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, 22VAC40-880-90, 22VAC40-880-240, 22VAC40-880-250, 22VAC40-880-350, 22VAC40-880-430, 22VAC40-880-480; repealing 22VAC40-880-320).

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: June 4, 2025.

Effective Date: June 19, 2025.

Agency Contact: Matthew Gomez, Director, Program Initiatives, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7437, or email matthew.gomez@dss.virginia.gov.

Basis: Section 63.2-217 of the Code of Virginia requires the State Board of Social Services to promulgate rules and regulations to administer child support enforcement in the Commonwealth under Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 of the Code of Virginia. Sections 63.2-1914, 63.2-1918, and 63.2-1946 of the Code of Virginia authorize the board to adopt regulations related to specific aspects of the child support enforcement program. In addition, the updates in 22VAC40-880-240 are made to align with 45 CFR § 302.56(c)(1).

Purpose: This action is essential to protect the welfare of the public because clear regulations help parents, courts, and the Department of Social Services participate in the child support process and support participants in understanding their rights and responsibilities. The goal of the amendments is to make technical and clarifying amendments to the regulation.

Rationale for Using Fast-Track Rulemaking Process: The board believes this action will be noncontroversial and therefore appropriate for the fast-track rulemaking process because the amendments improve consistency with federal and state law.

Substance: The amendments (i) modernize definitions to be consistent with technological and legal changes, (ii) conform 22VAC40-88-240 to federal regulations on imputation; (iii) remove an obsolete threshold for when parents may request review of child support obligations, and (iv) clarify language.

Issues: The board is unaware of any disadvantages to the public or the Commonwealth. The primary advantage to the public and the Commonwealth is that the amendments will improve the effectiveness of the child support enforcement program. The primary advantage to the agency is that improved definitions and an expanded description of services provided will improve the agency's service delivery.

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. As the result of a 2019 periodic review, the Board of Social Services (board) seeks to make technical
corrections and updates to the regulation governing the Child Support Enforcement Program.²

Background. The Department of Social Services (DSS) Child Support Enforcement Program promotes the efficient and accurate collection, accounting, and receipt of financial support for dependent children and custodial parents. The regulation governing this program, 22VAC40-880, specifies the processes and requirements for DSS Division of Child Support Enforcement (DCSE) as well as for custodial and noncustodial parents. The board seeks to update the regulation to enhance consistency with the Code of Virginia and applicable federal law and to reflect current practice. The most substantive changes are summarized below.

1. Section 240, Administrative deviation from the child support guideline. This section would be updated to reflect changes in federal law (45 CFR § 302.56(c)(1)), which now requires that if actual income information is not available, this information will be imputed based on several factors. The current language uses the federal minimum wage to establish the noncustodial parent's wage. The proposed language would specify that "imputation shall take into consideration the specific circumstances of the noncustodial parent to the extent known, including such factors as the noncustodial parent's assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the noncustodial parent, prevailing earnings level in the local community, and other relevant background factors in the case."³

2. Section 250, Periodic reviews of the child support obligation. The regulation currently allows the child support obligation to be changed in order to require the natural or adoptive parents to share the costs of unreimbursed medical or dental expenses exceeding $250 per child per year. The $250 threshold was removed by the 2014 Acts of Assembly, which instead refers to any reasonable and necessary unreimbursed medical or dental expenses.⁴ Accordingly, the board proposes to replace that limit with any reasonable and necessary unreimbursed medical or dental expenses for the child.

3. Section 320, Initiated withholding of income. This section would be repealed in its entirety based on a recommendation by the Office of the Attorney General (OAG). The language currently in this section was considered redundant, since the Code of Virginia provides for income withholding by DCSE.⁵

4. Section 430, Validity of the appeal. The proposed changes to this section also result from a recommendation by the OAG. All of the current text containing the deadlines and other requirements for an appeal to be considered valid was considered redundant, since these requirements are contained in state and federal code and also in forms received by DCSE customers.

5. Section 480, Cooperation with other state IV-D agencies. The proposed changes would clarify DSS authority to pursue direct enforcement when a parent lives in another state by removing language requiring coordination with the other state's Title IV-D agency in all such cases. DSS reports that direct enforcement is often faster in obtaining support for the custodial parent and child living in Virginia, and these orders are routine for employers.

All other changes to the proposed text, including in Sections 10, 90, and 350, appear to be merely clarifying in nature.

Estimated Benefits and Costs. Since the proposed changes all reflect current practice and would conform the regulation to state and federal law, the primary benefit would be to provide readers of the regulation with accurate and current information regarding the child support enforcement program. The proposed changes would not create new costs either to DSS or to custodial or noncustodial parents.

Businesses and Other Entities Affected. This regulation pertains to the processes used by DCSE to establish and enforce child support payments made to custodial parents of dependent children by noncustodial parents. Accordingly, the proposed changes would primarily affect DCSE and the families they serve. In addition, all of the proposed changes have already been implemented, and no entity would be newly affected by the proposed changes. The following table provided by DSS indicates the rates at which income has been imputed since federal fiscal year 2020; these imputations occur when actual income information is not available and are performed in obligation calculation worksheets.

FFY	Imputations	All OCWs	Rate
2020	243	18,369	1.32%
2021	851	17,477	4.87%
2022	208	16,265	1.28%
2023	33	19,056	0.17%

The proposed changes would indirectly affect certain employers in other states who would be contacted to collect child support payments. However, these changes have been implemented in practice because all states have adopted the 2008 Uniform Family Support Act, which allows direct income withholding.⁶ DSS also notes that direct income withholding has been found to be more cost-effective than requesting another state's assistance.⁷ The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁸ 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.⁹ Because the proposed changes would conform the regulation to federal and state law and reflect current practice, an adverse impact is not indicated.

Small Businesses¹⁰ Affected.¹¹ The proposed amendments would not create any new costs for small businesses.

Localities¹² Affected.¹³ The proposed changes would not disproportionately affect any particular locality and would not affect costs for local governments.

Projected Impact on Employment. The proposed amendments are not likely to have a substantive impact on total employment.

Effects on the Use and Value of Private Property. The proposed amendments would not affect the value of private property or real estate development costs.

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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://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1753.

³ See https://www.law.cornell.edu/cfr/text/45/302.56. The proposed changes are identical to the language in the federal regulation.

⁴ See https://lis.virginia.gov/cgi-bin/legp604.exe?ses=141&typ=bil&val=ch667.

⁵ See https://townhall.virginia.gov/l/GetFile.cfm?File=73\5858\10059\AGmemo_DSS_10059_v1.pdf.

⁶ See https://www.uniformlaws.org/committees/community-home?CommunityKey=71d40358-8ec0-49ed-a516-93fc025801fb. Virginia's version appears in § 20-88.32 et seq of the Code of Virginia.

⁷ A detailed discussion of this topic appears at Office of Child Support Services, Interstate Child Support Payment Processing (2017) at https://www.acf.hhs.gov/sites/default/files/documents/ocse/at_17_07_a.pdf.

⁸ 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.
⁹ 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. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

¹⁰ 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."

¹¹ 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.

¹² "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.
¹³ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Response to Economic Impact Analysis: The State Board of Social Services has reviewed the economic impact analysis prepared by the Department of
Planning and Budget and concurs.

Summary:

In response to a periodic review, the amendments (i) modernize definitions to be consistent with technological and legal changes, (ii) conform 22VAC40-88-240 to federal regulations on imputation, (iii) remove an obsolete threshold for when parents can request review of child support obligations, and (iv) clarify language.

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 or electronic request for child support enforcement services, which on a form that the department provides to the individual or agency applying for services and which that is signed by the applicant, including by electronic means.

"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 public assistance 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 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 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 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 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 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.

22VAC40-880-90. Case assessment.

After establishing a case record, the department shall (i) assess the case information to determine if sufficient information to establish or enforce a child support obligation is available and verified, (ii) attempt to obtain additional case information if the information is not sufficient, (iii) gather all relevant documents, and (iv) verify case information which is not verified initiate verification of unverified case information.

22VAC40-880-240. Administrative deviation from the child support guideline.

There shall be a rebuttable presumption that the amount of child support that results from the application of the guidelines is the correct amount of child support pursuant to §§ 20-108.1, 20-108.2, and 63.2-1918 of the Code of Virginia. Deviations from the guidelines shall be allowed as follows:

1. When either natural or adoptive parent is found to be voluntarily unemployed or fails to provide financial information upon request, income shall be imputed except as indicated in this subdivision. A natural or adoptive parent is determined to be voluntarily unemployed when the parent quits a job without good cause or is fired for cause.

a. The current or last available monthly income shall be used to determine the obligation if that income is representative of what the natural or adoptive parent could earn or otherwise receive.

b. If actual income is not available, use the federal minimum wage multiplied by 40 hours per week and converted to a monthly amount by multiplying the result by 4.333 imputation shall take into consideration the specific circumstances of the noncustodial parent to the extent known, including such factors as the noncustodial parent's assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the noncustodial parent, prevailing earnings level in the local community, and other relevant background factors in the case.

2. In non-TANF cases, where there is a signed, written agreement for child support, the child support obligation may be set at the agreed amount but at no less than the statutory minimum pursuant to § 20-108.2 of the Code of Virginia.

3. No other deviations from the child support guidelines may be made in establishing or adjusting administrative support orders or reviewing court orders. Should potential deviation factors exist, as stated in § 20-108.1 of the Code of Virginia, refer the case to court for additional action.

22VAC40-880-250. Periodic reviews of the child support obligation.

A. Either parent may request a review of the child support obligation once every three years. Additional requests may be made earlier by providing documentation that a material change of circumstance has occurred that potentially affects the child support obligation. Such changes shall be limited to the following:

1. An additional child needs to be added to the order;

2. A child is no longer eligible to receive current support due to a change of custody or emancipation and needs to be removed from an existing order that includes other children;

3. A provision for health care coverage needs to be added;

4. A provision ordering the natural or adoptive parents to share the costs of all any reasonable and necessary unreimbursed medical/dental medical or dental expenses exceeding $250 per for the child per year covered by the order needs to be added; or

5. A change of at least 25% can be documented by the requesting parent in the following circumstances:

a. Income of either natural or adoptive parent;

b. Amount of medical insurance; or

c. Cost of employment-related child-care costs.

B. The department shall adjust an administrative obligation when the results of the review indicate a change of at least 10% in the monthly obligation but not less than $25.

22VAC40-880-320. Initiated withholding of income. (Repealed.)

In all initial and modified administrative support orders, the department shall initiate an income withholding order unless the parties agree to a written alternative payment arrangement. The department shall initiate an income withholding order to the noncustodial parent's employer requiring the withholding of the child support obligation from the noncustodial parent's income under the following circumstances:

1. When a payment is delinquent in an amount equal to or exceeding one month's child support obligation, or

2. When either parent requests that withholding begin regardless of whether past due support is owed.

22VAC40-880-350. Distraint, seizure, and sale.

A. The department may use distraint, including booting of vehicle, seizure, and sale, against the real or personal property of a noncustodial parent when:

1. There is an arrearage of at least $1,000 for a case with a current support obligation and at least $500 for an arrearage-only case;

2. Conventional enforcement remedies have failed or are not appropriate; and

3. A lien has been filed pursuant to § 63.2-1927 of the Code of Virginia.

B. Assets that may be targeted for distraint, including booting of vehicle, seizure, and sale, are:

1. Solely owned by the noncustodial parent.

2. Co-owned by the noncustodial parent and current spouse.

3. Owned by a business in which the noncustodial parent is the sole proprietor. Assets owned by business partnerships or corporations which that are co-owned with someone other than a noncustodial parent's current spouse do not qualify for booting of vehicle, or seizure and sale.

C. The director of the division or his the director's designee shall give final approval for the use of distraint, seizure, and sale. This includes immobilizing a vehicle using vehicle boots.

D. When initiating booting, or seizure and sale of vehicle, the department shall check with the Department of Motor Vehicles for vehicles registered in the noncustodial parent's name, the address on the vehicle registration, and the name of any lien holder on the vehicle.

E. Once a lien has been filed pursuant to § 63.2-1927 of the Code of Virginia, the department shall send a notice of intent to the noncustodial parent before initiating distraint, including booting of vehicle, seizure, and sale action.

F. If the noncustodial parent contacts the department in response to the intent notice, the department shall request payment of the arrearage in full. The department shall negotiate a settlement if the noncustodial parent cannot pay the arrearage in full. The least acceptable settlement is 5.0% of the arrearage owed or $500, whichever is greater, with additional monthly payments towards toward the arrearage that will satisfy the arrearage within 10 years. The department may initiate distraint, including booting of vehicle, seizure, and sale, without further notice to the noncustodial parent if the noncustodial parent defaults on the payments as agreed.

G. The department shall send a fieri facias request to each county or city where a lien is filed and a levy is being executed if the noncustodial parent does not contact the department in response to the intent notice.

H. The department shall set a target date for seizure or booting and have the sheriff levy the property or boot the vehicle.

I. Once property has been seized or booted by the sheriff, the department must (i) reach a payment agreement with the noncustodial parent of 5.0% of the arrearage owed or $500, whichever is greater, with additional monthly payments towards toward the arrearage that will satisfy the arrearage within 10 years and release the vehicle to the owner; (ii) proceed with the sale of the vehicle pursuant to § 63.2-1933 of the Code of Virginia; or (iii) at the end of 90 days from the issuance of the writ of fieri facias, release the vehicle to the owner.

J. The department shall send a cancellation notice to the sheriff if a decision is made to terminate the seizure action before the asset is actually seized.

K. If the department sells an asset and it is a motor vehicle, the department shall notify the Department of Motor Vehicles to issue clear title to the new owner of the vehicle.

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.

To the extent not otherwise provided for in state or federal law, requests for administrative hearings and appeals shall be in writing and shall be deemed timely filed if postmarked or if received by the department within the applicable deadline.

22VAC40-880-480. Cooperation with other state IV-D agencies.

A. When the parents reside in different states, cooperation between these state agencies may be necessary.

B. The department shall provide the same services to other state IV-D cases that it provides to its own cases with the following conditions:

1. The request for services must shall be in writing; and

2. The request for services must shall list the specific services needed.

C. The department shall request in writing the services of other state IV-D agencies when one parent resides in Virginia, but the other parent resides in another state.

D. C. Other department responsibilities in providing services to other state IV-D cases and obtaining services from other state IV-D agencies are defined in 45 CFR 303.7 and §§ 63.2-1902 and Chapter 5.3 (§ 20-88.32 through 20-88.82 et seq.) of Title 20 and § 63.2-1902 of the Code of Virginia.