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House Bill 3094 History
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ENROLLED
H. B. 3094
(By Delegates Staton, Mahan, Brown, Webster and Amores)
[Passed April 9, 2005; in effect ninety days from passage.]
AN ACT to repeal §48-14-419 of the code of West Virginia, 1931, as
amended; to repeal §48-16-308 of said code; to repeal §48-18-
109 and §48-18-127 of said code; to amend and reenact §48-17-
101 of said code; to amend and reenact §48-18-103, §48-18-108,
§48-18-112, §48-18-113, §48-18-117
, §48-18-118, §48-18-119,
§48-18-121 of said code; and to amend and reenact §48-19-102
said code, all relating to child support enforcement;
repealing authority of the West Virginia Support Enforcement
Commission to promulgate rules; repealing certain duties of
the commission; repealing authority of Bureau of Child Support
Enforcement to contract for certain services; repealing
authority of commission to adopt form to identify support
payments; increasing the number of members on the Commission;
altering the organization of certain Bureau employees;
removing commission authority to promulgate fee rules;
authorizing the Commissioner of the Bureau of Child Support Enforcement to cooperate with other states in the enforcement
of child support; moving certain rulemaking authority from the
Commission to the Commissioner; removing commission authority
to require certain bonding requirements of Bureau employees;
moving authority from Commission to the Commissioner relating
to collecting child support from state and federal taxes;
revising requirements relating to withholding child support
payments from the Bureau of Employment Programs; and removing
geographic delineations for certain Bureau attorneys.
Be it enacted by the Legislature of West Virginia:
That §48-14-419 of the code of West Virginia, 1931, as
amended; to repeal §48-16-308 of said code; to repeal §48-18-109
and §48-18-127 of said code; to amend and reenact §48-17-101 of
said code; to amend and reenact §48-18-103, §48-18-108, §48-18-112,
§48-18-113, §48-18-117, §48-18-118, §48-18-119, §48-18-121 of said
code; and to amend and reenact §48-19-102 said code, all to read as
follows:
ARTICLE 17: WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION
§48-17-101. Creation of Support Enforcement Commission; number of
members.
The West Virginia Support Enforcement Commission, consisting
of eight members, is hereby created in the Department of Health
and Human Resources and may use the administrative support and
services of that department. The Commission is not subject to
control, supervision or direction by the Department of Health and Human Resources, but is an independent, self-sustaining
commission that shall have the powers and duties specified in
this chapter.
The Commission is a part-time commission whose members
perform such duties as specified in this chapter. The ministerial
duties of the Commission shall be administered and carried out by
the Commissioner of the Bureau for Child Support Enforcement,
with the assistance of such staff of the Department of Health and
Human Resources as the Secretary may assign.
Each member of the Commission shall devote the time
necessary to carry out the duties and obligations of the office
and the seven members appointed by the Governor may pursue and
engage in another business, occupation or gainful employment that
is not in conflict with the duties of the Commission.
While the Commission is self-sustaining and independent, it,
its members, its employees and the Commissioner are subject to
article nine-a of chapter six, chapter six-b, chapter twenty-
nine-a and chapter twenty-nine-b of this code.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT
§48-18-103. Organization and employees.
(a) The Commissioner shall organize the work of the Bureau
in such offices or other organizational units as he or she may
determine to be necessary for effective and efficient operation.
(b) The Commissioner shall employ a sufficient number of
employees in the position of Bureau for Child Support Enforcement attorney so as to provide for the effective and efficient
operation of the Bureau for Child Support Enforcement. The Bureau
for Child Support Enforcement attorneys shall be distributed
geographically as determined by the Commissioner.
(c) The Secretary may transfer employees and resources of
the Department to the Bureau for Child Support Enforcement as may
be necessary to fulfill the duties and responsibilities of the
Bureau under this chapter: Provided, That the Secretary may not
transfer employees of other divisions and agencies within the
Department to the Bureau for Child Support Enforcement without a
prior finding that the office or position held by the employee
may be eliminated and until the office or position is, in fact,
eliminated.
(d) The Commissioner, if he or she deems such action
necessary, may hire legal counsel for the Division,
notwithstanding the provisions of section two, article three,
chapter five of this code or any other code provision to the
contrary, or may request the Attorney General to appoint counsel
who shall perform such duties as may be required by the Bureau.
The Attorney General, in pursuance of such request, may select
and appoint counsel to serve during the will and pleasure of the
Attorney General, and shall be paid out of any funds allocated
and appropriated to the Child Support Enforcement Fund.
(e) The Commissioner may employ such staff or employees as
may be necessary to administer and enforce this chapter.
§48-18-108. Fees.
(a) When the Bureau for Child Support Enforcement provides
child support collection services either to a public assistance
recipient or to a party who does not receive public assistance,
the Bureau for Child Support Enforcement shall, upon written
notice to the obligor, charge a monthly collection fee equivalent
to the full monthly cost of the services, in addition to the
amount of child support which was ordered by the court. The fee
shall be deposited in the Child Support Enforcement Fund. The
service fee assessed may not exceed ten percent of the monthly
court-ordered child support and may not be assessed against any
obligor who is current in payment of the monthly court-ordered
child support payments: Provided, That this fee may not be
assessed when the obligor is also a recipient of public
assistance.
(b) Except for those persons applying for services provided
by the Bureau for Child Support Enforcement who are applying for
or receiving public assistance from the Division of Human
Services or persons for whom fees are waived pursuant to a
legislative rule promulgated pursuant to this section, all
applicants shall pay an application fee of twenty-five dollars.
(c) Fees imposed by state and federal tax agencies for
collection of overdue support shall be imposed on the person for
whom these services are provided. Upon written notice to the
obligee, the Bureau for Child Support Enforcement shall assess a
fee of twenty-five dollars to any person not receiving public
assistance for each successful federal tax interception. The fee shall be withheld prior to the assistance for each successful
federal tax interception. The fee shall be withheld prior to the
release of the funds received from each interception and
deposited in the Child Support Enforcement Fund established
pursuant to section 18-107.
(d) In any action brought by the Bureau for Child Support
Enforcement, the court shall order that the obligor shall pay
attorney fees for the services of the attorney representing the
Bureau for Child Support Enforcement in an amount calculated at a
rate similar to the rate paid to court-appointed attorneys paid
pursuant to section thirteen-a, article twenty-one, chapter
twenty-nine of this code and all court costs associated with the
action: Provided, That no such award shall be made when the court
finds that the award of attorney's fees would create a
substantial financial hardship on the obligor or when the obligor
is a recipient of public assistance. Further, the Bureau for
Child Support Enforcement may not collect such fees until the
obligor is current in the payment of child support. No court may
order the Bureau for Child Support Enforcement to pay attorney's
fees to any party in any action brought pursuant to this chapter.
(e) This section shall not apply to the extent it is
inconsistent with the requirements of federal law for receiving
funds for the program under Title IV-A and Title IV-D of the
Social Security Act, United States Code, article three, Title 42,
Sections 601 to 613 and United States Code, Title 42, Sections
651 to 662.
§48-18-112. Cooperation with other states in the enforcement of
child support.
(a) The Bureau for Child Support Enforcement shall cooperate
with any other state in the following:
(1) In establishing paternity;
(2) In locating an obligor residing temporarily or
permanently in this state, against whom any action is being taken
for the establishment of paternity or the enforcement of child
and spousal support;
(3) In securing compliance by an obligor residing
temporarily or permanently in this state, with an order issued by
a court of competent jurisdiction against such obligor for the
support and maintenance of a child or children or the parent of
such child or children; and
(4) In carrying out other functions necessary to a program
of child and spousal support enforcement.
(b) The Commissioner shall, establish procedures necessary
to extend the Bureau for Child Support Enforcements' system of
withholding under. article fourteen of this chapter, so that such
system may include withholding from income derived within this
state in cases where the applicable support orders were issued in
other states, in order to assure that child support owed by
obligors in this state or any other state will be collected
without regard to the residence of the child for whom the support is payable or the residence of such child's custodial parent.
§48-18-113. Disbursements of amounts collected as support.
(a) Amounts collected as child or spousal support by the
Bureau for Child Support Enforcement shall be distributed within
two business days after receipt from the employer or other source
of periodic income. The amounts collected as child support shall
be distributed by the Bureau for Child Support Enforcement in
accordance with the provisions for distribution set forth in 42
U.S.C. §657. The Commissioner shall promulgate a legislative rule
to establish the appropriate distribution as may be required by
the federal law.
(b) Any payment required to be made under the provisions of
this section to a family shall be made to the resident parent,
legal guardian or caretaker relative having custody of or
responsibility for the child or children.
(c) The Commissioner shall maintain methods of
administration which are designed to assure that employees of the
Bureau for Child Support Enforcement or any persons employed
pursuant to a contract who are responsible for handling cash
receipts do not participate in accounting or operating functions
which would permit them to conceal in the accounting records the
misuse of cash receipts: Provided
, That the Commissioner may
provide for exceptions to this requirement in the case of
sparsely populated areas in this state where the hiring of
unreasonable additional staff in the local office would otherwise be necessary.
(d) No penalty or fee may be collected by or distributed to
a recipient of Bureau for Child Support Enforcement services from
the State Treasury or from the Child Support Enforcement Fund
when child support is not distributed to the recipient in
accordance with the time frames established herein.
(e) For purposes of this section, "business day" means a day
on which state offices are open for regular business.
§48-18-117. Obtaining support from federal tax refunds.
The Commissioner
shall, by legislative rule promulgated
pursuant to chapter twenty-nine-a of this code, place in effect
procedures necessary for the Bureau for Child Support Enforcement
to obtain payment of past due support from federal tax refunds
from overpayments made to the Secretary of the Treasury of the
United States. The Bureau for Child Support Enforcement shall
take all steps necessary to implement and utilize such
procedures.
§48-18-118. Obtaining support from state income tax refunds.
(a) The Tax Commissioner shall establish procedures
necessary for the Bureau for Child Support Enforcement to obtain
payment of past due support from state income tax refunds from
overpayment made to the Tax Commissioner pursuant to the
provisions of article twenty-one, chapter eleven of this code.
(b) The Commissioner
shall, establish procedures necessary
for the Bureau for Child Support Enforcement to enforce a support order through a notice to the Tax Commissioner which will cause
any refund of state income tax which would otherwise be payable
to an obligor to be reduced by the amount of overdue support owed
by such obligor.
(1) Such legislative rule shall, at a minimum, prescribe:
(A) The time or times at which the Bureau for Child Support
Enforcement shall serve on the obligor or submit to the Tax
Commissioner notices of past due support;
(B) The manner in which such notices shall be served on the
obligor or submitted to the Tax Commissioner;
(C) The necessary information which shall be contained in or
accompany the notices;
(D) The amount of the fee to be paid to the Tax Commissioner
for the full cost of applying the procedure whereby past due
support is obtained from state income tax refunds; and
(E) Circumstances when the Bureau for Child Support
Enforcement may deduct a twenty-five dollar fee from the
obligor's state income tax refund. This procedure may not require
a deduction from the state income tax refund of an applicant who
is a recipient of assistance from the Bureau for Children and
Families in the form of temporary assistance for needy families.
(2) Withholding from state income tax refunds may not be
pursued unless the Bureau for Child Support Enforcement has
examined the obligor's pattern of payment of support and the
obligee's likelihood of successfully pursuing other enforcement
actions, and has determined that the amount of past due support which will be owed, at the time the withholding is to be made,
will be one hundred dollars or more. In determining whether the
amount of past due support will be one hundred dollars or more,
the Bureau for Child Support Enforcement shall consider the
amount of all unpaid past due support, including that which may
have accrued prior to the time that the Bureau for Child Support
Enforcement first agreed to enforce the support order.
(c) The Commissioner of the Bureau for Child Support
Enforcement shall enter into agreements with the Secretary of the
Treasury and the Tax Commissioner, and other appropriate
governmental agencies, to secure information relating to the
social security number or numbers and the address or addresses of
any obligor, in order to provide notice between such agencies to
aid the Bureau for Child Support Enforcement in requesting state
income tax deductions and to aid the Tax Commissioner in
enforcing such deductions. In each such case, the Tax
Commissioner, in processing the state income tax deduction, shall
notify the Bureau for Child Support Enforcement of the obligor's
home address and social security number or numbers. The Bureau
for Child Support Enforcement shall provide this information to
any other state involved in processing the support order.
(d) For the purposes of this section, "past due support"
means the amount of unpaid past due support owed under the terms
of a support order to or on behalf of a child, or to or on behalf
of a minor child and the parent with whom the child is living,
regardless of whether the amount has been reduced to a judgment or not.
(e) The Bureau for Child Support Enforcement may, under the
provisions of this section, enforce the collection of past due
support on behalf of a child who has reached the age of majority.
(f) The procedure shall, at a minimum, provide that prior to
notifying the Tax Commissioner of past due support, a notice to
the obligor as prescribed under subsection (a) of this section
shall:
(1) Notify the obligor that a withholding will be made from
any refund otherwise payable to such obligor;
(2) Instruct the obligor of the steps which may be taken to
contest the determination of the Bureau for Child Support
Enforcement that past due support is owed or the amount of the
past due support; and
(3) Provide information with respect to the procedures to be
followed, in the case of a joint return, to protect the share of
the refund which may be payable to another person.
(g) If the Bureau for Child Support Enforcement is notified
by the Tax Commissioner that the refund from which withholding is
proposed to be made is based upon a joint return, and if the past
due support which is involved has not been assigned to the
Department of Health and Human Resources, the Bureau for Child
Support Enforcement may delay distribution of the amount withheld
until such time as the Tax Commissioner notifies the Bureau for
Child Support Enforcement that the other person filing the joint
return has received his or her proper share of the refund, but such delay shall not exceed six months.
(h) In any case in which an amount is withheld by the Tax
Commissioner under the provisions of this section and paid to the
Bureau for Child Support Enforcement, if the Bureau for Child
Support Enforcement subsequently determines that the amount
certified as past due was in excess of the amount actually owed
at the time the amount withheld is to be distributed, the agency
shall pay the excess amount withheld to the obligor thought to
have owed the past due support or, in the case of amounts
withheld on the basis of a joint return, jointly to the parties
filing the return.
(i) The amounts received by the Bureau for Child Support
Enforcement shall be distributed in accordance with the
provisions for distribution set forth in 42 U.S.C. §657.
§48-18-119. Obtaining support from unemployment compensation
benefits.
(a) The Commissioner shall enter into a written agreement
with the Bureau of Employment Programs for the purpose of
withholding unemployment compensation from individuals with unmet
support obligations being enforced by the Bureau for Child
Support Enforcement. The Commissioner shall, through direct
contact with the Bureau of Employment Programs, process cases
through the Bureau of Employment Programs in this state, and
shall process cases through support enforcement agencies in other
states. The Commissioner shall receive all amounts withheld by the Bureau of Employment Programs in this state, forwarding any
amounts withheld on behalf of support enforcement agencies in
other states to those agencies.
(b) For the purposes of this section:
(1) "Legal process" means a writ, order, summons or other
similar process in the nature of garnishment which is issued by a
court of competent jurisdiction or by an authorized official
pursuant to an order to such court or pursuant to state or local
law.
(2) "Unemployment compensation" means any compensation under
state unemployment compensation law (including amounts payable in
accordance with agreements under any federal unemployment
compensation law). It includes extended benefits, unemployment
compensation for federal employees, unemployment compensation for
ex-servicemen, trade readjustment allowances, disaster
unemployment assistance, and payments under the Federal Redwood
National Park Expansion Act.
§48-18-121. Providing information to consumer reporting
agencies; requesting consumer credit reports for child support
purposes.
(a) For purposes of this section, the term "consumer
reporting agency" means any person who, for monetary fees, dues,
or on a cooperative nonprofit basis, regularly engages, in whole
or in part, in the practice of assembling or evaluating consumer credit information or other information on consumers for the
purpose of furnishing consumer reports to third parties.
(b) The Commissioner
shall establish procedures whereby
information regarding the amount of overdue support owed by an
obligor will be reported periodically by the Bureau for Child
Support Enforcement to any consumer reporting agency, after a
request by the consumer reporting agency that it be provided with
the periodic reports.
(1) The procedures shall provide that any information with
respect to an obligor shall be made available only after notice
has been sent to the obligor of the proposed action, and such
obligor has been given a reasonable opportunity to contest the
accuracy of the information.
(2) The procedures shall afford the obligor with procedural
due process prior to making information available with respect to
the obligor.
(c) The information made available to a consumer reporting
agency regarding overdue support may only be made available to an
entity that has furnished evidence satisfactory to the Bureau
that the entity is a consumer reporting agency as defined in
subsection (a) of this section.
(d) The Bureau for Child Support Enforcement may impose a
fee for furnishing such information, not to exceed the actual
cost thereof.
(e) The Commissioner of the Bureau for Child Support
Enforcement, or her or his designee, may request a consumer reporting agency to prepare and furnish to the Bureau for Child
Support Enforcement a consumer report for purposes relating to
child support, by certifying to the consumer reporting agency
that:
(1) The consumer report is needed for the purpose of
establishing an individual's capacity to make child support
payments or determining the appropriate level of payments in
order to set an initial or modified child support award;
(2) The paternity of the child of the individual has been
established or acknowledged by the individual in accordance with
state law;
(3) The individual whose report is being requested has been
given at least ten days' prior notice of the request by certified
mail to his or her last known address that such report is being
requested; and
(4) The consumer report will be kept confidential, will be
used solely for a purpose described in subdivision (1) of this
subsection and will not be used in connection with any other
civil, administrative or criminal proceeding or for any other purpose.
ARTICLE 19. BUREAU FOR CHILD SUPPORT ENFORCEMENT ATTORNEY
§48-19-102. Appointment of Bureau for Child Support Enforcement
attorneys
( (a) Each Bureau for Child Support Enforcement attorney
shall be appointed by the Commissioner of the Bureau for Child Support Enforcement. The Bureau for Child Support Enforcement
attorneys shall be duly qualified attorneys licensed to practice
in the courts of this state. Bureau for Child Support Enforcement
attorneys shall be exempted from the appointments in the indigent
cases which would otherwise be required pursuant to article
twenty-one, chapter twenty-nine of this code.
(b) Nothing contained herein shall prohibit the Commissioner
from temporarily assigning, from time to time as caseload may
dictate, a Bureau for Child Support Enforcement attorney from one
geographical area to another geographical area.
(c) The Bureau for Child Support Enforcement attorney is an
employee of the Bureau for Child Support Enforcement.
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