No. 31158 (Amendment): R527-300. Income Withholding

DAR File No.: 31158
Filed: 04/18/2008, 12:01
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being amended to add the section identifying the authority of the Office of Recovery Services (ORS) for rulemaking and the purpose of the rule and to correct two nonsubstantive citation errors.

Summary of the rule or change:

Section R527-300-1 is being added to provide the legal authority for rulemaking that has been granted to the Office of Recovery Services/Child Support Services (ORS/CSS) and a statement describing the purpose of this specific rule. The rest of the rule has been renumbered due to the addition of Section R527-300-1. The citation for Subsection 62A-11-401(5) has been updated to Subsection 62A-11-401(6). The citation for the implemented or interpreted law formerly found at Section 78-45f-506 has been updated to Section 78B-14-506 due to the recodification of Title 78 (H.B. 78 (2008)). The words "as cited in" have been added to Section R527-300-6 to clarify the reference to U.S. Code. (DAR NOTE: H.B. 78 (2008) is found at Chapter 3, Laws of Utah 2008, and was effective 02/07/2008.)

State statutory or constitutional authorization for this rule:

Sections 62A-11-107, 62A-11-401, 62A-11-404, 62A-11-405, 62A-11-406, 62A-11-413, 62A-11-414, and 78B-14-506 (formerly 78-45f-506)

Anticipated cost or savings to:

the state budget:

The proposed changes to the rule are for clarification purposes only and do not affect the current procedures; therefore, there are no anticipated costs or savings for any state programs due to this amendment.

local governments:

Administrative rules of the 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 and persons other than businesses:

The proposed changes to the rule are for clarification purposes only and do not affect the current procedures; therefore, there are no anticipated costs or savings for small businesses due to this amendment. The proposed changes to the rule are for clarification purposes only and do not affect the current procedures; therefore, there are no anticipated costs or savings for persons other than businesses due to this amendment.

Compliance costs for affected persons:

No person or entity affected by this rule should incur any additional costs as a result of the proposed changes because the basic procedures remain the same.

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

Businesses are not addressed in the rule or the proposed changes and it is not anticipated the changes will create any fiscal impact on them. Lisa-Michele Church, 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:

Liesa Corbridge at the above address, by phone at 801-536-8986, by FAX at 801-536-8833, 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:

06/16/2008

This rule may become effective on:

06/23/2008

Authorized by:

Mark Brasher, Director

RULE TEXT

R527. Human Services, Recovery Services.

R527-300. Income Withholding.

R527-300-1. Authority and Purpose.

1. Section 62A-11-107 requires that the Office of Recovery Services/Child Support Services (ORS/CSS) provide certain services and allows ORS/CSS to adopt, amend and enforce rules as needed to carry out its duties.

2. The purpose of this rule is to outline ORS/CSS procedures to determine when income withholding is appropriate, define the limits on income withholding, and specify how to contest and terminate income withholding actions.

 

R527-300-[1]2. Income Withholding Definition and Criteria.

1. Income withholding is defined as withholding child support from an obligor's income. The payor of income forwards the amount withheld to [the Office of Recovery Services/Child Support Services (]ORS/CSS[)].

2. Income withholding may be initiated in a IV-D case, with concurrent notice to the obligor:

a. in a case which has an order issued prior to October 13, 1990, which has not been modified since October 13, 1990, even though the obligor is not delinquent as defined in Section 62A-11-401([5]6) or R527-300-[2]3, if the obligor and the obligee have signed a subsequent agreement which the obligor has failed to meet; for example, while the order does not require payment by a specific date, there is a written agreement that payment will be made on the first day of each month, or

b. in a case which has an order issued or modified after October 13, 1990, which found a demonstration of good cause or entered a written agreement that immediate income withholding is not required, if the obligor and the obligee have signed a subsequent agreement which the obligor has failed to meet; for example, while the order does not require payment by a specific date, there is a written agreement that payment will be made on the first day of each month.

 

R527-300-[2]3. Determining Delinquency.

1. If current support has been ordered but is not presently in effect; for example, the children are 18 years old, the children have been adopted, custody has changed, or the obligor is paying current support to the obligee; delinquency has occurred when the obligor has accrued a debt in an amount equal to or greater than the previously ordered current support for one month.

2. If there was not a previous current support order but there is a judgment for arrears, delinquency has occurred when the obligor fails to pay as agreed, provided the judgment was for at least one month's current support amount used to compute the judgment for arrears. If the judgment was by default and the judgment amount was for at least one month's current support amount used to compute the judgment, income withholding may begin immediately upon entry of the judgment.

3. A delinquency could be the result of an underpayment for several months that totals at least one month's current support.

4. A delinquency can occur prior to the end of the month if the obligor was ordered to pay on specific days of the month and failed to do so.

 

R527-300-[3]4. Affidavit of Delinquency.

The Non-IV-A applicant prepares a month-by-month computation of the support debt, which is referred to as a statement of arrears. The statement of arrears is part of the application packet. As part of the statement of arrears, the applicant attests that the statement is true and accurate to the best knowledge and belief of the applicant. This signed statement shall satisfy the verified statement requirement of Section 62A-11-405.

 

R527-300-[4]5. Administrative Review.

1. Section 62A-11-405(2)(b)(ii)(B) requires the obligor to file a written request for review with the office within 15 days to contest withholding. This written request for review shall state the obligor's basis for contesting the withholding.

2. If an administrative review is conducted pursuant to Section 62A-11-405(3), the notice of decision required may be mailed or delivered to the obligor in the ordinary course of business.

 

R527-300-[5]6. Percentage of Income Subject To Withholding.

Section 62A-11-406 limits the total amount of the income withheld for child support to the maximum permitted under Section 303(b) of the Consumer Credit Protection Act as cited in 15 U.S.C. Section 1673(b). In general, income withholding will be limited to withholding 50% of the obligor's disposable income. However, if 50% does not result in withholding enough to cover the current support obligation, the office may review an obligor's circumstances under the provisions of the Consumer Credit Protection Act to determine whether a higher percentage is permitted.

 

R527-300-[6]7. Modification of Withholding Amounts.

1. Once a Notice to Withhold Income for Child Support has been sent to the obligor's payor of income, any changes to the withholding amount will be made by sending the payor a modified Notice to Withhold Income for Child Support. The obligor will be provided concurrent notice of any changes.

2. If the obligor changes from one payor of income to another payor of income, a new Notice to Withhold Income for Child Support must be sent to the new payor in accordance with ORS/CSS assessment procedures.

 

R527-300-[7]8. Income Withholding Termination.

1. Income withholding should be terminated if:

a. the obligor no longer has an obligation for current child support, and no longer has a debt to Utah or another state on whose behalf Utah is acting or to a Non-IV-A obligee on whose behalf Utah is acting;

b. the Non-IV-A obligee terminates the ORS/CSS case, income withholding was administratively implemented and the obligor no longer owes child support to Utah or other state on whose behalf Utah is acting, and the obligee does not want withholding to continue;

c. the obligor successfully contests the withholding which is currently in effect through the court or administrative review process. If income withholding was terminated based on a court or administrative order and the obligor later becomes delinquent, income withholding will be reinstated.

 

R527-300-[8]9. Contesting an Income Withholding Order Issued by Another State.

The Obligor may contest the validity or enforcement of an income-withholding order issued by another state in this state by registering and filing a contest to that order in the appropriate Utah court.

 

KEY: child support, income, wages

Date of Enactment or Last Substantive Amendment: [November 30, 2004]2008

Notice of Continuation: September 7, 2007

Authorizing, and Implemented or Interpreted Law: 62A-11-401; 62A-11-404; 62A-11-405; 62A-11-406; 62A-11-413; 62A-11-414; [78-45f-506]78B-14-506