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Final Rule: Prohibition of Federal Funding for Costs of Guardians Ad Litem in IV-D Actions

AT-92-10

Published: November 20, 1992
Information About:
Other Public Partners, Courts, State/Local Child Support Agencies
Topics:
Funding, Federal Financial Participation (FFP)
Types:
Policy, Action Transmittals (AT), Regulations

ACTION TRANSMITTAL

OCSE-AT-92-10

November 20, 1992

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

SUBJECT:Final Rule - Prohibition of Federal Funding for Costs of Guardians Ad Litem in IV-D Actions

ATTACHMENT:Attached is a final rule, published in the Federal Register on November 19, 1992 (57 FR 54519) that specifies that Federal funding under the Child Support Enforcement (IV-D) program is not available for the costs of guardians ad litem in IV-D cases. This change makes clear in regulation OCSE policy that costs of guardians ad litem are not necessary expenditures under the IV-D program and, therefore, are not eligible for Federal financial participation (FFP) under title IV-D of the Social Security Act.

REGULATION

REFERENCE: 45 CFR 304.23(k)

SUPERSEDED MATERIAL:OCSE-AT-91-03, dated June 27, 1991

EFFECTIVE DATE:November 19, 1992

INQUIRIES:ACF Regional Administrators

Allie Page Matthews

Deputy Director

Office of Child Support Enforcement

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

Office of Child Support Enforcement

45 CFR Part 304

RIN 0970-AA86

Child Support Enforcement Program;

Prohibition of Federal Funding for Costs of Guardians Ad Litem

Agency: Office of Child Support Enforcement (OCSE)/HHS

Action: Final rule

Summary: This final rule amends Federal regulations to specify that Federal funding under the Child Support Enforcement (IV-D) program is not available for the costs of guardians ad litem. This change makes clear in regulation long-standing OCSE policy that costs of guardians ad litem are not necessary expenditures under the IV-D program and, therefore, are not eligible for Federal financial participation (FFP) under title IV-D of theSocial Security Act.

EFFECTIVE DATE: November 19, 1992.

For further information, contact: Marilyn R. Cohen, OCSE Division of Policy and Planning, (202) 401-5366.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

This regulation contains no information collection or reporting requirements. Thus, it is not subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1980 (P.L. 96-511).

Statutory Authority

This regulation is published under the authority granted to the Secretary by section 1102 of the Social Security Act (the Act). Section 1102 of the Act requires the Secretary to publish regulations that may be necessary for the efficient administration of the functions for which he is responsible under the Act.

Background

The Child Support Enforcement Program was established under Title IV-D of the Act for the purpose of establishing paternity and obtaining and enforcing support obligations owed by absent parents. Each State must have in effect an approved State IV-D plan which complies with the Federal standards incorporated in the Act and in OCSE regulations. Federal funding at the applicable matching rate is available for services and activities made pursuant to an approved Title IV-D State plan which are determined by the Secretary to be necessary expenditures.

Federal regulations at õ304.10 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 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." As discussed below, we do not believe the costs of guardians ad litem are necessary and reasonable costs of the IV-D program. In addition, OMB has proposed changes to Circular A-87 Cost Principles (Notice published on 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 existent version of Circular A-87, currently in use, the proposed language indicated Federal intent in the treatment of such costs.

Finally, the Senate Committee on Finance, in its report on H.R. 4325, which became the Child Support Enforcement Amendments of 1984, P.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. For example, the Committee believes Federal matching should not be available for expenditures related to incarceration of delinquent obligors and providing defense counsel for absent parents." (See S. Rep. No. 387, 98th Cong., 2d Sess. 23 reprinted in 1984 U.S. Code Cong. & Admin. News 2397, 2419)

General State Expenses

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. In the past, requests for reimbursement of costs for legislative expenditures, certain judicial costs, and costs for incarceration of delinquent obligors were denied because these costs are general State expenses. Similarly, costs for guardians ad litem are neither dependent upon nor confined to the IV-D program.

In enacting Title IV-D of the Act in 1975, as part of P.L. 93-647, Congress did not intend that every expense incurred by the State in enforcing child support obligations would be reimbursable by Federal funding. In fact, Congress expected "the States to continue to devote to this purpose at least as much non-Federal funding as they currently provide." (S. Rep. No. 1356, 93rd Cong., 2nd Sess. 50 as reprinted in 1974 U.S. Code Cong. & Admin. News 8133, 8153) We believe that payment for costs of guardians ad litem is entirely a responsibility of State and local governments and not eligible for Federal funding under Title IV-D of the Act.

If a parent or general guardian is unavailable to fulfill the role of guardian ad litem or has interests which conflict withthose of the child, the court may appoint, in accordance with statutory or common law practice, someone to represent the interests of the child in the grievance or cause of action. For example, in child custody disputes between parents, most States, either by statute or case law, afford the court discretion to appoint a guardian ad litem to represent the children, who, although not named parties, have a substantial stake in the outcome of the case. Examples of circumstances in which a court may appoint a guardian ad litem include actions in which a child sues his parent, such as for injuries sustained due to the parent's negligent operation of a motor vehicle; cases involving sterilization of a mentally retarded minor on a parent's petition; or cases to determine visitation rights.

Other common examples of when courts typically appoint guardians ad litem are when a minor child has an interest in an insurance policy, an inheritance, a workers' compensation claim, or the ownership of a bank account. Additionally, courts have appointed guardians ad litem to protect the interests of children called as witnesses in their parents' divorce action.

In nearly every State, child abuse and neglect laws mandate that a guardian ad litem be appointed for the child in all civil judicial proceedings arising from a report of abuse or neglect. Hence, juvenile and family courts, before whom these issues are adjudicated, routinely appoint guardians ad litem to representthe minor children involved. Many of such laws were enacted in response to a Federal requirement that as a condition for receiving Federal grant funds under the Child Abuse Prevention and Treatment Act of 1974 (P.L. 93-247), guardians ad litem must be appointed for maltreated children. However, there is no Federal funding for reimbursing the costs of guardians ad litem in such cases. Rather, according to the National Study of Guardian Ad Litem Representation published in October 1990, funding for such guardians ad litem is either by direct appropriation from the State legislature, court budget or public defender budget.

These examples illustrate that the use of guardians ad litem is broad and certainly not limited to child support matters. In fact, States customarily engage guardians ad litem on a routine basis in a variety of contexts where the interests of children may be affected by the actions taken or results accomplished. These are general State expenses which arise from a basic recognition that the child's interests in many actions may differ from those of its parents or the State. As a result, laws provide that children are entitled to legal counsel when a vital interest of theirs is being litigated. Therefore, the costs of guardians ad litem would be incurred in the absence of the IV-D program. In addition, where interests of the State and child are identical, it is a duplicative expense to provide FFP for a guardian ad litem in addition to funding counsel for the IV-Dagency.

Possible Conflicting Roles

In the vast majority of IV-D actions, the interests of the State IV-D agency, custodial parent, and children for whom support is sought are similar and not contradictory. Those States which have adopted laws which mandate that the child be a party and/or that a guardian ad litem be appointed to protect a minor child's interests, generally prohibit the mother or father from serving as the guardian ad litem. However, such statutes often specify that the court may appoint the appropriate State agency as the guardian ad litem. Thus, in IV-D cases initiated by a State or local IV-D agency, the IV-D agency can advocate the interests of the child in addition to those of the State. Additionally, although some States have statutes mandating the appointment of a guardian ad litem which predate the IV-D program, they may have also adopted separate statutes covering paternity actions brought by the State or other governmental entities which provide that the general requirement that an independent guardian be involved do not apply to these State-initiated actions. Courts have rejected claims that a county could not properly represent a child in paternity proceedings due to an alleged conflict of interest based on the county's financial interest in establishing paternity [See: Annot., Necessity or Propriety of Appointment of Independent Guardian for Child Who is Subject of PaternityProceeding, 70 ALR4th 1033 (1989)]. Consequently, independent representation for each party to advocate and protect such interests may be unnecessary and duplicative in most cases.

Because guardians ad litem are typically appointed because of a judicial determination that the child requires independent representation to advocate on the child's behalf due to divergent interests, it would be improper for the IV-D program to underwrite the costs of both interests. If, by nature of the appointment, a guardian ad litem must function independently of the IV-D agency, the guardian ad litem cannot be bound by or subject to Federal or State IV-D rules and policies governing the program. Furthermore, the IV-D agency would have no ability to exercise necessary oversight with respect to the guardian ad litem's activities, procedures, records, or billing for work performed. If FFP is permitted for costs of a guardian ad litem, then the guardian ad litem would be obliged to follow IV-D guidelines.

Not Necessary and Reasonable Expenses

Recently, a few States have requested FFP for the costs of guardians ad litem appointed to represent minors in IV-D litigation. In the context of child support establishment and enforcement, the appointment of guardians ad litem generally may arise in either of two ways: (1) guardians ad litem for a minor father or an alleged father, or (2) guardians for minor children on whose behalf a paternity action is filed.

First, some State laws mandate that in any legal actions instituted against a minor defendant, a guardian ad litem be appointed to represent such minor. In such capacity, the guardian ad litem functions as defense counsel. This type of appointment could occur in a paternity action where the alleged father has not reached the age of majority or "adult" status or under circumstances where enforcement action such as a contempt action could result in incarceration.

In many States such an appointment is not mandatory, but is discretionary with the court. In any event, this function is not required by Federal laws governing the IV-D program but due to State law or court rule. In fact, a guardian ad litem's function is to promote the best interests of the minor, which may actually be to limit or avoid imposition of support liability.

Payment for the defense of a case instituted for theestablishment of paternity is not within the purview of providing IV-D services. Congress did not intend every attendant cost directly or indirectly arising from an action brought under the auspices of IV-D be eligible for funding.

Secondly, a guardian ad litem may be involved in a IV-D case due to a requirement in a few States that a child who is the subject of a paternity action must be named as a party plaintiff and have a guardian ad litem appointed. Federal law does not dictate that independent counsel be appointed for any necessary plaintiff other than the State. 45 CFR 303.20(f) indicates the types of staff required in sufficient numbers to achieve the standards for an effective program, paragraph (1) requires "(a)ttorneys or prosecutors to represent the agency in court or administrative proceedings with respect to the establishment and enforcement of orders of paternity and support." In most paternity cases, the interests of the State and those of the mother and child are not contradictory. One attorney to advocate these interests may generally be sufficient. If those interests digress such that independent counsel may be appropriate, payment for such counsel is not something for which IV-D funds are available because it would be payment to finance two opposing positions or conflicting interests.

The generally understood purpose of a guardian ad litem is toprovide legal counsel. Black's Law Dictionary defines a guardian ad litem as a person "appointed by the court to prosecute or defend, in behalf of an infant or incompetent, a suit to which he is a party, and such guardian is considered an officer of the court to represent the interests of the infant or incompetent in the litigation." Although we agree that a guardian ad litem may perform a necessary duty in the general sense, the primary issue to consider in the context of IV-D funding is whether the costs of guardians ad litem are necessary to achieve the purpose of the IV-D program and, therefore, are appropriately the responsibility of that program. OCSE's policy since the inception of the program has been that costs of guardians ad litem are not necessary and reasonable costs associated with the proper and efficient administration of the Title IV-D program. Therefore, this regulation adds these costs to the list of expenditures for which Federal Financial Participation is not available.

Description of Regulatory Provision

Section 304.23 is amended by adding a new paragraph (k) to specify that Federal financial participation for the costs of guardians ad litem in IV-D actions is not available.

The language in this final rule differs slightly from that of the proposed regulation. The proposed rule would have prohibited FFP for the appointment of guardians ad litem to represent minors. This final rule clarifies our intent that Federal funding is not available for any guardians ad litem (to represent adults or minors, either as plaintiffs or defendants) in IV-D cases.

Nowhere in the Act nor in any legislative history explaining the IV-D program is there language providing funding for costs incurred in connection with the defense of absent parents who have failed to support their children or with the defense of a paternity claim. This omission has made the provision of FFP for costs of guardians ad litem an issue in the past. This final regulation codifies long-standing OCSE policy that costs of guardians ad litem are not reimbursable through the Title IV-D program. Furthermore, costs associated with the provision of independent counsel for party plaintiffs in child support actions are not reasonable and necessary expenditures for which Federal funding through the IV-D program is available.

Response to Comments

We received comments on the proposed rule published June 17, 1991 in the Federal Register (56 FR 27723) from 24 commenters representing national organizations, State and local IV-D agencies, child advocacy groups and private citizens. Comments and our responses appear below:

Appointment of Guardians Ad Litem in Paternity Establishment

1. Comment: We received many comments indicating that State law requires that a guardian ad litem be appointed for either children for whom paternity establishment is necessary, minor alleged fathers, or both. The commenters contend that since paternity establishment is a requirement of the IV-D program, FFP must be available. According to the commenters, some States require appointment of a guardian ad litem under certain circumstances such as: 1) where a child must be a named party plaintiff; 2) if the mother was married at the time of conception or birth; 3) for a minor alleged father; 4) for cases in which there is a legal father and a natural father or multiple possible fathers; and 5) where a parent is non-cooperative. One commenter noted that since no State would pursue paternity against minor fathers, absent the IV-D program, a special category of need is created in the Federal paternity program which would not otherwise exist at the State level.

Response: Our research indicates that only five States have statutes expressly mandating the appointment of an independent guardian ad litem for a child who is the subject of paternity proceedings. Two States require the appointment of a guardian ad litem under common law. Some States specify that a guardian ad litem may be appointed under certain circumstances [See: Annot., Necessity or Propriety of Appointment of Independent Guardian for Child Who is Subject of Paternity Proceeding, 70 ALR4th 1033 (1989)]. However, at least three States have legislation pending or are considering legislation regarding appointment of a guardian ad litem. One State is proposing enactment of legislation that specifies that appointment of a guardian ad litem in a paternity action is not necessary in order to make a child a party to a paternity action. Another State is considering proposing legislation deleting the State statutory requirement for guardians ad litem in child support matters. A third State has legislation pending to clarify and reinforce an existent law that when parents cannot afford a guardian ad litem, the court has the authority to pay for one from county funds.

Generally, courts that have determined that a guardian ad litem is necessary have premised such decisions on the fact that the child's right to have an accurate determination of paternity was not adequately protected by counsel for the State or the mother. We believe that the extent to which these situations may arisemay be significantly reduced or even eliminated through the use of genetic testing. The results of such tests are objective evidence which can be used to assist the agency or the court in accurately determining parentage. Federal regulations require that upon request of any party in a contested paternity case, the IV-D agency, if the agency lacks authority to order genetic testing, shall petition the court to require all parties to submit to genetic tests. FFP, at the 90% rate, is available for laboratory costs incurred in determining paternity on or after October 1, 1988.

Attorneys' fees for the defense of a paternity action, including representing a minor defendant, do not contribute to the establishment or enforcement of support. Furthermore, defending child support obligors or accused fathers serves no legitimate IV-D purpose, and therefore, funding for such costs is not an allowable IV-D expense. We disagree with the comment on the activity of the State absent the IV-D program. Children should have a right to paternity establishment regardless of whether it takes place within or without the IV-D program.

2. Comment: Many commenters questioned how the State requirement of appointment of a guardian ad litem could be fulfilled if Federal financial participation (FFP) is prohibited.

Response: Although the State may certainly make appointments inthe absence of Federal funding, the expenses incurred for the State-required services of guardians ad litem is the responsibility of State and local governments. This regulation clarifies that Federal funds are not available for such purposes.

OCSE endorses the accurate identification of fathers of children born out-of-wedlock in accordance with principles of equity and due process of law. Several States, by statute or judicial decision, have determined that the assistance of counsel should be provided for indigent paternity defendants who seriously question their liability or need advice concerning their rights and obligations. However, assuring adequate representation of indigents is not a responsibility of the IV-D program, but rather, a matter of concern for the courts and State and local governments.

The National Study of Guardian Ad Litem Representation (DHHS, October 1990, p. 15) reported that 14 States and the District of Columbia have statewide guardian ad litem programs in child abuse and neglect proceedings. All of these programs are funded by direct appropriation from the State legislature, the court budget or the public defender budget. If a State law requires the appointment of guardians ad litem, it should be carried out. The study indicates that even in a program where Federal law requires the appointment of a guardian ad litem (for child abuse and neglect proceedings), there is no Federal funding available. Unavailability of FFP through the IV-D program for guardians ad litem should not forestall paternity establishment.

3. Comment: Several commenters interpreted the proposed rule as prohibiting the appointment of guardians ad litem. One commenter expressed concern that the Child Support Agency would no longer be able to petition the circuit court judge to appoint a guardian ad litem in required cases if FFP was prohibited.

Response: This regulation does not prohibit or question the propriety of the appointment of guardians ad litem under State law. It prohibits FFP through the IV-D program for the costs of such guardians ad litem.

4. Comment: One commenter was concerned about resulting audit penalties if they do not comply with paternity establishment requirements. The commenter suggested that OCSE eliminate the requirement to establish paternity if FFP is prohibited for costs of guardians ad litem as these costs are clearly related to the administration of the IV-D program.

Response: Any requirement for appointment of a guardian ad litem is a State, not Federal, requirement. The existence of this additional State requirement does not relieve States of the responsibility to substantially comply with Federal requirements governing paternity establishment under the IV-D program. OCSEcannot eliminate the Federal law requiring establishment of paternity.

General State Expense, Not Direct Program Cost

1. Comment: One commenter suggested that we cannot prohibit costs of guardians ad litem as "general costs" since meeting other general requirements in the course of performing IV-D activities are federally funded, such as service of process to satisfy basic requirements of jurisdiction and due process.

Response: Under 45 CFR 304.21(b)(1), Federal funding is not available for service of process fees unless the court or law enforcement agency would normally be required to pay the cost of such fees. In the notice of proposed rulemaking on Standards for Program Operations published April 19, 1989 (54 FR 15891), we discussed proposed timeframes for completing service of process in child support cases. Members of the committee we consulted in developing timeframes for providing services urged us to state clearly in this discussion the fact that, if IV-D agencies encounter difficulty in obtaining adequate and timely responses to requests for service of process, Federal funding at the applicable matching rate is available for the costs of hiring process servers or otherwise purchasing such services as necessary expenditures under the IV-D program.

Service of process in a child support proceeding is essential for accomplishing IV-D goals, while guardians ad litem are not. Inmany States service of process is a prerequisite to any action taken to establish a support obligation and cases are not under administrative or judicial jurisdiction until the absent parent has been served with notice. Because service of process must be accomplished to ensure that absent parents are under the court or administrative agency's jurisdiction, Federal regulations governing timeframes for paternity establishment, establishment of support obligations, enforcement of support obligations, and expedited process are measured from successful service of process as the starting point.

For reasons articulated earlier in this document, in response to comments, the costs of guardians ad litem are not essential to accomplish IV-D program goals and, therefore, are not necessary costs for which funding under the IV-D program is available.

2. Comment: Several commenters explained that since costs of a guardian ad litem are direct IV-D costs, not general costs, FFP should be permitted. One commenter offered that the costs of guardians ad litem are necessary and reasonable costs associated with the administration of the title IV-D program.

Response: 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. Costs for guardians adlitem are neither dependent upon nor confined to the IV-D program. The use of guardians ad litem is broad and certainly not limited to child support matters. There is no Federal requirement of the IV-D program requiring guardians ad litem. The costs of a guardian ad litem are not direct IV-D costs since the costs of guardians ad litem would be incurred in the absence of the IV-D program. In fact, States customarily engage guardians ad litem on a routine basis in a variety of contexts where the interests of children may be affected by the actions taken or results accomplished. These are general State expenses which arise from State requirements which reflect a basic recognition that the child's interests in some actions may differ from those of its parents or the State.

3. Comment: One commenter pointed out that the OMB Circular

A-87 is being revised to omit the "general expense" language from the test for eligibility of a particular cost for FFP and that the amended language states that "allowable costs must be necessary and reasonable for proper and efficient performance and administration of Federal awards and be allocable thereto under these principles."

Response: The excerpt from the OMB Circular A-87 cited by the commenter is a proposed change which has not been finalized. Although the language may be different than that presently required, it would have no impact on this rule. Even if the testfor FFP eligibility changes as proposed, the expenses of guardians ad litem would still not meet the test, and FFP for such costs would remain unallowable. If the proposed change is implemented, it will specify that "cost of the judiciary" are not allowable so FFP for costs of guardians ad litem would remain unallowable, since appointment is a judicial function.

4. Comment: One commenter agreed that appointment of guardians ad litem is a general State activity. The commenter noted that the appointment of a guardian ad litem is not restricted to IV-D cases, and is not a necessary IV-D activity. In the commenter's State, the court, not the IV-D agency, bears the cost and responsibility of providing a guardian ad litem for cases in which a minor or incompetent person may be affected.

Response: For the reasons expressed by the commenter, and this preamble, we are publishing this final rule to clarify that FFP is not available for the expenses of guardians ad litem in IV-D cases.

5. Comment: Several commenters questioned whether this ruling can be finalized in light of the Kentucky court ruling that guardian ad litem fees are necessary expenditures to be allowed under the IV-D program. The commenters noted that the ruling indicated that the expense of a guardian ad litem is a direct cost associated with the IV-D program, not a general governmentexpense.

Response: The court decision involving Kentucky was based on the fact that there were no Federal regulations prohibiting FFP for guardians ad litem. Therefore, we are clarifying this policy by publishing this final rule that expenses of guardians ad litem are not an expense for which FFP is available under the IV-D program.

Guardian Ad Litem Role May Differ from Title IV-D Mission

1. Comment: Several commenters cited the importance of appointing guardians ad litem to prevent conflicts of interest. One commenter indicated that Federal regulations create numerous conflicts of interest for program attorneys, and that such appointments to represent a child's interest enables States to avoid ethical problems in fulfilling IV-D expectations. The commenter argued that the Federal government's interest in obtaining reimbursement for AFDC expenditures sometimes conflicts with the interest of children. Another commenter suggested that a guardian ad litem is necessary for minor children where the IV-D agency is seeking a downward modification. The commenter indicated that under some guardian ad litem practices, if the judge determines that the interest of the custodial parent, the non-custodial parent and the IV-D agency are not identical to the interests of the child, the judge must appoint a guardian ad litem. As the commenter noted, where the court orders a guardian ad litem, the case cannot proceed without the guardian ad litem.

One commenter, however, suggested that this final rule will prevent conflicts of interest as it should lend itself well to those agencies who find themselves at odds and in somewhat precarious situations with those courts who demand that the IV-D agency "represent" someone as opposed to presenting a finding and recommendation to the court of law. The commenter stated thatthis rule should underscore the importance and necessity for local support enforcement agencies to adopt and promote the essence of their mission. In addition, the commenter noted that both the public and private sectors should be made aware of the fact that administrative agencies do not "take sides," but hopefully, report circumstances to courts of law that may have an impact on the "best interests of the child(ren)."

Response: This rule does not question the appointment of guardians ad litem; it only prohibits FFP under the IV-D program for the costs of such services. The main purpose of the Child Support Enforcement program are establishment of paternity and child support orders and enforcement of child support obligations. Every aspect of the program is designed to facilitate these proceedings. The employment of attorneys for defendants who contest these claims is clearly antithetical to any purpose or function of the IV-D program, and is not encompassed under õõ304.20 to 304.24. Where there is a perceived conflict of interest between the government and a private party, then clearly the IV-D agency should not fund counsel to represent competing interests. Any attorney who accepts government reimbursement is obliged to follow regulations, policy transmittals, and directions, and make files available for State and Federal audit or review.

Actions of guardians ad litem on behalf of the individualinterests they represent may not always be consistent with the purpose of Title IV-D. Because a guardian ad litem's first allegiance is to the child, limited instances may arise in which the actions of the IV-D agency in pursuing establishment of paternity or enforcement or establishment of support may be contrary to what the guardian advocates. If FFP was permitted for the costs of guardians ad litem, then the guardians ad litem would be obliged to follow IV-D guidelines. However, since a guardian ad litem would not be paid through FFP from the IV-D program, they would not be bound by or subject to Federal rules and policy.

2. Comment: One commenter suggested that the IV-D agency is less likely to request appointment of a guardian ad litem if the agency must absorb the cost in cases of conflict of interest with the custodial parent or child. The commenter cited the example of cases where a presumed father exists, a mother may insist that a man other than her husband be established as the child's biological father while the IV-D agency may be pursuing imposition of a support obligation upon the husband as the legal father based on the presumption. The commenter stated that although the appointment of a guardian ad litem may become necessary when a conflict arises between the interest of the child and the IV-D agency, there will be an inherent disincentive for the agency to seek such appointments if the agency is required to bear the cost.

Response: We are not prohibiting or limiting the appointment of a guardian ad litem as allowed or required by State law, but only prohibiting FFP for expenses of guardians ad litem in IV-D cases.

We believe that payment for the costs of both interests would be a disincentive for the guardian ad litem to maintain the appropriate degree of independence from IV-D dictates. If we pay costs, the guardian is bound to follow IV-D policy instead of freely exercising the degree of independence the child deserves.

3. Comment: Several commenters supported the regulation as helpful in determining which agency or branch of government has the responsibility of appointment of guardians ad litem, and liability for costs. One of these commenters reported that in his State, it is the court's responsibility to bear the cost and provide the guardian ad litem.

Response: States have discretion for funding guardian ad litem costs. For example, in cases in which a guardian ad litem represents a child plaintiff, costs could also be taxed to the alleged father as part of the disposition of the case. Since the appointment of a guardian ad litem is a judicial function, the courts could assume the financial responsibility.

4. Comment: Several commenters pointed out that appointment of guardians ad litem may also be required for matters other thanchild support such as custody, visitation, insurance claims, child abuse and neglect. One commenter mentioned that Federal regulations do not prohibit representation by the prosecutor's office on these issues and as a result a prosecutor may experience difficulty in withdrawing as counsel in those situations. The commenter indicated that courts would be more willing to sever the issues and allow the prosecutor to withdraw with regard to custody and visitation if a guardian ad litem were appointed to represent the interests of the child. Another commenter suggested that other issues such as custody and visitation should be dealt with during adjudication of the paternity case. Another commenter indicated that when a guardian ad litem is appointed in a child support matter, the guardian is appointed solely to consider the issue of child support and does not consider other issues.

Response: While a guardian ad litem may be required for various issues, it is a general State cost rather than a direct IV-D cost. Such issues as custody, visitation and child abuse and neglect are separate issues, not child support enforcement issues, and any costs associated with these issues are not eligible for FFP through the IV-D program. A decision to address child support and other issues in a joint action or a separate action, and whether a guardian ad litem is appointed, is a matter of judicial discretion. This rule will not limit such discretion. However, costs associated with guardians ad litemappointed for any reason are a general State cost. We recognize that local prosecutors may be responsible for handling a wide variety of cases including the establishment and enforcement of support and related issues. However, FFP under the IV-D program is available only for those functions properly allocable to the IV-D program.

5. Comment: One commenter expressed concern for Federal funding for local prosecutors' efforts in child support enforcement. According to this commenter, without continued funding, prosecutorial efforts will be severely jeopardized.

Response: This regulation codifies the long-standing policy that the costs of guardians ad litem are costs for which Federal funding is not available. This regulation has no effect on the extent of Federal funding to reimburse State expenditures under the IV-D program, including funding of costs for IV-D prosecutors' efforts to accomplish IV-D program goals.

6. Comment: One commenter was particularly concerned that a guardian ad litem be appointed in cases where a review indicates a lower amount of support and also for certain cases with no upward adjustment.

Response: The necessity of a guardian ad litem to protect the interests of children when an absent parent requests a review anda downward adjustment of the support order depends on State requirements and/or judicial discretion. However, we believe that a guardian ad litem may be unnecessary with the advent of support award guidelines in each State and the rebuttable presumption that the guidelines result is a correct and appropriate computation of the support award amount.

Economic Impact of Prohibition of FFP for Guardians Ad Litem

1. Comment: Several commenters remarked that, if FFP is not provided, the cost of guardians ad litem would be too great for their States or counties so children would not be able to have their paternity established. A few commenters claimed that unfunded mandates already exist and are concerned that we are adding another unfunded mandate. One commenter noted that their State does not appoint guardians ad litem in Title IV-D cases so there would be no impact on the IV-D program.

Response: Appointment of a guardian ad litem is a State, not a Federal mandate. States may provide for such appointments according to their laws. This final rule clarifies and codifies long-standing OCSE policy that the costs of guardians ad litem are not eligible for FFP.

2. Comment: One commenter argued that this rule constitutes a "major" rule under Executive Order 12291 as it would have an annual effect on the economy in excess of $100 million and would result in a major increase in costs to taxpayers, States and Counties. Also, the commenter noted that the proposed rule violates the Regulatory Flexibility Act because it creates a significant impact on counties.

Response: This ruling would not have a significant economicimpact since only five States require appointment of guardians ad litem in child support and/or paternity cases. Furthermore, OCSE does not mandate appointment of guardians ad litem; it is a State mandate in those States with such a requirement. Our rule codifies Federal policy that there is no Federal financial participation in the costs to States of meeting such State mandates. Therefore, the rule has no direct economic impact. Given the shrinking resources at the State and Federal level, States should consider recovering costs of services provided within and outside the IV-D program.

3. Comment: One commenter supported our position indicating that if responsibility for payment of guardians ad litem is shifted to the IV-D agency, appointment may be overused and operating costs would increase. For reasons of fairness and judicial economy, the commenter indicated, courts must retain the authority to appoint guardians ad litem. The commenter noted that a court is likely to temper its judicial discretion with a certain fiscal awareness. Also, the commenter reported, the

IV-D agency would have no control over the costs of guardian ad litem appointments resulting in inflated litigation fees and increased operating costs; whereas courts can expedite litigation to keep costs low and reduce large fees at their discretion.

Response: We agree that these issues are matters of State jurisdiction. If a State law requires the appointment ofguardians ad litem, the court has the authority to appoint and fund guardians ad litem. Costs of the services of a guardian ad litem are generally borne by the court and are often taxed to one or both parties at the time of case disposition.

Delay of Adjudication of Paternity Cases

1. Comment: Several commenters indicated that this rule would delay adjudication of paternity cases. One commenter indicated that instead of using experienced IV-D caseworkers, inexperienced personnel from other departments would serve as guardian ad litem which would lengthen the period of time it takes to adjudicate a paternity case. One commenter interpreted the proposed rule to mean that guardians ad litem would no longer be appointed so processing of the case would be slowed. Another commenter indicated that support cases would be needlessly delayed by the appearance of appointed counsel as courts would not restrict appointments of guardians ad litem as would the State IV-D agency.

Response: This rule should not delay the adjudication of paternity cases. It does not prohibit the appointment of a guardians ad litem; it codifies the long-standing Federal policy that makes the expenses of such ineligible for Federal funding. It is up to the appropriate appointing authorities such as the court or a bar association, to establish criteria for selection of guardians ad litem. IV-D caseworkers act on behalf of the State IV-D agency for whom they are employed and may represent a child's interests when they are consistent with those of the State, which is generally the case. The court should decide when appointment of an independent guardian ad litem is necessary.

Guardian Ad Litem Role

1. Comment: One commenter indicated that this rule appears to ignore the Federal role in promoting children's health and prevention of child abuse and neglect and that a guardian ad litem represents what may be the only voice of reason to protect and benefit the child.

Response: Congress established the Child Support Enforcement Agency in 1975 under Title IV-D of the Social Security Act to ensure that children are supported by their parents. Enforcing child support laws conveys a message to children that they are valued by the parents who support them and by the society that exacts fair treatment on their behalf. By securing support, we secure the involvement of both parents in their children's lives and reduce the need for those children to become dependent upon public assistance.

Congress created the IV-D program for a very specific purpose. The IV-D program is a cooperative Federal-State program to establish and enforce child support orders, locate absent parents, and establish paternity. There are certainly numerous other aspects of delivering services to families which are not encompassed by the IV-D program. Other public programs have been established and designed to address these other issues, e.g., the work of the National Center on Child Abuse and Neglect within theAdministration for Children and Families, HHS, is devoted to child abuse and neglect prevention.

The IV-D program is primarily oriented toward ensuring families' fiscal security and helping promote self-sufficiency. We are not preventing the appointment of a guardian ad litem whenever appropriate under State law, but are merely prohibiting FFP through the IV-D program for such costs.

Appointment of a Guardian Ad Litem for Incompetents

1. Comment: One commenter asked whether the use of the term "minors" in the proposed rule would permit FFP for guardians appointed in IV-D cases to represent incompetent adults who do not have formal legal guardians. Another commenter pointed out that there is no difference between the need for a guardian ad litem for a minor who is incompetent or in a nursing home and the need for one for an adult who is mentally incompetent or in a nursing home.

Response: In order to clarify our intent to prohibit Federal funding for any guardians ad litem in IV-D cases, we have deleted in the final rule the phrase, "appointed to represent minors" contained in the proposed õ304.23(k).

Executive Order 12291

The Secretary has determined, in accordance with Executive Order 12291, that this final rule does not constitute a "major" rule for the following reasons:

(1) The annual effect on the economy would be less than $100 million;

(2) This rule would not result in a major increase in costs or prices for consumers, individual industries, Federal, State or local government agencies, or geographic regions; and

(3) This rule would not result in significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets.

Although this final rule prohibits Federal funding for certain costs, those costs result from State, not Federal mandates. In addition, the rule merely codifies the long-standing Federal policy in this area. Thus, we expect the additional costs to States to be less than $100 million.

Regulatory Flexibility Analysis

The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (P.L. 96-354), that this final regulation will not result in a significant impact on a substantial number of small entities. The primary impact is on State governments which are not considered small entities under the Act.

List of Subjects in 45 CFR Part 304

Child support, Grant programs/social programs

(Catalog of Federal Domestic Assistance Programs No. 93.023, Child Support Enforcement Program)

Dated: May 18, 1992

Jo Anne B. Barnhart

Assistant Secretary for

Children and Families

Approved: _June 30, 1992

Louis W. Sullivan

Secretary

Part 304 - (AMENDED)

For the reasons set out in the preamble, 45 CFR Part 304 is amended to read as follows:

1. 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), 1396(k).

2. 45 CFR 304.23 is amended by adding a new paragraph (k) to read as follows:

õ304.23 Expenditures for which Federal financial participation is not available.

Federal financial participation at the applicable matching rate is not available for:

* * * * *

(k) The costs of guardians ad litem in IV-D actions.