ESTABLISH ORDER

CS 384P Amending Administrative Orders

08/93 Revised 09/03/08 Training Completed 06/27/05

R527-200-18, 19

 

Introduction

 

It may be necessary to amend an administrative stipulation, participation, or default order that contains errors or is incorrect due to facts learned after the order is issued.  Amending an order is preferable to setting aside an order whenever possible because the original order is not eliminated during the process.  The need to amend an order may be discovered by a respondent or an Office of Recovery Services/Child Support Services (ORS/CSS) worker and does not require a formal written request from the respondent.

 

Criteria for Amending Administrative Orders

 

Utah Administrative Rule R527-200-18 describes when CSS can amend an administrative order as follows:

“1. The office may amend an order for reasons including the following:

a. A clerical mistake was made in the preparation of the order.

b. The time periods covered in the order overlap the time periods in another order for the same participants.

2. The office shall notify the respondent of its intent to amend the order by serving the respondent with a notice of agency action. The notice shall be signed by a presiding officer.

3. If after serving the respondent with a notice of agency action, the presiding officer determines that the order shall be amended, the office shall provide a copy of the amended order to the respondent.”

The amend order process must be strictly limited to the situations for which it is authorized. It must not be allowed to effectively undermine the statutory prohibition against retroactive modification of support orders.

 

If you believe there is a need to amend an order for any reason other than those included in the “ORS/CSS Motion to Amend Administrative Order,” you may request permission through your manager, Associate Regional Director (ARD), and Regional Director (RD).  The Regional Director will discuss the case with the supervisor of the Policy Analyst Unit and the CSS Director.  If the amendment is approved, the RD will sign the form as a record of the approval to proceed. 

 

Procedures for Amending CSS Administrative Orders (Non-Paternity)

 

If it appears that an administrative order must be amended, the post-order worker will take the steps listed below.

 

1.                  Complete the “ORS/CSS Motion to Amend Administrative Order” if this in an internal request to amend the order.

 

2.                  Forward the amendment information and the physical case file to the Presiding Officer who issued the support order. 

 

NOTE:  If the pre-order team assigned by ORSIS is different than the team of the Presiding Officer that entered the order, the case is still referred to the P.O. who issued the order, who must then work with the post-order team when the computer must be updated.  Other than computer updates, the P.O. is capable of issuing necessary documents and reviewing the case as required even without ORSIS access to the case.  

 

3.                  Continue enforcement activity.  If it appears that the amended information will cause the case to become overpaid if the current collection activity continues, you may consider placing distribution holds to prevent an overpayment.  

 

When the pre-order presiding officer receives the amendment information, the presiding officer will take the following steps. 

 

1.                  Review the information and reasons supporting an amended order.

 

2.                  Review the approved criteria for amending an order.  The presiding officer may amend an order for the reasons listed in Administrative Rule 527-200-17.

a.                   A clerical mistake was made in the preparation of the order.” [R527-200-17(1)(a)]

 

EXAMPLE 1:  An administrative order contains a typographical error in the support amount, judgment amount or name spelling.

 

EXAMPLE 2:  An administrative order does not include the paternity establishment language.  When reviewing the case, you find that the correct NAA, which included all of the appropriate paternity options, was personally served on the alleged father.  Amend the order to add the paternity establishment language for the child(ren).  The paternity established date becomes the date of the final amended order.  

 

EXAMPLE 3:  An administrative order was issued and you subsequently learned that the IV-A custodial parent (CP) had received and retained direct support payments from the non-custodial parent (NCP) for the same time period covered in the judgment.  Amend the order if the entire obligation was paid by the respondent prior to the entry of the order.  Otherwise, adjust the CSS accounting records to reflect the correct amount due without amending the order. 

 

EXAMPLE 4:  The Department of Workforce Services (DWS) proves that the mother and father were together during the entire assistance time period, meaning the CP would not have been eligible for IV-A services.  Amend the order if the mother and father were together for the entire assistance time period and the CP would not have been eligible for any of the IV-A services.  Otherwise, adjust the accounting record on ORSIS to reflect the correct amount due for the portion of the time periods that the CP was eligible for IV-A services.

 

b.                  The time periods covered in the order overlap the time periods in another order for the same participants.” [R527-200-17(1)(b)]

 

EXAMPLE:  A Notice of Agency Action is served in November 2003.  In December 2003, the parties file a judicial divorce action.  An administrative order is issued in January 2004 that includes a judgment from January 2003 to December 2003.  When the judicial order is completed in June 2004, it contains a judgment from July 2003 to May 2004.  Since the judicial court had jurisdiction when the administrative order was issued, and the judicial order overlaps the timeframes in the administrative order, the administrative order may need to be amended to remove the months that overlap from the sum certain judgment (July 2003 to December 2003) or set aside.  Review these cases with the Attorney General Office (AGO).  The AGO will consider the case circumstances and advise whether to proceed with an amendment or set aside on a case-by-case basis. 

 

c.                   Other reasons when approved by the manager, ARD or RD, and the CSS Director.  Document the approval.

 

3.                  Prepare the “Notice of Agency Action: Amend Order.”  This form requires your manager’s approval and signature.

 

4.                  Send the notice to both respondents (unless you are only pursuing one parent).  You may mail it by regular mail to the respondents or give it to a respondent personally (e.g., if a respondent is in the office).     

 

5.                  Monitor for response to the notice.  Do not amend the original order until the respondents have had the full 30 days to respond.  If you have personal contact with either respondent, advise the respondent that the other parent will be given the opportunity to respond to the changes in the order before it becomes effective.  If both respondents will stipulate to the amended order, issue the “Stipulation and Order:  Amend Administrative Order.”

 

6.                  Observe all applicable UAPA procedures found in the ESTABLISH ORDER sections of Volume 2.   The respondent(s) will have the opportunity to attend a conference, request a hearing, request reconsideration, etc.  Once all of the appropriate UAPA procedures have been followed, the 30-day response timeframes have passed, and you have determined that it is appropriate to amend the order, proceed to the next step.

 

7.                  Issue an “Order Amending:” the previous order.

 

8.                  Send a copy of the “Order Amending:” to the respondents, the initiating jurisdiction (if applicable), and the CSS docket unit.

 

9.                  Add amended order to ORSIS.

 

10.              Return the file to the post-order worker. 

 

Amending CSS Paternity Orders

 

Do not use the amendment process to add paternity language to administrative orders unless the correct paternity documents and options were included in the original NAA and the original NAA was properly served for paternity establishment. 

 

If paternity was established through an administrative process and later evidence is obtained (e.g., genetic test results) that would reverse the paternity determination, amend the existing administrative order.  The amended order will take effect prospectively only. 

 

For judicial orders contact your AG to have the order amended. Do not refund any money that has been collected unless ordered to do so by the court after the non-custodial parent has initiated a judicial proceeding.

 

Procedures: Request to Amend OAH Orders Initiated by CSS

 

1.                  Review the case and the order with your manager and Associate Regional Director (ARD) and/or Regional Director (RD).  This review decides whether CSS should pursue amendment of the order.  If a request for amendment is deemed inappropriate, the order will be enforced as written.  Otherwise, proceed to the next step.

 

2.                  The manager will generate the “Motion to Amend Administrative Hearing Order.”  Provide this form to the RD, who will discuss the case with the CSS Director.  If the CSS Director does not approve the request for amendment, do not pursue amendment further, and enforce the order as written.  If the CSS Director approves the request, the signed form will be signed and returned to you for the next step.

 

3.                  Generate the “Notification of Request for Reconsideration or Motion to Amend Administrative Hearing Order.”  Prepare a copy for each respondent named in the order. 

 

4.                  Send the original, signed “Motion to Amend” to OAH. 

 

5.                  Send copies of the forms to each respondent named in the order.  Mail the forms by first-class mail. 

 

6.                  Monitor for response from OAH.  OAH will review the request and issue an amended order (grant the request) or will deny the request. 

a.                   Request Granted:  Attend any scheduled hearings.  Monitor for the amended order. 

b.                  Request Denied:  Add the existing support order to ORSIS and begin enforcement activity.