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Child Support Desk Reviews

December 31, 2003

Author: Susan C. Antos

Assuring That Public Assistance Recipients Get the Extra Cash to Which They Are Entitled

Recipients of Family Assistance (FA) and Safety Net Assistance (SNA) are required to assign their right to any child support that they are entitled to receive to the Local Department of Social Services.[i] This means that Local Departments of Social Services keep all but $50 of the support collected to reimburse themselves, the State of New York and the federal government for public assistance paid to the recipient.[ii]  This $50 of support is called the “pass-through or “bonus” payment and is received by the recipient in addition to the public assistance grant. The pass through does not count as income when determining the amount of public assistance to which the recipient is entitled.[iii]

The Pass Through

A FA or SNA recipient is only entitled to a pass through if the support paid is “current,” which means that the absent parent pays his or her child support (not spousal support) in the month when it is due.[iv]  When a parent is in arrears, any support paid will first be credited to the current month, allowing the family a pass through payment.[v]  The maximum pass through payment is $50, regardless of the number of children for whom child support is received.[vi]  If less than $50 in current child support is collected, the family will get a pass through, but only for the lesser amount.[vii]

Every month that child support is paid, the household should get a “mailer,”which tells the family how much has been collected in current support for the current month. The mailer will also indicate if current support was received for the previous month, but not reflected in the last statement.  This could occur if an income execution imposed at the end of one month did not reach the support collection unit in time to be counted for purposes of calculating the pass through.  In such a case, the payment received on time, but credited later, would still count as current support and if the full pass through was not issued in the prior month, a make up payment would be made.


Excess Support

If the support collection unit collects more current child support than is paid out in public assistance benefits (plus the $50 pass through), any excess support should be paid to the recipient.[viii]  In some cases, this will be a one time occurrence.  This can happen when a support order is paid weekly and the month contains five, instead of the ususal four pay periods.  It can also happen when a working recipient has infrequent overtime pay which  results in a smaller public assistance grant for the month. In those months, even if the public assistance case stays open, the excess support should be paid to the recipient.[ix] 
 
The most likely scenario in which a LSSD is likely to overlook the accrual of excess support is in the case of a working recipient receiving a partial grant, especially one who has wages subject to variation.  In the Broniszewski class action, nearly all of the named plaintiffs were working public assistance recipients whose small public assistance grants were less than the amount of child support collected on their behalf (plus $50).  With more public assistance recipients working, advocates should make a habit of reviewing their client’s statements of support collected with their income maintenance budgets.


Desk Reviews


As a result of litigation,[x] current and former public assistance recipients are entitled to an administrative review  if they believe  that they were wrongly denied a pass through or excess support or if they believe that the pass though that they received was not adequate. This litigation required that Office of Temporary and Disability Assistance (OTDA) to promulgate regulations outline a procedure called the desk review. These regulations were filed on December 5, 2002 and were effective December 24, 2002.[xi] Although the desk review does not provide all the procedural protections of a fair hearing, it does require an opportunity for a face to face conference, and a written determination by the local support collection unit and the state within clearly proscribed time periods.


Local Level Review


The desk review is a two tiered procedure which is initiated by written request on a standard form to be developed by OTDA.[xii] The form will contain spaces for the requester to indicate the months for which a review is requested and whether the review is requested for  pass through payments, excess current support or excess arrears support.[xiii] The form will contain a notice that the recipient should provide any supporting documentation, and will contain a check off box to request a conference with SCU staff during the desk review.[xiv]

The first level of review occurs at the local level. The period of review is limited to the calendar year in which the desk review is requested and the previous year.[xv] SCU staff must make reasonable efforts to ascertain information if it is not provided by the recipient.[xvi]  All efforts made by the SCU must be documented in the file including:

  • contact with income payors to determine dates of withholding 
  • contact with other states’ IV-D agencies to ascertain dates of collection (in such case the 45 day time period is tolled for 30 days to allow sufficient time for a response); 
  • contact with income maintenance staff to ascertain public assistance payment information and amounts of unreimbursed public assistance.[xvii]

The local social services district must issue a determination in writing no later than 45 days from the date of receipt of completed desk review form.[xviii] This determination must be sent by first class mail and include a copy of any worksheet used a s part of the review process and documentation considered in the desk review.[xix] A copy must be sent to the income maintenance unit. [xx]

State Level Review

A recipient unhappy with the local determination may request a state level review within 20 days of the local Support Collection Unit determination.[xxi] This request must also be in writing, must specify the facts in dispute and must include a copy of the SCU desk review determination and any additional but previously unavailable documentation.[xxii] A written response must be made by the New York State DCSE within 30 days of the date of the receipt of the recipient’s request and must include any revised and or additional worksheets and any new documentation considered in the desk review.[xxiii] This determination will be mailed to the recipient, the SCU and the local income maintenance unit.[xxiv]
The determination will advise the recipient that further  review may be obtained pursuant to Article 78 of the Civil Practice Law and Rules.  The determination will include the telephone number of a local legal services office.[xxv]

The federal court’s jurisdiction over the consent decree int the Broniszewski case expires July 11, 2003.  If there are problems with the implementation of the desk review process, please advise plaintiff’s counsel immediately: Susan Antos, Greater Upstate Law Project, Inc. 119 Washington Avenue, Albany New York 12210.  Phone: 518-462-6831, fax: 518-462-6687, santos@wnylc.com.
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[i].  42 USC 608(a)(3); Social Services Law (SSL)§ §158(5); 349-b(1)(a).
[ii].  SSL §111-e(1).
[iii].  SSL §§111-c(2)(d); 131-a(8)(a)(v).
[iv].  SSL §111-c(2)(d);131-a(8)(a)(v);
[v].  18 NYCRR §347.13(a).
[vi]. 18 NYCRR §347.13(b)(1).
[vii]. Since the implementation of the Personal Responsibility and Work Opportunity Reconciliation Act in 1996, states have been free to increase or eliminate the child support pass through.  There has been legislation proposed in New York every year to increase the pass through to $100. See, e.g. A01461 introduced on January 16, 2001by multiple sponsors, including Assemblymembers Weinstein, Glick, Davis, Grannis, Lopez Johjn and Greene.  Although the increase is supported by both houses and the Governor, it has been held hostage to negotiations over other child support provisions upon which the legislature has been unable to agree, and has not passed either house.
[viii]. 18 NYCRR 352.12(b)
[ix].  97 ADM-7, p. 7-8.
[x].  Schwartz v. Dolan, 854 F. Supp. 932 (N.D.N.Y 1994); Broniszewski v. Perales (W.D.N.Y.), Collazo v. Bane, 92 Civ. 5468 (E.D.N.Y)  Consent decrees in Broniszewski and Collazo are available in the Benefits Law Database at the On Line Resource Center (ORC) at http://onlineresources.wnylc.net/welcome.asp?index=Welcome
[xi]. New York State Register, December 24, 2002, p.12.
[xii]. 18 NYCRR 347.25(d)(1). OTDA has indicated that it is in the process of developing an Administrative Directive which will contain the form and instructions to the counties on the desk review process.
[xiii]. 18 NYCRR 347.25(d)(2).
[xiv]. 18 NYCRR 347.25(d)(3).
[xv].  18 NYCRR 347.25(b).
[xvi].  18 NYCRR 347.25(e)(3).
[xvii]. 18 NYCRR 347.25(e)(3).
[xviii]. 18 NYCRR 347.25(e)(1),(f)(1).
[xix].  18 NYCRR 347.25(f)(1).
[xx].  18 NYCRR 347.25(f)(2).
[xxi].  18 NYCRR 347.25(g)(1).
[xxii].  18 NYCRR 347.25(g)(2).
[xxiii].  18 NYCRR 347.25(g)(4).
[xxiv].  18 NYCRR 347.25(g)(5).
[xxv].  18 NYCRR 347.25(g)(6). 

 





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