AT-7819, Good Cause for Refusing to Cooperate

REGULATION

ACTION TRANSMITTAL

OCSE-AT-78-19

October 31, 1978

TO : STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PLANS APPROVED UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS

SUBJECT : Good Cause for Refusing to Cooperate

ATTACHMENT : Final regulations which amend 45 CFR Part 302 and 45 CFR Part 232 to implement section 208 of

Public Law 94-88.

1) New final good cause regulations (45 CFR 232.40 through 232.49) which replace the good cause regulation (45 CFR 232.13) which was effective March 17, 1978. A model good cause notice is included as Appendix A to Part 232.

2) Amendment to 45 CFR 232.12 and 302.31 to conform the cross-references to the new god cause regulation.

REGULATION

REFERENCE : 45 CFR 232.12, 232.40 through 232.49 and 302.31

45 CFR 232.13 (revoked)

EFFECTIVE DATE : December 4, 1978. The States may implement earlier at their discretion.

ACTION REQUIRED : Make necessary amendments will be forthcoming.

INQUIRES TO : OCSE Regional Representatives

Deputy Director

Office of Child Support Enforcement

NOTE: There is an error in the section of the preamble entitled "Federal Financial Participation in Good Cause Investigations and Determinations." The last sentence of this section should be corrected to read as follows: "Consequently, the Department does not have the discretionary authority to provide Federal financial participation for these activities at the rate available for title IV-D activities."

Title 45 - Public Welfare

CHAPTER II-OFFICE OF FAMILY ASSISTANCE (ASSISTANCE PROGRAMS), DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

PART 232 - SPECIAL PROVISIONS APPLICABLE TO TITLE IV-A OF THE SOCIAL SECURITY ACT

Good Cause for Refusing to

Cooperate

AGENCY: Social Security Administration, HEW.

ACTION: Final regulation.

SUMMARY: On January 16, 1978 (43 FR 2170), the Department published a final regulation specifying standards under which state and local welfare agencies shall determine whether an applicant or recipient of aid to families with dependent children (AFDC) has good cause for refusing to cooperate in establishing paternity and securing child support.

These regulations replace those standards with new standards which more clearly reflect the Department's intent and make other changes in response to public comments.

EFFECTIVE DATE: These regulations become effective on December 4, 1978. Any State may implement these provision sooner at its discretion.

FOR FURTHER INFORMATION CONTACT: Steve Henigson, telephone 202-472-4510.

SUPPLEMENTARY INFORMATION:

BACKGROUND

Section 208 of Pub. L. 94-88, enacted August 1, 1975, requires the Secretary to promulgate standards under which State and local welfare agencies shall determine whether an applicant or recipient of aid to families with dependent children ( AFDC) has good cause for refusing to cooperate in establishing paternity and securing child support.

After a notice of proposed rulemaking (published August 13, 1976; 41 FR 34299) the Department adopted a final good cause regulation on January 16, 1978 (43 FR 2170); effective March 17, 1978. The preamble that accompanied that regulation fully explained its purpose and basis. The preamble, together with today's publication, should be consulted for a complete understanding of the following regulations.

PUBLIC PARTICIPATION

The January 6, 1978, regulations solicited further public comment on the regulation for 90 days after the effective date. The Department believed the additional comment period was advisable because the NPRM was controversial and because additional comments would allow the Department of evaluate the effectiveness of the regulation and make necessary amendments. The Department received over 80 comments during the comment period. They were almost equally divided between State and local IV-D agencies and district attorneys on one hand and legal services and other advocate groups on the other.

In addition, in an effort to insure the broadest possible public participation in the process of evaluating the effect of the regulation, the Department held a public hearing on May 5, 1978. (Announced in the Federal Register Apr. 13, `978; 43 FR 15457.) Twenty-one individuals testified at the hearing, representing State and local a welfare and child support enforcement agencies, district attorneys, legal services organizations, children's advocate groups, psychiatric professional associations, and others. In addition, 29 written statements, were submitter to become part of the hearing record. The hearing participants represented approximately the same mix of interests as the written comments.

Generally, the State or local agencies and district attorneys criticized the regulation as placing unreasonable burdens on the child support enforcement program; both in terms of administrative effort and by creating a "loophole" which would permit unjustified non-cooperation. The legal services and other advocate groups generally were supportive of the regulation or indicated a belief that it did not go far enough to insure that harm to the child support enforcement process.

After reviewing all of the comments and the hearing record, the Department believes that some major regulatory changes are warranted. Those changes are discussed below. Other amendments have been made to insure that the Department's intent is clearly expressed. Among those are clarifications which were adopted after the regulation became effective and previously appeared in a program instruction issued by the Department (SSA-AT-78-13 (OFA) and OCSE -AT-78-8, both dated Apr. 5, 1978; notice published in the Federal Register on Apr.13, 1978; 34 FR 15424). These clarifications responded to questions raised by some State agencies and Members of Congress.

In addition several changes have been made to make the regulations more easily readable. The regulation section 45 CFR 232.13 to several shorter ones. The regulations now appear at 45 CFR 232.40 through 232.49.

RECOGNITION OF THE BENEFITS OF

ESTABLISHING PATERNITY

Several commenters criticized the regulations for not requiring applicants and recipients and State and local agencies to weigh the benefits a child derives from establishing paternity at some time in the process of deciding a good cause claim. In the preamble to the prior regulations, the Department interpreted section 402 (a)(26) of the Social Security Act, which conditions AFDC benefits on cooperation in paternity and child supportenforcement proceedings, as implementation of the Congressional assumption that establishing paternity and securing support is in the best interest of the child.

Included among the potential benefits the child may derive from having paternity legally established are the right to inheritance and the possibility of social security, veterans or other government benefits. In addition the child benefits directly if the support payments obtained are greater than the AFDC grant. The Department concluded that Congress intended the good cause exception to excuse cooperation only in those relatively few cases in which the benefit of establishing paternity was outweighed by the harm that could result from an applicant's participation in those proceedings. The Department agrees that the benefits derived from establishing paternity are relevant to the child's best interest.

Thus, the Department has amended the regulations to expressly recognized the benefits of establishing paternity. Section 232.40(b)(2)(i)(A) now requires that the notice advertising applicants and recipients of the availability of the good cause exception also advise them of the potential benefits a child may derive form establishing paternity and securing support. This change should assure that applicants and recipients will consider the benefits to be derived from cooperation prior to requesting the good cause exception.

NOTICE REQUIREMENTS

Under the prior regulations, State and local agencies had to provide all applicants and recipients with a detailed notice prior to requiring them to cooperate under 232.12. The Department thought that a detailed, complete notice would not only insure that applicants and recipients were fully informed of their right to claim good cause but also discourage applicants and recipients form asserting good cause claims in inappropriate causes. Due to the complexity of the notice provision the Department published a model notice which States could adopt for their own use. States that use HEW model could be sure that their notice would be in conformity with the regulation.

Both hearing witnesses and letter writers objected to the model notice. When criticized from both the applicant's and State and local agencies' points of view, the notice was said to be too complex. Many thought that the detailed information included would be needed only by those applicants or recipients who actually intended to claim good cause, and that a simple, brief statement explaining the availability of the exception would suffice as a standard notice. Several witnesses stressed that applicants are already overwhelmed by the forms they received during intake procedures and, at that time, could not possibly comprehend the information contained in the proposed notice. When criticized from an administrative point of view, the 3-page notice was thought to be too expensive to print in large quantities and too bulky to add to the applicant's or recipient case file. In response to this criticism, the Department has amended the regulation that provided therequirements for good cause notices. Section 232.40(b) offers States the option of using either a two part or single combined notice form.

Under the first option, the State must issue an initial notice to all applicants and recipients who have been requested to cooperate in paternity or child support, enforcement proceedings. This first notice must: advice the individual of the benefits a child may derive from establishing paternity (see the preceding discussion of those benefits); state that an unexcused refusal to cooperate will result in loss of AFDC eligibility for the caretaker relative: state that the individual has the right to claim good cause for refusing to cooperate; and inform the individual that additional information on the good cause exception is available upon request or following a good cause claim. The additional information is contained in the second notice, which will be provided "promptly," without the applicant or recipient having to reschedule a follow-up appointment or endure unnecessary delays. The second notice must explain: what circumstances will support a good cause finding; how to corroborate good cause; and, as applicable under the state plan, whether or not the child support enforcement agency will attempt to establish paternity and collect support without the caretaker's cooperation after a finding of good cause.

Under the latter option, States may elect to use a single combined notice form. These Stated must provide all appropriate applicants and recipients with one notice that contains all of the information required on each of the two notices described above.

The notice requirement has also been amended to clarify the notification procedure. The notice must be in writing and a copy must be furnished to the applicant or recipient. The new 232.40(b)(1) also requires that the applicant or recipient and the caseworker acknowledge that the applicant or recipient received the notice. A copy of the notice, signed and dated by both the applicant or recipient and the case worker will be placed in the case record. The Department has revised its model notice to conform with these amendments. Appendix A to this regulation is a model 2-part notice which meets the requirements of 232.40(b)(2).

EMOTIONAL HARM

Many commenters discussed whether AFDC applicants and recipients should be exempted form the cooperation requirement when cooperation potentially could cause emotional harm to either the caretaker relative or the child. The groups favoring emotional harm as a basis for granting the good cause exception included the American Academy of Child Psychiatry, the Center on Social Welfare Policy and Law, the Child Welfare League of America, the Children's Defense Fund, and numerous legal services organizations. The groups that opposed either the recognition of emotional harm as a basis for finding god cause or the emotional standard announced in the prior regulation included various State departments of social services State departments of socialservices and district attorneys.

Those who supported the Department's recognition of potential emotional harm as a basis for finding good cause offered examples of situations in which the emotional harm would prevent people from facing the choice of either subjecting themselves and their welfare benefits. However, in the majority of the cases described, cooperation threatened to result in physical as well as emotional harm. A number of the examples given were accounts of women who had been abused by their husbands and were threatened with similar or worse treatment if they either named the father or tried to collect child support form him. In several cases, women had spent years escaping form the fathers of the their children, and said they would do without AFDC benefits rather than allow these men to learn their whereabouts. In a few of the cases cited, the father did not know that a child had been born, and the mother feared violent consequences were the father to learn of the child's existence through a paternity of support action. The Department believes that these types of cases are more properly evaluated in terms of potential physical harm because the alleged emotional harm essentially results from fear of physical harm.

Other factual situations presented did provide less hybrid examples of potential emotional harm. Several of these cases involved mothers who feared that a meeting between father and child would have a deleterious psychological effect on the child. This fear was aroused by various factors, including the character of the father(e.g., drug addict, criminal, or psychotic); the child's acceptance of a stepfather; and prior traumas the father had caused the child.

Those opposed to finding good cause on the basis of potential emotional harm expressed objections that ranged from strenuous to mild. Several argued that, because emotional harm is experienced subjectively, a genuine claim of emotional harm would be difficult to impossible to identify, and that cooperation would be excused in many unmeritorious cases in which the mother is in collusion with the father. While some who raised this point concluded that emotional harm should be eliminated as a basis for finding good cause, others concluded that the Department should amend the emotional harm regulations in order to minimize the danger of abuse. A second objection commenters raised was that the regulatory scheme required agency personnel to make difficult psychological evaluations that could only be properly made by mental health professionals.

In response to the former criticism, the Department always intended to limit good cause findings to cases in which cooperation would result in a serious and identifiable emotional problem. To further clarify its original intention, the Department has added a new subsection to the regulation, 232.42(b), which defines "emotional harm. This definition accomplishes several goals. First, it specifies that "emotional harm" must be serious. Second, the definition minimizes the risk of excusing cooperation in unmeritorious claims by requiring the emotional impairment to be demonstrable and to have the observable consequence of substantially impairing theindividual's functioning. However, the definition does not, as some commenters requested, require that the emotional harm be "lasting." Serious emotional harm is itself a strict good cause standard, and the Department wants to avoid the implication of an additional durational test which would have precluded serious impairments that were not likely to continue indefinitely.

As to the involvement of mental health professionals, the Department does not believe that its regulations should require a consultation with a mental health professional in every case. The regulation leaves referral to a mental health professional to the State's discretion.

Section 232.40(c)(1) now requires an applicant or recipient who claims good cause to specify the basis of the claim, provide corroboration of the good cause circumstance, and, if requested, assist in an investigation of the claim. In accordance with the scheme set out in this regulation, the Department views emotional harm causes as falling into three classes.

The first class included the upper threshold of cases in which applicants or recipients who claim good cause on the basis of emotional harm are able to clearly corroborate that claim. These individuals would typically provide the State or local agency with medical records or other documentation of a current emotional condition that would obviously be aggravated by the required cooperation. The Department thinks that the State agencies should not have to incur the expense and inconvenience of arranging additional agency-funded psychiatric consultations in these cases.

The second class of cases includes the lower threshold of clearly unmeritorious claims. In these cases, the circumstance presented by the applicant or recipient, even if true, would not meet the regulatory test for emotional harm. Again, the Department feels that psychiatric consultations would be unnecessary in these cases.

The third class of cases includes the middle ground cases in which, with the currently available information, the State or local agency is unable to determine whether or not good cause exists. The Department agrees the proper assessment of these claims may necessitate sending the claimant to a mental health professional (e.g., psychiatrist, psychologist, or psychiatric social worker) for an evaluation and report. The resulting medical record could then be used by the State or local agency in making the good cause determination. In this group of cases, the applicant or recipient still has the burden of providing corroborative evidence under 232.40(c)(1), and a good cause determination could be conditioned on her submission to the required evaluations. A mental health evaluation may be available to the good cause claimant through the medicaid or social services programs. If it is necessary for the State to obtain the evaluation, the costs incurred by the State will be subject to Federal financial participation at eh regular title IV-A rate.

The revised regulation retains the requirement that, in making good cause determinations based on emotional harm, the agency must consider several special factors. (The requirement isnow at 232.42 (c).) This requirement is not intended to necessitate referral to a mental health professional. As discussed above, in cases at either end of the spectrum, the agency will be able to determine whether or not good cause exists, including a consideration of the relevant special factors listed at 232.42(c), without resorting to outside referral.

Finally, commenters criticized the reference to "emotional upset" in the former 232.13(g)(1)(iii). That requirement is now at 232.42(c)(3), and the word "upset" has been deleted and replaced by the word "impairment."

PROOF OF GOOD CAUSE

Commenters criticized several aspects of the prior regulatory scheme for substantiating good cause claims. State, county, and city welfare agencies criticized the regulations for imposing unreasonable burdensome duties on them. More specifically, they opposed both their responsibility to help applicants and recipients gather evidence of good cause and their responsibility to conduct good cause investigations. District attorneys criticized the regulations for failing to specify that, despite agency assistance in substantiating their claims, applicants and recipients have the burden of proving a good cause circumstance. Legal aid, welfare rights, and other advocate groups criticized the regulations for not compelling State and local agencies to accept the only form of evidence that most battered wives would be able to present, i.e., sworn statements form themselves or some party with knowledge of the beatings. Some commenters objected to the regulation's exclusive list of documentary evidence that could support an uninvestigated good cause finding, arguing that the list was too restrictive. Other commenters argued that only the last item on the list of acceptable documentary evidence, which allowed HEW to establish addition forms of acceptable evidence through "appropriate issuances," should be deleted.

In an attempt to accommodate the legitimate concerns of as many commenters as possible, the Department has revamped the regulatory provisions on evidence. The previous requirement of an agency investigation in every case in which a claimant did not produce a specific form of documentary evidence is now abandoned. The new regulation specifies that an applicant or recipient has the burden of establishing the existence of good cause and makes agency investigation discretionary with the State.

The regulation at 232.40(c)(1) clearly sets forth the good cause claimant's burden of establishing the existence of a good cause circumstance that meets the test of the regulation. First, the claimant is required to specify the circumstance which she believes provides sufficient good cause to excuse her form the cooperation requirement. Second, the claimant must, with one very limited exception discussed below, provide corroboration of the good cause circumstance. Finally, the claimant must, upon request, provide sufficient information to permit the agency to investigate the good cause claim. The requested information may include the absent father's name and address, if known. If theclaimant does not satisfy this requirement, the regulation provides that the agency will determine that good cause does not exist.

The above rule has an important exception (232.43)(f) under which the State or local agency can find good cause based on the anticipation of physical harm even though the applicant or recipient has not provided corroborative evidence, if such corroborative evidence is not available. The Department added this exception to the corroboration requirement in response to a point raised by several representatives of battered women, that battered women are often too afraid or too ashamed to tell anyone about the beatings they have received and that, therefore, they would not be able to corroborate their valid good cause claims. The Department was cognizant of the need to draw this exception narrowly. Consequently 232.43(f) requires State or local agencies making a determination of good cause under the exception to note in the case record that the claim is credible without corroborative evidence and that such evidence is not available.

The claimant has the burden of establishing her credibility as well as explaining why no evidence is available. The regulation also requires the State to conduct an investigation of this limited class of claim. While such an investigation may not necessarily establish the good cause circumstance, it should verify the credibility of the claimant. After conducting its investigation, the Agency will be permitted to make a finding that good cause until reviewed and approved by supervisory personnel of the title IV-A agency.

In all but the very few cases that fall within the 232.43(f) exception, then, applicants and recipients must corroborate their good cause claims. When corroboration is required, the good cause claimant must provide that corroborative evidence within 20 days from the day the claim was made. The regulation at 232.43(b) permits the agency to grant an exception in those unusual cases where the claimant can not obtain the required evidence within 20 days. This exception must be approved by supervisory personnel.

The regulation (232.43(d)) also specifically authorizes, but does not require, the agency after reviewing the claimant's corroboration, to request that additional corroborative evidence be provided. Until this additional evidence is submitted, the good cause claimant would not have met the corroboration requirement imposed by 232.40(c)(1)(ii). Since aid can not begin until all documents are submitted, the Department was concerned that the claimant be notified promptly and specifically of the additional corroboration needed and has included a requirement for such notification in the regulation.

The regulation also clarifies the agency's duty to help the applicant gather evidence. The prior regulation simply required State and local agencies, upon request to "assist the applicant or recipient in obtaining the required evidence." This language evoked fears that agencies would have to conduct a "fishing expedition" every time an applicant or recipient requested them to do so. The new regulation (232.43(e)) expressly limits the agency's responsibility to granting reasonable assistance byadvising applicants and recipients how to obtain documents and by undertaking reasonable efforts to obtain any specific documents the applicant or recipient is not reasonably able to obtain on her own. These changes conform with recommendations from commenting State agencies, yet still assure the claims will not be denied because applicants or recipients do not understand how to obtain available documents or because institutions refuse to locate records for members of the public.

The State or local agency's method of reviewing the claim has also undergone several changes in the new regulations. First the agency is no longer required to accept any of the several specified documents as exclusive forms of evidence in an uninvestigated good cause claim. Instead the new (c) lists the five forms of documentary evidence named in the prior regulation as examples of the types of evidence the agency should consider. This change is responsive to complaints that the list of evidence in the prior regulation was too restrictive and inflexible.

Additionally, the Department has made two changes in the list of documents itself. It has deleted the provision which allowed HEW to announce by appropriate issuances acceptable forms of evidence. The Department has also expanded the list so that it now recognizes sworn statements from individuals other than the applicant or recipient with knowledge of the facts upon which the applicant's or recipient's good cause claim is based. This expansion is responsive to assertions by legal aid societies that many AFDC applicants and recipients would not often contact the official sources recognized in the other abuse that would be relevant to a good cause claim. The Department is requiring these statements to be sworn in order to minimize the risk of fraud. Under 232.43(e), the agency will provide the applicant or recipient with assistance in obtaining sworn statements.

The Department's recognition of sworn statements as evidence of good cause does not imply that an applicant or recipient can corroborate her good cause claim with her own sworn statement. States may, at their option, require good cause claimants to assert the basis of their claims on their AFDC applications, which are signed under penalty of perjury. States may also accept an affidavit from the caretaker relative as part of the good cause investigation or determination process. However, sworn statements obtained through either requirement of 232.40(c).

Once the proper corroborative evidence has been submitted, 232.43(a) now requires the State or local agency to examine the evidence and determine whether it verifies the good cause claim. To make a final determination that good cause exists the agency must be satisfied that the claim meets the stringent test of these regulations. For example, if a claimant submits a mental health prognosis, to satisfied that the potential emotional harm is serious.

Pursuant to 232.43(g), the agency may, at its discretion, either decide the claim on the basis of the corroborative evidence plus the claimant's statements or may conduct an investigation of the claim. The Department has made agency investigations discretionary in order to simplify the process ofdeciding good cause claims. The nature and scope of the investigation is also left to agency discretion.

The new regulation, like the prior regulation, conditions a good cause finding on the applicant's or recipient's proof that cooperation is "reasonably anticipated to result in" physical or emotional harm. The Department developed this burden of proof in response to the criticism that the NPRM standard of "likely to result in" implied an unintended technical burden of proof. Although some commenters were dissatisfied with "reasonably anticipated to result," and suggested alternatives (such as "proves beyond a reasonable doubt," and "shows by clear and convincing proof"), The Department rejected these alternatives. The Department finds "reasonably anticipated to result in" a sufficiently stringent test.

In the cases of applicants and recipients who believe they can substantiate their good cause claim without the State of local agency contacting the putative or absent parent, the regulations provided alternate remedies, if the agency refuses to find good cause without tins contact. The applicant or recipient can, as before, present additional evidence that would eliminate the need for the contact or withdraw the application for assistance. The regulation is now clear that recipients may have the AFDC case closed. (See 232.43(h)(2)(i) and (ii).) In addition, the claimant can also have the claim denied (232.43 (h)(2)(iii)). Under 45 CFR 205.10 this remedy, denial of the claim, gives the claimant the right to a review of the good cause decision.

The regulations require the State to record in the AFDC case, record the final determination the good cause does or does not exist (232.41(b)). Some State AFDC agencies complained that this requirement was overly burdensome in the it requires that the case record reflect the agency's findings and basis for the determination. This provision parallels the requirement at 45 CFR 206. 10(a)(8) that each decision regarding AFDC eligibility or ineligibility be supported by facts in the applicant's or recipient's case record. The Department believes such documentation is necessary to permit adequate review of good cause determinations.

In summary, the changes in the regulations are intended to limit the administrative burden of deciding good cause claimed by making investigations discretionary in all cases rather than mandatory in some cases and by requiring all but excepted applicant's and recipients to corroborate their good cause claims. The regulations are also designed to mitigate applicants' and recipients' burden of corroboration by recognizing sworn statements (other than from the applicant or recipient) as a form of corroborative evidence and by including provisions designed to accommodate the one limited category of uncorroborable claims.

PRIVACY AND CONFIDENTIALITY ISSUES

Commenters were concerned that the proposed good cause procedures posed two threats to the privacy of applicants and recipients. Some foresaw that the IV-D agency might gain accessto the evidence gathered and submitted in support of a successful good cause claim. Other were troubled by the possibility that, as a result of agency attempts to verify the good cause claim, the absent parent or putative father might learn of the applicant's or recipient's whereabouts, which could be the very result that the good cause claim is intended to prevent.

In response to the first concern, section 402(a)(9) of the Social Security Act requires each State plan under title IV-A of the Social Security Act to provide safeguards restricting the use of disclosure of information concerning applicants or recipients to "purposes directly connected with *** the plan or program of the State under (among others) part *** D of this title." Regulations at 45 CFR 205.50 which implement the statutory safeguards require that restrictions on improper uses or disclosures of information must be enacted through state statuted which impose legal sanctions on violators. 45 CFR 302.18 makes the same safeguards applicable to information contained in title IV-D records. These safeguards should allay fears that IV-D agencies will gain access to the evidence supporting a good cause claim and then use the information for a purpose not directly connected with the IV-D program, e.g., conducting totally State funded paternity or child support enforcement proceedings. Thus, even though the evidence supporting a successful good cause claim may be revealed to the IV-D agency pursuant to 232.44, IV-D would only be able to use the evidence in a paternity or child support enforcement proceeding conducted pursuant to 232.49. That regulation conditions the initiation of paternity or support enforcement proceedings following a finding that good cause harm to the child or caretaker relative if conducted without their participation. The regulation further requires that, if IV-A agency determination that the proceedings would not cause harm to the child or caretaker relative if conducted without their participation. The regulation further requires that, if IV-A approves paternity or support proceedings, the applicant or recipient be notified of the IV-A decision and given an opportunity to withdraw her application or have the case closed. This IV-A review followed by a notice giving the applicant or recipient an opportunity to withdraw her application, or have the case closed should sufficiently protect applicants and recipients from harmful consequences of any IV-D activities that postdated a finding of good cause.

The second concern raised, that the putative father or absent parent will learn the whereabouts of applicants and recipients as a result of the agency's good cause investigation, focuses on the discretion of agency personnel. While the Department cannot assure that all good cause investigations will be free of administrative error, the Department is sensitive to the problem raised and does intend to issue instructional materials designed to minimize this risk.

DEADLINES ON GOOD CAUSE

DETERMINATIONS

The new regulations now require the State agency toestablish a time frame of 45 days or less for reaching good cause determinations. The allowable time period starts to run when the applicant or recipient makes a good cause claim. Section 232.41(c) also allows the State or local agency to take longer than this time limit in cases in which the agency would have great difficult gathering the information required to verify the claim or where the claimant has not provided corroboration promptly. The regulation requires proper documentation of the case record whenever this exception is invoked.

This deadline was added because the Department, like several commenters, felt that some time frame for deciding good cause claims was desirable in order to prevent lax enforcement of the cooperation requirement. Although commenters who opposed the inclusion of a deadline were concerned that a deadline would encourage arbitrary denials in cases that required unusually time consuming verification, the Department believes that the exception to the time limits is sufficiently flexible to avert this danger.

The Department adopted 45 days as a reasonable time limit. It coincides with the 45 maximum time period a state plan may allow for making initial AFDC eligibility determinations. This time standard is also consistent with commenters' estimates of how long reaching a good cause determination would take. The department believes that, since the regulation will allow additional time in those cases in which it is difficult to obtain necessary information, 232.41(c) has maintained sufficient flexibility to avoid rushed decisions.

Additionally, the Department would like to emphasize that 232.41(c) is not intended to defeat the policy of 232.46, which prohibits State or local agencies from denying, or discontinuing assistance pending a good cause determination. Thus, if the State or local agency determines that an applicant who has claimed good cause and complied with the requirement of 232.40(c) is otherwise eligible for AFDC, aid will begin immediately, even though the time period in which the agency must decide the good cause claim has not yet elapsed.

PERIODIC REVIEW

The prior regulation required periodic review of determination that good cause exists not less frequently than at each required redetermination of AFDC eligibility. Several State and local agencies commented that the periodic review requirement was unnecessary and overly burdensome. They argued the in many cases in which good cause in found the circumstances which provide a basis for the determination will not change and the review would be futile exercise.

In response to this argument the Department has modified the periodic review requirement (45 CFR 232.47) to indicate the review is only necessary when the original good-cause determination was based on a circumstance that is subject to change.

This regulation establishes the minimum review requirement. The States may, of course, conduct more frequent reviews. Inaddition, the Department does not intend that the State or local agency must make a complete good-cause determination for every review. The agency need only examine the cases subject to change and follow-up on those cases where a change in circumstances has occurred.

Reviews of good-cause determinations made under the old regulation which are conducted after the effective date of these new good-cause regulations must be made under the new good-cause standards at the next redetermination. If the old good-cause determination does not meet the test of the new regulation the good-cause finding will be rescinded.

DATA

In its announcement of the May 5 hearing, the Department requested testimony addressing, among other things, how the current regulation was working. The Department had hoped to receive date with which it could assess whether the regulation was, as some commenters had feared, causing unjustified good-cause findings and diminishing the effectiveness of the child support enforcement program. While no statistical data were presented few good-cause claims and the exception would rarely come into play. A few commenters presented the opposite view that while valid good-cause exception should be few, good cause would be claimed and determinations would have to be made in a great number of AFDC cases.

These regulations retain the requirement that the state keep records of activities under the good-cause exception. Using these data, the Department will carefully monitor the effects of these regulations.

ENFORCEMENT WITHOUT THE

CARETAKER'S COOPERATION

Section 232.49, formerly 232.13(m), permits IV-D agencies to proceed to establish paternity or enforce support without the participation of the child or caretaker relative, if the IV-A agency determines that, although good cause is present, enforcement could be accomplished without risk of harm. Most commenters thought that the regulation envisioned a nearly impossible situation. They believed that absent fathers would not readily distinguish between support enforce-proceedings brought with the mother's cooperation and those brought without her cooperation is just as likely to result in harm, enforcement without her cooperation. Therefore, if the mother's cooperation is likely to result in the same harm. In response to this criticism, the Department has made this provision of the regulation a State plan option. The State can elect to make a second determination and halt all IV-D activities once good cause is found. The Department did not delete the provision because it feels that the provision serves the legitimate purpose of assuring that the good-cause exception causes the least possible interference with IV-D activities.

The Department does not think that the regulation poses anyimmediate threat that would outweigh its benefit. On the other hand, the Department does not feel justified in making the provision mandatory on the States. The Department does not anticipate that the provision will be utilized in a sufficient number of cases to warrant imposing a potentially burdensome administrative requirement on the States.

ELIGIBILITY PENDING A GOOD-CAUSE

DETERMINATION

Numerous comments addressed the question of whether applicants who are otherwise eligible for AFDC should receive financial assistance during the period which their good-cause claims are pending. The majority strongly supported paying benefits during this period.

The few who opposed the payment of benefits pending the good-cause determination based their position on section 402(a)(26) of the Social Security Act. They argued that section 402(a)(26) conditions AFDC eligibility on either cooperating in paternity and child support enforcement proceedings or being "found" to have good cause for refusing to cooperate. Applicants and recipients who have claimed good cause but have not yet been found by the State or local agency to have good cause, they asserted, could not satisfy either of these eligibility conditions.

The Department was persuaded by this argument and has decided to maintain the policy of not denying, delaying, or discontinuing AFDC payments to otherwise eligible individuals who have furnished the evidence and the information required to support a good-cause claim.

AFDC recipients are by definition needy, and suspending or denying aid pending a good-cause determination could impose such hardships that individuals eligible for good-cause exception may be deterred from making a claim, fearing even a temporary loss or delay of benefits. It is the Department's position that once an applicant or recipient has corroborated a good-cause claim, sanctions for noncooperation cannot be imposed until the State or local agency actually denies the good-cause claim. The Department believes that the revised regulations minimize the potential for abuse and the possible costs attributable to payments on claims that are eventually denied. In situations where good cause is claimed at time of initial AFDC application, a finding of eligibility for the mother or other caretaker relative cannot be made until the applicant has provided corroboration of the good-cause claim.

The States will have an incentive to raise the cooperation issue during the initial application process and then promptly determine whether or not good cause exists before the question of eligibility is decided and thereby avoid starting AFDC payments for caretaker relatives who are ineligible due to nonexcused refusal to cooperate.

The Department's position is consistent with the legislative history of the good-cause exception. The congressional intent was that the support enforcement process not cause harm to thesame children it was attempting to help through establishing paternity and securing support. The Department believes that a policy that would deny or delay aid pending a good-cause determination would result in needless hardship to may children and would be inconsistent with congressional intent.

FEDERAL FINANCIAL PARTICIPATION IN

GOOD-CAUSE INVESTIGATIONS AND DETERMINATIONS

Several commenters again suggested that good-cause investigations and determinations should receive the higher rate of Federal financial participation available for title IV-D activities. The Department has not changed its opinion that good-cause investigations and decisions are by statute title IV-A activities. Consequently, the Department does not have the discretionary authority to provide Federal financial participation for these activities at the rate available for title IV-A activities.

EFFECTIVE DATE

Today these regulations were submitted to Congress and to the Senate Committee on Finance and the House Committee on Ways and Means for their review. These regulations will become effective on December 4, 1978. States are free to implement them sooner, if they so desire.

45 CFR Part 232 is amended by amending 232.12 and by revising the content of 232.13 and redesignating it as 232.40 through 232.49.

1. The introductory text of paragraph (a) in 45 CFR 232.12 is amended to read as follows:

232.12 Cooperation in obtaining support.

The State plan must meet all requirements of this section.

(a) The plan shall provide that as a condition of eligibility for assistance each applicant for or recipient of AFDC will be required to cooperate (unless good cause for refusing to do so is determined to exist in accordance with 232.40 through 232.49 of this chapter) with the State in:

* * * * *

2. The content of 45 CFR 232.13 is revised and redesignated as 232.40 Part 232.13 is vacated and reserved. The table of contents for Part 232 now reads as set forth below.

Sec.

231.1 Scope

232.2 Child support program; State plan requirements.

232.10 Furnishing of social security numbers.

232.11 Assignment of rights to support.

232.12 Cooperation in obtaining support.

232.13 [Reserved]

232.20 Treatment of child support collections made in the Child Support Enforcement Program as income and resources in the Title IV-A Program.

232.30 Cost allocation;joint staff and service staff.

232.40 Claiming good cause for refusing to cooperate

232.41 Determination of good cause for refusal to cooperate.

232.42 Good cause circumstances.

232.43 Proof of good cause claim.

232.44 Participation by the State IV-D agency.

232.45 Notice to the IV-D agency.

232.46 Granting or continuation of assistance

232.47 Periodic review of good cause determination.

232.48 Record keeping in good cause

232.49 Enforcement without the caretaker's cooperation.

232.40 Claiming good cause for refusing to cooperate.

(a) Opportunity to claim good cause. The plan shall provide that an applicant for, or recipient of, AFDC will have the opportunity to claim good cause for refusing to cooperate as required by 232.12.

(b) Notice to applicant or recipient. (1) The plan shall provide that: (i) Prior to requiring cooperation under 232.12, the State or local agency will notify the applicant or recipient of the right to claim good cause as an exception to the cooperation requirement and of all the requirements applicable to a good cause determination;

(ii) The notice will be in writing, with a copy furnished to copy furnished to the applicant or recipient; and

(iii) The applicant or recipient and the caseworker will acknowledge that the applicant or recipient received the notice by signing and dating a copy of the notice, which will be placed in the case record.

(2) The notice may be in two parts. If the State elects a two part notice:

(i) The first notice shall: (A) Advise the applicant or recipient of the potential benefits the child may derive from the establishment of paternity and securing support;

(B) Advise the applicant or recipient that by law, cooperation in establishing paternity and securing support is a condition of eligibility for AFDC;

(D) Advise the applicant or recipient that good cause for refusal to cooperate may be claimed; and that if the State or local agency determines, in accordance with this section, that there is good cause, the applicant or recipient will be excused from the cooperation requirement; and

(E) Advise the applicant or recipient that upon request, or following a claim of good cause, the agency will provide further notice with additional details concerning good cause.

(ii) The second notice, which will be provided promptly upon request of the applicant or recipient or following a claim ofgood cause, shall:

(A) Indicate that the applicant or recipient must provide corroborative evidence of a good cause circumstance (as specified in 232.43 (b) and (f)) and must, when requested, furnish sufficient information to permit the State or local agency to investigate the circumstances;

(B) Inform the applicant or recipient that upon request, the State or local agency will provide reasonable assistance in obtaining the corroborative evidence;

(C) Inform the applicant or recipient that on the basis of the corroborative evidence supplied and the agency's investigation if necessary, the State or local agency will determine whether cooperation would be against the best interests of the child for whom support would be sought;

(D) List the circumstances (as specified in 232.42) under which cooperation may be determined to be against the best interests of the child;

(E) Inform the applicant or recipient that the State Child Support Enforcement agency may review the State or local agency's findings and basis for a good cause determination and may participate in any hearings concerning the issue of good cause and;

(F) As applicable, (see 232.49) inform the applicant or recipient that either: The State Child Support Enforcement agency will not attempt to establish paternity and collect support in those cases where the applicant or recipient is determined to have good cause for refusing to cooperate; or the State Child Support Enforcement agency may attempt to establish paternity and collect support in those cases where the State or local agency determines that this can be done without risk to the applicant or recipient if done without their participation.

(3) The State or local agency may, at its option, provide a single combined notice that contains all of the elements in paragraphs (b) (2) (i) and (ii) of this section.

(4) Appendix A to this Part 232 is a suggested two part notice format that meets the requirements of this section.

(c) Requirements upon applicant or recipient. (1) The plan shall provide that an applicant for, or recipient of, AFDC who refuses to cooperate and who claims to have good cause for refusing to cooperate has the burden of establishing the existence of a good cause circumstance. Such applicant or recipient will be required to:

(i) Specify the circumstances (see 232.42) that the applicant or recipient believes provide sufficient good cause for not cooperating.

(ii) Corroborate the good cause circumstances in accordance with 232.43; and

(iii) If requested, provide sufficient information (such as the putative father or absent parent's name and address, if known) to permit an investigation pursuant to 232.43(g).

(2) The plan shall provide that if the requirements of paragraph (c)(1) of this section are not met, the State or local agency shall on that basis determine that good cause does not exist.

232.41 Determination of good cause for refusal to cooperate.

The plan shall provide that:

(a) For each applicant for or recipient of AFDC who claims to have good cause, the State or local agency will determine, in accordance with 232.40, 232.42 and 232.43, whether good cause exists.

(b) The State or local agency's final determination that good cause does, or does not exist will:

(1) Be in writing;

(2) Contain the agency's findings and basis for determination; and

(3) Be entered into the AFDC case record.

(c) The State or local agency's determination of whether of not good cause exists will be made within a State established time standard that does not exceed 45 days from the day the good cause claim is made. The State or local agency may exceed this time standard only where the case record documents that the agency needs additional time because the information required to verify the claim cannot be obtained within the time standard or that the claimant did not provide corroborative evidence within the period required by 232.43(b).

(d) If the State or local agency determines that good cause does not exist:

(1) The applicant or recipient will be so notified and afforded an opportunity to cooperate, withdraw the application for assistance, or have the case closed; and

(2) Continued refusal to cooperate will result in imposition of the sanction provided by 232.12.

232.42 Good cause circumstances.

(a) Circumstances under which cooperation may be "against the best interests of the child." The plan shall provide that the State or local agency will determine that cooperation in establishing paternity and securing support is against the best interests of the child only if:

(1) The applicant's or recipient's cooperation in establishing paternity and securing support is reasonably anticipated to result in:

(i) Physical harm to the child for whom support is to be sought;

(ii) Emotional harm to the parent or caretaker relative with whom the child is living which reduces such person's capacity to care for the child adequately;

(iv) Emotional harm to the parent or caretaker relative with whom the child is living, of such person's capacity to care for the child adequately; or

(2) At least one of the following circumstances exists, and the State or local agency believes that because of the existence of that circumstance, in the particular case, proceeding to establish paternity or secure support would be detrimental to the child for whom support would be sought.

(i) The child for whom support is sought was conceived as aresult of incest or forcible rape;

(ii) Legal proceedings for the adoption of the child are pending before a court of competent jurisdiction; or

(iii) The applicant or recipient is currently being assisted by public or licensed private social agency to resolve the issue of whether to keep the child or relinquish him for adoption, and the discussions have not gone on for more than 3 months.

(b) Physical Harm and Emotional Harm defined. Physical harm and emotional harm must be of a serious nature in order to justify a finding of good cause under paragraph (a)(1) of this section. A finding of good cause for emotional harm may only be cased upon a demonstration of an emotional impairment that substantially affects the individual's functioning.

(c) Special considerations related to emotional harm. The plan shall provide that, for every good cause determination which is based in whole or part upon the anticipation of emotional harm to the child, the parent or the caretaker relative, as provided for in paragraphs (a)(1)(ii) and (iv) of this section, the State or local agency will consider the following:

(1) The present state of the individual subject to emotional harm;

(2) The emotional health history of the individual subject to emotional harm;

(3) Intensity and probable duration of the emotional impairment;

(4) The degree of cooperation to be required; and

(5 The extent of involvement of the child in the paternity establishment or support enforcement activity to be undertaken.

232.43 Proof of good-cause claim.

The plan shall provide that:

(a) The State or local agency will make a good-cause determination based on the corroborative evidence supplied by the applicant or recipient only after it has examined the evidence and found that it actually verifies the good-cause claim.

(b) The applicant or recipient who claims good cause must provide corroborative evidence within 20 days from the day the claim was made. In exceptional cases where the State or local agency determines the applicant or recipient requires additional time because of the difficulty of obtaining the corroborative evidence, the agency shall allow a reasonable additional period of time upon approval by supervisory personnel:

(1) Birth certificates or medical or law enforcement records which indicate that the child was conceived as the result of incest or forcible rape;

(2) Court documents or other records which indicate that legal proceedings for adoption are pending before a court of competent jurisdiction;

(3) Court, medical, criminal, child protective services, social services, psychological, or law enforcement records which indicate that the putative father or absent parent might inflict physical or emotional harm on the child or caretaker relative;

(4) Medical records which indicate emotional health historyand present emotional health status of the caretaker relative or the child for whom support would be sought, or, written statements from a mental health professional indication a diagnosis or prognosis concerning the emotional health of the caretaker relative or the child for whom support would be sought;

(5) A written statement form a public or licensed private social agency that the applicant or recipient is being assisted by the agency to resolve the issue of whether to keep the child or relinquish him for adoption; and

(6) Sworn statements form individuals other than the applicant or recipient with knowledge of the circumstances which provide the basis for the good-cause claim.

(d) If after examining the corroborative evidence submitted by the applicant or recipient, the State or local agency wishes to request additional corroborative evidence which is needed to permit a good-cause determination, the agency will:

(1) Promptly notify the applicant or recipient that additional corroborative evidence is needed; and

(2) Specify the type of document which is needed.

(e) Upon request, the State or local agency will:

(1) Advise the applicant or recipient how to obtain the necessary documents which the applicant or recipient is not reasonably able to obtain without assistance.

(2) Make a reasonable effort to obtain any specific documents which the applicant or recipient is not reasonably able to obtain without assistance.

(f) Where a claim is based on the applicant's or recipient's anticipation of physical harm as specified and defined and defined in 232.42 (a) and (b), and corroborative evidence is not submitted in support of the claim:

(1) The State of local agency will investigate the good-cause claim when the agency believes that:

(i) The claim is credible without corroborative evidence; and

(2) Good cause will be found if the claimant's statement and the investigation which is conducted satisfies the agency that the applicant or recipient has good cause for refusing to cooperate.

(3) A determination that good cause exists will be reviewed and approved or disapproved by supervisory personnel and the agency's findings will be recorded in the case record.

(g) The State or local agency may further verify the good-cause claim if the applicant's or recipient's statement of the claim required by 232.40(c)(1)(i), together with the corroborative evidence do not provide sufficient basis for making a determination. When the State or local agency determines that it is necessary, the agency may conduct an investigation of good-cause claims determine that good cause does or does not exist.

(h) If it conducts an investigation of a good-cause claim, the State or local agency will:

(1) Contact the absent parent or putative father from whom support would be necessary to establish the good-cause claim; and

(2) Prior to making such necessary contact, notify theapplicant or recipient to enable the applicant or recipient to:

(i) Present additional corroborative evidence or information so that contact with the parent or putative father becomes unnecessary;

(ii) Withdraw the application for assistance or have the case closed; or

(iii) have the good-cause claim denied.

232.44 Participation by the State IV-D Agency.

The plan shall provide that:

(a) Prior to making a final determination of good cause for refusing to cooperate, the State or local agency will:

(1) Afford the IV-D agency the opportunity to review and comment of the findings and basis for the opportunity to proposed determination; and

(2) Consider any recommendation from the IV-D agency.

(b) The State or local agency will give the IV-D agency the opportunity to participate in any hearing (under 205.10 of this chapter) that results form an applicant's or recipient's appeal of any agency action under 232.40 through 232.49.

232.45 Notice to the IV-D Agency.

The plan shall provide that:

(a) If the notice, required by 235.70 of this chapter, has previously been provided to the IV-D agency, the State or local agency will promptly report to the IV-D agency that good cause has been claimed;

(b) The State or local agency will promptly report to the IV-D agency all cases in which it has determined that there is good cause for refusal to cooperate and if applicable, its determination whether or not child support enforcement may proceed without the participation of the caretaker relative; and

(c) The State and local agency will promptly report to the IV-D agency all cases in which it has determined that there is not good cause for refusal to cooperate.

232.46 Granting or continuation of assistance.

The plan shall provide that the State or local agency will not deny, delay, or discontinue assistance pending a determination of good cause for refusal to cooperate if the applicant or recipient has complied with the requirements of 232.40(c) and 232.43 to furnish corroborative evidence and information.

232.47 Periodic review of good cause determination.

The plan shall provide that the State or local agency will:

(a) Periodically review, not less frequently than at each redetermination of eligibility required by 206.10(a)(9) of this chapter, those cases in which the agency has determined that good cause exists based on a circumstance that is subject to change;and

(b) If it determines that circumstances have changed such that good cause no longer exists, it will rescind its findings and proceed to enforce the requirements of 232.12 of this chapter.

232.48 Record keeping in good cause.

The plan shall provide that the State will maintain records of the activities under this section that will make it possible to submit to the Department, upon request, data concerning:

(a) The total number of cases in which the applicant or recipient claimed to have good cause for refusing to cooperate;

(b) The number of cases in which the claim was made without corroborative evidence under the provisions of 232.43(f);

(c) The total number of cases in which the applicant or recipient was found to have good cause for refusing to cooperate;

(d) The number of cases in which the applicant or recipient was found to have good cause for refusing to cooperate without corroborative evidence under the provisions of 232.43(f);

(e) The number of cases in which the applicant or recipient was fund to have good cause for refusing to cooperate based solely on an examination of the corroborative evidence supplied by the applicant or recipient with no investigation;

(f) The number of cases where good cause was claimed by an applicant prior to receiving AFDC and the final determination that good cause did not exist was made after the applicant was determined to be eligible for AFDC;

(g) The number of cases in which the applicant or recipient was found to have good cause for refusing to cooperate but there was a determination pursuant to 232.49 that child support enforcement may proceed without the participation of the caretaker relative; and

(h) For those cases in which good cause was found, which of the circumstances specified in 232.42 was found to exist.

232.49 Enforcement without the caretaker's cooperation

The State plan may provide that:

(a) If the State or local agency makes a determination that good cause exists it will also make a determination of whether or not child proceed without risk of harm to the child or caretaker relative if the enforcement or collection activities did not involve their participation;

(b) This determination will be in writing, contain the agency's findings and basis for determination, and be entered into the AFDC case record;

(c) If the IV-A agency excuses cooperation but determines that the IV-D agency may proceed to establish paternity or enforce support, it will notify the applicant or recipient to enable such individual to withdraw their application for assistance or have the case closed; and

(d) Prior to making a determination under this paragraph, the State or local agency will afford the IV-D agency anopportunity to review and comment on the findings and basis for the proposed determination and consider any recommendation from the IV-D agency.

APPENDIX A-MODEL TWO-PART GOOD CAUSE

NOTICE

This suggested two-part notice format meets the notice requirements of 232.40(b)(2). The first notice should be provided prior to requiring the applicant's or recipient's cooperation. The second notice should be promptly provided if the applicant or recipient so requests or following a claim of good cause. Receipt of the notice will be acknowledged by the applicant's or recipient's and the worker's signatures. The signed copy should be places in the AFDC case record with one copy retained by the applicant or recipient.

Before being used by a State this model should be adapted by substituting the appropriate agencies' names.

NOTICE OF REQUIREMENT TO COOPERATE AND RIGHT TO CLAIM GOOD CAUSE FOR REFUSAL TO COOPERATE IN CHILD SUPPORT ENFORCEMENT

Benefits of Child Support Enforcement

Your cooperation in the child support enforcement process may be of value to you and your child because it might result in the following benefits:

* Finding the absent parent;

* Legally establishing your child's paternity;

* The possibility that support payments might be higher than your welfare grant; and

* The possibility that you and your children may obtain rights to future social security, veterans, or other government benefits.

WHAT IS MEANT BY COOPERATION?

The law requires you to cooperate with the welfare and child support agencies to get any support owed to you and any of the children for whom you want AFDC, unless you have good cause for not cooperating.

* Name the parent of any child applying for or receiving AFDC, and give information your have to help find the parent;

* Help determine legally who the father is if your child was born out of wedlock;

* Give help to obtain money owed to you or the children receiving AFDC; and

* Pay to he State any money which is given directly to you by the absent parent (you will continue to get your full AFDC grant from the State).

You may be required to come to the welfare office, child support office, or court to sign papers or give necessary information.

WHAT IS MEANT BY GOOD CAUSE?

You may have good cause not to cooperate in the State's efforts to collect child support. You may be excused from cooperating if you believe that cooperation would not be in the best interest of your child, and if you can provide evidence to support this claim.

IF YOU DO NOT COOPERATE AND YOU DO NOT

HAVE GOOD CAUSE

* You will be ineligible for AFDC.

* Your children will still be eligible for AFDC for their own needs. Your children's grant will go to another person, called a "protective payee."

HOW AND WHEN YOU MAY CLAIM GOOD CAUSE

* If you want to claim good cause, you must tell a worker that you think you have good cause. You can do this at any time you believe you have good cause not to cooperate.

* If you claim "good cause" you must be given another notice. This second notice will explain the circumstances under which the Welfare Agency may find good cause, and the type of evidence or other information the Welfare Agency needs to decide your claim. You may also ask for this second notice to help you decide whether or not to claim good cause.

I have read this notice concerning my right to claim good cause for refusing to cooperate.

(Signature of applicant/recipient)

(Date)

I have provided the applicant/recipient with a copy of this notice.

(Signature of Worker)

(Date)

SECOND NOTICE OF RIGHT TO CLAIM GOOD

CAUSE FOR REFUSAL TO COOPERATE IN

CHILD SUPPORT ENFORCEMENT

You may claim to have good cause for refusing to cooperate if you believe that such cooperation would not be in the best interests of your child. The following are circumstances under which the Welfare Agency may determine that you have good cause for refusing to cooperate:

* Cooperation is anticipated to result in serious physical or emotional harm to the child;

* Cooperation is anticipated to result in physical or emotional harm to you which is so serious it reduces you ability to care for the child adequately;

* The child was born after forcible rape or incest;

* Court proceedings are going on for adoption of the child; or

* You are working with an agency helping you to decide whether to place the child for adoption.

PROVING GOOD CAUSE

It is your responsibility to:

* Provide the Welfare Agency with the evidence needed to determine whether you have good cause for refusing to cooperate (If your reason for claiming good cause is your fear of physical harm and it is impossible to obtain evidence, the Welfare Agency may still be able to make a good cause determination after an investigation of your claim.)

* Give the necessary evidence to the agency within 20 days after claiming good cause. The Welfare Agency will give you more time only if it determines that more than 20 days are required because of the difficulty in obtaining the evidence.

The Welfare Agency may:

* Decide your claim based on the evidence which you give to the agency, or

* Decide to conduct an investigation to further verify your claim. If the Welfare Agency decides an investigation is needed, you may be required to give information, such as the absent parent's name and address, to help the investigation. The agency will not contact the absent parent without first telling you.

NOTE - If you are an applicant for assistance, you will not receive your share of the grant until you support your claim, and, if requested, the information needed to permit an investigation of your claim.

EXAMPLES OF ACCEPTABLE EVIDENCE

The following are examples of acceptable kinds of evidence the Welfare Agency can use in determining id good cause exists.

If you need help in getting a copy of any of the documents, ask the Welfare Agency. The Welfare Agency will give you reasonable assistance which is needed to help you obtain the necessary documents to support your claim.

* Birth certificates, or medical or law enforcement records, which indicate that the child was conceived as the result of incest or forcible rape;

* Court documents or other records which indicate that legal proceedings for adoption are pending in court;

* Court, medical, criminal, child protective services, social services, psychological, or law enforcement records which indicate that the alleged or absent father might inflict physicalor emotional harm on you or the child;

* Medical records which indicate emotional health history and present health status of you or written statements from a mental health professional indicating a diagnosis or prognosis concerning the emotional health of you or the child;

* A written statement from a public or private agency confirming that you are being assisted in resolving the issue of whether to keep or give up the child for adoption; and

* Sworn statement from individuals, including friends, neighbors, clergymen, social workers, and medical professionals who might have knowledge of the circumstances providing the basis of your good cause claim.

CHILD SUPPORT AGENCY PARTICIPATION AND

ENFORCEMENT

The Child Support Enforcement Agency may review the Welfare Agency's findings and the basis for a good cause determination in your case. If you request a hearing regarding this issue of good cause for refusing to cooperate, the Child Support Enforcement Agency may participate in that hearing.

The notice must include one of the following statements, as applicable depending on the State plan option chosen. See 232.49.

Option 1

If you are found to have good cause for not cooperating, the Child Support Enforcement Agency may attempt to establish paternity or collect support only if the Welfare Agency determines that this can be done without risk to you or your child. This will not be done without first telling you.

Option 2

If you are found to have good cause for not cooperating, the Child Support Enforcement Agency will not attempt to establish paternity or collect support.

I have read this notice concerning my right to claim good cause for refusing to cooperate.

(Signature of applicant/recipient)

(Date)

(Signature of worker)

(Date)

(Sec. 1102 of the Social Security Act, 49 Stat. 647 (42 U.S.C.1302))

(Catalogue of Federal Domestic Assistance Program No. 13,761, Public Assistance-Maintenance Assistance(State Aid))

Note - the Social Security Administration has determined that this document does not require preparation of a regulatory analysis as required by Executive Order 12044.

Dated: September 27, 1978.

Don Wortman,

Acting Commissioner of Social Security.

Approved: September 28, 1978.

Joseph A. Califano, Jr.,

Secretary.

[FR Doc 78-27933 filed 10-2078;8:45 am]

[4110-07]

CHAPTER III - OFFICE OF CHILD SUPPORT ENFORCEMENT (CHILD SUPPORT ENFORCEMENT PROGRAM), DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

PART 302 - STATE PLAN

REQUIREMENTS

Good Cause for Refusing to

Cooperate

AGENCY: Office of Child Support Enforcement, HEW.

ACTION: Final rule.

SUMMARY: This amendment to the Child Support Enforcement Program (title IV-D) State plan requirement to establish paternity and secure support merely changes the cross-reference to the title IV-A good cause regulations. New final good cause regulations in 45 CFR chapter II were published today also in this Part III of the FEDERAL REGISTER.

EFFECTIVE DATE: This amendment becomes effective on

December 4, 1978, or upon implementation of 45 CFR 232.40 through 232.49, whichever is earlier. (See FR Doc 78-27933 also published in this Part III of the FEDERAL REGISTER.)

FOR FURTHER INFORMATION CONTACT:

Steve Henigson, telephone 202-472-4510.

SUPPLEMENTARY INFORMATION:

On January 16, 1978 (43 FR 2178) the Department published a final regulation providing that the agency that administers the State;s Child Support Enforcement Program (IV-D agency) will not attemptto establish paternity or collect support in any case in which a determination has been made by the State or local welfare agency (IV-A agency) that an applicant or recipient of Aid to Families with Dependent Children (AFDC) has good cause for refusing to cooperate in establishing paternity and securing support. Also on January 16, 1978 (43 FR 2170) the Department published a regulation which specified the standards under which the IV-A agency would determine whether an AFDC applicant or recipient has good cause for refusing to cooperate. Today the Department adopted new title IV-A good cause standards effective on December 4, 1978 (published also in this Part III of the FEDERAL REGISTER.) This amendment conforms the cross reference in the title IV-D regulation to those new title IV-A regulations.

PUBLIC PARTICIPATION

The January 16, 1978, good cause regulations, both title IV-D and title IV-A, solicited additional public comments for 90 days after the effective date. In addition the Department held a public hearing on the good cause regulations. For details concerning this public input please refer to the companion IV-A regulations. The major concerns were with the IV-A good cause standards and the IV-D regulation was only incidentally involved. A discussion of the comments germane to this regulation follow.

SUSPENSION OF ENFORCEMENT PENDING

THE GOOD CAUSE DETERMINATION

The regulation provides at 302.31(b)(2) that the title IV-D agency, upon receiving notice from the IV-A agency that an applicant or recipient has claimed good cause, shall suspend all activities to establish or secure child support until notified of a final good cause determination. Several comments suggested that this policy was violative of section 454(4) of the Social Security Act which they argue permits the State IV-D agency to proceed to establish paternity and secure support until the IV-A agency makes a finial determination that good cause exists. Such an interpretation, however, ignores the express purpose of the good cause exception which is to protect the child in those instances where establishing paternity or securing support would harm the child. Permitting the IV-D agency to develop the evidence necessary to show paternity or allowing it to take the steps necessary to obtain support even though the good cause investigation has not been completed could result in the very harm to the child or mother which the legislative history clearly shows Congress intended to prevent. The Department believes that this regulation restraining the IV-D agency pending a good cause determination is the most reasonable method by which to effect the Congressional intent of protecting the interests of the child while the good cause determination is being made. Accordingly, no change has been made in this aspect of the regulation.

EFFECTIVE DATE

This amendment will become effective on December 4,1978, or upon implementation of the companion title IV-A regulations published today, whichever is earlier. (See FR Doc. 7827933 also published in this Part III of the FEDERAL REGISTER.)

45 CFR Chapter III, Part 302 is amended by revision 302.31 to read as follows:

302.31 Establishing and paternity securing support.

The State plan shall provide that:

(a) The IV-D agency will undertake:

(1) In the case of a child born out of wedlock with respect to whom an assignment under 232.11 of this title is effective, to establish the paternity of such child; and

(2) In the case of any child with respect to whom such assignment is effective, to secure support for such child from any person who is legally liable for such support, utilizing reciprocal arrangements adopted with other States when appropriate; and

(b)(1) The IV-D agency will not undertake to establish paternity or secure child support in any case for which it has received notice from the IV-A agency that there has been a finding of good cause under 232.40 through 232.49 of this title except as provided in paragraph (c) of this section.

(2) Upon receiving notice form the IV-A agency that an applicant or recipient has claimed good cause, the IV-D agency will suspend all activities to establish paternity or secure child support until notified of a final determination by the IV-A agency.

(c) The IV-D agency will not undertake to establish paternity or secure child support if there has been a finding of good cause pursuant to 232.40 through 232.49 of this title unless there has been a determination by the State or local IV-A agency that child support enforcement may proceed without the participation of the caretaker relative. If there has been such a determination, the IV-D agency will undertake to establish paternity or secure child support but may not involve the caretaker relative in such undertaking.

(Sec. 1102, 49 Stat. 647 (42 U.S.C. 1302))

Catalogue of Federal Domestic Assistance Program No. 13679, Child Support Enforcement Program)

Note - The Office of Child Support Enforcement has determined that this document does not require preparation of a regulatory analysis as required by Executive Order 12044.

Dated: September 28, 1978.

Joseph A. Califano, Jr.,

Secretary.