ARC 2702C

ARC 2702C

HUMAN SERVICES DEPARTMENT[441]

Notice of Intended Action

Twenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A.4(1)"b."

Notice is also given to the public that the Administrative Rules Review Committee may, on its own motion or on written request by any individual or group, review this proposed action under section 17A.8(6) at a regular or special meeting where the public or interested persons may be heard.

Pursuant to the authority of Iowa Code section 217.6 and 2015 Iowa Acts, Senate File 500, sections 119, 120, and 124, the Department of Human Services proposes to amend Chapter 99, "Support Establishment and Adjustment Services," Iowa Administrative Code.

These proposed amendments update Division VI of Chapter 99 to conform the rules to statutory changes regarding the suspension of court orders for child and medical support. The amendments offer an additional way for an obligor to suspend a child support order when the child goes to live with the obligor and the obligee does not respond to the request to suspend under the current process in Iowa Code section 252B.20.

The amendments also update the existing suspension process in accordance with Iowa Code section 252B.20 to allow for suspension of the child support order if the child goes to live with a caretaker who does not want child support and both parents consent to the suspension. The amendments also add the ability to suspend the child support order if the child goes to live with a caretaker who does not want child support when the obligor requests the suspension but the obligee will not consent pursuant to Iowa Code section 252B.20A. In both processes, the suspension request will be allowed only in cases where the caretaker does not want child support and the child is not on public assistance.

These proposed amendments also update rule 441—99.27(252F) to conform the rule to a statutory change regarding genetic testing, which allows specimens or results of previous genetic testing of the mother and child to be reused, rather than having the mother and child resubmit samples for actions against each subsequent alleged father and streamlines the methods used under Iowa Code section 252F.3.

Any interested person may make written comments on the proposed amendments on or before September 20, 2016. Comments should be directed to Harry Rossander, Bureau of Policy Coordination, Department of Human Services, Hoover State Office Building, Fifth Floor, 1305 East Walnut Street, Des Moines, Iowa 50319-0114. Comments may be sent by fax to (515)281-4980 or by e-mail to policyanalysis@dhs.state.ia.us.

These amendments do not provide for waivers in specified situations because requests for the waiver of any rule may be submitted under the Department's general rule on exceptions at 441—1.8(17A,217).

After analysis and review of this rule making, no impact on jobs has been found.

These amendments are intended to implement Iowa Code section 217.6 and 2015 Iowa Acts, Senate File 500, sections 119, 120, and 124.

The following amendments are proposed.

Item 1. Amend rule 441—99.27(252F) as follows:

441—99.27(252F) Paternity contested. The alleged father may contest the paternity establishment by submitting, within 20 calendar days after service of the notice upon him, as provided in rule 441—99.23(252F), a written statement contesting paternity to the address of the unit as set forth in the notice. The mother may contest paternity establishment by submitting, within 20 calendar days after the unit mailed her notice of the action or within 20 calendar days after the alleged father is served with the original notice, whichever is later, a written statement contesting paternity to the address of the unit as set forth in the notice. When paternity is contested, or at the unit's initiative, the unit shall issue ex parte administrative orders requiring the alleged father, the mother and the child to submit to paternity testing. If the mother and child or children previously submitted blood or genetic specimens in a prior action to establish paternity against a different alleged father, the previously submitted specimens and prior results, if available, may be used for testing in this action.

Item 2. Amend 441—Chapter 99, Division VI, by adding the following new Part A title to follow the division title:

PART A

SUSPENSION BY MUTUAL CONSENT

Item 3. Amend rule 441—99.101(252B) as follows:

441—99.101(252B) Definitions. As used in this division part, unless the context otherwise requires:

"Caretaker" means a natural person with whom a child is residing and who is not legally entitled to receive support for that child pursuant to the order that is the subject of the pending suspension request.

"Child" shall mean means the same as defined in Iowa Code section 252E.1.

"Child support recovery unit" or "unit" shall mean means the same as defined in rule 441—95.1(252B) and Iowa Code section 252B.1.

"Obligee" shall mean the same as defined in rule 441—98.1(73GA,ch1224) means a custodial parent or other natural person legally entitled to receive a support payment on behalf of a child.

"Obligor" shall mean the same as defined in rule 441—98.1(73GA,ch1224) means a noncustodial parent or other natural person who is ordered to pay support pursuant to the order that is the subject of the pending suspension request.

"Public assistance" shall mean means the same as defined in Iowa Code section 252H.2.

"Spousal support" shall mean means either a set amount of monetary support, or medical support as defined in Iowa Code section 252E.1, for the benefit of a spouse or former spouse, including alimony, maintenance, or any other term used to describe these obligations.

"Step change" shall mean means a change designated in a support order that specifies the amount of the child support obligation as the number of children entitled to support under the order changes.

"Support" shall mean means the same as defined in Iowa Code section 252D.16, and shall include spousal support and support for a child.

"Support for a child" shall mean means either a set amount of monetary support (child support), or medical support as defined in Iowa Code section 252E.1, for the benefit of a child. This term does not include spousal support as defined in this rule.

"Support order" shall mean means the same as a "court order" as defined in Iowa Code section 252C.1.

Item 4. Amend rule 441—99.102(252B) as follows:

441—99.102(252B) Availability of service. The child support recovery unit shall provide the services described in this division part only with respect to support orders entered or registered in this state for which the unit is providing enforcement services in accordance with Iowa Code chapter 252B to collect current or accrued support.

99.102(1) Services described in this division part shall only be provided if a court in this state would have continuing, exclusive jurisdiction to suspend and reinstate the order under Iowa Code chapter 252K.

99.102(2) Services described in this division part shall be provided only if no prior request for suspension of all or part of a support order has been filed with the unit pursuant to Iowa Code section 252B.20 and no prior request for suspension of all or part of a support order has been served by the unit pursuant to Iowa Code section 252B.20A during the two-year period preceding the request. However, if the request was filed during the two-year period preceding July 1, 2005, and the unit denied the request because the suspension did not apply to all children for whom support is ordered, the unit shall provide suspension services if the parents jointly file a request on or after July 1, 2005.

Item 5. Amend subrule 99.103(2) as follows:

99.103(2) Change in residency. The unit shall assist an obligor and obligee in suspending support for a child when the child is residing with the obligor; however, the unit shall not assist in suspending any spousal support provisions of a support order on this basis. The unit shall also assist an obligor and obligee in suspending support for a child residing with a caretaker who has not requested unit services, if the child is not receiving public assistance.

Item 6. Amend subrule 99.103(3), introductory paragraph, as follows:

99.103(3) Affected children. The unit shall assist an obligor and obligee in suspending all or part of a support order as provided in this division part if the basis for suspension as described in this rule applies to the children entitled to support under the order to be suspended as follows:

Item 7. Amend subrule 99.103(4) as follows:

99.103(4) Limited to current support. The provisions in this division part for suspending support apply only toward ongoing or current support. Any support that has accrued prior to the entry of an order suspending support, including judgments for past periods of time, is unaffected by the suspension.

Item 8. Amend subrule 99.104(2) as follows:

99.104(2) Acknowledging requests Denying a request. The local unit providing services shall issue a written notice to the obligor and obligee indicating whether that a properly completed request is accepted or denied.

a. This notice shall be sent by first-class regular mail to the last known last-known address of the obligor and obligee , or, if applicable, to the last known last-known address of the obligor's or obligee's attorney.

b. If the basis for suspension is reconciliation, one notice shall be sent to the address shared by the obligor and obligee. If the basis for suspension is a change in residency of the children entitled to support, a separate notice shall be issued to the obligor and obligee at their respective last known last-known addresses.

c. A The notice denying a request shall indicate the reason for denial.

d. A request for suspension shall be denied when the conditions specified in Iowa Code section 252B.20, rule 441—99.102(252B), or rule 441—99.103(252B) are not met.

e. Denial of a request is not subject to appeal or review under Iowa Code chapter 17A.

Item 9. Rescind subrule 99.104(3).

Item 10. Amend rule 441—99.105(252B), introductory paragraph, as follows:

441—99.105(252B) Order suspending support. After approving To approve a request to suspend support, the unit shall prepare and present to the district court an order suspending support as provided in Iowa Code section 252B.20.

Item 11. Amend 441—Chapter 99, Division VI, by adding the following new Part B title to follow rule 441—99.106(252B):

PART B

SUSPENSION BY PAYOR'S REQUEST

Item 12. Rescind rule 441—99.107(252B) and adopt the following new rule in lieu thereof:

441—99.107(252B) Definitions. As used in this part, unless the context otherwise requires:

"Caretaker" means a natural person with whom a child is residing and who is not legally entitled to receive support for that child pursuant to the order that is the subject of the pending suspension request.

"Child" means the same as defined in Iowa Code section 252E.1.

"Child support recovery unit" or "unit" means the same as defined in rule 441—95.1(252B) and Iowa Code section 252B.1.

"Obligee" means a custodial parent or other natural person legally entitled to receive a support payment on behalf of a child.

"Obligor" means a noncustodial parent or other natural person who is ordered to pay support pursuant to the order that is the subject of the pending suspension request.

"Public assistance" means the same as defined in Iowa Code section 252H.2.

"Step change" means a change designated in a support order that specifies the amount of the child support obligation as the number of children entitled to support under the order changes.

"Support" means the same as defined in Iowa Code section 252D.16 and shall include support for a child.

"Support for a child" means either a set amount of monetary support (child support), or medical support as defined in Iowa Code section 252E.1, for the benefit of a child. This term does not include spousal support as defined in rule 441—99.101(252B).

"Support order" means the same as a "court order" as defined in Iowa Code section 252C.1.

Item 13. Rescind rule 441—99.108(252B) and adopt the following new rule in lieu thereof:

441—99.108(252B) Availability of service. The child support recovery unit shall provide the services described in this part only with respect to support orders entered pursuant to Iowa Code chapter 252A, 252C or 252F for which the unit is providing enforcement services in accordance with Iowa Code chapter 252B to collect current or accrued support.

99.108(1) Services described in this part shall only be provided if a court in this state would have continuing, exclusive jurisdiction to suspend and reinstate the order pursuant to Iowa Code chapter 252K.

99.108(2) Services described in this part shall be provided only if no prior request for suspension of all or part of a support order has been filed with the unit pursuant to Iowa Code section 252B.20 and no prior request for suspension of all or part of a support order has been served by the unit pursuant to Iowa Code section 252B.20A during the two-year period preceding the request.

Item 14. Rescind rule 441—99.109(252B) and adopt the following new rule in lieu thereof:

441—99.109(252B) Basis for suspension of support.

99.109(1) Child residing with obligor or caretaker. The unit shall assist an obligor in suspending support for a child residing with the obligor or with a caretaker who has not requested unit services, if the child has been residing with the obligor or caretaker for more than 60 consecutive days.

99.109(2) Orders eligible for suspension.

a. The unit shall assist an obligor in suspending support for a child under this part only when there is no order in effect regarding legal custody, physical care, visitation or other parenting time for the child.

b. If an order exists that contains language regarding legal custody, physical care, visitation or other parenting time for the child, the unit shall deny the suspension request.

99.109(3) Children on public assistance. The children for whom ongoing support is being suspended shall not be receiving public assistance pursuant to Iowa Code chapter 239B or 249A or a comparable law of another state or foreign country, or if the children are receiving public assistance, the obligor must be considered to be a member of the same household as the children for the purposes of public assistance eligibility.

99.109(4) Duration of conditions. The basis for suspension of support under this part must reasonably be expected to continue for not less than six months from the date a request for assistance to suspend is received by the child support recovery unit.

99.109(5) Affected children. The unit shall assist an obligor in suspending all or part of a support order as provided in this part if the basis for suspension as described in this rule applies to the children entitled to support under the order to be suspended as follows:

a. If the basis for suspension applies to all of the children, the unit shall assist in suspending support obligations for all of the children.

b. If the basis for suspension applies to at least one but not all of the children and if the support order includes a step change, the unit shall assist in suspending the support obligations for children for whom the basis for suspension applies.

99.109(6) Limited to current support. The provisions in this part for suspending support apply only toward ongoing or current support. Any support that has accrued prior to the entry of an order suspending support, including judgments for past periods of time, is unaffected by the suspension.

Item 15. Rescind rule 441—99.110(252B) and adopt the following new rule in lieu thereof:

441—99.110(252B) Request for assistance to suspend. The obligor subject to a support order being enforced by the unit may request that the unit assist in having the ongoing support provisions suspended as follows:

99.110(1) Submitting a request.

a. A request for suspension shall be submitted to the local child support unit providing services using Form 470-5348, Request from the Payor to Suspend Support.

b. The unit shall provide Form 470-5348 to the obligor upon request.

c. The request form must be signed by the obligor affected by the order to be suspended.

d. The request shall contain sufficient information to allow the local unit to identify the court order and parties involved and shall attest that the children have lived in the obligor's household or the caretaker's household for more than 60 consecutive days and are expected to live there for at least six months.

99.110(2) Submitting an affidavit. After receiving a valid request for suspension, the local office shall provide the requestor with Form 470-5349, Affidavit Requesting Suspension of Support Based on Payor's Request.

a. The obligor shall submit the affidavit for suspension to the local child support unit providing services. If the request for suspension is made pursuant to Iowa Code section 252B.20A(17), the caretaker must also submit an affidavit, Form 470-5349.

b. Form 470-5349 must be signed, attesting to the existence of the conditions under subrules 99.109(1) through 99.109(4). Form 470-5349 must be notarized.

c. If the obligor is requesting suspension of more than one order at the same time, the obligor shall be required to submit only one copy of Form 470-5348, identifying each order the request involves; however, the obligor shall be required to submit a separate, signed and notarized affidavit, Form 470-5849, for each order.

Item 16. Adopt the following new rule 441—99.111(252B):

441—99.111(252B) Determining eligibility for suspension. Upon receipt of the request for suspension and the properly executed and notarized affidavit, the unit shall review the request and the affidavit to determine that the criteria have been met.

99.111(1) If the criteria are not met. If the criteria have not been met, the local unit providing services shall issue a written notice to the obligor indicating that the request is denied.

a. The notice shall be sent by first-class regular mail to the last-known address of the obligor or, if applicable, to the last-known address of the obligor's attorney.

b. The notice shall indicate the reason for denial and notify the obligor of the right to proceed through private counsel. Denial of the request is not subject to contested case proceedings or further review pursuant to Iowa Code chapter 17A.

99.111(2) If the criteria are met. If the criteria are met, the unit shall proceed as follows:

a. The unit shall serve Form 470-5351, Notice of Intent to Payee to Suspend a Child Support Obligation Based on Payor's Request, and Form 470-5352, Payee's Affidavit Objecting to Suspension of Support, and supporting documents on the obligee by any means provided in Iowa Code section 252B.26. The notice to the obligee shall include all of the following:

(1)Information sufficient to identify the parties and the support order affected.

(2)An explanation of the procedure for suspension under Part B and reinstatement of support under Part C of this division.

(3)An explanation of the rights and responsibilities of the obligee to respond to the action.

(4)A statement that, within 20 days of service, the obligee must submit a signed and notarized response to the unit objecting to at least one of the assertions in subrules 99.109(1) through 99.109(4). The statement shall inform the obligee that if, within 20 days of service, the obligee fails to submit a response as specified in this subparagraph, notwithstanding Rules of Civil Procedure 1.972(2) and 1.972(3), the unit will prepare and submit an order.

b. No sooner than 30 days after service on the obligee, the unit shall do one of the following:

(1)If the obligee submits a signed and notarized objection to at least one of the assertions in subrules 99.109(1) through 99.109(4), deny the request and notify the parties in writing that the request is denied, providing reasons for the denial, and notifying the parties of the right to proceed through private counsel. Denial of the request is not subject to contested case proceedings or further review pursuant to Iowa Code chapter 17A.

(2)If the obligee cannot be served, the local unit providing services shall issue a written notice to the obligor indicating the request is denied, following the procedure described in subrule 99.111(2).

(3)If the obligee does not timely submit a signed and notarized objection to the unit, prepare an order following the procedure described in rule 441—99.112(252B).

Item 17. Adopt the following new rule 441—99.112(252B):

441—99.112(252B) Order suspending support. After approving a request to suspend support and properly serving the obligee, the unit shall prepare and present to the district court an order suspending support as provided in Iowa Code section 252B.20A.

99.112(1) The suspension shall apply to ongoing support provisions, including medical support, with respect to only the children entitled to support under the order who are residing with the obligor or caretaker.

99.112(2) A copy of the filed order shall be sent by first-class regular mail to the last-known address of the obligor and obligee or, if applicable, to the last-known address of the obligor's or obligee's attorney.

Item 18. Adopt the following new rule 441—99.113(252B):

441—99.113(252B) Suspension of enforcement of current support. The child support recovery unit shall suspend enforcement actions intended to collect or enforce any current support obligation that would have accrued during the time the support obligation is suspended. The unit shall continue to provide all appropriate enforcement services to collect any support not suspended and any arrearages that accrued before the effective date of the suspension.

Item 19. Amend 441—Chapter 99, Division VI, by adding the following new Part C title to follow rule 441—99.113(252B):

PART C

REINSTATEMENT OF SUPPORT

Item 20. Adopt the following new rule 441—99.114(252B):

441—99.114(252B) Request for reinstatement. The unit may request that the court reinstate the suspended support obligation in accordance with the procedures found in Iowa Code sections 252B.20 and 252B.20A.

99.114(1) Either the obligor or the obligee affected by the suspended order may request reinstatement by submitting a written request for reinstatement to the child support recovery unit. The request must indicate that reinstatement is being requested and the reason for reinstatement and must contain sufficient information to identify the court order and parties involved. The request must also be signed by the requesting party.

99.114(2) The unit may, at its own initiative, request that the court reinstate a support obligation when it is determined that a child for whom the obligation was suspended is receiving public assistance benefits.

99.114(3) The unit shall issue a written notice approving or denying the request to any obligor or obligee requesting reinstatement. This notice shall be sent by first-class regular mail to the last-known address of the requesting party and shall indicate any reason for denial.

99.114(4) A properly completed request for reinstatement shall be denied when any of the following conditions exist:

a. The request is made by someone other than the obligor, the obligee, or the obligor's or obligee's attorney.

b. The unit is no longer providing enforcement services for the suspended order.

c. The request is received more than six months after the date of the filing of the order suspending support.

d. The request is for partial reinstatement of the suspended support order for some but not all of the children, and the order does not contain a step change.

e. A court in this state would not have continuing, exclusive jurisdiction to reinstate the order under Iowa Code chapter 252K.

Item 21. Adopt the following new rule 441—99.115(252B):

441—99.115(252B) Reinstatement. The child support recovery unit shall follow the procedures in Iowa Code sections 252B.20 and 252B.20A in seeking to have the court reinstate a support order.

99.115(1) The unit shall request that the court reinstate a spousal support provision previously suspended if the provision was included in the suspension in accordance with subrule 99.105(1) and if the unit receives a properly completed request from the obligor or the obligee.

99.115(2) The unit shall seek to have the previously suspended support for a child reinstated under this part when the conditions in paragraph "a" or "b" of this subrule are met. This provision shall not prohibit any party, including the child support recovery unit, from taking other action to establish support as provided for by law.

a. The basis for suspension no longer applies to any of the children for whom support was suspended; or

b. The basis for suspension continues to apply to some but not all of the children for whom support was suspended, and there is a step change in the order.

Item 22. Adopt the following new rule 441—99.116(252B):

441—99.116(252B) Reinstatement of enforcement of support. If a suspended support obligation is reinstated, the unit shall also reinstate all appropriate enforcement measures to enforce all reinstated ongoing support provisions of the support order.

Item 23. Adopt the following new rule 441—99.117(252B):

441—99.117(252B) Temporary suspension becomes final. The temporary suspension of a support order under this division shall become final if not reinstated in accordance with Iowa Code sections 252B.20 and 252B.20A.

Item 24. Amend 441—Chapter 99, Division VI, implementation sentence, as follows:

These The rules in this division are intended to implement Iowa Code section sections 252B.20 and 252B.20A.