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NPRM: Prohibition of Federal Funding for Costs of Guardians Ad Litem

AT-91-03

Published: June 27, 1991
Information About:
Other Public Partners, Courts, State/Local Child Support Agencies
Topics:
Funding, Federal Financial Participation (FFP)
Types:
Policy, Action Transmittals (AT), Regulations

ACTION TRANSMITTAL

OCSE-AT-91-03

JUNE 27, 1991

PROPOSED REGULATION

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

SUBJECT:Prohibition of Federal Funding for Costs of Guardians Ad Litem

ATTACHMENT:Attached is a proposed rule that would add the costs of guardians ad litem appointed to represent minors in IV-D actions to the expenditures for which Federal Financial Participation (FFP) is not available. This change is being proposed in order to make clear in regulations OCSE policy that cost of guardians ad litem are general State costs and are, therefore, not eligible for FFP.

Please note the following technical corrections to the text: 1) Page 56 FR 27723, Background section, second paragraph, line 19, "allowable" should read "allocable"; 2) Page 56 FR 27724, Background section, third paragraph, 1st word, "Of" should read "In"; 3) Page 56 FR 27724, Regulatory Provisions section, first paragraph, line 5, "operations" should read "operation"; 4) Page 56 FR 27724, third paragraph, line 2, after the 8th word, "neglect", add "laws mandate"; and 5) Page 56 FR 27724, regulatory language section, number one, Authority, reads, "139b(o)", should read, "1396b(o)."

REGULATION REFERENCE:45 CFR 304.23

DATES:Consideration will be given to written comments received by August 16, 1991. Address comments to: Deputy Director, Office of Child Support Enforcement, Department of Health and Human Services, 370 L'Enfant Promenade, S.W., Washington, D.C. 20447, Attention: Director, and Planning Division.

INQUIRIES:OCSE Regional Representatives

_________________________

Allie Page Matthews

Deputy Director

Office of Child Support

Enforcement

Federal Register Vol. 56 No. 116 / Monday, June 17, 1991 /Proposed Rules 27723

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of Child Support Enforcement

45 CFR Part 304

RIN 0970-AA86

Child Support Enforcement Program;

Prohibition of Federal Funding for

Costs of Guardians Ad Litem

AGENCY: Office of Child Support Enforcement (OCSE)/HHS.

ACTION: Notice of proposed rulemaking

SUMMARY: This proposed rule would amend Federal regulations to prohibit Federal funding under the Child Support Enforcement (IV-D) program for costs of guardians ad litem appointed to represent minors in IV-D actions. This change would made clear in regulation OCSE policy that costs of guardians ad litem are general State costs and are, therefore, not eligible for Federal financial participation (FFP).

DATES: Consideration will be given to comments received by August 16,1991.

ADDRESSES: Send comments to Director, Office of Child Support Enforcement, Family Support Administration, 370 L'Enfant Promenade, S.W., 4th floor, Washington, DC 20447. Attention: Director, Policy and Planning Division, Mail Stop: OCSE/PPD. Comments will be available for public inspection Monday through Friday, 8:30 a.m. to 5 p.m. on the 4th floor of the Department's offices at the above address.

FOR FURTHER INFORMATION CONTACT: Marilyn R. Cohen at (202) 401-5366.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

This regulation contains no information collection requirements that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1980 (Pub. L. 96-511).

Statutory Authority

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

Background

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

Federal regulations at õ304.10 provide that as a condition for FFP, the provisions of 45 CFR part 74 which establish uniform administrative requirements and cost principles shall apply to all grants made to States under the IV-D program. Guidance for determining which services and activities meet the necessary expenditure test is provided by the Office of Management and Budget's (OMB) Circular A-87, "Cost Principles for State and Local Governments". Section C.1.a, made applicable here by 45 CFR 74-.171, provides that allowable costs must "(b)e necessary and reasonable for proper and efficient administration of the grant programs, be allowable thereto under these principles, and except as specifically provided herein, not be a general expense required to carry out the overall responsibilities of State [or] local * * * governments."

If the context of the IV-D program, expenditures are considered general State expenses if they are incurred as a result of general State requirements which are neither dependent on nor confined to the IV-D program. Therefore, any costs which result from services and activities which were not instituted solely for IV-D child support enforcement purposes would not be reimbursed. In the past, requests for reimbursement of costs for legislative expenditures, certain judicial costs, and costs for incarceration of delinquent obligors were denied because these costs are general State expenses.

Recently, States have requested FFP for costs of guardians ad litem to represent minors in IV-D litigation. For the most part, these States have general State laws which require that guardians ad litem must be appointed in any actions brought against a minor, including a minor defendant (e.g., putative father). The generally understood purpose of a guardian ad litem is to provide legal counsel. Black's Law Dictionary defines a guardian ad litem as a person "appointed by the court to prosecute or defend, in behalf of an infant or incompetent, a suit to which he is a party, and such guardian is considered an officer of the court to represent the interests of the infant or incompetent in the litigation." Although we agree that there may be a necessary duty to be performed by a guardian ad litem in the general sense, the primary issue to consider in the context ofIV-D funding is whether the costs of guardians ad litem are appropriately the responsibility of the IV-D program or a general State expense required to carry out the overall responsibilities of State and local governments. As discussed in more detail below, we do not believe that the costs of guardians ad litem are necessary and reasonable costs associated with the proper and efficient administration of the Title IV-D program. This regulation proposes to add these costs to the list of expenditures for which FFP is not available.

Regulatory Provisions

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

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

In nearly every State, child abuse and neglect that a guardian ad litem be appointed for the child in all civil judicial proceedings arising from a report of abuse or neglect. Hence, juvenile and family courts, before whom these issues are adjudicated, routinely appoint guardian ad litem to represent the minor children involved.

These examples illustrate that the use of guardian ad litem is not restricted to IV-D purposes. In fact, States customarily engage guardians ad litem on a routine basis in a variety of contexts where the interests of children may be affected by the actions taken or result accomplished. These are general state expenses which arise from a basic recognition that the child's interests in many actions may differ from those of its parent or the State. As a result, laws provide that children are entitled to legal counsel when a vital interest of theirs is being litigated. Therefore, the costs of guardians ad litem would be incurred in the absence of the IV-D program. We believe these costs are a generally responsibility of State or local governments.

Accordingly, we propose to amend 45 CFR 304.23 by adding a new paragraph (k) which would prohibit Federal funding for costs of guardians ad litem appointed to represent minors in IV-Dactions.

Executive Order 12291

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

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

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

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

Although this proposed rule prohibits Federal funding for certain costs, we expect the additional costs to States to be less than $100 million.

Regulatory Flexibility Analysis

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

List of Subjects in 45 CFR Part 304

Child support, grant programs/social programs.

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

Dated: March 13, 1991.

Jo Anne B. Barnhart,

Director, Office of Child Support Enforcement.

Approved: May 10, 1991.

Louis W. Sullivan,

Secretary.

PART 304--[AMENDED]

For the reasons discussed above, we propose to amend 45 CFR part 304 as follows:

1. The authority citation for part 304 continues to read as follows:

Authority: 42 U.S.C 651 through 655, 657, 1302, 1396a(a)(25), 1396b(d)(2), 139b(o), 1396b(p), 1396(k).

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

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

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

(k) The costs of guardians ad litem appointed to represent minors in IV-D actions.

[FR Doc. 91-14334 Filed 6-14-91; 8:45 am]

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