A STUDY OF ADMINISTRATIVE CHILD SUPPORT PROCESSES

to Sue Perry, director of the West Virginia child support program, and Policy Studies, Inc. for providing copies of reports they previously prepared on administrative process states. ii Table of Contents EXECUTIVE SUMMARY..............................................................................................................<br><br> ..........VI I. SCOPE OF WORK.................................................................................................................. ...........1 II.<br><br> BACKGROUND..................................................................................................................... ............1 D EFINITIONS ............................................................................................................................... ................1 F EDERAL L EGISLATION ..............................................................................................................................2 C OMPARATIVE S TUDIES ON P ERFORMANCE ...............................................................................................5 III.<br><br> CURRENT INDIANA PROCESS................................................................................................8 P ATERNITY E STABLISHMENT ......................................................................................................................8 S UPPORT E STABLISHMENT .......................................................................................................................10 R EVIEW AND A DJUSTMENT /M ODIFICATION .............................................................................................11 E NFORCEMENT ............................................................................................................................... ..........12 C ONCERNS ............................................................................................................................... .................13 IV.<br><br> DESCRIPTION OF ADMINISTRATIVE PROCESS STATES.............................................13 C OMMON F EATURES ............................................................................................................................... ..14 P ATERNITY E STABLISHMENT ....................................................................................................................15 S UPPORT E STABLISHMENT .......................................................................................................................17 R EVIEW AND A DJUSTMENT /M ODIFICATION .............................................................................................19 E NFORCEMENT ............................................................................................................................... ..........21 F ORUM FOR C ONTESTED O RDERS AND A PPEALS ......................................................................................21 V.<br><br> DESCRIPTION OF QUASI-ADMINISTRATIVE PROCESS STATES....................................23 F EATURES S IMILAR TO J UDICIAL P ROCESS ...............................................................................................23 F EATURES S IMILAR TO A DMINISTRATIVE P ROCESS ..................................................................................24 P ATERNITY E STABLISHMENT ....................................................................................................................24 S UPPORT E STABLISHMENT .......................................................................................................................26 R EVIEW AND A DJUSTMENT /M ODIFICATION .............................................................................................27 E NFORCEMENT ............................................................................................................................... ..........27 F ORUM FOR C ONTESTED O RDERS AND A PPEALS ......................................................................................28 VI. DESCRIPTION OF QUASI-ADMINISTRATIVE PROCESS IN A JUDICIAL STATE....28 F EATURES S IMILAR TO J UDICIAL P ROCESS ...............................................................................................29 F EATURES S IMILAR TO A DMINISTRATIVE P ROCESS ..................................................................................29 P ATERNITY E STABLISHMENT ....................................................................................................................29 S UPPORT E STABLISHMENT .......................................................................................................................31 R EVIEW AND A DJUSTMENT /M ODIFICATION .............................................................................................31 E NFORCEMENT ...............................................................................................................................<br><br> ..........31 F ORUM FOR C ONTESTED O RDERS AND A PPEALS ......................................................................................31 VII. COMPARISON OF STATE PERFORMANCE.......................................................................32 VIII. ALTERNATIVES TO CURRENT JUDICIAL PROCESS.....................................................38 O PTIONS FOR C ONSIDERATION .................................................................................................................38 Evaluate Existing Procedures for Processing IV-D Cases.................................................................39 Find Ways to More Effectively Implement Existing Laws...................................................................40 Conduct a Pilot................................................................................................................<br><br> ...................41 Implement More Administrative Processes, without a Pilot...............................................................42 Decide upon Key Elements that Make a Process Either More Judicial or More Administrative.......43 IX. BEST PRACTICE RECOMMENDATIONS............................................................................49 CONCLUSION..................................................................................................................... ......................51 iii Table of Figures F IGURE 1: P ERFORMANCE M EASURE R ESULTS FOR 2006..............................................................................<br><br> XII F IGURE 2: T AXONOMY S CORES R ELATIVE TO A DMINISTRATIVE AND J UDICIAL P ROCESSES ...........................6 F IGURE 3: P ATERNITY P ERFORMANCE M EASURE ..........................................................................................33 F IGURE 4: S UPPORT O RDER E STABLISHMENT P ERFORMANCE M EASURE ......................................................34 F IGURE 5: C URRENT C OLLECTIONS P ERFORMANCE M EASURE .....................................................................35 F IGURE 6: A RREARAGE C OLLECTIONS P ERFORMANCE M EASURE .................................................................36 F IGURE 7: CISPA C OST -E FFECTIVENESS R ATIO ...........................................................................................37 iv Executive Summary The Indiana Child Support Bureau, a Division of the Indiana Department of Child Services, commissioned this white paper to study expedited child support processes, including best practices associated with quasi-administrative and administrative child support processes. In a 2002 national study of administrative and judicial child support processes, Indiana was one of 10 states scoring chighly judicial. d Under a judicial model, the child support agency initiates legal action by filing pleadings with the court, hearing dates are set, the clerk of court coordinates service of process, parties file responsive pleadings, and a trial court conducts the hearing at which attorneys appear on behalf of the child support agency. In some Indiana counties, this process results in delays of up to nine months before a support order is issued.<br><br> Other states use more administrative processes in which the child support agency is authorized to take certain actions, including the initiation of cases through administrative pleadings, which are not initially filed with the court, and the administrative entry of child support orders. This white paper summarizes federal requirements for expedited processes, which a state must meet in order to receive federal funding for its child support program. It then compares Indiana 9s child support process with that used in ten other states.<br><br> These states include administrative process states, quasi-administrative states, and a judicial state that uses an administrative consent process. The paper concludes with options for supplementing Indiana 9s judicial system with administrative processes in order to more quickly, yet fairly, process child support cases. The paper is based on numerous sources of information.<br><br> The initial sources were federal statutes and regulations, and prior studies on administrative and judicial processes. The most comprehensive study was one that the Lewin Group prepared for the federal Office of Child Support Enforcement in 2002. The other primary sources of information were interviews.<br><br> County and state representatives of the Indiana child support agency provided information about the processing of child support cases by the local prosecutor offices and the courts. Interviews were also conducted with representatives identified by the child support directors in 10 states. These representatives described the administrative processes used in their states, identified the strengths and limitations of such processes, and recommended what they considered to be best practices.<br><br> Finally, the interviews were supplemented with a review of state child support laws and agency regulations. The paper has limitations. The individuals interviewed do not reflect all the stakeholders in that state 9s child support process.<br><br> Where state representatives provided information about case processing time, that information was not independently verified. Notwithstanding these limitations, the paper presents comprehensive information to guide an evaluation of Indiana 9s current child support process, with the goal of improving the timeliness of orders and program performance. v Federal Background Over the past 20 years, Congress has increasingly required a state to enact streamlined child support processes in order to receive federal funding.<br><br> Since 1984, states have been required to have cexpedited processes d for the establishment and enforcement of support awards. The term cexpedited process d is defined in federal regulations. There is both a timeframe component, as well as a due process component.<br><br> Noteworthy is the lack of specificity regarding the type of process; states can meet the expedited process requirement through either an administrative or judicial process. To be considered an expedited process, action to establish a support order in a IV-D case must be completed (either by order establishment or dismissal of the action) within 6 months from service of process in 75 % of the IV-D cases needing support order establishment, and within 12 months in 90% of the cases. The following safeguards must be present: " Paternities and orders established by means other than full judicial process must have the same force and effect under State law as paternities and orders established by full judicial process within the State.<br><br> " The due process rights of the parties must be protected. " The parties must be provided a copy of the voluntary acknowledgment of paternity, paternity determination, and/or support order. " Action taken may be reviewed under the State's applicable administrative or judicial procedures.<br><br> The presiding officers must have authority to: " Take testimony and establish a record; " Evaluate evidence and make recommendations or decisions to establish paternity and to establish and enforce orders; " Accept a voluntary acknowledgment of paternity or support liability and stipulated agreements setting the amount of support to be paid; " Enter default orders upon a showing of proper service, the defendant 9s failure to respond to service, and any additional showing required by State law; and " Order genetic tests in contested paternity cases. More recently, Congress has required states, as a condition of receiving federal funding, to enact laws providing simple, civil procedures for paternity establishment, including the determination of paternity through a paternity acknowledgment without the necessity of further judicial action. It also has required numerous administrative enforcement measures, including the following: " administrative subpoena power so that the IV-D agency can obtain financial or other information necessary to establish, modify, or enforce support " access by the IV-D agency to information contained in certain state records, as well as certain private records vi " administrative authority for the IV-D agency to increase the amount of an obligor 9s monthly payment, when necessary to satisfy an arrearage " administrative authority to initiate income withholding " administrative authority to impose liens arising by operation of law, and 3 in appropriate cases 3 to force the sale of property and distribute the proceeds to satisfy the child support obligation " administrative authority to seize lump sums and financial institution accounts in order to enforce support.<br><br> The other federal legislation that has played a major impetus in states 9 consideration of more administrative processes is the Child Support Performance and Incentive Act of 1998. The legislation ties federal incentive dollars to the state agency 9s performance in five areas: paternity establishment, support establishment, current collections, arrearage collections, and cost-effectiveness. Indiana Child Support Process Indiana 9s IV-D agency, the Child Support Bureau (CSB), is housed within the Indiana Department of Child Services.<br><br> It is state-run, county administered. According to unaudited data, at the end of federal fiscal year 2006, the Indiana child support agency had 355,757 open IV-D cases and 953 full-time equivalent staff (approximately 100 employed by the CSB, with the remainder employed by the 92 counties). The state agency provides centralized locate services and centralized enforcement work.<br><br> The day- to-day provision of child support services is performed by 92 county elected prosecutors under cooperative agreements with CSB. There are also cooperative agreements with the elected county clerks for provision of record keeping services and limited payment processing services. Indiana uses a judicial process to establish and enforce child support orders.<br><br> In its 2002 report, Lewin defined any state that had a score of 14 or above on its taxonomy scale as chighly judicial. d Indiana was one of 10 states scoring 16, the highest score. In order to receive federal funding, the Indiana legislature has enacted expedited procedures for paternity establishment and administrative enforcement procedures. However, according to CSB Regional Field Consultants, it appears that some county prosecutors and many courts are nevertheless requiring use of judicial procedures for paternity establishment and enforcement.<br><br> For example, Indiana law authorizes paternity determination through an expedited civil process. If the mother and a man identified as the father sign a paternity affidavit meeting the requirements of IC-37-2-2.1, the paternity affidavit establishes paternity. The man is conclusively established as the legal father of the child without any further proceedings by a court.<br><br> According to Regional Field Consultants, however, many courts are not treating paternity affidavits as legal determinations. In some counties, because of court practice, a prosecutor office cannot proceed with support establishment despite the existence of a signed acknowledgment; the deputy prosecutor must attach the paternity affidavit to a pleading to determine paternity. In still other counties, despite the existence vii of a signed paternity acknowledgment, the court requires genetic testing.<br><br> Both of these practices violate law requiring that a signed paternity acknowledgment conclusively establishes paternity without any further court proceedings. Another example is income withholding, which is the withholding of money, usually from a person 9s wages, in order to meet the person 9s support obligation. In compliance with federal law, the Indiana legislature has authorized CSB to administratively enforce a support order by income withholding.<br><br> However, based on reports from county field offices, in some counties judges require a judicial signature on every income withholding order that is sent to an employer. This practice, which is contrary to law, results in a delay in the initiation of income withholding . Concerns The Indiana child support program surpasses the national average for cost effectiveness; according to unaudited data, in FFY 2006 the agency collected $8.92 for every $1 spent.<br><br> However, the program was below the national average in four of the five federal performance measures 3 paternity establishment, support establishment, current collections, and arrearage collections. These measures are the critical ones measuring whether support is reaching children. Of greatest concern is Indiana 9s performance in collecting current support: currently, Indiana collects only 54% of the dollars owed.<br><br> This white paper did not examine possible causes for the performance gap. However, in interviews with CSB Regional Field Consultants, there was consensus that the main impediment is the backlog of cases awaiting a hearing. In most counties, there is insufficient court time to handle the volume of IV-D cases.<br><br> Some counties report that it can take from six to nine months to have a court hearing on child support. Another major concern is the inability to use administrative or expedited methods that state law authorizes. As noted above, many courts are requiring a judicial determination of paternity or ordering genetic tests in cases where there is a signed paternity acknowledgment.<br><br> Some county offices report that the courts in their counties require that an income withholding order go before the court for judicial signature. Such practices are contrary to law and delay support reaching children. The result is an aggravation of the first concern.<br><br> By requiring judicial action in cases that could proceed administratively, there is less court time available for complex cases that need judicial review. The centralized state child support office also voiced a concern about the variety of procedures among the county prosecutor 9s office. Comparison of Administration and Judicial Processes There is little research or data to support an argument that one type of legal system is better than another for the establishment of a support order.<br><br> The federal Office of Child Support Enforcement recently commissioned a study to explore the key characteristics that define administrative and judicial processes, and to determine whether cases move more quickly through one process or another. The final report, Administrative and viii Judicial Processes for Establishing Child Support Orders, was issued by the Lewin Group in June 2002. The Lewin Group concluded that to classify a state as judicial or administrative was too one-dimensional.<br><br> There is a great variety among states in how they process establishment cases, even among states that are primarily judicial or primarily administrative. In fact, few states use just one kind of process, and the process may differ depending upon whether there is consent or a contest. After an in-depth review of nine states, including site visits to five states representing various legal models, Lewin also concluded that program performance varies significantly within type of process (i.e., administrative, quasi-judicial, judicial) and between the types of processes.<br><br> The bottom line 3 one cannot conclude that one type of process is more effective than another. The findings from the Lewin study are consistent with the findings in this white paper. Interviews were conducted with six states classified by Lewin as chighly administrative d -- Alaska, Maine, Missouri, Montana, Oregon, and Virginia.<br><br> Interviews were also conducted with three states that Lewin scored in the mid-range for administrative processes -- Colorado, South Dakota, and Washington. Finally, interviews were conducted with representatives of the Texas Office of the Attorney General, which operates the child support program in Texas. Although classified as a highly judicial state, Texas is an example of how administrative processes can be incorporated within a judicial environment.<br><br> Based on the state interviews and statutory review, this white paper discovered variations both within particular legal systems, as well as between them. A summary of each state interview is in the Appendix. Although there were variances within the chighly d administrative states studied, they shared these common characteristics: " The agency has authority to initiate a legal action by serving an administrative notice.<br><br> " Legal documents to initiate the action (e.g., Notice and Finding of Financial Responsibility) do not require an attorney signature " Legal pleadings are not initially filed with the court. The initial administrative notices are only required when they are part of the record for a court hearing (necessary in some states when there is no consent) or for any judicial review of the administrative decision. " The child support agency, rather than the clerk of court, coordinates service of process.<br><br> " The child support agency has authority to issue administrative subpoenas and to require individuals, businesses, entities, etc. to provide certain information upon request. " The child support agency has authority to enter consent orders.<br><br> ix " If there is no response to a Notice with a proposed support amount, an order may be entered based on the amount within the Notice. 1 " Administrative hearings are conducted by an executive branch decision-maker who must comply with state law and agency regulations. " Child support agency attorneys do not usually participate in the administrative hearing.<br><br> In most administrative states, caseworkers present evidence on behalf of the agency although they are not allowed to examine witnesses. " At such administrative hearings, parties have the right to be represented by a lawyer. Relaxed rules of evidence apply.<br><br> A record is made of the proceeding. " Parties may request a judicial review of the administrative decision. This review is to a trial level court.<br><br> " The administrative support order is an enforceable order and does not require judicial ratification or approval. 2 Although there were variances within the two quasi-administrative process states studied, they shared these common characteristics: Features Similar to Judicial Process " Contested cases are resolved by a quasi-judicial official, who is part of the judicial branch. " A IV-D attorney, or attorney under contract or cooperative agreement, presents the case on behalf of the agency at the court hearing on a challenge.<br><br> " At the court hearing, rules of civil procedure, rules of evidence, etc. apply. Features Similar to Administrative Process " Legal documents to initiate the action (e.g., Notice and Finding of Financial Responsibility) do not require an attorney signature " Legal pleadings are not initially filed with the court.<br><br> The initial administrative notices are only required when they are part of the record for a court hearing (necessary in some states when there is no consent) or for any judicial review of the administrative decision. " The child support agency, rather than the clerk of court, coordinates service of process. " The child support agency has authority to issue administrative subpoenas and to require individuals, businesses, entities, etc.<br><br> to provide certain information upon request. 1 In most of the administrative states studied, the agency has authority to enter such orders. In Montana, the agency prepares the default order but it must be signed by an administrative law judge.<br><br> 2 Several administrative states contacted for this paper docket the administrative order with the court in order for it to be fully enforceable by judicial remedies. Montana requires judicial approval of an administrative order that proposes a modification to a court order. x Texas, representing a judicial state similar to Indiana, had these characteristics: Features Similar to Judicial Process " The child support agency does not have authority to enter a consent order.<br><br> Where there is an agreed order, the parties waive service and the agreement is filed with the court for court approval. However, by statute, the court must approve the order. " The child support agency does not have authority to enter a default order.<br><br> However, when the agency submits a Petition for Confirmation of a Non-Agreed Child Support Review Order to the court, the law requires the court to sign the submitted proposed non-agreed order if the non-agreed order is not contested after notice by the clerk; the court 9s approval is not discretionary. " In a contested case, the clerk of court coordinates service of process. " Contested cases are resolved by an associate judge " An agency attorney appears on behalf of the agency at the contested court hearing.<br><br> Features Similar to Administrative Process " Legal documents to initiate the action (i.e., Notice of Child Support Review) do not require an attorney signature. " Legal pleadings are not initially filed with the court. Where court approval or action is needed, the agency can initiate the court process by filing the initial administrative notices with the court.<br><br> " The child support agency attempts to obtain a consent order. " The child support agency has authority to issue administrative subpoenas and to require individuals, businesses, entities, etc. to provide certain information upon request.<br><br> Next, we looked at program performance. Again, the findings of this paper, based on 2006 federal performance measure scores, is consistent with Lewin 9s conclusion based on 1999 and 2000 data: There is insufficient evidence to say that one type of legal system is more effective than another. xi Paternity Performance 3 Support Order Establishment Current Collections Arrearage Collections Cost Effectiveness Judicial Indiana 86.2% IV-D 68.4% 53.8% 58.8% $ 8.92 Judicial with Admin Texas 92.96% Statewide 82.7% 62.3% 67.3% 7.53 Quasi-Admin.<br><br> Colorado 92.99% Statewide 86.3% 59.1% 67.3% 3.94 South Dakota 108.68% IV-D 93.0% 62.3% 68.5% 8.23 Administrative Alaska 97.95% Statewide 92.2% 54.9% 66.5% 4.27 Maine 96.3% IV-D 87.7% 61.1% 55.0% 4.16 Missouri 92.9% Statewide 82.8% 55.7% 53.4% 5.58 Montana 108.7% IV-D 88.0% 61.5% 65.4% 4.19 Oregon 92.1% Statewide 66.4% 60.4% 62.5% 5.86 Virginia 91.7% Statewide 85.2% 61.6% 58.1% 6.58 Washington 100.2% IV-D 89.9% 64.3% 67.3% 4.41 National Average 89.8% IV-D 97.9 Statewide 77.3% 60.3% 60.8% 4.58 Figure 1: Performance Measure Results for 2006 Of the states studied for this report, the only state that scored above the national average in FY 2006 in each of the five federal performance measures was South Dakota, a quasi- administrative state. Three states exceeded the national average in four of the performance measures: Texas (judicial with administrative), Montana (administrative), and Washington (administrative). Four states met or exceeded the national average in three of the performance measures: Alaska (administrative), Maine (administrative), 3 States have discretion in how they calculate the paternity establishment percentage (PEP).<br><br> They can use a IV-D formula, based on children in the IV-D caseload who were born out-of-wedlock, or a statewide formula, based on children in the state born out-of-wedlock. xii Oregon (administrative), and Virginia (administrative). Two states scored below the national average in three performance measures: Colorado (quasi-administrative) and Missouri (administrative).<br><br> Only one state scored below the national average in four of the five performance measures: Indiana (judicial). Options for Consideration Now may be an appropriate time to identify systemic changes that would improve the processing of child support cases in Indiana. As noted above, the Indiana child support program is below the national average in four out of five critical performance measures.<br><br> It appears that courts in some counties have adopted practices contrary to federal and state requirements. The backlog in some counties for a court hearing date is six to nine months. There is no uniformity in how county prosecutor offices process cases.<br><br> If Indiana is not satisfied with the current performance of its Child Support Program, several options for consideration emerge from this study. Evaluate Existing Procedures for Processing IV-D Cases " Conduct a study of the variances among county prosecutor offices regarding paternity establishment, support establishment, enforcement, and modification of support. " Conduct a study of the judicial processes used to establish paternity, establish support, enforce support, and modify support.<br><br> Find Ways to More Effectively Implement Existing Laws " Convene a multi-disciplinary workgroup to identify and resolve barriers to implementing exiting administrative processes. " Provide education programs to the judiciary, deputy prosecutors, and agency caseworkers. Conduct a Pilot " Consider legislative authorization of a pilot study in one or more counties to determine whether incorporating more administrative processes into the resolution of child support cases, especially the establishment of a support order, would improve the delivery of services to parents and result in money reaching children faster.<br><br> Include in the pilot project the following considerations: Address various services that the child support agency provides 3 paternity establishment, support establishment, review and adjustment, and enforcement. Decide upon key elements that make a process either more judicial or more administrative. o The authority of the agency o The decision-maker o The level of personal contact between parents and the agency o Forms and service of process o The authority of a caseworker o Time period for response o Use of default orders xiii o Ability to reopen or set aside a default order o Challenge process o Format for a contest o Review process o Jurisdiction over nonresidents Implement More Administrative Processes, without a Pilot " Augment judicial resources by expanding the administrative hearing process, already available in certain child support enforcement actions, to include support establishment.<br><br> In developing administrative procedures for support establishment, consider authorizing the child support agency to o Administratively initiate an action by serving parties with an administrative notice. o Seek agreement between the parties to the support guideline amount through a negotiation conference. o Administratively issue agreed upon support orders.<br><br> o Administratively issue a support order, based on a prior notice, when the parties do not timely respond to the notice by contesting the proposed support amount. o Resolve contested support cases through an administrative hearing, with the parties retaining the right to seek judicial review of the administrative decision. In Conclusion This white paper summarizes a variety of approaches that states have taken to handle child support cases in a streamlined manner.<br><br> Should Indiana decide to enact more administrative child support processes, the states studied for this white paper offer models from a cpure d administrative approach to a judicial approach that incorporates an administrative consent process. Amidst the variances, there are also common elements. All of the states studied, including the judicial state of Texas, have developed establishment processes in which: " The child support agency has authority to administratively initiate an action.<br><br> " Legal documents to initiate the action (i.e., Notice of Child Support Review) do not require an attorney signature. " Legal pleadings are not initially filed with the court. The initial administrative notices are only required when they are part of the record for a court hearing (necessary in some states when there is no consent) or for any judicial review of the administrative decision.<br><br> " The child support agency has authority to seek agreement to a proposed support amount based on child support guidelines, either expressly through negotiation or implied through the lack of a response to a proposed support amount. The variances among the studied states are whether the agency has authority to enter a consent order or default order, or whether such orders require signature by an administrative or judicial officer. xiv " The child support agency has authority to issue administrative subpoenas and to require individuals, businesses, entities, etc.<br><br> to provide certain information upon request. The most critical element common to all models is due process. Each state ensures that parties receive notice, have an opportunity to challenge agency action, and can seek review by a court.<br><br> Agency representatives stressed the importance of providing these due process protections. States also invest time to ensure that stakeholders 3 the court, parents, caseworkers, prosecuting attorneys, and the private bar -- understand these protections. The information and suggestions presented in this paper are meant to generate discussion among the stakeholders in Indiana 9s child support program.<br><br> Once there is consensus on where improvements are needed, the legislature can decide what approaches may be most appropriate for Indiana. xv A Study of Administrative Child Support Processes I. Scope of Work In 2002 the Lewin Group completed a study of administrative and judicial child support processes, under contract with the federal Office of Child Support Enforcement.<br><br> 1 As part of that study, Lewin developed a taxonomy of child support order establishment processes, which it used to characterize each of the 50 states and the District of Columbia. For the purpose of the study, Lewin defined any state that had a score of 14 or above as chighly judicial. d Indiana scored a 16. It was one of 10 states receiving that score, which was the highest score received.<br><br> Indiana 9s child support system relies heavily on the use of prosecutors and the courts for all aspects of child support, including paternity establishment, establishment of support (including medical support), enforcement, and modification. Research by the Indiana Child Support Program reveals long delays in many counties between initiation of a support action and establishment of a judicial order; much of the delay is due to overburdened courts that lack adequate court time for the ever increasing child support caseload. The result is a delay in support payment reaching children who depend upon it for financial stability.<br><br> In order to learn more about how to improve the delivery of support services to children, the Indiana Child Support Bureau, a Division of the Indiana Department of Child Services, commissioned this white paper to study expedited child support processes, including best practices associated with quasi-administrative and administrative child support processes. Based on interviews and a review of state statutes and administrative codes, the paper summarizes the child support procedures used in Indiana as compared to the administrative procedures used in ten other states. The paper identifies possible ways to supplement the current judicial process, with the goals of improving the speed and efficiency with which Indiana children receive financial support while ensuring the due process rights of all parties involved.<br><br> The paper concludes with a list of best practices and recommendations based on other states 9 experiences. II. Background Definitions A judicial process is a legal system in which a judge makes decisions on various legal issues.<br><br> The judge takes testimony, examines evidence, makes findings of fact, and enters conclusions of law. A judge 9s order is final unless appealed to an appellate court. An expedited judicial process is a legal system in which judge surrogates make legal decisions.<br><br> States use different names to refer to these judge surrogates, e.g., referee, master, magistrate, commissioner, hearing officer. The judge surrogate also takes testimony, examines evidence, and makes findings of fact. In some jurisdictions, an order issued by a judge surrogate is final unless appealed to a trial court.<br><br> In other 1 jurisdictions, a judge surrogate may enter an order, which must be approved by the trial court. 2 An administrative process is a legal system that is created by statute, authorizing an administrative agency to take certain action. Usually the legislature gives the agency authority to promulgate rules and regulations to further define its processes.<br><br> The decision-maker in an administrative process may be an employee of the agency or may be an administrative law judge or hearing officer employed by a separate agency. The decision-maker is in the executive branch, rather than the judicial branch. There may be several levels of review in an administrative process with varying degrees of formality.<br><br> An administrative law judge or hearing officer also takes testimony, examines evidence, and makes findings of fact. In most jurisdictions, an administrative order is final unless a party requests judicial review. In some jurisdictions, the ALJ or hearing officer may enter an order, which must be filed with, or approved by, the court in order to be effective.<br><br> Federal Legislation Historically family law was within the domain of States. However, as the number of families receiving public assistance grew dramatically, Congress in the mid to late 1960 9s began to enact federal laws related to child support. In 1975 Congress created the Title IV-D program.<br><br> 3 So-named because of its location in Title IV-D of the Social Security Act, this program provides locate, paternity, establishment, enforcement, and modification services to families. At the federal level there is the federal Office of Child Support Enforcement (OCSE). This agency has administrative, regulatory, and technical assistance responsibilities over the child support program.<br><br> It also manages the expanded Federal Locator Service, which includes the National Directory of New Hires and the National Case Registry. State child support programs have the daily operational responsibilities. Since 1975 Congress has enacted a number of major initiatives requiring States to enact certain child support laws in order to receive federal funding.<br><br> The laws are usually based upon best practices that originated at the state level, such as child support guidelines, income withholding, and new hire reporting. The Child Support Enforcement Amendments of 1984 4 were the first to address the legal systems that States use to establish and enforce child support orders. The Amendments required States to enact statutes providing for the use of expedited processes, as a condition of receiving federal funds.<br><br> 5 The expedited processes had to be available for the establishment and enforcement of support obligations. The decision to use expedited processes for paternity establishment was left to the discretion of the States. Implementing federal regulations initially defined expedited processes as cadministrative or expedited judicial processes or both which meet specified processing times and under which the presiding officer is not a judge of the court. d 6 The regulation was amended in 1994 to delete the requirement that the presiding officer not be a judge.<br><br> The regulation now defines expedited processes as cadministrative and judicial procedures (including IV-D agency procedures) required under section 466 (a) (2) and (c) of the [Social 2 Security] Act. d States therefore have discretion in the type of legal systems they use to process child support cases. More importantly, the regulation defines expedited processes in terms of timeframes: (2) Under expedited processes: (i) In IV-D cases needing support order establishment, regardless of whether paternity has been established, action to establish support orders must be completed from the date of service of process to the time of disposition within the following timeframes: (A) 75 percent in 6 months; and (B) 90 percent in 12 months. (ii) In IV-D cases where a support order has been established, actions to enforce the support order must be taken within the timeframes specified in §§303.6(c)(2) and 303.100; (iii) For purposes of the timeframe at §303.101(b)(2)(i), in cases where the IV-D agency uses long-arm jurisdiction and disposition occurs within 12 months of service of process on the alleged father or noncustodial parent, the case may be counted as a success within the 6 month tier of the timeframe, regardless of when disposition occurs in the 12 month period following service of process.<br><br> (iv) Disposition, as used in paragraphs (b)(2)(i) and (iii) of this section, means the date on which a support order is officially established and/or recorded or the action is dismissed. In addition to establishing timeframes for various actions, the regulation details procedural protections: (c) Safeguards. Under expedited processes: (1) Paternities and orders established by means other than full judicial process must have the same force and effect under State law as paternities and orders established by full judicial process within the State; (2) The due process rights of the parties involved must be protected; (3) The parties must be provided a copy of the voluntary acknowledgment of paternity, paternity determination, and/or support order; (4) Action taken may be reviewed under the State's generally applicable administrative or judicial procedures.<br><br> The regulation also mandates minimum functions that the presiding officers, whatever they may be called, must provide: (d) Functions. The functions performed by presiding officers under expedited processes must include at minimum: (1) Taking testimony and establishing a record; (2) Evaluating evidence and making recommendations or decisions to establish paternity and to establish and enforce orders; 3 (3) Accepting voluntary acknowledgment of paternity or support liability and stipulated agreements setting the amount of support to be paid; (4) Entering default orders upon a showing that process has been served on the defendant in accordance with State law, that the defendant failed to respond to service in accordance with State procedures, and any additional showing required by State law; and (5) Ordering genetic tests in contested paternity cases in accordance with §303.5(d)(1). In order to demonstrate that the concern is outcome, not label, the regulation provides that a State may request an exemption from any of the requirements of the expedited process regulation for a political subdivision on the basis of the effectiveness and timeliness of paternity establishment, support order issuance, or enforcement within the political subdivision in accordance with the required state IV-D laws.<br><br> Subsequent federal legislation has expanded the authority of child support agencies. The Family Support Act of 1988 7 required States to establish review and adjustment procedures for IV-D cases, in order to receive federal funding. State IV-D agencies were required to notify each parent subject to an order being enforced by the agency that the parent could request a review of the order at least once every three years.<br><br> Upon receiving a request, the agency was required to notify the parties at least 30 days prior to the review, and notify the parties of any proposed adjustment or determination that there should be no change to the order. The procedures had to provide the parents at least 30 days for a challenge. 8 Implementing federal regulations define creview d as can objective evaluation, conducted through a proceeding before a court, quasi-judicial process, or administrative body or agency, of information necessary for application of the State 9s guidelines. d 9 The Omnibus Reconciliation Act of 1993 10 required States, as a condition of receiving federal funds, to adopt laws requiring civil procedures to voluntarily acknowledge paternity, including the implementation of in-hospital acknowledgment programs.<br><br> 11 In 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). 12 Promoted as legislation that dramatically overhauled the country 9s welfare program, it also dramatically changed the face of the child support program. Included within its requirements were the following: " streamlined paternity establishment, including use of a voluntary paternity acknowledgment 13 " administrative authority for the child support agency to order genetic testing for paternity establishment in contested cases 14 " administrative subpoena power so that the IV-D agency can obtain financial or other information necessary to establish, modify, or enforce support 15 " access by the IV-D agency to information contained in certain state records, as well as certain private records 16 " administrative authority for the IV-D agency to change the payee to the proper government agency 17 4 " administrative authority for the IV-D agency to increase the amount of an obligor 9s monthly payment, when necessary to satisfy an arrearage 18 " administrative authority to initiate income withholding 19 " administrative authority to impose liens arising by operation of law, and 3 in appropriate cases 3 to force the sale of property and distribute the proceeds to satisfy the child support obligation 20 " administrative authority to seize lump sums and financial institution accounts in order to enforce support.<br><br> 21 The Child Support Performance and Incentive Act of 1998 22 has also impacted the type of legal systems that States use to establish and enforce child support obligations in IV-D cases. The legislation ties federal incentive dollars to the state agency 9s performance in five areas: paternity establishment, support establishment, current collections, arrearage collections, and cost-effectiveness. 23 In order to ensure that the state agency 9s performance in each measure meets certain benchmarks, States are evaluating how they can make their child support programs more efficient and effective.<br><br> Comparative Studies on Performance Although the Child Support Enforcement Amendments of 1984 required States to have cexpedited processes d to establish and enforce child support obligations in Title IV-D cases, that does not mean a State must use an administrative process. At the time of the Amendments, States already had a variety of legal systems for processing child support cases. Some States, such as Maine and Washington, were using administrative processes that dated back to the creation of the Title IV-D program.<br><br> Other States were using judicial or quasi-judicial systems. In response to the expedited process requirement, States that had traditionally been judicial began to explore quasi-judicial systems and administrative processes. The shift from a pure judicial system to one incorporating more administrative processes was dramatic after PRWORA.<br><br> For the first time, Congress expressed a clear preference for administrative processes, at least with regard to enforcement. The question remains open, however, with regard to establishment. There is little research or data to support an argument that one type of system is better than another for the establishment of a support order.<br><br> 24 Proponents of the judicial and quasi-judicial processes believe that the judiciary can best protect parties 9 due process rights. They also note that the court has equity powers, and that some enforcement remedies -- such as contempt and incarceration for nonsupport -- are only available judicially. Proponents of administrative processes respond that parties 9 due process rights are fully protected in an administrative system and that there is always a right to judicial review.<br><br> They note that the administrative process can result in the faster establishment of a support order because there is no requirement to file pleadings and no delay while waiting for a court date. They believe that the process provides more access to parents because of the various opportunities for consent and the ability to participate without the expense of a lawyer. The federal Office of Child Support Enforcement commissioned a study to explore the key characteristics that define administrative and judicial processes, and to determine 5 whether cases move more quickly through one process or another.<br><br> The final report, Administrative and Judicial Processes for Establishing Child Support Orders 25 , was issued June 2002. The Lewin Group conducted the study in three phases. First, it developed a taxonomy to classify states along a continuum of administrative and judicial processes.<br><br> States were cscored d on a number of criteria, such as the type of forum, the type of presiding officer, the use of consent orders, the type of process used for contested and uncontested orders, and attorney involvement in the process. For each criteria, Lewin assigned points. The more points a State received, the more judicial that State was classified.<br><br> 26 A caveat: Lewin did not classify states based on a review of primary sources, such as current state statutes and administrative codes. Rather, it relied upon responses to a 1997 CLASP survey of state IV-D directors supplemented with information from other studies. 27 After completing a draft of the taxonomy, Lewin shared it with the State IV-D directors to solicit feedback.<br><br> 28 For the purpose of its study, Lewin defined any state with a taxonomy score of 14 or above as chighly judicial d and any state with a score under 10 as chighly administrative. d The results of the taxonomy scores appear below. Taxonomy Spectrum 16 15 14 13 12 11 10 9 8 6 5 4 CA FL MI MN MS NV NM NY TX WY HI NH NJ PA RI VT WV IL LA NE WI CT DE IA NC OK AZ AL DC GA ID IN KY MA ND TN KS MD SC AR CO SD WA MO OH OR AK ME VA UT MT Figure 2: Taxonomy Scores Relative to Administrative and Judicial Processes Based on the assessments, the Lewin Group selected nine states for an in-depth review. The States included administrative process, judicial process, and quasi-judicial process states.<br><br> The review included an examination of various documents provided by the nine state agencies, including policy manuals, flow charts, training materials, applications, guidelines, program brochures, and program performance across the five federal performance measures. 29 The authors then made site visits to five of the nine states: two states were classified as highly judicial (Arizona and Massachusetts), two were classified as highly administrative (Maine and Oregon), and one was classified as quasi-judicial (Colorado). In each state, the authors used interview protocols to collect information 6 from state-level officials, local office caseworkers, district or county administrators, and court officials.<br><br> They also reviewed a sample of cases to determine the length of time between case opening and order establishment. The report 9s findings are quite interesting. The Lewin Group concluded that to classify a state as judicial or administrative is too one-dimensional: cThe project activities revealed nuances that render the simple administrative/judicial labels overly simplistic. d They found a great variety among States in how they process establishment cases, even among States that are primarily judicial or primarily administrative.<br><br> In fact, few States use just one kind of process, and the process may differ depending upon whether there is consent or a contest. In terms of establishment milestones, however, Lewin did discover some areas where there were noticeable differences between the nine judicial and administrative process states studied in depth: " All three of the judicial states and both quasi-judicial states relied primarily on in- person service, while the four administrative states were more likely to use certified mail, return receipt requested. " The four administrative states informed the noncustodial parent of the proposed order amount early in the process.<br><br> The three judicial states revealed the order amount on the court date. The two quasi-judicial states were mixed. " Caseworkers in the four administrative states had more discretion to deviate from the guideline amount than caseworkers in the five judicial and quasi-judicial states.<br><br> " Attorneys were involved in all aspects of order establishment in the three judicial states and rarely involved in the four administrative states. In the two quasi- judicial states, they handled court-related business. " The three judicial states had some mechanism for meeting with one or both of the parents, but none of the four administrative states did.<br><br> The two quasi-judicial states were mixed. 30 With regard to performance, the report noted the following: " Among the nine states we reviewed in-depth, program performance across the key measures varied significantly both within type of process (i.e., administrative, quasi-judicial, judicial) and between the types of processes. However, we found no systematic pattern with regard to the effectiveness of any type of process.<br><br> " Among the five states we visited, our review of administrative data found that four of the states (the two administrative and two judicial states) had comparable establishment time frames [sic], the quasi-judicial state had a shorter timeframe. 31 In conclusion, Lewin identified areas for further study: Is there a relationship between the child support order establishment process and measures of program effectiveness? 7 Are higher default order rates related to forum or other features of the establishment process?<br><br> Does a state 9s method for imputing income contribute to its default order rate? Do states with in-person meetings have better compliance with child support order payments? Would county- or office-level experiments reveal information about effective practices independent of forum?<br><br> Does the timing of the disclosure of the order amount affect contests? Do links to the courts improve parental responses to the order establishment process? Can the clarity of notices and orders improve compliance with the establishment process?<br><br> III. Current Indiana Process Indiana 9s IV-D agency, the Child Support Bureau (CSB), is housed within the Indiana Department of Child Services. It is state-run, county administered.<br><br> The state agency provides centralized locate services and centralized enforcement work. The day-to-day provision of child support services is performed by 92 county elected prosecutors under cooperative agreements with CSB. There are also cooperative agreements with the elected county clerks for provision of record keeping services and limited payment processing services.<br><br> In federal fiscal year 2006, according to unaudited data, the Indiana child support agency had 355,757 open IV-D cases and 953 full-time equivalent employees (approximately 100 employed by the CSB, with the remainder employed by the 92 counties). That year Indiana scored above the national average on one of the five federal performance measures (cost-effectiveness). The state was lower than the national average in four of the five performance measures (paternity, support order establishment, current collections, and arrearage collections).<br><br> In its 2002 report, Lewin defined any state that had a score of 14 or above on its taxonomy scale as chighly judicial. d Indiana scored a 16. In order to receive federal funding, the Indiana legislature has enacted various child support laws required by federal legislation. These laws include expedited procedures for paternity establishment and administrative enforcement procedures.<br><br> Indiana law also provides for paternity establishment and enforcement through the court system. According to CSB Regional Field Consultants, it appears that, despite the availability of administrative procedures, some county prosecutors and many courts are requiring use of judicial procedures. This has exacerbated the backlog of cases waiting for court hearings.<br><br> Some counties are reporting a wait of up to nine months. Paternity Establishment Indiana law authorizing paternity determination through an expedited civil process is at Indiana Code (IC) 16-37-2-1 through 16-37-16 and IC 31-14-7-1 through 31-14-7-3. If the mother and a man identified as the father sign a paternity affidavit meeting the 8 requirements of IC-37-2-2.1, the paternity affidavit establishes paternity.<br><br> The man is conclusively established as the legal father of the child without any further proceedings by a court. According to regional field consultants, however, many courts are not treating paternity affidavits as legal determinations. In a few counties, if a county prosecutor office opens a support case where the parties have already signed a paternity affidavit, the office will attach a copy of the affidavit to the pleadings and proceed with support establishment.<br><br> Such a practice is consistent with federal and state law. However, in some counties, because of court practice, the prosecutor 9s office attaches the paternity affidavit to a pleading to determine paternity. In still other counties, despite the existence of a signed paternity acknowledgment, the court requires genetic testing.<br><br> Both of these latter practices violate law requiring that a signed paternity acknowledgment conclusively establishes paternity without any further court proceedings. 32 If there is no paternity affidavit, some county offices attempt to reach agreement between the parties prior to filing a court action. In these counties, the office schedules a conference with both parties, who are told to bring financial information.<br><br> A caseworker meets with the parties. The caseworker explains the paternity establishment process, and the parents 9 rights and responsibilities. Based on the parties 9 financial information, the caseworker will also compute the guideline support amount.<br><br> The caseworker, who is trained on use of the guideline worksheet, can factor in a permissible guideline deviation but it is subject to review and approval by a prosecuting attorney. If the parents agree to all issues 3 paternity, health care, support, the child 9s last name, and visitation rights 3 the prosecutor 9s office (usually a caseworker) will prepare a stipulated agreement. The agreement, which the parents must sign before a notary, contains provisions by which the father acknowledges paternity and agrees to the guideline amount of support.<br><br> The parties usually waive service of a summons when they sign the agreement. The paperwork is reviewed by a IV-D deputy prosecutor, who must approve and sign off on the agreement. The caseworker then prepares the necessary pleadings to present the stipulated agreement to the court.<br><br> In most counties using the consent process, the pleading and agreement are filed with the court, and the court approves the agreement without the necessity of a court hearing. The parties receive a copy of the court approved agreement by regular mail. If there is no affidavit and no stipulated agreement, the prosecutor 9s office must file a petition in the court to establish paternity.<br><br> The counties vary regarding the next steps. In most counties, a caseworker prepares a summons, which is usually personally served on the alleged father by a sheriff, investigator, or private contractor. The summons includes a copy of the paternity petition and informs the alleged father of the court date.<br><br> (Usually the custodial parent has waived service when she signs the paternity pleadings.) The paternity hearing is before a court. Some counties have a court dedicated to hearing IV-D cases; others do not. Parties may be represented by counsel.<br><br> A deputy prosecuting attorney appears on behalf of the child support agency. If the alleged father requests genetic testing, the court orders the testing. The request usually triggers a court continuance.<br><br> According to county reports, the rescheduled hearing may take place from 9 30 days to nine months later. If the genetic test results indicate a 99% probability of paternity, the man is presumed to be the child 9s biological father. The presumption is part of the evidence the court will consider at trial.<br><br> Once the court issues its decision, any party wishing to appeal must file a motion with the Court of Appeals. Any appeal must be filed within 30 days of the court decision. If the alleged father fails to appear at the paternity hearing, some courts will issue a default order establishing paternity if there was personal service.<br><br> Support Establishment Support establishment must occur through the courts. If paternity is not at issue because the children were born during a marriage or because paternity has already been judicially determined, the county prosecutor office will seek financial information from both parties. In some county prosecutor offices, the custodial parent who has applied for IV-D services is told to bring in recent pay stubs, W2 forms, day care receipts, and any information the custodial parent has about the noncustodial parent 9s income.<br><br> If both parents come to the office, a caseworker will review their income information and use an establishment worksheet to calculate the guideline amount. The caseworker usually relies o

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