Legislature(2009 - 2010)BELTZ 211
03/11/2009 01:30 PM Senate JUDICIARY
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| Adjourn |
* first hearing in first committee of referral
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+ teleconferenced
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| + | SB 96 | TELECONFERENCED | |
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 11, 2009
1:35 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Lesil McGuire
MEMBERS ABSENT
Senator Kim Elton
Senator Gene Therriault
COMMITTEE CALENDAR
SENATE BILL NO. 96
"An Act relating to nonpayment of child support; relating to
certain judicial and administrative orders for medical support
of a child; relating to periodic review and adjustment of child
support orders; relating to relief from administrative child
support orders; relating to child support arrearages; relating
to medical support of a child and the Alaska Native family
assistance program; amending Rule 90.3, Alaska Rules of Civil
Procedure; and providing for an effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 96
SHORT TITLE: CHILD SUPPORT/ CASH MEDICAL SUPPORT
SPONSOR(s): HEALTH & SOCIAL SERVICES
02/04/09 (S) READ THE FIRST TIME - REFERRALS
02/04/09 (S) HSS, JUD, FIN
02/25/09 (S) HSS AT 1:30 PM BUTROVICH 205
02/25/09 (S) Heard & Held
02/25/09 (S) MINUTE(HSS)
03/02/09 (S) HSS AT 1:30 PM BUTROVICH 205
03/02/09 (S) Moved CSSB 96(HSS) Out of Committee
03/02/09 (S) MINUTE(HSS)
03/03/09 (S) HSS RPT CS 2DP 2NR NEW TITLE
03/03/09 (S) DP: DAVIS, PASKVAN
03/03/09 (S) NR: THOMAS, ELLIS
03/11/09 (S) JUD AT 1:30 PM BELTZ 211
WITNESS REGISTER
LYNDA ZAUGG, Staff
to Senator Bettye Davis
Alaska Capitol Building
Juneau, AK
POSITION STATEMENT: Introduced SB 96 on behalf of the sponsor.
JOHN MALLONEE, Director
Child Support Services Division
Department of Revenue
Anchorage, AK
POSITION STATEMENT: Provided a sectional analysis of SB 96 and
responded to questions.
EDDIE BRAKES, Director
Title IV-D Tribal Child Support Unit
Central Council Tlingit and Haida Indian Tribes of Alaska
Juneau, AK
POSITION STATEMENT: Testified in support of SB 96.
JESSIE ARCHIBALD, Attorney
Tribal Child Support Program
Central Council Tlingit and Haida Indian Tribes of Alaska
POSITION STATEMENT: Provided support and responded to questions
related to CCTHITA perspective on SB 96.
ROBERT W. LOESCHER, Subcommittee Chair
State and Tribal Relations of the Judiciary Committee
Central Council Tlingit and Haida Indian Tribes of Alaska
Juneau, AK
POSITION STATEMENT:
STACY STEINBERG, Assistant Attorney General
Civil Division
Collections and Support Section
Department of Law (DOL),
POSITION STATEMENT: Provided information related to SB 96.
GINGER BLAISDELL, Director
Administrative Services
Department of Revenue (DOR)
POSITION STATEMENT: Provided information and stated support for
SB 96 on behalf of the Governor.
ACTION NARRATIVE
1:35:10 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1: 35 p.m. Present at the call to
order were Senators McGuire, Wielechowski and French.
SB 96-CHILD SUPPORT/ CASH MEDICAL SUPPORT
CHAIR FRENCH announced the consideration of SB 96.
1:35:33 PM
LYNDA ZAUGG, Staff to Senator Bettye Davis, sponsor, introduced
SB 96 by reading the sponsor statement into the record as
follows:
In July 2008, the federal government issued new
medical support regulations that require states to
have guidelines addressing how either or both parents
will provide for a child's healthcare needs through
accessible health insurance coverage, cash medical
support, or both. Under the federal regulations,
states must order either or both parents to purchase
reasonably-priced, accessible health insurance
coverage, provide cash medical support or both. Cash
medical support may be required in those cases where
no reasonably-priced health insurance coverage is
accessible to the child. If a parent is ordered to pay
cash medical support, the Child Support Services
Division (CSS) must enforce the ongoing cash medical
support obligation as well as collect any cash medical
support arrears. Failure to satisfy these mandated
jeopardizes 17 million dollars in federal funding for
the state's child support program.
1:37:24 PM
This bill adds to existing law the authority for a
tribunal to order either or both parents to pay cash
medical support, if warranted. In addition, the bill
directs CSSD to review child support orders for
modification on a federally mandated three-year cycle.
The bill adds cash medical support to the definition
of arrearage and the definition of support order
thereby enabling CSSD to use its existing enforcement
tools to collect a cash medical support obligation on
behalf of the child. Finally, the bill removes the
language limiting who may request the correction of a
clerical mistake in an administrative order or request
the vacation of an administrative order based upon a
default income.
This bill puts Alaska in compliance with the federal
requirements. As explained above, this bill will
assure that Alaska's children receive the medical
support to which they are entitled.
MS. ZAUGG added that her understanding of the bill is that it
brings the state into federal compliance.
1:39:44 PM
JOHN MALLONEE, Director, Child Support Services Division (CSSD),
Department of Revenue (DOR), provided the following sectional
analysis:
Section 1 adds a reference to cash medical support to
the crime of aiding and abetting the nonpayment of
child support in the second degree. Basically this is
to bring that criminal statute into compliance with
the fact that we're now going to have a cash medical
support order. So it simply adds that to the other
regular child support orders that can be prosecuted
under that particular item.
CHAIR FRENCH asked if there will only be one child support
order. It may order many things including medical support and
cash medical support will be a subsection of that.
MR. MALLONEE said in the vast majority of cases there will be
only one umbrella order that has both child support and the cash
medical support. However, there might be some areas where there
would be just a cash medical support order, because of issues
such as a zero child support order or a support order that
addresses only medical.
CHAIR FRENCH asked if the bill will create an automatic increase
to existing orders or be added to future orders.
MR. MALLONEE said it will be added to future orders, but it will
also be added to existing orders as they are modified.
CHAIR FRENCH asked if he foresees CSSD making an omnibus
amendment to the current orders.
MR. MALLONEE said no; in the past when things changed
prospectively in a particular area, CSSD waited until someone
brought a motion to modify the order and then included that
change in the new order.
1:43:01 PM
CHAIR FRENCH asked if the addition of the phrase "cash medical
support" will increase a person's calculated child support
payment or will the payment stay the same and part of it be
directed to cash medical support.
MR. MALLONEE said the cash medical support would be in addition
to the existing child support that is computed under Civil Rule
90.3. Currently all orders that are issued have a requirement
for medical insurance to be provided if it is reasonably
available to either party. If it is not reasonably available,
one party, either party, or both parties could be subject to
paying an additional amount of child support.
CHAIR FRENCH observed that is a way to defray the cost the state
is incurring for providing insurance for the child.
MR. MALLONEE said in most cases it does that and it also
provides the custodial parent cash to pay medical expenses.
CHAIR FRENCH asked if the money has to be spent on medical
expenses or if it's inferred that it will be used for medical
issues.
MR. MALLONEE said the assumption is that the money would be
spent on medical care, but it's not necessarily the case and it
can't be enforced. Through the years some have pushed for an
accounting of how child support is spent, but the courts have
ruled against that.
1:44:56 PM
SENATOR WIELECHOWSKI asked if this would require someone to get
health insurance for their child.
MR. MALLONEE said child support orders already require medical
insurance if it's reasonably available. If it's not reasonably
available there is no requirement. If an individual does get
health insurance there is a credit or debit depending on which
party gets it.
SENATOR WIELECHOWSKI asked what this really adds.
CHAIR FRENCH said it sounds like this is reaching a middle
ground. Currently if an individual doesn't provide insurance
because it's too costly, there is no contribution to the child's
medical bills.
MR. MALLONEE said that's basically true although other parts of
the statute talk about splitting the cost of uncovered medical
expenses.
MR. MALLONEE continued the sectional analysis as follows:
Section 2 adds the Virgin Islands and Indian tribes to
the definition of "state" in the Uniform Interstate
Family Support Act statute that Alaska has.
Section 3 amends the order of support provision to
include both parents, medical support, and insurance.
… this is just a definition … where we put cash
medical support into that particular statute and the
"or both" in the statute.
1:47:25 PM
Section 4 adds medical support to provisions
authorizing the initiation of administrative action to
establish a duty of support. Again, that's basically
statute authorizing us to establish support. This
allows us to establish that cash medical support
order.
Section 5 amends periodic review of support orders to
require [a] three year cycle of review. This is
another federal requirement … we review orders at the
request of the parties. However, the federal
requirement wants the orders reviewed at least once
every three years. And so this simply inserts a
section in there requiring us to do those within that
three year federal cycle.
Section 6 deletes motion requirement for correcting an
administrative mistake in a support order. Basically,
the way that statute reads right now, the only person
who could raise the question of a clerical [error] in
an administrative support order was, in fact, the
obligor. This changes it so that [if] either party or
the state itself finds a clerical error they can
administratively fix it.
CHAIR FRENCH commented that it makes sense; anyone who is aware
of an error should be able to make a motion to fix it.
1:48:59 PM
SENATOR WIELECHOWSKI referred to the three year cycle for review
in Section 5 and asked if these reviews will significantly
burden the courts.
MR. MALLONEE said in the cases that are enforced through CSSD,
either party may ask for a review and modification. When that
happens CSSD starts the process of doing a modification.
Unfortunately, the way it's done now is that a new modification
will be started anytime a party makes a request - even if the
last modification was just three months ago. Nonetheless, CSSD
does the modification in-house if it's an administrative order.
If it's a court order, CSSD prepares the information for the
attorney general's office and they motion to the court to do the
modification.
SENATOR WIELECHOWSKI asked how often the court sua sponte asks
for a review. He can't imagine it would happen very often.
MR. MALLONEE said it doesn't happen at all.
SENATOR WIELECHOWSKI said this requires the courts to calendar
three years forward.
MR. MALLONEE clarified that the requirement is for CSSD to do
the review.
SENATOR WIELECHOWSKI questioned why there isn't a fiscal note
for that.
MR. MALLONEE explained that CSSD does reviews based on a request
and he doesn't believe the number of requests will change. The
current automated system maintains income information on
individuals who have child support orders, and once a year it
checks to see if each order appears to meet the qualifications
for a modification. If it does appear to qualify, both parties
are notified and they can each or together decide whether or not
to do a modification. As long as this continues, CSSD will
probably meet the requirement for the three-year modification.
This probably won't increase the workload.
1:52:23 PM
MR. MALLONEE continued the sectional analysis as follows:
Section 7 deletes a motion requiring vacating a
support order that is based on the default amount. …
the current statute says upon motion of the obligor. …
the way this would be changed, we would simply want to
be able to do it based on either our own or the
obligor or the custodial parent's request.
SENATOR WIELECHOWSKI worried about the implications of changing
decisions without having to go to court. He asked if he expects
this to be controversial because he can't imagine that the
obligors will be happy.
MR. MALLONEE said it's done now, but the obligor must make the
request. Most of the time the obligor appreciates it; the order
will probably go down because it was based on a default amount
rather than the ability to pay. Although a child support order
should be based on a person's ability to pay, it's actually
based on: department of labor statistics, gender and age within
the state, AFDC needs or sanctions based on the highest amount
for a particular order at a particular time. These are based on
some amount other than the obligor's actual ability to pay.
CHAIR FRENCH noted that Senator Davis had joined the committee.
For clarification purposes, he explained that the obligor is the
person who is providing the child support and the obligee is the
person receiving it.
1:55:24 PM
MR. MALLONEE added that they are also referred to as custodial
parent and noncustodial parent. He continued with the sectional
analysis as follows:
Section 8 redefines "arrearage" for child support
purposes. Basically, that now includes the cash
medical support.
Section 9 amends the definition of "support order" to
include cash medical support. I think that's self-
explanatory; it just puts that payment of cash medical
support in that definition.
Section 10 amends garnishment provision to include
insurance and cash medical support. Again, [it] just
brings that statute in alignment to include the cash
medical support.
Section 11 amends the Alaska Native family assistance
program to include obligations for cash medical
support. So it just adds that cash medical support
into the other types of support.
Section 12 provides an indirect court rule amendment
to Civil Rule 90.3, Alaska Rules [of Civil Procedure]
for changes made in the bill. That's to include the
cash medical support in 90.3.
Section 13 makes bill changes applicable to child
support actions filed on or after the bill's effective
date.
Section 14 authorizes the Department of Revenue to
proceed to adopt regulations needed under the bill. We
will adopt regulations to further finish out the cash
medical support and medical support itself.
Section 15 provides for a conditional effect for the
court rule amendment in sec.12 only for two-thirds
[majority vote]. That's a change in the court rule.
Section 16 makes Section 14 effective immediately.
date.
Section 17 provides for a July 1, 2009 [effective date
for all other bill sections.]
CHAIR FRENCH thanked him for the overview and asked him to
remain online to answer questions as they may come up.
1:57:49 PM
EDDIE BRAKES, IV-D Director, Tribal Child Support Unit (TCSU),
Central Council Tlingit and Haida Indian Tribes of Alaska, said
he is testifying in support of SB 96 and Section 2 in particular
to add the Virgin Islands and Indian tribes to the definition of
"state" under AS 25.25.101(19).
He explained that IV-D child support programs receive federal
funding under Title IV-D of the Social Security Act. The final
rule for tribal child support programs was published in March
2004 and provides regulations for tribes to receive federal
funding to operate IV-D child support programs. The State of
Alaska and CCTHITA both operate approved federally funded
programs. Although the state and CCTHITA work together and
cooperate, CCTHITA receives no funding from the state to operate
its child support program.
In March 2007 CCTHITA received federal funds to operate a
comprehensive IV-D program and the state Child Support Services
Division transferred approximately 700 child support cases to
the tribe. Federal regulations for IV-D programs require states
and tribes to work cooperatively to provide a full range of
services but that's not available in Alaska because the phrase
"Indian tribe" is not included in the statutory definition of
"state." SB 96 will include that definition. According to the
sponsor statement this will bring the state into compliance with
the federal child support regulations and $17 million in federal
funding won't be jeopardized.
2:01:25 PM
CHAIR FRENCH asked if failing to adopt the language to include
the Virgin Islands and Indian tribes would, by itself,
jeopardize $17 million in federal aid.
MR. BRAKES deferred the question to the council attorney.
JESSIE ARCHIBALD, Attorney, Tribal Child Support Program, said
Mr. Brakes' statement about risking $17 million in federal
funding was his understanding of the language in the sponsor
statement. The Child Support Services Division, not the tribe,
is the agency that would be able to answer that question.
CHAIR FRENCH said he would put his question on hold and asked if
she had testimony.
MS. ARCHIBALD said she is here to provide support and testimony
as questions arise.
2:04:04 PM
ROBERT W. LOESCHER, Subcommittee Chair, State and Tribal
Relations, Judiciary Committee, said CCTHITA represents 27,000
enrolled tribal members. The tribe president and executive
council have passed a resolution supporting this provision and
SB 96. They appreciate the efforts of this committee to address
the broader issues of child support.
CHAIR FRENCH noted that Mr. Loescher is a well-known and
respected Tlingit leader and he thanked him for taking time to
come and speak to the committee.
2:05:45 PM
CHAIR FRENCH found no one else who wanted to testify and closed
public testimony.
SENATOR MCGUIRE questioned who decides on what the medical
support will be. There is preventative medical support to offer
to children and there is emergency support, but there is also a
range of support in between. Within the family unit there may or
may not be disagreement on appropriate and necessary medical
care for a child and her concern is how that decision will be
made.
2:07:09 PM
MR. MALLONEE said the bill only addresses cash medical support.
It would be the parents' responsibility to decide what the
medical support or procedure would be. DOR will only be involved
with establishing the cash amount.
CHAIR FRENCH summarized that CSSD will not vet, veto or analyze
the procedures that the custodial parent decides on. It is just
a mechanism to give the parent cash support from the obligor.
MR. MALLONEE said agreed.
SENATOR MCGUIRE suggested the department may want to consider
the implications of her question. Child support is very formula
driven and that formula was arrived at by a lot of subjective
decisions about what it takes to support a child's life. Some
cost more than others. The noncustodial parent pays a formulaic
amount of child support and there are criminal penalties for
nonpayment. This provision broadens the obligations for the
noncustodial parent and her concern is that parents who are
separated may not agree on treatment even if they have joint
custody. Parents living in the same family unit have reasonable
differences about what is affordable and what is necessary. If
there isn't a vetting process, problems may arise. For example,
if medical payments are repeatedly expended on behalf of a child
by one parent, they could be outside the realm of the
noncustodial parent's ability to provide. She asked if there
have been discussions to that end.
2:11:09 PM
STACY STEINBERG, Assistant Attorney General, Civil Division,
Collections and Support Section, Department of Law (DOL),
recapped the first part of the question, which deals with when
the custodial parent incurs medical costs and decides what
medical care the child will receive. Typically, uninsured
medical costs are split equally and there is a provision that
one parent can go to court and ask for the other parent to pay
half of the bill if they haven't already volunteered to do so.
Child support orders do address how uncovered medical expenses
should be split. Responding to the second part of the question,
she said the way the cash medical support is calculated will be
addressed through regulation. It will probably be a formula
similar to Civil Rule 90.3.
SENATOR MCGUIRE said it's serious business when the Legislature
passes policy measures that have associated criminal penalties
and definite financial consequences. As a body they are obliged
to think about what it means. Things that sound good on paper
may need more work when put into practice. She appreciates that
regulations will work, but often it's at that level that you
drill down on the delicate policy matters. She said she would
like to hear more about what the department envisions in the
regulation, including percentages and dollar amounts.
2:14:26 PM
CHAIR FRENCH said his question about whether or not failing to
adopt the language to include the U.S. Virgin Islands and Indian
tribes would, by itself, jeopardize $17 million in federal aid
is still on the table. Some people may see the phrase "Indian
tribe" in a state statute and focus on that. He's trying to make
a record of the necessity of including that phrase and the
financial consequences to the state for not doing so.
MR. MALLONEE said the child support program is federally
mandated and state operated. The federal government provides 66
percent of the funding and to secure that funding the state must
comply with Title IV-D of the Social Security Act and federal
regulations 45 CFR 300 and 310. Failure to meet any of the
requirements can jeopardize the federal portion of the child
support funding. Last year that amount was just over $17
million. The Alaska version of the Uniform Interstate Family
Support Act was enacted in 1995. In 1996 Congress passed
legislation mandating that states adopt the uniform act in order
to continue to receive the federal funds. The definitions in
Alaska's uniform family support act did not include the U.S.
Virgin Islands or Indian tribes. By inserting those two
entities, Alaska would meet that federal requirement to adopt
the Uniform Interstate Family Support Act as passed in 1996.
2:16:32 PM
CHAIR FRENCH said it sounds like the answer is yes.
MR. MALLONEE said, "Mr. Chairman, you're correct."
SENATOR MCGUIRE asked what money the state has lost so far.
MR. MALLONEE said nothing; the federal government has not
penalized the state to date. "This is our attempt to bring this
into compliance, which was just brought to our attention back
around July or August," he said.
SENATOR MCGUIRE said she assumes that if the phrase "Indian
tribe" does not remain in the bill, DOR will continue to fight
to get those federal funds.
MR. MALLONEE said yes, but since this was brought to their
attention they have asked for waivers and the federal government
has refused. He suspects the next step will be to send a letter
of sanction requiring the amendment or face the possibility of
loss of federal funding.
SENATOR MCGUIRE pointed out that, particularly with the new
administration, there will be a more concerted federal effort to
say that Indian tribes need to be recognized and in the
statutes. She doesn't have a problem with that, but the concern
that will play out in the Legislature and in the judiciary
committees in particular is the question of sovereignty. Whether
or not mentioning or describing Indian tribes as they currently
exist means a wholesale look at the issue of sovereignty of
Indian country and sovereignty of Indian tribes. She suggested
that as that discussion plays out, that's a place to discuss why
it's okay to include the phrase. Indian tribes exist. They exist
here in our state and they administer important social dollars
and programs. "They're an important part of Alaska's governing
structure, but this mentioning of it in this particular statute
to secure these dollars doesn't necessarily mean that it's part
of an entire relook at whether or not Indian country exists or
how tribes will have sovereignty or not in the state. Those are
things to consider," she said.
2:20:04 PM
CHAIR FRENCH said it's a valid comment. One of the reasons he's
holding the bill over is to give the committee time to mull
these changes.
SENATOR WIELECHOWSKI asked if the Governor supports the bill.
GINGER BLAISDELL, Director, Administrative Services, Department
of Revenue (DOR), said the Governor does support SB 96 and feels
it is important. She noted that she is working with the
Department of Law on an instructional brochure. It may include a
letter of intent to clearly describe how the definition of
"Indian tribe" would impact anything in the state. "At this
point, it does not impact anything other than clarifying Title
IV-D." She offered to provide copies of the brochure when it's
finished.
CHAIR FRENCH thanked her for providing that helpful information.
Finding no further questions, he announced he would hold SB 96
until Monday.
2:22:00 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 2:22 pm.
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