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NPRM: Safeguarding Information; Federal Income Tax Refund Offset

AT-91-11

Published: December 4, 1991
Information About:
State/Local Child Support Agencies
Types:
Policy, Action Transmittals (AT), Regulations
Tags:
Collection & Enforcement Systems, Safeguarding

ACTION TRANSMITTAL

OCSE-AT-91-11

December 4, 1991

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

SUBJECT:Proposed Rule - Safeguarding Information; Federal Income Tax Refund Offset

ATTACHMENT:This proposed rule would implement sections 5011(a) and (b) of P.L. 101-508, the Omnibus Budget Reconciliation Act of 1990, by extending indefinitely the use of the Federal income tax refund offset process to non-AFDC cases and allowing use of this process for non-AFDC cases in which support is due: (1) On behalf of certain disabled adults with a current support order; and (2) on behalf of a spouse when the custodial parent is living with the child and spousal support and child support are included in the same support order. In addition, the proposed rule would amend the safeguarding information requirements to permit disclosure to the appropriate agency or official of information regarding an applicant or recipient of IV-D services that involves known or suspected instances of mental or physical injury, sexual abuse or exploitation, or negligent treatment of a child receiving AFDC.

COMMENT PERIOD:Consideration will be given to written comments received by January 18, 1992. Address comments to: Deputy Director, Office of Child Support Enforcement, Department of Health and Human Services, 370 L'Enfant Promenade, S.W., Washington, DC 20447, Attention: Director, Policy and Planning Division.

REGULATION 45 CFR Parts 301 and 303

REFERENCE:

INQUIRIES TO: ACF Regional Administrators

Allie Page Matthews

Deputy Director

Office of Child Support Enforcement

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

Office of Child Support Enforcement

45 CFR Parts 301 and 303

RIN 0970-AA88

SUBJECT:Safeguarding Information; Federal Income Tax Refund Offset

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

ACTION: Notice of proposed rulemaking

SUMMARY: This proposed rule would implement sections 5011(a) and (b) of P.L. 101-508, the Omnibus Budget Reconciliation Act of 1990, by extending indefinitely the use of the Federal income tax refund offset process to non-AFDC cases and allowing use of this process for non-AFDC cases in which support is due: (1) On behalf of certain disabled adults with a current support order; and (2) on behalf of a spouse when the custodial parent is living with the child and spousal support and child support are included in the same support order. In addition, the proposed rule would amend the safeguarding information requirements to permit disclosure to the appropriate agency or official of information regarding an applicant or recipient of IV-D services, that involves known or suspected instances of mental or physical injury, sexual abuse or exploitation, or negligent treatment a child receiving AFDC.

DATES:Consideration will be given to written comments received by January 17, 1992.

FOR FURTHER INFORMATION CONTACT: Lourdes Henry, OCSE Division of Policy and Planning, (202) 401-5440.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

This proposed rule contains no information collection requirements that are subject to OMB review under the Paperwork Reduction Act of 1980 (P.L. 96-511).

Statutory Authority

These proposed regulations are published under the authority of the following provisions of the Social Security Act (the Act): (1) section 464(a)(2)(B), as amended by section 5011(a) of P.L.101-508, which deleted the January 1, 1991 cut-off date for use of the Federal income tax refund offset process in non-AFDC IV-D cases; (2) section 464(c), as amended by section 5011(b) of P.L. 101-508, to permit the use of the Federal income tax refund offset process in non-AFDC cases for the collection of past-due support due adult disabled children and for the collection of certain spousal support; and, (3) section 1102 which 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 and Description of Regulatory Provisions

1. Safeguarding of Information

In the course of performing their duties with regard to child support activities, child support practitioners may become aware that a child has been or potentially could be the victim of child abuse or neglect. Although they may feel compelled to report such suspicions or evidence, nondisclosure laws and rules such as the provisions in 45 CFR 303.21 may impose restrictions. Furthermore, all States have laws governing mandatory reporting of suspected child abuse or neglect. These laws define such elements as reportable conditions, persons required to report, and sanctions for failure to report. The mutual existence of Federal non-disclosure laws and Federally required State laws mandating reporting of child abuse and neglect laws frequently causes dilemmas for professionals subject to the provisions of both laws.

Currently, Federal regulations at 45 CFR 303.21 limit the use or disclosure of information concerning applicants or recipients of support enforcement services to purposes directly connected with the administration of the plan or program approved under Parts A, B, C, or D of Title IV, or under Titles II, X, XIV, XVI, XIX or XX or the supplemental security income program established under Title XVI; any investigation, prosecution or criminal or civil proceeding conducted in connection with the administration of any such plan or program; and the administration of any other Federal or Federally assisted program which provides assistance, in cash or in kind, or services, directly to individuals on the basis of need. Current regulations also prohibit the disclosure to any committee or legislative body (Federal, State or local) of any information that identifies by name or address any such applicant or recipient.

Section 5054 of P.L. 101-508, the Omnibus Budget Reconciliation Act of 1990, amends section 402(a)(9) of the Act to allow disclosure to appropriate authorities of information on known or suspected child abuse or neglect in AFDC cases. Section 5054 also amends section 402(a)(16) of the Act to require the disclosure to an appropriate agency or official of information on known or suspected instances of physical or mental injury, sexual abuse or exploitation, or negligent treatment or maltreatment of a child receiving AFDC. Because reporting of known or suspected child abuse or neglect is now required as part of a State's plan for administering its Title IV-A program, we believe that authority exists for amending the current OCSE regulations at 45 CFR 303.21 to permit similar disclosure in the case of Title IV-D applicants and recipients. We further believe that the proposed amendment would eliminate the dilemma often faced by child support practitioners. Therefore, we propose to amend 303.21 by adding a new paragraph (a)(4) which would allow reporting to an appropriate agency or official known or suspected instances ofphysical or mental injury, sexual abuse or exploitation, or negligent treatment of a child who is the subject of a child support enforcement activity under circumstances which indicate that the child's health or welfare is threatened thereby.

In addition, section 202(a) of the Family Support Act of 1988 repealed part C of title IV of the Act. Therefore, we propose to delete the reference to part C from õ303.21(a)(1).

2. Requests for Collection of Past-Due Support by Federal Income Tax Refund Offset

Currently, 45 CFR 303.72(a)(3)(i) allows the use of the Federal income tax refund offset to collect past-due support in non-AFDC cases if the support is owed to or on behalf of a minor child. Referral of spousal support and support due an individual who is no longer a minor in non-AFDC cases is prohibited. For non-AFDC referrals, the State must differentiate between spousal and child support and only submit amounts owed on behalf of a minor child as defined by State law. Furthermore, the statute and regulations do not allow non-AFDC referrals on behalf of an individual who is no longer a minor even if the arrearage accrued while the person was a minor.

Section 5011(b) of the Omnibus Budget Reconciliation Act of 1990 (P.L. 101-508), amends section 464(c) of the Act by: (1) extending use of the Federal tax refund offset process to non-AFDC IV-D cases in which past-due support is due on behalf of adult disabled children for whom there is a support order in effect, and where the child, while a minor, was determined to be disabled under title II (Federal Old-Age, Survivors, and Disability Insurance Benefits program), or title XVI (Supplemental Security Income for the Aged, Blind and Disabled program) of the Act, and to non-AFDC cases in which spousal support is past due when spousal support and child support are included in the same support order and the spouse, or ex-spouse lives with the child; and (2) adding the term "qualified child" which means a child who is a minor, or who, while a minor, was determined to be disabled under title II or XVI of the Act, and for whom an order for support is in effect. This extension of the Federal tax refund offset process did not extend the availability of the process to collection of arrearages in non-AFDC cases for non-disabled individuals even if those arrearages accrued while the person was a minor.

To implement these changes, we are proposing to revise 45 CFR 303.72(a)(3)(i) to allow States to request collection by Federal income tax refund offset past-due support owed in non-AFDC cases to a qualified child (or a qualified child and the parent with whom the child is living if the same support order includes support for the child and the parent). As a parallel change, õ301.1 would be amended by revising the definition of "past-due support" to specify that, for purposes of Federal income tax refund offset of support due an individual who is receiving services under õ302.33 of this chapter, "past-duesupport" means support owed to or on behalf of a qualified child, or a qualified child and the parent with whom the child is living if the same support order includes support for the child. We would also define "qualified child" as used in the definitions of "past-due support" to mean a child who is a minor or who, while a minor, was determined to be disabled under title II of XVI and for whom an order for support is in effect.

In addition, section 5011(a) amended section 464(a)(2)(B) of the Act by deleting the January 1, 1991 cut-off date for use of the Federal income tax refund offset process in non-AFDC IV-D cases. Therefore, we are proposing to delete the sunset provision at õ303.72(k) which limited offset of Federal income tax refunds to satisfy past-due support in non-AFDC cases to refunds payable after December 31, 1985 and before January 1, 1991.

Executive Order 12291

The Secretary has determined, in accordance with Executive Order 12291, that this 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 proposed rule is expected to have an insignificant impact on State expenditures because the costs of implementing these changes will be minimal. We believe that increased collections will far exceed increased administrative costs.

Regulatory Flexibility Analysis

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

List of Subjects in 45 CFR Parts 301 and 303

Child support, Grant programs--social programs.

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

Dated:__June 14, 1991.____

Jo Anne B. Barnhart

Assistant Secretary for Children and Families

Dated:___October 22, 1991____

Louis W. Sullivan, M.D.

Secretary

For the reasons set forth in the preamble, we amend 45 CFR chapter III 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 and 1302.

2. Section 301.1 is amended by revising the last sentence in the paragraph titled "Past-due support" and by adding a definition of "Qualified child" in alphabetical order to read as follows:

õ301.1 General definitions.

* * * * *

"Past-due support" * * * For purposes of referral for Federal income tax refund offset of support due an individual who is receiving services under õ302.33 of this chapter, "past-due support" means support owed to or on behalf of a qualified child, or a qualified child and the parent with whom the child is living if the same support order includes support for the child and the parent. * * * * *

"Qualified child" means a child who is a minor or who, while a minor, was determined to be disabled under title II or XVI of the Act, and for whom a support order is in effect.

* * * * *

PART 303--STANDARDS FOR PROGRAM OPERATIONS

3. 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).

4. Section 303.21 is amended by removing the letter "C" in paragraph (a)(1); removing the word "and" the semicolon at the end of paragraph (a)(3) and adding a new paragraph (a)(4) to read as follows:

õ303.21 Safeguarding information.

(a) * * *

(4) Reporting to an appropriate agency or official, information on known or suspected instances of physical or mental injury, sexual abuse or exploitation, or negligent treatment or maltreatment of a child who is the subject of a child supportenforcement activity under circumstances which indicate that the child's health or welfare is threatened thereby.

* * * * *

5. Section 303.72 is amended by revising paragraph (a)(3)(i) and by deleting paragraph (k) to read as follows:

õ303.72 Requests for collection of past-due support by Federal tax refund offset.

(a) * * *

(3) * * *

(i) The support is owed to or on behalf of a qualified child, or a qualified child and the parent with whom the child is living if the same support order includes support for the child and the parent.

* * * * *

(FR Doc 91-27054 Filed 11-15-9) 6:45 am

Billing Code 4190-11-M