BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.5.129, 37.62.103, 37.62.142, 37.62.148, 37.62.301, 37.62.303, 37.62.305, 37.62.307, 37.62.309, 37.62.501, 37.62.705, 37.62.707, 37.62.901, 37.62.903, 37.62.905, 37.62.909, 37.62.911, 37.62.913, 37.62.915, 37.62.917, 37.62.919, 37.62.923, 37.62.925, 37.62.927, 37.62.929, 37.62.933, 37.62.937, 37.62.945, 37.62.947, 37.62.949, 37.62.951, 37.62.955, 37.62.959, 37.62.965, 37.62.1101, 37.62.1103, 37.62.1105, 37.62.1113, 37.62.1115, 37.62.1117, 37.62.1122, 37.62.1303, 37.62.1305, 37.62.1309, 37.62.1311, 37.62.1313, 37.62.1315, 37.62.1501, 37.62.1703, 37.62.1705, 37.62.1901, 37.62.1903, 37.62.2101, 37.62.2103, 37.62.2105, 37.62.2107, 37.62.2111, 37.62.2113, 37.62.2119, 37.78.215, 37.78.1013, 37.80.103, 37.80.201, 37.82.416, and 37.85.407, pertaining to Child Support Enforcement Division program name change

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

            1. On April 16, 2020, at 10:00 a.m., the Department of Public Health and Human Services will hold a public hearing via remote conferencing to consider the proposed amendment of the above-stated rules. Because there currently exists a state of emergency in Montana due to the public health crisis caused by the coronavirus, there will be no in-person hearing. Interested parties may access the remote conferencing platform in the following ways: 

            (a) Join Zoom Meeting, https://mt-gov.zoom.us/j/937244028, meeting ID: 937 244 028;

            (b) Dial by telephone, +1 406 444 9999 or +1 646 558 8656, meeting ID: 937 244 028, find your local number: https://mt-gov.zoom.us/u/ajQrLXmNG;

            (c) Join by SIP, [email protected];

            (d) Join by H.323 (Polycom), 162.255.37.11##937244028; or

            (e) Join by Skype for Business, https://mt-gov.zoom.us/skype/937244028.

 

2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services no later than 5:00 p.m. on April 10, 2020, to advise us of the nature of the accommodation that you need. Please contact Heidi Clark, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail [email protected].

 

3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.5.129 CHILD SUPPORT ENFORCEMENT SERVICES: APPLICABLE HEARING PROCEDURES (1) Hearings relating to child support enforcement services matters are available to the extent granted and as provided in ARM Title 46, chapter 30, subchapter 6 37, chapter 62, subchapter 9. Unless specifically referenced in that subchapter, the provisions of any other rule do not apply to such hearings.

 

AUTH: 53-2-201, MCA

IMP: 17-4-105, 40-5-202, 40-5-262, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

 

            37.62.103 DEFINITIONS For purposes of this chapter, unless the context requires otherwise, the following definitions apply:

            (1) remains the same.

            (2) "CSED CSSD" means the Child Support Enforcement Services Division of the Department of Public Health and Human Services.

            (3) through (16) remain the same.

 

AUTH: 40-5-203, MCA

IMP: 40-5-209, MCA

 

            37.62.142 SUPPORT PAYABLE IN DOLLARS (1) and (2) remain the same.

            (3) Direct payments to the child, the parent or a third party will not be allowed as credit for payment of a child support obligation payable through the clerk of court, the child support enforcement services division or other entity specified in the court or administrative order.

 

AUTH: 40-5-203, MCA

IMP: 40-5-209, MCA

 

            37.62.148 SUPPORT GUIDELINES TABLES/FORMS (1) The Child Support Enforcement Services Division (CSED) (CSSD) has developed a child support calculation worksheet. Copies of this worksheet may be obtained from the Department of Public Health and Human Services, Child Support Enforcement Services Division, P.O. Box 202943, Helena, MT 59620 or any regional office. The worksheet is also available on the department's web site at www.dphhs.mt.gov/forms/.

            (2) Included for use with the worksheet are a financial affidavit, necessary tables, and information for completion of the guidelines calculation. To assure that these tables are current, the Child Support Enforcement Services Division will republish the tables annually as soon as practical after release of information upon which tables are based. The tables will be identified by the year of publication or republication.

            (3) remains the same.

 

AUTH: 40-5-203, MCA

IMP: 40-5-209, MCA

 

            37.62.301 APPLICABILITY OF RULES (1) The provisions of this chapter set forth the rules pertaining to administrative actions by the Child Support enforcement Services division (CSED) (CSSD) under Title IV-D of the Social Security Act, Title 40, chapter 5, MCA, and the applicable provisions of 17-4-105, MCA. Unless specifically provided, other department rules do not apply to CSED CSSD actions, notwithstanding any statements of general applicability contained in the rules. The provisions of this chapter do not apply to actions by the department under other chapters.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-201, 40-5-202, 40-5-203, 40-5-205, 40-5-206, 40-5-207, 40-5-208, 40-5-209, 40-5-210, 40-5-213, 40-5-214, 40-5-221, 40-5-222, 40-5-224, 40-5-225, 40-5-226, 40-5-227, 40-5-231, 40-5-232, 40-5-233, 40-5-234, 40-5-235, 40-5-236, 40-5-237, 40-5-238, 40-5-242, 40-5-243, 40-5-244, 40-5-247, 40-5-248, 40-5-251, 40-5-252, 40-5-253, 40-5-254, 40-5-255, 40-5-256, 40-5-257, 40-5-261, 40-5-262, 40-5-263, 40-5-264, 40-5-271, 40-5-272, 40-5-401, 40-5-402, 40-5-403, 40-5-404, 40-5-411, 40-5-412, 40-5-413, 40-5-414, 40-5-415, 40-5-416, 40-5-417, 40-5-418, 40-5-421, 40-5-422, 40-5-423, 40-5-424, 40-5-431, 40-5-432, 40-5-433, 40-5-434, 40-5-443, 40-5-701, 40-5-702, 40-5-703, 40-5-704, 40-5-709, 40-5-710, 40-5-711, 40-5-712, 40-5-713, 40-5-801, 40-5-802, 40-5-803, 40-5-804, 40-5-805, 40-5-806, 40-5-807, 40-5-808, 40-5-809, 40-5-810, 40-5-811, 40-5-812, 40-5-813, 40-5-814, 40-5-815, 40-5-816, 40-5-817, 40-5-818, 40-5-819, 40-5-820, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-825, 40-5-901, 40-5-906, 40-5-907, 40-5-908, 40-5-909, 40-5-910, 40-5-911, 40-5-921, 40-5-922, 40-5-923, 40-5-924, MCA

 

            37.62.303 DEFINITIONS For the purposes of this chapter, unless the context requires otherwise, the following definitions apply:

            (1) Insofar as they are not inconsistent with, or clarified by, the more specific definitions set forth in this chapter, the definitions set forth in 40-5-201, 40-5-403, 40-5-701, 40-5-801 and 40-5-901, MCA are adopted and incorporated herein by reference. Copies of 40-5-201, 40-5-403, 40-5-701, 40-5-801 and 40-5-901, MCA may be obtained from the Department of Public Health and Human Services, Child Support Enforcement Services Division, P.O. Box 202943, Helena, MT 59620-2943.

            (2) "ALJ" means a CSED CSSD administrative law judge whose duties are defined in ARM 37.62.901.

            (3) "Caseworker" means an employee of the CSED CSSD who is authorized to initiate and participate in a contested case as provided in these rules and by CSED CSSD policy and procedures.

            (4) through (6) remain the same.

            (7) "CSED CSSD" means the Child Support enforcement Services Division, an agency within the Department of Public Health and Human Services charged with the responsibility of providing support enforcement services under Title IV-D of the Social Security Act.

            (8) remains the same.

            (9) "OALJ" means the CSED CSSD 's office of the administrative law judge as described in ARM 37.62.901.

            (10) and (11) remain the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-201, 40-5-202, 40-5-203, 40-5-205, 40-5-206, 40-5-207, 40-5-208, 40-5-209, 40-5-210, 40-5-213, 40-5-214, 40-5-221, 40-5-222, 40-5-224, 40-5-225, 40-5-226, 40-5-227, 40-5-231, 40-5-232, 40-5-233, 40-5-234, 40-5-235, 40-5-236, 40-5-237, 40-5-238, 40-5-242, 40-5-243, 40-5-244, 40-5-247, 40-5-248, 40-5-251, 40-5-252, 40-5-253, 40-5-254, 40-5-255, 40-5-256, 40-5-257, 40-5-261, 40-5-262, 40-5-263, 40-5-264, 40-5-271, 40-5-272, 40-5-401, 40-5-402, 40-5-403, 40-5-404, 40-5-411, 40-5-412, 40-5-413, 40-5-414, 40-5-415, 40-5-416, 40-5-417, 40-5-418, 40-5-421, 40-5-422, 40-5-423, 40-5-424, 40-5-431, 40-5-432, 40-5-433, 40-5-434, 40-5-443, 40-5-701, 40-5-702, 40-5-703, 40-5-704, 40-5-709, 40-5-710, 40-5-711, 40-5-712, 40-5-713, 40-5-801, 40-5-802, 40-5-803, 40-5-804, 40-5-805, 40-5-806, 40-5-807, 40-5-808, 40-5-809, 40-5-810, 40-5-811, 40-5-812, 40-5-813, 40-5-814, 40-5-815, 40-5-816, 40-5-817, 40-5-818, 40-5-819, 40-5-820, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-825, 40-5-901, 40-5-906, 40-5-907, 40-5-908, 40-5-909, 40-5-910, 40-5-911, 40-5-921, 40-5-922, 40-5-923, 40-5-924, MCA

 

            37.62.305 TELEPHONE COMMUNICATIONS (1) Due to the need for maintaining confidentiality of records, it is essential that the CSED CSSD confirm the identity of persons to whom information is provided. Because a telephone caller's identity cannot be verified, no telephone inquiries concerning confidential information will be accepted by the CSED CSSD.

 

AUTH: 40-5-202, MCA

IMP: 40-5-203, MCA

 

            37.62.307 DISTRIBUTION OF COLLECTIONS (1) Except as provided in (2) and (6), collections of support from all sources including but not limited to the proceeds from writs of execution, support liens, state tax offsets, and lump sum settlements will be distributed, to the extent the collection is sufficient, in the following sequence:

            (a) to pay the current support obligation for the month in which the collection is made if current support has not previously been paid for that month to the obligee. However, if the obligee is a recipient of public assistance including Title IV-E foster care services, collections of current support shall be retained by the CSED CSSD for subsequent allocation according to applicable state and federal statutes and regulations;

            (b) through (d) remain the same.

            (2) When the CSED CSSD is collecting support arrears only, amounts shall be distributed to open CSED CSSD cases according to (1)(b) through (1)(d).  

            (3) After a distribution of support collections to the obligee is determined appropriate but before actual distribution is made, the CSED CSSD may intercept a portion of the collections, as authorized by ARM 37.62.501, to be applied towards recoupment of over-payments previously made to the obligee.

            (4) When the CSED CSSD is providing services to two or more obligees of the same obligor:

            (a) through (c) remain the same.

            (5) Notwithstanding the provisions of (4) above:

            (a) through (c) remain the same.

            (d) a support payment received by an obligee directly from the obligor and turned over to the CSED CSSD for distribution under this section will not be distributed to any other obligee's case; and

            (e) support collections made through a clerk of court or other public or private child support enforcement authority, who forwards the collection to the CSED CSSD, shall be distributed only to the obligor's case designated by the clerk of court or other authority. If the forwarded collection fails to include a designated specific case, the distribution provisions of (4) will apply.

            (6) remains the same.

            (7) Except as provided in (9) below, the CSED CSSD shall not distribute collections or any part of collections towards future support, even though the obligor may so direct, until all appropriate distributions under (1) and, if appropriate, (4) are made first.

            (8) remains the same.

            (9)  For purposes of determining distribution under this rule, the effective date of a support collection shall be known as the date of collection.

            (a) For collections made under an order to withhold income, the date of collection is the day the CSED CSSD receives the payment. However, if the support is withheld by the payor in a month when the payment is due, but the payment is received by the CSED CSSD in a month other than the month when due, the date of withholding is the date specifically reported by the payor in documentation accompanying the payment;

            (b) Except as provided in (9)(c), when a collection is received in the mail directly from the obligor, the date of collection is the date that the CSED CSSD receives the payment;

            (c) remains the same.

            (d) In all other cases, the date of collection shall be the day the CSED CSSD receives the collection;.

            (10) and (11) remain the same.

 

AUTH: 40-5-202, MCA

IMP: 17-4-105, 40-5-202, MCA

 

            37.62.309 INDEPENDENT SUPPORT ENFORCEMENT CONTRACTOR

            (1) The CSED CSSD as provided in 40-5-264, MCA, is authorized to enter into cooperative agreements with any person, firm, corporation, association, political subdivision or other department of the state for the purpose of carrying out its duties under state law and Title IV-D of the Social Security Act. Under such agreements the CSED CSSD may designate independent support enforcement contractors whose powers and duties are defined by the terms of the contract.

            (2) An independent support enforcement contractor shall be accountable publicly and to the CSED CSSD, and shall comply with the terms and conditions of the contract, as well as with all applicable federal and state laws, regulations and rules, including policies and procedures of the CSED CSSD for processing casework.

            (3) The jurisdiction and authority of an independent support enforcement contractor shall be limited to the terms of the contract and in no event may such jurisdiction and authority exceed that of the CSED CSSD unless otherwise provided by law.

            (4) In any action taken by an independent support enforcement contractor under the contract, the independent support enforcement contractor will inform all parties, their counsel or other representative, and the court or administrative hearing officer that such action is being undertaken as an independent support enforcement contractor. On all documents and forms bearing the name of the CSED CSSD the independent support enforcement contractor shall include a statement in bold type of the status of independent support enforcement contractor as an independent contractor.

 

AUTH: 40-5-202, MCA

IMP: 40-5-264, MCA

 

            37.62.501 TERMS AND CONDITIONS (1) Under 40-5-203, MCA, the CSED CSSD will provide services to any obligee or obligor who files an application for services with the CSED CSSD. If public assistance was previously paid to an obligee, the CSED CSSD will continue to provide services to the obligee without need for an application. However, if the obligee refused or terminated continued services following the last payment of public assistance, the obligee must file an application. An application for services or an obligee's acceptance of continued services after termination of public assistance shall constitute the applicant's or obligee's agreement to the following terms and conditions.

            (2) For the purposes of this rule, "customer" means any person or entity who applies for CSED CSSD services or who is receiving CSED CSSD services.

            (3) To receive and to continue to receive CSED CSSD services under 40-5-205, MCA, a customer must:

            (a) through (c) remain the same.

            (d) upon request of the CSED CSSD, promptly provide any information, documents, statements, exhibits, and other materials which the CSED CSSD, in its judgment, may determine relevant to the case or which the CSED CSSD finds is a necessary predicate to taking any action in the case. The customer must promptly advise the CSED CSSD of any later changes or additions to the information and materials previously provided to the CSED CSSD;

            (e)  promptly advise the CSED CSSD in writing of any change of address or status, or any new information about the customer or other parties in the case, including changes in physical custody of the child, or of any adoption proceedings;

            (f) cooperate with the CSED CSSD in appearing at the time and place requested for interviews, hearings, depositions, blood draws, and other called for appearances where the presence of the customer is necessary for preparing testimony and evidence, providing information, testifying as witness and similar case pertinent activities;

            (g) to ensure accurate payment records, if the obligee is the customer, the customer must promptly turn over to the CSED CSSD all child support payments received from the obligor. If the obligor is the customer, the customer must pay child support through the CSED CSSD for subsequent distribution to the obligee;

            (h) let the CSED CSSD know immediately if the customer or any other party initiates any action, whether judicial, administrative or private, which competes with, is an alternative to, is inconsistent with, or which may in any way affect the action the CSED CSSD is taking in the case;

            (i) except for the information available through the CSED CSSD 's voice response unit (VRU) or the CSED CSSD 's online payment lookup web site, submit all requests for specific case information in writing to the CSED CSSD. In making any request for information, the customer must provide sufficient information to identify the customer as the person or entity entitled to receive the information.

            (4) The CSED CSSD may collect any fees incurred and owing by a customer under 40-5-210, MCA, by offsetting the fees against any funds which may be distributable to the customer. However, if the amount being distributed is a current support payment, the offset will not exceed 10% of the payment.

            (5) In some instances when the customer is the obligee, the customer may receive money to which the customer is not entitled. The CSED CSSD may make a written demand for repayment of the money from the customer. The customer's silence or failure to respond to the written repayment demand within 10 days of the demand shall be considered the customer's consent to recoupment of the money from any child support collection made on the customer's behalf. Recoupment shall be made by offsetting 10% of any current child support collection and by offsetting any additional child support collection made in excess of the current support obligation. If a customer contests the repayment demand, the CSED CSSD may file an action in the district court to establish and collect the amount.

            (6) Because support orders are often expressed in terms other than in monthly payments and because they often provide for varying and inconsistent payment due dates, to simplify monitoring of payments and payment accounting, the CSED CSSD may elect to annualize the obligations. When the obligation is annualized, the total support payments due for a 1 year period are divided into 12 equal monthly installments.

            (7) A customer cannot specify which of the CSED CSSD services that customer may want to receive. The CSED CSSD will determine which services are appropriate and the timing and duration of those services in accordance with Title IV-D of the Social Security Act, and the regulations promulgated thereunder.

            (8) CSED CSSD staff attorneys assigned to a case represent the CSED CSSD and no attorney-client relationship exists between the customer and the CSED CSSD attorney. At any hearing or in any action undertaken by the CSED CSSD, the customer may appear and be represented by independent counsel of the customer's own choice.

            (9) When there are multiple or concurrent procedures and remedies, whether judicial or administrative, criminal or civil, federal or state, which may be applicable to the customer's case, the CSED CSSD, at its sole discretion, will determine which procedure and remedy to apply, including the sequence and timing of concurrent or consecutive actions.

            (a) In determining which procedure or remedy to apply to an individual case, the discretion of the CSED CSSD will be guided by the totality of circumstances including the time and effort required, the resources of the CSED CSSD, the interest of the public at large and the needs of the child.

            (10) The CSED CSSD may terminate services:

            (a) remains the same.

            (b) when the CSED CSSD is unable to locate the customer within a 30 calendar day period despite attempts to make contact by phone and at least one certified letter to the customer's last known address;

            (c) when the customer fails to provide any information, documents or other materials requested under (2) of this rule and the CSED CSSD cannot take the next step in the case without the information, documents or materials;

            (d) when the customer fails to cooperate with the CSED CSSD and the customer's cooperation is necessary to the action initiated by the CSED CSSD; and

            (e) remains the same.

            (11) The CSED CSSD will notify the customer in writing 60 calendar days prior to termination of services under (8)(b) through (e) of this rule, of the CSED CSSD 's intent to terminate services. The CSED CSSD will not terminate services if the customer, within the notice period, reestablishes contact with the CSED CSSD, supplies the requested information, documents or materials or begins to cooperate with the CSED CSSD, whichever is appropriate. The CSED's CSSD's decision to terminate services is final and not subject to protest except as may otherwise be provided by law.

            (a) If CSED CSSD services are terminated and if there is a change in circumstances which would permit the CSED CSSD to reactivate prior terminated services or initiate new or additional services, the former customer can reinstate services by filing a subsequent application with the CSED CSSD.

           (12) The CSED CSSD does not guarantee or warrant the results of services.

(13) If the customer is the obligee, the customer agrees that the value of CSED CSSD services exceeds any interest that might have accrued on collections that are held pending proof of validity, confirmation of funds, or possible adjustments from joint federal tax offsets, and thereby waives that interest. Joint federal tax offsets may be held up to six months pursuant to federal law.

 

AUTH: 40-5-202, MCA

IMP: 40-5-203, MCA

 

            37.62.705 FEE SCHEDULE (1) As authorized by 40-5-210, MCA, the CSED CSSD adopts the following schedule:

            (a) remains the same.

            (b) for other actual costs and actual expenses incurred by the CSED CSSD in a judicial proceeding, as awarded by the court; and

            (c) and (2) remain the same.

            (3) Other fees assessed to the party or entity requesting the service are:

            (a) for parent locate services, a fee of $10.00 if the social security number of the person to be located is provided to the CSED CSSD, and $14.00 if the social security number of the person to be located is not provided;

            (b) remains the same.

            (c) for photocopies of CSED CSSD files, records and other materials, for each page, a fee of $.25.

            (4) through (6) remain the same.

 

AUTH: 40-5-202, 40-5-210, MCA

IMP: 40-5-210, MCA

 

            37.62.707 WAIVER OR DEFERENCE OF FEES (1) The CSED CSSD may not waive or defer any of the foregoing fees except to encourage expedient, informal dispositions.

 

AUTH: 40-5-202, 40-5-210, MCA

IMP: 40-5-210, MCA

 

            37.62.901 ORGANIZATIONAL STRUCTURE (1) Within the CSED CSSD there is an independent hearings bureau. For the convenient classification and division of business, the hearings bureau is divided into two administrative units consisting of the administrative law judges (ALJs) and the office of the administrative law judge (OALJ).

            (2) The ALJs are responsible for and preside over all hearings in CSED CSSD contested cases.

            (a) and (3) remain the same.

 

AUTH: 2-4-201, 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.903 ASSIGNMENT OF CASES TO ALJ, DISQUALIFICATION AND SUBSTITUTION (1) When a hearing is requested by a party to a contested case, the OALJ will allocate the case file to an ALJ. Except as provided in this rule, once a case is assigned to an ALJ, the case shall be the continuing responsibility of that ALJ until a final decision and order is entered and the time for judicial review has expired. If judicial review is filed, the ALJ will lose jurisdiction over the case and will regain jurisdiction only if the district court remands the case to the CSED CSSD for further proceedings.

            (2) through (6) remain the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.905 UNIFORMITY, CONSISTENCY AND INDEPENDENCE 

            (1) remains the same.

            (2) When there is no statute, case law or administrative rule directly pertinent to a particular contested issue, or when the law is unsettled, and to the extent the following are of general applicability and do not conflict with the rules for ex parte communication, the ALJ's discretion shall be guided by:

            (a) written CSED CSSD policy directives; and

            (b) the CSED CSSD policy and procedures manual.

            (3) Notwithstanding (2), each ALJ has independent authority to hear and decide contested cases. Under the unique circumstances of a particular case and upon a showing of facts or law sufficient to rebut application of a particular policy, an ALJ may depart from established CSED CSSD policy. Any departure shall be supported by reasoned explanation.

            (4) and (5) remain the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.909 CONTESTED CASE PROCEEDINGS, ANSWER OR RESPONSE AND REQUEST FOR HEARING (1) through (6) remain the same.

            (7) The CSED CSSD will make hearing request forms consistent with this rule available for use by persons requesting a hearing. Except for a request for hearing that omits a mistake of fact required by (3), a timely request for hearing that is generally in compliance with this rule shall not be dismissed solely for failure to strictly satisfy the requirements of this rule.

            (8) remains the same.

            (9) Informal contact with the CSED CSSD or OALJ, whether written or oral, will not constitute a hearing request, and will not extend the time in which a hearing must be requested.

            (10) The CSED CSSD, as the party initiating a contested case proceeding, does not need to request a hearing. If no other party requests a hearing, a default decision and order may be entered. However, if no other party requests a hearing, the CSED CSSD may at its discretion request a hearing.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.911 FILING AND PROOF OF SERVICE (1) Whenever a rule or statute requires or permits a request for hearing, motion, brief, responsive answer or other document relating to the hearing to be filed with the department or the CSED CSSD, the place of filing shall be the OALJ. The location, mailing address, email address, and fax number of the OALJ shall be provided on the contested case notice and on each order, subsequent notice or other document mailed by the OALJ to a party. Excluding legal holidays, the hours for filing papers are between 8:00 a.m. and 5:00 p.m., Monday through Friday. Any papers presented or delivered after 5:00 p.m. shall be stamped the next business day. All original papers shall be filed with the OALJ and not the ALJ.

            (2) remains the same.

            (3) Filing with the OALJ is effective upon actual receipt at the OALJ and not upon mailing. Filing with the OALJ does not constitute service on the CSED CSSD and service on the CSED CSSD does not constitute a filing with the OALJ.

            (4) through (6) remain the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.913 PARTIES (1) Except as provided in (3), a party includes any person served with a CSED CSSD contested case notice.

            (2) As the entity initiating the proceedings, the CSED CSSD is automatically a party in all contested case proceedings. However, the CSED CSSD, at its discretion, may limit its participation in the case. When the CSED CSSD does participate as a party, it will do so through a CSED CSSD caseworker or CSED CSSD attorney as provided in ARM 37.62.915.

            (3) remains the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.915 REPRESENTATION (1) Any person appearing in a CSED CSSD proceeding may, at the person's own expense, be accompanied, represented and advised by an attorney.

            (a) remains the same.

            (b) If the attorney files a notice of appearance or signs and files a request for hearing or other responsive pleading with the OALJ in that contested case action, the attorney shall be designated as the attorney of record and all further communication, mailings and notices made in that contested case action will be directed to the attorney. However, the OALJ will mail or deliver copies of all decisions and orders to both the party and the party's attorney. If there is no attorney of record, the OALJ, CSED CSSD and other parties will make all communications directly to the party.

            (c) An attorney of record may withdraw from a pending case, however the attorney shall give notice of the withdrawal to the OALJ, the CSED CSSD and all other parties. Upon receipt of notice the OALJ, the CSED CSSD and all other parties will redirect all subsequent communications to the party formerly represented by the attorney.

            (d) through (3) remain the same.

            (4) Through the use of pre-approved legal forms and written CSED CSSD policies and procedures, and under the ultimate direction of and in consultation with a CSED CSSD attorney, and consistent with rules 5.3 and 5.5 of the Montana Rules of Professional Conduct, a CSED CSSD caseworker may initiate, appear in and participate in a contested case. A caseworker's assertion in a contested case notice is sufficient to constitute the caseworker's authority to participate in the case. When in a particular case a mailing, service, or other communication with the CSED CSSD is required by these rules, the mailing, service, or other communication must be directed to the participating caseworker.

            (5) At the discretion of the CSED CSSD, a CSED CSSD attorney may personally appear and taken an active role in a contested case at any phase of the proceedings. The CSED CSSD attorney may also cease taking an active role at any time. When a CSED CSSD attorney does appear in the case, the attorney will not need to file a notice of appearance or sign any pleading as provided in (1)(b). The CSED CSSD attorney's appearance is sufficient to establish the attorney's authority to provide counsel and representation. When requested by a CSED CSSD attorney appearing the case, all other parties shall direct all further communication, mailings and notices made in that case to the attorney.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.917 SERVICE OF SUBSEQUENT NOTICE, MOTIONS, BRIEFS, AND OTHER PAPERS (1) After service of a contested case notice, all subsequent notices including amendments to a contested case notice, motions, briefs and other papers pertaining to a pending administrative action must be served on all parties. Service may be made by regular U.S. mail, postage prepaid, addressed to each party at:

            (a) and (b) remain the same.

            (c) the address of the place where service of the original contested case notice was achieved, if the party's mailing address is not known to the CSED CSSD.

            (2) and (3) remain the same.

            (4) Service on the CSED CSSD does not constitute a filing with the OALJ and filing with the OALJ does not constitute service on the CSED CSSD.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.919 NOTICE OF HEARING, SCHEDULING ORDER AND LOCATION OF HEARING (1) remains the same.

            (2) The notice of hearing and scheduling order shall:

            (a) through (h) remain the same.

            (i) inform the party that if the party does not have a telephone available for a telephone hearing, at the party's request, a telephone will be made available to the party at the nearest regional CSED CSSD office or at the public assistance office in the county where the party resides.

            (3) The time of the hearing will be during the CSED CSSD's regular business hours. The place of the hearing may be:

            (a) and (b) remain the same.

            (4) The parties may agree to an in-person hearing in another location which is mutually convenient to all the parties and the CSED CSSD.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.923 EXTENSIONS OF TIME AND CONTINUANCES (1) Because CSED CSSD contested cases must proceed on an expedited basis, requests for extensions of time and continuances are disfavored and shall not be routinely granted. Extensions of time and continuances will be granted only upon a showing of extraordinary circumstances beyond the party's control which will cause substantial prejudice to the party if the extension or continuance is not granted.

            (2) through (5) remain the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.925 AMENDMENTS (1) A contested case notice may be amended by the CSED CSSD at any time before an order is issued resolving the notice. Except when the notice is amended during hearing, the amended notice shall be served on all parties in accordance with ARM 37.62.917.

            (a) through (d) remain the same.

            (2) During a hearing a party may seek to offer evidence relating to new issues not raised in the contested case notice or in the party's response to the notice. With the express or implied consent of the parties, the contested case notice or response may be deemed amended to conform to evidence which is relevant and material to issues within the scope of the CSED CSSD's authority.

            (3) If a party objects to evidence offered at a hearing on grounds that the evidence is not within the issues raised by the contested case notice or the response to the notice, the ALJ may allow the notice or response to be amended upon a showing that the evidence is relevant and material to issues within the scope of the CSED CSSD's authority. If the amendment causes a surprise element to be introduced during a hearing, the ALJ may recess or adjourn the hearing to enable the objecting party to meet, refute, or rebut such evidence and may also order the exchange of additional relevant information or exhibits.  The hearing record shall remain open and the ALJ shall set a specific time and date for the hearing to be reconvened. When a hearing is reconvened, it will be for the limited purpose of allowing the objecting party to meet, refute or rebut the evidence submitted by surprise in the prior hearing. This remedy may be had in addition to, or in conjunction with, any other remedy provided by these rules.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.927 EVIDENCE (1) The evidence received and considered in CSED CSSD contested cases shall conform to the common law, the statutory rules of evidence and the provisions of 2-4-612, MCA.

            (2) and (3) remain the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.929 OFFICIAL NOTICE (1) Official notice may be taken of:

            (a) and (b) remain the same.

            (c) department and CSED CSSD organization, including administration, officers, personnel, official publications and official acts of the department and the CSED CSSD;

            (d) remains the same.

            (e) the records of other CSED CSSD proceedings;

            (g) remains the same.

            (h) written CSED CSSD policy directives;

            (i) the CSED CSSD policy and procedures manual;

            (j) remains the same.

            (k) payment histories originated by the CSED CSSD or obtained from clerks of court, the child support agencies of other states or other public records sources, and CSED CSSD-prepared abstracts of those histories including computerized data compilations; and

            (l) child support guidelines worksheets and similar documents, completed CSED CSSD case related forms, and other papers within the scope of the CSED CSSD's technical knowledge as a body of experts and within the scope of its duties, respon­sibilities and jurisdiction.

            (2) remains the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.933 INVESTIGATIVE SUBPOENA (1) The CSED CSSD may issue an investigative subpoena whenever the CSED CSSD has a right or duty to investigate any matter relating to the location of an obligor, the establishment of paternity and support orders, and the enforcement or modification of a support order. A contested case as defined in ARM 37.62.303 need not be initiated before an investigative subpoena is issued.

            (2) and (3) remain the same.

            (4) In addition to (3), when a person with a support order requests the CSED CSSD to review that order for a possible modification, the CSED CSSD may direct an investigative subpoena to a parent for the purpose of determining during the review process whether there is a sufficient change of circumstances to warrant commencement of formal modification proceedings.

            (5) The investigative subpoena shall order the subpoenaed person or representative of the subpoenaed entity to appear before the CSED CSSD at a set time and produce the requested information and, if necessary, to permit the pertinent parts of the record and files to be inspected and copied. By mutual agreement between the CSED CSSD and the subpoenaed person or entity, the time, place and method for production of the information may be modified.

            (6) The CSED CSSD shall issue an investigative subpoena only when the person who is the subject of the investigation fails to voluntarily provide the information and the information is otherwise unavailable to the CSED CSSD through less intrusive means.

            (7) and (8) remain the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.937 OTHER DISCOVERY (1) remains the same.

            (2) Because CSED CSSD contested case proceedings are heard on an expedited basis, other discovery may unreasonably delay the hearing. For this reason other discovery may not be had except upon request. A request for other discovery must be made according to and within the time set by the ARM 37.62.919 scheduling order. When other discovery is requested, the OALJ will convene a discovery conference by telephone with all parties. At the conference the OALJ will establish dates for the accelerated completion of each phase of other discovery. Time tables for other discovery set out in the Montana Rules of Civil Procedure may be substantially shortened.

            (a) remains the same.

            (3) Without need for other discovery or subpoena, specific identifiable CSED CSSD records that are relevant to a disputed material fact, upon request and payment of any necessary copying fees, may be made available to a party unless the requested records are expressly exempt or protected from disclosure by state or federal law.

            (4) through (8) remain the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.945 PROCEDURE AT HEARING (1) through (9) remain the same.

            (10) The ALJ shall cause the hearing to be recorded at the CSED CSSD's expense. The CSED CSSD is not required to prepare a transcript at its own expense. Any interested person, at the person's expense, may request a typed transcription of the recording or may cause additional audio, video, or stenographic recordings to be made during the hearing if the making of additional recordings does not cause distraction or disruption.

            (11) CSED CSSD hearings are open to public observation, except for the parts that the presiding ALJ declares to be closed pursuant to a provision of law authorizing closure. If the hearing is conducted by telephone, the availability of public observation is satisfied by allowing interested persons to observe and listen to the hearing at the location of any one of the participants or to listen to or inspect the audio tape record or to inspect any transcript obtained by the CSED CSSD.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.947 INTERPRETERS (1) Whenever a party or a witness is unable to understand or speak the English language, and the presiding ALJ determines that this inability may impair the substantial rights of any party to a fair hearing, the ALJ may adjourn the hearing and appoint ex parte an interpreter at the CSED CSSD's expense. The hearing will be reconvened after an interpreter is obtained.

            (2) through (6) remain the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.949 PROPOSED DECISION, FINAL DECISION AND ORDER 

            (1) Following the close of hearing and the receipt of post-hearing briefs and other evidence ordered by the ALJ, the presiding ALJ shall prepare a proposed decision and order. Copies of the proposed decision and order shall be served on each party as provided in ARM 37.62.917. A proposed decision and order is interim in effect and does not become a final CSED CSSD decision and order except as provided in (2) of this rule and by ARM 37.62.951(6).

            (2) The parties shall have 20 days following service of the proposed decision and order to review the order. At the end of the 20 days, the presiding ALJ may enact the proposed decision and order as a final CSED CSSD order unless a party, within the 20 day review period, files a motion to review the proposed order as provided by ARM 37.62.951. A decision and order that becomes final under this rule takes effect as to its terms on the date it is enacted. Copies of the final decision and order shall be delivered or mailed to each party, and to each party's attorney if any.

            (3) Proposed and final decisions and orders must include findings of fact, conclusions of law and the policy reasons for the decision if the decision is based on an exercise of CSED CSSD discretion as referenced in ARM 37.62.905(1)(b).

            (a) through (e) remain the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.951 MOTION TO REVIEW PROPOSED ORDER (1) through (5) remain the same.

            (6) Upon receipt of a timely filed motion to review which specifies one or more of the grounds set out in (2), the presiding ALJ shall afford each party an opportunity to respond to the motion and, upon request, to present oral argument and submit written briefs on the matters raised by the motion. After considering the motion and the responses to the motion, the ALJ may affirm the proposed decision or correct, amend or modify it as necessary. If affirmed, the proposed order shall be enacted as a final CSED CSSD order. The enacted order takes effect as to its terms on the date it is enacted. If corrected, amended or modified, the ALJ shall issue a revised decision and order that is consistent with the proposed order as corrected, amended or modified. The revised decision and order shall be effective as a final CSED CSSD decision and order on the day it is signed by the ALJ. Copies of decisions and orders that become final under this rule shall be delivered or mailed to each party, and to each party's attorney if any.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.955 HEARING RECORD (1) remains the same.

            (2) Except for parts of the file admitted as evidence during the hearing, the CSED CSSD case file maintained by the CSED CSSD caseworker, including computerized and hard copy versions, is not a part of the hearing record.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.959 INFORMAL DISPOSITION AND CONSENT ORDERS (1) The parties to a contested case may informally resolve the case, any motion concerning the case, or any issue pending resolution in the case, by stipulation, agreed settlement, or consent order. Except as provided in (3), all informal dispositions must be in writing and must be submitted to the presiding ALJ for review. The ALJ will review the matter for conformity with applicable law and for jurisdiction of the CSED CSSD to enter an order or resolve the matter based on the informal disposition. Upon concurrence the ALJ will make any appropriate order based on the informal disposition including dismissing or vacating any pending hearing.

            (2) and (3) remain the same.

 

AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.965 DISMISSAL OF CONTESTED CASE OR WITHDRAWAL OF HEARING REQUEST (1) The CSED CSSD or a CSED CSSD staff attorney may ex parte dismiss a contested case proceeding at any time prior to entry of a final decision and order. A copy of the ex parte dismissal shall be served on all parties served with a contested case notice. The OALJ shall vacate any hearing that may be pending in the case. A dismissal under this rule is without prejudice and the CSED CSSD may initiate a new contested case proceeding at any time.

            (2) remains the same.

            (3) A scheduled hearing and a final decision and order may be vacated and dismissed at any time by the ALJ upon a showing that the CSED CSSD did not or does not have jurisdiction over the subject matter of the hearing or the final decision and order.

 

AUTH: 2-4-201, 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 2-4-201, 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA

 

            37.62.1101 DEFINITIONS For the purposes of this subchapter, the following definitions apply:

            (1) remains the same.

            (2) "File or file with the department" for the purposes of 40-5-414(1), MCA, means that the request for hearing must be delivered to and received by the CSED CSSD hearing office within the time specified by law.

            (3) and (4) remain the same.

 

AUTH: 40-5-405, MCA

IMP: 40-5-401, 40-5-402, 40-5-403, 40-5-404, 40-5-405, 40-5-411, 40-5-412, 40-5-413, 40-5-414, 40-5-415, 40-5-416, 40-5-417, 40-5-418, 40-5-421, 40-5-422, 40-5-423, 40-5-424, 40-5-431, 40-5-432, 40-5-433, 40-5-434, MCA

 

            37.62.1103 WITHHOLDING ENTITY (1) The CSED CSSD is hereby designated the "state disbursement unit" pursuant to 42 USC 666(b)(5).

 

AUTH: 40-5-405, MCA

IMP: 40-5-401, 40-5-402, 40-5-403, 40-5-404, 40-5-405, 40-5-411, 40-5-412, 40-5-413, 40-5-414, 40-5-415, 40-5-416, 40-5-417, 40-5-418, 40-5-421, 40-5-422, 40-5-423, 40-5-424, 40-5-431, 40-5-432, 40-5-433, 40-5-434, MCA

 

            37.62.1105 VOLUNTARY WITHHOLDING (1) Notwithstanding the provisions of 40-5-412(2), MCA, the CSED CSSD may, at the request of the obligor, take steps to implement income withholding at any earlier time, in an amount determined in accordance with 40-5-416, MCA.

 

AUTH: 40-5-405, MCA

IMP: 40-5-401, 40-5-402, 40-5-403, 40-5-404, 40-5-405, 40-5-411, 40-5-412, 40-5-413, 40-5-414, 40-5-415, 40-5-416, 40-5-417, 40-5-418, 40-5-421, 40-5-422, 40-5-423, 40-5-424, 40-5-431, 40-5-432, 40-5-433, 40-5-434, MCA

 

            37.62.1113 AVAILABILITY OF HARDSHIP ADJUSTMENTS (1) In certain circumstances, the amount of money required to be withheld to defray delinquent support amounts owed under the terms of the act may be temporarily reduced at the discretion of the CSED CSSD. Such a "hardship adjustment" may be made upon a showing that extraordinary costs or expenses for special medical, dental, and mental health needs have been incurred by the obligor or the obligor's dependents; that these costs are actually being paid by the obligor; and that the obligor is not being reimbursed by insurance. A hardship adjustment may also be based upon special costs or expenses which are directly related to the obligor's ability to earn income available for withholding, and which, if not paid by the obligor, would result in a major loss of income. Further, a hardship adjustment may be considered if the total income of the obligor's household only minimally meets the subsistence level for food, housing, clothing, and other necessities as established by the United States poverty guidelines.

            (2) remains the same.

 

AUTH: 40-5-405, MCA

IMP: 40-5-416, MCA

 

            37.62.1115 EFFECT OF HARDSHIP DETERMINATION (1) through (3) remain the same.

            (4) Whenever the CSED CSSD has determined that a hardship adjustment is appropriate, it shall issue a withholding order, or a modification of an existing withholding order, which reflects the hardship adjustment. No order may be issued for the withholding of less than:

            (a) the amount of current support plus the monthly hardship payment determined by the CSED CSSD if the obligor owes an ongoing current support obligation; or

            (b) the monthly hardship payment determined by the CSED CSSD if the obligor's current support obligation has terminated.

            (5) When the hardship adjustment ceases, the CSED CSSD may, without further notice to the obligor, modify or amend the order to withhold the amount of delinquent support determined to be proper prior to the hardship adjustment.

 

AUTH: 40-5-405, MCA

IMP: 40-5-416, MCA

 

            37.62.1117 PROCEDURES FOR DETERMINING HARDSHIP ADJUSTMENTS (1) The CSED CSSD will use the following procedures as a guideline for the exercise of its discretion in determining hardship adjustments:

            (a) remains the same.

            (b) The review will be conducted ex parte by the CSED CSSD 's regional office based on financial information provided by the obligor or obtained from other sources.

            (c) The standard for review will be the application of a formula developed by the CSED CSSD. The CSED CSSD will, upon request, provide copies of the formula to any interested person.

            (d) The CSED CSSD will determine the length of time the hardship adjustment will continue. The hardship adjustment will terminate at the end of the determined period, or cessation of the hardship condition, whichever occurs first. In the event the hardship condition continues after the end of such period, it shall be the obligor's duty to request further review at that time.

            (e) If the obligor disagrees with the CSED CSSD 's determination, a request may be made in writing for further review by the CSED CSSD division administrator or designee.

            (f) and (g) remain the same.

 

AUTH: 40-5-405, MCA

IMP: 40-5-416, MCA

 

37.62.1122 DETERMINING UNENFORCEABLE CASE STATUS (1) This rule establishes the criteria which a IV-D case must satisfy to be categorized as unenforceable. All of the following criteria must be met:

            (a) through (d) remain the same.

            (e) the CSED CSSD has not identified any attachable financial institution accounts belonging to the obligor parent;

            (f) the CSED CSSD has not identified any executable assets belonging to the noncustodial parent;

            (g) and (h) remain the same.

 

AUTH: 40-5-203, MCA

IMP: 40-5-203, MCA

 

            37.62.1303 DEFINITIONS For the purposes of this subchapter, the following definitions apply:

            (1) " CSED CSSD " means the Child Support enforcement Services Division.

            (2) "Financial hardship payment plan" means a plan offered to the obligor by the CSED CSSD for agreement which pro­vides for monthly support arrears payments by the obligor in a lesser amount than under a standard payment plan and which, upon approval by the CSED CSSD office of the administrative law judge, stays further license suspension proceedings.

            (3) remains the same.

            (4) "Standard payment plan" means a plan offered to the obligor by the CSED CSSD for agreement which provides for monthly support payments by the obligor and which, upon approval by the CSED CSSD office of the administrative law judge, stays further license suspension proceedings.

 

AUTH: 40-5-713, MCA

IMP: 40-5-710, 40-5-713, MCA

 

            37.62.1305 CRITERIA FOR STANDARD PAYMENT PLAN (1) A standard payment plan agreement must contain, but is not limited to, the following:

            (a) through (f) remain the same.

            (g) an agreement that a standard plan does not limit the CSED CSSD's right to pursue collection of the arrears by other means;

            (h) remains the same.

            (i) an agreement that the obligor gives up his or her right to have a district court review the decision of the CSED CSSD hearing officer.

 

AUTH: 40-5-713, MCA

IMP: 40-5-710, 40-5-713, MCA

 

            37.62.1309 EFFECT OF FINANCIAL HARDSHIP PAYMENT PLAN DETERMINATION (1)  A pending financial hardship payment plan determination does not stay or delay hearings on, or implementation of, license suspension, absent a stay or continuance issued by the CSED CSSD administrative hearing officer.

            (2) and (3) remain the same.

            (4) Whenever the CSED CSSD has determined that a financial hardship payment plan is appropriate, the CSED CSSD hearing officer shall consider the financial hardship payment plan and either approve or disapprove the plan.

 

AUTH: 40-5-713, MCA

IMP: 40-5-710, 40-5-713, MCA

 

            37.62.1311 PROCEDURES FOR DETERMINING FINANCIAL HARDSHIP PAYMENT PLAN TERMS (1) The CSED CSSD will use the following procedures as a guideline for the exercise of its discretion in determining the payment terms of a financial hardship payment plan:

            (a) the obligor must request a financial hardship determination in writing to the CSED CSSD office issuing the notice of intent to suspend stating the reasons a hardship adjustment is appropriate. The CSED CSSD will determine if the obligor is eligible for a reduction of the amount which would normally be paid or withheld, under a standard payment plan, to defray the support delinquency and interest and fees, if any;

            (b) remains the same.

            (c) the CSED CSSD will determine the length of time the financial hardship determination will continue, based on the information provided by the obligor. The financial hardship payment plan will terminate at the end of the determined period, cessation of the financial hardship condition, or upon modification of the obligor's current/future support obligation, whichever occurs first. In the event the financial hardship condition continues after the end of such period, it shall be the obligor's duty to request further review prior to the date of expiration;

            (d) remains the same.

            (e) if the obligor disagrees with the CSED CSSD's financial hardship determination, the license suspension process will proceed to hearing, if the obligor has timely requested a hearing pursuant to the requirements of 40-5-703, MCA.

 

AUTH: 40-5-713, MCA

IMP: 40-5-710, 40-5-713, MCA

 

            37.62.1313 PROCEDURES AND CRITERIA FOR RESULTANT HARDSHIP       (1) The obligor must make a written claim for a resultant hardship to the CSED CSSD office of the administrative law judge. The obligor must mail a copy of claim to the CSED CSSD office issuing the notice of intent to suspend.

            (2) remains the same.

 

AUTH: 40-5-713, MCA

IMP: 40-5-710, 40-5-713, MCA

 

            37.62.1315 STAY OF LICENSE SUSPENSION (1) A stay of a license suspension may be issued by the CSED CSSD office of the administrative law judge at any time subsequent to receipt in the CSED CSSD office of the administrative law judge of a written claim of resultant hardship or a written motion for a stay pending a financial hardship payment plan determination.

            (2) The CSED CSSD office of the administrative law judge may issue an immediate stay if the hearing officer determines a reasonable chance of irreparable harm exists if a stay is not issued prior to a hearing on the resultant hardship claim or motion for a stay.

            (3) remains the same.

 

AUTH: 40-5-713, MCA

IMP: 40-5-710, 40-5-713, MCA

 

            37.62.1501 OFFSET OF STATE TAX REFUNDS AND OTHER PAYMENTS FOR DEBTS COLLECTED BY CHILD SUPPORT AGENCY (1) The CSED CSSD will notify the Department of Revenue as provided for by 17-4-105, MCA, of any past due debt resulting from or relating to a child support obligation owing to or collected by the state under Title IV-D of the Social Security Act. The debt must have accrued through a written contract, court judgment, administrative order, or a distribution the recipient was not entitled to retain as described in 40-5-910, MCA, and shall be for a definite amount of money due and owing to or collected by the state under Title IV-D of the Social Security Act.

            (2) and (3) remain the same.

 

AUTH: 17-4-105, MCA

IMP: 17-4-105, MCA

 

            37.62.1703 ELECTRONIC REPORTS (1) For the purpose of reporting a support debt to a consumer reporting agency, upon a request by a consumer reporting agency, the CSED CSSD may provide such information by electronic means.

 

AUTH: 40-5-262, MCA

IMP: 40-5-261, MCA

 

            37.62.1705 AMOUNTS TO BE REPORTED (1) The CSED CSSD will report to the consumer reporting agency only those support debts when:

            (a) the amount of the debt retainable by the CSED CSSD for the reimbursement of assigned public assistance expenditures is an amount equal to at least seven times the monthly current support; or

            (b) remains the same.

            (2) Reports will be provided to a consumer reporting agency only upon request of an agency with whom the CSED CSSD has entered into an agreement which specifies the form and content of the reported information, and which imposes terms and conditions for the use of the information so as to protect its confidentiality.

 

AUTH: 40-5-262, MCA

IMP: 40-5-261, MCA

 

            37.62.1901 PROVIDING INFORMATION (1) Whenever an obligor is required under 40-5-208, MCA to provide the CSED CSSD with information regarding health or medical insurance coverage, the obligor shall provide the information within 20 days following the receipt of a written request from the CSED CSSD. The information must be provided by a verified writing using a form provided by the CSED CSSD or a form provided by the obligor which contains essentially the same information.

            (2) The request for health or medical insurance coverage information shall be deemed continuing, and the obligor must report changes in the information to the CSED CSSD within 20 days of the change.

            (3) remains the same.

 

AUTH: 40-5-202, MCA

IMP: 40-5-208, MCA

 

            37.62.1903 NOTICE TO OBLIGOR (1) If the CSED CSSD determines that an obligor failed to provide or maintain health or medical insurance coverage pursuant to statute or court or administrative order, or if the obligor fails to provide information concerning such coverage, or both, the CSED CSSD may cause to be served upon the obligor, a notice of such failure. The notice shall include:

            (a) through (d) remain the same.

            (e) a statement that the amount finally assessed will be subject to income withholding, warrant for distraint and other remedies available to the CSED CSSD to collect the assessed amount; and

            (f) remains the same.

 

AUTH: 40-5-202, MCA

IMP: 40-5-208, MCA

 

            37.62.2101 MODIFICATION OF SUPPORT ORDERS (1) The CSED CSSD may conduct a review for modification of a support order which it is enforcing upon a verified written application showing one or more of the criteria for review under 40-5-272, MCA.

            (2) remains the same.

            (3) The CSED CSSD may conduct a review for modification of a support order which it is enforcing upon receipt of documentation that the obligated parent will be incarcerated for more than 180 days. The results of this review may be abatement of any support due during the period of incarceration and for 60 days following the release from incarceration.

 

AUTH: 40-5-202, MCA

IMP: 40-5-226, MCA

 

            37.62.2103 AVAILABILITY OF REVIEW (1) remains the same.

            (2) The CSED CSSD will deny a request for review of a support order if any of the following conditions exist:

            (a) remains the same.

            (b) the CSED CSSD does not have an open IV-D case after the procedures in ARM 37.62.2107 have been completed;

            (c) through (f) remain the same.

            (g) the support order will terminate within six months after the date the request for review is received by the CSED CSSD.

 

AUTH: 40-5-202, MCA

IMP: 40-5-202, MCA

 

            37.62.2105 HEARING ON DENIAL OF REVIEW REQUEST (1) When a review is denied under ARM 37.62.2103, the parent requesting the review has the right to request a hearing on whether the review was properly denied. The request for hearing shall be made to the CSED CSSD Office of the Administrative Law Judge, and must be received within 10 days after service of a notice denying the review request.

            (2) The hearing shall be conducted in accordance with CSED CSSD rules at ARM 37.62.901, et seq., except that the hearing is not a contested case hearing, and therefore no judicial review is available. The scope of the hearing is limited to the CSED CSSD 's decision rejecting the review request, and the order of the administrative law judge is not subject to ARM 37.62.949 regarding proposed orders.

 

AUTH: 40-5-202, MCA

IMP: 40-5-202, MCA

 

            37.62.2107 PROCEDURE FOR TERMINATING REVIEW OR MODIFICATION AFTER CLOSURE OF IV-D CASE (1) If a IV-D case is closed while a review application or modification action is pending, the CSED CSSD will mail notice to the party who did not open the IV-D case and offer that party the opportunity to apply for support enforcement services.

            (2) If a new IV-D referral or an application for support enforcement services is not received by the CSED CSSD within 20 calendar days of the date the notice was received by the party, the modification notice will be dismissed or the review application denied.

            (3) If a new IV-D referral or an application for support enforcement services is received by the CSED CSSD within 20 calendar days of the date the notice was received by the party, the action will continue from the point at which the IV-D case was closed.

            (4) and (5) remain the same.

 

AUTH: 40-5-202, MCA

IMP: 40-5-202, MCA

 

            37.62.2111 TIME FRAME DETERMINATIONS (1) For purposes of determining time frames in reviews and modifications conducted under this subchapter, the following provisions apply:

            (a) a request for review is received when the CSED CSSD has sufficient information to determine if review is available under ARM 37.62.2103; or

            (b) the CSED CSSD shall take no action on a review or modification while the procedures under ARM 37.62.2107 are being performed. The time provided for the performance of procedures under ARM 37.62.2107 shall not be counted in any determination of time frames.

 

AUTH: 40-5-202, MCA

IMP: 40-5-202, MCA

 

            37.62.2113 REQUESTS FOR DISCOVERY (1) Requests for discovery by parties in administrative modification cases must be received in the CSED CSSD Office of the Administrative Law Judge on or before the 10th day after service of a Notice of Review of Child Support Order and Order to Produce Financial Information upon the party requesting discovery. The CSED CSSD may request discovery by including a discovery order within its notice of proposed modification.

            (2) and (3) remain the same.

 

AUTH: 40-5-202, MCA

IMP: 40-5-202, 40-5-273, MCA

 

            37.62.2119 MODIFICATION HEARING (1) through (4) remain the same.

            (5) The order shall be effective the first day of the month following the issuance of the Notice of Proposed Modification, or as determined by a district court. If the modification result is a lowered child support obligation, all payments received during the pendency of the modification action shall be credited against the new obligation, and amounts exceeding the modified obligation shall be applied first to outstanding arrearages, fees, and fines. Any amount remaining after such credits shall be applied to future child support by reducing the amount of child support collected under the new order for no more than six months, or before the order terminates, whichever comes first. Parties may agree to an alternate schedule. No refunds shall be available from the CSED CSSD.

 

AUTH: 40-5-202, MCA

IMP: 40-5-202, 40-5-272, 40-5-273, MCA

 

            37.78.215 TANF: TANF CASH ASSISTANCE; CHILD SUPPORT ENFORCEMENT SERVICES COOPERATION REQUIREMENTS (1) through (6) remain the same.

            (7) The local Office of Public Assistance will promptly notify the Child Support Enforcement Services Division of all cases in which it has been determined that there is good cause for refusal to cooperate in establishing paternity or obtaining child or medical support.

            (8) and (9) remain the same.

 

AUTH: 53-4-212, MCA

IMP: 53-4-211, 53-4-601, MCA

 

            37.78.1013 FAIM FOOD STAMP PROGRAM: UNEARNED INCOME EXCLUSIONS (1) The following kinds of unearned income are not counted in determining food stamp eligibility and benefit amount:

            (a) through (c) remain the same.

            (d) child support payments returned to the household by the department's Child Support Enforcement Services Division, up to $50 per month.

 

AUTH: 53-2-201, 53-2-901, MCA

IMP: 53-2-901, 53-2-904, MCA

 

            37.80.103 CONFIDENTIALITY (1) Use and disclosure of information is allowed only for the following purposes:

            (a) through (c) remain the same.

            (d) to assist the Child Support Enforcement Services Division or any other agency or entity authorized to conduct child support enforcement activities;

            (e) through (2) remain the same.

 

AUTH: 52-2-704, 53-4-212, MCA

IMP: 52-2-704, 53-2-211, MCA

 

            37.80.201 NONFINANCIAL REQUIREMENTS FOR ELIGIBILITY AND PRIORITY FOR ASSISTANCE (1) through (3) remain the same.

            (4) If a parent of a child does not live with the child and is not paying child support under a child support order recognized by a Montana district court, the custodial parent must apply for and cooperate with child support enforcement services from the department's Child Support Enforcement Services Division. The department determines cooperation with Child Support Enforcement Services Division by maintaining an open case when a case can be established or by the parent providing all appropriate requested documentation to Child Support Enforcement Services Division for them to open a child support case. A custodial parent who fails without good cause to apply for such services and to cooperate with the Child Support Enforcement Services Division will be decertified for benefits under this chapter as of the date of such failure. Good cause is defined as specified in ARM 37.78.215.

            (5) through (12) remain the same.

 

AUTH: 40-4-234, 52-2-704, 53-4-212, MCA

IMP: 52-2-704, 52-2-713, 52-2-721, 52-2-722, 52-2-723, 52-2-731, 53-2-201, 53-4-211, 53-4-601, 53-4-611, MCA

 

            37.82.416  ASSIGNMENT OF RIGHTS TO BENEFITS, COOPERATION WITH CHILD SUPPORT ENFORCEMENT SERVICES REQUIREMENTS 

            (1) through (3) remain the same.

            (4) Individuals receiving medical assistance only in any of the following coverage groups are not required to assign their rights to medical support or cooperate with the Child Support Enforcement Services Division in establishing paternity and obtaining medical support:

            (a) through (5) remain the same.

 

AUTH: 53-6-113, MCA

IMP: 53-2-612, 53-2-613, 53-6-131, MCA

 

            37.85.407 THIRD PARTY LIABILITY (1) through (5) remain the same.

            (6) The department shall not deny payment of services solely because of the existence of a third party in the following circumstances:

            (a) remains the same.

            (b) The third party is an insurer under a health insurance policy provided by the absent parent of a recipient and that health insurance is obtained or maintained as a result of an enforcement action taken by the Child Support enforcement Services Division against that absent parent, if the following provisions are met:

            (i) through (12) remain the same.

 

AUTH: 53-6-113, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-141, MCA

 

            4. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) is proposing to amend ARM 37.62.101 through 37.62.2121, 37.78.215, 37.78.1013, 37.80.103, 37.80.201, 37.82.416, and 37.85.407, pertaining to the Child Support Enforcement Division (CSED).

 

The above-listed rules have either Child Support Enforcement Division or CSED listed in the rule. Following a national trend, CSED proposes that the division name be amended to Child Support Services Division (CSSD). The removal of "enforcement" from the division's name will increase the public's knowledge that the division provides a plethora of services. When the agency began in 1976, the only service it provided was enforcement of support obligations. Now the division offers services in paternity establishment, support order establishment, and review and adjustment of support and medical orders.

 

Arm 37.62.101 through 37.62.2121

 

The department proposes to amend these rules to reflect the change of the division name from Child Support Enforcement Division to Child Support Services Division. This proposal also includes changing the acronym from CSED to CSSD.

 

ARM 37.5.129, 37.78.1013, 37.80.103, 37.80.201, 37.82.416, and 37.85.407

 

These rules contain references to Child Support Enforcement Division and the acronym CSED. The department proposes to amend these rules to reflect the proposed new division title, Child Support Services Division (CSSD). The department also proposes that the addresses be updated.

 

Fiscal Impact

 

The department does not believe that the proposed rule amendments will have any fiscal impact.

 

The department intends to adopt these rule amendments retroactively to March 2, 2020. There is no negative impact to the affected parties by applying the rule amendments retroactively.

 

            5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Heidi Clark, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail [email protected], and must be received no later than 5:00 p.m., May 7, 2020.

 

6. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.

 

8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ Andrew Betson                                       /s/ Sheila Hogan                                         

Andrew Betson                                            Sheila Hogan, Director

Rule Reviewer                                             Public Health and Human Services

 

 

Certified to the Secretary of State March 17, 2020.