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Final Rule: Deletion of IV-D State Plan and Audit Requirements

AT-82-06

Published: June 22, 1982
Information About:
State/Local Child Support Agencies
Topics:
Program Audit, Federal Reporting, State Plan, Funding, Federal Financial Participation (FFP)
Types:
Policy, Action Transmittals (AT), Regulations
Tags:
Safeguarding

REGULATION

ACTION TRANSMITTAL

OCSE-AT-82-06

June 22, 1982

TO: STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PROGRAMS UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS

SUBJECT: Deletion of IV-D State Plan and Audit Requirements

ATTACHMENTS: Attached is a final rule with comment period which deletes several non-statutory State plan requirements from 45 CFR Part 302, State Plan Requirements, and eliminates certain sections from 45 CFR Part 305, Audit and Penalty, which require compliance audits of non-statutory State plan requirements. The regulation also makes several technical changes, including deleting two obsolete sections, 45 CFR 302.40 and 304.28. This regulation will reduce the scope of the IV-D State plan and the annual compliance audits of State Child Support Enforcement programs. Instructions concerning IV-D State plan preprint deletions will be issued separately.

REGULATION REFERENCES:45 CFR 302.40 (deleted); 45 CFR 303.6; 45 CFR 303.70; 45 CFR 302.18, transferred to 45 CFR 303.21; 45 CFR 302.72, transferred to 45 CFR 303.73; 45 CFR 304.20; 45 CFR 304.28 (deleted); 45 CFR 305.20; 45 CFR 305.33; 45 CFR 305.37 (deleted); 45 CFR 305.38 (deleted); 45 CFR 305.39 (deleted) and 45 CFR 306.11.

EFFECTIVE DATE: June 8, 1982

COMMENT PERIOD: Consideration will be given to written comments or suggestions received on or before August 9, 1982. Address comments to: Director, Office of Child Support Enforcement, Department of Health and Human Services, 6110 Executive Blvd., Suite 1010, Rockville, Maryland 20852; ATTN: Policy Branch.

INQUIRIES TO: OCSE Regional Representatives

Deputy Director

Office of Child Support Enforcement

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of Child Support Enforcement

45 CFR Parts 302, 303, 304, 305 and 306

STATE CHILD SUPPORT ENFORCEMENT Programs; Deletion of IV-D State Plan and Audit Requirements

Agency: Office of Child Support Enforcement (OCSE), HHS.

Action: Final rule with comment period.

Summary: We are making several technical changes in our regulations which will have the effect of reducing the scope of the IV-D State plan and the annual compliance audits of State Child Support Enforcement programs. We will achieve this effect by eliminating from 45 CFR Part 305, Audit and Penalty, those sections which require us to conduct compliance audits of State plan provision that are not statutory State plan requirements. This will require deleting certain non-statutory plan requirements from 45 CFR Part 302, State Plan Requirements, as well. In addition we are deleting from Part 302 a non-statutory State plan requirement which has not, to date, been incorporated under Part 305. We are also deleting from 45 CFR Part 302 the obsolete § 302.40, Operation of the Child Support Enforcement program in the absence of an assignment. Finally, in 45 CFR Part 304, we are deleting § 304.28, Federal financial participation at the 50 percent rate, because it too, is obsolete.

DATES: Effective June 8, 1982. Comment: Consideration will be given to written comments or suggestions received on or before August 9, 1982. Agencies and organizations are requested to submit their comments in duplicate.

ADDRESS: Address comments to: Director, Office of Child Support Enforcement. Department of Health and Human Services; 6110 Executive Blvd., Suite 1010 Rockville, Maryland 20852; ATTN: Policy Branch. Comments will be available for public inspection Monday through Friday, 8:30a.m. to 5:00p.m.. in Room 1010 of the Department's offices at the address above.

FOR FURTHER INFORMATION CONTACT: Elizabeth Matheson (301) 443-5350.

SUPPLEMENTARY INFORMATION

Background

Under section 403(h) of the Social Security Act (42 U.S.C. 603(h)), any State that "is found by the Secretary as the result of the annual (program compliance) audit to have failed to have an effective (Child Support Enforcement) program meeting the requirements of section 402(a)(27)" in any fiscal year will be subject to a five percent reduction in its Federal AFDC (title IV-A) matching funds for that year. Section 402(a)(27), in turn, requires that the State have in effect and operate a Child Support Enforcement program under an approved title IV-D State plan. The statutory requirements of the IV-D State plan are specified at section 454 of the Act. Thus, in order to avoid the five percent penalty under section 403(h), a State must, under the statute, comply with each of the requirements under section 454.

OCSE regulations at 45 CFR Part 302 establish several State plan requirements and in some cases corresponding audit compliance requirements at 45 CFR Part 305 for program functions which are not statutory State plan requirements. We established these non-statutory State plan requirements under the general authority of the Secretary at section 454(13) of the Act to establish "such other requirements and standards as the Secretary determines to be necessary" for IV-D program effectiveness.

This is the first of several regulations we are publishing in which non-statutory State plan requirements will be deleted or transferred from 45 CFR Part 302 to Part 303, Standards for Program Operations. We are not making all planned changes in this regulation because of the need to coordinate with recent legislative changes.

This document deals with three regulations under which States are presently subject to OCSE compliance review at OCSE's option. These regulations are included under Part 305, Audit and Penalty. This document also covers a regulation, 45 CFR 302.72, Application to use the courts of the United States to enforce support orders, which establishes a State plan requirement at OCSE's option without a corresponding compliance review requirement under Part 305. We will refer to the group of three compliance review regulations under the heading "Deletions from Audit Requirements." The regulation on use of U.S. district courts is discussed under the heading "Deletion from Non-Statutory State Plan Requirements." In addition to these regulations, two other regulations are being deleted by this final rule. The existing 45 CFR 302.40, Operation of the Child Support Enforcement Program in the absence of an assignment, was enacted at the beginning of the IV-D program in 1975 to permit States some flexibility in transferring what were then title IV-A child support cases into the IV-D caseload by securing the necessary assignments of support rights. The regulations allowed States to treat collections in these preexisting cases as though assignments had been made.

This exception was instituted on August 1, 1975 and expired on December 31, 1975. Because it is obsolete, we are taking this opportunity to delete § 302.40. Similarly, 45 CFR 304.28, Federal financial participation at the 50 percent rate, "was published to accommodate a gradual transfer of former title IV-A child support activities into the new IV-D program. It, to, is obsolete, and we are taking this opportunity to delete it from our regulations.

Deletions From Audit Requirements

This section addresses three child support related activities where, under existing Part 305 audit regulations and audit procedures, States are subject to audit review at OCSE's option rather than because the State requires this review. Each of these areas was originally included in the audit because we regarded compliance in these areas as a necessary complement to the compliance areas required by statute under section 454. OCSE believes that the need for compliance reviews in each of these three areas has receded in importance as States have fully implemented and enhanced their IV-D programs over the past several years. We have, therefore, decided to concentrate our audit resources on those areas of the State plan that are required under section 454 and to delete from Part 3O5 all other areas presently subject to compliance review. In one of these areas, Safeguarding information, corresponding deletions from Part 3O2 and from the IV-D State plan are needed. Thus, Safeguarding information is being deleted from Parts 3O2 and 3O5 and from the State plan preprint, and is being transferred to Part 303, Standards for Program Operations. In addition, two IV-D audit regulations that are based on IV-A State plan requirements, Prompt notice and Assignment of support rights, are being deleted from Part 305. Where material has been transferred to another Part, we have also made minor editorial changes to conform to preferred Federal Register usage. The three compliance areas and their corresponding changes are discussed below under separate headings.

1. Safeguarding Information. We are deleting 45 CFR 302.18, Safeguarding information, and 45 CFR 305.37, same title, because these provisions for safeguarding are not based on statutory IV-D State plan requirements. Instead, we are amending 45 CFR Part 303, Standards for Program Operations, by adding a new § 303.21, Safeguarding information. We believe that confidentiality of case records can be sufficiently protected in this manner. The language of the new § 303.21 is identical to that of the former § 302.18 except for minor editorial changes and the elimination of the words "The State plan shall provide that:". Transferring § 302.18 enables us to delete 45 CFR 305.37, Safeguarding information, and thereby to eliminate our existing compliance review of this area in our annual IV-D program compliance audits. A State plan amendment deleting Section 3.5, Safeguarding Information, from the IV-D State plan preprint, will be issued shortly.

While this transfer of the safeguarding provisions from Part 302, State Plan requirements, to Part 303, Standards for Program Operations, deletes the provisions from the IV-D State plan, it does not alter the long standing Federal requirement that information be safeguarded. Any information about AFDC recipients and non-AFDC applicants for IV-D services will continue to be protected under the same standards used in the past. Federal IV-A and IV-D staff will continue to monitor State practices. However, since safeguarding information has not proved to be a significant problem area under this program, and since it is not a statutory IV-D State plan requirement, we will no longer test compliance through the formal audit mechanism.

2. Prompt notice by the IV-A agency to the IV-D agency. Section 402(a)(11) of the Social Security Act (42 U.S.C. 602(a)(11) requires that the IV-A State plan must "provide for prompt notice" to the IV-D agency whenever aid is provided on behalf of "a child who has been deserted or abandoned by a parent." Although this "prompt notice" is a IV-A State plan requirement, it was particularly important to the mission of the IV-D agency in the early days of the program that this process be initiated. It was therefore included in OCSE's audit and penalty regulations at 45 CFR 305.38 to ensure that States implemented the new prompt notice requirements. Because it is not a statutory IV-O State plan requirement, however, we are eliminating this section from Part 305 and hence from the IV-D compliance audit. After several years of IV-D program operation, we believe that monitoring of this function by the Federal IV-A agency will now be sufficient to insure its continued performance.

3. Assignment of support rights. Another title IV-A State plan requirement that has been included in the OCSE compliance audits is the assignment of support rights required by section 402(a)(26)(A) of the Act (42 U.S.C. 602(a)(26)(A)). Like the prompt notice requirement, the IV-A responsibility for securing assignments from AFDC applicants and recipients is, critical to the success of the IV-D program. It was therefore included among our audit requirements at 45 CFR 305.39. The requirement for assignment has now been in place for six years, States have not had serious problems in implementing this requirement. We believe that the smooth operation of this function, therefore, warrants its removal from Part 305 and from the OCSE program compliance audits. Again, we believe the monitoring of this requirement by the Federal IV-A agency will be sufficient to secure State compliance. Therefore, we are deleting 45 CFR 305.39, Assignment of rights to support. A corresponding change to Part 302 is unnecessary, since this is a IV-A State plan requirement found in AFDC regulations under 45 CFR Part 232.

Deletion From Non-Statutory State Plan Requirements

One non-statutory IV-D State plan requirement presently in Part 302 (45 CFR 302.72, Applications to use the courts of the United States to enforce court orders) does not have a corresponding audit compliance requirement under Part 305. Because its overall importance to the program has proved to be less than originally anticipated when we implemented it as a regulatory State plan requirement, we believe this regulation can be transferred from Part 302 to Part 303 with no corresponding loss of program effectiveness. The regulation involves a service provided by the Federal government to the States. We therefore believe that our review of State requests for this service and our prerogative to deny the service in the event of a faulty or inappropriate application for service acts as a sufficient check on State practices in this area. Subjecting this area to compliance audit reviews would merely duplicate an already adequate degree of Federal oversight and should therefore be avoided.

We wish to emphasize that although the deletion of this regulation from Part 302 will enable us to avoid publishing a separate corresponding regulation under Part 305, this function presently receives audit scrutiny under existing audit regulations. This review will continue under the amended audit regulations. Specifically, use of the U.S. district courts is now reviewed under our audit of the enforcement function. The effect of this deletion, then, will not be to diminish our existing audit oversight with respect to the enforcement function, but rather to avoid an unnecessary increase in our audit through the enactment of an additional, separate audit regulation.

As part of this final regulation package, therefore, we are transferring 45 CFR 302.72 to a new 45 CFR 303.73, Applications to use the courts of the United States to enforce court orders. We will shortly issue a State plan amendment to delete the corresponding Section 2.8, Applications for Use of U.S. District Courts, from the IV-D State plan preprint.

Other Conforming Changes

Several minor changes are needed to conform citations in other regulations with the amended Parts 302, 303 and 305. These changes are purely technical in nature and will ensure that the citations in our regulations are accurate.

On November 3, 1981 (46 FR 54554), we published regulations to implement the parental kidnapping provisions of Pub. L. 96-611. We are making several technical changes in this final rule to conform other regulations with the parental kidnapping amendments. Specifically, the reference to § 302.35(d) contained in § 305.33(d) is being deleted, and the references to § 302.2O(b)(5)(iii) to §§ 302.35(e) and 302.70(f) are being changed to refer to the new § 303.70(e). In addition, § 305.33(h) is obsolete as a result of our removal of the safeguarding information requirements from the State plan, as it too is being deleted.

To conform with separately published regulations on IRS collection of support, the citation contained in § 304.2O(b)(6) is being changed from § 302.71 to § 303.71.

All of the remaining references to the former 45 CFR 302.18, Safeguarding information, are being deleted or changed to reflect the transfer of this regulation to Part 303. These references occur at 45 CFR 303.70(d)(2). Requests by the State parent locator service for information on the Federal Parent Locator Service (PLS), 305.20, Audit criteria, and 306.ll(c), the medical support enforcement regulation.

Finally, there are two references to the deleted 45 CFR 302.72, Applications to use the courts of the United States to enforce court orders, which are been changed to reflect the transfer of this regulation to Part 303. These occur at 45 CFR 303.6(e) and 304.20(b)(7).

Rulemaking

These changes to the regulations are being published in final form. The Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that if the Department for good cause finds that a notice of proposed rulemaking is unnecessary, impracticable or contrary to the public interest, it may dispense with such notice.

The Department finds that a notice of proposed rulemaking in this instance is unnecessary. The changes being made are of a technical nature and will have no substantive effect on service delivery. These changes will, moreover, reduce Federal requirements under title IV-D to the minimum required by statute, thus easing the burden on the States of complying with title IV-D without reducing the effectiveness of the program.

Inasmuch as these changes have a favorable impact on the States and no effect on the substantive rights of individuals, we perceive no basis for adverse comments. Meanwhile, it is in the interest of the States to have these changes effectuated at the earliest possible date. For these reasons, then, we believe it is unnecessary to publish proposed rules, and instead are promulgating these regulations as a final rule, with comment period. We encourage public comment and will, if necessary, make changes in the regulations in response to the comments received.

These regulations are being made effective upon publication because, in removing those IV-D State plan and audit requirements that are not required by statute, the regulations reduce the overall burden of complying with IV-D program requirements without jeopardizing OCSE's continued commitment to the overall effectiveness of the Child Support Enforcement program. Although these regulations have immediate effect, OCSE will give consideration to public comments received within 60 days of publication.

Paperwork Reduction Act

These regulations contain no recordkeeping or reporting requirements needing clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1980 (Pub. L. 96-511). The application process described in § 303.73 is not subject to OMB clearance because based on past experience fewer than ten applications to use the United States district courts to enforce support orders are expected in the foreseeable future.

List of Subjects

45 CFR Parts 302 through 304

Child welfare, Grant programs/social programs

45 CFR Part 305

Child welfare, Grant programs/social programs, Accounting.

45 CFR Part 306

Child welfare, Grant programs/social programs, Medicaid.

For the reasons discussed in the preamble, 45 CFR Parts 302, 303, 304, 305 and 306 are amended to read as follows:

PART 302-STATE PLAN REQUIREMENTS

§ 302.40 [Removed and reserved]

1. In 45 CFR Part 302, § 302.40 is removed and reserved.

PART 303-STANDARDS FOR PROGRAM OPERATION

§ 303.6 [Amended]

2. In 45 CFR Part 303, the citation contained in § 303.6(e) is changed from "§ 302.72 of this chapter" to read:

"§ 303.73 of this chapter."

§ 303.70 [Amended]

2a. In 45 CFR Part 303, the citation contained in § 303.70(d)(2) is changed from "§ 302.18 of this chapter" to read: "§ 303.21 of this chapter."

3. 45 CFR § 302.18 is redesignated as a new § 303.21, and revised to read as follows:

§ 302.18 [Redesignated as § 303.21 and revised]

§ 303.21 Safeguarding Information.

(a) Under State statute which imposes legal sanctions, the use or disclosure of information concerning applicants or recipients of support enforcement services is limited to purposes directly connected with:

(1) The administration of the plan or program approved under parts A, B, C or D of title IV or under titles II, X, XIV, XVI, XIX or XX or the supplemental security income program established under title XVI:

(2) Any investigations, prosecution or criminal or civil proceeding conducted in connection with the administration of any such plan or program; and

(3) The administration of any other Federal or Federally assisted program which provides assistance, in cash or in kind, or services, directly to individuals on the basis of need.

(b) These safeguards shall also prohibit disclosure to any committee or legislative body (Federal, State, or local) of any information that identifies by name or address any such applicant or recipient.

(40 FR 52377, Nov. 10, 1975)

§ 302.72 [Redesignated as § 303.73 and revised)

4. 45 CFR 302.72 is redesignated as a new § 303.73 and revised to read as follows:

§ 303.73 Application to use the courts of the United States to enforce court orders

(a) The IV-D agency may apply to the Secretary for permission to use a United States district court to enforce a support order of a court of competent jurisdiction against an absent parent who is present in another State if the IV-D agency can furnish evidence to demonstrate that:

(1) The State in which the absent parent is present has not undertaken to enforce the order against the parent within 60 days of the receipt of a request by the originating State under uniform reciprocal enforcement of support procedures or other legal processes required by § 3O3.7(a)(3) and

(2) Use of the United States District Court is the only reasonable method of enforcing the order.

(b) The applications shall be submitted to the Regional Office using the forms prescribed, signed by the head of the IV-D agency or his designee attesting to the following:

(1) The requesting IV-D agency has under taken to obtain the assistance of the other State to enforce the order

(2) The other State has failed to secure compliance with the order

(3) The requesting IV-D agency has provided notice to the State level central office of the IV-D agency of the other State 6O days or more after requesting the other State's assistance that it would request the Secretary to certify the case for use of a United States district court if the other State did not respond to the request for assistance within 30 days of the notice, and that an unsatisfactory response would not preclude a request to the Secretary. Copies of the original request, the notice, and any response thereto shall be furnished with the application.

(c) The Regional Office will review each application to determine if it meets the requirements of paragraphs (a) and (b) of this section. If a request meets these requirements, the case will promptly be certified for enforcement in the United States district court. If the request fails to meet these requirements, the application shall be denied and returned to the IV-D agency with an explanation of the refusal to certify.

(Sec. 1102. 49 Stat. 647 (42 U.S.C. 1302))

(The application process described in § 303.73 is not subject to OMB clearance because based on past experience fewer than ten applications to use the United States district courts to enforce support orders ere expected in the foreseeable future.)

PART 304-FEDERAL FINANCIAL PARTICIPATION

§ 304.20 amended]

5. In 45 CFR 304.20, three citations are changed as follows:

(1) At § 304.20(b)(5)(iii), the reference to "§§ 302.35(e) and 302.70(f) of this chapter" is changed to read: "§ 303.70(e) of this chapter."

(2) At § 304.20(b)(6), the reference to "§302.71 of this chapter" is revised to read: "§ 303.71 of this chapter."

(3) At § 304.20(b)(7), the reference to "§ 302.71 of this chapter" is changed to read: "§ 303.73 of this chapter."

§ 304.28 Removed

6. In 45 CFR Part 304, § 304.28 is removed.

PART 305-AUDIT AND PENALTY

§ 305.20 [Amended]

7. In 45 CFR 305.20, the list of State plan requirements is amended by removing from the list the following item: "Safeguarding information. (45 CFR 302.18)"

§ 305.33 [Amended]

8. In 45 CFR 305.33, two changes are made as follows:

(1) At § 305.33(d), the reference to paragraph "(d)" of § 302.35 is removed. The reference to "§ 302.35(a)(2)" is retained.

(2) The existing § 305.33(h) is removed, and § 305.33(i) is redesignated as a new § 305.33(h).

§ 305.37 [Removed and reserved]

9. In 45 CFR Part 3O5, § 305.37 is removed and reserved.

§ 305.38 [Removed and reserved]

10. In 45 CFR Part 305, § 305.38 is removed and reserved.

§ 305.39 [Removed and reserved]

11. In 45 CFR Part 305, § 305.39 is removed and reserved.

PART 306-MEDICAL SUPPORT ENFORCEMENT

§ 306.11 amended]

12. In 45 CFR Part 306, the citation contained in § 306.ll(c), Safeguarding information is changed from "§ 302.18 of this chapter" to read: "§ 303.21 of this chapter."

(See 1102 of the Social Security Act, 49 Stat 647 (42 U.S.C. 1302)

(Catalog of Federal Domestic Assistance program No. 13.679, Child Support Enforcement Program)

The Secretary has determined that this document is not a major rule as described by Executive Order 12291, because it does not meet any of the criteria set forth in Section 1 of the Executive Order. The Secretary certifies that because these regulations apply to States and will not have a significant economic impact on a substantial number of small entities, they do not require a regulatory flexibility analysis as provided in Pub. L. 96-354, the Regulatory flexibility Act of 1980.

Dated: April 5, 1982.

John A. Svahn,

Director, Office of Child Support Enforcement

Approved: May 13, 1982

Richard S. Schweiker,

Secretary,

[FR Doc. 82-15416 Filed 6-7-83:8:45 am]

Billing Code 4190-11-M