In this case, involving a child status determination using South Carolina (SC) intestacy
law, you are considering the evidentiary impact of DNA test results and have asked
the following questions:
What are the accreditation requirements for DNA testing laboratories under South Carolina
Does the DNA laboratory used in this case meet these requirements?
If the DNA evidence is acceptable under SC intestacy law, can the child be paid retroactively
or prospectively from the date of the evidence?
We conclude that South Carolina has no specific accreditation requirements for DNA
testing laboratories. If the laboratory is accredited by the American Association
of Blood Banks, that accreditation should be sufficient to establish a presumption
that the laboratory is "qualified" to conduct genetic tests. Therefore, the DNA evidence
in this case should be acceptable for proof of paternity under the South Carolina
intestacy law. Finally, because South Carolina inheritance law does not include retroactivity
provisions, the child may be paid only prospectively from the date of the test that
Bobby D~ A~ (Claimant) was born on January 19, 2004, to Katie A. A~. An application
for child's benefits has been filed on the wage record of Bobby D~ (Wage Earner),
a Title II disability beneficiary. The Wage Earner did not sign the child's birth
certificate. Evidence to support the application includes reports that allege that
the Wage Earner acknowledged paternity at birth and the results of a DNA test performed
by Orchid GeneScreen at the Wage Earner's request. The Wage Earner, mother, and child
provided samples and the test results, reported on July 19, 2004, showed a statistical
probability of paternity of 99.99%.
South Carolina's parentage statute includes, among the evidence that is admissible
at a hearing to determine paternity, "[r]esults of genetic tests as described in Section
20 7 954 from physicians, agencies, hospitals, laboratories, or other qualified testing facilities, properly verified to show the chain of custody of blood samples." S.C. CODE ANN.
§ 20-7-956(A)(1) (2005) (emphasis added). Section 20 7 954 explains that genetic "tests
must be performed under the supervision of a qualified expert. In all cases, the court shall determine the number and the qualifications
of experts, except that the parties may submit for the court's approval a written
stipulation regarding experts and facilities to be used for testing." S.C. CODE ANN.
§ 20 7 954(A) (emphasis added).
As noted above, South Carolina focuses on whether a testing facility is "qualified"
rather than on whether the facility is accredited. We have reviewed South Carolina
statutes and have not found any specific requirements for accreditation of DNA testing
facilities either in general or specifically related to intestacy issues. Moreover,
we have not found any South Carolina statute or case indicating that accreditation
of a testing facility establishes that the facility is a "qualified" testing facility.
As § 20-7-954(a), above, intimates, the fact of whether a facility is "qualified"
is a case-by-case determination, something the trier of fact would establish based
on the parties' submissions. See, e.g., State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (S.C. 1990) (finding DNA testing (print identification)
admissible because the forensic laboratory technician who conducted DNA forensic testing
qualified as an expert in forensic laboratory testing); South Carolina Dep't of Soc. Servs., 280 S.C. 485, 313 S.E.2d 45 (S.C. Ct. App. 1984) (deferring to the discretion of
the trial judge regarding the qualification of a expert who performed genetic testing
in a paternity case).
Nevertheless, accreditation by the American Association of Blood Banks (AABB) would
likely establish a presumption that a testing facility is "qualified" and that genetic
test results from an accredited facility are reliable to establish a presumption of
paternity, absent evidence to the contrary. Statutes in many states establish that
testing must be performed by a facility approved by an accreditation body designated
by the United States Department of Health and Human Services (HHS). See, e.g., ALASKA STAT. § 25.20.050(d); CAL. FAM. CODE §§ 7551, 7552; COLO. REV. STAT. ANN.
§ 13-25-136(b); FLA. STAT. ANN. §§ 409.256(h), 742.12(1); HAW. REV. STAT. § 584-11(a)(2),
(e); IOWA CODE §§ 252A.6A.1.c, 252F.3.6d; KAN. STAT. ANN. § 38-1119(d); MASS. GEN.
LAW ANN. 209C § 17; NEB. REV. STAT. § 43-1414; N.M. STAT. § 40-11-12C; N.Y. FAM. CT.
ACT LAW § 418(a), 532(a); N.Y. SOC. SERV. LAW § 111-k.2.(a); OR. REV. STAT. §109.251;
S.D. CODIFIED LAWS § 34-14-25; TENN. CODE ANN. §§ 24-7-112(a)(3), 24-7-113(e)(3).
Statutes in some states specifically mention the AABB as an acceptable accrediting
organization. See, e.g., DEL. CODE ANN. 13 § 8-503(a); IDAHO CODE § 7-116(1); ME. REV. STAT. ANN. 19-A §
1610.1; MINN. STAT. § 257.62; MONT. CODE ANN. § 40-5-237(2); N.D. CENT. CODE § 14-20-27(503);
OHIO REV. CODE ANN. § 3119.963(D); TEX. FAM.CODE ANN. § 160.503(a); UTAH CODE ANN.
§ 78-45g-503(1); WASH. REV. CODE § 26.26.410(1); WYO. STAT. ANN. § 14-2-703(a). The
AABB is an accreditation organization recognized by HHS. See CLIA Program; Continued Approval of the American Association of Blood Banks for Deeming
Authority, 69 Fed. Reg. 78,426 (Dec. 30, 2004); CLIA Program; Approval of the American
Association of Blood Banks, 60 Fed. Reg. 37,660 (July 21, 1995).
Courts in other states that have considered the admissibility of DNA testing also
have indicated that accreditation of a facility by the AABB provides a basis for accepting
test results from the facility, absent evidence undermining the reliability of the
test results. See, e.g., Overby v. Flannery, 22 Va. App. 293, 469 S.E.2d 79 (1996) (accepting without discussion uncontroverted
DNA test results conducted in accordance with accepted standards of the AABB); Fowler v. Napier, 663 N.E.2d 1197 (Ind. 1996) (holding that the trial court did nor abuse its discretion
in allowing the testimony of an employee of GeneScreen and the DNA test results from
GeneScreen); State v. Spencer, 663 So.2d 271 (La. 1995) (indicating that accreditation by the AABB provided evidence
that a testing facility was properly qualified to provide DNA analysis); Kofford v. Flora, 744 P.2d 1343, 1356 (Utah 1987) (holding that before genetic test results can be
admitted in a paternity trial, evidence must be produced that the particular tests
were conducted as specified by the AABB or in an equally reliable manner, regardless
of whether the laboratory conducting the test was AABB accredited).
Therefore, we believe a South Carolina court would find AABB accreditation sufficient
for concluding Orchid GeneScreen is a testing facility "qualified" to perform genetic
testing, absent evidence to the contrary. If such contradictory evidence were present,
the South Carolina court would make an individualized determination of deference due
the tests on the basis of all the evidence.
You have already determined that the Claimant would be recognized as Wage Earner's
child pursuant to South Carolina intestacy law if the laboratory providing the DNA
evidence was "qualified." South Carolina statutes provide that test results that show
a statistical probability of paternity of ninety-five percent or higher creates a
rebuttable presumption of the putative father's paternity. S.C. Code Ann. § 20-7-956.
The DNA test results in this case exceed that percentage.
The remaining question is the date of entitlement. Under 20 C.F.R. § 404.621(a)(2),
an applicant for child's benefits can receive benefits for up to six months immediately
before the month in which the application is filed. However, no child is entitled
to benefits for any period prior to satisfying all entitlement factors for child's
benefits. See § 202(d)(1) of the Act; 42 U.S.C. 402(d)(1); 20 C.F.R. § 404.352(a). Child status
is one of the entitlement factors. See § 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1). An illegitimate child generally
is not entitled to retroactive benefits because the illegitimate child must prove
child status under state law and benefits are prospective from the event which conferred
the inheritance rights. See POMS GN 00306.055A.3. However, if the state law granting inheritance rights to an illegitimate child
makes those rights retroactive for some period prior to the act or event that confers
those rights, such as when the child has been legitimated, then benefits would be
retroactive. See POMS GN 00306.050. South Carolina does not have a retroactive provision, and South Carolina intestacy
law confers only rights of intestate succession, not legitimacy. See S.C. CODE ANN. § 62-2-109. Only under certain circumstances will a child born to
unmarried parents be considered legitimate. See S.C. CODE ANN. §§ 20-1-30, 20-1-40, 20-1-50, 20-1-60, 20-1-90. None of the circumstances
listed in the statutes apply in this case. Thus, entitlement is based on the date
paternity is effectively established. Our prior opinions concerning retroactive benefits
for illegitimate children in South Carolina reached the same conclusion. See POMS PR 01115.045; Memorandum from OGC Region IV to A. Leon R~ "Genetic Testing and Retroactive Benefits,
South Carolina, Deceased Number Holder - Romodia J. J~ Claimant - Robert A. W~" p.
2-3 (1/3/05), copy attached. Therefore, the appropriate date of entitlement would
be July 2004, when the test results were published.
We conclude that a DNA testing laboratory accredited by the AABB would be considered
a qualified testing facility by a South Carolina absent court evidence to the contrary.
The testing facility used in the case, Orchid GeneScreen, is accredited by the AABB,
and given the absence of contrary evidence, would be considered a qualified testing
facility. Finally, Claimant is not entitled to benefits prior to July 2004, the date
of the tests results.
Very truly yours,
Mary A. S~
Regional Chief Counsel
Brian C. H~
Assistant Regional Counsel