BILL ANALYSIS
C.S.S.B. 793
By: Harris (Goodman)
05-08-95
Committee Report (Substituted)
BACKGROUND
This bill implements several welfare reform proposals relating to
child support and medical support obligations. Several provisions
of the bill relate primarily to activities of the office of the
attorney general as the state agency designated to administer the
child support enforcement program under Part D of Title IV of the
federal Social Security Act ("Title IV-D"). Title IV-D funding for
required activities of the agency as prescribed by federal law
includes federal financial participation. This bill seeks to
maximize such funding and improve the system for delivery of
services throughout the state.
Article 4 of the bill implements required state laws relating to
medical support mandated by the federal Omnibus Budget
Reconciliation Act of 1993 (OBRA), which became effective in
September 1993, and requires states, as a condition of continued
receipt of federal Medicaid funds, to have in effect certain state
laws regarding medical child support. California and New York have
already implemented this legislation.
PURPOSE
The first three articles of the bill provide for several different
enhancements of child support services in Texas. Among its
principal provisions, the bill authorizes the attorney general to
work with appropriate federal, state, county and local officials in
developing and implementing, as funds other than state general
revenue permit, a statewide unified child support registry system
which would use automated processes for recording and tracking
child support orders, monitoring compliance with those orders, and
initiating enforcement actions when delinquency occurs. Through
contracts with the attorney general as the Title IV-D agency
counties would be able to participate in federal funding for their
child support services, to the extent federal regulations will
allow, whether the services are provided directly by county
agencies or through contract with private providers.
The bill also amends current statutory provisions for the employee
new hire reporting [ENHR] program to permit cooperative enhancement
and expansion of the database by the attorney general, the
Department of Human Services, the Workers' Compensation Commission
and the Texas Employment Commission. The amendment would also
expand the use of the program to the prevention of welfare,
workers' compensation and unemployment insurance fraud.
The bill provides for needed revisions of the administrative
processes for child support enforcement used by the attorney
general and domestic relations offices. The bill also requires the
adoption of a memorandum of understanding between the Texas
Department of Human Services and the attorney general regarding the
accuracy and completeness of information for use in enforcing child
support orders in welfare (AFDC) cases, and provides for
interagency cooperation and studies for the improvement of child
support services in Texas.
The fourth article of the bill is designed to: (1) avoid the loss
of all federal contributions to the Texas Medicaid program by
bringing Texas laws into compliance with federal requirements; (2)
protect the welfare of children by assuring that their health
insurance coverage is not lost or compromised due to the acts of
parents who divorce or do not marry; (3) shift the costs of these
childrens' health care from state taxpayers to the private sector,
thereby saving state funds. Provisions in this article also
specifically address concerns about possible conflicting
interpretations of the federally mandated language.
RULEMAKING AUTHORITY
The bill does not provide the attorney general with any additional
rule-making authority to implement the provisions of the first
three articles of the bill, but it clarifies existing rule making
authority by requiring the attorney general to adopt rules to
implement the provision for the establishment of the statewide
unified registry system.
Section 4.01, under Article 3.96-10 of Subchapter J, Chapter 3, the
Insurance Code, as added by this Act, provides authority for the
Commissioner of Insurance to make rules to further define unfair or
deceptive practices under that subchapter.
SECTION BY SECTION ANALYSIS
SECTION 1.01 Amends Chapter 231, Family, to add a new Section
231.0011 which authorizes the attorney general as the Title IV-D
agency, in coordination with the Texas Judicial Council, the Office
of Court Administration, the federal Office of Child Support
Enforcement, and state, county and local officials, to develop and
implement on a phased-in basis a statewide system for child support
and medical support enforcement, using federal, state, local, and
private resources, to the extent these resources are available,
which: (1) unifies state and county support registries; (2)
records and tracks all child support orders entered in the state;
(3) employs automated enforcement processes, including delinquency
monitoring; (4) incorporates existing enforcement resources to
maximize benefits from state and federal funding; and (5) ensures
accountability of all participants in the enforcement process,
including state, county and local officials, private contractors
and the judiciary.
Authorizes the attorney general to convene a workgroup
responsible for developing a process and time-table for the
implementation of a unified registry system and for reporting the
results of its work to the governor, lieutenant governor, speaker
of the house of representatives and the attorney general not later
than January 15, 1996.
Requires the attorney general: (1) to develop technical
standards and to identify federal requirements for participation in
the system and to apply for necessary federal waivers not later
than January 15, 1996; and (2) not later than June 1, 1996, to
produce a hardware and software procurement and implementation plan
for the phased-in implementation of the system.
Requires participating counties: (1) to enter into a contract
with the attorney general under which all new support orders shall
be treated as Title IV-D cases; (2) to comply with all pertinent
federal requirements; (3) to maintain the current level of county
funding for child support services included in the system; (4) to
monitor support orders for compliance and to initiate appropriate
enforcement action directly or by contract with private entities or
attorneys when a delinquency occurs.
Requires the attorney general to determine what, if any, of
program funds generated through other Title IV-D activities may be
passed through to participating counties and to develop in
cooperation with the counties and federal officials a cost
allocation methodology to assist counties in identifying county
contributions to the system which may be eligible for federal
financial participation.
Authorizes the attorney general: (1) to phase in the proposed
system, beginning in January, 1996, contingent upon the
availability of sufficient federal reimbursement and locally
generated funds; and (2) to adopt rules to implement the system.
SECTION 1.02. Amends Sections 231.109(a) and (d), Chapter
231, Family Code, to allow the Title IV-D agency to contract with
"private entities" in addition to private attorneys and political
subdivisions of the state to provide services in Title IV-D cases
and to clarify that an attorney employed "to provide Title IV-D"
services represents the interest of the state.
SECTION 1.03. Amends Chapter 231, Family Code, to add new
Section 231.113 which requires the Title IV-D agency, to the extent
possible, to enforce a child support obligation in an AFDC case
within one year of receiving necessary information from the Texas
Department of Human Services.
SECTION 1.04. Amends Section 231.202, Family Code, to delete
subpart (5) which allowed the Title IV-D agency to pay certain
mileage costs incurred by a sheriff or a constable, but placed the
provision in a section of the statute which required that the
county provide the state share of costs (currently about 1/3).
This provision has been moved in an amendment to Section 231.209,
Family Code, under Section 1.05 of the bill, to reflect the
original intent of the 73rd Legislative that the Title IV-D agency
to bear fully the reimbursement of the costs.
SECTION 1.05. Amends Section 231.209, Family Code, to add a
provision currently contained in subpart (5) of Section 231.202,
Family Code (deleted from that code section under Section 1.04 of
this bill), to allow the Title IV-D agency to pay the full amount
of reimbursement to a sheriff or constable of mileage "or other
reasonable travel" costs to execute an out-of-county capias or
warrant, as was the intent of the 1993 amendments which authorized
this reimbursement.
SECTION 1.06. Amends Section 231.304, Family Code, to expand
the Employer New Hire Reporting (ENHR) program enacted by the 73rd
Legislature by involving the Texas Department of Human Services,
the Workers' Compensation Commission and the Texas Employment
Commission in the development of the program and by extending the
use of the program and its database to purposes, including the
prevention of fraud, relating to the administration of unemployment
benefits, workers' compensation, child support, or public
assistance programs.
Requires the Title IV-D agency to work with the Texas
Employment Commission, the Texas Workers' Compensation Commission,
the comptroller, the Texas Department of Commerce, the secretary of
state, and employer groups to encourage employer participation in
the program.
SECTION 1.07. Amends Chapter 231, Family Code, to add new
Section 231.305 requiring the Title IV-D agency and the Texas
Department of Human Services to adopt by rule a memorandum of
understanding for the development of procedures governing child
support enforcement in public assistance cases.
SECTION 2.01. Amends Section 101.005, Family Code, to remove
as inappropriate the requirement that a "child support review
officer" have received family law mediation training and to
substitute that such officer be "trained," since the function of
the review officer is not mediation.
SECTION 2.02. Amends Section 102.007, Family Code, to
authorize a political subdivision under contract with the attorney
general to provide Title IV-D child support services to bring any
appropriate legal action under Title 5 of the Family Code.
SECTION 2.03. Amends Subchapter B, Chapter 231, Family Code,
to add new Section 231.306 encouraging the Title IV-D agency to use
its new automated child support enforcement system, once the system
is fully operational, to maximize the collection of medical support
and establish cash medical support orders for Medicaid-eligible
children for whom private health insurance is not available.
SECTION 2.04. Amends Subchapter E, Chapter 231, Family Code,
and makes the following changes in sections, subsections, and parts
of sections relating to the administrative child support review
process:
Sec. 231.401. PURPOSE. Clarifies the purpose of the
process, which is to resolve routine cases through
agreement of the parties or by uncontested orders.
Sec. 231.402. AGREEMENTS ENCOURAGED. Deletes reference
to "mediation," since most cases will be resolved
without mediation.
Sec.231.405. INITIATING CHILD SUPPORT REVIEW. Deletes
subsection 231.405(a) as unnecessary. and amends
subsection 231.405(b) to clarify that notice of a review
shall be sent to each party entitled to notice.
Sec. 231.406. CONTENTS OF NOTICE OF CHILD SUPPORT
REVIEW. Amends the required contents of a notice of
child support review to clarify existing provisions:
that a recipient of the notice may be represented by
legal counsel in a review process or court hearing and
that non-participation of the recipient will not prevent
the completion of the review process.
Sec. 231.407. NOTICE BY MAIL. Deletes, as unnecessary
and confusing, current subsection (b) requiring three
days to be added to time in which a person is to respond
to a notice served by mail and redesignates current
subsection (c) as subsection (b).
Sec. 231.408. ADMINISTRATIVE SUBPOENA IN CHILD SUPPORT
REVIEW. Redesignates current text as a subsection
231.408(a) and creates new subsection 231.408(b) to
authorize a court to compel compliance with an
administrative subpoena and award attorney fees and
costs to a child support agency enforcing a subpoena.
Sec. 231.409. SCHEDULING AND CONDUCTING NEGOTIATION
CONFERENCE. Changes section heading; deletes current
requirement that in order to request a negotiation
conference a party must complete an affidavit of
financial resources. Authorizes a conference to be held
by telephone or video conference. Permits a conference
to be adjourned in order to permit mediation of issues
that cannot be resolved during a negotiation conference.
Sec. 231.410. TIME FOR NEGOTIATION CONFERENCE; NOTICE
REQUIRED. Deletes, as unnecessary, subsection
231.410(a) specifying that a conference must be
conducted not later than the 45th day after the date all
notices of the review have been sent to the parties and
redesignates subsection 231.410(b) as the section text
requiring that all parties entitled to notice of the
conference be notified not later than the 10th day
before the date of the conference.
Sec. 231.411. RESCHEDULING NEGOTIATION CONFERENCE;
NOTICE REQUIRED. Amends to permit rescheduling or
adjournment of a negotiation conference at the
discretion of the reviewing officer.
Sec. 231.412. INFORMATION REQUIRED TO BE PROVIDED AT
NEGOTIATION CONFERENCE. Clarifies and reconciles the
information to be given participants in a negotiation
conference.
Sec. 231.414. RECORD NOT REQUIRED. Clarifies that
documentary evidence relied upon by a review officer,
together with the administrative order, shall constitute
a sufficient record of the proceedings.
Sec. 231.415. ISSUANCE OF CHILD SUPPORT REVIEW ORDER
OR FINDING THAT NO ORDER SHOULD BE ISSUED; EFFECT.
Clarifies the procedures to be followed if a negotiation
conference does not result in an agreement.
Sec. 231.416. VACATING CHILD SUPPORT REVIEW ORDER.
Amends subsection 231.416(b) relating to the vacating
of a child support review order by a child support
review officer, to specify that a new negotiation
conference "may," instead of "shall," be scheduled and
that the review officer may determine, and give notice
of that determination, that a child support review order
should not be issued.
Sec. 231.417. CONTENTS OF CHILD SUPPORT REVIEW ORDER.
Adds new subsection (d) requiring a child support review
order which establishes or modifies the amount of
previously ordered support must contain specific
findings and new subsection (e) allowing the court to
resolve issues relating to the conservatorship or
possession of a child if a review order so specifies.
Sec. 231.418. ADDITIONAL CONTENTS OF AGREED CHILD
SUPPORT REVIEW. Clarifies the procedure to be followed
when one or more parties agree to a child review order
and the contents of the order. Corrects information in
mandated warnings.
Sec. 231.420. CONTENTS OF PETITION FOR CONFIRMATION;
DOCUMENTARY EVIDENCE TO BE FILED WITH PETITION. Makes
stylistic changes and clarifies that exhibits
accompanying a petition filed with the clerk do not have
to be served on the parties, although the petition must
identify the exhibits.
Sec. 231.421. DUTIES OF CLERK OF COURT. Makes
stylistic changes and provides that the child support
agency, not the clerk, shall mail a copy of the agreed
child support review order to the parties; that the copy
of the petition sent the parties contain the date of
filing; that the support agency must file a certificate
of service showing the date of mailing to each party;
and that the fees to be collected by the clerk are those
identified in Subchapter C, Chapter 231, Family Code.
Sec. 231.422. FORM TO REQUEST A COURT HEARING. Deletes
subpart 231.422(b)(1) which requires that a copy of the
form to request a hearing be attached to each party's
copy of the petition for confirmation of a child support
review order and renumbers the subsequent subparts.
Sec. 231.423. TIME TO REQUEST A COURT HEARING[; HEARING
SUA SPONTE]. Deletes "HEARING SUA SPONTE" from the
section heading and subsection (b), making current
subsection (a), as amended by the bill, the text of the
section; amends the text of current subsection (a) to
clarify that a request for a hearing on a support review
order should be filed no later than the 20th day after
the order is served or mailed.
Sec. 231.424. CONFIRMATION WITHOUT HEARING. Clarifies
that confirmation of a child support review order shall
be made not later than the 30th day after the date a
petition which includes waivers by all parties has been
filed or, where such waivers are not included in the
petition, the date the last party to be served with
citation has been served.
Sec. 231.425. EFFECT OF REQUEST FOR HEARING; PLEADING.
Clarifies that a request by a party for a hearing must
be timely filed and that the review order and petition
for confirmation constitute a sufficient pleading by the
child support agency; specifies that a request for
hearing may limit the scope of the de novo hearing by
identifying the issues in dispute.
Sec. 231.426. TIME FOR COURT HEARING. Requires a
hearing on the confirmation of a child support review
order not later than the 30th day after the day the last
party to be served has filed a timely request for a
hearing.
Sec. 231.427. ORDER AFTER HEARING; EFFECT OF
CONFIRMATION ORDER. Changes "final judgment" to "final
order" of the court.
Sec. 231.428. SPECIAL CHILD SUPPORT REVIEW PROCEDURES
RELATING TO ESTABLISHMENT OF PATERNITY. Substitutes
"parentage" for "paternity" in the heading and text of
the section and authorizes the child support agency to
file a child support review order with a request for
parentage testing if either party fails or refuses to
participate in administrative parentage testing;
requires the court to follow the appropriate procedures
and allows the imposition of sanctions in order to
obtain compliance with the testing order; prohibits the
confirmation of a review order until an opportunity for
parentage testing has been provided.
Sec. 231.431, "STUDY OF CHILD SUPPORT REVIEW PROCESS,"
is added, requiring the attorney general to undertake
a study of the cost-effectiveness of the child support
review process compared with other enforcement
mechanisms and to report the results of the study to the
governor and the legislature not later than September
1, 1996.
SECTION 2.05. Amends Section 71.035(a), Government Code, to
require the Texas Judicial Council to implement a tracking system,
using information reported each month by district and county clerks
to the Office of Court Administration, in order to ensure
accountability for counties and courts participating in the
statewide integrated system for child support and medical support
enforcement proposed by this bill.
SECTION 3.01. Requires the attorney general to establish a
work group which would monitor progress toward the implementation
of the proposed statewide integrated system for child support and
medical support enforcement and would report its findings and
recommendations to the attorney general and notify the governor,
the comptroller, and the legislature of the filing of the report
not later than September 1, 1996, and annually thereafter.
SECTION 3.02. Requires the attorney general and the Texas
Department of Health to negotiate an agreement for the payment of
cash incentives to the attorney general for enrolling Medicaid-eligible children in private health insurance plans, including a
portion of the state share of costs recovered or saved as a result
of the attorney general's efforts, and to report to the legislature
the results of negotiations not later than October 1, 1996.
SECTION 3.03. Requires the attorney general, the state
medicaid administrator, and the Insurance Commission to initiate a
study for the establishment of a health insurance purchasing
alliance to provide coverage for children for whom a child support
obligation is established or enforced in a Title IV-D case and to
provide a report of the results of the study by not later than
October 1, 1996, to the governor, the lieutenant governor, speaker
of the house of representatives; attorney general, and commissioner
of health and human services.
SECTION 3.04. Encourages the attorney general to study the
cost-effective use of private contractors in child support services
and to consider the use of private contractors when a cost analysis
indicates that a private contractor could deliver services as
effectively as the Title IV-D agency; requires the attorney general
to report the results of efforts under this section and to notify
the governor, the comptroller, and the legislature of the filing of
the report not later than December 1, 1996.
SECTION 4.01. Adds a new Subchapter J to Chapter 3, Insurance
Code, to comply with federal mandates relating to medical support
for children.
Article 3.96-1 defines "insurer" broadly to include health
maintenance organizations (HMOs) and other benefit plans, as
required by provisions of the federal Omnibus Budget Reconciliation
Act of 1993 (OBRA '93), codified at 42 U.S.C. 1396-1(b). Other
definitions in this section are for the purpose of this subchapter.
Article 3.96-2 prohibits insurers from denying children
enrollment in a health insurance plan for any of five specified
reasons including preexisting conditions. This is consistent with
federal law, which prohibits Employee Retirement Income Security
Act (ERISA) plans from excluding coverage for adopted children with
preexisting conditions. See 29 U.S.C. 1169(c)(2). Subsections 2,3,
and 4 are taken almost verbatim from 42 U.S.C. 1396g-1(a)(4).
Subsection 5 restates the prohibition of discrimination against the
Title XIX agency, which is required by 42 U.S.C. 1396g-1(a)(4) and
by Article 3.96-5 of this Act.
Article 3.96-3 prohibits enrollment period restrictions and
requires an insurer to enroll a child on application of the
custodial parent, or a child support agency, if the primary insured
parent fails or refuses to enroll the child. This provision is
required by 42 U.S.C. 1396g-1(a)(2)(A) & (B).
Article 3.96-4 prohibits disenrollment of a child unless the
court order is terminated or the child is enrolled in comparable
health coverage as required by 42 U.S.C. 1396-1(a)(2)(C) and
clarifies that the eligibility of a child for enrollment in a
health plan does not terminate because the parent's eligibility has
terminated. (The federal language relating to cancellation or
nonrenewal by an insurer caused some concern because it does not
explicitly deal with the situation in which dependent coverage for
the employee's dependent has ceased because of termination of
employment. The intent of the federal statute was to require
coverage for eligible children. To clarify, subsection (b), Art.
3.96-4 states that an "eligible" child "does not include a child as
to whom eligibility has terminated because the parent eligible for
dependent health coverage is no longer eligible for such coverage."
Article 3.96-5 allows a child support agency or custodial
parent to transition to continuation or conversion health coverage,
if such provision(s) is present in the original coverage, when the
employee loses eligibility for dependent health coverage (e.g.,
employee no longer employed by employer). This article follows a
national trend for permitting the medicaid agencies to consider
continuation of coverage for children as an alternative to
switching to the medicaid program. Many custodial parents would
similarly appreciate the opportunity to continue coverage.
Article 3.96-6 prohibits discrimination against the Title XIX
agency as required by 42 U.S.C. 1396g-1(a)(4). This article also
adds a requirement that insurers provide information to the Title
XIX agency to facilitate reimbursement.
Article 3.96-7 specifies the rights of custodial parents
related to filing claims and receiving information and payments (or
assigning payments to a provider) on claims, pursuant to 42 U.S.C.
1396g-1(a)(5).
Article 3.96-8 clarifies the prohibition against service area
restrictions by forbidding contract provisions which deny, limit or
reduce payments for claims of a child who lives outside the
coverage area, pursuant to 42 U.S.C. 1396g-1(a)(1)(C).
Article 3.96-9 provides penalties and remedies for the failure
of an insurer to comply with this subchapter equivalent to the
remedies provided to injured parties under Chapter 21 of the
Insurance Code.
Article 3.96-10 provides rule making authority for the
Commissioner of Insurance develop rules to implement this
subchapter including a further definition of unfair or deceptive
practices under this subchapter.
SECTION 4.02. Amends Section 101.012 of the Family Code to
expand the definition "employer" to include, "for purposes of
enrolling dependents in a group health insurance plan, a union,
trade association, or other similar organization."
SECTION 4.03. Amends Section 154.184, Family Code, by
eliminating the provision which permits employers to allow
employees to "veto" a child's enrollment.
SECTION 4.04. Amends Section 154.186, Family Code, to provide
for employer notice. The section also eliminates the requirement
that the clerk "certify" a copy of the order, since this step
serves no useful purpose, adds costs, and slows the process.
SECTION 4.05. Amends Section 154.187, Family Code, by
implementing the mandate for employer enrollment in certain
circumstances and the prohibition against enrollment season
restrictions, as required by 42 U.S.C. 1396g-1(a)(3); also
eliminates the reference to "enrollment periods" because enrollment
season restrictions are prohibited by 42 U.S.C. 1396g-1(a)(3); adds
Subsection 154.187(g), to clarify that an employer under a medical
support order is subject to the provisions generally applicable to
a wage withholding order or writ, which is already implied in
current law and assumed by most practitioners.
SECTION 4.06. Replaces Section 154.192, which provided a
geographical services area exemption for HMOs, with new language
enacting the OBRA-mandated prohibition against disenrollment;
clarifies that the employer is not required to maintain coverage if
the employee or member ceases to be eligible for dependent
coverage.
SECTION 4.07. Amends Family Code §158.206(a) to clarify that
an employer has no liability to the obligor for complying with a
medical support order.
SECTION. 5.01. Effective date: September 1, 1995, except
that: (1) Section 4.01 applies only to an insurance policy or
evidence of coverage delivered, issued for delivery, or renewed on
or after January 1, 1996; (2) the office of the attorney general
may phase in the proposed statewide integrated system for child and
medical support enforcement, as provided in Section 1.01 of the
Act, to the extent funds and federal reimbursement are available;
(3) the Office of Court Administration may phase in the
implementation of the monthly report, as provided in Section 2.05
of the Act, on the performance of counties and courts in the
operation of the proposed statewide system, to correspond with the
phased implementation of that system; and (4) the implementation of
any part of this Act requiring federal waivers shall be delayed
until such waivers are obtained. Provides that all funds received
from the federal government as reimbursement relating to the
statewide integrated system established by Section 1.01 of the Act
be in excess of any amount appropriated by the 74th Legislature to
the attorney general for the fiscal biennium ending August 31,
1997.
SECTION. 5.02. Requires the attorney general to provide the
legislature not later than December 1, 1996, an estimate of the
cost savings to the state and the effectiveness of the expansion of
child support enforcement services and privatization efforts.
SECTION 5.03. Requires the attorney general as the Title IV-D
agency, in conjunction with the Texas Department of Human Services,
to develop and implement a plan for assigning a representative of
the attorney general to work with department eligibility workers,
only if increased support collections in public assistance cases
justifies the implementation of the plan; requires the attorney
general to complete the plan by not later than October 1, 1995, and
to notify the governor, the lieutenant governor, and speaker of the
house of representatives of the filing of the completed plan;
requires the attorney general and the Texas Department of Human
Services to prepared the initial memorandum of understanding
required by Section 1.06 of the Act, by not later than December 1,
1995.
SECTION 5.04. Provides that changes in the child support
review process under Chapter 231, Family Code, effected by this Act
apply only to a review for which notice is given on or after the
effective date of the Act.
SECTION 5.05. Provides that Section 3.01 of the Act expires
on September 2, 1997, and Sections 3.02(b) and 3.03 expire on
January 1, 1997.
SECTION 5.06. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The House Committee Substitute conforms the Senate Bill to the
House companion bill, C.S.H.B.2664, by deleting a new subsection
(l) to Family Code Section 231.011 which was added by the Senate
Jurisprudence Committee, and by restoring a reference in Section
1.06 to Section 14.061 of the Family Code, which the Senate version
had changed to reference Subchapter D, Chapter 154 of the
recodified Family Code.
SUMMARY OF COMMITTEE ACTION
S.B. 793 was considered in a formal meeting on May 8, 1995. The
committee considered a complete substitute which was adopted
without objection. The committee reported the bill favorably as
substituted with the recommendation that it do pass and be printed
by a record vote of 8 ayes, 0 nays, 0 pnv, 1 absent.