U.S. Department of Health and Human Services
Administration for Children & Families
Office of Child Support Enforcement
DATE: February 8, 1999
TO: All State IV-D Directors
FROM: David Gray Ross
Office of Child Support Enforcement
RE: Order/Notice to Withhold Income For Child Support
This is in response to inquiries for clarification of the use of the standardized form required by section 324 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193) which amended section 452(a)(11) of the Social Security Act. The form was issued January 27, 1998 by OCSE-AT-98-03.
Question 1: Does the Federal Order/Notice to Withhold Form provide adequate notice/due process protection for all States?
Response: No. The Federal form is not intended to provide full due process notice since that is strictly a matter of State law. Therefore, employers should be aware that upon receipt of the Standard Order/Notice to withhold, they are to implement it in accordance with the appropriate State due process laws.
Due Process requirements are a matter of State law, not Federal IV-D law/regulation. Federal law provides that the Standard Order/Notice to Withhold must be used in accordance with all appropriate State due process requirements. Since State due process laws apply to all cases, IV-D or non-IV-D, it is then up to the States to ensure that all employers are aware of, and follow these laws. Section 502 of UIFSA specifies that the law of the issuing State applies except in specific instances noted in section 502(d) where the law of the State of the obligor’s principal place of employment applies.
Question 2: Must the Federal form be used in all cases (IV-D /non-IV-D, and interstate/intrastate)?
Response: Yes. The Federal form must be used in all cases, including IV-D, non-IV-D, interstate and intrastate. Use for non-IV-D is effective after 1/1/94 (section 466(a)(8)(B) of the Act). Section 466(b)(6)(A)(ii) requires that the form prescribed by the Secretary must be used in IV-D cases to notify employers of an order to withhold. This requirement applies to both interstate and intrastate cases. Similarly, section 466(a)(8)(B)(iii) requires that the same forms must be used in non-IV-D cases, both interstate and intrastate.
Question 3: Does Federal law require that withholding be carried out administratively in all cases -- IV-D and non-IV-D?
Response: No. Section 466(a)(2) of the Act only specifies that withholding be done administratively in IV-D cases.
Question 4: May a State require that a court/administrative officer sign the form in non-IV-D cases?
Response: Yes. While the standard form must be used in all cases, it is permissible for States to have laws requiring that a court/administrative officer in non-IV-D cases sign the Notice. If a signature is required on the form in non-IV-D cases, lines 28(a) and (b) serve that function. However, it should be noted that, if a Notice to Withhold is received by an employer in a State requiring judicial/administrative signature from a State that does not require such signature (i.e., withholding is done administratively in all cases), the employer in the "receiving" State must honor the request for withholding without a judicial or administrative officer’s signature.
Question 5: Is the Federal Standard Order/Notice to Withhold actually an Order or is it a
Notice to employers to withhold?
Response: It is both a notice to the employer and an order to which the employer must comply. Federal law requires that all IV-D orders and those non-IV-D orders issued after 1/1/94 must contain provisions for withholding. The Order/Notice is meant to both notify the employer of the withholding requirement in a judicial or administrative support order as well as compel the employer to comply. In addition, no employer may require that the State IV-D agency or agent of the court provide a copy of the actual support order, nor may they require that the Notice to withhold be served via certified, or any other special type of mail (see DCL-98-107).
Question 6: Who is authorized to serve or issue this form to an obligor's employer other than a IV-D agency?
Response: Formal service of the Notice is not required; anyone may transmit the Notice to the employer. Comments to Section 501 of UIFSA state, "...the Act does not restrict who may send an income withholding order across state lines. Although the sender will ordinarily be a child support enforcement agency or the obligee, the obligor or any other person may supply an employer with the income withholding order...Therefore, receipt of a copy of a withholding order by facsimile, regular first class mail, registered or certified mail, or any other type of direct notice is sufficient to provide the requisite notice to trigger direct income withholding in the absence of a contest by the employee-obligor." In States where a signature is not required, an individual may obtain the Federal form from the IV-D office for submission to the employer. See question 4 for additional information.
cc: ACF Regional Administrators
Regions I - X