[32 Pa.B. 5048]
[Continued from previous Web Page] 8. Short-term emergency benefits. (§ 141.41)
Comment: Commentators suggested that the Department provide short-term cash benefits (up to 4 months) as an available form of nonassistance for families facing a crisis. They said that providing these benefits makes more sense than MPP or WPP for people facing sudden unemployment, homelessness or other crisis who may need only short-term help to get back on track. Commentators claimed that the regulations create or fail to correct undue burdens on those needing short-term help due to an emergency, temporary disability or job loss. One commentator suggested that the Department consider establishing a monthly stipend program to help low-wage workers meet transportation and other work expenses. Commentators maintained that for an individual who has lost a job but has a considerable work history, WPP is not advisable and may interfere with finding a job; for this individual, job search may be the best course of action. Similarly, they said that an individual involved in an auto accident may not need MPP; some individuals do not need to address long-term employment barriers; they need only to overcome temporary problems, which short-term assistance may help rectify. Some commentators claimed that providing these benefits may avert family separation during short-term family crises. They say the Department should maximize the flexibility it has to address these temporary problems by providing, or acknowledging the possibility of offering, short-term cash benefits as nonassistance.
Response: The Department does not agree that offering short-term (up to 4 months) cash benefits as nonassistance is the best resolution for those facing unexpected, temporary crises such as sudden unemployment, homelessness or other emergencies. The Department's nonassistance benefits do not include cash benefits permitted under Federal law under limited circumstances for a maximum of 4 months. Instead, these individuals, if otherwise eligible, may receive cash assistance under the TANF program for 60 months, then cash assistance under the Extended TANF program after 60 months. The Extended TANF program provides cash assistance to eligible individuals whether they need short-term or long-term help to get back on track.
As commentators noted, individuals facing short-term crises may not need MPP or WPP. The Department agrees that some of these individuals do not need to address long-term employment barriers and may have temporary good cause situations; many of these good cause situations have straightforward solutions. For these individuals, the Department added § 141.56 to temporarily defer referral to MPP or WPP for certain individuals. For example, the Department agrees that an individual whose good cause situation involves temporary injuries from an automobile accident may not require MPP referral. In that case, the individual may be referred to MPP if he continues to qualify under § 141.54 after the redetermination under § 141.56(b).
For individuals who have lost a job and who have considerable work history, the Department agrees that job search may be the best course of action. However, those who have lost a job are required to participate in WPP unless they establish good cause or verify an exemption. Work activities plus job search would be prescribed for these individuals. The ''plus'' portion of the WWP is designed to address the individual's needs, which may involve job search.
As revised, the regulations maximize the Department's flexibility in addressing these temporary problems in a way that nonassistance benefits would not. WPP offers a broad array of activities and services (for example, work activities, literacy training, ESL classes, job and life skills training, vocational assessments and job search). In addition, those eligible under § 141.56 may receive supportive services such as transportation and child care to support their efforts to become employable. Contrary to one commentator's suggestion, a separate ''monthly stipend'' program for these individuals is unnecessary and would duplicate benefits available under the TANF and Extended TANF programs. Before and after 60 months of TANF assistance, these and other individuals may receive cash assistance, if otherwise eligible. Because the Department recognizes that those requiring short-term help may need short-term solutions, the regulations do not ''create or fail to correct undue burdens'' on these individuals; indeed, the purpose of the regulations is to help lift those burdens.
Finally, the Department disagrees that providing non-assistance cash benefits in lieu of TANF or Extended TANF would help avert family separation during short-term family crises. These regulations provide necessary supportive services and cash assistance for eligible individuals and their families who need help in addressing their barriers to self-sufficiency.
9. Specificity/clarity of regulations regarding WCA, MPP and WPP. (§§ 141.51(a)(2), 141.52)
Comment: Commentators claimed the regulations are too general regarding WCA, MPP and WPP, seem inconsistent, and do not indicate how these will work. Some commentators argued that the WCA and WPP are not clearly defined. They suggested that the Department's standards for assessing disabilities and other barriers and determining exemptions are unclear and lack standards and sufficient procedural safeguards to protect clients' rights. They also claimed the regulations do not contain substantive provisions addressing the eligibility requirements for these programs and how they will be implemented. One commentator asked the Department to explain the meanings of ''functional limitations'' and ''good cause situations'' and questioned how a physician or psychologist gets Department approval. Commentators contended that the regulations do not explain how MPP and WPP will promote self-sufficiency, and what support services will be available to recipients in MPP and WPP (such as child care subsidies and transportation) to enable them to meet work requirements and participate in activities such as mental health services and drug and alcohol counseling and treatment. They noted that these activities are often very time-consuming and require child care for recipients participating in them. One commentator said that the regulations are unclear as to whether MPP through Extended TANF will be the same version of MPP offered through the Time-Out program.
One commentator stated that the individuals who will be required to obtain a WCA are not exempt from RESET. Another commentator expressed concern that ''there is no provision for the type of job, training or hiring.'' In addition, one commentator questioned whether mothers exempt due to caring for a child under 12 months will be channeled into MPP or WPP; the commentator suggests that the regulations be revised to clarify this. This commentator suggested that these mothers be eligible to participate in MPP. Some questioned whether young mothers and pregnant women will be able to participate in MPP, and suggested that MPP requirements be adapted to fit the needs of these women. One commentator said that the regulations have no standard for exemption from MPP when appropriate.
One commentator said that connecting severely disabled adults with Supplemental Security Disability Insurance/Supplemental Security Income (SSDI/SSI) should be an explicit goal of MPP and that standards for making such referrals should be addressed. The commentator also stated that the regulations should clarify what help individuals seeking SSDI/SSI will receive during the SSDI/SSI application process, and how they will be treated in the MPP program during the application and appeal processes. The commentator suggested that the Department adopt a provision that would encourage those with serious, permanent disability to apply for the appropriate program, with assistance where necessary from both MPP and Disability Advocacy Program. The commentator also claimed that the regulations do not address the possibility that the conditions that preclude the individual from working may not be remediable in the foreseeable future, and that some individuals or their children may be so sick, infirm or disabled that MPP participation is not possible. Further, the commentator said that while an SSDI/SSI application or appeal is pending, the recipient should be encouraged to seek treatment for his condition, but not required to participate in a work project, since working may be inconsistent with the disability application; on the other hand, an individual who wishes to engage in work activities or training should be given the opportunity to do so, despite disability.
Response: The Department has reorganized the regulations, created more sections and provided more details regarding WCA, MPP and WPP and the eligibility requirements. In response to the comment, the Department submits that it has clearly defined the WCA, MPP and WPP. MPP for Extended TANF recipients is the same as MPP for individuals receiving Time-Out benefits. The distinction is that individuals who enrolled in MPP before implementation of this rulemaking had or are in the process of obtaining an MPP assessment. Individuals who enrolled in MPP before Extended TANF are grandfathered into MPP without a WCA. With the implementation of this rulemaking, individuals who enroll in MPP for the first time in Extended TANF will receive a WCA before the development of their individual MPP service plans.
Section 141.54 describes who is required to obtain a WCA, what is involved, the purpose and scope and the standards applied. The WCA will include an evaluation of existing documentation and consideration of available opinions of treating physicians. In conducting the WCA, physicians and psychologists will use accepted medical standards in assessing medical conditions and functional limitations. The WCA or MPP assessment will promote self-sufficiency by identifying medical conditions, functional limitations and good cause situations that may preclude or limit the adult's compliance with RESET. It will also identify the range of the adult's ability to engage in work and work-related activities. The findings and recommendations of the WCA will be provided to the MPP team. The MPP team is composed of professionals from various disciplines. The MPP team will use the information and recommendations from the WCA or MPP assessment to develop an individualized service plan.
With regard to the question concerning pregnant women and young mothers, if they otherwise qualify for MPP under § 141.54, they will be allowed to participate in MPP. In fact, they will be required to do so. In that event, their circumstances will be taken into account in developing the individualized MPP service plan. Although there is no standard for exemption from MPP, the MPP team will consider individual circumstances in formulating the MPP service plan.
A parent caring for a child under the age of 12 months, who has not exhausted the lifetime limit on exemption from RESET on that basis, will have referral to MPP or WPP deferred under § 141.56. That section also provides for referral to be deferred in other circumstances.
Examples of functional limitations are: inability to stand more than a certain number of hours, inability to lift more than a certain amount of weight and limits in range of motion. Examples of good cause situations include unavailability of transportation, the need for the adult to be in the home to care for an ill or disabled family member, and unavailability of child care. Additional examples of good cause can be found in § 165.52 (relating to good cause). Physicians and psychologists ''approved by the Department'' are those with whom the Department has a contract, directly or indirectly, or other agreement.
Individuals who are mandatory RESET participants will not have WCAs, as one commentator suggested, unless they have good cause for not participating in RESET. They cannot volunteer for MPP in lieu of meeting RESET participation requirements. Individuals in WPP will have a vocational assessment, not a WCA. The WPP is not limited to one type of work or training; it will offer a range of work, work activities and training. The WPP is designed to promote self-sufficiency by providing individuals with the combination of work experience and training that most research indicates is most productive and that is appropriate for the individual.
The Department agrees with the commentator's suggestion that connecting severely disabled adults with SSDI or SSI benefits is a goal of the Department. That goal is not limited to the MPP. Individuals are required to seek Federal benefits for which they potentially qualify. See section 432.21(a) of the code. The Department and its contractors assist individuals in the application for SSDI or SSI disability benefits through DAP. Protocols for referring individuals to DAP and providing them with assistance in the SSDI or SSI application and appeal process predate Extended TANF and have not been made part of this rulemaking.
The goal of Extended TANF is to engage individuals in work or approved work-related activities with reasonable accommodations as required. Towards that end, the MPP service plan is designed to increase an individual's movement towards self-sufficiency and will take into account varying individual circumstances such as illness or dependent family members. The Department recognizes there may be individuals whose personal or family conditions are not remediable in the foreseeable future; nevertheless, the goal is to engage those individuals in activities appropriate for their circumstances. The Department supports participation in work or approved work activities for SSI or SSDI applicants pending a decision on their eligibility for Federal benefits. The Department always encourages people to seek medical treatment pending award of SSDI/SSI benefits. An individual with an SSDI/SSI application or appeal pending is generally exempt from RESET.
The regulations provide procedural safeguards to individuals. An individual who disagrees with the findings or recommendations of the WCA can request a second opinion WCA under § 141.54(b)(4)(iii). In addition, any individual who receives notice from the CAO that the individual has failed to comply with any requirement of Extended TANF has appeal rights under Chapter 275.
The Department has added provisions for special allowances, now found in § 141.57. Special allowances for supportive services are available to individuals in WPP and other RESET programs and activities, and for programs and activities that are part of an individual's MPP service plan or domestic violence services plan.
10. WPP as ''workfare'' or other unpaid work.
Comment: Commentators claimed that WPP is akin to ''workfare.'' They contend that recipients should not be required to ''work off'' their welfare checks. They suggested that WPP offer ''real wages'' (such as paid work experience (PWE)) so recipients can benefit from the Earned Income Tax Credit and Unemployment Compensation, and other benefits, and meaningful, nonmenial work opportunities that will help them gain skills and training. Some commentators suggested that the Department offer ''real'' employment and training options attached to the WCA and WPP. They claimed that this will give recipients a sense of control over their own destinies and career paths. They also suggested that the existing rapid attachment, retention and advancement program and work experience be available to individuals.
In addition, they argued that there will be no uniformity of work obligation, as the amount of unpaid work required will depend on the size of the welfare grant, which in turn depends on the size of the family and receipt of income from other sources that reduce the amount of the grant. They also asked whether the Department considers § 166.21 (relating to policy) (which they claimed uses antiquated procedures no longer applicable) still in effect, although the regulation has not been updated. They suggested that WPP offer training, wages, and other benefits of a real job, as with PWE.
Response: The Department agrees with the suggestion that existing rapid attachment, retention and advancement programs should be available in the Extended TANF program, with respect to certain working individuals. These programs are designed to increase the earning capacity of individuals who are employed. Section 141.55(a)(3) provides that an adult who is employed 20-29 hours per week in unsubsidized employment and who can participate in at least 30 hours of work and work-related activities can qualify for Extended TANF by participating in a job retention and advancement program. Those individuals are not required to participate in WPP.
To the extent commentators suggested that the Department create employment for Extended TANF recipients, the Department does not agree with this recommendation. The code is clear that the Department is not required to develop or offer employment to assistance recipients. See section 405.3(d) of the code.
The Department disagrees with the commentators' characterization of the WPP as ''workfare.'' WPP offers a range of paid and unpaid work, work-related activities and training. The goal of WPP, as with all employment and training programs, is to move people to self-sufficiency. Paid employment is preferred over community service or unpaid work. See section 405.1(a.2)(1) of the code. In addition, WPP focuses on enhancing recipients' skills and earning ability so they can become self-sufficient. The 30-hour requirement of the WPP may consist of a combination of paid and unpaid work and work-related activities such as literacy training, ESL classes, job and life skills training, vocational assessments and job search. Unpaid work that inures to the benefit of a third party, such as community service, is limited by the FLSA. Hours of unpaid work will be limited to the number of hours obtained by dividing the monthly assistance grant, less child support collected or any other reimbursement, by the minimum wage. This limit will vary with individual circumstances.
Finally, § 166.21 regarding to policies for the Community Work Experience Program and the Pennsylvania Employable Program, has been superseded by the RESET program. Provisions for the RESET Program are found in Chapter 165.
11. Impact of regulations on homeless individuals and women with major barriers to employment, and potentially overwhelming increased demand on other agencies.
Comment: Some commentators expressed concern about the impact of the regulations on homeless individuals and other women with major barriers to employment. They also expressed concern about the potentially overwhelming increased demand on other agencies to provide services if these individuals reach their welfare time limits and fall through the proposed safety net.
Response: The Department has added language to the regulations in §§ 141.54 and 141.56 to clarify that individuals with major barriers to employment, such as homelessness, if otherwise eligible, may receive Extended TANF.
It would be speculative for the Department to address the potential increased demands on other agencies; however, the Department believes that Extended TANF may result in some diminished demand on other agencies.
12. Monitoring efforts.
Comment: One commentator challenged the Department to be vigilant in monitoring: (1) how families are notified about Extended TANF; (2) how many families take advantage of Extended TANF; and (3) whether families encounter barriers with the more stringent work requirements standards of Extended TANF, and thus are refused or voluntarily withdraw from Extended TANF.
Response: The Department will notify families of the benefits and eligibility requirements for Extended TANF in notices mailed to all potentially eligible recipients. Notices are automated and sent to recipients who have received 57 months of TANF benefits. The Department will monitor the number of notices that are sent and to whom. In addition to the ''3 Months Left'' notice, families are given ''Road To Self-sufficiency'' pocket folders that contain client information sheets on various topics including child care, child support, Time-Out, employment and Extended TANF. The pocket folders or relevant information sheets, or both, are given to families at application, reapplication, AMR completion or other contact.
Families eligible for Extended TANF will be assigned a unique program status code that will be used by the Department to monitor how many families are receiving Extended TANF benefits.
Cases are closed and applications are withdrawn for a variety of reasons. As with TANF in the first 5 years, the Department will be able to identify those Extended TANF cases that are closed because the recipient failed to comply with work requirements without good cause. Individuals who have good cause for not meeting the work requirements of Extended TANF are not subject to sanction, as provided in § 141.55(c). When an individual chooses to voluntarily withdraw an application or discontinue benefits, the Department cannot track the reason the individual made that choice.
13. Flexibility.
Comment: Commentators stressed the need for flexibility regarding Extended TANF. One commentator suggested that the regulations do not maximize the Department's flexibility to provide Extended TANF to individuals who may not need to participate in the WPP or MPP because their problems may be rectified by a job search or short-term recuperation period.
Response: The Department agrees with the commentators' statement that the regulations should allow flexibility in providing Extended TANF to eligible individuals who may not need to participate in the WPP or MPP because their problems may be rectified by a job search or short-term recuperation period. Section 141.55(a)(3) requires individuals who are working 20--29 hours per week to participate in a job retention and advancement program if they can participate in at least 30 hours of work and work-related activities.
Further, the Department added § 141.56 to temporarily defer referral to MPP, WPP or other employment and training program for certain individuals including those who establish good cause for not complying with RESET requirements. Under this section, individuals may be eligible for Extended TANF for up to 90 days before they are subject to a partial redetermination and possible referral to a program such as MPP or WPP. The 90-day deferral period provides the individual time to remediate a short-term barrier to employment so that an appropriate referral can be made, if necessary. At redetermination, the CAO will review the good cause situation and either extend the deferral period for 90 additional days or make the appropriate referral.
14. Other TANF policies and future rulemaking.
Comment: One commentator suggested the full TANF program and policies, including future rulemaking concerning domestic violence and other TANF policies and programs should be incorporated as a single final-form regulation to allow comprehensive review of the program.
Response: The Department does not agree with the commentator's suggestion that the full TANF program, with all current TANF policies and future rulemaking concerning domestic violence, should be incorporated as a single, final-form regulation. Given the discrete nature of the Extended TANF rulemaking, the Department did not combine it with the rulemaking for the basic TANF program. The Department determined that the best course of action is to first implement the basic TANF rulemaking. The basic TANF program is the essential framework upon which the Department will build. The Extended TANF program is the first addition to that framework. As previously noted in the response to comment 3, the Department continues to work with advocates to expand the policies for domestic violence that go beyond what has been established in the basic TANF rulemaking as well as the Extended TANF program.
15. Need for clear statement in regulations that ALL clients are eligible for Extended TANF.
Comment: Commentators suggested that the regulations clearly state that all clients are eligible for Extended TANF. They expressed concern that some clients will be displaced or permanently terminated from the welfare rolls during the transition period from TANF to Extended TANF. Also, they suggested that the steps a client must follow to get Extended TANF must be clearly explained.
Response: The Department disagrees with the commentators' suggestion that the regulations should clearly state that all clients are eligible for Extended TANF. Instead, upon publication of this rulemaking, adults who have received 60 months of TANF will be required to comply with the eligibility requirements for Extended TANF to remain eligible. It is true that during the Extended TANF contingency period that began March 3, 2002 and continues until promulgation of Extended TANF regulations, clients who are otherwise eligible for TANF continue to receive cash assistance subject to the requirements of the TANF program. Following promulgation of these regulations, however, eligibility for Extended TANF will be determined on an individual basis at application and, for recipients, during a partial review of eligibility. At this review, the caseworker will explain the requirements of the Extended TANF program.
16. Miscellaneous procedural issues.
Comment: Commentators suggested that the Department ''take its time'' implementing Extended TANF and training its caseworkers regarding these benefits. They noted that recipients should be entitled to the full scope of appeal and fair hearing rights, and that the regulations reflect this. They also suggested that the ''sanction review process''/compliance review process be utilized and referenced in the regulations, as well as provision for good cause. One commentator suggested that § 141.51(b) be revised to include references to the compliance review and good cause provisions. In addition, they urged the Department to continue the Community Connections initiative, which would help ensure smooth transition from TANF to Extended TANF. They said these processes would help ensure that individuals are not inappropriately sanctioned.
Response: The Department agrees with the commentators' suggestion that development of Extended TANF merits time and attention and that training of staff is a critical component in the process. The Department is currently developing training and instructional materials regarding Extended TANF; once completed, training will be provided to all Department staff involved in the delivery of Extended TANF.
The Department also agrees with the commentators' suggestion that recipients are entitled to the full scope of appeal and fair hearing rights; § 141.58 clarifies that an individual has the right to appeal and a fair hearing under Chapter 275. The Department has also added cross-references to the compliance review and good cause sections of the basic TANF regulations in § 141.55(c). Both the good cause provisions of § 165.52 and the compliance review procedures under § 165.51 equally apply to Extended TANF.
The Department appreciates the commentators' observation that the Community Connections Initiative (CCI) has been beneficial to TANF recipients. The Department has reauthorized the CCI grants for fiscal year 2002-2003 to continue providing recipients with additional support in their movement toward self-sufficiency.
17. Unidentified barriers to employment.
Comment: Commentators expressed concern that some recipients will be ineligible or sanctioned if the WCA (or vocational assessment) does not identify a barrier to employment for 30 hours per week.
Response: The WCA and vocational assessment are designed to be diagnostic tools and are not intended to be entrance requirements to the Extended TANF program. Even if the WCA or vocational assessment does not identify a barrier to employment, an individual who cannot comply with the 30-hour requirement may establish good cause for noncompliance.
18. Adequacy and funding of MPP.
Comment: Commentators questioned whether MPP will offer a sufficient number of slots for willing individuals. They suggested that the Department commit to adequately fund MPP to maximize its potential to diagnose, rehabilitate and educate recipients who can work, and find appropriate long-term support or programs for those who cannot work.
Response: The Department agrees with the commentators' statement that MPP is an important program and adequate funding maximizes its potential. The Department plans to provide a sufficient number of MPP slots given the availability of funds.
19. Benefits for working individuals.
Comment: One commentator suggested that working TANF recipients should be eligible for Extended TANF. One commentator suggested that allowances be made for heads of households who have been working all along but whose family size is such that they continue to require assistance. Another commentator said that the regulations do not adequately address the needs of families who are working, but due to low wages, large family size or limited available work hours, require ongoing cash assistance to meet their family's basic needs. The commentator suggested that these individuals work in existing Job Retention, Advancement and Rapid Re-Employment (JRARRE) to get needed help to move up the job ladder, and not be required to perform community service for no wages to maintain their TANF supplement. The commentator also suggested that it is in everyone's interest to assist these Extended TANF participants to use their time to pursue educational and training opportunities that will enhance their employability.
Response: The Department agrees that working TANF recipients should be eligible to receive TANF. The Department also agrees that needy working individuals who have large families or low earnings in relation to family size should be able to qualify for Extended TANF. Section 141.55(a)(1) provides that individuals who are working 30 or more hours per week may be eligible for Extended TANF with no additional work or work activity required. Further, § 141.55(a)(3) provides that individuals working 20 to 29 hours per week, if they can participate in at least 30 hours of work and work-related activities, are referred to a job retention and advancement program to advance their job skills and increase their hours and earnings. Other provisions relevant to mandatory RESET participants are set forth in § 141.55.
The Department also agrees with the commentators' suggestion that individuals in Extended TANF who are working should be assisted in pursuing education and training opportunities that will enhance their employability. Individuals in Extended TANF who are working more than 30 hours per week may volunteer to participate in education and training activities. These activities may be supported with special allowances, as specified in § 141.57. Individuals who are working 20 to 29 hours per week will participate in a job retention and advancement program designed to enhance their earning capacity.
20. Grievance procedure.
Comment: One commentator suggested that the regulations establish a grievance procedure for workers alleging displacement by welfare recipients. The commentator noted that Federal law requires such a procedure. They claimed that a grievance mechanism is especially important if work requirements are increased and workfare is instituted or expanded.
Response: The Department disagrees that a grievance procedure must be set forth in the regulations. Instead, the Department requires its employment and training contractors to develop a Work Site Agreement, which requires an assurance that the work site will not displace its regular workforce with welfare recipients. Displacement includes loss of employment and reduction of overtime, wages or benefits. Further, the work site may not substitute work experience participants for individuals on layoff from the same or substantially equivalent positions. Individuals alleging displacement by a welfare recipient may contact the Department's Bureau of Employment and Training Programs.
21. Work requirement as a condition of eligibility.
Comment: One commentator said that the work requirement should not be stated as a condition of eligibility. The commentator asked the Department to state the specific statutory authority for stating the work requirement as a condition of eligibility.
Response: Although the 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 a loss of benefits. 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 with the commentator that a review of eligibility is all that is required. Section 141.55 is consistent with sections 405.1(a.2)(6) and 432.3(a) of the code. Under these provisions, an individual who has received assistance for 24 months and is not exempt from RESET must participate for an average of at least 20 hours per week in one or more of the activities enumerated in that paragraph; if he willfully fails to do so, without good cause, he is ineligible for cash assistance under section 432.3(a) of the code (regarding to durational sanctions).
22. Redetermining eligibility.
Comment: One commentator stated that the subtitle of Chapter 133 (relating to redetermining eligibility) does not include Extended TANF, and suggested that it be revised as follows: ''REDETERMINING ELIGIBILITY PROVISION FOR TANF, EXTENDED TANF AND GA.'' The commentator also said that it is unclear what a ''complete redetermination'' is, and whether this applies to recipients who have recently gone through a redetermination for another reason.
Response: The Department agrees with the commentator's suggestion and has revised the subtitle accordingly. In response to the question regarding what is meant by a complete redetermination, § 133.23(a)(1)(i) provides that a complete redetermination is a comprehensive review of eligibility factors that are subject to change, such as income, household composition, resources and employability status. A complete redetermination generally requires a face-to-face interview.
The Department has reevaluated its decision to require a complete redetermination of eligibility and has determined that a partial review of eligibility is sufficient. Section 133.23(b) has been revised to reflect this decision. The partial redetermination will focus on factors specific to the Extended TANF program, even if the recipient recently had a redetermination for another reason.
23. Definitions. (§ 141.52)
Comment: One commentator stated that program requirements, to be enforceable, must be placed in the body of the regulation, not described in definitions. For example, the commentator said that the definition of ''WCA'' contains substantive language; therefore, subparagraphs (i)--(iv) should be moved to § 141.51. The commentator also advised that the definitions section be relocated to precede the provisions where the terms appear. Further, the commentator suggested that the scope of the definitions in § 141.52 should apply to all relevant chapters or sections, not just §§ 141.52 and 141.41. Also, the commentator said that the definition of ''adult'' in § 141.52 is confusing and should be rewritten, perhaps by splitting the definition into two paragraphs: (i) for an individual 19 years of age or older, and (ii) for an individual 18 years of age who is not a full-time student in secondary school, vocational training or technical school. Finally, the commentator stated that the phrase ''within the constraints of available funds'' does not belong in the definition of RESET, and should be moved to a provision establishing the parameters and requirements for RESET. The commentator reasoned that because funding availability directly impacts on eligibility requirements for the program and the services offered, it is a substantive provision, which is not enforceable where it is located.
Response: The Department agrees with the commentator's suggestion that program requirements should appear in the body of the regulations, rather than be described in definitions. Therefore, the Department has relocated and reorganized substantive requirements for Extended TANF so that all substantive requirements are in the body of the regulations. For example, revised substantive requirements for the WCA now appear in § 141.54. The Department also revised the definition of RESET by simply cross referencing the definition of ''RESET'' set forth in § 165.2. In addition, the Department agrees that the definitions should precede the provisions where the terms appear. As revised, the definitions in § 141.52 precede the substantive provisions (§§ 141.53--141.57) where the terms appear.
The Department also agrees that the scope of the definitions in § 141.52 should apply to relevant chapters and sections. The Department has revised § 141.52 to state that ''[t]he following words and terms, when used in this Chapter, have the following meanings, unless the context clearly indicates otherwise . . .'' In addition, the Department has revised § 133.23 by including a cross-reference to the definition of Extended TANF in § 141.52. Finally, the Department does not agree that the definition of ''adult'' should be revised. The definition of adult in § 141.52 is consistent with the definition of adult in § 151.42. That definition is particularly relevant to employment and training programs. That definition is designed to distinguish between 18 year olds who are and those who are not subject to work requirements.
24. Potential sources of income. (§§ 141.21(n)(1)(iii), 183.13, 183.13(c)(3))
Comment: One commentator noted that § 183.13(c)(3) (relating to potential sources) excludes the applicant's family from eligibility until the applicant complies, while the identical requirement in § 141.21(n)(1)(iii) excludes both the applicant and the applicant's family from eligibility. The commentator questioned whether § 183.13(c)(3) should also exclude the applicant from eligibility.
Response: In response to the commentator's question whether § 183.13(c)(3) should exclude the applicant from eligibility, the answer is yes. Section 183.13(c)(3) has been revised accordingly.
25. WCA procedures and protections. (§§ 141.51(a)(2) and 141.52)
Comment: One commentator claimed that the WCA fails to include procedural protections; the commentator also said the regulations do not include protections for families with disabled family members. The commentator recommended that the regulations should require that the examining physician must have particular expertise in functional or vocational limitations. The commentator also expressed concern that the regulations do not require that the examining physician must have expertise in the appropriate specialty (for example, psychiatrist for recipients with mental disorders). Moreover, the commentator questioned the role of the WCA examiner vis-a-vis the recipient's primary care physician who verified disability with an Employability Assessment Form. Even if the appropriate physician is obtained, the commentator asked whether that physician, recipient or representative will be authorized to request further testing, under what circumstances, to whom the requests are made and how quickly they must do so. The commentator asked why the Department is silent in the regulations on the role of the treating physician, in contrast with the Social Security Administration, which relies heavily on treating sources, and affords the evidence of the sources great weight.
In addition, the commentator questioned why the regulations state that ''[t]he WCA will always include an evaluation of existing documentation of the good cause situation.'' The commentator said that this raises several questions: (1) is this a drafting error or is existing documentation relevant only in good cause cases? Disability is typically the basis for an exemption, not a good cause situation; (2) what does ''existing'' documentation mean? Does it mean that only information already in the file will be considered, or does it mean that any documents that exist anywhere will be obtained and reviewed? If it is the latter, who will obtain the documents? The commentator stated that it would be inappropriate to require those suffering from mental illness, which they estimate to be at least 28% of the exempt population, to gather the information. The commentator suggested that these matters be clarified in the regulations.
The commentator also questioned why the regulations are silent about a recipient's right to voice disagreement with the WCA decision and request a second opinion, the procedures for doing so and what is to be done when a second opinion is obtained. The commentator asked which opinion controls when the first and second opinions conflict, and whether the only way to challenge a first opinion is with a second opinion.
The commentator suggested that the regulations clarify how to resolve disputes, which evaluation and opinion controls, and whether the recipient may challenge the first and second opinions and have the treating physician offer an opinion (although not retained as part of the WCA). In addition, the commentator asked the Department to clarify what happens if the WCA physician decides that the answer for a recipient's back problem is physical therapy, but the treating physician thinks that would be too dangerous because of the recipient's heart condition. The commentator also asked what happens if the Medicaid HMO refuses to pay for the treatment, or the treating physician will not request it--who then decides? Is the question referred to the MPP team, which does not appear to have medical expertise at its disposal?
Response: The Department disagrees with the commentator's concern that the WCA does not include procedural protections. Instead, the Department submits that the WCA does include appropriate procedural protections described in § 141.54. These protections include the opportunity to request a second opinion WCA and provide information from the individual's treating physician. The Department will contract with an independent medical services provider to conduct ongoing random reviews of the WCA summary results, described under Paperwork Requirements in this Preamble.
The Department agrees with the commentator's suggestion that protections for families with disabled family members should be included in the regulations. Therefore, the Department has added a new provision clarifying that families with disabled members may be eligible for Extended TANF under §§ 141.54 and 141.56.
The Department agrees that the examining physicians should have relevant expertise in the appropriate specialty. The Department disagrees that this should be specified in the regulations. In its contracts, the Department already requires providers to recruit and maintain qualified physicians and psychologists in the appropriate specialties and geographical areas to meet the demand for WCAs.
In response to the commentator's question regarding the role of the WCA examiner vis-a-vis the recipient's primary care physician and the weighting of the evidence, there is no weighting of the evidence. During the WCA, all records are given equal consideration, unless there is a clear delineation of training, certification and expertise between the treating physician and specialist. The only way to challenge the results of the first WCA is to request a second WCA.
In answer to the commentator's question about whether the treating physician or recipient may request further testing, the answer is yes, but not as part of the WCA. The results of any additional testing may be provided during the WCA or, if requested, during the second WCA. However, with respect to the recipient's representative requesting further testing, the answer is no.
In response to the commentator's question whether the evaluation of existing documentation is relevant only in good cause cases, the answer is no. The WCA will include an evaluation of existing documentation for medical conditions and functional limitations, as specified in § 141.54(b)(3)(i)(B).
With respect to the commentator's questions concerning the definition of ''existing'' documentation, existing documentation refers to any information that would be relevant to making a determination of the extent of an individual's medical condition, functional limitation or good cause situation. With regard to who will obtain the documents, documentation shall be obtained by the individual and provided to the provider during the WCA process. When necessary, the Department or its agent will assist the individual in obtaining existing documentation, as specified in § 141.54(b)(3)(iii)(A).
The Department agrees with the commentator that regulations should include provisions for a second opinion WCA for individuals who disagree with the findings of the WCA as set forth in the MPP service plan. Therefore, § 141.54(b)(4)(iii) provides for a second opinion WCA. The MPP team, in consultation with the individual, will develop an MPP service plan based on information contained in one or both sets of the WCA findings and recommendations.
In answer to the commentator's question regarding the resolution of conflicting WCA opinions, the Department responds as follows: When reviewing the results of conflicting WCAs, it may become apparent that one opinion is based on additional or more relevant information. If this is the case, the MPP team will consider the additional information, when developing the MPP service plan.
Other factors the MPP team may consider depending on the individual circumstances will include the extent to which the WCAs agree with the recommendations of the treating physician, the degree to which the WCAs are congruent with the nonclinical findings of the MPP team and the ability of the medical services agency to resolve the conflict through its quality control process. The Department notes that, in any case, the WCAs serve to inform the MPP team's development of the MPP service plan but are not determinative of the outcome of the MPP process.
In response to the suggestion that the regulations clarify procedures regarding disputes between the WCA and the treating physician and the resolution of HMO denials of payment for recommended services, the Department disagrees that the specifics of these procedures must be regulated. If the WCA physician recommends a treatment with which the treating physician disagrees, the following procedures apply: When the MPP team receives the WCA results, it will contact the Managed Care Organization's (MCO) Special Needs Coordinator. The MCO Coordinator will contact the individual's Primary Care Physician (PCP) to discuss the results and recommendations to assure that the PCP has all the information necessary regarding the WCA results and recommendations. If necessary, the MCO Coordinator will obtain further clarification and provide it to the PCP to support the WCA recommendation. The PCP can recommend that the individual request a second WCA and submit additional documentation supporting its finding during the second WCA.
If the recommendations are beyond the PCP's area of expertise, the MCO Coordinator will intervene to assist the individual in obtaining the necessary expert. For example, if the PCP is a general practitioner and the barrier being addressed is a mental health barrier, the MCO Coordinator will facilitate an evaluation by a mental health provider. When the MCO refuses to cover the services identified as necessary medical services by the MPP team, the MPP team will encourage the individual to appeal. During the MCO appeal period, the services will be provided.
For individuals who are covered under the Fee for Service health care plan, the same process applies, except that the MPP coordinator will work with the designated contact person in the Department's Office of Medical Assistance Programs rather than the MCO Coordinator.
With regard to the concern that the Department has not included in the regulations all the procedures related to the MPP program and the WCA, the Department has regulated many components of MPP and the WCA, as previously identified. They include:
* The opportunity to request a second WCA.
* The opportunity to present information from the treating physician.
* The evaluation of existing documentation regarding medical conditions and functional limitations.
* The clarification of who has responsibility for obtaining documentation.
The Department will not regulate terms of the contract or procedures used by the medical service agency nor will the Department regulate internal procedures applicable to CAO staff.
26. WCA standard for determining medical condition, functional limitation or good cause situation that precludes the individual from meeting work requirements. (§§ 141.51(a)(2), 141.52)
Comment: One commentator expressed concern that the process the Department has chosen for determining an individual's ability to meet work requirements is potentially more adversarial than the current process for verifying exemptions from work requirements. The commentator contended that the standard for determining disability, as stated in the definition of ''WCA'' (see § 141.52(i) and (ii)) is: (1) unintelligible; (2) based on the Guides to the Evaluation of Permanent Impairment (Guides), which deals only with permanent impairments; temporary disability must also be addressed; (3) the Guides, as stated on page 9 of the Guides, is not intended to be used for direct estimates of work disability; and (4) does not specify at what level a recipient is considered unable to work. The commentator argued that the Department's intended practice of leaving the decision of disability to the companies that successfully bid on the WCA contract, using the criteria in the Guides, is an unacceptable delegation of executive power to private entities that have no mechanism for public input. The commentator also stated that because the standard of disability affects who goes to MPP, who must comply with WPP, and who would be sanctioned for failure to comply, the standard that is used will have serious implications for those being evaluated. The commentator expressed concern that individuals whose level of disability falls below a benchmark would be required to work 30 hours per week. The commentator suggested that the Department adopt a clear-cut standard of temporary and permanent disability, using a rating of 50% or greater as a benchmark.
Response: The Department disagrees with the commentator's assertion that the process for determining an individual's ability to meet work requirements is potentially more adversarial than the current process for verifying exemptions from work requirements. Under TANF rules, the individual's treating physician initially determines the individual's exemption from RESET under § 165.22(b)(1). Under Extended TANF, the WCA is an objective evaluation of an individual's impairment, if any, and the impact of that impairment on the ability to work. It is not intended to be an adversarial process. Instead, it is designed to provide a fresh, independent evaluation of medical conditions, functional limitations and good cause situations that may preclude or limit the individual's ability to work.
The Department also disagrees with the commentator's criticism regarding the appropriateness of using the Guides to determine a temporary disability. In fact, the Guides is appropriate to the evaluation of temporary disabilities. In conducting the WCA, the Guides is the tool physicians and psychologists will use to perform the WCA to evaluate the severity of impairments. The Guides is not intended to be used in a rigid, mechanical manner. Meaningful use of the Guides requires a great deal of professional judgment and consideration of nonmedical factors that may affect permanent or temporary impairment. The Guides provides objective standards for evaluating the nature and extent of impairments. Using the Guides, the evaluating physician or psychologist will consider whether an impairment is likely to be permanent despite treatment. The physician or psychologist also will evaluate whether the impairment may improve with medical treatment. Although the Guides enables medical professionals to evaluate impairments objectively, it is merely a tool. As the Guides itself explains, it cannot provide complete and definitive answers regarding employability. ''The impairment evaluation . . . is only one aspect of disability determination. A disability determination also includes information about the individual's skills, education, job history, adaptability, age, and environment requirements and modifications (footnote omitted). Assessing these factors can provide a more realistic picture of the effects of the impairment on the ability to perform complex work and social activities.'' Guides, 5th ed. at 8.
To arrive at the recommendations in the WCA, physicians and psychologists will use their clinical expertise to consider each individual on a case-by-case basis. The WCA provides additional objective data to be considered in combination with other available information and is considered by the MPP team during the development of the MPP service plan. Verifying the presence and severity of an impairment is but one component taken into consideration by the MPP team for the development of an MPP service plan. Because the WCA informs, rather than controls, the MPP team in developing the MPP service plan, the Department finds that the Guides provides a legitimate and useful point of reference in the evaluation of temporary and permanent impairments.
The Department emphasizes that the final-form rulemaking reflects a substantial revision from proposed rulemaking. Those revisions include provisions in § 141.56 to defer referral to MPP for certain caretakers and persons with good cause for not meeting RESET participation requirements. Not all individuals with a temporary condition that precludes employment will be referred directly to MPP. An individual who is not exempt from RESET but has a temporary condition that precludes employment may establish good cause and have referral to MPP deferred under § 141.56(a)(2). For example, a person whose job requires standing for prolonged periods may have good cause for not working if he has a broken leg. The CAO will re-evaluate the individual's deferral after 90 days or when circumstances change. Consequently, under the final-form regulations, an individual with a short-term condition might never be referred to MPP.
As to the commentator's assertion that using the criteria in the Guides is an unacceptable delegation of executive power, the Department disagrees. The Department has not delegated the authority to determine eligibility for Extended TANF to medical service providers conducting WCAs. Rather, the Department has contracted with medical experts to perform just the WCA. Although this assessment is important in developing an individual's MPP service plan, it is not determinative of eligibility for Extended TANF. The CAO determines whether an individual qualifies for Extended TANF.
The Department agrees with the commentator's assessment that the Guides is not intended to be used for direct estimates of work disability. Determination of disability is a result of consideration of numerous factors, as previously discussed. The physician's or psychologist's evaluation using the Guides is just one of those factors.
Finally, the Department disagrees with the commentator's recommendation that the Department adopt a 50% standard to determine disability. The Department finds that such a bright-line classification is less favorable to clients served in the MPP program. The result of the WCA will be used by the MPP team to develop an individualized service plan that is not dependent solely on impairment percentages.
27. Procedures for families with disabled family members. (§§ 141.51(a)(2))
Comment: One commentator claimed that the regulations have no mechanism for evaluating and assisting families with a member who is severely disabled. For example, the commentator cited the example of a child who is severely mentally retarded and cannot be left alone because of numerous medical, educational, behavioral and child care problems involved. The commentator complained that the WCA, as written, is not designed to evaluate and assist in such situations. Moreover, the commentator explained that neither a physician nor a psychologist performing the WCA will necessarily be steeped in the availability of child care for a disabled child, and that the extent of physician input in these cases is unclear; if physician input is sought, the regulations do not clarify who is to decide and based upon what standard. The commentator noted that the regulations state only that the WCA may or may not require examination of the client; the regulations say nothing about examination of a child or other disabled family member. In addition, the commentator suggested that the regulations are unclear regarding evaluation of social factors and good cause situations and whether the physician's evaluation of the situation is followed by one conducted by welfare personnel, especially if the evidence given is not medical or psychological in nature. The commentator argued that physicians and psychologists do not have any special expertise in vocational or even functional evaluations.
Response: The Department disagrees with the commentator's claim that the regulations have no mechanism for evaluating and assisting families with a member who is severely disabled. In the proposed regulations, individuals in this circumstance would have been eligible under § 141.51(a)(2)(i). The final-form rulemaking provide that individuals with a disabled family member may be eligible to receive Extended TANF under § 141.56. After 90 days, the individual's situation will be reviewed. If the situation continues to preclude employment or participation with RESET, the individual may be referred to MPP as specified in § 141.56(c)(1). While in MPP, the individual will be required to cooperate with the WCA, but the disabled family member is not subject to a medical examination. The WCA and the MPP team will consider available medical records and other documentation of this disabled family member. The WCA will provide the MPP team with summary results and recommendations for the individual based on the documentation provided by the CAO and the individual. The MPP team, including vocational and behavioral rehabilitation specialists, in consultation with the client, will develop the MPP service plan to help the individual who is caring for a disabled family member address this barrier. The MPP team, based on knowledge of available child and adult day care and other community resources, will explore these options in developing the MPP service plan.
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