There is additional good news in the new HHS Child Support regs, which are to be effective Jan 19, 2017 (analysis and link to full text of regs here).  They will increase payments to custodial parents, and they also strengthen the argument that states should be leveraging the two thirds reimbursement to provide a wide range of self-help services and assistance.  (Remember that providing representation is not reimbursable, but such informational services are.)

As a Fact Sheet from HHS explains:

The rule requires state child support agencies to increase their case investigative efforts to ensure that child support orders – the amount noncustodial parents are required to pay each month – reflect the parent’s ability to pay. Taking a more realistic approach to calculating child support payments, the rule requires states to consider a low-income noncustodial parent’s specific circumstances when the order is set, rather than taking a one-size-fits all approach. And the rule requires that states take the investigative steps necessary to ensure that all relevant information about the noncustodial parent’s circumstances are collected and verified.

The goal is to set realistic orders so that noncustodial parents pay regularly, rather than setting an unrealistically high order that results in higher rates of nonpayment. At the same time, states retain flexibility in the level of orders they set.

Rule Highlights

The new rule updates the child support program by amending existing policy in order to:

• ensure child support obligations are based upon accurate information and the noncustodial parents’ ability to pay
• increase consistent timely payments to families as well as the number of noncustodial parents supporting their children
• strengthen procedural fairness
• improve child support collection rates
• reduce the accumulation of unpaid and uncollectible child support arrearages
  incorporate evidence-based standards tested by states that support good customer service
• increase program efficiency and simplify operational requirements, including standardizing and streamlining payment processing so employers are not unduly burdened
• incorporate technological advances that support cost-effective management practices and streamlined intergovernmental enforcement
• prohibit states from excluding incarceration from consideration as a substantial change in circumstances, require states to notify parents of their right to request a review and adjustment of their order if they will be incarcerated for more than six months, and ensure that child support orders for those who are incarcerated reflect the individuals’ circumstances while continuing to allow states significant flexibility in setting orders for incarcerated parents
• require state child support agencies to make payments directly to a resident parent, legal guardian, or individual designated by the court in order to reign in aggressive and often inappropriate practices of third-party child support collection agencies

This will increase both the fairness of the system and actual payments and collections.  This is because, as Mark Greenberg, Assistant Secretary for Children and Families at HHS is quoted in the Fact Sheet as saying:

“We know from research that when child support orders are set unrealistically high, noncustodial parents are less likely to pay. In fact, several studies say compliance declines when parents are ordered to pay above 15 to 20 percent of their income.”

I think it is obvious that for states to come into compliance with these requirements will take significant effort.  That provides an excellent opportunity for courts and child support agencies, as well as those who advocate for both custodial and non-custodial parents to engage in a process of studying how to improve the services provided to parents in the decision-making and compliance processes.  I suspect the costs of such a process would, at least in part, be considered an administrative and state compliance cost, for which the Federal Financial Participation formula would be available.

I would hope that national networks will make themselves available to states to help states figure out how to take full advantage of innovations such as self-help centers, online forms, non-lawyer informational services in the courtroom, etc., to improve accuracy.  That the new regs require the gathering and consideration of additional data underlines the importance of using every available proven technique to do so.

I refer you again to the SJI-funded Manual developed by SRLN and designed for just that purpose.

This Action Transmittal from HHS provides more information on which sections of the new regs deal with what topic areas.

I urge every group involved in any way with access to justice, not just those directly dealing with child support cases, to look very carefully at the potential of these developments.

HHS deserves our thanks for their sensitivity to these issues.