PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of sections 347.6, 347.7 and 347.8 of Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d), 34(3)(f), 111-a(1), (2), 111-b(3), (4), 111-g, 111-h(9), 111-k(1), 111-r, 111-s(1), 111-v and 143; Family Court Act, section 542; 45 CFR sections 301.1, 303.3(b)(1) and 303.101(b)(1); 42 USC section 666(c)(1)
Subject:
Child Support.
Purpose:
To conform Title 18 NYCRR to State and federal statutes and federal requirements concerning the use of locate sources including the State and federal parent locator services by local districts in providing child support services.
Text of proposed rule:
Paragraph (1) of subdivision (a) of section 347.6 of Title 18 of the NYCRR is amended to read as follows:
(1) File a petition with the family court to establish paternity, complete service of process or document on the Child Support Management System (CSMS) the unsuccessful diligent efforts to serve process, as defined in section [347.7(a)] 347.7(b)(7) of this Part.
Section 347.7 of Title 18 of the NYCRR is amended to read as follows:
§ 347.7 Location of [absent] noncustodial parents [and] / putative fathers and sources of income or assets.
(a) Location means obtaining information concerning the physical whereabouts of [an absent] a noncustodial parent/putative father, [an absent] a noncustodial parent's/putative father's employer(s), or other sources of income, [or] assets, or medical support information [which belong to an absent parent,] as appropriate, which [is] are sufficient and necessary to take the next appropriate action in a case. [Financial investigation of a putative father may not be conducted until paternity has been established.]
(b) For [each case] all cases referred to the child support enforcement unit or applying for child support services under section 347.17 of this Part in which the location of [an absent] the noncustodial parent/putative father or the income, assets, or medical support information of such person is unknown or unverified, the child support enforcement unit must:
(1) Use appropriate location sources such as the Federal Parent Locator Service (PLS) and State PLS; interstate location networks, local officials and employees administering public assistance, general assistance, medical assistance, food stamps, and social services; records of State agencies and departments, as authorized by State law, including those departments which maintain records of public assistance, wages and employment, unemployment insurance, income taxation, drivers licenses and vehicle registration, and criminal records; relatives and friends of the noncustodial parent/putative father; current or past employers; utilities, the local telephone company and the U.S. Postal Service; financial references; unions and fraternal organizations; and police, corrections, parole, and probation records, if appropriate; and other sources.
(2) Establish working relationships with all appropriate agencies in order to utilize location resources effectively.
(3) Employ methodologies that safeguard all confidential information and data pertaining to the noncustodial parent/putative father obtained through location sources as provided in section 111-v of the Social Services Law.
[(1) As soon as possible, but no later] (4) Within no more than 75 calendar days [after] of determining that [it is] location efforts are necessary [to locate an absent parent/putative father, initiate location activities using the CSMS, location leads and other local sources, and], access all appropriate location sources including transmitting appropriate cases to the State and the Federal PLS where there is sufficient information to initiate automated location efforts, ensure that [the case] location information [obtained] is sufficient to take the next appropriate action in a case, and update [CSMS] the automated case record as appropriate. Information critical to location activities includes the [absent] noncustodial parent's/putative father's name, social security number, last known address(es) and employer(s), and the date of birth of his or her children.
[(2) Upon receipt of new information which may aid in location, immediately update CSMS and attempt to locate the absent parent/putative father. CSMS will submit these cases automatically to appropriate PLS sources based on the updated data.]
(5) Refer appropriate cases to the IV-D agency of any other state. The IV-D agency of the other State shall follow the procedures as described in paragraphs (1), (2), (3) and (4) above; except that the responding State is not required to access the Federal PLS under paragraph (4).
(6) Repeat location attempts in cases in which previous attempts to locate the noncustodial parent/putative father or sources of income and/or assets have failed but adequate identifying and other information exists to warrant submittal for location either immediately upon receipt of new information, or quarterly, whichever occurs sooner. Repeated attempts based on new information must meet the requirements of paragraph (4) of this subdivision. Quarterly attempts may be limited to automated sources but must include accessing State employment security files, including new hire reporting, wage reporting, and unemployment insurance benefits.
[(3)] (7) Make a diligent effort to serve process on the [absent] noncustodial parent/putative father, in cases in which previous attempts have failed but new information adequate to serve such process exists. Diligent effort to serve process on a noncustodial parent/putative father means an attempt to serve process as soon as adequate information with respect to the location of the [absent] noncustodial parent/putative father is obtained, but no later than 90 calendar days after receipt of such information.
[(b)] (c) The child support enforcement unit is designated as the local agent to accept applications for State PLS services from agencies and individuals authorized by [OCSE] the Division of Child Support Enforcement within the Office of Temporary and Disability Assistance.
Subparagraph (v) of paragraph (3) of subdivision (a) of section 347.8 is amended to read as follows:
(v) Ascertain the ability of both parents to support, as set forth in subparagraph [(1)] (iii) of paragraph (1) of this subdivision [, unless paternity is still an issue. In the latter case, do not conduct a financial investigation of the putative father until after paternity is adjudicated].
Text of proposed rule and any required statements and analyses may be obtained from:
Jeanine Stander Behuniak, New York State Office of Temporary and Disability Assistance, 40 North Pearl Street 16C, Albany, New York 12243-0001, (518) 474-9779, email: Jeanine.Behuniak@OTDA.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory authority:
Section 20 (3) (d) of the Social Services Law (SSL) authorizes the New York State Office of Temporary and Disability Assistance (OTDA) to establish rules, regulations and policies to carry out its powers and duties.
Section 34 (3) (f) of the SSL requires the Commissioner of OTDA to establish regulations for the administration of public assistance and care within the State.
Section 111-a (1) of the SSL designates OTDA as the single State agency to supervise the administration of the State's child support program.
Section 111-a (2) of the SSL requires OTDA to promulgate regulations necessary to obtain and retain approval of its Child Support State Plan, required to be submitted to the federal Department of Health and Human Services (DHHS) by Part D of Title IV of the federal Social Security Act (herein "Title IV-D").
Section 111-b (3) of the SSL authorizes and requires OTDA to utilize location services made available through the DHHS including the federal parent locator service, the federal case registry, and the national directory of new hires.
Section 111-b (4) of the SSL authorizes and requires OTDA to maintain and operate a State parent locator service. This statute also requires OTDA to request and receive information from various public and private sources to enable OTDA and the social services districts to properly carry out their powers and duties to locate parents and enforce parental duties to support their children.
Section 111-g of the SSL provides that services in relation to the establishment of paternity and the establishment and enforcement of support obligations are to be made available to persons not in receipt of family assistance upon application by such person. Section 347.17 of 18 NYCRR sets forth the scope of child support services to be provided to individuals in receipt of services pursuant to section 111-g of the SSL, i.e. that all child support services under Parts 346 and 347 of Title 18 must be made available to such individual upon application therefore. Application must be made for all necessary services that are rendered free of charge.
Section 111-h (9) of the SSL authorizes and requires employers to report to the support collection unit full information as to the earnings of a respondent in a support or paternity establishment proceeding under Article 4, 5, 5-A or 5-B of the Family Court Act.
Section 111-k(1) of the SSL authorizes the social services district to confer with a respondent or potential respondent to obtain an acknowledgment of paternity for a child born out of wedlock. Section 111-k(2) of the SSL provides that when the paternity of a child is contested, the social services district may order the mother, child, and the alleged father to submit to one or more genetic marker or DNA tests to aid in the determination of whether or not the alleged father is the father of the child. Such order may be issued prior to, or subsequent to, the filing of a paternity petition. In addition, section 111-k(1)(b) of the SSL authorizes the social services district to enter into an agreement with the respondent or potential respondent to make support payments.
Section 111-r of the SSL requires all employers, upon request of a social services district or another State's child support enforcement agency, to provide prompt information on the employment, compensation and benefits of any individual employed by the employer as an employee or contractor, when such information is requested for the purpose of establishing paternity, or establishing, modifying, or enforcing an order of support. Pursuant to this statute, the information requested and provided shall include, but not be limited to, information regarding the individual's last known address, date of birth, social security number, plans providing health care or other medical benefits by insurance or otherwise, wages, salaries, earnings or other income of the individual.
Section 111-s (1) of the SSL authorizes OTDA and social services districts to access information contained in records of other State and local government agencies, as well as certain records held by private corporations, companies or other entities. This authority is provided for purposes of establishing paternity, or establishing, modifying or enforcing an order of support. Access is to be provided without the necessity of obtaining an order from any other judicial or administrative tribunal, subject to safeguards on privacy and information security.
Section 111-v of the SSL requires that all information and data in the automated child support enforcement system be maintained in a confidential manner designed to protect the privacy rights of the parties. Furthermore, this section prohibits disclosure of such information and data except for the purpose of, and to the extent necessary to, establish paternity, or establish, modify or enforce an order of support.
Section 143 of the SSL requires the officials or executives of any corporation or partnership and all employers of labor doing business within the State of New York to provide, upon request from a social services district, certain information with respect to any applicant for, or recipient of public assistance or care, or of any relative legally responsible for the support of such person or any person in receipt of services pursuant to section 111-g of the SSL. The information that may be requested about such individual includes the last known address, social security number, available plans providing care or other medical benefits by insurance or otherwise, and wages, salaries, earnings or other income.
Section 542 of the Family Court Act provides that the court shall order a temporary order of support in a paternity proceeding, notwithstanding that paternity of the subject child has not been established nor an order of filiation entered against the respondent, where the respondent willfully fails to comply with an order made by the court or an order by the social services district for testing pursuant to section 111-k of the SSL and willfully fails to appear before the court when otherwise required.
45 CFR § 301.1 defines the "IV-D agency" as the single and separate organizational unit in the State that has the responsibility for administering or supervising the administration of the State Plan under Title IV-D. In New York, this refers to the Division of Child Support Enforcement (DCSE).
45 CFR § 303.3 (b) (1) requires a State IV-D agency, the single and separate organizational unit tasked with administration of the Title IV-D State Plan, to locate all noncustodial parents or sources of income and/or assets using appropriate location sources such as the Federal PLS; interstate location networks; local officials and employees administering public assistance, general assistance, medical assistance, food stamps and social services (whether such individuals are employed by the State or a political subdivision); records of State agencies and departments, which maintain records of public assistance, wages and employment, unemployment insurance, income taxation, drivers' licenses and vehicle registration, and criminal records; relatives and friends of the noncustodial parent; current or past employers; the local telephone company and the U.S. Postal Service; financial references; unions and fraternal organizations; and police, parole and probation records; and other sources.
45 CFR § 303.101 (b) (1) requires a State IV-D agency to have in effect and use, in interstate and intrastate cases, expedited processes to establish paternity and to establish, modify, and enforce support orders.
42 USC § 666 (c) (1) requires each State, in order to maintain Title IV-D State Plan compliance, to have in effect laws requiring the use of expedited processes allowing for administrative action by the State IV-D agency. In particular, the State IV-D agency must have the authority to take certain actions in relation to the establishment of paternity and the establishment, modification, and enforcement of support orders, without the necessity of obtaining a court order. The State laws must recognize and enforce the authority of State agencies of other States to take such actions. With respect to all for-profit, nonprofit, and governmental employers, the State must have authority to require such entities to promptly provide information on the employment, compensation, and benefits of any individual employed by the entity as an employee or contractor, and to sanction a failure to respond to any such request. With respect to information contained in the records of other State and local government agencies and records held by certain private entities (public utilities, cable television companies and financial institutions), the expedited administrative authority must include the ability to obtain access, subject to safeguards on privacy and information security, as well as the nonliability of the entity affording access to the record.
2. Legislative objectives:
It was the intent of the Legislature in enacting the above statutes that OTDA establish rules, regulations and policies so that child support enforcement services are provided to eligible persons to ensure that, to the greatest extent possible, parents provide financial support for their children.
3. Needs and benefits:
Existing State regulations do not conform to current federal regulation relating to location services (45 CFR § 303.3). Existing law (SSL § 111-b (3) and (4)) allows for the use of the State and federal parent locator services. The proposed amendments to section 347.7 of 18 NYCRR conform State regulations to the federal regulations with regard to location services. The proposed amendments clarify that the location services outlined in section 347.7 of 18 NYCRR are to be used in all cases referred to the child support enforcement unit and in all cases applying for child support services under section 111-g of the SSL. (See also, 18 NYCRR § 347.17.)
Existing State regulations also do not provide for the financial investigation of a person who may be legally responsible for a child who is the subject of a child support matter, or in receipt of public assistance and care, prior to establishing paternity. However, existing State statutes allow for such financial investigations. In particular, sections 111-h (9), 111-r and 143 of the SSL require that employers furnish wage and health benefit information for persons who may be legally responsible in a paternity establishment or child support enforcement case. The proposed amendments to sections 347.7 and 347.8 of 18 NYCRR will make the State regulations consistent with State statutes. While State law already provides in section 111-k of the SSL that a local child support district may obtain voluntary acknowledgments of paternity and voluntary support agreements, circumstances present in a particular case may indicate that the putative father cannot be located or, if capable of being located, that such person is unwilling to acknowledge paternity and/or provide information in a timely manner as to income or assets. The proposed amendments give the local child support districts the authority needed to address all variations in case circumstances that may be encountered and to verify with reliable sources the accuracy and completeness of any information voluntarily obtained, while also allowing the child support districts to proceed with their statutory duties in a timely and efficient manner. Removing the regulatory restriction on conducting a financial investigation prior to the establishment of paternity will allow the local child support districts the opportunity to provide seamless services between establishing paternity and obtaining an order of support by reducing delay in the production of pertinent financial information needed to establish an order of support. The benefit of reducing delay in obtaining an appropriate order of support for the child is balanced against the privacy interests of the noncustodial parent/putative father. All information collected by the local child support districts as part of the effort to establish paternity or establish, modify and enforce a child support order is subject to strict safeguarding provisions. These safeguarding provisions serve to protect the privacy rights of the parties by prohibiting disclosure of information except for the purpose of, and to the extent necessary to, establish paternity, or establish, modify or enforce an order of support.
4. Costs:
DCSE, on behalf of the social services districts, provides for location services as required by federal regulations. As one part of this undertaking, DCSE issues a notice to the employers of individuals who are or may be legally responsible for child support. The notice requests financial and related information necessary for establishing appropriate orders of support including, but not limited to, last known addresses, dates of birth, health insurance benefits, and wages. The proposed regulatory amendment will clarify when this location tool requesting financial and related information can be issued. Therefore, no additional costs are associated with the amendments to the regulations.
5. Local government mandates:
No new or additional requirements will be imposed on social services districts.
6. Paperwork:
The use of State and federal location services will continue. The notice to employers will continue to be used to collect financial information.
7. Duplication:
The proposed amendments do not duplicate, overlap or conflict with any existing State or federal regulations. Instead, the proposed amendments to sections 347.6, 347.7 and 347.8 of 18 NYCRR will make the State regulations consistent with the authority provided for in federal regulation and in State statutes.
8. Alternatives:
While the obligation to repeat location attempts quarterly might have been revised to include a requirement that all location sources be used as opposed to simply accessing automated sources, it was determined that a regulatory change in that direction would unduly increase the burden upon the local district for minimum benefit given that the duty already exists to repeat full location efforts upon the receipt of new information.
9. Federal standards:
The proposed amendments do not exceed federal minimum standards for the same or similar subject areas.
10. Compliance schedule:
In accordance with statutory authority, the notice to employers is currently used to collect information for the financial investigation of individuals who are or may be legally responsible for child support. Accordingly, there will be no delay by social services districts in achieving compliance.
Regulatory Flexibility Analysis
1. Effect of rule:
There are 57 social services districts in addition to New York City that will be affected by the amendment to the regulations.
Small businesses that employ persons who are or may be legally responsible for child support will continue to be obligated to provide information as to sources of income, assets, and medical support pursuant to sections 111-b (3) and (4), 111-h (9), 111-r and 143 of the Social Services Law.
2. Compliance requirements:
The proposed amendments apply to all social services districts. However, given that the changes to the regulations only conform State regulation to federal regulation and clarify the timing of affirmative action needed on a case, no new reporting or recordkeeping is required by the social services districts. The NYS Division of Child Support Enforcement (DCSE), on behalf of the social services districts, will continue to provide location services consistent with State and federal requirements and issue the notices to employers to collect information for the financial investigation of noncustodial parents.
3. Professional services:
Given that the changes are expected to clarify existing procedures, social services districts will not need to hire additional staff.
4. Compliance costs:
The proposed changes to the State regulations will not result in increased administrative costs for social services districts. DCSE continues to share all administrative costs of location services and issuing the notices to employers with the social services districts.
5. Economic and technological feasibility:
DCSE continues to share with the social services districts all administrative costs of location services and issuing the notices to employers on behalf of the social services districts. Technological feasibility is not a concern for the social services districts since DCSE maintains and operates the State parent locator service and issues the notices to employers on their behalf.
6. Minimizing adverse impact:
The proposed regulatory amendments will not have an adverse impact on small businesses or local governments since this is only clarifying the timing of a financial investigation that is already being conducted. Approaches for minimizing adverse economic impacts on small businesses and local governments were not considered since no adverse economic impact will result from the proposed amendments.
7. Small business and local government participation:
The concepts for the proposed regulatory changes regarding financial investigation prior to paternity establishment were discussed with local district child support enforcement personnel in conversation focused on expediting support establishment and in the development of the notices to employers, as noted above, which are used for inquiries in financial investigations.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
There are 44 social services districts in rural areas that will be affected by the amendment to these regulations.
Small businesses in rural areas that employ persons who are or may be legally responsible for child support will continue to be obligated to provide information as to sources of income, assets and medical support pursuant to sections 111-b (3) and (4), 111-h (9), 111-r and 143 of the Social Services Law.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The proposed amendments apply to all social services districts, including those in rural areas. However, given that the changes only conform State regulation to federal regulation and clarify the timing of affirmative action needed on a case, no new reporting or recordkeeping is required by the social services districts in rural areas. The NYS Division of Child Support Enforcement (DCSE), on behalf of the social services districts, will continue to provide location services consistent with State and federal requirements and issue notices to employers to collect information for the financial investigation of noncustodial parents.
Given that the changes are expected to clarify existing procedures, social services districts in rural areas will not need to hire additional staff.
3. Costs:
The proposed changes to the State regulations will not result in increased administrative costs for social services districts in rural areas. DCSE continues to share all administrative costs of location services and issuing the notices to employers with the social services districts.
4. Minimizing adverse impact:
The proposed changes to the regulations will not have an adverse impact on social services districts, including those in rural areas, since this is only clarifying the timing of a financial investigation that is already being conducted. Approaches for minimizing any adverse impact on these districts were not considered since no adverse impact will result from the proposed amendments.
5. Rural area participation:
The proposed regulatory changes regarding financial investigation prior to paternity establishment were suggested by, and discussed with, local district child support enforcement personnel, including those in rural districts.
Job Impact Statement
A job impact statement has not been prepared for the proposed regulatory amendment. It is evident from the subject matter of the amendment that the jobs of the local district child support enforcement personnel will not be impacted in any real way by the proposed amendment. Thus the changes will not have any impact on jobs and employment opportunities in the State.
