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Photo by Robert Serafin

process by raising the claim.34 There is no time limit on when the claim must be made, but HHS interprets the statute to require a good cause determination only when made in connection with a refusal to cooperate. This can lead to two types of problems. First, an agency might not allow the claim to be raised until the moment of cooperation arises. For example, a New York county agency told a recipient that she could not claim good cause until the day of the court proceeding. However, the county changed its position after a representative intervened.37 Second, the individual may not want the agency to go forward with child support enforcement proceedings in those cases in which no cooperation is required; this is discussed further below.

It is also possible that an individual may wish to claim good cause for partial noncooperation. For example, a mother might be willing to cooperate in giving information, but might claim good cause for refusing to sign a criminal complaint if she is requested to do so." There would seem to be no reason why she could not pursue a good cause claim under such circumstances.

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34. 45 C.FR. §§ 232.40(a), (c). It is possible that the IV-A agency will already have notified the IV-D agency under 45 C.FR. § 235.70 that aid has been granted before a good cause claim is made. In such cases, the IV-A agency must promptly notify the IV-D agency of the good cause claim. 45 C.FR. § 232.45(a). Upon receiving this notice, IV-D must suspend paternity or support activities until the IV-A agency notifies it of the determination of the claim. 45 C.FR. § 302.31(2).

35. 45 C.FR. § 232.41(a). See HEW unpublished letter from Regional Commissioner Webb to the Wisconsin Department of Health and Human Services Administrator Stumbras (June 19, 1979) (Clearinghouse No. 42,034), which rejected, as contrary to section 232.41, a Wisconsin policy limiting claims made more than 45 days after application.

36. 43 Fed. Reg. 2179, col. 3 (Jan. 16, 1978).

37. Report by a county representative to one of the authors (Dec. 22, 1986).

38. See Johnson & Blong, supra note 2, at Part III.C.2.

B. Applicant or Recipient Must Provide Evidence Supporting the Good Cause Claim

A person who makes a good cause claim has the burden of establishing the good cause circumstance39 and must specify and prove the circumstances that she believes provide good cause. Within 20 days after making the good cause claim, she must submit corroborating evidence, i.e. evidence that supports the claim. However, the agency may grant additional time, if it determines that difficulty in obtaining the evidence requires an extension.40 With one exception described below, the general rule is that the claim must be corroborated.

Evidence that corroborates a claim depends on the particular circumstances on which the claim is based, and includes, but is not limited to,4 41 the following:

sworn statements from individuals other than the applicant or recipient with knowledge of the circumstances on which the good cause claim is based (these affidavits can be critical for physical and emotional harm claims, since the formal records listed below may not exist or may be difficult to locate);

birth certificate or medical or law enforcement records showing that the child was conceived as a result of incest or forcible rape;

court or other records showing that legal adoption proceedings are pending in court;

for physical or emotional harm claims, court, medical, criminal, child protective services, social services, psychological, or law enforcement records indicating the possibility that the absent or putative parent would cause such harm;

⚫ medical records showing the emotional health history and the present emotional history of the child or caretaker, or written statements from a mental health professional giving an emotional health diagnosis or prognosis;

written statement from a social agency stating that it is assisting the applicant or recipient concerning possible adoption.

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The reported cases may give some guidance on problems that can arise is corroborating claims and what is required for success. In the unsuccessful cases, it appears that the claimants had submitted limited corroboration. The Supreme Court of Minnesota found insufficient the sworn statements of a claimant and her sister corroborating events (beatings, firing a rifle into the air) that occurred four years before, without anything more recent.43 The Pennsylvania Commonwealth Court found insufficient sworn statements and testimony from a claimant, her sister-in-law, and her landlady that, following the commencement of the support proceedings, the claimant and her children had "become the object of undue verbal harassment

39. 45 C.FR. § 232.40(c). 40. 45 C.FR. § 232.43(b).

41. 43 Fed. Reg. 45745, col. 1 (Oct. 3, 1978). 42. 45 C.FR. § 232.43(c).

43. Cass County Welfare Dep't v. Wittner, 309 N.W.2d 320 (Minn. 1981), appeal dismissed, 454 U.S. 1135 (1982).

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and duress.' At the hearing, claimant offered to submit a statement from the doctor who had treated her, but the document was never submitted.

On the other hand, a state agency found good cause on emotional harm grounds based on the anticipated emotional harm to the mother and daughter. The mother had testified of her own emotional trauma and that, at the last visit with the father, her daughter had become physically ill and vomited from fear of being with her father and, "literally, had to be dragged off by her father." In addition, the hearing officer reported that the following evidence was submitted in support of the claim:

(1) an evaluation by a psychologist regarding the emotional harm the child has suffered from contacts with the father, together with an evaluation of the emotional stress the appellant has experienced as the result of her divorce proceedings, (2) an affidavit and letter from a... County Court Domestic Relations Psychologist, concluding that visitation by the father would be "very traumatic" for the daughter...(3) an affidavit from the appellant's attorney... who represented her in her divorce proceedings, which also includes a partial court transcript of custody/ visitation hearings; (4) a letter from the Probate and Juvenile Judge... stating that pursuit of the custody/support issue could be detrimental to [the] physical and mental health of the appellant and of her daughter; (5) a letter from the child, herself, written while she was with the father; (6) an affidavit from a former social worker . . . supporting the emotional trauma the appellant and her child have suffered through the custody/ support proceedings.45

An applicant or recipient might be concerned that the documents that corroborate her claim will also identify the father. Nothing in the regulations prevents her from deleting the father's name from the documents as long as it is clear that they refer to the father.

After reviewing the corroborating evidence provided, if the state agency determines that additional evidence is needed it must promptly notify the applicant or recipient and tell her what type of documentation is needed."

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C. The State Agency Must Assist the Applicant or Recipient in Obtaining Corroboration

The applicant or recipient may not know where or how

44. Bootes v. Pennsylvania, 439 A.2d 883, 64 Pa. Commw. 173 (1982).

45. In re Jane Roe (Ohio Dep't of Pub. Welfare Aug. 15, 1978) (Clearinghouse No. 23,406). The hearing to assess the good cause claim under the then newly adopted federal regulations was part of the settlement of a lawsuit challenging the state's failure to implement the good cause exception. Roe v. Creasy, No. 77-CV-12-5447 (Ohio C.P., Franklin County, Aug. 16, 1978) (Clearinghouse No. 23,406).

46. 45 C.FR. § 232.44(d).

to obtain documents or may have trouble dealing with agencies that refuse to release information to the public. Upon her request, the agency must tell her how to obtain the necessary documents and must make a reasonable effort to obtain specific records that she cannot reasonably obtain herself.47 In appropriate cases, the agency's assistance might be in the form of phone calls or letters or preparation and notarization of sworn statements. 48

D. Exception to Corroboration Requirement for Physical Harm Cases

The corroboration requirement does not apply in those cases in which the good cause claim is based on anticipated physical harm and corroboration is not available.49 HHS intended this exception to deal with the problem of battered women who have been too afraid or embarrassed to tell anyone about the violence that they have suffered and who therefore would not be able to provide evidence supporting their claims.50 However, for the agency to consider the claim, the applicant or recipient must satisfy the agency that her claim is credible and that corroboration is not available. The agency cannot make a final favorable determination until it has conducted an investigation. 52

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E. Investigation and Determination of the Good Cause Claim

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54

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The IV-A agency must determine whether or not the evidence submitted is sufficient to permit a determination of the claim. If the agency determines that the evidence is not sufficient to determine the claim, it may choose to investigate in order to seek further verification," including making contact with the absent parent if it determines that this is necessary." The agency can ask the applicant or recipient for sufficient information for this investigation, including the absent parent's name and address, if known. Because the nature and scope of the agency's investigation are within the agency's discretion, an applicant or recipient would generally want to do whatever is necessary to provide sufficient corroboration to make an investigation unnecessary.

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There is little in the regulations concerning the investigation itself. For example, there is no discussion of the investigator's qualifications or whether it has to be someone who

47. 45 C.FR. § 232.43(e).

48. Memorandum from Barry Van Lare, Associate Commissioner for Family Assistance, HEW, to Regional Commissioners, SSA, Attachment 3-4 (Apr. 5, 1979) (Clearinghouse No. 42,035) (hereinafter Van Lare Memo].

49. 45 C.FR. § 232.43(f).

50. 43 Fed. Reg. 45744, col. 3 (Oct. 3, 1978). 51. Id. and 45 C.FR. § 232.43(f)(1).

52. 45 C.FR. § 232.43(f)(2). 53. 45 C.FR. § 232.43(a). 54. 45 C.FR. § 232.43(g).

55. 45 C.FR. § 232.43(h)(1). In Cass County Welfare Dep't, 309 N.W.2d at 324, the court suggested that, although the agency could require the recipient to disclose the putative father's name as a preliminary step to its investigation, the agency might be able to contact other sources to verify the claim because of the alleged potential for physical harm.

56. 45 C.FR. § 232.40(c)(1)(iii).

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The notice must be an "explicit, written notice—as is the case with all notices required by IV-A regulations containing the rights and obligations of the applicant or recipient at that stage. HHS has suggested that states may use these procedures if they contact other dangerous persons and that the agencies should be careful in contacting people who are likely to give information to the potentially dangerous absent parent. Some agencies have insisted that the father's name and address must be provided in every case in which an investigation is found necessary, but this is clearly wrong. This is an area in which advocacy for clients has been effective, since the rules are clear and will generally be recognized by an agency once they are brought to its attention.

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Although the general rule is that the agency need not investigate in every case, it must investigate in those cases in which corroboration is not required because it is not available and the agency finds the applicant's or recipient's claim credible.62 According to HHS, the investigation "may not necessarily establish the good cause circumstance, [but] it should verify the credibility of the claimant."'63

The IV-A agency must decide good cause claims within a state-established time standard of no more than 45 days after they are made, unless additional time is necessary because required verifying information cannot be obtained in time or the applicant or recipient did not provide corroboration by the required date. As of January 1, 1986, 12 jurisdictions had set shorter time limits."

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57. 43 Fed. Reg. 45744, col. 1 (Oct. 3, 1978).

58. 45 C.FR. § 232.43(h).

59. Van Lare Memo, supra note 48, at Attachment 5. 60. Id.

61. "Here the County Agency acted arbitrarily by insisting on disclosure of the putative father's name without first determining if disclosure was necessary." Cass County Welfare Dep't, 309 N.W.2d at 324.

62. 45 C.FR. § 232.43(f).

63. 43 Fed. Reg. 45744, col. 3 (Oct. 3, 1978).

64. 45 C.FR. § 232.41(c).

65. According to HHS, the following deadlines were in effect: 20 days (Florida, Guam); 30 days (Georgia, Kansas, Massachusetts, Montana, Nebraska, New York, Oregon, Rhode Island, Vermont, Washington). AUTOMATED STATE AFDC PLAN, Office of FamiLY ASSISTANCE, STATE DATA AND CHARACTERISTICS BRANCH, Rep. No. 16 (Jan. 1, 1986) (Clearinghouse No. 38,695) [hereinafter AUTOMATED STATE AFDC PLAN].

The good cause determination must be written, include the findings and basis for the determination, and be entered into the AFDC case record.66 Before finding that good cause exists, the IV-A agency must give the IV-D agency the chance to review and comment on the findings and must consider the IV-D agency's recommendation.67

F. AFDC Must Be Paid to the Family While the Agency Considers the Good Cause Claim

HHS has recognized that denying or delaying aid to a person while her good cause claim is pending undermines Congress's intent that the child support enforcement process not harm needy children.68 Accordingly, as long as the applicant or recipient has satisfied the requirements of 45 C.FR. §§ 232.40(c) and 232.43, which require claimants to provide corroboration and information, the agency may not deny, delay, or discontinue the caretaker relative's share of the AFDC grant for failure to cooperate while it considers the good cause claim.69

This means that it is important that this corroboration and information be obtained and submitted as soon as possible. The agency's assistance in obtaining the information under 45 C.F.R. § 232.43(e) may be critical in assuring that the caretaker is able to submit the evidence promptly. Likewise, the agency's prompt notice to the caretaker that additional corroboration is needed is important, because HHS's position appears to be that aid to the caretaker cannot begin until all required corroboration is submitted.70

IV. What Happens when the Good Cause Claim Is Granted; Proceeding with Enforcement Without Caretaker Cooperation

For those cases in which the agency finds good cause, the caretaker is excused from the cooperation requirement and the AFDC grant includes an amount for her needs. The agency must also promptly notify the IV-D agency that good cause exists.71

However, states may have a policy of deciding in individual cases whether or not to proceed with IV-D child support enforcement activities without the caretaker's cooperation. If a state has such a policy, the IV-A agency must decide whether enforcement without the caretaker's cooperation can go forward without risk of harm to the child or caretaker. When the IV-A agency decides that enforcement activities can proceed without the caretaker's cooperation, it must notify her and give her the opportunity to withdraw her application or to have the case closed. 72

A state's choice of this option may well place applicants and recipients at risk, since dangerous absent parents might not

66. 45 C.FR. § 232.41(b). 67. 45 C.FR. § 232.44(a).

68. 43 Fed. Reg. 45747 (Oct. 3, 1978).

69. 45 C.FR. § 232.46. See also 43 Fed. Reg. 45746, col. 2, and 45747, cols. 1, 2 (Oct. 3, 1978).

70. 43 Fed. Reg. 45745, col. 2 (Oct. 3, 1978). 71. 45 C.FR. § 232.45(b).

72. 45 C.FR. § 232.49.

A finding of good cause does not necessarily excuse cooperation for an indefinite period. If the IV-A agency determines in a particular case that the good cause circumstances are subject to change, the agency will review the good cause determination at every redetermination of eligibility.75 A Massachusetts legal services attorney has reported that AFDC clients who had been found to have good cause were routinely required to re-verify the existence of good cause at every redetermination. In one case, a client whose good cause determination claim was based on rape had to submit a psychologist's report at each redetermination. Advocates successfully negotiated a change in the state regulations to provide that reverification of the good cause claim shall not be required at redetermination or any other time, "unless information is obtained that indicates a need to reconsider eligibility for good cause."76

V. What Happens when the Good Cause Claim Is Denied

If the IV-A agency decides that the applicant or recipient does not have good cause, it must notify the applicant or recipient and give her a chance to cooperate, withdraw the application for AFDC, or have the case closed." The last two options mean that the entire family unit would not receive AFDC assistance. However, if the caretaker simply refuses to cooperate, only her needs should be removed from the grant.' In such cases, the state is still likely to continue child support enforcement activities because the child receives AFDC. Some caretakers may therefore think that removing the whole family from AFDC is necessary so that the state will not seek to establish paternity and collect support.

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VI. Notice and Hearing Rights in the Good Cause Determination Process

For caretakers who have a dispute with a IV-A agency determination during the good cause determination process, the

73. AUTOMATED STATE AFDC PLAN, supra note 65.

74. HHS QUARTERLY PUBLIC ASSISTANCE STATISTICS, APRIL-JUNE 1985, Tables 22 and 24.

75. Luekens Letter, supra note 33; 106 CMR 303.736: Periodic Review of Good Cause (rev. Oct. 1986) (Clearinghouse No. 42,505). 76. 45 C.FR. § 232.47.

77. 45 C.FR. § 232.41(d). 78. 45 C.FR. § 232.12(d).

right to notice and the chance to contest the agency's decision under the federal fair hearing regulations, 45 C.FR. § 205.10, is critical. Unfortunately, the good cause regulations do not specify how the notice and fair hearing regulations apply to the various disputes that can arise between the applicant or recipient and the agency in the good cause process.

There is no specific requirement that a fair hearing be provided to resolve disputes that arise before a good cause determination is made.

First, there is no specific requirement that a fair hearing be provided to resolve disputes that arise before a good cause determination is made. Such disputes could include (1) whether the corroboration provided by the applicant or recipient is adequate, (2) whether the individual must provide certain information for an agency investigation when the individual claims that she cannot provide it or has good reason for not providing it, or (3) whether the agency is correct when it notifies the applicant or recipient under 45 C.FR. § 232.43(h) that it must contact the absent parent. Whether or not it is required to do so, however, the agency can clearly decide that it will provide hearings in such circumstances, or it can establish an informal method to resolve issues before a final denial of the claim is made.

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Second, it is not clear what a recipient's fair hearing rights are when the agency determines that there is no good cause. Does the recipient have a right to a hearing to review the good cause decision itself or must she continue to refuse to cooperate and be threatened with a sanction in order to obtain a hearing and review of the good cause issue? Clearly, from the recipient's perspective, it is best that she have a hearing on the good cause question, and, if she loses, then she has the choice under section 232.41(d) to cooperate, to withdraw the application, or to have the case closed.

However, the regulations do not specifically state that denial of the good cause claim gives rise to the right to a fair hearing. While a finding of no good cause does not itself appear to fall neatly within the definition of adverse action under section 205.10(a)(5),80 HHS may have indirectly addressed this issue in another context. In the preamble to the final regulations, it discussed the recipient's appeal rights when, during its investigation, the agency notifies the recipient that it wants to

79. Determinations on such matters are not in themselves adverse actions for which hearings must be provided under section 205.10(a)(5), which requires the opportunity for a hearing to an applicant whose claim for aid is denied, or is not acted on with reasonable promptness, and to any recipient who is aggrieved by any agency action resulting in suspension, reduction, discontinuance or termination of assistance, or determination that a protective, vendor or two-party payment should be made or continued." 45 C.FR. § 205.10(a)(5) (emphasis added). Note, however, that the regulation concerning the participation by the IV-D agency in the good cause hearing process refers to "any hearing (under § 205.10 of this chapter) that results from an applicant's or recipient's appeal of any agency action under §§ 232.40 through 232.49." 45 C.FR. § 232.44(b) (emphasis added).

80. See note 77, supra.