No. 39262 (New Rule): Rule R527-254. Limitations on Collection of Arrears

(New Rule)

DAR File No.: 39262
Filed: 04/03/2015 12:15:28 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Section 62A-11-107 authorizes the Office of Recovery Services/Child Support Services (ORS/CSS) to adopt, amend, and enforce administrative rules. The purpose of this rule is to clarify that the parents bear the responsibility for maintaining records of support balances due and paid when there is no case open with the state IV-D agency (ORS/CSS), to define the circumstances in which ORS/CSS will collect support arrears which accrue during timeframes when no ORS/CSS IV-D services case is open for the parties, and to outline the procedures that ORS/CSS will follow when confirming the remaining balance due on an arrears debt. All Utah orders issued on or after 01/01/1994 are subject to income withholding, either through a IV-D services case or through a non-IV-D case pursuant to Section 62A-11-502. The responsibility to maintain records of support due and support paid during time periods when neither a IV-D services case nor a non-IV-D services case is open with ORS/CSS lies with both parents. ORS/CSS is not a record keeper for amounts due and paid during time periods that there is no IV-D/non-IV-D services case open, and as a result, has no knowledge of any payments exchanged between the parties during those time periods. In the past, as cases reopened with ORS/CSS, ORS/CSS has attempted to gather evidence from both parties and to reconcile the balance that accrued and remained due; these attempts often involve sorting through conflicting information from the parties. ORS/CSS is unable to be the primary finder of fact for child support arrears which accrue when there is not an open IV-D services or Non-IV-D services case. By placing this responsibility on the parents to have an adjudicated amount of arrears due pursuant to the child support order prior to ORS commencing collection efforts toward those arrears, ORS/CSS will no longer be placed in the role of finder of fact. ORS/CSS will be able to limit the number of hours that workers spend each year in reconciling arrears balances that accrued during timeframes when ORS/CSS did not have a IV-D/non-IV-D services case open, as well as limit the Attorney General�s Office's (AGO) time spent in court resolving matters of arrears balances between the parents.

Summary of the rule or change:

The first section of this rule provides the authority (Section 62A-11-107) and purpose of the rule, which is to define the circumstances when the Office of Recovery Services (ORS/CSS) will collect support arrears that accrue during time periods when there is not an open IV-D case with ORS/CSS. The second section defines certain terms specific to the purpose of this rule. The third section identifies when ORS/CSS is responsible to maintain accurate records of support due and payments made and when the parents are responsible for maintaining those records. The fourth section describes when ORS/CSS will enforce current support and arrears that are owed under the valid child support order. The fifth section identifies the applicant's responsibilities for providing the office with a judicial determination of the support arrears and a history of all payments made towards that debt. The last section identifies the obligor's responsibilities for disputing the arrears balance and for providing ORS/CSS with copies of proof of payments.

State statutory or constitutional authorization for this rule:

• Section 62A-11-502
• 45 CFR 303.11
• Section 62A-11-107
• Section 78B-12-113

Anticipated cost or savings to:

the state budget:

There will be a savings to the state budget because of the decrease in the number of payment reviews that will be completed by the Office of Recovery Services (ORS/CSS) staff, as well as the number of hours spent by the AGO in not having to go to court to resolve arrears balance disputes judicially. During state fiscal year 2014, the following payment reviews were completed by ORS/CSS staff: 1,708 cases were reviewed, with a total of 9,716 payments reviewed. Each case that is reviewed consists of the following steps: compilation of the proof of payment, reviewing the evidence received, making an assessment of whether or not each payment was for child support, generating and sending required letters, monitoring the cases for additional information requested from the parents, etc. This process takes at least one hour to complete the assessment, generate the appropriate letters, and deal with the responses when the review only involves one or two payments (the time increases with each additional payment involved in a review). This equals a minimum of 1,708 hours of CSS workers' time each year reviewing proof of payments and trying to make a determination of the balances owed for those time periods on a case when there was not an active IV-D case open with the office. An average ORS employee completing this process receives approximately $32.69 an hour in compensation (wages and benefits), which means that the minimum current cost to ORS for this one singular type of review each year is $55,834.52. (1708 X $32.69 = $55,834.52). In addition, there will be a small savings to the state in postage. This change would no longer require that workers send letters to the parents requesting proof of payments and the results of a worker's decision. Each time a review is completed, a minimum of two letters are sent, one to each parent. Using the same cases reviewed in fiscal year 2014, 1,708 cases were reviewed, which means 3,416 letters were sent. The current price of postage is $0.49 for a first class letter, which would result in a savings to the state of $1,673.84. (3416 X $0.49 = $1,673.84). Any savings outlined above will help alleviate the effects of budget and staffing cuts absorbed by ORS over the past five years. These amounts do not include any of the time or money spent by the AGO division assigned to ORS each year in resolving the same type of issues judicially. While there is no way to identify a quantifiable amount for the time spent by the attorneys on these specific cases, the AGs report that some of these cases have remained in litigation for multiple years, which means there could be a substantial savings to the state by no longer providing this service.

local governments:

Administrative rules of ORS/CSS do not apply to local government; therefore, there are no anticipated costs or savings for any local businesses due to this amendment.

small businesses:

There are no anticipated costs for small businesses because the changes only affect internal procedures of ORS/CSS.

persons other than small businesses, businesses, or local governmental entities:

There may be minimal savings to the non-custodial parent by no longer having to mail in proof of payments made directly to the custodial parent during those time periods when there was not an open IV-D case with the office. There may be other costs that the parents will incur should one of the parents decide to have the matter resolved judicially. Some of those costs may include filing fees with the district court. If the initial child support order was issued by a Utah district court, there would be no filing fees incurred to have the arrears balance adjudicated. If the initial order was not issued in Utah or it is a Utah administrative order, the parents will incur a minimum filing fee of $310 if they file pro se. However, there is no way to know how many parents will take advantage of this process or if they will choose to file pro se or hire an attorney, so the total costs are not quantifiable. There may be other costs associated with adjudicating the arrears balance, but ORS has no way to identify those costs.

Compliance costs for affected persons:

There may be minimal costs to affected persons if one of the parents decides to adjudicate his/her arrears judicially. Some of those costs may include filing fees with the district court. If the initial child support order was issued by a Utah district court, there would be no filing fees incurred to have the arrears balance adjudicated. If the initial order was not issued in Utah or it is a Utah administrative order, the parents will incur a minimum filing fee of $310 if they file pro se. However, there is no way to know how many parents will take advantage of this process or if they will choose to file pro se or hire an attorney, so the total costs are not quantifiable. There may be other costs associated with adjudicating the arrears balance, but ORS/CSS has no way to identify those costs.

Comments by the department head on the fiscal impact the rule may have on businesses:

There are no anticipated fiscal impacts to businesses as a result of this rule.

Ann Silverberg Williamson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Services
Recovery Services
515 E 100 S
SALT LAKE CITY, UT 84102-4211

Direct questions regarding this rule to:

• Andrew Clement at the above address, by phone at 801-741-7434, by FAX at 801-536-8509, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/02/2015

This rule may become effective on:

06/09/2015

Authorized by:

Liesa Stockdale, Director

RULE TEXT

R527. Human Services, Recovery Services.

R527-254. Limitations on Collection of Arrears.

R527-254-1. Authority and Purpose.

(1) Section 62A-11-107 authorizes the Office of Recovery Services/Child Support Services (ORS/CSS) to adopt, amend and enforce rules.

(2) The purpose of this rule is to define the circumstances in which ORS/CSS will collect support arrears which accrue during timeframes when no ORS/CSS IV-D services case is open, and to outline the procedures ORS/CSS will follow when confirming the remaining balance due on an arrears debt.

 

R527-254-2. Definitions.

(1) "Arrears" means the past-due support debt created by the nonpayment of current support when it is due.

(2) "Current support" means the tribunal-ordered support amount due and payable within the current month or other tribunal-specified time period.

(3) "ORSIS" means the Office of Recovery Services Information System. ORSIS is used to maintain records of support due and support received on open IV-D support services cases.

 

R527-254-3. Responsibility to Maintain Records of Support Due and Paid.

(1) ORS/CSS will maintain a record of support due and payments received while there is an open IV-D support services case.

(2) ORS/CSS will not maintain records of support due and support paid during timeframes when there is not an open IV-D services case with ORS/CSS. It is the responsibility of both parents to maintain their own records regarding child support when no IV-D case is open.

 

R527-254-4. Limitation on Collection of Arrears.

(1) ORS/CSS will enforce tribunal-ordered current support commencing with the month that one of the following occurs:

(a) ORS receives an Application for Child Support Services containing sufficient information to open a IV-D services case;

(b) A parent or guardian begins receiving IV-A cash assistance or Medicaid benefits for a child in his or her care; or,

(c) An intergovernmental transmittal is received requesting enforcement services on behalf of an intergovernmental agency.

(2) ORS/CSS will enforce arrears which accrue while there is an open IV-D services case. Enforcement of accrued arrears will continue until the IV-D services case is closed in accordance with federal regulations found in 45 CFR 303.11 or closed at the request of the applicant for child support services. When the IV-D services case is closed, ORS/CSS will remove any remaining debt balances from ORSIS.

(3) ORS/CSS will enforce support arrears that are determined by a judicial court in the following circumstances:

(a) If a determination of arrears is issued while there is an open IV-D services case and submitted to ORS/CSS for enforcement on the existing case;

(b) If a determination of arrears is issued within one year (365 days) prior to the date the ORS/CSS office receives an Application for Child Support Services which contains sufficient information to open a IV-D services case, ORS will enforce the arrears balance remaining due as reported by the applicant for services.

(c) If a determination of arrears is issued during a time period when there is not an open IV-D case with ORS/CSS and more than one year (more than 365 days) has elapsed prior to the application timeframe described above, ORS/CSS will not enforce on any remaining balance of those arrears. The amount remaining due on those arrearages must be adjudicated and determined before ORS/CSS will begin enforcement actions.

 

R527-254-5. Record of Payments -- Applicant.

(1) If an applicant for IV-D services wishes to submit a determination of support arrears by a judicial court to ORS/CSS for collection, the applicant must provide a copy of that order.

(2) The applicant must also provide a record of all payments received toward that debt as a remaining balance on the debt. The record of payments received must include the date and the amount of each payment.

 

R527-254-6. Proof of Payments -- Obligated Parent.

(1) The obligated parent may dispute the remaining arrears balance that ORS/CSS is enforcing or other arrears being collected by ORS/CSS by providing proof of payments made toward the balance. ORS/CSS will consider the following items as proof of payment:

(a) Copies of cancelled checks, front and back;

(b) Payment receipts from the ordered recipient of the payments;

(c) A notarized statement from the ordered recipient acknowledging additional payments, including the amount of the payments and the date of the payments; and,

(d) With ORS/CSS Director (or designee) approval, other forms of payment documentation which clearly show the amount paid, the date of the payment, proof that the payment was received by the ordered recipient, and clear documentation of the purpose of the payment.

(2) ORS/CSS will not consider the following items as proof of payment:

(a) Receipts for purchases in lieu of payments;

(b) Agreements for services provided in lieu of payments;

(c) Receipts for payments made to a third-party in lieu of payments to the recipient;

(d) Statements showing bank transfers where the recipient's account is not clearly identifiable as the ordered recipient; or,

(e) Any form of documentation including those identified in subsection (1) that does not clearly show the amount paid, the date of the payment, proof that the payment was received by the ordered recipient, and clear documentation of the purpose of the payment.

(3) If the obligated parent provides additional proof of payments, an updated list of the payments will be provided to both parties.

(4) If either party wishes to contest the arrears balance further, the matter must be adjudicated judicially by the parties. ORS/CSS will continue to enforce the amount due based on the proof provided by the parties according to the above guidelines unless directed otherwise by a court or tribunal.

 

KEY: arrears, past-due support, child support

Date of Enactment or Last Substantive Amendment: 2015

Authorizing, and Implemented or Interpreted Law: 45 CFR 303.11; 62A-11-107; 62A-11-502; 78B-12-113

 

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