Proposed Rule2021-22553
Paternity Establishment Percentage Performance Relief
Primary source
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Published
October 19, 2021
Issuing agencies
Health and Human Services DepartmentChildren and Families Administration
Abstract
Due to the impact of the COVID-19 public health emergency on state child support program operations, the Office of Child Support Enforcement (OCSE) proposes to modify the Paternity Establishment Percentage (PEP) from the 90 percent performance threshold to 50 percent for Federal Fiscal Years (FFY) 2020 and 2021 in order for a state to avoid a financial penalty. OCSE also proposes to provide that adverse findings of data reliability audits of a state's paternity establishment data will not result in a financial penalty.
Full Text
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<title>Federal Register, Volume 86 Issue 199 (Tuesday, October 19, 2021)</title>
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[Federal Register Volume 86, Number 199 (Tuesday, October 19, 2021)]
[Proposed Rules]
[Pages 57770-57773]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22553]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 305
RIN 0970-AC86
Paternity Establishment Percentage Performance Relief
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.
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SUMMARY: Due to the impact of the COVID-19 public health emergency on
state child support program operations, the Office of Child Support
Enforcement (OCSE) proposes to modify the Paternity Establishment
Percentage (PEP) from the 90 percent performance threshold to 50
percent for Federal Fiscal Years (FFY) 2020 and 2021 in order for a
state to avoid a financial penalty. OCSE also proposes to provide that
adverse findings of data reliability audits of a state's paternity
establishment data will not result in a financial penalty.
DATES: Consideration will be given to written comments on this notice
of proposed rulemaking (NPRM) received on or before November 18, 2021.
ADDRESSES: You may submit comments, identified by [docket number and/or
Regulatory Information Number (RIN) number], by one of the following
methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Mail: Written comments may be submitted to: Office of
Child Support Enforcement, Attention: Director of Policy and Training,
330 C Street SW, Washington, DC 20201.
Instructions: All submissions received must include the agency name
and docket number or RIN for this rulemaking. All comments received
will be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including
any personal information provided.
[[Page 57771]]
FOR FURTHER INFORMATION CONTACT: Eliza Lowe, Senior Policy Specialist,
the OCSE Division of Policy and Training, at <a href="/cdn-cgi/l/email-protection#d7b8b4a4b2f9b3a7a397b6b4b1f9bfbfa4f9b0b8a1"><span class="__cf_email__" data-cfemail="80efe3f3e5aee4f0f4c0e1e3e6aee8e8f3aee7eff6">[email protected]</span></a>. Deaf
and hearing impaired individuals may call the Federal Dual Party Relay
Service at 1-800-877-8339 between 8 a.m. and 7 p.m. Eastern Time.
SUPPLEMENTARY INFORMATION:
Submission of Comments
Comments should be specific, address issues raised by the proposed
rule, and explain reasons for any objections or recommended changes.
Additionally, we will be interested in comments that indicate agreement
with the proposals. We will not acknowledge receipt of the comments we
receive. However, we will review and consider all comments that are
germane and are received during the comment period. We will respond to
these comments in the preamble to the final rule. In this NPRM, we
specifically seek public comment on the timeframe for the relief
proposed, and whether the relief period should extend to include FFY
2022.
Statutory Authority
This NPRM is published under the authority granted to the Secretary
of Health and Human Services by section 1102 of the Social Security Act
(the Act) (42 U.S.C. 1302). Section 1102 of the Act authorizes the
Secretary to publish regulations, not inconsistent with the Act, as may
be necessary for the efficient administration of the functions with
which the Secretary is responsible under the Act. The proposed relief
from the Paternity Establishment Percentage performance penalty under
this NPRM is based on statutory authority granted under section
452(g)(3)(A) of the Act (42 U.S.C. 652(g)(3)(A)).
Justification
The purpose of this proposed rule is to provide targeted and time-
limited relief to states from penalties due to the impact of the
national public health emergency (PHE) caused by COVID-19 on state
program performance. The pandemic has had an enormous adverse impact on
child support services delivered by states under Title IV-D of the Act.
Due to disruptions to state child support operations and to court
operations during the PHE, states are experiencing significant workload
burdens and service backlogs.
In particular, states have indicated that the PHE has created
numerous challenges in their ability to establish paternity/parentage
in child support cases. Establishing paternity, a core function of the
child support program as stated in section 452(a)(1) of the Act, is an
essential step in securing a support order and ultimately support for a
child. Because of the importance of paternity/parentage establishment
in the success of the child support program, a state's paternity
establishment performance, measured using the Paternity Establishment
Percentage (PEP), is a federally-required performance measure under
section 452(g) of the Act.
While states have some discretion under their Title IV-D State Plan
for their paternity and parentage establishment procedures and have
developed programs that range from highly-administrative to more
judicially-based, they also have commonalities in these procedures.
States are required, for example, to have hospital-based, voluntary
paternity acknowledgement programs to establish parentage for non-
marital birth families in uncontested cases and to have procedures for
genetic testing in contested cases.
The pandemic has made it difficult for state child support programs
to perform many of the in-person functions needed to establish
paternity/parentage. Barriers to this process include the limitations
of on-site genetic-testing operations, office-staffing issues due to
staff telework or illness, and people's inability to visit offices for
case intake or genetic testing. In addition, many hospitals have
limited visitation policies during the PHE, which led many states to
suspend their hospital-based voluntary paternity/parentage
establishment programs. Finally, in many jurisdictions, courts halted
certain civil proceedings, including child support cases requiring
paternity/parentage establishment.\1\ While most courts are now
operational, child support cases remain backlogged.\2\ The situation
continues to impact state's paternity establishment performance for FFY
2021.
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\1\ Hurst, John, ``PEP in a Pandemic Environment,'' NCSEA Child
Support CommuiniQue, (April, 2021) and Fickler, Wade and Sarah
Scherer, ``The NCSL Blog: COVID-19's Snowballing Effect on Child
Support, Custody, Visitation, Economic Security'' (April 21, 2020).
\2\ Ibid.
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Since the start of the pandemic in early 2020, states have appealed
for relief from program requirements in order to support their
operations during the crisis. OCSE is able to provide certain
flexibilities for administrative requirements under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170)
(See OCSE Dear Colleague Letter 20-04: Flexibilities for State and
Tribal Child Support Agencies during COVID-19 Pandemic \3\). However,
these flexibilities do not extend to relief for financial penalties
related to performance or adverse data reliability audit findings.
States are concerned that PEP-related financial penalties, which like
all child support performance penalties are imposed in the form of a
reduction in the Temporary Assistance for Needy Families (TANF) program
funding to states, place an undue burden on state budgets and threaten
funding that supports the very families who are most in need during
this time of crisis.
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\3\ <a href="https://www.acf.hhs.gov/css/policy-guidance/flexibilities-state-and-tribal-child-support-agencies-during-covid-19-pandemic">https://www.acf.hhs.gov/css/policy-guidance/flexibilities-state-and-tribal-child-support-agencies-during-covid-19-pandemic</a>.
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The adverse impact of the pandemic on paternity establishment is
evident in the data. According to OCSE's FFY 2020 data, which are based
on data that states submit and OCSE compiles, 41 out of the 54 states
(50 states and the District of Columbia, Guam, Puerto Rico, and the
Virgin Islands) experienced a decrease in their paternity establishment
performance as measured by their PEP percentage. More problematic,
according to these data, as many as 18 states appear to have failed to
meet the 90 percent threshold and may be subject to financial penalties
if they fail to take sufficient corrective action to achieve the
appropriate PEP performance level in the subsequent year.
This regulatory action is time sensitive because it must be in
effect before states are subject to penalties and adverse data
reliability audit findings. States are desperately seeking confirmation
from OCSE that they will have relief from these penalties against their
state TANF grants. Such penalties would be an overwhelming burden on
state budgets and threaten critical funding needed during this COVID-19
PHE.
Background: PEP Performance Requirement
The PEP performance requirement, which is part of the overall
performance, audit, penalties, and incentives system for child support,
is established under 452(g) of the Act and 45 CFR 305.40. Section
452(a)(4)(C)(i) of the Act requires the Secretary to determine whether
State-reported data used to determine the performance levels are
complete and reliable. Additionally, section 409(a)(8)(A) of the Act
and 45 CFR 305.61(a)(1) provides for a financial penalty if there is a
failure to achieve the required level of performance or an audit
determines that the data is incomplete or unreliable.
[[Page 57772]]
The minimum acceptable level of performance for the PEP is 90
percent or an improvement of 2 to 6 percentage points over the previous
year's level of performance. Section 409(a)(8) of the Act and 45 CFR
305.61(a)(2) impose automatic corrective action for the subsequent
fiscal year. A state also must submit complete and reliable data used
in the PEP calculation, which will be audited according to 45 CFR
305.60.
If a state fails to meet the annual 90 percent PEP standard, or to
show improvement in the subsequent year (2 to 6 percentage points), the
amount of the initial penalty will be equal to one percent of the
adjusted State Family Assistance Grant for the TANF program. A penalty
against the TANF grant will also be imposed if the state fails to
submit complete and reliable PEP data and there is an adverse data
reliability audit finding for PEP in the subsequent year. The penalty
will continue to be assessed in accordance with section 409(a)(8)(B) of
the Act and 45 CFR 305.61 until the state is determined to have
submitted complete and reliable data and achieved the required
performance level. In accordance with 45 CFR 262.1(e)(1), the state
must expend additional state funds equal to the amount of the penalty
(which will not count toward the maintenance-of-effort requirement
under TANF) the year after the TANF penalty is assessed.
In recent years prior to the pandemic, OCSE has imposed an average
of one penalty for PEP performance annually, as nearly all states have
consistently met or exceeded the PEP performance measure. This
indicates that the failure in performance in FFY 2020 is due to the
unprecedented circumstances of the PHE. In addition, in the last ten
years, OCSE has imposed no penalties due to adverse data reliability
audit findings related to the PEP measure.
Proposed PEP Penalty Relief
OCSE proposes providing relief through this regulation by modifying
the requirements related to the PEP performance measure. Section
452(g)(3) of the Act authorizes the Secretary ``to take into account
such additional variables as the Secretary identifies (including the
percentage of children in a State who are born out of wedlock or for
whom support has not been established) that affect the ability of a
State to meet the requirements of [section 452(g) of the Act].'' OCSE
proposes that the effect of the COVID-19 PHE on states is one such
additional variable, due to the unprecedented nature and scope of the
pandemic's impact on the child support program as described above.
Therefore, OCSE proposes modifying the required PEP to a lower
performance threshold and setting aside adverse data reliability audit
findings related to PEP, thereby allowing states that are not able to
meet data performance and data reliability audit requirements to avoid
the financial penalty for the years when the pandemic had its greatest
impact on the child support program.
OCSE proposes modifying the PEP threshold of 90 percent to a lower
threshold of 50 percent for FFYs 2020 and 2021. The rationale for
choosing 50 percent is based on the value of this percentage in Table 1
under 45 CFR 305.33, Determination of applicable percentages based on
performance levels. Fifty percent is the lowest possible PEP level in
the table that still has performance value because it is the lowest PEP
performance for which a state still gets credit in the calculation of
incentives. Below 50 percent, the state's applicable percentage for PEP
performance is valued at zero. In addition, we propose a 50 percent
threshold because, according to OCSE's FFY 2020 data, no state has a
FFY 2020 PEP level below 65 percent. Therefore, a PEP level of 50
percent will ensure that no state will be subject to a financial
penalty while state agency operations are disrupted due to the ongoing
PHE.
This proposed rule is time limited and data informed to provide
relief narrowly and specifically in response to the ongoing PHE. We
propose modifying the PEP threshold for FFYs 2020 and 2021 to align
with the timeframe when states experienced the greatest impact of the
public health emergency. After the relief period, starting for FFY
2022, the PEP performance thresholds will revert back to the usual
levels described under 45 CFR 305.40(a)(1), and states will once again
be subject to penalties for adverse data reliability audit findings
related to the PEP measure after an automatic corrective action year as
specified in 45 CFR 305.42. In this NPRM, we specifically seek public
comment on the timeframe for the relief proposed, and whether the
relief period should extend to include FFY 2022.
Finally, this proposed relief maintains the integrity of the system
of performance, audit, penalties, and incentives that has driven
success and accountability in the child support program for over two
decades. The proposed regulation provides relief from the PEP measure
and data reliability audit penalties but does not otherwise change the
process for other performance measures, data collection and reporting,
audits, or incentives.
Section-by-Section Discussion of the Provisions of This Proposed Rule
Section 305.61: Penalty for Failure To Meet IV-D Requirements.
We propose to add a new provision to Part 305 Program Performance
Measures, Standards, Financial Incentives and Penalties, to provide
short-term relief from financial penalties related to the paternity
establishment percentage measure, due to the impact of the COVID-19
pandemic on state IV-D operations. We propose adding a new paragraph
(e) to Sec. 305.61, Penalty for failure to meet IV-D requirements, to
modify the criteria by which states are subject to financial penalties
for the PEP requirements. The proposed modified criteria are that the
acceptable performance level of paternity establishment percentage
under Sec. 305.40(a)(1) is reduced from 90 percent to 50 percent and
the adverse findings of data reliability audits of a state's paternity
establishment data under Sec. 305.60 will not result in a financial
penalty. The proposed modifications are applicable to FFYs 2020 and
2021.
In summary, the rationale for this NPRM, which proposes modifying
the PEP requirements, is based on the statutory allowance under section
452(g)(3)(A) of the Act that the Secretary may consider additional
variables that affect a state's ability to meet PEP requirements due to
the COVID-19 PHE. However, the proposed modifications are only for FFYs
2020 and 2021. In addition, the proposed modifications are based on
data that indicate PEP declined for 41 states during the pandemic, and
approximately one third of states will be subject to a financial
penalty related to these declines if they do not take sufficient
corrective action in the subsequent corrective action year. During this
COVID-19 PHE, OCSE has carefully considered the impact of the pandemic
on state performance. The proposed regulation limits adding further
burden on states by providing relief from penalties against state
public assistance funding.
Paperwork Reduction Act
No new information collection requirements are imposed by these
regulations.
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
[[Page 57773]]
governments are not considered small entities under the Regulatory
Flexibility Act.
Regulatory Impact Analysis
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule meets the standards of Executive Order 13563
because it creates a short-term public benefit, at minimal cost to the
Federal Government, by not imposing penalties against a state's TANF
grant, during a time when public assistance funds are critically
needed.
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB)
will review all significant rules. OIRA has determined that this NPRM
is significant and was accordingly reviewed by OMB.
A regulatory impact analysis (RIA) must be prepared for major rules
with economically significant effects ($100 million or more in any one
year). ACF does not anticipate that this proposed rulemaking is likely
to have an economic impact of $100 million or more in any one year, and
therefore does not meet the definition of ``economically significant''
under Executive Order 12866. Accordingly, OIRA has determined that this
rulemaking is `not major' under Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of 1996 (also known as the
Congressional Review Act).
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires
agencies to prepare an assessment of anticipated costs and benefits
before issuing any rule that may result in an annual expenditure by
state, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation). That threshold level is currently approximately $164
million. This rule does not impose any mandates on state, local, or
tribal governments, or the private sector, that will result in an
annual expenditure of $164 million or more.
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 does not impose requirements on states or families. This
regulation 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 in 45 CFR Part 305
Child support, Program performance measures, standards, financial
incentives, and penalties.
(Catalog of Federal Domestic Assistance Programs No. 93.563, Child
Support Enforcement Program.)
JooYeun Chang,
Acting Assistant Secretary for Children and Families.
Xavier Becerra,
Secretary.
For the reasons stated in the preamble, the Department of Health
and Human Services proposes to amend 45 CFR part 305 as set forth
below:
PART 305--PROGRAM PERFORMANCE MEASURES, STANDARDS, FINANCIAL
INCENTIVES, AND PENALTIES
0
1. The authority citation for part 305 continues to read as follows:
Authority: 42 U.S.C. 609(a)(8), 652(a)(4) and (g), 658a, and
1302.
0
2. In Sec. 305.61 revise paragraph (e) to read as follows:
Sec. 305.61 Penalty for failure to meet IV-D requirements.
* * * * *
(e) COVID-19 paternity establishment percentage penalty relief. Due
to the adverse impact of the COVID-19 pandemic on State IV-D
operations, the criteria by which states are subject to financial
penalties for the paternity establishment percentage under paragraph
(a) of this section are temporarily modified for fiscal years 2020 and
2021 as follows:
(1) The acceptable level of paternity establishment percentage
performance under Sec. 305.40(a)(1) is modified for fiscal years 2020
and 2021 from 90 percent to 50 percent, and
(2) The adverse findings of data reliability audits of a State's
paternity establishment data under Sec. 305.60 will not result in a
financial penalty for fiscal years 2020 and 2021.
* * * * *
[FR Doc. 2021-22553 Filed 10-18-21; 8:45 am]
BILLING CODE 4184-42-P
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