements for the field work of conducting the audit.
Providing notice of the scheduling of an audit one quarter in advance
of its commencement is consistent with long-standing government
auditing standards.
2. Comment: One commenter requested that interim audit reports be
published closer in time to the conclusion of the field work enabling
States to be more responsive in identifying and rectifying
deficiencies.
Response: OCSE is working to improve its performance in this area.
In addition, any State, at any time, may request an oral briefing of
the status of an audit-in-progress of its IV-D program. Furthermore,
the changes made by this regulation to streamline and consolidate the
approach to the audit should also expedite the process of issuing
reports. Also, this process will be expedited as more States give the
area audit offices access, via modems or terminals, to their automated
systems and improvements are made to systems tools used to conduct
audits in automated environments.
Effective Support Enforcement PProgram--Sec. 305.20
1. Revised Definition of Substantial Compliance.
a. Ten percent materiality test.
1. Comment: Several commenters questioned the use of a ten percent
materiality standard in determining criteria which are included in a
determination of substantial compliance. A few suggested alternative
tests reflecting other percentages. One commenter suggested that any
criterion that does not further the goal of conducting a results-
oriented analysis should be eliminated. Two commenters expressed
concern that application of the ten percent materiality test should be
limited to initial audit results, indicating that application to
follow-up audit findings could potentially increase the scope of
criteria which are included in a determination of substantial
compliance.
Response: The materiality concept is a widely-accepted practice in
the auditing profession. Materiality is defined as the relative
importance or relevance of an item included in, or omitted from, the
analysis of operations. Generally, a benchmark of ten percent, or a
more stringent level (e.g., five percent) is used to quantify
materiality. Among the qualitative factors which affect materiality are
newness of the activity or changes in its condition, results of prior
operations, level and extent of review or other form of independent
oversight, adequacy of internal controls for ensuring compliance with
laws and regulations, and public perceptions and political sensitivity
of the areas under audit.
In the context of the child support program, the test was
administered against findings for which a penalty was imposed in past
triennial and annual State program results/performance measurements
audits, but not to follow-up audits conducted to determine whether a
State has come into substantial compliance following a corrective
action period.
2. Comment: Three commenters requested that the ten percent
materiality test should be applied subjectively to individual States to
recognize prior State performance in the application of the test.
Another commenter recommended a ``tiered'' approach through which audit
criteria are categorized in assigned priority levels based on their
significance to effective and efficient IV-D program operations.
Response: Audits are designed to be objective so that all States
are audited in relation to a consistent standard. The overall approach
to the audit of State child support enforcement programs, as specified
in this regulation, is an interim step under current law. Further
revision and expansion of the results-orientation to the evaluation of
State IV-D programs will be addressed as part of the President's
Welfare Reform bill.
3. Comment: One commenter questioned the frequency under which OCSE
will apply the ten percent materiality test in order to revise or
update the criteria to be evaluated in an audit.
Response: The ten percent materiality test was first applied to
initial and annual audit reports issued as of September 1990 using the
prior audit regulations. Subsequent reapplication for audit reports
issued through November 26, 1993 produced consistent findings and
confirmed earlier results as to the incidence of failure across 30
program criteria, all of which bear directly on the effectiveness of
IV-D program operations. As we continue to revise the audit process, we
will reapply the materiality test and make necessary changes when
deemed appropriate.
4. Comment: One commenter contended that because the ten percent
materiality test, by its nature, focuses on areas of noncompliance,
States' strengths, best practices, and effective management techniques
are not identified. The commenter urged that such strengths should be
emphasized as part of the audit. Another commenter proposed that OCSE
clarify that any criteria excluded from substantial compliance
evaluation can still be evaluated and be included in management
recommendations furnished to the State as part of the audit findings.
Another commenter, concurring with the use of management
recommendations, suggested that such recommendations should incorporate
best practices of all States in order to assist in program improvement
for individual States.
Response: Program audits are designed to determine whether State
child support enforcement programs operate in conformity with Federal
law and regulations. Auditors may still examine requirements that are
not contained in Sec. 305.20, but deficiencies would be noted in the
Audit Report as management recommendations. OCSE uses numerous other
mechanisms to identify and share exemplary practices among the States,
including publications, presentations at conferences, and provision of
technical assistance (including assistance extended through the ten ACF
regional offices).
5. Comment: One commenter requested clarification as to the
criteria which will not be audited as a result of satisfying the ten
percent materiality test.
Response: As a result of applying the ten percent materiality test
to initial and annual audit reports issued through November 26, 1993
using the prior audit regulations, the following criteria were
eliminated from consideration for purposes of assessing substantial
compliance: Cooperative arrangements; bonding of employees; procedures
for making information available to consumer reporting agencies;
payments to the family; spousal support; payment of support through the
IV-D agency or other entity; single and separate organizational unit;
incentive payments to States and political subdivisions; retroactive
modification of child support arrearages; imposition of late payment
fees on non-custodial parents who owe overdue support; State financial
participation; fiscal policies and accountability; provision for
withholding in all child support orders (Sec. 303.100(i)); 90 percent
Federal financial participation for computerized support enforcement
systems; recovery of direct payments; and publicizing the availability
of support enforcement services.
b. New and newly-revised criteria.
1. Comment: One commenter asserted that new and newly-revised
criteria should only be added to the audit criteria after the passage
of a substantial period of time. The commenter contended that this
approach would take into account the lag time between enactment of
Federal law and publication of final regulations, and allow States time
to come into compliance before being audited. Another commenter
presented just the opposite concern, arguing that the practical effect
of the audit standards will not apply for several years in many States.
This commenter urged OCSE to publish the final regulations as quickly
as possible and make the new audit standards applicable not only to any
audit conducted after the date of publication, but also any audit in
progress on the date of publication.
Response The effective date of Federal statutory and regulatory
requirements cannot be ignored. We have reviewed State implementation
of the standards for program operations for management information and
action, but not for penalty purposes. Furthermore, auditing new or
newly-revised program requirements using related audit criteria ensures
that expanded program mandates are being correctly interpreted and
expeditiously applied. With respect to requirements under the Family
Support Act, final regulations have already been published and States
will be audited under such regulations for audit periods that begin on
or after the date of publication of this final rule. Allowing any
further extension of time before audits of State compliance with these
requirements would be unwarranted. However, audits in progress as of
the date of publication of these rules will be governed by the audit
standards that were in effect at the start of the audit. These final
rules will apply to audits conducted for any periods which begin on or
after publication of this rule.
2. Comment: Several commenters expressed concern that the
streamlining of audit regulations and grouping of criteria will
negatively impact audit results, giving the appearance of failing to
meet a comprehensive criterion, when in actuality the deficiency only
relates to a weakness in a single area.
Response: By grouping criteria, OCSE will be better able to focus
upon State delivery of required program services rather than specific
incremental steps that occur in performing each program function.
Grouping relates to the manner in which OCSE evaluates States'
performance, rather than to what is evaluated. For a number of years,
OCSE has evaluated several enforcement techniques under the audit in
this manner and determined that this is an effective and efficient
process. Under the regulation, a more streamlined approach to
conducting audits will improve the ability of OCSE and States to more
effectively and efficiently identify program deficiencies.
3. Comment: One commenter suggested that efforts by OCSE to limit
the scope of audits should be designed to ensure that audits can be
conducted and completed in less time and with fewer State resources.
The commenter expressed the belief that it was unclear whether the
proposed new definition of substantial compliance would, in fact,
actually reduce the need for States to dedicate substantial time and
resources to the audit process.
Response: In order to reduce the scope of the audit to the maximum
extent possible, we have deleted from inclusion under the definition of
substantial compliance audit criteria that States failed to meet in 10
percent or less of the initial and annual compliance audits conducted
by OCSE under prior audit regulations through November 26, 1993. Under
this final rule, we will continue to use criteria that did not meet
this test in determining whether the State is in substantial compliance
with Federal requirements. In addition, we will, for the first time,
conduct audits that evaluate State compliance with the provisions of
the Family Support Act of 1988, including standards for program
operations, immediate wage withholding, and review and adjustment of
support orders.
Federal law mandates that OCSE conduct audits to determine State
compliance with Federal requirements, including the provisions of the
Family Support Act of 1988. Without revisions made by this regulation
to eliminate scrutiny of certain criteria, audits would certainly have
taken longer than they currently do, once the Family Support Act
requirements were included in the audit. In addition, States can reduce
the burden of the audit and facilitate its completion by allowing the
area audit office to have on-line access to their State automated
systems and by maintaining appropriate records for sample selection and
audit purposes. This rule will streamline the audit and is a
significant step toward even more results-oriented measurements.
2. Criteria: States Must Meet to be Determined to be in Substantial
Compliance.
a. Administrative criteria.
1. Comment: One commenter expressed concern that holding States to
100 percent compliance for Statewide operations, reports and
maintenance of records, separation of cash handling and accounting
functions, and notice of collection are unreasonable and should be
lowered to account for unexpected problems.
Response: We are not using a 100 percent compliance standard that
involves the review of individual cases. Instead, in auditing these
four requirements, OCSE will examine such functions through a review of
the automated and/or manual processes a State has in place for meeting
these functional requirements rather than the review of individual
cases. As a result, the audit will assess the State's overall
compliance for meeting these areas.
2. Comment: Two commenters objected to evaluating State's
compliance with expedited process using a 100 percent standard as
excessive and unreasonable. One commenter requested postponement of the
100 percent standard until expedited processes standards for paternity
establishment, as required by Federal law as a result of enactment of
the OBRA '93, are developed.
Response: We agree with the comment that changes to the expedited
processes standard to incorporate paternity establishment should be
timed to coincide with these audit rules which apply to audits which
begin on and after the date these rules become effective. Therefore,
this regulation includes changes to Sec. 303.101 to incorporate
paternity establishment. These changes and when they are effective have
been discussed previously. The revised expedited processes standard
requires compliance in 90 percent, instead of 100 percent, of the cases
subject to the standard. Therefore, States are no longer required to
meet a 100 percent standard for expedited processes.
3. Comment: One commenter requested clarification of whether, for
purposes of evaluating a State's compliance with the requirement to
provide monthly notice of support payments collected to individuals who
have assigned their rights to support, the determination will be based
upon whether the State has a process in place for giving notice, or
whether audits will focus on determining whether 100 percent of the
cases in which notices would be required actually received notices. The
commenter shared a concern that an attempted notice that is returned as
undeliverable could result in an error finding, rendering the State out
of compliance.
Response: A determination regarding a State's compliance with the
administrative criteria specified under Sec. 305.20(a)(1) will not be
evaluated through an individual case review method. Rather, compliance
will be measured on the basis of assessing whether the State has, and
uses, an overall system or process designed to meet the specific
requirements.
b. Service-related criteria.
i. 90 percent standard for evaluating certain case opening
requirements and for evaluating case closure.
1. Comment: Several commenters objected to the proposed 90 percent
standard for review of establishment of cases under Sec. 303.2. They
argued that the 90 percent criterion is arbitrary, unrealistic, and too
stringent. One commenter remarked that such a standard inappropriately
emphasizes initiating services in a case rather than delivering on-
going services which are evaluated under a lower standard. Some
commenters stressed that application of a rigorous higher standard at a
time when States lack fully operational automated systems is excessive
and unwarranted.
Response: Case opening is crucial to the child support process.
Unless applications are provided promptly and accepted and processed in
a timely manner, necessary IV-D services cannot be provided. In
addition, in its focus on the need to create a government that works
better and costs less, the Report of the National Performance Review
has brought the issue of customer service to the forefront. We are
committed to ensuring that the orientation of the child support program
is upon delivering needed services to the customers of this program.
Therefore, prompt response to a request for services and opening of a
case cannot be overemphasized. However, we recognize that Sec. 303.2
contains both case opening and case processing requirements. Program
services or case processing requirements should be evaluated using a
consistent standard. Therefore, we limit the application of the 90
percent standard to case opening requirements in Sec. 303.2(a) rather
than all the requirements of Sec. 303.2. Thus, requirements set forth
in Sec. 303.2(b) regarding the establishment of a case record and
determination of necessary action on a case will be evaluated under the
75 percent standard. In addition, we will not evaluate the maintenance
of case records requirements at Sec. 303.2(c) because they are similar
to the reports and maintenance of records requirements at
Sec. 302.15(a) evaluated under the audit.
2. Comment: Another commenter suggested that auditors should look
beyond the details of case opening and closure requirements to
determine if action was taken on a case. They urged that if appropriate
action was in fact taken, but the State failed to comply with every
requirement under ``Establishment of cases and maintenance of case
records'', the State should not be penalized. For example, if a State
opened a case and determined necessary action in 30 days rather than
the required 20 calendar days, but the action was taken within the
audit period, the State should receive credit, without penalty, for
having taken appropriate action. The commenter urged OCSE to confirm
that a State will be considered to have complied with case
establishment requirements, even if the State failed to meet the five-
day timeframe in Sec. 303.2(a)(2), or the 20-day timeframe in
Sec. 303.2(b), provided that the State took appropriate action on the
case during the audit period.
Response: Under the final regulation, the 90 percent standard only
applies to requirements governing the establishment of a case under
Sec. 303.2(a). We believe that for providing applications and
information and accepting applications as filed on the day the
application and fee are received, a 90 percent standard is reasonable.
Therefore, the 5-working-day-timeframe for sending an application in
response to a written or telephone request, and other case opening
requirements, will be evaluated for all cases using the 90 percent
standard.
As indicated above, the requirements in Sec. 303.2(b) regarding
establishment of a case record and determination of necessary action on
a case will be evaluated under the 75 percent standard. If the State
failed to open a case and determine the necessary action to be taken
within the 20-calendar-day timeframe under Sec. 303.2(b) but took
necessary action (i.e., established a support order) within the audit
period, the State would receive credit.
3. Comment: One commenter indicated that a 90 percent standard for
case opening and closure is not unnecessarily restrictive, provided
that regulations do not propose a negative finding for failure to close
a case that could have been closed. Another commenter agreed that
States should not be penalized for keeping cases open even if the
potential for success is low.
Response: Because case closure is permissive, if a State does not
close a case that meets one or more of the case closure criteria in
Sec. 303.11, that case will not be subject to audit. As we explained in
response to comments in the preamble to the final regulations governing
Standards for Program Operations (54 FR 32303), States may elect to
establish criteria for closure that are more stringent than those
established under Federal rules.
4. Comment: One commenter asserted that use of a 90 percent
standard to evaluate case closure encourages States to leave cases open
in an unworkable status in order to avoid audit penalties. The
commenter claimed that the proposed 90 percent standard will allow a
State which makes no effort to close unworkable cases to pass the audit
on case closure. They further contended that a State which seeks to
provide better services in workable cases by closing the unworkable
cases could fail the audit if the auditors disagree with the agency's
determination to close the case in more than one case out of ten.
Response: The purpose of case closure criteria, and the basis for
evaluating case closure at a 90 percent standard is to ensure that
States do not close cases erroneously and inappropriately, which could
result in denying individuals the services to which they are entitled.
It is important for States to recognize that evaluation of a State's
case closure process and activities is premised on whether 90 percent
of the cases that were in fact closed were closed correctly (i.e.,
meeting one or more of the 12 enumerated case closure criteria), rather
than a determination that 90 percent of the cases that could be closed
were closed. We question whether a State would keep unworkable cases
open and on its automated system merely to avoid audit scrutiny if a
case is closed, especially given that Federal case closure regulations
are quite clear and precise.
5. Comment: One commenter requested that regulations should provide
that a case would not be found out of compliance if the State closed
the case in advance of expiration of the 60-day period following notice
of proposed case closure provided that if new information was obtained
or a request to reopen the case was received, the case would be
reopened and worked.
Response: Before a case is closed, all of the requirements in
Sec. 303.11 must be met. Therefore, a State which adopts an approach
such as that suggested by the commenter would be found to be out of
compliance with the requirement at Sec. 303.11(c) which specifies that
closure cannot occur until the 60-day period following notice to the
custodial parent has elapsed.
6. Comment: Several commenters suggested that any standard higher
than 75 percent should be gradually phased in. Two commenters urged
that any higher standard should be delayed until such time that States
have certified computerized support enforcement systems. One commenter
asserted that not all States have been audited under the 75 percent
standard for the standards for program operations which became
effective October 1, 1990. They recommended that OCSE gather some
historical data in this area and evaluate State IV-D performance under
those standards before changing the standard.
Response: While automation of State child support enforcement
programs will enhance States' capabilities for delivering program
services, the effective dates of the Family Support Act requirements,
including program standards, were not conditioned upon States having
computerized support enforcement systems in place. The case opening and
closure requirements, effective since October 1, 1990, have never been
evaluated using a 75 percent standard. This final regulation will, for
the first time, prescribe audit criteria for evaluating case opening,
closure and other program standards requirements. The requirements to
which the 90 percent standard apply are not dependent upon automated
case processing through a computerized support enforcement system, but
rather on IV-D caseworkers providing applications and information to
individuals and closing only unworkable cases. As previously stated,
OCSE believes that the 90 percent standard for these requirements is
reasonable.
7. Comment: Several commenters advocated that a 90 percent
compliance standard be established for all criteria. One commenter
noted that the 75 percent standard results in many cases remaining
unworked, claiming that States can circumvent requirements by simply
taking some action in 75 percent of the cases even if such actions are
not substantive.
Response: This commenter's perception reflects a misunderstanding
of Federal title IV-D requirements which require States to take
appropriate action in all cases referred for and applying for program
services. Requirements for providing and accepting applications and
closing cases are clear-cut, definitive, and follow specific steps.
They are in the nature of administrative activities, distinguishable
from activities connected with providing services which are more
complex and which permit greater flexibility and discretion. Providing
easy, prompt access to program services and closing only unworkable
cases are critical to ensuring that individuals receive appropriate
services.
8. Comment: One commenter suggested that it would be more
appropriate to place opening and closure of cases in the category of
administrative criteria rather than in the category of service-related
criteria.
Response: Because we believe it is critical to provide access to
services, case review rather than analysis of processes is important to
determine that the State, in fact, meets the requirements for case
opening and closure. Therefore, case opening and closure will be
treated as service-related criteria, for which auditing by the case
analysis method will be utilized.
ii. 75 percent standard for providing services.
1. Comment: Two commenters indicated that the 75 percent standard
for providing services was too high. One commenter recommended that the
75 percent standard should be lowered, and phased-in gradually, because
of the current lack of automation capability. Several commenters
recommended that States should be held to a higher standard than 75
percent compliance, suggesting that a higher standard should be
gradually phased-in, in conjunction with the automation requirements.
Some recommended it should be phased-in at 80 percent compliance in
1996; 85 percent in 1997; and 90 percent in 1998. Another commenter
suggested having a range of standards for different criteria, but added
that the acceptable range should never fall below 75 percent.
Response: For over ten years, OCSE has used a 75 percent standard
to determine State compliance with Federal program requirements. The
standard has proven to be a reasonable expectation of the level of
State performance in providing program services. Therefore, we will
continue to use the 75 percent standard to evaluate the delivery of
program services. Furthermore, under longstanding program requirements,
as well as those added by the Family Support Act, comprehensive,
statewide automation is not a prerequisite for providing mandatory
program services. In fact, most of the requirements States must meet
under the Family Support Act will have been effective for over five
years before an audit under these regulations will be conducted. We
believe that States will have had ample opportunity to implement these
requirements prior to being audited to determine compliance.
2. Comment: One commenter indicated concern that to achieve
substantial compliance on marginally met criteria, the State must
actually achieve a rating of at least 81 percent.
Response: This is inaccurate. A State which achieves a compliance
level of between 75 and 80 percent for a particular function is
considered to have passed the audit and to be in substantial compliance
for that function. While such a finding is considered to be
``marginal,'' the finding will not be a basis for determining that the
State is not in substantial compliance, and will be referenced in the
penalty notification only for the purpose of bringing to the State's
attention areas in which the State's performance is borderline. States
do not need to specifically address areas of marginal compliance as
part of their corrective action plan. Following corrective action, the
marginal compliance areas must fall below 75 percent before a State
will be considered to have failed that particular criterion.
3. Comment: One commenter requested clarification of the
requirements for review and adjustment. The commenter suggested that,
if a review of an order is properly and timely conducted, but the need
to adjust the order is not indicated, the action should be determined
to be in compliance.
Response: If review of an order results in a determination that no
adjustment is appropriate, and the parties are properly notified of the
results of such review and provided an opportunity to challenge such
finding, action will be considered to have been taken for audit
purposes.
Grouping of Locate Function Within Other Service-Related Categories
1. Comment: Concerning the proposal to group ``location of non-
custodial parents'' under other functional components, several
commenters favored listing location as part of other criteria because
in many cases, in order to proceed on a case, location is an integral
component of providing other functional service criteria. Several
commenters opposed grouping location with other criteria, urging that
it be retained as a separate identifiable criterion.
Response: The location function is not an end in itself but is, in
fact, often the initial step to providing all other major program
services, including paternity establishment, support order
establishment, enforcement, and review and adjustment of child support
orders. Therefore, cases requiring non-custodial parent location will
be evaluated under the major service or services required for the case.
Thus, if a case requires paternity and support order establishment
services and the alleged father's whereabouts are unknown, the State
must take all appropriate action. If the State did not take appropriate
action to locate the alleged father, this would be counted against the
State in computing the efficiency rate for paternity and support order
establishment. We do not believe that incorporating location within the
functional service criteria underestimates or deemphasizes the
importance of the location function. On the contrary, it underscores
the need to exhaust location sources in order to proceed with necessary
services for the case. Moreover, it exemplifies the transition to a
more results-oriented audit.
2. Comment: One commenter requested clarification about whether the
need to relocate an individual before a service (e.g., establishment,
enforcement) can be provided stops the applicable timeframe or permits
the timeframe to be reset from the date of relocation.
Response: When the State is providing a particular service, such as
the establishment of a paternity and/or support order, and determines
that a previously located alleged father needs to be relocated (for
example, if service of process efforts fail), the establishment
timeframe would stop if the State must return the case to the locate
function. The 75-calendar-day and quarterly location timeframes in
Secs. 303.3(b) (3) and (5) would apply once the case was returned to
the locate function. After successful location of the alleged father,
the establishment timeframes would start over again. The State's
documentation of the events, services provided, and activities in a
case will be used in determining the audit criteria appropriate for
evaluating the case.
3. Comment: One commenter questioned whether a State must use some
other enforcement technique in addition to Federal and State income tax
refund offset in situations in which the non-custodial parent's address
is located but employment information or the location of assets is not
known.
Response: States have discretion in determining and selecting what
enforcement technique, in addition to Federal and State income tax
refund offset, to use in particular cases in which wage withholding may
not be available or appropriate (e.g., self-employed). Not all
enforcement techniques require employment information or identification
of assets (e.g., making information available to consumer reporting
agencies). When the State has located the absent parent's address, but
employment information or assets are unknown, the State must use an
enforcement remedy in addition to Federal and State income tax refund
offset. The State may, for example, make information available to
consumer reporting agencies, or require an obligor to post a bond or
other guarantee to secure payment of overdue support.
4. Comment: One commenter also requested clarification of the
definition of location for purposes of the audit.
Response: States should continue to focus their location efforts
toward successfully ascertaining the whereabouts of obligated parents,
their employers, and their assets to take necessary action in the case,
using all appropriate sources in accordance with the requirements set
forth in Sec. 303.3(b). However, in response to the request for a
definition of location for audit purposes, OCSE will determine that a
State has met the requirements for location if the State has, at a
minimum, checked the following sources, when necessary and appropriate
(e.g., a State uses sequential sources until the non-custodial parent
is located), to ascertain information concerning the location of the
non-custodial parent, his/her employer, and/or the non-custodial
parent's assets: The custodial parent; Postal Service; State employment
security agency and unemployment data; the Department of Motor Vehicles
or the comparable State authority which issues driver's licenses and
registers vehicles; credit bureaus; and the Federal Parent Locator
Service. These sources were selected because of their proven level of
effectiveness in successfully identifying useful location information
in most cases. We believe that specification and use of these sources
not only standardizes the location process but provides clear guidance
to States as to how their location efforts will be evaluated under the
audit.
5. Comment: Several commenters expressed concern that evaluation of
non-AFDC cases under Sec. 302.33 and interstate cases under Sec. 303.7
as independent compliance criteria puts States in situations of double
jeopardy. They pointed out that evaluation under both non-AFDC and/or
interstate case criteria and under other audit criteria such as
paternity establishment, enforcement, or review and adjustment, for
example, is actually counting any deficiency twice (or more), thus
causing the States to fail under two or more separate criteria as a
result of a single deficiency. They requested reconsideration of the
requirement that the non-AFDC and interstate case criteria be evaluated
separately.
Response: We agree with the commenter and have made the following
changes to the proposal. We have deleted the separate audit criteria
for evaluating the provision of service in interstate cases and added
the provision of services in interstate IV-D cases under Secs. 303.7
(a), (b), and (c)(1) through (6) and (8) through (10) to each of the
service-related audit criteria at Secs. 305.20(a)(3) (ii), (iii), (iv)
and (v). Under this final regulation, only those Sec. 303.7
requirements that are unique to interstate cases, Secs. 303.7 (a), (b),
and (c)(1) through (6) and (8) through (10), and do not involve
functions and services otherwise covered by criteria under Sec. 305.20
will be evaluated to determine whether the State is in substantial
compliance with the requirement to provide appropriate interstate
services. For example, in an interstate support order establishment
case, a State will be evaluated for order establishment purposes under
Sec. 305.20(a)(3)(ii) to determine whether it is in substantial
compliance with the order establishment provisions under Secs. 303.4
(d), (e), and (f). The State will be evaluated for interstate purposes
under Sec. 305.20(a)(3)(ii) to determine whether it is in substantial
compliance with the interstate provisions unique to interstate cases,
including the failure to notify the initiating State in advance of the
hearing of an order establishment case under Sec. 303.7(c)(8).
Therefore, any deficiency identified will only be counted once.
Similarly, we have deleted the separate audit criteria for
evaluating services to non-AFDC, non-IV-E individuals and added
services to non-AFDC and non-IV-E individuals under Secs. 302.33(a) (1)
through (4) to each of the service-related audit criteria at
Secs. 305.20(a)(3) (ii), (iii), (iv) and (v). Under this regulation,
only those aspects of Sec. 302.33 unique to non-AFDC IV-D cases, such
as acceptance of applications under Sec. 302.33(a)(1)(i), will be
examined to determine whether the State is in substantial compliance
with requirements unique to providing services to non-AFDC individuals.
Determining whether the State provided a particular necessary service
(e.g., enforcement) in a non-AFDC IV-D case or in an interstate case,
will be addressed under the specific service category set forth under
Secs. 305.20(a)(3) (ii), (iii), (iv), or (v). The State will be
evaluated under the same service category for purposes of determining
whether it is in substantial compliance with the services to non-AFDC
and non-IV-E provisions unique to non-AFDC cases. This will eliminate
``double jeopardy'' as described by the commenter. In addition, this is
consistent with the movement of the audit to a more results-oriented
process.
iii. Credit for providing services.
1. Comment: One commenter recommended that audit standards consider
allowing either an exception to or a tolling of the timeframes in cases
in which interim timeframes have been met but delays in achieving
result were beyond the control of the IV-D agency.
Response: States must provide necessary services within required
timeframes in 75 percent of the cases evaluated under each audit
criterion. The 75 percent substantial compliance test allows a 25
percent margin for error into which such cases could fall and not
result in the State being penalized for inadvertent delay.
2. Comment: One commenter noted that credit is not available when
the State fails to meet the administrative criteria and the following
service-related criteria: Collection and distribution of support
payments; services to individuals not receiving AFDC or title IV-E
foster care assistance; provisions of services in interstate cases; and
medical support.
Response: We believe that, for audit purposes, a State should not
be penalized when timeframes are missed in a case if a successful
result is achieved (a support order is established or adjusted, or a
collection is made), since these results are the main goals of the
child support enforcement program. We further believe that this
position is responsive to the widely-shared goal of a more results-
oriented approach to OCSE auditing and States' concern that missing an
interim timeframe, when a successful result is achieved in a case, may
create a disincentive to continue working the case. In addition, as
discussed previously, the provision of services in interstate IV-D
cases and services to non-AFDC, non-IV-E individuals is now evaluated
under other service-related criteria. Therefore, if the State misses an
interstate timeframe, but the appropriate service(s) included under
Sec. 305.20(a)(4) is provided during the audit period, the State will
be considered to have taken appropriate action for audit purposes.
However, credit is not extended to all requirements since to do so
would render meaningless timeframes established to ensure effective and
efficient delivery of services. Furthermore, as previously explained,
administrative criteria, such as Statewide operations, reports and
maintenance of records, and separation of cash handling and accounting
functions, are evaluated from an overall process standpoint rather than
a case analysis approach.
3. Comment: One commenter indicated support for the concept for
providing credit even though timeframes are missed; however, the
commenter urged that credit be given for actions attempted in the audit
period although not successfully completed, provided that there is a
reasonable expectation that the action will eventually be successful.
Response: We disagree with such an approach. It would be highly
subjective to predict or speculate about future success, in contrast to
determining that the successful result has in fact been achieved.
Achieving national consistency in applying such an auditing approach
would also be a formidable, if not impossible, task. Therefore, the
allowance of credit (i.e., action for audit purposes), for providing
services despite a State's failure to accomplish the function within
the designated timeframes is limited to case(s) in which successful
results occur within the audit period. While we are striving to develop
a more results-oriented approach to evaluating States' performance, we
believe that following the commenter's suggestion would undermine the
integrity and objectivity of the audit process.
4. Comment: One commenter emphasized that it is essential that
audit criteria not only consider actions taken, but that such actions
actually be successful or closely related to a successful conclusion of
the case. Another commenter recommended that OCSE specify that a State
will receive credit, without penalty, for achieving a desired result
even if the State did not meet every location requirement.
Response: Currently, States are evaluated on whether they have
taken the appropriate action or actions needed in a case. The
particular action or actions that are warranted have been defined in
Federal and State laws, policies and operational procedures independent
of the audit process. The inclusion of program standards requirements
within the audit criteria will further ensure that States follow these
established policies and procedures, which are intended to facilitate
achievement of a successful outcome. Furthermore, in order to receive
any credit for actions when intermediate timeframes are missed, a State
must actually achieve success within the audit period.
5. Comment: One commenter recommended that a State be given credit
for audit purposes even if the timeframes are not met if a child
support order has been reviewed and a determination has been made
within the audit period that no adjustment is appropriate. The
commenter cited an example of a situation in which the review was
conducted but as a result a determination was made that the order was
presently in-line with guidelines and thus an adjustment not warranted.
The commenter objected to the proposal to grant credit when timeframes
are missed only if an adjustment was obtained.
Response: We agree with the commenter that, for audit purposes, the
State should be given credit when the timeframes are not met, but the
State has reviewed the child support order and determined that no
adjustment is needed, during the audit period. Therefore, the final
regulation at Sec. 305.20(a)(4)(ii) provides that notwithstanding
timeframes for establishment of cases, provision of services in
interstate IV-D cases, location, and review and adjustment of support
orders contained in Secs. 303.2(b), 303.7 (a), (b), (c) (4) through
(6), (8), and (9), 303.3(b) (3) and (5), and 303.8, if a particular
case has been reviewed and meets the conditions for adjustment under
State law and procedures and Sec. 303.8, and the order is adjusted, or
a determination is made, as the result of a review, that an adjustment
is not needed, during the audit period in accordance with the State's
guidelines for setting child support awards, the State will be
considered to have taken appropriate action in that case for audit
purposes.
6. Comment: Numerous commenters expressed concern that, for
purposes of receiving credit for enforcement when timeframes are not
met, the State must have made a collection during the audit period. One
commenter recommended that States be given credit for the attempt to
use at least one other enforcement technique. Several commenters
recommended that OCSE revise the proposed regulations to clarify that
States will be given credit, without penalty, for taking or attempting
a range of enforcement actions, even if no collection results. One
commenter indicated that under the proposed criteria, cases with poor
chances of success would be given priority, because the only way a
State would be given credit for working these cases would be to do so
within the timeframes. Another commenter argued that limiting credit
when enforcement timeframes are missed to only those situations in
which a collection is realized within the audit period, creates a
timing issue if the legal action was initiated late in the audit period
and the collection it generated was received after the audit period.
One commenter asserted that it is counter-productive to require States
to take an enforcement action, only to penalize the State when no
collection is obtained during the audit period. Another commenter
contended that legitimate attempts at enforcement will not receive
credit, and recommended that audit compliance recognize a ``State's
intent,'' even when it is unsuccessful.
Response: States are required to provide child support services in
accordance with Federal requirements, including standards for program
operations timeframes. Under these requirements, the State must provide
all required services so that children receive the support they need
and deserve. The State should provide the necessary services in a
timely manner rather than trying to anticipate what needs to be done to
pass the audit. Under the new rule, granting the State credit when
timeframes are missed should be the exception and not the norm. As long
as all appropriate actions were taken within the allotted timeframes,
States will receive credit for working the case even though no
collection results from an enforcement action, or when the collection
is received after the close of the audit period. A State receives
credit for enforcement in situations in which the enforcement action
was not completed in a timely manner only if a collection is received
within the audit period.
In an effort to focus more closely on measuring States' performance
based on results achieved, we have developed a mechanism whereby
missing the timeframe will not create a disincentive to following-
through with necessary action. Therefore, credit will be given to a
State which achieves a successful result in a case in which the action
was taken outside the required timeframe. Regarding enforcement actions
accomplished outside the timeframes, we maintain that the only
reasonable and objective measurement of a State's accomplishment which
warrants the exception is the receipt of a collection within the audit
period.
7. Comment: Another commenter requested guidance concerning how
collections can be linked to enforcement techniques where it is not
possible to document the linkages.
Response: A collection in a case in which enforcement action was
taken, although not within the timeframes, will be a basis for credit
regardless of whether that collection was a direct result of the
specific remedy used.
8. Comment: Several commenters suggested that credit be allowed for
enforcement purposes if the State actually collects a significant
proportion (80 to 90 percent) of the required current support due in a
case during the audit period.
Response: We believe that such an approach is unnecessary because
we do not require that all current support due be collected before a
State receives credit for enforcement. As long as some amount is
collected as a result of enforcement action within the audit period,
credit will be allowed regardless of whether timeframes are met or the
full amount due is collected.
9. Comment: One commenter sought assurance that use of contempt
proceedings would be an acceptable enforcement technique in addition to
Federal and State income tax refund offset where wage withholding is
not available or appropriate.
Response: While contempt proceedings are not necessarily the best
approach, we recognize that in some States this remedy may be the only
option under certain circumstances. Therefore, the use of contempt or
any other enforcement action available under State law would suffice to
meet the substantial compliance requirement for enforcement when wage
withholding is not available or appropriate.
10. Comment: One commenter requested clarification that States may
continue to decide appropriate enforcement techniques in individual
cases by using guidelines developed by the State for determining when
use of a particular remedy would not be appropriate.
Response: The commenter is correct in that States will be evaluated
in their use of enforcement remedies which require consideration of
State guidelines for determining when use of a particular procedure
(e.g., imposition of liens on real and personal property) is
inappropriate in a case.
11. Comment: One commenter questioned an example used in the
preamble to the proposed rule concerning the required use of alternate
enforcement techniques when wage withholding is not available or
appropriate. They asked whether an alternate remedy had to be used only
in situations in which neither the employer nor the non-custodial
parent could be located, or if the requirement applied even if one of
the two (employer or the non-custodial parent) had been located.
Response: In cases in which wage withholding cannot be implemented
or is not available and the noncustodial parent has been located,
States must use or attempt to use at least one enforcement technique
available under State law in addition to Federal and State tax offset,
in accordance with State laws and procedures and applicable State
guidelines developed under Sec. 302.70(b). Under this provision, the
State must use an alternative remedy when the noncustodial parent has
been located and wage withholding cannot be implemented (e.g., the
parent has no identified wages or the employer is unknown) or is not
available (e.g., the parent is self-employed).
12. Comment: One commenter questioned how a case would be evaluated
when action was taken but not within timeframes and a successful result
did not occur within the audit period. The commenter requested
clarification of whether the case would be excluded from the audit or
considered an error. They noted that when working a case, a State does
not know the end result until the action is concluded.
Response: If an action is taken outside of the prescribed
timeframes and a successful result is not achieved during the audit
period, it would be considered an error. Such cases would not be
excluded from the evaluation. If a State adheres to the timeframes in
taking the appropriate action in a case, the State will be credited
with having taken an appropriate action. Credit for actions when
timeframes are missed will only be extended where a successful result
is achieved within the audit period.
c. Expedited processes.
1. Comment: One commenter requested further explanation of the
mechanism for evaluating the State's compliance with expedited
processes. Another commenter recommended that audit criteria for
expedited processes be expanded to include legitimate continued court
hearings for obligors as acceptable outcomes. The commenter contended
that this approach would limit the temptation to simply request the
court to enter a finding of contempt so the case can be dropped until
the next audit period.
Response: Prior to the issuance of this regulation, the expedited
processes requirements at Sec. 303.101(b)(2) required the State to meet
a 100 percent standard in one year. The corresponding audit regulation
at Sec. 305.50 used the same standard in determining whether the State
was in substantial compliance with Federal requirements. Under this
regulation at Sec. 303.101(b)(2)(i), the State must, for cases needing
support order establishment regardless of whether paternity has been
established, establish a support order from the date of service of
process to the time of disposition as follows: (1) 75 percent in 6
months; and (2) 90 percent in 12 months. However, when the IV-D agency
uses long-arm jurisdiction, and disposition takes place within 12
months of locating the alleged father or noncustodial parent, the case
may be counted as a success within the 6-month tier of the timeframe
under Sec. 303.101(b)(2)(i) regardless of when disposition occurs.
Under the new corresponding audit regulation at Sec. 305.20(a)(5), we
will evaluate State compliance with expedited processes using the
revised standards in Secs. 303.101(b)(2) (i) and (iii).
With respect to the enforcement actions such as contempt
proceedings, Sec. 303.101(b)(2)(ii) would apply. It references
timeframes under Sec. 303.6(c)(2). Because State adherence to
Sec. 303.6(c)(2) timeframes will be evaluated under a 75 percent
standard, the occurrence of continuances in certain situations which
delay case processing beyond the timeframes could be condoned. However,
``taking'' an enforcement action under Sec. 303.6(c)(2) requires that
the IV-D agency commence and complete appropriate enforcement action
within the timeframe. Therefore, a continuance is not an acceptable
outcome for purposes of meeting the expedited processes timeframes.
Paternity Establishment Percentage Standard--Proposed Sec. 305.97
1. Comment: Several commenters pointed out that regulations should
reflect the standard contained in OBRA '93, not the Family Support Act
standard. Two commenters identified technical problems with the
standard contained in OBRA '93, and suggested that OCSE wait until the
statute is amended before issuing final regulations. One commenter
suggested that the new standard, as revised by OBRA '93, should be
developed into a proposed rule and disseminated for comment before
final regulations are issued.
Response: The commenter is correct. The proposed rule contained the
Family Support Act standard rather than the OBRA '93 standard. Not only
was the standard revised by OBRA '93, but it was more recently changed
by Pub. L. 103-432, a law signed by the President on October 31, 1994.
Because of these recent changes, we have not addressed in this
regulation the paternity establishment standard or audit criteria for
evaluating the standard.
2. Comment: In the proposed rule (58 FR at 47423), we solicited
comments regarding an option that would have allowed States meeting the
paternity establishment percentage standard to be exempt from other
paternity establishment audit criteria, including timeframes. Most
commenters supported this results-oriented proposal. If this approach
were taken, most commenters did not think it would be necessary to
incorporate a timeliness measure in the paternity establishment
percentage. One commenter suggested that the proposed approach be
extended to all audit criteria. Another commenter suggested reversing
the proposed approach by waiving the paternity establishment percentage
standard when a State meets other paternity establishment audit
criteria.
Response: We appreciate commenters' views on this issue. However,
we do not believe this is the time to make such a change. As we stated
in the proposed rule, data reported incident to the paternity
establishment percentage standard need to be tested and validated
before we can consider exempting States that meet the paternity
establishment percentage standard from meeting other paternity
establishment audit criteria. Since Congress has recently changed the
paternity establishment percentage standard, we will need to test and
validate the appropriate data.
As we stated in the notice of proposed rulemaking, we are also
concerned that timeliness of paternity case processing is addressed by
other audit criteria, but not by the paternity establishment percentage
standard. No commenter suggested a way of incorporating a timeliness
measure in the paternity establishment percentage standard.
It is premature to extend the proposed approach to all other audit
criteria, as one commenter suggested. Performance standards, similar to
the paternity establishment percentage, have not been developed for
other audit criteria. Finally, the proposed approach cannot be
reversed--i.e., the paternity establishment percentage standard cannot
be waived if a State meets other paternity establishment audit
criteria. Federal law requires States to meet the paternity
establishment percentage standard in order to be determined to be in
substantial compliance with the Act.
In addition, under the President's Welfare Reform bill, audits
conducted by OCSE would not include the evaluation of State programs to
determine State compliance with specific Federal requirements. Under
the bill, States would conduct reviews to determine whether IV-D
services are provided in accordance with program requirements. OCSE
audits would focus on determining the reliability of State data
including data use in the paternity establishment percentage standard
reported to the Federal Government. The evaluation of State paternity
activities, including the paternity standard, would no longer be
included under an OCSE audit.
Performance Indicators--Sec. 305.98
1. Comment: One commenter expressed concern that the proposed
changes to Sec. 305.98 concerning the description and periodic update
of the scoring system would permit OCSE to change the criteria in the
future simply by issuing program instructions. The commenter suggested
that any changes to the performance indicators criteria should be
accomplished through the rulemaking process, not through issuance of
instructions. Another commenter requested that the performance
indicator ratio which requires comparison of the total amount of
assistance furnished in AFDC IV-D cases to the total amount of AFDC
collections in such cases should be rescinded, claiming that very few
cases are affected by this. Alternatively, the commenter urged that if
the criterion is retained, the related automation requirement should be
delayed until the effective date of the computerized support
enforcement system requirements in October 1995.
Response: The changes made to Sec. 305.98 are limited to replacing
the previous two-year frequency for updating the scoring system with
updating, through the rulemaking process, whenever OCSE determines that
it is necessary and appropriate. We believe the performance indicator
which measures reimbursement of AFDC assistance payments which has been
used since FY 1986 continues to be an effective measure of State
performance. States are currently required to maintain data necessary
to use this performance indicator.
Notice and Corrective Action Period--Sec. 305.99
1. Comment: One commenter expressed concern about the treatment of
compliance rates between 75 percent and 80 percent ``as marginal''.
They contended that because if a State is only marginally complying
with a particular criteria, and the State fails to address the
situation through corrective action, such that a penalty may be
imposed, in essence means that the minimum compliance rate is actually
80 percent.
Response: As explained in the response to comments in the preamble
to the 1985 final rule governing the audit process (50 FR at 40136),
marginal substantial compliance refers to the treatment--in the written
notice to a State found not to be in substantial compliance with one or
more title IV-D requirements--of those functional State plan-related
audit criteria which the State met in only 75 to 80 percent of the
cases reviewed.
The commenter's contention is inaccurate. A determination that a
State is in marginal compliance is not an indication of a deficiency
upon which a penalty may be based unless the State fails to maintain a
level of substantial compliance with respect to any marginally-met
criteria cited in the penalty notice. A finding of marginal substantial
compliance serves to alert a State to particular areas for which the
State's performance is bordering upon failure. It signals a need for
improvement.
As we indicated in response to similar comments in the final rule
promulgated in 1985 (50 FR at 40131), although the audit criteria the
State marginally met cannot result in a finding of noncompliance or
application of the penalty at the time of the notice, the State must,
during the corrective action period, maintain substantial compliance in
the areas cited in the notice as marginally acceptable to avoid
subsequently losing funds under the penalty. Federal regulations
require that the notice issued to the State concerning the audit
findings must indicate the functional audit criteria that the State met
only marginally.
States for which a finding of a marginal substantial compliance is
made with respect to one or more criteria during an audit are
encouraged, but are not required, to address the concerns as part of
their corrective action plan. Any criteria for which the State has been
found to be in marginal substantial compliance are reexamined in
conjunction with the follow-up review following the corrective action
period to ensure that the State has maintained a level of substantial
compliance (e.g., at least 75 percent). A State will not be penalized
if, as part of a follow-up review, the areas identified in the previous
audit as being in ``marginal'' substantial compliance remained
marginal. However, if the follow-up review findings reflect that a
criterion in marginal compliance slipped below 75 percent, a penalty
could be imposed. We encourage States to improve their performance in
all areas addressed in the notice.
Miscellaneous
1. Comment: Three commenters contended that the proposed effective
date for the audit rule changes is too lenient since States have had
ample opportunity to meet mandatory requirements under the Family
Support Act of 1988. They argued that States should be judged before
publication of the final audit regulation because they have had more
than enough time to prepare for audits.
Response: Prior to the issuance of this final rule, OCSE had
authority under 45 CFR Part 305 to evaluate State compliance with some
of the requirements of the Family Support Act of 1988, including wage
withholding, $50 pass-through payment, and the establishment of
paternity until age 18. However, since we did not have the authority to
evaluate all Family Support Act requirements for purposes of
substantial compliance, the audit covered the provisions of the Family
Support Act in a general manner to determine whether the States had
implemented these requirements. Deficiencies identified were reported
to the appropriate State officials as management findings. In addition,
our regional offices conducted program reviews of State implementation
of selected Family Support Act provisions, shared their findings with
State agencies, and assisted in developing action steps to remedy any
deficiencies identified. Under this final rule, we have included audit
criteria that will now enable us to evaluate State compliance with all
requirements of the Family Support Act. State failure to prospectively
achieve substantial compliance with these requirements could result in
imposition of the statutory audit penalty.
2. Comment: One commenter recommended that audit criteria be
expanded to include evaluations of State staffing standards designed to
ensure that States are adequately complying with Federal regulations
governing minimum organizational and staffing requirements. Another
commenter requested that OCSE mandate caseload per worker ratios.
Response: In response to comments in the preamble to the final rule
governing Standards for Program Operations (54 FR 32306), we responded
to similar concerns on staffing standards and resource allocation. We
expressed our belief that States and localities should establish
specific resource or staffing standards. We clarified that the Federal
regulatory requirement has never been quantified as a national
standard. We explained that while we believe that it is highly
beneficial for IV-D programs to establish such standards, OCSE has not
established universal standards because of the various factors unique
to each State's or locality's operations. OCSE will continue to provide
technical assistance and disseminate relevant information pertaining to
resource or staffing standards.
Because the issue of staffing standards has been articulated as a
critical, and growing, concern for IV-D agencies, OCSE has issued a
program improvement grant to develop a methodology for establishing
staffing standards. Under the project awarded to the State of Virginia,
the State operations contractor will streamline current operations
through an operational analysis. The contractor will also develop a
staffing standards methodology which will be applied to the streamlined
operations. The project period is October 1993 to September 1996.
Relevant information will be shared with other States on an ongoing
basis. Furthermore, the President's Welfare Reform bill would require
the Secretary to study and report to Congress on the staffing of each
State's child support enforcement program.
3. Comment: One commenter expressed concern about the efficacy of
Federal audits, noting that there is considerable disparity between
State internal audit results and Federal audit findings.
Response: The variances between a State's internal audit and OCSE
audit findings in the situation described by the commenter is
attributable to the fact that the State audit is using its own State-
developed methodology and criteria in evaluating the child support
program during a given period of time. The timeframe, requirements
assessed, and the methodology employed may all be different than that
of a Federal audit. Audits conducted by OCSE use the methodology
described in the audit guide, which is available to States, and the
criteria set forth in the audit regulations in 45 CFR part 305 in
evaluating a State's IV-D program. In addition, OCSE audits build upon
the results of audits conducted by States under the Single Audit Act
which avoid duplicative audit activity.
4. Comment: Some commenters contended that changes to the audit
requirements during the time States are engaged in major efforts to
automate their programs is disruptive to those efforts. One commenter
advocated that implementation deadlines for the new rules should be
delayed. The commenter stated that the penalty should be replaced with
something more reasonable. Another commenter urged that the audit guide
should be released at the same time as Federal regulations are
published, and that it should describe the process and parts to be
emphasized, so that States can implement their programs in the
appropriate way and avoid costly revisions to their systems.
Response: States are required to meet all Federal requirements set
forth in law and regulations governing the IV-D program as a condition
of having an approved State plan and continued eligibility for Federal
financial participation in their programs. Audits of State performance
are mandated by Federal law as a primary means to ensure that States,
in fact, carry out these responsibilities. The OCSE audit guides are
designed, developed, and disseminated to assist States. However,
Federal law and regulations, not audit guides, are the bases upon which
child support program audits are conducted, penalties imposed, and
States held accountable.
In enacting the explicit effective dates for various requirements
under the Family Support Act of 1988, Congress did not intend for
States to delay action to conform their laws and procedures to the
requirements until such time as they had established a computerized
support enforcement system. States have known about the Family Support
Act requirements for more than five years, and have had 90 percent
Federal funding for developing systems available for 13 years. Congress
did not intend that States should be held harmless for their program
deficiencies during the development of their automated systems.
Furthermore, the audit process is not the sole means through which
State program development and compliance is determined. OCSE uses
program reviews, the State Plan approval process, the audit resolution
and tracking system, as well as the established audit process, to
review State compliance.
5. Comment: One commenter submitted that audit samples should
include paying cases, arguing that without such cases, States are only
measured on their failures to monitor cases. They contended that audit
findings may be skewed if such cases are eliminated from consideration
in evaluating the State's performance.
Response: Audit samples selected during the audit include all types
of IV-D cases, including paying cases. In evaluating a State's
performance through the audit process, cases that need enforcement or
other action, including cases in paying status during the audit period,
are examined to determine whether such action was taken appropriately
in accordance with Federal and State program requirements, including
relevant timeframes. If a State has taken the necessary action required
by the particular case circumstances, credit will be given. Cases in
paying status that did not require any action during the audit period
will be examined as to whether collection and distribution requirements
were met.
6. Comment: One commenter contended that the proposal continues to
stress process over product and imposes a single set of inflexible
standards with arbitrary passing scores upon the 54 diverse State
programs. The commenter urged that the OCSE and the IV-D system would
be better served by moving toward a system of negotiated rulemaking
nationally and a performance-based audit approach tailored to State
programs.
Response: In the national performance review as well as in
Presidential Executive Order No. 12866, Federal agencies are strongly
encouraged to utilize negotiated rulemaking. The Department is fully
committed to this, as well as to our ongoing efforts to design a
mechanism to evaluate States based on the results of their efforts. In
addition, under the President's Welfare Reform bill, audits conducted
by OCSE would not include the evaluation of State programs to determine
State compliance with Federal requirements. Under the proposal, the
State will conduct reviews to determine whether IV-D services were
provided in accordance with program requirements. OCSE audits would
focus on determining the reliability of State data reported to the
Federal Government.
7. Comment: In response to OCSE's certification in the proposed
rule concerning regulatory flexibility analysis, one commenter
suggested that the proposed regulations impact a substantial number of
small entities inasmuch as most States rely on cooperative agreements
with political subdivisions to attain program compliance objectives.
Response: This regulation is applicable to Federal audits of State
government programs. State governments, upon which these regulations
will primarily impact, are not considered small entities under the
Regulatory Flexibility Act.
Regulatory Flexibility Analysis
The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the
Regulatory Flexibility Act (Pub. L. 96-354), that this regulation will
not result in a significant impact on a substantial number of small
entities. The primary impact is on State governments and individuals,
which are not considered small entities under the Act. Also, while OBRA
'93 requires States to pass laws that may impact hospitals, these
regulations do not govern hospitals per se and therefore do not have a
significant impact on a substantial number of small entities.
Regulatory Impact Analysis
Executive Order 12866 requires that regulations be reviewed to
ensure that they are consistent with the priorities and principles set
forth in the Executive Order. The Department has determined that this
rule is consistent with these priorities and principles. No costs are
associated with this rule as it merely ensures consistency between the
statute and regulations.
List of Subjects in 45 CFR Parts 301, 302, 303, 304, and 305
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: July 14, 1994
Mary Jo Bane,
Assistant Secretary for Children and Families.
Approved: September 7, 1994.
Donna E. Shalala,
Secretary.
For the reasons set out in the preamble, title 45 chapter III of
the Code of Federal Regulations is amended as follows:
PART 301--STATE PLAN APPROVAL AND GRANT PROCEDURES
1. The authority citation for Part 301 continues to read as set
forth below:
Authority: 42 U.S.C. 651 through 658, 660, 664, 666, 667, 1301,
and 1302.
2. Section 301.1 is amended by adding in alphabetical order the
definitions of ``Birthing hospital'' and ``Procedures'':
Sec. 301.1 General definitions.
* * * * *
Birthing hospital means a hospital that has an obstetric care unit
or provides obstetric services, or a birthing center associated with a
hospital. A birthing center is a facility outside a hospital that
provides maternity services.
* * * * *
Procedures means a written set of instructions which describe in
detail the step by step actions to be taken by child support
enforcement personnel in the performance of a specific function under
the State's IV-D plan. The IV-D agency may issue general instructions
on one or more functions, and delegate responsibility for the detailed
procedures to the office, agency, or political subdivision actually
performing the function.
* * * * *
PART 302--STATE PLAN REQUIREMENTS
3. The authority citation for Part 302 continues to read as
follows:
Authority: 42 U.S.C. 651 through 658, 660, 664, 666, 667, 1302,
1396a(a)(25), 1396b(d)(2), 1396b(o), 1396b(p), and 1396(k).
4. Section 302.70 is amended by revising paragraphs (a),
introductory text, and (a)(2), and by adding new paragraphs (a)(5)(iii)
through (a)(5)(viii) and (a)(11) to read as follows:
Sec. 302.70 Required State laws.
(a) Required Laws. The State plan shall provide that, in accordance
with sections 454(20) and 466 of the Act, the State has in effect laws
providing for and has implemented the following procedures to improve
program effectiveness:
* * * * *
(2) Expedited processes to establish paternity and to establish and
enforce child support orders having the same force and effect as those
established through full judicial process, in accordance with the
requirements set forth in Sec. 303.101 of this chapter;
* * * * *
(5) * * *
(iii) Procedures for a simple civil process for voluntarily
acknowledging paternity under which the State must provide that the
rights and responsibilities of acknowledging paternity are explained,
and ensure that due process safeguards are afforded. Such procedures
must include:
(A) A hospital-based program in accordance with Sec. 303.5(g) for
the voluntary acknowledgment of paternity during the period immediately
before or after the birth of a child to an unmarried mother, and a
requirement that all public and private birthing hospitals participate
in the hospital-based program defined in Sec. 303.5(g)(2); and
(B) A process for voluntarily acknowledging paternity outside of
hospitals.
(iv) Procedures under which the voluntary acknowledgment of
paternity creates a rebuttable or, at the option of the State,
conclusive presumption of paternity, and under which such voluntary
acknowledgment is admissible as evidence of paternity;
(v) Procedures which provide that any objection to genetic testing
results must be made in writing within a specified number of days
before any hearing at which such results may be introduced into
evidence; and if no objection is made, a written report of the test
results is admissible as evidence of paternity without the need for
foundation testimony or other proof of authenticity or accuracy;
(vi) Procedures which create a rebuttable or, at the option of the
State, conclusive presumption of paternity upon genetic testing results
indicating a threshold probability of the alleged father being the
father of the child;
(vii) Procedures under which a voluntary acknowledgment must be
recognized as a basis for seeking a support order without requiring any
further proceedings to establish paternity; and
(viii) Procedures requiring a default order to be entered in a
paternity case upon a showing that process was served on the defendant
in accordance with State law, that the defendant failed to respond to
service in accordance with State procedures, and any additional showing
required by State law.
* * * * *
(11) Procedures under which the State must give full faith and
credit to a determination of paternity made by any other State, whether
established through voluntary acknowledgment or through administrative
or judicial processes.
* * * * *
PART 303--STANDARDS FOR PROGRAM OPERATIONS
5. 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).
6. Section 303.4 is amended by revising paragraph (d) and adding
paragraph (f) to read as follows:
Sec. 303.4 Establishment of support obligations.
* * * * *
(d) Within 90 calendar days of locating the alleged father or
noncustodial parent, regardless of whether paternity has been
established, establish an order for support or complete service of
process necessary to commence proceedings to establish a support order
and, if necessary, paternity (or document unsuccessful attempts to
serve process, in accordance with the State's guidelines defining
diligent efforts under Sec. 303.3(c)).
* * * * *
(f) Seek a support order based on a voluntary acknowledgment in
accordance with Sec. 302.70(a)(5)(vii).
* * * * *
7. Section 303.5 is amended by revising paragraph (a) and by adding
paragraphs (f), (g), and (h) to read as follows:
Sec. 303.5 Establishment of paternity.
(a) For all cases referred to the IV-D agency or applying for
services under Sec. 302.33 of this chapter in which paternity has not
been established, the IV-D agency must, as appropriate:
(1) Provide an alleged father the opportunity to voluntarily
acknowledge paternity in accordance with Sec. 302.70(a)(5)(iii); and
(2) Attempt to establish paternity by legal process established
under State law.
* * * * *
(f) The IV-D agency must seek entry of a default order by the court
or administrative authority in a paternity case by showing that process
has been served on the defendant in accordance with State law, that the
defendant has failed to respond to service in accordance with State
procedures, and any additional showing required by State law, in
accordance with Sec. 302.70(a)(5)(viii).
(g) Hospital-based program.
(1) The State must establish, in cooperation with hospitals, a
hospital-based program in every public and private birthing hospital.
These programs must be operational in birthing hospitals statewide no
later than January 1, 1995 (unless Federal law governing the effective
date gives the State additional time).
(2) During the period immediately before or after the birth of a
child to an unmarried woman in the hospital, a hospital-based program
must, at a minimum:
(i) Provide to both the mother and alleged father, if he is present
in the hospital:
(A) Written materials about paternity establishment,
(B) the forms necessary to voluntarily acknowledge paternity,
(C) a written description of the rights and responsibilities of
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, if he is present, the
opportunity to voluntarily acknowledge paternity in the hospital;
(iii) Afford due process safeguards; and
(iv) Forward completed acknowledgments or copies to the entity
designated under Sec. 303.5(g)(8).
(3) A hospital-based 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 obtained
through a hospital-based program 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 public and private birthing
hospitals in the State:
(i) written materials about paternity establishment,
(ii) forms necessary to voluntarily acknowledge paternity, and
(iii) copies of a written description of the rights 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 hospital-based program.
(7) The State must assess each birthing hospital's program on at
least an annual basis.
(8) The State must designate an entity to which hospital-based
programs must forward completed voluntary acknowledgments or copies in
accordance with Sec. 303.5(g)(2)(iv). Under State procedures, this
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).
(h) In IV-D cases needing paternity establishment, the IV-D agency
must determine if identifying information about a voluntary
acknowledgment has been recorded in the statewide database in
accordance with Sec. 303.5(g)(8).
8. Section 303.101 is amended by revising paragraphs (a), (b),
(c)(1) and (3), (d) (2) through (4), and (e), and by adding paragraph
(d)(5) to read as follows:
Sec. 303.101 Expedited processes.
(a) Definition. Expedited processes means administrative or
expedited judicial processes or both which increase effectiveness and
meet processing times specified in paragraph (b)(2) of this section.
(b) Basic requirement. (1) The State must have in effect and use,
in interstate and intrastate cases, expedited processes as specified
under this section to establish paternity and to establish and enforce
support orders.
(2) Under expedited processes:
(i) In IV-D cases needing support order establishment, regardless
of whether paternity has been established, action to establish support
orders must be completed from the date of service of process to the
time of disposition within the following timeframes: (A) 75 percent in
6 months; and (B) 90 percent in 12 months.
(ii) In IV-D cases where a support order has been established,
actions to enforce the support order must be taken within the
timeframes specified in Secs. 303.6(c)(2) and 303.100;
(iii) For purposes of the timeframe at Sec. 303.101(b)(2)(i), in
cases where the IV-D agency uses long-arm jurisdiction and disposition
occurs within 12 months of service of process on the alleged father or
noncustodial parent, the case may be counted as a success within the 6
month tier of the timeframe, regardless of when disposition occurs in
the 12 month period following service of process.
(iv) Disposition, as used in paragraphs (b)(2)(i) and (iii) of this
section, means the date on which a support order is officially
established and/or recorded or the action is dismissed.
(c) * * *
(1) Paternities and orders established by means other than full
judicial process must have the same force and effect under State law as
paternities and orders established by full judicial process within the
State;
* * * * *
(3) The parties must be provided a copy of the voluntary
acknowledgment of paternity, paternity determination, and/or support
order;
* * * * *
(d) * * *
(2) Evaluating evidence and making recommendations or decisions to
establish paternity and to establish and enforce orders;
(3) Accepting voluntary acknowledgment of paternity or support
liability and stipulated agreements setting the amount of support to be
paid;
(4) Entering default orders upon a showing that process has been
served on the defendant in accordance with State law, that the
defendant failed to respond to service in accordance with State
procedures, and any additional showing required by State law; and
(5) Ordering genetic tests in contested paternity cases in
accordance with Sec. 303.5(d)(1).
* * * * *
(e) Exemption for political subdivisions. A State may request an
exemption from any of the requirements of this section for a political
subdivision on the basis of the effectiveness and timeliness of
paternity establishment, support order issuance or enforcement within
the political subdivision in accordance with the provisions of
Sec. 302.70(d) of this chapter.
PART 304--FEDERAL FINANCIAL PARTICIPATION
9. 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).
10. Section 304.20 is amended by adding paragraphs (b)(2)(vi)
through (viii) to read as follows:
Sec. 304.20 Availability and rate of Federal financial participation.
* * * * *
(b) * * *
(2) The establishment of paternity including:
* * * * *
(vi) Payments up to $20 to birthing hospitals and other entities
that provide prenatal or birthing services for each voluntary
acknowledgment obtained pursuant to an agreement with the IV-D agency;
(vii) Developing and providing to birthing hospitals and other
entities that provide prenatal or birthing services written and
audiovisual materials about paternity establishment and forms necessary
to voluntarily acknowledge paternity; and
(viii) Reasonable and essential short-term training regarding
voluntary acknowledgment of paternity associated with a State's
hospital-based program as defined by Sec. 303.5(g)(2).
* * * * *
11. Section 304.23 is amended by revising paragraph (d) to read:
Sec. 304.23 Expenditures for which Federal financial participation is
not available.
* * * * *
(d) Education and training programs and educational services except
direct cost of short term training provided to IV-D agency staff or
pursuant to Secs. 304.20(b)(2)(viii) and 304.21.
PART 305--AUDIT AND PENALTY
* * * * *
12. The authority citation for Part 305 is revised to read as set
forth below:
Authority: 42 U.S.C. 603(h), 604(d), 652(a)(1), (4) and (g), and
1302.
13. Section 305.0 is revised to read as follows:
Sec. 305.0 Scope.
This part implements the requirements in sections 452(a)(4) and
403(h) of the Act for an audit, at least once every three years, of the
effectiveness of State Child Support Enforcement programs under title
IV-D and for a possible reduction in Federal reimbursement for a
State's title IV-A program pursuant to sections 403(h) and 404(d) of
the Act. Sections 305.10 through 305.13 describe the audit. Section
305.20 sets forth audit criteria and subcriteria the Office will use to
determine program effectiveness and defines an effective program for
purposes of an audit. Section 305.98 sets forth the performance
indicators the Office will use to determine State IV-D program
effectiveness.
Section 305.99 provides for the issuance of a notice and corrective
action period if a State is found by the Secretary not to have an
effective IV-D program. Section 305.100 provides for the imposition of
a penalty if a State is found by the Secretary not to have had an
effective program and to have failed to take corrective action and
achieve substantial compliance within the period prescribed by the
Secretary.
14. Section 305.1 is revised to read as follows:
Sec. 305.1 Definitions.
The definitions found in Sec. 301.1 of this chapter are also
applicable to this part.
15. Section 305.10 is amended by revising the last sentence of
paragraph (a) and paragraph (c)(2) to read as follows:
Sec. 305.10 Timing and scope of audit.
(a) * * * The audit of each State's program will be a comprehensive
review using the criteria prescribed in Secs. 305.20 and 305.98 of this
part.
* * * * *
(c) * * *
(2) Use the audit standards promulgated by the Comptroller General
of the United States in ``Government Auditing Standards.''
* * * * *
16. Section 305.12 is amended by revising paragraph (a) to read as
follows:
Sec. 305.12 State comments.
(a) Prior to the start of the actual audit, the Office will hold an
audit entrance conference with the IV-D agency. At that conference, the
Office will explain how the audit will be performed and make any
necessary arrangements.
* * * * *
17. Section 305.20 is revised to read as follows:
Sec. 305.20 Effective support enforcement program.
For the purposes of this part and section 403(h) of the Act, in
order to be found to have an effective program in substantial
compliance with the requirements of title IV-D of the Act:
(a) For any audit period which begins on or after December 23,
1994, a State must meet the IV-D State plan requirements contained in
Part 302 of this chapter measured as follows:
(1) The State must meet the requirements under the following
criteria:
(i) Statewide operations, Sec. 302.10;
(ii) Reports and maintenance of records, Sec. 302.15(a);
(iii) Separation of cash handling and accounting functions,
Sec. 302.20; and
(iv) Notice of collection of assigned support, Sec. 302.54.
(2) The State must have and use procedures required under the
following criteria in at least 90 percent of the cases reviewed for
each criterion:
(i) Establishment of cases, Sec. 303.2(a); and
(ii) Case closure criteria, Sec. 303.11.
(3) The State must have and use procedures required under the
following criteria in at least 75 percent of the cases reviewed for
each criterion:
(i) Collection and distribution of support payments, including:
Collection and distribution of support payments by the IV-D agency
under Secs. 302.32(b) and (f); distribution of support collections
under Sec. 302.51; and distribution of support collected in title IV-E
foster care maintenance cases under Sec. 302.52;
(ii) Establishment of paternity and support orders, including:
Establishment of a case under Sec. 303.2(b); services to individuals
not receiving AFDC or title IV-E foster care assistance, under
Secs. 302.33(a)(1) through (4); provision of services in interstate IV-
D cases under Secs. 303.7(a), (b) and (c)(1) through (6) and (8)
through (10); location of non-custodial parents under Sec. 303.3;
establishment of paternity under Secs. 303.5(a) and (f); guidelines for
setting child support awards under Sec. 302.56; and establishment of
support obligations under Secs. 303.4(d), (e) and (f);
(iii) Enforcement of support obligations, including, in all
appropriate cases: Establishment of a case under Sec. 303.2(b);
services to individuals not receiving AFDC or title IV-E foster care
assistance, under Secs. 302.33(a)(1) through (4); provision of services
in interstate IV-D cases under Secs. 303.7(a), (b) and (c)(1) through
(6) and (8) through (10); location of non-custodial parents under
Sec. 303.3; enforcement of support obligations under Sec. 303.6,
including submitting once a year all appropriate cases in accordance
with Sec. 303.6(c)(3) to State and Federal income tax refund offset;
and wage withholding under Sec. 303.100. In cases in which wage
withholding cannot be implemented or is not available and the non-
custodial parent has been located, States must use or attempt to use at
least one enforcement technique available under State law in addition
to Federal and State tax refund offset, in accordance with State laws
and procedures and applicable State guidelines developed under
Sec. 302.70(b) of this chapter;
(iv) Review and adjustment of child support orders, including:
establishment of a case under Sec. 303.2(b); services to individuals
not receiving AFDC or title IV-E foster care assistance, under
Secs. 302.33(a)(1) through (4); provision of services in interstate IV-
D cases under Secs. 303.7(a), (b) and (c)(1) through (6) and (8)
through (10); location of non-custodial parents under Sec. 303.3;
guidelines for setting child support awards under Sec. 302.56; and
review and adjustment of support obligations under Sec. 303.8; and
(v) Medical support, including: establishment of a case under
Sec. 303.2(b); services to individuals not receiving AFDC or title IV-E
foster care assistance, under Secs. 302.33(a)(1) through (4); provision
of services in interstate IV-D cases under Secs. 303.7(a), (b) and
(c)(1) through (6) and (8) through (10); location of non-custodial
parents under Sec. 303.3; securing medical support information under
Sec. 303.30; and securing and enforcing medical support obligations
under Sec. 303.31.
(4) With respect to the 75 percent standard in Sec. 305.20(a)(3):
(i) Notwithstanding timeframes for establishment of cases in
Sec. 303.2(b); provision of services in interstate IV-D cases under
Secs. 303.7(a), (b) and (c)(4) through (6), (8) and (9); location and
support order establishment under Secs. 303.3(b)(3) and (5), and
303.4(d), if a support order needs to be established in a case and an
order is established during the audit period in accordance with the
State's guidelines for setting child support awards, the State will be
considered to have taken appropriate action in that case for audit
purposes.
(ii) Notwithstanding timeframes for establishment of cases in
Sec. 303.2(b); provision of services in interstate IV-D cases under
Secs. 303.7(a), (b) and (c)(4) through (6), (8) and (9); and location
and review and adjustment of support orders contained in
Secs. 303.3(b)(3) and (5), and 303.8, if a particular case has been
reviewed and meets the conditions for adjustment under State laws and
procedures and Sec. 303.8, and the order is adjusted, or a
determination is made, as a result of a review, during the audit
period, that an adjustment is not needed, in accordance with the
State's guidelines for setting child support awards, the State will be
considered to have taken appropriate action in that case for audit
purposes.
(iii) Notwithstanding timeframes for establishment of cases in
Sec. 303.2(b); provision of services in interstate IV-D cases under
Secs. 303.7 (a), (b) and (c) (4) through (6), (8) and (9); and location
and wage withholding in Secs. 303.3(b) (3) and (5), and 303.100, if
wage withholding is appropriate in a particular case and wage
withholding is implemented and wages are withheld during the audit
period, the State will be considered to have taken appropriate action
in that case for audit purposes.
(iv) Notwithstanding timeframes for establishment of cases in
Sec. 303.2(b); provision of services in interstate IV-D cases under
Secs. 303.7 (a), (b) and (c) (4) through (6), (8) and (9); and location
and enforcement of support obligations in Secs. 303.3(b) (3) and (5),
and 303.6, if wage withholding is not appropriate in a particular case,
and the State uses at least one enforcement technique available under
State law, in addition to Federal and State income tax refund offset,
which results in a collection received during the audit period, the
State will be considered to have taken appropriate action in the case
for audit purposes.
(5) The State must meet the requirements for expedited processes
under Secs. 303.101(b)(2) (i) and (iii), and (e).
(6) The State must meet the criteria referred to in Sec. 305.98(c)
of this part relating to the performance indicators prescribed in
Sec. 305.98(a).
18. Sections 305.21 through 305.57 are removed and reserved.
Secs. 305.21-305.57 [Removed and Reserved]
19. Section 305.98 is amended by revising paragraph (c),
introductory text, and paragraph (d) to read as follows:
Sec. 305.98 Performance indicators and audit criteria.
* * * * *
(c) The Office shall use the following procedures and audit
criteria to measure State performance.
* * * * *
(d) The scoring system provided in paragraph (c) of this section
will be described and updated whenever OCSE determines that it is
necessary and appropriate by the Office in regulations.
20. Section 305.99 is amended by revising paragraph (b)(2) to read
as follows:
Sec. 305.99 Notice and corrective action period.
* * * * *
(b) * * *
(2) Identify any audit criteria listed in Sec. 305.20(a)(3) of this
part that the State met only marginally [that is, in 75 to 80 percent
of cases reviewed for criteria in Sec. 305.20(a)(3)];
* * * * *
[FR Doc. 94-31313 Filed 12-21-94; 8:45 am]
BILLING CODE 4150-04-P
