Rule-Making Standards and Procedures s33

Title of Proposed Rule: / Changes Regarding Interstate Cases as Required by Intergovernmental Federal Regulations; and, Paternity Establishment and Genetic Testing as Required by S.B.11-123
Rule-making#: / 11-4-8-2
Office or Division/Program: Office of Self Sufficiency and Independence/Child Support Enforcement / Rule Author: Anne Seymore / Phone: 303-866-4427
E-Mail:

STATEMENT OF BASIS AND PURPOSE

Summary of the basis and purpose for the rule or rule change. (State what the rule says or does, explain why the rule or rule change is necessary and what the program hopes to accomplish through this rule.)

S.B. 11-123, effective August 10, 2011, imposes limitations on genetic testing if paternity has previously been determined in another state. The rule changes will eliminate inconsistency between statutes and rules regarding genetic testing and administrative process.

These rules also comply with federal regulations at 45 CFR 303.7 that became effective January 3, 2011, which require the responding state to pay for genetic testing costs, limit case closure reasons for a responding reciprocal case, and require notification to the responding state when requesting case closure, including the reason for closing a case.

An emergency rule-making (which waives the initial Administrative Procedure Act noticing requirements) is necessary:

X / to comply with state/federal law and/or
to preserve public health, safety and welfare

Explain: Senate Bill 11-123 was signed into law, effective August 10, 2011. If the rules regarding other state paternity determinations are not changed to match the statute, it could result in genetic tests being conducted that are prohibited by statute, child support cases being dismissed inappropriately, entry of invalid orders, or irreversible delays in case processing, ending up with no child support for the child(ren).

Federal regulations currently state that the responding state must conduct and collect the cost for genetic testing. If Colorado's rules state that the initiating state is responsible, there is a risk that both states could collect the same amount from the noncustodial parent, resulting in a double payment from the noncustodial parent, or that neither state would conduct the genetic tests, resulting in delays in case processing, ending up with no child support for the child(ren).

Initial Review / 07/08/2011 / Final Adoption / 08/05/2011
Proposed Effective Date / 08/10/2011 / EMERGENCY Adoption / 07/08/2011

DOCUMENT 6

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[Note: “Strikethrough” indicates deletion from existing rules and “all caps” indicates addition of new rules.]

STATEMENT OF BASIS AND PURPOSE (continued)

Authority for Rule:

State Board Authority: 26-1-107, C.R.S. (2010) - State Board to promulgate rules; 26-1-109, C.R.S. (2010) - State Board rules to coordinate with federal programs; 26-1-111, C.R.S. (2010) - State Board to promulgate rules for public assistance and welfare activities.

Program Authority: (give federal and/or state citations and a summary of the language authorizing the rule-making)

13-25-126(1)(a)(II), C.R.S. (2010), as amended by SB 11-123 – genetic tests;

26-13.5-103(1)(o)(I), C.R.S. (2010), as amended by SB 11-123 – notice of financial responsibility;

26-13.5-105(3)(c), C.R.S (2010), as amended by SB 11-123 – negotiation conference, issuance of order of financial responsibility; 26-13.5-113, C.R.S. (2010) – State Board to promulgate rules to implement the administrative process;

45 CFR 303.7 – provisions of services in interstate IV-D cases

Yes / X / No
X / Yes / No

Does the rule incorporate material by reference?

Does this rule repeat language found in statute?

If yes, please explain.

Some language in the rule is copied from S.B. 11-123. The rule changes expand on the processes Child Support Enforcement units must follow based on the statutory changes.

State Board Administration will send this rule-making package to Colorado Counties, Inc., Office of State Planning and Budgeting, and the Joint Budget Committee. The program has sent this proposed rule-making package to which stakeholders?

County Directors, County Child Support Enforcement Administrators, IV-D Task Force, Policy Advisory Committee Self-Sufficiency Subcommittee (Sub-PAC), Colorado Judicial Department, Ray Washington and Ken Sanders as representatives of two fatherhood groups, Colorado Legal Services

Attachments:

Regulatory Analysis

Overview of Proposed Rule

Stakeholder Comment Summary

Rule-making Form SBA-3a (08/09)

REGULATORY ANALYSIS

(complete each question; answers may take more than the space provided)

1. List of groups impacted by this rule:

Which groups of persons will benefit, bear the burdens or be adversely impacted by this rule?

Custodial parties, noncustodial parents, and county Child Support Enforcement Unit (CSEU) staff could be both negatively and positively impacted by the rule change regarding contesting paternity and genetic testing.

There is very little impact to any stakeholders in the interstate rule changes.

2. Describe the qualitative and quantitative impact:

How will this rule-making impact those groups listed above? How many people will be impacted? What are the short-term and long-term consequences of this rule?

Custodial parties, noncustodial parents, and CSE staff could positively benefit from the rule change because, in giving full faith and credit to paternity establishment done in another state, it discourages frivolous contests of paternity and allows Colorado CSE units to move forward to establish child support.

The rule change could negatively affect noncustodial parents who wish to contest a previous paternity determination by requiring that parent to spend time and money taking action in the other state.

The short term consequences are the same as the long term; this rule change will have no different future effect. There is no way to track how many people will be affected, as there is no way to estimate how many noncustodial parents will wish to contest paternity.

There is no workload impact to CSE units for the interstate changes. The process is currently in practice and counties simply have to change from tracking and collecting genetic tests costs for initiating interstate cases to responding interstate cases. A noncustodial parent is required to reimburse the cost of genetic tests if found to be the father, whether the case is an initiating or a responding interstate case.

3. Fiscal Impact:

For each of the categories listed below explain the distribution of dollars; please identify the costs, revenues, matches or any changes in the distribution of funds even if such change has a total zero effect for any entity that falls within the category. If this rule-making requires one of the categories listed below to devote resources without receiving additional funding, please explain why the rule-making is required and what consultation has occurred with those who will need to devote resources.

State Fiscal Impact (Identify all state agencies with a fiscal impact, including any Colorado Benefits Management System (CBMS) change request costs required to implement this rule change)

The cost for minimal programming to the automated child support system to allow the interstate change will be absorbed by present staff. There is also minimal impact to create and change existing forms for the genetic testing and administrative process rule changes.

Rule-making Form SBA-3b (10/08)

REGULATORY ANALYSIS (continued)

County Fiscal Impact

Possible fiscal impact to counties because the responding state must now pay any unreimbursed genetic testing costs; however, it is expected that it will be a “wash”, as the amount of genetic tests previously paid by Colorado as the initiating state will be the same as the amount of genetic tests paid by Colorado as the responding state.

Federal Fiscal Impact

None

Other Fiscal Impact (such as providers, local governments, etc.)

Possible impact to noncustodial parents who wish to contest paternity previously determined in another state for the travel and court costs. There may be minimal positive impact to the custodial parents if more temporary orders are established under administrative process and the noncustodial parents pay the ordered child support.

4. Data Description:

List and explain any data, such as studies, federal announcements, or questionnaires, which were relied upon when developing this rule?

S.B. 11-123, which gave full faith and credit to other state’s paternity determinations, and Federal Register Volume 75 Number 127 dated July 2, 2010, for the interstate changes.

5. Alternatives to this Rule-making:

Describe any alternatives that were seriously considered. Are there any less costly or less intrusive ways to accomplish the purpose(s) of this rule? Explain why the program chose this rule-making rather than taking no action or using another alternative.

There are no alternatives, as these rule changes are required to comply with Colorado statutes and federal regulations.

Rule-making Form SBA-3b (10/08)

OVERVIEW OF PROPOSED RULE

Compare and/or contrast the content of the current regulation and the proposed change.

Section Numbers / Current Regulation / Proposed Change /

Stakeholder Comment

6.207 / Enforcing county designation for responding interstate cases / Includes registration of a foreign order in the method for determining enforcing county designation. If the noncustodial parent cannot be located in Colorado, federal regulations allow the state to close the interstate case with a sixty day closure notice, except if the interstate referral came from a foreign country / __ / Yes / X / No
6.250.18 / Services in interstate cases / Requires the reason for closure be part of the notification / __ / Yes / X / No
6.250.25 / Responding state responsibilities / Adds restrictions on moving a case from one county to another / __ / Yes / X / No
6.250.3 / Payment and recovery of costs in interstate cases / Makes the responding state responsible for paying and collecting for genetic tests / __ / Yes / X / No
6.260.51 / Notice and reasons for case closure / Adds specifics regarding closing responding interstate cases / __ / Yes / X / No
6.600.11 / Paternity establishment / Removes a case from the requirement to establish paternity on all children when paternity is currently being disputed / __ / Yes / X / No
6.601.2 / Paternity establishment / Add the word “to” to make the sentence grammatically correct / __ / Yes / X / No
Section Numbers / Current Regulation / Proposed Change /

Stakeholder Comment

6.601.31 / Paternity establishment / Parties cannot request to rescind a signature if paternity has already been determined in another state / __ / Yes / X / No
6.601.32 / Contesting paternity / Parties cannot request to rescind a signature if paternity has already been determined in another state / __ / Yes / X / No
6.603.1 / Genetic testing / Outlines exceptions for requiring parties to submit to genetic testing / __ / Yes / X / No
6.603.3 / Genetic testing / Makes the change that the responding, not the initiating, state is responsible for the genetic testing costs / __ / Yes / X / No
6.714.1 / Request for court hearing / Revises the reasons for the CSE unit to request a court hearing / __ / Yes / X / No

Rule-making Form SBA-3c (10/08)

STAKEHOLDER COMMENT SUMMARY

DEVELOPMENT

The following individuals and/or entities were included in the development of these proposed rules (such as other Program Areas, Legislative Liaison, Sub-PAC, and the Child Welfare Action Committee):

The APA and Judicial Task Group of the Policy Advisory Committee Self-Sufficiency Subcommittee (Sub-PAC)

THIS RULE-MAKING PACKAGE

The following individuals and/or entities were contacted and informed that this rule-making was proposed for consideration by the State Board of Human Services:

Are other State Agencies (such as the Department of Health Care Policy and Financing) impacted by these rules? If so, have they been contacted and provided input on the proposed rules?

Yes / X / No

Have these rules been reviewed by the appropriate Sub-PAC Committee?

X / Yes / No

Date presented ___May 5, 2011___. Were there any issues raised? ____ Yes _X_ No

If not, why.

Comments were received from stakeholders on the proposed rules:

Yes / X / No

If “yes” to any of the above questions, summarize and/or attach the feedback received by specifying the section and including the Department/Office/Division response. Provide proof of agreement or ongoing issues with a letter or public testimony by the stakeholder.

Rule-making Form SBA-3d (08/09)

9 CCR 2504-1

CHILD SUPPORT ENFORCEMENT 6.206 6.209

6.206 ENFORCING COUNTY FOR CHILD SUPPORT ENFORCEMENT CASES (INTRASTATE AND INITIATED INTERSTATE)

Rev. eff. For IV-A, foster care, Medicaid referral, Low-Income Child Care Assistance referrals,

10/1/04 responding interstate actions, and nonIV-A cases, the enforcing county for a Colorado Child Support Enforcement case is the first county where Child Support Enforcement application or referral was made. The enforcing county will provide the full range of services to the Low-Income Child Care Assistance referral case from another county, even if said county elected not to require the Low-Income Child Care Assistance recipients in its county to cooperate with the Child Support Enforcement Unit.

When there is a prior enforcing county, the county of new application or referral will assist in the completion of the application, interstate and other necessary documents. The county of residence will forward the application, documents and fee to the enforcing county, as appropriate, utilizing the form as prescribed by the state department. The county of new application or referral must contact the enforcing county to determine which of the counties will be the enforcing county. For a Low-Income Child Care Assistance referral case, the Low-Income Child Care Assistance Program unit will deal directly with the CSE Unit located in its county. The CSE Unit will then communicate with the enforcing county.