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NPRM: Paternity Establishment Provisions of the Omnibus Budget Reconciliation Act of 1993

AT-93-14

Published: November 30, 1993
Information About:
State/Local Child Support Agencies
Topics:
Case Management, Paternity Establishment, Funding, Federal Financial Participation (FFP)
Types:
Policy, Action Transmittals (AT)
Tags:
Administrative/Judicial Processes, Cooperative Agreement

Proposed Rule - Paternity Establishment Provisions of the Omnibus Budget Reconciliation Act of 1993

PROPOSED REGULATION

ACTION TRANSMITTAL

OCSE-AT-93-14

November 30, 1993

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

SUBJECT:Proposed Rule - Paternity Establishment Provisions of the Omnibus Budget Reconciliation Act of 1993

ATTACHMENT:Attached is a proposed rule that would implement the requirements of section 13721 of the Omnibus Budget Reconciliation Act of 1993 (Pub. L. 103-66). The provisions require States to adopt laws and procedures for a simple civil process for the voluntary acknowledgment of paternity, including early paternity establishment programs in hospitals. Under the new requirements, a voluntary acknowledgment must create a presumption of paternity and be a basis for seeking a child support order. For paternity cases that remain contested, the new 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 IV-D paternity cases.

COMMENT Consideration will be given to written comments PERIOD:received by January 28, 1994. Address comments to: Office of Child Support Enforcement, Department of Health and Human Services, 370 L'Enfant Promenade S.W., Washington, D.C. 20447, Attention: Director, Policy and Planning Division.

REGULATION

REFERENCE: 45 CFR Parts 302, 303, and 304

INQUIRIES TO:ACF Regional Administrators

__________________________

Robert C. Harris

Acting Deputy Director

Office of Child Support

Enforcement

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of Child Support Enforcement

45 CFR Parts 302, 303, and 304

Child Support Enforcement Program: Paternity Establishment

AGENCY: Office of Child Support Enforcement (OCSE), HHS

ACTION: Notice of proposed rulemaking.

SUMMARY: These proposed rules would implement the requirements of section 13721 of the Omnibus Budget Reconciliation Act of 1993 (Pub. L. 103-66) signed by the President on August 10, 1993, which amend title IV-D of the Social Security Act (the Act). The provisions amend the Act to 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 new 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 inclusionary 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.

DATES: Consideration will be given to written comments received by January 28, 1994.

The statute provides that the requirements become effective October 1, 1993, or later if enactment of State law is necessary to conform to the requirements. However, in no event shall the 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 2-year legislative session, each year of such session shall be deemed to be a separate regular session of the State legislature.

ADDRESS: Address comments to: Office of Child Support Enforcement, Department of Health and Human Services, 370 L'Enfant Promenade S.W., Washington, D.C. 20447, Attention: Director, Policy and Planning Division. Comments will be available for public inspection Monday through Friday, 8:30 a.m. to 5:00 p.m. on the 4th floor of the Department's offices at the above address.

FOR FURTHER INFORMATION CONTACT: Andrew Williams, OCSE Division of Policy and Planning, (202) 401-1467.

SUPPLEMENTARY INFORMATION

Paperwork Reduction Act

This rule does not require any information collection activities and, therefore, no approvals are necessary under the Paperwork Reduction Act.

Background

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, including Social Security benefits, pension benefits, veterans' benefits, and other 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.

Congress and the Federal government have long recognized the importance of paternity establishment. In 1975, enactment of Title IV-D of the Social Security Act required States to establish public child support agencies. These agencies provided paternity establishment services. The Child Support Enforcement Amendments of 1984 required States to permit paternity to be established until a child's 18th birthday. In 1988, the Family Support Act contained several provisions designed to improve paternity establishment: a performance standard, timeframes for case processing, enhanced funding (90% 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 Child Support Enforcement program has increased substantially from about 270,000 in FY1987 to over 515,000 in FY1992--an increase of over 90% in just five years. However, about 28% of American children, over a million children each year, are born to unmarried mothers. Paternity is still not established in a sizable number of these cases. 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 with the Omnibus Budget Reconciliation Act of 1993. This new statute and these proposed 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. 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 casesas well.

Many of these reforms are based on innovative State practices and recommendations of the U.S. Commission on Interstate Child Support. The Interstate Commission was created by Congress 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 of the Act. We propose to 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.

Statutory Authority

These proposed regulations are 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. 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. New 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 preceding or following the birth of a child. New 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. New 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 first requiring any further proceedings to establish paternity.

New 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. Newsubsection 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.

New 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. New 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 proposed 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.

In addition to the provisions discussed in this proposed rule, the new statute also revises the paternity establishment performance standard which States must meet. The performance standard will be dealt with separately in another rule.

Description of Regulatory Provisions

In developing this proposed rule, we were cognizant of the fact that the President has created a White House Working Group on Welfare Reform, Family Support, and Independence that is examining how to strengthen the Child Support Enforcement program. However, this proposed rule is based on existing law and does not attempt to anticipate future statutory change or recommendations that may emanate from the Working Group.

Required State Laws -- Section 302.70(a)

Section 466(a) of the Act requires a State to enact laws providing for these new requirements. Consistent with implementation of the Family Support Act requirements, however, States may implement provisions using regulation, procedure, or court rule, instead of law, if such regulation, procedure, or rule has the same force and effect under State law on the parties to whom they apply.

To simplify the regulatory language, we propose to delete effective dates of IV-D State plan requirements currently listed in 45 CFR 302.70(a). 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)

We propose to implement the requirements of new section 466(a)(5)(C) of the Act by amending 45 CFR 302.70(a)(5) to add new paragraph (iii). This provision would require 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. This requirement builds upon the Family Support Act of 1988, which encouraged simple civil procedures for the voluntary acknowledgment of paternity, by making such procedures mandatory. Studies and State experience have shown that many men will voluntarily acknowledge paternity if given the opportunity. When paternity is established voluntarily with the cooperation of both parents, the cost, conflict, and delays of contested cases can be avoided. Most, if not all, States already have some type of voluntary acknowledgment procedures in place, but this new law should ensure that these procedures are simple and are regularly used.

As part of the voluntary acknowledgment procedures, States would be required to explain to both parents the rights and responsibilities of acknowledging paternity and afford due process safeguards, including any due process requirements under State law. As long as the explanation meets State due process requirements, it may be verbal or in writing. However, we recommend that States list the rights and responsibilities of acknowledging paternity, including the duty to financially support the child, on the acknowledgment form or other written materials. This disclosure of rights should be clear and easily understood.

The statute requires that the voluntary acknowledgment procedures include hospital-based programs. (Such hospital-based programs are discussed more extensively later in this preamble). However, because the statute includes hospital-based programs as part of a broader requirement for voluntary acknowledgment procedures, we believe that Congress intended these procedures to encompass more than just the hospital-based programs. Therefore, we propose to require at new 45 CFR 302.70(a)(5)(iii)(B) that the procedures include a process for voluntarily acknowledging paternity outside of hospitals.

The voluntary acknowledgment process should be available at any time to any father who wants 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.

Acknowledgment Form. States may choose various simple civil methods for obtaining voluntary acknowledgments. At a minimum, however, proposed 45 CFR 302.70(a)(5)(iii)(D) would require each State to have a voluntary acknowledgment form or affidavit. Such forms are already used by many States. The voluntary acknowledgment form must include, at a minimum, instructions for filing the acknowledgment with the designated agency (see below for discussion on filing acknowledgments with the designated agency) and lines for the parents' social security numbers and addresses. In addition, proposed 45 CFR 302.70(a)(5)(iii)(C) would require States to have laws and procedures requiring that a voluntary acknowledgment be signed by both parents, and that the parents' signatures be authenticated by a notary public or witness(es).

The requirements at proposed 45 CFR 302.70(a)(5)(iii)(C) and (D) are meant to ensure that States' voluntary acknowledgments share certain common elements. If every voluntary acknowledgment contains these basic elements, States should be able to legally recognize and act upon acknowledgments obtained in other States, which should improve interstate case processing. In addition, the social security numbers and addresses may provide valuable locate and identifying information. States can meet the requirements of proposed 45 CFR 302.70(a)(5)(iii)(C) and (D) by developing and mandating the use of a form which contains the required elements, signature lines for both parents, and signature lines for a notary public or witness(es).

Filing Acknowledgments. Proposed 45 CFR 302.70(a)(5)(iii)(E) would require the State to have laws and 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. If the agency is not the IV-D agency, it may be the vital statistics agency, a registry of putative fathers, or some other type of registry or agency. Instead of allowing a State to have multiple filing agencies (such as local courts), we propose to require that the filing agency be a centralized entity so that it will be easier to match acknowledgments with IV-D cases and to control access to the acknowledgments.

If a State chooses its vital statistics agency (or similar agency responsible for birth registration) as its filing agency, it may want to link the filing process with procedures for including the father's name on the birth certificate. In some States, a voluntary acknowledgment is a sufficient basis to list the acknowledging man as the child's father on the birth certificate. The filing 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. Proposed 45 CFR 302.70(a)(5)(iii)(D) would require that voluntary acknowledgment forms include lines for parents' social securitynumbers.

Under this provision, a State's procedures would not have to require that a completed and notarized acknowledgment be filed with the appropriate agency in order to be a valid acknowledgment. Moreover, the procedures do not have to require that any particular party or agency file the acknowledgments [except for hospital-based programs as required by proposed 45 CFR 303.5(g)(2)(iv) and explained later in this preamble]. However, proposed 45 CFR 302.70(a)(5)(iii)(D) would require that the State include on acknowledgment forms instructions for filing the acknowledgment with the designated agency. As a result, the parties would be aware of the filing procedures and could easily file the acknowledgment themselves. If a State's filing agency is its vital statistics agency (or similar agency responsible for birth registration), it may choose to link these filing instructions with instructions for adding the father's name to the birth certificate.

The purpose of filing acknowledgments with an agency is to ensure that the IV-D agency has access to copies of acknowledgments so that it can use the acknowledgments to establish and enforce child support in cases where the parents voluntarily acknowledged paternity prior to the case becoming a IV-D case. If the acknowledgments are filed with an agency other than the IV-D agency, that agency would be required to give the IV-D agency access to identifying information and copies of filed acknowledgments. This identifying information should include sufficient information to enable the IV-D agency to determine if an acknowledgment matches a IV-D case--for example, names and social security numbers. The identifying information should enable the IV-D agency to match IV-D cases needing paternity establishment with voluntary acknowledgments previously filed with the designated agency. If allowable under State law, a State may also choose to give access to other agencies, other than the IV-D agency, that may benefit from the paternity records (e.g., agencies which need the records to establish benefit claims, such as Social Security).

To ensure that voluntary acknowledgments are used in IV-D case processing, proposed 45 CFR 303.5(h) would compel each IV-D agency to determine, in cases needing paternity establishment, if a voluntary acknowledgment has been filed with the agency designated by the State in accordance with 45 CFR 302.70(a)(5)(iii)(E). This would include acknowledgments obtained through hospital-based programs. Once a IV-D agency matches a case with a voluntary acknowledgment filed with the designated agency, it would then use that acknowledgment to seek a support order in IV-D cases. A State may use any means it chooses to determine if a voluntary acknowledgment has been filed with the designated agency. A IV-D agency would not need to make this determination in cases where it already has a copy of a voluntary acknowledgment. Under proposed 45 CFR 302.70(a)(5)(iii)(E), the IV-D agency should have access to identifying information concerning men who have acknowledged paternity and copies of acknowledgments filed with theappropriate agency. We encourage States to develop automated means for matching cases and obtaining information from the appropriate agency where acknowledgments are filed. If necessary, the IV-D agency should enter into a cooperative agreement with the designated agency responsible for filing acknowledgments in order to obtain copies of acknowledgments and identifying information.

FFP Availability for Filing Agency. Federal financial participation (FFP) would not be available for the costs of establishing or maintaining a separate agency where acknowledgments are filed, unless that agency is the IV-D agency. While we would not pay FFP for the operational costs of the filing agency, FFP would be available for the costs of determining if a filed acknowledgment matches a IV-D case and for establishing cooperative arrangements. Under current 45 CFR 304.20(b)(2)(i), which allows FFP for costs associated with reasonable efforts to determine the identity of a child's father, FFP would be available for costs the IV-D agency incurs in determining whether a voluntary acknowledgment has been filed with the designated agency in IV-D cases needing paternity establishment. Federal financial participation would also be available, under current 45 CFR 304.20(b)(1)(iii) for the costs of establishing a cooperative arrangement (in accordance with 45 CFR 302.34 and 303.107), governing the routine exchange of information regarding acknowledgments, between the IV-D agency and the agency where acknowledgments are filed.

IV-D Agency Activity. To reflect the newly-mandated procedures for the voluntary acknowledgment of paternity, proposed 45 CFR 303.5(a) would require, for all cases referred to the IV-D agency or applying for services under 45 CFR 302.33 in which paternity has not been established and a voluntary acknowledgment of paternity has not been obtained, the IV-D agency must: (1)

provide an alleged father the opportunity to voluntarily acknowledge paternity in accordance with 45 CFR 302.70(a)(5)(iii), and (2) attempt to establish paternity by legal process established under State law if he fails to voluntarily acknowledge paternity.

Under this requirement, the IV-D agency must offer the alleged father the opportunity to voluntarily acknowledge paternity. 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. Before contacting the alleged father, States could require a sworn statement of the mother or some other evidence of paternity to substantiate the mother's claim.

In order to satisfy this requirement, the IV-D agency must document in the case record the date on which the alleged father is sent or given notice of the paternity action and the opportunity to voluntarily acknowledge. Child support staff may contact the alleged father by telephone, written notice, or in person asappropriate 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. Many of the States which currently use such notices 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 would be available to serve as witnesses for, or notarize, signatures on voluntary acknowledgments. Alternatively, at least one State allows the parents to return the completed acknowledgment form to the IV-D office by mail; the parents may have their signatures notarized at a local bank or other entity.

A IV-D agency might want to inform the alleged father at the time it provides him an opportunity to voluntarily acknowledge that formal paternity establishment action will begin if the alleged father does not voluntarily acknowledge within a specified timeframe. Furthermore, this proposed rule would not prevent a IV-D agency from combining 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 without the need for serving process a second time.

If an alleged father refuses or is reluctant to voluntarily acknowledge paternity, States could encourage genetic testing. Some men who will not voluntarily acknowledge will 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.

We propose to delete the existing program standard timeframes for establishing paternity at 45 CFR 303.5(a). These timeframes are no longer necessary given the proposed inclusion of paternity establishment in the expedited process timeframe. It would be duplicative to retain the paternity timeframe since the same time period is covered by the proposed expedited process timeframe. (See discussion under expedited process section later in this preamble).

Hospital-Based Paternity Establishment Programs--Sections 302.70(a)(5)(iii)(A), 303.5(g), 304.20(b)(2), and 304.23(d)

Experience of States has indicated that 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 relationship with the father, child support, and other benefits resulting from paternity establishment.

In enacting the Omnibus Budget Reconciliation Act of 1993, the President and Congress recognized the importance of establishing a child's paternity as close in time to birth as possible, by requiring hospital-based programs for obtaining voluntary acknowledgments. Proposed 45 CFR 302.70(a)(5)(iii)(A) would implement 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 preceding or following the birth of a child.

About half of the States already have or are developing hospital-based programs to obtain voluntary acknowledgments of paternity (although often on less than a statewide basis). Even some hospitals in States without organized programs have, for years, accepted voluntary acknowledgments of paternity from 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% of their out-of-wedlock births. Preliminary results from OCSE-funded program improvement grant projects in New York City and Denver confirm the success of hospital-based programs in obtaining voluntary acknowledgments. Some States with programs have also documented savings in administrative costs that would otherwise typically be incurred in paternity establishment. In developing these proposed regulations, OCSE met with officials from established hospital-based programs in several States.

Because Congress added the hospital-based program requirement to section 466(a) of the Act, all States must provide for a hospital-based program by law, regulation and/or binding procedures. This approach is consistent with implementation of Family Support Act requirements. It is also consistent with the differing experience of States that have already implemented hospital-based programs--some found legislation to be useful; others were successful in implementing programs administratively.

At a minimum, proposed 45 CFR 302.70(a)(5)(iii)(A) would require that State law, regulation, and/or binding procedure compel all public and private berthing hospitals to participate in hospital-based programs as defined in õ303.5(g)(2). At State option, State law may include an enforcement mechanism for dealing with noncompliance by hospitals. However, under existing 45 CFR 302.70(d), a State could apply for an exemption from enacting a law, regulation, or binding procedure providing for a hospital-based program, if the State documents that it has already implemented a hospital-based program otherwise meeting Federal requirements in every berthing hospital in the State without the necessity of enacting binding laws or regulations.

We propose to define berthing hospital in 45 CFR 301.1 as a hospital that has a licensed obstetric care unit or is licensed to provide obstetric services, or a licensed berthing center associated with a hospital. Since we do not believe programs should be mandated in hospitals (such as geriatric hospitals) that do not routinely provide maternity services, we propose limiting the hospital-based program requirement to hospitals with an obstetric care unit or licensed to provide obstetric services. In the definition of berthing hospital, we also include berthing centers associated with a hospital. A berthing center is a facility 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 berthing center if complications develop. Since in some localities, a significant number of births occur in berthing centers, we believe voluntary acknowledgment programs should be established in such centers that are associated with hospitals.

Proposed 45 CFR 303.5(g) describes the State's responsibilities in implementing the hospital-based program. To accommodate divergent State practices, we propose that the State as a whole rather than the IV-D agency in particular be responsible for meeting the hospital-based program requirements in proposed 45 CFR 303.5(g). In some States with an existing hospital-based program, the State health department, not the IV-D agency, has primary responsibility or shares responsibility for the program. In other States, the IV-D agency has primary responsibility. We do not want to interfere with or disrupt the operation of existing, successfully-functioning programs. Therefore, the requirements in proposed 45 CFR 303.5(g) place responsibility on "the State" rather than the "IV-D agency." This approach is consistent with the statute, which does not require that the IV-D agency be directly responsible for the implementation of hospital-based programs, but in no way relieves the State of the responsibility to meet Federal requirements as a condition of

IV-D State plan approval.

First, proposed 45 CFR 303.5(g)(1) would require the State to establish, in cooperation with hospitals, a hospital-based programin every public and private berthing hospital. We recognize that States need some time to fully implement these programs. 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 begins after August 10, 1993).

However, even if a State needs to enact legislation, it may begin working to implement the program immediately by contacting hospitals and appropriate agencies and developing forms, written materials, and training procedures. The programs must be operational in berthing hospitals statewide no later than January 1, 1995. Depending on their circumstances, this gives States over a full year after the Federal mandate's effective date to gear up to a statewide program. As of January 1, 1995, any State needing legislation for its hospital-based program will have completed its first legislative session (as defined by the statute) since enactment of the Omnibus Budget Reconciliation Act of 1993 and had the opportunity to pass legislation. We would view January 1, 1995 as an outer limit; States are urged to proceed more expeditiously in light of the magnitude of the problem this new law is intended to address.

As part of the process of establishing hospital-based programs, IV-D agencies could enter into cooperative arrangements (in accordance with 45 CFR 302.34 and 303.107) or other contracts with berthing hospitals or other State agencies. A State could also hire a contractor to implement the hospital-based program. We encourage the State to work closely with the State hospital association; State staff that have implemented existing programs indicate that the hospital association was a key player in implementation.

Elements of a Hospital-Based Program. Proposed 45 CFR 303.5(g)(2) defines a hospital-based program by listing the services and functions that such a program must, at a minimum, provide during the period immediately preceding or following the birth of a child to an unmarried woman in the hospital. These services are based on the experience provided by States that have already implemented hospital-based programs. The State must ensure, in cooperation with the hospitals, that the program performs all of these functions.

We are proposing that each hospital-based program provide services to unmarried mothers and alleged fathers. A program would not be required to provide services to married mothers. In most cases where a child is born to a married mother, paternity is not at issue. If the mother of a newborn is married, her husband is presumed to be the father of the child. In some cases, the husband may not actually be the biological father and paternity may be an issue. We do not propose that a hospital-based program be required to intervene in such complex cases; however, it may do so at Stateoption. At least one State has adapted its hospital-based program to address such cases. This State has developed forms which allow the husband to rebut the presumption that he is the father and allow the other man to acknowledge his paternity. Using these procedures, the State has been able to obtain a significant number of voluntary acknowledgments.

Under proposed 45 CFR 303.5(g)(2)(i), a hospital-based program would 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, 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 written description of rights and responsibilities may be included in either the written materials or on the forms, or may be a separate document. The written materials, forms, and description of rights and responsibilities should ensure that the parents of every child born in a berthing hospital to an unmarried couple receive information about paternity establishment, along with the forms necessary to pursue voluntary paternity establishment. Hospitals already distribute a variety of materials and forms to patients, and providing paternity materials and forms could be incorporated into their existing procedures. The State would provide the materials and forms to the berthing hospitals in accordance with proposed 45 CFR 303.5(g)(4).

The opportunity to speak with staff in person or via telephone, as required in proposed 45 CFR 303.5(g)(2)(i)(D), should allow the parents to ask questions or seek assistance in completing the voluntary acknowledgment forms, if necessary. 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.

Under proposed 45 CFR 303.5(g)(2)(ii), a hospital-based program would provide the unmarried mother and alleged father, if he is present, the opportunity to voluntarily acknowledge paternity in the hospital. Each program is encouraged to make staff available, including during evening and weekend visiting hours, to ensure that all unmarried mothers and alleged fathers present at the hospital are afforded this opportunity. If paternity acknowledgment forms must be notarized under State law or procedure, notaries (designated hospital staff in some ongoing programs) should be available to notarize acknowledgments in the hospital.

The parents must be given the chance to acknowledge paternity regardless of the child's public assistance status or whether an application has been filed for IV-D child support services. In many cases, a mother will not have applied for IV-D services orpublic assistance prior to her child's birth. However, if the case eventually enters the IV-D program, child support establishment and enforcement will be expedited and administrative costs avoided if the father has previously acknowledged paternity.

A hospital-based program, under proposed 45 CFR 303.5(g)(2)(iii), would afford due process safeguards. As mentioned, proposed 45 CFR 303.5(g)(2)(i)(C) would require a hospital-based program to provide each unmarried mother and alleged father a written description of the rights and responsibilities of acknowledging paternity. Beyond this minimum requirement, a hospital-based program should ensure that State due process requirements are met. We recommend that staff be trained to ensure that the voluntary aspect is promoted and maintained. Alleged fathers should not be pressured into signing acknowledgments.

If either the mother or the man does not agree that the man is the father, the hospital-based program need not intervene. Hospital workers should not be required to mediate disputes between parties. If a party in 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.

Under proposed 45 CFR 303.5(g)(2)(iv), a hospital-based program must forward completed acknowledgments to the agency designated by the State in accordance with proposed 45 CFR 302.70(a)(5)(iii)(E). This will ensure that the IV-D agency has access to and can use the acknowledgments in cases that become IV-D cases.

Although not a requirement, States may want to incorporate the opportunity for genetic testing into its hospital-based program. A readily available testing capability may encourage additional fathers to voluntarily acknowledge or expeditiously resolve any doubts as to paternity. At least one State plans to pilot-test genetic testing in hospitals. Another State routinely obtains stipulations in the hospital where both parties agree to undergo genetic testing at a later date.

Withholding Services in Some Cases. Proposed 45 CFR 303.5(g)(3) would allow 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., 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 would not be 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 45 CFR 303.5(g)(2) should be provided to other unmarried parents.

Written Materials and Forms. The State itself must provide certainservices to support the hospital-based programs. Proposed 45 CFR 303.5(g)(4) would require the State to provide to all public and private berthing hospitals in the State written materials about paternity establishment, forms necessary to voluntarily acknowledge paternity, and a written description of the rights and responsibilities of acknowledging paternity. Hospital-based programs would then distribute these materials and forms to unmarried mothers and alleged fathers in accordance with proposed 45 CFR 303.5(g)(2)(i). The State would be responsible for ensuring that the berthing hospitals have a sufficient supply of these items to distribute them to unmarried mothers and alleged fathers upon birth of a child.

The written materials about paternity establishment could be brochures, pamphlets, or similar materials that describe the benefits of paternity establishment and the consequences of a voluntary acknowledgment.

The forms necessary to voluntarily acknowledge paternity may be the same forms that are used to voluntarily acknowledge paternity outside of the hospital setting. A voluntary acknowledgment form must meet the requirements in proposed 45 CFR 302.70(a)(5)(iii)(C) and (D)--i.e., a voluntary acknowledgment must be signed by both parents with their signatures authenticated by a notary public or witness(es), and the form must include, at a minimum: instructions for filing the acknowledgment with the designated agency in accordance with 45 CFR 302.70(a)(5)(iii)(E) and lines for the parents' social security numbers and addresses.

The description of rights and responsibilities may be a separate document or included on the other written materials or forms. It should describe rights that each party is giving-up 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 order to ensure that the materials are easily understandable to the intended audience, they should be clearly written. States with large non-English speaking populations are encouraged to provide materials in languages other than English.

Although not a requirement, States may also want to provide applications for, and materials relating to, IV-D services to hospitals for distribution to maternity patients, in order to encourage unmarried mothers to apply for IV-D services. Although mothers may decide not to apply for IV-D services while in the hospital, they may decide to apply for services sometime after leaving the hospital. A mailing address on the application could indicate where the form should be mailed once completed.

Training, Guidance, and Written Instructions. Proposed 45 CFR303.5(g)(5) would require the State to provide training, guidance, and written instructions regarding the voluntary acknowledgment of paternity as necessary to operate the hospital-based program. States could use training 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, the State should ensure that staff, as they assume the responsibility, are instructed on 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.

Annual Assessment. Finally, proposed 45 CFR 303.5(g)(6) would require the State to assess each berthing hospital's program on at least an annual basis. To assess each program, we suggest that States examine data regarding the number of out-of-wedlock births and the number of voluntary acknowledgments in each hospital. This data is already collected by vital statistics agencies in some States. At least one State with an existing program uses such data to monitor each hospital. If the State identifies a berthing hospital with few or no acknowledgments, it contacts the hospital to identify the problem, if any, and takes action (e.g., staff training or technical assistance) to correct the problem. 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 operating effective programs.

FFP Availability for Hospital-Based Programs. We propose that Federal financial participation (FFP) be available for certain costs associated with hospital-based programs. First, under current 45 CFR 304.20(b)(1)(iii), FFP would be available for the costs associated with establishing necessary agreements between the IV-D agency and berthing hospitals or other State agencies. Second, FFP would be 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 an existing policy issuance, FFP is available for a nominal payment per acknowledgment to berthing hospitals to help defray administrative costs. We propose to codify this policy in regulation at 45 CFR 304.20(b)(2)(vi), which would make FFP available for payments of $20 or less to berthing hospitals for each voluntary acknowledgment obtained through a hospital-based program as defined by proposed 45 CFR 303.5(g)(2). Several States have found such payments to be successful in demonstrating "good faith" and obtaining the cooperation of hospitals. However, States would not be required to provide payments to hospitals, although FFP would only be available for payments actually made. The $20 per voluntary acknowledgment is also available for voluntary acknowledgments obtained in other entities that provide prenatal or berthing services. Fourth, proposed 45 CFR 304.20(b)(2)(vii) would make FFP available for the costs of developing and providingto berthing hospitals and other entities that provide prenatal or berthing services written and audiovisual materials about paternity establishment and forms necessary to voluntarily acknowledge paternity.

Finally, proposed 45 CFR 304.20(b)(2)(viii) would make 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 45 CFR 303.5(g)(2). Although the training must be short-term in order to be eligible for FFP, the training may be provided on a periodic basis so that new staff will also receive the short-term training. We propose to revise 45 CFR 304.23(d), which limits the availability of FFP for training to specific circumstances, to allow for FFP as provided for in proposed 45 CFR 304.20(b)(2)(viii).

FFP would be 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.

Consistent with current policy, FFP would not be available for other costs, including hospital operational and staff costs. Except in limited and clearly defined circumstances as already enunciated, we do not believe that other costs of hospitals, health care providers, vital statistics agencies, or public educational programs should be financed through the IV-D program. If a public entity 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 cooperative arrangement (in accordance with 45 CFR 302.34 and 303.107) in order for the State to receive FFP for these activities.

We encourage but do not require States to extend their hospital-based programs beyond berthing hospitals to clinics, health departments, and other facilities. Since a mother's stay in a hospital after 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, we are proposing that FFP be 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 berthing services. Similarly, we propose that FFP be available for payments of $20 of less, not only to berthing hospitals, but to other entities that provide prenatal or berthing services and obtain a voluntary acknowledgment.

Effect of Voluntary Acknowledgment: Presumption of Paternity; Admissible as Evidence--Section 302.70(a)(5)(iv)

We are proposing to implement the requirements of new section 466(a)(5)(D) of the Act by adding 45 CFR 302.70(a)(5)(iv). This provision would require 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.

Currently, the legal effect of a voluntary acknowledgment varies from State-to-State. Under the Uniform Parentage Act, which has been adopted by 18 States, an acknowledgment filed with the appropriate court or agency creates a presumption of paternity. In other States, however, an acknowledgment may simply be considered some evidence of paternity. In a few States, a voluntary acknowledgment has the same force and effect as a paternity judgment. This proposed regulation would ensure that voluntary acknowledgments are meaningful and used to expedite paternity establishment in every State.

A presumption is a rule of evidence by which finding of a basic fact gives rise to a presumed fact, until the presumed fact is rebutted. In this situation, the existence of a voluntary acknowledgment of paternity gives rise to a presumption of paternity. A rebuttable presumption can be overturned by sufficient proof. In a paternity case, a rebuttable presumption of paternity would shift the burden of proof to the presumed father to disprove paternity, if he chooses to contest paternity after the acknowledgment. A conclusive presumption would have 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 challenges, 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)

Although the combined effect of the various provisions discussed above should increase the number of paternities established by voluntary acknowledgment, some cases will remain contested. The Omnibus Budget Reconciliation Act of 1993 and this proposed rule contain provisions designed to expedite such contested cases.

In recent years, scientific advancements in genetic testing have revolutionized the paternity determination process in contested cases. Genetic tests can produce exclusionary evidence eliminating a man from consideration as the biological father or provide convincing evidence reflecting the high probability that he 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 genetictest results are admissible as evidence. However, in some States, the process for admitting such evidence can be cumbersome.

Proposed 45 CFR 302.70(a)(5)(v), which would implement new section 466(a)(5)(F) of the Act, would improve the process for admitting test results in legal proceedings. It would require 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.

This provision would have two major benefits. First, it would prevent 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 would expedite the process of allowing a written report of the genetic test results to be admitted as evidence without the need for foundation testimony. Some States currently have 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. This proposed rule would not lower the standards for admission of genetic test results in evidence, but would prohibit a party from objecting to the admission of the test results, unless an objection is raised in a timely fashion.

Under the proposed regulation, States would have flexibility to set the timeframe within which objections must be made prior to a hearing. The U.S. Commission on Interstate Child Support recommended a 21-day timeframe. Several States already have requirements under which genetic test results are admissible as evidence without foundation testimony unless objected to within a specified timeframe. At least four States have a timeframe that requires an objection to genetic test results be made at least 20 days prior to trial; two States require objections to be made at least 30 days prior to trial.

At least four other States have timeframes, but these timeframes allow objections within a specified number of days of "receiving a copy of the testing report" or "after service of the written test results". Since these timeframes do not require objections to be raised within a specified period prior to the hearing, they will need to be modified in order to meet the requirements of the Omnibus Budget Reconciliation Act of 1993 and the proposed implementing regulations at 45 CFR 302.70(a)(5)(v). Some other States have statutes which require objections to be raised "within the time limit" or "within the time allowed by the court". Suchstatutes will need to be modified to include a specified number of days or, alternatively, court rules should specify the number of days allowed. Finally, some State statutes include timeframes for raising objections to genetic test results but do not explicitly indicate that a written report of such results is admissible as evidence without foundation testimony if no objection is raised. A State, through statute, regulation, or binding procedure, must meet both parts of this requirement.

While this proposed rule requires that genetic test results be admissible without foundation in cases where no objection is raised, the judge or decision-maker who determines matters of fact still must decide what weight to accord the test results in a particular case in light of other evidence presented. 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.

Presumption of Paternity Based on Genetic Test Results--Section 302.70(a)(5)(vi)

New section 466(a)(5)(G) of the Act and proposed implementing regulation 45 CFR 302.70(a)(5)(vi) would 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.

Just as a voluntary acknowledgment would create a presumption of paternity (discussed earlier), genetic test results that meet or exceed a specific threshold probability, determined by the State, would create a presumption of paternity. A presumption of paternity should expedite paternity resolution in cases where a presumption is established. A rebuttable presumption would shift the burden of proof to the presumed father to disprove a paternity allegation. A conclusive presumption would have the same effect as a judgment for paternity. 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 the wrong man is tested or the test results, after timely objection, are proven to be incorrect). In the vast majority of cases, however, a threshold probability test result will eliminate the necessity of extensive hearings. If there is, on rare occasions, a serious allegation of fraudulent testing or inaccurate analysis, then, repeat testing should simply be ordered.

States would be allowed the flexibility to designate the specific threshold probability that creates a presumption of paternity. This threshold probability is the probability based upon analysis of genetic test results that the alleged father is the biological father of the child (i.e., the "inclusion" probability). It should not be confused with the laboratory's statistical capability of excluding a certain percentage of those men who are incorrectly identified as the father (i.e., the "exclusion" probability). A growing number of States, currently about half, have adopted a presumption of paternity standard based on genetic test results. State statutory threshold probabilities generally range from 95 to 99 percent. We recommend that the remaining States choose a standard within this range. If the inclusion probability equals or exceeds the threshold, then the burden of proof shifts to require the alleged father to prove non-paternity. Many States have contracts with genetic testing laboratories that require a battery of tests to be performed sequentially and only as necessary until the alleged father has been excluded or the threshold probability for establishing a presumption of paternity under State law has been attained. Each additional genetic marker that is examined eliminates an additional segment of the population from the pool of men who have the requisite genetic characteristics to be the child's biological father. If the alleged father remains in that genetic pool, each additional test performed incrementally increases the likelihood of inclusionary probability that he is the child's father.

The presumption based on genetic test results required by proposed 45 CFR 302.70(a)(5)(vi) and the presumption based on a voluntary acknowledgment required by proposed 45 CFR 302.70(a)(5)(iv) are minimum requirements. States may certainly establish or rely on additional presumptions. The Uniform Parentage Act (UPA), a model State law that has been adopted by approximately 18 States, contains several presumptions of paternity. For instance, under the UPA, if, while the child is under the age of majority, the man receives the child into his home and openly holds out the child as his natural child, he is presumed to be the natural father of the child.

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 that another man is actually the father. Several States have enacted choice of law provisions to address these conflicting presumptions. The Uniform Parentage Act 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.

Voluntary Acknowledgment or Genetic Test Results Meeting or Exceeding State's Threshold Probability is Basis for Seeking Support Order--Sections 302.70(a)(5)(vii) and 303.4(d)

We propose to implement new section 466(a)(5)(E) of the Act by adding 45 CFR 302.70(a)(5)(vii). This provision would require each State to have laws and procedures under which a voluntary acknowledgment or genetic test results meeting or exceeding the State's threshold probability [established in accordance with 45 CFR 302.70(a)(5)(vi)] must be recognized as a basis for seeking a support order without first requiring any further proceedings to establish paternity.

As a result, filing of 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 or genetic test results meeting or exceeding the State's threshold are received. This should help ensure that the child receives financial support at the earliest possible date.

In many States, once the father voluntarily acknowledges paternity or genetic test results establish a presumption of paternity, a court or administrative agency must legally establish paternity by taking further action, such as filing or ratifying the acknowledgment or issuing a paternity order. This proposed rule would not prohibit States from having such procedures as long as action to seek a child support order begins as soon as paternity is acknowledged or genetic test results meeting or exceeding a State's threshold are received. Moreover, we encourage States to combine paternity and support order establishment in the same proceeding, if both are needed in a case. In cases where a presumption of paternity has been created by a voluntary acknowledgment or genetic test results meeting or exceeding the State's threshold, a man seeking to challenge and rebut the presumption could be given the opportunity to do so during the support order proceeding. This would allow the State to collapse the final determination of paternity into the same proceeding as order establishment.

Alternatively, a State may choose to establish support awards on the basis of a rebuttable presumption of paternity, without converting the presumption to a paternity order. At least one State currently uses this approach for presumptions established by voluntary acknowledgment. However, advocates and some States have expressed concern that basing support orders on presumptions of paternity, without ever making a final determination of paternity, makes it easier for the father to deny paternity at a later point and may cause difficulty in interstate cases. Therefore, States that choose to establish a support order solely on the basis of a presumption of paternity may want to consider a one- or two-year statute of limitations for rebutting a presumption of paternity. On the other hand, even a judgment of paternity may be overturnedunder certain circumstances (e.g., if it was obtained under fraud or coercion), and the experience of States suggests that few men attempt to rebut presumptions of paternity, particularly in cases where the presumption was created by a voluntary acknowledgment.

To reflect that a voluntary acknowledgment or genetic test results meeting or exceeding the State's percentage threshold must serve as sufficient basis to seek establishment of a support order, we propose to revise 45 CFR 303.4. Proposed 45 CFR 303.4(d) would require the IV-D agency, in cases where a support order has not been established, to seek a support order based on a voluntary acknowledgment or genetic test results meeting or exceeding the State's threshold probability in accordance with 45 CFR 302.70(a)(5)(vii). Therefore, the IV-D agency would gather information and establish support administratively or by consent or file a petition for support order establishment upon receipt

of a voluntary acknowledgment of paternity or genetic test results meeting or exceeding the State's threshold.

Proposed 45 CFR 303.4(d) would eliminate the existing program standard timeframe for support order establishment, in light of the proposed revisions to the timeframe for expedited process. The proposed expedited process timeframe would begin with location of the noncustodial parent, just as the existing program standard timeframe at 45 CFR 303.4(d) does. Therefore, the expedited process timeframe would include the period currently covered by the program standard timeframe. As a result, the program standard timeframe is unnecessary. (See more detailed explanation in section on expedited process later in this preamble).

Default Orders--Sections 302.70(a)(5)(viii) and 303.5(f)

We propose to implement the requirements of new section 466(a)(5)(H) of the Act by adding 45 CFR 302.70(a)(5)(viii). Under this provision, each State must have laws and procedures requiring a default order to be entered in a contested paternity case upon a showing that process has been served on the defendant in accordance with State law, that the defendant has failed to appear at a hearing or trial (if the notice required such an appearance) or respond within a reasonable period of time specified by the State (if the notice required a response), and any additional showing required by State law. The use of default orders creates an incentive for alleged fathers to cooperate with the adjudication of contested paternity cases, resulting in fewer delays. In those cases where the man fails to appear or respond, default orders allow the paternity case to move forward. A State would be required to provide for judicial default orders if its court system handles contested paternity cases, and administrative default orders if an administrative entity processes its contested cases.

Most States already have provisions for entry of judgments by default as part of their civil procedure code or statute. At leasteleven States also have default provisions that apply specifically to paternity cases. However, the circumstances under which a default order can be entered vary. Depending upon the State, a default order may be entered when the alleged father: (1) fails to appear at a scheduled hearing, conference, or trial, (2) fails to respond to a notice that requires a response, such as a notice alleging the man's paternity, and/or (3) fails to appear for or refuses to submit to genetic testing. The extent to which default orders are actually used also varies from State to State. In many States with default provisions, the provision is permissive, allowing but not requiring the tribunal to enter a default order.

Under this proposed rule, State law, regulation, or binding procedure would have to require tribunals to enter default orders establishing paternity in cases where the alleged father failed to appear at a hearing or to respond to notice or service within the reasonable period of time specified by the State for answering or pleading. State law would have to require, not simply allow, tribunals to enter default orders under these conditions. States could choose to go beyond this minimum requirement, for example, by compelling tribunals to enter default orders in cases where a father fails to cooperate with blood or tissue drawing necessary for genetic testing.

Before entering a default order, however, there would have to be a proper showing of service of process and any additional showing necessary under State law. We recommend that States require some evidence of paternity, perhaps a prima facie case based on the mother's testimony, before entering a default order. In interstate cases, an affidavit or a petition, signed by the mother, should be enough. States may want to specify in law, as at least one State currently does, that a default order may not be entered if there is more than one alleged father unless the default applies to only one of them and all others have been excluded by the results of genetic testing. We also recommend that States have procedures for challenging and overturning default orders, and notify the man of this process if a default order is entered. For example, under one State's law, a default order does not take effect until ten days after entry of the default, allowing time for the man to show good cause for his failure to take appropriate action (respond to notice or appear at hearing).

To reflect the new default order requirement, we propose to add 45 CFR 303.5(f). It would require that 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, that the defendant has failed to appear at a hearing or respond within a reasonable period of time specified by the State, and any additional showing required by State law, in accordance with proposed 45 CFR 302.70(a)(5)(viii).

Full Faith and Credit of Paternity Determinations--Section302.70(a)(11)

We are proposing to implement the requirements of new section 466(a)(11) of the Act by adding 45 CFR 302.70(a)(11). This provision would require 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.

Under the principle of full faith and credit, an out-of-State paternity judgment is 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 the terms of that judgment. This provision should improve interstate processing since a responding State, upon receiving a paternity determination made by another State, must recognize that determination and move forward with the next step (e.g., support order establishment or enforcement) without questioning or revisiting the paternity issue.

A responding State would have to recognize a determination of paternity made by another State if that determination constitutes a legal paternity establishment in the other State, regardless of the method (e.g., administrative process, judicial process, voluntary acknowledgment, or conclusive presumption based upon genetic test results) used for determining paternity. For example, in some States, a voluntary acknowledgment or genetic test results meeting or exceeding a specified threshold may have the same force and effect as a judgment for paternity. In such cases, the responding State would have to give full faith and credit to such acknowledgment or test results. In an interstate case, if paternity had been determined by an acknowledgment or test results having conclusive effect, the initiating State should notify the responding State that paternity had already been established in accordance with its or another State's law.

Expedited Processes for Paternity Establishment--Sections 302.70(a)(2) and 303.101

The Child Support Enforcement Amendments of 1984 required States to have expedited processes within their judicial or administrative systems for obtaining and enforcing child support orders. At the option of the State, expedited processes could also include action for establishment of paternity. Expedited process case processing timeframes, established by regulation, have been effective in prompting States to adopt expedited administrative and quasi-judicial processes for establishing and enforcing support orders. According to the IV-D State plans, 19 States have also opted to extend expedited processes to paternity establishment. However, in many jurisdictions the paternity establishment process, particularly in contested cases, is still protracted. Many jurisdictions process paternity primarily through the courts whereboth cumbersome procedures and dilatory tactics by the father can create delays.

To address this problem, the Omnibus Budget Reconciliation Act of 1993 amended section 466(a)(2) of the Act to mandate use of expedited processes for establishing paternity. We propose to implement this new provision by revising 45 CFR 302.70(a)(2) to require each State to have laws and procedures for expedited processes to establish paternities, in addition to the previously-mandated expedited processes for establishing and enforcing child support obligations.

As specified in section 466(a)(2) of the Act, expedited processes are defined in regulations of the Secretary. The provision of the Act regarding expedited processes for support order establishment and enforcement has been implemented by 45 CFR 303.101. We propose to amend these regulations to require expedited processes for paternity establishment. We also propose to delete existing 45 CFR 303.101(b)(3), which gave States the option of including paternity establishment in their expedited processes, since expedited processes for handling paternity cases are now mandatory.

As with the existing expedited processes for support order establishment and enforcement, under expedited paternity establishment processes both intrastate and interstate cases must be included as required by 45 CFR 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 the Omnibus Budget Reconciliation Act of 1993 mandates that expedited processes be expanded to include paternity establishment, and because the regulatory definition of expedited process is based on timeframes, we have decided to reexamine existing expedited process and program standard timeframes.

Although paternity establishment is currently not included in expedited process under existent rules, there are two timeframes governing paternity under standards for program operations (see chart below). First, the current 45 CFR 303.5(a)(1) is an "up-front" timeframe governing IV-D agency activity. It allows the IV-D agency 90 calendar days, from the date of locating the absent father, to file for paternity establishment or serve process (or document unsuccessful efforts), whichever occurs later in accordance with State procedures. Second, existing 45 CFR 303.5(a)(2) is a "back-end" timeframe governing court or administrative agency activity. It allows an expedited process (quasi-judicial or administrative agency) one year, from successful service of process or the child turning six months of age, to establish paternity or exclude the alleged father.

There are also two sets of timeframes for support orderestablishment. First, there is an "up-front" timeframe at existing 45 CFR 303.4(d) for IV-D agency activity. It allows 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 (or document unsuccessful efforts) to establish an order. Second, there are expedited process timeframes for support order establishment at existing 45 CFR 303.101(b) governing activity within the States quasi-judicial or administrative agency. Expedited process timeframes were designed to ensure that cases are adjudicated expeditiously in the State's court or administrative system. Under current regulation, a State's process or combination of processes is expedited when it completes support order establishment from service of process to disposition in 90% of all cases in 3 months, 98% in 6 months, and 100% in 12 months. These timeframes also apply to enforcement actions.

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Existing Timeframes for Paternity and Order Establishment

Action NeededReg CiteStarting PointTime Period Ending Point

Paternity Establish.303.5(a)(1)Locate90 calendar daysFile for paternity or SOP, whichever later303.5(a)(2)SOP or child's sixth month1 yearPaternity established or man excluded

Support Order Establish.303.4(d)Paternity establishment or locate90 calendar daysSupport order established or SOP303.101(b)Service of process90% in 3 months

98% in 6 months

100% in 1 yearSupport order established/ recorded or action dismissed

SOP = Service of process; if agency is unable to serve process it may document unsuccessful efforts.

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We considered adding paternity establishment to the existing expedited process timeframe structure, perhaps by requiring that paternity establishment be completed from service of process to disposition in 90% of cases in 3 months, 98% in 6 months, and 100% in 12 months. However, this approach would create a number of problems. First, having a separate timeframe with paternity establishment as an "endpoint" suggests that States may have

separate proceedings for paternity establishment and support order establishment and potentially well over two years to complete both processes. To avoid this potential delay, we prefer, as mentioned, that States establish paternity and support orders in the same proceeding, if both actions are needed.

Second, the existing expedited process timeframes begin with service of process--a starting point that may be inappropriate in paternity cases. Under current practice, States serve process at various points in the paternity establishment proceeding. If the expedited paternity process timeframe started with service of process, States which serve process as a first step in case processing would count voluntary acknowledgments received as a response to service of process as "successes" under their expedited processes. On the other hand, States which only serve process after attempting and failing to obtain a voluntary acknowledgment would not be able to count voluntary acknowledgments received prior to service as "successes" under expedited process. Since a significant number of paternities are established via voluntary acknowledgment (and more will be as a result of this new statute), this difference would have an impact on States' compliance rates with the expedited paternity establishment requirement. It would be unfair to States that attempt to obtain voluntaryacknowledgments prior to service and may encourage States to adjudicate cases without first attempting to obtain voluntary acknowledgments.

Third, the existing expedited process timeframe includes an absolute standard--100% of cases must be disposed of within the time period. This absolute standard is unrealistic in paternity cases given the complex nature of some contested cases. If a

IV-D agency failed to process even one complex case within the timeframe, it would not meet the standard.

Given the foregoing difficulties with adding expedited paternity establishment to the existing timeframe structure, we propose to replace the existing timeframes for paternity and support order establishment at 45 CFR 303.4(d), 303.5(a)(1), 303.5(a)(2), and 303.101(b) with one new timeframe (see chart below). A State would have to meet this proposed timeframe in order to have an expedited process for paternity establishment and support order establishment. The timeframe, at proposed 45 CFR 303.101(b)(2)(i), would apply to IV-D cases needing support order establishment, regardless of whether paternity has been established. It would require that actions to establish support obligations be completed from the date of locating the alleged father or noncustodial parent to the time of disposition within the following timeframes: (A) 75% in 9 months; (B) 85% in 12 months; and (C) 90% in 15 months. Disposition would be defined at 45 CFR 303.101(b)(2)(iv) as the date on which a support obligation is officially established and/or recorded or action is dismissed. In interstate cases, this timeframe would begin on the date of locating the alleged father or noncustodial parent in the responding State.

_________________________________________________________________

Table: Proposed Timeframe for Paternity and/or Order Establishment
Action Needed Starting Point Time Period Ending Point
Paternity and/or Order Establish. Locate 75% in 9 months
85% in 12 months
90% in 15 months

Support order established/ recorded or action dismissed

_________________________________________________________________

This proposed timeframe is based on the following goals and rationale. The proposed approach has several advantages over incorporating expedited paternity establishment into the existing timeframe structure. First, it avoids dual timeframes for paternity and support order establishment, thereby strongly encouraging States to establish paternity and support in the same proceeding in cases where both actions are needed. The endpoint of the timeframe is either the date a support order is established/recorded or the date 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). In addition, having one 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 in a case at-birth, the State will have a head-start on meeting the proposed expedited process timeframe if the case later becomes a IV-D case, since one timeframe applies regardless of whether or not paternity has been established.

Second, the proposed timeframe begins with location, not service of process. Therefore, the timeframe would have a uniform starting point no matter which procedures a State uses or at what point it serves process. The proposal would not penalize States for attempting to obtain a voluntary acknowledgment prior to service of process in a paternity case.

Third, by replacing four timeframes with one, the proposed rule makes time standards for paternity and support establishment simpler and easier to understand. All activity to establish paternity and support would be covered in one timeframe once location occurs. The timeframe governing paternity and support establishment would be in one section of the regulation (45 CFR 303.101) rather than spread-out over three sections (45 CFR 303.4, 303.5, and 303.101).

Fourth, the timeframe gives States greater flexibility while still assuring expeditious results. By eliminating the program standard timeframe for establishing support orders at 45 CFR 303.4(d) andfor paternity at 303.5(a), IV-D agencies will no longer have to achieve interim steps (such as service of process) within a specified timeframe, as long as they accomplish the end result (establish/record support order) within the overall timeframe. Therefore, the proposed timeframe is more results-oriented than the existing standards.

The tiered-nature of the proposed timeframe (75%, 85%, and 90%) is similar to the existing expedited process timeframe. These tiers recognize that some cases take longer than others; they require that a significant number of cases be processed within a the shortest tier of the timeframe, but allow longer for some cases. The first tier is 75%--the traditional audit standard that has been used for evaluating criteria other than the expedited process timeframes. The highest standard in the proposed timeframe is 90% of cases, not 100% as in the existing expedited process requirement. By not imposing an absolute standard (100% of cases), the proposed rule recognizes that there are complex cases, particularly some contested paternity cases, that cannot be accomplished within this time period.

The 90% standard is also justified because we propose to delete existing provisions which allow IV-D agencies to exclude complex cases from expedited process and which exempt unsuccessful service of process cases from timeframes. We propose to delete existing 45 CFR 303.101(b)(4) which allows the State, if the case involves 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 proposed expedited process timeframe includes a 90% standard rather than a 100% standard, States should be able to handle all cases by expedited processes without establishing temporary orders.

As mentioned, we also propose to delete the program standard timeframes for paternity and support order establishment at 45 CFR 303.4(d) and 303.5(a). These timeframes exempt cases where the IV-D agency documents unsuccessful attempts to serve process in accordance with the State's guidelines defining diligent efforts under 45 CFR 303.3(c). The proposed timeframe would not exempt such cases. In cases where the IV-D agency is initially unsuccessful in serving process, the IV-D agency would have to continue attempting service until successful and complete case processing within the proposed timeframe unless the IV-D agency determines and documents that further locate activity is needed before process can be served.

The length of the proposed timeframe 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 the opportunity for him to voluntarily acknowledge; serving process; scheduling andconducting genetic testing; completing discovery; and scheduling and conducting trials or hearings. We also considered the amount of time that it takes for a IV-D agency to obtain test results from genetic testing laboratories in paternity cases. According to laboratories that we contacted, it takes about 3 weeks to receive the written report of results from the lab in a typical case. We encourage States to seek a quicker turnaround time when negotiating contracts with laboratories.

For support order establishment, we considered that time may be needed for contacting the noncustodial parent; attempting stipulation to an order; serving process; collecting income data and other information needed to determine the award amount; calculating the guidelines amount; and scheduling and conducting trials or 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, a IV-D agency should be able to serve process necessary for paternity and support order establishment at the same time.

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, few, if any, States currently have an array of laws which includes 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 array of requirements holds tremendous potential for expediting the process.

In particular, the mandated voluntary acknowledgment procedures should allow States to establish paternity quickly in many cases. 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% of alleged fathers voluntarily acknowledged paternity after receiving genetic test results that showed a probability of paternity.

For those cases that remain contested, the proposed regulations regarding default orders, admissibility of genetic tests, and presumptions of paternity based on genetic test results should all help to expedite the paternity determination process in contested cases. According to conversations with representatives from genetic testing laboratories, genetic testing excludes approximately 25 to 30 percent of tested men; the IV-D agency will be able to count each exclusion as a completed action underexpedited process if the paternity action is dismissed.

States may certainly go beyond the basic requirements of this proposed rule and utilize a variety of other reforms to expedite the process for both paternity establishment and support order establishment. These reforms 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 a jury trial. 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% or higher.

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, helping IV-D agencies to meet the proposed timeframe. Some States have laws which permit the alleged father to sign a stipulation both acknowledging paternity and consenting to entry of a child support judgment. In cases where such consent judgments are obtained, the amount of support must be determined in accordance with the State's guidelines for setting child support awards as specified under 45 CFR 302.56.

Encouraging the Use of Long-Arm Jurisdiction. In developing the proposed timeframe, we considered its impact on the use of long-arm jurisdiction. Federal policy has encouraged the use of long-arm jurisdiction over nonresidents in child support matters. Long-arm allows one State to maintain control over the case without having to rely on other States to take action. In paternity cases, Federal regulations at 45 CFR 303.7(b)(1) require a State to use its long-arm statute, if it has such a statute, where appropriate. The Federal Office of Child Support Enforcement has also encouraged States to use long-arm in support establishment cases. The Uniform Interstate Family Support Act (UIFSA), a model State statute designed to replace the Uniform Reciprocal Enforcement of Support Act (URESA) that has already been adopted by several States, contains a broad long-arm provision.

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 proposed expedited process timeframe in long-arm cases. Because we do not want the proposed 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, we propose that a State be given "credit" for disposing of a case using long-arm jurisdiction. Under proposed 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 15 months of locating the alleged father or noncustodial parent, the case may be counted as a success within either the 9, 12, or 15 month tier of the timeframe, regardless of when disposition occurs.

Disposition. As previously mentioned, disposition is the endpoint of the proposed expedited process timeframe for paternity and support establishment. We propose to define "disposition" in regulation at 45 CFR 303.101(b)(2)(iv) as the date on which a support obligation is officially established and/or recorded or action is dismissed. This definition codifies policy previously stated at OCSE-AT-88-19. 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, disabled, or incarcerated). Such a case would still be counted as a disposition if a duty to support is established within the timeframe.

Children Younger than Six Months of Age. The existing one-year paternity establishment timeframe at 45 CFR 303.5(a)(2) includes an exception for cases needing paternity establishment where the child is less than six months old. Under this exception, the timeframe does not begin in a case until the child reaches six months of age. The exception reflects the practice of waiting to draw blood samples for certain genetic tests until after the infant is at least six months old.

The proposed timeframe at 45 CFR 303.101(b)(2)(i) does not include this exception; the timeframe would begin with the date of locating the alleged father regardless of the age of the child. 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 32301). We have now reexamined the exception and propose to delete it.

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 red blood cell antigens, leukocyte antigens (HLA) and 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, new technology helps to address this problem. This technology includes: DNA testing which can be performed using a single spot of blood, DNAbuccal swabs where samples are taken on a swab from the baby's mouth, and umbilical cord sampling where blood samples are taken from the newborn's umbilical cord.

In light of the availability of such technologies, we propose that the proposed timeframe begin with locating the alleged father, regardless of whether the child is younger than six months of age. We believe this will encourage States to initiate the paternity establishment process as soon as possible in each case. We invite comments on this change.

We are also interested in receiving comments on any other aspect of the proposed timeframe for paternity and support order establishment.

Enforcement Timeframes. The current expedited process timeframes at existing 45 CFR 303.101(b)(2) apply to enforcement actions. Therefore, currently, from the date of service of process, disposition must occur within 3 months for 90% of cases, 6 months for 98% of cases, and 12 months for 100% of cases. As mentioned, we propose to delete this timeframe.

There are also enforcement timeframes at existing 45 CFR 303.6(c)(2) which apply to enforcement actions other than wage withholding and State/Federal income tax refund offset. These timeframes require 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.

Existing enforcement timeframes at 45 CFR 303.100 apply to 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.

For IV-D cases requiring enforcement action, we propose to replace the existing expedited process timeframe with existing timeframes at 45 CFR 303.6(c)(2) and 303.100. Proposed 45 CFR 303.101(b)(2)(ii) would require that, in order for a State to have an expedited process for enforcement, actions to enforce the support obligation must be completed within the timeframes specified in 45 CFR 303.6(c)(2) and 303.100 in IV-D cases where a support obligation has been established.

While the preamble to the Program Standards regulation indicated that the 30/60 calendar day timeframes at 45 CFR 303.6(c)(2) would apply to "consent procedures and administrative procedures such as debt collection, telephone contact, demand letters, or publication of names", we propose that this timeframe now apply to all enforcement techniques other than wage withholding and State/Federal income tax refund offset. This would include, butnot be 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 State remedies. The timeframes at 45 CFR 303.100 would apply to wage withholding cases.

Judges as Presiding Officers. We propose to delete the existing requirement at 45 CFR 303.101(a) which prohibits using a judge as a presiding officer in carrying out expedited processes by deleting the phrase "and under which the presiding officer is not a judge of the court." With this change, expedited processes would be defined in 45 CFR 303.101(a) as administrative or expedited judicial processes or both which increase effectiveness and meet processing timeframes. We are proposing that this definition apply to expedited processes for paternity establishment as well as support order establishment and enforcement.

With the addition of paternity establishment to expedited processes, it is necessary to remove the prohibition against the use of judges as presiding officers. Currently, most States use judges 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 were to suddenly and completely ban 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 proposed approach gives States more flexibility while still achieving the desired outcome--expeditious processing of cases. By allowing States to use judges, States will 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, by an extension of the court.

Allowing the use of judges as presiding officers is consistent with the statute. As specified in the Act, States already have the option of using processes in effect under the State judicial system or under State 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.

The legislative history suggests that Congress did not intend to prevent the use of judges, but rather to expedite case processing. In enacting the 1984 Amendments, Congressional conferees specified that the expedited process provision "does not mandate a particular procedure nor authorize the Federal agency to impose its views on the details of State court organization. What is required is that States adopt structures and procedures which will ensure that childsupport and paternity actions are processed in an expeditious manner." As a result, we propose that a State be able to use judges to process cases as long as it meets the expedited process timeframes and other Federal requirements.

Since judges can carry out more functions than judge surrogates, use of judges of the court may actually expedite the process in some jurisdictions, particularly in paternity establishment cases. As indicated in the final regulation implementing the Child Support Enforcement Amendments of 1984 (50 FR 19608), "We believe that Congress allowed States to exclude paternity establishment from their expedited processes to ensure that jurisdictions that wanted to have judges hear paternity cases were able to do so.... States may ... delegate more authority to [the presiding officer] based on their particular needs.... A State must delegate enough authority to presiding officers to allow them to perform in a truly expedited manner."

This proposed revision is in no way a suggestion that States 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 proposed 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.

By deleting the requirement that a presiding officer may not be a judge, the number of requests for exemptions for expedited processes will be reduced. In the case of expedited processes, a separate exemption is required for each political subdivision. Currently, over 640 jurisdictions in 24 States have individually applied for and justified an exemption to implementing an expedited process because their court system processes cases within the required timeframes. Each of these exemptions must be renewed every three years. Since exemptions are routinely granted to jurisdictions using judges that meet the expedited process timeframes, we propose to allow jurisdictions that meet the timeframes to use judges without having to go through the exemption process. Our proposal will save time and money for both local and State agencies and the Federal government, without sacrificing expediency in case processing.

This proposed revision does not alter the availability of Federal funding for administrative costs associated with decision-makers in administrative and expedited judicial processes. Nor does it change the unavailability of Federal funding for costs of compensation (salary and fringe benefits) of judges as specified in 45 CFR 304.21(b)(2).

Other Changes. We propose amending the safeguards required under 45 CFR 303.101(c) to cover paternity establishment as well as support order establishment and enforcement. We would revise 45 CFR 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 propose to amend 45 CFR 303.101(c)(3) to require that the parties be provided a copy of the paternity determination as well as the support order. Under this requirement, copies should be provided to both parents (regardless of whether the custodial parent is an AFDC or public assistance recipient) and any other State which has an assignment of support rights in the case. We propose that the remaining safeguards remain unchanged except that they would now also apply to expedited paternity processes: the due process rights of the parties involved must be protected as required by 45 CFR 303.101(c)(2); there must be written procedures for ensuring the qualification of presiding officers as required by 45 CFR 303.101(c)(4); recommendations of presiding officers may be ratified by a judge as allowed by 45 CFR 303.101(c)(5); and action taken may be reviewed under the State's generally applicable judicial procedures as provided by 45 CFR 303.101(c)(6).

We propose amending the functions of presiding officers in 45 CFR 303.101(d) to cover paternity establishment as well as support order establishment and enforcement. Proposed 45 CFR 303.101(d)(2) would require presiding officers to evaluate evidence and make recommendations to establish paternity as well as to establish and enforce orders. Proposed 45 CFR 303.101(d)(3) would require 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. As discussed, voluntary acknowledgments and consent judgments are valuable in expediting the process and reducing conflict. In cases where a consent judgment is obtained, guidelines for setting the support award amount must still be used in accordance with 45 CFR 302.56.

Presiding officers would continue to enter default orders as required. However, we propose to revise this requirement at 45 CFR 303.101(d)(4) to reflect the language of the default order provision in proposed 45 CFR 302.70(a)(5)(viii) and 303.5(f). As amended, 45 CFR 303.101(d)(4) would require that, as one of their functions, presiding officers enter default orders not only in cases where the absent parent does not respond to service within a reasonable period of time specified by the State (as required under current regulation) but also in cases where the defendant fails to appear at a hearing. This default order provision applies to paternity as well as support order establishment and enforcement cases worked via expedited process. Before a default order could be entered, this proposed rule would require a showing of service of process in accordance with State law and any additional showingrequired by State law.

We also propose to add a new function for presiding officers in paternity cases at 45 CFR 303.101(d)(5)--ordering genetic tests in contested paternity cases in accordance with 45 CFR 303.5(d)(1). Genetic testing is essential to expediting paternity determination and should occur as soon as possible after an alleged father declines to voluntarily acknowledge paternity. Many fathers will voluntarily acknowledge paternity upon seeing test results which indicate a high probability of paternity. Even if a man does not voluntarily acknowledge paternity, tests results can offer convincing evidence that expedites the process in a contested case.

We also propose to amend 45 CFR 303.101(e) regarding exemptions from expedited process to recognize that expedited process now includes paternity establishment. Under the revised provision, a State would be 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 45 CFR 302.70(d).

Executive Order 12291

The Secretary has determined, in accordance with Executive Order 12291, that this proposed rule does not constitute a "major" rule. A major rule is one that is likely to result in:

(1) An annual effect on the economy of $100 million;

(2) A major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or

(3) 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.

This rule implements specific requirements of Public Law 103-66. We expect the additional costs to the States will be less than $100 million. Any costs will be administrative and can be minimized through careful State planning. The hospital-based programs mandated by new section 466(a)(5)(C) of the Act should result in administrative cost savings that exceed increased administrative costs as well as increased collections through the initiation of child support collections earlier than might otherwise have occurred.

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 proposed regulation will not result in a significant impact on a substantialnumber of small entities. The primary impact is on State governments and individuals, which are not considered small entities under the act. Also, while the Federal law 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.

List of Subjects in 45 CFR Parts 302, 303, and 304

Child support, Grant programs--social programs, Reporting and record keeping requirements.

[Catalog of Federal Domestic Assistance Program No. 93.023, Child Support Enforcement Program]

Dated: October 13, 1993

_________________________

Mary Jo Bane

Assistant Secretary

for Children and Families

Approved: October 17, 1993

___________________________

Donna E. Shalala

Secretary

For the reasons set out in the preamble, we propose to amend title 45 chapter III of the Code of Federal Regulations as follows:

PART 301 -- STATE PLAN APPROVAL AND GRANT PROCEDURES

1. The authority citation for Part 301 continues to read as follows:

Authority: 42 U.S.C. 651 through 658, 660, 664, 666, 667, 1301, and 1302.

2. Section 301.1 is amended by adding the following definition of the term "Berthing hospital" after the definition of the term "Assignment":

õ301.1 General definitions

* * * * *

"Berthing hospital" means a hospital that has a licensed obstetric care unit or is licensed to provide obstetric services, or a licensed berthing center associated with a hospital. A berthing center is a facility outside a hospital that provides maternity services.

* * * * *

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:

õ302.70 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 obligations having the same force and effect as those established through full judicial process, in accordance with the requirements set forth in õ303.101 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 õ303.5(g) for the voluntary acknowledgment of paternity during the period immediately preceding or following the birth of a child to an

unmarried mother, and a requirement that all public and private berthing hospitals participate in the hospital-based program defined in õ303.5(g)(2);

(B) A process for voluntarily acknowledging paternity outside of hospitals;

(C) A requirement that a voluntary acknowledgment be signed by both parents, and that the parents' signatures be authenticated by a notary or witness(es);

(D) A voluntary acknowledgment form that includes, at a minimum, instructions for filing the acknowledgment with the designated agency in accordance with paragraph (a)(5)(iii)(E) of this section, and lines for the parents' social security numbers and addresses; and

(E) 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.

(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 or genetic test results meeting or exceeding the State's threshold probability established in accordance with paragraph (a)(5)(vi) of this section must be recognized as a basis for seeking a support order without first requiring any further proceedings to establish paternity; and

(viii) Procedures requiring a default order to be entered in a contested paternity case upon a showing that process was served on the defendant in accordance with State law, that the defendant has failed to appear at a hearing or respond within a reasonable period of time specified by the State, 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) to read as follows:

õ303.4 Establishment of support obligations.

* * * * *

(d) Seek a support order based on a voluntary acknowledgment or genetic test results meeting or exceeding the State's threshold probability in accordance with õ302.70(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:

õ303.5 Establishment of paternity.

(a) For all cases referred to the IV-D agency or applying for services under õ302.33 of this chapter in which paternity has not been established and a voluntary acknowledgment has not beenobtained, the IV-D agency must:

(1) Provide an alleged father the opportunity to voluntarily acknowledge paternity in accordance with õ302.70(a)(5)(iii); and

(2) Attempt to establish paternity by legal process established under State law if he fails to voluntarily acknowledge paternity.

* * * * *

(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 appear at a hearing or respond within a reasonable period of time specified by the State, and any additional showing required by State law, in accordance with õ302.70(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 berthing hospital. These programs must be operational in berthing hospitals statewide no later than January 1, 1995.

(2) During the period immediately preceding or following 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, 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;

(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 to the agency designated by the State in accordance with õ302.70(a)(5)(iii)(E).

(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 provide to all public and private berthing hospitals in the State (i) written materials about paternity establishment, (ii) forms necessary to voluntarily acknowledge paternity, and (iii) a written description of the rights and responsibilities of acknowledging paternity.

(5) The State must provide training, guidance, and written instructions regarding voluntary acknowledgment of paternity, as necessary to operate the hospital-based program.

(6) The State must assess each berthing hospital's program on at least an annual basis.

(h) In IV-D cases needing paternity establishment, the IV-D agency must determine if a voluntary acknowledgment has been filed with the agency designated by the State in accordance with õ302.70(a)(5)(iii)(E).

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:

õ303.101 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 obligations must be completed from the date of locating the alleged father or noncustodial parent to the time of disposition within the following timeframes: (A) 75 percent in 9 months; (B) 85 percent in 12 months; and (C) 90 percent in 15 months;

(ii) In IV-D cases where a support obligation has been established, actions to enforce the support obligation must be completed within the timeframes specified in õõ303.6(c)(2) and 303.100;

(iii) For purposes of the timeframe at õ303.101(b)(2)(i), in cases where the IV-D agency uses long-arm jurisdiction and disposition occurs within 15 months of locating the alleged fatheror noncustodial parent, the case may be counted as a success within either the 9, 12, or 15 month tier of the timeframe, regardless of when disposition occurs.

(iv) Disposition, as used in paragraphs (b)(2)(i) and (iii) of this section, means the date on which a support obligation is officially established and/or recorded or 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 paternity determination and 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 has failed to appear at a hearing or respond within a reasonable period of time specified by the State, and any additional showing required by State law; and

(5) Ordering genetic tests in contested paternity cases in accordance with õ303.5(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 õ302.70(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 paragraph (b)(2)(vi) through (viii) to read as follows:

õ304.20 Availability and rate of Federal financial participation.

* * * * *

(b) * * *

(2) The establishment of paternity including:

* * * * *

(vi) Payments up to $20 to berthing hospitals and other entities that provide prenatal or berthing services for each voluntary acknowledgment obtained;

(vii) Developing and providing to berthing hospitals and other entities that provide prenatal or berthing 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 õ303.5(g)(2).

* * * * *

11. Section 304.23 is amended by revising paragraph (d) to read:

õ304.23 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 õõ304.20(b)(2)(viii) and 304.21.

* * * * *

[FR Doc. 93-28783 Filed 11-26-93: 8:45am]

Billing Code 4190-11-M