RULES AND REGULATIONS
Title 55--PUBLIC WELFARE
DEPARTMENT OF PUBLIC WELFARE
[55 PA. CODE CHS. 105, 123, 125, 133, 140, 141, 145, 151, 153, 165, 177 178, 181, 183, 187 AND 281]
TANF Program
[32 Pa.B. 4435] The Department of Public Welfare (Department), by this order, adopts the amendments to read as set forth in Annex A. The statutory authority for this rulemaking is sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. §§ 201(2) and 403(b)) (code); the Support Law (62 P. S. §§ 1971--1977); Titles I and III of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. No. 104-193) (PRWORA), creating the Temporary Assistance for Needy Families (TANF) Program, and amending 42 U.S.C.A. §§ 601--619, 651--669(b) and 1396u-1; section 5543 of the Balanced Budget Act of 1997 (Pub. L. No. 105-33) (42 U.S.C.A. § 653(p)); section 1902(a)(10)(A) and (C) of the Social Security Act (42 U.S.C.A. § 1396a(a)(10)(A) and (C)); the Federal TANF regulations in 45 CFR 260.10--265.10; and the Domestic Relations Code, 23 Pa.C.S. §§ 4301--4381, 5103, 7101--7901 and 8101--8418.
Notice of proposed rulemaking was published at 31 Pa.B. 5875 (October 20, 2001).
Need for Amendments
The purpose of this final-form rulemaking is to codify regulations based upon landmark Federal and State welfare reform legislation that emphasizes personal responsibility, work and self-sufficiency. Specifically, TANF and the Domestic Relations Code transformed welfare from an unlimited entitlement to a temporary support system. The new regulations reflect the legislative intent to promote self-sufficiency. Changes, including more substantial work requirements and increased financial incentives for working welfare recipients, illustrate this refocus of welfare. Moreover, the Domestic Relations Code contains revised provisions requiring cooperation with the Child Support Enforcement Program (established under Title IV-D of the Social Security Act) as a condition of eligibility for cash assistance, and a new support pass-through program. Implementation of child support cooperation provisions is another key component to assure an income source for needy families seeking to achieve self-sufficiency. This final-form rulemaking provides numerous supports and incentives to assist employable individuals in their quest for financial independence. These supports and incentives include waivers of various program requirements for victims of domestic violence, a 50% earned income disregard, exclusion of educational savings accounts and special allowances, such as child care and transportation expenses, to support training, education and work.
Scope
This final-form rulemaking codifies the basic TANF program. This final-form rulemaking affects applicants and recipients of TANF assistance, General Assistance (GA) and Medical Assistance (MA). Certain provisions regarding employment and training also affect Food Stamp recipients.
Grounded in the legislative directive in the Domestic Relations Code that work is essential to self-sufficiency, this final-form rulemaking incorporates statutory work and work-related requirements and sanctions for willful noncompliance with these requirements. At the same time, the Department recognizes that some individuals have significant obstacles that hinder their ability to work. Depending on the nature and extent of these obstacles, an individual may be exempt or excused from work and work-related requirements for good cause, and receive appropriate supportive services. These requirements and benefits associated with employment and training are embodied in the Department's Road to Economic Self-Sufficiency Through Employment and Training (RESET) program, established by the Domestic Relations Code.
This final-form rulemaking also reflects changes involving good cause waivers of child support cooperation requirements for victims of domestic violence. The Department elected to adopt the Family Violence Option (FVO) (42 U.S.C.A. § 602(a)(7); 45 CFR 260.50--260.59) in 1997, and implemented many FVO provisions in a Notice of Rule Change (NORC) published at 30 Pa.B. 2957 (June 10, 2000). In doing so, the Department demonstrated a commitment to help victims of domestic violence become self-sufficient without compromising their safety.
Further, to ensure that the Department's final-form rulemaking is consistent with its policy and TANF State Plans, this final-form rulemaking includes other changes to existing regulations. For example, the Department amended various provisions to exclude educational assistance as income or a resource. In addition, the Department has incorporated its revised good cause policy for education and training in this final-form rulemaking. These and other changes required applicable amendments to regulations governing TANF-related and GA-related MA.
Finally, this final-form rulemaking incorporates the Federal 60-month time limit for TANF assistance and specifies how that time accrues. This final-form rulemaking also clarifies exceptions to the 60-month limit. The definition of ''family'' also reflects a clarification regarding application of the time limit policy for certain specified relatives. For assistance that extends beyond the 60-month limit, the Department has proposed a separate rulemaking at 32 Pa.B. 431 (January 26, 2002). The Department refers to those benefits as ''Extended TANF.'' The Department intends to publish final rulemaking for Extended TANF following adoption of this final-form rulemaking. In the interim, TANF individuals who reach the 60-month limit will continue to receive TANF assistance if they are otherwise eligible. In the following comment/response section of this Preamble, the Department's time limit policy is discussed in greater detail.
Affected Individuals, Groups and Organizations
This final-form rulemaking affects applicants and recipients of TANF, GA, Medicaid and Food Stamps.
Accomplishments/Benefits
This final-form rulemaking establishes the framework for the Department's cash assistance program. Section 403(b) of the code requires, consistent with State law, that the Department will establish rules for GA consistent with those for TANF whenever possible. With this in mind, the Department's rulemaking has a dual purpose: 1) to accomplish the legislative goals of promoting self-sufficiency through work; and 2) providing support to needy individuals to meet that goal.
By offering a comprehensive array of employment and training programs and services, the Department helps recipients prepare for, secure, retain and advance in employment. Assessments and case management, referral, specialized services and special allowances are additional benefits the Department and its employment and training contractors provide. Specialized services include those for individuals exempt from work and work-related requirements. Revised support provisions enable victims of domestic violence to receive counseling services, safety planning and waivers of cooperation requirements without jeopardizing their eligibility for cash assistance. Further, individuals engaged in education and training may be temporarily excused from work and work-related requirements to continue education or training. Individuals without appropriate care for their children or incapacitated adults in their care may also be excused from these requirements until that care is available within a reasonable distance round-trip from home.
In this final-form rulemaking, the Department also provides additional financial incentives to recipients seeking employment and economic independence. For example, income and resource regulations are simplified and more generous than existing rules. Elimination of the gross income test and the disregard of 50% of earned income provide incentives for applicants and recipients. The earned income disregard is an especially strong incentive for individuals to work because only half of a TANF recipient's earned income is counted in determining the cash assistance grant. One motor vehicle per family and educational accounts are also excluded. These financial incentives facilitate the transition to self-sufficiency and economic independence.
Paperwork Requirements
The Department developed the following new forms to support revisions to its regulations:
Form PA 1661, Agreement of Mutual Responsibility (AMR), is a written, individualized agreement between the Department and the recipient. As section 405.3 of the code (62 P. S. § 405.3) provides, the AMR sets forth the responsibilities and obligations of the recipient to achieve self-sufficiency, the time frames within which the obligations are to be completed, the penalties for failure to comply and the Department's actions to support the recipient's efforts. The AMR is based on an assessment of the individual's skills and abilities. For each individual required to sign the application for benefits, the AMR is completed at application and redetermination. In addition, the AMR is updated at other times as needed.
Form PA 1680, Participant Guide to Success, is completed as an important component of an individual's initial assessment to determine work history, job skills and ability to work. The PA 1680 guides caseworkers and recipients through the initial job search.
Form PA 1712, End of Sanction Letter, is sent to remind individuals under a 30-day or 60-day RESET sanction of the earliest date the sanction could end, and explains how the individual can end the sanction.
Form PA/CS 1747, Verification of Good Cause Based on Domestic Violence, documents a good cause claim of domestic violence. The form must be completed when one of the following circumstances exists: 1) the individual provides acceptable verification of the claim of domestic violence; 2) a third party provides verification of the claim of domestic violence; or 3) the individual affirms in writing an inability 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 noted on the PA/CS 1747.
Summary of Public Comments 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 18 public comments. Commentators included: citizens, advocates, the Minority Chairperson of the Senate Public Health and Welfare Committee, the Minority Chairperson of the House Health and Human Services Committee and the Independent Regulatory Review Commission (IRRC).
The Department has carefully reviewed and considered each comment and thanks the individuals and organizations who commented on the proposed rulemaking. The following is a summary of the comments received during the public comment period and the Department's responses.
§ 141.41(f) (redesignated as § 141.41(d) and Chapter 281). Time Limit Policy. Federal Exceptions.
Comment: Commentators expressed concern that the proposed rulemaking does not include exceptions to the Federal 60-month time limit for TANF assistance. They identified four notable exceptions to the 60-month limit: 1) TANF assistance beyond 60 months for up to 20% of the caseload based on hardship; 2) State-funded ''off-the-clock'' assistance; 3) Federally-funded nonassistance; and 4) assistance for victims of domestic violence. While they acknowledged the Department's off-the-clock (Time-Out) and nonassistance initiatives, the election of the Federal Domestic Violence Option and plan to provide TANF assistance beyond the 60-month limit (Extended TANF), commentators asked the Department to incorporate these policies (including the Department's Maximizing Participation Project (MPP)) into this final-form rulemaking. Some commentators argued that the Department's current policies for Federal time limit exceptions conflict with proposed § 141.41(f) (relating to policy). They questioned how the Department plans to reconcile this apparent conflict. They offered two alternative suggestions: 1) that the Department remove the time limit from this final-form rulemaking and implement all time limit rules and exceptions in a comprehensive rulemaking; or 2) that the Department, at a minimum, add a general reference to time limit exceptions. Commentators also suggested that the Department revise the regulations to provide for an orderly transition from TANF to GA.
One commentator pointed out that Federal law permits states to provide up to 4 months of cash benefits in certain limited circumstances that do not count as ''assistance.'' Because these benefits do not constitute ''assistance,'' they are not subject to the 60-month time limit.
Response: The Department has revised proposed § 141.41(f) (redesignated as § 141.41(d)) by adding paragraph (5) that specifies that the time limit policy does not preclude the Department from providing TANF assistance that does not count towards the 60-month limit (Time-Out) or extends beyond the 60-month limit (Extended TANF). Accordingly, there is no conflict between the regulations establishing the 60-month time limit for TANF and the benefits that are not counted towards or extends beyond the 60-month limit. In addition, the Department offers certain nonassistance benefits. Time-Out and nonassistance are discussed below. Proposed rulemaking for the Extended TANF program was published at 32 Pa.B. 431.
The Department implemented Time-Out as a new initiative with a public notice, announcing its intent to amend the TANF State Plan, at 31 Pa.B. 1639 (March 24, 2001). Time-Out is a fiscally segregated State-funded program permitted by Federal law. Assistance benefits funded solely through segregated State funds are subject to many TANF requirements such as work and child support, but are exempt from certain other requirements such as the 5-year time limit. See 42 U.S.C.A. § 609(a)(7)(B)(i).
To the extent that funding is available, and consistent with State and Federal law, families otherwise eligible for TANF benefits under Chapter 141 (relating to general eligibility provisions) may receive benefits under Time-Out. In general, the purpose of Time-Out benefits is to provide incentives to families meeting or exceeding minimum work participation requirements, or participating early in work and other employment-related activities or certain exempt volunteers. This program also provides assistance to victims of domestic violence. To encourage family members to care for minor children who are not residing with their parents, certain kinship caregivers may also benefit from the Time-Out program.
In accordance with the commentators' request that the Department clarify that Time-Out benefits ''stop the clock'' for purposes of applying the 5-year TANF time limit, the Department is incorporating the rules governing Time-Out into this final-form rulemaking. Chapter 281 (relating to time-out benefits) reflects current policy and procedures regarding the Time-Out program as it has evolved during the past year since announcement of the initiative. Chapter 281 includes a definition for ''MPP'' and provides that an exempt individual who volunteers to participate in and comply with MPP may be eligible to receive Time-Out benefits. However, the Department invites interested persons to submit written comments regarding the program for consideration for future amendments. These comments should be submitted 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 of the date of publication of this final-form rulemaking. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).
Finally, the Department has assigned a sunset date of July 1, 2004, to the Time-Out program. The Department finds that Congressional policy regarding reauthorization of the TANF program and availability of future State funding for this program are uncertain. Consequently, it is prudent to proceed cautiously in making this benefit available for a limited time period until a clear picture emerges regarding its continued viability.
As noted previously, the Department has proposed rules for the Extended TANF program for families that have a hardship or include someone who has been a victim of domestic violence. As to the commentator's question concerning the receipt of GA following TANF, the Department's proposal for GA eligibility following the exhaustion of TANF is included in the proposed rulemaking for Extended TANF. See 32 Pa.B. 431. Given the discrete nature of the Extended TANF rulemaking, the Department has not combined it with this final-form rulemaking. The Department has decided to implement this basic TANF rulemaking first. It is the essential framework upon which the Department will build.
Nor has the Department included in this rulemaking the initiatives and projects known as nonassistance. Those initiatives, announced by public notice of intent to amend the TANF State Plan, published at 30 Pa.B. 2954 (June 24, 2000), include work supports and other services to low-income families. The Department's nonassistance benefits do not include cash benefits permitted by Federal law under limited circumstances for a maximum of 4 months. Instead, 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. There is no time limit for receipt of Extended TANF.
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, 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. Nonassistance is not subject to the 60-month time limit. The 60-month time limit applies only to TANF ''assistance.'' Because this rule does not apply to nonassistance, an exception for nonassistance is unnecessary.
In addition, the Department added paragraph (7) to § 141.41(d) to clarify that § 141.41(d) will not be interpreted as requiring the Department to provide or continue to provide TANF assistance that does not count towards or extends beyond the 60-month limit.
Cash Assistance Handbook policy regarding ''TANF assistance received.''
Comment: Commentators suggested that the Department revise § 141.41 to include the policy outlined in section 105.251 of the Cash Assistance Handbook. This policy illustrates what is not considered TANF assistance received for the purpose of calculating the 60-month time limit. As the commentators noted, examples include: 1) when a recipient or budget group is under a durational sanction (and, consequently, does not receive cash assistance); 2) when TANF assistance is issued, but not received; and 3) when a recipient has fully reimbursed the Department for TANF assistance received.
Response: The Department concurs and has revised § 141.41 accordingly.
§ 141.42. Definition of ''family.''
Comment: Commentators suggested that the definition of ''family'' in § 141.42 (relating to definitions) may lead to an excessive number of children being disqualified after 60 months of TANF. They claimed that the definition would disadvantage kinship caregivers and cause the children in their care to be ineligible for TANF. In addition, they submitted that this result would be contrary to the Department's policy of allowing certain specified relatives to receive TANF only for the children in their care. They requested that the Department revise the definition of ''family'' to exclude nonparental caregivers, as well as other non-TANF participating adults.
Response: The Department concurs with the comment and has clarified the definition of ''family'' by striking the second sentence of proposed § 141.42's definition of ''family.'' Additionally, § 141.41(d)(2) has been amended to provide that, for purposes of calculating the 60-month time limit, a family does not include a specified relative who is not included in the TANF mandatory filing unit as specified in § 171.21 (relating to policy) and is seeking assistance only for the minor child. Section 141.42 is also revised to include a cross reference to § 141.41(d)(2).
§ 151.43(d)(1). Temporary absence of a minor child.
Comment: One commentator commended the Department for permitting a family to continue to receive assistance for a minor child who is temporarily absent from the home, but expected to return within 180 days. However, this commentator disagreed with the Department's decision to ''create a new period of ineligibility'' for a specified relative who fails to report a minor child's absence within 5 days of the time it becomes ''clear'' that the absence will extend beyond 180 days. The commentator claimed that the 30-day disqualification period in the regulation has no basis in Federal or State law and should be deleted. Further, the commentator stated that even if the disqualification period were authorized, disqualification should occur only when it is clear to the parent or relative that the child's absence will extend beyond 180 days and that fact is not reported. Another commentator asked the Department to identify the statutory basis for the 30-day disqualification period. The commentator also asked when it would become ''clear'' that a child's absence would extend beyond 180 days.
Response: The Department agrees that the specified relative's duty to report the child's absence should arise only after it is clear that the child's absence will extend beyond 180 days. The Department has amended § 151.43(d)(1) (relating to requirements) accordingly. However, the Department does not agree with the commentator that it lacks statutory authority to impose a 30-day period of ineligibility on specified relatives who fail to meet the reporting requirement. Nothing in the Federal law governing the temporary absence provisions prohibits a state from establishing a minimum period of ineligibility for failure to report. See 42 U.S.C.A. § 608(a)(10). Under State law, the Department is given broad authority to establish rules, regulations and standards as to eligibility for assistance and as to its nature and extent. See sections 403(b) and 432 of the code (62 P. S. §§ 403(b) and 432). Under this State law authority, the Department has determined that a 30-day period of ineligibility for failure to report the child's absence when it is clear to the specified relative that the absence will continue beyond 180 days, is both fair and reasonable as a tool to ensure compliance with the regulation. Finally, in response to the commentator's question concerning when it would become clear that the child's absence will extend beyond the 180 days, each case will depend upon its own unique factual circumstances. Caseworkers will be instructed to consider the statements of the specified relative, circumstances surrounding the child's absence, and any supporting or conflicting evidence.
RESET participation requirements §§ 125.1(f)(2)(vi) (redesignated as § 25.1(i)(6) and (8)), 133.23(a)(1)(vi)(B) (VI) (deleted on final-form), 141.41(e) (deleted on final-form), 141.61(a)(1)(xv) (deleted on final-form), 165.1(a), 165.2, 165.31(a)(2) and (b) (redesignated as § 165.31 (a)(1)), 165.61(a)(4) and (6). Maximize employment.
Comment: Commentators requested that the Department delete the phrase ''maximize employment'' from the regulations. They questioned the Department's authority to require individuals to ''maximize employment'' as a condition of eligibility for cash assistance. Specifically, they suggested that statutory requirements do not include the requirement to maximize employment. One commentator also questioned the wisdom of requiring individuals to maximize employment, suggesting that this mandate would be too burdensome to those who may have difficulty working full time (for example, parents with disabled or troubled children).
Response: The Department has deleted the phrase ''maximize employment.'' However, this deletion does not imply that the Department concurs with the commentators' position that this requirement lacks a statutory basis, would be too burdensome to some parents and does not belong in the regulation. Although the Department deleted the phrase ''maximize employment,'' it is replaced with language that parallels section 432.3(a)(iii) of the code (62 P. S. § 432.3(a)(iii)), the statutory basis of this deleted phrase. Accordingly, the Department has revised each of the regulations that contained the phrase to follow section 432.3(a)(iii) of the code, with the exception of § 165.2 (relating to definitions) (from which ''maximize employment'' is deleted as a definition). Specifically, the Department revised §§ 125.1(i)(8), 165.31(a)(2) and 165.61(a)(4) (relating to policy; RESET participation requirements; and sanctions).
This revision does not reflect a new interpretation of what the statute requires an individual to do regarding employment. With or without this revision, the individual must accept, work in and keep as many hours of employment as the individual is reasonably able to maintain. This means that an individual must maximize hours of employment, above minimum requirements, if the hours are available and the individual is reasonably able to work those hours. For example, if the individual has the opportunity to increase the individual's work hours from 20 to 30 per week, the individual must accept the additional hours, unless the individual cannot reasonably do so (such as, the 30 hours are available only during the night shift, and the individual is a single parent with no appropriate child care during that time; or, the 20-hour per week job pays the individual more than the other would). Because an individual must accept the additional hours only if the individual can reasonably do so, this requirement should not be too burdensome to those who may have difficulty working full-time. This requirement is consistent with the goal of TANF and the Domestic Relations Code that a recipient transition from dependency through increased employment to self-sufficiency as soon as practicable.
§§ 123.22, 141.41(e) (deleted on final-form), 165.1(a) and (b) and 165.2. Assessments and consultations.
Comment: Commentators suggested that § 141.41(e) of the proposed rulemaking should be revised to include a requirement that the Department assess the needs of applicants and recipients and develop plans in consultation with them for addressing additional measures needed to make the individual employable. They pointed to section 405.1 of the code (62 P. S. § 405.1) and 45 CFR 261.11 (relating to which recipients must have an assessment under TANF) as authority for this requirement. In addition, commentators stated that these assessments should be designed to direct individuals to programs which the client may not be aware of, which could enhance the individual's opportunity for work, such as an English-as-a-second-language course. Commentators suggested that undertaking such an assessment could avoid imposition of sanctions for violations under § 165.61. Also, commentators questioned when the Department undertakes assessments required by Federal and State law.
Response: The Department agrees that the previous provisions of State and Federal law require that an assessment of the individual must occur. In response to the commentators' concerns, the Department has amended § 165.1(a) (relating to general) to provide that each recipient's ability to meet RESET participation requirements will be assessed after consultation with the recipient. In addition, § 165.1(b) addresses additional measures needed to help the individual become employable. Section 165.1(b) states that the Department will provide RESET participants, to the extent necessary, with case management and approved supportive services. That subsection also provides that participants will be provided with or referred to education, training and employment-related activities designed to break the cycle of welfare dependency. To the extent it deems possible, the Department will identify and promote resources in the public and private sector that may assist participants to prepare for and obtain employment in jobs they may realistically be expected to obtain.
Next, the Department has also added a new definition of ''AMR'' in § 123.22 (relating to definitions), which specifies that an AMR is an individualized agreement with the Department, based on an assessment of the individual's skills and abilities, which sets forth the responsibilities and obligations to be undertaken by the individual to achieve self-sufficiency, the time frames within which each obligation is to be completed and the penalties for failure to comply. Further, the AMR describes services to be provided by the Department. Finally, the Department has revised § 165.2 (relating to definitions) to conform to the new definition of AMR specified in § 123.22.
With regard to the concern that assessments may avoid imposition of sanctions, the Department submits that the compliance review process in § 165.51 (relating to compliance review) includes a review of facts presented by the individual and those known to the Department. As set forth in § 165.51(c), no sanction will be imposed if the apparent noncompliance was not willful or the individual has good cause.
As to the commentator's question concerning when the assessment occurs, the Department submits that the assessment process is an ongoing one. There are a number of instances where the assessment occurs. First, in compliance with Federal regulations at 45 CFR 261.11, the Department conducts an initial assessment. That assessment uses the Form PA 1680, Participant Guide to Success, as a component of an individual's initial assessment, to determine work history, job skills and ability to work. This evaluation tool guides caseworkers and recipients through the initial job search. In addition, an individual participating in a contractor-operated employment and training program is offered a variety of assessments to determine skills, math and reading levels and employment preferences. After an assessment, the AMR will be updated as necessary.
§§ 141.41(e) (deleted on final-form), 141.61(a)(1)(xv) (deleted on final-form), 165.1, 165.31(a)(2), 165.31(b)(2), 165.61(a)(3) and (4). Requirement that individuals participate in work and work-related activities ''including those specified on the AMR.''
Comment: Commentators questioned the Department's authority to require individuals to participate in work or work-related activities beyond those specified on the AMR. One commentator suggested that section 405.1(a.2)(4) of the code states that all work-related activity shall be incorporated into the AMR.
Response: Individuals are required to comply with applicable statutory and regulatory requirements concerning work and work-related activities, even if they are not specified on the individual's AMR. The AMR does not recite each eligibility requirement in the code. As §§ 123.22 and 165.2 specify, the AMR is an individualized agreement which specifies the activities in which the individual has agreed to participate, as well as the supportive services the Department will provide. The fact that the individual has agreed on an AMR to do certain activities does not obviate his responsibility to comply with applicable statutory requirements, including those which, such as, require an individual to seek, accept and maintain employment. Thus, for example, an individual's AMR might provide for him to meet the work-related activity requirement through an unpaid activity such as community service. Subsequent to the completion of the AMR, if the county assistance office (CAO) refers the individual to subsidized employment or work experience, the individual is required to seek and accept the referral to that paid employment. This is consistent with sections 405.1(a.2)(1) and 432.3(a)(ii) and (iii) of the code. While section 405.1(a.2)(4) of the code provides that the AMR shall include the type of work-related activities that will be used to meet the individual's ongoing work-related activity requirement, nothing in that or any other section of the code provides that the AMR mitigates the statutory obligation to seek and accept employment.
§§ 125.1(i)(7), 141.41(e) (deleted on final-form), 141.61(a)(1)(xv) (deleted on final-form), 165.1(a), 165.31(b)(2), 165.31(c)(2), 165.61(a)(3) and (4). Requiring more than 20 hours of participation.
Comment: Commentators questioned whether individuals working at least 20-hours-per week must also participate in a work-related activity. At least one commentator suggested that the Department specify that these individuals are not required to participate in a work-related activity.
Response: Not all individuals working 20 hours-per-week will be required to participate in a work-related activity, but working at least 20 hours per week does not excuse an individual from participating in additional activities agreed to on the individual's AMR. The AMR is individualized to support the goal of moving the individual to self-sufficiency. For any individual, this may or may not include a work-related activity in addition to 20 hours per week of work. Many of the Department's employment and training programs consist of at least 20 hours per week of work plus 10 hours of work-related activity, for example, job training. When an individual agrees on an AMR to participate in a specific work-related activity, including a contracted program, that individual is required to continue the activity as set forth on the AMR, unless and until the AMR is revised. Of course, if the individual is exempt from RESET or demonstrates good cause for not complying with a work or work-related requirement stated on the AMR, that individual is not sanctioned.
§§ 165.2, 165.21(c)(2), 165.25(2) and 165.52(a)(3). Appropriate child care and reasonable distance.
Comment: Commentators requested that the Department revise §§ 165.21(c)(2) and 165.25(2) (relating to exemptions for RESET participation requirements; and RESET participation requirements following an exemption) to allow an individual to be exempt from RESET participation requirements if appropriate child care is not available within a reasonable distance from the individual's home or work site. They claimed that the proposed regulation is inconsistent with 42 U.S.C.A. § 607(e)(2)(A), which prohibits a state from sanctioning an individual if appropriate child care within a reasonable distance from the individual's home or work site is unavailable. They also noted that 45 CFR 261.56(b)(2)(ii) (relating to what happens if a parent cannot obtain needed child care) requires that the Department define the terms ''appropriate'' and ''reasonable distance.''
Response: The Department agrees that an individual is not subject to sanction for failure to meet a work (or work-related activity) requirement where appropriate child care is not available within a reasonable distance from the individual's home or work site. The Department has amended § 165.52(a)(3) (relating to good cause) to specify that individuals may establish good cause in this situation. The Department disagrees with the suggestion that §§ 165.21(c)(2) and 165.25(2) should be revised. The provisions of 42 U.S.C.A. § 607(e)(2)(A) do not state that an individual unable to find appropriate child care within a reasonable distance from work or home is exempt from work requirements. It simply provides that an individual may not be sanctioned under these circumstances. Under revised § 165.52(c)(3), an individual may establish good cause for not participating in a specific activity or accepting a specific job when appropriate child care is not available within a reasonable distance from the individual's home, as defined in § 165.2. However, the individual is not exempt from work and work-related requirements. In addition, the Department has added definitions of ''appropriate child care'' and ''reasonable distance'' to § 165.2. These definitions are consistent with the definitions of ''appropriate'' and ''reasonable distance'' in the Pennsylvania State Plan for Child Care and Development Fund Services (10/1/01--9/30/03), Part 4.4.
§ 165.22. Exemptions.
Comment: One commentator questioned why the Department deleted the provision that excused an individual from the verification requirement when it is ''clear'' that the individual is exempt. For example, the commentator questioned why a ''clearly mentally ill'' individual must verify his condition.
Response: The Department deleted this provision because section 405.1(a.3)(1) of the code requires verification by a physician or psychologist for exemptions based on physical or mental disability.
§§ 165.22(c) and 165.25. Notification and preparation time after an exemption ends.
Comment: Commentators suggested that the Department revise § 165.25 by reorganizing it and stating that a person whose exemption is ending will be notified in writing of that fact and given an adequate opportunity to locate and prepare for a work or work-related activity.
Response: The Department has revised § 165.22(c) (relating to verification of exemption) in lieu of § 165.25 by adding the following language: ''The CAO will notify the exempt individual in writing when the period of exemption is due to end. The individual will be given an opportunity to provide new or additional verification to continue the exemption . . . The individual will be given the opportunity to prepare to comply with RESET participation requirements under § 165.31 (relating to RESET participation requirements).''
§ 165.31. Special allowances.
Comment: One commentator commended the Department for the practice of supporting education and training by offering special allowances when a person engages in education and training, even if it is not a mandated work activity. However, commentators suggested that § 165.31 does not clearly state whether special allowances for supportive services are available for all RESET participants, including exempt individuals who volunteer to participate in education and training programs and those who pursue education in addition to other work activities. They suggested that the Department revise § 165.31 to reflect the Department's current practice to approve special allowances for those individuals. Also, commentators questioned whether the AMR will include a description of the individual's special allowances.
Response: To clarify who is eligible for special allowances for supportive services, the Department has amended § 165.41 (relating to eligibility for special allowances and supportive services) instead of § 165.31. Section 165.41(a) provides that a cash assistance or Food Stamp recipient may receive certain special allowances. Section 165.41(b) provides that for cash assistance recipients, eligibility for special allowances for supportive services depends on the following: 1) eligibility for cash assistance; 2) participation in RESET, unless exempt; and 3) having an approved AMR. Subsection (b) also provides that an individual seeking only Food Stamps must comply with an approved the Employment Development Plan (EDP) to qualify for a special allowance for supportive services. Subsection (c) has been clarified to provide that supportive services do not include transportation to secondary education (or an equivalent level of vocational or technical training), except for a pregnant female or custodial parent, whose circumstances require additional supports. Finally, subsection (d) clarifies that the CAO will inform the individual, in writing and orally, of the availability of special allowances at application, reapplication and whenever the AMR or EDP is developed or revised. With these revisions, § 165.41 clarifies that individuals who participate in employment and training activities, whether voluntary or mandatory, are eligible to receive special allowances for supportive services if they have an approved AMR reflecting these activities.
As to the question concerning whether the AMR will include a description of the individual's special allowances, the answer is yes. Section 405.3(a) of code provides that the AMR will include a description of the actions that the Department will take to support the individual's efforts, which includes enumeration of special allowances that will be provided to the individual. Also, in §§ 123.22 and 165.2, the definition of ''AMR'' specifies that the AMR ''describes the services to be provided by the Department.''
§ 165.31(c)(1) (redesignated as § 165.31(b)(3)). Length of the initial job search.
Comment: Commentators asked the Department to revise the regulations by limiting the initial job search to 8 weeks for those who are not working at least 20 hours per week.
Response: The Department agrees that the initial job search is generally limited to 8 weeks, as § 165.31(b)(3) clearly specifies. However, the Department has not revised the regulations as requested. For the initial job search, an individual may choose to participate in a contractor-directed job search, which combines job search and classroom instruction in the necessary skills and preparation required to conduct a successful job search. Following an initial 8 weeks of classroom instruction, the individual participates in 90 or 120 days of contractor-assisted job search and literacy remediation, if needed. In this case, the individual's AMR would reflect this more intensive and expansive job search.
§ 165.31(c)(2) (redesignated as § 165.31(b)(4)). List of work-related activities.
Comment: One commentator suggested that the Department revise § 165.31(c)(2) (redesignated as § 165.31(b)(4) in final-form rulemaking) to include the limitations in section 402 of the code (62 P. S. § 402) for work-related activities such as general education. For example, the commentator recommended that the Department revise this provision to include the statutory condition that an 18-22 year old must maintain satisfactory progress for general education to count as a work-related activity. The commentator also suggested that, for clarity, proposed paragraphs (2)--(4) (redesignated as paragraphs (4)--(6) on final-form rulemaking) should be consolidated into one paragraph.
Response: The Department agrees with the commentator's suggestion that the list of work-related activities in § 165.31 should include the limitations in section 402 of the code, and has revised the regulations accordingly. The Department also revised § 165.61 (regarding sanctions) to be consistent with the provisions of revised § 165.31. Finally, the Department did not consolidate proposed § 165.31(c)(2)--(4). In a subsequent discussion with the Department regarding this suggestion, the commentator agreed that consolidating these paragraphs would not improve clarity, and could have the opposite effect.
§ 165.31(c), (c)(2), (c)(3), (d)(1) (e) (redesignated as § 165.31(b), (b)(4), (b)(5), (c)(1) and (d)) (e) (redesignated as (d)) and (f)(4) (deleted on final-form). ''Approved'' and prescribed work and work-related activities.
Comment: Commentators questioned the use of the word ''approved'' in the foregoing provisions. They stated that the Domestic Relations Code does not use the word ''approved.'' They questioned what authority the Department has to approve or prescribe work or work-related activities on the AMR. They also suggested that if ''approved'' refers to activities on the AMR, language should be added to the regulation to clearly state the activity must be in the individual's AMR. If not, they questioned what review process the Department envisions for these work activities and how a requirement that these activities be approved is consistent with the statute.
Response: The Department has authority under section 405 of the code (62 P. S. § 405) and sections 405.1(a.2)(4), 405.3(a) and 432.3(a)(ii) and (iii) of the code to prescribe appropriate work and work-related activities and additional measures that may be necessary for an individual to seek, accept and maintain employment, and may establish rules and standards for accomplishing these goals. For example, in accordance with section 432.3(a)(ii) and (iii) of the code, the Department is explicitly authorized to refer an individual to a work or work-related activity, and to prescribe the time and manner in which to apply for work. The Department also approves activities that an individual selects or initiates, to the extent that the activities are consistent with RESET requirements.
Approved activities are set forth in the AMR. The Department has revised § 125.1 by adding subsection (j) to specify that. Although the Department has left the words ''approved'' and ''approval'' intact in most of the regulations cited in the comment, it has deleted the word ''approved'' in §§ 165.1(a) and 165.31(b)(2), where the use of the word ''approved'' was redundant. Because the AMR must be approved by the Department, it was redundant to refer to activities as being ''approved'' on the AMR.
§ 165.31(c)(3), (c)(4), (d), (d)(2), (f) (redesignated as § 165.31(b)(5), (b)(6), (c), (c)(2) and (e)), (f)(4) and (f)(5) (deleted on final-form). Education and training.
Comment: Commentators suggested that the Department incorporate the Department's current good cause policy regarding education and training in the regulations.
Response: The Department agrees with the commentators and has incorporated its good cause policy regarding education and training in the regulations. In addition, the Department has revised this policy to include individuals who have received less than 24 months of cash assistance. Rather than revising the sections suggested by the commentators, however, the Department has revised §§ 165.52 (regarding good cause), 165.31(b)(5) (regarding RESET participation requirements during the first 24 months of assistance) and 165.31(c)(2) (regarding requirements that apply after the first 24 months), the relevant provisions for this change.
Comment: Commentators requested that the Department clarify that an individual may continue to participate in education and training if he combines it with another work-related activity. They also suggested that the Department allow education and training to count as a work-related activity beyond 12 months in certain circumstances, for example, for disabled individuals or those with limited English proficiency (LEP).
Response: The Department has revised § 165.31(b)(5) and (c)(2) to clarify that an individual may continue education or training beyond 12 months, but not as a work-related activity. Under section 405.1(a.2)(5) of the code, education or training may count as a work-related activity for a maximum of 12 months. After 12 months of education or training, an individual may continue to pursue education and training, but shall also fulfill applicable RESET participation requirements, unless the individual establishes good cause under § 165.52.
Likewise, an individual who is disabled or has LEP may continue his education or training after 12 months, but it does not count as a work-related activity. However, a disabled individual may be exempt from or have good cause for not complying with RESET requirements, depending on the nature and extent of the disability. Similarly, an individual with LEP may establish good cause for not complying with RESET requirements, if the individual needs more time to overcome this barrier to self-sufficiency (for example, by completing an English-as-a-Second Language course).
Comment: Commentators suggested that the Department revise § 165.31(f) (redesignated as § 165.31(e) in this final-form rulemaking). They questioned the need for paragraphs (1)--(3), and suggested that paragraphs (4) and (5) be renumbered or deleted as unnecessary because they relate to requirements in other subsections.
Response: The Department agrees in part and has deleted paragraphs (1) and (3)--(5). However, the text of paragraph (2) will remain intact. This paragraph specifies that, for self-initiated training to count as a work-related activity, an individual must be making satisfactory progress, as defined by the institution. This condition is based on section 402 of the code, which applies the requirement specifically to general education for individuals 18-22 years of age. Although paragraph (2) is not limited to general education, the Department has elected to leave this condition intact. Consistent with sections 405, 405.1, 405.3 and 432.3 of the code, the Department is clearly authorized to require individuals to pursue activities that promote self-sufficiency. Unsatisfactory performance in an educational or training program hinders this goal.
Paragraphs (4) and (5), which clarify that an individual may continue to pursue education after the period during which education can count as a work-related activity, were relocated. Paragraph (4), applicable in the first 24 months an individual receives assistance, was relocated to § 165.31(b)(5). Paragraph (5), applicable after 24 months, was relocated to § 165.31(c)(2).
Finally, because paragraph (3) is deleted from this subsection, the Department has revised § 165.41(c), although this revision was not proposed. This revision is consistent with the Department's policy that individuals pursuing secondary education or an equivalent level of vocational or technical training are ineligible for supportive services, except for pregnant females and custodial parents.
§§ 141.41(e) (deleted in final-form), 165.31(d) (redesignated as § 165.31(c)) and 165.51. Review of eligibility verses condition of eligibility.
Comment: Commentators suggested that section 405.1(a.2)(6) of the code requires that after 24 months of cash assistance, individuals not participating in one or more work activities for at least 20 hours per week are subject only to a review of eligibility. They advised that the minimum 20-hour work requirement should not be stated as a condition of eligibility.
Response: The Department agrees that after 24 months of cash assistance, section 405.1(a.2)(6) of the code requires a review of eligibility for noncompliance with the minimum 20-hour weekly work requirement. However, the Department does not agree that a review of eligibility is all that is required as suggested by the commentators. Section 165.31 is entirely consistent with section 405.1(a.2)(6) of the code, which provides that an individual who has received assistance for 24 months must participate for an average of at least 20 hours per week in one or more of the activities enumerated in that paragraph. Accordingly, the Department has not revised § 165.31 as requested. Although the minimum 20-hour per week work requirement is stated as a condition of eligibility, only those who willfully fail, without good cause, to comply with this condition of eligibility are subject to sanction.
§ 165.31(d)(1) (redesignated as § 165.31(c)(1)). Work study.
Comment: One commentator suggested that the Department add work study to the list of activities in § 165.31(d)(1) (redesignated as § 165.31(c)(1) in this final-form rulemaking). The commentator explained that this revision would codify the Department's current policy regarding work study.
Response: Because work study is an example of subsidized employment, which is already listed in § 165.31(c)(1) (as redesignated), the Department does not think it is necessary to revise § 165.31(c) as suggested.
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