QUESTION
Whether a "Notice of Lien" issued by the State of Tennessee Department of Human Services
is an appropriate garnishment instrument under section 459 of the Social Security
Act (Act), 42 U.S.C. § 659 (2005).
ANSWER
Based on amendments to the Tennessee Code, which became effective in 2001, the Notice
of Lien is a valid garnishment instrument. Assuming the NH is receiving non-SSI benefits
which are subject to garnishment, it should be effectuated.
BACKGROUND
Your office has submitted a Notice of Lien from the State of Tennessee Department
of Human Services for our review. You are concerned about the recent change from garnishment
orders to the current lien document in child support arrearage cases in Tennessee.
You are uncertain about whether the lien document is an acceptable garnishment notice
under federal statutes.
DISCUSSION
Through Section 459 of the Act, the Government consents to garnishment of Social Security
benefits to collect delinquent child support payments. In child support cases, this
section provides that monies due from, or payable by, the United States (including
any agency, subdivision, or instrumentality thereof) to any individual, shall be subject
to withholding in accordance with State law as though the governmental entity were
a private person. The government agreed to be subject to legal process brought by
a State agency administering a program under a State plan approved under this statute
or by an individual obligee, to enforce the legal obligation of the individual to
provide child support or alimony.
The term "legal process" is defined in Section 459(i)(5)(A)(i) of the Act as "any
writ, order, summons, or other similar process in the nature of garnishment issued
by a court or an administrative agency of competent jurisdiction in any State, territory,
or possession of the United States." The Notice of Lien issued by an administrative
agency within the State of Tennessee would fall within the "other similar process
in the nature of garnishment" wording of § 459(i)(5)(A)(i).
Office of Personnel Management regulations implementing Section 459 of the Act provide
further guidance, noting that "Legal process" may include, in the case where a child
support order is submitted by a child support agency, "the standard Order/Notice to
withhold income for child support as required by section 324 of Pub. L. 104 193" that
is issued by "[a] State agency authorized to issue income withholding notices pursuant
to State or local law . . . ." 5 C.F.R. § 581.102(f).
In 2000, the Tennessee Code was amended to provide for the process which has been
utilized in this, and other cases. Under the amendments, which became effective July
1, 2001, the Tennessee Commissioner of Human Services is authorized to issue liens
against funds or property, to be used to satisfy child support arrearages. Tenn. Code
Ann. § 36-9-901 (2005). The statute, as amended, states:
(a)(1) In any case of child or spousal support enforced by the department of human
services or its contractors under Title IV-D of the Social Security Act in which overdue
support is owed by an obligor who resides or owns property in this state, a lien shall arise by operation of law against all real and personal property, tangible
or intangible, then owned or subsequently acquired by the obligor against whom the
lien arises for the amounts of overdue support owed or the amount of penalties, costs
or fees as provided in this chapter.
(B) a notice of lien may be sent by any appropriate means, including by any automated means, by the commissioner
or any authorized representative of the department, to any person or entity which holds or which may hold any assets payable or due
to be paid or transferred to an obligor of overdue support to notify the person or
entity of the existence of a lien for overdue support. The receipt of such notice
by that person or entity shall be adequate notice of the department's lien upon the obligor's assets of any kind which are held by the person or entity or which
may come into that person's or entity's possession or control.
Tenn. Code Ann. § 36-5-901 (2005) (emphasis added).
In this case, the Notice of Lien, dated October 18, 2005, was issued by the Tennessee
Dept. of Human Services, was signed by an individual listed as an authorized agent,
and cites to the child support order issued by the state court, as well as the amount
of arrearages. Consequently, it complies with the Tennessee statutory requirements,
as well as the federal regulatory requirements. It should be effectuated as a valid
garnishment, assuming that the NH is receiving benefits subject to the garnishment
provisions.
CONCLUSION
Because the Notice of Lien complies with the 2001 amendments to the Tennessee Code,
it constitutes a valid garnishment order under SSA policy. If the NH is receiving
benefits subject to garnishment, this Notice should be processed as a valid garnishment
order.
Mary Ann S~
Regional Chief Counsel
By:__________________________
Michael S. F~
Assistant Regional Counsel