[31 Pa.B. 5875]
[Continued from previous Web Page] I. The following revisions relating to Chapter 187 reflect the changes announced by the NORC and further amended by Act 58. Additionally, the chapter regulations, as appropriate, are reorganized into logical sequence and procedures are eliminated:
1. Section 187.21 (relating to general policy). This section includes the text of the former subsection (a). This section is amended to set forth the policy that the Department grants assistance only to persons who apply for and meet all conditions of eligibility. This section is also amended to set forth the policy for the referral of persons who do not receive assistance but wish to receive child support enforcement services that had been provided in § 187.24(c) (relating procedures). A reference to 23 Pa.C.S. §§ 4301--5104 and 7101--8415 and 62 P. S. §§ 101--1503 and §§ 1971--1977 was added.
2. Section 187.21(b). This subsection is deleted because the requirement concerning the automatic assignment of support rights to the Department is in § 187.23(e) (relating to requirements).
3. Section 187.21(c). This subsection is deleted because it relates to procedures, and the Bureau of Claim Settlement Child Support Unit no longer exists. The Bureau of Child Support Enforcement is the State agency responsible for the administration of Pennsylvania's Support Enforcement Program under Title IV-D of the Social Security Act and State law. See 42 U.S.C.A. §§ 651--669b; 23 Pa.C.S. § 4372(a). The deleted procedural information is appropriately delineated in the Department's Cash Assistance Handbook, Chapter 131, Support.
4. Section 187.21(d). This subsection is deleted because it relates to procedures. The procedures regarding the effect of automatic support assignment are appropriately delineated in the Department's Cash Assistance Handbook, Chapter 131, Support.
5. Section 187.21(e). This subsection is deleted because it relates to procedures. The procedures regarding the treatment of support collections and CAO responsibilities are appropriately delineated in the Department's Cash Assistance Handbook, Chapter 131, Support and Chapter 150, Income.
6. Section 187.21(f). This subsection is deleted because it relates to procedures. The procedures regarding the timing of the effect of the assignment of support and the interchange of information about support collections and the cash assistance eligibility determination are appropriately delineated in the Department's Cash Assistance Handbook, Chapter 131, Support and Chapter 150, Income.
7. Section 187.21(g). This subsection is deleted because it relates to procedures. The procedures regarding the Child Support Action Notice and the interchange of cash assistance information from the CAO to the Child Support Unit, and the responsibilities of the Bureau of Child Support Enforcement are delineated in the Department's Cash Assistance Handbook, Chapter 131, Support.
8. Section 187.22 (relating to definitions). This section is amended to delete the definitions of ''alimony,'' ''child born out-of-wedlock,'' ''LRR--legally responsible relative'' and ''spouse'' because the terms are either not used or are clarified in the new definitions. The procedures regarding paternity establishment are deleted and delineated in the Department's Cash Assistance Handbook, Chapter 131, Support. The term ''alimony'' is not used in the chapter; instead, the term ''support'' is added based upon Act 58's definition of ''order of support.'' The terms ''child'' and ''child born out-of-wedlock'' are not used in the chapter. The term ''spouse'' is included in the redefined term ''LRR--legally responsible relatives.'' The definitions of ''arrears,'' ''budget group,'' ''BDSE--Bureau of Child Support Enforcement,'' ''cash assistance allowance'' (Act 58 change), ''CAO--County assistance office,'' ''Department,'' ''DRS--Domestic Relations Section,'' ''establishing paternity,'' ''LRR--legally responsible relative,'' ''obtaining support'' and ''unemancipated minor child'' are added.
Pennsylvania case law establishes that a parent is liable for the support of his child until the child reaches age 18 or graduates from high school, whichever occurs later. Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992). A ''minor'' is defined as ''an individual under the age of twenty-one (21) years.'' See 1 Pa.C.S. § 1991 (relating to definitions). Thus, the outside age limit for support of a minor child is age 21. However, the obligation to support a child may end sooner where a minor has become emancipated. See 23 Pa.C.S. § 4323(a) (relating to support of emancipated child).
9. Section 187.23(a). This subsection is retitled, ''Applicability'' and deletes the current language of § 187.23(a). This section applies to applicants/recipients of cash assistance if there is the reported absence of a parent from the home of an unemancipated minor child, the presence of a putative father for an unemancipated minor child, and a spouse absent from the home. Absence of a parent from the home is determined according to the requirements under § 153.44(a). The specific cooperation criteria for child support are in § 187.23(b).
10. Section 187.23(a)(1) and (2). These paragraphs, subparagraphs and clauses are deleted. The provisions regarding the referral of cash assistance applicants/recipients for child support services are in § 187.23(d), concerning cooperation. Every applicant/recipient must appear before the Domestic Relations Section (DRS) or other applicable division of the court of common pleas before cash assistance is authorized. The previous exemption regarding a mutual agreement existing between the DRS and the Department regarding local referral procedures is incorporated in § 187.23(d)(2). Previously exempt applicants/recipients who had filed a support complaint within 90 days or had a support order established in the last 12 months must now comply with the child support eligibility requirements. The personal appearance requirement affords the applicant/ recipient the opportunity to report changes and circumstances and provide new information to the DRS as required by Federal law. The information provided to the DRS may result in the establishment of paternity or location of the noncustodial parent. See 23 Pa.C.S. § 4378(a) (relating to assistance recipients to seek support). The provisions regarding the exemptions from cooperation requirements are modified and specified in § 187.23(d)(3) and (4). The exemption provisions are limited to applicants/recipients applying on behalf of a newborn or filing a good cause claim. The provisions regarding the CAO responsibility to inform the applicant/recipient of the opportunity to claim good cause are deleted here and set forth in § 187.25(a). The child support cooperation requirements are set forth in § 187.23(b).
11. Section 187.23(a)(3) and (4). These provisions are deleted. The provisions regarding waiver of child support cooperation requirements for good cause are set forth in §§ 187.25(a)(4)--(7) and 187.27.
12. Section 187.23(a)(5)(i) and (ii). These provisions are deleted. The responsibilities of the CAO in the support referral process are delineated as procedures in the Department's Cash Assistance Handbook. The provisions regarding notice to the applicant regarding cooperation requirements and noncooperation are in §§ 187.25(a)(2) and (3) and 187.26 (relating to notification to the applicant or recipient; and noncooperation)..
13. Section 187.23(a)(6)(i)--(v). These provisions are deleted because the provisions relate to procedures. The responsibilities of the DRS in the support referral process are delineated as procedures in the Department's Cash Assistance Handbook, Chapter 131, Support.
14. Section 187.23(b). This subsection is retitled, ''Cooperation Criteria for Child Support,'' and is amended to incorporate the requirement that an applicant/recipient seeking assistance on behalf of an unemancipated minor child must cooperate in establishing paternity and obtaining support from a legally responsible relative unless the applicant/recipient has good cause for failing to do so. See 23 Pa.C.S. § 4379 (relating to cooperation required).
15. Section 187.23(b)(1). This paragraph is amended to incorporate the requirement that an applicant/recipient must identify the parents of a child for whom assistance is sought and appear for and submit to genetic testing with the child. See 23 Pa.C.S. § 4379(2)(i)(A). The cooperation criteria for obtaining spousal support are set forth in § 187.23(c).
16. Section 187.23(b)(1)(i). This subparagraph is amended to specify that a presumption of noncooperation which may be rebutted only by clear and convincing evidence arises if a mother fails to identify by name the father of an unemancipated minor child. See 23 Pa.C.S. § 4379(2)(ii).
17. Section 187.23(b)(1)(ii). This subparagraph is amended to specify that a presumption of noncooperation which may be rebutted only by clear and convincing evidence arises with the second exclusion if the applicant/recipient provides the names of two putative fathers subsequently excluded from paternity by genetic testing. See 23 Pa.C.S. § 4379(2)(iii).
18. Sections 187.23(b)(1)(ii)(A) and (B). These clauses are deleted. The cooperation criteria for obtaining spousal support are in § 187.23(c).
19. Section 187.23(b)(2). This paragraph is amended to incorporate the requirement that the applicant/recipient who is required to cooperate with the child support enforcement provisions must keep all scheduled appointments with the Department or DRS. See 23 Pa.C.S. § 4379(2)(i)(B).
20. Section 187.23(b)(2)(i)--(iii). These subparagraphs are deleted. The cooperation criteria for obtaining spousal support are in § 187.23(c).
21. Section 187.23(b)(3). This paragraph is amended to incorporate the requirement that an applicant/recipient must provide truthful and accurate information and documents requested by the Department or the DRS. See 23 Pa.C.S. § 4379(2)(i)(C). The cooperation criteria for obtaining spousal support are in § 187.23(c).
22. Section 187.23(b)(3)(i). This subparagraph is amended to delineate requirements for providing information about the location of a parent or putative father. The requirements for providing information about the location of a spouse are in § 187.23(c)(3).
23. Section 187.23(b)(3)(ii). This subparagraph is amended to delete reference to specific governmental agencies. The cooperation criteria for obtaining spousal support are in § 187.23 (c).
24. Section 187.23(b)(3)(iii). This subparagraph is amended to delineate the plan to locate a missing parent or putative father. The requirements for providing information about the location of a spouse are in § 187.23(c)(3)(i).
25. Section 187.23(b)(4). This paragraph is added to incorporate the requirement that an applicant/recipient must sign and return any forms requested by the Department or the DRS. See 23 Pa.C.S. § 4379(2)(i)(D).
26. Section 187.23(b)(5). This paragraph is added to incorporate the requirement that an applicant/recipient must appear as a witness and provide testimony at judicial and other hearings as requested by the DRS. See 23 Pa.C.S. § 4379 (2)(i)(E).
27. Section 187.23(b)(6). This paragraph is added to incorporate the requirement that an applicant/recipient must pay to the Department any support received directly from an absent parent after an assignment of support rights has been made. See 23 Pa.C.S. § 4379(2)(i)(F).
28. Sections 187.23(c)(1)--(6). This subsection and paragraphs are added to set forth the cooperation requirements that apply to an applicant/recipient for whom there is a spouse who is absent from the home. The applicant/ recipient, unless there is good cause for failing to do so, must cooperate by naming the absent spouse, keeping scheduled appointments with the Department or the DRS, providing truthful and accurate information and documents requested by the Department or the DRS, establishing and completing a plan with the CAO to locate the spouse, signing and returning any forms requested by the Department or the DRS, appearing as a witness and providing testimony at judicial and other hearings as requested by the DRS, and paying to the Department any support received directly from an absent spouse after an assignment of support rights has been made. See 62 P. S. § 403(b); 23 Pa.C.S. §§ 4378 and 4379.
29. Section 187.23(d). This subsection is added to specify that, as a condition of eligibility for assistance, an applicant/recipient must cooperate in establishing paternity and obtaining support. See 23 Pa.C.S. §§ 4371 and 4378(a).
30. Section 187.23(d)(1). This paragraph is added to specify that, prior to authorization of assistance, an applicant/recipient must appear before the DRS or applicable division of the court of common pleas and provide the CAO with certification of cooperation from the DRS. See 23 Pa.C.S. § 4378(a).
31. Section 187.23(d)(2). This paragraph is added to specify that the Secretary of the Department may, upon request of a family court or DRS, waive the personal appearance requirement and, in that event, that an applicant/recipient must cooperate with the procedures established for the county. See 23 Pa.C.S. § 4378(a).
32. Section 187.23(d)(3). This paragraph is added to specify that in the case of a newborn, assistance may be authorized as long as support action is taken before the end of the grace period.
33. Section 187.23(d)(4). This paragraph is added to specify that an applicant is exempt from the cooperation requirements if a good cause claim is filed with the CAO, court of common pleas, or DRS and until the CAO, court or DRS makes a determination on the good cause claim. Additionally, cooperation requirements are waived if the CAO, Court or DRS determines that good cause exists. See 23 Pa.C.S. § 4379(1)(iii) and (iv).
34. Section 187.23(e). This subsection is added to incorporate the requirement that acceptance of assistance operates as an assignment to the Department, by operation of law, of the recipient's right to support. See 23 Pa.C.S. § 4378(b).
35. Section 187.24(a) (relating to procedures). This subsection is deleted because the spousal support requirements are in § 187.23(c). The DRS determines the amount of support obligation and establishes how a support obligation is to be paid by a spouse or a parent pursuant to the Pennsylvania Rules of Civil Procedure and the Domestic Relations Code. See Pa.R.C.P. 1910.1--1910.50; 23 Pa.C.S. §§ 4301--5104.
36. Section 187.24(b). This subsection is deleted because the cooperation criteria for child support are in § 187.23(b), the requirement for cooperation prior to authorization is in § 187.23(d), the requirement for the CAO to notify the applicant or recipient of the cooperation requirements and the right to claim good cause are in § 187.25(a), and the cash assistance allowance reduction for failure to cooperate without good cause are in § 187.25(a). The procedures for the preparation and processing of the Application for Child Support Services and the exchange of information between the CAO and the DRS are deleted and delineated in the Department's Cash Assistance Handbook Chapter 131, Support.
37. Section 187.24(c). This subsection is deleted. Referral of persons who do not receive assistance, but who wish to receive child support enforcement services, is found in § 187.21.
38. Section 187.24(d). This subsection is deleted because the cooperation criteria for spousal support are set forth in § 187.23(c).
39. Section 187.24(e). This subsection is deleted because it is obsolete. The cooperation criteria for spousal support are set forth in § 187.23(c).
40. Section 187.24(f). This subsection is deleted as obsolete. Waiver of an expected contribution determined by the CAO for the support of a spouse is no longer valid. Instead, the DRS determines the amount of support obligation and establishes how a support obligation is to be paid by a spouse or a parent under the Pennsylvania Rules of Civil Procedure and the Domestic Relations Code. See Pa.R.C.P. 1910.1--1910.50; 23 Pa.C.S. §§ 4301--5104.
41. Section 187.24(g). This subsection is deleted as obsolete. The domestic relations section determines the amount of support obligation and establishes how a support obligation is to be paid by a spouse or a parent under the Pennsylvania Rules of Civil Procedure governing support actions. See Pa.R.C.P. 1910.1--1910.50. The cooperation criteria for child support are in § 187.23(b) and the cooperation criteria for spousal support are in § 187.23(c).
42. Section 187.24(h). This subsection is deleted as obsolete because the rules governing support actions are set forth under the Pennsylvania Rules of Civil Procedure. See Pa.R.C.P. 1910.1--1910.50. The cooperation criteria for spousal support are in § 187.23(c).
43. Section 187.24(i). This subsection is deleted because the redetermination of the ability of a spouse to pay a support obligation is a responsibility of the DRS in accordance with the Domestic Relations Code, 23 Pa.C.S. §§ 4301--4396, and the Pennsylvania Rules of Civil Procedure governing support actions. See Pa.R.C.P 1910.1--1910.50.
44. Section 187.24(j). This subsection is deleted because the information is related to military allotments for dependents. The distribution of allotments is handled through the DRS under the Pennsylvania Rules of Civil Procedure governing support actions. See Pa.R.C.P. 1910.1--1910.50.
45. Sections 187.25(a)(1)--(6) and (b) (relating to notification to the applicant or recipient). These provisions are added to specify that, prior to requiring cooperation § 187.23, the CAO will notify the applicant/recipient orally and in writing of the cooperation requirements, of the consequences for failure to cooperate, of the right to claim good cause, that the burden of proving good cause rests with the applicant/recipient, and that a finding of noncooperation does not affect the legally responsible relative's (LRR) duty to pay support. See 23 Pa.C.S. § 4380(b) (relating to enforcement of cooperation requirements).
46. Section 187.26(a) (relating to noncooperation). This subsection is added to specify that either the CAO, court of common pleas or the DRS may make the determination whether the applicant/recipient failed to cooperate without good cause. This section outlines the procedures to be followed depending upon which entity makes that determination. This subsection provides that the court of common pleas of each county shall have the option of hearing appeals from any determination of its DRS that an applicant/recipient has not cooperated in accordance with § 187.23. See 23 Pa.C.S. § 4380(b).
47. Section 187.26(b). This subsection is added to specify that if the court of common pleas or the DRS determine that the applicant/recipient has failed to cooperate without good cause with the support requirements in § 187.23, the court of common pleas or DRS will provide notice of any noncooperation determination to the CAO and that it has opted not to conduct a hearing on the noncooperation determination. Additionally, this subsection provides that appropriate court personnel shall be available to provide telephone testimony at the time and location set by the Department for any Department appeal hearing regarding noncooperation. As a result of Act 58, court personnel is only required to appear by means of telephone for a noncooperation hearing. See 23 Pa.C.S. § 4380(b).
48. Section 187.26(c)(1)(i)--(iv). These provisions are added to specify that, if the CAO, Court, or the DRS determines that the applicant for cash assistance failed to cooperate, the CAO will notify the applicant of the noncooperation determination, of the reduction of the cash assistance allowance by 25%, and of the right to appeal. Additionally, the CAO will authorize the cash assistance allowance reduced by 25% effective upon authorization and authorize the full cash assistance allowance if so ordered as a result of a fair hearing, as a result of good cause being established, or as a result of the applicant cooperating with support requirements. See 23 Pa.C.S. § 4380(b).
Note: The sanction for noncooperation as outlined previously differs from the sanction for noncooperation published in the TANF NORC of March 1, 1997. The NORC of March 1, 1997, provided that if the applicant/recipient failed to cooperate in establishing paternity and obtaining support without good cause, the sanction would be removal of the applicant/recipient from the grant and establishment of a protective payment for any child on whose behalf the applicant/recipient sought assistance. If removal of the applicant/recipient did not result in a grant reduction of at least 25%, there would have to be an additional reduction so that the grant was reduced in an amount not less than 25%. See 27 Pa.B. 1105. The requirement as to the imposition of the protective payment was based upon Act 35 and the PRWORA, as to the mandatory imposition of the not less than 25% reduction in the grant. See 62 P. S. § 432.7A; 42 U.S.C.A. § 608(a)(2). With the enactment of Act 58, the sanction for noncooperation without good cause is now a reduction of the cash assistance allowance by 25%, and if provided by Departmental regulation, imposition of a protective payment. See §§ 141.21(e) and 187.26; 23 Pa.C.S. § 4380(b). Act 58 provides that imposition of protective payment is at the option of the Department if provided for by Departmental regulation. The Department is not providing for imposition of protective payments in this rulemaking. See 23 Pa.C.S. § 4380(b).
49. Section 187.26(c)(2)(i)--(iv). These provisions are added to specify that the CAO will notify the cash assistance recipient of the noncooperation determination, the reduction of the cash assistance allowance, and the right to appeal if the CAO, court or the DRS determines that the recipient failed to cooperate. Additionally, unless a timely appeal is filed by the recipient, the CAO will authorize reduction of the cash assistance allowance by 25% 10 days after the date of the notice. If the Department action is sustained on appeal, the Department will initiate recovery of the cash assistance allowance granted pending a fair hearing. See 23 Pa.C.S. § 4380(b)(2))
50. Section 187.26(d). This subsection is added to specify that any hearing or appeal with respect to an order of noncooperation directed by the court or the DRS shall be conducted by the court in accordance with the Pennsylvania Rules of Civil Procedure. See 23 Pa.C.S. § 4380(b)(3).
51. Section 187.26(d)(1)(i)--(iii) and (2). These provisions are added to specify that if the court determines that the applicant/recipient failed to cooperate without good cause, the court shall order the Department to impose sanctions. This section also describes the actions the CAO will take upon receipt of an order. The Department must implement the order within 10 days. The CAO will provide notice of the order and the cash assistance allowance reduction to the applicant/ recipient as well as notice that the right of appeal to the Department's Bureau of Hearings and Appeals is limited to the calculation of the assistance amount. In addition, when the court has determined noncooperation, the CAO will authorize the cash assistance allowance reduced by 25% effective with the date of authorization for applicants, or will reduce the cash assistance allowance by 25%, effective 10 days after the court order. See 23 Pa.C.S. § 4380(b)(3).
52. Section 187.27(a)(1)--(3). These provisions are added to specify the circumstances under which child support cooperation requirements may be waived for good cause, such as, the child was conceived as a result of a rape or incest or legal proceedings for the adoption of the child are pending before a court. See 23 Pa.C.S. § 4379(1)(iii) and (iv).
53. Section 187.27(a)(4)(i)--(ix). These provisions are added to specify the circumstances that constitute good cause based on domestic violence. Good cause due to domestic violence may be established if action to establish paternity or obtain child or spousal support would make it more difficult for the individual or family member to escape domestic violence, or unfairly penalize those individual who has been victimized by such violence, or who is at risk of further violence. Domestic violence is defined as: physical acts that resulted in, or threatened to result in, physical injury to the individual; sexual abuse; sexual activity involving a dependent child; being forced as the caretaker relative of a dependent child to engage in nonconsensual sexual acts or activities; threats of, or attempts at, physical or sexual abuse; mental abuse; neglect or deprivation of medical care. This amendment removes the term ''serious'' as it describes physical or mental abuse. This amendment also removes the requirement that the abuse must be so that it interferes with the individual's capacity to care for the child. See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
54. Section 187.27(b). This subsection is added to specify that an applicant/recipient shall provide relevant corroborative evidence of the good cause claim. See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
55. Section 187.27(b)(1)(i)--(iii). These provisions are added to specify the types of evidence that may be used to corroborate a good cause claim when the child was conceived as a result of rape or incest or legal proceedings for the adoption of the child are pending before a court. See 23 Pa.C.S. § 4379(1)(iii) and (iv).
56. Section 187.27(b)(1)(iv)--(vii). These provisions are added to specify the types of evidence that may be used to corroborate a good cause claim when the claim is based on domestic violence. This amendment deletes the term ''sworn'' as it relates to statements from individuals who have knowledge of the good cause circumstances. See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
57. Section 187.27(b)(1)(vii). This section is being added to specify that the ''Verification of Good Cause Based on Domestic Violence'' form shall be completed for all good cause claims based on domestic violence. This form is used to accompany acceptable verification as specified in § 187.27(b)(1)(iv), (v) or (vi) that an applicant or recipient has provided, to authorize by written consent of the applicant or recipient that a third party may provide verification/corroboration of the good cause claim, or to grant good cause for up to 6 months when an applicant or recipient affirms she is unable to safely obtain evidence to verify the claim of domestic violence within the established time frames for providing verification. See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
58. Section 187.27(b)(2). This paragraph is added to specify that the CAO, court or the DRS may provide assistance with obtaining corroborative evidence and may obtain specific documents that the applicant/recipient is not able to obtain. See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
59. Section 187.27(b)(3). This paragraph is added to specify that an applicant/recipient shall provide corroborative evidence of a good cause claim within 30 days of the date of the initial claim except when the applicant or recipient cannot provide verification of the good cause claim as specified in (b)(1)(vii)(C). See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
60. Section 187.27(b)(3)(i). This subparagraph is added to clarify that in the case of an applicant, assistance will be authorized no later than 30 days following application when good cause is claimed and verification is not readily available or pending from a third party. See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
61. Section 187.27(b)(3)(ii). This subparagraph is added to clarify that in the case of a recipient, the CAO will continue assistance if verification of the good cause claim is not provided within 30 days and the delay is due to a third party. See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
62. Section 187.27(c). This subsection is added to specify that the CAO, court or DRS shall make a determination on a good cause claim within 45 days of the date the applicant/recipient initiates the claim. The CAO, court or DRS may extend the 45-day period. See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
63. Section 187.27(c)(1). This paragraph is added to specify that if the CAO makes the good cause determination, the CAO will notify the applicant/recipient in writing of the final determination and the basis for the determination and the right to appeal under Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings). If the good cause claim is denied, neither the Department nor the Bureau of Child Support Enforcement will attempt to establish paternity or collect support for at least 30 days after the client has been informed orally and in writing of the denial. See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
64. Section 187.27(c)(2). This paragraph is added to specify that if the court or DRS makes the good cause determination, the DRS will notify the applicant/recipient and the CAO of the final determination and the basis for the determination and the right to appeal under Chapter 275. See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
65. Section 187.27(c)(3). This paragraph is added to specify that in all cases when the CAO, court or the DRS approves a waiver based on a good cause claim, they will also establish the expiration of the waiver and the DRS will not attempt to establish paternity or obtain support. See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
66. Section 187.27(c)(4). This paragraph is added to specify that a good cause determination shall be reviewed at least every 6 months. The review may be earlier if the circumstances of the good cause waiver change or the waiver has been granted for a lesser period. In addition, if good cause was granted based on corroborative evidence, the good cause claimant does not have to provide additional corroborative evidence at the time of the review if circumstances have not changed since the initial good cause waiver was approved. If the good cause claim was granted based on the recipient's written affirmation and she is still unable to provide documentation other than her initial affirmation, the CAO will make a determination of good cause based on a current assessment of the recipient's circumstances. This assessment will be made by a person with domestic violence training and substantiated by completion of the Form PA/CS 1747, Verification of Good Cause Based on Domestic Violence. See 23 Pa.C.S. § 4379(1)(iii) and (iv); 42 U.S.C.A. §§ 602(a)(7) and 608(a)(7)(C)(iii).
II. The following are regulations that apply to the TANF Program:
A. The following revisions relating to general eligibility requirements for the TANF Program are being made to Chapter 141 (relating to general eligibility provisions):
1. Section 141.41(f)(1)--(3) (relating to policy). These provisions are added to specify that a family is ineligible for TANF cash assistance if it includes an adult who has received 60 months of TANF cash assistance. Assistance received as a minor child does not count toward the 60-month limit except when the minor child is the head of household or is married to the head of household. There is no time limit on benefits in child-only cases, that is, when the adults in the budget group are not themselves receiving TANF cash assistance. However, parents living with the child are required to be included in the TANF budget group application. Receipt of TANF need not be consecutive to count toward the 60-month limit. See 42 U.S.C.A. § 608(a)(1)(B).
2. Section 141.42 (relating to definitions). This section is revised to add the definitions of ''cash assistance allowance'' (which is used but not defined in 23 Pa.C.S. § 4380)), ''family'' (which is used but not defined in 42 U.S.C.A. § 608(a)(1)) and ''minor child'' (which is defined in 42 U.S.C.A. § 619)). Cash assistance under the TANF Program is available only to households that include a minor child and the child's custodial parent or other adult caretaker/relative. The term ''minor child'' replaces the term ''dependent child'' which was used in the AFDC program.
B. The following revision relating to the age of a TANF child is being made to Chapter 145 (relating to age):
1. Section 145.43(a)(1)(ii) (relating to requirements). This subparagraph is revised to delete the limitation that a school student who is 18 years of age is considered a minor child only if he is expected to graduate from a secondary school or its equivalent before reaching age 19. See 42 U.S.C.A. §§ 608(a)(1) and 619.
C. The following are comments regarding residency requirements found in Chapter 147 (relating to residency):
1. Section 432(5)(ii) of the code specifies that TANF applicants who have resided in this Commonwealth for fewer than 12 months cannot receive cash assistance benefits in excess of the amount they could have received in their prior state of residence. This requirement was implemented effective March 3, 1997.
However, on October 6, 1997, the United States District Court for the Eastern District of Pennsylvania preliminarily enjoined the Department from enforcing this multitier durational residency provision, Maldonado et al. v. Houstoun et al. 177 F.R.D. 311 (1997). On September 9, 1998, that preliminary injunction was upheld by the United States Court of Appeals for the Third Circuit, 157 F.3d 179 (1998). On May 24, 1999, following its decision in Saenz v. Roe, 119 S.Ct. 1518 (1999), striking California's two-tier durational residency requirement, the United States Supreme Court denied the Commonwealth's Petition for Certiorari seeking review of the 3d Circuit's decision in Maldonado. In light of those decisions, no regulation will be promulgated to implement section 432(5)(ii) of the code.
D. The following revisions relating to the care and control of a minor child are being made to Chapter 151 (relating to specified relatives):
1. Section 151.42 (relating to definitions). This section is revised to:
* Add the definition of ''adult.'' See 42 U.S.C.A. § 619.
* Explain that in addition to the relationship requirements that already exist, a specified relative shall also be an adult or a minor parent who is not required to live in the home of an adult specified relative or adult-supervised supportive living arrangement. See 42 U.S.C.A. § 608(a)(5).
2. Section 151.43(d)(1) (relating to requirements). This paragraph is revised to specify that the eligibility of a TANF child is not automatically affected by a temporary absence from the home if the absence does not exceed 180 days. This provision does not apply in cases when custody of the child has been relinquished to a third party or the child is staying with a parent under the terms of a custody order. See 42 U.S.C.A. § 608(a)(10).
3. Section 151.43(d)(3). This paragraph is added to provide that a specified relative is ineligible for assistance for 30 days if he fails to report the absence of a child within 5 days of the date it becomes clear that the child's absence will exceed the 180-day period. See 42 U.S.C.A. § 608(a)(10).
4. Section 151.43(f). This subsection is revised to delete the requirement that eligibility for TANF is limited to a pregnant woman who verifies that she is in her third trimester of pregnancy. Under the PRWORA, a pregnant woman with no other children living with her may qualify for TANF from the date she provides medical verification of her pregnancy. See 42 U.S.C.A. § 608(a)(1)(A)(ii).
E. The following revisions relating to deductions from the earned income of a TANF applicant or recipient are being made to Chapter 183 (relating to income):
1. Section 183.94(1) (relating to eligibility for TANF earned income deductions). This paragraph is revised to specify that an applicant for TANF who has been a TANF recipient in 1 of the 4 calendar months prior to application is eligible for the continuous 50% disregard from earned income. The $90 standard deduction from gross earned income is no longer applicable and is deleted.
2. Section 183.94(2)(i)--(iii). This section is revised to specify that an applicant for TANF who has not been a recipient in 1 of the 4 calendar months prior to application is eligible for the continuous 50% disregard if his income, after applicable deductions, is less than the standard of need for the household size.
3. Sections 183.94(2)(iv) and (v). These subparagraphs are deleted since they relate to the now obsolete time-limited 30 plus 1/3 earned income incentive deduction that is replaced by the continuous 50% disregard.
4. Sections 183.96(a)--(e) and 183.97(4) (relating to interruption in the 4 consecutive months of the earned income incentive deduction for AFDC and GA; and ineligibility for disregards from earned income for TANF and GA). The provisions of these sections are deleted. The requirements relating to interruptions in the 4-consecutive months of the earned income incentive deduction no longer apply. The time-limited earned income incentive deduction is replaced by the continuous 50% disregard under § 183.94(1) and (2). See 62 P. S. § 432.12.
III. The following are provisions that apply to the MA program:
A. The following revisions to Chapter 140 (relating to special MA eligibility provisions), clarify when student financial assistance is excluded as income, and change the income methodology in determining eligibility for Healthy Beginnings:
1. Section 140.41(1)--(4) (relating to educational loans and grants). These paragraphs are deleted. This section no longer itemizes the types of educational loans and grants that are not counted as income but is revised to specify that Federally-funded student financial assistance, including college work-study income, is excluded as income. In addition, all other student financial assistance provided to pay for educational expenses is excluded as income unless the assistance is provided solely for payment of basic living needs.
2. Section 140.53 (relating to income-in-kind). This section is deleted and reserved since income-in-kind is no longer considered in determining eligibility.
3. Section 140.65 (relating to educational assistance). This section is revised to delete references to specific types of educational assistance that are excluded as income when determining eligibility. This section is also revised to specify that Federally-funded student financial assistance, including college work-study income, is excluded as income. All other educational assistance is excluded unless it is specifically provided to pay for basic living needs. See 62 P. S. § 401(a).
4. Sections 140.81(1) and (2) (relating to deductions from earned income). These paragraphs are revised to reflect the change in earned income deductions for employed applicants/recipients of the Healthy Beginnings Program. Each employed person whose income is used to determine eligibility and who qualifies for the earned income disregard is entitled to a continuous 50% disregard from gross earned income. Persons determined ineligible using the 50% disregard will be evaluated under the income methodology that existed prior to TANF to determine if they are eligible for MA.
B. The following revisions to Chapter 141 clarify that persons who are ineligible for TANF as a result of new eligibility requirements may have their MA eligibility established by use of the AFDC requirements previously in place. The two areas of significant difference between the new method and old relate to the work incentive deduction and the disregard of the first $50 of support:
1. Section 141.71(a)(10) (relating to policy). This paragraph is added to cross reference the revised definition in § 151.42 (relating to definitions). The cross reference is necessary to ensure consistency with TANF eligibility requirements.
2. Section 141.71(b)(6). This paragraph is added to specify that an applicant/recipient determined ineligible for TANF due to the elimination of the $30 plus 1/3 work incentive deduction or the elimination, or both, of the $90 work expense deduction may qualify for TANF-related NMP, if otherwise eligible.
Note: The provision in the NORC published at 27 Pa.B. 1092 (at p. 1105), provided for MA eligibility for a family that lost TANF benefits solely due to the elimination of the disregard of the first $50 of support received. The subsequent resumption of the disregard of the first $50 of support nullifies the need for this provision. See Section I.H.6 of this Preamble.
3. Section 141.71(b)(6). This paragraph is renumbered § 141.71(b)(7) as a result of the addition of a new paragraph (6).
C. The following revisions relating to resources are being made to Chapter 178 (relating to resource provisions for categorically needy NMP-MA and MNO-MA).
1. Sections 178.11(4)(ii) and 178.12(5)(ii) (relating to categories of NMP-MA; and categories of MNO-MA). These subparagraphs are revised to delete the limitation that a school student who is 18 years of age is considered a minor child only if he is expected to graduate before reaching age 19. See 42 U.S.C.A. § 608(a)(1).
2. Section 178.151(c) (relating to additional resource requirements). This subsection is revised to reflect the requirement that an applicant/recipient of GA-related NMP and MNO-MA has an initial 9-month period to dispose of nonexcluded real property and additional 9-month periods to dispose of nonexcluded real property as long as good cause exists for not selling the property. See 62 P. S. § 401(a).
3. Section 178.161(12) (relating to personal property exclusions). The reference to term insurance is deleted since all life insurance is exempt from consideration as a resource when determining eligibility for GA-related NMP and MNO-MA. Section 178.161(13)--(16) is renumbered (12)--(15) respectively, as a result of this deletion. See 62 P. S. §§ 403(b) and 441.1.
4. Section 178.161(13). This paragraph, formerly § 178.161(14), is revised to clarify that all life insurance is excluded in determining eligibility for GA-related NMP and MNO-MA. See 62 P. S. §§ 403(b) and 441.1.
5. Section 178.161(16). This paragraph is added to specify that student financial assistance in the form of loans, grants and scholarships is excluded as a resource in determining eligibility for GA-related NMP and MNO-MA. See 62 P. S. § 401(a).
6. Section 178.161(17). This paragraph is added to specify that Family Savings Accounts established under the Job Enhancement Act, are exempt as a resource in determining eligibility for GA-related NMP and MNO-MA. This exemption was not included in the NORC published at 27 Pa.B. 1092 and, consequently, will not be effective retroactively. It will be effective upon publication as final.
7. Section 178.165(a) (relating to educational savings account). This subsection is revised to specify that funds withdrawn from education savings accounts shall be used to pay for educational expenses. See 62 P. S. § 408.2.
8. Section 178.165(a)(4). This paragraph is revised to clarify that only monies withdrawn to pay for educational expenses are exempt. See 62 P. S. § 408.2.
D. The following revisions related to additional income exclusions, reinstatement of the $50 child support disregard in § 181.264(16) (relating to income and benefits not counted by Federal and State statutes for the AFDC and GA categories), and a change in the earned income deductions are being made to Chapter 181:
1. Section 181.41(4)(ii) and 181.42(5)(ii) (relating to categories; and categories of MNO-MA). These subparagraphs are revised to delete the limitation that a school student who is 18 years of age is considered a minor child only if he is expected to graduate from secondary school or its equivalent before reaching age 19. See 42 U.S.C.A. § 608(a)(1).
2. Section 181.251 (relating to NMP-MA gross income test for TANF categories). This section is revised to specify that the income of a recipient will no longer be subject to the gross income eligibility limit.
3. Section 181.251(c)(3). The reference to § 181.273 (relating to income-in-kind) is deleted because income-in-kind is excluded as income in determining eligibility for TANF and GA-related NMP and MNO-MA. As a result of this deletion, § 181.251(c)(4)--(11) is renumbered (3)--(10) respectively. See 62 P. S. §§ 403(b) and 441.1.
4. Sections 181.262(1)--(4) (relating to educational loans and grants). These paragraphs are deleted. Section 181.262 now provides that all Federally-funded student financial assistance, including college work-study income, is excluded as income. In addition, all other student financial assistance provided for educational expenses is excluded as income, unless the assistance is provided solely to meet basic living needs. See 62 P. S. § 401(a).
5. Section 181.264(16). The support pass-through disregard as codified in § 181.264(16) is reinstated. The provisions of Act 58 clarify that the first $50 of current support received by the applicant/recipient group will be disregarded for TANF-related and GA-related MA eligibility purposes. See Section I.H.6 of this Preamble. See 23 Pa.C.S. § 4374(c)(1)(ii).
6. Section 181.273. This section is deleted and reserved since income-in-kind is no longer counted in determining eligibility for TANF and GA-related NMP and MNO-MA. See 62 P. S. §§ 403(b) and 441.1.
7. Section 181.287 (relating to educational assistance). This section is revised to clarify that for TANF and GA-related NMP and MNO-MA, Federally-funded student financial assistance, including college work-study income, is excluded as income. In addition, all other student financial assistance in the form of loans, grants and scholarships is excluded as income, unless the assistance is provided solely to meet basic living needs. See 62 P. S. § 401(a).
8. Section 181.311(1)--(3) (relating to deductions from earned income for the TANF categories of NMP-MA). These paragraphs are revised to reflect the change in earned income deductions for employed applicants/recipients of TANF-related NMP-MA. Each employed person whose income is used to determine eligibility and who qualifies for the earned income incentive is entitled to a continuous 50% disregard from gross earned income. Persons determined ineligible using the 50% disregard will be evaluated under the income methodology that existed prior to TANF.
9. Section 181.311(4) and (4)(i)--(iv). These provisions are deleted because the contents were incorporated into the revisions in § 181.311(2)(iii)(B)(I)--(IV).
IV. The following technical changes have also been made:
* Sections 141.41, 145.43, 151.43(d), 153.44(a)(2), (3) and (7), (b)(2)(i)(A), (c)(1), (d)(1)(i) and (v) and (2)(ii)(B) and (C) and (d)(3)(i), 165.61(b), 178.11(4)(ii), 178.12(5)(ii), 181.263 and 183.97. The acronym ''AFDC'' is replaced by the acronym ''TANF'' in these sections.
* Sections 153.44(d)(1)(i)(E), (ii), (2)(ii)(C), 165.1(a), 165.2, 165.21(a)--(c), 165.52(a)(9)--(12), (15) and (17), 165.61(a)(1) and 165.71(a). The acronym ''ETP'' is replaced by the acronym ''RESET'' in these sections.
* Sections 177.21(a)(12) and 178.165(b). The reference to P. L. 28, No. 11 is deleted and replaced with the appropriate citation for the Tuition Account Program and College Savings Bond Act.
Affected Individuals and Organizations
This proposed rulemaking will affect applicants and recipients of TANF, GA and MA.
Accomplishments/Benefits
Implementation of the Act 35 and TANF provisions promotes self-sufficiency and personal responsibility. New requirements have simplified the income and resource eligibility rules and have shifted the focus of welfare to obtaining employment and securing child support. The new income requirements have provided a greater incentive for recipients to work while allowing cash assistance to serve as a support in the transition from welfare to self-sufficiency. Revised work requirements have reinforced the focus of welfare reform to move individuals into work or work-related activities. Revised child/spousal support requirements related to temporarily waiving cooperation in establishing paternity or obtaining support, or both, based on a claim of domestic violence afford individuals an opportunity to access counseling services, safety planning and other needed services. Overall, these changes have resulted in an integrated program that meets the requirements of State and Federal law.
Fiscal Impact
Commonwealth: The estimated savings to the Commonwealth for Federal Fiscal Year (FFY) 2000 and thereafter is $204.363 million. The estimated costs to the Commonwealth for FFY 2000 are $86.778 million and thereafter, $83.740 million.
Public Sector: There will be no costs or savings incurred by the public sector.
Private Sector: There will be no costs or savings incurred by the private sector.
Paperwork Requirements
Form PA 1661, Agreement of Mutual Responsibility (AMR), was developed to serve as the written agreement between the Department and the recipient that outlines the responsibilities and obligations of both parties in relation to the recipient's plan for self-sufficiency. This form is completed at application and redetermination for each person required to sign the application for benefits. The AMR is updated as often as circumstances of the client change or when the client requests a change.
Form PA/CS 1747, Verification of Good Cause Based on Domestic Violence, was developed to serve any of three purposes: 1) as an accompaniment to acceptable verification provided by the client; 2) as authorization by written consent that a third party may provide verification/corroboration of the good cause claim; or 3) to grant good cause for up to 6 months when an applicant or recipient affirms in writing that the applicant or recipient is unable to safely obtain evidence to verify the claim of domestic violence within the established time frames. Approval or denial of the good cause claim is also recorded on the PA/CS 1747.
Effective Date
The effective date of §§ 105.1, 105.3, 105.4, 125.1, 133.23, 140.41, 140.53, 140.65, 140.81, 141.1, 141.21, 141.41, 141.42, 141.61, 141.71, 145.43, 151.42, 151.43, 153.42, 153.44, 165.1, 165.2, 165.11, 165.21, 165.22, 165.25, 165.31, 165.51, 165.52, 165.61, 165.71, 178.11, 178.12, 178.151, 178.161, 178.165, 181.41, 181.42, 181.251, 181.262, 181.263, 181.273, 181.287, 181.311, 183.23, 183.38, 183.71, 183.81, 183.94, 183.96 and 183.97, as amended by Act 35 and PRWORA, when published as final-form rulemaking in the Pennsylvania Bulletin, will be retroactive to March 3, 1997.
The effective date of the reinstatement of the support pass-through disregard found in § 183.81(29), as amended by Act 58, will be retroactive to October 1, 1998.
The effective date of § 187.27 as amended by PRWORA, will be retroactive to July 3, 2000.
The effective date of the Family Savings Account exemption found in §§ 177.21, 177.22, 177.24 and 187.21--187.27 as amended by Act 58, is the date of publication as final rulemaking in the Pennsylvania Bulletin.
Sunset Date
There is no sunset date. The regulations will be changed in accordance with changes in State and Federal law.
Public Comment Period
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed amendments to the Department of Public Welfare, Edward J. Zogby, Director, Bureau of Policy, Room 431, Health and Welfare Building, Harrisburg, PA 17120, (717) 787-4081, within 30 days after the date of publication of this notice in the Pennsylvania Bulletin. Comments received within 30-calendar days will be reviewed and considered in the preparation of the final-form regulations. Comments received after the 30-day period will be considered for any subsequent revision of these regulations.
Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (Voice Users).
Regulatory Review Act
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 2, 2001, the Department submitted a copy of these proposed amendments to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
If IRRC has any objections to any portion of the proposed amendments, it will notify the Department within 10 days of the close of the Committees comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to publication of the rulemaking, of objections raised by the Department, the General Assembly and the Governor.
FEATHER O. HOUSTOUN,
SecretaryFiscal Note: 14-472. (1) General Fund;
Cash
GrantsNew
DirectionsCounty
Assistance
Statewide(dollars in thousands) (2) Implementing Year 2000-01 is $76,827 $9,038 $913 (3) 1st Succeeding Year 2001-02 is $76,827 $6,000 $913 2nd Succeeding Year 2002-03 is $76,827 $6,000 $913 3rd Succeeding Year 2003-04 is $76,827 $6,000 $913 4th Succeeding Year 2004-05 is $76,827 $6,000 $913 5th Succeeding Year 2005-06 is $76,827 $6,000 $913
Cash
GrantsNew
DirectionsCounty
Assistance
Statewide(4) 2000-01 Program-- $294,122 $72,644 $45,664 1999-00 Program-- $311,394 $85,218 $45,157 1998-99 Program-- $259,688 $81,552 $42,371 (8) recommends adoption. Savings for Cash Grants are estimated at $204.363 million per year, which results in an overall net savings of $117.585 million in FY 2000-01 and $120.623 million annually thereafter.
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