The Florida Senate

409.2558  Support distribution and disbursement.--

(1)  DISTRIBUTION OF PAYMENTS.--The department shall distribute and disburse support payments collected in Title IV-D cases in accordance with 42 U.S.C. s. 657 and regulations adopted thereunder by the Secretary of the United States Department of Health and Human Services.

(2)  UNDISTRIBUTABLE COLLECTIONS.--

(a)  The department shall establish by rule the method for determining a collection or refund to be undistributable to the final intended recipient. Before determining a collection or refund to be undistributable, the department shall make reasonable efforts to locate persons to whom collections or refunds are owed so that payment can be made. Location efforts may include disclosure through a searchable database of the names of obligees, obligors, and depository account numbers on the Internet in compliance with the requirements of s. 119.01(2)(a).

(b)  Collections that are determined to be undistributable shall be processed in the following order of priority:

1.  Apply the payment to any assigned arrears on the custodial parent's case; then

2.  Apply the payment to any administrative costs ordered by the court pursuant to s. 409.2567 associated with the custodial parent's case; then

3.  When the noncustodial parent is subject to a valid order to support another child in a case with a different custodial parent and the obligation is being enforced by the department, the department shall send by certified mail, restricted delivery, return receipt requested, to the noncustodial parent at the most recent address provided by the noncustodial parent to the tribunal that issued the order, a notice stating the department's intention to apply the payment pursuant to this subparagraph, and advising the noncustodial parent of the right to contest the department's proposed action in the circuit court by filing and serving a petition on the department within 30 days after the mailing of the notice. If the noncustodial parent does not file and serve a petition within the 30 days after mailing of the notice, or upon a disposition of the judicial action favorable to the department, the department shall apply the payment toward his or her other support obligation. If there is more than one such other case, the department shall allocate the remaining undistributable amount as specified by s. 61.1301(4)(c); then

4.  Return the payment to the noncustodial parent; then

5.  If the noncustodial parent cannot be located after diligent efforts by the department, the federal share of the payment shall be credited to the Federal Government and the state share shall be transferred to the General Revenue Fund.

(c)  Refunds to noncustodial parents that are determined to be undistributable shall be processed in the following manner:

1.  The federal share of the refund shall be sent to the Federal Government.

2.  The state share shall be credited to the General Revenue Fund.

(3)  UNIDENTIFIABLE COLLECTIONS.--

(a)  The department shall establish by rule the method for determining a collection to be unidentifiable.

(b)  Upon being determined to be unidentifiable, the federal share of unidentifiable collections shall be credited to the Federal Government and the state share shall be transferred to the General Revenue Fund.

(4)  RECLAIMING COLLECTIONS DECLARED TO BE UNDISTRIBUTABLE OR UNIDENTIFIABLE.--At such time as an undistributable or unidentifiable collection that has been transferred to the Federal Government and to the General Revenue Fund in the relevant method above becomes distributable or identified, meaning either the noncustodial parent or the custodial parent is identified or located, the department shall retrieve the transferred moneys in the following manner:

(a)  Offset the next credit to the Federal Government in an amount equal to the share of the collection which had been transferred; and

(b)  Offset the next transfer to the General Revenue Fund in an amount equal to the state share of the collection which had been transferred to the General Revenue Fund.

The collection shall then be processed, as appropriate.

(5)  RECONSIDERATION OF DISTRIBUTION AND DISBURSEMENT.--A recipient of collection and distribution services of the department's Child Support Enforcement Program may request a reconsideration by the department concerning the amount collected, the date collected, the amount distributed, the distribution timing, or the calculation of arrears. The department shall establish by rule a reconsideration procedure for informal review of agency action in distributing and disbursing support payments collected by the department. The procedures must provide the recipients of services with an opportunity to review the department's actions before a hearing is requested under chapter 120.

(6)  OVERPAYMENT.--If the department's records indicate that a support obligee has received an overpayment of support from the department due to either mistake or fraud, the department may take action to recover the overpayment. The department may establish by rule a procedure to recover overpayments.

(7)  ORDER REDIRECTING PAYMENTS TO THE PERSON WITH WHOM THE CHILD RESIDES.--

(a)  If the department determines in a Title IV-D case that a child for whom a support order has been entered by a tribunal of this state resides with a person other than the obligee or obligor, the department may not disburse current support payments for the child to the obligee without a further order from the tribunal that entered the support order. For purposes of this section, "tribunal" means either the circuit court or the department.

(b)  A determination by the department under paragraph (a) must be based on one or more of the following factors:

1.  Public assistance records that show a person other than the obligee or obligor is receiving public assistance for the child.

2.  A statement by the obligee that the child resides with a person other than the obligee or obligor is submitted to the department.

3.  A sworn statement or written declaration signed under penalty of perjury by a person who has personal knowledge that the child resides with a person other than the obligee or obligor is submitted to the department.

4.  Government records that show the obligee is incarcerated.

5.  Evidence that the obligee has left the community where the child resides is submitted to the department.

6.  Other credible information that indicates the child resides with a person other than the obligee or obligor is submitted to the department.

(c)  When the department determines that a child as specified in paragraph (a) resides with a person other than the obligee or obligor, the department shall submit by regular mail to the obligee, the obligor, and, if known, the person with whom the child resides a notice that states:

1.  The facts on which the determination is based.

2.  The name and address of the person with whom the child resides, if known, unless disclosure is prohibited under s. 409.2579(3) or (4) or the child is in foster care.

3.  That the department will not disburse current support payments for the child without a further order from the tribunal that entered the support order.

4.  If the support order was entered by the circuit court:

a.  That the department will file a motion and proposed order with the court that asks the court to order that the obligor's current support payments be disbursed to the person with whom the child resides, determine arrearages, and order repayment of arrearages;

b.  That the obligee, the obligor, and the person with whom the child resides may file an objection in court to the proposed order or a motion to compel disbursement; and

c.  That the obligee, the obligor, and the person with whom the child resides will be mailed a copy of the department's motion and notified of any court hearing.

5.  If the support order was entered by the department:

a.  That the department intends to disburse the current support payments to the person with whom the child resides, if known, determine arrearages, and order repayment of arrearages;

b.  The effective date of the intended action to disburse current support payments to the person with whom the child resides, the amount of arrearages owed to the obligee and the person with whom the child resides, and the amount of the order for periodic repayment of arrearages;

c.  That the obligee, the obligor, and the person with whom the child resides may contest the intended action by filing with the department a petition for an administrative hearing within 30 days after the date of mailing of the notice;

d.  That if a timely petition for an administrative hearing is filed, the parties will be given advance notice of the date, time, and place of the hearing; and

e.  That if the notice of intended action is not timely contested, the department will enter a final order based on what is stated in the notice.

(d)  The tribunal that entered the support order shall determine whether support payments not disbursed by the department and current support must be paid to the obligee, paid to the person with whom the child resides, or refunded to the obligor. The person with whom the child resides is deemed a party to the proceedings. The tribunal is not required to hold a hearing unless a party has filed a timely objection to the proposed order or a timely petition for an administrative hearing. If the department is the tribunal and a timely petition for an administrative hearing is filed, the hearing shall be conducted by the Division of Administrative Hearings and the administrative law judge shall enter a final order. If a hearing is not required, the tribunal shall enter an order within 30 days after the department's motion is filed or the notice of intended action is mailed. If a timely objection or petition for an administrative hearing is filed, a hearing shall be conducted and an order entered within 30 days after the objection or petition is filed.

(e)  If the tribunal finds by a preponderance of the evidence that the child does not reside with the obligee, the tribunal shall enter an order that redirects the obligor's current support payments due under the support order to the person with whom the child resides, determine arrearages owed to the obligee and the person with whom the child resides, and order repayment of arrearages. The tribunal need not recompute the obligor's support obligation under the child support guidelines. If the person with whom the child resides is unknown and the obligor owes no arrearages or costs, the tribunal shall enter an order that refunds the payments not disbursed by the department to the obligor. If the child resides with the obligor, the person with whom the child resides is unknown, or the child's place of residence is unknown, the tribunal shall consider whether to abate, terminate, or modify the support order.

(f)  A tribunal that enters an order that redirects or refunds support payments shall file a copy of the order with the depository that serves as official recordkeeper for payments due under the support order. The depository shall maintain separate accounts and separate account numbers for individual payees.

(8)  RULEMAKING AUTHORITY.--The department may adopt rules to administer this section. The department shall provide a draft of the proposed concepts for the rule for the undistributable collections to interested parties for review and recommendations prior to full development of the rule and initiating the formal rule-development process. The department shall consider but is not required to implement the recommendations. The department shall provide a report to the President of the Senate and the Speaker of the House of Representatives containing the recommendations received from interested parties and the department's response regarding incorporating the recommendations into the rule.

History.--s. 21, ch. 98-397; s. 10, ch. 99-375; s. 28, ch. 2001-158; s. 10, ch. 2004-334; s. 23, ch. 2005-39; s. 8, ch. 2005-82.