Final Rule: Prohibition of FFP for Incarceration/Counsel for Indigent Absent Parents

OCSE-AT-87-9

September 8, 1987

SUBJECT:Child Support Enforcement Program; Prohibition of Federal Funding of Costs of Incarceration and Counsel for Indigent Absent Parents

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

REGULATION

REFERENCE:45 CFR Part 304

RELATED

MATERIAL:OCSE-AT-86-13, dated June 13, 1986

ATTACHMENT:Attached are final rules published in the Federal Register on August 26, 1987 (52 FR 32130). These final rules amend õ304.23 to specify that Federal funding under title IV-D of the Social Security Act for costs of incarceration of absent parents in child support enforcement cases and costs of counsel for indigents in IV-D actions is not available.

INQUIRIES TO:OCSE Regional Representatives

______________________________

Associate Deputy Director

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of Child Support Enforcement

45 CFR Part 304

Child Support Enforcement Program; Prohibition of Federal Funding of Costs of Incarceration and Counsel for Indigent Absent Parents

AGENCY: Office of Child Support Enforcement (OCSE), HHS.

ACTION: Final Rule.

SUMMARY: This rule amends õ304.23 to specify that Federal funding under title IV-D of the Social Security Act for costs of incarceration of absent parents in child support enforcement cases and costs of counsel for indigents in IV-D actions is not available. In addition, õ304.27, which concerns Federal funding prior to December 31, 1975, is deleted because it is obsolete.

EFFECTIVE DATE: August 26, 1987.

FOR FURTHER INFORMATION CONTACT: Joyce Linder, (202) 245-1773.

SUPPLEMENTARY INFORMATION:

Background

Costs of Incarceration and Providing Counsel for Indigent Absent Parents

The Senate Committee on Finance, in its report on H.R. 4325, which became the Child Support Enforcement Amendments of 1984, stated: "It is not the intent of the Congress to match all costs that might be related to operating a child support enforcement program. For example, the Committee believes Federal matching should not be available for expenditures related to incarceration of delinquent obligors and providing defense counsel for absent parents." (See S.Rep. No. 98-387, 98th Cong., 2d Sess., p. 23.)

Periodically, through the years, States have requested that the costs of incarceration of delinquent obligors and of defending indigent absent parents in IV-D cases should be reimbursed, OCSE's policy since the inception of the program has been that costs of incarceration of delinquent obligors and costs of defense counsel are not necessary and reasonable costs associated with the proper and efficient administration of the Title IV-D program.

Furthermore, there is no statutory authority for payment of such costs. These regulations add such costs to the list of expenditures for which Federal financial participation is not available.

Federal Funding in the Operation of the Child Support Enforcement Program in the Absence of an Assignment

Current regulations at õ304.27 make Federal funding available at the applicable rate for expenditures made under an approved IV-D Sate plan until December 31, 1975, irrespective of the requirement of an assignment of rights to support. Furthermore, õ304.27(b) states that this section remains in effect until December 31, 1975. Because it was repealed as of the close of business on that date, we are deleting this obsolete section.

We published a Notice of Proposed Rulemaking in the Federal Register on June 6, 1986 (51 FR 20673). The comments received on the proposed rule and our response to the comments are discussed below.

Statutory Authority

This regulation is implemented under the authority granted to the Secretary by sections 454(13) and 1102 of the Social Security Act (the Act). Section 454(13) of the Act requires States to comply with such requirements and standards as the Secretary of the Department of Health and Human Services determines to be necessary for the establishment of an effective Title IV-D program. Section 1102 of the Act requires the Secretary to publish the regulations that may be necessary for the efficient administration of the functions for which he is responsible under the Act.

Regulatory Provisions

In enacting Title IV-D of the Act in 1975, Congress did not intend that every expense incurred by the State in enforcing child support obligations would be reimbursable by Federal funding. In fact, Congress expected "the States to continue to devote to this purpose (law enforcement) at least as much non-Federal funding as they currently provide." S.Rep. No. 95-1356, 93rd Cong., 2nd Sess., p.50. Incarceration is a punishment for violation of State and local laws in general, not just these related to child support enforcement. Imposing a jail sentence for willful refusal to abide by a court order to pay support promotes respect for the laws and the judicial decisions of the State and its courts. Therefore, we believe that payment for the costs of incarceration is entirely a responsibility of State and local governments and is not subject to Federal funding under Title IV-D of the Act.

Title IV-D of the Act was enacted for the purpose of enforcing the support obligations owed by absent parents. Nowhere in the Act nor in any legislative history explaining the IV-D program is there language providing funding for costs incurred in connection with the defense of absent parents who have failed to support their children. In fact, as stated previously, Congress indicated in connection with the Child Support Enforcement Amendments of 1984 that Federal funding should not be available for these costs. Such funding would be antithetical to the purpose of the program, i.e., to ensure that children receive the support to which they are entitled. A defense attorney's function is to promote the best interests of the client, which may actually be to limit or avoid imposition of support liability.

To make these policies explicit, we are amending õ304.23 by adding a new paragraph (i) to prohibit Federal funding for expenditures resulting from the jailing of absent parents in

IV-D cases and a new paragraph (j) to prohibit Federal funding for costs of counsel for indigent defendants in IV-D actions.

We are deleting õ304.27, Federal financial participation in the operation of the Child Support Enforcement Program in the absence of an assignment because it is obsolete.

Response to Comments

We received six comments in response to the Notice of Proposed Rulemaking. Two private attorneys, two attorneys from a County Domestic Relations Court, one State agency and one private individual submitted comments.

1. Comment: The proposed rule should be rejected because it prohibits IV-D funding for the costs of obtaining counsel for indigent absent parents. Public defenders' offices are understaffed and overburdened and as a result, indigents are often excused because they cannot afford representation. Therefore, IV-D funds should be available for defense counsel for indigent absent parents.

Response: While we agree that indigent absent parents may be entitled to representation, title IV-D of the Act was enacted for the purpose of establishing and enforcing the support obligations owed by absent parents, not for defending against the establishment and enforcement of support obligations. As noted earlier, Senate Finance Committee Report (H.R. 4325) indicates that Congress believes that Federal matching should not be available for expenditures related to providing defense counsel for absent parents. Finally, Title IV-D funding is not available to State or local governments for activities which are beyond the scope of activities required under Title IV-D of the Act. Defending persons who owe support is not a IV-D activity and therefore, IV-D funds are not available for this activity.

2. Comment: Since approximately half of the States require, by statutory or case law, that counsel must be provided to indigent defendants in paternity cases, and since IV-D funding is available for part of the paternity determination process such as scientific blood testing, there is no justification for prohibition of payment for costs of counsel for indigent defendants in paternity cases.

Response: Federal funding is available for part of the paternity determination process including blood testing. However, these costs result in the production of evidence that can be used to settle disputed paternity cases or can be introduced in court to show a likelihood of parentage. The results are objective evidence which can be used to "establish" the support order.Lawyers fees for the defense do not contribute to the "establishment or enforcement" of support. Therefore, defending child support obligors or accused fathers serves no legitimate IV-D purpose.

3. Comment: By refusing to fund the costs of defense in paternity cases, we are in violation of our own regulations at

õ304.20(b)(2)(ii).

Response: Regulations at õ304.20(b)(2)(ii) make Federal financial participation available for services and activities which are determined to be necessary expenditures properly attributable to the Child Support Enforcement program including court or other actions to establish paternity pursuant to procedures established under State statutes or regulations having the effect of law. As stated previously, defending persons who owe support is not a IV-D activity and therefore is not a necessary expenditure attributable to the functions of the Child Support Enforcement program which is to establish and enforce child support obligations. As explained above, while some actions to establish paternity, such as blood testing costs, are funded under existing regulation, defense of indigent absent parents does not fall under the same classification.

4. Comment: Since defendants in paternity cases "do not become parents unless or until a court determines they are", the Senate Finance Committee's statement that Federal matching should not be available for expenditures related to providing defense counsel for absent parents does not apply to those whose parental status is still in doubt.

Response: The suggestion that "putative fathers" are not "parents" is deceptive. Court ordered obligations should not be confused with the common law duty to support one's dependents whether compelled to do so by court order or not. The intent of the Senate Finance Committee's discussion on which expenditures should be excluded from Federal financial participation is to exclude Federal matching for the costs of providing defense counsel for anyone who may owe a support obligation.

Paperwork Reduction Act

This regulation contains no information collection requirements that are subject to Office of Management and Budget review under the Paperwork Reduction Act of 1980 (Pub. L. 96-511).

Regulatory Flexibility Analysis

The Secretary certifies under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this regulation will not result in significant impact on a substantial number of small entities. The primary impact is on State governments and political subdivisions and we believe that this impact will be nominal because the rule merely puts in regulation longstanding OCSE policy.

Executive Order 12291

The Secretary has determined, in accordance with Executive Order 12291, that this rule does not constitute a "major" rule. A major rule is one that is likely to result in:

. An annual effect on the economy of $100 million or more,

. A major increase in costs or prices for consumers, individual industries, Federal, State or local government agencies, or geographic regions; or

. Significant adverse effects on competition, employment, investment productivity, innovation, or on the ability of the United States-based enterprises to compete with foreign-based enterprises in domestic or import markets.

The rule is expected to have an insignificant impact on State and Federal expenditures because it only specifies in regulation current OCSE policy.

List of Subjects in 45 CFR Part 304

Child welfare, Grant programs/social programs.

PART 304- [AMENDED]

For the reasons discussed above, 45 CFR Part 304 is amended as follows:

1. The authority citation far Part 304 continues to read as set forth below:

Authority: 42 U.S.C. 651-658,660, 664, 667, 1302, 1396a(a)(25), 1396(d)(2), 1396b(o) 1396b(p), 1396(k).

2.45 CFR 304.23 is amended by adding introductory text and new paragraphs (i) and (j) to read as follows:

õ 304.23 Expenditures for which Federal financial participation is not available.

Federal financial participation at the applicable catching rate is not available for:

* * * * *

(i) Any expenditures for jailing of parents in child support enforcement cases.

(j) The costs of counsel for indigent defendants in IV-D actions.

õ 304.27 [Removed and Reserved]

3. 45 CFR 304.27 is removed and reserved.

(Catalog of Federal Domestic Assistance Program No. 13.679, Child Enforcement Program)

Date: April 24, 1987.

Wayne A. Stanton,

Director, Office of Child Support Enforcement

Approved: June 1, 1987.

Otis R. Bowen,

Secretary

[FR Doc. 87-19581 File 8-25-87; 8:45 am]

BILLING CODE 4190-11-M