ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2185
(By Delegates Rutledge, Brown and Douglas)
[Passed April 10, 1993; in effect ninety days from passage.]
AN ACT to amend and reenact section three, article two, chapter
thirty-three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact
sections fifteen-a and fifteen-b, article two, chapter
forty-eight of said code; to amend article two, chapter
forty-eight of said code by adding thereto a new section,
designated section fifteen-d; to amend and reenact section
three, article one, chapter forty-eight-a of said code; and
to amend and reenact section nineteen, article two of said
chapter, all relating to the enforcement of support
obligations generally; authorizing the insurance
commissioner to enforce the provisions of the code relating
to medical support; redefining the term "insurer" as applied
to medical support enforcement; providing for immediate
withholding from income of a support obligor under certain
circumstances; allowing support to be continued beyond the
date a child reaches the age of eighteen, is married or
emancipated; allowing educational expenses for some
children; limitations; redefining certain terms related to
the enforcement of support obligations so as to expand the
category of persons entitled to support enforcement
services; and authorizing the promulgation of procedural
rules governing the child advocate office in providing
information to consumer reporting agencies.
Be it enacted by the Legislature of West Virginia:
That section three, article two, chapter thirty-three of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that sections fifteen-a and
fifteen-b, article two, chapter forty-eight of said code be
amended and reenacted; that article two, chapter forty-eight of
said code be amended by adding thereto a new section, designated
section fifteen-d; that section three, article one, chapter
forty-eight-a of said code be amended and reenacted; and that
section nineteen, article two of said chapter be amended and
reenacted, all to read as follows:
CHAPTER 33. INSURANCE.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-3. Duties of the commissioner; employment of legal
counsel.
(a) The commissioner shall enforce the provisions of this
chapter and section fifteen-a, article two of chapter forty-eight
and perform the duties required thereunder; shall affix the
commissioner's official seal to all documents and papers required
to be filed in other states by domestic insurers and to other
papers when an official seal is required; and shall, on or before
the tenth day of each month, pay into the state treasury all fees
and moneys which he or she has received during the preceding
calendar month.
(b) Notwithstanding any provisions of this code to the
contrary, the commissioner may acquire such legal services as are
deemed necessary, including representation of the commissionerbefore any court or administrative body. Such counsel may be
employed either on a salaried basis or on a reasonable fee basis.
In addition, the commissioner may call upon the attorney general
for legal assistance and representation as provided by law.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-15a. Medical support enforcement.
(a) For the purposes of this section:
(1) "Custodian for the children" means a parent, legal
guardian, committee or other third party appointed by court order
as custodian of child or children for whom child support is
ordered.
(2) "Obligated parent" means a natural or adoptive parent
who is required by agreement or order to pay for insurance
coverage and medical care, or some portion thereof, for his or
her child.
(3) "Insurance coverage" means coverage for medical, dental,
including orthodontic, optical, psychological, psychiatric or
other health care service.
(4) "Child" means a child to whom a duty of child support is
owed.
(5) "Medical care" means medical, dental, optical,
psychological, psychiatric or other health care service for
children in need of child support.
(6) "Insurer" means any company, health maintenance
organization, self-funded group, multiple employer welfare
arrangement, hospital or medical services corporation, trust or
other entity which provides insurance coverage.
(b) In every action to establish or modify an order which
requires the payment of child support, the court shall ascertain
the ability of each parent to provide medical care for the
children of the parties. In any temporary or final order
establishing an award of child support or any temporary or final
order modifying a prior order establishing an award of child
support, the court shall order one or more of the following:
(1) The court shall order either parent or both parents to
provide insurance coverage for a child, if such insurance
coverage is available to that parent on a group basis through an
employer or through an employee's union. If similar insurance
coverage is available to both parents, the court shall order the
child to be insured under the insurance coverage which provides
more comprehensive benefits. If such insurance coverage is not
available at the time of the entry of the order, the order shall
require that if such coverage thereafter becomes available to
either party, that party shall promptly notify the other party of
the availability of insurance coverage for the child.
(2) If the court finds that insurance coverage is not
available to either parent on a group basis through an employer,
multi-employer trust or employees' union, or that the group
insurer is not accessible to the parties, the court may order
either parent or both parents to obtain insurance coverage which
is otherwise available at a reasonable cost.
(3) Based upon the respective ability of the parents to pay,
the court may order either parent or both parents to be liable
for reasonable and necessary medical care for a child. The court
shall specify the proportion of the medical care for which eachparty shall be responsible.
(4) If insurance coverage is available, the court shall also
determine the amount of the annual deductible on insurance
coverage which is attributable to the children and designate the
proportion of the deductible which each party shall pay.
(5) The order shall require the obligor to continue to
provide the child advocate office with information as to his or
her employer's name and address and information as to the
availability of employer-related insurance programs providing
medical care coverage so long as the child continues to be
eligible to receive support.
(c) The cost of insurance coverage shall be considered by
the court in applying the child support guidelines provided for
in section eight, article two, chapter forty-eight-a of this
code.
(d) Within thirty days after the entry of an order requiring
the obligated parent to provide insurance coverage for the
children, that parent shall submit to the custodian for the child
written proof that the insurance has been obtained or that an
application for insurance has been made. Such proof of insurance
coverage shall consist of, at a minimum:
(1) The name of the insurer;
(2) The policy number;
(3) An insurance card;
(4) The address to which all claims should be mailed;
(5) A description of any restrictions on usage, such as
prior approval for hospital admission, and the manner in which to
obtain such approval;
(6) A description of all deductibles; and
(7) Five copies of claim forms.
(e) The custodian for the child shall send the insurer or
the obligated parent's employer the children's address and notice
that the custodian will be submitting claims on behalf of the
children. Upon receipt of such notice, or an order for insurance
coverage under this section, the obligated parent's employer,
multi-employer trust or union shall, upon the request of the
custodian for the child, release information on the coverage for
the children, including the name of the insurer.
(f) A copy of the court order for insurance coverage shall
not be provided to the obligated parent's employer or union or
the insurer unless ordered by the court, or unless:
(1) The obligated parent, within thirty days of receiving
effective notice of the court order, fails to provide to the
custodian for the child written proof that the insurance has been
obtained or that an application for insurance has been made;
(2) The custodian for the child serves written notice by
mail at the obligated parent's last known address of intention to
enforce the order requiring insurance coverage for the child; and
(3) The obligated parent fails within fifteen days after the
mailing of the notice to provide written proof to the custodian
for the child that the child has insurance coverage.
(g) (1) Upon service of the order requiring insurance
coverage for the children, the employer, multi-employer trust or
union shall enroll the child as a beneficiary in the group
insurance plan and withhold any required premium from the
obligated parent's income or wages.
(2) If more than one plan is offered by the employer, multi-
employer trust or union, the child shall be enrolled in the most
comprehensive plan otherwise available to the obligated parent at
a reasonable cost.
(3) Insurance coverage for the child which is ordered
pursuant to the provisions of this section shall not be
terminated except as provided in subsection (i) of this section.
(h) (1) The signature of the custodian for the child shall
constitute a valid authorization to the insurer for the purposes
of processing an insurance payment to the provider of medical
care for the child.
(2) No insurer, employer or multi-employer trust in this
state may refuse to honor a claim for a covered service when the
custodian for the child or the obligated parent submits proof of
payment for medical bills for the child.
(3) The insurer shall reimburse the custodian for the child
or the obligated parent who submits copies of medical bills for
the child with proof of payment.
(4) All insurers in this state shall provide insurance
coverage for the child of a covered employee notwithstanding the
amount of support otherwise ordered by the court and regardless
of the fact that the child may not be living in the home of the
covered employee.
(i) When an order for insurance coverage for a child
pursuant to this section is in effect and the obligated parent's
employment is terminated, or the insurance coverage for the child
is denied, modified or terminated, the insurer shall, within ten
days after the notice of change in coverage is sent to thecovered employee, notify the custodian for the child and provide
an explanation of any conversion privileges available from the
insurer.
(j) A child of an obligated parent shall remain eligible for
insurance coverage until the child is emancipated or until the
insurer under the terms of the applicable insurance policy
terminates said child from coverage, whichever is later in time,
or until further order of the court.
(k) If the obligated parent fails to comply with the order
to provide insurance coverage for the child, the court shall:
(1) Hold the obligated parent in contempt for failing or
refusing to provide the insurance coverage, or for failing or
refusing to provide the information required in subsection (d) of
this section;
(2) Enter an order for a sum certain against the obligated
parent for the cost of medical care for the child, and any
insurance premiums paid or provided for the child during any
period in which the obligated parent failed to provide the
required coverage; and
(3) In the alternative, other enforcement remedies available
under sections two and three, article five, chapter forty-eight-a
of this code, or otherwise available under law, may be used to
recover from the obligated parent the cost of medical care or
insurance coverage for the child.
(l) Proof of failure to maintain court ordered insurance
coverage for the child constitutes a showing of substantial
change in circumstances or increased need pursuant to section
fifteen of this article, and provides a basis for modification ofthe child support order.
§48-2-15b. Withholding from income.
(a) Every order entered or modified under the provisions of
this article, not described in subsection (d) of this section,
which requires the payment of child support or spousal support
shall include a provision for automatic withholding from income
of the obligor, in order to facilitate income withholding as a
means of collecting support.
(b) Every such order as described in subsection (a) of this
section shall contain language authorizing income withholding to
commence without further court action, as follows:
(1) The order shall provide that income withholding will
begin immediately, without regard to whether there is an
arrearage: (A) When a child for whom support is ordered is
included or becomes included in a grant of assistance from the
division of human services or a similar agency of a sister state
for aid to families with dependent children benefits, medical
assistance only benefits, or foster care benefits; or (B) when
the support obligee has applied for services from the child
advocate office or the support enforcement agency of another
state or is otherwise receiving services from the child advocate
office as provided for in chapter forty-eight-a of this code. In
any case where one of the parties demonstrates, and the court
finds, that there is good cause not to require immediate income
withholding, or in any case where there is filed with the court
a written agreement between the parties which provides for an
alternative arrangement, such order shall not provide for income
withholding to begin immediately.
(2) The order shall also provide that income withholding
will begin immediately upon the occurrence of any of the
following:
(A) When the payments which the obligor has failed to make
under the order are at least equal to the support payable for one
month, if the order requires support to be paid in monthly
installments;
(B) When the payments which the obligor has failed to make
under the order are at least equal to the support payable for
four weeks, if the order requires support to be paid in weekly or
biweekly installments;
(C) When the obligor requests the child advocate office to
commence income withholding; or
(D) When the obligee requests that such withholding begin,
if the request is approved by the court in accordance with
procedures and standards established by rules and regulations
promulgated by the director of the child advocate office.
(c) On and after the first day of January, one thousand
nine hundred ninety-four, the wages of an obligor shall be
subject to withholding, regardless of whether child support
payments are in arrears, on the date the order for child support
is entered:
Provided,
That where one of the parties
demonstrates, and the court finds, that there is good cause not
to require immediate income withholding, or in any case where
there is filed with the court a written agreement between the
parties which provides for an alternative arrangement, such order
shall not provide for income withholding to begin immediately:
Provided, however,
That this subsection shall have no force andeffect, if prior to the first day of January, one thousand nine
hundred ninety-four, the requirements regarding wage withholding
imposed by 42 U.S.C. §666 are substantially modified by federal
statute or regulation.
(d) The supreme court of appeals shall make available to the
circuit courts standard language to be included in all such
orders, so as to conform such orders to the applicable
requirements of state and federal law regarding the withholding
from income of amounts payable as support.
(e) Every support order entered by a circuit court of this
state prior to the effective date of this section shall be
considered to provide for an order of income withholding, by
operation of law, which complies with the provisions of this
section, notwithstanding the fact that such support order does
not in fact provide for such order of withholding.
(f) The court shall consider the best interests of the
child in determining whether "good cause" exists under this
section. The court may also consider the obligor's payment
record in making child support payments in making this
determination.
§48-2-15d. Child support beyond age eighteen; educational
expenses.
(a) An order for child support entered pursuant to sections
thirteen and fifteen of this article may provide that payments of
such support continue beyond the date when the child reaches the
age of eighteen, marries or is sooner emancipated, so long as the
child is making substantial progress towards a degree and is
enrolled as a full-time student in a secondary school orvocational school:
Provided,
That such payments may not extend
past the date that the child reaches the age of twenty.
(b) The court may make an award for educational and related
expenses for an adult child up to the age of twenty-three who has
been accepted or is enrolled and making satisfactory progress in
an educational program at a certified or accredited college. The
amount of these payments shall be related to the ability of the
parent to make the payments. The payments shall be made to the
custodial parent when the adult child is residing with that
parent or to a third party as designated by the court. If the
child is not residing with a parent, the payments shall be paid
to the child or to such third parties as so designated by the
court.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 1. GENERAL PROVISIONS.
§48A-1-3. Definitions.
As used in this chapter:
(1) "Automatic data processing and retrieval system" means
a computerized data processing system designed to do the
following:
(A) To control, account for and monitor all of the factors
in the support enforcement collection and paternity determination
process, including, but not limited to:
(i) Identifiable correlation factors (such as social
security numbers, names, dates of birth, home addresses and
mailing addresses of any individual with respect to whom support
obligations are sought to be established or enforced and with
respect to any person to whom such support obligations are owing)to assure sufficient compatibility among the systems of different
jurisdictions to permit periodic screenings to determine whether
such individual is paying or is obligated to pay support in more
than one jurisdiction;
(ii) Checking of records of such individuals on a periodic
basis with federal, interstate, intrastate and local agencies;
(iii) Maintaining the data necessary to meet applicable
federal reporting requirements on a timely basis; and
(iv) Delinquency and enforcement activities;
(B) To control, account for and monitor the collection and
distribution of support payments (both interstate and
intrastate), the determination, collection and distribution of
incentive payments (both interstate and intrastate), and the
maintenance of accounts receivable on all amounts owed, collected
and distributed;
(C) To control, account for and monitor the costs of all
services rendered, either directly or by exchanging information
with state agencies responsible for maintaining financial
management and expenditure information;
(D) To provide access to the records of the department of
health and human resources or aid to families with dependent
children in order to determine if a collection of a support
payment causes a change affecting eligibility for or the amount
of aid under such program;
(E) To provide for security against unauthorized access to,
or use of, the data in such system;
(F) To facilitate the development and improvement of the
income withholding and other procedures designed to improve theeffectiveness of support enforcement through the monitoring of
support payments, the maintenance of accurate records regarding
the payment of support, and the prompt provision of notice to
appropriate officials with respect to any arrearages in support
payments which may occur; and
(G) To provide management information on all cases from
initial referral or application through collection and
enforcement.
(2) "Chief judge" means the following:
(A) The circuit judge in a judicial circuit having only one
circuit judge; or
(B) The chief judge of the circuit court in a judicial
circuit having two or more circuit judges.
(3) "Child advocate office" means the office within the
department of health and human resources created under the
provisions of article two of this chapter, intended by the
Legislature to be the single and separate organizational unit of
state government administering programs of child and spousal
support enforcement and meeting the staffing and organizational
requirements of the secretary of the federal department of health
and human services.
(4) "Children's advocate" or "advocate" means a person
appointed to such position under the provisions of section two,
article three of this chapter. The children's advocate may be
empowered to prosecute an action brought pursuant to section
twenty-nine, article five, chapter sixty-one of this code when
appointed by a circuit judge pursuant to section eight, article
seven, chapter seven of this code.
(5) "Court" means a circuit court of this state, unless the
context in which such term is used clearly indicates that
reference to some other court is intended.
(6) "Court of competent jurisdiction" means a circuit court
within this state, or a court or administrative agency of another
state having jurisdiction and due legal authority to deal with
the subject matter of the establishment and enforcement of
support obligations. Whenever in this chapter reference is made
to an order of a court of competent jurisdiction, or similar
wording, such language shall be interpreted so as to include
orders of an administrative agency entered in a state where
enforceable orders may by law be properly made and entered by
such administrative agency.
(7) "Custodial parent" or "custodial parent of a child"
means a parent who has been granted custody of a child by a court
of competent jurisdiction. "Noncustodial parent" means a parent
of a child with respect to whom custody has been adjudicated with
the result that such parent has not been granted custody of the
child.
(8) "Domestic relations matter" means any circuit court
proceeding involving child custody, child visitation, child
support or alimony.
(9) "Earnings" means compensation paid or payable for
personal services, whether denominated as wages, salary,
commission, bonus, or otherwise, and includes periodic payments
pursuant to a pension or retirement program. "Disposable
earnings" means that part of the earnings of any individual
remaining after the deduction from those earnings of any amountsrequired by law to be withheld.
(10) "Employer" means any individual, sole proprietorship,
partnership, association, public or private corporation, the
United States or any federal agency, this state or any political
subdivision of this state, any other state or a political
subdivision of another state, and any other legal entity which
hires and pays an individual for his services.
(11) "Guardian of the property of a child" means a person
lawfully invested with the power, and charged with the duty, of
managing and controlling the estate of a child.
(12) "Income" includes, but is not limited to, the
following:
(A) Commissions, earnings, salaries, wages and other income
due or to be due in the future to an obligor from his employer
and successor employers;
(B) Any payment due or to be due in the future to an obligor
from a profit-sharing plan, a pension plan, an insurance
contract, an annuity, social security, unemployment compensation,
supplemental employment benefits, workers' compensation benefits,
state lottery winnings and prizes, and overtime pay;
(C) Any amount of money which is owing to the obligor as a
debt from an individual, partnership, association, public or
private corporation, the United States or any federal agency,
this state or any political subdivision of this state, any other
state or a political subdivision of another state, or any other
legal entity which is indebted to the obligor.
(13) "Individual entitled to support enforcement services
under the provisions of this chapter and the provisions of TitleIV-D of the Federal Social Security Act" means:
(A) An individual who has applied for or is receiving
services from the child advocate office and who is the custodial
parent of a child, or the primary caretaker of a child, or the
guardian of the property of a child when:
(i) Such child has a parent and child relationship with an
obligor who is not such custodial parent, primary caretaker or
guardian; and
(ii) The obligor with whom the child has a parent and child
relationship is not meeting an obligation to support the child,
or has not met such obligation in the past; or
(B) An individual who has applied for or is receiving
services from the child advocate office and who is an adult or an
emancipated minor whose spouse or former spouse has been ordered
by a court of competent jurisdiction to pay spousal support to
the individual, whether such support is denominated alimony or
separate maintenance, or is identified by some other terminology,
thus establishing a support obligation with respect to such
spouse, when the obligor required to pay such spousal support is
not meeting the obligation, or has not met such obligation in the
past; or
(C) Any individual who is an obligee in a support order,
entered by a court of competent jurisdiction after the
thirty-first day of December, one thousand nine hundred
ninety-three.
(14) "Master" or "family law master" means a person
appointed to such position under the provisions of section one,
article four of this chapter.
(15) "Obligee" means an individual to whom a duty of support
is owed, or the state of West Virginia or the department of
health and human resources, if support has been assigned to the
state or department.
(16) "Obligor" means a person who owes a legal duty to
support another person.
(17) "Office of the children's advocate" means the office
created in section two, article three of this chapter.
(18) "Primary caretaker of a child" means a parent or other
person having actual physical custody of a child without a court
order granting such custody, and who has been primarily
responsible for exercising parental rights and responsibilities
with regard to such child.
(19) "Source of income" means an employer or successor
employer or any other person who owes or will owe income to an
obligor.
(20) "Support" means the payment of money including
interest:
(A) For a child or spouse, ordered by a court of competent
jurisdiction, whether the payment is ordered in an emergency,
temporary, permanent or modified order, decree or judgment of
such court, and the amount of unpaid support shall bear interest
from the date it accrued, at a rate of ten dollars upon one
hundred dollars per annum, and proportionately for a greater or
lesser sum, or for a longer or shorter time;
(B) To third parties on behalf of a child or spouse,
including, but not limited to, payments to medical, dental or
educational providers, payments to insurers for health andhospitalization insurance, payments of residential rent or
mortgage payments, payments on an automobile, or payments for day
care; and/or
(C) For a mother, ordered by a court of competent
jurisdiction, for the necessary expenses incurred by or for the
mother in connection with her confinement or of other expenses in
connection with the pregnancy of the mother.
(21) "Support order" means any order of a court of
competent jurisdiction for the payment of support, whether or not
for a sum certain.
ARTICLE 2. WEST VIRGINIA CHILD ADVOCATE OFFICE.
§48A-2-19. Providing information to consumer reporting
agencies.
(a) For purposes of this section, the term "consumer
reporting agency" means any person who, for monetary fees, dues,
or on a cooperative nonprofit basis, regularly engages in whole
or in part in the practice of assembling or evaluating consumer
credit information or other information on consumers for the
purpose of furnishing consumer reports to third parties.
(b) The director shall propose and adopt a procedural rule
in accordance with the provisions of sections four and eight,
article three, chapter twenty-nine of this code, establishing
procedures whereby information regarding the amount of overdue
support owed by an obligor residing in this state will be made
available by the office to any consumer reporting agency, upon
the request of such consumer reporting agency.
(c) (1) If the amount of any overdue support is equal to or
less than the amount of arrearage which would cause the mailingof a notice as provided for in subsection (b), section three,
article five of this chapter, information regarding such amount
may not be made available;
(2) If the amount of any overdue support exceeds the amount
of arrearage which would cause the mailing of a notice as
provided for in subsection (b), section three, article five of
this chapter, information regarding such amount shall be made
available.
(d) The procedural rule proposed and adopted shall provide
that any information with respect to an obligor shall be made
available only after notice has been sent to such obligor of the
proposed action, and such obligor has been given a reasonable
opportunity to contest the accuracy of such information.
(e) The procedural rule proposed and adopted shall afford
the obligor with procedural due process prior to making
information available with respect to the obligor.
(f) The information made available to the requesting
consumer reporting agency regarding overdue support may be in the
same form as information submitted to the secretary of the
treasury of the United States in accordance with the provisions
of section fifteen, article two of this chapter.
(g) The office may impose a fee for furnishing such
information, not to exceed the actual cost thereof.