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Implementing Child Support Cooperation Policies Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996

Nov 01, 1996 | Paula Roberts

On August 22, 1996, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRA) became law. Pursuant to this legislation, the majority of states will be redesigning their welfare systems./1 By July 1, 1997, most states will have replaced their Aid to Families with Dependent Children (AFDC) programs with new programs called Temporary Assistance for Needy Families (TANF). Under TANF, states will have a good deal of latitude to determine who will be eligible for help and under what conditions assistance will be provided.

One important area of state discretion is the relationship between eligibility for TANF assistance and the pursuit of child support. In the AFDC program, federal law and regulations required recipients to assign their child support rights to the state and cooperate with the state in pursuing those rights. "Cooperation" included providing the name of the absent parent and any other information about him known by or reasonably available to the mother. If the mother had little or no information, she could sign an attestation to that effect and, unless it had credible evidence that she was lying, the state had to accept this attestation as fulfilling the cooperation requirement. In addition, for those with information who did not wish to pursue support, limited "good cause" exceptions were available. "Good cause" situations included those in which there were domestic violence concerns, the child was conceived as the result of rape or incest, and adoption was being contemplated. The determination about whether a given recipient was cooperating or had "good cause" not to cooperate was made by the AFDC agency. If that agency felt that a recipient was not cooperating, then her needs would be removed from the grant and payments would be made to a protective payee for the children.

Both state agencies and mothers expressed dissatisfaction with this system. Mothers found state practices such as paternity questionnaires which went well beyond ascertaining information pertinent to paternity establishment demeaning. Domestic violence victims often had a hard time meeting the standard of proof necessary to establish a "good cause" exemption. Many mothers reported providing a plethora of information to the public assistance agency when they applied for assistance in which the child support agency simply failed to act.

Child support personnel, on the other hand, frequently objected to the fact that a mother could meet her cooperation obligation by attesting to a lack of knowledge about the missing father. These workers alleged that there was significant failure by mothers to provide all of the information that they had. Some also felt that the penalty for non-cooperation was not stiff enough and/or that the public assistance agency failed to impose penalties on mothers even when the child support agency thought a sanction was in order. Reflecting these concerns, more than a dozen states sought federal waivers to experiment with different definitions of "cooperation" and to impose harsher penalties for non-cooperation.

Social science research suggests that non-cooperation is not a major problem. However, that same research suggests that some of the practices within the current system make it appear that non-cooperation is a problem. These practices include 1) failure by public assistance workers to inform mothers about what the cooperation requirement is and what is expected from them. This failure means that some mothers are not supplying information because they do not know what it is the system wants: 2) failure by public assistance workers to conduct thorough intake interviews. This leads child support workers to think the mother is withholding information when the problem is she was never asked by the public assistance worker to provide it; and 3) poor interface between the public assistance and child support systems which means that information supplied to the public assistance worker never reaches the child support worker. This leads the child support worker to conclude that the mother is not supplying information she logically should have when, in fact, she has provided the information to the IVA worker and it simply never reached the appropriate IVD official.

In 1996, Congress decided to address these issues. Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, states will have to have child support assignment and good faith cooperation requirements for TANF participants. However, states will be able to enhance the federal definition of "cooperation" and develop their own "good cause" exceptions to the cooperation requirement. They will also be able to decide (within certain limits) what the penalty for non-cooperation will be. Moreover, states will have a number of options in designing the TANF/child support interface and can give the child support agency a much more active role in conducting the initial interview, assessing good faith cooperation, and determining "good cause."

States will be making decisions about the design of the TANF/child support interface at the same time they are implementing a time-limited public assistance program. In the AFDC program, there was no specific limit on the amount of time during which a family could receive help. Under the TANF program, there is a maximum lifetime limit of 60 months. States are free to set even shorter periods of eligibility. In this context, many families will be keenly interested in obtaining child support payments so that they can avoid the use of TANF assistance and not "use up" their limited period of eligibility for benefits. Some AFDC families will want to aggressively pursue support because, while eligible for AFDC, they are not eligible for TANF assistance under the state's eligibility criteria. Others will receive TANF assistance but, as they near the end of their time limit, will want to obtain child support to provide financial assistance when TANF assistance is cut off.

In this context, the greatest need of families is for an improved child support intake and case processing system so that paternity can be established and support obtained as efficiently and swiftly as possible. The new law focuses less on this issue and more on the need for states to develop stricter child support cooperation requirements. Ironically, in the context of time limits, there may be little need to develop these requirements. Nevertheless, the new law and the political climate which produced it, compel states to do so.

In deciding how to design their new systems, states can look to experience gained and lessons learned under the AFDC cooperation/good cause system. In addition, states can look to experience under the waiver projects mentioned above. Typically, these waivers sought to do one or more of the following:

to realign the functions of the IVA and IVD agencies so that responsibility for intake and/or cooperation determinations was moved from the IVA agency to the IVD agency.
to redefine the "cooperation" standard to make it more specific and objective. A major emphasis here was on requiring mothers whose children had not had their paternity established to provide the father's full name plus several other pieces of information in order to be deemed "cooperative."
to increase the sanction for failure to cooperate. The thrust here was to impose penalties beyond sanctions on the mother or to provide escalating sanctions for each failure to cooperate.

States can look to practice under these waivers for lessons about how to; 1) engage in joint, face-to-face problem solving involving both the IVA and the IVD agencies; 2) design a workable set of "cooperation in good faith" and "good cause" definitions; and 3) develop a workable system to implement the revised definitions.

This monograph is designed to assist those involved with developing new state practices in this area. It begins with a more detailed examination of the AFDC "cooperation" and "good cause" policies. It then describes changes in federal law that will now have to be implemented. The major decision-making areas are then broken down under four headings.

First, the monograph discusses placement of the intake and cooperation determination processes. Currently, the public assistance (IVA) agency conducts the initial interview and forwards the information to the child support (IVD) agency for action. If a mother does not cooperate in the process, the public assistance agency makes a determination about whether the non-cooperation is excusable and, if appropriate, imposes a sanction for non-cooperation. Likewise, if a "good cause" exemption from cooperation is claimed, it is the public assistance agency which makes a determination on the validity of the claim.

The new law requires the child support agency to make the cooperation determination and allows it to make the "good cause" determination. This realignment makes it attractive to move the intake process to the child support agency as well. In other words, states could 1) move the entire intake-cooperation good-cause process to the child support agency, or 2) keep intake and "good cause" determinations in the public assistance agency but move the cooperation determination process to the child support agency; or 3) keep intake in the public assistance agency but move cooperation and "good cause" determination processes to the child support agency.

In deciding which option works best, there are lessons to be learned from both social science research and state waiver projects. This body of evidence suggests that a proper alignment of functions is critically important. Specifically:

The cooperation system should contain a strong emphasis on informing the mother what her obligation is and exactly what is expected so that there is no misunderstanding about the nature of the obligation .
The nature of the initial contact with the mother is important. States should carefully consider how the intake interview is conducted, who conducts it, and where it should take place.
Careful attention has to be given to the interface between the IVA and IVD agencies if both are to be involved in the process. Working together, the agencies need to develop joint materials, joint training and joint protocols so that the message sent to the client is consistent and the agencies are not working at cross-purposes.
Of special concern is the computer interface between the IVA and IVD systems. If both agencies continue to be involved in the intake, cooperation and good cause determination processes, good computer interface is essential so that information is not lost between agencies.
It is important for the IVD system to act on the information provided by the client quickly or it may become outdated. When this happens, a cooperative mother may have done all she can do because she does not have any more current information than what she has already supplied.
When it appears that there may be a cooperation issue, there should be a face-to-face interview with the client. A non-cooperation finding should never be entered solely based on a paper review.

Second, this monograph examines the issue of cooperation. The new federal law defines cooperation to include working with the IVD agency in good faith to provide the name and other identifying information about the absent parent, attending hearings and conferences and (when appropriate) submitting to genetic testing. In the area of what information a mother must provide to be deemed cooperative, some states will want to go beyond the federal definition. In designing their approach, these states should consider:

There is no evidence that non-cooperation by caretaker relatives is an issue in the IVD program. This suggests that, consistent with the new federal law, states should not focus their efforts on non-parent caretakers. These individuals should receive information about the benefits of paternity establishment and child support and be asked to provide whatever information they have. They should not be subjected to stringent informational cooperation requirements.
There is some dispute about the issue of non-cooperation in the provision of information by custodial parents. Relying on anecdotal evidence, some state IVA and IVD administrators believe that some mothers do withhold information about the fathers of their children. The mothers themselves paint a very different picture.
When focusing on the mothers, most states will discover that there is not an extensive problem with the current requirements established by federal regulation. These states can simply adopt the existing federal cooperation standards into state law and avoid unnecessary work.
Those states that do wish to develop more explicit informational standards can look to experience with other state waivers and statutes for guidance. The evidence suggest that broad categories of acceptable information with a catch-all provision for any other useful data is the best approach.
At the same time, states will have to develop--in their definition of "cooperation" or in their system for exceptions--a mechanism to deal with those cases in which the parent simply does not have any usable information. Failure to address these cases will likely result in a law suit for violation of the "good faith" standard contained in the federal law.
To implement any changes they decide to make, states will also have to develop protocols and procedures for notice and hearing rights to resolve disputes in regard to both the behavioral and informational cooperation requirements.

Third, the monograph turns to a discussion of "good cause" and "other exemptions" from the cooperation requirement. There is little evidence that the current federal definition of "good cause"--developed after extensive public comment and review--is a problem. Since no state implemented a waiver project using a different definition, there is no experience to draw on in redefining this term. This is one area where the best approach for states may be to adopt the current federal "good cause" definition into state law.

However, the discussion does not end there. There is some indication that the evidentiary standards and procedures for proving a "good cause" claim do need to be examined, especially as they relate to victims of sexual abuse and domestic violence. This is an especially important area of concern because a spate of recent research suggests that of rape, incest and domestic violence are more prevalent in the population receiving AFDC than in the general population. This research underscores the need for states to develop "good cause" criteria and standards for meeting those criteria that are based on an understanding of the nature and extent of the problem. States also need to recognize that domestic violence victims are reluctant to discuss the situation and frequently do not have official documentation of its occurrence. Nor will caseworkers be able to tell through just one or two interviews that there is an abuse issue in the family. For this reason, states will need to entertain "good cause" claims throughout the child support process. No mother or other caretaker should be told that she is precluded from raising domestic violence concerns unless she makes a claim at the initial interview. Such a policy puts the custodial parent at risk and could expose the IVA/IVD worker to harm if an angry abuser decides to retaliate against the child support system for pursuing payments.

At the same time, the states need to do something they have heretofore neglected to do: develop protocols within the child support system to pursue support for abused mothers and their children who need and want it, while protecting them from further abuse. These protocols should be developed in conjunction with those familiar with domestic violence issues. The available research also suggests ways to address these issues including:

Applicants and recipients should be informed of the domestic violence exception to the cooperation requirement. Screening for the issue might also be considered.
The TANF intake form should contain a box for the client or caseworker to check off if the case involves a mother or child(ren) for whom domestic violence, rape, or incest is an issue. This will simplify initial identification of cases which need special handling. Since many mothers will not initially identify domestic violence as a problem, at each encounter between a IVA or IVD worker and the mother, the questions should be repeated, and, if appropriate, the box should be checked.
If, as a result of the box being checked on the TANF intake form (or during the initial/subsequent child support interview), it appears that there are domestic violence issues in a case, the case should be transferred to a specially trained worker or unit (depending on the size of the office). That worker should explain the child support process to the mother and tell her what protections the system can/cannot provide to her. The worker should examine the situation with the mother and determine whether child support should be pursued, a protective order should be sought (if one is not already in place) or a "good cause" exemption claimed.
Whatever decision is reached, the case should be specially coded within the TANF/child support system. Information about the case, any available documentation, whether there is a protective order and what its terms and conditions are, etc should be entered into the file. Information about the location of the mother and child(ren), etc. should be protected from disclosure to the father and anyone else outside the TANF/child support unit unless disclosure is ordered by a court. The protections offered by this system should be explained to the mother during the interview so she can assess whether they offer sufficient protection to make it feasible to pursue support.
TANF/child support workers should have an affirmative obligation to assist domestic violence victims wishing to assert a "good cause" claim to do so.
All cases in which "good cause"is claimed should be periodically reevaluated to determine whether the situation has changed and the mother now feels that it would be safe to proceed with a child support action.

While not perfect, this set of procedures recognizes the competing concerns of securing support for children and protecting families which have experienced physical or psychological violence. It attempts to balance those competing concerns within a system which focuses on creating the kinds of protections needed by victims of such violence so that they can obtain the financial resources they need to avoid returning to the batterer.

Finally, this monograph examines state options in sanctioning those who have been found uncooperative. The new law mandates that a sanction of at least 25 percent of the grant be imposed on those custodial parents who fail to cooperate with the child support system without "good cause." States are free to forego sanctions on caretaker relatives who are not parents and they should do so. Sanctioning these persons serves no useful purpose.

Moreover, states should limit their sanctions on custodial parents to the federal minimum. Any sanction greater than this simply hurts children and is unlikely to produce cooperation by the custodial parent. States which develop stringent information requirements for parents should be especially careful here. If a parent genuinely can't meet the information requirement, imposing heavy sanctions is not going to bring forth more information. Rather, it will needlessly punish families for reasons--as noted above--which may have more to do with the behavior of an irresponsible father than the actions of the mother.

In this regard, state policies which treat non-marital children differently than marital children--whether directly or indirectly--should be avoided. Some states have indicated a desire to sanction the entire family if paternity is not established within a certain period of time. Such policies would be open to constitutional attack and should not be considered.

States which follow this advise are likely to develop systems which achieve positive results and meet their stated goal: to obtain enough information to pursue child support for the vast majority of children receiving TANF assistance. States which fail to use the lessons learned in the past and through the waiver process are likely to design systems which are inefficient, harm families and subject the state to litigation. States can and should use their discretion to take the positive approach.

Footnotes:

1/The legislation gives states which have obtained federal waivers of AFDC program rules the option to continue these waiver projects or switch to the new TANF program. P.L. 104-193, Section 103, to be codified at 42 USC Section 615. Some states have indicated a desire to continue their waiver projects.

2/ States will be able to exempt some families from this time limit, but the exemption cannot apply to more than 20 percent of the caseload. To be codified at 42 USC Section 608(a)(7).