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Revised Instructions for Requesting an Exemption from the Mandatory Laws and Procedures in Section 466 (1988)

AT-88-19

Published: December 22, 1988
Information About:
State/Local Child Support Agencies
Topics:
Federal Reporting, State Plan
Types:
Policy, Action Transmittals (AT)

OCSE-AT-88-19

Dec. 22, 1988

Subj: Revised Instructions for Requesting an Exemption from the Mandatory Laws and Procedures in Section 466 of the Social

Security Act.

ADVANCE COPY

PROGRAM INSTRUCTION

ACTION TRANSMITTAL

OCSE-AT-88-19

December 22, 1988

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

SUBJECT:Revised Instructions for Requesting an exemption from the Mandatory Laws and Procedures in Section 466 of the Social Security Act.

BACKGROUND:The State plan provision at section 454(20) of the Social Security Act (the Act) requires States to have in effect and use the laws and procedures specified in section 466 to improve the effectiveness of child support enforcement programs. However, under section 466(d), States may apply for an exemption from implementing one or more of these laws and procedures.

CONTENT:This Action Transmittal establishes revised procedures States must follow when applying for an exemption and supersedes the instructions in OCSE-AT-86-08. The following changes were made to address Federal and State experience with the exemption process:

II. - Requirements for applying for an extension of exemption are clarified.

III.B.3(a) - A State, when submitting a request for an exemption to operate a similar existing procedure, must also submit evidence of the impact on effectiveness of implementing the additional statutory or regulatory requirements.

III.B.3(b) - With respect to expedited process exemption requests, exemptions based on prospective reporting have been discontinued. This type of exemption was instituted in oCSE AT-86-08 as a temporary measure to allow Statesand political subdivisions, without the means of capturing historical data, the opportunity to report on a prospective basis the data necessary to support an exemption. Because sufficient time to gather the necessary historical data has elapsed, this type of exemption is no longer appropriate.

Attachment A - To ensure that requests for exemptions and extensions of exemptions from expedited process requirements contain the necessary documentation, States may use the suggested format for expedited process exemption requests at Attachment A.

V. - The title, Replacement of Authority Exemption Requests, is changed to Certification of Implementation of Mandatory Procedures. Because the State plan amendment process replaced authority exemptions, a discussion of authority exemptions is no longer necessary.

SUPERSEDED

MATERIAL: OCSE-AT-86-08 dated March 31, 1986.

INQUIRIES

TO: OCSE Regional Representatives

Wayne A. Stanton

Director

I. INTRODUCTION

Since the inception of the Federal Child Support Enforcement program certain laws and procedures have noticeably increased the efficiency and effectiveness of some States' programs. To improve the nationwide child support effort, Congress required States to implement the particular laws and procedures that were responsible for the success of those State programs. However, if a State can demonstrate to the satisfaction of the Secretary that any one, or all, of the required laws and procedures will not increase the effectiveness and efficiency of the State's child support enforcement program, the Secretary may grant the State an exemption from implementing one or more of the required procedures. With respect to procedures for expedited processes, a State may apply for an exemption for one or more political subdivisions of the State.

This Action Transmittal addresses requests for exemptions from the requirements of section 466 of the Act only. Please read this material carefully before preparing any requests for exemptions.

II. EXEMPTION PROCESS AND MATERIAL FOR SUBMISSION

A. Process

States must submit an original and one copy of each exemption request to the Regional Office. The Regional Office will review the State's submission and will recommend to the Central Office approval or disapproval of the State's exemption request and, if the request is approved, the length of the exemption period. An exemption, including an extension, may be granted for up to three years.

If further materials are needed before a recommendation can be made, the Regional Office will request them from the State in writing. The State must provide the additional material within two weeks from the date of the Regional Office's letter requesting the additional material. If the State's submission remains incomplete or insufficient to the point that the review cannot proceed, the Regional Office will recommend disapproval of the State's request.

The Director of OCSE will notify States in writing that exemptions have been approved or disapproved and the basis for the decision. If an exemption is approved, OCSE's approval letter will specify the exemption period. Disapprovals of requests for exemptions are not subject to administrative appeal.

All exemptions are subject to review at any time during the exemption period. If circumstances change, an exemption may be terminated by the Director of OCSE. (Section IV contains information pertaining to disapproval or termination of anexemption.)

States must apply for an extension of an exemption, or enact and implement the necessary laws and procedures, prior to expiration of the exemption period. If the State applies for an extension, it must submit an original and one copy of each exemption request for each political subdivision within the State requesting an extension of an exemption 90 days before the end of the exemption period. The State's submission for an extension must meet the requirements for an initial exemption request, must address any changes in circumstances from the time of its initial request, especially changes that may affect the efficiency and effectiveness of the State's operation, and must contain documentation, reflecting current data, that support the request. To support a request for extension of an expedited process exemption, the State must submit, for each political subdivision involved: 1) data covering the one-year period ending immediately prior to the exemption request, as required under section III.B.3(b) of this Action Transmittal, demonstrating that each political subdivision continues to meet the required case processing time frames; and 2) written assurance that all categories of cases are included and that the court and the IV-D agency do not restrict the flow of cases to the court.

B.Material for Submission of Requests for Exemptions and Requests For Extensions of Previously Approved Exemptions

1.Cover letter. The State's cover letter must specify: (a) the mandatory procedure(s) from which the State is requesting an exemption; and (b) if the State is requesting an exemption from expedited processes on behalf of a political subdivision of the State, the political subdivision for which the request applies.

2.Justification and Documentation. A State must submit the justification and documentation addressed under Section III, as appropriate, for each exemption request and for each request for an extension of a previously approved exemption.

III. EXEMPTION CATEGORIES

An exemption authorizes a State not to implement a mandatory procedure or to continue to operate a similar existing procedure which does not comply with all of the requirements in the statute and regulations but contributes to an effective and efficient Child Support Enforcement program.

A State must meet different criteria depending upon the type of request.

A. Exemption Not to Implement a Procedure

A State may apply for an exemption from implementing any of the required procedures in section 466(a) of the Act. (A request for expedited processes is addressed below under B as a request to continue to operate an existing procedure.) The State must submit:

Evidence that implementation of a particular procedure would not increase the efficiency and effectiveness of the State's Child Support Enforcement Program.

To meet this criterion, a State must show why implementation of the particular mandated procedure would not be cost effective (estimated collections resulting from the procedure are less than estimated costs) at the end of three years. Data must be provided to show estimated collections from and costs of the procedure for the three years prior to the year of the request for the exemption.

The evidence must include an estimate of:

o the developmental costs of implementing the procedure;

o the costs of operating the procedure compared to the expected collections as a result of implementing the procedure; and

o the staffing needed to operate the procedure.

In addition, the State must compare for a fiscal year period the effectiveness of its current program to the effectiveness of the program were it to implement the procedure, by responding to the following questions, as appropriate. Would the procedure increase the State's:

o ability to process cases, i.e., the average length of time to take an action in a case?

o welfare savings by reducing the number of AFDC cases?

o number of support orders enforced?

o collections (inter- and intrastate)?

Statistical Requirements

A state must fully document the request and define the methodology(ies) used to reach its conclusions. The methodology(ies) must be conceptually sound and supported by data that are reliable and representative. Where estimates are used, the State must identify any assumptions made and/or the sampling approach(es) used. In addition, allsampling must be statistically valid, include adequate sample size and take into account sampling error. All inferences should be made at a 95 percent (or greater) level of significance.

B. Exemption to Operate a Similar Existing Procedure

If a State applies for an exemption to operate a similar existing procedure, it must meet the three criteria below. Please pay particular attention to the third criterion, which contains separate requirements for general situations, for expedited processes, and for income withholding. A State need address only a, b or c of the third criterion.

A description of the existing procedure (except existing court systems) including identification of those parts that conform to the statutory and regulatory requirements and those that do not conform.

To meet this criterion, a State must describe its existing system. The description should address procedures used for the handling and processing of cases. A State may submit guidelines or a manual that adequately describes the existing system. The State must also identify those aspects of the existing procedure that do not conform to the statutory and regulatory requirements. This requirement does not apply to exemption requests based on a court system meeting the time standards contained in Section III.B.3(b).

2. Evidence that no category of cases is excluded.

To meet this criterion, a State must attest to the fact, by submitting a statement from the State IV-D Director, that its existing procedure is used for all categories of IV-D cases (inter- and intrastate), i.e., AFDC, non-AFDC and foster care cases. Instead of a written statement, a State may submit any portion of its procedures or guidelines that shows that all categories of IV-D cases are processed in the existing system.

3.Evidence that implementation of a mandatory procedure would not increase the efficiency and effectiveness of the State's existing procedure. A State must only meet (a), (b) or (c) depending on the type of exemption requested.

(a) For general situations (i.e., not expedited processes or income withholding procedures which contain different time frames from those in the statute and regulations which are covered below) to meet this criterion, the State's evidence must include an estimate of:

othe developmental costs of implementing the additional statutory or regulatory requirements;

othe operating costs compared to the collections expected as a result of the additional statutory or regulatory requirements;

o the staffing needed to operate the additional statutory or regulatory requirements.

In addition, the State must compare for a fiscal year period the effectiveness of its current program to the effectiveness of the program were it to implement the additional statutory or regulatory provisions, by responding to the following questions, as appropriate. Would the provision increase the State's:

o ability to process cases, i.e., the average length of time to take an action in a case?

o welfare savings by reducing the number of AFDC cases?

o number of support orders enforced?

o collections (inter- and intrastate)?

Statistical Requirements

A State must fully document the request and define the methodology(ies) used to reach its conclusions. The methodology(ies) must be conceptually sound and supported by data that are reliable and representative. Where estimates are used, the State must identify any assumptions made and/or the sampling approach(es) used. In addition, all sampling must be statistically valid, include adequate sample size and take into account sampling error. All inferences should be made at a 95 percent (or greater) level of significance.

(b) For expedited Processes only:

Evidence that, under the existing procedure, all IV-D cases requiring action are processed within the required time standard.

To meet this criterion, the State must provide, for each political subdivision covered by the request, current data demonstrating that the current system, whether court or other system, meets the time standard contained in the final regulations for expedited processes. Data must cover a one year period ending immediately prior to the exemption request. The timeframes for case processing are:

90 percent of cases within 3 months;

98 percent with 6 months; and

100 percent within one year.

This standard has the approval and endorsement of the American Bar Association's House of Delegates and is considered by that group to be an appropriate measure of the time in which domestic relations cases should be completed from case filing to final disposition in a judicial system. [By "case filing" we mean the date on which the case is officially acknowledged or action is taken, for example, the date on which the case is given a docket or case number, the date notice of support liability is sent, the date other official action is taken which initiates the process of establishing or enforcing a support obligation or, at the latest, the date the absent parent is served. "Disposition" means the date on which a support obligation or enforcement order is officially established and/or recorded or the action is dismissed].

Jurisdictions which have very small caseloads present special problems when evaluating whether the jurisdiction meets the time frames required by the regulations. For example, consider a jurisdiction which had only six cases during the last fiscal year. In order to pass the criterion that 90 percent of the cases were disposed of within three months this jurisdiction must have completed 5.4 cases in that time. Since it is impossible to dispose of a fraction of a case, it is necessary to round up or down. If we round up to six cases this jurisdiction and other similar jurisdictions must meet the equivalent of a 100 percent standard in less than one year if they are to be granted an exemption.

Small jurisdictions should not be subject to a standard which is significantly higher than that mandated for other jurisdictions. For this reason we will round down rather than upward the number of cases jurisdictions must have disposed of within the specified time frames. Thus, for a jurisdiction with six cases, the standards would require the jurisdiction to have disposed of five cases within three months and five cases within six months of case filing.

Some court systems may appear efficient and effective because cases are not being filed by the IV-D agency or the court only allows the IV-D agency to file a specified number of cases per week or per month. Systems that operate in such a manner do not meet the above standard because they are only processing alimited number of cases. Therefore, a State must attest to the fact that the system (both the IV-D agency and the court) does not restrict the flow of cases to the court but permits all cases requiring action to be processed within a reasonable amount of time.

A State may request an exemption from expedited processes throughout the State but it must justify and document its request by submitting data on each of its political subdivisions. In other words, a State may not average processing times of all political subdivisions' systems to meet the time standard set forth above. Instead, the State must demonstrate that the system in each political subdivision meets the standard.

A suggested format for requesting exemptions or renewals of exemptions from expedited process is found at Attachment A of this Action Transmittal.

Statistical Requirements

A State must fully document the request and define the methodology(ies) used to reach its conclusions. The methodology(ies) must be conceptually sound and supported by data that are reliable and representative. Since situations vary from State to State and from jurisdiction to jurisdiction within a State, we are not prescribing a specific methodology and/or sampling requirement. However, sampling will be allowed only in those situations in which complete data are not readily available and the collection of data on all cases is not feasible. In particular, where caseloads are small, we would expect the State to report on all cases, not just a sample. In those instances where sampling is utilized, the States must follow valid statistical sampling procedures. Samples must be adequate in size, appropriately selected and free from possible bias. For example, States may not preselect a sample of cases at the beginning of the period and then follow those cases from opening to closure since these sample cases could receive special treatment. States may, however, go back and pick cases from a past month or period. However, if cases are drawn from a particular month and followed forward (e.g., January cases followed through for a year) or from a particular time period (e.g., January to March), the State must show that the month or time period is not atypical. All samples must take into account sampling error and all inferences should be made at a 95 percent (or greater) level of significance.

(c) For an exemption from wage withholding on the grounds that the State's existing procedure contains different time frames than those in the statute and regulations, evidence that the State's existing procedure meets the time standard specified below.

A State may be operating a wage withholding system that complies with most of the requirements in 45 CFR 303.100, except the 45-day requirement for resolution of contested cases and/or the requirement that an employer initiate withholding no later than the first pay period which occurs 14 days after the notice to the employer is mailed. The State may request an exemption on the basis that its current withholding system processes a percentage of cases within the time frame set forth in the following standard. The standard approximates the maximum time frames for initiating withholding from the State's trigger date to the date the employer withholds wages established in the regulations at 45 CFR 303.100. The State's trigger date must be the date in which the arrearage equals the amount of support payable for one month or earlier if provided for by State law or requested by the absent parent.

Contested Cases - 95 percent of cases within 75 days Uncontested Cases - 95 percent of cases within 45 days

Statistical Requirements

A State must fully document the request and define the methodology(ies) used to reach its conclusions. The methodology(ies) must be conceptually sound and supported by data that are reliable and representative. Where estimates are used, the State must identify any assumptions made and/or the sampling approach(es) used. In addition, all sampling must be statistically valid, include adequate sample size and take into account sampling error. All inferences should be made at a 95 percent (or greater) level of significance.

IV.TERMINATION OF EXEMPTION OR DISAPPROVAL OF REQUEST FOR EXTENSION

As stated previously, exemptions are subject to review at any time during the exemption period. If circumstances change, an exemption may be terminated by the Director of OCSE. The regulations at 45 CFR 302.70(d) state that if the Secretary revokes an exemption during the exemption period, or does not grant an extension of an exemption, the State must enact the appropriate laws and implement the mandatory practice by the beginning of the fourth month after the end of the first regular, special, budget or other session of the State's legislature which ends after the date theexemption is revoked or the extension is denied. If no State law is necessary, the State must establish and be using the procedure by the beginning of the fourth month after the date the exemption is revoked or the extension is denied.

V. CERTIFICATION OF IMPLEMENTATION OF MANDATORY PROCEDURES

To ensure that States fully implement each mandatory procedure required under sections 454(20) and 466 of the Act and 45 CFR 302.70, States must submit for approval copies of all required laws, written policies and procedures, and administrative regulations or court rules as attachments to their IV-D State plan page for each mandated procedure.

The Regional Representative, in consultation with the Regional Chief Counsel, will review each submittal to ensure that all requirements are met. An approval of a State plan preprint page by the Regional Representative indicates that the State has fully implemented a procedure or has an exemption consistent with Section III of this Action Transmittal.

ATTACHMENT A: Format for Expedited Process Exemption Requests

States may use the attached format for submitting requests for exemptions or extensions of exemptions. Each exemption request must contain:

o A statement that its existing procedures are used for all categories of IV-D cases (inter- and intrastate cases), e.g., AFDC, non-AFDC and title IV-E foster care cases.

o A statement attesting to the fact that the IV-D agency and the court do not restrict the flow of cases to the court.

oIf a statistical sample is used to determine whether the State meets the required time frames, a description of the sampling methodology used. All sampling must be statistically reliable and valid, and take into account sampling error. Sample size must be adequate and the total number of cases in the universe and the sample must be identified. All inferences should be made at a 95 percent or greater level of confidence. If cases are sampled from a particular month and followed forward for a one-year period, the State must include a statement that the month chosen is representative of typical activity. (See section III.B.3.(b) of this Action Transmittal for guidance)

o A description of the State's interpretation of "case filing" and "disposition." (See section III.B.3.(b) of this Action Transmittal for guidance)

o An identification of the number of cases filed (i.e., in accordance with the State's definition of case filing) and the period of time represented (which must cover a one-year period ending immediately prior to the exemption request).

o Evidence that, under the existing procedure, all cases filed were disposed of within the following time frames:

90 percent of cases within 3 months; 98 percent of cases within 6 months; and 100 percent of cases within 12 months.

REQUEST FOR EXEMPTION

FROM IMPLEMENTING

EXPEDITED PROCESSES

Political Subdivision State

I. Are the existing procedures used for all categories of IV-D cases (inter- and intrastate), e.g., AFDC, non-AFDC and IV-E foster care cases?

yes

no

2. Does the IV-D agency or the court restrict the flow of IV-D cases to the court?

yes

no

3. Description of sampling methodology, if sample is used:

a) If one month's data is used, is it representative of typical activity? yes no

4. Definition of case filing and disposition used by the State:

5.Number of IV-D cases filed or number of IV-D cases in which process has been served from to :

6.Of the IV-D cases from line 5, enter the number of cases disposed of within:

a) 3 months

b) 6 months (including 6a)

c) 12 months (including 6a and 6b)

d) more than 12 months

e) TOTAL (lines 6c + 6d equals line 5)

7. Percent of cases disposed within:

3 months (6a divided by 6e)

6 months (6b divided by 6e)

12 months (6c divided by 6e)

8. I hereby certify that the statements are accurate and the information is correct.

IV-D Director