Clarification of Case Closure Criteria

ACTION TRANSMITTAL

OCSE-AT-93-03

March 18, 1993

TO: STATE AGENCIES ADMINISTERING CHILD SUPPORT

ENFORCEMENT PLANS UNDER TITLE IV-D OF THE SOCIAL

SECURITY ACT AND OTHER INTERESTED INDIVIDUALS

SUBJECT: Clarification of Case Closure Criteria.

BACKGROUND: Since publication of regulations governing standards for program operations (54 FR 32284, August 4, 1989, as disseminated in OCSE Action Transmittal 89-15 on the same date), we have received numerous requests for clarification of the case closure criteria listed at 45 CFR 303.11(b). As explained in the preamble to the final rule, the basic premise for development of case closure criteria was to establish clear and concise standards which preclude premature or inappropriate closing of cases, and to identify specific areas where case closure is permitted. The case closure standards delineated in 45 CFR 303.11(b) limit eligible cases to those in which there is no reasonable expectation of establishing paternity, obtaining a support order, or collecting child or spousal support, either now or in the near future.

The preamble to the final rule did not explain every factual situation that might present itself as potentially eligible for case closure. Since publication of the final rule, States have encountered and brought case closure situations to the attention of OCSE.

CONTENT: This Action Transmittal consolidates and addresses case closure questions to which we have been most often asked to respond. It is a compilation of questions and responses, some of which have previously appeared in written policy interpretations issued by OCSE. It is meant to be illustrative and is not intended to be exhaustive. While the term "custodial parent" is used because that is the typical situation, it encompasses any applicant or recipient of IV-D services. Anyone may apply for IV-D services. Section IX of this Action Transmittal addresses case closure questions raised about noncustodial parents as applicants. This Action Transmittal is organized as follows:

I. This section describes IV-D cases in which no action can be taken at the present time.

II. This section provides guidance on interstate case closure situations.

III-VII.These sections offer examples of case closure involving IV-D cases on behalf of AFDC recipients, former AFDC recipients, non-AFDC Medicaid recipients, Title IV-E foster care recipients, and non-AFDC applicants for IV-D services, respectively.

VIII.This section provides guidance on completing the OCSE reporting forms.

IX.This section describes cases where the noncustodial parent applies for IV-D services.

X.This section illustrates a variety of miscellaneous case closure situations.

RELATED OCSE-AT-90-12, OCSE-AT-91-09 and OCSE-PIQ-89-05,

REFERENCES:OCSE-PIQ-90-05,OCSE-PIQ-90-08, OCSE-PIQ-90-09, OCSE-PIQ-91-02, OCSE-PIQ-91-14, OCSE-PIQ-92-04, OCSE-PIQ-92-09, and OCSE-PIQ-92-13.

CONTACT: ACF Regional Administrators

___________________

Robert C. Harris

Acting Deputy Director

Office of Child Support Enforcement

I.CASE CLOSURE OF IV-D CASES IN WHICH NO ACTION CAN BE TAKEN AT THE PRESENT TIME.

Question 1: May a case be closed if no action may be taken on it at the present time but it is possible that the case may be worked in the future, and it does not fit any of the case closure criteria in §303.11(b)?

Response: No. When a case does not fall within one of the case closure criteria set forth at §303.11(b), it must remain open and be worked by the IV-D agency. For cases requiring location of the noncustodial parent or his or her income or assets, §303.3(b)(5) specifies that repeat efforts must be made on a quarterly basis or immediately upon receipt of new information. For cases needing enforcement action, §303.6(c)(4) specifies that the IV-D agency must examine the reasons the enforcement attempt failed and determine when it would be appropriate to take an enforcement action in the future, and to do so at that time.

As specified in OCSE-PIQ-91-14, in cases in which the noncustodial parent is unknown or so little information is available that no automated locate sources can be accessed, the IV-D agency should contact the custodial parent at least annually to determine whether any new information is available that would allow further action to be taken.

Question 2: May the IV-D agency close a case in which the custodial parent has applied for IV-D services, but the noncustodial parent's location is unknown?

Response: No. As we stated in response to similar questions in OCSE-PIQ-91-02 and OCSE-PIQ-90-08, the IV-D agency would have to attempt to locate the noncustodial parent using all appropriate locate resources, as required under §303.3(b). The case must remain open for at least three years and the State must make regular attempts using multiple sources to locate the noncustodial parent, all of which are unsuccessful, before it may be closed pursuant to §303.11(b)(5).

Question 3: May the IV-D agency close a case, with an order already established, in which the noncustodial parent is unemployed and has no other income or attachable assets?

Response: No. If, under the circumstances described, the support obligation cannot be enforced at the present time, the IV-D agency should, in accordance with §303.3(b)(5), repeat attempts to locate any sources of income or assets. Under §303.6(c)(4), in cases in which enforcement attempts have been unsuccessful at the time an attempt to enforce the order fails, the IV-D agency must examine the reason the enforcement failed and determine when it would be appropriate to take an enforcement action in the future, and take an enforcement action in accordance with §303.6 at that time.

Question 4: May the IV-D agency close a IV-D case in which the noncustodial parent is incarcerated but is expected to be released before the child reaches the age of majority?

Response: No, the IV-D agency may not close the case pursuant to §303.11(b)(6) because action on it may be possible when the noncustodial parent is released from prison. The IV-D agency should periodically monitor the noncustodial parent's status to ascertain the expected release date, and take appropriate action at such time. In addition, some IV-D actions (e.g., paternity establishment, Federal and State income tax refund offset process) may be possible while the noncustodial parent is incarcerated.

II. CASE CLOSURE OF INTERSTATE CASES.

Question 5: May a responding State close an incoming interstate locate request when the noncustodial parent cannot be located in the responding State, or must the responding State IV-D agency continue to perform quarterly location attempts, under §303.3(b)(5), for three years before being able to close the case, under §303.11(b)(5)?

Response: As we stated in response to similar questions in OCSE-PIQ-91-02 and OCSE-PIQ-90-05, Federal policy distinguishes between cases in which the incoming locate request is made directly to a State's parent locator service by another State (i.e., "quick locate," as described in OCSE-AT-91-09) from those cases in which the request is received through the responding State's central registry as an interstate referral.

In the former case, the locate request is not considered an interstate referral. Such a case is open and being worked by only one State. The other State is being contacted for the limited purpose of location. The State requesting the information must comply with the location timeframes established in §303.3(b)(3).

In the latter case, if the request is received in a responding State's central registry and the initiating State requests location services, the responding State must treat the case as a formal interstate case and comply with the requirements at §303.7(c). However, in interstate location requests, responding States are not required to conduct the quarterly repeat location attempts as specified in §303.3(b)(5). Technical corrections to the standards for program operations deleting this requirement were published in the Federal Register June 25, 1990 (55 FR 25839) and disseminated in OCSE-AT-90-5, dated July 6, 1990.

If location attempts under §303.3(b)(1), (2), and (3) are unsuccessful, the responding State should so inform the initiating State IV-D agency and request any additional information that may help in the location effort, as set forth in §303.3(b)(5). Under §303.7(b)(4), the initiating State must furnish the responding State with the additional information, or notify the responding State when the information will be provided within 30 calendar days of receipt of the request.

If the responding State does not receive the needed additional information after requesting it from the initiating State, the responding State may contact the initiating State and request permission to close the case. If the initiating State notifies the responding State that it may close the case, the responding State may close the case sooner than the three-year threshold set forth in §303.11(b)(5). Otherwise the case must remain open until the three-year time period has expired.

Question 6: What should a responding State do if the noncustodial parent is found to be living in another State?

Response: Federal requirements at §303.7(c)(6) require that, within 10 working days of locating the noncustodial parent in another State, the responding State must either return the form and documentation, including the new location of the noncustodial parent, to the initiating State, or, if the initiating State so directs, forward the form and documentation to the central registry in the State where the noncustodial parent has been located. Further, the responding State must notify its central registry regarding where the case has been sent.

The responding State may close its case file only after the initiating State, or the State where the noncustodial parent is located, acknowledges that it has received the transferred case file from the responding State. The responding State's transferral and subsequent closure of an interstate case, due to inability to locate the obligor or assets in the responding State, does not affect the open case status of the IV-D case in the initiating State in which the services are being provided to the family.

Question 7: What should a responding State do when an initiating State requests the responding State to close the case and either does not provide a reason for closure, or offers an explanation that does not conform with the case closure criteria set forth in §303.11(b)?

Response: As we stated in response to a similar question in OCSE-PIQ-90-08, in a non-AFDC IV-D case with no assigned arrearages or medical support assignment, if the initiating State either provides no reason or one that does not conform with any of the closure criteria of §303.11(b), the responding State may close the case pursuant to §303.11(b)(9), which permits case closure at the request of the custodial parent where there are no assigned arrearages. As indicated previously in response to question six, the case closure by a responding State at the request of an initiating State or case closure based on any of the criteria at §303.11(b) does not affect the status of the IV-D case in the initiating State.

Question 8: If the custodial parent moves from one State (State A) to another State (State B) and the noncustodial parent resides in a third State (State C), what are the responsibilities of State A to provide IV-D services under Federal regulations?

Response: There is no residency requirement for receiving IV-D services. The recipient of IV-D services leaving State A does not mean the IV-D case should be closed. State A must offer, and continue to provide, all appropriate IV-D services and meet the relevant interstate and program standards requirements, until the new initiating State, State B establishes a new interstate case with the responding State C and State A is notified that it may close the case. In cases in which there is no assigned support, the IV-D agency may also close the case if the custodial parent requests case closure.

In a case involving wage withholding, no action by State A should be necessary other than receipt and redirection of payments to the custodial parent at the new address. State A may close its case after it receives notice that State B is providing IV-D services to the custodial parent and has established an interstate case with State C. State A should clearly indicate the reason for the case closure in the case record.

Question 9: Is redirection of payments an appropriate way to handle interstate cases in which the custodial parent moves from one State to another and the obligated parent resides in a third State?

Response: Yes. As we stated in OCSE-PIQ-90-09, redirection of payments by the State receiving IV-D collections is an appropriate way to handle interstate cases when the custodial parent moves from one State to another and the noncustodial parent resides in a third State. Redirection of payments is accomplished by the second State using the Interstate Child Support Enforcement Transmittal form to request redirection by the first State of any payments received from the third State.

Until the IV-D agency in the custodial parent's new State of residence notifies the IV-D agency in the custodial parent's old State of residence that IV-D services are being provided by the IV-D agency in the custodial parent's new State of residence, the IV-D agency in custodial parent's old State of residence would continue to distribute child support collections received from the non-custodial patent's State of residence to the custodial parent at the custodial parent's new address in the new State of residence.

When the IV-D agency in the custodial parent's old State of residence is notified by the IV-D agency in the custodial parent's new State of residence that IV-D services are being provided by the IV-D agency in the custodial parent's new State of residence, the IV-D agency in the custodial parent's old State of residence may close the IV-D case. The IV-D agency may also close the IV-D case at the request of the custodial parent if the case closure requirements of §303.11(b)(9) are met.

III. CASE CLOSURE OF AFDC CASES.

Question 10: In an AFDC paternity case, the custodial parent has not cooperated. The Title IV-A agency has sanctioned her failure to provide the minimum information needed to file and adjudicate a paternity action, and has removed the parent's needs from the AFDC grant, in accordance with 45 CFR 232.12. May the IV-D agency close the IV-D case?

Response: No. As we stated in OCSE-PIQ-91-02 and OCSE-PIQ-91-14, the case closure criteria enumerated in §303.11(b) do not allow the IV-D agency to close the IV-D case when the AFDC custodial parent refuses to cooperate and is removed from the AFDC grant. The IV-D agency must continue to attempt to identify and locate an alleged father and to establish paternity, if possible. If the alleged father cannot be located after the IV-D agency has made regular attempts using multiple sources over a three-year period, all of which have been unsuccessful, the case may be closed under §303.11(b)(5).

Question 11: May the IV-D agency close an AFDC paternity case if the child dies before paternity is established?

Response: Yes. As we stated in OCSE-PIQ-91-14, Federal policy for case closure, under §303.11(b)(2), allows a case to be closed if there is no current support order and the arrearages are under $500 or unenforceable under State law. For that reason, if the child dies before paternity is established in an AFDC paternity case, the IV-D agency may close the case for that child.

Question 12: Must IV-D agencies reopen previously closed public assistance IV-D cases at the time of periodic redetermination of eligibility for public assistance if there is no new information which could help lead to establishment of paternity, or establishment or enforcement of child support order?

Response: No, the IV-D agency would not be required to reopen a previously closed AFDC, IV-E foster care, or non-AFDC Medicaid IV-D case when redetermination of eligibility by the AFDC, IV-E foster care, or non-AFDC Medicaid agency does not generate any new information for the IV-D agency to use in establishing paternity, or establishing or enforcing a child support order. For example, if a IV-D agency has already closed an AFDC IV-D case after three years of unsuccessful attempts at attempting to locate a noncustodial parent, and an AFDC agency, as part of its redetermination of AFDC eligibility process for the corresponding AFDC case, sends a IV-D agency material that does not contain any new information to help IV-D provide IV-D services, a IV-D agency would not be required to reopen the previously closed case.

IV. CASE CLOSURE OF FORMER AFDC CASES.

Question 13: If the IV-D agency fails to notify the family of the continuation of IV-D services at the time of discontinuation of public assistance, but later does send the letter of intent to close the IV-D case and receives no response from the custodial parent within the 60-calendar-day timeframe, has the requirement for notifying the family of continuation of services been met, in addition to notifying the family of the intent to close the case?

Response: No. In accordance with §302.33(a)(4), whenever a family is no longer eligible for assistance under the State's AFDC, IV-E foster care, and Medicaid programs, the IV-D agency must, within five working days of the notification of ineligibility, notify the family that IV-D services will be continued unless the family notifies the IV-D agency otherwise. Sending the notification regarding intended IV-D case closure to the custodial parent, as required under §303.11(c), does not fulfill the regulatory requirement under 302.33(a)(4). The State could, when the IV-D agency realizes it failed to send the family of the notice of continuation of services, send such notice at that time, and then, as appropriate, follow with the letter of intent to close the IV-D case.

Question 14: Which case closure criterion is applicable in a

situation where the IV-A agency refers an intact family (e.g., in an AFDC-Unemployed parent case) to the IV-D agency for paternity establishment services, but AFDC eligibility ends for the entire family before the IV-D agency completes paternity establishment services?

Response: Under §302.33(a)(4), whenever a family is no longer eligible for assistance under the State's AFDC, IV-E foster care, and Medicaid programs, the IV-D agency must, within five working days of the notification of ineligibility, notify the family that IV-D services will be continued unless the family notifies the IV-D agency otherwise. For this reason, the case must remain open unless the family instructs the IV-D agency that it no longer desires services. Should the custodial parent request case closure, the case may be closed under §303.11(b)(9), which provides for case closure when the non-AFDC custodial parent requests closure and there is no assignment to the State of arrearages which accrued under a support order. In cases in which paternity has not been established prior to termination of AFDC eligibility, no support order would exist.

Question 15: How should a IV-D case be closed when the former AFDC recipient previously refused continued IV-D services upon termination of AFDC benefits but the IV-D case remains open because arrears were still owed the State? After all remaining arrears are finally collected, may this case be closed under §303.11(b)(9)?

Response: As we stated in OCSE-PIQ-91-02, when a former AFDC recipient refuses continued IV-D services, the case would remain open as an AFDC arrears-only IV-D case, for purposes of collecting any arrearages due under a court or administrative order which are assigned to the State. When the arrearages are fully collected, the case may be closed under §303.11(b)(9), which provides for case closure when the non-AFDC custodial parent requests and there is no assignment to the State of arrearages which accrued under a support order. Pursuant to §303.11(c), the State is not required to send the 60-day notice of case closure in cases closed under §303.11(b)(9).

Question 16: In a former AFDC case, where a family is receiving continued IV-D services, the IV-D agency misdirected a child support collection to the former AFDC family when the collection should have gone to another IV-D case. May the State close the IV-D case of the former AFDC family for failure to return the misdirected child support collection, even though the State failed to notify the family, when they began receiving continued IV-D services, of their rights and responsibilities under the IV-D program?

Response: Federal regulations at §302.33(a)(4) require the IV-D agency, as part of the continuation of services for former assistance recipients, to notify the former AFDC family of their rights and responsibilities under the IV-D program, similar to the explanation given to applicants for IV-D services. Notification to the custodial parent that the custodial parent may be required to reimburse the IV-D agency for any misdirected child support collections received by the custodial parent could be included in the notice to the family regarding continuation of IV-D services. Such notice could specify that failure to repay the State under such circumstances would be considered non-cooperation and grounds for case closure. However, if the State fails to provide such advance notice of potential case closure or otherwise explain the responsibilities and rights to the former AFDC family, the State may not threaten closure of the IV-D case for failure to return a misdirected child support collection.

Question 17: What case closure criteria may be used in a IV-D case when a former AFDC mother with an unborn child has moved to another jurisdiction and the IV-D agency is notified that aid has been discontinued for the AFDC mother and aid was never granted for the unborn child of this defendant? There is no order of support.

Response: There is no residency requirement for IV-D services, so the IV-D agency must continue to provide services. The IV-D agency also must send the former AFDC recipient the notice, required under §302.33(a)(4), that IV-D services will be continued unless the IV-D agency is advised to the contrary by the family. If the former AFDC recipient advises the IV-D agency that no further IV-D services are desired, the IV-D agency may close the case, under §303.11(b)(9). As explained previously in the response to question 12, under the facts presented, there is no support order, and subsequently no assignment to the State of arrearages which accrued under a support order. It may also be possible to close the case, under §303.11(b)(11), if the IV-D agency is unable to contact the custodial parent within a 30-day period despite attempts by both phone and at least one certified letter, or under §303.11(b)(12), if the IV-D agency documents the circumstances of the custodial parent's non-cooperation and an action by the custodial parent is essential for the next step in providing IV-D services.

V. CASE CLOSURE OF NON-AFDC MEDICAID CASES.

Question 18: How should the IV-D agency treat a non-AFDC Medicaid case where the custodial parent refuses to cooperate with the IV-D agency in the establishment of paternity and securing of medical support?

Response: As we stated in the preamble to the final rule, published on February 26, 1991 (56 FR 7988), for the implementation of P.L. 100-203 (the Omnibus Budget Reconciliation Act of 1987), IV-D cases in which the non-AFDC Medicaid recipient/custodial parent refuses to cooperate in the establishment of paternity and the securing of medical support should be treated similarly to AFDC cases in which the custodial parent refuses to cooperate. The IV-D agency must notify the Medicaid agency of the refusal to cooperate. Regulations at 42 CFR 433.147 and 433.148 require the Medicaid agency to determine whether the non-AFDC Medicaid recipient had good cause for failure to cooperate and whether the IV-D agency may continue to attempt to establish paternity and secure support without the cooperation of the non-AFDC Medicaid recipient, under §§302.31(b) and (c). However, as in the case of an uncooperative AFDC recipient, the IV-D agency may not close the IV-D case because the non-AFDC Medicaid recipient is uncooperative in establishing paternity.

VI. CASE CLOSURE OF TITLE IV-E FOSTER CARE CASES.

Question 19: May the IV-D agency close a IV-D case in which the IV-E foster care case has been closed and there are no arrears owed to the State, or the arrears are less than $500, and no application for IV-D services has been received from the custodial parent?

Response: No. Federal regulations, under §302.33(a)(4), require that whenever a family is no longer eligible for assistance under the State's AFDC, IV-E foster care, and Medicaid programs, the IV-D agency must notify the family, within five working days of the notification of ineligibility, that IV-D services will be continued unless the IV-D agency is notified to the contrary by the family. Until the family receiving continued IV-D services requests the State to close the case, the case must remain open, without any application or application fee.

VII. CASE CLOSURE OF NON-AFDC APPLICANT CASES.

Question 20: May a non-AFDC IV-D case be closed when the IV-D agency has attempted to contact the custodial parent repeatedly without success?

Response: Yes, provided that the case closure criterion under §303.11(b)(11) is satisfied. Section 303.11(b)(11) provides that a non-AFDC case receiving services under §302.33(a)(1)(i) (an applicant for IV-D services), or §302.33(a)(1)(iii) (former AFDC, former IV-E foster care, or former Medicaid recipient), may be closed, if the IV-D agency is unable to contact the custodial parent within a 30-calendar-day period despite attempts by both phone and at least one certified letter. However, the case closure criteria, at §303.11(b)(11) does not apply in non-AFDC Medicaid cases. The IV-D agency should contact the Medicaid agency for assistance in locating the custodial parent.

As we stated in OCSE-PIQ-90-08, the IV-D agency still would be required, as specified under §303.11(c), to notify the custodial parent in writing 60 calendar days prior to closure of the State's intent to close the case.

VIII. REPORTING ISSUES.

Question 21: How is a "case" defined for reporting purposes, using the forms OCSE-156 and OCSE-158, and for case closure purposes, under §303.11(b)?

Response: As we stated in OCSE-PIQ-91-02, a IV-D case is defined, for the purposes of the OCSE Child Support Enforcement Program Quarterly Data Report (OCSE-156) and the Child Support Enforcement Program Annual Data Summary Report (OCSE-158), as a noncustodial parent (mother, father, or putative father) who is now or eventually may be obligated under law for the support of a child or children. A noncustodial parent is counted once for each family which has a dependent child he or she may be obligated to support. Under the clarifications provided in OCSE-AT-90-12, a case may be closed in one category and re-opened in another when the status of the case changes. For example, when the custodial parent and the child(ren) are terminated from AFDC, the IV-D agency would, for purposes of the OCSE-156 and OCSE-158, close the case in AFDC status and re-open the case in non-AFDC status and/or AFDC arrears only status. Likewise, when a recipient of IV-D services who had applied for IV-D services later applies for and receives AFDC, the IV-D agency would close the non-AFDC case and reopen the case as an AFDC case.

We must emphasize, however, that when a case changes status for the purposes of statistical reporting on OCSE-156 and OCSE-158 forms, it would not be closed for purposes of §303.11 unless one of the case closure criteria under §303.11(b) was also met.

Question 22: Because of the way some States have designed their automated systems, it is very common for them to close one case on a family and to immediately open another. (Example: They would close the AFDC case and open a non-AFDC case, or vice-versa.) Would it be acceptable for them to develop temporary closure codes to use on their cases until such time as the "total" case closes?

Response: No. As we stated in OCSE-PIQ-91-02, the case described in the example could not be closed under §303.11, but rather would have a change of status, from AFDC to non-AFDC, or vice-versa. For purposes of the OCSE-156 and 158, the case would be switched from the prior status to a new status. States must indicate in the case record when the status of the case changes.

IX. NONCUSTODIAL PARENT APPLICANTS FOR IV-D SERVICES.

Question 23: Does the use of the term "custodial parent" in §303.11(b)(9) or any other regulation that specifically refers to services or rights of the custodial parent actually mean any applicant/recipient of IV-D services?

Response: As we stated in OCSE-PIQ-92-04, section 454(6) of the Act requires that child support or collection services be made available to any individual not otherwise eligible for such services upon application filed by such individual with the State. OCSE regulation §302.33(a) provides that child support services established under a State plan shall be made available to any individual who files an application for the services with the IV-D agency. The language in both the Act and the regulation allow noncustodial parents to apply for IV-D services if they file an application with the IV-D agency, as specified in §302.33(a)(1). It is OCSE policy that because the statute specifically states that any individual may apply for IV-D program services, we cannot exclude a category of applicants. It would clearly be illogical to allow noncustodial parents to apply for IV-D services and not to allow them to request case closure. Therefore, for purposes of §303.11, if the applicant for services was not the custodial parent, States should substitute the applicant for services whenever § 303.11 refers to the custodial parent. In §303.11(b)(9) then, the State IV-D agency may close a case if requested by the individual who applied for IV-D services under §302.33, and there is no assignment to the State of medical support under 42 CFR 433.146 or of arrearages which accrued under a support order.

Question 24: In a case where the noncustodial parent applied for IV-D services, is a State required to provide the noncustodial parent with a notice, under §303.11(c), that the custodial parent has requested that the case be closed?

Response: If the noncustodial parent applied for IV-D services, the State may not close the case at the custodial parent's request. As we stated in OCSE-PIQ-92-04, a State may close a case only if the applicant for services requests closure and the requirements of §303.11(b)(9) are met. Applicants for IV-D services must be provided with notice of case closure pursuant to §303.11(c) for case closure factors §303.11(b)(1) through (7) and (11) and (12). There is no requirement that the other parent also must be provided with notice in such cases. Nevertheless, notice to both parents is not precluded. For example, if the noncustodial parent applies for IV-D services, and later requests case closure, the State may wish to contact the custodial parent to determine whether she/he would like to continue to receive services.

Question 25: If the regulations are meant to restrict non-AFDC IV-D case closure to custodial parents, are States required to advise applicants for IV-D services other than custodial parents of the consequences of their application and the circumstances under which their cases may be closed?

Response: As we stated in OCSE-PIQ-92-04, case closure regulations are not meant to restrict the right to request closure only to custodial parents, if the applicant for services was not the custodial parent.

Question 26: If the custodial parent and child(ren) do not receive public assistance and are unwilling to cooperate in the establishment of paternity and a support obligation based on the request of the non-custodial individual, must the IV-D agency continue to assist with the establishment process?

Response: As we stated in OCSE-PIQ-89-05, the IV-D agency must provide IV-D services to any individual who applies for services, regardless of whether the custodial parent wishes to have the IV-D agency assist in obtaining support, as long as the provision of services is in the best interests of the child. When the court or administrative authority hears and decides factual and legal issues of the case, the parent's interests and concerns, in addition to the child's best interests, may bear on determinations with respect to the case.

X. MISCELLANEOUS.

Question 27: If States have to send the notice of intent to close the case to the custodial parent's last known address, what should be done if the family is homeless, and the only address on record with the IV-A and the IV-D agency is the address of the IV-A agency?

Response: To meet the requirements of §303.11(c), the case closure notice should be sent to the last known address of the homeless family. If this is the address of the IV-A agency, the notice should be sent there. The family may have no other mailing address through which it could receive notice of case closure.

Question 28: May a State which imposes fees in accordance with Federal regulations, or has elected in its IV-D State plan to recover costs from non-AFDC individuals who are receiving services under §302.33(a)(1)(i) (an applicant for IV-D services) or §302.33(1)(iii) (a former recipient of AFDC, title IV-E foster care, or non-AFDC Medicaid), close a case if a non-AFDC individual subject to a fee or cost recovery fails to pay the State the fee or the costs that have been billed to the family?

Response: As we stated in OCSE-PIQ-92-09, under §303.2(a)(2), the IV-D agency must provide information describing available services, the individual's rights and responsibilities, and the State's fees, cost recovery, and distribution policy with each application for IV-D services, and to AFDC, Medicaid, and title IV-E foster care applicants or recipients within no more than five working days of referral to the IV-D agency.

Federal regulations at §303.2(a)(3) require the IV-D agency to accept an application as filed on the day it and the application fee are received. Under this provision, the IV-D agency cannot open a IV-D case on behalf of a non-AFDC individual who applies for services under §302.33(a)(1)(i) unless that individual has paid the application fee in cases where the State does not pay the fee.

The criterion at §303.11(b)(12) provides that a non-AFDC case receiving services under §302.33(a)(1)(i) or (iii) may be closed if the IV-D agency documents the circumstances of the custodial parent's noncooperation and an action by the custodial parent is essential for the next step in providing IV-D services. When a non-AFDC individual subject to fees or cost recovery fails to pay any fee prescribed in Federal regulations or reimburse the State for costs associated with providing IV-D services, and charged to that individual, the IV-D agency may close the case under this criterion when the payment of such fees or costs is required under the IV-D State plan.

When case closure is appropriate, the IV-D agency must also document the circumstances of the custodial parent's noncooperation, and notify the custodial parent in writing within 60 calendar days prior to closure of the State's intent to close the case in accordance with §303.11(c). The case must be kept open if the custodial parent pays the billed fees and costs in response to the notice.

Question 29: May a State close a case involving a non-AFDC applicant or former recipient of AFDC, title IV-E foster care, or Medicaid when the non-AFDC individual fails to sign an agreement to pay fees or costs billed to the family?

Response: As we stated in OCSE-PIQ-92-09, the final regulations published in the Federal Register on August 4, 1989 (54 FR 32284 at 32306) state that we received many comments by States and other organizations who requested that non-cooperation by the custodial parent (failure to attend hearings, refusal to sign forms, etc.) in non-AFDC cases be addressed.

In response to these comments, we promulgated §303.11(b)(12) which allows closure for non-cooperation in non-AFDC cases when the case file documents the circumstances of the non-cooperation, and an action by the custodial parent is essential for the next step in providing services. Therefore, the IV-D agency may close a case because the non-AFDC individual has failed to sign an agreement to pay to the State fees or costs incurred in providing IV-D services billed to the family under the State's fee and IV-D cost recovery policy. The IV-D agency must send to the custodial parent the 60-day case closure notice in accordance with §303.11(c). However, the custodial parent may avoid closure by responding with the necessary cooperation during the 60-day notice period.

Question 30: If a State has complied with the case closure criterion at §303.11(b)(5), may it close a IV-D case regardless of the existence of a support order or the amount of past due support? If so, are arrearages automatically discharged?

Response: A State may close a case if it meets one or more of the requirements specified at §303.11. Section 303.11(b)(5) permits a IV-D agency to close a case if the "noncustodial parent's location is unknown and the State has made regular attempts using multiple sources to locate the noncustodial parent over a three-year period, all of which have been unsuccessful". The State must also provide the custodial parent with written notice of case closure 60 days before closing the case pursuant to §303.11(c). However, as we stated in the Preamble to the Final Rule on Program Standards (54 FR 32284, at 32303, August 4, 1989) "[c]ase closure does not affect the support order or arrearages which have accrued under the order; it only means that services under the IV-D program will no longer be provided. . . Although the IV-D agency closes a case, the support order remains in effect and arrearages continue to accrue for the life of the order. In accordance with the requirements of §466(a)(9) of the Act and §303.106(a)(1), these arrearages are judgments by operation of law and are subject to enforcement." For this reason, any arrearages remaining due would not be automatically discharged and would remain enforceable by the court.

Question 31: After a IV-D case has been closed in accordance with case closure criteria, is the IV-D agency obligated to continue to provide enforcement services?

Response: Once the IV-D agency has closed a case pursuant to an appropriate case closure criterion under §303.11, it need not continue to provide enforcement services. States should keep in mind, however, that case closure is permissive, not mandatory.

Therefore, there may be circumstances in which a State may decide to keep open, and continue to work a case, even though it meets the requirements for case closure.

Question 32: May a IV-D agency adopt a policy of requiring IV-D obligees to request closure of their IV-D cases if and while they have entered into contracts with private collection agencies for collection of child support?

Response: No. As we stated in OCSE-PIQ-92-13, a IV-D agency may not adopt a policy of requiring IV-D obligees to request case closure of their IV-D cases while they have contracts with private collection agencies. Such a policy or requirement would not meet one of the criteria for case closure set forth at 45 CFR 303.11(b), and is therefore an inappropriate action by the IV-D agency. Although §303.11(b)(9) permits case closure at the request of the individual receiving non-AFDC IV-D services, such requests must be voluntary on such individual's part.

Similarly, it is OCSE's position that it would be inappropriate for a IV-D agency to close a case in an analogous situation, if the custodial parent hired a private attorney, because that too would not meet one of the case closure criteria set forth in §303.11. There are no case closure criteria which permit the unilateral closure of a IV-D case by the IV-D agency because the IV-D recipient has retained private counsel. Therefore, IV-D services must be provided regardless of whether a recipient of IV-D services has retained private counsel, unless the case meets at least one of the case closure criteria enumerated in 45 CFR 303.11(b). To suspend case activity because of retention of private counsel to handle certain actions would deny the applicant such services as Federal and State income tax refund offsets, full collection services by the Internal Revenue Service, and use of the Federal courts, which are available only to recipients of IV-D services. However, requiring that recipients of IV-D services notify the IV-D agency of the involvement of private counsel is appropriate, in order to prevent duplication of effort and to maximize the effectiveness of actions taken through coordinated efforts.

Additionally, the IV-D agency is not required to suspend action or change its procedures to accommodate the private action. The IV-D agency would continue to provide all appropriate IV-D services, and would continue to expect the custodial parent's cooperation.