This bill has been amended

Bill S5570A-2009

Relates to modifying child support orders, employer reporting of new hires and quarterly earnings, work experience programs and noncustodial earned income tax

Relates to modifying child support orders, employer reporting of new hires and quarterly earnings, work experience programs and noncustodial earned income tax credit.

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Actions

  • May 27, 2010: SUBSTITUTED BY A8952
  • May 25, 2010: ADVANCED TO THIRD READING
  • May 24, 2010: 2ND REPORT CAL.
  • May 18, 2010: 1ST REPORT CAL.589
  • May 3, 2010: NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
  • Jan 6, 2010: REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • Jun 19, 2009: PRINT NUMBER 5570A
  • Jun 19, 2009: AMEND AND RECOMMIT TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • May 18, 2009: REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS

Memo

 BILL NUMBER:  S5570A

TITLE OF BILL : An act to amend the tax law, the family court act, the domestic relations law and the social services law, in relation to the modification of child support orders, employer reporting of new hires and quarterly earnings, work programs and the noncustodial earned income tax credit

PURPOSE: OF THE BILL : This bill addresses some of the challenges facing low income families by making it easier to keep child support obligations commensurate with the parents' income and providing noncustodial parents with increased opportunities to participate in employment and training programs. The bill also would increase the number of children enrolled in employer-sponsored health insurance groups by requiring employers to report the availability of family coverage when they submit new hires or quarterly wage reports. This bill would also permit the Department of Taxation and Finance to share information needed to evaluate the enhanced earned income tax credit available to noncustodial parents with the Office of Temporary and Disability Assistance.

SUMMARY OF PROVISIONS : Section 1 of the bill would give the bill the title of the "Low Income Support Obligation and Performance Improvement Act."

Sections 2 and 5 of the bill would amend Tax Law §§ 606 and 697, respectively, to permit the Department of Taxation and Finance to share information needed to evaluate the impact of the Noncustodial Parent Earned Income Tax Credit.

Sections 3 and 4 of the bill would amend Tax Law §§ 171-a and 171-h, respectively, to require employers to report the availability of employer-sponsored family health insurance as part of the quarterly wage report and the new hires report.

Section 6 of the bill would amend Family Court Act (FCA) § 451 to conform the language of the FCA provision governing the modification of child support orders to the Domestic Relations Law (DRL) so that both provisions provide for a "substantial change in circumstance" as a basis for modification of an order of child support. This section would further provide two new bases for modification of an order of child support: (1) the passage of 3 years since the order was entered, last modified, or adjusted; or (2) a 15% percent change in either party's income since the order Was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. The bill would provide that incarceration is not a bar to finding a substantial change in circumstance under certain conditions and also would clarify that retroactive support is paid and enforceable as provided under FCA § 440.

Section 7 of the bill would amend DRL § 236B (9) (b) to separate out the "substantial change of circumstance" threshold for modification of orders of child support into its own section for the sake of clarity and would provide two new bases for the modification of an order of child support: (1) the passage of 3 years since the order was entered, last modified, or adjusted; or (2) a 15% percent change in either party's income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. The section would provide that incarceration

would not be a bar to finding a substantial change in circumstance under certain conditions.

Sections 8 and 9 of the bill would amend FCA § 440 and DRL § 236B (7), respectively, to require that all orders establishing a child support obligation contain a notice regarding the right to modify the order if there has been a substantial change in circumstance or the occurrence of the additional enumerated bases for modification.

Section 10 of the bill would add a new FCA § 437-a to authorize the Family Court to require the noncustodial parent of a child to seek employment, or to participate in job training, employment counseling or other programs designed to lead to employment, where such programs are available, if he or she is unemployed at the time the court is establishing the support order unless the noncustodial parent is in receipt of supplemental security income (SS1) or social security disability benefits (SSD).

Section 11 of the bill would amend Social Services Law (SSL) § 111-h to state that if the respondent is required to participate in work programs or activities, and if the order of support is made payable on behalf of persons in receipt of public assistance, the support collection unit may not file a petition to increase the support obligation for twelve months from the date of entry of the order if the respondent's income is derived from the work activity or program. .

Section 12 of the bill would. amend FCA §461 to reflect the two new bases for modification of an order of child support.

Section 13 of the bill would provide that the bill is effective 90 days after it becomes law, except that: (1) sections 6 and 7 would only apply to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill; and, (2) sections 3 and 4 take effect 365 days after the bill becomes law.

EXISTING LAW : FCA §§ 451 and 461, and DRL § 236B (9) set out the procedure to modify a child support order.

Tax Law § 606 (d-1) establishes the Noncustodial Parent Earned Income Tax Credit.

Tax Law § 697 sets limitations on the disclosure of tax return information.

FCA § 440 and DRL § 236B (7) set out the required provisions of a child support order.

Tax Law § 171-a contains the requirement that employers report wages on a quarterly basis.

Tax Law § 171-h contains the requirement that employers report new hires.

SSL § 111-h sets out the general duties and powers of the child support collection unit of the local - department of social services.

PRIOR LEGISLATIVE HISTORY : In the 2007 legislative session, S.4848 contained similar provisions to section 10 of this bill, but S.4848 was not reported from the Senate Judiciary Committee. In the 2008 legislative session, A.11684/S.7598-A contained the provisions of this bill. A.11684/S.7598-A was passed by the Assembly, but it was not reported from the Senate Investigations and Government Operations Committee.

STATEMENT IN SUPPORT : The child support program in New York State has made steady improvements since its inception. Child support collections have increased in record amounts. In 1999, the State collected over $1 billion in child support for the first time ever, and has continued to collect over $1 billion in child support in each subsequent year. In 2008, the State collected $1.727 billion in child support. Despite these improvements, there is still much more work to be done. This child support bill would help build upon New York's achievements in this vital area.

The bill contains provisions that would improve child support collection and enforcement in New York. Sections 6 and 7 would clarify and provide additional legal bases for modifying a child support order. The complexity of the legal issues and varying standards creates confusion and makes it difficult for low income parents to keep their obligation consistent with their ability to pay support.

Currently, there is no uniform threshold for modifying child support awards. While the DRL specifies that a child support order may be modified following a showing of a substantial change in circumstance, the FCA is silent on the issue. The courts have not applied this standard to all orders, instead creating two higher thresholds if the order incorporates but does not merge a separation agreement or stipulation of the parties. Parties in support proceedings deserve to know that they have a right to seek modification of the support amount and when that right accrues. Establishing two new bases for modification of the award would establish clear standards for review of orders of child support.

Over time, these amendments would keep orders commensurate with the child support guidelines, which are presumed to fix a fair and adequate level of child support. The level of support would be based on the current financial circumstances and income of the parties, while incorporating currently existing protections against voluntary reductions in income intended to avoid the parent's responsibility to support the child. Child support orders based on the parties' current income would presumably reduce the accumulation of uncollectible debt.

The proposed amendments would clarify existing law and make changes as follows. First, the proposed amendments would clearly state in the FCA that an order of child support may be modified upon a showing of a substantial change in circumstance and thereby harmonize the FCA with the DRL. Second, the amendments would provide for two alternative bases for obtaining a review of an order of child support - where there has been the passage of 3 years or a 15 percent change in a party's income since the order was entered, last modified or adjusted. The bill adopts and confirms the rule found in the existing body of case law in order to clarify that a reduction in income may not be considered even under the new 15% change in income basis unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. Third, the substantial change in circumstance threshold would apply prospectively to all orders of child support. If the order incorporates but does not merge a stipulation or settlement agreement, the amendment would be effective only if the stipulation or agreement was executed on or after the effective date of the amendment.

Parties who have consented or will consent to deviations from the basic child support order calculated under the Child Support Standards Act would be protected. The amendments would apply only to orders, stipulations or settlement agreements entered after the legislation becomes effective. The amendments would not affect vested rights under existing valid separation agreements or stipulations. In addition, in any modification proceeding, the terms of the parties' agreement may be considered by the court in determining whether the basic child support order calculated under the Child Support Standards Act is unjust or inappropriate (cf. Chamberlin v. Chamberlin, 99 N.Y.2d 328, 756 N.Y.S.2d 115 (2003)).

Application of the amendments to orders of child support incorporating but not merging separation agreements or stipulations would only operate prospectively. The bill is not anticipated to result in an immediate or long-term increase in the number of modification petitions filed.

Current law provides no notice in the order of support of a parent's right to modify their support order. As a result, parents are unclear when it is appropriate to file a modification petition to adjust the support obligation. Parties are not uniformly made aware of their rights to modify the order at the time obligations are established by the court. The proposed legislation would require notice of the right to apply for a modification of a support order and the requirements for application for modification in all support orders, so that parents know their rights and are encouraged to seek timely relief from the courts when it is appropriate.

The bill would provide that incarceration is not a bar to a finding of a substantial change in circumstance and is intended to address the impact of, the New York State Court of Appeals decision in Knights v. Knights, 71 N.Y.2d 865 (1988) and thereby clarify that a court may modify an order of child support where a party has been incarcerated considering the circumstances of the case; provided, however, that the incarceration is not the result of non-payment of child support or an offense against the custodial parent or child who is the subject of the order or judgment of child support.

The bill would also permit the Family Court to require an unemployed noncustodial parent to seek employment, participate in job training, employment counseling or other programs designed to lead to employment where available. For the purposes of this section, noncustodial parents in receipt of SSI or SSD may not be required to participate in such employment programs. This provision Would not limit the noncustodial parent's obligation to support his or her child. Nor would it curtail the court's obligation to set a fair and reasonable child support obligation in accordance with the Child Support Standards Act. No modification of the order would be sought for 12 months from the date of entry of the order if a noncustodial parent is or was enrolled in work programs or activities and the order of support is payable to a local department of social services pursuant to an assignment.

As part of the Governor's effort to provide universal health care coverage for New York children, the bill will aid the child support program in securing employer sponsored insurance for some of the State's neediest children. As of 2008, 139,376 children in the child support program were covered by employer-sponsored insurance through the program's efforts. When the child support program receives new employer information in a quarterly wage report or a new hires report, a medical execution, and the accompanying paperwork, must be mailed to the employer. The proposed legislation would require employers to identify the availability of employer-sponsored family health insurance when they report new hires and quarterly wages. If such insurance is not available from an employer, we can relieve the employer of handling unnecessary medical execution papers.

BUDGET IMPLICATIONS :

The bill is not expected to substantially impact the amount of child support collections. The provisions related to the Tax Law, permitting the Department of Taxation and Finance to share information needed to evaluate the Non-custodial Parent Earned Income Tax Credit, are not expected to have a substantial fiscal impact. EFFECTIVE DATE : This bill would take effect 90 days after it becomes a law, except that: (I) sections 6 and 7 would only apply to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill; and (2) sections 3 and 4 take effect 365 days after the bill becomes law.

Text

STATE OF NEW YORK ________________________________________________________________________ 5570--A 2009-2010 Regular Sessions IN SENATE May 18, 2009 ___________
Introduced by Sen. HASSELL-THOMPSON -- (at request of the Office of Temporary and Disability Assistance) -- read twice and ordered print- ed, and when printed to be committed to the Committee on Investi- gations and Government Operations -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the tax law, the family court act, the domestic relations law and the social services law, in relation to the modifi- cation of child support orders, employer reporting of new hires and quarterly earnings, work programs and the noncustodial earned income tax credit THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Short title. This act shall be known and may be cited as the "Low Income Support Obligation and Performance Improvement Act". S 2. Subsection (d-1) of section 606 of the tax law is amended by adding a new paragraph 8 to read as follows: (8) IN A REPORT PREPARED BY THE COMMISSIONER AND SUBMITTED TO THE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE, THE DEPARTMENT SHALL INCLUDE INFORMATION CONCERNING THE CREDIT ALLOWED PURSUANT TO THIS SUBSECTION INDICATING WHETHER OR NOT TAXPAYERS IDENTIFIED BY THE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE PURSUANT TO PARAGRAPH FOUR OF THIS SUBSECTION FILED AN INCOME TAX RETURN, FILED FOR A CREDIT, RECEIVED A CREDIT, AND THE AMOUNT OF ANY SUCH CREDIT. ANY INDIVIDUAL TAXPAYER INFORMATION FURNISHED BY THE DEPARTMENT PURSUANT TO THIS SECTION SHALL BE DEEMED CONFIDENTIAL AND MAY NOT BE DISCLOSED TO ANY THIRD PARTY AND THE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE IS PROHIBITED FROM USING THE INDIVIDUAL TAXPAYER INFORMATION EXCEPT FOR THE PURPOSE OF ANALYZING THE IMPACT OF THE CREDIT AND ITS EFFECT ON CHILD SUPPORT PAYMENTS.
S 3. Subdivision 1 of section 171-a of the tax law, as amended by chapter 398 of the laws of 1997, is amended to read as follows: (1) The department shall design, develop, implement and operate a wage reporting system within the department utilizing information submitted by employers as defined under article eighteen of the labor law. The department is authorized to require submission of a report, in such form and in such manner as prescribed by regulations for not more frequently than four times per annum, of the name, social security account number, and gross wages paid to each employee who resides or is employed in this state, whether or not such employee is a resident for purposes of this chapter and whether or not the wages of such employee are subject to withholding of tax or payments of tax under article twenty-two of this chapter. EMPLOYERS ALSO SHALL REPORT IF DEPENDENT HEALTH INSURANCE BENEFITS ARE AVAILABLE. No report shall be filed with respect to an employee of a state or local agency performing intelligence or counter- intelligence functions, if the head of such agency has determined that filing such a report could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission. S 4. Paragraphs (a) and (b) of subdivision 3 of section 171-h of the tax law, as added by chapter 398 of the laws of 1997, are amended to read as follows: (a) General. Employers shall furnish to the state directory of new hires a report that contains the name, address, and social security number of each newly hired or re-hired employee who works in the state, and the employer's name, address, and identification number as assigned pursuant to section six thousand one hundred nine of the internal reven- ue code of 1986. EMPLOYERS ALSO SHALL REPORT IF DEPENDENT HEALTH INSUR- ANCE BENEFITS ARE AVAILABLE AND THE DATE THE EMPLOYEE QUALIFIES FOR THE BENEFITS. (b) Format. Each report shall be submitted on a W-4 (employee's with- holding allowance certificate) form or, at employer option, an equiv- alent form and transmitted by first class mail, magnetically, or elec- tronically to the state directory of new hires. IN ADDITION, IF EACH REPORT IS SUBMITTED ON A W-4, AN ADDITIONAL FORM AS PRESCRIBED BY THE DEPARTMENT SHALL BE SUBMITTED TO REPORT IF DEPENDENT HEALTH INSURANCE BENEFITS ARE AVAILABLE AND THE DATE THE EMPLOYEE QUALIFIES FOR THE BENE- FITS. THAT ADDITIONAL FORM SHALL BE TRANSMITTED BY FIRST CLASS MAIL, MAGNETICALLY, OR ELECTRONICALLY TO THE STATE DIRECTORY OF NEW HIRES. S 5. Paragraph 3 of subsection (e) of section 697 of the tax law, as amended by section 4 of part V of chapter 57 of the laws of 2009, is amended to read as follows: (3) Nothing herein shall be construed to prohibit the department, its officers or employees from furnishing information to the office of temporary and disability assistance relating to the payment of the cred- it for certain household and dependent care services necessary for gain- ful employment under subsection (c) of section six hundred six of this article and the earned income credit under subsection (d) of section six hundred six of this article AND THE ENHANCED EARNED INCOME CREDIT UNDER SUBSECTION (D-1) OF SECTION SIX HUNDRED SIX OF THIS ARTICLE, or pursuant to a local law enacted by a city having a population of one million or more pursuant to subsection (f) of section thirteen hundred ten of this chapter, only to the extent necessary to calculate qualified state expenditures under paragraph seven of subdivision (a) of section four hundred nine of the federal social security act or to document the prop- er expenditure of federal temporary assistance for needy families funds under section four hundred three of such act. The office of temporary
and disability assistance may redisclose such information to the United States department of health and human services only to the extent neces- sary to calculate such qualified state expenditures or to document the proper expenditure of such federal temporary assistance for needy fami- lies funds. Nothing herein shall be construed to prohibit the delivery by the commissioner to a commissioner of jurors, appointed pursuant to section five hundred four of the judiciary law, or, in counties within cities having a population of one million or more, to the county clerk of such county, of a mailing list of individuals to whom income tax forms are mailed by the commissioner for the sole purpose of compiling a list of prospective jurors as provided in article sixteen of the judici- ary law. Provided, however, such delivery shall only be made pursuant to an order of the chief administrator of the courts, appointed pursuant to section two hundred ten of the judiciary law. No such order may be issued unless such chief administrator is satisfied that such mailing list is needed to compile a proper list of prospective jurors for the county for which such order is sought and that, in view of the responsi- bilities imposed by the various laws of the state on the department, it is reasonable to require the commissioner to furnish such list. Such order shall provide that such list shall be used for the sole purpose of compiling a list of prospective jurors and that such commissioner of jurors, or such county clerk, shall take all necessary steps to insure that the list is kept confidential and that there is no unauthorized use or disclosure of such list. Furthermore, nothing herein shall be construed to prohibit the delivery to a taxpayer or his or her duly authorized representative of a certified copy of any return or report filed in connection with his or her tax or to prohibit the publication of statistics so classified as to prevent the identification of partic- ular reports or returns and the items thereof, or the inspection by the attorney general or other legal representatives of the state of the report or return of any taxpayer or of any employer filed under section one hundred seventy-one-h of this chapter, where such taxpayer or employer shall bring action to set aside or review the tax based there- on, or against whom an action or proceeding under this chapter or under this chapter and article eighteen of the labor law has been recommended by the commissioner, the commissioner of labor with respect to unemploy- ment insurance matters, or the attorney general or has been instituted, or the inspection of the reports or returns required under this article by the comptroller or duly designated officer or employee of the state department of audit and control, for purposes of the audit of a refund of any tax paid by a taxpayer under this article, or the furnishing to the state department of labor of unemployment insurance information obtained or derived from quarterly combined withholding, wage reporting and unemployment insurance returns required to be filed by employers pursuant to paragraph four of subsection (a) of section six hundred seventy-four of this article, for purposes of administration of such department's unemployment insurance program, employment services program, federal and state employment and training programs, employment statistics and labor market information programs, worker protection programs, federal programs for which the department has administrative responsibility or for other purposes deemed appropriate by the commis- sioner of labor consistent with the provisions of the labor law, and redisclosure of such information in accordance with the provisions of sections five hundred thirty-six and five hundred thirty-seven of the labor law or any other applicable law, or the furnishing to the state office of temporary and disability assistance of information obtained or
derived from New York state personal income tax returns as described in paragraph (b) of subdivision two of section one hundred seventy-one-g of this chapter for the purpose of reviewing support orders enforced pursu- ant to title six-A of article three of the social services law to aid in the determination of whether such orders should be adjusted, or the furnishing of information obtained from the reports required to be submitted by employers regarding newly hired or re-hired employees pursuant to section one hundred seventy-one-h of this chapter to the state office of temporary and disability assistance, the state depart- ment of health, the state department of labor and the workers' compen- sation board for purposes of administration of the child support enforcement program, verification of individuals' eligibility for one or more of the programs specified in subsection (b) of section eleven hundred thirty-seven of the federal social security act and for other public assistance programs authorized by state law, and administration of the state's employment security and workers' compensation programs, and to the national directory of new hires established pursuant to section four hundred fifty-three-A of the federal social security act for the purposes specified in such section, or the furnishing to the state office of temporary and disability assistance of the amount of an overpayment of income tax and interest thereon certified to the comp- troller to be credited against past-due support pursuant to section one hundred seventy-one-c of this chapter and of the name and social securi- ty number of the taxpayer who made such overpayment, or the disclosing to the commissioner of finance of the city of New York, pursuant to section one hundred seventy-one-l of this chapter, of the amount of an overpayment and interest thereon certified to the comptroller to be credited against a city of New York tax warrant judgment debt and of the name and social security number of the taxpayer who made such overpay- ment, or the furnishing to the New York state higher education services corporation of the amount of an overpayment of income tax and interest thereon certified to the comptroller to be credited against the amount of a default in repayment of any education loan debt, including judg- ments, owed to the federal or New York state government that is being collected by the New York state higher education services corporation, and of the name and social security number of the taxpayer who made such overpayment, or the furnishing to the state department of health of the information required by paragraph (f) of subdivision two and subdivision two-a of section two thousand five hundred eleven of the public health law and by subdivision eight of section three hundred sixty-six-a and paragraphs (b) and (d) of subdivision two of section three hundred sixty-nine-ee of the social services law, or the furnishing to the state university of New York or the city university of New York respectively or the attorney general on behalf of such state or city university the amount of an overpayment of income tax and interest thereon certified to the comptroller to be credited against the amount of a default in repay- ment of a state university loan pursuant to section one hundred seven- ty-one-e of this chapter and of the name and social security number of the taxpayer who made such overpayment, or the disclosing to a state agency, pursuant to section one hundred seventy-one-f of this chapter, of the amount of an overpayment and interest thereon certified to the comptroller to be credited against a past-due legally enforceable debt owed to such agency and of the name and social security number of the taxpayer who made such overpayment, or the furnishing of employee and employer information obtained through the wage reporting system, pursu- ant to section one hundred seventy-one-a of this chapter, as added by
chapter five hundred forty-five of the laws of nineteen hundred seven- ty-eight, to the state office of temporary and disability assistance, the department of health or to the state office of the medicaid inspec- tor general for the purpose of verifying eligibility for and entitlement to amounts of benefits under the social services law or similar law of another jurisdiction, locating absent parents or other persons legally responsible for the support of applicants for or recipients of public assistance and care under the social services law and persons legally responsible for the support of a recipient of services under section one hundred eleven-g of the social services law and, in appropriate cases, establishing support obligations pursuant to the social services law and the family court act or similar provision of law of another jurisdiction for the purpose of evaluating the effect on earnings of participation in employment, training or other programs designed to promote self-suffici- ency authorized pursuant to the social services law by current recipi- ents of public assistance and care and by former applicants and recipi- ents of public assistance and care, (except that with regard to former recipients, information which relates to a particular former recipient shall be provided with client identifying data deleted), to the state office of temporary and disability assistance for the purpose of deter- mining the eligibility of any child in the custody, care and custody or custody and guardianship of a local social services district or of the office of children and family services for federal payments for foster care and adoption assistance pursuant to the provisions of title IV-E of the federal social security act by providing information with respect to the parents, the stepparents, the child and the siblings of the child who were living in the same household as such child during the month that the court proceedings leading to the child's removal from the household were initiated, or the written instrument transferring care and custody of the child pursuant to the provisions of section three hundred fifty-eight-a or three hundred eighty-four-a of the social services law was signed, provided however that the office of temporary and disability assistance shall only use the information obtained pursu- ant to this subdivision for the purpose of determining the eligibility of such child for federal payments for foster care and adoption assist- ance pursuant to the provisions of title IV-E of the federal social security act, and to the state department of labor, or other individuals designated by the commissioner of labor, for the purpose of the adminis- tration of such department's unemployment insurance program, employment services program, federal and state employment and training programs, employment statistics and labor market information programs, worker protection programs, federal programs for which the department has administrative responsibility or for other purposes deemed appropriate by the commissioner of labor consistent with the provisions of the labor law, and redisclosure of such information in accordance with the provisions of sections five hundred thirty-six and five hundred thirty- seven of the labor law, or the furnishing of information, which is obtained from the wage reporting system operated pursuant to section one hundred seventy-one-a of this chapter, as added by chapter five hundred forty-five of the laws of nineteen hundred seventy-eight, to the state office of temporary and disability assistance so that it may furnish such information to public agencies of other jurisdictions with which the state office of temporary and disability assistance has an agreement pursuant to paragraph (h) or (i) of subdivision three of section twenty of the social services law, and to the state office of temporary and disability assistance for the purpose of fulfilling obligations and
responsibilities otherwise incumbent upon the state department of labor, under section one hundred twenty-four of the federal family support act of nineteen hundred eighty-eight, by giving the federal parent locator service, maintained by the federal department of health and human services, prompt access to such information as required by such act, or to the state department of health to verify eligibility under the child health insurance plan pursuant to subdivisions two and two-a of section two thousand five hundred eleven of the public health law, to verify eligibility under the medical assistance and family health plus programs pursuant to subdivision eight of section three hundred sixty-six-a and paragraphs (b) and (d) of subdivision two of section three hundred sixty-nine-ee of the social services law, and to verify eligibility for the program for elderly pharmaceutical insurance coverage under title three of article two of the elder law, or to the office of vocational and educational services for individuals with disabilities of the educa- tion department, the commission for the blind and visually handicapped and any other state vocational rehabilitation agency, for purposes of obtaining reimbursement from the federal social security administration for expenditures made by such office, commission or agency on behalf of disabled individuals who have achieved economic self-sufficiency or to the higher education services corporation for the purpose of assisting the corporation in default prevention and default collection of educa- tion loan debt, including judgments, owed to the federal or New York state government; provided, however, that such information shall be limited to the names, social security numbers, home and/or business addresses, and employer names of defaulted or delinquent student loan borrowers. Provided, however, that with respect to employee information the office of temporary and disability assistance shall only be furnished with the names, social security account numbers and gross wages of those employees who are (A) applicants for or recipients of benefits under the social services law, or similar provision of law of another jurisdiction (pursuant to an agreement under subdivision three of section twenty of the social services law) or, (B) absent parents or other persons legally responsible for the support of applicants for or recipients of public assistance and care under the social services law or similar provision of law of another jurisdiction (pursuant to an agreement under subdivi- sion three of section twenty of the social services law), or (C) persons legally responsible for the support of a recipient of services under section one hundred eleven-g of the social services law or similar provision of law of another jurisdiction (pursuant to an agreement under subdivision three of section twenty of the social services law), or (D) employees about whom wage reporting system information is being furnished to public agencies of other jurisdictions, with which the state office of temporary and disability assistance has an agreement pursuant to paragraph (h) or (i) of subdivision three of section twenty of the social services law, or (E) employees about whom wage reporting system information is being furnished to the federal parent locator service, maintained by the federal department of health and human services, for the purpose of enabling the state office of temporary and disability assistance to fulfill obligations and responsibilities other- wise incumbent upon the state department of labor, under section one hundred twenty-four of the federal family support act of nineteen hundred eighty-eight, and, only if, the office of temporary and disabil- ity assistance certifies to the commissioner that such persons are such applicants, recipients, absent parents or persons legally responsible
for support or persons about whom information has been requested by a public agency of another jurisdiction or by the federal parent locator service and further certifies that in the case of information requested under agreements with other jurisdictions entered into pursuant to subdivision three of section twenty of the social services law, that such request is in compliance with any applicable federal law. Provided, further, that where the office of temporary and disability assistance requests employee information for the purpose of evaluating the effects on earnings of participation in employment, training or other programs designed to promote self-sufficiency authorized pursuant to the social services law, the office of temporary and disability assistance shall only be furnished with the quarterly gross wages (excluding any refer- ence to the name, social security number or any other information which could be used to identify any employee or the name or identification number of any employer) paid to employees who are former applicants for or recipients of public assistance and care and who are so certified to the commissioner by the commissioner of the office of temporary and disability assistance. Provided, further, that with respect to employee information, the department of health shall only be furnished with the information required pursuant to the provisions of paragraph (f) of subdivision two and subdivision two-a of section two thousand five hundred eleven of the public health law and subdivision eight of section three hundred sixty-six-a and paragraphs (b) and (d) of subdivision two of section three hundred sixty-nine-ee of the social services law, with respect to those individuals whose eligibility under the child health insurance plan, medical assistance program, and family health plus program is to be determined pursuant to such provisions and with respect to those members of any such individual's household whose income affects such individual's eligibility and who are so certified to the commis- sioner or by the department of health. Provided, further, that wage reporting information shall be furnished to the office of vocational and educational services for individuals with disabilities of the education department, the commission for the blind and visually handicapped and any other state vocational rehabilitation agency only if such office, commission or agency, as applicable, certifies to the commissioner that such information is necessary to obtain reimbursement from the federal social security administration for expenditures made on behalf of disa- bled individuals who have achieved self-sufficiency. Reports and returns shall be preserved for three years and thereafter until the commissioner orders them to be destroyed. S 6. Section 451 of the family court act, as amended by chapter 533 of the laws of 1999, is amended to read as follows: S 451. Continuing jurisdiction. 1. Except as provided in article five-B of this act, the court has continuing jurisdiction over any support proceeding brought under this article until its judgment is completely satisfied and may modify, set aside or vacate any order issued in the course of the proceeding, provided, however, that the modification, set aside or vacatur shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section. The court shall not reduce or annul any other arrears unless the defaulting party shows good cause for failure to make appli- cation for relief from the judgment or order directing payment prior to the accrual of the arrears, in which case the facts and circumstances constituting such good cause shall be set forth in a written memorandum of decision. A modification may increase support payments nunc pro tunc as of the date of the initial application for support based on newly
discovered evidence. Any retroactive amount of support due shall be paid [in one lump sum or periodic sums, as the court directs, taking into account any amount of support which has been paid] AND BE ENFORCEABLE AS PROVIDED IN SECTION FOUR HUNDRED FORTY OF THIS ARTICLE. Upon an applica- tion to modify, set aside or vacate an order of support, no hearing shall be required unless such application shall be supported by affida- vit and other evidentiary material sufficient to establish a prima facie case for the relief requested. 2. (A) THE COURT MAY MODIFY AN ORDER OF CHILD SUPPORT, INCLUDING AN ORDER INCORPORATING WITHOUT MERGING AN AGREEMENT OR STIPULATION OF THE PARTIES, UPON A SHOWING OF A SUBSTANTIAL CHANGE IN CIRCUMSTANCES. INCARCERATION SHALL NOT BE A BAR TO FINDING A SUBSTANTIAL CHANGE IN CIRCUMSTANCES PROVIDED SUCH INCARCERATION IS NOT THE RESULT OF NON-PAY- MENT OF A CHILD SUPPORT ORDER, OR AN OFFENSE AGAINST THE CUSTODIAL PARENT OR CHILD WHO IS THE SUBJECT OF THE ORDER OR JUDGMENT. (B) IN ADDITION, UNLESS THE PARTIES HAVE SPECIFICALLY OPTED OUT OF THE FOLLOWING PROVISIONS IN A VALIDLY EXECUTED AGREEMENT OR STIPULATION ENTERED INTO BETWEEN THE PARTIES, THE COURT MAY MODIFY AN ORDER OF CHILD SUPPORT WHERE: (I) THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST MODIFIED OR ADJUSTED; OR (II) THERE HAS BEEN A CHANGE IN EITHER PARTY'S GROSS INCOME BY FIFTEEN PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST MODIFIED, OR ADJUSTED. A REDUCTION IN INCOME SHALL NOT BE CONSIDERED AS A GROUND FOR MODIFICA- TION UNLESS IT WAS INVOLUNTARY AND THE PARTY HAS MADE DILIGENT ATTEMPTS TO SECURE EMPLOYMENT COMMENSURATE WITH HIS OR HER EDUCATION, ABILITY, AND EXPERIENCE. S 7. Paragraph b of subdivision 9 of part B of section 236 of the domestic relations law, as amended by chapter 354 of the laws of 1993, is amended to read as follows: b. (1) Upon application by either party, the court may annul or modify any prior order or judgment as to maintenance [or child support], upon a showing of the recipient's inability to be self-supporting or a substan- tial change in circumstance or termination of child support awarded pursuant to section two hundred forty of this article, including finan- cial hardship. Where, after the effective date of this part, a sepa- ration agreement remains in force no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the judgment or order as modified shall supersede the terms of the prior agreement and judgment for such period of time and under such circumstances as the court determines. [Provided, however, that no modification or annulment shall reduce or annul any arrears of child support which have accrued prior to the date of application to annul or modify any prior order or judgment as to child support.] The court shall not reduce or annul any arrears of maintenance which have been reduced to final judgment pursuant to section two hundred forty-four of this [chapter] ARTICLE. No other arrears of maintenance which have accrued prior to the making of such application shall be subject to modification or annulment unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears and the facts and circum- stances constituting good cause are set forth in a written memorandum of decision. Such modification may increase maintenance [or child support] nunc pro tunc as of the date of application based on newly discovered evidence. Any retroactive amount of maintenance[, or child support] due
shall, except as provided for herein, be paid in one sum or periodic sums, as the court directs, taking into account any temporary or partial payments which have been made. [Any retroactive amount of child support due shall be support arrears/past due support. In addition, such retro- active child support shall be enforceable in any manner provided by law including, but not limited to, an execution for support enforcement pursuant to subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules. When a child receiving support is a public assistance recipient, or the order of support is being enforced or is to be enforced pursuant to section one hundred eleven-g of the social services law, the court shall establish the amount of retroactive child support and notify the parties that such amount shall be enforced by the support collection unit pursuant to an execution for support enforcement as provided for in subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules, or in such peri- odic payments as would have been authorized had such an execution been issued. In such case, the court shall not direct the schedule of repay- ment of retroactive support.] The provisions of this subdivision shall not apply to a separation agreement made prior to the effective date of this part. (2) (I) THE COURT MAY MODIFY AN ORDER OF CHILD SUPPORT, INCLUDING AN ORDER INCORPORATING WITHOUT MERGING AN AGREEMENT OR STIPULATION OF THE PARTIES, UPON A SHOWING OF A SUBSTANTIAL CHANGE IN CIRCUMSTANCES. INCAR- CERATION SHALL NOT BE A BAR TO FINDING A SUBSTANTIAL CHANGE IN CIRCUM- STANCES PROVIDED SUCH INCARCERATION IS NOT THE RESULT OF NON-PAYMENT OF A CHILD SUPPORT ORDER, OR AN OFFENSE AGAINST THE CUSTODIAL PARENT OR CHILD WHO IS THE SUBJECT OF THE ORDER OR JUDGMENT. (II) IN ADDITION, UNLESS THE PARTIES HAVE SPECIFICALLY OPTED OUT OF THE FOLLOWING PROVISIONS IN A VALIDLY EXECUTED AGREEMENT OR STIPULATION ENTERED INTO BETWEEN THE PARTIES, THE COURT MAY MODIFY AN ORDER OF CHILD SUPPORT WHERE: (A) THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST MODIFIED OR ADJUSTED; OR (B) THERE HAS BEEN A CHANGE IN EITHER PARTY'S GROSS INCOME BY FIFTEEN PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST MODIFIED, OR ADJUSTED. A REDUCTION IN INCOME SHALL NOT BE CONSIDERED AS A GROUND FOR MODIFICA- TION UNLESS IT WAS INVOLUNTARY AND THE PARTY HAS MADE DILIGENT ATTEMPTS TO SECURE EMPLOYMENT COMMENSURATE WITH HIS OR HER EDUCATION, ABILITY, AND EXPERIENCE. (III) NO MODIFICATION OR ANNULMENT SHALL REDUCE OR ANNUL ANY ARREARS OF CHILD SUPPORT WHICH HAVE ACCRUED PRIOR TO THE DATE OF APPLICATION TO ANNUL OR MODIFY ANY PRIOR ORDER OR JUDGMENT AS TO CHILD SUPPORT. SUCH MODIFICATION MAY INCREASE CHILD SUPPORT NUNC PRO TUNC AS OF THE DATE OF APPLICATION BASED ON NEWLY DISCOVERED EVIDENCE. ANY RETROACTIVE AMOUNT OF CHILD SUPPORT DUE SHALL, EXCEPT AS PROVIDED FOR IN THIS SUBPARAGRAPH, BE PAID IN ONE SUM OR PERIODIC SUMS, AS THE COURT DIRECTS, TAKING INTO ACCOUNT ANY TEMPORARY OR PARTIAL PAYMENTS WHICH HAVE BEEN MADE. ANY RETROACTIVE AMOUNT OF CHILD SUPPORT DUE SHALL BE SUPPORT ARREARS/PAST DUE SUPPORT. IN ADDITION, SUCH RETROACTIVE CHILD SUPPORT SHALL BE ENFORCEABLE IN ANY MANNER PROVIDED BY LAW INCLUDING, BUT NOT LIMITED TO, AN EXECUTION FOR SUPPORT ENFORCEMENT PURSUANT TO SUBDIVISION (B) OF SECTION FIFTY-TWO HUNDRED FORTY-ONE OF THE CIVIL PRACTICE LAW AND RULES. WHEN A CHILD RECEIVING SUPPORT IS A PUBLIC ASSISTANCE RECIPIENT, OR THE ORDER OF SUPPORT IS BEING ENFORCED OR IS TO BE ENFORCED PURSUANT TO SECTION ONE HUNDRED ELEVEN-G OF THE SOCIAL SERVICES LAW, THE COURT SHALL ESTABLISH THE AMOUNT OF RETROACTIVE CHILD SUPPORT AND NOTIFY THE PARTIES
THAT SUCH AMOUNT SHALL BE ENFORCED BY THE SUPPORT COLLECTION UNIT PURSU- ANT TO AN IMMEDIATE EXECUTION FOR SUPPORT ENFORCEMENT AS PROVIDED FOR BY THIS CHAPTER, OR IN SUCH PERIODIC PAYMENTS AS WOULD HAVE BEEN AUTHORIZED HAD SUCH AN EXECUTION BEEN ISSUED. IN SUCH CASE, THE COURT SHALL NOT DIRECT THE SCHEDULE OF REPAYMENT OF RETROACTIVE SUPPORT. S 8. Subdivision 4 of section 440 of the family court act, as amended by chapter 398 of the laws of 1997, is amended to read as follows: 4. Any support order made by the court in any proceeding under the provisions of article five-B of this act, pursuant to a reference from the supreme court under section two hundred fifty-one of the domestic relations law or under the provisions of THIS article [four,] OR ARTICLE five or five-A of this act shall include, on its face, a notice printed or typewritten in a size equal to at least eight point bold type: (A) informing the respondent that a willful failure to obey the order may, after court hearing, result in commitment to jail for a term not to exceed six months for contempt of court[.], AND (B) INFORMING THE PARTIES OF THEIR RIGHT TO SEEK A MODIFICATION OF THE CHILD SUPPORT ORDER UPON A SHOWING OF: (I) A SUBSTANTIAL CHANGE IN CIRCUMSTANCES; OR (II) THAT THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST MODIFIED OR ADJUSTED; OR (III) THERE HAS BEEN A CHANGE IN EITHER PARTY'S GROSS INCOME BY FIFTEEN PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST MODIFIED, OR ADJUSTED; HOWEVER, IF THE PARTIES HAVE SPECIFICALLY OPTED OUT OF SUBPARAGRAPH (II) OR (III) OF THIS PARAGRAPH IN A VALIDLY EXECUTED AGREEMENT OR STIPU- LATION, THEN THAT BASIS TO SEEK MODIFICATION DOES NOT APPLY. S 9. Subdivision 7 of part B of section 236 of the domestic relations law is amended by adding a new paragraph d to read as follows: D. ANY CHILD SUPPORT ORDER MADE BY THE COURT IN ANY PROCEEDING UNDER THE PROVISIONS OF THIS SECTION SHALL INCLUDE, ON ITS FACE, A NOTICE PRINTED OR TYPEWRITTEN IN A SIZE EQUAL TO AT LEAST EIGHT POINT BOLD TYPE INFORMING THE PARTIES OF THEIR RIGHT TO SEEK A MODIFICATION OF THE CHILD SUPPORT ORDER UPON A SHOWING OF: (I) A SUBSTANTIAL CHANGE IN CIRCUMSTANCES; OR (II) THAT THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST MODIFIED OR ADJUSTED; OR (III) THERE HAS BEEN A CHANGE IN EITHER PARTY'S GROSS INCOME BY FIFTEEN PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST MODIFIED, OR ADJUSTED; HOWEVER, IF THE PARTIES HAVE SPECIFICALLY OPTED OUT OF SUBPARAGRAPH (II) OR (III) OF THIS PARAGRAPH IN A VALIDLY EXECUTED AGREEMENT OR STIPU- LATION, THEN THAT BASIS TO SEEK MODIFICATION DOES NOT APPLY. S 10. The family court act is amended by adding a new section 437-a to read as follows: S 437-A. REFERRAL TO WORK PROGRAMS. IN ANY PROCEEDING TO ESTABLISH AN ORDER OF SUPPORT, IF THE RESPONDENT IS UNEMPLOYED, THE COURT MAY REQUIRE THE RESPONDENT TO SEEK EMPLOYMENT, OR TO PARTICIPATE IN JOB TRAINING, EMPLOYMENT COUNSELING OR OTHER PROGRAMS DESIGNED TO LEAD TO EMPLOYMENT PROVIDED SUCH PROGRAMS ARE AVAILABLE. THE COURT SHALL NOT REQUIRE THE RESPONDENT TO SEEK EMPLOYMENT OR TO PARTICIPATE IN JOB TRAINING, EMPLOY- MENT COUNSELING, OR OTHER PROGRAMS DESIGNED TO LEAD TO EMPLOYMENT UNDER THIS SECTION IF THE RESPONDENT IS IN RECEIPT OF SUPPLEMENTAL SECURITY INCOME OR SOCIAL SECURITY DISABILITY BENEFITS. S 11. Section 111-h of the social services law is amended by adding a new subdivision 20 to read as follows:
20. IF THE RESPONDENT IS REQUIRED TO PARTICIPATE IN WORK PROGRAMS PURSUANT TO SECTION FOUR HUNDRED THIRTY-SEVEN-A OF THE FAMILY COURT ACT, AND THE COURT ENTERS AN ORDER OF SUPPORT ON BEHALF OF THE PERSONS IN RECEIPT OF PUBLIC ASSISTANCE, THE SUPPORT COLLECTION UNIT SHALL NOT FILE A PETITION TO INCREASE THE SUPPORT OBLIGATION FOR TWELVE MONTHS FROM THE DATE OF ENTRY OF THE ORDER OF SUPPORT IF THE RESPONDENT'S INCOME IS DERIVED FROM PARTICIPATION IN SUCH PROGRAMS. S 12. Subdivision (b) of section 461 of the family court act is amended to read as follows: (b) If an order of the supreme court or of another court of competent jurisdiction requires support of the child, the family court may: (i) entertain an application to enforce the order requiring support; or (ii) entertain an application to modify such order [on the ground that changed circumstances requires such modification] AS PROVIDED UNDER SUBDIVISION TWO OF SECTION FOUR HUNDRED FIFTY-ONE OF THIS ARTICLE, unless the order of the supreme court provides that the supreme court retains exclusive jurisdiction to enforce or modify the order. S 13. This act shall take effect on the ninetieth day after it shall have become law; provided however, that sections six and seven of this act shall apply to any action or proceeding to modify any order of child support entered on or after the effective date of this act except that if the child support order incorporated without merging a valid agree- ment or stipulation of the parties, the amendments regarding the modifi- cation of a child support order set forth in sections six and seven of this act shall only apply if the incorporated agreement or stipulation was executed on or after this act's effective date; provided however, that sections three and four of this act shall take effect on the three hundred sixty-fifth day after it shall have become a law.

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