Proposed Rule2023-14658
Modifications to Performance Standards During Natural Disasters and Other Calamities
Primary source
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Published
July 13, 2023
Issuing agencies
Health and Human Services DepartmentChildren and Families Administration
Abstract
OCSS proposes to provide temporary relief to states from certain child support program performance requirements and penalties during natural disasters and other calamities which have a negative impact on state child support program operations. The proposed rule would provide ACF with ongoing authority to modify performance measure requirements when states are affected by natural disasters and other calamities that have resulted, or are expected to result, in the failure of state child support programs to achieve performance standards for paternity establishment, support order establishment, and current collections. The proposed rule will enable states to avoid the imposition of penalties due to adverse data reliability audit findings during, and subsequent to, natural disasters and other calamities, including pandemics and declared public health emergencies.
Full Text
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<title>Federal Register, Volume 88 Issue 133 (Thursday, July 13, 2023)</title>
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[Federal Register Volume 88, Number 133 (Thursday, July 13, 2023)]
[Proposed Rules]
[Pages 44760-44764]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-14658]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 305
RIN 0970-AC95
Modifications to Performance Standards During Natural Disasters
and Other Calamities
AGENCY: Office of Child Support Services (OCSS), Administration for
Children and Families (ACF), Department of Health and Human Services
(HHS or the Department).
ACTION: Notice of proposed rulemaking.
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SUMMARY: OCSS proposes to provide temporary relief to states from
certain child support program performance requirements and penalties
during natural disasters and other calamities which have a negative
impact on state child support program operations. The proposed rule
would provide ACF with ongoing authority to modify performance measure
requirements when states are affected by natural disasters and other
calamities that have resulted, or are expected to result, in the
failure of state child support programs to achieve performance
standards for paternity establishment, support order establishment, and
current collections. The proposed rule will enable states to avoid the
imposition of penalties due to adverse data reliability audit findings
during, and subsequent to, natural disasters and other calamities,
including pandemics and declared public health emergencies.
DATES: Consideration will be given to written comments on this notice
of proposed rulemaking (NPRM) received on or before September 11, 2023.
ADDRESSES: You may submit comments, identified by [docket number and/or
Regulatory Information Number (RIN) number (0970-AC95)], by one of the
following methods:
<bullet> Federal e-Rulemaking 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 Services, 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.
FOR FURTHER INFORMATION CONTACT: Tricia John, Division of Policy and
Training, OCSS, telephone (202) 260-7143. Email inquiries to
<a href="/cdn-cgi/l/email-protection#e48b879781ca809490a4858782ca8c8c97ca838b92"><span class="__cf_email__" data-cfemail="8be4e8f8eea5effbffcbeae8eda5e3e3f8a5ece4fd">[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 proposal. We will not acknowledge receipt of the comments we
receive. However, we will review and consider all comments that are
relevant and are received during the comment period. We will respond to
these comments in the preamble to the final rule.
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 support order establishment and current support collections
performance measures may be waived, modified, or suspended through
rulemaking under section 409(a)(8)(A)(i)(I) of the Act (42 U.S.C.
609(a)(8)(A)(i)(I)). The proposed relief from the paternity
establishment percentage (PEP) performance measure and data reliability
audit requirements related to the PEP 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 authorize the Secretary to
provide
[[Page 44761]]
targeted and time-limited relief to states from certain performance
penalties due to the impact of natural disasters and other calamities
when such events have a negative impact on state child support program
operations.
Through this proposed rule, ACF will have the authority to modify
the requirements for states to meet the following performance
standards: the Paternity Establishment Percentage (PEP) performance
standard of 90 percent under 45 CFR 305.40(a)(1), the support order
establishment standard of 40 percent under 45 CFR 305.40(a)(2), and the
current collections performance standard of 35 percent under 45 CFR
305.40(a)(3). ACF may adjust these performance standards to a lower
level to avoid imposing financial penalties on states and may also
modify the requirements to avoid the imposition of penalties due to
adverse data reliability audit findings. This would provide ACF with
the flexibility to modify the performance requirements for a time-
limited period during, and subsequent to, natural disasters and other
calamities.
The need for rulemaking under the discretionary authority provided
to the Secretary to modify performance penalty requirements became
apparent during the COVID-19 pandemic. Due to disruptions to state
child support program operations and to court operations during the
COVID-19 pandemic, states experienced significant workload burdens and
service backlogs. 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. OCSS 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 OCSS Dear Colleague Letter 20-04: Flexibilities for State and
Tribal Child Support Agencies during COVID-19 Pandemic \1\). However,
these flexibilities do not extend to relief for financial penalties
related to performance or adverse data reliability audit findings.
States are concerned that performance-related financial penalties,
which are imposed in the form of a reduction to state TANF grants,
place an undue burden on state budgets and threaten funding that
supports the very families who are most in need during a time of
crisis.
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\1\ <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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To address penalty relief due to the impact of the COVID-19
pandemic, ACF issued a final rule (87 FR 32090) on May 27, 2022, which
provides states relief from performance penalties by modifying the PEP
performance requirement from 90 percent to 50 percent for fiscal years
2020, 2021, and 2022. While the COVID-19 relief rulemaking was
expedited due to the emergency created by the pandemic, the rulemaking
effort required over 200 days from the time the NPRM was published in
2021 until the final rule was published in 2022. Due to the time
required to accomplish rulemaking, ACF seeks the authority to provide
relief in similar circumstances through a more streamlined approach,
not requiring additional rulemaking during each event.
Without this NPRM, there is no general authority in title IV-D (or
in other statutory authority) to relieve states from these penalties
similar to the flexibility provided to the TANF program. The TANF
program's authority to promulgate such a regulation derives from the
TANF program statute (42 U.S.C. 609(b)). Without statutory authority
providing such flexibility to the Secretary regarding IV-D
requirements, it is not possible to issue a regulation similar to 45
CFR 262.5 for relief from title IV-D penalties.
This proposed regulation seeks to provide ACF ongoing authority to
grant time-limited, targeted flexibilities, allowing ACF to provide
timely relief to states when natural disasters or other calamities
significantly affect program operations without having to engage in
separate rulemaking, and will apply to Federal fiscal year periods
subsequent to September 30, 2022. This relief would support states who
might otherwise face penalties for not meeting specific performance
measure standards or which may fail the data reliability audits.
Background: State Child Support Program Performance Requirements
Under Title IV-D of the Act, states are required to achieve
performance levels in paternity establishment, support order
establishment, and current support collections. Failure to achieve
required performance levels may lead to penalties assessed as a
percentage against the state's TANF grant.
The PEP, support order establishment, and current collections
performance measures, which are part of the overall performance, audit,
penalties, and incentives for the child support program, are
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) include the assessment of 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.
The required levels of performance for the PEP, support order
establishment, and current collections performance measures are set out
in 45 CFR 305.40:
<bullet> The PEP performance level must be at least 90 percent or
an improvement of 2 to 6 percentage points over the previous year's
level of performance, below which a state will incur a penalty.
<bullet> The support order establishment performance level must be
at least 40 percent, below which a state will be penalized unless an
increase of 5 percent over the previous year is achieved.
<bullet> The current collections performance level must be at least
35 percent, below which a state will be penalized unless an increase of
5 percent over the previous year is achieved.
Section 409(a)(8)(A)(ii) 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 performance
measure calculations, which will be audited according to 45 CFR 305.60.
If a state fails to meet the annual performance measure standards,
or to show improvement in the subsequent year (2 to 6 percentage points
for the PEP), the amount of the initial penalty will be equal to one to
two percent of the adjusted State Family Assistance Grant for the
state's TANF program in accordance with 45 CFR 305.61(c) and (d). A
penalty against the state's TANF grant will also be imposed if the
state fails to submit complete and reliable performance measure data
and there is an adverse data reliability audit finding for a
performance measure 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 measure
standards. 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 grant penalty is assessed.
[[Page 44762]]
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
the Secretary with the authority to provide short-term relief from
performance requirements related to the PEP, support order
establishment, and current collections performance standards, when
states are unable to meet those requirements due to the impact of
natural disasters or other calamities on state child support program
operations. We propose adding a new paragraph (f) to Sec. 305.61,
Penalty for failure to meet IV-D requirements, to provide the Secretary
with the authority, during and subsequent to natural disasters and
other calamities, to temporarily modify the performance requirements
for states to meet the paternity establishment percentage standard of
90 percent under 45 CFR 305.40(a)(1), the support order establishment
standard of 40 percent under 45 CFR 305.40(a)(2), and the current
collections standard of 35 percent under 45 CFR 305.40(a)(3), to a
lower level to avoid imposing the financial penalty on states. The
proposed rule would also authorize the Secretary to set aside adverse
data reliability audit findings under section 452(g) of the Act during
the same time period.
The proposed rule would require individual states and territories
to initiate the request to modify the performance requirements
specified under section 452(g) of the Act (42 U.S.C. 652(g)) and 45 CFR
305.40(a)(1), under 45 CFR 305.40(a)(2), or under 45 CFR 305.40(a)(3)
when a state has experienced a natural disaster or other calamity that
has or will make compliance with the performance standards
impracticable. The state may also ask the Secretary to set aside
adverse data reliability audit findings under section 452(g) of the Act
(42 U.S.C. 652(g)) and 45 CFR 305.61(a)(1)(ii) for the same time period
as the time period for which a modification of performance requirements
is sought.
A natural disaster or other calamity includes state chief executive
officer-declared states of emergency, pandemics, events designated by
the President under the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5170), and declared public health
emergencies under section 319 of the Public Health Service Act (42
U.S.C. 247d). The state's chief executive (or his or her designee, this
title is illustrative only and reflects the position determined by the
state which holds this authority) must demonstrate, based on available
data, that such emergency has made the state's ability to attain one or
more of the performance standards impracticable. The request for relief
must include a narrative statement which describes both the
circumstances and justification for the request. The statement should
also provide information substantiating the impracticability of
compliance with the standards, including a description of the specific
conditions caused by the natural disaster or other calamity, including
preliminary data provided by the state, as required under 45 CFR
305.32(f), showing reduced performance.
The request must also include information on the expected duration
of the conditions that make compliance impracticable and include any
other documentation or other information that the Secretary may require
to make a determination regarding relief.
The state must demonstrate to the satisfaction of the Secretary
that the natural disaster or other calamity has directly resulted in a
reduction in performance or is expected to result in a reduction in
performance, based on data provided by the state.
The statement and other documentation must demonstrate that the
state: has not or will not meet one or more existing performance
requirements, such that a performance penalty would apply; has
submitted preliminary data to support the statement; and has provided
all required information. Any additional information must be submitted
as soon as the adverse effect of the natural disaster or other calamity
giving rise to the request is known to the state.
The Secretary will make a determination of the modified performance
requirements based on preliminary data provided by the state under 45
CFR 305.32(f) and shall provide written communication to the state of
the decision and the period for which any modified standards shall
apply. Relief from the performance requirements will be time-limited,
based on the data presented by the state, and the Federal fiscal year
period in which conditions are expected to make compliance
impracticable.
We propose providing the Secretary with the authority to provide
temporary relief to align with the Federal fiscal year timeframes which
align with the expected duration of the conditions that make compliance
with the performance requirement impracticable. After the relief
period, the performance requirements will revert back to the levels
described under section 452(g) of the Act (42 U.S.C. 652(g)) and 45 CFR
305.40(a)(1), under 45 CFR 305.40(a)(2), or under 45 CFR 305.40(a)(3),
and the state will once again be subject to penalties for adverse data
reliability audit findings related to the performance measures after an
automatic corrective action year as specified in 45 CFR 305.42. This
proposed rule will apply to Federal fiscal year periods subsequent to
September 30, 2022.
Paperwork Reduction Act
No new information collection requirements would be imposed by this
proposed regulation.
Regulatory Impact Analysis
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.
Regulatory Flexibility Analysis
The Secretary proposes to certify that, under 5 U.S.C. 605(b), as
enacted by the Regulatory Flexibility Act (Pub. L. 96-354), this
proposed rule, if finalized, 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 Regulatory Flexibility Act.
[[Page 44763]]
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 $177
million. This rule does not impose any mandates on state, local, or
tribal governments, or the private sector, that will exceed this
threshold in any year.
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. ACF believes
it is not necessary to prepare a family policymaking assessment (see
Pub. L. 105-277) because this regulation does not impose requirements
on states or families and thus will not have any impact on family well-
being.
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 13132.
January Contreras, Assistant Secretary of the Administration for
Children & Families, approved this document on March 15, 2023.
List of Subjects in 45 CFR Part 305
Child support, Program performance measures, standards, financial
incentives, and penalties.
Dated: July 6, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.
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. Amend Sec. 305.61 by adding new paragraph (f) to read as follows:
Sec. 305.61 Penalty for failure to meet IV-D requirements.
* * * * *
(f) Authority to modify state requirements to meet paternity
establishment percentages, support order establishment, or current
collections performance measure standards during natural disasters and
other calamities. During, and subsequent to, natural disasters and
other calamities (e.g., state chief executive officer-declared states
of emergency, pandemics, events designated by the President under the
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5170), and declared public health emergencies under section 319
of the Public Health Service Act, 42 U.S.C. 247d), the Secretary may
temporarily modify the performance measure requirements for a state to
meet the paternity establishment percentage standard of 90 percent
under section 452(g) of the Act (42 U.S.C. 652(g)) and 45 CFR
305.40(a)(1), the support order establishment standard of 40 percent
under 45 CFR 305.40(a)(2), and the current collections standard of 35
percent under 45 CFR 305.40(a)(3), to lower levels to avoid imposing
financial performance penalties on states, and may set aside adverse
data reliability audit findings under section 452(g) of the Act (42
U.S.C. 652(g)) and 45 CFR 305.61(a)(1)(ii) during the same time period.
For Federal fiscal years subsequent to September 30, 2022, the
performance requirements for paternity establishment under section
452(g) of the Act (42 U.S.C. 652(g)) and 45 CFR 305.40(a)(1), for
support order establishment under 45 CFR 305.40(a)(2), and for current
collections under 45 CFR 305.40(a)(3)--may be modified by the Secretary
to a lower level under the conditions described in this section.
(1) If a state experiences a natural disaster or other calamity
(e.g., state chief executive officer-declared states of emergency,
pandemics, events designated by the President under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170),
and declared public health emergencies under section 319 of the Public
Health Service Act, 42 U.S.C. 247d), the state's chief executive
officer (or his or her designee) may submit to the Secretary a request
to modify one or more of the performance requirements specified under
section 452(g) of the Act (42 U.S.C. 652(g)) and 45 CFR 305.40(a)(1),
under 45 CFR 305.40(a)(2), or under 45 CFR 305.40(a)(3).
(2) The state may also ask the Secretary to set aside adverse data
reliability audit findings under section 452(g) of the Act (42 U.S.C.
652(g)) and 45 CFR 305.61(a)(1)(ii) for the same time period as the
time period for which a modification of performance requirements is
sought.
(3) The request for a modification to the performance requirements
must be submitted in accordance with the procedures specified in
paragraphs (f)(4), (5) and (6) of this section. Any request other than
one submitted with the initial application must be submitted as soon as
the adverse effect of the natural disaster or other calamity giving
rise to the request is known to the state.
(4) A request for a modification of one or more of the performance
requirements must include the following:
(i) A narrative statement describing the circumstances and
justification for the request to modify the state's performance
requirement;
(ii) Information substantiating the impracticability of compliance
with the standards, including a description of the specific conditions
caused by the natural disaster or other calamity which make compliance
impracticable, including preliminary data provided by the state, as
required under 45 CFR 305.32(f), showing reduced performance;
(iii) Information on the expected duration of the conditions that
make compliance impracticable; and
(iv) Any other documentation or other information that the
Secretary may require to make this determination.
(5) The state must demonstrate to the satisfaction of the Secretary
that the natural disaster or other calamity has directly resulted in a
reduction in performance or is expected to result in a reduction in
performance, based on data provided by the state. In its request for a
temporary modification to one or more performance requirements, the
state must be able to demonstrate that it:
(i) Has not or will not meet one or more existing performance
requirements, such that a performance penalty would apply;
[[Page 44764]]
(ii) Has submitted preliminary data supporting this statement; and
(iii) Has provided all required information requested by the
Secretary.
(6) The Secretary shall provide written communication of the
decision to modify or decline to modify the performance standards, and
the period for which any modified standards shall apply, after receipt
of appropriate written communication from the chief executive officer.
(i) If approved, a temporary modification in a performance
requirement will expire on the last day of the Federal fiscal year for
which it was approved.
(ii) Adverse findings of data reliability audits of the state's
performance data under 45 CFR 305.60 as reported during the period in
which the performance requirement modification is approved will not
result in a financial penalty pursuant to the state's request as
specified in paragraph (f)(2) of this section.
(iii) Unless the state receives a written approval of its
performance requirement modification request, the performance
requirements under section 452(g) of the Act (42 U.S.C. 652(g)) and 45
CFR 305.40(a)(1), under 45 CFR 305.40(a)(2), and under 45 CFR
305.40(a)(3) remain in effect.
(iv) If the request for a performance requirement modification is
denied, the denial is not subject to administrative appeal.
[FR Doc. 2023-14658 Filed 7-12-23; 8:45 am]
BILLING CODE 4184-41-P
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