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A08952 Summary:

A08952 Actions:

A08952 Floor Votes:

A08952 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8952
 
                               2009-2010 Regular Sessions
 
                   IN ASSEMBLY
 
                                      June 16, 2009
                                       ___________
 
        Introduced  by M. of A. WEINSTEIN -- Multi-Sponsored by -- M. of A. JOHN
          -- (at request of the Office of Temporary and  Disability  Assistance)
          -- read once and referred to the Committee on Judiciary
 
        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:
 
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "Low Income Support Obligation and Performance Improvement Act".
     3    §  2.  Subsection  (d-1)  of  section 606 of the tax law is amended by
     4  adding a new paragraph 8 to read as follows:
     5    (8) In a report prepared by the  commissioner  and  submitted  to  the
     6  office  of  temporary  and  disability  assistance, the department shall
     7  include information concerning  the  credit  allowed  pursuant  to  this

     8  subsection  indicating whether or not taxpayers identified by the office
     9  of temporary and disability assistance pursuant  to  paragraph  four  of
    10  this subsection filed an income tax return, filed for a credit, received
    11  a  credit,  and  the  amount of any such credit. Any individual taxpayer
    12  information furnished by the department pursuant to this  section  shall
    13  be  deemed  confidential and may not be disclosed to any third party and
    14  the office of temporary and disability  assistance  is  prohibited  from
    15  using  the  individual  taxpayer  information  except for the purpose of
    16  analyzing the impact of the credit  and  its  effect  on  child  support
    17  payments.
    18    §  3.  Subdivision  1  of  section 171-a of the tax law, as amended by

    19  chapter 398 of the laws of 1997, is amended to read as follows:
    20    (1) The department shall design, develop, implement and operate a wage
    21  reporting system within the department utilizing  information  submitted
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07739-06-9
        A. 8952                             2
 
     1  by  employers  as  defined  under article eighteen of the labor law. The
     2  department is authorized to require submission of a report, in such form
     3  and in such manner as prescribed by regulations for not more  frequently
     4  than  four times per annum, of the name, social security account number,
     5  and gross wages paid to each employee who resides or is employed in this

     6  state, whether or not such employee is a resident for purposes  of  this
     7  chapter  and  whether  or  not the wages of such employee are subject to
     8  withholding of tax or payments of tax under article twenty-two  of  this
     9  chapter.    Employers  also  shall  report if dependent health insurance
    10  benefits are available. No report shall be  filed  with  respect  to  an
    11  employee  of a state or local agency performing intelligence or counter-
    12  intelligence functions, if the head of such agency has  determined  that
    13  filing  such  a  report  could  endanger  the  safety of the employee or
    14  compromise an ongoing investigation or intelligence mission.
    15    § 4. Paragraphs (a) and (b) of subdivision 3 of section 171-h  of  the
    16  tax  law,  as  added  by chapter 398 of the laws of 1997, are amended to
    17  read as follows:

    18    (a) General. Employers shall furnish to the  state  directory  of  new
    19  hires  a  report  that  contains  the name, address, and social security
    20  number of each newly hired or re-hired employee who works in the  state,
    21  and  the employer's name, address, and identification number as assigned
    22  pursuant to section six thousand one hundred nine of the internal reven-
    23  ue code of 1986.  Employers also shall report if dependent health insur-
    24  ance benefits are available and the date the employee qualifies for  the
    25  benefits.
    26    (b)  Format. Each report shall be submitted on a W-4 (employee's with-
    27  holding allowance certificate) form or, at employer  option,  an  equiv-
    28  alent  form  and transmitted by first class mail, magnetically, or elec-
    29  tronically to the state directory of new hires.   In addition,  if  each

    30  report  is  submitted  on a W-4, an additional form as prescribed by the
    31  department shall be submitted to report if  dependent  health  insurance
    32  benefits are available and the date the employee qualifies for the bene-
    33  fits.  That  additional  form  shall be transmitted by first class mail,
    34  magnetically, or electronically to the state directory of new hires.
    35    § 5. Paragraph 3 of subsection (e) of section 697 of the tax  law,  as
    36  amended  by  section  4  of part V of chapter 57 of the laws of 2009, is
    37  amended to read as follows:
    38    (3) Nothing herein shall be construed to prohibit the department,  its
    39  officers  or  employees  from  furnishing  information  to the office of
    40  temporary and disability assistance relating to the payment of the cred-
    41  it for certain household and dependent care services necessary for gain-

    42  ful employment under subsection (c) of section six hundred six  of  this
    43  article and the earned income credit under subsection (d) of section six
    44  hundred  six of this article and the enhanced earned income credit under
    45  subsection (d-1) of section six hundred six of this article, or pursuant
    46  to a local law enacted by a city having a population of one  million  or
    47  more  pursuant to subsection (f) of section thirteen hundred ten of this
    48  chapter, only to the  extent  necessary  to  calculate  qualified  state
    49  expenditures  under  paragraph  seven of subdivision (a) of section four
    50  hundred nine of the federal social security act or to document the prop-
    51  er expenditure of federal temporary assistance for needy families  funds
    52  under  section  four  hundred three of such act. The office of temporary
    53  and disability assistance may redisclose such information to the  United

    54  States department of health and human services only to the extent neces-
    55  sary  to  calculate such qualified state expenditures or to document the
    56  proper expenditure of such federal temporary assistance for needy  fami-
        A. 8952                             3
 
     1  lies  funds.  Nothing herein shall be construed to prohibit the delivery
     2  by the commissioner to a commissioner of jurors, appointed  pursuant  to
     3  section  five  hundred four of the judiciary law, or, in counties within
     4  cities  having  a population of one million or more, to the county clerk
     5  of such county, of a mailing list of  individuals  to  whom  income  tax
     6  forms are mailed by the commissioner for the sole purpose of compiling a
     7  list of prospective jurors as provided in article sixteen of the judici-
     8  ary  law.   Provided, however, such delivery shall only be made pursuant

     9  to an order of the chief administrator of the courts, appointed pursuant
    10  to section two hundred ten of the judiciary law. No such  order  may  be
    11  issued  unless  such  chief administrator is satisfied that such mailing
    12  list is needed to compile a proper list of prospective  jurors  for  the
    13  county for which such order is sought and that, in view of the responsi-
    14  bilities  imposed by the various laws of the state on the department, it
    15  is reasonable to require the commissioner to  furnish  such  list.  Such
    16  order shall provide that such list shall be used for the sole purpose of
    17  compiling  a  list  of  prospective jurors and that such commissioner of
    18  jurors, or such county clerk, shall take all necessary steps  to  insure
    19  that the list is kept confidential and that there is no unauthorized use
    20  or  disclosure  of  such  list.  Furthermore,  nothing  herein  shall be

    21  construed to prohibit the delivery to a taxpayer  or  his  or  her  duly
    22  authorized  representative  of  a certified copy of any return or report
    23  filed in connection with his or her tax or to prohibit  the  publication
    24  of  statistics so classified as to prevent the identification of partic-
    25  ular reports or returns and the items thereof, or the inspection by  the
    26  attorney  general  or  other  legal  representatives of the state of the
    27  report or return of any taxpayer or of any employer filed under  section
    28  one  hundred  seventy-one-h  of  this  chapter,  where  such taxpayer or
    29  employer shall bring action to set aside or review the tax based  there-
    30  on,  or against whom an action or proceeding under this chapter or under
    31  this chapter and article eighteen of the labor law has been  recommended
    32  by the commissioner, the commissioner of labor with respect to unemploy-

    33  ment  insurance matters, or the attorney general or has been instituted,
    34  or the inspection of the reports or returns required under this  article
    35  by  the  comptroller or duly designated officer or employee of the state
    36  department of audit and control, for purposes of the audit of  a  refund
    37  of  any  tax paid by a taxpayer under this article, or the furnishing to
    38  the state department of  labor  of  unemployment  insurance  information
    39  obtained  or derived from quarterly combined withholding, wage reporting
    40  and unemployment insurance returns required to  be  filed  by  employers
    41  pursuant  to  paragraph  four  of  subsection (a) of section six hundred
    42  seventy-four of this article, for purposes  of  administration  of  such
    43  department's   unemployment   insurance   program,  employment  services
    44  program, federal and state employment and training programs,  employment

    45  statistics  and  labor  market  information  programs, worker protection
    46  programs, federal programs for which the department  has  administrative
    47  responsibility  or  for other purposes deemed appropriate by the commis-
    48  sioner of labor consistent with the provisions of  the  labor  law,  and
    49  redisclosure  of  such  information in accordance with the provisions of
    50  sections five hundred thirty-six and five hundred  thirty-seven  of  the
    51  labor  law  or  any other applicable law, or the furnishing to the state
    52  office of temporary and disability assistance of information obtained or
    53  derived from New York state personal income tax returns as described  in
    54  paragraph (b) of subdivision two of section one hundred seventy-one-g of
    55  this chapter for the purpose of reviewing support orders enforced pursu-
    56  ant to title six-A of article three of the social services law to aid in

        A. 8952                             4
 
     1  the  determination  of  whether  such  orders should be adjusted, or the
     2  furnishing of information obtained  from  the  reports  required  to  be
     3  submitted  by  employers  regarding  newly  hired  or re-hired employees
     4  pursuant  to  section  one  hundred seventy-one-h of this chapter to the
     5  state office of temporary and disability assistance, the  state  depart-
     6  ment  of  health, the state department of labor and the workers' compen-
     7  sation board  for  purposes  of  administration  of  the  child  support
     8  enforcement program, verification of individuals' eligibility for one or
     9  more  of  the  programs  specified  in  subsection (b) of section eleven
    10  hundred thirty-seven of the federal social security act  and  for  other
    11  public  assistance  programs authorized by state law, and administration

    12  of the state's employment security and workers'  compensation  programs,
    13  and  to  the  national  directory  of  new hires established pursuant to
    14  section four hundred fifty-three-A of the federal  social  security  act
    15  for  the  purposes  specified  in such section, or the furnishing to the
    16  state office of temporary and disability assistance of the amount of  an
    17  overpayment  of  income  tax and interest thereon certified to the comp-
    18  troller to be credited against past-due support pursuant to section  one
    19  hundred seventy-one-c of this chapter and of the name and social securi-
    20  ty  number  of the taxpayer who made such overpayment, or the disclosing
    21  to the commissioner of finance of the city  of  New  York,  pursuant  to
    22  section  one  hundred seventy-one-l of this chapter, of the amount of an
    23  overpayment and interest thereon certified  to  the  comptroller  to  be

    24  credited against a city of New York tax warrant judgment debt and of the
    25  name  and  social security number of the taxpayer who made such overpay-
    26  ment, or the furnishing to the New York state higher education  services
    27  corporation  of  the amount of an overpayment of income tax and interest
    28  thereon certified to the comptroller to be credited against  the  amount
    29  of  a  default  in repayment of any education loan debt, including judg-
    30  ments, owed to the federal or New York state government  that  is  being
    31  collected  by  the New York state higher education services corporation,
    32  and of the name and social security number of the taxpayer who made such
    33  overpayment, or the furnishing to the state department of health of  the
    34  information required by paragraph (f) of subdivision two and subdivision
    35  two-a  of  section two thousand five hundred eleven of the public health

    36  law and by subdivision eight of section three  hundred  sixty-six-a  and
    37  paragraphs  (b)  and  (d)  of  subdivision  two of section three hundred
    38  sixty-nine-ee of the social services law, or the furnishing to the state
    39  university of New York or the city university of New  York  respectively
    40  or  the  attorney general on behalf of such state or city university the
    41  amount of an overpayment of income tax and interest thereon certified to
    42  the comptroller to be credited against the amount of a default in repay-
    43  ment of a state university loan pursuant to section one  hundred  seven-
    44  ty-one-e  of  this chapter and of the name and social security number of
    45  the taxpayer who made such overpayment, or the  disclosing  to  a  state
    46  agency,  pursuant  to section one hundred seventy-one-f of this chapter,
    47  of the amount of an overpayment and interest thereon  certified  to  the

    48  comptroller  to  be credited against a past-due legally enforceable debt
    49  owed to such agency and of the name and social security  number  of  the
    50  taxpayer  who  made  such overpayment, or the furnishing of employee and
    51  employer information obtained through the wage reporting system,  pursu-
    52  ant  to  section  one hundred seventy-one-a of this chapter, as added by
    53  chapter five hundred forty-five of the laws of nineteen  hundred  seven-
    54  ty-eight,  to  the  state office of temporary and disability assistance,
    55  the department of health or to the state office of the medicaid  inspec-
    56  tor general for the purpose of verifying eligibility for and entitlement
        A. 8952                             5
 
     1  to  amounts  of benefits under the social services law or similar law of
     2  another jurisdiction, locating absent parents or other  persons  legally

     3  responsible  for  the  support of applicants for or recipients of public
     4  assistance  and  care  under the social services law and persons legally
     5  responsible for the support of a recipient of services under section one
     6  hundred eleven-g of the social services law and, in  appropriate  cases,
     7  establishing support obligations pursuant to the social services law and
     8  the family court act or similar provision of law of another jurisdiction
     9  for the purpose of evaluating the effect on earnings of participation in
    10  employment, training or other programs designed to promote self-suffici-
    11  ency  authorized  pursuant to the social services law by current recipi-
    12  ents of public assistance and care and by former applicants and  recipi-
    13  ents  of  public assistance and care, (except that with regard to former
    14  recipients, information which relates to a particular  former  recipient

    15  shall  be  provided  with client identifying data deleted), to the state
    16  office of temporary and disability assistance for the purpose of  deter-
    17  mining  the eligibility of any child in the custody, care and custody or
    18  custody and guardianship of a local social services district or  of  the
    19  office  of  children and family services for federal payments for foster
    20  care and adoption assistance pursuant to the provisions of title IV-E of
    21  the federal social security act by providing information with respect to
    22  the parents, the stepparents, the child and the siblings  of  the  child
    23  who  were  living  in  the same household as such child during the month
    24  that the court proceedings leading  to  the  child's  removal  from  the
    25  household  were  initiated,  or the written instrument transferring care
    26  and custody of the child pursuant to the  provisions  of  section  three

    27  hundred  fifty-eight-a  or  three  hundred  eighty-four-a  of the social
    28  services law was signed, provided however that the office  of  temporary
    29  and disability assistance shall only use the information obtained pursu-
    30  ant  to  this subdivision for the purpose of determining the eligibility
    31  of such child for federal payments for foster care and adoption  assist-
    32  ance  pursuant  to  the  provisions  of title IV-E of the federal social
    33  security act, and to the state department of labor, or other individuals
    34  designated by the commissioner of labor, for the purpose of the adminis-
    35  tration of such department's unemployment insurance program,  employment
    36  services  program,  federal  and state employment and training programs,
    37  employment statistics and  labor  market  information  programs,  worker
    38  protection  programs,  federal  programs  for  which  the department has

    39  administrative responsibility or for other purposes  deemed  appropriate
    40  by the commissioner of labor consistent with the provisions of the labor
    41  law,  and  redisclosure  of  such  information  in  accordance  with the
    42  provisions of sections five hundred thirty-six and five hundred  thirty-
    43  seven  of  the  labor  law,  or  the furnishing of information, which is
    44  obtained from the wage reporting system operated pursuant to section one
    45  hundred seventy-one-a of this chapter, as added by chapter five  hundred
    46  forty-five  of  the laws of nineteen hundred seventy-eight, to the state
    47  office of temporary and disability assistance so  that  it  may  furnish
    48  such  information  to  public agencies of other jurisdictions with which
    49  the state office of temporary and disability assistance has an agreement
    50  pursuant to paragraph (h) or (i) of subdivision three of section  twenty

    51  of  the  social  services  law, and to the state office of temporary and
    52  disability assistance for the  purpose  of  fulfilling  obligations  and
    53  responsibilities otherwise incumbent upon the state department of labor,
    54  under  section one hundred twenty-four of the federal family support act
    55  of nineteen hundred eighty-eight, by giving the federal  parent  locator
    56  service,  maintained  by  the  federal  department  of  health and human
        A. 8952                             6
 
     1  services, prompt access to such information as required by such act,  or
     2  to  the state department of health to verify eligibility under the child
     3  health insurance plan pursuant to subdivisions two and two-a of  section
     4  two  thousand  five  hundred  eleven of the public health law, to verify
     5  eligibility under the medical assistance and family health plus programs

     6  pursuant to subdivision eight of section three hundred  sixty-six-a  and
     7  paragraphs  (b)  and  (d)  of  subdivision  two of section three hundred
     8  sixty-nine-ee of the social services law, and to verify eligibility  for
     9  the  program  for  elderly pharmaceutical insurance coverage under title
    10  three of article two of the elder law, or to the  office  of  vocational
    11  and educational services for individuals with disabilities of the educa-
    12  tion  department,  the commission for the blind and visually handicapped
    13  and any other state vocational rehabilitation agency,  for  purposes  of
    14  obtaining  reimbursement from the federal social security administration
    15  for expenditures made by such office, commission or agency on behalf  of
    16  disabled  individuals  who have achieved economic self-sufficiency or to
    17  the higher education services corporation for the purpose  of  assisting

    18  the  corporation  in default prevention and default collection of educa-
    19  tion loan debt, including judgments, owed to the  federal  or  New  York
    20  state  government;  provided,  however,  that  such information shall be
    21  limited to the names, social  security  numbers,  home  and/or  business
    22  addresses,  and  employer  names of defaulted or delinquent student loan
    23  borrowers.
    24    Provided, however, that  with  respect  to  employee  information  the
    25  office  of  temporary  and disability assistance shall only be furnished
    26  with the names, social security account numbers and gross wages of those
    27  employees who are (A) applicants for or recipients of benefits under the
    28  social services law, or similar provision of law of another jurisdiction
    29  (pursuant to an agreement under subdivision three of section  twenty  of
    30  the social services law) or, (B) absent parents or other persons legally

    31  responsible  for  the  support of applicants for or recipients of public
    32  assistance and care under the social services law or  similar  provision
    33  of  law of another jurisdiction (pursuant to an agreement under subdivi-
    34  sion three of section twenty of the social services law), or (C) persons
    35  legally responsible for the support of a  recipient  of  services  under
    36  section  one  hundred  eleven-g  of  the  social services law or similar
    37  provision of law of another jurisdiction (pursuant to an agreement under
    38  subdivision three of section twenty of the social services law), or  (D)
    39  employees   about  whom  wage  reporting  system  information  is  being
    40  furnished to public agencies of  other  jurisdictions,  with  which  the
    41  state  office  of  temporary  and disability assistance has an agreement
    42  pursuant to paragraph (h) or (i) of subdivision three of section  twenty

    43  of  the  social services law, or (E) employees about whom wage reporting
    44  system information is being furnished  to  the  federal  parent  locator
    45  service,  maintained  by  the  federal  department  of  health and human
    46  services, for the purpose of enabling the state office of temporary  and
    47  disability assistance to fulfill obligations and responsibilities other-
    48  wise  incumbent  upon  the  state department of labor, under section one
    49  hundred twenty-four of  the  federal  family  support  act  of  nineteen
    50  hundred eighty-eight, and, only if, the office of temporary and disabil-
    51  ity  assistance certifies to the commissioner that such persons are such
    52  applicants, recipients, absent parents or  persons  legally  responsible
    53  for  support  or  persons about whom information has been requested by a
    54  public agency of another jurisdiction or by the federal  parent  locator

    55  service  and further certifies that in the case of information requested
    56  under agreements with  other  jurisdictions  entered  into  pursuant  to
        A. 8952                             7
 
     1  subdivision  three  of  section  twenty of the social services law, that
     2  such request is in compliance with any applicable federal law. Provided,
     3  further, that where the office of temporary  and  disability  assistance
     4  requests  employee information for the purpose of evaluating the effects
     5  on earnings of participation in employment, training or  other  programs
     6  designed  to  promote self-sufficiency authorized pursuant to the social
     7  services law, the office of temporary and  disability  assistance  shall
     8  only  be  furnished with the quarterly gross wages (excluding any refer-
     9  ence to the name, social security number or any other information  which

    10  could  be  used  to  identify any employee or the name or identification
    11  number of any employer) paid to employees who are former applicants  for
    12  or  recipients of public assistance and care and who are so certified to
    13  the commissioner by the commissioner of  the  office  of  temporary  and
    14  disability  assistance. Provided, further, that with respect to employee
    15  information, the department of health shall only be furnished  with  the
    16  information  required  pursuant  to  the  provisions of paragraph (f) of
    17  subdivision two and subdivision  two-a  of  section  two  thousand  five
    18  hundred eleven of the public health law and subdivision eight of section
    19  three  hundred sixty-six-a and paragraphs (b) and (d) of subdivision two
    20  of section three hundred sixty-nine-ee of the social services law,  with
    21  respect  to  those  individuals whose eligibility under the child health

    22  insurance plan, medical  assistance  program,  and  family  health  plus
    23  program is to be determined pursuant to such provisions and with respect
    24  to those members of any such individual's household whose income affects
    25  such  individual's  eligibility  and who are so certified to the commis-
    26  sioner or by the department of  health.  Provided,  further,  that  wage
    27  reporting information shall be furnished to the office of vocational and
    28  educational  services for individuals with disabilities of the education
    29  department, the commission for the blind and  visually  handicapped  and
    30  any  other  state  vocational rehabilitation agency only if such office,
    31  commission or agency, as applicable, certifies to the commissioner  that
    32  such  information  is necessary to obtain reimbursement from the federal
    33  social security administration for expenditures made on behalf of  disa-

    34  bled individuals who have achieved self-sufficiency. Reports and returns
    35  shall be preserved for three years and thereafter until the commissioner
    36  orders them to be destroyed.
    37    § 6. Section 451 of the family court act, as amended by chapter 533 of
    38  the laws of 1999, is amended to read as follows:
    39    §  451.  Continuing  jurisdiction.  1.  Except  as provided in article
    40  five-B of this act, the  court  has  continuing  jurisdiction  over  any
    41  support  proceeding  brought  under  this  article until its judgment is
    42  completely satisfied and may modify,  set  aside  or  vacate  any  order
    43  issued  in  the  course  of  the proceeding, provided, however, that the
    44  modification, set aside or vacatur  shall  not  reduce  or  annul  child
    45  support  arrears  accrued prior to the making of an application pursuant

    46  to this section. The court shall not reduce or annul any  other  arrears
    47  unless  the defaulting party shows good cause for failure to make appli-
    48  cation for relief from the judgment or order directing payment prior  to
    49  the  accrual  of  the arrears, in which case the facts and circumstances
    50  constituting such good cause shall be set forth in a written  memorandum
    51  of  decision. A modification may increase support payments nunc pro tunc
    52  as of the date of the initial application for  support  based  on  newly
    53  discovered evidence. Any retroactive amount of support due shall be paid
    54  [in  one  lump  sum  or periodic sums, as the court directs, taking into
    55  account any amount of support which has been paid] and be enforceable as
    56  provided in section four hundred forty of this article. Upon an applica-

        A. 8952                             8
 
     1  tion to modify, set aside or vacate an  order  of  support,  no  hearing
     2  shall  be required unless such application shall be supported by affida-
     3  vit and other evidentiary material sufficient to establish a prima facie
     4  case for the relief requested.
     5    2.  (a)  The  court may modify an order of child support, including an
     6  order incorporating without merging an agreement or stipulation  of  the
     7  parties,  upon  a  showing  of  a  substantial  change in circumstances.
     8  Incarceration shall not be a bar to  finding  a  substantial  change  in
     9  circumstances  provided such incarceration is not the result of non-pay-
    10  ment of a child support order,  or  an  offense  against  the  custodial
    11  parent or child who is the subject of the order or judgment.

    12    (b) In addition, unless the parties have specifically opted out of the
    13  following  provisions  in  a  validly  executed agreement or stipulation
    14  entered into between the parties, the court may modify an order of child
    15  support where:
    16    (i) three years have passed since the order was entered, last modified
    17  or adjusted; or
    18    (ii) there has been a change in either party's gross income by fifteen
    19  percent or more since the order was entered, last modified, or adjusted.
    20  A reduction in income shall not be considered as a ground for  modifica-
    21  tion  unless it was involuntary and the party has made diligent attempts
    22  to secure employment commensurate with his or  her  education,  ability,
    23  and experience.

    24    §  7.  Paragraph  b  of  subdivision 9 of part B of section 236 of the
    25  domestic relations law, as amended by chapter 354 of the laws  of  1993,
    26  is amended to read as follows:
    27    b. (1) Upon application by either party, the court may annul or modify
    28  any prior order or judgment as to maintenance [or child support], upon a
    29  showing of the recipient's inability to be self-supporting or a substan-
    30  tial  change  in  circumstance  or  termination of child support awarded
    31  pursuant to section two hundred forty of this article, including  finan-
    32  cial  hardship.  Where,  after  the effective date of this part, a sepa-
    33  ration agreement remains in force no modification of a  prior  order  or
    34  judgment  incorporating  the terms of said agreement shall be made as to
    35  maintenance without a showing of extreme hardship on  either  party,  in

    36  which  event the judgment or order as modified shall supersede the terms
    37  of the prior agreement and judgment for such period of  time  and  under
    38  such  circumstances as the court determines. [Provided, however, that no
    39  modification or annulment shall reduce or annul  any  arrears  of  child
    40  support  which have accrued prior to the date of application to annul or
    41  modify any prior order or judgment as to child support.] The court shall
    42  not reduce or annul any arrears of maintenance which have  been  reduced
    43  to  final  judgment  pursuant  to section two hundred forty-four of this
    44  [chapter] article. No other arrears of maintenance  which  have  accrued
    45  prior to the making of such application shall be subject to modification
    46  or annulment unless the defaulting party shows good cause for failure to

    47  make  application  for  relief from the judgment or order directing such
    48  payment prior to the accrual of such arrears and the facts  and  circum-
    49  stances constituting good cause are set forth in a written memorandum of
    50  decision.  Such modification may increase maintenance [or child support]
    51  nunc pro tunc as of the date of application based  on  newly  discovered
    52  evidence.  Any retroactive amount of maintenance[, or child support] due
    53  shall, except as provided for herein, be paid in  one  sum  or  periodic
    54  sums, as the court directs, taking into account any temporary or partial
    55  payments  which have been made. [Any retroactive amount of child support
    56  due shall be support arrears/past due support. In addition, such  retro-
        A. 8952                             9


     1  active  child support shall be enforceable in any manner provided by law
     2  including, but not limited to,  an  execution  for  support  enforcement
     3  pursuant  to  subdivision  (b) of section fifty-two hundred forty-one of
     4  the  civil  practice  law and rules. When a child receiving support is a
     5  public assistance recipient, or the order of support is  being  enforced
     6  or  is  to  be  enforced pursuant to section one hundred eleven-g of the
     7  social services law, the court shall establish the amount of retroactive
     8  child support and notify the parties that such amount shall be  enforced
     9  by  the  support  collection  unit  pursuant to an execution for support
    10  enforcement as provided for in  subdivision  (b)  of  section  fifty-two

    11  hundred  forty-one of the civil practice law and rules, or in such peri-
    12  odic payments as would have been authorized had such an  execution  been
    13  issued.  In such case, the court shall not direct the schedule of repay-
    14  ment of retroactive support.] The provisions of this  subdivision  shall
    15  not  apply to a separation agreement made prior to the effective date of
    16  this part.
    17    (2) (i) The court may modify an order of child support,  including  an
    18  order  incorporating  without merging an agreement or stipulation of the
    19  parties, upon a showing of a substantial change in circumstances. Incar-
    20  ceration shall not be a bar to finding a substantial change  in  circum-
    21  stances  provided such incarceration is not the result of non-payment of

    22  a child support order, or an offense against  the  custodial  parent  or
    23  child who is the subject of the order or judgment.
    24    (ii)  In  addition,  unless the parties have specifically opted out of
    25  the following provisions in a validly executed agreement or  stipulation
    26  entered into between the parties, the court may modify an order of child
    27  support where:
    28    (A) three years have passed since the order was entered, last modified
    29  or adjusted; or
    30    (B)  there has been a change in either party's gross income by fifteen
    31  percent or more since the order was entered, last modified, or adjusted.
    32  A reduction in income shall not be considered as a ground for  modifica-

    33  tion  unless it was involuntary and the party has made diligent attempts
    34  to secure employment commensurate with his or  her  education,  ability,
    35  and experience.
    36    (iii)  No  modification or annulment shall reduce or annul any arrears
    37  of child support which have accrued prior to the date of application  to
    38  annul  or  modify  any prior order or judgment as to child support. Such
    39  modification may increase child support nunc pro tunc as of the date  of
    40  application  based  on newly discovered evidence. Any retroactive amount
    41  of child support due shall, except as provided for in this subparagraph,
    42  be paid in one sum or periodic sums, as the court directs,  taking  into
    43  account  any  temporary  or  partial  payments which have been made. Any

    44  retroactive amount of child support due shall  be  support  arrears/past
    45  due  support.  In  addition,  such  retroactive  child  support shall be
    46  enforceable in any manner provided by law including, but not limited to,
    47  an execution for support enforcement  pursuant  to  subdivision  (b)  of
    48  section fifty-two hundred forty-one of the civil practice law and rules.
    49  When  a child receiving support is a public assistance recipient, or the
    50  order of support is being enforced or is  to  be  enforced  pursuant  to
    51  section one hundred eleven-g of the social services law, the court shall
    52  establish the amount of retroactive child support and notify the parties
    53  that such amount shall be enforced by the support collection unit pursu-

    54  ant to an immediate execution for support enforcement as provided for by
    55  this chapter, or in such periodic payments as would have been authorized
        A. 8952                            10
 
     1  had  such  an  execution  been issued. In such case, the court shall not
     2  direct the schedule of repayment of retroactive support.
     3    §  8. Subdivision 4 of section 440 of the family court act, as amended
     4  by chapter 398 of the laws of 1997, is amended to read as follows:
     5    4.  Any support order made by the court in any  proceeding  under  the
     6  provisions  of  article five-B of this act, pursuant to a reference from
     7  the supreme court under section two hundred fifty-one  of  the  domestic
     8  relations law or under the provisions of this article [four,] or article

     9  five  or five-A of this act shall include, on its face, a notice printed
    10  or typewritten in a size equal to at least eight point bold type:
    11    (a) informing the respondent that a willful failure to obey the  order
    12  may, after court hearing, result in commitment to jail for a term not to
    13  exceed six months for contempt of court[.], and
    14    (b) informing the parties of their right to seek a modification of the
    15  child support order upon a showing of:
    16    (i) a substantial change in circumstances; or
    17    (ii)  that  three  years have passed since the order was entered, last
    18  modified or adjusted; or
    19    (iii) there has been a  change  in  either  party's  gross  income  by
    20  fifteen  percent  or more since the order was entered, last modified, or

    21  adjusted;
    22  however, if the parties have specifically opted out of subparagraph (ii)
    23  or (iii) of this paragraph in a validly  executed  agreement  or  stipu-
    24  lation, then that basis to seek modification does not apply.
    25    §  9. Subdivision 7 of part B of section 236 of the domestic relations
    26  law is amended by adding a new paragraph d to read as follows:
    27    d. Any child support order made by the court in any  proceeding  under
    28  the  provisions  of  this  section  shall include, on its face, a notice
    29  printed or typewritten in a size equal to at least eight point bold type
    30  informing the parties of their right to seek a modification of the child
    31  support order upon a showing of:
    32    (i) a substantial change in circumstances; or

    33    (ii) that three years have passed since the order  was  entered,  last
    34  modified or adjusted; or
    35    (iii)  there  has  been  a  change  in  either party's gross income by
    36  fifteen percent or more since the order was entered, last  modified,  or
    37  adjusted;
    38  however, if the parties have specifically opted out of subparagraph (ii)
    39  or  (iii)  of  this  paragraph in a validly executed agreement or stipu-
    40  lation, then that basis to seek modification does not apply.
    41    § 10. The family court act is amended by adding a new section 437-a to
    42  read as follows:
    43    § 437-a. Referral to work programs. In any proceeding to establish  an
    44  order of support, if the respondent is unemployed, the court may require

    45  the  respondent  to  seek employment, or to participate in job training,
    46  employment counseling or other programs designed to lead  to  employment
    47  provided  such  programs  are available. The court shall not require the
    48  respondent to seek employment or to participate in job training, employ-
    49  ment counseling, or other programs designed to lead to employment  under
    50  this  section  if  the respondent is in receipt of supplemental security
    51  income or social security disability benefits.
    52    § 11. Section 111-h of the social services law is amended by adding  a
    53  new subdivision 20 to read as follows:
    54    20.  If  the  respondent  is  required to participate in work programs
    55  pursuant to section four hundred thirty-seven-a of the family court act,

    56  and the court enters an order of support on behalf  of  the  persons  in
        A. 8952                            11
 
     1  receipt of public assistance, the support collection unit shall not file
     2  a petition to increase the support obligation for twelve months from the
     3  date  of  entry  of  the  order of support if the respondent's income is
     4  derived from participation in such programs.
     5    §  12.  Subdivision  (b)  of  section  461  of the family court act is
     6  amended to read as follows:
     7    (b) If an order of the supreme court or of another court of  competent
     8  jurisdiction requires support of the child, the family court may:
     9    (i)  entertain  an application to enforce the order requiring support;
    10  or

    11    (ii) entertain an application to modify such order [on the ground that
    12  changed circumstances requires  such  modification]  as  provided  under
    13  subdivision two of section four hundred fifty-one of this article,
    14  unless  the  order  of the supreme court provides that the supreme court
    15  retains exclusive jurisdiction to enforce or modify the order.
    16    § 13. This act shall take effect on the ninetieth day after  it  shall
    17  have  become  law; provided however, that sections six and seven of this
    18  act shall apply to any action or proceeding to modify any order of child
    19  support entered on or after the effective date of this act  except  that
    20  if  the  child support order incorporated without merging a valid agree-
    21  ment or stipulation of the parties, the amendments regarding the modifi-

    22  cation of a child support order set forth in sections six and  seven  of
    23  this  act  shall only apply if the incorporated agreement or stipulation
    24  was executed on or after this act's effective  date;  provided  however,
    25  that  sections three and four of this act shall take effect on the three
    26  hundred sixty-fifth day after it shall have become a law.