[Federal Register Volume 75, Number 108 (Monday, June 7, 2010)]
[Proposed Rules]
[Pages 32145-32157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13021]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Parts 301, 302, 303, and 307
Safeguarding Child Support Information
AGENCY: Office of Child Support Enforcement (OCSE), Administration for
Children and Families (ACF), Department of Health and Human Services
(HHS).
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA) created and expanded State and
Federal Child Support Enforcement databases under title IV-D of the
Social Security Act and significantly enhanced access to information
for title IV-D child support purposes. States are moving toward more
integrated service delivery to better serve the families and further
the mission of the child support enforcement program, while protecting
confidential data. This Notice of Proposed Rulemaking (NPRM) proposes
requirements for: State Parent Locator Service responses to authorized
location requests; and State Child Support Enforcement program
safeguards for confidential information and authorized disclosures of
this information. This proposed rule would revise certain aspects of
the final rule State Parent Locator Service; Safeguarding Child Support
Information Final Rule published on September 26, 2008 and effective
December 30, 2010. This NPRM will prohibit disclosure of confidential
and personally identifiable information to private collection agencies
and expand disclosure to child welfare programs and the Supplemental
Nutrition Assistance Program (SNAP).
DATES: Consideration will be given to comments received on or before
August 6, 2010.
ADDRESSES: You may submit comments by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Interested persons are invited to submit written
comments via regular postal mail to: Office of Child Support
Enforcement, Administration for Children and Families, 370 L'Enfant
Promenade, SW., 4th Floor, Washington, DC 20447, Attention: Division of
Policy; Mail Stop: ACF/OCSE/DP.
[[Page 32146]]
FOR FURTHER INFORMATION CONTACT: Paige Hausburg, OCSE, Division of
Policy, (202) 401-5635, e-mail [email protected]. Deaf and
hearing-impaired individuals may call the Federal Dual Party Relay
Service at 1-800-877-8339 between 8 a.m. and 5 p.m. eastern time.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
This NPRM is published under the authority granted to the Secretary
of the United States Department of Health and Human Services
(Secretary) by sections 1102, 453, 454, 454A, and 463 of the Social
Security Act (the Act). Section 1102 of the Act, 42 U.S.C. 1302,
authorizes the Secretary to publish regulations that may be necessary
for the efficient administration of the Child Support Enforcement
program authorized under title IV-D of the Act (IV-D program).
The provisions of this NPRM pertaining to the Federal Parent
Locator Service (Federal PLS) implement sections 453 of the Act, 42
U.S.C. 653. Section 453 requires the Secretary to establish and conduct
a Federal Parent Locator Service (Federal PLS) to obtain and transmit
specified information only to authorized persons for purposes of
establishing parentage, or establishing, modifying, or enforcing child
support obligations. Section 453 of the Act, 42 U.S.C. 653 also
authorizes the Secretary to disclose information in the Federal PLS to
the State Child Support Enforcement program (authorized under title IV-
D of the Social Security Act), Temporary Assistance to Needy Families
program (TANF or IV-A program authorized under title IV-A of the Social
Security Act), Child Welfare Services program (IV-B program authorized
under title IV-B of the Act), and Foster Care and Adoption Assistance
program (IV-E program authorized under title IV-E of the Act) to assist
States in carrying out their responsibilities under those programs.
Section 463 of the Act, 42 U.S.C. 663, also permits States to use
information in the Federal PLS for the purpose of enforcing any Federal
or State law with respect to a parental kidnapping or making or
enforcing a child custody or visitation determination. In addition, the
provisions of this NPRM pertaining to the State Parent Locator Service
(State PLS) implement sections 454(8) and (17), 42 U.S.C. 654(8) and
(17), which require each State IV-D program to establish a State Parent
Locator Service (State PLS) to locate parents by exchanging data with
the Federal PLS and utilizing other information sources and records.
Several sections of the Act require safeguarding measures for
information contained in State and Federal databases, including the
National Directory of New Hires (NDNH) and the Federal Case Registry
(FCR). Section 454(8) requires States receiving funding under title IV-
D to have a State plan providing that the State IV-D program will: (1)
Establish a service to locate parents utilizing all sources of
information and available records and the Federal PLS; and (2) disclose
the information described in sections 453 and 463 only to the
``authorized persons'' specified in sections 453 and 463, subject to
the privacy safeguards in section 454(26) of the Act. In addition,
sections 453(m) and 463(c) restrict disclosure of confidential
information maintained by the Federal PLS only to an ``authorized
person'' for an authorized purpose and require the Secretary to
establish and implement safeguards designed to restrict access to
confidential information in the Federal PLS to authorized persons for
authorized purposes. Section 453(l), 42 U.S.C. 653(l), also specifies
that information in the FPLS shall not be used or disclosed except as
expressly provided in section 453. Section 454(26), 42 U.S.C. 654(26),
requires the State IV-D agency 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. Additionally,
sections 454(16) and 454A, 42 U.S.C. 654(16) and 654a, require States
to maintain computerized child support enforcement systems to carry out
their responsibilities under title IV-D and to have in effect
safeguards on the access to and use of data in the State's automated
system.
II. Background
This NPRM will prohibit disclosure of confidential and personally
identifiable information to private collection agencies and expand the
disclosure of confidential and personally identifiable information to
child welfare programs authorized under titles IV-B and IV-E and the
Supplemental Nutrition Assistance Program (SNAP). On September 26,
2008, a final rule, following notice and comment period, entitled
``State Parent Locator Service; Safeguarding Child Support
Information,'' was published in the Federal Register [73 FR 56422] to
address requirements for State Parent Locator Service responses to
authorized location requests, State IV-D program safeguarding of
confidential information, authorized disclosures of this information,
and restrictions on the use of confidential data and information for
child support purposes with exceptions for certain disclosures
permitted by statute. The effective date given for the final rule was
March 23, 2009. In accordance with the memorandum of January 20, 2009,
from the Assistant to the President and Chief of Staff entitled
``Regulatory Review'' [74 FR 4435], on March 3, 2009, the Department
published a notice in the Federal Register [74 FR 9171] seeking public
comment on a contemplated delay of 60 days in the effective date of the
rule entitled ``State Parent Locator Service; Safeguarding Child
Support Information.'' In response to those comments, the Department
issued a subsequent notice published in the Federal Register [74 FR
11879] on March 20, 2009, which delayed the effective date of the
September 26, 2008 rule by 60 days until May 22, 2009, in order to
permit Departmental officials the opportunity for further review of the
issues of law and policy raised by this rule. However, subsequent to
publication of the March 20, 2009 notice, the Department determined
that additional time would be needed for officials to complete their
review of the rule and to fully assess the substantive comments
received in response to the March 3, 2009 notice. As a result, on April
15, 2009 a notice was published in the Federal Register [74 FR 17445]
indicating that the Department was contemplating a further delay in the
effective date of the ``State Parent Locator Service; Safeguarding
Child Support Information'' final rule to December 30, 2010, and
requesting comments on the delay of the effective date. In response to
comments from the April 15, 2009 notice, the Department issued a
subsequent notice, published in the Federal Register [74 FR 23798] on
May 21, 2009 delaying the effective date of the September 26, 2008 rule
to December 30, 2010.
Although the March 3, 2009 and the April 15, 2009 notices invited
comments on whether a delay in the rule's effective date was needed
``to allow Departmental officials the opportunity for further review
and consideration,'' both notices also generated focused substantive
comments recommending changes to several particular provisions of the
final rule that warrant further consideration. In addition to
supporting a delay in the effective date of the rule, the comments
raised specific policy concerns regarding two areas of the September
26, 2008 final rule: (1) The rules for
[[Page 32147]]
disclosure of confidential and personally identifiable information
about individuals maintained by State IV-D programs to a private, for-
profit child support collection agency as an ``agent of a child''; and
(2) the child welfare data exchange provisions of the rules in light of
legislation enacted in October 2008 after publication of the final
rule.
With respect to disclosure of information to private collection
agencies, concerns have been raised by commenters, Departmental
officials, media coverage, litigation and program stakeholders that the
government's disclosure of confidential information to private child
support collection agencies may not serve the child's best interests.
Specific comments have been raised about the risks involved in
disclosing confidential data to private collection agencies not acting
as a State's agent under a contractual relationship nor required to
comply with ethics and confidentiality rules such as those governing
State agencies and private attorneys, and whose business practices are
largely unregulated and not subject to program oversight.
Additionally, commenters on the March 3 and April 15, 2009 notices
stated that a delay in the effective date would give the Administration
an opportunity to conduct a review of the child welfare data exchange
provisions to ensure that the provisions of the rule conform to The
Fostering Connections to Success and Increasing Adoptions Act (Pub. L.
110-351), signed into law on October 7, 2008, eleven days after the
Safeguarding Final Rule was published. One commenter also indicated
that the final rule appeared to prohibit the State IV-D agency from
disclosing confidential information, such as child support payment
records, to other State agencies, including the State food assistance
program (now called the Supplemental Nutrition Assistance Program
(SNAP)).
This NPRM proposes limited changes to the final regulation
published on September 26, 2008 to address concerns identified by
Department officials as well as those raised by commenters. Only
selected portions of the ``State Parent Locator; Safeguarding Child
Support Information'' final rule are addressed in the NPRM. The final
rule published on September 26, 2008 in 73 FR 56442 will go into effect
on December 30, 2010. It is our intent that the selected revised
sections, as proposed in this notice, also will go into effect on
December 30, 2010 via a separate final rule. We are specifically
seeking comments on those issues raised by commenters as mentioned
above and the proposed revisions discussed further below.
The preamble includes a discussion about the rationale behind the
changes, followed by an explanation of the provisions of the proposed
regulation. The major issues include a prohibition against disclosure
of confidential and personally identifiable information to private
child support collection agencies and expanded release of information
for titles IV-B and IV-E purposes. In order to address concerns
regarding disclosure of information to private child support collection
agencies, we propose to define the term ``agent of a child'' as it is
used in section 453(c)(3). Under a broad interpretation of the term
``agent of a child'' included in policy guidance previously issued by
OCSE, a private collection agency is treated as an agent of a child in
some States and thus may obtain confidential information about parents
and families from the Federal PLS and State PLS. However, this term is
not defined in the statute or regulation. The proposed definition of
``agent of a child'' included in this NPRM will prohibit the disclosure
of information to private child support collection agencies concerning
which the State has no contractual relationship or oversight
responsibility, and also will revise sections of the rule that are
inconsistent with the proposed definition of ``agent of a child.'' The
proposed definition will supersede the five policy statements issued by
OCSE in 2002 and 2003 with respect to disclosure of information
contained in the State PLS and the Federal PLS to private child support
collection agencies. The prior policy allowed States to disclose PLS
information to private collection agencies, and although never
promulgated as a rule, it has been in place for several years. We are
particularly interested in comments on superseding the previously-
issued policy. A more detailed explanation of these policy documents,
and the underlying policy considerations, are discussed in section III
of the preamble.
We also propose revisions to the rule that would expand permissible
disclosure of information in the Federal PLS and the State PLS to State
IV-B and IV-E agencies to assist States in carrying out their
responsibilities under those programs, pursuant to section 453(j)(3),
as amended by The Fostering Connections to Success and Increasing
Adoptions Act of 2009 (Pub. L. 110-351).
III. Discussion of the Issues
In late 2002, OCSE issued a series of four policy statements dated
December 4, 2002 addressing Federal law and regulation on disclosure of
information and redirection of child support payments to private
collection agencies. OCSE also issued a fifth policy statement
addressing the same issues on May 23, 2003. The policy statements are:
AT-02-04, Providing FPLS locate services to an ``agent of
the child'' for child support purposes; \1\
---------------------------------------------------------------------------
\1\ Available at http://www.acf.hhs.gov/programs/cse/pol/AT/2002/at-02-04.htm.
---------------------------------------------------------------------------
DCL-02-35, Federal Guidance on Private Collection
Agencies; \2\
---------------------------------------------------------------------------
\2\ Available at http://www.acf.hhs.gov/programs/cse/pol/DCL/2002/dcl-02-35.htm.
---------------------------------------------------------------------------
IM-02-09, Effective Practices for Working with Child
Support Private Collection Agencies; \3\ and
---------------------------------------------------------------------------
\3\ Available at http://www.acf.hhs.gov/programs/cse/pol/IM/2002/im-02-09.htm.
---------------------------------------------------------------------------
PIQ-02-02, Requests by Custodial Parents for a Change of
Address for the Disbursement of the Custodial Parent's Share of Child
Support Collections; \4\
---------------------------------------------------------------------------
\4\ Available at http://www.acf.hhs.gov/programs/cse/pol/PIQ/2002/piq-02-02.htm.
---------------------------------------------------------------------------
PIQ-03-05, Guidance on Private Collection Agencies--Agent
of a Child and Third Party Addresses for Correspondence.\5\
---------------------------------------------------------------------------
\5\ Available at http://www.acf.hhs.gov/programs/cse/pol/PIQ/2003/piq-03-05.htm.
---------------------------------------------------------------------------
The policy guidance issued in 2002 and 2003 stated that Federal law
and regulation did not prohibit State IV-D programs from providing
confidential and personally identifiable information and redirecting
child support collections to private collection agencies upon request
of a custodial parent-payee. The policy stated that, if permitted under
applicable State law, a private collection agency could act as the
``agent of a child.'' The term was not defined in the Act or in
regulation and it was left to States to determine whether or not to
release such information to private collection agencies. The policy
guidance was issued by OCSE following the issuance of a General
Accounting Office (now the Government Accountability Office) report
regarding access to information in Federal databases and use of wage
withholding by private child support collection agencies (GAO 02-349,
March 2002).
Public comments received in response to the March 3 and April 15,
2009 notices, as well as recent litigation alleging unlawful actions by
private child support collection agencies adverse to the interests of
families
[[Page 32148]]
served by the IV-D program,\6\ have given us sufficient concern to
reassess the September 26, 2008 rule and the 2002 and 2003 policy
guidance permitting disclosure of confidential information in the
Federal and State databases to private collection agencies.
Accordingly, this NPRM proposes revisions to relevant parts of the
September 26, 2008 rule that would supersede the 2002 and 2003 policy
statements with respect to disclosure of confidential and personally
identifiable information in the Federal PLS and the State PLS to
private child support collection agencies due to: (1) The increase in
public security and privacy concerns with personally identifiable data
maintained by the government and the dramatic increase in incidences of
identity theft; (2) the questionable practices and fiscal instability
of several large private child support collection agencies; and (3) the
Department's interest in promoting policies that serve the best
interest of children and families. These underlying policy
considerations, discussed further below, have informed our proposed
definition of ``agent of the child'' in proposed Sec. 301.1, discussed
in section IV.
---------------------------------------------------------------------------
\6\ United States Postal Service v. Child Support Services of
Atlanta, Inc., No. 7:09-CV-111 (M.D. Ga. Feb. 19, 2010):
Commonwealth of Virginia, et al. v. Supportkids, Inc., No. 08000728-
00 (Va. Cir. Ct. Richmond City Nov. 17, 2009); and Commonwealth of
Virginia, et al. v. Supportkids Services, Inc., No. 3:10-CV-73, 2010
U.S. Dist. LEXIS 30726 (E.D. Va. Mar. 29, 2010).
---------------------------------------------------------------------------
Increase in Security and Privacy Concerns
In June 2009, the Department of Health and Human Services (HHS),
Office of the Chief Information Officer, issued the HHS-OCIO Policy for
Information Systems Security and Privacy (http://www.hhs.gov/ocio/policy/hhs-ocio_policy_for_information_systems_security_and_privacy__.html). The policy provides direction to the information
technology security programs of HHS Operating Divisions and Staff
Divisions for the security and privacy of HHS data in accordance with
the Federal Information Security Management Act of 2002 (FISMA). The
policy states that, ``The HHS Information Security and Privacy Program
(henceforth, ``the Program'') has evolved and matured over the last
several years as new Federal requirements have been published and as
advances in technology have been made. Citizens' concerns over the
unauthorized disclosure of protected health information and personally
identifiable information have placed information technology security
and privacy issues at the forefront of the national dialogue,
positively impacting the way in which public, private, and government
organizations provide services and protect information.'' In recent
years, Congress also has held a number of hearings highlighting rising
concerns with identity theft and other confidentiality issues.\7\ In
light of this new HHS policy and its associated requirements, as well
as the concerns expressed in Congressional hearings, we believe that
more rigorous controls over access by private entities to confidential
and personally identifiable data, including Social Security numbers,
are warranted.
---------------------------------------------------------------------------
\7\ For example, see the Committee on Oversight and Government
Reform's Hearing on ``Identity Theft: Victims Bill of Rights'' at:
http://oversight.house.gov/index.php?option=com_content&view=article&id=4264&catid=48:hearings&Itemid=29.
http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=db89f4c3-b2b8-42fd-8dae-934a1b317c35
http://oversight.house.gov/index.php?option=com_content&view=article&id=4286:qprivacy-the-use-of-commericial-information-resellers-by-federal-agenciesq&catid=48:hearings&Itemid=29
http://waysandmeans.house.gov/hearings.asp?formmode=detail&hearing=570&comm=4.
---------------------------------------------------------------------------
Questionable Practices of Child Support Private Collection Industry
In addition to privacy concerns, OCSE takes its obligation as
steward of confidential and personally identifiable information that
has been entrusted by parents and Congress very seriously. Several
private child support collection agencies have had a history of
consumer complaints made by custodial parents, non-custodial parents,
grandparents, employers, and courts, as well as the recent litigation
brought by the U.S. Postal Service and Commonwealth of Virginia cited
above. The complaints allege that some private collection agencies use
questionable tactics, including deceptive advertising, perpetual
service contracts that prohibit cancellation, falsely representing the
business as a government office, using official-looking documents to
pressure employers to redirect support withheld from employees'
paychecks, demanding payments from grandparents, demanding payments
from non-custodial parents that are not owed, and other allegedly
deceptive and abusive tactics.\8\
---------------------------------------------------------------------------
\8\ Some of these practices are described in U.S. General
Accountability Office, Child Support Enforcement: Clear Guidance
Would Help Ensure Proper Access to Information and Use of Wage
Withholding by Private Firms. http://www.gao.gov/new.items/d02349.pdf
---------------------------------------------------------------------------
OCSE is aware of recent litigation filed by the United States
Postal Service alleging that a private collection agency misrepresented
itself as a State agency to defraud parents in several States. Two
cases were filed by the State Attorney General on behalf of Virginia.
Such litigation reflects a growing national concern with the business
practices sometimes used by private child support collection agencies.
It is the Department's position that such questionable practices should
not be facilitated or subsidized by providing access to confidential
information entrusted to the Federal Government and States. A recent
bankruptcy filing by one of the largest private collection agencies and
subsequent transfer of parents' cases to other companies with which the
parents had no contact has added to our concern. This proposed rule
would not prohibit or ban these private collection activities. Such
companies can still acquire data directly from the custodial parents
who sign up for their services or through private data search
companies.
Promoting Policies That Serve the Best Interest of Children and
Families
We are concerned that policies issued by the Department should
generally promote the best interest of children and families. The child
support program is no longer primarily a welfare reimbursement, cost
recovery device for the Federal and State governments; it is now a
family-first program intended to ensure families' self-sufficiency and
strengthen parents' commitment to supporting their children.\9\ Child
support policies should help increase, not decrease, family income and
stability, and strengthen, not undermine, parent-child relationships.
As indicated previously, consumer complaints allege that the practices
of some private child support collection agencies have had the effect
of reducing child support income received by families and increasing
conflict between parents, and thus do not serve the best interests of
children and families.
---------------------------------------------------------------------------
\9\ See the National Child Support Enforcement Strategic Plan FY
2005-2009, at http://www.acf.hhs.gov/programs/cse/pubs/2004/Strategic_Plan_FY2005-2009.pdf.
---------------------------------------------------------------------------
Expansion of the Release of Information for IV-B/E Program Purposes
The Fostering Connections to Success and Increasing Adoptions Act
of 2008 (the Fostering Connections Act) was signed into law on October
7, 2008, eleven days after the publication of the Safeguarding Final
Rule published on September 26, 2008. Section 105 of the Fostering
Connections Act amended section 453(j)(3) of the Social Security Act to
expand the authority for
[[Page 32149]]
information comparisons and disclosures of information in all
registries for title IV program purposes to include child welfare and
foster care programs funded under part B and part E of the Social
Security Act. The new law authorizes disclosure of information in the
Federal PLS and the State PLS to conduct data matches and share data
with child welfare agencies ``to the extent and with the frequency that
the Secretary determines to be effective in assisting States to carry
out their responsibilities under this part [D], part B or E, and
programs funded under part A.''
Section 103 of the Fostering Connections Act amends section 471(a)
of the Social Security Act to provide additional authority to expand
the scope of information disclosed to State IV-B and IV-E programs by
adding paragraph (29) requiring the State to have a child welfare plan
that:
(29) provides that, within 30 days after the removal of a child
from the custody of the parent or parents of the child, the State
shall exercise due diligence to identify and provide notice to all
adult grandparents and other adult relatives of the child (including
any other adult relatives suggested by the parents), subject to
exceptions due to family or domestic violence, that--
(A) Specifies that the child has been or is being removed from
the custody of the parent or parents of the child;
(B) explains the options the relative has under Federal, State,
and local law to participate in the care and placement of the child,
including any options that may be lost by failing to respond to the
notice;
(C) describes the requirements under paragraph (10) of this
subsection to become a foster family home and the additional
services and supports that are available for children placed in such
a home; and
(D) if the State has elected the option to make kinship
guardianship assistance payments under paragraph (28) of this
subsection, describes how the relative guardian of the child may
subsequently enter into an agreement with the State under section
473(d) to receive the payments.
In addition, section 206 of the Fostering Connections Act requires
the child welfare agency to make reasonable efforts to place siblings
removed from their home in the same foster care, kinship guardianship,
or adoptive placement, unless joint placement would be contrary to the
safety or well-being of any of the siblings, and to provide for
frequent visitation or other ongoing interaction between the siblings
if the children are not placed in the same home. Information in the
Federal PLS and State PLS regarding the location of adult relatives and
siblings of children involved in child welfare and foster care cases
would assist IV-B and IV-E State agencies to meet the requirements of
sections 103 and 206 of the Fostering Connections Act.
Comments received in response to the March 3 and April 15, 2009
notices indicate that the amendment made to section 453(j)(3) of the
Act made by the Fostering Connections Act permits disclosure of a
broader range of information to IV-B and IV-E agencies for a broader
range of authorized purposes that was not fully addressed in the
September 26, 2008 regulation. Therefore, this proposed regulation
expands disclosure of information to IV-B and IV-E agencies to assist
States in carrying out their responsibilities under those programs,
including locating relatives of children removed from parental custody
in order to identify potential placements for the child and assist the
State agency in permanency planning.
IV. Provisions in the Proposed Regulations
Part 301
Sec. 301.1 Definitions (``Agent of the Child'')
As discussed above, section 453 of the Act, enacted in 1975 by
Public Law 93-647, prohibits the Federal PLS from releasing
confidential and personally identifiable information about individuals
maintained by the IV-D program, other than to an ``authorized person''
for an authorized purpose. Section 453(c) defines ``authorized person''
as:
(1) any agent or attorney of any State having in effect a plan
approved under this part, who has the duty or authority under such
plans to seek to recover any amounts owed as child and spousal
support or to seek to enforce orders providing child custody or
visitation rights (including, when authorized under the State plan,
any official of a political subdivision);
(2) the court which has authority to issue an order against a
noncustodial parent for the support and maintenance of a child, or
to issue an order against a resident parent for child custody or
visitation rights, or any agent of such court;
(3) the resident parent, legal guardian, attorney, or agent of a
child (other than a child receiving assistance under a State program
funded under part A) (as determined by regulations prescribed by the
Secretary) without regard to the existence of a court order against
a noncustodial parent who has a duty to support and maintain any
such child; and
(4) a State agency that is administering a program operated
under a State plan under subpart 1 of part B, or a State plan
approved under subpart 2 of part B or under part E.
Similarly, 45 CFR 302.35(c)(3), which requires the State PLS to accept
requests for confidential and personally identifiable information only
from authorized persons, incorporates the definition of ``authorized
persons'' specified in section 453(c).
As stated in section 453(c)(3), an authorized person includes ``the
resident parent, legal guardian, attorney, or agent of a child (other
than a child receiving assistance under a program funded under part
A).'' A ``resident parent'' lives with the child and provides the
child's day-to-day care. An individual who has been appointed by court
order as a child's ``legal guardian'' is legally responsible for the
child's care and has a legal obligation to act in the child's best
interest. An ``attorney'' has an ethical obligation to represent the
interests of the child, and is subject to State licensure and
professional responsibility rules.\10\ The terms resident parent, legal
guardian and attorney are commonly understood and therefore are not
further defined herein. We also note that each of these ``authorized
persons'' has a relationship with the child that imposes an intrinsic
responsibility to assure protection of the child's welfare and
interests. For example, a private attorney involved in a child support
case has undertaken the responsibility to provide legal representation
to the resident parent or child related to the establishment,
modification or enforcement of a child support obligation. An attorney-
client relationship has thus been created which imposes an ethical and
fiduciary duty upon the attorney to represent the child's best
interests, and the attorney is subject to a Code of Professional
Responsibility. Since the term ``agent of a child,'' on the other hand,
is susceptible to broad interpretation and, as has been demonstrated,
may previously have included ``agents'' with a pecuniary interest of
their own that may be inconsistent with the child's best interests, we
believe that this term warrants definition.
---------------------------------------------------------------------------
\10\ See, e.g., In the Matter of Struthers, 179 Ariz. 216
(Arizona Sup. Ct., 1994), where the Arizona Supreme Court disbarred
a private attorney who used a variety of tactics to collect child
support that violated rules of professional responsibility.
---------------------------------------------------------------------------
While the term ``agent of a child'' is not defined in statute or
rule, section 454(11)(B) of the Act, 42 U.S.C. 654(11)(B), also enacted
in 1975 by Public Law 93-647, (formerly, section 454(12) of the Act),
is instructive. Section 454(11)(B) requires States to distribute child
support payments as specified in sections 456 and 457, 42 U.S.C. 656
and 657. Section 454(11)(B) provides that a State plan must:
Provide that any payment required to be made under section 456
or 457 to a family shall be made to the resident parent, legal
[[Page 32150]]
guardian, or caretaker relative having custody of or responsibility
for the child or children. (Emphasis added.)
A ``caretaker relative'' is a longstanding term used in the Temporary
Assistance to Needy Families (TANF) program and its predecessor
program, Aid to Families with Dependent Children (AFDC), to refer to
those relatives responsible for the day-to-day care of children and who
are eligible to apply for cash assistance for needy families,
regardless of the existence of a legal custody order or legal
guardianship status.\11\
---------------------------------------------------------------------------
\11\ See, e.g., 42 U.S.C. 602(a)(1)(A); Rodriguez v. Vowell, 472
F.2d 622 (5th Cir.), cert. denied 412 U.S. 944, 93 Sup. Ct. 2777, 37
L.Ed.2d 404 (1973) (``The plain language of the Social Security Act,
its legislative history, and the relevant decisional precedent make
clear that the needs of the caretaker relative, as well as those of
the dependent child, are to be considered in deciding if a family is
eligible for an AFDC grant.'')
---------------------------------------------------------------------------
We have carefully considered the intent of Congress in designating
an ``agent of a child,'' and believe the close connection in language
between sections 453(c)(3) and 454(11)(B) and the long-established
understanding of ``caretaker relative'' for title IV-A purposes is
informative. Accordingly, we propose to amend Sec. 301.1 by adding the
following definition:
Agent of a Child means a caretaker relative having custody of or
responsibility for the child.
We believe that limiting the definition of ``agent of the child''
to ``caretaker relative'' is consistent with the other terms in section
453(c) which identify individuals with responsibility to protect and
further the child's best interest. As indicated, the proposed
definition has a statutory basis that is derived from and consistent
with section 454(11)(B). The proposed definition of the term ``agent of
a child'' recognizes the practical reality that children are sometimes
left in the care of a grandmother or other relative and, even though
the relative may not have been appointed by a court as the child's
legal guardian or have legal custody of the child, the relative can be
expected to protect and act in the child's best interest. The
definition also accords with the responsibility of the government to
safeguard confidential and personally identifiable information and
prevent misuse of the data.
This section is open to public comment. We are specifically seeking
comments on this proposed definition of ``agent of a child'' which will
supersede the 2002 and 2003 policy options which allowed States to
determine whether or not to permit disclosure of confidential and
personally identifiable information to private child support collection
agencies. We also are seeking comments on whether to add a definition
of ``attorney of the child'' to the final rule.
Sec. 302.35 State Parent Locator Service
The final regulation at Sec. 302.35(a) requires each State to
maintain a State PLS to provide locate information to authorized
persons for authorized purposes. This paragraph is not open for notice
and comment and will not be addressed in this NPRM. The effective date
of this paragraph is December 30, 2010.
The final regulation at Sec. 302.35(b) requires the State IV-D
program to maintain a central State PLS. This paragraph is not open for
notice and comment and will not be addressed in this NPRM. The
effective date of this paragraph is December 30, 2010.
In the final rule published on September 26, 2008, the amendments
to Sec. 302.35(c) were intended to establish safeguards for accessing
locate information in the State PLS and the Federal PLS, specifically
with respect to requests from a resident parent, legal guardian,
attorney, or agent of a non-IV-D child. We propose to open only
paragraph (c)(3) for comment. Paragraphs (c)(1), (c)(2) and (c)(4) will
remain intact. The effective date of those parts of these paragraphs is
December 30, 2010.
We propose to eliminate Sec. 302.35(c)(3)(iii) which includes a
provision that an agent of a child not receiving assistance under title
IV-A may provide evidence of a contract that meets the requirements of
State law that will allow information to be provided to that agent. We
are deleting this language because of the concerns identified by
Departmental officials regarding disclosure of information to private
child support collection agencies as discussed earlier in the preamble.
We also would renumber Sec. 302.35(c)(3)(iv) as Sec.
302.35(c)(3)(iii).
The Fostering Connections Act has raised questions about the extent
to which data maintained in the Federal PLS and State PLS is available
to assist State child welfare agencies in carrying out their program
responsibilities to locate potential placements for a child removed
from parental custody and for permanency planning purposes. With the
enactment of the Fostering Connections Act, there are now two separate
sections of the Act that provide authority for the IV-D program to
disclose information to State IV-B and IV-E agencies. Section 453(c) of
the Social Security Act was amended in 1997 by The Adoption and Safe
Families Act (Pub. L. 105-89) to include State IV-B and IV-E programs
as authorized persons that may receive specified information under
section 453(a) about the location, income and assets of a person ``who
has or may have parental rights with respect to a child.''
Subsequently, the Fostering Connections Act amended section 453(j)(3)
of the Social Security Act to authorize the Secretary to provide
information to assist States in carrying out their responsibilities
under part IV-B and IV-E. We are particularly seeking comments on
proposed language with respect to two overarching issues. The first
issue is whether the language in the Fostering Connections Act broadens
the types of Federal PLS information otherwise available to State child
welfare agencies under section 453 concerning parents and non-parent
relatives of children involved in child welfare cases. The second issue
is whether State IV-D programs should have the flexibility to provide a
broader range of State PLS information to State child welfare agencies,
for example, under an interagency agreement.
We are thus specifically soliciting comments on proposed section
302.35(d) regarding the scope of information that may be disclosed from
the Federal PLS and State PLS concerning parents and non-parent
relatives of children involved in child welfare cases pursuant to
section 453(j)(3), as amended by the Fostering Connections Act. Data
maintained in the Federal and State PLS may include information about
the individual's location, income and employment benefits such as
health insurance, assets, debts, child support payment history, and the
family violence indicator (FVI), as well as other confidential
information found in the automated system. We are specifically seeking
comments as to: (1) Whether the information disclosed about parents of
a child involved in a IV-B or IV-E case should be broader than
information disclosed about non-parent relatives; (2) whether each
State IV-D agency should have the option to provide a broader range of
data elements to the State child welfare agency than available through
the Federal PLS; and (3) the manner of data exchange between the State
PLS and State child welfare agency, for example through the use of an
interagency agreement or a memorandum of understanding. To that end, we
have proposed language in 302.35(d)(2) to allow for a broader range of
information that can be shared.
We are opening section 302.35(d) for comment. Section 302.35(d)(1)
permits access by State IV-B and IV-E agencies
[[Page 32151]]
to the State PLS locate function and the data elements listed in
section 453(a) with respect to information about custodial parents,
non-custodial parents, and putative fathers. We are specifically
soliciting comments on this section of the regulation with respect to
(1) authorized purposes for disclosure and (2) the scope of information
available to IV-B and IV-E agencies about parents of children involved
in IV-B and IV-E cases.
We propose to redesignate section Sec. 302.35(d)(2) of the
September 26, 2008 rule as Sec. 302.35(d)(3) and add a new Sec.
302.35(d)(2) to identify the information that can be shared with IV-B
and IV-E agencies to locate children and their relatives involved in
IV-B and IV-E cases. This paragraph, which addresses information
available from the State PLS, would permit disclosure for these
reasons: Information about children and their relatives involved in a
IV-B or IV-E case in order to assist State child welfare agencies in
carrying out their program responsibilities to locate relatives for
potential placement of a child removed from parental custody, to place
siblings in groups, and to otherwise assist State agencies in their
permanency planning responsibilities under the authority of section
453(j) of the Act, for example, by providing information regarding the
Family Violence Indicator (FVI) or information about a child's
paternity status. We are specifically soliciting comments on this
section of the regulation on the appropriate balance to strike between
assisting IV-B and IV-E programs in placing children, and safeguarding
the privacy of relatives whose information may be included in the
Federal or State PLS. This section does not apply to IV-D information
maintained outside of the State PLS, such as payment records.
The proposed language is clear that the State PLS information may
also be disclosed to State IV-A agencies for the purpose of assisting
States to carry out their responsibilities to administer title IV-A
programs. These programs include the TANF program, which funds cash
assistance, workforce and other services, as well as Tribal programs
operating under title IV-A authority.
The final regulation at Sec. 302.35(e) addresses locate
information subject to disclosure. This portion of the regulation is
not open for notice and comment and is not addressed in this NPRM. The
effective date of this paragraph is December 30, 2010.
Part 303
Sec. 303.3 Location of Noncustodial Parents in a IV-D Case
This portion of the regulation is not open for notice and comment
and is not addressed in this NPRM. The effective date of this paragraph
is December 30, 2010.
Sec. 303.20 Minimum Organizational and Staffing Requirements
We propose to amend paragraph (b)(7) of this section of the
regulation to ensure consistency throughout this chapter based on
proposed amendments to Sec. Sec. 302.35 and 303.70.
This section is open for public comment.
Sec. 303.21 Safeguarding and Disclosure of Confidential Information
Prior to the passage of PRWORA, the safeguarding regulation at 45
CFR Sec. 303.21 allowed the disclosure of information connected to the
administration of any Federal or federally assisted program which
provides assistance, in cash or in kind, or services, directly to
individuals on the basis of need. These needs-based programs included
the Food Stamps program (now SNAP), as well as the AFDC program
authorized under title IV-A (now TANF). The safeguarding rule was
eliminated by interim final rule, published in the Federal Register on
February 9, 1999 (64 FR 6237) in response to the President's Memorandum
of March 4, 1995 to heads of Departments and Agencies which announced a
government-wide Regulatory Reinvention Initiative to reduce or
eliminate obsolete regulations and mandated burdens on States, other
governmental agencies, or the private sector.
As mentioned earlier in the preamble, during the comment
solicitation period, the Department received a comment that the rule
appeared to prohibit the State IV-D agency from disclosing such
information as the child support payment records to SNAP. This was not
the Department's intent. The Food, Conservation, and Energy Act of
2008, Public Law 110-246, enacted on June 18, 2008, amended section
453(j)(10) of the Act to permit disclosure, for purposes of
administering a supplemental nutrition assistance program under the
Food and Nutrition Act of 2008, of information on the individuals and
their employers maintained in the National Directory of New Hires. To
comply with the changes made to section 453(j)(10) of the Act, and, in
accordance with section 454A(f)(3) of the Act, this NPRM proposes to
reinstate permission for disclosure of information, including the child
support payment records, to SNAP.
Accordingly, we propose to amend paragraph Sec. 303.21(d)(1) to
include disclosures of information to the State agency administering
SNAP. The remainder of Sec. 303.21 is not open for notice and comment
and is not addressed in this NPRM.
This section is open to public comment.
Sec. 303.69 Requests by Agents or Attorneys of the United States for
Information From the Federal Parent Locator Service (PLS)
We propose to make a technical amendment to this section of the
regulation to ensure consistency throughout this chapter based on
proposed amendments to Sec. 303.70. Current Sec. 303.69(c) references
Sec. 303.70(c); the proposed technical amendment changes the reference
to Sec. 303.70(d). We propose to amend only Sec. 303.69(c). The
remainder of Sec. 303.69 is not open for notice and comment and is not
addressed in this NPRM.
This section is open to public comment.
Sec. 303.70 Procedures for Submissions to the State Parent Locator
Service (State PLS) or the Federal Parent Locator Service (Federal
PLS).
We propose to amend paragraph (a) of Sec. 303.70 to include a
provision consistent with the proposed change to Sec. 302.35 to permit
the release of information for IV-B and IV-E purposes, including
implementation of the Fostering Connections Act.
This section is open to public comment.
Section 303.70 paragraphs (b)-(d) are not open for comment. These
paragraphs remain unchanged. The effective date of these paragraphs is
December 30, 2010.
We propose to amend paragraph (e)(1)(i) of Sec. 303.70 to include
a provision to permit disclosure of information about children and
relatives involved in a IV-B or IV-E case in order to assist State
child welfare agencies in carrying out their program responsibilities
to locate relatives for potential placement of a child removed from
parental custody, to place siblings in groups, and to otherwise assist
State agencies in their permanency planning responsibilities under the
authority of section 453 of the Act consistent with the proposed
changes to Sec. Sec. 303.35 and 303.70(a).
This section is open to public comment.
[[Page 32152]]
Because section 303.70(e)(2) of the rule refers to ``agent of a
child'' and also refers to Sec. 302.35, in which changes were
proposed, this section is open for comment. The remainder of this
section is not open for comment.
Part 307
Sec. 307.13 Security and Confidentiality for Computerized Support
Enforcement Systems in Operation After October 1, 1997
Part 307 of the rule addresses computerized system data integrity
and security. Computerized child support enforcement systems are
required to have safeguards protecting the integrity, accuracy,
completeness of, access to, and use of information in the computerized
support enforcement system. Section Sec. 307.13 is not opened in its
entirety for comment. We are proposing a change to Sec. 307.13(a)(3),
(4)(iii) and (iv). These sections are open to public comment. The
remainder of Sec. 307.13 is not opened for comment.
We propose to amend Sec. 307.13(a)(3) to include a provision
consistent with the proposed change to Sec. 303.21 permitting the
release of information to State agencies administering SNAP.
As mentioned earlier in the preamble, this proposed regulation
addresses release of information to IV-B and IV-E agencies to locate
parents, children and relatives of children and other disclosures
needed to carry out their program responsibilities. For these reasons
we propose at Sec. 307.13(a)(4)(iii) and (iv) that NDNH and FCR
information may be disclosed without independent verification to title
IV-B and IV-E agencies to locate parents and putative fathers for the
purpose of establishing parentage or establishing parental rights with
respect to a child and that disclosure be allowed without independent
verification to title IV-D, IV-A, IV-B and IV-E agencies for the
purpose of assisting States to carry out their responsibilities to
administer title IV-D, IV-A, IV-B and IV-E programs.
For clarity, the following appendices lay out the type of
information that can be shared. The charts reflect the information as
written in the NPRM. Appendix A addresses information available to
locate individuals through the State PLS. Appendix B addresses
information available to locate an individual sought in a child
custody/visitation or parental kidnapping case. Appendix C provides the
authorities for State IV-D agencies to release information to title IV,
XIX, XXI, SNAP and other specified programs.
Appendix A--Locating Individuals Through the State PLS Sec. 302.35
--------------------------------------------------------------------------------------------------------------------------------------------------------
Persons about whom
Authorized person/program Authorized purpose of information may be Sources searched Authorized Limitations\1\
the request asked information returned
--------------------------------------------------------------------------------------------------------------------------------------------------------
Agent/attorney of a State who has Establish paternity; Noncustodial Parent; Federal Parent Six Elements: See footnote.
the duty or authority to collect establish, set the Putative Father; Locator Service; In- Person's Name,
child and spousal support under amount, modify, or Custodial Parent; state sources in Person's SSN,
the IV-D plan; Section 453(c)(1). enforce child support Child; Section accordance with Person's address,
obligations and/or to 453(a)(2)(A). State law. Employer's name,
facilitate the Employer's address,
location of any Employer
individual who is Identification
under an obligation Number; Section
to pay child support, 453(a)(2)(A)(iii).
against whom such an Wages, income, and
obligation is sought, benefits of
or to whom such an employment,
obligation is owed. including health
Locate a parent or care coverage;
child involved in a Section
non-IV-D child 453(a)(2)(B)..
support case to Type, status,
disburse an income location, and amount
withholding of assets or debts
collection; Section owed by or to the
453(a)(2).. individual; Section
453(a)(2)(C).
Court that has the authority to To facilitate the Noncustodial Parent; Federal Parent Six Elements as No Internal Revenue
issue an order against an NCP for location of any Custodial Parent; Locator Service; In- above, plus: Wages, Service (IRS)
the support and maintenance of individual who is Putative Father; state sources in income, and benefits information provided
child, or to serve as the under an obligation Child. accordance with of employment, for non-IV-D cases
initiating court in an action to to pay child support, State law. including health unless independently
seek a child support order; against whom such an care coverage; verified.
Section 453(c)(2). obligation is sought, Section 453(a)(2)(B). No Multistate
or to whom such an Type, status, Financial
obligation is owed. location, and amount Institution Data
Locate a parent or of assets or debts Match (MSFIDM) and
child involved in a owed by or to the no State Financial
non-IV-D child individual; Section Institution Data
support case.. 453(a)(2)(C). Match (FIDM)
information provided
for non-IV-D cases.
No required
subsequent attempts
to locate unless
there is a new
request.
[[Page 32153]]
Resident parent, legal guardian, To facilitate the Noncustodial Parent; Federal Parent Six Elements as Child not receiving
attorney, or agent of a child not location of any Putative Father. Locator Service; In- above, plus: Wages, IV-A benefits.
receiving IV-A benefits (a non-IV- individual who is state sources in income, and benefits No IRS Information.
D request); Section 453(c)(3) \2\. under an obligation accordance with of employment, No MSFIDM and no
to pay child support, State law. including health State FIDM
against whom such an care coverage; information provided
obligation is sought, Section 453(a)(2)(B). for non-IV-D cases.
or to whom such an Type, status, In a non-IV-D
obligation is owed, location, and amount request, attestation
or who has or may of assets or debts and evidence is
have parental rights owed by or to the required as
with respect to the individual; Section specified in Sec.
child. 453(a)(2)(C).. 302.35(c)(3)(i)-(iii
Locate a parent or ).
child involved in a No required
non-IV-D child subsequent attempts
support case.. to locate unless
there is a new
request.
State agency that is administering To facilitate the Noncustodial Parent; Federal Parent Six Elements as No IRS information
a Child and Family Services location of any Putative Father; Locator Service; In- above, plus: Wages, unless independently
program (IV-B) or a Foster Care individual who has or Custodial Parent state sources in income, and benefits verified.
and Adoption IV-E program; may have parental Child; Sections accordance with of employment, No MSFIDM information
Sections 453(c)(4), 453(j)(3), and rights with respect 453(a)(2)(A), State law. including health and no State FIDM
454(8). to the child, Section 453(j)(3), and 454(8). care coverage. information
453(a)(2)(iv); and to Type, status, provided.
assist states in location, and amount
carrying out their of assets or debts
responsibilities owed by or to the
under title IV-B and individual; Section
IV-E programs; 453(a)(2)(C)..
Sections 453(j)(3)
and 454(8).
State agency that is administering To assist states in Relatives of a child Federal Parent Six Elements as above No IRS information
a Child and Family Services carrying out their involved in a IV-B or Locator Service; In- unless independently
program (IV-B) or a Foster Care responsibilities IV-E case. state sources in verified.
and Adoption IV-E program; under title IV-B and accordance with No MSFIDM information
Sections 453(j)(3) and 454(8). IV-E programs; State law. and no State FIDM
Sections 453(j)(3) information
and 454(8). provided.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ No information shall be disclosed if the disclosure of such information would contravene the national policy or security interests of the United
States or the confidentiality of census data. No information shall be disclosed if the State has reasonable evidence of domestic violence or child
abuse and the disclosure of such information could be harmful to the CP or child. See Section 453(b)(2) for release process to court or agent of the
court.
\2\ A Tribal IV-D program may request access to the Federal PLS under this authority. See PIQ-07-02/TPIQ-07-02, Q&R 7.
[[Page 32154]]
Appendix B--Locating an Individual Sought in a Child Custody/Visitation or Parental Kidnapping Case
--------------------------------------------------------------------------------------------------------------------------------------------------------
About whom Authorized
Type of request Authorized person/ Authorized purpose information may be Sources searched information Limitations\1\
program of the request requested returned
--------------------------------------------------------------------------------------------------------------------------------------------------------
LOCATING AN INDIVIDUAL SOUGHT IN Any agent or Determining the A parent or child; Federal Parent Only the three See footnote.
A CHILD CUSTODY OR VISITATION attorney of any whereabouts of a Sec. 463(a). Locator Service; following No IRS information
CASE. State who has the parent or child In-state sources elements: provided.
authority/duty to to make or in accordance Person's address, No MSFIDM or State
enforce a child enforce a custody with State law. Employer's name, FIDM information
custody or or visitation Employer's provided.
visitation determination; address; Sec. No subsequent
determination; Sec. 463(a)(2). 463(c). attempts to
Sec. locate unless
463(d)(2)(A). there is a new
A court, or agent request.
of the court,
having
jurisdiction to
make or enforce a
child custody or
visitation
determination;
Sec.
463(d)(2)(B)..
LOCATING AN INDIVIDUAL SOUGHT IN Agent or attorney Determining the A parent or child; Federal Parent Only the three See footnote.
A PARENTAL KIDNAPPING CASE. of the U.S. or a whereabouts of a Sec. 463(a). Locator Service; following No IRS information
State who has parent or child In-state sources elements: provided.
authority/duty to to enforce any in accordance Person's address, No MSFIDM or State
investigate, State or Federal with State law. Employer's name, FIDM information
enforce, or law with respect Employer's provided.
prosecute the to the unlawful address; Sec. No subsequent
unlawful taking taking or 463(c). attempts to
or restraint of a restraint of a locate unless
child; Sec. child; Sec. there is a new
463(d)(2)(C). 463(a)(1). request.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ No information shall be disclosed if the disclosure of such information would contravene the national policy or security interests of the United
States or the confidentiality of census data. No information shall be disclosed if the State has reasonable evidence of domestic violence or child
abuse and the disclosure of such information could be harmful to the CP or child. See Section 453(b)(2) for release process to court or agent of the
court.
Appendix C--Authority for State IV-D Agencies To Release Information to Non-IV-D Federal, State, and Tribal
Programs
----------------------------------------------------------------------------------------------------------------
Authorized
Authority Authorized purpose Authorized person/ information Limitations
of request program returned
----------------------------------------------------------------------------------------------------------------
Sections 453 and 454A(f)(3) of To perform State State or Tribal Confidential No Internal
the Act, Section 1102 of the or Tribal agency agencies information found Revenue Service
Act; and 45 CFR 307.13. responsibilities administering in automated information
of designated title IV, XIX, system. unless
programs. and XXI, and SNAP independently
programs. verified.
No MSFIDM or State
FIDM information
provided.
No NDNH and FCR
information for
title XIX and XXI
unless
independently
verified.
For IV-B/IV-E, for
purpose of
section 453(a)(2)
of the Act can
have NDNH and FCR
information
without
independent
verification.
--Any other
purpose requires
independent
verification.
For IV-A NDNH/FRC
information for
purposes of
section 453(j)(3)
of the Act
without
independent
verification.
--Need
verification for
other purposes.
[[Page 32155]]
Sections 453A(h)(2) and 1137 of Income and State agencies SDNH information: ..................
the Act--State Directory of New eligibility administering Individual's
Hires. verification title IV-A, name, address and
purposes of Medicaid, SSN; employer's
designated unemployment name, address,
programs. compensation, and Federal
food stamps, or employer
other State identification
programs under a number.
plan approved
under title I, X,
XIV, or XVI of
the Act.
----------------------------------------------------------------------------------------------------------------
Paperwork Reduction Act
Section 302.35(c) contains an information collection requirement.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)),
the Administration for Children and Families has submitted a copy of
this section to the Office of Management and Budget (OMB) for its
review in tandem with the final rule published on September 26, 2008.
There are no changes to this section.
Regulatory Flexibility Analysis
The Secretary certifies that, under 5 U.S.C. 605(b), as enacted by
the Regulatory Flexibility Act (Pub. L. 96-354), this rule will not
result in a significant impact on a substantial number of small
entities. The primary impact is on State governments. State governments
are not considered small entities under the Act.
Regulatory Impact Analysis
Executive Order 12866 requires that regulations be reviewed to
ensure that they are consistent with the priorities and principles set
forth in the Executive Order. The Department has determined that this
rule is consistent with these priorities and principles. The proposed
changes would not significantly alter States' child support enforcement
operations. This regulation responds to State requests for guidance on
data privacy issues and therefore should not raise negative impact
concerns.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that a covered agency prepare a budgetary impact statement before
promulgating a rule that includes any Federal mandate that may result
in the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year. If a covered agency must prepare a budgetary impact statement,
section 205 further requires that it select the most cost-effective and
least burdensome alternative that achieves the objectives of the rule
and is consistent with the statutory requirements. In addition, section
203 requires a plan for informing and advising any small governments
that may be significantly or uniquely impacted by the rule. We have
determined that this rule will not result in the expenditure by State,
local, and Tribal governments, in the aggregate, or by the private
sector, of more than $100 million in any one year. Accordingly, we have
not prepared a budgetary impact statement, specifically addressed the
regulatory alternatives considered, or prepared a plan for informing
and advising any significantly or uniquely impacted small governments.
There are no costs associated with this regulation. It clarifies the
protection of confidential information contained in the records of
State child support enforcement agencies.
Congressional Review
This notice of proposed rule making is not a major rule as defined
in 5 U.S.C. chapter 8.
Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 requires Federal agencies to determine whether a proposed
policy or regulation may affect family well-being. If the agency's
determination is affirmative, then the agency must prepare an impact
assessment addressing seven criteria specified in the law. This
regulation protects the confidentiality of information contained in the
records of State child support enforcement agencies. These regulations
will not have an adverse impact on family well-being as defined in the
legislation.
Executive Order 13132
Executive Order 13132 prohibits an agency from publishing any rule
that has federalism implications if the rule either, imposes
substantial direct compliance costs on State and local governments and
is not required by statute, or the rule preempts State law, unless the
agency meets the consultation and funding requirements of section 6 of
the Executive Order. This rule does not have federalism impact as
defined in the Executive Order.
List of Subjects
45 CFR Part 302
Child support, Grants programs/social programs, Reporting and
recordkeeping requirements.
45 CFR Part 303
Child support, Grant programs/social programs, Reporting and
recordkeeping requirements.
45 CFR Part 307
Child support, Grant programs/social programs, computer technology,
requirements.
(Catalog of Federal Domestic Assistance Programs No. 93.563, Child
Support Enforcement Program.)
Dated: February 19, 2010.
Carmen R. Nazario,
Assistant Secretary for Children and Families.
Approved: March 31, 2010.
Kathleen Sebelius,
Secretary of Health and Human Services.
Accordingly, the Department of Health and Human Services proposes
to amend 45 CFR part 301 and to further amend 45 CFR parts 302, 303,
and 307, as amended September 26, 2008 (73 FR 56443), effective March
23, 2009, and delayed March 20, 2009 (74 FR 11880), until May 22, 2009,
and delayed again May 22, 2009 (74 FR 23798), until December 30, 2010,
as follows:
PART 301--STATE PLAN REQUIREMENTS
1. The authority citation for part 301 continues to read as
follows:
Authority: 42 U.S.C. 651 through 658, 660, 664, 666, 667, 1301,
and 1302.
[[Page 32156]]
2. Section 301.1 is amended by adding a definition for ``agent of a
child'' in alphabetical order to read as follows:
Sec. 301.1 General definitions.
* * * * *
Agent of a child means a caretaker relative having custody of or
responsibility for the child.
* * * * *
PART 302--STATE PLAN REQUIREMENTS
3. The authority citation for part 302 continues to read as
follows:
Authority: 42 U.S.C. 651 through 658, 660, 663, 664, 666, 667,
1302, 1396a(a)(25), 1396b(d)(2), 1396b(o), 1396b(p), 1396(k).
4. Amend Sec. 302.35 by revising paragraphs (c)(3) and (d) to read
as follows:
Sec. 302.35 State parent locator service.
* * * * *
(c) * * *
(3) 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 the individual:
(i) Attests 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) Attests that any information obtained through the Federal or
State PLS shall be used solely for these purposes and shall be
otherwise treated as confidential;
(iii) Pays the fee required for Federal PLS services under section
453(e)(2) of the Act and Sec. 303.70(f)(2)(i) of this chapter, if the
State does not pay the fee itself. The State may also charge a fee to
cover its costs of processing the request, which must be as close to
actual costs as possible, so as not to discourage requests to use the
Federal PLS. If the State itself pays the fee for use of the Federal
PLS or the State PLS in a non-IV-D case, Federal financial
participation is not available in those expenditures.
* * * * *
(d) Authorized purposes for requests and scope of information
provided. The State PLS shall obtain location information under this
section only for the purpose specified in paragraphs (d)(1), (d)(2) and
(d)(3) of this section.
(1) To locate an individual with respect to a child in a IV-D, non-
IV-D, IV-B, or IV-E case. The State PLS shall locate individuals for
the purpose of establishing parentage, or establishing, setting the
amount of, modifying, or enforcing child support obligations or for
determining who has or may have parental rights with respect to a
child. For these purposes, only information in the Federal PLS or the
State PLS may be provided. This information is limited to name, Social
Security Number(s), most recent address, employer name and address,
employer identification number, wages or other income from, and
benefits of, employment, including rights to, or enrollment in, health
care coverage, and asset or debt information.
(2) To assist States in carrying out their responsibilities under
title IV-D, IV-A, IV-B, and IV-E programs. In addition to the
information that may be released pursuant to paragraph (d)(1) of this
section, State PLS information may be disclosed to State IV-D, IV-A,
IV-B, and IV-E agencies for the purpose of assisting States to carry
out their responsibilities to administer title IV-D, IV-A, IV-B, and
IV-E programs, including information to locate an individual who is a
child or a relative of a child in a IV-B or IV-E case. Information that
may be disclosed about relatives of children involved in IV-B and IV-E
cases is limited to name, Social Security Number(s), most recent
address, employer name and address and employer identification number.
(3) To locate an individual sought for the unlawful taking or
restraint of a child or for child custody or visitation purposes. The
State PLS shall locate individuals for the purpose of enforcing a State
law with respect to the unlawful taking or restraint of a child or for
making or enforcing a child custody or visitation determination as
defined in section 463(d)(1) of the Act. This information is limited to
most recent address and place of employment of a parent or child.
* * * * *
PART 303--STANDARDS FOR PROGRAM OPERATIONS
5. The authority citation for part 303 continues to read as
follows:
Authority: 42 U.S.C. 651 through 658, 660, 663, 664, 666, 667,
1302, 1396a(a)(25), 1396b(d)(2), 1396b(o), 1396b(p) and 1396(k).
6. Amend Sec. 303.21 by revising paragraph (d)(1) introductory
text to read as follows:
Sec. 303.21 Safeguarding and disclosure of confidential information.
* * * * *
(d) Authorized disclosures. (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 and subject to such requirements as the Office may
prescribe, disclose confidential information to State agencies as
necessary to assist them to carry out their responsibilities under
plans and programs funded under titles IV (including Tribal programs
under title IV), XIX, or XXI of the Act, and the Supplemental Nutrition
Assistance Program (SNAP), including:
* * * * *
7. Revise Sec. 303.69(c) to read as follows:
Sec. 303.69 Requests by agents or attorneys of the United States for
information from the Federal Parent Locator Service (PLS).
* * * * *
(c) All requests under this section shall contain the information
specified in Sec. 303.70(d) of this part.
* * * * *
8. Amend Sec. 303.70 by revising paragraphs (a), (e) introductory
text, (e)(1)(i), and (e)(2) to read as follows:
Sec. 303.70 Procedures for submissions to the State Parent Locator
Service (State PLS) or the Federal Parent Locator Service (Federal
PLS).
(a) The State agency will have procedures for submissions 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; 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, or for the purpose of
assisting State agencies to carry out their responsibilities under
title IV-D, IV-A, IV-B, and IV-E programs.
* * * * *
(e) The director of the IV-D agency or his or her designee shall
attest annually to the following:
(1)(i) The IV-D agency will only obtain information to facilitate
the location 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, or for determining who has or may have parental rights
with respect to a child, or in accordance with section 453(a)(3) of the
Act for enforcing a State law with respect to the unlawful taking or
restraint of a child, or for making or enforcing a child custody or
visitation determination as defined in section 463(d)(1) of the Act, or
in accordance
[[Page 32157]]
with section 453(j)(3) of the Act for the purpose of assisting State
agencies to carry out their responsibilities under title IV-D, IV-A,
IV-B, and IV-E programs.
* * * * *
(2) 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 agency must verify that the requesting
individual has complied with the provisions of Sec. 302.35 of this
chapter.
* * * * *
PART 307--COMPUTERIZED SUPPORT ENFORCEMENT SYSTEMS IN OPERATION
AFTER OCTOBER 1, 1997
9. The authority citation for part 307 continues to read as
follows:
Authority: 42 U.S.C. 652 through 658, 664, 666 through 669A, and
1302.
10. Amend Sec. 307.13 by revising paragraphs (a)(3), (4)(iii), and
(iv) to read as follows:
Sec. 307.13 Security and confidentiality for computerized support
enforcement systems in operation after October 1, 1997.
* * * * *
(a) * * *
(3) Permit disclosure of information to State agencies
administering programs under titles IV (including Tribal programs under
title IV), XIX, and XXI of the Act, and SNAP, to the extent necessary
to assist them to carry out their responsibilities under such programs
in accordance with section 454A(f)(3) of the Act, to the extent that it
does not interfere with the IV-D program meeting its own obligations
and subject to such requirements as prescribed by the Office.
(4) * * *
(iii) NDNH and FCR information may be disclosed without independent
verification to IV-B and IV-E agencies to locate parents and putative
fathers for the purpose of establishing parentage or establishing
parental rights with respect to a child; and
(iv) NDNH and FCR information may be disclosed without independent
verification to title IV-D, IV-A, IV-B and IV-E agencies for the
purpose of assisting States to carry out their responsibilities to
administer title IV-D, IV-A, IV-B and IV-E programs.
[FR Doc. 2010-13021 Filed 6-4-10; 8:45 am]
BILLING CODE P