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Procedures for Determining that a State IV-D Plan is Disapproved

AT-86-21

Published: December 31, 1986
Information About:
State/Local Child Support Agencies
Topics:
Federal Reporting, State Plan
Types:
Policy, Action Transmittals (AT)

ACTION TRANSMITTAL

OCSE-AT-86-21

December 31, 1986

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

SUBJECT: Procedures for Determining that a State IV-D Plan is Disapproved

BACKGROUND:Section 455(a)(1)(A) of the Social Security Act (the Act) specifies that funds appropriated under title IV-D of the Act shall be paid to States with approved State IV-D plans. There is no authority to expend Federal funds under title IV-D of the Act for the operation of a State Child Support Enforcement Program unless such State has an approved State IV-D plan. Congress has made no provision for limited or partial suspension of funds, as it did under section 404(a) of the Act for AFDC programs.

Section 454 of the Act sets forth the statutory requisites for the State IV-D plan. In addition, regulations at 45 CFR 301.10 define the State IV-D plan as a comprehensive statement submitted by the IV-D agency describing the nature and scope of its program. The State IV-D plan contains all the information necessary for the Office of child Support Enforcement (OCSE) to determine whether the plan can be approved, as a basis for Federal financial participation in the State IV-D program.

Section 452(a)(3) of the Act requires that the Director of the Office of Child Support Enforcement review and approve State plans for Child Support Enforcement programs under title IV-D of the Act. The authority to approve State plans is delegated to the Regional Office, but the Director retains authority for determining that a State IV-D plan is not approvable.

Section 402(a)(27) of the Act provides that an approved State IV-D plan is a requirement for approval of a State plan under title IV-A. If a State IV-D plan is disapproved, Federal IV-A funding may be reduced pursuant to section 404(d) of theAct. A reduction under section 404(d) will be imposed in accordance with section 403(h) of the Act.

The Child Support Enforcement Amendments of 1984, P.L. 98-378, created a new section 466 of the Act which requires that all States, as a condition for approval of their State IV-D plan, must have in effect laws requiring the use of certain mandatory procedures to increase the effectiveness of their Child Support Enforcement programs. As a condition for State plan approval, section 454(20) of the Act provides that, to the extent required by section 466, States must have laws in effect and implement the procedures prescribed in or pursuant to such laws. For States which required legislation in order to conform their State IV-D plans to the revised statute, the requirement was delayed until the beginning of the fourth month beginning after the end of the first session of the State legislature which ends on or after October 1, 1985. By this date, a State must have enacted any required legislation. By the end of the quarter in which this date occurs, the State must submit new or amended State plan material to the OCSE Regional Office. This deadline for submitting State plan material has passed with respect to a number of States, and is imminent for the majority of States.

OCSE has been tracking the progress of each of the States in enacting the new mandatory laws and is noting the date when each States's legislative session ends in order to ascertain when these laws are required to be in State plan material for approval by OCSE in order to operate a Child Support Enforcement program according to the requirements of title IV-D of the Act. If a State fails to submit the necessary State plan amendments, OCSE will have to determine that the State does not have an approvable State Plan.

A determination that a State IV-D plan is disapproved will result in immediate suspension of all Federal payments for the State's child support enforcement program, and such payments will continue to be withheld until the State IV-D plan can be approved by OCSE. If a State is dissatisfied with the Director's decision, reconsideration may be requested pursuant to 45 CFR 301.14. Withholding of Federal payments cannot be stayed pending reconsideration.

Although it is not required under Title IV-D of the Act, OCSE will give States an advance notice of"Intent to Disapprove" a previously approved State IV-D plan. The State will then be permitted the opportunity to waive reconsideration of the Director's final decision and to exercise, prior to the State plan approval/disapproval decision, the right to a hearing under the procedures set forth at 45 CFR Part 213. If the State elects to pursue its hearing rights prior to issuance of the Director's decision, no further administrative appeal will be allowed.

CONTENT: This action transmittal addresses the process for disapproving a State IV-D plan and the procedures for taking subsequent action to withhold Federal payments under title IV-D of the Act, including provision for notice and an optional hearing to States prior to disapproval.

INQUIRIES TO: OCSE Regional Representatives

_________________________

Director

Office of Child Support

Enforcement

I. NOTICE OF INTENT TO DISAPPROVE

The Director of OCSE will issue a Notice of Intent to Disapprove a State Plan to the State umbrella agency head when he has determined that either of the following situations exist:

A.Pursuant to the requirements at 45 CFR 301.13(d) the State IV-D plan no longer meets the requirements for an approved State plan based on relevant Federal statutes and guidelines.

B.Pursuant to the requirements at 45 CFR 301.13(e) of (f) the State IV-D plan or amendment submitted for approval does not meet the requirements under title IV-D of the Act and regulations issued pursuant to the Act.

II. NOTICE OF OPPORTUNITY FOR HEARING

The Notice of Intent to Disapprove issued by the Director will provide opportunity for the State to request a hearing prior to issuance of the final decision if the State waives its right to a reconsideration of the Director's decision under 45 CFR 301.14. The State must request a hearing within 60 days of the date of the Notice of Intent to Disapprove. If the State does not request a hearing, the Director shall proceed according to the procedures set forth under Determination to Withhold outlined below.

Upon request of the State for a hearing, the Director will issue a Notice of Hearing which will state the time and place of the hearing, the issues which will be considered, and shall be published in the Federal Resister. The hearing procedures contained in regulations at 45 CFR Part 213 shall apply to these proceedings.

III. NEGOTIATIONS

As provided in regulations at 45 CFR 213.1(b) the hearing process does not preclude or limit negotiations between OCSE and the State, whether before, during or after the hearing to resolve the issues which are, or otherwise would be, considered at the hearing. Such negotiations and resolution of issues are not part of the hearing, and are not governed by the hearing procedures, except as expressly provided for in such procedures.

IV. DETERMINATION TO WITHHOLD

If the Director of OCSE concludes that the State does not have an approved State IV-D plan under section I of these instructions, he will notify the State that further Federal payments under title IV-D of the Act will not be made to the State until a State IV-D plan is submitted and approved. Until a State IV-D plan is approved, no further federal payments under title IV-D will be made to the State for any child support enforcement activities. Pursuant to 45 CFR 213.33, the effective date for the withholding of Federal funds shall not be earlier than the date of the Director's decision and shall not be later than the first day the next calendar quarter following such decision.

V. RECONSIDERATION

Any State which has not waived its right to reconsideration and is dissatisfied with the Director's decision that the State does not have an approvable State plan may request reconsideration of the decision pursuant to regulations at 45 CFR 301.14. Funding, however, will be suspended and may not be restored unless the Director subsequently determines that the original decision to withhold Federal IV-D funding was incorrect.

102 STAT. 2348

42 USC 652

Effective Date

Reports.

42 USC 666.

42 USC 654

42 USC 658

Effective Date.

42 USC 652 note.

42 USC 654 note.

42 USC 652

note.

42 USC 655

42 USC 655 note.

Subtitle B - Establishment of Paternity

SEC 111.PERFORMANCE STANDARDS FOR STATE PATERNITY ESTABLISHMENT PROGRAMS.

(a) STANDARDS FOR STATE PROGRAMS - Section 452 of the Social Security Act is amended by adding at the end the following new subsection:

"(g)(1) A state's program under this part shall be found, for purposes of section 403(h), not to have complied substantially with the requuirements of this part unless, for any fiscal year beginning on or after October 1, 1991, its paternity establishment percentage for such fiscal year equals or exceeds -

"(A) 50 percent;

"(B) the paternity establishment percentage of the State for the fiscal year 1988, increased by the applicable number of percentage points; or

"(C) the paternity establishment percentage determined with respect to all States for such fiscal year.

"(2) For purposes of this section -

"(A) the term 'paternity establishment percentage' means, with respect to a State (or all States, as the case may be) for a fiscal year, the ratio (expressed as a percentage) that the total number of children -

"(i) who have been born out of wedlock,

"(ii)(I) except as provided in the last sentence of this paragraph, with respect to whom aid is being paid under the State's plan approved under part A (or under all such plans) for such fiscal year, or (II) with respect to whom services are being provided under the State's plan approved under this part (or under all such plans) for the fiscal year pursuant to an application submitted under section 454(6), and

"(iii) the paternity of whom has been established, bears to the total number of children who have been born out of wedlock and (except as provided in such last sentence) with respect to whom aid is being paid under the State's plan approved under part A (or under all such plans) for such fiscal year or with respect to whom services are being provided under the State's plan approved under this part (or under all such plans) for the fiscal year pursuant to an application submitted under section 454(6); and

"(b) the applicable number of percentage points multiplied by the number of fiscal years after percentage points multiplied by the number of fiscal years after the fiscal year 1989 and before the beginning of such fiscal year.

For purposes of subparagraph (A), the total number of children shall not include any child who is a dependent child by reason of the death of a parent or any childwith respect to whom an applicant or recipient is found to have good cause for refusing to cooperate under section 402(a)(26).

"(3)(A) The requirements of this subsection are in addition to and shall not supplant any other requirement (that is not inconsistent with such requirements) established in regulations by the Secretary for the purpose of determining (for purposes of section 403(h)) whether the program of a state operated under this part shall be treated as complying substantially with the requirements of this part.

"(B) The Secretary may modify the requirments of this subsection to take into account such additional variables as the Secretary identifies (including the percentage of children born out-of-wedlock in a State) that affect the ability of a State to meet the requirements of this subsection.

"(C) The Secretary shall submit an annual report to the Congress that sets forth the data upon which the paternity establishment percentages for States for a fiscal year are based, lists any additional variables the Secretary has identified under subparagraph (A), and describes State performance in establishing paternity.".

(b) GENETIC TESTS MAY BE REQUIRED BY CONTESTING PARTY. - Section 466(a)(5) of such Act is amended -

(1) by inserting "(A)" after "(5)"; and

(2) by adding at the end the following new subparagraph:

"(B) Procedures under which the State is required (except in cases where the individual involved has been found under section 402(a)(26)(B) to have good cause for refusing to cooperate) to require the child and al other parties, in a contested paternity case, to submit to genetic tests upon the request of any such party.".

(c) STATES MAY CHARGE INDIVDIUALS NOT RECEIVING AFDC FOR COSTS OF GENETIC TESTS TO ESTABLISH PATERNITY. -Section 454(6) of such Act is amended -

(1) by redesignating clause (D) as clause (E); and

(2) by inserting "(D) a fee (in accordance with regulations of the Secretary) for performing genetic tests may be imposed on any individual who is not a recipient of aid under a State plan approved under part A," after "section 464(a)(2),".

(d) ENCOURAGEMENT OF CIVIL PROCESSES. - Part D of title IV of such act is amended by adding at the end the following new section:

"ENCOURAGEMENT OF STATES TO ADOPT SIMPLE CIVIL PROCESS FOR VOLUNTARILY ACKNOWLEDGING PATERNITY AND A CIVIL PROCEDURE FOR ESTABLISHING PATERNITY IN CONTESTED CASES

"SEC. 468. In the administration of the childsupport enforcement program under this part, each State is encouraged to establish and implement a simple civil process for voluntarily acknowledging paternity and a civil procedure for establishing paternity in contested cases.".

(e) REQUIREMENT TO PERMIT PATERNITY ESTABLISHMENT FOR CHILD UNDER 18. - Section 466 (a)(5)(A) of such Act (as so designated by subsection (b) of this section) is amended -

(1) by inserting "(i)" before "(A)"; and

(2) by inserting at the end the following new clause:

"(ii) As of August 16, 1984, the requirement of clause (i) shall aso apply to any child for whom paternity has not yet been established and any child for whom a paternity action was brought but dismissed because a statute of limitations of less than 18 years was then in effect in the State.".

(f) EFFECTIVE DATE; IMPLEMENTATION. - (1) The amendments made by subsections (a), (d), and (e) shall become effective on the date of the enactment of this Act.

(2) the amendments made by subsections (b) and (c) shall become effective on the first day of the first month beginning one year or more after the date of the enactment of this Act.

(3) The Secretary of Health and Human Services shall collect the data necessary to implement the requirements of sction 452(g) of the Social Security Act (as added by subsection (a) of this section) and may, in carrying out the requirement of deermining a State's paternity establishment percentage for the fiscal year 1988, compute such percentage on the basis of data collected with respect to the last quarter of such fiscal year (or, if such data are not availble, first quarter of the fiscal year 1989) if the Secretary determines that data for the full year are not available.

SEC. 112 INCREASED FEDERAL ASSISTANCE FOR PATERNITY ESTABLISHMENT.

(a) INCREASED PAYMENTS TO STATES. - Section 455(a)(1) of the Social Security Act is amended -

(1) by striking "and" at the end of subparagraph (A);

(2) by striking the semicolon at the end of subparagraph (B) and inserting in lieu therof ",and"; and

(3) by adding at the end the following new subparagraph:

"(C) equal to 90 percent (rather than the percentage specified in subparagraph (A)) of so much of the sums expended during such quarter as are attributable to laboratory costs incurred in determining paternity;".

(b) EFFECTIVE DATE. - The amendments made by subsection (a) shall apply with respect to laboratory costs incurred on or after OCtober 1, 1988.