Daily Rules, Proposed Rules, and Notices of the Federal Government
This final regulation is published under the authority granted to the Secretary of HHS (Secretary) by section 1102 of the Social Security Act (the Act), 42 U.S.C. 1302. Section 1102 authorizes the Secretary to publish regulations that may be necessary for the efficient administration of the functions for which he is responsible under the Act.
The provisions of this final rule pertaining to the Federal Parent Locator Service (PLS) implement section 453 of the Act, 42 U.S.C. 653. Section 453 requires the Secretary to establish and conduct a Federal PLS to obtain and transmit specified information to authorized persons for purposes of establishing parentage; establishing, modifying, or enforcing child support obligations; and enforcing any Federal or State law with respect to a parental kidnapping; or making or enforcing a child custody or visitation determination, as described in section 463 of the Act. It authorizes the Secretary to use the services of State entities to carry out these functions.
The provisions relating to the State PLS implement section 454(8) of the Act, 42 U.S.C. 654(8), which requires each State plan for child support enforcement to provide that the State will: (1) Establish a service to locate parents utilizing all sources of information and available records; and the Federal PLS established under section 453; and (2) shall subject to the privacy safeguards in section 454(26) of the Act, 42 U.S.C. 654(26), disclose only the information described in sections 453 and 463 of the Act to the authorized persons specified in those sections.
The provisions relating to the States' computerized support enforcement systems implement section 454A of the Act, 42 U.S.C. 654a, which requires States' systems to perform such functions as the Secretary may specify relating to management of the State title IV-D program. Additionally, as stated in section 454A(f) of the Act, the State shall use the statewide automated system to extract information from, to share and compare information with, and to receive information from, other data bases and information necessary to enable the State agency (or the Secretary or other State or Federal agencies) to carry out the Child Support Enforcement program under title IV-D of the Act, and other programs designated by the Secretary.
In addition, the provisions pertaining to safeguarding of information implement section 454(26) of the Act, which requires the State IV-D program to have in effect safeguards, applicable to all confidential information handled by the State agency, that are designed to protect the privacy rights of the parties. Nothing in this rule is meant to prevent the appropriate use of administrative data for program oversight, management, and research.
The following is a summary of the regulatory provisions included in this final rule. The Notice of Proposed Rulemaking (NPRM) was published in the
The Section-by-Section Discussion of Comments (Section III) provides a detailed listing of the comments and responses. Many commenters asked for points of clarification rather than for change of language in the regulation. There were some comments, however, that brought about regulatory language changes in the final rule. Specifically, major changes include:
In § 303.21(a) we deleted the last sentence “The amount of support ordered and the amount of a support collection are not considered confidential information for purposes of this section.” Commenters were concerned that this language may be interpreted as IV-D payment records could be made available to requestors not associated with the case who may want the information for purposes not related to child support.
In response to comments, we deleted paragraph (1) of § 303.21(d), which in the NPRM authorized disclosure of confidential information to the individual to whom the information pertains. To the extent that an individual is requesting information about himself/herself in the IV-D agency's files for a IV-D program purpose, the information may be
We revised § 303.21(d)(2)(ii) and (iii) and relocated it to § 303.21(d)(1). Section 454A of the Act only permits the disclosure of information for non-IV-D purposes to State agencies of designated programs where the information is necessary to carry out a State agency function under that program. Therefore, we have relocated these disclosures to clarify that they are encompassed within this authority specified in § 303.21(d)(1). In paragraph (2), we restricted disclosure of information for income and eligibility verification purposes under sections 453A and 1137 of the Act to SDNH information.
We added language to § 303.21(e) that refers to family violence indicator requirements under § 307.11(f)(1)(x). Commenters thought we should add language regarding the family violence indicator which is an additional privacy safeguard for family violence victims.
We also changed § 307.13(a) of the NPRM by deleting paragraph (4). It referred to welfare-to-work, a grant program that no longer exists. We redesignated paragraph (a)(5) as paragraph (a)(4) and revised the language for clarity. As revised, it requires written policies that limit disclosure outside the IV-D program of National Directory of New Hire, Federal Case Registry and Internal Revenue Service (IRS) information from the computerized support enforcement system. The regulation sets forth the circumstances when information may be disclosed to IV-A, IV-B, and IV-E agencies and when IRS information may be disclosed. As revised, financial institution information cannot be shared outside the IV-D program. We made this change because of the language in section 469A(a) and (b) of the Act. These sections provide for non-liability for financial institutions when they disclose financial record information only for child support related purposes. Throughout the preamble and regulation we use “financial institution information” to refer to information covered by section 469A(a) and (b) of the Act. This information includes Multistate Financial Data Matches (MSFIDM) and State Financial Institute Data Matches (State FIDM).
Some commenters found the charts confusing, especially Appendix A in Section I and Appendix A in Section 2. We reorganized the two previous charts into three charts: Appendix A, B, and C. In Appendix A we reordered the chart by displaying locate efforts first by person rather than by purpose. Appendix A illustrates authority for locating individuals through the State PLS. Appendix B illustrates authority for locating an individual sought in a child custody/visitation or parental kidnapping case. Appendix C illustrates authority for State IV-D agencies to release information to non-IV-D Federal, State, and Tribal Programs. These charts are included at the end of the preamble for illustrative purposes only.
The previous regulation at § 302.35(a) contained a State plan requirement that the IV-D program shall establish a State Parent Locator Service (PLS) using: (1) All relevant sources of information and records available in the State, and in other States as appropriate; and (2) the Federal PLS of the Department of Health and Human Services.
Paragraph (a) modifies the requirement for each State to “establish” a State PLS, and instead requires each State to “maintain” a State PLS “to provide locate information to authorized persons for authorized purposes.”
Section § 302.35(a)(1), covering IV-D agencies, cases and purposes, requires that the State PLS access “the Federal PLS and all relevant sources of information and records available in the State, and in other States as appropriate, for locating custodial parents, noncustodial parents, and children for IV-D purposes.” Paragraph (a)(2) addresses locate requests for authorized non-IV-D individuals and purposes. For purposes of this regulation, all requests under section 453(c)(3) of the Act are considered to be requests by non-IV-D individuals and purposes. This provision requires a IV-D program to access and release information authorized to be disclosed under section 453(a)(2) of the Act from “the Federal PLS and, in accordance with State law, information from relevant in-state sources of information and records, as appropriate” to respond to locate requests from a non-IV-D entity or authorized individual specified in paragraph (c) and for authorized purposes specified in paragraph (d).
For non-IV-D requests, under paragraph (a)(2), the State PLS will not access IRS information or financial institution information, which is available only to IV-D agencies and to a limited extent to their agents, under Federal statute.
The previous regulation at paragraph (b) required that the IV-D agency must “establish a central State PLS office and also may designate additional IV-D offices within the State to submit requests to the Federal PLS.” The amendment to § 302.35(b) removes mention of a State PLS “office.” It also requires the IV-D program to “maintain” rather than “establish” a central State PLS.
The previous § 302.35(c)(1) through (5) language specified the authorized persons and entities from whom the State PLS shall accept requests for locate information. The amendments to paragraph (c) strengthen the process by which authorized requestors obtain locate information through the State PLS, specifically with respect to requests from a resident parent, legal guardian, attorney, or agent of a non-IV-A child.
Previously, § 302.35(c)(3) simply referred to the “resident parent, legal guardian, attorney, or agent of a child” in non-IV-A cases as authorized persons. The revised § 302.35(c)(3) makes it clear that the State PLS will accept locate requests from the resident parent, legal guardian, attorney or agent of a child who is not receiving assistance under title IV-A of the Act only if key requirements are met. The regulation requires the individual to: (i) Attest that the request is being made to obtain information on, or to facilitate the discovery of, any individual in accordance with section 453(a)(2) of the Act for the purpose of establishing parentage, establishing, setting the amount of, modifying, or enforcing child support obligations; (ii) attest that any information obtained through the Federal or State PLS will be used solely for these purposes and otherwise treated as confidential; (iii) provide evidence that the requestor is the parent, legal guardian, attorney, or agent of a child not receiving assistance under title IV-A of the Act, and if an agent of such a child, evidence of a valid contract that meets any requirements in State law or written policy for acting as an agent, and if a parent, attestation that he or she
Previous paragraph (d) is redesignated as paragraph (e), as discussed below. A new paragraph (d) is added to specify the authorized purposes for which the State PLS and the Federal PLS may be used and the locate information that may be released for these purposes. Paragraph (d)(1) covers the purposes of establishing parentage and establishing, modifying, or enforcing child support. It also covers related authorized releases of information to locate an individual who has or may have parental rights with respect to the child. It pertains to IV-D and non-IV-D authorized persons and programs, including title IV-B and IV-E agencies. For IV-B/IV-E cases that are non-IV-D and other cases under (d)(1), wage information is authorized and the State PLS may provide asset and/or debt information from the Federal PLS. Paragraph (d)(2) covers the purposes of enforcing a State law with respect to the unlawful taking or restraint of a child or for making or enforcing child custody or visitation determination and the related authorized releases of information.
Paragraph (e), requires privacy safeguards for Federal PLS information only. The amendment specifies at paragraphs (e)(1) and (2) that, subject to the requirements of this section and the privacy safeguards required under section 454(26) of the Act and the family violence indicators under section 307.11(f)(1)(x), the State PLS shall disclose “Federal PLS information” described in sections 453 and 463 of the Act and “information from in-state locate.” An Appendix A has been added at the end of the preamble to show the linkages between authorizing statute, authorized purpose, authorized person or program, and authorized information.
Under the final rule, § 303.3 is re-titled “Location of noncustodial parents in IV-D cases.” Under paragraph (a), location is defined to mean “information concerning the physical whereabouts of the noncustodial parent, or the noncustodial parent's employer(s), other sources of income or assets, as appropriate, which is sufficient and necessary to take the next appropriate action in a IV-D case.”
The amendments to paragraph (b) clarify which location requirements apply to IV-D cases. Paragraph 303.3(b) requires the IV-D program to attempt to locate a noncustodial parent in a IV-D case or his or her sources of income and/or assets when location is needed to take necessary action. Paragraphs (b)(1) through (5) provide an extensive list of location sources that as discussed below are unchanged for the most part from the previous regulation.
Paragraph (b)(3) no longer includes the words “including transmitting appropriate cases to the Federal PLS” because States now submit cases to the Federal Case Registry for automatic matching with the National Directory of New Hires for locate purposes.
The previous regulation at paragraph (b)(4) required the IV-D program to “Refer appropriate cases to the IV-D program of any other State, in accordance with the requirements of § 303.7 of this part.” The amendment inserts the word “IV-D” before the word “cases” to clarify that the IV-D program of State 1 may refer only IV-D cases to the IV-D program of State 2.
New paragraph (b)(6) draws a direct link between the IV-D program's duty to locate noncustodial parents and the duty to safeguard information. The language incorporates by reference both the existing statutory requirement at sections 454(26) and 454A(d) and (f) of the Act and the regulatory requirements at §§ 303.21 and 307.13.
Current paragraph (c) regarding diligent efforts to serve process is unchanged, but is republished to aid the reader in reviewing this section.
The regulation at § 303.20 describes the minimum organizational and staffing requirements for the IV-D program. Paragraph (b) of this section requires an organizational structure and staff sufficient to fulfill specified State level functions, including, in paragraph (b)(7), “operation of the State Parent Locator Service as required under §§ 302.35, 303.3, and 303.70 of this chapter.”
This new regulation is discussed in Section II.B.
With passage of legislation that established the National Directory of New Hires (NDNH) in 1996 and established the Federal Case Registry (FCR) in 1998, the Federal PLS became highly automated. The language in this section has been revised to indicate that the Federal PLS reflects the automated matching and return of information to IV-D programs in IV-D cases from the Federal PLS's Federal Case Registry and National Directory of New Hires. For example, while requests for Federal PLS information are accepted, State IV-D programs no longer “request” Federal PLS information and we replaced the word “requests” with “submittals” wherever it appears. We eliminated the word “office” as in State PLS “office” to demonstrate that this work is automated.
A new paragraph (a) has been inserted: The State agency will have procedures for submitting to the State PLS or the Federal PLS for the purpose of locating parents, putative fathers, or children for the purpose of establishing parentage or establishing, setting the amount of, modifying, or enforcing child support obligations; or for the purpose of enforcing any Federal or State law with respect to the unlawful taking or restraint of a child; or making or enforcing a child custody or visitation determination as defined in section 463(d)(1) of the Act. The previous paragraph (a) has been redesignated as paragraph (b) and the previous paragraph (b) has been redesignated as paragraph (c).
In addition, in newly designated paragraph (d) all submittals shall contain the following information: (1) The parent's or putative father's name; (2) the parent's or putative father's Social Security Number (SSN). If the SSN is unknown the IV-D program must make reasonable efforts to ascertain the individual's SSN before making a submittal to the Federal PLS; and (3) any other information prescribed by the Office.
The previous regulation at § 303.70(d) has been redesignated as paragraph (e). It requires that annually the IV-D director attest to compliance with the listed requirements. Paragraph (e)(1)(i) specifies that the IV-D program will “obtain” rather than “request”
Paragraph (e)(2) is new and requires that, in the case of a submittal made on behalf of a resident parent, legal guardian, attorney or agent of a child not receiving assistance under title IV-A, the IV-D program must verify that the requestor has complied with the provisions of § 302.35.
Paragraph (e)(3), formerly paragraph (d)(2), has been changed to specify that the IV-D program shall treat information obtained through the Federal PLS as confidential and shall safeguard the information in accordance with statutory requirements at § 303.21.
Paragraph (f) has minor changes. In (f)(1) the statutory references have been accompanied by explanatory phrases for better understanding and in (f)(4)(ii) the word “paid” has been changed to “transmitted” to reflect the change in payment methodology due to technology advances.
The regulation consists of six paragraphs: (a) Definitions; (b) Scope; (c) General rule; (d) Authorized disclosures; (e) Safeguards; and (f) Penalties for unauthorized disclosure.
The regulation begins with a definition of the term “confidential information.” Paragraph (a)(1) provides that “
Paragraph (b) reads: “The requirements of this section apply to the IV-D agency, any other State or local agency or official to whom the IV-D agency delegates any of the functions of the IV-D program, any official with whom a cooperative agreement as described in § 302.34 has been entered into, and any person or private agency from whom the IV-D agency has purchased services pursuant to § 304.22.”
Paragraph (c) presents a general rule which states that “[e]xcept as authorized by the Act and implementing regulations, an entity described in paragraph (b) of this section may not disclose any confidential information, obtained in connection with the performance of IV-D functions, outside of the administration of the IV-D program.”
Paragraph (d) sets forth the authorized disclosures that are exceptions to the general rule prohibiting disclosure of confidential information. Under paragraph (d)(1), upon request, the IV-D agency may, to the extent that it does not interfere with the IV-D agency meeting its own obligations, disclose information for certain limited purposes. Under paragraph (d)(1) information may be shared for administration of programs under titles IV (TANF, child and family services, and foster care and adoption programs), XIX (Medicaid program), and XXI (State Children's Health Insurance [SCHIP] program) of the Act. The regulation also includes disclosure to Tribal programs authorized under title IV-A and IV-D of the Act.
Paragraph (d)(2) (previously paragraph (d)(2)(iv)) permits the release of SDNH information to programs designated pursuant to sections 453A and 1137 of the Act for income and eligibility verification purposes.
Paragraph (d)(3) requires that authorized disclosures under § 303.21(d)(1) and (2) shall not include confidential information from the National Directory of New Hires, the Federal Case Registry, or Internal Revenue Service (IRS), unless authorized under § 307.13 or unless the information has been independently verified. A State may independently verify the NDNH or the FCR information through another source, in which case the information from the second source may be used. Independent verification is the process of acquiring and confirming confidential information through the use of a second source. The information from the second source may be released to those authorized to inspect and use the information. For example, if a State determines that an address is correct through a postal verification the State can share the information it acquired from the second source (the Post Office). No IRS information can be disclosed outside of the administration of the IV-D program, unless specifically authorized in Federal statute or independently verified. IRS information is restricted as specified in the Internal Revenue Code (IRC). No financial institution information may be disclosed outside the IV-D program. The restriction on release of financial institution information outside the IV-D program is due to the liability protection given to financial institutions for release of information to the Federal PLS or to the State IV-D programs for child support purposes as indicated in section 466(a)(17)(C) of the Act and limitations in section 469A of the Act, regarding the use of such information.
Paragraph (e) provides that “In addition to, and not in lieu of, the safeguards described in § 307.13 of this chapter, which governs computerized support enforcement systems, the IV-D agency shall establish appropriate safeguards to comply with the provisions of this section.” These safeguards shall also include prohibitions against the release of information when the State has reasonable evidence of domestic violence or child abuse against a party or a child and that the disclosure of such information could be harmful to the party or the child, as required by § 454(26) of the Act, and shall include use of the family violence indicator required under § 307.11(f)(1)(x) of this chapter.
Paragraph (f) provides that “[a]ny disclosure or use of confidential information in violation of the Act and implementing regulations remains subject to any State and Federal statutes that impose legal sanctions for such disclosure.”
Section 307.13 addresses security and confidentiality of computerized systems. Paragraph (a), (a)(1), and (a)(2) are unchanged. Paragraph (a) addresses information integrity and security. Automated systems must have safeguards protecting the integrity,
Paragraph (a)(3) permits the IV-D agency to exchange data from its computerized support enforcement system with agencies administering other programs under titles IV, XIX, and XXI of the Act to the extent necessary to carry out State and Tribal agency responsibilities under such programs in accordance with section 454A(f)(3) of the Act; and to the extent that it does not interfere with the IV-D agency meeting its own obligations.
Paragraph (a)(4) as written in the NPRM has been deleted. It referred to welfare-to-work, a grant program that no longer exists. The present paragraph (a)(4) which previously was paragraph (a)(5) has been rewritten for clarity and requires written policies that generally prohibit disclosure outside the IV-D program of National Directory of New Hire or Federal Case Registry information, or IRS information from the computerized support enforcement system, to information that has been independently verified. IV-A, IV-B, and IV-E agencies are authorized under various subsections of section 453 of the Act to receive NDNH and FCR information from the Federal PLS for certain specified purposes. Since these agencies are authorized to have this information, we are permitting the IV-D agency to disclose the NDNH or FCR information from the IV-D computerized support enforcement system directly to the IV-A, IV-B, or IV-E agency if it is being requested for the purpose authorized under section 453 of the Act. For IV-B and IV-E programs this includes establishing paternity or parental rights with respect to a child.
This section provides a detailed discussion of comments received on the proposed rule, and describes changes made to the proposed rule. We refer generally to actions of the “Department” pursuant to the rule. The rule itself refers to actions of the “Secretary” but the day-to-day activities of the Secretary's functions have been delegated and are exercised by other Department officials, primarily in the Administration for Children and Families. “Office” refers to the Federal Office of Child Support Enforcement (OCSE). We received approximately 200 comments from 20 IV-D programs (including 1 tribe), 3 organizations, and 1 private citizen. Many comments were for points of clarification rather than stating support or opposition to the proposed regulation. For example, many comments indicated a lack of awareness on existing longtime requirements such as the statutory restrictions of access to Federal PLS data on IV-D systems for certain unauthorized persons and programs.
There were various comments that are not attributable to specific sections of the regulation and are discussed below.
1. The approved Tribal IV-D plan or plan amendment indicates that the Tribe has entered into a cooperative agreement with the State under § 309.60(b) and (c) for the State to submit arrearages owed in Tribal IV-D cases for Federal tax refund offset. The Tribe must submit as part of its Tribal IV-D plan or plan amendment copies of any such agreement. The regulations governing Tribal IV-D programs at § 309.35(d) require that after approval of the original Tribal IV-D program application, all relevant changes required by new Federal statutes, rules, regulations, and Department interpretations are required to be submitted so that the Secretary may determine whether the plan continues to meet Federal requirements and policies.
2. The cooperative agreement between the Tribe and State includes a statement that the Tribal IV-D program will comply with all safeguarding requirements with respect to Federal tax refund offset in accordance with § 309.80, section 454(26) of the Act and the Internal Revenue Code 26 U.S.C. 6103, which prohibits the release of IRS information outside of the IV-D program.
3. The Tribal IV-D plan provides evidence that the Tribe's application for IV-D services under § 309.65(a)(2) includes a statement that the applicant is applying for State IV-D services for purposes of submitting arrearages for Federal tax refund offset.