Rule2024-04244
Modifications to Performance Standards During Natural Disasters and Other Calamities
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 4, 2024
Effective
March 4, 2024
Issuing agencies
Health and Human Services DepartmentChildren and Families Administration
Abstract
OCSS issues this final rule 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 rule allows OCSS to modify performance measure requirements when natural disasters and other calamities affect, or are expected to affect, the state child support program's ability to achieve performance standards for paternity establishment, support order establishment, and current collections. The rule enables states to avoid the imposition of penalties due to adverse data reliability audit findings during, and after, natural disasters and other calamities, including pandemics and declared public health emergencies.
Full Text
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<title>Federal Register, Volume 89 Issue 43 (Monday, March 4, 2024)</title>
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[Federal Register Volume 89, Number 43 (Monday, March 4, 2024)]
[Rules and Regulations]
[Pages 15475-15480]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-04244]
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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: Final rule.
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SUMMARY: OCSS issues this final rule 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 rule
allows OCSS to modify performance measure requirements when natural
disasters and other calamities affect, or are expected to affect, the
state child support program's ability to achieve performance standards
for paternity establishment, support order establishment, and current
collections. The rule enables states to avoid the imposition of
penalties due to adverse data reliability audit findings during, and
after, natural disasters and other calamities, including pandemics and
declared public health emergencies.
DATES: This rule is effective on March 4, 2024.
FOR FURTHER INFORMATION CONTACT: Tricia John, Policy Specialist,
Division of Policy and Training, OCSS, telephone (202) 260-7143. Email
inquiries to <a href="/cdn-cgi/l/email-protection#a5cac6d6d68bc1d5d1e5c4c6c38bcdcdd68bc2cad3"><span class="__cf_email__" data-cfemail="0f606c7c7c216b7f7b4f6e6c692167677c21686079">[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:
Statutory Authority
This rule 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 authority to
modify the paternity establishment percentage (PEP) performance measure
and data reliability audit requirements is based on section
452(g)(3)(A) of the Act (42 U.S.C. 652(g)(3)(A)), which provides the
Secretary with discretionary authority to modify the PEP and program
audit requirements taking into account additional variables as
identified by the Secretary that affect the ability of a state to meet
the PEP and audit requirements. The authority to modify, waive or
suspend the support order establishment and current collections
performance measures is based on section 409(a)(8)(A)(i)(I) of the Act
(42 U.S.C. 609(a)(8)(A)(i)(I)), which provides the Secretary with
discretion regarding the establishment of other state child support
program performance measures.
Background
The purpose of this rule is to authorize the Secretary to provide
targeted and time-limited relief to states from certain performance
penalties when natural disasters and other calamities impact state
child support program operations, preventing the state from achieving
the required program performance measures.
This rule allows OCSS to modify the requirements for states to meet
the following performance standards: the 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). This rule sets forth the process by which states may
request, and OCSS may adjust these performance standards to a lower
level to avoid imposing financial penalties on states and modify the
requirements to avoid the imposition of penalties due to adverse data
reliability audit findings. The rule permits time-limited modification
of performance requirements during, and subsequent to, natural
disasters and other calamities. We note that the rule only addresses
modifications to penalty performance measures and levels under 45 CFR
305.40; it does not change the requirements related to incentive
payments under section 458 of the Act and 45 CFR part 305.
The need for OCSS to establish a process for states to request
relief from penalties during natural disasters and calamities became
apparent during the COVID-19 pandemic. During the COVID-19 pandemic,
states experienced significant workload burdens and service backlogs
due to disruptions to state child support program operations and court
closures.
[[Page 15476]]
State child support program operations were affected in a variety of
ways, including being unable to obtain voluntary acknowledgments
through in-hospital programs or to access genetic testing due to child
support office closures, court closures, staffing shortages, or when
clinical laboratory resources were diverted for pandemic-related
testing. In response, OCSS added 45 CFR 305.61(e) to provide time-
limited relief specific to the impact of COVID-19, to modify the
Paternity Establishment Percentage for Federal Fiscal Years (FFY) 2020,
2021, and 2022.
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 was 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's Dear Colleague Letter 20-04: Flexibilities for State and
Tribal Child Support Agencies during COVID-19 Pandemic \1\). However,
these flexibilities did not extend to relief for financial penalties
related to performance or adverse data reliability audit findings.
States are concerned that performance-related financial penalties
resulting from a natural disaster or other calamity, and 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 of public assistance 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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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 collections. Failure to achieve required
performance levels may lead to penalties assessed as a percentage
reduction of the state's Temporary Assistance for Needy Families (TANF)
grant in accordance with section 409(a)(8) of the Act (42 U.S.C.
609(a)(8)).
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 are 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, 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 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.
Summary Description of the Regulatory Changes
The notice of proposed rulemaking (NPRM) was published in the
Federal Register on July 13, 2023 (88 FR 44760 through 44764). The
comment period ended September 11, 2023. In the NPRM, we proposed to
add a new provision to Part 305, ``Program Performance Measures,
Standards, Financial Incentives and Penalties,'' to explain when OCSS
may exercise its authority to provide short-term relief from certain
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. Specifically, we proposed adding a new paragraph (f) to
Sec. 305.61, ``Penalty for failure to meet IV-D requirements,'' to
explain when OCSS may exercise its authority, during and subsequent to
natural disasters and other calamities, to temporarily modify the
performance requirements for states to meet the PEP 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 a financial penalty on states. In
addition, we proposed that OCSS may set aside adverse data reliability
audit findings under section 452(g) of the Act during the same time
period.
Response to Comments
OCSS received 16 sets of comments to the July 2023 NPRM from
states, organizations, and other interested entities and individuals,
which were posted on <a href="http://www.regulations.gov">www.regulations.gov</a>. OCSS reviewed and analyzed
the comments and considered them in finalizing the rule. All comments
received in response to this rulemaking were supportive of the proposed
relief as outlined in the NPRM. We received several comments to the
NPRM that included additional suggestions and recommendations, and we
respond to those comments below.
Comment 1: Several commenters requested clarification around data
reliability audit findings in relation to this proposed regulation.
Some commenters had concerns regarding whether requests for relief from
adverse data reliability audit findings related to the three
performance measures that are the subject of this rule should coincide
or be submitted subsequent to the request for relief from one or more
performance requirements. One
[[Page 15477]]
commenter requested clarification regarding the process for requesting
relief from adverse data reliability audit findings and whether such
relief can be sought without a prior or concurrent request for
modification of performance requirements.
A commenter requested clarification regarding the types of adverse
data reliability audit findings that could be set aside under the new
rule. A commenter observed that the rule does not address the arrears
or cost-effectiveness performance measures and, while acknowledging
that failure to meet these performance measures does not result in
penalties, such performance could still be implicated in data
reliability audit findings.
A commenter requested clarification on whether substandard
performance occurring prior to an approved performance modification
period would carry over to the post performance modification period.
One commenter asked for clarification on whether a state would still
need to do a data reliability audit if data reliability errors were
found, or if states could instead plan on doing the Data Reliability
Review/data reliability audit on a state's regular schedule.
Response 1: Data reliability audits for the period(s) which
performance requirement modifications are requested will continue to
occur after a request is made under section 305.61(f). A state may
submit a request to set aside adverse data reliability audit findings
to avoid the imposition of a financial penalty subsequent to or
concurrent with a request to modify performance requirements. A state
can request relief from adverse data reliability audit findings without
a request to modify performance requirements.
Relief from adverse data reliability audit findings to avoid the
imposition of a financial penalty only applies to data related to the
PEP, order establishment, and current collections performance measures,
and only during those periods for which the state seeks and OCSS grants
relief, as provided for under this rule. As such, the performance
measures of arrearage collections and cost-effectiveness, which are not
penalty performance measures under 45 CFR 305.40, are outside the scope
of this rulemaking. States should make every effort to demonstrate how,
and for what periods, the natural disaster or other calamity directly
results in a reduction in performance. If the state expects a continued
reduction in performance due to the natural disaster or calamity for
subsequent Federal fiscal years, the state should submit a subsequent
request for a reduction in the affected performance measures for each
fiscal year.
The process to determine what type of audit a state will receive
has not changed. States that could have been exempt from a data
reliability audit will go back into the annual audit pool for the next
audit cycle if, during the current audit cycle, they either fail to
meet a performance standard, fail to report reliable data, or achieve
marginal performance on any line evaluated for data reliability.
Comment 2: A number of commenters requested more information around
timeframes to make the request for relief and timeframes for OCSS to
respond to their request for relief. One commenter observed that there
did not seem to be a timeframe attached to when an initial application
for relief should be submitted and recommended that the rule include
language similar to the requirement for submitting subsequent requests
(``as soon as the adverse effect of the natural disaster or other
calamity giving rise to the request is known to the state''). Another
commenter stated that the requirement to submit a subsequent request as
soon as the adverse effect is known should be clarified or deleted, and
that a requirement of timeliness is overly strict and could allow for a
denial based on an untimely request.
Another commenter recommended adding a clarification regarding
whether a state can make the same request multiple years in a row.
Five commenters requested that the rule include a timeframe for
OCSS to respond to state applications for relief, two of them
recommending a period of 30 days. One commenter recommended the
creation of a standardized request form to apply for relief. The
commenter also suggested that such a form should include instructions
on what specific or support information is needed.
Response 2: During times of natural disasters and other calamities,
states will need flexibility in determining the impacts to their
programs and adequate time and resources to gather the necessary data
to substantiate the state's request for relief. Therefore, the
regulation does not impose a specific timeframe for initial application
or subsequent requests.
Similarly, we believe states should have the maximum flexibility to
submit a request for relief in the form that the state determines is
most reasonable. Each state's circumstances will differ in the type of
disaster or calamity and impacts to performance. Creating a
standardized form would reduce that flexibility for states.
Additionally, states may request relief by following the procedures
specified in paragraphs (f)(4), (5) and (6), and OCSS will provide
timely communication regarding the state's request.
We have contemplated that a state could request relief on a fiscal
year by fiscal year basis, following the same process outlined in the
rule. As we have previously stated, 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). Therefore, the state
must demonstrate, based on available data, that such natural disaster
or other calamity has directly resulted in a reduction in performance
or is expected to result in a reduction in performance in subsequent
fiscal years.
We agree with comments indicating that a timeframe for OCSS to
respond to state applications for relief should be included in the
rule. We have revised the final rule to include a 30-calendar day
response time.
Comment 3: Some commenters requested the inclusion of language
addressing equity and enforcement flexibility. One commenter asked OCSS
to consider the adverse consequences of imposing financial penalties on
states during emergent situations and urged the incorporation of
language that recognizes the need for flexibility and prioritizes
equity, to enable agencies to allocate resources where they are most
needed. Another commenter requested clarification about whether child
support programs could activate enforcement flexibility during natural
disasters or other calamities, based on public need, even if the state
knows that implementing this flexibility will reduce performance
measures.
Response 3: We recognize natural disasters and other calamities may
affect state child support program operations in a variety of ways and
that states may need flexibility during emergent situations. As
detailed in the rule, OCSS expects that a request to modify a state's
performance requirements will include state-specific information
describing the circumstances and justification for the requested
relief, as well as the impact of the natural disaster or other calamity
on the state's ability to comply with the standards. We also recognize
that natural disasters and other calamities may not necessarily require
relief from performance requirements. The current child support
performance, audit, penalties, and incentives system is designed to
drive performance. States
[[Page 15478]]
that experience individual challenges that impact performance, whether
these challenges are within or outside the states' immediate control,
are motivated to recover from setbacks and strive to achieve
performance goals, as states have over the last two decades.
Comment 4: A few commenters asked for clarification about local,
regional, and national emergencies, and whether joint requests could be
made by more than one state in a particular affected region.
One commenter stated that although the information required to
apply for relief is state-specific, there are national and global
emergencies that impact all states and territories and that other
emergencies may impact specific regions of the country. This commenter
asked us to consider the option for states to submit a joint request
for relief when more than one state is affected by a disaster.
Two commenters asked for clarification on how the rule would apply
if a disaster only impacted one part of a state.
Response 4: While we understand that disasters can affect more than
one state in certain regions, the rule is structured in a way that each
state needs to provide information specific to that state to
demonstrate that the disaster has directly impacted the state's ability
to meet performance requirements or is expected to result in a
reduction in performance. This is especially true with the data
requirements, and each state, even within a region, may be impacted
differently with respect to performance. It is not feasible for states
to submit joint applications for relief, due to the unique impacts of
an emergency on each state and the state-specific data required to
substantiate the request for relief.
For those states where a natural disaster or other calamity is only
impacting a part of the state, the state may apply for relief from
performance requirements.
Comment 5: Several commenters suggested that OCSS provide the
opportunity for an appeal if a state is denied the request to modify
their performance requirements. An additional suggestion was that 45
CFR 301.14 could be used for this purpose.
Response 5: Adequate process already exists as part of the overall
performance evaluation for a state to provide information and request
consideration of special circumstances, so an administrative appeal
before the Departmental Appeals Board of a denial of a state's request
to modify its performance requirements is unnecessary. Under the
existing process, if a state fails to meet their performance
requirements, the state will be provided one year as their corrective
action year as outlined under 45 CFR 305.61. During the corrective
action year, OCSS will issue a warning letter to advise of the
potential for a penalty if no improvement is made the following fiscal
year, as outlined under 45 CFR 305.40, 305.61(a)(2) and 305.66. After
the corrective action year, if a penalty is assessed, and the state is
subject to the penalty, the state has the option to file an appeal with
the Departmental Appeals Board, in accordance with 45 CFR 262.7.
The Departmental Appeals Board has limited jurisdiction under 45
CFR part 16, and for mandatory grants generally only penalties and
disallowances are appealable. 45 CFR part 16, Appendix A. Its
jurisdiction would not naturally extend to a denial of a state's
request to modify its performance requirements.
Comment 6: A few states have requested that OCSS also include the
option to provide IV-D agencies with an exception from the impact of
increased Federal Medical Assistance Percentages rates on state-
retained collections. Additionally, one other state agrees with the
proposed rule, but requested that OCSS place limitations on the relief
so that a state could not use this flexibility to gain an unfair
advantage with respect to performance incentives. Another state
suggested that OCSS allow data sharing among programs during times of
national disasters and other calamities.
Response 6: These suggestions are beyond the scope of this
rulemaking and would require legislative changes. OCSS does not have
legislative authority. OCSS disagrees that placing additional
limitations on the relief is necessary because the rule requires, in 45
CFR 305.61(f)(5), that the requesting state 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.
Comment 7: One state commented that OCSS should require states to
submit a disaster plan as part of their request for relief.
Response 7: While we appreciate the intent behind this comment,
OCSS disagrees that states should be required to provide disaster plans
as a part of the request for relief. We believe states should have the
maximum flexibility to submit a request for relief in the form that the
state determines is most reasonable. Each state's circumstances will
differ in the type of disaster or calamity and possible impacts to
performance.
Comment 8: One commenter suggested revisions to two subsections of
the regulatory language. First, the commenter suggested rewording
subsection (f)(4)(ii) and removing the term ``impracticability of
compliance'' as the term is inherently imprecise and does not help to
establish whether a natural disaster or other calamity may have an
impact on a state's ability to comply with the performance
requirements. Second, the commenter suggested replacing the term ``will
not'' with the term ``may not'' in subsection (5)(i) as it is overly
strict to require states to demonstrate that they ``will not meet one
or more existing performance requirements, such that a performance
penalty would apply.''
Response 8: We agree with the suggested changes to these
subsections and have revised the final rule to reflect that language.
We made these changes to clarify ambiguous language and to remove
overly restrictive conditions on requests for relief.
Comment 9: One commenter suggested providing consideration for
those instances where a state is unable to produce preliminary data due
to the natural disaster or other calamity. Another commenter requested
the option for states to request an extension to the submission of
annual and quarterly reports when disasters occur toward the end of a
reporting period.
Response 9: The final rule authorizes OCSS to determine the
modified performance requirements based on the preliminary data
provided by the state under 45 CFR 305.32(f), and as such, the
preliminary data are necessary for the state to demonstrate 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.
This final rule also allows OCSS to set aside adverse data reliability
audit findings under section 452(g) for the same time period as the
time period for which a modification of performance requirements is
sought.
While we appreciate that a state's ability to meet reporting
requirements may also be impacted by a natural disaster or other
calamity, modifications to reporting deadlines are outside the scope of
this rulemaking. During such events, additional flexibilities may be
available to states beyond those available under title IV-D.
Paperwork Reduction Act
No new information collection requirements would be imposed by this
regulation.
[[Page 15479]]
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 final 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, as amended by Executive Order 14094,
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 final rule is
significant and was accordingly reviewed by OMB.
Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires
Federal agencies to determine, to the extent feasible, a rule's impact
on small entities, explore regulatory options for reducing any
significant impact on a substantial number of such entities, and
explain their regulatory approach. The Secretary certifies that 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 RFA.
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 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. OCSS 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.
Congressional Review Act
This final rule is not a major rule as defined in 5 U.S.C. 804(2).
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.
Jeff Hild, Acting Assistant Secretary of the Administration for
Children and Families approved this document on February 1, 2024.
List of Subjects in 45 CFR Part 305
Child support, program performance measures, standards, financial
incentives, and penalties.
Dated: February 26, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.
For the reasons stated in the preamble, the Department of Health
and Human Services amends 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 a new paragraph (f) to read as follows:
Sec. 305.61 Penalty for failure to meet IV-D requirements.
* * * * *
(f) 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.
[[Page 15480]]
(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 impact of the natural disaster
or other calamity on the state's ability to comply with the standards,
including a description of the specific conditions caused by the
natural disaster or other calamity that have, or may have, a
significant impact on the state's ability to comply, and 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 may not meet one or more existing performance
requirements, such that a performance penalty would apply;
(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, within 30-
calendar days 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. 2024-04244 Filed 3-1-24; 8:45 am]
BILLING CODE 4184-41-P
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</html>Indexed from Federal Register on March 4, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.