Title of Regulation: 22VAC40-880. Child Support Enforcement Program (amending 22VAC40-880-405).

Statutory Authority: § 63.2-217 of the Code of Virginia; 42 USC § 651 et seq.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 20, 2017.

Effective Date: October 6, 2017.

Agency Contact: Alice Burlinson, Senior Assistant Attorney General, Department of Social Services, 4504 Starkey Road, SW, Roanoke, VA 24018, telephone (540) 776-2779, FAX (804) 776-2797, or email alice.burlinson@dss.virginia.gov.

Basis: Section 63.2-217 of the Code of Virginia states that the State Board of Social Services shall adopt regulations, not in conflict with Title 63.2 of the Code of Virginia, as may be necessary or desirable to carry out the purpose of Title 63.2.

Purpose: This amendment is needed to provide the Division of Child Support Enforcement with the ability to increase collection of child support for families. Currently, noncustodial parents in the Passport Denial Program must pay their child support arrears in full to obtain or renew a passport. The only exception is for cases where a noncustodial parent's immediate family member lives abroad and faces a life-or-death situation. In those instances, the Director of the Division of Child Support Enforcement may grant the release of a passport upon the noncustodial parent's written request, which must include documentation of compelling evidence of the situation.

Many child support payers need to travel internationally for work. Under the current regulation, these noncustodial parents have no way to obtain or renew their passports unless they have the ability to pay their arrears in full. The division would like to encourage payment of support and does not want the passport regulation to be a barrier when a noncustodial parent has employment that would provide him with the means to pay child support but for the denial of a passport.

Rationale for Using Fast-Track Rulemaking Process: The Department of Social Services does not believe that the proposed regulation will be controversial. The amended regulation will provide for an additional exception for release of a passport from the Passport Denial Program.

Substance: The amendment provides an additional exception for release of a noncustodial parent's passport. This change would enable the division to work with noncustodial parents who are unable to pay their child support arrearages in full but whose employment is contingent upon international travel to allow them to obtain or renew their passports. These parents would be required to make lump sum payments towards their arrearages, agree to income withholding orders, and enter into payment agreements with the division with a regular monthly payment amount and a schedule for paying off the arrearage in full. They would also be required to provide written proof of current employment or proof of an offer and acceptance of employment from their employer.

Issues: There are numerous advantages to this regulatory action. The amended regulatory section will (i) provide an additional exception for a noncustodial parent's release from the Passport Denial Program in Virginia; (ii) increase child support collection through lump sum payments and payment agreements; and (iii) potentially provide for regular payment of support from noncustodial parents who are required to travel internationally as part of their employment.

The department is aware of no disadvantages to this regulatory action.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Social Services (Board) proposes to add an exception for release from the Passport Denial Program if a noncustodial parent provides documentation from their employer to verify that their employment requires international travel.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The U.S. Department of Health & Human Services' Passport Denial Program is designed to help states enforce delinquent child support obligations. Under the program, noncustodial parents certified by a state as having arrearages exceeding $2,500 are submitted by the federal Office of Child Support Enforcement to the Department of State, which denies them U.S. passports upon application or the use of a passport service.¹ The program was first implemented in Virginia in 1997.

Under the current Virginia regulation, noncustodial parents in the Passport Denial Program must pay their child support arrears in full to obtain or renew a passport. The only exception is for cases where a noncustodial parent's immediate family member lives abroad and faces a life-or-death situation. The Board proposes an additional exception for release from the Passport Denial Program if the noncustodial parent provides documentation from their employer to verify that their employment requires international travel.

The proposed amendment would likely be beneficial in that it potentially helps enable noncustodial parents with jobs that may require international travel to satisfy the requirements of their employment, and be able to earn the income needed to pay their child support obligations. Additionally, noncustodial parents may be able to obtain better-paying positions, helping provide income to pay child support obligations, if they are permitted to travel abroad for work.

Businesses and Entities Affected. The proposed amendment would affect noncustodial parents who owe $2,500 or more in child support arrearages. Indirectly, the amendment would potentially affect firms that may employ these individuals, as well as recipients of their child support payments.

Localities Particularly Affected. The proposed amendment would not disproportionately affect specific localities.

Projected Impact on Employment. The proposed amendment would not significantly affect total employment, but may help a small number of individuals to maintain or obtain employment.

Effects on the Use and Value of Private Property. The proposed amendment would not significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendment would not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendment may reduce costs for a few small businesses by permitting employees or firm principals who are noncustodial parents with delinquent child support obligations to travel internationally for business.

Alternative Method that Minimizes Adverse Impact. The proposed amendment would not adversely affect small businesses.

Adverse Impacts.

Businesses. The proposed amendment would not adversely affect businesses.

Localities. The proposed amendment would not adversely affect localities.

Other Entities. The proposed amendment would not adversely affect other entities.

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¹ Source: U.S. Office of Child Support Enforcement accessed on May 30, 2017: https://www.acf.hhs.gov/css/resource/overview-of-the-passport-denial-program

Agency's Response to Economic Impact Analysis: The Department of Social Services reviewed the economic impact analysis prepared by the Department of Planning and Budget and concurs.

Summary:

The amendment adds an exception for release from the Passport Denial Program if a noncustodial parent provides documentation from the noncustodial parent's employer to verify that his employment requires international travel.

22VAC40-880-405. Passport denial program Denial Program.

A. The department shall participate in the Passport Denial Program for the denial, revocation, or limitation of noncustodial parents' passports where child support arrearages exceed the federally mandated threshold.

B. The department shall certify the arrearages to the federal Office of Child Support Enforcement, which will then (i) send notice of the certification on behalf of the department to the individual and (ii) certify the arrearage to the Department of State pursuant to the Passport Denial Program.

C. An individual has the right to appeal per the notice to a Department of Social Services' hearing officer. The only issues reviewable on appeal are (i) whether the arrears met the threshold at the time of certification, or (ii) mistaken identity. An appeal from the hearing officer shall be to circuit court pursuant to the procedures under the Setoff Debt Collection Act (§ 58.1-520 et seq. of the Code of Virginia). The issues in subsections D and E of this section are not reviewable by the hearing officer.

D. An individual's child support arrearages shall be paid in full before the department notifies the federal Office of Child Support Enforcement that the individual is eligible to receive a passport.

E. Exceptions to paying all arrearages prior to release of a passport may be granted by the IV-D agency director upon written request documenting (i) compelling evidence of a life-or-death situation of an immediate family member or (ii) employment that is contingent upon international travel with written proof from the employer of current employment or an offer and acceptance of employment and an agreement with the department that includes an income withholding order, a lump sum payment, and a plan to make regular payments to satisfy the arrearage within a finite period of time. Such decision whether to grant an exception shall be in the sole discretion of the IV-D agency director or designee.