Section 160.65  Modification of Support Obligations

 

a)         Definitions

 

1)         "Order for support" means any court or administrative order establishing the level of child support due to a child from the responsible relative.

 

2)         "Income Withholding Notice" means the notice served on a payor, pursuant to entry of a court or administrative order for support, that directs the payor to withhold a part of a responsible relative's income for payment of child support.

 

3)         "Assignment of support" has the meaning set forth in Section 160.5.

 

4)         "Assignment of medical support" has the meaning set forth in Section 160.5.

 

5)         "Health insurance" means health insurance or health plan coverage for the dependent child for whom support is sought.

 

6)         "Review" means the FSS comparison of the responsible relative's current financial ability to the existing order for support, as described in subsection (f) of this Section.

 

7)         "Quantitative Standard for Review" means the current financial ability of the responsible relative, as determined through modification review, is at least 20 percent above or below the existing order for support and the change is an amount equal to at least $10 a month.

 

b)         Review and Modification of Support Orders

 

1)         The Department, beginning October 13, 1993, shall review child support orders in Title IV-D cases at 36 month intervals after establishment, modification or the last review, whichever was the last to occur, unless:

 

A)        In a case in which there is an assignment of support or an assignment of medical support, the Department determines, in accordance with subsection (b)(3) of this Section, that a review would not be in the best interests of the child and neither parent has requested a review; or

 

B)        In a case in which there is no assignment of support or assignment of medical support, neither parent has requested a review; or

 

C)        In a case in which there is an assignment of medical support but no assignment of support, the order for support requires health insurance for the child covered by the order and neither parent has requested a review.

 

2)         Prior to the expiration of the 36 month period:

 

A)        The Department, in a case in which there is an assignment of support or an assignment of medical support, shall review the order if:

 

i)          an order for withholding has been served on the responsible relative's payor, and payments have been received by the Department within the 90 days prior to selection for review; and

 

ii)         the order for support does not require the responsible relative to provide health insurance for the child covered by the order; and

 

iii)         the Department has not determined that a review would not be in the best interests of the child.

 

B)        The Department, in a case in which there is no assignment of support or assignment of medical support, shall review orders as set forth in subsection (b)(2)(A) of this Section, but only with the consent of the client.

 

C)        The Department may review any order for support, unless it has determined that a review would not be in the best interests of the child, whenever a change in financial circumstances of the responsible relative becomes known through representations of the relative or of the client or from independent sources, and such change would materially affect ability to support.

 

3)         The Department shall determine that a review of an order for support would not be in the best interests of the child if there has been a finding of good cause, and it has been determined that support enforcement may not proceed without risk of harm to the child or caretaker relative.

 

c)         Notice of the Right to Request a Review

 

1)         In each Title IV-D case, the Department shall provide notice not less than once every three years to each parent subject to an order for support in the case.  The notice may be included in the order and shall inform the parent of the right to request a review of the order, where to request a review and the information which must accompany a request.

 

2)         The Department shall use the broadcast or print media at least twice a calendar year to publicize the right to request a review as part of the child support enforcement program, and include notice of this right as part of the information on IV-D services contained in its brochures, pamphlets and other printed materials describing the program.

 

d)         Notice of Review

 

1)         The Department shall notify the client and responsible relative that a review will be conducted at least 30 days before commencement of the review.

 

2)         The notice of review shall:

 

A)        Require completion of a form financial affidavit and return of the affidavit to the Department within 15 calendar days after the date the client or relative received the notice; and

 

B)        State that if, as a result of the review, action is taken to modify the order for support, the Department will order or request the court to order the responsible relative to provide health insurance.  However, in cases where the client is not receiving medical assistance, the notice shall state that health insurance may be ordered or requested only with the client's consent, as provided in Section 160.60(c)(7).

 

e)         Information Gathering and Employer Contact

 

1)         The Department shall capture all available responsible relative financial information from existing federal and State sources (for example, Illinois Department of Employment Security) through electronic data searches on all IV-D cases.

 

2)         The Department may send a notice to the responsible relative's employer, in accordance with Section 10-3.1 of the Illinois Public Aid Code [305 ILCS 5/10-3.1].  The notice shall:

 

A)        require the disclosure of responsible relative employment information, including but not limited to:

 

i)          the period of employment;

 

ii)         the frequency of wage payments;

 

iii)         gross wages, net pay and all deductions taken in reaching net pay;

 

iv)        the number of dependent exemptions claimed by the responsible relative; and

 

v)         health insurance coverage available to the responsible relative through the employer.

 

B)        require employer compliance within 15 calendar days after the employer's receipt of the notice.

 

3)         If the responsible relative fails to return a completed financial affidavit within 15 calendar days after receipt of the notice of review, and the relative's employer is unknown, the Department may use available means for obtaining the relative's financial information, e.g., service of a subpoena upon the responsible relative.

 

f)          Review of the Order for Support

 

1)         The FSS shall review any financial information concerning the responsible relative.  Where the responsible relative's information is not verified through an employer, wage stubs or income tax returns, the FSS shall seek other verification, e.g., subpoena of the responsible relative's income tax return.

 

2)         The FSS shall determine the responsible relative's current financial ability in accordance with the guidelines contained in Section 160.60(c).

 

3)         The FSS shall compare the responsible relative's current financial ability to the amount of the existing order for support and determine if the Quantitative Standard for Review has been met.

 

4)         The FSS shall determine if health insurance is being provided for the child under the order for support or whether the child's health care needs are being met through other means.  In no event shall the FSS consider a child's eligibility for, or receipt of, medical assistance to meet the need to provide for the child's health care needs.

 

g)         Notice of Review Results

The Department shall inform the client and responsible relative of the results of the review and provide a copy of the FSS calculation comparing the responsible relative's current financial ability to the amount of the existing order within 14 days after the review results are determined.  The client and responsible relative will be advised whether or not the Department will take action to modify the existing order for support and of the right to contest the determination.

 

1)         When the review indicates the Quantitative Standard for Review has not been met, the client and responsible relative, in both judicial and administrative cases, are advised as follows:

 

A)        The Department will not take action to modify the order for support.

 

B)        The Department will only take action to modify the order to require health insurance for the child covered by the order.

 

C)        Either parent may request a redetermination within 30 calendar days after the date of the notice by:

 

i)          signing and returning the request for a redetermination to the Department; and

 

ii)         providing financial documentation or information concerning the child's health care needs not furnished previously, which will substantiate the request.

 

2)         When the review indicates the Quantitative Standard for Review has been met, the client and responsible relative will be advised that:

 

A)        The Department will take action to modify the existing order for support in accordance with the review results.

 

B)        In cases involving the judicial process, each parent will be informed 30 calendar days in advance of the hearing date and will have the opportunity to contest the review results at that time.

 

C)        In cases where an administrative order for support is entered in accordance with subsection (h) of this Section:

 

i)          The client and responsible relative will be advised that he or she has until 30 calendar days after the date of mailing of the administrative order for support in which to petition the Department for a release from or modification of the order and receive a hearing in accordance with 89 Ill. Adm. Code 104.102. The client will be further advised that he or she may provide financial documentation or information concerning the child's health care needs not furnished previously that will substantiate the requested relief.

 

ii)         Where both the client and the responsible relative request a hearing, the two requests shall be merged and shall be disposed of simultaneously by the hearing proceeding.  The parties shall be advised of the right to present evidence at the hearing, including the client's right to provide financial documentation or information concerning the child's health care needs not furnished previously that will substantiate the requested relief.

 

iii)         Where the responsible relative requests a hearing and the client does not, the client shall again be advised of the right to present evidence at the hearing.

 

iv)        Where the client requests a hearing and the responsible relative does not, the responsible relative shall again be advised of the right to present evidence at the hearing.

 

3)         For purposes of calculating the 30 calendar day period in which to petition the Department for release from or modification of the administrative order for support or to request redetermination of the review results, the day immediately subsequent to the mailing of the order or determination shall be considered the first day and the day such request is received by the Department shall be considered as the last day.

 

h)         Further Actions Taken by the Department

 

1)         The Department shall take the following action when the FSS has determined in accordance with subsection (f) of this Section that the Quantitative Standard for Review has been met or when the Quantitative Standard for Review has not been met, but there is a determination that the order for support needs to be modified to require provision of health insurance:

 

A)        In a case involving an order for support entered by the court, the FSS shall:

 

i)          prepare a petition to modify, and obtain or affix appropriate signature thereto;

 

ii)         refer the case for legal action to modify the order for support pursuant to Section 510 of the Illinois Marriage and Dissolution of Marriage Act [750 ILCS 5/510]; and

 

iii)         provide the client and responsible relative with the notice described in subsection (g)(2)(B) of this Section.

 

B)        In a case involving an administrative order for support established under Section 160.60(d), or modified under this Section, the FSS shall enter an administrative order for support incorporating the results of the review and containing the information specified in Section 160.60(d)(5).  Any order for health insurance shall be entered in accordance with Section 160.60(c)(7).

 

i)          The FSS shall effect income withholding in accordance with Section 160.60(d)(6).

 

ii)         The FSS shall provide to the client and responsible relative copies of the administrative order for support together with the notice described in subsection (g)(2)(C) of this Section.

 

2)         Upon receipt of a petition for a release from, or modification of, an administrative order for support as described in subsection (g)(2)(C) of this Section within 30 calendar days after the date of mailing of such order, the Department will provide a hearing in accordance with 89 Ill. Adm. Code 104.102.  The 30 calendar day period shall be calculated in accordance with subsection (g)(3) of this Section.

 

3)         Upon receipt of a request for a redetermination as set forth in subsection (g)(1) of this Section within 30 calendar days after the date of mailing of the notice, the Department shall conduct such redetermination. The 30 calendar day period shall be calculated in accordance with subsection (g)(3) of this Section.

 

i)          Timeframes for Review and Modification

 

1)         In any case in which there is an assignment of support or an assignment of medical support, the Department shall determine within 15 calendar days after October 13, 1993, or the date the order is 36 months old, whichever is later, whether a review should be conducted as provided in subsection (b)(1) of this Section.

 

2)         Subsequent determinations about whether to review an order for support in a case in which there is an assignment of support or an assignment of medical support shall be made by the Department in accordance with subsection (b)(1) of this Section, at 36 month intervals based upon:

 

A)        the date the order for support was modified; or

 

B)        the date an order was entered determining that the order for support would not be modified; or

 

C)        the date the period expired for requesting redetermination of the Department's review decision not to seek modification of the order for support.

 

3)         Within 15 calendar days after receipt of a request for a review, the Department shall determine whether a review should be conducted in accordance with subsection (b)(1) of this Section.

 

4)         Within 180 calendar days after determining that a review should be conducted or locating the non-requesting parent, whichever occurs later, the Department shall:

 

A)        send the notice of review in accordance with subsection (d) of this Section;

 

B)        conduct a review of the order in accordance with subsection (f) of this Section;

 

C)        send the notice of review results in accordance with subsection (g) of this Section; and

 

D)        conclude any action to modify the order for support.

 

j)          Interstate Review and Modification

 

1)         Initiating Cases

 

A)        In any case in which there is an assignment of support or an assignment of medical support, the Department shall determine, within 15 calendar days after October 13, 1993, or the date the order for support is 36 months old, whichever date occurs later, whether a review should be conducted, as required under subsection (b)(1) of this Section, and whether the review should be conducted by the Department or another state.

 

B)        Subsequent determinations about whether to conduct a review shall be made in accordance with subsection (b)(1) of this Section, at 36 month intervals based upon:

 

i)          the date the order for support was modified; or

 

ii)         the date an order was entered determining that the order for support would not be modified; or

 

iii)         the date the period expired for requesting redetermination of a review decision not to seek modification of the order for support.

 

C)        Within 15 calendar days after receipt of a request for a review, the Department shall determine whether a review should be conducted, as required under subsection (b)(1) of this Section, and whether the review should be conducted by the Department or another state.

 

D)        Prior to the expiration of the 36 month period, the Department:

 

i)          shall review or request another state to review an order for support under the circumstances set forth in subsections (b)(2)(A) and (B) of this Section; and

 

ii)         may review or request another state to review an order for support as provided in subsection (b)(2)(C) of this Section.

 

E)         The Department shall determine in which state a review should be conducted after considering all relevant factors, including but not limited to:

 

i)          the location of existing orders;

 

ii)         the present residence of each party; and

 

iii)         whether a particular state has jurisdiction over the parties.

 

F)         In any case coming under the provisions of subsections (j)(1)(A), (B) and (C) of this Section, in which the Department has determined to request a review of an order for support in another state, the Department shall:

 

i)          send a request for review to that state within 20 calendar days after receipt of sufficient information to conduct the review and provide that state with sufficient information on the requestor of review to act on the request; and

 

ii)         send to the parent in Illinois a copy of any notice issued by the responding state in connection with the review and modification of the order, within five working days after receipt of such notice by the Department.

 

2)         Responding Cases

 

A)        Within 15 calendar days after receipt of a request for a review of an order for support in Illinois as the responding state, the Department shall determine whether a review should be conducted in accordance with subsection (b)(1) of this Section.

 

B)        Within 180 calendar days after determining that a review should be conducted or locating the non-requesting parent, whichever occurs later, the Department shall take the actions specified in subsection (i)(4) of this Section.

 

(Source:  Amended at 30 Ill. Reg. 8897, effective May 1, 2006)