Action Transmittal AT-94-06 Responses Part 1

Paternity Establishment and Revision of CSE Audit Regulations



Response to Comments Part 1

1.  Paternity Establishment Provisions.  

In response to the Notice of Proposed Rulemaking published November 29, 1993, 
in the FEDERAL REGISTER (58 FR 62599), we received over 60 comments from 
representatives of State and local IV-D agencies, national organizations, 
advocacy groups, and   private citizens.  Their comments and our responses are 
as follows:

General Comments

1.  Comment:  One commenter requested that OCSE liberally grant waivers from 
the new requirements if a State has laws, processes, or procedures which 
achieve the aims of the statutory paternity 
provisions under OBRA '93.

Response:  Procedures regarding exemptions are delineated at 
302.70(d) and OCSE-AT-88-19.  (Although the procedures in OCSE-AT-88-19 refer 
to former expedited process requirements, these procedures may be used until 
they are updated to reflect the new expedited process requirements).  A State 
may apply for an exemption from adopting any of the required State laws at 
302.70(a) by submitting a request for an exemption to the Federal Regional 
Office.  The Secretary will grant a State (or political subdivision in the 
case of expedited process requirements) an exemption for a period of up to 
three years in the limited instances where the State demonstrates that 
compliance would not increase the effectiveness and efficiency of its IV-D 
program.

2.  Comment:  One commenter suggested that the statutory effective date should 
apply only to the Federal statutory provisions, and that States should be 
given additional time, after the issuance of final regulations, to comply with 
any Federal regulatory requirements implementing the statutory provisions.  
According to this commenter, the effective date of any regulatory requirements 
based upon the Federal statute should be linked to the end of each State's 
next legislative session following publication of the final rule.

Response:  We are not linking the effective date of this regulation to each 
State's next legislative session following publication of this rule.  The 
statutory effective date, which is linked to States' legislative sessions, 
applies to statutory requirements, even if the statutory effective date 
occurred prior to publication of these final regulations.  If the Federal 
statutory effective date for a State occurs after publication of these 
regulations, these regulations will not be effective until the statutory 
effective date.  Furthermore, these regulations allow States until January 1, 
1995 (or the Federal statutory effective date, if later) to implement 
hospital-based programs statewide.  Therefore, we do not believe additional 
implementation time for regulatory requirements is necessary.

3.  Comment:  One commenter suggested that we retain the list of effective 
dates, previously at 302.70(a), for required State laws.

Response:  To simplify the regulatory language, we have deleted effective 
dates of IV-D State plan requirements previously listed in 302.70(a).  The 
effective dates had been listed to differentiate between requirements that 
became effective at different times.  However, since all requirements listed 
at 302.70(a) are now effective, we believe it is unnecessarily cumbersome to 
enumerate all the various effective dates in the regulation.  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)

a.  General Requirements, Rights and Responsibilities, and Due Process.

1.  Comment:  Several commenters questioned why requirements regarding general 
voluntary acknowledgment procedures are not as detailed as the requirements 
regarding hospital-based voluntary acknowledgment programs.

Response:  Regulations regarding the general voluntary acknowledgment process 
are not as detailed as those covering hospital-based programs.  The reason for 
this differentiation is that the vast majority of States, if not all States, 
had already implemented general voluntary acknowledgment procedures prior to 
the passage of OBRA '93.  Given that no national problem has been identified 
regarding these existing State procedures, we do not want to impede their 
successful, ongoing operation.  For example, States have already developed 
forms and materials that meet the requirements of State law and that have 
withstood judicial review.  We do not want to impose detailed Federal 
requirements that would unnecessarily force States to develop new forms and 
materials.  

We do, however, encourage States to reexamine their existing voluntary 
acknowledgment procedures to ensure that they are simple, provide sufficient 
information to the parties, and are regularly used.  The voluntary 
acknowledgment process should be available at any time to fathers who want 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.

While we have tried to avoid unnecessary Federal intervention regarding 
general voluntary acknowledgment requirements, there is a need for detailed 
Federal requirements regarding hospital-based programs.  While some States had 
organized hospital-based programs prior to passage of OBRA '93, most of these 
programs were not statewide in scope.  Therefore, in many parts of the country 
such programs do not yet exist or are not well-established.  Detailed Federal 
requirements should help to ensure that such programs are properly 
implemented.  As several commenters on the proposed rule pointed out, States 
which have implemented hospital-based programs have found that programs are 
most effective where trained staff and explanatory materials are available to 
assist the parents.

In addition, the special circumstances of a hospital environment warrant 
detailed Federal oversight.  For medical records staff and health care workers 
in hospital-based programs, providing voluntary acknowledgment services is 
only an ancillary activity to their main responsibilities.  Hospital staff may 
not be as familiar with paternity and child support issues as 
IV-D or court staff involved in voluntary acknowledgment procedures outside of 
hospitals.

Furthermore, as several commenters pointed out, during the hours following 
birth, the mother may be in physical pain, mentally exhausted or preoccupied, 
and inundated with information regarding the health and care of her newborn 
child.  Hospital staff providing voluntary acknowledgment services may not be 
aware of salient issues in a case, such as domestic violence.  (When voluntary 
acknowledgments are made outside of the hospital, child support personnel may 
be more likely to learn of such issues during initial interviews with the 
woman).  

In light of these special circumstances, the detailed requirements at 
303.5(g) are designed to ensure that the voluntary acknowledgment process in 
hospitals is truly voluntary and appropriate, and that both the mother and 
alleged father have adequate information to make an informed decision.   

2.  Comment:  Many commenters recommended detailed and specific Federal 
requirements regarding the explanation of rights and responsibilities and due 
process safeguards.  

Response:  We agree with commenters about the importance of this issue.  Under 
regulations at 302.70(a)(5)(iii), States are required to explain to both 
parents the rights and responsibilities of acknowledging paternity.  The 
explanation should 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.  It should also describe rights that each party 
may be giving up by signing the acknowledgment (e.g., right to genetic 
testing).  These rights and responsibilities will vary by State, depending on 
State law.  
For out-of-hospital acknowledgments, as long as the explanation meets State 
due process requirements, it may be verbal or in writing.  However, we 
recommend that this disclosure of rights be provided in a written format that 
is clear and easily understood.  Furthermore, we encourage States to place 
this written explanation on the acknowledgment form itself.  As one commenter 
indicated, if a party later challenges the validity of an acknowledgment, a 
written explanation of rights and responsibilities on the form will provide 
evidence that notification occurred.  Section 302.70(a)(5)(iii) also requires 
a State to meet any due process requirements necessary under State law and 
court rulings.  (Federal requirements regarding hospital-based programs are 
somewhat more prescriptive due to the special circumstances of a hospital 
environment as previously discussed. Hospital-based program requirements are 
discussed in greater detail later in this preamble).

However, consistent with past policy, we are not mandating detailed Federal 
due process requirements.  Generally, a State is in a better position than the 
Federal government to determine the exact nature of such requirements in light 
of the State's particular circumstances.  As one commenter stressed, a State 
needs to tailor its requirements to address the legal effect of the 
acknowledgment under State law--e.g., whether the acknowledgment creates a 
rebuttable or conclusive presumption.  States' due process requirements also 
vary depending on State law and court rulings.  However, because of the 
importance of the due process and rights and responsibilities issue, OCSE is 
committed to providing technical assistance, within its available resources, 
including sharing sample forms and materials from other jurisdictions, in 
order to assist States.  

We also encourage States to consider, for both in-hospital and out-of-hospital 
acknowledgments, a number of suggestions recommended by commenters, including 
providing:  both a verbal and a written description of the rights, 
responsibilities, and consequences resulting from acknowledging paternity; a 
clear, written explanation of the legal significance of a paternity 
acknowledgment under State law; a written notice that the parties may wish to 
seek legal advice prior to signing the acknowledgment; a written statement 
explaining that completion of the form is voluntary; procedures requiring the 
acknowledging parents to sign a statement indicating that they understand 
their rights and responsibilities; and training of staff and making 
IV-D agency staff available in person or by telephone to ensure that 
acknowledgments are voluntary and completed only after parents understand the 
consequences.

3.  Comment:  Several commenters argued that special protections are needed, 
as a part of both in-hospital and out-of-hospital voluntary acknowledgment 
procedures, for cases involving illiterate, non-English speaking, mentally 
incapacitated, blind, or hearing-impaired persons.

Response:  We agree that special protections may be needed in such cases.  
However, just as a State generally has discretion regarding due process 
safeguards in "regular" cases, we are also giving States discretion in cases 
involving special circumstances.  This allows each State to formulate policies 
which address its own particular requirements, including case law, regarding 
due process.  States, IV-D agencies, and birthing hospitals are in the best 
position to determine the details of how to respond to special circumstances 
in their State's population or a facility's service area (e.g., languages 
other than English in which to publish materials and forms).  

Despite this discretion, we encourage and expect States and IV-D agencies to 
address the special circumstances mentioned by commenters, as necessary, by 
setting appropriate policies, developing materials, and providing training to 
both hospital-based program and IV-D staff.  As commenters cautioned, 
acknowledgments in such cases may be challenged if appropriate safeguards are 
not followed.  We believe that States have already shown sensitivity to these 
special circumstances and there is no need for direct Federal intervention.  
For example, several States have developed paternity establishment materials 
and forms in languages other than English.  

4.  Comment:  Several commenters suggested the need to include provisions 
regarding custody and visitation as part of the acknowledgment process.  Some 
commenters suggested that parents, when given the opportunity to voluntarily 
acknowledge paternity, ought to be given the chance to complete forms 
regarding custody and visitation.  Another commenter suggested that if the 
alleged father acknowledges paternity at the hospital, a custody order should 
also be entered for the mother at the same time to protect the mother's 
parental rights.

Response:  We are not mandating requirements regarding custody and visitation 
because the paternity provisions of OBRA '93 and the other provisions of title 
IV-D of the Act do not address custody or visitation issues, and these are 
essentially State matters.  However, when giving the parents the opportunity 
to voluntarily acknowledge paternity, we would also encourage that both 
parents receive an explanation, either in writing or verbally, about the 
potential impact of an acknowledgment under State law on custody and 
visitation.

b.  Acknowledgment Form.

1.  Comment:  We received numerous comments regarding the proposal to require 
that States use a standard acknowledgment form incorporating certain minimum 
elements.  Some commenters objected to the mandated use of an acknowledgment 
form and questioned whether it would prohibit States from using other, 
previously-established methods for obtaining voluntary acknowledgments.  

Other commenters expressed concern about the specific elements that we 
proposed the forms should include.  Commenters objected to mandating inclusion 
of:  (1) filing instructions because the instructions would not be applicable 
to all situations, (2) a line for the parents' social security numbers due to 
privacy concerns, and (3) parents' addresses due to the transitory nature of 
addresses.  On the other hand, several commenters suggested that the form 
contain both the parents' and child's dates of birth--data elements that we 
had not proposed to require.  Other commenters maintained that mandating any 
minimum form elements was unduly restrictive and that States should be allowed 
to design their own forms.  

Response:  In response to commenters' concerns, we are not mandating use of a 
uniform acknowledgment form.  As stated in the preamble to the proposed rule, 
mandating a form with minimum elements was intended to standardize interstate 
case processing.  However, based on comments to the proposed rule, it is clear 
that our proposal would not have solved interstate problems.  Some States use 
voluntary acknowledgment procedures, other than an acknowledgment form, that 
do not contain the uniform elements.  Furthermore, because there is no 
agreement among States regarding what the elements of an acknowledgment form 
should be, State forms would have continued to vary in many respects even if 
some uniform elements were mandated.  [Differences in State forms or 
procedures should not be an issue if an acknowledgment creates a determination 
of paternity subject to full faith and credit, but may be an issue if an 
acknowledgment does not create a determination of paternity].  As one 
commenter pointed out, in order to avoid interstate problems, we would have to 
mandate use of a standardized national form.  However, we believe a 
standardized national form would unnecessarily disrupt many States' 
long-standing and successfully-operating voluntary acknowledgment procedures.  

Although we are not mandating the use of a form with minimum elements, States 
must have procedures for a simple civil process for voluntarily acknowledging 
paternity in accordance with 
302.70(a)(5)(iii).  We anticipate that most States will use some type of 
acknowledgment form, and we encourage States to include on the form data 
elements that provide valuable locate and identifying information.  These 
elements may include:  parents' social security numbers, dates of birth, and 
addresses.  If a State's form includes the social security numbers of the 
parents, the recording of voluntary acknowledgments might 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.  
OCSE plans to provide States with examples of voluntary acknowledgment forms 
used in various jurisdictions around the country.  

2. Comment:  Several commenters objected to the proposed requirement that a 
voluntary acknowledgment be signed by both parents.  This provision of the 
proposed rule would have also required that the parents' signatures be 
authenticated by a notary or witness(es).  According to commenters, it would 
be burdensome, time-consuming, costly, and unnecessary to have both parents 
sign the same form, particularly if the parents live in different States.  
These commenters noted that frequently in IV-D cases the mother is not present 
when the father acknowledges paternity but that she has previously named the 
acknowledging man as the father in writing.  As one commenter suggested, the 
proposal may have made it necessary for the IV-D agency to find the mother 
once the man acknowledged, even if she had previously named the man as the 
father, to have her sign in front of a notary or witness the same 
acknowledgment form that the father signed.  In addition, commenters noted 
that, under some existing State laws, a man can voluntarily acknowledge 
paternity without the mother's consent (only under certain circumstances in 
some States; e.g., if genetic test results create a presumption of paternity, 
or the mother is deceased or mentally incapacitated).

Response:  In response to commenters' concerns, for general voluntary 
acknowledgment procedures, we are not requiring that both parents sign the 
same form in front of a notary public or witness(es).  We want to avoid 
unnecessary Federal interference with State's previously-established and 
successfully-operating voluntary acknowledgment procedures.  We note, however, 
that if an acknowledgment form with signature lines for both parents contains 
space for a notary or witness to authenticate each signature separately (as 
recommended by one commenter), the parents do not necessarily have to sign the 
form at the same time.

This rule does compel the State to require that a voluntary acknowledgment 
obtained through a hospital-based program be signed by both parents, and that 
the parents' signatures be authenticated by a notary or witness(es).  We are 
including this requirement at 303.5(g)(4), rather than at 302.70 as in the 
proposed rule, since we are limiting its scope to hospital-based programs.  
Regarding mandating the use of notaries, we believe such a requirement would 
unnecessarily interfere with State practice and create problems in hospitals 
where notaries may not always be readily available.  

Since the mother will be present in cases in which the father signs a 
voluntary acknowledgment at the hospital, it is not burdensome to require that 
both parents sign in such cases (although they need not both sign the form at 
the same time).  Furthermore, we want to ensure that the process at the 
hospital is truly voluntary and that an acknowledgment is made only when both 
parents agree about the man's paternity.  Even if a man is willing to 
acknowledge paternity, the mother may deny that he is the father, or may not 
want paternity to be established (due to domestic violence or other 
circumstances).  Hospitals should not have to mediate disputes or pursue cases 
where the parties disagree about the man's paternity.  If a party in such 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.

States can meet the requirements of 303.5(g)(4) by developing and mandating 
the use of a form for hospital-based programs which contains signature lines 
for both parents and a notary public or witness(es).

c.  IV-D Agency Activity.

1.  Comment:  One commenter suggested that the proposed requirement at 
303.5(a), requiring the IV-D agency to offer the alleged father the 
opportunity to acknowledge paternity in IV-D cases in which paternity has not 
been established and a voluntary acknowledgment has not been obtained, was 
overly broad.  The commenter suggested that there are cases, particularly 
under some State laws, where it is inappropriate to pursue a voluntary 
acknowledgment--e.g., cases where the alleged father is a minor or lacks the 
requisite mental capacity.

Response:  We revised this provision to require that the IV-D agency offer the 
alleged father, as appropriate, the opportunity to acknowledge paternity.  If 
a IV-D agency determines that it would not be appropriate to offer the alleged 
father an opportunity to voluntarily acknowledge paternity, it must: (1) 
document in the case record the specific reason it is inappropriate to seek an 
acknowledgment, and (2) attempt to establish paternity by legal process 
established under State law.  
Adding "as appropriate" allowed us to delete the phrase "and a voluntary 
acknowledgment has not been obtained" in the proposed introductory language of 
303.5(a) describing the applicability of the provision.  Since the IV-D 
agency acts in accordance with 303.5(a) "as appropriate", the provision now 
applies broadly to any case "in which paternity has not been established".  
Seeking a voluntary acknowledgment in a case where an acknowledgment has been 
previously been obtained would not be appropriate.

2.  Comment:  One commenter asked if mailing an acknowledgment form to the 
alleged father's last known address with no verification of receipt would meet 
the requirement at 303.5(a) for providing the alleged father the opportunity 
to voluntarily acknowledge paternity.

Response:  In order to satisfy this requirement, IV-D staff may contact the 
alleged father by telephone, written notice, or in person as appropriate 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.  
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 and responsibilities.  The IV-D agency 
must document in the case record when and how the alleged father is sent or 
given notice of the paternity action and the opportunity to voluntarily 
acknowledge.  

Mailing an acknowledgment form to the alleged father's last known address will 
satisfy this requirement, if the man can acknowledge paternity by completing 
and returning the form.  However, the IV-D agency must meet the requirements 
mentioned above (advising the man that the mother has named him as the father 
of the child, describing the procedures for voluntarily acknowledging 
paternity, and advising him of his rights and responsibilities) via the form, 
attached written materials, or other means.  

Although mailing a form is sufficient to meet the requirement at 303.5(a), we 
encourage States to make additional efforts to facilitate acknowledgments.  
For instance, several States 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 
are available to witness or notarize signatures on voluntary acknowledgments.  

If an alleged father refuses or is reluctant to voluntarily acknowledge 
paternity, States should encourage genetic testing.  Men who are unsure, but 
willing to cooperate, will frequently 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.

3. Comment:  One commenter requested clarification regarding whether the 
opportunity to voluntarily acknowledge could be given either before or after 
initiating legal action to establish paternity.

Response:  The IV-D agency may meet the requirement at 303.5(a) by offering 
the alleged father the opportunity to acknowledge paternity at any 
time--before or after initiating legal action to establish paternity.  To 
clarify this, we have omitted the phrase "if he fails to voluntarily 
acknowledge paternity" [which was included in the text of the proposed 
303.5(a)(2)], since it implied that the IV-D agency should seek a voluntary 
acknowledgment before attempting to establish paternity by legal process.  
Although we generally encourage States to offer the alleged father the 
opportunity to acknowledge before initiating legal process, we realize that 
some men will flee or otherwise avoid service of process if notified of the 
paternity issue prior to service.    

If a IV-D agency offers the man the opportunity to voluntarily acknowledge 
paternity prior to the initiation of legal action, the IV-D agency may want to 
inform the alleged father at the time it provides him an opportunity to 
acknowledge that formal paternity establishment action will begin if the 
alleged father does not acknowledge within a specified timeframe.  On the 
other hand, a IV-D agency may choose to combine 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.