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PA Bulletin, Doc. No. 02-1773

RULES AND REGULATIONS

[55 PA. CODE CH. 133, 141, 183 AND 187]

Redetermining Eligibility; General Eligibility Provisions; Income; Support from Relatives Not Living with the Client

[32 Pa.B. 5048]

Statutory Authority

   The Department of Public Welfare (Department), by this order, adopts this final-form rulemaking to read as set forth in Annex A. The statutory authority for this rulemaking is sections 402(a)(7)(A)(iii) and (B) and 408(a)(7)(A) and (C) of the Social Security Act (act) (42 U.S.C.A. §§ 602(a)(7)(A)(iii) and (B) and 608(a)(7)(A) and (C)); 45 CFR 264.1(c) (relating to what restrictions apply to the length of time Federal TANF assistance may be provided); sections 201(2), 401(a), 402, 403(b), 405, 405.1, 405.3, 432, 432(3) and (8) and 432.21(a) of the Public Welfare Code (code) (62 P. S. §§ 201(2), 401(a), 402, 403(b), 405, 405.1, 405.3, 432, 432(3) and (8) and 432.21(a)); Act 1996-35 (Act 35) which amended sections 401, 402, 403(b), 405, 405.1, 405.3, 408, 432, 432.3--432.5, 432.12, 432.19, 442.1 and 481 of the code and added sections 405.5, 432.22, 434, 448 and 449 of the code; and 23 Pa.C.S. §§ 4301--4381, 5103, 7101--7901 and 8101--8418 (relating to Domestic Relations Code).

   Notice of proposed rulemaking was published at 32 Pa.B. 431 (January 26, 2002).

Purpose

   The purpose of this rulemaking is to codify regulations to take advantage of an option under Federal law that permits states to extend Temporary Assistance for Needy Families (TANF) beyond 60 months to a limited number of families on the basis of hardship or domestic violence.

Need for Final-Form Rulemaking

   The Department recognizes that some families, due to domestic violence or other barriers, or both, will not achieve self-sufficiency within the 60-month time limit for receipt of TANF assistance prescribed under Federal law. This rulemaking reflects the legislative intent that the Commonwealth's cash assistance programs promote self-sufficiency over dependency. This final-form rulemaking affords families that have exhausted the 60-month time limit the opportunity to receive cash assistance contingent upon participation in employment or other activities designed to move them toward economic independence. This final-form rulemaking provides supportive services, including transportation and child care, to individuals to allow them to participate in specific programs and activities which are part of their plan for self-sufficiency. This final-form rulemaking is also needed to clarify that Extended TANF is a Federal benefit which cash assistance applicants must seek first, before applying for General Assistance (GA), if they are potentially eligible, in accordance with sections 432(8) and 432.21(a) of the code.

Requirements

   The Department has reorganized and revised the regulations setting forth eligibility requirements. In the proposed rulemaking, all the eligibility and compliance requirements for Extended TANF were set forth in § 141.51 (relating to policy). In this final-form rulemaking, § 141.51 contains only the basic eligibility policy for Extended TANF. Revised definitions are in § 141.52 (relating to definitions). Provisions applicable to individuals who qualify for Extended TANF based on domestic violence are found in § 141.53 (relating to eligibility based on domestic violence). Section 141.54 (relating to maximum participation project) applies to individuals referred to and participating in the Maximizing Participation Project (MPP). Section 141.55 (relating to mandatory RESET participants) applies to individuals who are mandatory participants in the Road to Economic Self-Sufficiency Through Employment and Training (RESET) Program. Section 141.56 (relating to deferred referral) applies to individuals for whom referral to either MPP or the Work Plus Program (WPP) or another employment and training program is deferred. The provision for special allowances for supportive services for all recipients of Extended TANF is found in § 141.57 (relating to special allowances). Section 141.58 (relating to appeal rights) provides for appeals from termination or denial of Extended TANF.

Affected Individuals, Groups and Organizations

   This final-form rulemaking affects families with an adult head of household or spouse of head of household who has received TANF for 60 cumulative months. These families may qualify for Extended TANF on the basis of domestic violence or their willingness to enroll in and cooperate with programs and activities designed to lead toward self-sufficiency.

Accomplishments/Benefits

   The final-form rulemaking provides additional services as well as cash assistance to families that did not achieve self-sufficiency in 60 months under TANF.

Summary of Public Comment and Changes

   Written comments, suggestions and objections were solicited within a 30-day comment period after the publication date of the proposed rulemaking. The Department received 109 public comments, 89 of which were one of three form letters. In addition to providing constructive comments or suggested revisions to the regulations, a majority of commentators commended the Department for proposing regulations that will continue assistance to needy families who were unable to achieve self-sufficiency within the prescribed TANF time limits. Commentators included: citizens, advocates, the Minority Chairperson of the Public Health and Welfare Committee, the Minority Chairperson of the House Health and Human Services Committee and IRRC.

   The Department has carefully reviewed and considered each suggestion and comment and thanks the individuals and organizations that commented on this rulemaking. The following is a summary of the written comments received during the public comment period and the Department's responses.

1.  GA for children and other family members. (§§ 141.51(b)(2), 141.61(a)(1)(xii))

   Comment: Commentators suggested that the Department has no authority to make a family ineligible if the adult fails to comply with the Work Capacity Assessment (WCA), MPP or domestic violence services plan. Some called this a ''full family sanction'' whether or not the individual's failure to comply involves work requirements. They claimed that according to State law, except for violations of work requirements, only the individual is ineligible and not the entire family. One commentator said that this policy will punish children whose parents are not eligible for Extended TANF; the commentator claimed that the code specifies that children are eligible for GA up to age 18 (or up to age 21 if they are in secondary school). Another commentator expressed concern that the Department's proposed policy regarding family ineligibility may encourage parents to ''pass off'' their children to other relatives so the children may qualify for cash assistance. Some commentators expressed concern that this policy will lead to increased foster care and related services, an undesirable outcome. Commentators submitted that the requirement in section 432.21(a) of the code that individuals apply first for Federal benefits does not justify precluding GA for the family when the individual fails to comply with this requirement. They disputed the Department's position that the State-run and partially State-funded TANF program is a ''Federal benefit'' covered under section 432.21(a) of the code. They argued that this statute bars only the ''person'' who fails to cooperate in seeking Federal benefits.

   One commentator claimed that the Department attempted to bolster its ''TANF first'' argument by making a subtle but important so-called ''technical edit,'' changing the requirement from applying for a ''Federal benefit'' to a ''Federal program.'' The commentator suggested that, in making this change, the Department apparently acknowledged that TANF is not a Federal benefit. The commentator suggested that this change is a departure from the statute, which requires that applicants and recipients apply for Federal benefits, which are programs administered and paid for with Federal revenues, such as Supplemental Security Income (SSI). Moreover, the commentator claimed that TANF is not a Federal benefit; rather, it is a block grant of money paid to the states, commingled with state maintenance of effort (MOE) funds, to be used to benefit needy children as the Commonwealth sees fit. The commentator said that the Department's position is undercut by the existence of the Time-Out program; if TANF is a Federal program that must be accessed first, before any State funds are utilized, there would be no way to administer Time-Out because recipients would have to immediately reapply for the Federally-funded TANF program first. In addition, the commentator suggested that attempting to recast the statutory requirement as an obligation to apply for any Federally-funded program requires all individuals to apply for a vast array of Federally-funded programs, such as public housing, food stamps, school breakfast and lunch, Head Start and the Women, Infants and Children Program (WIC). The commentator suggested that although application for such voluntary programs may sometimes be advisable, it is not, and should not be, necessary, nor does the Department intend this result.

   Finally, the commentator claimed that cooperation with WCA, MPP or a domestic violence services plan are not definitive conditions of TANF eligibility, so a parent who does not cooperate with these cannot herself be denied GA (if otherwise eligible) for one of these reasons. The commentator said that although the code does not specify what constitutes a ''definitive condition,'' the definition can be readily inferred, and does not include work and other requirements that apply equally to TANF and GA applicants and recipients. The only conditions of TANF that truly distinguish it from GA, the commentator said, are that TANF requires: (1)  a deprived child; and (2)  a specified relative. Without these, an otherwise eligible individual may receive GA, not TANF; they contend there are no other rules that distinguish TANF from GA, and the Department may not create new differences the General Assembly did not authorize. The commentator noted that under section 432(8) of the code, failure to meet a definitive condition of TANF solely because of refusing to cooperate in establishing eligibility for TANF results only in the person's ineligibility for GA.

   Response: The Department disagrees with the commentators' suggestion that it has no authority to make the family ineligible if the adult fails to comply with WCA, MPP or other Extended TANF provisions that do not involve work requirements. Under sections 201(2), 403(b) and 432 of the code, the Department is authorized to establish rules, regulations and standards regarding eligibility of individuals who may be eligible for cash assistance, including GA. Contrary to the commentators' suggestion that certain individuals (for example, children up to age 18, or age 21 for those in secondary school) are entitled to GA, see section 432(3) of the code states that certain individuals ''may be eligible for general assistance . . . subject to the rules, regulations, and standards established by the department.'' See sections 432, 432(3)(i) of the code. Thus, section 432(3)(i) of the code recites who may be eligible for GA, while section 432 of the code authorizes the Department to establish the rules, regulations and standards for those individuals. The prefatory language of section 432 of the code evinces the General Assembly's intent to confer broad discretion upon the Department in setting these rules and standards, including eligibility requirements.

   For example, although some commentators questioned the Department's authority to establish rules specifying: (1) that the family is ineligible for GA if the adult fails, without good cause, to cooperate in establishing eligibility for Federal benefits; and (2) that the family is ineligible for GA if the adult fails to meet a definitive condition of TANF solely because he refuses to cooperate in establishing eligibility for TANF, section 432 of the code and other statutory provisions clearly give the Department this discretion. While sections 432.21(a) and 432(8) of the code, respectively, preclude GA for an individual who fails to comply with these requirements, these provisions do not constrain the Department to limit GA ineligibility to the adult. Unlike section 432.3(a)(iii)(2) of the code (regarding durational sanctions for failure to comply with work requirements), the General Assembly did not limit ineligibility ''only'' to the individual. Under section 432 of the code, the Department is authorized to establish the foregoing rules, stating that the family is ineligible if the individual (the adult) fails to comply with WCA, MPP or other Extended TANF provisions that do not involve work requirements.

   Further, the Department does not agree with the commentator who suggested that ''definitive conditions'' under section 432(8) of the code do not include work and other requirements that apply equally to TANF and GA applicants and recipients. The Department disagrees with the commentator's claim that the only definitive conditions of TANF (and Extended TANF) are that the family must include: (1) a deprived child; and (2) a specified relative. The Department interprets ''definitive conditions'' to mean ''conditions of eligibility.'' The Department does not agree with the commentator that ''definitive conditions'' of TANF (or Extended TANF) must be exclusive to TANF (or Extended TANF). Moreover, the Department does not agree that the regulations create new differences the General Assembly did not authorize. However, the Department agrees that if a family is ineligible for TANF or Extended TANF because the family does not include a deprived child and specified relative, the family may receive GA if otherwise eligible.

   Other statutory provisions also bolster the Department's discretionary authority to set eligibility rules and standards such as these. These rules and standards supplement, and are consistent with, those already articulated in the code. For example, section 201(2) of the code specifies that the Department shall have the power and duty ''to promulgate regulations, establish and enforce standards and to take such other measures as may be necessary to render the Commonwealth eligible for available Federal funds and other assistance.'' Certainly, this includes Federal funds for Extended TANF benefits. In addition, section 403(b) of the code provides that ''the department shall establish rules, regulations and standards, consistent with the law, as to eligibility for assistance and as to its nature and extent.'' Section 403(b) of the code also underscores that ''[w]henever possible, except for residency requirements, and consistent with State law, the department shall establish rules, regulations and standards for general assistance consistent with those for aid to families with dependent children [now, TANF]. In no instance shall the rules, regulations and standards established for general assistance provide for assistance greater than that provided for [TANF].'' As these provisions demonstrate, the General Assembly did not intend for section 432 of the code to comprise all the rules and standards for GA.

   The Department disagrees with the commentator who attempted to distinguish ''Federal benefits'' from ''Federal programs,'' claiming that TANF is not a Federal benefit. This is a distinction without a difference. In fact, the General Assembly used these phrases interchangeably in section 432.21(a) of the code. Therefore, § 141.21 (relating to policy) is not a substantive departure from the statute. The Department disagrees that TANF is not covered under section 432.21(a) of the code simply because Federal TANF block grant money is commingled with MOE funds for TANF. Both are funding sources for the TANF program; both are used to provide TANF benefits to eligible recipients. Section 432.21(a) of the code does not specify that a benefit or program must be solely Federally funded to be considered a Federal benefit or program. The Department's position is not undercut by the existence of the Time-Out program. Section 403(b) of the code grants the Department authority to establish rules and regulations for assistance benefits and the nature and extent of those benefits. The Department has chosen not to apply the provision of section 432.21(a) of the code to the optional Time-Out benefits provided in the TANF program under Chapter 281 (relating to Time-Out benefits). Accordingly, Time-Out benefits are not listed in § 141.21(n).

   Time-Out benefits are provided to TANF-eligible families who have not exhausted 60 months of TANF and who are exceeding applicable work participation requirements, are kinship caregivers or are victims of domestic violence. This is consistent with the General Assembly's intent to encourage and aid families in their efforts to achieve self-sufficiency. These benefits also enable children to remain in the care of relatives. Although Time-Out is funded with State funds, those State expenditures for families eligible for basic TANF are counted as State MOE expenditures for purposes of assuring the receipt of Federal TANF funds. See 42 U.S.C.A § 609(a)(7). Expenditures of State funds qualify under 42 U.S.C.A. § 609(a)(7) only if the families meet all the TANF requirements except the time limit and provisions applicable to certain aliens. See 42 U.S.C.A. § 609(a)(7)(B)(i)(IV). Families in Time-Out meet these requirements. In providing State-funded Time-Out benefits to families who could qualify for TANF, the Department is acting consistent with both the mandate in section 201(2) of the code to ensure the receipt of Federal funds and the requirement of 42 U.S.C.A. § 609(a)(7) to maintain the level of State expenditure on TANF-eligible families.

   Moreover, the Department disagrees that the ''Federal programs/benefits first'' rule requires all individuals to apply for every type of Federally-funded program/benefit, including noncash benefits, public housing, food stamps, school breakfast and lunch, Head Start and WIC. These programs/benefits are supplementary in nature; section 432.21 of the code requires applicants and recipients to pursue Federal programs/benefits as the ''primary source of financial assistance'' for these individuals. Noncash benefits are generally not a primary source of financial assistance.

   The Department does not agree that this policy will punish children whose parents are not eligible for Extended TANF, encourage parents to ''pass off'' their children to other relatives so the children may qualify for cash assistance or lead to increased foster care and related services. For those not subject to RESET participation requirements, failure to comply does not yield a full-family durational sanction under § 141.55(c), which follows sections 432.3 of the code and § 165.61 (relating to sanctions). Recipients who become ineligible for failure to comply with Extended TANF provisions that do not involve RESET participation requirements (for example, requirements to cooperate in obtaining a WCA or to comply with an MPP service plan) may reestablish eligibility for Extended TANF an unlimited number of times.

2.  30-hour requirement. (§§ 141.51, 141.52)

   Comment: Commentators claimed that the 30-hour WPP work and work-related activity requirement violates Federal and State law. Specifically, they argued that requiring 30 hours violates the Fair Labor Standards Act (FLSA) (29 U.S.C.A. §§ 201--219) and the Americans With Disabilities Act (ADA) (42 U.S.C.A. §§ 12131--12156); they also suggested that the 30-hour rule is bad policy. They asked the Department to articulate a rationale for requiring this more stringent work requirement after 60 months and for expecting that recipients will be able to meet the 30-hour requirement. They asked the Department to state the specific statutory authority for requiring 30 hours of combined work or work-related activities and questioned the statutory authority for making this requirement a condition of eligibility.

   Further, they suggested that the regulations be revised to require compliance with Federal and State employment laws (for example, involving unemployment insurance, the Occupational Safety and Health Act and the FLSA) and civil rights laws. One commentator said that the 30-hour rule violates the ADA for disabled persons unable to work those hours, but required to participate in WPP. The commentator said the Department should modify this requirement for those who cannot work 30 hours per week due to disability (whether their own or a child in their care), for example, by requiring less than 30 hours for these individuals or excusing them from the requirement based on ''good cause.'' Whether a disabled individual cannot work the requisite 30 hours on occasion or as a rule, the commentator suggested that the regulations be revised to accommodate these individuals. Moreover, the commentator said that the 30-hour requirement is inconsistent with the minimum 20-hour per week work requirement in section 405.1(a.2)(6) of the code because the statute requires 20 hours per week, based on an average. Also, the commentator claimed that the 30-hour requirement is more objectionable than the proposed requirement to ''maximize employment,'' which appeared in the Department's proposed rulemaking for the basic TANF program at 31 Pa.B. 5875 (October 20, 2001). Arguing that the 30-hour minimum creates an ''all or nothing'' approach to work that makes no sense, the commentator asked whether a person who, trying as hard as she can, can find a job for 25 hours per week should be treated the same as a person who is not meeting the work requirement.

   Commentators also suggested that 30 hours may not be possible for everyone who is not self-sufficient after 60 months of TANF, especially those caring for children with special needs, single parents who cannot balance working 30 hours and other responsibilities, such as raising their children or caring for elderly or infirm relatives, and those without guaranteed child care or transportation. They contended that individuals in these situations should not be sanctioned. Some commentators submitted that those who must care for disabled or infirm relatives are best suited to do so because they have the necessary skills and compassion for this difficult task. They noted that a 30-hour per week job might pay less per week than a 20-hour job if the hourly wage is lower. One commentator questioned whether the Department has information about these factors: the distance between families' homes and available child care; availability of public transportation at all necessary times; how long it takes to travel from home to child care to work and back again; what time is left for education and training in light of the Department's ''work-first'' policy. One commentator suggested that the regulations be revised to also allow an individual to qualify for Extended TANF if the individual engages in an average of at least 20 hours per week of private sector employment.

   Response: Although the Department disagrees that the 30-hour WPP work and work-related activity requirement violates Federal and State law, it has revised the regulations to specify that: (1) program rules and requirements will be modified in accordance with the ADA; and (2) the 30-hour work and work-related requirement will consist of combined work and work-related activities, in accordance with the FLSA. The Department finds that it is unnecessary to revise the regulations to require compliance with other Federal and State employment and civil rights laws. The Department is already required to comply with Federal and State law whether or not the regulations cross-reference applicable statutory provisions.

   The Department is authorized to require at least 30 hours of combined work and work-related activities for individuals who must comply with RESET. Contrary to the commentators' claim, this requirement does not violate Act 35 and is not inconsistent with the minimum 20-hour work requirement in section 405.1(a.2)(6) of the code. Under sections 403(b), 405, 405.1, 432 and 432.3 of the code, the Department is authorized to require individuals to work more than the statutory minimum of 20 hours per week. Under sections 403(b) and 432 of the code, the Department may establish eligibility rules for its programs. The code does not contain an exhaustive recitation of the rules and requirements for the Department's programs; Departmental regulations contain additional eligibility rules and requirements for these programs. Likewise, section 405 of the code authorizes the Department to establish eligibility rules for employment, work-related activities and training for employable recipients. In addition, section 405.1(a.2)(6) of the code sets the statutory minimum at 20 hours per week as a condition of eligibility after 24 months of cash assistance, but section 405.1 of the code no where states that this is the maximum number of hours an individual is required to work as a condition of eligibility. Indeed, under section 432.3(a)(ii) and (iii) of the code, an individual is subject to sanction if he fails, without good cause, to apply for work at such time and manner as the Department prescribes, accept referral to and participate in a work-related activity, or work in and retain employment in which he is able to engage. Accordingly, if the Department directs that a nonexempt individual must apply for work through WPP, accept referral to and participate in a work-related activity through WPP, or work in and retain employment in which he is able to engage through WPP, he must comply unless he establishes good cause for not doing so.

   The 30-hour requirement is also squarely consistent with Federal law. The Department is authorized under 42 U.S.C.A. § 608(a)(7) and 45 CFR 264.1 to establish rules for TANF after 60 months, exempting up to 20% of the caseload, as specified in 42 U.S.C.A. § 608(a)(7)(C)(ii). In addition, under 42 U.S.C.A. § 609(a)(3), the Department is subject to penalty if it fails to satisfy the minimum work participation rate for that year. See 42 U.S.C.A. § 607(a) (regarding participation rate requirements). The work participation rate is based on the number of adults and minor child heads of household who are ''engaged in work,'' as defined in 42 U.S.C.A. § 607(c). In calculating the work participation rate for the year 2000 and beyond, an individual is considered ''engaged in work'' if he participates in at least 30 hours per week, consisting of at least 20 hours of ''core'' activities (for example, unsubsidized and subsidized employment) and the balance consisting of a broader range of activities. See 42 U.S.C.A. § 607(c) and (d) (regarding minimum work requirements for individuals to be considered ''engaged in work'') and (d) (regarding work activities).

   In part, the Department's rationale for requiring at least 30 hours per week of combined work and work-related activities (including education and training) is based on the Department's goal of complying with Federal work participation rate requirements. This requirement is also grounded in the legislative directive that work is essential to self-sufficiency. Indeed, many current TANF recipients are already participating 30 hours per week in contracted employment and training programs. If working at least 20 hours per week during 60 months of TANF did not lead to financial independence, the Department finds that stepped-up efforts--of recipient and agency alike--are needed. Training, job search and other work-related activities are intended to bolster an individual's participation in work activities. For these reasons, the Department also disagrees with the commentator's suggestion that the regulations should specify that an individual may receive Extended TANF if he engages in an average of at least 20 hours per week of private sector employment. The Department does not find sufficient reason to treat those working in private sector employment differently than those working in the public sector or in one of the Department's employment and training programs.

   The final-form regulations clarify that unless an individual establishes good cause for not complying with the minimum 30-hour per week requirement, if he is working 20-29 hours per week in unsubsidized employment, he must maintain employment and enroll and participate in a job retention and advancement program for the balance (see § 141.55(a)(3)). An individual who is employed 20-29 hours per week, but establishes good cause for not participating in 30 hours of combined work and work-related activities, is required to maintain employment and address the good cause situation through WPP (see § 141.55(a)(6)(i) and (iv)). Further, an individual who is employed less than 20 hours per week must maintain employment and enroll in WPP for the balance (see § 141.55(a)(4)), unless the individual establishes good cause for not participating in 30 hours of work and work-related activities. In that case, unless he has good cause for not complying with RESET, the individual must maintain employment, comply with RESET by participating in WPP for a combined total of at least 20 hours per week, and address the good cause situation (see § 141.55(a)(6)(ii) and (iv)). Finally, an individual who is unemployed must participate in WPP, unless he establishes good cause for not participating in at least 30 hours of work and work-related activities (see § 141.55(a)(5)). If the individual has good cause for not participating in 30 hours, he must comply with RESET, unless he has good cause for not doing so, by participating in WPP for at least 20 hours per week and address the good cause situation through WPP (see § 141.55(a)(6)(iii) and (iv)). As revised, the final-form rulemaking protects individuals who are required to comply with RESET but establish good cause for not complying with the minimum 30-hour work and work-related requirement of Extended TANF.

   Individuals who establish good cause for not complying with the 30-hour work requirement are not subject to sanction under § 141.55(c), but must comply with RESET, unless they establish good cause for not complying with RESET. The Department's policy is flexible, fair and illustrates that the 30-hour requirement is not an ''all-or-nothing'' approach or ''bad policy,'' as commentators suggested. For example, an individual who declines a 30-hour job in favor of a 20-hour job that pays more per week may have good cause for not taking the 30-hour job. Unless the individual establishes good cause for not participating in 30 hours of work and work-related activities, the individual is required to participate in a job retention and advancement program for the balance. Likewise, an individual caring for a disabled or infirm relative may establish good cause for not working 30 hours per week. The individual, too, must comply with § 141.55(a), unless he establishes good cause for not complying with RESET. If the individual must comply with RESET, the individual is required to address the good cause situation, which may include seeking appropriate care within a reasonable distance from home. Although the Department agrees that family members are often best suited to provide nurturing care for disabled or infirm relatives, appropriate care within a reasonable distance from home may be available from nonfamily members in or outside of the home.

   Finally, the Department has systematic and anecdotal information regarding available child care, public transportation, travel times and distances between areas and other factors affecting an individual's ability to comply with the 30-hour work requirement and RESET. Caseworkers are usually familiar with the transportation and services in their counties; caseworkers also receive information about these factors from the recipients.

3.  Domestic violence. (§ 141.51(a)(1))

   Comment: Commentators suggested that the regulations do not protect victims of domestic violence. They claimed that: (1)  the regulations do not fully implement the Family Violence Option (FVO) and recommendations of the Department's Domestic Violence/TANF Task Force (DVTF); (2)  the regulations should provide for waivers generally and specifically, waivers involving the time limit ''for as long as necessary,'' and for families ''at risk of further violence,'' as provided in Federal law; (3)  domestic violence victims should qualify for Extended TANF whether or not they received a prior waiver of child support or work requirements; (4)  the regulations should include a comprehensive description of who is eligible for a time limit waiver based on domestic violence, including those with current, past or threat of future domestic violence, whether or not they had waivers of program requirements; (5)  the regulations should clarify that Extended TANF is available for those with past, current or at risk of future domestic violence; (6)  the regulations should provide a comprehensive description of the domestic violence services plan. They suggested that the regulations be revised to provide guidance on Extended TANF for victims of domestic violence who: (1)  have or have not had waivers of other program requirements (including those who received Time-Out benefits); (2)  are experiencing or have experienced domestic violence but do not currently have (and did not previously obtain) waivers of program requirements; or (3)  will experience domestic violence in the future and need to return to TANF after a brief time off TANF. They claimed that all of these individuals are encompassed within the FVO, and that they (as well other recipients) have had no prior notice that Extended TANF would be available. They also said that many victims may have chosen not to pursue a waiver, and that clear information regarding domestic violence waivers has not always been readily available to them. One commentator asked if a family experiencing domestic violence can qualify for Extended TANF if domestic violence was not previously established under TANF. If so, the commentator said the regulations should include a cross-reference to this process.

   One commentator asked the Department to clarify the duration of Extended TANF for domestic violence victims other than those with good cause waivers for child support or work requirements. The commentator suggested that for those with current or previous waivers of program requirements or who received Time-Out due to domestic violence, the minimum duration should be the length of the waiver, supplemented by an assessment of need based on current or future risk of domestic violence. Another commentator asked the Department to allocate more resources to improve how caseworkers handle domestic violence issues. Yet another commentator suggested that the regulations be revised to help individuals ''break the abusive cycle'' and to disqualify those who continue ''of their own free will, to engage in a relationship which had a history of violence or abuse.'' The commentator urged the Department to require counseling and anger management sessions as a condition of eligibility for cash assistance. One commentator suggested that § 141.51(a)(1)(iv) of the proposed rulemaking provides for a domestic violence services plan that is inconsistent with Federal regulations (45 CFR 260.55(c) (relating to what are the additional requirements for Federal recognition of good cause domestic violence)) requiring that waivers be ''accompanied'' by a services plan. The commentator suggested that proposed § 141.51(a)(1)(iv) be revised to track and cross reference 45 CFR 260.55(c).

   Another commentator said that the regulation does not provide enough detail about what constitutes a domestic violence plan, and that it should specify or cross reference the requirements of a domestic violence services plan. This commentator asked the meaning of the phrase ''person trained in domestic violence,'' the level of training required to develop a domestic violence services plan, and whether these persons are employed by the Department or under Department contracts for services. Finally, this commentator asked what process the Department will follow to rescind a waiver when eligibility is reviewed, and how an applicant can appeal a finding that would rescind eligibility; the commentator suggested that the Department include or cross reference these processes in the regulation.

   Response: The Department finds that this rulemaking does protect victims of domestic violence. The Extended TANF regulations implement the FVO by including domestic violence as a criterion for receipt of assistance beyond 60 months. Section 141.51(a)(1), revised and redesignated § 141.53, sets forth the eligibility requirements for Extended TANF based on domestic violence.

   The Department, in collaboration with members of the DVTF, will develop a comprehensive FVO regulation that includes FVO policies and recommendations of the DVTF not yet included in either the basic TANF regulations or this final-form rulemaking. These planned enhancements are primarily procedural rather than substantive. These include provisions related to policies and recommendations related to universal notification, referral for supportive services, uniform verification requirements, a more detailed description of the domestic violence services plan, battered immigrants and waivers of TANF program requirements for other than time limits, child support and RESET.

   The Department agrees with the commentators' suggestion that the regulations should provide for waivers of the time limit ''for as long as necessary'' and has revised § 141.51(a)(1)(ii) and (iii), redesignated § 141.53(c) accordingly. This revision is consistent with 42 U.S.C.A. § 602(a)(7)(A)(iii) and 45 CFR 260.52(c) (relating to what are the basic provisions of the Family Violence Option (FVO)), which outline the basic provisions of the FVO. This revision is consistent with and, in fact, is more generous than one commentator's suggestion that the minimum duration of a time-limit waiver be the length of the child support or work requirement waiver, supplemented by an assessment of current or future risk of domestic violence.

   The Department appreciates the commentators' suggestion that the regulations should provide for waivers of time limits for families ''at risk of future domestic violence'' but disagrees that this language is consistent with Federal law. Federal statute at 42 U.S.C.A. § 602(a)(7)(A)(iii) and regulations at 45 CFR 260.52(c) and 45 CFR 260.59(a)(2)(i) (relating to what penalty relief is available to a State that failed to comply with the five-year limit on Federal assistance because it provided federally recognized good cause domestic violence waivers) provide for waivers of time limits for families ''at risk of further domestic violence.'' Consequently, the Department has revised § 141.51(a)(1), redesignated § 141.53(a), to clarify that a family is eligible for Extended TANF if an individual or family member is experiencing, has experienced, or is at risk of further domestic violence.

   In response to the commentators' suggestion that victims of domestic violence should qualify for Extended TANF whether or not they received a prior waiver of child support or work requirements, the Department agrees and has revised § 141.51(a)(1), redesignated § 141.53(a) accordingly. As explained previously, § 141.53(a) provides that a family is eligible for Extended TANF if the individual or family member is experiencing, or has experienced domestic violence, or is at risk of further domestic violence. Additionally, § 141.53(a)(2) outlines verification requirements for families which never had a waiver of TANF child support cooperation or work requirements. Because the regulations clarify that a family may receive Extended TANF on the basis of domestic violence even though the domestic violence was not established under TANF, a cross reference is unnecessary.

   The Department disagrees with the commentators' suggestion that the regulations should include a comprehensive description of the domestic violence services plan. The Department has purposely refrained from including more specific detail on the services plan at this time. The Department has made a commitment to the DVTF that its members will be permitted to play a major role in the development of ''final'' FVO regulations, which the Department expects will include a more comprehensive description of the domestic violence services plan. The Department agrees with the commentators' suggestion that the regulations should cross-reference the Federal regulations at 45 CFR 260.55(c), and has revised § 141.51 (a)(1)(iv), redesignated § 141.53(a)(2), as follows: ''A family eligible for Extended TANF due to domestic violence shall have a domestic violence services plan that meets the requirements of 45 CFR 260.55(c) (relating to what are the additional requirements for Federal recognition of good cause domestic violence waivers).''

   With regard to one commentator's question concerning persons trained in domestic violence, the Department refers the commentator to the final Federal TANF rulemaking that was published at 64 FR 17720 (April 12, 1999). While Federal law does not define ''a person trained in domestic violence,'' the preamble for the TANF Federal regulations, 64 FR 17745, provides some guidance to states in this area. According to the Department of Health and Human Services, Administration for Children and Families, states have the flexibility to decide the appropriate roles for TANF staff and domestic violence service providers in administering the provisions of the FVO. The Federal expectation is that persons trained in domestic violence will develop service plans and assessments. However, Federal regulations do not prescribe any specific training curriculum, staff credentials or administrative structure for delivering services. Notwithstanding the lack of regulatory guidance on these issues, the Department will expect staff who perform these functions to have some training in domestic violence and must have some level of special knowledge and expertise to make appropriate decisions in these highly sensitive cases.

   Consequently, from June 1999 through February 2000, the Department provided training to caseworkers, in collaboration with the Pennsylvania Coalition Against Domestic Violence (PCADV). The training included information about: (1) domestic violence and its impact on self-sufficiency; (2) Department policies and procedures related to domestic violence; and (3) services, supports and protections available to victims through PCADV and other agencies. One objective of the training on domestic violence provided to caseworkers was to help them understand why victims make certain decisions related to staying or leaving an abusive relationship. In many instances, leaving does not reduce the risks. In some instances, leaving may cause the violence to escalate.

   Individuals who disclose domestic violence and agree to referral for counseling and other supportive services are directed to a domestic violence service provider in the community. Depending upon the individual's circumstances and preference, the domestic violence services plan may be developed by the service provider or the caseworker.

   The Department agrees with the commentator's request that the Department allocate more resources to improve how caseworkers handle domestic violence issues. Under a contract with the Department and with input from Department staff, PCADV is developing a desk guide for caseworkers that will serve as a quick reference for recognizing and responding to the needs of domestic violence victims. In addition to the desk guide for caseworkers, each CAO will receive a Domestic Violence Manual that contains: a) detailed information on domestic violence, for example, what it is, how to recognize it and where to make appropriate referrals; and b) specific references to Departmental policies in place that are relevant to the treatment of victims of domestic violence. Finally, the Department plans to provide additional training to CAO staff on the numerous changes to policy that have occurred since the initial FVO training.

   The Department disagrees with the commentator's suggestion that the regulations should be revised to deny or terminate assistance benefits to individuals who stay in abusive relationships. This commentator specifically requested that: (1) individuals who continue in abusive relationships ''of their own free will'' be denied or terminated from the Extended TANF program; and (2) that participation in anger management and counseling programs be conditions of eligibility for Extended TANF. Caseworkers have received training in recognizing the signs of domestic violence and will refer individuals to appropriate voluntary counseling and protective services. However, the Department does not agree that attendance in counseling and anger management sessions should be conditions of eligibility for Extended TANF. Victims may be reluctant to disclose domestic violence if they know that accessing services is mandatory, especially if they believe they may be in more danger if they seek such help. The decision to seek help must be the individual's, because counseling is most effective when it is voluntary and unencumbered by the fear of reprisal by the perpetrator.

   Finally, with respect to the commentator's question about the processes followed to notify families of ineligibility for Extended TANF or a waiver and their right of appeal, the answer is that the customary regulatory processes are followed. If the family is determined ineligible for a waiver or for Extended TANF on the basis of domestic violence, the caseworker will generate a notice of adverse action that informs the family of the reasons for the termination and advises them of their right to appeal the decision. Rather than add a cross-reference to Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings) in § 141.53, the Department has added § 141.58 to provide the following: ''An individual may appeal the denial or termination of Extended TANF under Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings).''

4.  Verification of domestic violence. (§ 141.51(a)(1))

   Comment: Commentators suggested that the regulations set forth verification procedures for domestic violence, including those for individuals who have not previously provided verification of domestic violence and who previously verified and need not produce further verification. They also suggested that where verification is required, a uniform verification form that includes Extended TANF, Time-Out and other program requirements should be used; they say that this will make procedures for Extended TANF consistent with those for support waivers and Time-Out. They also said that as with the support waivers and Time-Out, this form would be used to accompany any one of the following types of verification: documentation, third party verification and self-affirmation. Further, they said the regulations should clearly state that any one of these types of verification is sufficient to establish eligibility for Extended TANF.

   Commentators also requested that the regulations be revised to clarify the 6-month review process and the verification process during this review; they suggested that if the individual has provided verification to support waiver of any program requirement, no further verification should be required at the 6-month review unless circumstances have changed.

   Response: The Department agrees with the commentators' suggestion that the regulations should set forth the verification requirements for domestic violence, including requirements for individuals who have, and those who have not, previously provided verification. The Department has revised § 141.51(a)(1)(i), redesignated § 141.53(a)(1), to provide that no further verification is necessary if the adult has a current or past waiver of child support or work requirements, or both, or received Time-Out benefits based on a claim of domestic violence. Section 141.53(a)(2) provides that verification or self-affirmation of domestic violence is required of individuals who have not had prior good cause waivers of program requirements or received Time-Out benefits based on domestic violence.

   The Department also agrees with the commentators' suggestion that a uniform domestic violence verification form be used that applies to Extended TANF and Time-Out. Section 141.53(a)(3) specifies that the CAO will complete a domestic violence verification form under § 187.27(b)(1)(vii) (relating to waiver of cooperation for good cause), with the exception that the 6-month limitation as specified in § 187.27(b)(1)(vii)(C) does not apply. This form, the PA/CS 1747, has been renamed the ''Domestic Violence Verification Form'' (formerly titled ''Verification of Good Cause Based on Domestic Violence'') and revised to include check-off blocks for RESET, Time-Out and Extended TANF. Section 187.27(b) is revised to reflect the new ''generic'' name of the PA/CS 1747.

   With respect to the commentators' request that the regulations clarify the 6-month review and verification process, the Department agrees. Section 141.51(a)(1)(v), redesignated § 141.53(d)(1) and (2), is revised to provide that the CAO will review eligibility for Extended TANF based on domestic violence at least every 6 months and will not require additional verification unless circumstances have changed.

5.  Time limit policy. (§§ 141.41, 141.41(f), 141.41(f)(1))

   Comment: Commentators said that the regulations should be consistent with and include the Department's other ''essential'' exceptions to the time limit policy, including several exceptions that have already been implemented, such as Time-Out and nonassistance. They also suggested that the regulations include a clarification of what counts or does not count toward the 60-month time limit (for example, assistance reimbursed through child support collection). They suggested that all circumstances that do not count toward the 60-month limit should be included in subsection (f). One commentator suggested that the regulations clarify the relationship between Regulation # 14-472 (which establishes the 60-month time limit for receipt of TANF assistance) and this rulemaking; specifically, the commentator suggested that a clear statement be made that the 60-month limit will not apply until after this rulemaking is final.

   Further, commentators said that § 141.41(f)(1) describes ''one circumstance when a TANF recipient would not be charged with assistance against their 60-month time limit;'' they noted other circumstances such as nonassistance, Time-Out and other examples described in the Department's Cash Assistance Handbook. One commentator suggested that the regulations be revised to say that ''periods of cash assistance that are solely State-funded do not count toward the 60-month limit.'' Another commentator said proposed § 141.41, as written, would not exclude the months spent in the Time-Out program from a recipient's 60 months.

   They reiterated a comment they made about the basic TANF regulations and time limit policy: that the Department should publish all proposed rulemaking involving exceptions to the time limit as soon as possible, then file a comprehensive final-form regulation containing all TANF-related provisions as a single regulation. They also said that finalizing the basic TANF regulations before this rulemaking will mean that ''[m]any questions regarding the overall TANF program will remain unanswered under this scenario.'' They also questioned whether the amendments to § 141.41 in this rulemaking remain consistent with Regulation #14-472.

   Response: The basic TANF program is the foundation for this rulemaking, Extended TANF. Given the discrete nature of Extended TANF, the Department decided not to combine it with the basic TANF rulemaking. The Department chose to promulgate the basic TANF rulemaking first.

   These regulations are consistent with the eligibility requirements for the basic TANF program. Basic TANF includes regulations for the State-funded Time-Out program in Chapter 281. Section 141.41(d)(8) and § 281.1 (relating to policy) clarify that benefits received under Time-Out do not count towards the 60-month limit. Section 141.41(d)(6) clarifies which benefits are not considered TANF ''assistance received'' for purposes of calculating months of TANF received. Accordingly, with these changes in §§ 141.41(d)(6) and (8) and 281.1, it is not necessary to revise § 141.41(f)(1).

   Individuals who received 60 months of TANF prior to the effective date of this rulemaking and are otherwise eligible for TANF have continued to receive TANF. See 32 Pa.B. 432 (January 26, 2002). Upon publication of this rulemaking, individuals who have exhausted 60 months of TANF assistance will be required to comply with the eligibility requirements for Extended TANF.

   The Department has not included in this rulemaking the initiatives and projects known as nonassistance. Nonassistance is not subject to the 60-month time limit. The 60-month time limit applies only to TANF ''assistance.'' Accordingly, an exception to the time limit for nonassistance is unnecessary. Nonassistance initiatives, announced by public notice of intent to amend the TANF State Plan published at 30 Pa.B. 2954 (June 10, 2000), include work supports and other services to low-income families. Although Federal law limits nonassistance cash benefits to a maximum of 4 months, the Department's nonassistance benefits do not include monthly cash benefits.

   Nonassistance benefits are pilot projects implemented by the Department directly, through contractors or by grants to other State agencies. The nature and extent of those benefits may vary in the future with changes in the needs of the recipients and the availability of work supports, service projects and funding. The flexibility gained through funding specific projects enables the Department to respond more quickly to changes in need and take advantage of newly-developed initiatives to meet those needs, including initiatives developed by entities other than the Department.

   There is no time limit for receipt of Extended TANF. Individuals who have exhausted 60 months of TANF may be eligible to receive cash assistance beyond the 60-month limit under the Extended TANF program under this rulemaking.

   It was not necessary to revise this rulemaking to provide that cash assistance that is solely State-funded is not counted towards the 60-month limit. The regulations are clear that the 60-month time limit applies only to TANF cash assistance, not to State-funded GA or Time-Out benefits. See §§ 141.41(d)(1) and 281.1.

6.  No time limit.

   Comment: One commentator requested ''an end to time limits.'' One commentator suggested that the TANF 5-year time limit should not apply to families of disabled immigrant parents who arrived in the United States after August 22, 1996, and who do not qualify for SSI because of the SSI prohibition against payments to noncitizens.

   Response: With respect to the commentator's request to ''end time limits,'' the Department refers the commentator to 45 CFR 264.1(a)(1) which prohibits states from providing TANF assistance to a family in which an adult head-of-household or spouse of head-of-household has received TANF assistance for 60 cumulative months. However, the Department has elected the Federal option at 45 CFR 264.1(c) that permits states to extend TANF assistance for up to 20% of the average monthly number of families receiving assistance during the fiscal year (or the preceding fiscal year). Families in the 20% are limited to families with a hardship or domestic violence. Cash assistance received under the Extended TANF program is not time-limited, but families must meet specific eligibility requirements and comply with individualized plans for self-sufficiency to remain eligible. Families of disabled immigrant parents who have received 60 months of TANF may qualify for Extended TANF in the same manner as families of parents who are citizens.

7.  LEP. (§§ 141.51(a)(2), 141.52)

   Comment: Commentators suggested that the Department revise the regulations to specifically acknowledge or assist those with Limited English Proficiency (LEP) and provide ''off-the-clock'' assistance for persons with LEP. One commentator claimed that no vocational training programs have been offered in languages other than English. The commentator also contended that persons with LEP did not have the opportunity to engage in training programs, job readiness or work experience programs which could enable them to enhance their skills and prepare to move from welfare to work. The commentator argued that the Department is required by Title VI of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000d), to take affirmative actions to overcome the effects of prior discrimination.

   One commentator stated that persons with LEP have not had the opportunity to use their 5 years on TANF to participate in English-as-a-Second Language (ESL) classes. That commentator further argued that without Departmental funding for ESL classes, persons with LEP will not have the opportunity to participate in ESL programs with an intensity level needed to significantly advance in their English proficiency.

   Response: The Department disagrees with the commentators' allegation that persons with LEP did not have the opportunity to participate in ESL classes, vocational training, job readiness or work experience programs. The Department acknowledges the need for additional employment and training services for persons with LEP. The Department and its contractors are continuing to develop more programs and services for LEP individuals. Employment and training services have been and continue to be available in up to 23 languages other than English. Not all programs are available in all languages. Employment and training contractors are required to provide services to persons with LEP in the participant's language for the following: job search, skills training, work experience, literacy, remedial education and job retention and advancement. In addition to language instruction provided by employment and training contractors, recipients of TANF have qualified for special allowances to attend ESL classes in the community. Because neither employment and training services nor ESL classes were denied to persons with LEP in the past, the Department disagrees with the commentator's suggestion that there has been prior discrimination which necessitates affirmative action under Title VI.

   The Department did not adopt the commentator's suggestion that the Department create a new basis for eligibility for ''off-the-clock'' benefits for persons with LEP. LEP alone is not a basis for eligibility for any cash assistance benefit. Individuals with LEP may qualify for Extended TANF under §§ 141.53--141.56 in the same manner as any other individuals. In addition, they are provided with language services needed to ensure meaningful access to benefits and programs. As discussed previously, contractors are required to provide employable recipients with employment and training services in the language they understand. In addition, ESL classes are included in WPP as specified in § 141.52 and are available to individuals in other employment and training programs. ESL classes also may be part of an individual's MPP service plan as specified in § 141.52. Extended TANF recipients whose referral to MPP or WPP is deferred or who qualify for Extended TANF based on domestic violence may participate in ESL classes. An individual whose approved AMR includes participating in ESL classes qualifies for supportive services to attend those classes.

   The Department disagrees with the commentator's suggestion that it is necessary for the Department to fund ESL classes for persons with LEP to advance significantly in their English proficiency. Commentators presented no evidence to support their view that current methods of ESL instruction are insufficient. An ESL instruction is included in contracted WPP and other employment and training programs. In addition, ESL classes are available from multiple community agencies.

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