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

Statutory Authority: § 63.2-217 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 23, 2009.

Effective Date: January 7, 2010.

Agency Contact: Alice Burlinson, Regional Senior Assistant Attorney General, Department of Social Services, 4504 Starkey Road, Suite 103, Roanoke, VA 24018, telephone (540) 776-2778, FAX (540) 857-7841, TTY 1-800-828-1120, 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, as may be necessary or desirable to carry out the purpose of Title 63.2.

Purpose: This regulatory action creates a new regulation entitled "Passport Denial Program" to comply with federal law (42 USC § 654), which requires states to develop a procedure for certifying to the federal Office of Child Support Enforcement noncustodial parents who are eligible for the Passport Denial Program as described in 42 USC § 652(k). The regulation is necessary because the Code of Virginia contains no description of the program and consequently offers the noncustodial parent no information on the release from the program or the appeal process.

Rationale for Using Fast-Track Process: The Department of Social Services (DSS) does not believe that the proposed regulation will be controversial. DSS currently has the authority to place noncustodial parents in the Passport Denial Program and the authority, by federal regulation, to set the standards for release from the program. The new regulation will outline the provisions of the Passport Denial Program in Virginia, including how a noncustodial parent is released from the program and the appeal process, neither of which is currently provided for in statute or regulation.

Substance: This regulatory action creates a new regulation entitled "Passport Denial Program" to comply with federal law (42 USC § 654), which requires states to develop a procedure for certifying to the federal Office of Child Support Enforcement noncustodial parents who are eligible for the Passport Denial Program as described in 42 USC § 652(k). The new regulation outlines the provisions of the Passport Denial Program in Virginia, including how a noncustodial parent is released from the program and the appeal process, neither of which is currently provided for in Code or regulation.

Issues: There are numerous advantages to this regulatory action. The new regulatory section will (i) establish the provisions of the Passport Denial Program in Virginia; (ii) describe how a noncustodial parent will be released from the program and the program’s appeal process; and (iii) create statewide consistency in how the Passport Denial Program is administered in Virginia. DSS is aware of no disadvantage to this regulatory action.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Passport Denial Program for the denial, revocation, or limitation of non-custodial parents' passports where child support arrearages exceed the federally mandated threshold was first implemented in Virginia in 1997. Federal law 42 USC 654 requires states to develop a procedure certifying to the federal Office of Child Support Enforcement which non-custodial parents are eligible for the Passport Denial Program as described in 42 USC 652(k). In order to comply with the federal law, the State Board of Social Services proposes to promulgate a new regulation section to outline the provisions of the Passport Denial Program for Virginia's Department of Social Services, Division of Child Support Enforcement.

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

Estimated Economic Impact. According to the Department of Social Services, the proposal to delineate the provisions of the Passport Denial Program for Virginia's Division of Child Support Enforcement in regulation does not change any requirements or procedures in practice. Thus the proposal will have no impact other than the beneficial effect of helping inform the public of procedures such as how a non-custodial parent is released from the program and the appeal process, neither of which are currently specified in Code or regulation.

Businesses and Entities Affected. The Passport Denial Program affects non-custodial parents who have a need to travel outside the country and owe $2,500 or more in child support arrearage, as well as the recipients of child support. The Department of Social Services, Division of Child Support Enforcement has averaged between 70 to 100 child support collections per year from passport denial.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. 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 Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

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

Summary:

The Passport Denial Program for the denial, revocation, or limitation of noncustodial parents' passports where child support arrearages exceed the federally mandated threshold was first implemented in Virginia in 1997. Federal law (42 USC § 654) requires states to develop a procedure certifying to the federal Office of Child Support Enforcement which noncustodial parents are eligible for the Passport Denial Program as described in 42 USC § 652(k). In order to comply with the federal law, the State Board of Social Services proposes to promulgate a new regulation section to outline the provisions of the Passport Denial Program for Virginia's Department of Social Services, Division of Child Support Enforcement.

The regulation describes the program, a noncustodial parent's release from the program, and the appeal process. The regulation requires the Division of Child Support Enforcement to certify to the United States Department of State, through the federal Office of Child Support Enforcement, all individuals who meet the federal threshold for passport denial.

22VAC40-880-405. Passport 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. The decision of the hearing officer is final with no further appeal. The issues in subsections D and E 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 compelling evidence of a life-or-death situation of an immediate family member. Such decision whether to grant an exception shall be in the sole discretion of the IV-D agency director.