ESTABLISH ORDER

CS 390 Retained Support Procedures

07/14/03 Revised 05/05/15 Training Completed 05/15/15

UCA 62A-11-307.1(3), 62A-11-307.2(4), 35A-3-108(1)(b); R527-40

  

 

Introduction

 

When a custodial parent (CP) is receiving IV-A cash assistance from the State of Utah or if a child has been placed in state custody, the State has the right to receive child support payments to offset the costs of those programs.  If the CP (or a former CP for the state custody situations) receives direct payment of support from a non-custodial parent (NCP) during those time periods, the CP has “retained support” that legally belongs to the State of Utah.

 

 

Statutory Authority

 

When a CP receives IV-A cash assistance from the State or if a child has been placed in state custody, pursuant to U.C.A. 35A-3-108(1), he/she assigns all child support rights to the State of Utah. 

 

35A-3-108.   Assignment of support:

“(1) (a) The division shall obtain an assignment of support from each applicant or client regardless of whether the payment is court ordered.

(b) Upon the receipt of assistance, any right to receive support from another person passes to the state, even if the client has not executed and delivered an assignment to the division as required by Subsection (1)(a).

(c) The right to support described in Subsection (1)(b) includes a right to support in the applicant's or client's own behalf or in behalf of any family member for whom the applicant or client is applying for or receiving assistance.”

 

If the CP receives support directly from the non-custodial parent (NCP), the NCP’s employer, the clerk of the court, another jurisdiction, etc., and fails to forward the support payment to the Office of Recovery Services/Child Support Services (ORS/CSS) in accordance with U.C.A. 62A-11-307.1(3)(a) and 62A-11-307.2(4)(a), s/he has retained support.

 

62A-11-307.1.   Collection directly from responsible parent:

“. . . (3) (a) The office may issue or modify an administrative order, subject to the procedural requirements of applicable law, that requires that obligee to pay to the office assigned support that an obligee receives and retains in violation of Subsection 62A-11-307.2(4) and may reduce to judgment any unpaid balance due. . . .”        

 

62A-11-307.2.   Duties of obligee after assignment of support rights.

“ . . . (4) (a) If an obligee receives direct payment of assigned support from an obligor, the obligee shall immediately deliver that payment to the office. . . .”

 

When/if a retained support situation is identified by the CSS team, a referral is sent to Team 60, the retained support team.  Team 60 is responsible to collect the child support money retained from the CP.  For additional information and retained support procedures, refer to CS 072 In-Kind Support and Proof of Direct Payments, CS 505 Assignment of Support Rights, CS 590 Retained Support, and CS 880 Retained Support – Enforcing Repayment Agreements.

 

  

Definition

 

Retained support – As defined by R527-40-2 Retained Support:

“(1) The term Retained Support refers to a situation in which an obligee who has assigned support rights to the state has received child support but failed to forward the payment(s) to ORS.”

 

 

Preparing the Retained Support Case File

 

When a retained support case/debt is opened on ORSIS, the team 60 agent is notified and the assigned agent is responsible to complete the following procedures below.

 

1.                   Review the new case by looking at the debt information in ORSIS.

2.                   Determine if the supporting evidence has been received from the referring team.

3.                   Review the evidence (Proof of Direct or in-Kind Worksheet) on the new case. 

 

If the evidence is not received with the referral or Team 60 determines the evidence to be insufficient, Team 60 will send an email to the referring worker, his/her manager, and the Team 60 Manager stating that sufficient retained support evidence must be received within two working days or the case will be closed due to insufficient evidence.  If sufficient evidence is later received, the case may be reinstated and worked the same as any other case.

 

 

Notice of Agency Action: Retained Support

 

The Notice of Agency Action Retained Support/Notice of Agency Action:  Determination of IV-E Retained Support Obligation is prepared by an agent and the order must be issued by a Presiding Officer (PO), two separate individuals.  The specific duties and responsibilities of the agent and the PO are listed below. 

 

1.                   Agent duties prior to order establishment – Generate the Notice of Agency Action:

a.                   Verify on ORSIS that the respondent does not have a financial overpayment case open for the same time period as the retained support.  If so, do not issue a sum-certain judgment to establish the retained support arrears.

b.                  Bankruptcy – Determine if the respondent has filed for bankruptcy.  If so, do not issue a sum-certain judgment to establish the retained support arrears as this may be considered an “enforcement action” on a bankruptcy case.  If the respondent has filed for bankruptcy, the case may be reviewed for closure.

c.                   Prepare the Notice of Agency Action.

i.                     Review the supporting evidence received from the referring team;

ii.                   Prepare and generate the Notice of Agency Action;

iii.                  Add the PO’s name to the notice; and,

iv.                 Forward the Notice of Agency Action to the PO to sign and send to the respondent.

d.                  Monitor the case for the return of the notice.

e.                  Document all actions taken on the case in the narrative.

f.                    Present the State’s evidence on the case to the PO, or to the Administrative Hearing Officer (AHO) or Administrative law Judge (ALJ), if the case goes to an administrative hearing.

 

2.                   Agent duties following order establishment – Enforce repayment agreements made with the respondent as appropriate.

 

3.                   Presiding Officer (PO) duties:

a.                   Verify that the information in the notice is correct.

b.                  Sign the notice that was prepared by the agent.

c.                   Send a copy of the notice to the respondent by first-class mail.  Include the Hearing Request:  Retained Support form.

d.                  Maintain a paper copy of the original notice packet until service on the party is successful and/or an order is taken.

e.                  Adjudicate the matter thirty days after the respondent receives the notice (or less if the respondent stipulates).  Consider information from the respondent(s), the agent, and determine what should be contained in the order.

f.                    Investigate any of the evidence further, if appropriate.

g.                   Issue an order that is accurate (or AHO or ALJ if the case goes to hearing) and appropriately represents all the known facts relevant to the case.

h.                  Send the original notice packet to the Central Imaging Unit (CIU) to be imaged and attributed into the case file.

i.                     Send the original copy of the order to the Central Docketing Unit (CDU) to approve and forward to CIU to be imaged and attributed to the case file.  Include stipulation signature pages, if applicable, and the mailing certificate.

 

NOTE:  To prevent a potential conflict of interest, the PO that issues an administrative order may not initiate enforcement actions on the case.

 

For additional information on respondent’s options once the notice is sent, refer to the Respondent Options and Procedures subsection below.

 

 

Respondent Options and Procedures

 

Within 30 days from the date of service of the notice, the respondent may:

 

1.                   Pay the entire debt in full.

 

2.                   Participate in a conference with a Presiding Officer in person, by telephone, or by mail.

 

A respondent who has been served with the notice may participate in an adjudicative proceeding by responding in any manner to service of the notice.

 

During the conference, the PO may present the option for the respondent to pay the debt in full at a discounted rate.  The PO may offer a discounted settlement.

 

After the respondent participates in a conference, s/he may stipulate to the facts and the full amount of the debt.  If the respondent stipulates on a IV-A retained support obligation, s/he must also sign the Repayment Agreement form.  However, this form is not necessary on a IV-E retained support obligation.  If the respondent does not stipulate, issue the Judgment and Order, Participant:  Retained Support.  Follow the procedures below:

a.                   Issue an administrative order using the Stipulation and Judgment and Order:  Retained Support or the Judgment and Order, Participation:  Retained Support.

 

NOTE:  The respondent must sign the Stipulation and Judgment and Order:  Retained Support.

b.                  Prepare the administrative order packet for imaging and docketing.  Attach any documents.

c.                   Forward the packet to be imaged and docketed.

d.                  CDU will review the packet and approve the imaged administrative order packet.

i.                     After CDU approves the imaged order packet, it will be attributed to the case file.

ii.                   If an order is not approved by CDU, an email will be sent to the PO with the Docketing Checklist for Administrative Orders and the order will be deleted.

e.                  After the order has been approved by CDU and attributed the case file, send a copy of the administrative order to the respondent.  This must be completed within 14 days of the order being issued.

f.                    When a Repayment Agreement letter is signed on a IV-A retained support case and a wage assignment is in place as the repayment method, add the posting note.

g.                   Document all of the actions taken in the case level narrative.

 

3.                   Request a hearing within 30 days if there is an issue of fact raised by the NAA, and the issue was not resolved in a conference attended by the respondent.

 

The respondent has the right to request an administrative hearing with the Office of Administrative Hearings (OAH) if his/her disagreement is based on a material issue of fact raised by the notice.  The respondent’s written request, preferably on the Hearing Request:  Retained Support form, must be received by the PO within 30 days of the date of service.  If the request is received after 30 days of the date of service but before as order is issued, allow a hearing.

 

Before a hearing can be scheduled with the OAH, the respondent must either have provided information sufficient to clarify the issues without the necessity of conducting a preliminary conference, or participated in a preliminary conference with CSS.  If the respondent has failed to participate by attending a conference or providing information as required, the PO must order the respondent to participant in a preliminary conference.

 

After the hearing order is issued, forward a copy of the order packet to be imaged as docketing.  CDU will review and approve the imaged administrative order packet.  After the order has been approved and attributed into the case file, send a copy of the order to the respondent by first class mail.  

 

 

4.                   Do nothing.  If the respondent fails to respond, a default order will be taken.

a.                   Issue an Administrative Order of Default:  Retained Support.  Include the Administrative Order Cover Letter.

b.                  Prepare the administrative order packet for imaging and docketing.  Include the following documents:

i.                     Administrative order; and,

ii.                   Mailing certificate.

c.                   Follow the procedures listed in #2 above.

 

 

Dismissing a Notice of Agency Action:  Retained Support

 

The Notice of Agency Action:  Determination of Retained Support Obligation may be dismissed if the respondent or the respondent’s legal representative requests a dismissal, the order has not been signed, and one of the following situation applies:

 

1.                   The respondent named in the notice is served, but is not the obligor on the case;

 

2.                   Sufficient evidence is provided that a child support obligation does not exist; or,

 

3.                   The respondent requests an administrative hearing and the PO, after a consult with the Attorney General’s Office (AGO), determines that it is appropriate to proceed judicially rather than continue with the administrative process.

 

To dismiss the notice, the Presiding Officer must generate the Notice of Agency Action:  Dismissal of Notice of Agency Action and send a copy to the respondent and his/her legal representatives, if appropriate.  Send the original to CIU to be imaged.