PRINTER'S NO. 3291
No. 2252 Session of 2008
INTRODUCED BY CALTAGIRONE, MARSICO, BELFANTI, FRANKEL, HARKINS, HENNESSEY, HERSHEY, MUNDY AND SIPTROTH, FEBRUARY 29, 2008
REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 29, 2008
AN ACT 1 Amending Title 23 (Domestic Relations) of the Pennsylvania 2 Consolidated Statutes, further providing for child medical 3 support, annual fees, review of orders of support, effect of 4 incarceration, pass-through of support and assignment of 5 support. 6 The General Assembly of the Commonwealth of Pennsylvania 7 hereby enacts as follows: 8 Section 1. Section 4326(a), (b), (c), (d) and (l) of Title 9 23 of the Pennsylvania Consolidated Statutes are amended to 10 read: 11 § 4326. Mandatory inclusion of child medical support. 12 (a) General rule.--In every proceeding to establish or 13 modify an order which requires the payment of child support, the 14 court shall ascertain the ability of each parent to provide 15 [health care coverage] medical support for the children of the 16 parties, and the order shall [provide health care coverage for 17 each child as appropriate.] include a requirement for medical 18 support to be provided by either or both parents, provided that 19 such medical support is accessible to the children.
1 (b) Noncustodial parent requirement.--If [health care 2 coverage] medical support is available at a reasonable cost to a 3 noncustodial parent [on an employment-related or other group 4 basis], the court shall require that the noncustodial parent 5 provide such [coverage] medical support to the children of the 6 parties. In cases where there are two noncustodial parents 7 having such [coverage] medical support available, the court 8 shall require one or both parents to provide [coverage] medical 9 support. 10 (c) Custodial parent requirement.--If [health care coverage] 11 medical support is available at a reasonable cost to a custodial 12 parent [on an employment-related or other group basis], the 13 court shall require that the custodial parent provide such 14 [coverage] medical support to the children of the parties, 15 unless adequate [health care coverage] medical support has 16 already been provided through the noncustodial parent. In cases 17 where the parents have shared custody of the child and 18 [coverage] medical support is available to both, the court shall 19 require one or both parents to provide [coverage] medical 20 support, taking into account the financial ability of the 21 parties and the extent of [coverage] medical support available 22 to each parent. 23 (d) Additional requirement.--If the court finds that [health 24 care coverage] medical support is not available to either parent 25 at a reasonable cost [on an employment-related or other group 26 basis], the court shall order either parent or both parents to 27 obtain medical support for the parties' children [health 28 insurance coverage] which is available at reasonable cost. 29 * * * 30 (l) Definitions.--As used in this section, the following 20080H2252B3291 - 2 -
1 words and phrases shall have the meanings given to them in this
2 subsection:
3 "Birth-related expenses." Costs of reasonable and necessary
4 health care for the mother or child or both incurred before,
5 during or after the birth of a child born in or out of wedlock
6 which are the result of the pregnancy or birth and which benefit
7 either the mother or child. Charges not related to the pregnancy
8 or birth shall be excluded.
9 "Child." A child to whom a duty of child support is owed.
10 "Health care coverage." Coverage for medical, dental,
11 orthodontic, optical, psychological, psychiatric or other health
12 care services for a child. For the purposes of this section,
13 medical assistance under Subarticle (f) of Article IV of the act
14 of June 13, 1967 (P.L.31, No.21), known as the Public Welfare
15 Code, shall not be considered health care coverage.
16 "Insurer." A foreign or domestic insurance company,
17 association or exchange holding a certificate of authority under
18 the act of May 17, 1921 (P.L.682, No.284), known as The
19 Insurance Company Law of 1921; a risk-assuming preferred
20 provider organization operating under section 630 of The
21 Insurance Company Law of 1921; a health maintenance organization
22 holding a certificate of authority under the act of December 29,
23 1972 (P.L.1701, No.364), known as the Health Maintenance
24 Organization Act; a fraternal benefit society holding a
25 certificate of authority under the former act of December 14,
26 1992 (P.L.835, No.134), known as the Fraternal Benefit Societies
27 Code; a hospital plan corporation holding a certificate of
28 authority under 40 Pa.C.S. Ch. 61 (relating to hospital plan
29 corporations); a professional health service plan corporation
30 holding a certificate of authority under 40 Pa.C.S. Ch. 63
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1 (relating to professional health services plan corporations); or 2 a similar entity authorized to do insurance business in this 3 Commonwealth. 4 "Medical child support order." An order which relates to the 5 child's right to receive certain health care coverage and which: 6 (1) includes the name and last known mailing address of 7 the parent providing health care coverage and the name and 8 last known mailing address of the child; 9 (2) includes a reasonable description of the type of 10 coverage to be provided or includes the manner in which 11 coverage is to be determined; 12 (3) designates the time period to which the order 13 applies; 14 (4) if coverage is provided through a group health plan, 15 designates each plan to which the order applies as of the 16 date the order is written; 17 (4.1) requires that, if health care coverage is provided 18 through the noncustodial parent's employer and that parent 19 changes employment, the provisions of the order will remain 20 in effect for the duration of the order and will 21 automatically apply to the new employer. The new employer 22 shall enroll the child in health care coverage without need 23 for an amended order unless the noncustodial parent contests 24 the enrollment; and 25 (5) includes the name and address of the custodial 26 parent. 27 "Medical support." Health care coverage, which includes 28 coverage under a health insurance plan or government-subsidized 29 health care coverage, including payment of costs of premiums, 30 copayments, deductibles and capitation fees, and payment for 20080H2252B3291 - 4 -
1 medical expenses incurred on behalf of a child. 2 "Reasonable cost." Cost of health care coverage that does 3 not exceed 5% of the party's net monthly income and, if the 4 obligor is to provide health care coverage, the cost of the 5 premium when coupled with a cash child support obligation and 6 other child support-related obligations does not exceed the 7 amounts allowed by the Federal threshold set forth in the 8 Consumer Credit Protection Act (Public Law 90-321, 15 U.S.C. § 9 1601 et seq.). 10 Section 2. Section 4351 of Title 23 is amended by adding a 11 subsection to read: 12 § 4351. Costs and fees. 13 * * * 14 (a.1) Annual fee.--The Commonwealth shall impose a fee of 15 $25 in each case in which an individual has never received 16 assistance under Title IV-A of the Social Security Act (49 Stat. 17 620, 42 U.S.C. § 301 et seq.) and for whom the Commonwealth has 18 collected at least $500 of support in a Federal fiscal year. The 19 Commonwealth shall pay the $25 fee for those cases in which the 20 annual collection is between $500 and $1,999.99. The $25 fee 21 shall be collected from the custodial parent in cases where 22 annual collections equal $2,000 or more. 23 * * * 24 Section 3. Section 4352(a.1) of Title 23 is amended and the 25 section is amended by adding a subsection to read: 26 § 4352. Continuing jurisdiction over support orders. 27 * * * 28 (a.1) Automatic review.--[A method shall be developed for 29 the automatic review of] Upon request of either parent, or 30 automatically if there is an assignment under Title IV-A of the 20080H2252B3291 - 5 -
1 Social Security Act (49 Stat. 620, 42 U.S.C. § 301 et seq.), 2 each order of support shall be reviewed at least once every 3 three years from the date of establishment or the most recent 4 review[,]. The review shall be for the purpose of making any 5 appropriate increase, decrease, modification or rescission of 6 the order. During the [automatic] review, taking into the 7 account the best interest of the child involved, the court shall 8 adjust the order, without requiring proof of a change in 9 circumstances, by applying the Statewide guidelines or a cost- 10 of-living adjustment in accordance with a formula developed by 11 general rule. Automated methods, including automated matches 12 with wage or State income tax data, may be used to identify the 13 support orders eligible for review and implement appropriate 14 adjustments. [If, however, it is determined that such a review 15 would not be in the best interests of the child and neither 16 parent nor the department, if it has an assignment or other 17 interest, has requested a review, no review shall be required.] 18 (a.2) Effect of incarceration.--Incarceration, except 19 incarceration for nonpayment of support, shall constitute a 20 material and substantial change in circumstance that may warrant 21 modification or termination of an order of support where the 22 obligor lacks verifiable income or assets sufficient to enforce 23 and collect amounts due. 24 * * * 25 Section 4. Sections 4374(c) and (d) and 4378(b) of Title 23 26 are amended to read: 27 § 4374. State disbursement unit. 28 * * * 29 (c) Allocation of collections.--Subject to subsections (d), 30 (e), (f) and (f.1), support collected on behalf of a family 20080H2252B3291 - 6 -
1 shall be distributed as follows: 2 (1) In the case of a family receiving cash assistance 3 from the Commonwealth: 4 (i) First, [pay to the Federal Government an amount 5 equal to the Federal share of the amount collected.] from 6 the amount of current support collected, pass through to 7 the assistance group the first $100 per month for one 8 child or the first $200 per month for two or more 9 children, or the first $50 per month for spousal support, 10 without decreasing the amount of cash assistance, 11 provided, however, that in no event may any assistance 12 group be paid more than one support pass-through payment 13 per month. 14 (ii) Second, [after application of subparagraph (i), 15 from the amount remaining, pass through to the assistance 16 group the first $50 per month of current child or spousal 17 support collected without decreasing the amount of cash 18 assistance, provided, however, that in no event may any 19 assistance group be paid more than one support pass- 20 through payment per month.] calculate the Federal 21 Government's share of the remaining amount collected. 22 (iii) Third, pay the Federal Government's share and 23 retain the remainder of the amount collected to reimburse 24 the Commonwealth until the amount [reimbursed] equals the 25 amount of unreimbursed cash assistance paid to the 26 [family] assistance group. 27 (iv) Fourth, pay to the [family] assistance group 28 any amounts collected in excess of the amounts 29 distributed or retained under subparagraphs (i), (ii) and 30 (iii). 20080H2252B3291 - 7 -
1 (2) In the case of a family that formerly received cash 2 assistance from the Commonwealth: 3 (i) first, pay to the family the current support 4 collected that does not exceed the court-ordered amount 5 to be paid in the month; and 6 (ii) second, treat amounts collected in excess of 7 the current support collected as arrearages and 8 distribute as follows: 9 (A) In the case of arrearages that accrued after 10 the family ceased to receive cash assistance from the 11 Commonwealth and which are collected after October 1, 12 1998: 13 (I) first, pay the family up to the amount 14 of arrearages that accrued after the family 15 ceased to receive cash assistance from the 16 Commonwealth; 17 (II) second, treat the balance as 18 reimbursement of assistance in an amount not to 19 exceed the total amount of unreimbursed cash 20 assistance paid to the family and: 21 (a) pay an amount equal to the Federal 22 share of the reimbursed amount to the Federal 23 Government; and 24 (b) retain for the Commonwealth an 25 amount equal to the non-Federal share of the 26 reimbursed amount; and 27 (III) third, pay any remaining amount to the 28 family. 29 (C) In the case of arrearages that accrued 30 before the family received cash assistance from the 20080H2252B3291 - 8 -
1 Commonwealth and which are collected after October 1, 2 1998: 3 (I) first, pay to the family up to the 4 amount of arrearages that accrued before the 5 family began to receive cash assistance from the 6 Commonwealth; 7 (II) second, treat the balance as 8 reimbursement of assistance in an amount not to 9 exceed the total amount of unreimbursed cash 10 assistance paid to the family and: 11 (a) pay an amount equal to the Federal 12 share of the reimbursed amount to the Federal 13 Government; and 14 (b) retain for the Commonwealth an 15 amount equal to the non-Federal share of the 16 reimbursed amount; and 17 (III) third, pay any remaining amount to the 18 family. 19 (D) In the case of arrearages that accrued while 20 the family received cash assistance from the 21 Commonwealth: 22 (I) first, treat the amount collected as 23 reimbursement of assistance in an amount not to 24 exceed the total amount of unreimbursed cash 25 assistance paid to the family and: 26 (a) pay an amount equal to the Federal 27 share of the reimbursed amount to the Federal 28 Government; and 29 (b) retain for the Commonwealth an 30 amount equal to the non-Federal share of the 20080H2252B3291 - 9 -
1 reimbursed amount; and 2 (II) second, pay any remaining amount to the 3 family. 4 (E) Notwithstanding clauses (A) through (C), the 5 right to any support obligation assigned to the 6 Commonwealth as a condition of receiving cash 7 assistance in effect on September 30, 1997, shall 8 remain assigned after that date. 9 (F) Except for amounts assigned to the 10 Commonwealth under subsection (d), beginning October 11 1, 1998, any support arrearages collected shall be 12 credited as follows: 13 (I) first, to the period after the family 14 ceased to receive assistance; 15 (II) second, to the period before the family 16 received assistance; and 17 (III) third, to the period during which the 18 family received assistance. 19 (3) In the case of a family that never received cash 20 assistance from the Commonwealth, all support collections 21 shall be paid to the family[.] with the exception of the 22 federally mandated $25 annual fee collected from the 23 custodial parent as required under § 4351(a.1) (relating to 24 costs and fees). 25 (d) Retention by Commonwealth.-- 26 (1) Arrearages collected through use of the Internal 27 Revenue Service Tax Refund Offset Program for a family 28 receiving cash assistance shall be retained by the 29 Commonwealth to the extent past due support has been assigned 30 to the department as a condition of receiving assistance. 20080H2252B3291 - 10 -
1 Arrearages collected through use of the Internal Revenue 2 Service Tax Refund Offset Program for a family that formerly 3 received cash assistance shall first be applied to the 4 monthly support obligation, and the balance shall be applied 5 to arrears owed the family, including assignments of 6 arrearages that accrued before the family received assistance 7 from the Commonwealth and that were executed between October 8 1, 1997, and September 30, 2009. Any remaining arrearages 9 shall be paid to the department. The department shall pay to 10 the Federal Government the Federal share of the amounts so 11 retained. In no event shall the total of amounts paid to the 12 Federal Government and retained by the department exceed the 13 total of the amount of cash assistance paid to the family by 14 the Commonwealth. To the extent that the amounts collected 15 exceed the amount retained, the department shall pay the 16 excess to the family. 17 (2) Notwithstanding any other provision of law, the 18 federally mandated $25 annual fee collected from the 19 custodial parent as required under § 4351(a.1) shall be 20 retained by the department. 21 * * * 22 § 4378. Assistance recipients to seek support. 23 * * * 24 (b) Assignment.--Acceptance of assistance shall operate as 25 an assignment to the department, by operation of law, of the 26 assistance recipient's rights to receive support on his or her 27 own behalf and on behalf of any family member with respect to 28 whom the recipient is receiving assistance. Such assignment 29 shall be effective only up to the amount of assistance 30 received[.] during the period that a family receives assistance. 20080H2252B3291 - 11 -
1 The assignment shall exclude arrears that accrued prior to 2 receipt of assistance. The assignment shall take effect at the 3 time that the recipient is determined to be eligible for 4 assistance. Upon termination of assistance payments, the 5 assignment of support rights shall terminate, provided that any 6 amount of unpaid support obligations shall continue as an 7 obligation to and collectible by the department to the extent of 8 any unreimbursed assistance consistent with Federal law. 9 Immediately upon receipt of notification from the department 10 that a recipient has been determined to be eligible for 11 assistance, the clerks of the appropriate courts of the 12 Commonwealth shall transmit any and all support payments that 13 they thereafter receive on behalf of such assistance recipients 14 to the department. Such clerks shall continue transmitting such 15 support payments until notified by the department that it is no 16 longer necessary to do so. While the recipient is receiving 17 assistance, any such support payments made to or on behalf of 18 the assistance recipient shall be allocated to any amount due 19 the department as assignee of the recipient's support rights 20 consistent with Federal law. The assistance recipient shall be 21 deemed to have appointed the department as his attorney-in-fact 22 to endorse over to the department any and all drafts, checks, 23 money orders or other negotiable instruments submitted for 24 payment of support due during the time the recipient is 25 receiving assistance on behalf of himself, herself or any family 26 member. 27 * * * 28 Section 5. This act shall take effect as follows: 29 (1) The amendment of 23 Pa.C.S. § 4374(c)(1) and (d)(1) 30 shall take effect October 1, 2008. 20080H2252B3291 - 12 -
1 (2) The amendment of 23 Pa.C.S. § 4378(b) shall take 2 effect October 1, 2009. 3 (3) The remainder of this act shall take effect 4 immediately. A23L23MSP/20080H2252B3291 - 13 -