Title of Regulation: 22VAC40-880. Child Support Enforcement Program (amending 22VAC40-880-10, 22VAC40-880-20, 22VAC40-880-90, 22VAC40-880-100, 22VAC40-880-190, 22VAC40-880-240, 22VAC40-880-250, 22VAC40-880-290, 22VAC40-880-320, 22VAC40-880-350, 22VAC40-880-380, 22VAC40-880-390, 22VAC40-880-405, 22VAC40-880-410, 22VAC40-880-430, 22VAC40-880-440, 22VAC40-880-480, 22VAC40-880-560; repealing 22VAC40-880-30 through 22VAC40-880-80, 22VAC40-880-110 through 22VAC40-880-180, 22VAC40-880-200, 22VAC40-880-210, 22VAC40-880-220, 22VAC40-880-230, 22VAC40-880-260, 22VAC40-880-270, 22VAC40-880-280, 22VAC40-880-300, 22VAC40-880-310, 22VAC40-880-330, 22VAC40-880-340, 22VAC40-880-360, 22VAC40-880-370, 22VAC40-880-385, 22VAC40-880-420, 22VAC40-880-450, 22VAC40-880-460, 22VAC40-880-470, 22VAC40-880-490 through 22VAC40-880-550, 22VAC40-880-570 through 22VAC40-880-720).

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: August 30, 2013.

Agency Contact: Alice Burlinson, Senior Assistant Attorney General, Department of Social Services, 4504 Starkey Road, Suite 103, Roanoke, VA 24018, telephone (540) 776-2779, FAX (540) 776-2797, or email alice.burlinson@dss.virginia.gov.

Basis: Section 63.2-217 of the Code of Virginia authorizes the Board of Social Services to adopt such 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. Section 63.2-1901 of the Code of Virginia provides that the purpose of Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 of the Code of Virginia is to promote the efficient and accurate collection, accounting, and receipt of support for financially dependent children and their custodians and to further the effective and timely enforcement of such support while ensuring that all functions in the Department of Social Services are appropriate or necessary to comply with applicable federal law.

Purpose: The child support regulation supplements the statutory law by providing a framework to promote the efficient and accurate administration of the child support program. The efficient and accurate administration of the program is critical to the health and well-being of children on whose behalf the funds are collected and disbursed. The primary functions of the child support program include locating noncustodial parents, establishing paternity, establishing and modifying child support orders, and enforcing support obligations. This proposed action is the result of a comprehensive review of the child support regulation. The regulation has not been thoroughly reviewed since 2002. Statutory and program changes since that time required a complete review of all portions of the regulation to reflect current federal and state legislative and program requirements.

Substance: This regulatory action primarily involves removing numerous sections that are duplicative of existing state and federal law and federal regulations, updating obsolete terms with current terminology, and clarifying the remaining sections by making the regulation easier to read and understand for the user. As a result, there are no substantive changes, except for 22VAC40-880-405, Passport Denial, which is amended to provide for an appeal process to circuit court pursuant to the Setoff Debt Collection Act.

Issues: The primary advantages of this proposed regulatory action to the public are to streamline the administrative code, remove unnecessary language, correct incorrect citations, and clarify the program. These are no disadvantages to the public.

The primary advantages to the agency and the Commonwealth are to streamline and clarify the regulation and remove unnecessary provisions. There are no disadvantages to the agency or the Commonwealth.

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 amend its regulations that govern the child support enforcement program to 1) update the definitions section, 2) allow appeal of a social services hearing officer's decision on passport denial to the circuit court, 3) remove specific language that currently governs case prioritization and replace it with a general notice that the department has the authority to prioritize cases based on available information and 4) to repeal 49 of the 72 sections in these regulations.

Result of Analysis. Benefits likely outweigh costs for several proposed changes. Costs likely outweigh benefits for other proposed changes.

Estimated Economic Impact. Current regulations include several definitions for terms that are obsolete or no longer used in the body of the regulations. The Board proposes to eliminate some definitions and add others so that they better help interested parties understand the regulatory text. No affected entity is likely to incur any costs on account of the proposed changes to the definitions. To the extent that obsolete terms might confuse readers, removing these terms will benefit them.

Current regulations explicitly state that the decisions of department hearing officers for appeals of passport denial are final. Department staff reports that the Setoff Debt Collection Act now allows individuals to appeal the decision of a department hearing officer to the circuit court. Because of this, the Board proposes to remove the statement that the decision of the hearing officer is final and to insert notice that such decisions may be appealed to the circuit court. No affected entity is likely to incur any costs on account of these proposed changes. Affected entities will benefit from these changes as erroneous information is being removed and replaced with notice that affected entities have the right of appeal.

Current regulations have specific criteria for case prioritization that includes notice to clients that cases where current contact information for a absent or putative father is available will be handled before cases where such information is not known or where the department would be unlikely to be able to enforce a child support order. The Board proposes to remove all specific information on case prioritization and replace it with a general statement that the department has the authority to prioritize cases based on available information. Unless current criteria for prioritization no longer reflect current department practice, there does not appear to be much benefit in removing them from the regulations. Affected entities will be subject to increased uncertainty as to how the department will prioritize cases under the proposed regulatory language. Because, absent some information that current regulatory text is obsolete or wrong, there appears to be little benefit to removing specific criteria from these regulations and because doing so will likely increase uncertainty as to the rules and decrease understanding of those rules, costs likely outweigh benefits for these proposed changes.

The remaining substantive changes proposed by the Board consist of repealing 49 of the 72 sections in current regulations. Board staff reports that the Board proposes to repeal these sections to streamline regulations and because they were advised that Executive Order 14 (EO 14) requires them to remove language that is duplicative of federal or state code. EO 14 doesn't call for the repeal of duplicative sections but it does state that "regulations shall be designed to achieve their intended objective in the most efficient, cost-effective manner." However, it also states that "regulations shall be clearly written and easily understandable by the individuals and entities affected." To the extent that duplicative language is necessary to fully explain an area of regulation, it likely is also necessary to make sure regulations are clearly written and easily understandable.

DPB has identified one section for which repeal is proposed that now contains a rule that is in contradiction with both federal and state law. 22VAC40-130 states that "the department may not require custodial parents to pay the costs associated with the provision of child support services unless contesting genetic test results". Since this requirement was promulgated into regulation, the federal Deficit Reduction Act (2005) required states to pay certain fees for child support enforcement services and gives states several options as to how those fees are collected. In 2007, the General Assembly amended § 63.2-1904 to require that these fees be collected directly from custodial parents who meet certain criteria. These statutory changes supersede the rule in these regulations. As the regulatory language listed above is now contradictory and has a large potential to cause confusion for affected entities who read the regulations, removing it will provide the benefit of clarity. For this proposed change, benefits outweigh costs.

It appears that the remaining sections that the Board proposes to repeal are duplicative of various parts of either the Code of Virginia, of federal code or of federal regulation. Repealing these sections will make the regulations shorter and less duplicative but it may not make them more efficient or easier to understand. Having rules that are listed in both code and regulations, while duplicative, also can provide interested individuals the benefit of being able to suss out the rules no matter which source they look to. Current regulations that the Board proposes to repeal also provide a benefit to affected entities in that they consolidate rules from several places into one source and, therefore, save affected entities the time that would need to be spent to search out the various sources from which the rules are derived. These benefits will be lost if these sections of regulations are repealed and affected entities will, instead, incur time costs for having to search various sources in order to be able to find all relevant rules. Board staff reports that DCSE has various resources on their website that provide information to affected entities. In particular, the "Child Support and You" booklet provides a very good overview, in the form of frequently asked questions, to interested individuals. This booklet, however, appears to lack the specificity that is found in current regulations and, so, may not completely substitute for information that will be lost with the repeal of approximately two thirds of these regulations. Repealing regulations that are duplicative of code may provide a benefit to the Board in the future as they would no longer have to amend regulations to reflect future code changes but that benefit likely does not outweigh the costs that will be incurred if these regulations are made less informative.

Businesses and Entities Affected. These proposed regulatory changes will affect DCSE and all individuals that are served by them.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This proposed regulatory action is unlikely to have any effect on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. No small business is likely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small business is likely to incur any costs on account of this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

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 14 (10). 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 Economic Impact Analysis: The Department of Social Services appreciated the opportunity to comment on the initial economic impact analysis (EIA), and the Department of Planning and Budget's posting of a revised EIA in response. However, the Department of Social Services is not in complete concurrence with the revised EIA and looks forward to receiving public comment on the proposed regulation.

Summary:

The proposed amendments (i) update terminology, (ii) allow appeal of a social services hearing officer's decision on passport denial to the circuit court, (iii) remove specific language that currently governs case prioritization and replace it with a general notice that the department has the authority to prioritize cases based on available information, (iv) update language to reflect statutory changes, and (v) repeal numerous sections that are duplicative of state and federal law and federal regulations.

Part I
Definitions

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:

"Absent parent" means a responsible person as defined in § 63.1-250 of the Code of Virginia who is required under law to support a dependent child or the dependent child and the child's caretaker.

"Administrative" means noncourt ordered, legally enforceable actions the department may take to establish, modify, collect, distribute or enforce a child support obligation.

"AFDC" means Aid to Families with Dependent Children which is established under Title IV-A of the Social Security Act. This is a category of financial assistance paid on behalf of children who are deprived of one or both of their parents by reason of death, disability, or continued absence (including desertion) from the home. See also "TANF."

"AFDC/FC" means Aid to Families with Dependent Children or Foster Care which 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 AFDC and who are in the custody of local social services agencies.

"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.

"Arrears" or "arrearage" "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.

"Assignment" means any assignment of rights to child, spousal, or medical support or any assignment of rights to medical support and to payments for medical care from any third party.

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

"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 federal requirement for the establishment and adjustment/modification of financial child support and is comprised of §§ 20-108.1 and method for calculating a child support obligation as set out in § 20-108.2 of the Code of Virginia.

"Custodial parent" or "obligee" means (i) the natural or adoptive parent with whom the child resides, (ii) a stepparent or other person who has physical custody of the child and with whom the child resides, or (iii) a social service agency which has legal custody of a child in foster care.

"Debt" means the total unpaid support obligation established by court order, administrative order, or payment of public assistance that is owed by an obligor to either the custodial parent/obligee, to the Commonwealth, or to the obligor's dependents.

"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 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 as described in § 63.2-1904 of the Code of Virginia.

"Erroneous payment" means a payment sent to the custodial parent/obligee for which no funds were received by the department to be paid to that applicant/recipient.

"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.

"Foreclosure" means a judicial procedure to enforce debts involving forced judicial sale of the real property of a debtor.

"Genetic testing" means scientifically reliable genetic tests, including blood tests, as described in §§ 20-49.1, 20-49.3, 20-49.4, 20-49.8, and 63.1-250.1:2 of the Code of Virginia.

"Good cause" means, as it pertains to TANF and AFDC/FC federal foster care applicants and recipients, an agency determination that the individual does not have is not required to cooperate with Division of Child Support Enforcement the division in its efforts to collect child support.

"Health insurance coverage" means any plan providing hospital, medical, or surgical care coverage for dependent children provided such coverage is available and can be obtained by a parent at a reasonable cost.

"Hearings officer" means a disinterested person designated by the department to hold appeal hearings and render appeal decisions on administrative actions an impartial person charged by the Commissioner of Social Services to hear appeals and decide if an agency followed its policy and procedures.

"Interest" means charges accrued on past due child support at the prevailing judgment rate.

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

"Judicial" means an action initiated through a court.

"Local social service agency" means one of Virginia's locally administered social service or welfare departments which operate the TANF and AFDC/FC programs and other programs offered by the department.

"Location" "Locate services" means obtaining information which 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.

"Location only services" means that certain entities such as courts and other state child support enforcement agencies can receive only locate services from the department.

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

"Mistake of fact" means an error in the identity of the obligor or in the amount of support owed.

"Noncustodial parent" means a responsible person, as defined in § 63.1-250 of the Code of Virginia, who is obligated under Virginia law for support of a dependent child or child's caretaker.

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

"Obligee" means an individual to whom a duty of support is or is alleged to be owed or in whose favor a support order has been issued or a judgment determining parentage has been rendered.

"Obligor" means an individual, or the estate of a decedent, who owes or is alleged to owe a duty of support, is alleged but has not been adjudicated to be a parent of a child, or is liable under a court 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 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 hears a case and the court renders a final decision.

"Public assistance" means payments for TANF, or AFDC/FC, or Medicaid.

"Putative father" means an alleged father; a person named as alleged to be the father of a child born out-of-wedlock but whose paternity has not been established.

"Reasonable cost" means, as it pertains to health insurance coverage, available through employers, unions, or other groups without regard to service delivery mechanism.

"Recipient" means a person who or agency that has applied for or is in receipt of 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.

"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.

"Subpoena" means a document commanding a person to appear at a time and place to give testimony upon a certain matter.

"Subpoena duces tecum" means a document compelling production of specific materials relevant to facts in a pending judicial proceeding.

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

"Supplemental Security Income" means a program administered by the federal government which guarantees a minimum income to persons who meet the requirement of aged, blind, or disabled.

"Support order" means a judgment, decree, or order, whether temporary, final, or subject to modification, issued by a court or an administrative agency of competent jurisdiction, for the support and maintenance of a child, including a child who has attained the age of majority under the law of the issuing state, or a child and the parent with whom the child is living, which provides for monetary support, health care, arrearages, or reimbursement, and which may include related costs and fees, interest and penalties, income withholding, attorneys' fees, and other relief.

"TANF" means Temporary Assistance for Needy Families, formerly known as AFDC.

Part II
General Information

Article 1
Services

22VAC40-880-20. Services provided.

A. Child support enforcement services shall be provided as a group to AFDC, AFDC/FC, and non-AFDC clients to all TANF and non-TANF customers. Courts and other state IV-D agencies may apply for location-only services. Medicaid only Medicaid-only clients shall be provided services to establish or enforce medical support and may, at their request, receive full services health care orders.

B. Child support enforcement services shall include the following services which may involve administrative or court action:

1. Location of absent parents, their employers, or their sources of income;

2. Establishment of paternity;

3. Establishment or modification of child support obligations, including the responsibility to provide health insurance coverage;

4. Enforcement of child support and medical support obligations, both administratively and judicially determined; and

5. Collection and disbursement of child support payments, regardless of whether the obligation is legally established.

B. The department shall provide locate services (i) whenever the location of parents or their sources of income or assets is needed in order to establish parentage, establish a child support order, or enforce a child support obligation and (ii) when there is sufficient identifying information available to the department to access locate sources.

22VAC40-880-30. Eligibility for services. (Repealed.)

A. Individuals who apply for TANF, AFDC/FC, or Medicaid only assistance are automatically eligible for child support services.

1. TANF and AFDC/FC applicants and recipients must subrogate all rights to support to IV-D, which includes all child support services as a condition of eligibility for public assistance unless a determination of good cause has been made for the IV-D agency not to pursue child support services.

2. Medicaid applicants/recipients must accept medical support and paternity establishment services as a condition of eligibility for Medicaid unless the local social services agency determines that good cause exists for not accepting these services.

3. The department shall close a child support case in which the local social service agency has determined that good cause exists for not cooperating with the department in its pursuit of child support.

4. The department shall continue to provide child support services to an individual whose TANF, AFDC/FC, or Medicaid case closes.

a. The department shall provide these services without requiring a formal application.

b. The department shall continue to provide these services until the applicant/recipient states in writing that the services are no longer wanted. This request will result in closure of the child support case unless this action is contrary to state or federal law, or outstanding arrears are owed to the Commonwealth for TANF previously paid.

B. An individual who is not receiving TANF, AFDC/FC, or Medicaid assistance must make an application for child support services as a condition of eligibility for those services with the exception that an application is not required for cases transferred from the courts to the department on or after October 1, 1985. For such cases the payee shall be deemed as having executed an authorization to seek or enforce a support obligation with the department unless the payee specifically indicates that the department's services are not desired.

1. The child for whom child support is being requested must have an order in place for his support, or be under 18 years of age.

2. If the child for whom support is being sought is under 18 years of age, the applicant must be the parent or physical guardian of the child.

C. Individuals residing outside of Virginia shall be eligible for child support services:

1. Upon a request for services from the IV-D agency in the state in which they reside; or

2. Upon receipt of an application from nonresident individuals and accompanying documentation.

D. Locate-only services.

1. Custodial parents may apply for locate-only services.

2. Noncustodial parents may apply for locate-only services for custody and visitation purposes only.

3. Courts and other state IV-D agencies are eligible for child support enforcement services or for location only services.

Article 2
Department as Payee

22VAC40-880-40. Assignment of rights. (Repealed.)

A. Assignment of child support rights to the Commonwealth is automatic by operation of law with receipt of AFDC and AFDC/FC assistance and continues after the public assistance case closes unless the client requests in writing that the services be terminated.

B. Assignment of medical support rights to the Commonwealth is automatic by operation of law with receipt of Medicaid only assistance and continues after the public assistance case closes unless the client requests in writing that the service be terminated.

22VAC40-880-50. Authorization to seek or enforce a child support obligation. (Repealed.)

Persons receiving child support services shall give the department written authorization to seek or enforce support on behalf of the child or spouse and child.

22VAC40-880-60. Special conditions regarding receipt of TANF or AFDC/FC. (Repealed.)

Pursuant to § 63.1-251 of the Code of Virginia, receipt of TANF or AFDC/FC assistance creates a debt to the Commonwealth.

Article 3
Application

22VAC40-880-70. Application fees. (Repealed.)

The application fee for child support services is $1.00 for nonpublic assistance clients. The department shall pay this fee on behalf of such applicants for child support enforcement services.

22VAC40-880-80. Application process. (Repealed.)

A. The department shall make applications accessible to the public and shall include with each application information describing child support enforcement services and the applicant's rights and responsibilities.

1. The department shall provide an application on the day an individual requests the application when the request is made in person.

2. The department shall send applications within five working days of the date a written or telephone request for an application is received.

B. The department shall provide TANF, AFDC/FC, and Medicaid recipients with the above information, and the rights and responsibilities of applicants, within five working days of receiving the referral from a local social service agency.

C. The department shall, within two calendar days of the date of application from a nonpublic assistance recipient or from the date a referral of a public assistance recipient is received, establish a case record, and within 20 calendar days, obtain the information needed to locate the noncustodial parent, initiate verification of information, if appropriate, and gather all relevant facts and documents.

Article 4
Case Assessment and Prioritization

22VAC40-880-90. Case assessment.

The 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 and, (ii) attempt to obtain additional case information if the information is not sufficient and, (iii) gather all relevant documents, and (iv) verify case information which is not verified.

22VAC40-880-100. Case prioritization.

A. The department shall give priority to cases which contain any of the following on the absent parent or putative father:

1. Verified, current, residential address; or

2. Current employer; or

3. Last known residential address or last known employer if the information is less than three years old; or

4. Social security number and date of birth.

B. The department shall give low priority but shall review periodically cases in which:

1. There is not adequate identifying or other information to meet requirements for submittal for location, or

2. The absent parent receives supplemental security income or public assistance.

The department shall have the authority to prioritize cases based on available information.

Article 5
Service of Process

22VAC40-880-110. Service of process. (Repealed.)

Service is necessary when child support obligations are established either administratively or through court action and, in some instances, when actions to enforce the obligation are taken. The department shall use diligent efforts to serve process as allowed by law.

Article 6
Administrative Summons

22VAC40-880-120. Administrative summons. (Repealed.)

The department may summons obligees, obligors, and parents to appear in the division's office to provide essential information necessary for the collection of child support.

The department may request the Department of Motor Vehicles to suspend or refuse to renew the driver's license of a party who fails to comply with a subpoena, summons, warrant, or writ of capias relating to paternity or child support proceedings pursuant to § 46.2-320 of the Code of Virginia.

Article 7
Program Costs

22VAC40-880-130. Costs associated with the provision of child support services. (Repealed.)

A. The department may not require custodial parents to pay the costs associated with the provision of child support services unless contesting genetic test results.

B. The department shall assess and recover fees from the parties according to the rules set out in Part XII (22VAC40-880-680 et seq.) of this chapter.

Part III
Location

22VAC40-880-140. Location services. (Repealed.)

The department shall provide location services (i) whenever the location of absent parents or their employers is needed in order to establish or enforce a child support obligation and (ii) when there is sufficient identifying information available to the department to access location sources.

22VAC40-880-150. Location sources. (Repealed.)

Whenever location services are provided, the department shall access all necessary locate sources. Locate sources include but are not limited to:

1. Local public and private sources;

2. State Parent Locator Services;

3. Electronic Parent Locator Network;

4. Central Interstate Registry;

5. Federal Parent Locator Service; and

6. Parents, friends, and other personal sources.

22VAC40-880-160. Location time requirements. (Repealed.)

A. The department shall access all appropriate location sources within 75 calendar days of receipt of the application for child support services or the referral of a public assistance recipient if the department determines that such services are needed and quarterly thereafter if the location attempts are unsuccessful.

B. The department shall review at least quarterly those cases in which previous attempts to locate absent parents or sources of income or assets have failed, but adequate identifying and other information exists to meet requirements for submittal for location.

C. The department shall provide location services immediately if new information is received which may aid in location.

D. The department shall utilize the Federal Parent Locator Service at least annually when other location attempts have failed with the exception of cases referred through the central registry.

E. When another state requests location services from the department, the department shall follow the time requirements described in 45 CFR § 303.7.

Part IV
Establishing Child Support Obligations

Article 1
Paternity Establishment

22VAC40-880-170. Establishing paternity. (Repealed.)

In order for the department to establish a child support obligation and to enforce and collect child support payments from a putative father, the father must be determined to be legally responsible for the support of the child. In situations in which a putative father has not been legally determined to be the father of the child, paternity must be established before a child support obligation can be administratively ordered or court ordered. The department pursues paternity establishment in accordance with §§ 20-49.1 through 20-49.9 and 63.1-250.1:2 of the Code of Virginia.

1. The department shall obtain a sworn statement for each child from the mother acknowledging the paternity of the child or children for whom child support is sought.

2. Based on this sworn statement, the department shall attempt to locate the putative father, if necessary, according to the locate time requirements described in Part III (22VAC40-880-140 et seq.) of this chapter.

3. Once the putative father is located, the department shall contact him to determine if he is willing to sign a sworn statement voluntarily acknowledging paternity or to voluntarily submit to genetic testing to determine paternity.

a. The department shall advise the putative father verbally and in writing of his rights and responsibilities regarding child support prior to obtaining a sworn statement of paternity.

b. A putative father who signs a sworn statement of paternity along with an acknowledgement from the mother or who, through genetic testing, is affirmed by at least a 98% probability to be the father of the child is responsible for the financial support of the child or children.

4. When the putative father does not sign a sworn statement of paternity or does not voluntarily submit to genetic testing, the department shall order the putative father to submit to genetic testing. If the putative father refuses to comply with the genetic testing order, the department shall petition the court for a paternity determination when there is sufficient evidence to do so.

5. Within 90 calendar days of locating the putative father, the department shall:

a. Obtain a sworn acknowledgement of paternity or arrange for voluntary or mandatory genetic testing or the purpose of establishing paternity, or

b. File a petition with the court for paternity establishment.

6. In any case where more than one putative father has been identified, the department shall pursue paternity for all putative fathers.

22VAC40-880-180. Establishing paternity in interstate cases. (Repealed.)

The department shall establish, if possible, the paternity of children who do not reside in Virginia when the putative father resides in Virginia and a request for such services is received from another state IV-D agency.

Article 2
Administrative Support Orders

22VAC40-880-190. Administrative establishment of a child support obligation.

A. The department has statutory authority to establish child support obligations through noncourt ordered, legally enforceable child support orders. These administrative orders have the same force and effect as a support order established by the court. These administrative orders shall contain the information listed in § 63.1-252.1 of the Code of Virginia.

B. The amount of child support that is owed and the frequency with which it is paid must be established before the payment of child support can be enforced.

C. The administrative order shall be called the administrative support order.

D. A. The department shall use the administrative support order to establish a temporary child support obligation when judicial determinations of support are pending due to custody and visitation issues.

E. B. Within 90 calendar days of locating the putative father or noncustodial parent, and except as shown in subsection H D of this section, the department shall either establish an administrative child support order or petition the court to serve and complete service of process on the putative father or noncustodial parent to establish a child support obligation, or shall diligently attempt to complete the service of process necessary for an obligation to be ordered.

F. C. When a court dismisses a petition for a support order without prejudice or an administrative hearings officer overrules an administrative support action, the department shall examine the reasons for the dismissal or overruling to determine when or if further action is appropriate.

G. The child support obligation is established when an administrative support order has been served and the 10-day appeal period for the administrative order has elapsed.

H. A child support obligation shall not be established when the obligor is receiving Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), or General Relief (GR) benefits.

22VAC40-880-200. Determining the amount of the child support obligation. (Repealed.)

A. The administrative child support order shall include information and provisions as set forth in § 63.2-1916 of the Code of Virginia.

B. Verification of financial information and use of financial statements.

1. The department shall use financial statements obtained from the legally responsible parents to determine the amount of the child support obligation and shall verify financial information used to determine child support obligations.

2. The legally responsible parents shall complete financial statements upon demand by the department. Such responsible parties shall certify under penalty of perjury the correctness of the statement.

3. If the custodial parent is a recipient of public assistance, the department shall use the information obtained through the TANF or AFDC/FC eligibility process to meet the financial statement and financial information verification requirements.

4. The department shall define the type of financial information which shall be required based on § 63.2-1919 of the Code of Virginia which is incorporated by reference. The department has the authority to request verification of financial information for the purpose of establishing or modifying a child support obligation. The department will not provide credit for self-employment tax paid if the most recent federal tax return and the Schedule H attachment are not provided by the party upon request.

5. When both parents are noncustodial, each parent must provide financial information. In this situation, the person with whom the child resides shall not be required to complete a financial statement.

C. The department shall determine the amount to be paid monthly toward past due support when the obligation is administratively ordered and when a court ordered obligation for support does not specify the amount to be paid toward the past due support. The monthly payment for past due support will be $65 or 25% of the current obligation, whichever is greater, and shall not exceed the amount allowed under the federal Consumer Credit Protection Act.

22VAC40-880-210. Service of the administrative support order. (Repealed.)

The department must legally serve the administrative support order on the obligor in order to have an established obligation. The department shall also provide a copy of this document to the obligee in no less than 14 days from date of service on the obligor.

22VAC40-880-220. Medical support. (Repealed.)

A. The department shall have the authority to issue orders containing provisions for medical support services for the dependent children of obligors if the coverage is available at reasonable cost as defined in § 63.1-250.1 of the Code of Virginia.

B. The obligor shall provide information regarding the availability of or changes in health insurance coverage for his or her dependent children.

C. The obligor shall provide health insurance coverage for the child or children if health insurance is available through his or her employment. The department may enter an administrative order or seek a judicial order requiring the obligor's employer to enroll the dependent children in a group health insurance plan or other similar plan providing health insurance coverage offered by the employer as provided in § 20-79.3 of the Code of Virginia.

22VAC40-880-230. Child support guideline. (Repealed.)

A. The department shall use the child support guideline, which includes the Schedule of Monthly Basic Child Support Obligations (§ 20-108.2 B of the Code of Virginia) and procedures in §§ 20-108.1 and 20-108.2 of the Code of Virginia in calculating obligation amounts except for obligations determined as set forth in 22VAC40-880-240 for which the presumptive amount will only be used as the initial support calculation.

B. The department may not include benefits from public assistance programs as defined in § 63.1-87 of the Code of Virginia, Supplemental Security Income, or child support received in calculating the combined gross income.

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 63.1-264.2 63.2-1918 of the Code of Virginia. Deviations from the guideline shall be allowed as follows:

1. A deviation from the gross income of either parent shall be allowed when a parent has other dependent children residing with him or has child support orders for other dependent children for which either parent is legally and financially responsible and who are not included in a child support order.

a. If there is an order in place for such child, the actual amount of the order is allowed.

b. If there is no order in place (i.e., the child lives in the home of either parent), a deviation is allowed equal to the amount of support found in the Schedule of Basic Monthly Child Support Obligations (§ 20-108.2 B of the Code of Virginia) for the income of the parent receiving the deviation and the number of children for whom a deviation is allowable as described above.

2. 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 below. A natural or adoptive parent is determined to be voluntarily unemployed when he 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.

c. Where parents have never been employed, income shall not be imputed.

3. 2. 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 of a special circumstance 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 covered by added to the order;

2. A child needs to be removed when another child remains covered by the order; 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 unreimbursed medical/dental expenses exceeding $250 per 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 party parent in the following circumstances:

a. Income of either party natural or adoptive parent;

b. Amount of medical insurance; or

c. Cost of dependent care. 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.

Part V
Enforcing Child Support Obligations

Article 1
General

22VAC40-880-260. Enforcement. (Repealed.)

A. The department shall, whenever possible, administratively enforce compliance with established child support orders including both administrative and court orders.

B. The department shall enforce child support obligations at the time the administrative support order is initially entered through the use of an income withholding order.

C. The department shall enforce child support obligations when the obligation becomes delinquent through the use of one or more of the following administrative enforcement remedies:

1. Income withholding order;

2. Liens;

3. Orders to withhold and deliver;

4. Foreclosure;

5. Distraint, seizure, and sale;

6. Unemployment compensation benefits intercept;

7. Bonds, securities, and guarantees;

8. Tax intercept;

9. Internal Revenue Service full collection service;

10. Credit bureau reporting;

11. Enforcement remedies for federal employees;

12. Occupational and professional license suspensions;

13. Driver's license suspension;

14. Recreational or sporting license suspensions; or

15. Financial Institution Data Match.

D. The department shall attempt to enforce current and delinquent child support payments through administrative means before petitioning the court for enforcement action unless it determines that court action is more appropriate.

E. The department shall take appropriate enforcement action, unless service of process is necessary, within 30 calendar days of identifying a delinquency or of locating a noncustodial parent, whichever occurs later.

F. The department shall take appropriate enforcement action if service of process is necessary within 60 calendar days of identifying a delinquency or of locating a noncustodial parent, whichever occurs later.

G. The department shall take appropriate enforcement action within the above timeframes to enforce health insurance coverage.

H. When an enforcement action is unsuccessful, the department shall examine the reason or reasons and determine when it would be appropriate to take an enforcement action in the future. The department shall take further enforcement action at a time and in a manner determined appropriate by department staff.

I. The department shall use high-volume administrative enforcement, to the same extent as used for intrastate cases, in response to a request made by another state to enforce support orders, and shall promptly report the results of such enforcement procedures to the requesting state, pursuant to 42 USC § 666(a)(14).

22VAC40-880-270. Withholding of income. (Repealed.)

A. The department shall issue an income withholding order against all income except income exempted under federal and state law.

B. The department shall serve the income withholding order on the employer.

C. The department shall release the income withholding order only if one of the following occurs:

1. The current support order terminates, and any past due support is paid in full;

2. Only past due support is owed and it is paid in full;

3. The whereabouts of the child or child and custodial parent become unknown;

4. Bankruptcy laws require release; or

5. A nonpublic assistance custodial parent or former public assistance custodial parent no longer wants the services of the department and no debt is owed to the Commonwealth.

Article 2
Income Withholding Enforcement Remedies

22VAC40-880-280. Withholding of income; administrative support orders. (Repealed.)

The administrative support order shall include a requirement for immediate withholding of the child support obligation from the noncustodial parent's income unless the parties agree in writing to an alternate payment arrangement, or good cause is determined by the department for not implementing an immediate withholding, pursuant to 42 USC § 666(a)(8)(B)(i) and § 63.1-258.1 of the Code of Virginia.

22VAC40-880-290. Determining the amount to be applied toward past due support.

The department shall collect any court ordered court-ordered amount to be paid toward past due support. If the order does not specify an amount to be paid toward past due support, the department shall determine the amount to be paid monthly toward past due support. The monthly payment for past due support will be $65 or 25% of the current or former obligation or $65, whichever is greater. For disposable earnings, the total amount withheld shall not exceed the amount allowed under the federal Consumer Credit Protection Act. (See § 34-29 of the Code of Virginia.)

22VAC40-880-300. Alternative payment arrangement. (Repealed.)

The custodial parent and noncustodial parent may mutually choose an alternative payment arrangement at the time the obligation is established as an alternate to immediate withholding of income for payment of child support.

Article 3
Other Enforcement Remedies

22VAC40-880-310. Enforcement remedies. (Repealed.)

The department shall have the authority to administratively collect delinquent child support payments from absent parents. These are called enforcement remedies.

22VAC40-880-320. Initiated withholding of income.

In all initial and modified administrative support orders, the department shall initiate an income withholding order unless the parties agree to an alternative payment arrangement. The department shall send initiate an income withholding order to an the noncustodial parent's employer requiring the deduction 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 or support payments are in arrears.

22VAC40-880-330. Liens. (Repealed.)

A. A lien arises by operation of law for overdue support pursuant to 42 USC § 666(a)(4)(A) and the department may file a lien on the real or personal property of the noncustodial parent when the division has:

1. Issued an administrative support order;

2. Received a Virginia court order; or

3. Received a support order from a jurisdiction outside of Virginia.

B. Any lien of the department shall have the priority of a secured creditor.

C. Any lien of the department shall be subordinate to the lien of any prior mortgagee.

D. Any lien shall be released when the past due support has been paid in full.

22VAC40-880-340. Orders to withhold and deliver. (Repealed.)

A. The department may use orders to withhold and deliver to collect assets such as bank accounts, trust funds, stocks, bonds, and other types of financial holdings when past due support is owed.

B. The department may use high-volume administrative enforcement (AEI) in response to a request made by another state to enforce support orders by using orders to withhold and deliver to collect assets such as bank accounts, trust funds, stocks, bonds, and other types of financial holdings when past due support is owed. The department shall promptly report the results of such enforcement procedure to the requesting state.

C. The department shall release the order to withhold when the order cannot be served on the noncustodial parent.

D. The department shall release the order to deliver when:

1. The past due support is paid, or

2. The noncustodial parent makes satisfactory alternate arrangements for paying the full amount of the past due support.

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 are arrears is an arrearage of at least $1,000 for a case with a current support obligation and at least $500 for an arrears-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 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 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 director of the Division of Child Support Enforcement division or his 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. If there is reason to believe that the noncustodial parent will leave town or hide the asset, the asset can be seized without sending the notice and with proper documentation.

F. If the noncustodial parent contacts the department in response to the intent notice, the department shall request payment of arrears the arrearage in full. The department shall negotiate a settlement if the noncustodial parent cannot pay the arrears in full. The least acceptable settlement is 5.0% of the arrearage owed or $500, whichever is greater, with additional monthly payments towards the arrears 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 the arrears 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.

22VAC40-880-360. Unemployment compensation benefits intercept. (Repealed.)

The department may intercept unemployment compensation benefits for support within the limits set by the federal Consumer Credit Protection Act pursuant to 15 USC § 1673(b) and § 34-29 of the Code of Virginia.

22VAC40-880-370. Bonds, securities, and guarantees. (Repealed.)

The department shall use administrative bonds, securities, and guarantees as an enforcement action only if the amount of the delinquency exceeds $1,000 and:

1. After all other enforcement actions fail; or

2. When no other enforcement actions are feasible.

22VAC40-880-380. Tax intercept.

A. The department shall intercept state and federal income tax refunds due to obligors that owe support arrearages.

B. The Virginia Department of Taxation prescribes rules for interception of state tax refunds and notification to the person whose state tax refund is being intercepted.

1. The department may retain moneys up to the amount owed on the due date of the finalization notice from the department to the Virginia Department of Taxation.

2. The department may intercept state tax refunds when the delinquent amount arrearage equals at least $25.

3. State tax refund intercepts shall be disbursed in the same manner as support payments. Federal tax intercepts shall be disbursed as required pursuant to 42 USC § 664.

4. The department may not disburse the intercepted state taxes if the noncustodial parent has appealed the intercept action and the appeal is pending.

5. The department shall issue a refund to the noncustodial parent when one of the following occurs:

a. The intercept was made in error;

b. The noncustodial parent pays the delinquent amount arrearage in full after the Department of Taxation has been notified of the delinquency arrearage and before the tax refund is intercepted; or

c. The total amount intercepted is more than the amount of the delinquency arrearage owed at the time that notification of the tax intercept is received from the Department of Taxation, and the noncustodial parent does not agree to allow the department to apply the excess funds to any delinquency arrearage that accrued after certification for tax intercept.

C. The Internal Revenue Service has prescribed rules regarding the interception of federal tax refunds. 45 CFR 302.60 and 303.72 are incorporated by reference in this chapter.

22VAC40-880-385. License suspension. (Repealed.)

A. The department may petition the court to suspend any license, certificate, registration or other authorization to engage in a business, trade, profession or occupation pursuant to 42 USC § 666(a)(16) and § 63.1-263.1 of the Code of Virginia.

B. The department may request the Department of Motor Vehicles to suspend or refuse to renew the driver's license of an obligor pursuant to 42 USC § 666(a)(16) and § 46.2-320 of the Code of Virginia.

C. The department may petition the court to suspend any recreation or sporting activity license issued to an obligor pursuant to 42 USC § 666(a)(16) and § 63.1-263.1 of the Code of Virginia.

Article 4
Federal Enforcement Remedies

22VAC40-880-390. Additional remedies.

In addition to state administrative enforcement remedies, the department shall use utilize available federal enforcement remedies to enforce child support obligations and collect accumulated support arrearages.

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. 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 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.

22VAC40-880-410. Enforcement remedies to be used against federal employees.

A. The department may apply its enforcement remedies against United States military and civilian active and retired personnel current and retired employees of the United States.

B. When enforcement under Virginia law is unsuccessful, the department may use involuntary allotments to enforce support obligations of certain federal employees, including active military personnel and public health services employees.

1. For the purposes of these enforcement actions, delinquency shall be defined as failure of the noncustodial parent to make support payments equal to the amount due for two months.

2. The amount of money withheld from these wages shall be up to the amount allowed under the federal Consumer Credit Protection Act pursuant to 15 USC § 1673(b) and § 34-29 of the Code of Virginia.

Part VI
Administrative Appeals

22VAC40-880-420. Appeal rules. (Repealed.)

Actions to establish and enforce child support obligations administratively may be appealed according to the following rules.

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 working days of service 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 the notice of the proposed action on the appellant.

B. The only exception to this shall be For appeals of federal and state tax intercepts. The, the appellant shall have 30 days to note an appeal a tax intercept notice to the department.

22VAC40-880-440. General rules for appeals.

A. The appeal shall be heard by a hearing officer.

1. The hearing officer may hold the hearing by telephone or in the district office where the custodial parent or his or her case resides unless another location is requested by the appellant.

2. The parties parents may be represented at the hearing by legal counsel.

3. The appellant may withdraw the appeal at any time. The department may withdraw its actions at any time, such as when a case review reveals new information or that prior action taken was incorrect.

4. The hearing officer shall accept a request for a continuance from the noncustodial parent or the custodial parent if:

a. The request is made in writing at least five business days prior to the hearing, and

b. The request is for not more than a 10-day continuance, except when the facts presented justify an exception.

B. The hearing officer shall notify the parties parents of the date and time of the hearing in accordance with § 63.1-267.1 63.2-1942 of the Code of Virginia.

C. Prior to the hearing, the hearing officer shall send the parties parents a copy of the case summary prepared by the district office.

D. The hearing officer shall serve the appellant and mail the other party a copy of the hearing officer's decision either at the time of the hearing or no later than 45 days from the date the appeal request was first received by the department.

E. The hearing officer shall notify the parties in writing by certified mail if the appeal is determined to be abandoned because the appellant did not appear at the hearing.

F. Either party may appeal the hearing officer's decision as follows:

1. For cases under the Setoff Debt Collection Act (§ 58.1-520 et seq. of the Code of Virginia), to the circuit court on the record within 30 days of the date of the decision.

2. For all other cases, to the juvenile and domestic relations district court de novo within 10 calendar days of receipt of the decision.

22VAC40-880-450. Appeal of enforcement actions. (Repealed.)

A. The absent parent may appeal the actions of the department to enforce a support obligation only under the following conditions:

1. For withholding of earnings; liens; distraint, seizure, and sale; and unemployment compensation benefits intercept the appeal shall be based only on a mistake of fact;

2. For orders to withhold and deliver the appeal shall be based only on (i) a mistake of fact or (ii) whether the funds to be withheld are exempt by law from garnishment; and

3. Federal and state tax intercepts may be appealed based only on (i) a mistake of fact or (ii) the validity of the claim.

B. A mistake of fact is based on:

1. An error in the identity of the absent parent, or

2. An error in the amount of current support or past due support.

22VAC40-880-460. Appeal of federal enforcement remedies. (Repealed.)

Actions to enforce child support payments through federal enforcement remedies may not be appealed through the Department of Social Services. Absent parents shall appeal these actions to the federal agency which took the action.

Part VII
Interstate Responsibilities

22VAC40-880-470. Long-arm authority. (Repealed.)

The department shall extend its authority whenever possible to establish and enforce child support obligations on out-of-state absent parents as provided in § 63.1-250.1 of the Code of Virginia.

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

A. When the noncustodial parent and the custodial parent 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 be in writing; and

2. The request for services must 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. 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 §§ 63.1-274.6 63.2-1902 and 20-88.32 through 20-88.82 of the Code of Virginia.

22VAC40-880-490. Central registry. (Repealed.)

A. The department shall manage the flow of interstate correspondence through a Central Registry located in the division's central office. Correspondence will be handled according to the rules established by the state and federal regulations cited by reference above.

B. The Central Registry shall act as the Uniform Interstate Family Support Act State Information Agent required by §§ 63.1-274.6 and 20-88.32 through 20-88.82 of the Code of Virginia.

Part VIII
Confidentiality and Exchange of Information

Article 1
Information Collected by the Department

22VAC40-880-500. Information collected from state, county, and city offices. (Repealed.)

A. The department may request and shall receive from state, county, city, and local agencies within and without the Commonwealth information about noncustodial parents.

B. The department shall use this information to locate and collect child support payments from noncustodial parents.

22VAC40-880-510. Subpoena of financial information. (Repealed.)

The department may subpoena financial records or other information relating to the obligor and obligee from a person, firm, corporation, association, political subdivision, or state agency to establish or enforce the collection of child support. A civil penalty not to exceed $1,000 may be assessed for failure to respond to a subpoena, pursuant to 42 USC § 666 (c)(1)(B) and § 63.1-250.1 of the Code of Virginia.

Article 2
Information Released by the Department

22VAC40-880-520. Agencies to whom the department releases information. (Repealed.)

A. The department may release information on the parents as set forth in 45 CFR 303.21 to courts and other state child support agencies for the purpose of establishing or enforcing a child support order.

B. The department may release information directly bearing on the identity and whereabouts of a noncustodial parent or putative father to public officials and agencies seeking to locate obligors for the purpose of enforcing child support obligations including but not limited to the Attorney General, law-enforcement agencies, prosecuting attorneys, courts of competent jurisdiction and agencies in other states engaged in the enforcement of support of children and their caretakers.

C. The department shall provide information on the noncustodial or custodial parent to an entity other than the ones listed above with the written permission of that parent. However, the department may not release information regarding the noncustodial parent's debt to private collection agencies, if it deems such disclosure inappropriate.

D. The department shall release information concerning parents' medical support payments and medical support orders to the Department of Medical Assistance Services.

22VAC40-880-530. Release of information to and from the Internal Revenue Service. (Repealed.)

A. The department may not release information provided by the Internal Revenue Service to anyone outside of the department with the following exceptions:

1. The department may release the information to local social service agencies and the courts, but the source of the information may not be released.

2. The department may release information provided by the Internal Revenue Service if that information is verified by a source independent of the IRS.

B. The division director, or a designee, may release information on absent parents to the Internal Revenue Service.

22VAC40-880-540. Request for information from the general public. (Repealed.)

The department shall answer requests for information from the general public within five working days of receipt of the request or less as federal and state law may require.

22VAC40-880-550. Requests for information from parents. (Repealed.)

A. The department shall release, upon request from either parent, copies of court orders, administrative orders, enforcement actions, fiscal records, and financial information used to calculate the obligation. However, when a protective order has been issued or there is a risk of physical or emotional harm from the other party, information other than the name of the party at risk shall not be released.

B. The department shall release to either parent personal information contained in the case record which pertains to the individual requesting the information with one exception. The department may not release medical or psychological information for which the physician providing the information has stated the individual should not have access.

C. Either parent may correct, challenge, or explain the personal information which pertains to that individual and may challenge the financial information of the other parent.

D. The department shall charge a fee for copying case record information. The department shall base the fee on the cost of copying the material.

22VAC40-880-560. Release of health insurance information.

The department shall provide specific third party liability information to the Department of Medical Assistance Services in order for that agency to pursue the noncustodial parent's health insurance provider for any Medicaid funds expended for his or her dependents who are receiving TANF or AFDC/FC federal foster care or who are Medicaid-only clients.

A. The department shall release health insurance coverage information on TANF, AFDC/FC federal foster care, and Medicaid only Medicaid-only cases to the Department of Medical Assistance Services as prescribed in the cooperative agreement between the department and that agency.

B. The department shall release health insurance coverage information on TANF, AFDC/FC federal foster care, and Medicaid only Medicaid-only cases to other state child support agencies upon their request.

Part IX
Rights and Responsibilities of the Custodial Parent and of the Department

Article 1
Custodial Parent's Rights and Responsibilities

22VAC40-880-570. Custodial parents. (Repealed.)

Throughout this chapter rights and responsibilities of the custodial parents are mentioned in general terms. This section of the chapter does not abridge those rights and responsibilities; it adds to them.

22VAC40-880-580. Custodial parent's rights. (Repealed.)

A. The department shall give the custodial parent prior notice of major decisions about the child support case.

B. The department shall periodically inform the custodial parent of the progress of the case.

C. The department shall provide the custodial parent with copies of appropriate notices as identified in this chapter.

D. The department shall advise custodial parents who receive AFDC of the following rights:

1. The $50 disregard payments, and

2. Eligibility for continued Medicaid coverage when AFDC is no longer received.

E. The department shall advise parents who receive AFDC, AFDC/FC, and Medicaid only of their eligibility for continued child support services when public assistance is no longer received.

F. The department shall inform all non-AFDC or AFDC/FC clients at the time of application for services of the effect of past receipt of AFDC or AFDC/FC on the collection of child support payments.

22VAC40-880-590. Custodial parent's responsibilities. (Repealed.)

A. Custodial parents must give full and complete information, if known, regarding the absent parent's name, address, social security number, current employment, and employment history and provide new information when learned.

B. Custodial parents must inform the department of any public assistance which was received in the past on behalf of the parent and children.

C. Custodial parents must promptly (i) inform the department of any divorce actions or court actions to establish a child support order, (ii) send to the department copies of any legal documents pertaining to divorce, support, or custody, and (iii) inform the department of any changes in custody or plans for reconciliation with the absent parent.

D. Custodial parents must notify the department if an attorney is hired to handle a child support matter.

E. Custodial parents must notify the department immediately of any change in their financial circumstances.

F. Custodial parents must notify the department in writing regarding any change of their address or name. When possible, the custodial parent shall give this notification 30 days in advance.

Article 2
Department's Rights and Responsibilities

22VAC40-880-600. Department's rights. (Repealed.)

A. The department shall decide, in a manner consistent with state and federal requirements, the best way to handle a child support case.

B. The department shall decide when to close a case based on federal requirements and the criteria in Part XI (22VAC40-880-670 et seq.).

22VAC40-880-610. Department's responsibilities. (Repealed.)

A. The department shall act in a manner consistent with the best interests of the child.

B. The department shall establish a priority system for providing services which will ensure that services are provided in a timely manner.

C. The department shall keep custodial parents advised about the progress of the child support cases and shall include custodial parents in major decisions made about the handling of the child support case.

Part X
Processing Support Payments

Article 1
Child Support and Medical Support Payments

22VAC40-880-620. Disbursement of payments. (Repealed.)

A. A noncustodial parent may have multiple child support obligations.

1. Each case shall receive full payment of the current obligation when possible.

2. If the noncustodial parent's disposable earnings do not cover the full payment for each current support order, the department shall prorate the amount withheld among all orders.

B. Current support obligations shall be satisfied before satisfying past due support.

C. The method by which child support and medical support payments are disbursed is governed by 45 CFR 302.51 and 302.52 which are incorporated by reference.

D. No refund shall be made of any overpayment of support under $1 except upon written request by the payor.

Article 2
Payment Recovery

22VAC40-880-630. Bad checks. (Repealed.)

A. When a payment made by an employer or absent parent is not honored upon presentation to the bank on which it was drawn, the department shall first demand payment from the employer or absent parent.

B. If the employer or absent parent does not comply with the demand and the custodial parent is not an AFDC or AFDC/FC recipient, the department shall recover the payment from the custodial parent according to the methods described in 22VAC40-880-650.

C. The department shall concurrently take enforcement action against the absent parent or legal action against the employer.

D. If a check received from a custodial parent is not honored upon presentation to the bank upon which it was drawn, the department shall demand payment from the custodial parent.

22VAC40-880-640. Erroneous or duplicate disbursements. (Repealed.)

A. When the department sends the custodial parent a payment in error or a duplicate payment, the department shall first demand payment from the custodial parent.

B. If the custodial parent is not an AFDC or AFDC/FC recipient and does not comply with the demand, the department shall recover the amount of the payment according to the methods described in 22VAC40-880-650.

22VAC40-880-650. Methods of payment recovery from the custodial parent. (Repealed.)

A. If the custodial parent is not a TANF or AFDC/FC recipient, the department shall:

1. Intercept and retain payments for past due support (arrears) by retaining the lesser of the balance due or 100% of any intercepted funds and any amounts seized from bank accounts; and

2. Retain 10% of the current support payment.

B. If the custodial parent is a TANF or AFDC/FC recipient and retains an erroneous payment, the division shall notify the Division of Temporary Assistance Program.

Article 3
Uncollectible Debts

22VAC40-880-660. Debt discharge. (Repealed.)

The department may identify uncollectible support debts and discharge them from its record.

Part XI
Case Closure

22VAC40-880-670. General rules. (Repealed.)

A. The department shall terminate child support enforcement services when one of the criteria defined in the 45 CFR 303.11 is met.

B. The department shall continue to provide collection and disbursement services until alternate arrangement for these services has been made.

Part XII
Cost Recovery

Article 1
General

22VAC40-880-680. Recovery of fees. (Repealed.)

A. The department shall assess and recover from the noncustodial parent:

1. Attorney's fees;

2. Genetic testing fees for paternity establishment; and

3. Intercept programs' costs.

B. The department shall use any mechanism provided in Title 63.1 of the Code of Virginia to enforce these fees and costs.

22VAC40-880-690. Attorney's fees for enforcement. (Repealed.)

A. Attorney fees shall not exceed the amount allowed court-appointed counsel in the district courts pursuant to subdivision 1 of § 19.2-163 of the Code of Virginia.

B. The department shall not recover attorneys' fees or costs in any case in which the absent parent prevails.

22VAC40-880-700. Genetic testing. (Repealed.)

A. The department shall set the costs of the genetic testing for paternity establishment at the rate charged the department by the provider of genetic testing services.

B. Where an original genetic test for paternity establishment is contested and either party requests additional testing, the department may require advance payment by the contestant.

22VAC40-880-710. Intercept programs. (Repealed.)

The department shall charge the absent parent the rate actually charged the department.

22VAC40-880-720. Service of process, seizure and sale. (Repealed.)

The department shall have the authority to charge the noncustodial parent the actual costs for service of process, and seizure and sale pursuant to a levy on a judgment in enforcement actions, per § 63.1-274.10 of the Code of Virginia.