Action Transmittal AT-94-06 Responses - Part 4
Paternity Establishment and Revision of CSE Audit Regulations
Response to Comments - Part 4
Expedited Processes for Paternity Establishment--Sections 302.70(a)(2),
303.4(d), and 303.101
a. Paternity and Support Establishment Timeframe.
1. Comment: We received numerous comments regarding the proposed use of
"date of locating the alleged father or noncustodial parent" as the starting
point for the expedited process timeframe at 303.101(b)(2)(i). Most of these
commenters objected to using location as the starting point. Several
commenters recommended that the timeframe begin with "date of service of
process" instead. According to the commenters, location should not be the
starting point of the timeframe because: (1) expedited process timeframes
should only measure activity in a State's administrative/judicial system; (2)
States might initiate administrative or judicial action in each case at the
beginning of the expedited process timeframe (i.e., upon location), foregoing
attempts to obtain voluntary acknowledgments of paternity or consent support
orders due to a fear of exceeding the timeframe if administrative/judicial
adjudication later became necessary; (3) the meaning of "date of locating" is
unclear and hard to define; and (4) many cases require additional location
services after initial location is completed, potentially resulting in the
stopping (and subsequent restarting) of the expedited process timeframe each
time a case needs additional location services.
Response: In response to these numerous comments, the new expedited process
timeframe at 303.101(b)(2)(i) begins with "date of service of process" rather
than "date of locating the alleged father or noncustodial parent". By
beginning with service of process, the new expedited process timeframe,
compared to the timeframe in the proposed rule, is more consistent with the
long-standing purpose of the expedited process requirement: to measure the
timeliness of child support activity in a State's administrative or judicial
However, as under prior regulations, timeframes are still needed to ensure
that activity prior to service of process is completed quickly. The existing
timeframe at 303.3(b)(3) measures the timeliness of location activity. In
this final regulation, because we are retaining service of process as the
starting point of the expedited process timeframe, we must also retain at
303.4(d) a timeframe which will measure activity between location and service
of process. Therefore, we require that, within 90 calendar days of locating
the alleged father or noncustodial parent, the IV-D agency must, regardless of
whether paternity has been established, establish an order for support or
complete service of process necessary to commence proceedings to establish a
support order and, if necessary, paternity [or document unsuccessful attempts
to serve process, in accordance with the State's guidelines defining diligent
efforts under 303.3(c)].
The new timeframe at 303.4(d) replaces the two former program standard
timeframes previously at 303.4(d) and 303.5(a)(1). In cases where paternity
establishment is needed, the IV-D agency would need to obtain both a voluntary
acknowledgment of paternity and a consent support order, or else serve
process, within the 90-calendar-day timeframe. We have replaced two
timeframes with one because we believe having separate timeframes for
paternity and support establishment may have encouraged States to have
separate proceedings for paternity establishment and support order
establishment (and to take advantage of both timeframes). Instead, we want to
encourage States to establish paternity and support (if both are needed)
quickly and in the same proceeding whenever possible. This goal is also
reflected in the new expedited process timeframe at 303.101(b)(2)(i) which
subsumes paternity establishment (if necessary) within the requirement for
support order establishment.
In cases needing both paternity and support order establishment, the timeframe
at 303.4(d) will encourage IV-D agencies to seek both a voluntary
acknowledgment of paternity and a consent support order within 90 calendar
days. Studies show that about a third of alleged fathers will voluntarily
acknowledge paternity simply as a result of being given the opportunity. Even
more fathers will acknowledge if genetic testing is completed and the test
results show a high probability of paternity. A study of one locality in the
early 1980s, at a time when genetic testing was less powerful than it is using
today's technology, found that about 90 percent of alleged fathers voluntarily
acknowledged paternity after receiving genetic test results that showed a
probability of paternity. In order to facilitate voluntary acknowledgments of
paternity, a IV-D agency may want to offer parents the opportunity to
voluntarily submit to genetic testing prior to commencing an administrative or
judicial action. Just as the use of voluntary acknowledgment procedures in
paternity cases should facilitate expeditious establishment of paternity, the
use of stipulations and consent judgments should help expedite support order
If unable to establish a support order by consent within the 90-calendar-day
timeframe, the IV-D agency must serve process (or document unsuccessful
attempts to serve process) before the end of the 90 calendar days. The
service of process must be sufficient to commence administrative/judicial
proceedings to establish a support order and, if necessary, paternity.
For purposes of the timeframes at 303.4(d) and 303.101(b)(2)(i), we will
construe the term "service of process" broadly as any action that gives the
State jurisdiction over the defendant under State law. This could include
traditional service of process (e.g., personal service, certified mail) or
consent to jurisdiction (e.g., waiver of formal service by signing a voluntary
appearance), as long as the date the service event occurs is documented in the
case record. Therefore, if a IV-D agency established a support order by
consent, the date the noncustodial parent consented to jurisdiction could
count as the date of service of process. If the consent order was established
within 90 calendar days from location, the State could count the action as
successful under the timeframe at 303.4(d). In addition, the case would
count as disposition under the expedited process timeframe at 303.101(b)(2)
since consent to jurisdiction would be considered "service of process".
Allowing a consent order to be counted as disposition under expedited process
should provide States an incentive to attempt to establish orders quickly by
To further encourage voluntary paternity acknowledgments and consent support
orders, we will also allow States to satisfy the 303.4(d) timeframe by
"commencing proceedings" with a formal notice requesting the alleged
father/noncustodial parent to voluntarily: either (1) acknowledge paternity
or consent to entry of a support order; or (2) appear at a conference or other
proceeding where he may acknowledge paternity or consent to entry of a support
order. The notice must be documented in the case records. It may be
delivered or served by any procedure which meets State requirements, as long
as a verifiable date of formal "commencement of proceedings" is returned and
maintained in the case record. However, if the State counts such notices for
purposes of the 303.4(d) timeframe, it must meet the expedited process
timeframe at 303.101(b)(2)(i), which would be triggered by the notice. Under
such circumstances, the IV-D agency would have additional time (longer than 90
calendar days) to obtain a consent order prior to filing an action with a
court/administrative authority, but still must establish an order within the
expedited process timeframe at 303.101(b)(2)(i), which would begin on the
date that formal notice is given to the alleged father/noncustodial parent.
The definition of location, the starting point of the revised timeframe at
303.4(d), will remain as stated in 303.3(a). Location means information
concerning the physical whereabouts of the absent parent, or the absent
parent's employer(s), other sources of income or assets, as appropriate, which
is sufficient and necessary to take the next appropriate action in a case. As
stated in the preamble to the final regulation implementing standards for
program operations published on August 4, 1989 (54 FR 32284, 32297), States
should determine whether the information is sufficient to proceed with
necessary action, which may include service of process. Verification of the
information would not be necessary in a situation where the State knows the
information is sufficient to take the next appropriate action. At such time
as it is determined that service of process cannot be effected because the
information is not sufficient to take the next appropriate action, the case
would be referred for additional location attempts.
2. Comment: We received several comments regarding the proposal to create
one expedited process timeframe for support establishment cases that would
apply regardless of whether paternity had been established. Some commenters
endorsed the simplicity and results-oriented nature of this approach. A few
commenters opposed this proposal, arguing in favor of a separate timeframe for
paternity establishment. According to opponents of a combined timeframe,
establishing paternity and support in the same proceeding is untenable since,
in some States, income and employment data cannot be obtained and/or verified
until paternity is established, and the verification process can take several
Response: We decided against having a separate timeframe with paternity
establishment as an "endpoint". Instead, the new expedited process timeframe
at 303.101(b)(2)(i) applies to IV-D cases needing support order establishment
regardless of whether paternity has been established. The endpoint of the
timeframe is either the date a support order is established/recorded or the
date the action is dismissed. Therefore, in cases where paternity and support
order establishment are needed, the IV-D agency must accomplish both actions
within the timeframe (unless action is dismissed).
We chose this approach for several reasons. First, it encourages States to
establish paternity and support in the same proceeding, whenever possible, in
cases where both actions are needed. A separate expedited process timeframe
for paternity establishment would have suggested that States could have two
separate proceedings (and both time periods) for paternity establishment and
support order establishment. The combined timeframe covering both paternity
and support order establishment at 303.101(b)(2)(i) does not require States
to establish paternity and support concurrently in every case. After
paternity is established in some cases, a continuance or other delay may be
necessary to collect or verify financial information necessary to calculate a
support order amount (particularly in a State where the guidelines calculation
is complex). However, we want to encourage States to move quickly from
paternity establishment to support order establishment and to complete both
processes in the same proceeding whenever possible.
Second, having one expedited process timeframe that encompasses both paternity
and support order establishment provides an incentive for States to
aggressively pursue early paternity establishment through hospital-based and
similar programs. If paternity is established or acknowledged at birth, the
State will have a head-start on meeting the expedited process timeframe if the
case subsequently becomes a IV-D case, since one timeframe applies regardless
of whether or not paternity needs to be established.
Third, having one timeframe for establishment makes the expedited process
requirement simpler and easier to understand.
Finally, this approach is more results-oriented and gives States greater
flexibility while still assuring expeditious outcomes. Instead of having an
interim timeframe solely measuring paternity establishment, States are
measured according to their ability to reach the end result (a support order)
in an expeditious manner.
3. Comment: We received several comments regarding the proposed percentage
standards (75, 85, and 90 percent) in the expedited process timeframe for
paternity and support order establishment. Several commenters argued that a
90 percent standard was too low since 10 percent of cases would not be
covered. Other commenters thought the percentage standards were reasonable,
while one commenter thought they were too stringent. One commenter suggested
that the timeframe have only two tiers--75 percent and 90 percent.
Response: The expedited process timeframe for establishment cases at
303.101(b)(2)(i) contains 75 and 90 percent standards. As suggested by a
commenter, for purposes of greater simplicity, we deleted the 85 percent
The tiered-nature of the timeframe (75 percent and 90 percent) is similar to
the former expedited process timeframe. These tiers recognize that some cases
take longer to process than others. They require that the significant
majority of cases be processed within the shortest tier of the timeframe, but
allow a longer period for some cases. The first tier is 75 percent--the audit
standard that has traditionally been used for evaluating compliance with case
processing requirements. The highest standard in the timeframe is 90 percent
of cases, not 100 percent as in the previous expedited process requirement.
By not imposing an absolute standard (100 percent of cases), we have
recognized that there are complex cases, particularly some contested paternity
cases, that cannot be resolved within the required time period.
The 90 percent standard is also justified because we eliminated the provision
which allowed IV-D agencies to exclude complex cases from expedited process.
We deleted 303.101(b)(4) which allowed the State, if a case involved complex
issues requiring judicial resolution, to establish a temporary support order
under expedited processes and then refer the unresolved issues to the full
judicial system for resolution. Since the new expedited process timeframe
includes a 90 percent standard rather than a 100 percent standard, States will
be judged by their ability to meet the timeframe in all cases, including cases
involving complex issues.
4. Comment: We received several comments about the length of the proposed
expedited process timeframe for establishment cases. Some commenters praised
the reasonableness of the timeframe. Other commenters suggested that the
timeframe be shortened, while one commenter thought it should be lengthened.
Response: We have adjusted the length of the timeframe, from what we had
proposed, since activity between locate and service of process will be
measured by the 90-calendar-day timeframe at
303.4(d) rather than the expedited process timeframe at
303.101(b)(2)(i). The new expedited process timeframe requires disposition
within 6 months in 75 percent of cases and 12 months in 90 percent of cases.
Under the new timeframe, a IV-D agency will generally have a shorter amount of
time than under previously-existing timeframes to establish paternity and
support in cases requiring both actions. However, it is difficult to directly
compare the new expedited process timeframe to the previously-existing one
since the two timeframes apply to different universes of cases. The former
timeframe applied to cases requiring support order establishment, while the
new timeframe applies to a broader universe--cases requiring support order
establishment, regardless of whether paternity has been established.
While a direct comparison between the former and new timeframes is difficult,
we believe the length of the new timeframe is reasonable and is based on
careful consideration of several factors. We took into account all of the
steps in the paternity and support establishment processes. For paternity
establishment, we considered that in some cases time is needed for contacting
the alleged father to offer him the opportunity to voluntarily acknowledge;
serving process; scheduling and conducting genetic testing; completing
discovery; and scheduling and conducting trials or hearings. We also
considered the amount of time that it takes for a IV-D agency to obtain test
results from genetic testing laboratories in paternity cases. According to
laboratories that we contacted, it generally takes about three weeks to
receive the written report of results from the lab in a typical case.
Although two commenters suggested that three weeks is inadequate, particularly
in cases involving unusual circumstances, we believe the turnaround time for
receiving genetic testing results is only a small portion of the expedited
process timeframe and does not warrant expansion of the timeframe.
For support order establishment, we considered that time may be needed for
contacting the noncustodial parent; attempting to obtain a stipulation to an
order; serving process; collecting income data and other information needed to
determine the award amount; calculating the award amount using guidelines; and
scheduling and conducting hearings. Many of these steps required for support
order establishment can be accomplished in conjunction with paternity
establishment in cases requiring both paternity and support order
establishment. For example, a IV-D agency can serve process and obtain
jurisdiction for paternity and support order establishment at the same time.
In addition to carefully considering comments on the proposed rule regarding
the timeframe, we contacted national organizations and State IV-D agencies to
obtain whatever information exists regarding the amount of time it typically
takes, overall, to establish paternity and support orders. We also looked at
data gathered in OCSE audits.
However, prior to the enactment of OBRA '93, few, if any, States had an array
of laws which included all of the required features of the revised Federal
statute. Although each reform, by itself, should expedite paternity
establishment, the combined effect of adopting the entire spectrum of
requirements holds tremendous potential for expediting the process.
In particular, the voluntary acknowledgment procedures should allow States to
establish paternity quickly in many cases. For those cases that remain
contested, the regulations regarding default orders, admissibility of genetic
tests, and presumptions of paternity based on genetic test results should
collectively contribute to expediting the paternity determination process in
States may certainly go beyond the basic requirements of this rule and utilize
a variety of other reforms to expedite the process for both paternity
establishment and support order establishment. These reforms may include use
of administrative procedures, court hearing officers, more efficient case
scheduling, pretrial conferences, and improved coordination between the IV-D
agency and the courts. In paternity cases, States may also want to seriously
reexamine the necessity of allowing trial by jury. At least one State, for
instance, has a law which provides that the alleged father does not have the
right to demand a jury trial if genetic test results show a probability of
paternity of 99 percent or higher.
5. Comment: One commenter suggested that the timeframe should run from the
date of locating "the last necessary party to the action", not from the date
of locating "the alleged father or noncustodial parent". The commenter
pointed out that an alleged father or non-custodial parent may apply for IV-D
services. In addition, some cases may involve both an alleged father and a
Response: Although, as discussed above, we did not implement the proposal to
begin expedited process timeframes with the date of location, the commenter's
suggestion is still relevant to the new timeframe at 303.4(d). However, in
the interest of maintaining clarity and consistency with other regulatory
requirements, we did not adopt the commenter's suggestion. We believe the
phrase "the last necessary party to the action" would make the regulatory
language too vague. In the vast majority of cases, it is the alleged father
or noncustodial parent who must be located.
However, in a case where the custodial parent, presumed father, or some other
party besides the alleged father or noncustodial parent must be located and
served in order for the case to proceed, the timeframe at 303.4(d) would not
begin until that party is located.
6. Comment: In the preamble to the proposed rule, we said there may be
paternity establishment cases where under State law or procedures, it is
inappropriate to establish a support order (e.g., if the noncustodial parent
is a minor, incapacitated, or incarcerated). Such a case would still be
counted as disposition if a duty to support is established within the
timeframe (58 FR 62599, 62611). One commenter asked what we meant by "duty to
support". In the commenter's State, it is a civic duty for any parent to
support his or her child; the commenter asked if this duty to support by
operation of law would suffice for disposition if the parent was a minor,
incapacitated, incarcerated, or financially unable at the moment.
Response: A duty to support, in this instance, means a judicial or
administrative determination of the parent's legal obligation. A
determination, under the guidelines or based upon specific circumstances, that
there is no present ability to pay support would count as a disposition.
7. Comment: We received two comments asking if exclusionary genetic test
results, obtained from testing which was completed voluntarily or by
stipulation prior to the filing of an action with a court or administrative
authority, would count as disposition under expedited process.
Response: Such test results will count as disposition if they are obtained
after "service of process", as broadly defined for purposes of the timeframes
at 303.4(d) and 303.101(b)(2)(i). (See discussion above). Because we are
defining "service of process" broadly, "service of process" may occur prior to
filing of an action with a court or administrative authority.
If exclusionary test results are obtained and the man is eliminated from
consideration as a possible father before a formal commencement of
proceedings, the case would be excluded from the universe of cases evaluated
under the expedited process timeframe, and would count neither as a "success"
nor a "failure" under the timeframe. Presumably, in exclusion cases, the
mother would be interviewed again and location efforts would begin to find the
8. Comment: We received several comments requesting that a temporary order
count as disposition under the expedited process timeframe.
Response: A temporary order counts as disposition under the expedited process
timeframe provided that the amount of support is determined in accordance with
the State's guidelines for setting child support awards or there is a finding
on the record that the application of guidelines would be unjust or
inappropriate as specified under 302.56.
9. Comment: Several commenters objected to the proposal that documented
unsuccessful efforts to serve process would no longer stop timeframes.
Commenters argued that some parents move frequently or purposely evade service
making it virtually impossible to complete service in a short period of time.
Response: In response to commenters, the new timeframe at
303.4(d) stops if the IV-D agency documents unsuccessful attempts to serve
process, in accordance with the State's guidelines defining diligent efforts
under 303.3(c). This is consistent with the program standards timeframes
303.4(d) and 303.5(a)(1).
10. Comment: Several commenters suggested that certain cases be excluded
from expedited processes. Specifically, commenters suggested excluding cases
where it would be difficult to meet the timeframes, such as where the
noncustodial parent is in the military, has filed for bankruptcy, or lives in
another State. According to one commenter, without such an exclusion, a IV-D
agency will be forced to dismiss (and later refile) difficult cases in order
to meet the timeframe. In addition, some commenters suggested excluding cases
where there is no legally reachable income on which to base an award or where
the noncustodial parent has no ability to pay. According to commenters,
actions to establish orders in such cases are futile and a waste of time and
resources. Finally, one commenter asked that cases in which the custodial
parent fails to cooperate be excluded from expedited process timeframes.
Response: Although paternity cases involving alleged fathers in the military
service, or who have declared bankruptcy, or who live in a different State
often present additional challenges and may be more complicated, we are not
excluding such cases from the expedited process requirement. Although some
cases present more difficulty, all cases should be worked as quickly as
possible. Nor are we aware of any empirical data upon which to identify and
exclude particular categories of cases from expedited process. Even in the
previous illustrations, we believe that actions can generally be pursued, and
most cases will be resolved within the established timeframes. As an
alternative to wholesale exclusions, we developed a 90 percent standard in
recognition that it may be difficult to meet the timeframe in certain cases.
This approach allows the IV-D agency to exceed the timeframes in a small
percentage of cases, but does not allow the IV-D agency to automatically
exempt entire categories of cases from receiving timely services.
States should not dismiss a case simply to meet the timeframe. We believe the
timeframe is reasonable for the great majority of cases, and IV-D agencies are
allowed to exceed the timeframe in 10 percent of cases. Section 303.4(e)
requires that if the court or administrative authority dismisses a petition
for a support order without prejudice, the IV-D agency must, at the time of
dismissal, examine the reasons for dismissal and determine when it would be
appropriate to seek an order in the future, and seek a support order at that
time. As part of this process, the reason for dismissal should be documented
in the case record. A case dismissed for inappropriate reasons (i.e., simply
to meet the timeframe), will be considered, for audit purposes, an error,
rather than a success, under expedited process requirements.
Furthermore, we are not allowing IV-D agencies to exclude from expedited
process cases where there is no legally reachable income on which to base an
award or where the noncustodial parent has no ability to pay. Prior to
support establishment action (e.g., the discovery process, a hearing), it may
be impossible to accurately identify cases where a noncustodial parent
actually has no reachable income or ability to pay. Furthermore, even if a
noncustodial parent currently has little or no ability to pay, his earnings
may increase in the future. When that time comes, it may be easier for the
IV-D agency to collect support if a nominal support order, or at least a
finding of the duty to support, was previously entered. Although we are not
explicitly excluding cases where the noncustodial parent has no ability to
pay, in certain circumstances a determination that it would be inappropriate
to establish a support order in a case (e.g., if the noncustodial parent is a
minor, incapacitated, or incarcerated) may count as a disposition under
expedited process requirements, as explained previously. See comment 6.
Finally, as mentioned above, one commenter requested that AFDC cases where the
custodial parent fails to cooperate (but IV-A fails to sanction noncooperation
quickly) should be excluded from expedited process timeframes. Since the
expedited process timeframe begins with service of process, cases where the
custodial parent refuses to cooperate from the outset of the case are not a
concern in meeting the timeframe. However, in other cases, the custodial
parent may only refuse to cooperate later in the case (e.g., refusal to
cooperate with genetic testing). The IV-D agency should clearly document the
custodial parent's noncooperation and notify the IV-A agency for action in
accordance with 45 CFR 232.12(c). If noncooperation is the reason for the
IV-D agency's inability to move forward in a case (e.g., the custodial parent
refuses to provide a blood sample for genetic testing), and the IV-D agency
has taken all appropriate action, the case will be excluded from the audit
11. Comment: One commenter requested clarification regarding the extent to
which States can claim credit under expedited process for acknowledgments of
paternity obtained through a hospital-based program or simple, civil
Response: Under the new expedited process requirement, a State can only count
a case as a success once disposition is reached--i.e., once a support order is
established/recorded or action is dismissed. Paternity establishment by
itself, without a support order or determination that an order for support is
not appropriate, will not count as a disposition, regardless of whether the
paternity was established by voluntary acknowledgment or some other method.
However, as States implement hospital-based and other simple voluntary
acknowledgment programs, paternity will be presumed or established in more
instances prior to the opening of a IV-D case. In these cases, the IV-D
agency will be able to move directly to establishing a support order, making
it easier to meet the expedited process timeframe.
12. Comment: In the preamble to the proposed rule, we solicited comments
regarding the proposal to begin paternity establishment timeframes at the same
point in all cases, regardless of whether a child is younger than six months
of age. Some commenters supported the proposal, while others opposed it.
Opponents argued that some jurisdictions refuse to order genetic testing on
infants under six months of age. According to these commenters, many of the
new genetic testing technologies which make testing on infants easier have not
yet been widely accepted in the scientific community, have not been certified
by the American Association of Blood Banks (AABB), and are not covered by most
States' existing contracts with genetic testing laboratories. One commenter
also expressed concern about the workload impact on hospital staff (in cases
involving umbilical cord sampling) and the fiscal impact on IV-D agencies and
unmarried parents (due to the higher cost of new testing technologies).
Another commenter suggested that a six-month delay was inconsequential since
fathers in many AFDC cases provide little or no support.
Response: The one-year paternity establishment timeframe at former
303.5(a)(2) included an exception for cases needing paternity establishment
where the child was less than six months old. Under this exception, the
timeframe did not begin in a case until the child reached six months of age.
The exception reflected the practice of waiting to draw blood samples for
certain genetic tests until after the infant was at least six months old.
At the time that the six-month-old-child exception was included in regulation,
we indicated, in the preamble to the Standards for Program Operations final
rule, that in the future we would reexamine the exception in light of testing
which does not require the child to be six months old (54 FR 32284, 32301).
We have now reexamined the exception and deleted it. The expedited process
timeframe at 303.101(b)(2)(i) begins with the date of service of process
regardless of the age of the child.
According to genetic testing laboratories that we contacted, genetic tests are
valid when performed on a child under six months of age, as long as certain
tests are not used. The American Association of Blood Banks (AABB) states
that children under six months of age should not be tested for two serum
protein genetic markers (Gm and Km). Testing for these markers could reveal
maternal typings, rather than those of the child, in cases involving infants.
However, many other tests, including those which examine red blood cell
antigens, human leukocyte antigens (HLA) and deoxyribonucleic acid (DNA) can
be accurately performed on infants.
Although difficulty may be encountered in drawing a sufficient quantity of
blood from a small infant in some cases, emerging technology helps to address
this problem. This technology includes DNA testing which can be performed
using a single spot of blood (obtained, for example, by a heel stick), DNA
testing (where samples of the buccal cells lining the child's cheek are taken
on a swab from inside the baby's mouth), and umbilical cord sampling where
blood samples are taken from the newborn's umbilical cord. As a consequence,
there is no longer any scientific necessity or basis for allowing the
In response to commenters concerns, we are not requiring that States use these
new genetic testing technologies. We believe that Federal timeframes allow
sufficient time even if such technologies are not used. Because the top tier
of the expedited process timeframe is 90 percent, States are allowed to exceed
the timeframe in 10 percent of cases.
While removal of the six-month exception does not require the use of certain
genetic testing technologies, it does encourage States to initiate the
paternity establishment process as soon as possible in each case. Even in a
case where the father can initially provide only minimum support, the father's
income may increase with time. Furthermore, it is often easier to locate the
father and obtain his cooperation soon after birth. The earlier paternity is
established, the sooner the child will have access to the father's medical
benefits, medical history information, a relationship with the father, child
support, and other benefits resulting from paternity establishment.
13. Comment: We received a number of comments regarding the application of
the expedited process establishment timeframe to interstate cases. One
commenter suggested that we create a separate timeframe for interstate cases.
The commenters also requested clarification and made suggestions regarding
which state would be responsible for meeting the timeframe and when the
timeframe would start in an interstate case.
Response: As stated in 303.101(b)(1), expedited process requirements apply
to both interstate and intrastate cases. We have not created a separate
timeframe for interstate cases. This policy is consistent with policy
regarding other timeframes, including program standard timeframes, which apply
to interstate cases as well as intrastate cases. We believe the expedited
process timeframe is reasonable for most interstate cases, and IV-D agencies
are allowed to exceed the timeframe in 10 percent of cases. The timeframe at
303.4(d) also applies to both interstate and intrastate cases.
The responding State is responsible for meeting timeframes, including the
expedited process timeframe, in interstate cases. Regarding the starting
point of the timeframe in an interstate case, the new expedited process
timeframe begins with the date of service of process in the responding State.
The timeframe at
303.4(d) begins upon receipt of a case by the local IV-D agency in the
responding State responsible for the establishment of support orders. This
approach is consistent with previously-issued policy regarding program
standard timeframes that begin with the date of location (e.g., see preamble
to final regulations on standards for program operations published August 4,
1989 at 54 FR 32284, 32300).
14. Comment: One commenter requested clarification regarding whether the new
expedited process provision at
303.101(b)(2)(iii) required States to use long-arm jurisdiction. The
commenter suggested that States should have flexibility to determine, on a
case-by-case basis, whether or not to use long-arm in a case.
Response: In paternity cases, Federal regulations at
303.7(b)(1) require a State to use its long-arm statute, if it has such a
statute, where appropriate. OCSE also encourages, but does not require,
States to use long-arm statutes in support establishment cases.
In developing the new expedited process timeframe, we considered its impact on
the use of long-arm jurisdiction. Cases brought under long-arm jurisdiction
may require some additional work to establish jurisdiction over a nonresident.
Therefore, IV-D agencies may have more difficulty meeting the expedited
process timeframe in cases involving nonresident alleged fathers. Because we
do not want the timeframe to force a IV-D agency to refer a case involving a
nonresident alleged father/obligor to the State of his residence rather than
asserting local jurisdiction over him whenever possible, a State will be given
"credit" for disposing of a case using long-arm jurisdiction. Under
303.101(b)(2)(iii), for purposes of the expedited process timeframe for
paternity and support order establishment, in cases where the IV-D agency uses
long-arm jurisdiction and disposition occurs within 12 months of service of
process upon the alleged father or noncustodial parent, the case may be
counted as a success within the 6-month tier of the timeframe, regardless of
when disposition occurs in the 12-month span following service of process.
15. Comment: One commenter asked how a case would be evaluated under the
audit if action to establish paternity or support using long-arm jurisdiction
is "in process" at the time of the audit but there has been no disposition.
Response: A case where long-arm jurisdiction is used will be excluded from
consideration under the audit for both the 6- and 12-month tiers of the
expedited process timeframe at 303.101(b)(2)(i), if action to establish
paternity or support was still in progress and the 12-month-tier of the
timeframe had not yet expired during the audit period. If the 12-month-tier
of the timeframe had expired during the audit period without disposition, the
case will count as an error under the 12-month standard but will be excluded
from an evaluation of the 6-month standard.
Generally, for cases worked by means other than long-arm jurisdiction, a case
will only be evaluated under a particular timeframe if the timeframe expires
during the audit period. However, if a timeframe expires during or after the
audit period for a case with disposition within the audit period, the case
will count as a success. If a timeframe expires during the audit period for a
case without disposition within the audit period, the case will count as an
16. Comment: One commenter asked if actions to establish medical support
orders would still be subject to the expedited process timeframe.
Response: Yes, establishment of medical support orders will be subject to the
expedited process timeframe at 303.101(b)(2)(i). However, since medical
support is usually included as a part of the child support order, not as a
separate order, this should not be an issue.
b. Enforcement Timeframes.
1. Comment: Several commenters argued that expedited process timeframes for
enforcement should not be deleted. They stressed the importance of ensuring
that orders are enforced in a timely manner.
Response: We agree about the importance of timely enforcement. However, to
simplify and clarify enforcement requirements, we have deleted the expedited
process timeframe for enforcement formerly at 303.101(b)(2). Under this
timeframe, from the date of service of process, disposition had to occur
within 3 months for 90 percent of cases, 6 months for 98 percent of cases, and
12 months for 100 percent of cases. The scope of this timeframe had been
limited, applying only to enforcement activity in a State's administrative or
judicial system that occurred after service of process. The timeframe was
further limited since in the preamble to the final regulations implementing
the Child Support Enforcement Amendments of 1984 (50 FR 19608, 19629) we
stated that "we did not require State's expedited processes to provide for
bench warrants and subpoena and contempt powers."
It is much simpler and clearer to have one timeframe at
303.6(c)(2) covering all enforcement activities (other than income
withholding and Federal/State income tax refund offset). This timeframe will
ensure that States expeditiously enforce child support orders in IV-D cases.
It requires enforcement action within no more than 30 calendar days (if
service of process is not needed) or 60 calendar days (if service of process
is needed) of identifying a delinquency or other support-related
noncompliance, or location of the absent parent, whichever is later.
The preamble to the final rule governing standards for program operations (54
FR 32284, 32302) indicated that the 30/60 calendar-day timeframe at
303.6(c)(2) would apply to "consent procedures and administrative procedures
such as debt collection, telephone contact, demand letters, or publication of
names". However, we are now expanding the scope of this timeframe to cover
all enforcement techniques other than wage withholding and State/Federal
income tax refund offset. This includes, but is not limited to imposing liens
on real or personal property; requiring the obligor to post security, bond, or
other guarantee to secure payment of overdue support; reporting delinquency
information to a consumer credit agency; withholding unemployment
compensation; and other State remedies.
The timeframes at 303.100 will continue to apply in wage withholding cases.
These regulations, for example, include timeframes for sending advance notice
to the obligor in initiated withholding cases, timeframes for procedures to
contest withholding, and timeframes for interstate wage withholding.
2. Comment: Two commenters contended that the timeframe at
303.6(c)(2) did not allow sufficient time for some enforcement actions. One
of these commenters thought the timeframe would be particularly difficult to
meet when using judicial enforcement remedies such as contempt. The other
commenter pointed out that it was not cost-effective to have frequent
enforcement hearings in rural areas, due to the travel costs for IV-D
attorneys and the tribunal's decisionmaker. Another commenter maintained that
the 30/60 day timeframe was sufficient, provided that States adopt high volume
Response: The timeframe at 303.6(c)(2) has been in effect since October 1,
1990 under regulations governing standards for program operations (54 FR
32284). We believe it is reasonable to expect that a support order be
enforced within 30/60 calendar days (depending on whether service of process
is necessary) of identifying a delinquency or location of the absent parent,
whichever is later, as required by 303.6(c)(2). The timeframe allows for
additional time in cases requiring service of process.
In addition, we concur with the commenter who recommended that States adopt
high volume enforcement procedures. Through extensive use of automation and
administrative processes, a State can effectively and swiftly enforce a large
number of cases.
We are aware, however, that there may be some instances where it is difficult
to meet the timeframe. Use of the 75 percent standard for audit purposes
recognizes that action may take longer in some cases [such as cases involving
the Soldiers and Sailors Relief Act (50 U.S.C. 501-591)]. Furthermore, the
new "credit for results" provision of the audit regulation at
305.20(a)(4)(iv) will consider the State to have taken appropriate action for
audit purposes, regardless of whether timeframes at 303.6 and other specified
timeframes are met, if, in a case where wage withholding is not appropriate,
the State uses at least one enforcement technique (in addition to Federal and
State income tax refund offset) and a collection is received during the audit
3. Comment: Two commenters questioned how often, if at all, a IV-D agency
must take enforcement action in accordance with
303.6(c)(2) in chronic enforcement cases where the obligor has neither the
assets nor the intent to comply with the order. One of the commenters argued
that attempting enforcement action in a case where the IV-D agency knows the
noncustodial parent cannot pay is a waste of resources.
Response: Enforcement action may be appropriate even in cases where the IV-D
agency believes that the obligor cannot pay since it is sometimes difficult
for the IV-D agency to detect "hidden" assets or income. Enforcement action
such as a contempt may stimulate an obligor to pay, even if he initially
claimed he was unable.
States have discretion with respect to which enforcement techniques other than
wage withholding and Federal/State income tax refund offset are appropriate,
as long as there is compliance with Federal regulations, State procedures, and
guidelines developed under 302.70(b) which outline when it is not appropriate
to use certain enforcement techniques.
At a minimum, a IV-D agency must take any appropriate enforcement action
(other than income withholding and Federal/State income tax refund offset)
within 30 calendar days of identifying a delinquency, or 60 calendar days if
service is required. Once initial enforcement action is taken, if arrears are
paid, but the obligor later falls into arrears again, the IV-D agency must
again take any appropriate enforcement action within the 30/60-calendar-day
If an obligor fails to resume payments and/or pay arrearages after initial
enforcement actions are taken, the IV-D agency should determine on a
case-by-case basis the frequency with which it will take follow-up enforcement
action (besides income withholding and Federal/State income tax refund
offset). Under 303.6(c)(4), a IV-D agency must, in cases in which
enforcement attempts have been unsuccessful, at the time an attempt to enforce
fails, examine the reason the enforcement attempt failed and determine when it
would be appropriate to take an enforcement action in the future, and take an
enforcement action in accordance with the requirements of 303.6 at that time.
Certainly, an obligor who claims no ability to pay could request a review, and
an adjustment of the support order amount can be pursued if appropriate.
4. Comment: Another commenter suggested that the terms "taking an
enforcement action" and "enforcement action taken" in
303.6(c)(2) need to be defined.
Response: Within the 30/60-calendar-day timeframe at
303.6(c)(2), the IV-D agency must "take" appropriate enforcement action.
This means that the IV-D agency must, within the timeframe, commence and
complete appropriate enforcement action that will potentially result in
collections. Collections do not necessarily have to be received within the
timeframe as a result of the enforcement action in order for the action to be
considered "taken" and counted as a success under the timeframe. Examples of
enforcement actions that would be considered "taken" for purposes of the
timeframe at 303.6(c)(2) include, but are not limited to: reporting
arrearages to a credit reporting agency, imposing a lien against real or
personal property, suspending or denying a professional or driver's license,
or seizing property.
5. Comment: We received comments seeking clarification regarding how
enforcement timeframes would be audited. One commenter asked if the 75
percent audit standard applied to the enforcement timeframes. Another
commenter asked if a State that was out of compliance with the enforcement
timeframes would also be out of compliance with expedited process
Response: The 75 percent audit standard applies to enforcement timeframes at
303.6(c)(2) and 303.100. Failure to meet these timeframes in 75 percent of
cases may result in an audit finding under the enforcement criteria at
305.20(a)(3)(iii), not the expedited process criteria at 305.20(a)(5).
c. Judges as Presiding Officers.
1. Comment: Several comments related to the use of judges in expedited
processes. Favorable comments supported the results-oriented nature of the
proposal. One commenter said the proposal would assist small counties that
cannot justify the hiring of a referee or magistrate. Other commenters
objected to the proposed change, arguing that it would weaken the use of
Response: As we stated in the proposed rule, with the addition of paternity
establishment to expedited processes, it is necessary to remove the
prohibition against the use of judges as presiding officers in expedited
processes. Currently, most States use judges as decisionmakers in the
majority of paternity cases. Even States that effectively use an
administrative process within the executive branch of government to process
uncontested cases frequently transfer contested cases to the judicial system.
If the Federal government suddenly and completely banned the use of judges as
presiding officers in paternity establishment cases, the disruption caused by
this abrupt change would offset the benefits of including paternity
establishment in expedited process.
Our approach gives States more flexibility while still achieving the desired
outcome--expeditious processing of cases. By allowing States to use judges,
States have the option to carry out the duties of a presiding officer by
either a judge or a judge surrogate, according to their needs. A judge
surrogate may be a hearing officer, referee, court master or other decision
maker outside of the traditional court system.
Allowing the use of judges as presiding officers is consistent with the
statute. States have the option of using their existing judicial system or
administrative processes for expedited processes as long as actions are
performed in an effective and timely manner. The Act does not prohibit using
a judge as the presiding officer for expedited processes.
This revision is in no way a suggestion that States should abandon established
quasi-judicial or administrative processes, nor is it meant to discourage
other States from implementing such procedures. Many States have found
administrative process to be crucial in expediting case processing. States
currently using their judicial systems for paternity and child support cases
may need to reconsider their present decision-making process in order to meet
the new expedited process timeframes. Our intent in allowing judges to serve
as presiding officers is to maximize the State's capability of operating a
child support program that is effective and efficient and meets the needs of
2. Comment: There were a few comments recommending deleting the prohibition
of FFP for judges. One commenter asked whether FFP would be available under
expedited judicial process for the costs of a court bailiff, court reporter,
court secretary, court personnel, court space and court administrative costs
resulting from IV-D activities.
Response: Federal funding continues to be available for administrative costs
associated with decisionmakers in administrative and quasi-judicial processes
but is unavailable for costs of compensation of judges and other judicial
expenses. Under 304.21(b), FFP is not available for the costs of: (1)
service of process and court filing fees unless the court or law enforcement
agency would normally be required to pay the cost of such fees; (2)
compensation (salary and fringe benefits) of judges; (3) travel and training
related to the judicial determination process incurred by judges; (4)
office-related costs, such as space, equipment, furnishings and supplies,
incurred by judges; and (5) compensation (salaries and fringe benefits),
travel and training, and office-related costs incurred by administrative and
support staffs of judges. Administrative and support staffs of judges include
court bailiffs, court reporters, court secretaries, and other court personnel.
Federal regulations at 304.10 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. Section 74.171 states that the rules for determining
which services and activities meet the necessary expenditure test for Federal
funding are provided by the Office of Management and Budget's (OMB) Circular
A-87, "Cost Principles for State and Local Governments." Attachment A.,
Section C.1.a. provides that allowable costs must "[b]e necessary and
reasonable for proper and efficient administration of the grant programs, be
allocable 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."
We do not believe compensation of judges and related court costs are allowable
under the prescriptions of OMB Circular A-87. In 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. Most judges and courts have multiple
responsibilities besides child support enforcement, and it would be difficult
or impossible to accurately determine which costs are attributable to child
Furthermore, OMB has proposed revisions of Circular A-87 issued October 14,
1988 (53 FR 40359). Attachment B, section 21.a of these proposed revisions
specifies that general costs of government interagency services for which FFP
is not available include "(c)ost of the judiciary branch." While such an
explicit reference to "cost of the judiciary branch" is not contained within
the current version of Circular A-87, the proposed language indicates OMB's
intent to treat such costs as general State or local government expenses.
In addition to the OMB policy, the Senate Committee on Finance, in its report
on H.R. 4325, which became the Child Support Enforcement Amendments of 1984,
Pub. L. 98-378, stated that "(i)t is not the intent of the Congress to match
all costs that might be related to operating a child support enforcement
program." (See S.Rep. No. 387, 98th Cong., 2d Sess. 23 reprinted in 1984 U.S.
Code Cong. & Admin News 2397, 2419).
Finally, while we have amended the expedited process requirements to give
States the flexibility to determine the best way, including the possible use
of judges, to expedite their procedures, we strongly urge States with
administrative and quasi-judicial procedures to continue using such
procedures. We also want to encourage other States to consider adopting such
procedures. If we were to provide FFP for judges and related court costs,
States with court-based systems would have less of an incentive to consider
alternative, and potentially more expeditious, processes for providing
3. Comment: One commenter requested clarification regarding which expedited
process requirements a State could request an exemption from under
Response: The provision allowing exemptions from expedited process
requirements is codified at section 466(a)(2) of the Act. By deleting the
requirement that a presiding officer may not be a judge, these final
regulations should reduce the necessity for exemptions for expedited
processes. In fact, we do not believe any of the expedited process
requirements would now be a logical basis for an exemption.
Since exemptions were routinely granted to jurisdictions using judges that
meet the expedited process timeframes, this rule allows jurisdictions that
meet the timeframes to use judges without having to go through the exemption
request and renewal processes. However, jurisdictions which use judges will
be subject to audit scrutiny to determine if they are meeting the required
expedited process timeframes, and will be subject to possible penalty if they
fail to meet the timeframes. This approach will save time and money for both
local and State agencies and the Federal government, without sacrificing
expediency in case processing.
d. Other Issues.
1. Comment: We received three comments regarding the requirement at
303.101(c)(3) that parties must be provided a copy of the paternity
determination and support order. One commenter asked if "paternity
determination" includes a voluntary acknowledgment. Another commenter said
furnishing an actual copy of the determination/order is not possible when a
party cannot be located, and suggested that the parties be provided notice,
rather than a copy, of an order/determination at the last known address. The
third commenter requested clarification of initiating and responding State
responsibilities under this requirement in interstate cases.
Response: Section 303.101(c)(3) requires that the parties be provided a copy
of any voluntary acknowledgment of paternity, paternity determination, or
support order that is obtained or established through the IV-D agency's
expedited process. We added voluntary acknowledgment of paternity to this
requirement in response to the comment mentioned above. States must send an
actual copy of the acknowledgment, determination, or order, not simply a
notice. If allowable under State law and procedure, the copy may be mailed to
the last known address of each party.
Under this requirement, copies should be provided to both parents in AFDC and
non-AFDC cases, and to any other State which has an assignment of support
rights in the case.
In an interstate case, the responding State should send a copy to the IV-D
agency in the initiating State, rather than directly to the parent residing in
the initiating State. The initiating State would then be responsible for
forwarding a copy to the parent residing in the initiating State.
2. Comment: We received two comments regarding changes to State automated
systems necessitated by the new expedited process requirements. One commenter
asked if enhanced Federal funding will be available for making changes to
State systems to accommodate changes to expedited process requirements.
Another commenter asked that the effective date of the expedited process
requirements be delayed a year after issuance of final regulations to permit
States to make necessary changes on automated systems to track the new
Response: FFP at the enhanced rate is available for development of statewide
computerized support enforcement systems, including system changes
necessitated by changes in Federal law (e.g., modifications necessary to
implement changes to expedited processes) until September 30, 1995. If
modifications to the statewide computerized support enforcement systems are
made after that date, regular FFP is available for the costs of those system
modifications. The Child Support Enforcement systems certification review
mandated by 302.85 will be based on the functionality to support requirements
from the Family Support Act of 1988 and preceding requirements. If, however,
a State requests certification subsequent to publication of these rules, we
would permit the State the option of designing their paternity timeframes to
meet OBRA '93 requirements.
Since the statute has an effective date of October 1, 1993 (or later if
enactment of State law is necessary to conform to the requirements), the
effective date of these regulations cannot be delayed further. Although we
recognize the demands placed upon States by the new requirements, we believe
that Congress did not intend to delay implementation of these requirements
beyond the effective date of the statute.
3. Comment: One commenter asked if non-compliance with expedited process
requirements would be treated as an audit issue or a State plan issue.
Response: Section 302.70(a)(2) requires State plans to include laws and
procedures for expedited processes. Therefore, failure to have relevant laws
and procedures could result in disapproval of a State plan. States may need
laws and procedures to implement required safeguards under 303.101(c) or
functions under 303.101(d).
Section 305.20(a)(5) requires that a State, as a condition of being determined
in substantial compliance with title IV-D requirements, meet the requirements
for expedited processes under 303.101(b)(2)(i) and (iii), and (e).
Therefore, failure to meet expedited process timeframes could result in a
determination of substantial noncompliance and imposition of the penalty.