ADMINISTRATIVE POWER UNDER TITLE IV-D - PowerPoint Presentation

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ADMINISTRATIVE POWER UNDER TITLE IV-D

Newly Elected and Appointed Prosecuting Attorneys Training Seminar andAttorney General’s Winter Conference Indianapolis, Indiana, December 7-12, 2014David L. Morris, Senior Deputy Prosecutor, Marion County Prosecutor’s Office Slide2

LEGISLATIVE DELEGATION – THE SOURCE OF ADMINISTRATIVE AUTHORITY Slide3

LEGISLATIVE DELEGATION – THE SOURCE OF ADMINISTRATIVE AUTHORITY

Federal - Congress enacts legislation. U.S. Dept. of H.H.S. writes regulations. State -Indiana Legislature creates the Department of Child Services.Child Support Bureau (CSB) administers IV-D plan.Indiana has agreed to follow the federal code and

HHS

regulations

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LEGISLATIVE DELEGATION –

THE SOURCE OF ADMINISTRATIVE AUTHORITY Slide4

ADMINISTRATIVE HEARINGS – SPECIFIED ACTIONS

Income withholdingLicense suspensionFIDMState tax refund offsetTANF arrearage allocationSlide5

ADMINISTRATIVE HEARINGS – SPECIFIED ACTIONSSlide6

JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (1/9)

Exhaustion of Administrative Remedies - Party must exhaust administrative remedies before seeking judicial review. Petition for judicial review must be verified.Petition must allege exhaustion.Failure to exhaust administrative remedies is jurisdictional. Slide7

JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (2/9)

Exceptions to Exhaustion Requirement – Petitioner must show:Futility Statute void on its faceAgency action is ultra vires (“beyond the powers”)Slide8

JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (3/9)

Procedure for Seeking Judicial Review – Agency issues an appealable final orderPetitioner files verified petitionVenue – usually in county where IV-D action took placeTime limitations - w/in 30 days after notice of IV-D action Petitioner submits agency record – w/in 30 days of filing the petition.

Failure to submit record is jurisdictionalSlide9

JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (4/9)

Stay of Administrative Action – Petitioner may file for a stay of the administrative action. The court may issue a stay if:Petitioner shows a reasonable probability of winning ANDPetitioner posts a bond of at least $500.Slide10

JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (5/9)

The Hearing – Limited to facts and issues raised before administrative agencyCourt may remand back to agency if:agency failed to prepare / preserve an adequate record; agency improperly excluded or omitted evidence from the record; or a relevant law changed after the agency action.Slide11

JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (6/9)

Burden of Proof - Petitioner must prove agency action was arbitrary and capricious. An arbitrary and capricious decision is one which is:patently unreasonable;made without consideration of the facts and in total disregard of the circumstances; andlacks any basis which might lead a reasonable person to the same conclusion the agency reached. Slide12

JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (7/9)

Scope of Judicial Review – Court shall grant relief only if agency action is:arbitrary, capricious, an abuse of discretion, or unlawful; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction or authority; without observance of procedure required by law; or unsupported by substantial evidence.Slide13

JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (8/9)

Standard of Judicial Review – Questions of Fact – substantial evidence Questions of Law – Interpretation of unambiguous statute = de novoInterpretation of ambiguous statute – defer to agency Whether undisputed facts lead to a certain conclusion = de novo.Mixed Questions of Fact and Law - abuse of discretion Slide14

JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (9/9)

Disposition - If Petitioner is entitled to relief, the court may: remand the case to the agency for further proceedings; or compel agency action. Appeal of Decision - Decisions on petitions for review of agency action are appealable.Appellate court applies the same standard of review as did the trial court.Slide15
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INDEPENDENT ADMINISTRATIVE AUTHORITY (1/3)

Income Withholding - Court can’t prohibit IV-D income withholding. Court can’t limit amount of a IV-D income withholding order. License Suspension - Court can’t reinstate license suspended by IV-D agency. Slide17

INDEPENDENT ADMINISTRATIVE AUTHORITY (2/3)

Tax Refund Offset - Court can’t restrain IV-D tax offset. Tax offset OK despite income withholding on arrears.Passport Revocation - Court can’t order passport reinstatement. Financial Institution Data Matching - IV-D income withholding OK to seize bank account.Slide18

INDEPENDENT ADMINISTRATIVE AUTHORITY (3/3)Credit Reporting

Lottery and Gambling InterceptionGaming License / Alcohol Permit SuspensionLiens against Vehicles and Other PropertyPaternity EstablishmentSlide19

Do we really want greater efficiency?Slide20

ADMINISTRATIVE PATERNITY ESTABLISHMENT Slide21

ADMINISTRATIVE PATERNITY ESTABLISHMENT (1/2) Administrative Paternity Establishment

- Federal requirements:State must have paternity affidavits, including a hospital-based program. Executed paternity affidavit establishes paternity, subject to rescission.After 60 days, may challenge only upon fraud, duress, or material mistake of fact.Slide22

ADMINISTRATIVE PATERNITY ESTABLISHMENT (2/2) State Paternity Affidavit Statutes – IC 16-37-2-1 et seq.

Paternity Affidavit may be executed:At hospital - w/in 72 hours of child’s birth or At local health department before child’s emancipation. Persons allowed to sign affidavit:MotherMan who reasonably appears to be the child's biological fatherSlide23

ADMINISTRATIVE PATERNITY DISESTABLISHMENT

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ADMINISTRATIVE PATERNITY DISESTABLISHMENT

Within 60 Days After Affidavit is Executed: A man who signed affidavit may file request for DNA test Filed in paternity courtAfter 60 Days - Set Aside Only If:Court finds fraud, duress or mistake of fact in execution; Man requests DNA test – and court orders it; andDNA test excludes man as biological fatherSlide25

BANKRUPTCYSlide26

BANKRUPTCY – MAIN CONCEPTSChild support is

nondischargeableEven if arrears owed to the stateCh. 7 vs. Ch. 13Ch. 7 = LiquidationCh. 13 = Reorganization (same for Ch. 11 and 13)Consider filing proof of claimSlide27

BANKRUPTCY – ALWAYS OKEstablishing Paternity

Establishing SupportModifying Support Initiating or Continuing with Criminal ProceedingsSlide28

BANKRUPTCY – NEVER OK(Without bankruptcy court permission)

Contempt actionsInitiating liens on estate propertyForeclosing on estate propertySuspending or revoking passport Demand letters for pre-petition debtSlide29

BANKRUPTCY – SOMETIMES OKIncome withholding

License suspensionCredit reportingTax refund interceptionEnforcing medical support orderSlide30

SOMETIMES OK --- DEPENDS ON:Ch. 7 – OK

Ch. 13 – Ok between filing of bankr. petition and confirmationProbably NOT OK after confirmationWhen in doubt - seek bankr. court permissionSlide31

OTHER THINGS TO WATCH OUT FORSlide32

OTHER THINGS TO WATCH OUT FORArrearage disputes

Tax offsetsCredit reportingOverpaymentsMisallocated child support paymentsSocial Security dependent benefitsIV-D confidentiality rulesFOIA requestsSlide33

ISETS IS NO FRIENDSlide34

IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORSSlide35

IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS (1/6)Paternity Establishment

Support Order Establishment Current CollectionsArrearage Collections Cost-Effectiveness Slide36

IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS (2/6)

Paternity Establishment Performance Establish paternity before moving the case on!Total # of children in IV-D caseload as of the end of the fiscal year who were born out-of-wedlock with paternity established or acknowledged ______________________________________Total # of children in IV-D caseload as of the end of the preceding fiscal year who were born out-of-wedlockSlide37

IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS (3/6)

Support Order Establishment Performance Establish an order before moving the case on! $0.00 orders count as an order.Modifications do not affect the count. Number of IV-D cases with support orders during the fiscal year Total number of IV-D cases during the fiscal year.Slide38

IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS (4/6)

Current Collections PerformanceIncludes money applied to current support.Does not include payment towards arrears. Computed monthly. Number of dollars collected for current support in IV-D cases Total dollars owed for current support in IV-D cases.Slide39

IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS (5/6)

Arrearage Collection Performance Includes:Payments disbursed to family; or at least in part to familyPayments made to State, if all money owed to StateOne dollar in a fiscal year counts!Total number of eligible IV-D cases paying toward arrears Total number of IV-D cases with arrears due(expressed as a percent).Slide40

IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS (6/6)

Cost-Effectiveness Performance Interstate cases double-counted. Go government! Total IV-D dollars collected Total IV-D dollars expendedSlide41

WHAT WE’VE LEARNED Slide42

WHAT WE’VE LEARNED Independent administrative authority of IV-D Agency

Judicial Review - Procedure, burdens and standardsEstablishing / Disestablishing paternityBankruptcyThings to watch out forIV-D Motivation – Federal performance factors