POLICY INTERPRETATION QUESTIONS
DATE: March 31, 2004
TO: State IV-D Directors
FROM: Sherri Z. Heller, Ed.D.
Office of Child Support Enforcement
SUBJECT: Processing Cases with Foreign Reciprocating Countries
The Office of Child Support Enforcement (OCSE) has received inquiries from several states asking for policy guidance regarding interstate case processing rules as they apply to foreign reciprocating countries.
In 1996, section 459A of the Social Security Act (the Act) affirmed that “[t]he Secretary of State, with the concurrence of the Secretary of Health and Human Services, is authorized to declare any foreign country (or a political subdivision thereof) to be a foreign reciprocating country if the foreign country has established, or undertakes to establish, procedures for the establishment and enforcement of duties of support owed to obligees who are residents of the United States, and such procedures are substantially in conformity with the standards prescribed under subsection (b) [which include procedures for establishing paternity and enforcing orders].” Pursuant to this authority, the Federal government is entering into reciprocal agreements with foreign countries. (The OCSE website shows the updated listing of countries with which the United States has reciprocating agreements)
QUESTION 1: What are the IV-D agency’s responsibilities when providing services to foreign reciprocating countries?
RESPONSE: Under section 454(32)(A) of the Act, each state plan for child and spousal support must “provide that any request for services under this part by a foreign reciprocating country or a foreign country with which the State has an arrangement…shall be treated as a request by a state.” In addition, section 454(32)(C) of the Act provides that “no applications will be required from, and no costs will be assessed for such services against, the foreign reciprocating country or foreign obligee (but costs may at State option be assessed against the obligor).”
QUESTION 2: Must other countries meet case processing timeframes in Federal regulations, including the interstate timeframes discussed in 45 CFR 303.7?
RESPONSE: No. Federal IV-D regulations only apply to U.S. states that are receiving IV-D funds. Foreign reciprocating countries may not be able to respond to requests from states within the timeframes that apply to interstate cases.
QUESTION 3: Must state IV-D agencies meet the same case processing timeframes set forth in Federal regulations when working on international cases as they do in interstate cases?
RESPONSE: Yes. As discussed in the response to the first question of this PIQ, states must treat requests for assistance from foreign reciprocating countries the same as requests from other states. Therefore, the timeframes apply to these cases. However, please see PIQ-03-04, question 2, which is duplicated below:
Question 2: How does the two-day rule in Section 454B of the Act apply to foreign payments?
Answer: Section 454B(c) requires that the SDU "distribute all amounts payable under section 457(a) within 2 business days after receipt from the employer or other source of periodic income, if sufficient information identifying the payee is provided" (emphasis added). Thus, the state should send the converted U.S. dollar payment to the custodial parent within two days of receipt.
We recognize that foreign payments present unique and significant transaction costs – in terms of both time and money. Neither the Act nor related regulations expressly recognize the impact of these costs on the disbursement of support. However, in light of Congress’ commitment to international enforcement (see, e.g., sections 454(32) and 459A of the Act), we do not believe that Congress intended for U.S. families to be denied prompt payments of child support simply because the payments are received in a foreign currency.
Section 454B(c) generally defines the date of a collection as the date of receipt by the SDU. With respect to a payment in a foreign currency, we interpret the date of receipt to be the date that the converted payment is received by the SDU. For example, if a state receives a check in Canadian dollars, it may need to send the payment to a bank to convert the amount into U.S. dollars, a process that may take more than the two days provided for in the Act. In this case, a state should disburse the payment in U.S. dollars within two business days of receiving the converted payment. A state should make every reasonable effort to initiate the conversion of foreign payments within two days.
QUESTION 4: May a state close an international case using 45 CFR 303.11(b)(12) [where the agency documents failure by the initiating State to take an action which is essential for the next step in providing services] if a foreign country does not provide necessary information requested by the state within the 30-day timeframe set by Federal regulations for interstate cases?
RESPONSE: No. The 30-day timeframe does not apply to foreign reciprocating countries (see question 2). It is imperative that sufficient time be allowed when the need for translating, the use of international postal services and the diversity of child support enforcement systems throughout the world pose barriers to getting information from the initiating foreign reciprocating country to the responding state within the timeframes in IV-D regulations for cooperation between state IV-D agencies. Thus, it would be inappropriate to close cases precipitously. OCSE strongly encourages states to communicate by email or phone with foreign reciprocating countries and to allow sufficient time for a response.
QUESTION 5: Some foreign reciprocating countries have expressed concern that when the responding state locates a noncustodial parent in a different state, the responding state refuses to forward the case and asks the foreign reciprocating country to resubmit a new petition to the state in which the noncustodial parent has been located. What is the appropriate procedure for the responding state when this occurs?
RESPONSE: States may not simply refuse to forward the case and instruct the foreign reciprocating country to resubmit a new petition. 45 CFR 303.7(c)(6) provides that “Within 10 working days of locating the noncustodial parent in a different State, the IV-D agency must – (i) Return the form and documentation, including the new location, to the initiating State, or, if directed by the initiating State, forward the form and documentation to the central registry in the State where the noncustodial parent has been located; and (ii) Notify the central registry where the case has been sent.” When “directed” by the initiating state or a foreign reciprocating country [in which “directed” could be the equivalent of an email or phone call], states must forward the relevant paperwork to the appropriate state.
QUESTION 6: What date should be applied for converting the foreign country’s order amount into a U.S. dollar amount (for example, the date the request for review was received or the date the order was entered)?
RESPONSE: There is no Federal rule on this issue. The decision should be made based on state law and procedure.
QUESTION 7: Is a state required to provide spousal-only services in response to a request by a foreign reciprocating country when there is no child involved?
RESPONSE: No, state IV-D agencies are not required to provide services in a spousal-only case. Under Section 454(4)(B) of the Act, a state must “enforce any support obligation established [for] – (i) a child with respect to whom the State provides services under the [state] plan; or (ii) the custodial parent of such a child.” Furthermore, section 454(32)(B) of the Act allows a state plan, at state option, to provide “for services under the plan for enforcement of a spousal support order…entered” by a foreign reciprocating country or a foreign country with which the state has an arrangement.
QUESTION 8: May a state require the physical presence of an individual who is residing in a foreign country in order to proceed with a child support hearing?
RESPONSE: No. Please see AT-98-30, question 5, which is duplicated below:
Question 5. Does UIFSA [the Uniform Interstate Family Support Act] provide a solution to the logistical problems associated with IV-D staff, parties or witnesses being required to travel long distances to appear before the appropriate tribunal in the responding State?
Answer: Yes. Section 316(a) of UIFSA states that the physical presence of the petitioner in the responding tribunal is not required for the establishment, enforcement, or modification of a support order or a determination of parentage. In accordance with section 316(f) of UIFSA, a State may permit witnesses to appear via telephone, or other electronic means, at any proceeding held under the Act. We encourage States to take advantage of this authority.
QUESTION 9: Are states required to meet the 2-day disbursement timeframe in section 454B of the Act when sending collections to foreign reciprocating countries under section 459A of the Act? For example, if multiple wage withholdings a month are being used to collect support on behalf of a child residing in a foreign reciprocating country, can the IV-D agency bundle the collections into a single larger amount and transfer the money on a monthly basis? The problem is that small payments are eaten up by processing and currency conversion fees.
RESPONSE: Section 454(32)(A) of the Act requires that the state plan for child and spousal support must "provide that any request for services under this part by a foreign reciprocating country or a foreign country with which the State has an arrangement...shall be treated as a request by a State." Action Transmittal 98-24, Question 12, clarified that the 2-day disbursement time frame in section 454B of the Act applies in interstate cases. Therefore, when sending collections to a foreign reciprocating country, a state should meet the 2-day disbursement timeframe.
However, there may be circumstances in which a custodial parent in a foreign reciprocating country consents to having the IV-D agency hold and send the payments in a single larger amount in order to avoid transaction costs and currency conversion fees. The IV-D agency may obtain permission from the custodial parent in a foreign reciprocating country to send payments using an alternative disbursement timeframe, i.e. bi-weekly, monthly, bi-monthly. The IV-D agency would need to document the custodial parent's consent in its records. As the capability for sending electronic payments expands in the future, and transaction costs are reduced, such arrangements should not be needed.
cc: Regional Program Managers