2005 Regular Session
To: Public Health and Welfare
By: Senator(s) Williamson
AN ACT TO AMEND SECTIONS 43-1-2, 43-19-31, 43-19-34, 43-19-35, 43-19-37, 43-19-44, 43-19-46, 43-19-47, 43-19-48, 43-19-49, 43-19-53, 43-19-55, 43-19-57, 43-19-58 AND 43-19-59, MISSISSIPPI CODE OF 1972, TO TRANSFER THE POWERS AND RESPONSIBILITIES OF THE CHILD SUPPORT UNIT OF THE STATE DEPARTMENT OF HUMAN SERVICES TO THE CHILD SUPPORT UNIT OF THE OFFICE OF ATTORNEY GENERAL AND TO PROVIDE FOR A DIRECTOR THEREOF; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-1-2, Mississippi Code of 1972, is amended as follows:
43-1-2. (1) There is created the Mississippi Department of Human Services, whose offices shall be located in Jackson, Mississippi, and which shall be under the policy direction of the Governor.
(2) The chief administrative officer of the department shall be the Executive Director of Human Services. The Governor shall appoint the Executive Director of Human Services with the advice and consent of the Senate, and he shall serve at the will and pleasure of the Governor, and until his successor is appointed and qualified. The Executive Director of Human Services shall possess the following qualifications:
(a) A bachelor's degree from an accredited institution of higher learning and ten (10) years' experience in management, public administration, finance or accounting; or
(b) A master's or doctoral degree from an accredited institution of higher learning and five (5) years' experience in management, public administration, finance or accounting.
Those qualifications shall be certified by the State Personnel Board.
(3) There shall be a Joint Oversight Committee of the Department of Human Services composed of the respective chairmen of the Senate Public Health and Welfare Committee, the Senate Appropriations Committee, the House Public Health and Welfare Committee and the House Appropriations Committee, two (2) members of the Senate appointed by the Lieutenant Governor to serve at the will and pleasure of the Lieutenant Governor, and two (2) members of the House of Representatives appointed by the Speaker of the House to serve at the will and pleasure of the Speaker. The chairmanship of the committee shall alternate for twelve-month periods between the Senate members and the House members, with the Chairman of the Senate Public Health and Welfare Committee serving as the first chairman. The committee shall meet once each month, or upon the call of the chairman at such times as he deems necessary or advisable, and may make recommendations to the Legislature pertaining to any matter within the jurisdiction of the Mississippi Department of Human Services. The appointing authorities may designate an alternate member from their respective houses to serve when the regular designee is unable to attend such meetings of the oversight committee. For attending meetings of the oversight committee, such legislators shall receive per diem and expenses which shall be paid from the contingent expense funds of their respective houses in the same amounts as provided for committee meetings when the Legislature is not in session; however, no per diem and expenses for attending meetings of the committee will be paid while the Legislature is in session. No per diem and expenses will be paid except for attending meetings of the oversight committee without prior approval of the proper committee in their respective houses.
(4) The State Department of Human Services shall provide the services authorized by law to every individual determined to be eligible therefor, and in carrying out the purposes of the department, the executive director is authorized:
(a) To formulate the policy of the department regarding human services within the jurisdiction of the department;
(b) To adopt, modify, repeal and promulgate, after due notice and hearing, and where not otherwise prohibited by federal or state law, to make exceptions to and grant exemptions and variances from, and to enforce rules and regulations implementing or effectuating the powers and duties of the department under any and all statutes within the department's jurisdiction, all of which shall be binding upon the county departments of human services;
(c) To apply for, receive and expend any federal or state funds or contributions, gifts, devises, bequests or funds from any other source;
(d) Except as limited by Section 43-1-3, to enter into and execute contracts, grants and cooperative agreements with any federal or state agency or subdivision thereof, or any public or private institution located inside or outside the State of Mississippi, or any person, corporation or association in connection with carrying out the programs of the department; and
(e) To discharge such other duties, responsibilities and powers as are necessary to implement the programs of the department.
(5) The executive director shall establish the organizational structure of the Mississippi Department of Human Services which shall include the creation of any units necessary to implement the duties assigned to the department and consistent with specific requirements of law, including, but not limited to:
(a) Office of Family and Children's Services;
(b) Office of Youth Services;
(c) Office of Economic Assistance.
* * *
(6) The Executive Director of Human Services shall appoint heads of offices, bureaus and divisions, as defined in Section 7-17-11, who shall serve at the pleasure of the executive director. The salary and compensation of such office, bureau and division heads shall be subject to the rules and regulations adopted and promulgated by the State Personnel Board as created under Section 25-9-101 et seq. The executive director shall have the authority to organize offices as deemed appropriate to carry out the responsibilities of the department. The organization charts of the department shall be presented annually with the budget request of the Governor for review by the Legislature.
(7) This section shall stand repealed on July 1, 2006.
SECTION 2. Section 43-19-31, Mississippi Code of 1972, is amended as follows:
43-19-31. (1) The Office of the Attorney General is designated as the state's Title IV-D agency. On July 1, 2005, the Child Support Unit of the Department of Human Services shall be transferred to the Office of the Attorney General. Wherever the term "Child Support Unit" appears in any law, the same shall mean the Child Support Unit of the Office of Attorney General. The Attorney General may assign to the appropriate offices such powers and duties deemed appropriate to carry out the lawful functions of the Child Support Unit. The person appointed by the Attorney General as the person responsible for managing the Title IV-D agency's child support enforcement duties shall report directly to the Attorney General. Appropriations made to the Title IV-D agency for child support enforcement may be expended only for the purposes for which the money was appropriated.
(2) An attorney employed to provide Title IV-D services represents the interest of the state and not the interest of any other party. The provision of services by an attorney under this chapter does not create an attorney-client relationship between the attorney and any other party. The agency shall, at the time an application for child support services is made, inform the applicant that neither the Title IV-D agency nor any attorney who provides services under this chapter is the applicant's attorney and that the attorney providing services under this chapter does not provide legal representation to the applicant. An attorney employed by the Title IV-D agency or as otherwise provided by this chapter may not be appointed or act as a guardian ad litem or attorney ad litem for a child or another party. A court shall not disqualify the Title IV-D agency in a legal action filed under this chapter or Part D of Title IV of the federal Social Security Act on the basis that the agency has previously provided services to a party whose interests may now be adverse to the relief requested.
(3) The Office of Attorney General is hereby authorized and empowered to establish a single and separate Child Support Unit for the following purposes:
(a) To develop and implement a nonsupport and paternity program and institute proceedings in the name of the Child Support Unit of the Office of Attorney General or in the name of the recipient in any court of competent jurisdiction in any county where the mother of the child resides or is found, in the county where the father resides or is found, or in the county where the child resides or is found;
(b) To secure and collect support by any method authorized under state law and establish paternity for any child or children receiving aid from the Department of Human Services any form of public assistance, including, but not limited to, medical assistance, foster care, food stamps, TANF, or any other program under the federal Social Security Act, from a parent or any other person legally liable for such support who has either failed or refused to provide support, deserted, neglected or abandoned the child or children, including cooperating with other states in establishing paternity, locating absent parents and securing compliance with court orders for support of Temporary Assistance for Needy Families (TANF) children; the Child Support Unit may petition the court for the inclusion of health insurance as part of any child support order on behalf of any child receiving aid from the Department of Human Services unless good cause for noncooperation, as defined by the Social Security Act or the Child Support Unit, is established. Unless notified to the contrary, whenever a child or children for whom child support services have been provided ceases to receive public assistance, the Child Support Unit will continue to provide services and establish paternity, secure and collect such support payments from a parent or any other person legally liable for such support in accordance with the standards prescribed pursuant to the federal Social Security Act;
(c) To accept applications for child support enforcement services to establish paternity, secure and collect support from any proper party or person as defined by Title IV-D of the federal Social Security Act notwithstanding the fact that the child or children do not currently receive or have never received public assistance. The Child Support Unit shall have the authority to secure and collect support by any method authorized under state law and establish paternity for any child or children on behalf of a recipient of child support services, including individuals who do not currently receive or have never received public assistance from a parent or any other person legally liable for such support who has either failed or refused to provide support, deserted, neglected or abandoned the child or children, including cooperating with other states in establishing paternity, locating absent parents and securing compliance with court orders for support; the Child Support Unit may petition the court for the inclusion of health insurance as part of any child support order on behalf of such recipients of child support services. The proceeds of any collections resulting from such application shall be distributed in accordance with the standards prescribed in the federal Social Security Act;
(d) The Child Support Unit shall seek to recover from the individual who owes a support obligation to any individual who is a recipient of Title IV-D services as set forth in paragraph (b) or (c) on whose behalf the Child Support Unit is providing services, upon judicial proceedings conducted thereon after advance notice to such obligor, reasonable attorney's fees and court costs, in excess of any administrative fees collected and in excess of amounts of current support owed by the obligor, which the Child Support Unit incurs in recovering and collecting the support obligation, such costs and fees as the Child Support Unit recovers to be deposited in the Special Fund of the Child Support Unit of the Office of Attorney General which is hereby established for the pursuit and collection of child support;
(e) To initiate contempt of court proceedings or any other remedial proceedings necessary to enforce (i) any order or decree of court relating to child support, and (ii) any order or decree of court relating to the maintenance and/or alimony of a parent where support collection services on his or her child's behalf are being provided by the Child Support Unit;
(f) To secure and collect by any method authorized under state law any maintenance and/or alimony on behalf of a parent whose child or children's support is being collected by the Child Support Unit. The Child Support Unit shall collect only such maintenance and/or alimony as is ordered or decreed by the court, and only in the event that the minor child and parent to whom such maintenance and/or alimony has been ordered are living in the same household;
(g) To obtain restitution of monies expended for public assistance from a parent or any other person legally liable for the support of any child or children receiving aid from the Child Support Unit; said action for restitution shall arise from the payment of public assistance for the dependent child or children and shall be for the amount of the public assistance paid. Said action for restitution shall not arise against the parent or other person legally responsible who receives public assistance for the benefit of any dependent child or children. When a court order of support has been issued, the amount recoverable shall be limited to the amount of the court order;
(h) Setting off against a debtor's income tax refund or rebate any debt which is in the form of a liquidated sum due and owing for the care, support or maintenance of a child;
(i) To have full responsibility in the aforementioned cases for initiating actions under the Uniform Interstate Family Support Act and for responding to the actions of other jurisdictions under said law when Mississippi is the responding state; however, this shall not impair private litigants' rights to proceed under any applicable interstate enforcement mechanisms;
(j) To enter into contracts for the purpose of performing any test which the Child Support Unit may, from time to time, require;
(k) To maintain a Central Receipting and Disbursement Unit to which all payments required by withholding orders and orders for support in all actions to which the Child Support Unit is a party shall be forwarded, and from which child support payments ordered by the court in actions to which the Child Support Unit is a party shall be disbursed to the custodial parent or other such party as may be designated by the court order. The Central Receipting and Disbursement Unit shall be operated by the Child Support Unit or any financial institution having operations and qualified to do business in Mississippi, whose deposits are insured by the Federal Deposit Insurance Corporation. The Child Support Unit shall conduct cost-benefit analyses to determine and utilize the more cost efficient manner of operating the unit;
(l) To maintain a Child Support Unit of the Office of Attorney General Case Registry containing records with respect to:
(i) Each case in which services are being provided by the Child Support Unit under this section; and
(ii) Each support order established or modified in Mississippi on or after October 1, 1998; and
(iii) The Administrative Office of Courts, as established by Section 9-21-1, Mississippi Code of 1972, in consultation with the Child Support Unit, shall devise, promulgate and require the use of a Uniform Child Support Order Tracking System.
1. Information collected from case filing forms shall be furnished to the Child Support Unit of the Office of Attorney General, in order that compliance with court-ordered obligations of support may be tracked with specificity throughout the duration of said obligations and any subsequent proceedings.
2. Such tracking system shall include: a. the names, residential and mailing addresses, telephone numbers, social security numbers, driver's license numbers and dates of birth of each child and parent named in or subject to the court order; b. the court cause number of the action; c. name, address and telephone number of employer; d. any restraining or protective order indicating domestic violence; and e. any other information which may be used for the purpose of identifying any person named in or subject to the order or for the purposes of establishing, enforcing or modifying a child support order; and
(m) To take administrative actions relating to genetic testing, determine paternity, establish child support orders, modification of child support orders, income withholding, liens and subpoenas without the necessity of obtaining an order from any judicial or other administrative tribunal with respect to cases initiated or enforced by the Child Support Unit pursuant to Title IV-D of the Social Security Act;
(n) To have the authority to use high-volume automated administrative enforcement in interstate cases to the same extent as used for intrastate cases, in response to a request made by another state to enforce support orders;
(o) To provide any child support enforcement or other service as may be required by the United States of America, Department of Health and Human Services, Family Support Administration, Office of Child Support Enforcement or their successor pursuant to federal law or regulation.
SECTION 3. Section 43-19-34, Mississippi Code of 1972, is amended as follows:
43-19-34. (1) In lieu of legal proceedings instituted to obtain a modification for an order for support, a written stipulated agreement for modification executed by the responsible parent when acknowledged before a clerk of the court having jurisdiction over such matters or a notary public and filed with and approved by the judge of said court shall have the same force and effect, retroactively and prospectively, in accordance with the terms of said agreement as an order for modification of support entered by the court, and shall be enforceable and subject to subsequent modification in the same manner as is provided by law for orders of the court in such cases.
(2) With respect to a child support order in cases initiated or enforced by the Child Support Unit pursuant to Title IV-D of the Social Security Act, wherein the Child Support Unit has determined that a modification is appropriate, the Child Support Unit shall send a motion and notice of intent to modify the order, together with the proposed modification of the order under this section to the last known mailing address of the defendant. Such notice shall specify the date and time certain of the hearing and shall be sent by certified mail, restricted delivery, return receipt requested; notice shall be deemed complete as of the date of delivery as evidenced by the return receipt. The required notice may also be delivered by personal service in accordance with Rule 4 of the Mississippi Rules of Civil Procedure insofar as it may be applied to service of an administrative order or notice. The defendant may accept the proposed modification by signing and returning it to the Child Support Unit prior to the date of hearing for presentation to the court for approval. In the event that the defendant does not sign and return the proposed modification, the court shall on the date and time previously set for hearing review the proposal and make a determination as to whether it should be approved in whole or in part.
(3) Every three (3) years, upon the request of either parent, or if there is an assignment under Section 43-19-35, upon the request of the Child Support Unit or of either parent, the Child Support Unit shall review and, if appropriate, seek to adjust a support order being enforced under Section 43-19-31 in accordance with the guidelines established pursuant to Section 43-19-101, if the amount of the child support award under the order differs from the amount that would be awarded in accordance with the guidelines, taking into account the best interests of the child involved. No proof of a material change in circumstances is necessary in the three-year review for adjustment pursuant to this subsection (3). Proof of a material change in circumstances is necessary for modification outside the three-year cycle.
(4) Any order for the support of minor children, whether entered through the judicial system or through an expedited process, shall not be subject to a downward retroactive modification. An upward retroactive modification may be ordered back to the date of the event justifying the upward modification.
SECTION 4. Section 43-19-35, Mississippi Code of 1972, is amended as follows:
43-19-35. (1) By currently or previously accepting public assistance or making application for child support services for and on behalf of a child or children, the recipient shall be deemed to have made an assignment to the Child Support Unit of the Office of Attorney General of any and all rights and interests in any cause of action, past, present or future, that said recipient or the children may have against any parent failing to provide for the support and maintenance of said minor child or children; said Child Support Unit shall be subrogated to any and all rights, title and interest the recipient or the children may have against any and all property belonging to the absent or nonsupporting parent in the enforcement of any claim for child or spousal support, whether liquidated through court order or not. The recipient of Title IV-D services shall also be deemed, without the necessity of signing any document, to have appointed the Child Support Unit of the Office of Attorney General to act in his or her, as well as the children's, name, place, and stead to perform the specific act of instituting suit to establish paternity or secure support, collecting any and all amounts due and owing for child or spousal support or any other service as required or permitted under Title IV-D of the federal Social Security Act, and endorsing any and all drafts, checks, money orders or other negotiable instruments representing child or spousal support payments which are received on behalf of the recipient or the children, and retaining any portion thereof permitted under federal and state statutes as reimbursement for public assistance monies previously paid to the recipient or children.
(2) Court orders of support for any child or children receiving services through Title IV-D of the federal Social Security Act shall be amended, by operation of law, and without the necessity of a motion by the Child Support Unit and a hearing thereon to provide that the payment of support shall be directed by the absent parent to the Child Support Unit of the Office of Attorney General Central Receipting and Disbursement Unit as provided in Section 43-19-37 and not to the recipient. The absent parent shall be notified of such amendment prior to it taking effect.
(3) Any attorney authorized by the state to initiate any action pursuant to Title IV-D of the federal Social Security Act, including, but not limited to, any action initiated pursuant to Sections 43-19-31 et seq. and 93-25-1 et seq. shall be deemed to represent the interest of the Child Support Unit exclusively; no attorney-client relationship shall exist between said attorney and any recipient of services pursuant to Title IV-D of the federal Social Security Act for and on behalf of a child or children, regardless of the name in which the legal proceedings are initiated. Said attorney representing the state in a Title IV-D case is only authorized to appear and prosecute and/or defend issues of support and cannot in a Title IV-D case address or provide representation to the Title IV-D recipient on any other ancillary issues raised or presented in that action.
(4) Said assignment to the Child Support Unit shall be free of any legal or equitable defense to the payment of child support that may accrue to any person legally liable for the support of any child or children receiving aid from the State Department of Human Services, as a result of the conduct of the person who is accepting public assistance for and on behalf of said child or children.
SECTION 5. Section 43-19-37, Mississippi Code of 1972, is amended as follows:
43-19-37. (1) Court orders of support in all cases brought under the provisions of Sections 43-19-31 through 43-19-53 shall specify that the payment of court costs shall be directed by the absent parent to the Child Support Unit Central Receipting and Disbursement Unit for further disbursement in the manner as prescribed by Title IV-D of the federal Social Security Act. The court shall assess attorney's fees to recover the costs associated with preparing and prosecuting the case, which shall be paid directly to the Child Support Unit of the Office of Attorney General solely for the support of the legal division of the Child Support Unit, in a manner separate and distinct from the payment of child support. The court may allow the defendant to pay the attorney's fee over a period not to exceed four (4) months. The state portion of attorney's fees paid into the Child Support Unit shall be used to match federal funds for the support of the legal division of the Child Support Unit, in conjunction with the Office of Attorney General. Any payments made by the absent parent directly to the recipient or applicant in violation of the court order shall not be deemed to be a support payment or an attorney's fee and shall not be credited to the court-ordered obligation of said absent parent or to the court-ordered obligation for the payment of the attorney's fee. Failure of the absent parent to comply with an order of support or for payment of an attorney's fee for a period of thirty (30) days shall be directed to the court having jurisdiction of the matter for contempt proceedings or execution issued in the manner and form prescribed by statute. Should civil proceedings become ineffective in producing support or attorney's fees in any case involving a legitimate child or a child wherein paternity has been established by law or acknowledged in writing, the case shall promptly be referred to the district attorney for prosecution as a violation of Section 97-5-3.
(2) Each application, petition, order or filing made under this section shall include the social security number(s) of the applicant or father, mother and child(ren), as applicable, in accordance with Section 93-11-64, Mississippi Code of 1972.
SECTION 6. Section 43-19-44, Mississippi Code of 1972, is amended as follows:
43-19-44. For purposes of this section, an "authorized person" shall mean:
(a) Any agent or attorney of any state having in effect a plan approved under federal law, who has the duty or authority under such plan to seek to recover any amounts owed as child and spousal support (including, when authorized under the state plan, any official of a political subdivision);
(b) The court which has authority to issue an order or to serve as the initiating court in an action to seek an order against a noncustodial parent of the support and maintenance of a child, or any agent of such court;
(c) The resident parent, legal guardian, attorney or agent of a child (other than a child receiving federal assistance as determined by federal regulation) without regard to the existence of a court order against a noncustodial parent who has a duty to support and maintain any such child;
(d) A state agency that is administering a program operated under a state plan approved under federal law;
(e) Any agent or attorney of any state having an agreement under this section, who has the duty or authority under the law of such state to enforce a child custody or visitation determination;
(f) Any court having jurisdiction to make or enforce such a child custody or visitation determination, or any agent of such court; and
(g) Any agent or attorney of the United States, or of a state having an agreement under this section, who has the duty or authority to investigate, enforce or bring a prosecution with respect to the unlawful taking or restraint of a child.
The Child Support Unit shall safeguard personal data if the Child Support Unit is provided with reasonable evidence of a risk of harm. A state agency, court, department of another state, obligor, obligee and such other persons or entities as the Child Support Unit may specify may provide the Child Support Unit with reasonable evidence of a risk of harm in such manner as the Child Support Unit may require. The Child Support Unit shall not be required to safeguard personal data in intrastate cases for longer than one (1) year unless the Child Support Unit is provided with reasonable evidence of a continued risk of harm in such manner as the Child Support Unit may require. The Child Support Unit shall notify individuals whose personal data is safeguarded under this section that in order for the safeguards to remain in effect, such individuals must provide the Child Support Unit annually with reasonable evidence of a continued risk of harm. For the purposes of this section, "reasonable evidence of a risk of harm" shall mean reasonable evidence that the release of information may result in physical harm to the parent or child, that the release of information may result in emotional harm to the parent or child which would significantly reduce the parent's capacity to care for the child, or would significantly reduce the parent or child's ability to function adequately, or that a protective order or restraining order has been issued on behalf of the parent or child.
If the Child Support Unit is provided with reasonable evidence of a risk of harm, the Child Support Unit, its employees and its contractors shall not disclose any personal data that could otherwise be disclosed about the location of a parent or child, including residential address, telephone number and name, address and telephone number of employer, and shall not disclose the social security number of a parent or child; provided, however, that such personal data may be shared by and between employees of the Child Support Unit and its contractors; provided further, that the Child Support Unit may disclose such personal data to the Federal Parent Locator Service, to the court, or agent of a court that is authorized to receive information from the Federal Parent Locator Service established pursuant to Title IV-D of the Social Security Act.
Provided further, that the Child Support Unit may disclose the social security number of a child receiving IV-D services for the purposes directly connected to obtaining health care coverage for such child to an employer or provider of health care coverage.
If the Child Support Unit is provided with reasonable evidence of a risk of harm pursuant to this section, the Child Support Unit shall notify the Federal Parent Locator Service established pursuant to Title IV-D of the Social Security Act that a risk of harm exists. Upon order of the court in an intrastate matter the Child Support Unit shall release personal data, which may include location information and social security numbers, to such court or agent, as required by said Title IV-D of the Social Security Act; provided, however, that if the Child Support Unit has been provided with reasonable evidence of a risk of harm, the Child Support Unit shall notify the court or agent that the Child Support Unit has received such information; before making any disclosure of such personal data, the court is required to determine whether such disclosure to any other person could be harmful to the parent or child. A person or agency seeking disclosure of personal data which the Child Support Unit is prohibited from disclosing because of a risk of harm, but which could otherwise be disclosed, may file a petition with the chancery court to request disclosure of such personal data.
Upon an order by the court in interstate cases to override nondisclosure procedures in cases dealing with domestic violence, the court shall order the Child Support Unit to release this information within thirty (30) days of the order. Whereupon, the Child Support Unit shall transmit said court order to the Federal Office of Child Support Enforcement (OCSE), Federal Parent Locator Service (FPLS), whereby OCSE will notify the Child Support Unit of its decision to remove the nondisclosure code. Upon notification from OCSE, the Child Support Unit shall release said information unto the court.
Any unauthorized disclosure or unauthorized willful inspection made in a good faith effort to comply with this section shall not be considered a violation of this section.
A person or agency, including the Child Support Unit, seeking personal data which the Child Support Unit is prohibited from disclosing because of a risk of harm, but which could otherwise be disclosed or which the Federal Parent Locator Service established pursuant to Title IV-D of the Social Security Act is prohibited from disclosing because the Secretary of the Federal Department of Health and Human Services has been notified that there is a reasonable evidence of domestic violence or child abuse, may file a petition with the court where the person resides to request disclosure of such personal data. The petition shall specify the purpose for which such personal data is required. When a petition is filed, or when the court receives notice from the Child Support Unit that the Child Support Unit has been notified of a risk of harm, the court shall determine whether disclosure of personal data could be harmful to the parent or child before releasing such data to any other person or agency. In making such determination, the court shall notify the parent that the court has received a request to release personal data and shall provide a specific date by which the parent must object to release of the information and provide the basis for objection. The parent may provide such information in writing and shall not be required to appear in person to contest the release of information. The court shall also notify the Child Support Unit of any petition filed pursuant to this section and the Child Support Unit shall release to the court any information which it has been provided regarding the risk of harm; however, the Child Support Unit shall not be made a party to the action. Further, the attorney for the Child Support Unit, in any proceeding herein, shall not be deemed to be appearing in a representative capacity for any party. The court may also request information directly from the Federal Parent Locator Service from the Child Support Unit of another state, and from any other source.
In determining whether disclosure of personal data could be harmful to the parent or child, the court shall consider any relevant information provided by the parent or child, any information provided by the Child Support Unit or by the Child Support Unit of another state, and any evidence provided by the person seeking the personal data. Documentary evidence transmitted to the court by facsimile, telecopier or other means that do not provide an original writing may not be excluded from evidence on an objection based on the means of transmission. The court may permit a party or witness to be deposed or to testify by telephone, audiovisual means, or other electronic means.
The court may enter an order (1) impounding the personal data and prohibiting any disclosure by the court or its agents, (2) permitting disclosure by the court or its agents to a specific person or persons, or (3) removing any restrictions on disclosure by the court and its agents. An order permitting disclosure of personal data may specify the purposes for which the data may be used and may prohibit a person to whom the data is disclosed from making further disclosures to any other person. The court shall notify the Child Support Unit of any order entered pursuant to this section. Any person or agency who violates an order issued pursuant to this section may be held in contempt of court and subject to the penalties provided herein.
The court may disclose location information about a parent for the limited purpose of notifying the parent of a proceeding under this section or of any other proceeding in court, provided that such information shall not be disclosed to another party unless the court issues an order pursuant to this section permitting such disclosure.
SECTION 7. Section 43-19-46, Mississippi Code of 1972, is amended as follows:
43-19-46. (1) Each employer, as defined in Section 93-11-101,doing business in Mississippi shall report to the Directory of New Hires within the Child Support Unit of the Office of Attorney General:
(a) The hiring of any person who resides or works in this state to whom the employer anticipates paying wages; and
(b) The hiring or return to work of any employee who was laid off, furloughed, separated, granted leave without pay or was terminated from employment.
(2) Employers shall report, by mailing or by other means authorized by the Child Support Unit, a copy of the employee's W-4 form or its equivalent which will result in timely reporting. Each employer shall submit reports within fifteen (15) days of the hiring, rehiring or return to work of the employee. The report shall contain:
(a) The employee's name, address, social security number and the date of birth;
(b) The employer's name, address, and federal and state withholding tax identification numbers; and
(c) The date upon which the employee began or resumed employment, or is scheduled to begin or otherwise resume employment.
(3) The Child Support Unit shall retain the information, which shall be forwarded to the federal registry of new hires.
(4) The Child Support Unit may operate the program, may enter into a mutual agreement with the Mississippi Department of Employment Security or the State Tax Commission, or both, for the operation of the Directory of New Hires Program, or the Child Support Unit may contract for such service, in which case the Child Support Unit shall maintain administrative control of the program.
(5) In cases in which an employer fails to report information, as required by this section, an administratively levied civil penalty in an amount not to exceed Five Hundred Dollars ($500.00) shall apply if the failure is the result of a conspiracy between the employer and employee to not supply the required report or to supply a false or incomplete report. The penalty shall otherwise not exceed Twenty-five Dollars ($25.00). Appeal shall be as provided in Section 43-19-58.
SECTION 8. Section 43-19-47, Mississippi Code of 1972, is amended as follows:
43-19-47. (1) The Child Support Unit of the Office of Attorney General * * * may appoint at least one (1) full-time staff attorney in or for each chancery court district for the purpose of initiating proceedings under the provisions of Sections 43-19-31 through 43-19-53 in securing child support and establishing paternity. The qualifications and annual salary of each of the attorneys appointed by the Child Support Unit, * * * under the provisions of Sections 43-19-31 through 43-19-53 shall be fixed at such sums as may be deemed proper in accordance with the salaries of other full-time employed state attorneys with the Attorney General's Office. Such salaries, inclusive of all reimbursable travel and other expenses, inclusive of financial arrangements perfected with the appropriate courts, the law enforcement officials and the district attorneys, shall be paid monthly from the funds appropriated to the Child Support Unit of the Office of Attorney General and from the special fund for the Division of Child Support in which the interest from its accounts and all attorney's fees and other fees is placed. The Mississippi Personnel Board shall survey the salaries of other Mississippi attorneys with the Attorney General's Office each year and shall raise the start step of the staff and senior attorneys accordingly and the minimum shall never go below Forty Thousand Dollars ($40,000.00) for staff attorneys or Fifty Thousand Dollars ($50,000.00) for senior attorneys.
(2) To assist in the implementation of the provisions of Sections 43-19-31 through 43-19-53, the Attorney General is empowered to enter into cooperative agreements with district attorneys, county attorneys and attorneys employed by the county boards of supervisors * * *. Said cooperative agreements shall be made in compliance with the regulations established by the Secretary of the Department of Health and Human Services, and may be funded either by funds appropriated to the Child Support Unit of the Office of Attorney General or funds appropriated by any county board of supervisors in this state for their respective county. Attorneys may be hired contractually to be paid in amounts commensurate with the Child Support Unit's staff attorneys.
SECTION 9. Section 43-19-48, Mississippi Code of 1972, is amended as follows:
43-19-48. (1) The Child Support Unit and financial institutions doing business in the state are required to enter into agreements:
(a) To develop and operate a data match system, using automated data exchanges, in which each such financial institution is required to provide for each calendar quarter the name, record address, social security number or other taxpayer identification number, and other identifying information for each noncustodial parent who maintains an account at such institution and who owes past-due support, as identified by the Child Support Unit by name and social security number or other taxpayer identification number;
(b) To encumber or surrender, as the case may be, assets held by such institution on behalf of any noncustodial parent who is subject to a child support lien; and
(c) To provide for payment of reasonable fees to financial institutions for conducting data matches, and for responding to other requests made pursuant to this section, with such fees not to exceed the actual costs incurred by such financial institutions.
(2) When the operation of such data match system results in the location of an account of a noncustodial parent who owes past-due support, or when such account is located through any means, the Child Support Unit may request and shall receive additional financial or other information including account numbers, names and social security numbers on record for accounts, and account balances, from any financial institution needed to establish, modify or enforce a support order.
(3) The Child Support Unit shall have the authority to encumber and seize assets held by an obligor in a financial institution doing business in Mississippi. Such assets shall be encumbered for either:
(a) A forty-five-day period; or
(b) Until such time as the issue of overdue support is resolved, provided the obligor has filed a petition for hearing with a court of appropriate jurisdiction and the financial institution receives written notice thereof from the Child Support Unit before the end of the said forty-five-day period.
(4) Notice of such encumbrance initiated by the Child Support Unit shall be provided to the financial institution and to the obligor:
(a) The Child Support Unit shall send, by certified mail, notice to the financial institution with which the account is placed, directing that the financial institution shall:
(i) Immediately encumber funds in any account(s) in which the obligor has an interest, and to the extent of the debt indicated in the notice from the Child Support Unit;
(ii) Forward the encumbered funds to the Child Support Unit after either the forty-five-day period stated in subsection 3(a) of this section, or a determination favorable to the Child Support Unit by a court of appropriate jurisdiction; or
(iii) In the event the obligor prevails before the court, immediately release said funds to the obligor.
(b) Notice shall be delivered to the obligor at the current mailing address as recorded by the Child Support Unit. Such notice shall be sent by regular mail at the commencement of the action described herein.
(c) The financial institution shall not disclose to an account holder or the depositor that the name of such person has been received from or furnished to the Child Support Unit. The financial institution shall disclose to its account holders or its depositors that under the data match system the Child Support Unit has the authority to request certain identifying information on the account holders' or the depositor's accounts.
(5) Challenges to encumbrance of an account:
(a) Challenges to such levy for child support arrearage may be initiated only by the obligor or by an account holder of interest.
(b) Challenges shall be made by the filing of a petition for hearing by the obligor in a court of appropriate jurisdiction under Rule 81(d)(2) of the Mississippi Rules of Civil Procedure. Service upon the Child Support Unit shall be as prescribed by Rule 4(d)(5) of the Mississippi Rules of Civil Procedure.
(c) Grounds for the petition challenging the encumbrance shall be limited to:
(i) Mistakes of identity; or
(ii) Mistakes in amount of overdue support.
(6) Liability of the financial institution and the Child Support Unit:
(a) Neither the Child Support Unit nor the financial institution shall be liable for any applicable early withdrawal penalties on the obligor's account(s).
(b) A financial institution shall be absolutely immune from any civil liability under any law or regulation to any person for the disclosure of or failure to disclose any information pursuant to this chapter or for the escrow, encumbrance, seizure or surrender of any assets held by the financial institution in response to any notice issued by the * * * Child Support Unit or any contractors or agents thereof unless the disclosure or failure to disclose was willful or intentional, or for any other action taken in good faith to comply with the requirements of this chapter.
(7) Any amount encumbered and forwarded by the financial institution under this section shall not exceed the arrearage owed by the obligor.
(8) The provisions herein and any other relevant sections shall be employed equally by authorized contractors of the Child Support Unit to collect delinquent support payments.
(9) A financial institution shall not be liable under federal or state law to any person:
(a) For any disclosure of information to the Child Support Unit;
(b) For encumbering or forwarding any assets held by such financial institution in response to a notice of lien or levy;
(c) For any other action taken in good faith to comply with the requirements of subsection (1)(a) or (b) above.
(10) Definitions. For purposes of this section:
(a) The term "financial institution" has the meaning given to such by Section 81-12-3, Mississippi Code of 1972, and shall include, but not be limited to, credit unions, stock brokerages, public or private entities administering retirement, savings, annuities, life insurance and/or pension funds;
(b) The term "account" means a demand deposit account, checking or negotiable withdrawal order account, savings account, time deposit account or money-market mutual fund account.
(11) Failure to comply with the provisions of this section or the willful rendering of false information shall subject the financial institution to a fine of not less than One Thousand Dollars ($1,000.00).
SECTION 10. Section 43-19-49, Mississippi Code of 1972, is amended as follows:
43-19-49. There is hereby authorized to be employed by the Child Support Unit of the Office of Attorney General such other, investigative, technical, secretarial and supportive staff as may be necessary for the proper and necessary implementation of the requirements of Public Law 93-647, 93rd Congress, and any amendments adopted thereto applicable to said program as provided under Sections 43-19-31 through 43-19-53; said positions shall be subject to the merit system's rules and regulations and their salaries shall be fixed in such amounts as the Attorney General may deem proper.
SECTION 11. Section 43-19-53, Mississippi Code of 1972, is amended as follows:
43-19-53. Not later than sixty (60) days after the first day of January of each year, the Child Support Unit shall cause to be published for the preceding calendar year a detailed report showing the total number of cases in the aid to dependent children program reported on the basis of fraud or suspected fraud, the total number investigated, prosecuted and disposed of civilly and/or criminally in each county of the state and the total number of support and paternity cases reported, investigated, continued, prosecuted civilly, and the total amount of support collected.
SECTION 12. Section 43-19-55, Mississippi Code of 1972, is amended as follows:
43-19-55. The Child Support Unit of the Office of Attorney General shall be authorized in maintaining separate accounts with Mississippi banks to handle funds received as incentives from the federal government earned as a result of collecting support and also any funds maintained on deposit as a result of federal and state income tax offsets and any other relevant account, and to aggressively manage the float in these accounts so as to accrue maximum interest advantage of the funds in the account, and to retain all earned interest on these funds to be applied to defray the expenses of the Child Support Unit.
SECTION 13. Section 43-19-57, Mississippi Code of 1972, is amended as follows:
43-19-57. (1) Any administrative subpoena issued by the Child Support Unit of the Office of Attorney General pursuant to the provisions of Laws, 1997, Chapter 588, shall be directed to the appropriate party or entity and signed by the Attorney General, or his designee.
(2) A person wishing to appeal the issuance of an administrative subpoena shall have recourse to the chancery courts as for any subpoena.
SECTION 14. Section 43-19-58, Mississippi Code of 1972, is amended as follows:
43-19-58. (1) Persons wishing to contest the imposition of an administrative civil penalty under the provisions of Laws, 1997, Chapter 588, shall be entitled to a hearing before the Child Support Unit by so requesting within twenty (20) days after receiving notice of the imposition of the administratively imposed civil penalty. The request shall identify the civil penalty contested and legibly state the contestant's name, mailing address and home and daytime phone numbers. The date, time and place for the hearing shall be made as convenient as possible for the contestant, who shall receive notice thereof not less than seven (7) days before the hearing. A hearing on whether to impose a civil penalty and to consider circumstances in mitigation shall be held on the time and the place specified in the notice. The contestant may appear in person, through his attorney or, prior to the date set for the hearing, submit written testimony and other evidence, subject to the penalty for false swearing, for entry in the hearing record.
(2) After the hearing, the Child Support Unit shall issue its order, which may be appealed to the chancery court of the county in which the contestant resides in the same manner as is provided by law for appeals originating from county courts.
(3) The Child Support Unit may file the order assessing the penalty, or a certified copy of the order, with the clerk of any chancery court in the state after expiration of the time in which an appeal may be taken, or final determination of the matter on appeal, whereupon the order assessing the penalty shall be enrolled on the judgment roll and may be enforced in the same manner as a judgment.
SECTION 15. Section 43-19-59, Mississippi Code of 1972, is amended as follows:
43-19-59. (1) The Child Support Unit of the Office of Attorney General, as the Title IV-D child support enforcement agency of this state, shall use high-volume automated administrative enforcement, to the same extent as used for intrastate cases, in response to a request made by another state to enforce support orders, and shall promptly report the results of such enforcement procedure to the requesting state.
(2) In this section, "high-volume, automated administrative enforcement" means the use of automatic data processing to search various available state databases, including, but not limited to, license records, employment service data, and state new hire registries, to determine whether information is available regarding a parent who owes a child support obligation.
(3) The Child Support Unit may, by electronic or other means, transmit to another state or receive from another state a request for assistance in enforcing support orders through high-volume, automated administrative enforcement, which request:
(a) Shall include such information as will enable the state to which the request is transmitted to compare the information about the cases to the information in the data bases of the state receiving the request; and
(b) Shall constitute a certification by the requesting state:
(i) Of the amount of support under an order the payment of which is in arrears; and
(ii) That the requesting state has complied with all procedural due process requirements applicable to each case.
(c) If the Child Support Unit provides assistance to another state with respect to a case, or if another state seeks assistance from the Child Support Unit pursuant to this section, neither state shall consider the case to be transferred to the caseload of such other state.
SECTION 16. This act shall take effect and be in force from and after July 1, 2005.