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Federal Register / Vol. 86, No. 199 / Tuesday, October 19, 2021 / Proposed Rules FOR FURTHER INFORMATION CONTACT:

Eliza Lowe, Senior Policy Specialist, the OCSE Division of Policy and Training, at ocse.dpt@acf.hhs.gov. Deaf and hearing impaired individuals may call the Federal Dual Party Relay Service at 18008778339 between 8 a.m. and 7
p.m. Eastern Time.
SUPPLEMENTARY INFORMATION:
Submission of Comments Comments should be specific, address issues raised by the proposed rule, and explain reasons for any objections or recommended changes. Additionally, we will be interested in comments that indicate agreement with the proposals.
We will not acknowledge receipt of the comments we receive. However, we will review and consider all comments that are germane and are received during the comment period. We will respond to these comments in the preamble to the final rule. In this NPRM, we specifically seek public comment on the timeframe for the relief proposed, and whether the relief period should extend to include FFY 2022.

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Statutory Authority This NPRM is published under the authority granted to the Secretary of Health and Human Services by section 1102 of the Social Security Act the Act 42 U.S.C. 1302. Section 1102 of the Act authorizes the Secretary to publish regulations, not inconsistent with the Act, as may be necessary for the efficient administration of the functions with which the Secretary is responsible under the Act. The proposed relief from the Paternity Establishment Percentage performance penalty under this NPRM
is based on statutory authority granted under section 452g3A of the Act 42
U.S.C. 652g3A.
Justification The purpose of this proposed rule is to provide targeted and time-limited relief to states from penalties due to the impact of the national public health emergency PHE caused by COVID19
on state program performance. The pandemic has had an enormous adverse impact on child support services delivered by states under Title IVD of the Act. Due to disruptions to state child support operations and to court operations during the PHE, states are experiencing significant workload burdens and service backlogs.
In particular, states have indicated that the PHE has created numerous challenges in their ability to establish paternity/parentage in child support cases. Establishing paternity, a core function of the child support program as stated in section 452a1 of the Act, is
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an essential step in securing a support order and ultimately support for a child.
Because of the importance of paternity/
parentage establishment in the success of the child support program, a states paternity establishment performance, measured using the Paternity Establishment Percentage PEP, is a federally-required performance measure under section 452g of the Act.
While states have some discretion under their Title IVD State Plan for their paternity and parentage establishment procedures and have developed programs that range from highly-administrative to more judicially-based, they also have commonalities in these procedures.
States are required, for example, to have hospital-based, voluntary paternity acknowledgement programs to establish parentage for non-marital birth families in uncontested cases and to have procedures for genetic testing in contested cases.
The pandemic has made it difficult for state child support programs to perform many of the in-person functions needed to establish paternity/parentage.
Barriers to this process include the limitations of on-site genetic-testing operations, office-staffing issues due to staff telework or illness, and peoples inability to visit offices for case intake or genetic testing. In addition, many hospitals have limited visitation policies during the PHE, which led many states to suspend their hospitalbased voluntary paternity/parentage establishment programs. Finally, in many jurisdictions, courts halted certain civil proceedings, including child support cases requiring paternity/
parentage establishment.1 While most courts are now operational, child support cases remain backlogged.2 The situation continues to impact states paternity establishment performance for FFY 2021.
Since the start of the pandemic in early 2020, states have appealed for relief from program requirements in order to support their operations during the crisis. OCSE is able to provide certain flexibilities for administrative requirements under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act 42 U.S.C. 5170 See OCSE Dear Colleague Letter 2004:
Flexibilities for State and Tribal Child Support Agencies during COVID19
1 Hurst, John, PEP in a Pandemic Environment, NCSEA Child Support CommuiniQue, April, 2021
and Fickler, Wade and Sarah Scherer, The NCSL
Blog: COVID19s Snowballing Effect on Child Support, Custody, Visitation, Economic Security April 21, 2020.
2 Ibid.

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Pandemic 3. However, these flexibilities do not extend to relief for financial penalties related to performance or adverse data reliability audit findings.
States are concerned that PEP-related financial penalties, which like all child support performance penalties are imposed in the form of a reduction in the Temporary Assistance for Needy Families TANF program funding to states, place an undue burden on state budgets and threaten funding that supports the very families who are most in need during this time of crisis.
The adverse impact of the pandemic on paternity establishment is evident in the data. According to OCSEs FFY 2020
data, which are based on data that states submit and OCSE compiles, 41 out of the 54 states 50 states and the District of Columbia, Guam, Puerto Rico, and the Virgin Islands experienced a decrease in their paternity establishment performance as measured by their PEP percentage. More problematic, according to these data, as many as 18 states appear to have failed to meet the 90 percent threshold and may be subject to financial penalties if they fail to take sufficient corrective action to achieve the appropriate PEP
performance level in the subsequent year.
This regulatory action is time sensitive because it must be in effect before states are subject to penalties and adverse data reliability audit findings.
States are desperately seeking confirmation from OCSE that they will have relief from these penalties against their state TANF grants. Such penalties would be an overwhelming burden on state budgets and threaten critical funding needed during this COVID19
PHE.
Background: PEP Performance Requirement The PEP performance requirement, which is part of the overall performance, audit, penalties, and incentives system for child support, is established under 452g of the Act and 45 CFR 305.40. Section 452a4Ci of the Act requires the Secretary to determine whether State-reported data used to determine the performance levels are complete and reliable.
Additionally, section 409a8A of the Act and 45 CFR 305.61a1 provides for a financial penalty if there is a failure to achieve the required level of performance or an audit determines that the data is incomplete or unreliable.
3 https www.acf.hhs.gov/css/policy-guidance/
flexibilities-state-and-tribal-child-support-agenciesduring-covid-19-pandemic.

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