Good morning!
Interesting question, Mark, and definitely an argument I hadn't considered. Here's my thoughts re: cash medical, but would like to hear what others think.
Under 42-369(2)(a), health insurance should be ordered if available and if not, then if "one or more of the parties are receiving Title IV-D services", then cash medical support should be ordered. Courts have the discretion to order medical support regardless, so I think it can be requested pretty much any time support is being addressed (after all, under 42-369(2)(b)(ii), it can be used to either reimburse the State for Medicaid or to reimburse the other parent for the cost of health insurance coverage). But you seem to be asking when we are required to ask for it.
Looking at Guideline 4-215, child support orders should address health insurance and then subsection (C) is labeled "Cash Medical Support and Health Care Costs for Title IV-D Cases Only" and states "All child support orders in the Title IV-D program must address" either health insurance or cash medical support. I tried to find a definition for IV-D cases in the federal regs and couldn't, but the Nebraska Administrative Code defines them as "[a] support case in which services are being provided by the State's IV-D Agency." (466 NAC 002.09). This seems to me to mean that any cases where the IV-D Agency has been involved would qualify, not just PA cases. So it would also include NPA cases where a parent has applied for services, foster care cases where the State is requesting foster care reimbursement, and UIFSA cases that have come through the central office. So under the Guidelines, I would argue that almost ever case that we see (since they're generally coming from a state referral, foster care referral, or UIFSA referral) qualifies as a IV-D case and we should probably be seeking cash medical (if no health insurance and assuming it wouldn't put NCP below the federal poverty line).
I'm not sure it matters whether or not the State is a real party in interest vs. acting in its parens patriae role or whether the custodial parent is a party, given 4-215 is so broad. If that distinction is applicable, I would note that at least regarding JV cases, the State's rights in juvenile proceedings are derived from its parens patriae interest (see In re Mekhi S., 309 Neb. 529 (2021)). So applying your argument, I would assume foster care cases would be treated more like cases proceeding under 43-1411, rather than the 43-512 to 512.08 cases. That being said, I think there's at least some argument that under 43-290, the State does have a real interest as part of the statute's purpose is to "provide for the most equitable use and availability of public money." I would also say I'm not sure that I read the word "party" in 42-369 as to literally mean the legal parties to the action. I'm guessing since 42-369 is coming from the divorce chapter, the Legislature was working under the assumption that both parents are always party to the case, so when they say one or more of the parties is receiving IV-D services, my guess would be the intention was to cover when either of the parents/child is receiving IV-D services. But I haven't had the time to actually dig into the Legislative history to see if there's any clues on the Legislative intent there. Maybe they truly meant there to be a limitation to just the legal parties involved.
One other thing I would add, in the unpublished Court of Appeals case that confirmed we don't have to add the custodial parent to all of our filings (State on behalf of Jamirah W. v. Jarvel W., 2019 WL 2509116), it notes that our authority to proceed under 43-512.03 comes from the ability to establish child support against a nonsupporting party and states that "[a] cause of action to enforce a parental duty to provide support belongs to the child." (citing In re Interest of Alycia P., 258 Neb. 258 (1999); State on behalf of Hopkins v. Batt, 253 Neb. 852 (1998)). I think there's at least some argument that in any case where we're establishing a child support order against a nonsupporting parent, the child has an interest, so again, under your argument, if that child is on PA, then it would have IV-D implications. Just because we may be a real party in interest in those cases too doesn't mean the child doesn't also have an interest.
This all being said, in Lancaster, we generally start our cases as State v. NCP and we ask for cash medical support where appropriate (depending on whether or not health insurance is available and taking into account poverty lines). The analysis doesn't really change much if it's UIFSA or foster care (other than here, our juvenile court often enters $50 stat min orders in juvenile cases regardless of the parents' financial status, so most of the time, cash medical doesn't even come up). I would note that after Juniper N. came out, we have generally been asking for cash medical support more regularly since, though unpublished, it seems that the Court of Appeals indicated it was best practice to have that or health insurance ordered. So the TL;DR version of this email would be "we should probably be asking for cash medical support in most cases, regardless of whether or not the custodial parent is a legal party to the case."
Katie Doering
Deputy Lancaster County Attorney
Child Support Division
605 S 10th St, Ste A201
Lincoln, NE 68508
Phone (402) 441-8208
Fax (402) 441-8218
_____________________
CONFIDENTIALITY NOTICE: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.
CONFIDENTIALITY NOTICE: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.