IV-D Law and Regulations National Tribal Child Support Association Annual Conference 1:45 – 3:00 PM, July 13, 2009 Paul Stenzel and Jessie Archibald

IV-D Law and Regulations Overview: 1. Background on IV-D law 2. Review 45 CFR 309 3. Review comments and responses on a few key issues when regulation was published Q&A

IV-D Law and Regulations IV-D refers to Title IV-D of the Social Security Act found at 42 USC §§ 651 et seq. Social Security, TANF, Child Support, Foster Care, Medicare, Medicaid, and more.

IV-D Law and Regulations Title IV of the Act contains several programs including: IV-A: TANF IV-B: Child and family services IV-D: Child support IV-E: Foster care and adoption assistance

IV-D Law and Regulations IV-D was added in 1975 Permitted the HHS Secretary to establish a separate division which would oversee enforcement. Included: Parent location State operational guidelines Periodic review

IV-D Law and Regulations Amendments in 1984 and 1988 brought the system closer to what we know today. 1992 amendment made it a federal crime not to pay child support with respect to a child who resides in another state.

IV-D Law and Regulations In 1996, the Personal Responsibility and Work Opportunity Reconciliation Act amended IV-D to permit tribes to receive IV-D money directly from feds. In August 2000, Interim Rule 45 CFR 310 allowed Tribes to apply and receive federal funds. [Federal/State Partnership now a Federal/State/Tribal Partnership.]

IV-D Law and Regulations 45 CFR § 309 published as Final Rule in March 2004. Strings attached to federal IV-D money. 14 elements required to be in plan to demonstrate IV-D capacity.

IV-D Law and Regulations A description of the population subject to the jurisdiction of the Tribal court or administrative agency for child support purposes as specified under §309.70 1. Need description of population 2. At least 100 children Two tribes can join together Can get funding with <100 with a waiver

IV-D Law and Regulations Evidence that the Tribe or Tribal organization has in place procedures for accepting all applications for IV-D services and promptly providing IV-D services required by law and regulation;

IV-D Law and Regulations Assurance that the due process rights of the individuals involved will be protected in all activities of the Tribal IV-D program. Jessie

IV-D Law and Regulations TRIBAL PROGRAM ACTIVITIES Establish Paternity Establish Child Support Orders Modification and Enforcement of Child Support Orders Location of Absent Parents Paul

IV-D Law and Regulations DUE PROCESS Substantive Due Process Procedural Due Process Jessie

IV-D Law and Regulations 14th Amendment U.S. Constitution Indian Civil Rights Act 1968 Tribe cannot deprive person of liberty or property without due process of law Paul

IV-D Law and Regulations DUE PROCESS Fairness Adequate Procedures & Processes Meaningful opportunity to participate Jessie

IV-D Law and Regulations DUE PROCESS Hypothetical #1 Hypothetical #2

IV-D Law and Regulations Administrative and management procedures as specified under §309.75; Description of structure and distribution of responsibilities Protection against loss Procedures for keeping track of money collected and providing parents with a notice of support collected

IV-D Law and Regulations Certification that Tribe complies with auditing requirements of the feds. If Tribe intends to charge an application fee, plan must provide that: Fee uniformly applied Not greater than $25 No fee in intergovernmental transfer cases No fee to those receiving TANF, Medicaid or IV-E money. Fees excluded from expense claim

IV-D Law and Regulations Safeguarding procedures as specified under §309.80: Use or disclosure of personal information only for IV-D, TANF or Title XIX.

IV-D Law and Regulations Safeguarding confidential information and privacy rights by procedures: Protecting against unauthorized disclosure of information in paternity or child support case. Prohibition against releasing whereabouts of one party or a child where party has a protective order against him or her. Prohibition against releasing whereabouts of one party or child if belief that release of information may result in in physical or emotional harm to the party or child. Sanctions if unauthorized disclosures.

IV-D Law and Regulations Assurance that the Tribe or Tribal organization will maintain records as specified under §309.85 (a) The Tribal IV–D agency will maintain records necessary for the proper and efficient operation of the program, including records regarding:

IV-D Law and Regulations Applications Efforts to locate noncustodial parents; (3) Paternity and support actions; (4) Accounting on support monies; (5) IV–D program expenditures; (6) Any fees charged and collected, if applicable; (7) Statistical, fiscal, and other records. Keep records for three years

IV-D Law and Regulations Copies of all applicable Tribal laws and regulations as specified under §309.90

IV-D Law and Regulations Procedures for the location of noncustodial parents as specified under §309.95

IV-D Law and Regulations Procedures for the establishment of paternity as specified under §309.100 Procedures for agency, ensuring that it will: 1. Attempt to establish paternity in accordance with tribal law and/or custom 2. Provide alleged father with opportunity to voluntarily acknowledge paternity 3. In contested case, require child and parties to submit to genetic testing provided certain requirements are met.

IV-D Law and Regulations Tribal IV-D agency not required to attempt to establish paternity in cases of: Incest or forcible rape Agency determines it is not in the best interest of the child

IV-D Law and Regulations Guidelines for the establishment and modification of child support obligations as specified under §309.105

IV-D Law and Regulations IV-D Plan must: 1. Establish one set of guidelines for setting and modifying child support. 2. Include a copy with plan.

IV-D Law and Regulations 3. Indicate whether non-cash payments will be accepted, and if so: Dollar amount must still be in order Describe what non-cash payment will satisfy dollar amount Non-cash cannot satisfy assigned support

IV-D Law and Regulations 4. Indicate that guidelines will be reviewed and if necessary revised every 4 years. 5. Establish rebuttable presumption that guideline amount is correct amount 6. Guidelines will apply unless written finding that guidelines would be unjust or inappropriate.

IV-D Law and Regulations Guidelines must: Take into account the needs of the child and the earnings and income of the non-custodial parent. Be based on specific data and result in a computation of the support obligation.

IV-D Law and Regulations Procedures for income withholding as specified under §309.110

IV-D Law and Regulations Procedures for the distribution of child support collections as specified under §309.115

IV-D Law and Regulations Procedures for intergovernmental case processing as specified under §309.120: 1. Tribe agrees to extend full range of services to respond to all requests from and cooperate with states and other Tribal IV-D Agencies.

IV-D Law and Regulations 2. Tribe agrees to give full faith and credit in accordance with 28 USC § 1738B.

IV-D Law and Regulations Tribally-determined performance targets Paternity establishment Support order establishment Amount of current support to be collected Amount of past due support to be collected

IV-D Law and Regulations 44 Tribes now receive funding to operate child support programs Start-up Phase (7) Comprehensive (37)

IV-D Law and Regulations Other issues of note: States are required to enact Uniform Interstate Family Support Act. States are required to extend full range of services to Tribal IV-D programs. Due process is not defined; Tribes can decide for themselves.

IV-D Law and Regulations Questions

IV-D Law and Regulations Contact information: Jessie Archibald, 907-463-7114, jarchibald@ccthita.org Paul Stenzel, Stenzel Law Office, LLC 414-963-9923, paul@paulstenzel.com These materials will be available on my website: www.paulstenzel.com