Request for Comments on a Final Rule - Good Cause for Refusing to Cooperate
Good Cause for Refusing to Cooperate
April 5, 1978
TO: STATE AGENCIES ADMINISTERING THE AFDC PROGRAM; STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PLANS APPROVED UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS
SUBJECT: Good Cause for Refusing to Cooperate
REFERENCE:45 CFR 232.13; published in the Federal Register 1/16/78, (43 FR 2170); transmitted by SSA-AT-78-2(OFA) dated 2/1/78 and OCSE-AT-78-1 dated 1/20/78.
PURPOSE: To clarify several issues that have arisen concerning the good cause regulations.
BACKGROUND:On January 16, 1978, the Department published final regulations specifying standards under which State and local welfare agencies shall determine whether an applicant or recipient of Aid to Families with Dependent Children (AFDC) has good cause for refusing to cooperate in establishing paternity and securing child support.
The Notice in the Federal Register which adopted this final regulation solicited additional comments for a 90 day period ending June 15, 1978. Following the close of the comment period, the Department will amend the regulation to incorporate the clarification contained in this Program Instruction. Additional changes to the regulation will be made if warranted after careful consideration of all comments received. The new regulation will repeal the current good cause regulation.
CONTENT:1. Prompt Resolution of Good Cause Claim
45 CFR 232.13(j) provides that the State or local agency shall not deny, delay, or discontinue assistance pending the agency's final good cause determination if the applicant or recipient has complied with the requirement to provide evidence or information (§ 232.13(c)). The Preamble to the regulation points out that this provision"reflects HEW's long standing policy requiring States to furnish assistance promptly and without any appreciable delay attributable to the State agency's administrative processes. (See 45 CFR 206.10.)."
The cooperation requirement is an AFDC eligibility condition, unless the applicant has good cause for refusing to cooperate. In all but exceptional cases (such as when it is very difficult to gather information), the good cause determination must be made with the same degree of promptness as the determination of AFDC eligibility.
For good cause claims that arise after initial AFDC eligibility has been determined, 45 CFR 206.10(a)(9) is applicable. That section provides that eligibility will be reconsidered or redetermined promptly upon change in circumstance that may affect the amount of assistance or eligibility. Therefore, in this situation the good cause determination should be made with the same degree of promptness as any other redetermination of eligibility.
2. Substantiation of Good Cause Claim
45 CFR 232.13(f)(3) provides that "if the State or local agency investigates the circumstances of the good cause claim, a determination that good cause exists may be based on any verifying information acceptable to the State or local agency" (emphasis added). The Preamble states that this provision "leaves the nature and scope of its investigation to agency discretion and merely requires that the good cause circumstances be confirmed by the investigation."
Although the States are given this discretion, the information must in fact verify the claim. Uncorroborated statements of the applicant or recipient do not constitute "verifying information" as required by the regulation. The evidence upon which the State bases its determination of good cause should be of probative value and should be, to the extent possible, supported by written statements.
3.Agency Assistance in Obtaining Required Evidence
45 CFR 232.13(f)(2) requires that "the State or local agency will assist the applicant or recipient in obtaining the required evidence." This requirement is not intended to place an unreasonable burden upon the agency by allowingthe applicant or recipient claiming good cause to require the agency to conduct a "fishing expedition" and thereby delay or frustrate a determination concerning a good cause claim.
The applicant or recipient has the burden of producing the evidence required by §232.13(f)(1). The regulatory provision that, upon request, the agency will assist her in obtaining this evidence does not shift the basic burden. The regulation only requires that the State give reasonable assistance by advising the applicant or recipient how to go about obtaining the documents. In addition, the agency is required upon request to undertake reasonable efforts to obtain for the applicant or recipient evidence that she is not reasonably able to obtain by herself. This requirement is limited to the specific documentary evidence enumerated at § 232.13(f)(1) and, of course, the applicant or recipient must provide specifics as to the type of document or record she wishes to obtain as well as provide sufficient identifying information to make it possible to be obtained.
4. Physical or Emotional Harm
The good cause circumstance of physical or emotional harm must be determined by the State to be of a genuine and serious nature.
The mere belief of the applicant or recipient that cooperation would result in harm would not be a sufficient basis for finding good cause. This good cause circumstance is not intended to encourage violence, and States may wish to consider protective measures to deter threats of harm.
The emotional harm to the mother must be of such a serious nature that the capacity of the applicant or recipient to care for the child adequately would be reduced.
The notice required by section 232.13(b) should be provided at the time of application for assistance. The applicant should sign a copy of the notice, and the signed copy should be placed in the AFDC case record. The attached suggested notice meets the requirements of section 232.13(b). (The Department will publish a new suggested notice as an appendix to the amended good cause regulation to be adopted after close of the comment period.)
TO:OCSE Regional Representatives, Regional Commissioners, SSA
Acting Commissioner of Social Security, and
Acting Director, Office of Child Support Enforcement
NOTICE CONCERNING GOOD CAUSE FOR REFUSAL TO COOPERATE
1.You are required by Federal Law, as a condition of eligibility for assistance under the AFDC Program, to cooperate with the State by engaging in activities that are related to the following objectives:
149identifying and locating the parent of the child or children for whom you are claiming aid;
149if necessary, establishing the paternity of the child;
149obtaining support payments from the child's absent parent;
149obtaining other payments or property due to you or the child;
unless you are determined to have good cause for refusing to cooperate as explained in this notice. If you fail to cooperate and are not found to have good cause, your needs will be removed from the grant and assistance for your children will be provided in the form of a protective payment.
2.You may claim to have good cause for refusing to cooperate. However, the Welfare Agency will determine that you have good cause for refusing to cooperate only if one or more of the following circumstances exists:
149your cooperation is reasonably anticipated to result in:
-- physical or emotional harm to the child;
-- physical or emotional harm to you which is so serious as to reduce your capacity to care for the child adequately.
149Welfare Agency finds that proceeding to establish paternity or secure support will be detrimental to the child because:
--the child was conceived as a result of incest or forcible rape;
-- legal proceedings for adoption of the child are pending before a court;
-- you are currently being assisted by a public or licensed private social agency to resolve the issue of whether to keep your child or relinquish him for adoption.
3.If you claim good cause for refusing to cooperate, you must either:
149supply certain documentary evidence (listed below) that establishes that you have good cause for refusing to cooperate; or
149furnish sufficient information such as the putative father or absent parent's name and address to permit the Welfare Agency to investigate the circumstances of your claim of good cause for refusing to cooperate.
The documentary evidence referred to above is limited to one or more of the following documents:
149a birth certificate or medical or law enforcement record which indicates that the child was conceived as the result of incest or forcible rape;
149a court document or other record which indicates that legal proceedings for adoption are pending before a court of competent jurisdiction;
149a court, medical, criminal, child protective service, social service, psychological, or law enforcement record which indicates that the putative father or absent parent might inflict physical or emotional harm on the child or you;
149medical record which indicates the emotional health history and present emotional health status of you or the child; or, a written statement from a mental health professional indicating a diagnosis or prognosis concerning the emotional health of you or the child; or
149a written statement from a public or licensed private social agency that you are being assisted by the agency to resolve the issue of whether to keep the child or relinquish him for adoption;
4.If you need help in getting a copy of one of the required documents listed in number 3 above, you can request the Welfare Agency to assist you. Upon your request, the Welfare Agency will provide reasonable assistance in obtaining the required document.
5.On the basis of the evidence you supply, our investigation of the information you provide, or a combination of both, the Welfare Agency will determine whether you have good cause for refusing to cooperate.
6.The Child Support Enforcement Agency may review the Welfare Agency's findings and basis for a good cause determination in your case. If you request a hearing, regarding the issue of good cause for refusing to cooperate, the Child Support Enforcement Agency may participate in that hearing.
7.If the Welfare Agency determines that you have good cause for refusing to cooperate, the agency may allow the Child Support Enforcement Agency to attempt to establish paternity, if necessary, and collect support if the Welfare Agency determines that this can be done without risk to you if done without your participation.
I have read and understand the foregoing statement concerning my right to claim good cause for refusing to cooperate.
NOTE: This suggested notice meets the notice requirements of 45 CFR 232.13(b) and should be provided at the time of application for assistance. The signed copy should be placed in the AFDC case record and one copy retained by the applicant.
Before being used by a State, this document should be adapted by substituting the appropriate agencies' names.