[Federal Register Volume 89, Number 43 (Monday, March 4, 2024)]
[Rules and Regulations]
[Pages 15475-15480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04244]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 305

RIN 0970-AC95


Modifications to Performance Standards During Natural Disasters 
and Other Calamities

AGENCY: Office of Child Support Services (OCSS), Administration for 
Children and Families (ACF), Department of Health and Human Services 
(HHS or the Department).

ACTION: Final rule.

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SUMMARY: OCSS issues this final rule to provide temporary relief to 
states from certain child support program performance requirements and 
penalties during natural disasters and other calamities which have a 
negative impact on state child support program operations. The rule 
allows OCSS to modify performance measure requirements when natural 
disasters and other calamities affect, or are expected to affect, the 
state child support program's ability to achieve performance standards 
for paternity establishment, support order establishment, and current 
collections. The rule enables states to avoid the imposition of 
penalties due to adverse data reliability audit findings during, and 
after, natural disasters and other calamities, including pandemics and 
declared public health emergencies.

DATES: This rule is effective on March 4, 2024.

FOR FURTHER INFORMATION CONTACT: Tricia John, Policy Specialist, 
Division of Policy and Training, OCSS, telephone (202) 260-7143. Email 
inquiries to <a href="/cdn-cgi/l/email-protection#a5cac6d6d68bc1d5d1e5c4c6c38bcdcdd68bc2cad3"><span class="__cf_email__" data-cfemail="0f606c7c7c216b7f7b4f6e6c692167677c21686079">[email protected]</span></a>. Deaf and hearing-impaired 
individuals may call the Federal Dual Party Relay Service at 1-800-877-
8339 between 8 a.m. and 7 p.m. Eastern Time.

SUPPLEMENTARY INFORMATION:

Statutory Authority

    This rule 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 authority to 
modify the paternity establishment percentage (PEP) performance measure 
and data reliability audit requirements is based on section 
452(g)(3)(A) of the Act (42 U.S.C. 652(g)(3)(A)), which provides the 
Secretary with discretionary authority to modify the PEP and program 
audit requirements taking into account additional variables as 
identified by the Secretary that affect the ability of a state to meet 
the PEP and audit requirements. The authority to modify, waive or 
suspend the support order establishment and current collections 
performance measures is based on section 409(a)(8)(A)(i)(I) of the Act 
(42 U.S.C. 609(a)(8)(A)(i)(I)), which provides the Secretary with 
discretion regarding the establishment of other state child support 
program performance measures.

Background

    The purpose of this rule is to authorize the Secretary to provide 
targeted and time-limited relief to states from certain performance 
penalties when natural disasters and other calamities impact state 
child support program operations, preventing the state from achieving 
the required program performance measures.
    This rule allows OCSS to modify the requirements for states to meet 
the following performance standards: the PEP performance standard of 90 
percent under 45 CFR 305.40(a)(1), the support order establishment 
standard of 40 percent under 45 CFR 305.40(a)(2), and the current 
collections performance standard of 35 percent under 45 CFR 
305.40(a)(3). This rule sets forth the process by which states may 
request, and OCSS may adjust these performance standards to a lower 
level to avoid imposing financial penalties on states and modify the 
requirements to avoid the imposition of penalties due to adverse data 
reliability audit findings. The rule permits time-limited modification 
of performance requirements during, and subsequent to, natural 
disasters and other calamities. We note that the rule only addresses 
modifications to penalty performance measures and levels under 45 CFR 
305.40; it does not change the requirements related to incentive 
payments under section 458 of the Act and 45 CFR part 305.
    The need for OCSS to establish a process for states to request 
relief from penalties during natural disasters and calamities became 
apparent during the COVID-19 pandemic. During the COVID-19 pandemic, 
states experienced significant workload burdens and service backlogs 
due to disruptions to state child support program operations and court 
closures.

[[Page 15476]]

State child support program operations were affected in a variety of 
ways, including being unable to obtain voluntary acknowledgments 
through in-hospital programs or to access genetic testing due to child 
support office closures, court closures, staffing shortages, or when 
clinical laboratory resources were diverted for pandemic-related 
testing. In response, OCSS added 45 CFR 305.61(e) to provide time-
limited relief specific to the impact of COVID-19, to modify the 
Paternity Establishment Percentage for Federal Fiscal Years (FFY) 2020, 
2021, and 2022.
    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. OCSS was 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 OCSS's Dear Colleague Letter 20-04: Flexibilities for State and 
Tribal Child Support Agencies during COVID-19 Pandemic \1\). However, 
these flexibilities did not extend to relief for financial penalties 
related to performance or adverse data reliability audit findings. 
States are concerned that performance-related financial penalties 
resulting from a natural disaster or other calamity, and which are 
imposed in the form of a reduction to state TANF grants, place an undue 
burden on state budgets and threaten funding that supports the very 
families who are most in need of public assistance during a time of 
crisis.
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    \1\ https://www.acf.hhs.gov/css/policy-guidance/flexibilities-state-and-tribal-child-support-agencies-during-covid-19-pandemic.
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State Child Support Program Performance Requirements

    Under title IV-D of the Act, states are required to achieve 
performance levels in paternity establishment, support order 
establishment, and current collections. Failure to achieve required 
performance levels may lead to penalties assessed as a percentage 
reduction of the state's Temporary Assistance for Needy Families (TANF) 
grant in accordance with section 409(a)(8) of the Act (42 U.S.C. 
609(a)(8)).
    The PEP, support order establishment, and current collections 
performance measures, which are part of the overall performance, audit, 
penalties, and incentives for the child support program, are 
established under 452(g) of the Act and 45 CFR 305.40. Section 
452(a)(4)(C)(i) of the Act requires the Secretary to determine whether 
state-reported data used to determine the performance levels are 
complete and reliable. Additionally, section 409(a)(8)(A) of the Act 
and 45 CFR 305.61(a)(1) include the assessment of a financial penalty 
if there is a failure to achieve the required level of performance or 
an audit determines that the data are incomplete or unreliable.
    The required levels of performance for the PEP, support order 
establishment, and current collections performance measures are set out 
in 45 CFR 305.40:
    <bullet> The PEP performance level must be at least 90 percent or 
an improvement of 2 to 6 percentage points over the previous year's 
level of performance, below which a state will incur a penalty.
    <bullet> The support order establishment performance level must be 
at least 40 percent, below which a state will be penalized unless an 
increase of 5 percent over the previous year is achieved.
    <bullet> The current collections performance level must be at least 
35 percent, below which a state will be penalized unless an increase of 
5 percent over the previous year is achieved.
    Section 409(a)(8)(A)(ii) of the Act and 45 CFR 305.61(a)(2) impose 
automatic corrective action for the subsequent fiscal year. A state 
also must submit complete and reliable data used in the performance 
measure calculations, which will be audited according to 45 CFR 305.60.
    If a state fails to meet the annual performance measure standards, 
or to show improvement in the subsequent year, the amount of the 
initial penalty will be equal to one to two percent of the adjusted 
State Family Assistance Grant for the state's TANF program in 
accordance with 45 CFR 305.61(c) and (d). A penalty will also be 
imposed if the state fails to submit complete and reliable performance 
measure data and there is an adverse data reliability audit finding for 
a performance measure in the subsequent year. The penalty will continue 
to be assessed in accordance with section 409(a)(8)(B) of the Act and 
45 CFR 305.61 until the state is determined to have submitted complete 
and reliable data and achieved the required performance measure 
standards. In accordance with 45 CFR 262.1(e)(1), the state must expend 
additional state funds equal to the amount of the penalty (which will 
not count toward the maintenance-of- effort requirement under TANF) the 
year after the TANF grant penalty is assessed.

Summary Description of the Regulatory Changes

    The notice of proposed rulemaking (NPRM) was published in the 
Federal Register on July 13, 2023 (88 FR 44760 through 44764). The 
comment period ended September 11, 2023. In the NPRM, we proposed to 
add a new provision to Part 305, ``Program Performance Measures, 
Standards, Financial Incentives and Penalties,'' to explain when OCSS 
may exercise its authority to provide short-term relief from certain 
performance requirements related to the PEP, support order 
establishment, and current collections performance standards when 
states are unable to meet those requirements due to the impact of 
natural disasters or other calamities on state child support program 
operations. Specifically, we proposed adding a new paragraph (f) to 
Sec.  305.61, ``Penalty for failure to meet IV-D requirements,'' to 
explain when OCSS may exercise its authority, during and subsequent to 
natural disasters and other calamities, to temporarily modify the 
performance requirements for states to meet the PEP standard of 90 
percent under 45 CFR 305.40(a)(1), the support order establishment 
standard of 40 percent under 45 CFR 305.40(a)(2), and the current 
collections standard of 35 percent under 45 CFR 305.40(a)(3), to a 
lower level to avoid imposing a financial penalty on states. In 
addition, we proposed that OCSS may set aside adverse data reliability 
audit findings under section 452(g) of the Act during the same time 
period.

Response to Comments

    OCSS received 16 sets of comments to the July 2023 NPRM from 
states, organizations, and other interested entities and individuals, 
which were posted on www.regulations.gov. OCSS reviewed and analyzed 
the comments and considered them in finalizing the rule. All comments 
received in response to this rulemaking were supportive of the proposed 
relief as outlined in the NPRM. We received several comments to the 
NPRM that included additional suggestions and recommendations, and we 
respond to those comments below.
    Comment 1: Several commenters requested clarification around data 
reliability audit findings in relation to this proposed regulation. 
Some commenters had concerns regarding whether requests for relief from 
adverse data reliability audit findings related to the three 
performance measures that are the subject of this rule should coincide 
or be submitted subsequent to the request for relief from one or more 
performance requirements. One

[[Page 15477]]

commenter requested clarification regarding the process for requesting 
relief from adverse data reliability audit findings and whether such 
relief can be sought without a prior or concurrent request for 
modification of performance requirements.
    A commenter requested clarification regarding the types of adverse 
data reliability audit findings that could be set aside under the new 
rule. A commenter observed that the rule does not address the arrears 
or cost-effectiveness performance measures and, while acknowledging 
that failure to meet these performance measures does not result in 
penalties, such performance could still be implicated in data 
reliability audit findings.
    A commenter requested clarification on whether substandard 
performance occurring prior to an approved performance modification 
period would carry over to the post performance modification period. 
One commenter asked for clarification on whether a state would still 
need to do a data reliability audit if data reliability errors were 
found, or if states could instead plan on doing the Data Reliability 
Review/data reliability audit on a state's regular schedule.
    Response 1: Data reliability audits for the period(s) which 
performance requirement modifications are requested will continue to 
occur after a request is made under section 305.61(f). A state may 
submit a request to set aside adverse data reliability audit findings 
to avoid the imposition of a financial penalty subsequent to or 
concurrent with a request to modify performance requirements. A state 
can request relief from adverse data reliability audit findings without 
a request to modify performance requirements.
    Relief from adverse data reliability audit findings to avoid the 
imposition of a financial penalty only applies to data related to the 
PEP, order establishment, and current collections performance measures, 
and only during those periods for which the state seeks and OCSS grants 
relief, as provided for under this rule. As such, the performance 
measures of arrearage collections and cost-effectiveness, which are not 
penalty performance measures under 45 CFR 305.40, are outside the scope 
of this rulemaking. States should make every effort to demonstrate how, 
and for what periods, the natural disaster or other calamity directly 
results in a reduction in performance. If the state expects a continued 
reduction in performance due to the natural disaster or calamity for 
subsequent Federal fiscal years, the state should submit a subsequent 
request for a reduction in the affected performance measures for each 
fiscal year.
    The process to determine what type of audit a state will receive 
has not changed. States that could have been exempt from a data 
reliability audit will go back into the annual audit pool for the next 
audit cycle if, during the current audit cycle, they either fail to 
meet a performance standard, fail to report reliable data, or achieve 
marginal performance on any line evaluated for data reliability.
    Comment 2: A number of commenters requested more information around 
timeframes to make the request for relief and timeframes for OCSS to 
respond to their request for relief. One commenter observed that there 
did not seem to be a timeframe attached to when an initial application 
for relief should be submitted and recommended that the rule include 
language similar to the requirement for submitting subsequent requests 
(``as soon as the adverse effect of the natural disaster or other 
calamity giving rise to the request is known to the state''). Another 
commenter stated that the requirement to submit a subsequent request as 
soon as the adverse effect is known should be clarified or deleted, and 
that a requirement of timeliness is overly strict and could allow for a 
denial based on an untimely request.
    Another commenter recommended adding a clarification regarding 
whether a state can make the same request multiple years in a row.
    Five commenters requested that the rule include a timeframe for 
OCSS to respond to state applications for relief, two of them 
recommending a period of 30 days. One commenter recommended the 
creation of a standardized request form to apply for relief. The 
commenter also suggested that such a form should include instructions 
on what specific or support information is needed.
    Response 2: During times of natural disasters and other calamities, 
states will need flexibility in determining the impacts to their 
programs and adequate time and resources to gather the necessary data 
to substantiate the state's request for relief. Therefore, the 
regulation does not impose a specific timeframe for initial application 
or subsequent requests.
    Similarly, we believe states should have the maximum flexibility to 
submit a request for relief in the form that the state determines is 
most reasonable. Each state's circumstances will differ in the type of 
disaster or calamity and impacts to performance. Creating a 
standardized form would reduce that flexibility for states. 
Additionally, states may request relief by following the procedures 
specified in paragraphs (f)(4), (5) and (6), and OCSS will provide 
timely communication regarding the state's request.
    We have contemplated that a state could request relief on a fiscal 
year by fiscal year basis, following the same process outlined in the 
rule. As we have previously stated, a natural disaster or other 
calamity includes state chief executive officer-declared states of 
emergency, pandemics, events designated by the President under the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5170) and declared public health emergencies under section 319 
of the Public Health Service Act (42 U.S.C. 247d). Therefore, the state 
must demonstrate, based on available data, that such natural disaster 
or other calamity has directly resulted in a reduction in performance 
or is expected to result in a reduction in performance in subsequent 
fiscal years.
    We agree with comments indicating that a timeframe for OCSS to 
respond to state applications for relief should be included in the 
rule. We have revised the final rule to include a 30-calendar day 
response time.
    Comment 3: Some commenters requested the inclusion of language 
addressing equity and enforcement flexibility. One commenter asked OCSS 
to consider the adverse consequences of imposing financial penalties on 
states during emergent situations and urged the incorporation of 
language that recognizes the need for flexibility and prioritizes 
equity, to enable agencies to allocate resources where they are most 
needed. Another commenter requested clarification about whether child 
support programs could activate enforcement flexibility during natural 
disasters or other calamities, based on public need, even if the state 
knows that implementing this flexibility will reduce performance 
measures.
    Response 3: We recognize natural disasters and other calamities may 
affect state child support program operations in a variety of ways and 
that states may need flexibility during emergent situations. As 
detailed in the rule, OCSS expects that a request to modify a state's 
performance requirements will include state-specific information 
describing the circumstances and justification for the requested 
relief, as well as the impact of the natural disaster or other calamity 
on the state's ability to comply with the standards. We also recognize 
that natural disasters and other calamities may not necessarily require 
relief from performance requirements. The current child support 
performance, audit, penalties, and incentives system is designed to 
drive performance. States

[[Page 15478]]

that experience individual challenges that impact performance, whether 
these challenges are within or outside the states' immediate control, 
are motivated to recover from setbacks and strive to achieve 
performance goals, as states have over the last two decades.
    Comment 4: A few commenters asked for clarification about local, 
regional, and national emergencies, and whether joint requests could be 
made by more than one state in a particular affected region.
    One commenter stated that although the information required to 
apply for relief is state-specific, there are national and global 
emergencies that impact all states and territories and that other 
emergencies may impact specific regions of the country. This commenter 
asked us to consider the option for states to submit a joint request 
for relief when more than one state is affected by a disaster.
    Two commenters asked for clarification on how the rule would apply 
if a disaster only impacted one part of a state.
    Response 4: While we understand that disasters can affect more than 
one state in certain regions, the rule is structured in a way that each 
state needs to provide information specific to that state to 
demonstrate that the disaster has directly impacted the state's ability 
to meet performance requirements or is expected to result in a 
reduction in performance. This is especially true with the data 
requirements, and each state, even within a region, may be impacted 
differently with respect to performance. It is not feasible for states 
to submit joint applications for relief, due to the unique impacts of 
an emergency on each state and the state-specific data required to 
substantiate the request for relief.
    For those states where a natural disaster or other calamity is only 
impacting a part of the state, the state may apply for relief from 
performance requirements.
    Comment 5: Several commenters suggested that OCSS provide the 
opportunity for an appeal if a state is denied the request to modify 
their performance requirements. An additional suggestion was that 45 
CFR 301.14 could be used for this purpose.
    Response 5: Adequate process already exists as part of the overall 
performance evaluation for a state to provide information and request 
consideration of special circumstances, so an administrative appeal 
before the Departmental Appeals Board of a denial of a state's request 
to modify its performance requirements is unnecessary. Under the 
existing process, if a state fails to meet their performance 
requirements, the state will be provided one year as their corrective 
action year as outlined under 45 CFR 305.61. During the corrective 
action year, OCSS will issue a warning letter to advise of the 
potential for a penalty if no improvement is made the following fiscal 
year, as outlined under 45 CFR 305.40, 305.61(a)(2) and 305.66. After 
the corrective action year, if a penalty is assessed, and the state is 
subject to the penalty, the state has the option to file an appeal with 
the Departmental Appeals Board, in accordance with 45 CFR 262.7.
    The Departmental Appeals Board has limited jurisdiction under 45 
CFR part 16, and for mandatory grants generally only penalties and 
disallowances are appealable. 45 CFR part 16, Appendix A. Its 
jurisdiction would not naturally extend to a denial of a state's 
request to modify its performance requirements.
    Comment 6: A few states have requested that OCSS also include the 
option to provide IV-D agencies with an exception from the impact of 
increased Federal Medical Assistance Percentages rates on state-
retained collections. Additionally, one other state agrees with the 
proposed rule, but requested that OCSS place limitations on the relief 
so that a state could not use this flexibility to gain an unfair 
advantage with respect to performance incentives. Another state 
suggested that OCSS allow data sharing among programs during times of 
national disasters and other calamities.
    Response 6: These suggestions are beyond the scope of this 
rulemaking and would require legislative changes. OCSS does not have 
legislative authority. OCSS disagrees that placing additional 
limitations on the relief is necessary because the rule requires, in 45 
CFR 305.61(f)(5), that the requesting state demonstrate to the 
satisfaction of the Secretary that the natural disaster or other 
calamity has directly resulted in a reduction in performance or is 
expected to result in a reduction in performance, based on data 
provided by the state.
    Comment 7: One state commented that OCSS should require states to 
submit a disaster plan as part of their request for relief.
    Response 7: While we appreciate the intent behind this comment, 
OCSS disagrees that states should be required to provide disaster plans 
as a part of the request for relief. We believe states should have the 
maximum flexibility to submit a request for relief in the form that the 
state determines is most reasonable. Each state's circumstances will 
differ in the type of disaster or calamity and possible impacts to 
performance.
    Comment 8: One commenter suggested revisions to two subsections of 
the regulatory language. First, the commenter suggested rewording 
subsection (f)(4)(ii) and removing the term ``impracticability of 
compliance'' as the term is inherently imprecise and does not help to 
establish whether a natural disaster or other calamity may have an 
impact on a state's ability to comply with the performance 
requirements. Second, the commenter suggested replacing the term ``will 
not'' with the term ``may not'' in subsection (5)(i) as it is overly 
strict to require states to demonstrate that they ``will not meet one 
or more existing performance requirements, such that a performance 
penalty would apply.''
    Response 8: We agree with the suggested changes to these 
subsections and have revised the final rule to reflect that language. 
We made these changes to clarify ambiguous language and to remove 
overly restrictive conditions on requests for relief.
    Comment 9: One commenter suggested providing consideration for 
those instances where a state is unable to produce preliminary data due 
to the natural disaster or other calamity. Another commenter requested 
the option for states to request an extension to the submission of 
annual and quarterly reports when disasters occur toward the end of a 
reporting period.
    Response 9: The final rule authorizes OCSS to determine the 
modified performance requirements based on the preliminary data 
provided by the state under 45 CFR 305.32(f), and as such, the 
preliminary data are necessary for the state to demonstrate that the 
natural disaster or other calamity has directly resulted in a reduction 
in performance or is expected to result in a reduction in performance. 
This final rule also allows OCSS to set aside adverse data reliability 
audit findings under section 452(g) for the same time period as the 
time period for which a modification of performance requirements is 
sought.
    While we appreciate that a state's ability to meet reporting 
requirements may also be impacted by a natural disaster or other 
calamity, modifications to reporting deadlines are outside the scope of 
this rulemaking. During such events, additional flexibilities may be 
available to states beyond those available under title IV-D.

Paperwork Reduction Act

    No new information collection requirements would be imposed by this 
regulation.

[[Page 15479]]

Regulatory Impact Analysis

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This final rule meets the standards of Executive Order 
13563 because it creates a short-term public benefit, at minimal cost 
to the Federal Government, by not imposing penalties against a state's 
TANF grant, during a time when public assistance funds are critically 
needed.
    Executive Order 12866, as amended by Executive Order 14094, 
provides that the Office of Information and Regulatory Affairs (OIRA) 
at the Office of Management and Budget (OMB) will review all 
significant rules. OIRA has determined that this final rule is 
significant and was accordingly reviewed by OMB.

Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires 
Federal agencies to determine, to the extent feasible, a rule's impact 
on small entities, explore regulatory options for reducing any 
significant impact on a substantial number of such entities, and 
explain their regulatory approach. The Secretary certifies that this 
rule will not result in a significant impact on a substantial number of 
small entities. The primary impact is on state governments. State 
governments are not considered small entities under the RFA.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires 
agencies to prepare an assessment of anticipated costs and benefits 
before issuing any rule that may result in an annual expenditure by 
state, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation). That threshold level is currently approximately $177 
million. This rule does not impose any mandates on state, local, or 
tribal governments, or the private sector, that will exceed this 
threshold in any year.

Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires Federal agencies to determine whether a policy or 
regulation may affect family well-being. If the agency's determination 
is affirmative, then the agency must prepare an impact assessment 
addressing seven criteria specified in the law. OCSS believes it is not 
necessary to prepare a family policymaking assessment (see Pub. L. 105-
277) because this regulation does not impose requirements on states or 
families and thus will not have any impact on family well-being.

Congressional Review Act

    This final rule is not a major rule as defined in 5 U.S.C. 804(2).

Executive Order 13132

    Executive Order 13132 prohibits an agency from publishing any rule 
that has federalism implications if the rule either imposes substantial 
direct compliance costs on state and local governments and is not 
required by statute, or the rule preempts state law, unless the agency 
meets the consultation and funding requirements of section 6 of the 
Executive Order. This rule does not have federalism impact as defined 
in the Executive Order 13132.
    Jeff Hild, Acting Assistant Secretary of the Administration for 
Children and Families approved this document on February 1, 2024.

List of Subjects in 45 CFR Part 305

    Child support, program performance measures, standards, financial 
incentives, and penalties.

    Dated: February 26, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.

    For the reasons stated in the preamble, the Department of Health 
and Human Services amends 45 CFR part 305 as set forth below:

PART 305--PROGRAM PERFORMANCE MEASURES, STANDARDS, FINANCIAL 
INCENTIVES, AND PENALTIES

0
1. The authority citation for part 305 continues to read as follows:

    Authority: 42 U.S.C. 609(a)(8), 652(a)(4) and (g), 658a, and 
1302.


0
2. Amend Sec.  305.61 by adding a new paragraph (f) to read as follows:


Sec.  305.61  Penalty for failure to meet IV-D requirements.

* * * * *
    (f) During, and subsequent to, natural disasters and other 
calamities (e.g., state chief executive officer-declared states of 
emergency, pandemics, events designated by the President under the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5170), and declared public health emergencies under section 319 
of the Public Health Service Act, 42 U.S.C. 247d), the Secretary may 
temporarily modify the performance measure requirements for a state to 
meet the paternity establishment percentage standard of 90 percent 
under section 452(g) of the Act (42 U.S.C. 652(g)) and 45 CFR 
305.40(a)(1), the support order establishment standard of 40 percent 
under 45 CFR 305.40(a)(2), and the current collections standard of 35 
percent under 45 CFR 305.40(a)(3), to lower levels to avoid imposing 
financial performance penalties on states, and may set aside adverse 
data reliability audit findings under section 452(g) of the Act (42 
U.S.C. 652(g)) and 45 CFR 305.61(a)(1)(ii) during the same time period. 
For Federal fiscal years subsequent to September 30, 2022, the 
performance requirements for paternity establishment under section 
452(g) of the Act (42 U.S.C. 652(g)) and 45 CFR 305.40(a)(1), for 
support order establishment under 45 CFR 305.40(a)(2), and for current 
collections under 45 CFR 305.40(a)(3)--may be modified by the Secretary 
to a lower level under the conditions described in this section.
    (1) If a state experiences a natural disaster or other calamity 
(e.g., state chief Executive officer-declared states of emergency, 
pandemics, events designated by the President under the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170), 
and declared public health emergencies under section 319 of the Public 
Health Service Act, 42 U.S.C. 247d), the state's chief executive 
officer (or his or her designee) may submit to the Secretary a request 
to modify one or more of the performance requirements specified under 
section 452(g) of the Act (42 U.S.C. 652(g)) and 45 CFR 305.40(a)(1), 
under 45 CFR 305.40(a)(2), or under 45 CFR 305.40(a)(3).
    (2) The state may also ask the Secretary to set aside adverse data 
reliability audit findings under section 452(g) of the Act (42 U.S.C. 
652(g)) and 45 CFR 305.61(a)(1)(ii) for the same time period as the 
time period for which a modification of performance requirements is 
sought.

[[Page 15480]]

    (3) The request for a modification to the performance requirements 
must be submitted in accordance with the procedures specified in 
paragraphs (f)(4), (5) and (6) of this section. Any request other than 
one submitted with the initial application must be submitted as soon as 
the adverse effect of the natural disaster or other calamity giving 
rise to the request is known to the state.
    (4) A request for a modification of one or more of the performance 
requirements must include the following:
    (i) A narrative statement describing the circumstances and 
justification for the request to modify the state's performance 
requirement;
    (ii) Information substantiating the impact of the natural disaster 
or other calamity on the state's ability to comply with the standards, 
including a description of the specific conditions caused by the 
natural disaster or other calamity that have, or may have, a 
significant impact on the state's ability to comply, and preliminary 
data provided by the state, as required under 45 CFR 305.32(f), showing 
reduced performance;
    (iii) Information on the expected duration of the conditions that 
make compliance impracticable; and
    (iv) Any other documentation or other information that the 
Secretary may require to make this determination.
    (5) The state must demonstrate to the satisfaction of the Secretary 
that the natural disaster or other calamity has directly resulted in a 
reduction in performance or is expected to result in a reduction in 
performance, based on data provided by the state. In its request for a 
temporary modification to one or more performance requirements, the 
state must be able to demonstrate that it:
    (i) Has not, or may not meet one or more existing performance 
requirements, such that a performance penalty would apply;
    (ii) Has submitted preliminary data supporting this statement; and
    (iii) Has provided all required information requested by the 
Secretary.
    (6) The Secretary shall provide written communication of the 
decision to modify or decline to modify the performance standards, and 
the period for which any modified standards shall apply, within 30-
calendar days after receipt of appropriate written communication from 
the chief executive officer.
    (i) If approved, a temporary modification in a performance 
requirement will expire on the last day of the Federal fiscal year for 
which it was approved.
    (ii) Adverse findings of data reliability audits of the state's 
performance data under 45 CFR 305.60 as reported during the period in 
which the performance requirement modification is approved will not 
result in a financial penalty pursuant to the state's request as 
specified in paragraph (f)(2) of this section.
    (iii) Unless the state receives a written approval of its 
performance requirement modification request, the performance 
requirements under section 452(g) of the Act (42 U.S.C. 652(g)) and 45 
CFR 305.40(a)(1), under 45 CFR 305.40(a)(2), and under 45 CFR 
305.40(a)(3) remain in effect.
    (iv) If the request for a performance requirement modification is 
denied, the denial is not subject to administrative appeal.

[FR Doc. 2024-04244 Filed 3-1-24; 8:45 am]
BILLING CODE 4184-41-P


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