DOC

Nebraska Comments for Referendum

By Joyce Fisher,2014-06-02 20:20
6 views 0
Nebraska Comments for Referendum

    General Comments on Initiative for 14-09-06.7

    By R. Mark Rogers

    ;June 6, 2006

    There is no apparent problem with the three points in this initiative as long as the initiative is implemented to conform to the requirements of 45 CFR 302.56. These comments focus only on section 3 since that is where there is disagreement. The bottom line is that the initiative must be viewed as establishing a certain type of guideline formula rather than causing guidelines to not be used.

The key requirements of 45 CFR 302.56 are:

     The state must have a presumptive and fully rebuttable child support guideline

    formula.

     The guideline formula must be applied presumptively to all child support cases.

     The formula must include all of an obligor’s income.

    Section 3 of the referendum creates two requirements for a guideline formula:

     The award must be based on the parenting plan.

     The award must be based on actual costs of the basic needs of the children.

    These issues can be incorporated into child support guideline formulas and conform to federal regulations. First, the parenting plan can become part of the guideline application by requiring that the guideline have a parenting time adjustment based on a valid economic study and applying a standard of equal duty of support. That is both parents share both parents’ child costs. The information from the parenting plan can be used as

    input into the guideline formula inclusive of a parenting time adjustment.

    The initiative does not define basic needs. Basic needs can be defined very narrowly or broadly. Basic needs could be foster care amounts or basic needs could rise with income but not include extravagances. Regardless of the definition, the basic needs could be allocated according to parenting time and shares of combined income. In this manner, the requirements of both the initiative and federal regulations are met.

    One of the key thrusts of this initiative is to move away from an income sharing guideline formula to a cost sharing formula. But a cost sharing formula clearly can include both parents’ incomes as the mechanism for how to allocate the costs. Federal regulations do not prohibit a cost sharing guideline and, in fact, most states have various types of cost sharing guidelines.

     ; R. Mark Rogers is an economist specializing in part in child costs and child support guidelines. Rogers is based in metropolitan Atlanta, Georgia. 678-364-9105. RMRogers@mindspring.com. RogersEconomics.com.

    As noted in the Federal Register, when a question was raised regarding basing child

    support upon foster care guidelines, the federal agency published response was that such

    is allowable as a policy option. From the Federal Register, 56 FR 22335 May 15, 1991:

     2. Comment: Several commenters asked that the regulation require that

    guidelines establish a minimum amount of support based on the level of

    Federal foster child guidelines, and be adjusted at each three percent

    increment of the Consumer Price Index (CPI). They also recommended

    that the level of support required by the guidelines should be that amount

    necessary to maintain the child(ren) at the standard of living they would

    have enjoyed had the marriage or relationship remained intact. These

    commenters also asked that the regulation prohibit States from exempting

    those with income above a certain level from application of the guidelines

    and reducing support amounts below a minimum standard when the

    obligor takes on the responsibility of additional children, quits a job or

    becomes a full-time student. Commenters recommended that the minimum

    standards also address the custodial parent's income in calculating awards.

    Other commenters asked that the guidelines address child care expenses

    and circumstances of second families with respect to treatment of income

    of a new spouse and expenses related to other dependents. Another

    commenter suggested that States be required to ensure that guidelines be

    reasonably related to economic data on costs of child rearing.

     Response: We have established only minimum components for

    guidelines in this Federal regulation and believe it is appropriate for States

    to develop guidelines' specifics. However, section 467 of the Act does

    prohibit States from explicitly limiting application of the guidelines to

    those with income above or below a specific level; the guidelines must be

    used as a rebuttable presumption in setting all award amounts in the State.

    Deviation from the guidelines is allowed only if, based on a written or

    specific finding on the record, the application of the guidelines would be

    unjust or inappropriate in a particular case. Therefore, while deviation

    from the guidelines is allowable in cases with income above a specific

    level if the above condition is met, States may not categorically excuse

    cases with income above or below a certain level from application of the

    guidelines.

     While we have not included the other recommendations as part of the

    required minimum elements of guidelines, we believe that they represent

    policy options which States could use in constructing guidelines, and

    encourage States to consider them in establishing and revising their

    guidelines.

    Basically, this initiative does not conflict with 45 CFR 302.56 if it is viewed as setting

    constraints for what North Dakota’s child support guidelines should be based upon

    instead of being viewed as eliminating guidelines. A guideline formula with a parenting

     - 2 -

    time adjustment based on input from parenting plans and with basic costs shared also according to shares of combined income would not violate federal regulations. The guidelines could have either a narrow or broad definition of basic costs with an appropriate underlying economic study.

Impact of Passage of Initiative on Receipt of Federal Monies

    First, if the initiative involving 14-09-06.7 is implemented in terms of designing new guidelines based on basic costs, parenting time, and shares of combined income, there would be no conflict and no loss of federal monies.

    Should there be conflict with federal regulations, there is time for the state to make corrections and not lose any federal monies. Before any penalty is imposed for non-compliance, there must be notice. At a minimum, the state would have a year for corrective action before losing federal funds. Additionally, should corrective action take somewhat longer, the penalties are very small and are only a fraction of federal monies received by the state. These views are corroborated with the federal regulations cited below.

[Code of Federal Regulations]

[Title 45, Volume 2]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 45CFR305.61]

[Page 281]

     TITLE 45--PUBLIC WELFARE

     CHAPTER III--OFFICE OF CHILD SUPPORT ENFORCEMENT (CHILD

    SUPPORT

     ENFORCEMENT PROGRAM), ADMINISTRATION FOR CHILDREN AND

    FAMILIES,

     - 3 -

     DEPARTMENT OF HEALTH AND HUMAN SERVICES

    PART 305_PROGRAM PERFORMANCE MEASURES, STANDARDS, FINANCIAL INCENTIVES,

AND PENALTIES--Table of Contents

    Sec. 305.61 Penalty for failure to meet IV-D requirements.

     (a) A State will be subject to a financial penalty and the amounts

    otherwise payable to the State under title IV-A of the Act will be

reduced in accordance with Sec. 305.66:

     (1) If on the basis of:

     (i) Data submitted by the State or the results of an audit conducted

    under Sec. 305.60 of this part, the State's program failed to achieve

    the paternity establishment percentages, as defined in section 452(g)(2)

    of the Act and Sec. 305.40 of this part, or to meet the support order

    establishment and current collections performance measures as set forth

in Sec. 305.40 of this part; or

     (ii) The results of an audit under Sec. 305.60 of this part, the

    State did not submit complete and reliable data, as defined in Sec.

305.1 of the part; or

     (iii) The results of an audit under Sec. 305.60 of this part, the

    State failed to substantially comply with one or more of the

    requirements of the IV-D program, as defined in Sec. 305.63; and

     - 4 -

     (2) With respect to the immediately succeeding fiscal year, the

    State failed to take sufficient corrective action to achieve the

    appropriate performance levels or compliance or the data submitted by

the State are still incomplete and unreliable.

     (b) The reductions under paragraph (c) of this section will be made

    for quarters following the end of the corrective action year and will

    continue until the end of the first quarter throughout which the State,

as appropriate:

     (1) Has achieved the paternity establishment percentages, the order

    establishment or the current collections performance measures set forth

in Sec. 305.40 of this part;

     (2) Is in substantial compliance with IV-D requirements as defined

in Sec. 305.63 of this part; or

     (3) Has submitted data that are determined to be complete and

reliable.

     (c) The payments for a fiscal year under title IV-A of the Act will

be reduced by the following percentages:

     (1) One to two percent for the first finding under paragraph (a) of

this section;

     (2) Two to three percent for the second consecutive finding; and

     (3) Not less than three percent and not more than 5 percent for the

third or a subsequent consecutive finding.

     (d) The reduction will be made in accordance with the provisions of

     - 5 -

45 CFR 262.1(b)-(e) and 262.7.

**************

[Code of Federal Regulations]

[Title 45, Volume 2]

[Revised as of October 1, 2005]

    From the U.S. Government Printing Office via GPO Access

[CITE: 45CFR305.63]

[Page 282-283]

     TITLE 45--PUBLIC WELFARE

     CHAPTER III--OFFICE OF CHILD SUPPORT ENFORCEMENT (CHILD SUPPORT

     ENFORCEMENT PROGRAM), ADMINISTRATION FOR CHILDREN AND FAMILIES,

     DEPARTMENT OF HEALTH AND HUMAN SERVICES

    PART 305_PROGRAM PERFORMANCE MEASURES, STANDARDS, FINANCIAL INCENTIVES,

AND PENALTIES--Table of Contents

    Sec. 305.63 Standards for determining substantial compliance with

     - 6 -

IV-D requirements.

     For the purposes of a determination under Sec. 305.61(a)(1)(iii) of

    this part, in order to be found to be in substantial compliance with one

    or more of the IV-D requirements as a result of an audit conducted under

    Sec. 305.60 of this part, a State must meet the standards set forth

    below for each specific IV-D State plan requirement or requirements

    being audited and contained in parts 302 and 303 of this chapter,

measured as follows:

     (a) The State must meet the requirements under the following areas:

     (1) Statewide operations, Sec. 302.10 of this chapter;

     (2) Reports and maintenance of records, Sec. 302.15(a) of this

chapter;

     (3) Separation of cash handling and accounting functions, Sec.

302.20 of this chapter; and

     (4) Notice of collection of assigned support, Sec. 302.54 of this

chapter.

     (b) The State must provide services required under the following

areas in at least 90 percent of the cases reviewed:

     (1) Establishment of cases, Sec. 303.2(a) of this chapter; and

     (2) Case closure criteria, Sec. 303.11 of this chapter.

     (c) The State must provide services required under the following

areas in at least 75 percent of the cases reviewed:

     - 7 -

     (1) Collection and distribution of support payments, including:

    collection and distribution of support payments by the IV-D agency under

    Sec. 302.32(b) of this chapter; distribution of support collections

    under Sec. 302.51 of this chapter; and distribution of support

    collected in title IV-E foster care maintenance cases under Sec. 302.52

of this chapter;

     (2) Establishment of paternity and support orders, including:

    Establishment of a case under Sec. 303.2(b) of this chapter; services

    to individuals not receiving TANF or title IV-E foster care assistance,

    under Sec. 302.33(a)(1) through (4) of this chapter; provision of

    services in interstate IV-D cases under Sec. 303.7(a), (b) and (c)(1)

    through (6) and (c)(8) through (10) of this chapter; location of non-

    custodial parents under Sec. 303.3 of this chapter; establishment of

    paternity under Sec. 303.5(a) and (f) of this chapter; guidelines for

    setting child support awards under Sec. 302.56 of this chapter; and

    establishment of support obligations under Sec. 303.4(d), (e) and (f)

of this chapter;

     (3) Enforcement of support obligations, including, in all

    appropriate cases: establishment of a case under Sec. 303.2(b) of this

    chapter; services to individuals not receiving TANF or title IV-E foster

    care assistance, under Sec. 302.33(a)(1) through (4) of this chapter;

    provision of services in interstate IV-D cases under Sec. 303.7(a), (b)

    and (c)(1) through (6) and (c)(8) through (10) of this chapter; location

     - 8 -

    of non-custodial parents under Sec. 303.3 of this chapter; enforcement

    of support obligations under Sec. 303.6 of this chapter and State laws

    enacted under section 466 of the Act, including submitting once a year

    all appropriate cases in accordance with Sec. 303.6(c)(3) of this

    chapter to State and Federal income tax refund offset; and wage

    withholding under Sec. 303.100 of this chapter. In cases in which wage

    withholding cannot be implemented or is not available and the non-

    custodial parent has been located, States must use or attempt to use at

    least one enforcement technique available under State law in addition to

    Federal and State tax refund offset, in accordance with State laws and

    procedures and applicable State guidelines developed under Sec.

302.70(b) of this chapter;

     (4) Review and adjustment of child support orders, including:

    Establishment of a case under Sec. 303.2(b) of this chapter; services

    to individuals not receiving TANF or title IV-E foster care assistance,

    under Sec. 302.33(a)(1) through (4) of this chapter; provision of

    services in interstate IV-D cases under Sec. 303.7(a), (b) and (c)(1)

    through (6) and (c)(8) through (10) of this chapter; location of

[[Page 283]]

    non-custodial parents under Sec. 303.3 of this chapter; guidelines for

    setting child support awards under Sec. 302.56 of this chapter; and

     - 9 -

    review and adjustment of support obligations under Sec. 303.8 of this

chapter; and

     (5) Medical support, including: establishment of a case under Sec.

    303.2(b) of this chapter; services to individuals not receiving TANF or

    title IV-E foster care assistance, under Sec. 302.33(a)(1) through (4)

    of this chapter; provision of services in interstate IV-D cases under

    Sec. 303.7(a), (b) and (c)(1) through (6) and (c)(8) through (10) of

    this chapter; location of non-custodial parents under Sec. 303.3 of

    this chapter; securing medical support information under Sec. 303.30 of

    this chapter; and securing and enforcing medical support obligations

under Sec. 303.31 of this chapter; and

     (6) Disbursement of support payments in accordance with the

    timeframes in section 454B of the Act and Sec. 302.32 of this chapter.

     (d) With respect to the 75 percent standard in paragraph (b) of this

section:

     (1) Notwithstanding timeframes for establishment of cases in Sec.

    303.2(b) of this chapter; provision of services in interstate IV-D cases

    under Sec. 303.7(a), (b) and (c)(4) through (6), (c)(8) and (9) of this

    chapter; location and support order establishment under Sec.

    303.3(b)(3) and (5), and Sec. 303.4(d) of this chapter, if a support

    order needs to be established in a case and an order is established

    during the audit period in accordance with the State's guidelines for

    setting child support awards, the State will be considered to have taken

     - 10 -

Report this document

For any questions or suggestions please email
cust-service@docsford.com