DAR File No. 32565

Human Services, Recovery Services

R527-300

Income Withholding

NOTICE OF PROPOSED RULE

DAR File No.: 32565
Filed: 04/28/2009, 12:37
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to add a purpose and authority section and indicate that the minimum arrears payment the office may accept from an obligor that owes back child support will be based on 10% of the obligor's current support payment. This amendment also corrects a legal citation at the end of the rule per recodification.

Summary of the rule or change:

This amdendment add a purpose and authority section, and adds a minimum arrears payment section, which states that the office may accept a minimum payment of 10% of the obligor's current support payment. It also corrects a legal citation at the end of the rule per recodification.

State statutory or constitutional authorization for this rule:

Subsection 62A-11-320(1) and Section 78B-12-212

Anticipated cost or savings to:

the state budget:

There is no way to determine the cost of savings to the state, because the office has no way of knowing the how many individuals each year will be required to make a monthly arrears payment, as well as determining the amount of back child support that each individual owes, whether or not the individual still owes current support, or the individual's available income based on a computed assessment. These factors are all considered when determining a monthly arrears payment for an obligor. Also, there is no way to determine the number of obligor's who may want to take advantage of the minimum payment amount and the amount of the current or past child support award.

local governments:

There are no anticipated costs to the local government because administrative rules of ORS do not apply to local government.

small businesses and persons other than businesses:

There are no anticipated costs for small business because the changes affect the internal procedures of ORS/CSS and provide clarification to the child support staff. There may be a cost or savings to an individual obligor, but it is difficult to determine because each individual's back child support amount is different, the amount the obligor may or may not be paying each month for current support varies, as well as the individual available income based on a computed assessment. Each of these factors would help determine the cost or savings to the individual.

Compliance costs for affected persons:

ORS cannot provide firm figures because there is no way of knowing how many obligors will be required to pay a monthly arrears payment, as well as determining whether or not the individual is obligated to pay current child support or what his/her available income may be based on a computed assessment by the office.

Comments by the department head on the fiscal impact the rule may have on businesses:

Passage of this proposed rule will have little or no fiscal impact on local businesses. Lisa Michelle Church, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Services
Recovery Services
515 E 100 S
SALT LAKE CITY UT 84102-4211

Direct questions regarding this rule to:

LeAnn Wilber at the above address, by phone at 801-536-8950, by FAX at 801-536-8833, or by Internet E-mail at lwilber@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/15/2009

This rule may become effective on:

06/22/2009

Authorized by:

Mark Brasher, Director

R527. Human Services, Recovery Services.

R527-300. Income Withholding.

R527-300-1. Authority and Purpose.

[1. Section 62A-11-107 requires that the Office of Recovery Services/Child Support Services (ORS/CSS) provide certain services and allows ORS/CSS to adopt, amend and enforce rules as needed to carry out its duties.]1. The Department of Human Services is authorized to create rules necessary for the provision of social services by Sections 62A-1-111 and 62A-11-107.

[2. The purpose of this rule is to outline ORS/CSS procedures to determine when income withholding is appropriate, define the limits on income withholding, and specify how to contest and terminate income withholding actions.]2. The purpose of this rule is to specify the responsibilities and procedures for the Office of Recovery Services/Child Support Services for income withholding.

 

R527-300-2. Income Withholding[ Definition and Criteria].

1. Income withholding is defined as withholding child support from an obligor's income. The payor of income forwards the amount withheld to the Office of Recovery Services/Child Support Services (ORS/CSS).

2. Income withholding may be initiated in a IV-D case, with concurrent notice to the obligor:

a. in a case which has an order issued prior to October 13, 1990, which has not been modified since October 13, 1990, even though the obligor is not delinquent as defined in Section 62A-11-401([6]5) or R527-300-[3]2, if the obligor and the obligee have signed a subsequent agreement which the obligor has failed to meet; for example, while the order does not require payment by a specific date, there is a written agreement that payment will be made on the first day of each month, or

b. in a case which has an order issued or modified after October 13, 1990, which found a demonstration of good cause or entered a written agreement that immediate income withholding is not required, if the obligor and the obligee have signed a subsequent agreement which the obligor has failed to meet; for example, while the order does not require payment by a specific date, there is a written agreement that payment will be made on the first day of each month.

 

R527-300-3. Determining Delinquency.

1. If current support has been ordered but is not presently in effect; for example, the children are 18 years old, the children have been adopted, custody has changed, or the obligor is paying current support to the obligee; delinquency has occurred when the obligor has accrued a debt in an amount equal to or greater than the previously ordered current support for one month.

2. If there was not a previous current support order but there is a judgment for arrears, delinquency has occurred when the obligor fails to pay as agreed, provided the judgment was for at least one month's current support amount used to compute the judgment for arrears. If the judgment was by default and the judgment amount was for at least one month's current support amount used to compute the judgment, income withholding may begin immediately upon entry of the judgment.

3. A delinquency could be the result of an underpayment for several months that totals at least one month's current support.

4. A delinquency can occur prior to the end of the month if the obligor was ordered to pay on specific days of the month and failed to do so.

 

R527-300-4. Affidavit of Delinquency.

The Non-IV-A applicant prepares a month-by-month computation of the support debt, which is referred to as a statement of arrears. The statement of arrears is part of the application packet. As part of the statement of arrears, the applicant attests that the statement is true and accurate to the best knowledge and belief of the applicant. This signed statement shall satisfy the verified statement requirement of Section 62A-11-405.

 

R527-300-5. Administrative Review.

1. Section 62A-11-405(2)(b)(ii)(B) requires the obligor to file a written request for review with the office within 15 days to contest withholding. This written request for review shall state the obligor's basis for contesting the withholding.

2. If an administrative review is conducted pursuant to Section 62A-11-405(3), the notice of decision required may be mailed or delivered to the obligor in the ordinary course of business.

 

R527-300-6. [Percentage of ]Income Subject To Withholding.

Section 62A-11-406 limits the total amount of the income withheld for child support to the maximum permitted under Section 303(b) of the Consumer Credit Protection Act as cited in 15 U.S.C. Section 1673(b). In general, income withholding will be limited to withholding 50% of the obligor's disposable income. However, if 50% does not result in withholding enough to cover the current support obligation, the office may review an obligor's circumstances under the provisions of the Consumer Credit Protection Act to determine whether a higher percentage is permitted.

 

R527-300-7. Arrears Payments.

If the obligor owes back child support, ORS/CSS will work with the obligor in an effort to encourage timely payment of the debt by the obligor. If the obligor is unable to pay the debt in full, the office may accept monthly payments towards the back child support debt. The minimum arrears payment will be based on 10% of the current support obligation. Exceptions to the minimum arrears payment will be determined by the ORS or CSS Director.

 

R527-300-[7]8. Modification of Withholding Amounts.

1. Once a Notice to Withhold Income for Child Support has been sent to the obligor's payor of income, any changes to the withholding amount will be made by sending the payor a modified Notice to Withhold Income for Child Support. The obligor will be provided concurrent notice of any changes.

2. If the obligor changes from one payor of income to another payor of income, a new Notice to Withhold Income for Child Support must be sent to the new payor in accordance with ORS/CSS assessment procedures.

 

R527-300-[8]9. Income Withholding Termination.

1. Income withholding should be terminated if:

a. the obligor no longer has an obligation for current child support, and no longer has a debt to Utah or another state on whose behalf Utah is acting or to a Non-IV-A obligee on whose behalf Utah is acting;

b. the Non-IV-A obligee terminates the ORS/CSS case, income withholding was administratively implemented and the obligor no longer owes child support to Utah or other state on whose behalf Utah is acting, and the obligee does not want withholding to continue;

c. the obligor successfully contests the withholding which is currently in effect through the court or administrative review process. If income withholding was terminated based on a court or administrative order and the obligor later becomes delinquent, income withholding will be reinstated.

 

R527-300-[9]10. Contesting an Income Withholding Order Issued by Another State.

The Obligor may contest the validity or enforcement of an income-withholding order issued by another state in this state by registering and filing a contest to that order in the appropriate Utah court.

 

KEY: child support, income, wages

Date of Enactment or Last Substantive Amendment: [September 4, 2008]2009

Notice of Continuation: September 7, 2007

Authorizing, and Implemented or Interpreted Law: 62A-11-401; 62A-11-404; 62A-11-405; 62A-11-406; 62A-11-413; 62A-11-414; 78B-[14]11-506