TITLE 22. SOCIAL SERVICES

STATE BOARD OF SOCIAL SERVICES

Fast-Track Regulation

Title of Regulation: 22VAC40-880. Child Support Enforcement Program (amending 22VAC40-880-10, 22VAC40-880-390, 22VAC40-880-430; adding 22VAC40-880-800, 22VAC40-880-810).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: December 18, 2024.

Effective Date: January 2, 2025.

Agency Contact: Matthew Gomez, Manager, Program Initiatives, Department of Social Services, 801 East Main Street, Richmond, VA 24018, telephone (804) 726-7437, or email matthew.gomez@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 that title. Section 63.2-1901 of the Code of Virginia provides an outline of the duties of the department, which include "to further the effective and timely enforcement of such support while ensuring that all functions in the department are appropriate or necessary to comply with applicable federal law." 45 CFR § 303.6 requires IV-D (child support) agencies to "maintain and use an effective system for: monitoring compliance with the support obligation (and) enforcing the support obligation by: taking any appropriate enforcement action." Chapter 448 of the 2008 Acts of Assembly provides for a pilot of intensive case monitoring services.

Purpose: This regulation is essential to protect the public health, safety, and welfare because the amendments clarify the use of family engagement services (FES), allowing the Division of Child Support Enforcement (division) to provide more intensive case management services for participants facing obstacles that hinder participant ability to maintain steady employment. The proposed change also sets clear public guidelines regarding accountability for active participation and compliance and clarifies how the division will provide consistent and equitable services.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial because the changes clarify and reflect existing FES activities, rather than changing those activities.

Substance: This action (i) creates new sections to allow the division to establish and maintain services to assist persons with a duty to pay child support with needed resources to meet the requirements of the support obligation; (ii) defines supporting terms; (iii) amends sections to allow the department to clarify use of state and federal remedies to ensure compliance with a child support order; and (iv) adds "of process" after the word "service" in two instances.

Issues: The primary advantage to the public and the Commonwealth is that these amendments will allow the division to provide intensive case management services, referrals, and assistance to participants to help them overcome the challenges faced when complying with support obligations and leverage community and governmental agency partnerships to assist with increasing the frequency and amount of child support payments. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The State Board of Social Services (board) proposes to amend the Child Support Enforcement Program regulation in order to help establish the regulatory authority for the provision of Family Engagement Services (FES).

Background. According to the Department of Social Services (DSS), the impetus for this proposed regulatory change is a board decision to ensure there is an authorizing regulation describing use of FES. Federal regulation 45 CFR § 303.6 requires IV-D (child support) agencies to use appropriate and available enforcement methods to obtain compliance with child support obligations. As a component of reviewing for ability to pay, DSS states that there are case participants who may need more assistance than others in maintaining support order compliance. In an article for the National Child Support Enforcement Association, a former DSS official described the need for FES as follows:

"Historically, child support collection efforts have focused on parents who have assets but, for a variety of reasons related to the complexity of their relationships with the other parent, refuse to pay child support as ordered. There is another category of parents who, until recently, have not received focused attention. These parents are often caught up in a revolving door within the child support system; they receive limited acknowledgment or assistance and have significant barriers that inhibit their ability to pay support. This population struggles with limited education, sketchy work histories, substance abuse problems, criminal records, and more. While some also have poor relationships with the other parent and don't want to pay, others would pay child support if they were able. For this latter group - those who would but can't pay conventional enforcement remedies - often result only in recurring penalization rather than changes to behavior, regular child support payments, and long-term compliance. Instead, these noncustodial parents are often chronically taken to court, found noncompliant, and jailed because there is no alternative solution."²

FES activities are therefore designed to help increase the noncustodial parent's ability to pay child support. As indicated in the proposed regulation, following an administrative or judicial determination that such services may assist the person to pay child support owed, the DSS Division of Child Support Enforcement may provide FES activities such as "referrals to (i) employment services, to include employment assessment, employment search, and employment training; (ii) family services, including parenting skills, co-parenting skills, and relationship-building activities for parents and children; (iii) educational services, including GED preparation and GED testing; (iv) housing services, including referrals to organizations that operate shelters and provide subsidies; (v) document assistance, including referrals to organizations and assistance in securing vital records, driver's licenses, commercial driver's licenses, or other documents; (vi) social services, health and mental health services, and substance abuse services; and (vii) any other services that would assist the person to pay support owed." These activities may be offered in conjunction with, but not as a substitute for, state and federal enforcement remedies. In practice, DSS has provided FES since 2008. According to DSS, the board is proposing this new language upon advice of the Office of the Attorney General. The proposed text would not change the existing FES activities.

Estimated Benefits and Costs. As indicated, the proposed amendments reflect existing FES activities. The proposed text could be beneficial in that the public may become better informed concerning FES.

Businesses and Other Entities Affected. The proposed amendments pertain to the noncustodial parents who receive FES, the custodial parents who may receive greater child support payments due to improved employment situations for the noncustodial parents, the 15 FES case managers at DSS, and the organizations that provide the various FES services. In 2022, 3,364 noncustodial parents received FES.³ The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As the proposed amendments reflect current practice, no adverse impact is indicated.

Small Businesses⁵ Affected.⁶ As the proposed amendments reflect current practice, small businesses are not affected.

Localities⁷ Affected.⁸ No localities are disproportionately affected. As the proposed amendments reflect current practice, costs for local governments are not affected.

Projected Impact on Employment. As the proposed amendments reflect current practice, no impact on employment is anticipated.

Effects on the Use and Value of Private Property. As the proposed amendments reflect current practice, no effects on the use and value of private property are expected. Real estate development costs are not affected.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://www.ncsea.org/documents/ICMP_FINAL1.pdf.

³ Data source: DSS.

⁴ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁵ Pursuant to § 2.2-4007.04, 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."

⁶ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency 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 amendments (i) create new sections to allow the Division of Child Support Enforcement to establish and maintain services to assist persons with a duty to pay child support with needed resources to meet the requirements of their support obligation; (ii) define supporting terms;(iii) allow the department to clarify use of state and federal remedies to ensure compliance with a child support order; and (iv) add "of process" after the word "service" in two instances.

22VAC40-880-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative referral" means when a unit of the department or executive branch makes a referral for a parent or case.

"Appeal" means a request for a review of an administrative action taken by the division, or an action taken to contest a court order.

"Applicant" or "applicant/recipient" means a party who applies for and receives services from the division.

"Application" means a written document requesting child support enforcement services, which the department provides to the individual or agency applying for services and which is signed by the applicant.

"Arrearage" means unpaid child or medical support payments, interest, and other costs for past periods owed by a parent to the state or obligee. This may include unpaid spousal support when child support is also being enforced.

"Bad check" means a check not honored by the bank on which it is drawn.

"Case management services" means individualized services provided by a trained case manager.

"Case summary" means a written statement outlining the actions taken by the department on a case that has been appealed.

"Child support guideline" means a method for calculating a child support obligation as set out in § 20-108.2 of the Code of Virginia.

"Delinquency" means an unpaid child or medical support obligation. The obligation may include spousal support when child support is also being enforced.

"Department" means the Virginia Department of Social Services.

"District office" means a local office of the Division of Child Support Enforcement responsible for the operation of the child support enforcement program.

"Division" means the Division of Child Support Enforcement of the Virginia Department of Social Services, also known as a IV-D agency.

"Enforcement" means ensuring the payment of child support through the use of administrative or judicial means.

"Family engagement services" means services through which the department identifies barriers to providing support and provides case management services to address those barriers.

"Federal foster care" means foster care that is established under Title IV-E of the Social Security Act. This is a category of financial assistance paid on behalf of children who otherwise meet the eligibility criteria for TANF and who are in the custody of local social service agencies.

"Financial statement" means the provision of financial information from the natural or adoptive parents.

"Good cause" means, as it pertains to TANF applicants and recipients, an agency determination that the individual is not required to cooperate with the division in its efforts to collect child support.

"Hearing officer" means an impartial person charged by the Commissioner of the Department of Social Services to hear appeals and decide if an agency followed its policy and procedures.

"IV-D agency" means a governmental entity administering the child support enforcement program under Title IV-D of the Social Security Act. In Virginia the IV-D agency is the Division of Child Support Enforcement.

"Locate services" means obtaining information which that is sufficient and necessary to take action on a child support case, including information concerning (i) the physical whereabouts of the obligor or the obligor's employer, or (ii) other sources of income or assets, as appropriate. Certain individuals and entities such as courts and other state child support enforcement agencies can receive locate-only services from the department.

"Medicaid-only" means a category of public assistance whereby a family receives Medicaid but is not eligible for or receiving TANF.

"Medical support services" means the establishment of a medical support order and the enforcement of health insurance coverage or, if court ordered, medical expenses.

"Obligation" means the amount and frequency of payments which that the obligor is legally bound to pay as set out in a court or administrative support order.

"Occupational license" means any license, certificate, registration, or other authorization to engage in a business, trade, profession, or occupation issued by the Commonwealth pursuant to Title 22.1, 38.2, 46.2, or 54.1 of the Code of Virginia or any other provision of law.

"Parent" means any natural or adoptive parent; the natural or adoptive parent with whom the child resides; a stepparent or other person who has physical custody of the child and with whom the child resides; a local board that has legal custody of a child in foster care; or a responsible person who is or may be obligated under Virginia law for support of a dependent child or child's caretaker.

"Past due support" means support payments determined under a court or administrative order which that have not been paid.

"Pendency of an appeal" means the period of time after an administrative appeal has been made and before the final disposition by an administrative hearing officer, or between the time a party files an appeal with the court and the court renders a decision.

"Putative father" means a person alleged to be the father of a child whose paternity has not been established.

"Recipient" means a person or agency that has applied for or receives public assistance or child support enforcement services.

"Recreational license" means any license, certificate, or registration used for the purpose of participation in games, sports, or hobbies, or for amusement or relaxation.

"Referral" means when one entity or organization formally or informally requests action by another with respect to an item.

"Service" or "service of process" means the delivery to or leaving of a child support document, in a manner prescribed by state statute, giving the party reasonable notice of the action being taken.

"Summons" means a document notifying a parent or other person that he or she the parent or other person must appear at a time and place named in the document to provide information needed to pursue child support actions.

22VAC40-880-390. Additional remedies.

In addition to state administrative enforcement remedies, the department shall utilize available federal enforcement remedies to enforce child support obligations and collect accumulated support arrearages. Use of state and federal enforcement remedies shall continue until the noncustodial parent is compliant with the support order.

22VAC40-880-430. Validity of the appeal.

A. The department shall determine the validity of an administrative appeal.

1. The appeal must be in writing.

2. If the appeal is personally delivered, the appeal must be received within 10 business days of service of process of the notice of the proposed action on the appellant.

3. If mailed, the postmark must be within 10 business days from the date of service of process of the notice of the proposed action on the appellant.

B. For appeals of federal and state tax intercepts, the appellant shall have 30 days to note an appeal to the department.

22VAC40-880-800. Family engagement services.

The division is authorized to establish programs to provide family engagement services to persons following an administrative or judicial determination that such services may assist the person to pay support owed. Such programs shall provide referrals to (i) employment services, to include employment assessment, employment search, and employment training; (ii) family services, including parenting skills, co-parenting skills, and relationship-building activities for parents and children; (iii) educational services, including general education development (GED) preparation and GED testing; (iv) housing services, including referrals to organizations that operate shelters and provide subsidies; (v) document assistance, including referrals to organizations and assistance in securing vital records, driver's licenses, commercial driver's licenses, or other documents; (vi) social services, health and mental health services, and substance abuse services; and (vii) any other services that would assist the person to pay support owed. These services may be offered in conjunction with, but not as a substitute for, state and federal enforcement remedies.

22VAC40-880-810. Family engagement services, case management.

Services authorized pursuant to 22VAC40-880-800 shall include case management services. The case manager shall conduct an orientation session with a new participant and create a services plan within 30 days of referral. The services plan shall identify services, programs, and requirements necessary to comply with the administrative referral or court order. The services plan shall also provide that the nonparticipating party be given monthly status updates regarding compliance with and status of the services plan. The case manager shall (i) assist the participant to contact and make appointments with organizations offering the required services and programs; (ii) provide the participant with appointment reminders and follow up with the participant and service providers to determine any next steps that may be required; (iii) track the participant's compliance with the services plan, the support order, and the terms of the administrative referral or court order; and (iv) in cases involving court orders, provide to the court timely and regular reports regarding the participant's compliance with the services plan and with the court orders.

During the first 90 days after an administrative referral, participants shall not be referred for civil contempt if they are substantially compliant with the services plan, whether or not they are paying support as ordered. Upon conclusion of this 90-day period, participants who are substantially compliant with the services plan and not paying support as ordered may continue to participate but shall be referred for civil contempt. Participants who are, at any time, not substantially compliant with the services plan shall be referred for civil contempt. If after referral for civil contempt, a court orders the parent to continue participating in family engagement services, the participant must comply with the terms of the services plan and any additional terms of the court order.