[32 Pa.B. 4435]
[Continued from previous Web Page] §§ 165.31(d)(1) (redesignated as § 165.31(c)(1)) and 165.61(a)(10)(i) (redesignated as § 165.61(a)(9)(i)). Unsubsidized employment.
Comment: One commentator asked, ''What is unsubsidized employment?''
Response: Unsubsidized employment is paid work for which no public or private entity subsidizes the wages.
§ 165.31(d)(2) (redesignated as § 165.31(c)(2)). Requirements that apply after 24 months.
Comment: One commentator suggested this paragraph should reference the sanctions and compliance review process.
Response: The Department agrees with the substance of the comment. Instead of locating the reference in subsection (c), it has been placed in subsection (a). Subsection (a) applies all the time, not just after 24 months.
§ 165.51. Compliance review.
Comment: Commentators questioned the change in § 165.51 from conciliation to compliance review, suggesting that the former conciliation process affords greater protection against sanctions than the compliance review process. They also claimed that the change does not reflect existing policy for conciliation and the changes proposed by the Department are not mandated by statute. One commentator also suggested that § 165.51 is inconsistent with the Department's ''Community Connections'' program.
Further, commentators suggested that the regulations should clearly state that caseworkers will provide sufficient notice of the review and schedule it at a mutually agreeable time, in person or by phone, and document the session. One commentator questioned what would happen if the individual has a conflict with the time chosen for the compliance review. The commentator also questioned how much notice must be given to the individual in advance of the compliance review. Finally, commentators recommended that the Department add cross references to Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings) and § 165.52.
Response: The compliance review process replaces the existing conciliation process. The Department has substantially revised § 165.51. In doing so, the Department has adopted many of the commentators' suggestions and has responded to their questions. For example, § 165.51 now includes the commentators' requested cross references to § 165.52 and § 275.1 (relating to policy) and specifies that the caseworker will inform the individual of the need for a compliance review. Although the regulation does not specify a time frame for providing advance notice, this concern is addressed. Revised § 165.51 provides that in scheduling the compliance review, the caseworker will reasonably take into account the individual's work schedule, family and school obligations. In addition, the review may be conducted by telephone or in person, according to the individual's preference. The regulation now specifies that the caseworker will review the facts, including those presented by the individual and those facts already known to the Department and document the results of the review.
Moreover, revised § 165.51 contains a special provision for individuals with disabilities. This provision states that the caseworker will consider an individual's disability during the compliance review period. This provision also states that if the individual did not comply with RESET participation requirements due to disability, no sanction is imposed.
As revised, § 165.51 underscores that the goal of RESET is to assist the individual in becoming employable and self-sufficient. Section 165.51 now illustrates that at each stage of the compliance review, the individual is an important participant. The compliance review is a multi-step process that provides an opportunity for the individual and caseworker to engage in a dialogue, together seeking to determine whether and why the recipient did not meet RESET participation requirements, and to address any obstacles to compliance.
Section 165.51 is also consistent with the Department's ''Community Connections'' outreach program. The purpose of Community Connections is simply to remind individuals of program opportunities and requirements. Community Connections does not obviate the compliance review process; it supplements it. While the components of the compliance review process are not specifically mandated by statute, the compliance review process is necessary to effectuate compliance with RESET provisions.
§ 165.52. Good cause.
Comment: One commentator requested that the Department revise § 165.52 to include as good cause for not meeting RESET participation requirements certain characteristics that were exemptions under the AFDC program. The commentator specifically referred to former exemptions for individuals 60 years of age or older, caretakers for an incapacitated child or adult in the household, individuals in treatment for a drug or alcohol addiction and pregnant women.
Response: The Department has decided not to change § 165.52 as requested. The characteristics cited by the commentator do not form the basis for exemptions from RESET under section 405.1(a.3) of the code, but can be bases for good cause for not participating in a RESET activity. Good cause is determined by individual circumstances and their relationship to a specific RESET activity. In light of that, § 165.52 appropriately does not enumerate every circumstance, status or event that may constitute good cause. The characteristics cited by the commentator may constitute good cause under § 165.52. For example, an individual who is the caretaker for an incapacitated adult or child is not exempt from RESET but can establish good cause for not participating in a specific RESET activity under § 165.52(a)(3) if appropriate care for that adult or child is not available. Likewise, an individual who cannot participate in a specific activity because of reasons related to age or pregnancy can establish good cause under § 165.52(a)(1). Simply being in a treatment program for drug or alcohol addiction does not excuse (through exemption or good cause) participation in RESET, but if the treatment program conflicts with a RESET activity, the individual may have good cause for not participating in the conflicting RESET activity.
§ 165.61(a). Grounds for sanction.
Comment: The commentator objected to the list of sanctions in § 165.61(a), and maintained that there are only three grounds for sanction under section 432.3(a) of the code. The commentator specifically objected to the provisions in subsection (a)(6), which state that a sanction may be imposed where the individual fails to ''maximize employment.'' Objection was also made to subsection (a)(12) (redesignated as subsection (a)(11)), which provides that sanction may be authorized where the individual ''fails to apply for work at the time and in the manner the Department may prescribe.'' The commentator submitted that the Department lacks statutory authority for this requirement.
The commentator also objected to the fact that statutory protections such as only permitting a sanction for failure to work only when the recipient is ''able to engage'' in the assigned work, as required by section 432.3(a)(iii) of the code, were not included. Additionally, the commentator objected to § 165.61(a)(9) (redesignated as subsection (a)(8)), which calls for a sanction when an individual ''fails to participate in one of the following work activities during the first 24 months'' without any requirement that the person be referred to a program. By doing so, it is suggested that the Department has circumvented the consultative process in section 405.1(a.2), (4) and (5) of the code.
Response: First, with regard to the commentator's objection that the Department lacks statutory authority to impose sanctions beyond the three sanctions listed in section 432.3(a) of the code, the Department disagrees. The Department's list is based upon not only section 432.3 of the code, but section 405.1 of the code as well. In addition, sections 405, 405.3(f)(1) and (4) of the code, together with sections 405.1 and 432.3 of the code authorize the Department to establish rules regarding grounds for sanction for noncompliance with RESET participation requirements, including requirements specified on an individual's AMR. Nevertheless, as a result of the Department's deletion of the term ''maximize employment'' from other sections of the regulation as noted elsewhere in this Preamble, the Department has deleted failure to ''maximize employment'' as a basis for sanction.
Although the Department deleted failure to maximize employment from § 165.61(a)(6), it revised subsection (a)(4) with language that parallels section 432.3(a)(iii) of the code, the statutory basis of the deleted phrase. As noted earlier, this revision does not reflect a new interpretation of what the statute requires an individual to do regarding employment. An individual is nonetheless required to maximize employment, above minimum requirements, to the extent that he is reasonably able to do so. Willful failure to do so, without good cause, is a basis for sanction under revised § 165.61(a)(4). Revised subsection (a)(4) also addresses the commentator's concern that a sanction should not be imposed unless the individual is ''able to engage'' in the work. As subsection (a)(4) now provides, a sanction will be imposed on an individual who willfully, and without good cause, fails to accept referral to, work in or retain employment in which the individual is able to engage. As to the objection to subsection (a)(11), the specific statutory authority for that requirement is found in section 432.3(ii) of the code.
As to the commentator's concern that there has been a short circuit of the consultative process by not clearly specifying that the individual must be referred to the work activity prior to authorizing imposition of the sanction in subsection (a)(8), the Department disagrees. The Department maintains that the consultative process is ongoing. It begins at the application and when a RESET exemption ends and continues if the initial job search does not result in employment. In addition, there is consultation at each redetermination, and as necessary, the AMR is revised. During the first 24 months, this consultation includes the caseworker providing information on and referral to specific work-related activities.
Before a sanction is imposed, the individual has an opportunity to participate in an interactive compliance review, as specified in § 165.51. During the compliance review, the individual may provide information regarding apparent noncompliance with any RESET requirements, including referral to work-related activities.
§ 165.61(d). Monetary sanction in lieu of the durational sanction.
Comment: Commentators requested that the Department revise § 165.61(d) by providing for a monetary sanction in lieu of the durational sanction for individuals who reduce earnings after 24 months of cash assistance. They asked the Department to delete the phrase ''during the first 24 months that assistance is received.''
Response: Under section 432.3(b) of the code, the Department may either reduce the cash grant or apply a durational sanction, or both, for voluntary reduction of earnings by not fulfilling the minimum 20 hour per week work requirement. The Department has elected to apply the durational sanction after the first 24 months to comport with the heightened work-hour requirements for individuals who have received 24 months of cash assistance. The Department has retained the proposed policy reducing the assistance grant in lieu of the durational sanction in the first 24 months.
§ 165.71(a) and (b). Notification.
Comment: Commentators commended the Department for providing a reminder to individuals under sanction that the sanction is ending. Commentators suggested that the Department revise § 165.71 (relating to notification) by stating that the CAO will send notice to an individual when the minimum durational sanction is ending. One commentator suggested that the Department specify that the caseworker will notify the individual 5 days before the minimum durational period ends.
Response: The Department has revised § 165.71(b). The Department will send a written reminder 10 days prior to the end of the minimum sanction period. The Department concluded that 5 days was too short a period of time to provide a meaningful reminder.
§§ 123.22 and 141.41(e) (deleted on final-form), 141.41(f) (redesignated as § 141.41(d)), 165.1(a), 165.2, 165.22, 165.31, 165.51, 165.52 and 281.3(a)(3). Compliance with the Americans with Disabilities Act (ADA).
Comment: Commentators suggested that the regulations do not comport with ADA requirements in five categories: assessments, verification of work exemptions for individuals who are ''clearly exempt,'' the 12-month limitation on education and training, the compliance review and 60-month TANF time limit. Specifically, commentators claimed that the regulations do not comport with the ADA as follows: 1) they do not provide for assessments; 2) they should provide that individuals who are ''clearly exempt'' should not be required to verify that they are exempt from work requirements; 3) they should modify the 12-month limitation on education as a work activity for disabled individuals who need more time to obtain the full value of an educational program; 4) regarding the compliance review process, they afford less protection against sanctions for disabled individuals than the former conciliation process; and 5) they should modify the 60-month TANF time limit for disabled individuals who may need more time to become self-sufficient.
Response:
§§ 123.22, 141.41(e) (deleted on final-form), 165.1(a), 165.2 and 165.31. Assessments.
The Department has addressed the concern that the regulations do not provide for assessments by adding a definition of AMR in § 123.22 and revising the definition in § 165.2 to reflect the fact that an AMR is based on an assessment of an individual's skills and abilities. The Department has also revised § 165.1(a) to specify that an individual's ability to meet RESET participation requirements will be assessed after consultation with the recipient. Although one commentator cited proposed § 141.41(e) (deleted on final-form rulemaking) and § 165.31 as the relevant sections for assessments, the Department does not agree. Section 165.31 involves only RESET participation requirements.
As previously explained, the assessment process is ongoing, occurring at numerous stages, for different purposes and in various contexts. As also previously noted, the Department does not specify details of the ongoing assessment process in the regulations. The primary reason for not regulating assessments beyond the scope of the AMR is that the nature and extent of additional assessments depend on an individual's circumstances and needs. One purpose of the assessment process is to identify obstacles, including disabilities, that may hinder self-sufficiency. Another purpose of the assessment process is to identify strengths and abilities that may facilitate self-sufficiency.
§ 165.22. Verification for ''clearly exempt.''
The Department does not agree that the regulations should be revised to excuse ''clearly exempt'' disabled individuals from verification requirements in § 165.21(c)(1). For individuals seeking an exemption on the basis of disability, a physician or psychologist must verify two things: 1) that the disability exists; and 2) that the disability precludes the individual from any form of employment or work-related activity. See section 405.1(a.3)(1) of the code. The requirement of physician or psychologist verification protects disabled individuals from the erroneous judgments of nonexperts. Section 165.22(a) provides further protection for disabled individuals as follows: ''The CAO may assist an individual in obtaining verification when help is needed.'' This subsection clearly benefits disabled individuals and others who may need help in obtaining acceptable verification for an exemption. The Department submits that § 165.22 comports with ADA requirements.
§ 165.31(c)(3) (redesignated as § 165.31(b)(5)). Twelve-month limitation on education and training as a work-related activity.
The 12-month limitation on counting education and training as meeting the RESET participation requirement is mandated by statute. See section 405.1(a.2)(5) of the code. The Department has revised § 165.52 to reflect current good cause policy regarding education and training. The Department submits that this revision for education and training affords sufficient ADA protection for disabled individuals pursuing education and training activities, by providing additional time to continue those activities.
§ 165.51. Compliance review.
The Department does not agree that the compliance review process in § 165.51 affords less protection against sanctions for disabled individuals than the former conciliation process. As previously noted, the Department has made numerous revisions to § 165.51, including the addition of cross references to §§ 165.52 and 275.1. One significant revision is the addition of subsection (e), a special provision for disabled individuals. Subsection (e) specifies that if a caseworker knows that an individual has a disability, the caseworker considers this fact, as well as those presented by the individual. If the facts reveal that the individual did not comply with RESET participation requirements due to disability, no sanction is imposed. In that instance, the caseworker will develop a new AMR to address the disability, and, if applicable, other obstacles to self-sufficiency.
The compliance review offers individuals sufficient notice and opportunity to be heard, including due process and ADA protections. The caseworker will be flexible in scheduling the compliance review, considering the individual's work, school and family obligations and accommodating a request for a telephone or in-person session, as revised § 165.51(b) provides.
§ 141.41(f) (redesignated as § 141.41(d)). Modification to the 60-month TANF time limit.
As previously explained, the Department has revised § 141.41(d) to reflect the Department's authority to provide TANF assistance that does not count toward or extends beyond the 60-month TANF time limit. Under this revision, the Department's decision to offer assistance that does not count toward or extends beyond the 60-month limit in part reflects a commitment to further strengthen efforts to help individuals with disabilities overcome obstacles to self-sufficiency.
First, Time-Out benefits, available under Chapter 281, do not count toward the 60-month limit. An individual who is exempt from participation in RESET because of a physical or mental disability that precludes employment is eligible to receive Time-Out under § 281.3(a)(3) (relating to eligibility requirements) if the individual voluntarily participates in MPP. MPP helps individuals address medical conditions, functional limitations or good cause situations that are barriers to self-sufficiency. Second, the Extended TANF program provides assistance beyond 60 months for an individual with a disability or other barrier to self-sufficiency. Extended TANF requires participation in MPP for these individuals.
Good cause for not cooperating in obtaining support or establishing paternity § 187.25(a) and (b). Oral notification of right to claim good cause.
Comment: Commentators requested that the Department revise § 187.25(a) (relating to notification to the applicant or recipient) to include detailed oral notification of an individual's right to claim good cause for not cooperating in obtaining support or establishing paternity.
Response: The Department concurs, and has revised this section (and § 187.25(b)) accordingly.
§ 187.27(b) and (c). Proof of good cause--use of the terms ''corroboration'' and ''corroborative evidence.''
Comment: Commentators suggested that the Department replace ''corroboration'' and ''corroborative evidence'' with ''verification.''
Response: The Department concurs, and has revised § 187.27(b) and (c) (relating to waiver of cooperation for good cause) as requested. In addition, the Department has replaced ''corroborated'' with ''verified.''
§ 187.27(b)(1)(iv). Verification of good cause--medical records.
Comment: Commentators suggested that § 187.27(b)(1)(iv) contains burdensome verification requirements and does not comport with other verification requirements for victims of domestic violence. They suggested that the Department delete this subparagraph.
Response: The Department has considered this comment and does not agree that verification requirements in this subparagraph are burdensome. This subparagraph is simply permissive; a victim of domestic violence is not required to produce medical records to verify her claim. Section 187.27(b)(1)(iv) applies to an individual who wishes to use medical records to verify a good cause claim, whether she is claiming good cause as a victim of domestic violence, incest or rape. Therefore, this provision is not inconsistent with other verification requirements for victims of domestic violence.
§ 187.27(b)(1)(v). Scope of good cause circumstances.
Comment: Commentators suggested that § 187.27(b)(1)(v) does not recite the full scope of good cause circumstances set forth in § 187.27(a)(4) (relocated to § 187.22 (relating to definitions) in this final-form rulemaking). They also asked the Department to delete the phrase ''indicate that the putative father, noncustodial parent or absent spouse might inflict harm on the individual or family member as specified under subsection (a)(4)'' from § 187.27(b)(1)(v), and replace it with ''verify domestic violence as defined at subsection (a)(4).''
Response: The Department does not agree that § 187.27(b)(1)(v) should recite examples of good cause. This provision involves only verification of good cause. However, the Department has revised this provision by replacing the quoted language as suggested, and cross referencing § 187.22, the relevant provision.
§ 187.27(b)(1)(vi) and (2). Prohibition on contacting abuser.
Comment: Commentators suggested that the Department relocate the following sentence in § 187.27(b)(1)(vi): ''The CAO may not contact the putative father or noncustodial parent to verify good cause in a domestic violence situation.'' They suggested moving the sentence to § 187.27(b)(2), which describes the CAO's role in assisting with verification.
Response: The Department concurs, and has moved this sentence to § 187.27(b)(2). In addition, the Department has revised the sentence as follows: ''The CAO may not contact the putative father or noncustodial parent to verify good cause based on a claim of domestic violence.''
§ 187.27(b)(1)(vii). Person completing good cause waiver form.
Comment: Commentators suggested that the Department revise § 187.27(b)(1)(vii) to clarify that the CAO will complete the Verification of Good Cause Based on Domestic Violence Form with the individual.
Response: The Department concurs, and has revised this section as recommended.
§§ 187.27(c)(3) and 187.23(d)(4). Expiration of waivers.
Comment: Commentators suggested that the Department revise § 187.23(d)(4) (relating to requirements) and § 187.27(c)(3) to specify that a good cause waiver may last as long as necessary, subject to a review every 6 months. They questioned the wisdom of establishing an expiration date for a good cause waiver.
Response: The Department concurs and has deleted reference to expiration of the waiver in § 187.27(c)(3), and in § 187.23(d)(4) the Department clarified that the good cause waiver may last as long as the good cause exists.
§ 187.27(c)(4). Review of good cause.
Comment: Commentators suggested that the Department revise § 187.27(c)(4) to clarify that a good cause waiver will not be reviewed more often than every 6 months. They recommended that the Department delete the last sentence in § 187.27(c)(4), which specifies that the review may be earlier if the circumstances warranting good cause change or the CAO granted the good cause waiver for a shorter period.
Response: The Department has revised this section as recommended. However, this revision does not preclude the Department from reviewing the good cause waiver before the usual 6-month review period. For example, if the CAO authorizes assistance for a mother and her children in February, but she receives a good cause waiver in May, the CAO would likely review good cause at her regular redetermination in August. Thereafter, the CAO would review good cause every 6 months, at each redetermination.
§ 187.27(c)(4)(i). Verification requirements after initial good cause waiver.
Comment: Commentators suggested that § 187.27(c) (4)(i) is unduly burdensome for victims of domestic violence. They suggested that an individual with a good cause waiver based on documentation or third-party statements should not be required to submit additional verification for future waivers, if her circumstances have not changed. They requested that the Department revise the provision by deleting the requirement that these individuals submit a Verification of Good Cause Based on Domestic Violence Form completed by a person trained in domestic violence.
Response: The Department concurs, and has revised this section as recommended.
§§ 187.23(b)(1)(i), 187.27(b)(1)(vii)(B), (C), (3) and (c)(4)(ii). Miscellaneous Chapter 187 revisions.
Comment: Two commentators submitted an attachment to their written comments consisting of suggested minor edits to the sections noted previously.
Response: The Department has revised all but one of these sections as suggested. The Department does not agree that the phrase ''without good cause'' should be inserted after the phrase ''minor child'' in § 187.23(b)(1)(i) (regarding identifying the father of an unemancipated minor). Section 187.23(b)(1)(i) simply follows section 4379(2)(ii) of the Domestic Relations Code (relating to cooperation required), which states that failure of the mother to identify the child's father shall create a presumption of noncooperation. As section 4379(2)(ii) of the Domestic Relations Code illustrates, the General Assembly did not intend to obviate this presumption with a showing of good cause. Rather, under section 4380(b)(2) of the Domestic Relations Code (relating to enforcement of cooperation requirements), if the mother does not rebut this presumption, good cause excuses her noncooperation. However, the Department agrees that because it elected the FVO, in cases involving domestic violence, the cooperation requirement is altogether waived. In these cases, the CAO need not determine if the mother cooperated with this requirement.
Other comments
§ 153.44. Eligibility for TANF/Deprivation requirements.
Comment: Commentators requested that the Department revise § 153.44 (relating to procedures) by deleting rules regarding deprivation and two-parent families. They claimed that this policy is an unnecessary artifact of the former AFDC program, and disadvantages two-parent families. They suggested that the Department revise the regulations to provide that two-parent families will be evaluated for eligibility based on the same criteria as other families: income and willingness to meet RESET participation requirements, without regard to the number of hours worked.
Response: The Department has revised § 153.44 to eliminate several rules affecting the eligibility of two-parent families. Those rules originated in the AFDC program. These changes were implemented by a NORC published at 30 Pa.B. 2956 (June 10, 2000). The requirement in § 153.44(d)(1)(i) that the parent be unemployed at least 30 days before eligibility begins was deleted. The definition of unemployment in § 153.44(d)(1)(ii) was revised by deleting the reference to part-time work. The change permits an otherwise eligible family to qualify without regard to the number of hours worked. The Department has also deleted § 153.44(d)(1)(iii) which defined part-time employment as work of less than 100 hours a month.
The Department has not eliminated the remaining rules regarding deprivation and two-parent families. As announced in its first TANF State Plan, the Commonwealth has retained rules from the AFDC program except for the changes outline in the State Plan.
The Department will consider the commentator's suggestion to eliminate all deprivation requirements for future rulemaking. The deprivation requirement limits TANF to families in which a child is deprived of the care and support of at least one parent due to absence, disability or unemployment. A thorough analysis of the fiscal impact would be necessary before eliminating this requirement.
§§ 141.41(c), 141.61(c), 181.251, 183.71 and 183.105(4)(iii). Gross income test for applicants.
Comment: Commentators requested that the Department eliminate the gross income test for applicants in § 183.71.
Response: The Department concurs, and has deleted § 183.71. Additionally, the Department revised §§ 141.41(c), 141.61(c), 181.251 and 183.105(4)(iii) to be consistent with elimination of the gross income test for both applicants and recipients.
§ 187.22. Definition of ''budget group.''
Comment: Commentators suggested that the Department revise the definition of ''budget group'' in § 187.22. They disputed that all siblings should be included in the budget group, including children for whom support or other income is paid. They noted that the Federal mandatory budget group requirement was eliminated when AFDC was repealed in 1996. One commentator questioned whether this definition discourages support from a noncustodial parent if that support must be included in the budget group income in determining eligibility.
Response: The Department does not agree that the definition of budget group should be revised as suggested. As the Department explained in its initial TANF State Plan, published at 27 Pa.B. 342 (January 18, 1997), many of the rules and procedures under which the Department administered the former AFDC program will remain in effect under the new TANF program. This includes the definition of ''budget group'' in §§ 141.42 and 187.22 and the policy for grant groups and filing units in § 171.21.
The Department's rationale for leaving the definition of ''budget group'' intact is premised on the explicit legislative purpose of public assistance: to enable needy individuals who lack sufficient means of support to become self-sufficient. See sections 401, 405.1, 432 and 432.12 of the code. Mindful of the need to allocate finite social welfare resources to the most needy, the Department requires individuals to first turn to other sources of income and resources before resorting to public assistance. To ensure that scarce public funds are preserved for the most needy, other financial sources are considered in determining a family's actual need for government benefits. Other financial sources include income, such as support, attributed to a sibling residing with a recipient child.
Finally, the Department does not agree with the commentator's suggestion that noncustodial parents may be inclined to withhold support if the regulation is not revised as requested. Pennsylvania law plainly requires parents to support their minor dependent children. See section 4321 of the Domestic Relations Code (relating to liability for support). The Department's definition of ''budget group'' does not affect this obligation.
§ 187.23(b)(6) and (c)(6). Assignment of support.
Comment: Commentators suggested that the Department revise § 187.23(b)(6) and (c)(6) to state that support received or anticipated to be received directly from the payor after assignment of support is not always required to be paid to the Department. They explained that in the initial month of application for TANF, any support received or anticipated to be received is counted in determining the amount of assistance, subject to a $50 disregard.
Response: The Department does not agree that § 187.23(b)(6) and (c)(6) should be revised as requested. However, the Department has revised § 183.32 to reflect the revised procedures for handling support payments received in the initial month of assistance.
With the conversion of the computer systems of the county domestic relations sections to the Statewide automated child support system of the Pennsylvania Child Support Enforcement System, assignment of support to the Department is immediate upon authorization of assistance. Prior to authorization, support paid to an applicant is not assigned to the Department, but is counted in determining the amount of assistance for the initial month. Because assignment is immediate upon authorization, any support received after this time must be reimbursed to the Department, as section 4379(2)(i)(F) of the Domestic Relations Code specifically mandates. Section 187.23(b)(6) and (c)(6) simply follows section 4379(2)(i)(F) of the Domestic Relations Code. The Department does not intend to deviate from this statute.
Additional Revisions
The following is a discussion of additional revisions to Annex A which the Department made as a result of its own internal review in preparation for final-form rulemaking:
1. Section 105.4(c)(2). The Department deleted as unnecessary the reference to the code.
2. Section 125.1 and § 133.23 (relating to requirements). From these sections, the Department deleted the description of the AMR. However, as explained in the Preamble discussion of assessments, the Department added a definition of ''AMR'' in § 123.22 and revised § 165.2. In addition, the Department deleted provisions in § 133.23 that reiterated parallel provisions in § 125.1. The deleted provisions recited various obligations and responsibilities specified on an AMR. Because § 125.1 contains a list of these obligations and responsibilities, revised to closely track section 405.3 of code, the Department amended § 133.23 to specify that an individual must comply with these in accordance with § 125.1. Section 125.1 is revised to clarify the consequences of noncompliance, without good cause, with various AMR requirements. Section 133.23 is also revised to cross-reference § 125.1 for the penalties of failing, without good cause, to sign or comply with the AMR. Further, § 133.23 is revised to specify that the worker and individual will review and assess the individual's progress in achieving self-sufficiency and compliance with the AMR and modify the AMR as necessary. To make these revisions, these chapters required technical edits, including reorganization and redesignation.
3. Sections 140.41, 140.65, 177.21, 178.161, 181.262, 181.287, 183.38 and 183.81. The Department revised §§ 140.41, 177.21, 178.161, 181.262 and 183.81 for consistency with the TANF State Plans published at 27 Pa.B. 342 and 29 Pa.B. 5658 (October 30, 1999). As revised, these regulations provide that educational assistance in the form of loans, grants and scholarships and work study income are not counted as income or resources in determining eligibility for cash assistance and TANF- and GA-related Medicaid. In addition, the Department deleted §§ 140.65, 181.287 and 183.38 as duplicative.
4. Section 141.41(f) (redesignated as (d)). The Department has further revised § 141.41(d) by adding the phrase ''head of household or spouse of head of household'' after the word ''adult'' to specify that the 60-month time limit is based on TANF assistance these adults receive. This revision is consistent with 45 CFR 264.1(a)(1) (relating to what restrictions apply to the length of time Federal TANF assistance may be provided). Although this phrase does not appear in 42 U.S.C.A. § 608(a)(7)(A), PRWORA's legislative history supports this revision. See House Conference Report No. 104-725, page 288. The House Conference Report states that ''[w]hen considering an individual's length of stay on welfare, states are to count only time during which the individual received assistance as the head of household or spouse of the household head.''
5. Sections 141.41(e) and 141.61(a)(1)(xv). The Department deleted these provisions as duplicative.
6. Sections 153.42 and 187.22. The Department has revised the definition of ''cash assistance allowance'' in these sections to follow the definition in § 141.42.
7. Section 153.44(b)(2)(i)(C). The Department has deleted the reference to Form PA 162-A, Advance Notice, because this provision applies to both applicants and recipients. Applicants are sent Form PA-162, Notice to Applicant. Form PA 162-A is sent only to recipients.
8. Sections 153.44(d)(1)(i)(E), 165.1(a), 165.2, 165.21, 165.21(c), 165.22(b)(2), 165.25, 165.31(a)(1), 165.31(f) and 165.52(a)(15). The Department has deleted the words ''enroll'' and ''enrollment'' and replaced them with the words ''participate'' and ''participation.''
9. Section 165.2--EDP. Although the Department proposed to delete ''EDP--Employment Development Plan,'' the final-form rulemaking includes it, with a revised definition. The term is now obsolete for cash assistance, but is relevant for Food Stamp recipients. The EDP outlines a Food Stamp recipient's work activities, employment goals and services provided by the Department.
10. Section 165.2--Noncompliance. The Department has revised the definition of ''noncompliance'' by deleting the words ''willful'' and ''without good cause.'' Noncompliance is not necessarily willful and without good cause.
11. Section 165.31(c)(4) (redesignated as § 165.31(b)(6)). The Department has revised this provision to clarify that an individual under this paragraph may satisfy RESET participation requirements by pursuing a high school diploma or its equivalent, provided that the individual maintains satisfactory progress.
12. Sections 165.1(c), 165.31(b)(7) and (8) and (c)(3). The Department, under the authority of section 405.3(d) of the code, has added subsection (c) to § 165.1 to clarify that the Department has discretion to provide employment, education, training, work-related activities or work experience programs to applicants or recipients. However, the Department has made clear that nothing in this final-form rulemaking shall be interpreted as requiring the Department to develop or to offer or to continue to offer employment, education, training, work-related activities or work experience programs. Also, the Department added provisions to codify its interpretation of the 6-month limitation for work experience in section 402 of the code. Section 165.31(b)(7), (b)(8) and (c)(3) clarify that an individual may participate in work experience for 6 cumulative months in the individual's lifetime. Because the months are cumulative, if the individual participates in work experience for less than 6 months, he may use the balance of that 6-month period at a later time. The regulations do not preclude an individual who has exhausted his 6-month lifetime limit from engaging in a different type of RESET activity, including subsidized employment. The Department will modify the limit for individuals to comply with ADA requirements, as the regulations now specify.
13. Sections 165.31(d) and 165.41. The Department has revised § 165.31(d) to clarify that final approval of a Food Stamp recipient's EDP rests with the Department and revised § 165.41 to provide that Food Stamp recipients may receive special allowances for supportive services.
14. Section 165.52(a)(3). For consistency, the Department has revised § 165.52(a)(3) to specify that ''appropriate care within a reasonable distance from the individual's home'' also applies to adult care for an incapacitated adult.
15. Section 165.52(a)(9). The Department has deleted § 165.52(a)(9) as unnecessary and duplicative because revised § 165.52(a)(3) sufficiently addresses this situation.
16. Section 165.52(a)(16). The Department has deleted this provision as inconsistent with sections 405.1 and 432.3 of the code.
17. Section 165.61(a)(8) (redesignated as § 165.61(a) (7)). The Department has revised § 165.61(a)(7) by deleting the phrase ''after having received cash assistance for 24 months or more.'' With this revision, § 165.61(a) clarifies that individuals who have received less than 24 months of cash assistance are also subject to sanction for reducing earnings.
18. Section 187.27(a)(4). The Department has moved the definition of ''domestic violence'' to § 187.22 (relating to definitions).
19. Chapters 105, 123, 125, 133, 140, 141, 151, 153, 165, 178, 181, 183 and 187. The Department has made minor technical revisions to these chapters. For example, the acronym ''AFDC'' is replaced with the acronym ''TANF'' and ''client'' or ''clients'' and ''person'' or ''persons'' are replaced with ''individual'' or ''individuals.'' In addition, ''will'' replaces ''shall'' in provisions where the Department will act; ''shall'' replaces ''will'' in provisions where others have a duty to act.
Fiscal Impact
Commonwealth. The estimated savings to the Commonwealth for Federal Fiscal Year (FFY) 2001 and thereafter is $204.363 million. The estimated costs to the Commonwealth for FFY 2001 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.
Effective Date
The following amendments shall take effect upon publication in the Pennsylvania Bulletin for §§ 123.22, 133.23(a)(1)(i)(A), 140.41, 140.65, 141.21(e), 141.41(c), 141.41(d), 141.61(c), 153.44(b)(2)(i)(C), 165.2, 165.22, 165.31(b), (c) and (e), 165.41, 165.51, 165.52(a)(3), (c) and (d), 165.71(b), 177.21, 178.161, 181.251, 181.262, 181.287, 183.32, 183.38, 183.71, 183.81, 183.105(4)(iii), 187.25(a), 187.25(a)(3), 187.25(b) 187.26(c)(1)(i) and (iii), 187.26(c)(2)(i) and (iii), 187.26(d)(1)(i) and (iii) and Chapter 281. The following amendments will be effective retroactive to March 3, 1997, for §§ 105.1, 105.3, 105.4, 125.1, 133.23, 140.53, 140.81, 141.1, 141.21, 141.41, 141.42, 141.61, 141.71, 145.43, 151.42, 151.43, 153.42, 153.43, 153.44, 165.1, 165.11, 165.21, 165.25, 165.31, 165.52, 165.61, 165.71, 177.22, 177.24, 178.11, 178.12, 178.151, 178.165, 181.41, 181.42, 181.263, 181.273, 181.311, 183.23, 183.94, 183.96, 183.97, 187.21, 187.22, 187.23, 187.24, 187.25 and 187.26. Section 183.81(29) will be effective retroactive to October 1, 1998. Section 153.44(d)(1)(i)(B), (ii) and (iii), the definition of ''domestic violence'' contained in § 187.22 and § 187.27 will be effective retroactive to July 3, 2000.
Sunset Date
Except for Chapter 281, there is no sunset date. Chapter 281 contains a sunset date of July 1, 2004. The regulations will be changed in accordance with changes in State and Federal law.
Regulatory Review Act
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on July 8, 2002, the Department submitted a copy of this final-form rulemaking to IRRC and to the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare.
Under section 5(c) of the Regulatory Review Act, the Department provided IRRC and the Committees with copies of all comments received during the public comment period. The Department has also 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. In preparing the final-form rulemaking, the Department has considered all comments received from the public, IRRC and the Committees.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on July 29, 2002, this final-form rulemaking was deemed approved by the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare. Under section 5.1(e) of the Regulatory Review Act, IRRC met on August 8, 2002, and approved this final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided, as required by law. All comments were considered.
(3) This final-form rulemaking is necessary and appropriate for the administration of the act.
Order
The Department, acting under the act, orders that:
(a) The regulations of the Department, 55 Pa. Code Chapters 105, 123, 125, 133, 140, 141, 145, 151, 153, 165, 177, 178, 181, 183 and 187, are amended by amending §§ 105.1, 105.3, 105.4, 123.22, 125.1, 133.23, 140.41, 140.81, 141.1, 141.21, 141.41, 141.42, 141.61, 141.71, 145.43, 151.42, 151.43, 153.42, 153.43, 153.44, 165.1, 165.2, 165.21, 165.31, 165.41, 165.51, 165.52, 165.61, 165.71, 177.21, 177.22, 177.24, 178.11, 178.12, 178.151, 178.161, 178.165, 181.41, 181.42, 181.262, 181.263, 181.311, 183.32, 183.81, 183.94, 183.97, 183.105, 187.21, 187.22 and 187.23; by adding §§ 165.22, 165.25, 187.25--187.27 and 281.1--281.5; and by deleting §§ 140.53, 140.65, 165.11, 181.251, 181.273, 181.287, 183.23, 183.38, 183.71, 183.96 and 187.24 to read as set forth in Annex A.
(b) The Secretary of the Department has submitted this order and Annex A to the Office of General Counsel and the Office of the Attorney General for review and approval as to legality and form, as required by law. The Office of General Counsel and the Office of the Attorney General have approved this order and Annex A as to legality and form.
(c) The Secretary of the Department shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.
(d) The order for the following amendments shall take effect upon publication in the Pennsylvania Bulletin for §§ 123.22, 133.23(a)(1)(i)(A), 140.41, 140.65, 141.21(e), 141.41(c), 141.41(d), 141.61(c), 153.44(b)(2)(i)(C), 165.2, 165.22, 165.31(b), (c) and (e), 165.41, 165.51, 165.52(a)(3), (c) and (d), 165.71(b), 177.21, 178.161, 181.251, 181.262, 181.287, 183.32, 183.38, 183.71, 183.81, 183.105(4)(iii), 187.25(a), 187.25(a)(3), 187.25(b), 187.26(c)(1)(i) and (iii), 187.26(c)(2)(i) and (iii), 187.26(d)(1)(i) and (iii) and Chapter 281. The following amendments will be effective retroactive to March 3, 1997, for §§ 105.1, 105.3, 105.4, 125.1, 133.23, 140.53, 140.81, 141.1, 141.21, 141.41, 141.42, 141.61, 141.71, 145.43, 151.42, 151.43, 153.42, 153.43, 153.44, 165.1, 165.11, 165.21, 165.25, 165.31, 165.52, 165.61, 165.71, 177.22, 177.24, 178.11, 178.12, 178.151, 178.165, 181.41, 181.42, 181.263, 181.273, 181.311, 183.23, 183.94, 183.96, 183.97, 187.21, 187.22, 187.23, 187.24, 187.25 and 187.26. Section 183.81(29) will be effective retroactive to October 1, 1998. Section 153.44(d)(1)(i)(B), (ii) and (iii), the definition of ''domestic violence'' contained in § 187.22 and 187.27 will be effective retroactive to July 3, 2000.
FEATHER O. HOUSTOUN,
Secretary(Editor's Note: For the text of order of the Independent Regulatory Review Commission, relating to this rulemaking, see 32 Pa.B. 4211 (August 24, 2002).)
Fiscal Note: Fiscal Note 14-472 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 55. PUBLIC WELFARE
PART II. PUBLIC ASSISTANCE MANUAL
Subpart A. ASSISTANCE POLICIES AND PROCEDURES
CHAPTER 105. SAFEGUARDING INFORMATION § 105.1. Policy.
(a) Legal provisions. The legal provisions relating to policy for safeguarding information are as follows:
(1) The provisions of this chapter safeguard information relating to individual applicants and recipients of public assistance by restricting the use or disclosure of the information as required by sections 404, 425 and 505 of the Public Welfare Code (62 P. S. §§ 404, 425 and 505).
(2) The term ''PA'' as used throughout this section includes the cash assistance program (AFDC, GA, SBP), the ETP, the child welfare program, the child support enforcement program, the MA Program, the SSI Program and the Social Services Program.
(b) General objective. The general objective of this chapter is as follows:
(1) The objective of this chapter is to permit the maximum use of information collected from and about a client to determine eligibility for assistance, and still preserve, insofar as possible, that relationship of confidence between the Department and its clients, and the Department and the public at large, which is vital to efficient administration. To carry out this objective, the Department has established regulations defining the use and disclosure of information on applicants and recipients.
(2) The term ''Department'' as used in this section refers to offices and employees of the Department of Public Welfare that are concerned with the administration of the public assistance program.
(c) General policy in the collection and use of information. General policy in the collection and use of information is as follows:
(1) The Department will collect and use only that information that relates to its responsibilities in administering the public assistance program. The client shall give information for purposes directly related to eligibility for assistance or other services the Department gives, and use of the information by the Department is confined to those purposes. The Department often requires information from and regarding clients which is of a highly personal nature. The information is limited in its scope and its use to that which is essential to the proper discharge of the responsibilities of the Department. As a measure to provide protection of the individuals it serves, the Department will take precaution against their being exploited for commercial or political reasons.
(2) The Department will give pertinent statistical or social data in general studies, reports, surveys, information on expenditures, number and category of recipients, and other information, so long as none of it identifies any particular individual.
(3) The Department will provide information to law enforcement officials as provided in § 105.4 (relating to procedures) and information regarding an individual under the safeguards provided in this chapter, when this information relates to a service the individual is asking for himself, or one asked for on his behalf by someone he has requested to act for him, and when the service is related to the purpose and function of the public assistance program.
(d) Information to be safeguarded. The Department will safeguard the following information:
(1) The names of applicants and recipients.
(2) The address of any applicant or recipient and the amount of assistance any recipient is receiving except as provided in § 105.4 (relating to procedures).
(3) Information in applications, reports of investigations, financial and medical records, correspondence and other recorded or unrecorded information, related to the condition or circumstances of applicants and recipients. This applies to information in the offices of the Department, the Department of the Auditor General, the Treasury Department and other agencies concerned with the administration of public assistance. Information that does not identify a particular individual is not included in the class of material to be safeguarded.
(e) Information on MA. The policy for information on MA is as follows:
(1) Each recipient or applicant for MA has the right to have the information given to the Department about his circumstances kept confidential. The information may be used only for purposes related to the administration of assistance.
(2) In the administration of the MA Program, the agency is required to provide to the vendor of medical care and services certain information regarding an applicant or recipient. In these relationships, it is the responsibility of the agency to be reasonably assured that these persons will safeguard the information and use it only for the purpose for which it was made available.
(3) Public access to information on the application of any person for or receipt of MA is not provided. Section 105.4(a)(1) does not apply to MA records.
(f) Use of information outside the Department. An individual may not have direct access to the records of the Department unless that individual has an official connection with any part of the Department, or is an employee of the Auditor General's Department, the Treasury Department or another Commonwealth or Federal agency officially charged with administrative supervision, review, evaluation or audit. Moreover, this access to records is confined to materials essential to carrying out the official functions of the Department or agency involved. Employees of agencies who are engaged in investigation of welfare fraud will in no way be prohibited access to case records. An individual may not have direct access to his own case record except as provided in § 105.5 (relating to access by an individual to his case file).
(g) Authority to disclose information. Authority to disclose information will vest in accordance with the following:
(1) Information in the possession of the Department is within the exclusive control and custody of the Secretary.
(2) Authority to disclose information as provided for in this chapter is delegated to the executive director of each county board of assistance, and to those persons in the State Office that the Secretary designates from time to time.
(3) The executive director may delegate this responsibility only to top supervisors of social service staff.
(4) The files and records of the Department must be properly protected at all times. Each CAO shall have written rules on the removal of material from the files, return of this material and supervision of the files.
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