Requesting an Exemption from the Mandatory Law and Procedure in Section 466(f) of the Social Security Act

ACTION TRANSMITTAL

OCSE-AT-02-02

DATE: May 17, 2002

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

SUBJECT: Instructions for Requesting an Exemption from the Mandatory Law and Procedure in Section 466(f) of the Social Security Act regarding UIFSA 1996

BACKGROUND: The state plan provision at section 454(20) of the Social Security Act (the Act) requires states to have in effect and use the laws and procedures specified in section 466 to improve the effectiveness of child support enforcement programs.

Section 466(f) of the Act states that "In order to satisfy section 454(20)(A), on and after January 1, 1998, each State must have in effect the Uniform Interstate Family Support Act, as approved by the American Bar Association on February 9, 1993, and as in effect on August 22, 1996, including any amendments officially adopted as of such date by the National Conference of Commissioners on Uniform State Laws." All states adopted UIFSA (referred to hereafter as UIFSA 1996) as required in section 466(f) of the Act.

In August 2001 the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved amendments to UIFSA 1996, referred to as UIFSA 2001. In the prefatory note to the 2001 amendments¹, NCCUSL explained the background and rationale for the new amendments:

In accordance with the congressional mandate, by 1998 all U.S. jurisdictions had enacted UIFSA. Thus, the several states have had between four and eight years of experience with the various iterations of the Act. Moreover, there has been an extraordinary amount of comprehensive training about the Act by the child support enforcement agencies throughout the nation and associated agencies and organizations of those agencies, e.g.: U.S. Department of Health and Human Services, Office of Child Support Enforcement (OCSE); National Child Support Enforcement Association (NCSEA); Eastern Regional Interstate Child Support Association (ERICSA); and, Western Interstate Child Support Enforcement Council (WICSEC). As a consequence, the provisions of UIFSA are far more familiar to those who must administer it than ever was true of its predecessor acts, URESA and RURESA.

In 2000 the child support community again requested that the Act be reviewed and amendments suggested as appropriate. In response to this request, the Conference leadership appointed a new Drafting Committee (the earlier Committee had been disbanded). A single meeting in March 2001 led to significant substantive and procedural amendments that ultimately were approved by the Conference at its Annual Meeting in August, 2001. None of the amendments, however, made a fundamental change in the policies and procedures established in UIFSA 1996. The widespread acceptance of UIFSA is due primarily to the fact that representatives of the child support enforcement community mentioned above participated actively in the drafting of each version of the Act, including the amendments of 2001. In sum, although two sets of amendments have been propounded since the initial 1992 version of UIFSA, its basic principles have remained constant.

Several states and organizations have inquired as to whether states will be found to be out of compliance with the state plan requirement of section 454(20) of the Act if states enact UIFSA 2001. Because Federal law specifically requires states to adopt UIFSA 1996, states that adopt UIFSA 2001 could be found to be out of compliance with the IV-D state plan requirement.

However, section 466(d) of the Act permits a state to request an exemption from enacting a State law required by section 466 of the Act. Section 466(d) requires that a state demonstrate to the Secretary that a law or procedure would not increase the effectiveness and efficiency of the state child support enforcement program. A state may be granted an exemption from UIFSA 1996 if the state has adopted or intends to adopt UIFSA 2001, and the state establishes that applying UIFSA 2001 would be as effective and efficient as UIFSA 1996.

CONTENT: This Action Transmittal establishes procedures that states must follow when applying for an exemption from section 466(f) of the Act for UIFSA 1996.

EXEMPTION FROM ENACTING UIFSA 1996

OCSE has determined that it may grant a request for an exemption from the requirement to implement section 466(f) of the Act if a state adopts UIFSA 2001. Under this exemption, states will not be required to provide the cost-effectiveness data specified in Action Transmittal 97-02 in order to request an exemption from the requirement in section 466(f) of the Act.

To receive an exemption from section 466(f) of the Act, a state must establish that adopting UIFSA 2001 does not interfere with the effectiveness and efficiency of interstate case processing.

EXEMPTION PROCESS AND MATERIAL FOR SUBMISSION

States must submit an original and one copy of a letter requesting an exemption to the appropriate ACF Regional Office. The Regional Office will review the state’s submission and will recommend to the Central Office approval or disapproval of the state’s exemption request.

The state’s submission should indicate that the state is requesting an exemption from section 466(f) of the Act. This section was enacted so that all states would operate their IV-D programs under the same uniform procedures. Therefore, in order to address whether continuing to operate under the uniform procedures of UIFSA 1996 increases the effectiveness and efficiency of the state’s IV-D program, each state submitting a request must:

1. Indicate that the state has adopted or intends to adopt NCCUSL’s amendments approved in August 2001;

2. Indicate whether there are procedural differences between UIFSA 2001 and UIFSA 1996 that could adversely impact the requesting state’s ability to process interstate cases as effectively and efficiently as those states operating under UIFSA 1996 procedures;

3. Address whether any substantive distinctions between UIFSA 2001 and UIFSA 1996 (e.g., expanded authority to modify orders by consent; expanded recognition of foreign country’s orders, etc.) may adversely impact the requesting state’s ability to have any of its interstate orders recognized and enforced by states that continue to operate under UIFSA 1996. If the state identifies any substantive distinctions with such a potential impact, then the state must:

• Include a description of the substantive distinctions that could adversely impact its ability to interact with states applying UIFSA 1996, and describe the circumstances under which interstate enforcement may be adversely affected; and
• Describe the advantages that could enhance interstate enforcement that the state anticipates by adopting UIFSA 2001.

OCSE will review each submittal to determine whether the state has demonstrated that adopting UIFSA 2001 does not interfere with the effectiveness and efficiency of interstate case processing. OCSE will notify the state in writing that exemptions have been approved or disapproved and the basis for the decision. Disapprovals of requests for exemption are not subject to administrative appeal.

EXTENSIONS OF EXEMPTIONS FROM ENACTING UIFSA 1996

States do not need to apply for extensions of exemptions from enacting UIFSA 1996.

REVOCATION OF EXEMPTION

Exemptions are subject to review and may be revoked by the Commissioner, OCSE at any time if circumstances change. The regulation at 45 CFR 302.70(d) states that if an exemption is revoked, the state must enact the appropriate laws and implement the mandatory practice by the beginning of the fourth month after the end of the first regular, special, budget or other session of the state’s legislature which ends after the date the exemption is revoked. If no State law is necessary, the state must establish and be using the procedure by the beginning of the fourth month after the date the exemption is revoked.

RELATED REFERENCE: OCSE-AT-97-02

EFFECTIVE DATE: Immediately

INQUIRIES: ACF Regional Administrators

________________
Sherri Z. Heller, Ed.D.
Commissioner
Office of Child Support Enforcement

¹ Uniform Interstate Family Support Act: Last amended or revised in 2001. See http://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.as... .