RULES AND REGULATIONS
Title 55—PUBLIC WELFARE
DEPARTMENT OF PUBLIC WELFARE
[55 PA. CODE CH. 165 ]
Revisions to the Special Allowance for Supportive Services Requirements; Road to Economic Self-Sufficiency Through Employment and Training (RESET) Program
[40 Pa.B. 6665]
[Saturday, November 20, 2010]The Department of Public Welfare (Department) amends Chapter 165 (relating to Road to Economic Self-Sufficiency Through Employment and Training (RESET) Program) under the authority of sections 201(2), 403(b) and 408(c) of the Public Welfare Code (code) (62 P. S. §§ 201(2), 403(b) and 408(c)) and the Federal food stamp regulation in 7 CFR 273.7(d)(4) (relating to work provisions). Notice of proposed rulemaking was published at 40 Pa.B. 2111 (April 24, 2010).
Purpose of Final-Form Rulemaking
The purpose of this final-form rulemaking is to enhance program integrity and effectiveness and to help ensure that funds for special allowances are available to the greatest number of participants with a verified need for supportive services. This final-form rulemaking amends regulations pertaining to special allowances for supportive services, which the Department provides to individuals who apply for and receive cash assistance or Supplemental Nutrition Assistance Program (SNAP) benefits (formerly known as food stamps), or both. These special allowances are limited to those who agree to participate in or who are participating in approved work or work-related activities. In this final-form rulemaking, the Department is amending Chapter 165 and Appendix A (relating to work and work-related special allowances). Appendix A enumerates the types of special allowances for supportive services for which the Department authorizes payment, as well as the rates, frequency and limitations of the allowances.
This final-form rulemaking enables the Department to provide special allowances in a fiscally responsible and cost-effective manner. To maximize scarce resources, this final-form rulemaking amends the maximum amount and frequency for special allowances. By maximizing the Commonwealth's scarce resources, this final-form rulemaking complies with State law and ensures that supportive services are available to the greatest number of participants who verify the need for services.
In Appendix A, special allowances are listed under six general categories: public transportation; private transportation; motor vehicle purchase; motor vehicle insurance; clothing; and work education and training. Each category includes subcategories of special allowances, respective payments and maximum annual and lifetime parameters.
Finally, this final-form rulemaking authorizes restitution for overpayments of supportive services. The Department will not use recoupment to recover a special allowance issued from SNAP funds. The Department may process an overpayment to recover a special allowance to the extent of the misuse of the special allowance in accordance with Department regulations. The overpayment will be pro rata, to the extent the recipient did not use, or did not properly use, the special allowance.
Background
With the enactment of the Deficit Reduction Act of 2005 (Pub. L. No. 109-171), the Temporary Assistance for Needy Families (TANF) program was reauthorized. Under the reauthorized TANF program, the Commonwealth is required to increase the work participation rate (WPR) for families or face financial penalty of up to $36 million on an annual basis. To avoid that financial penalty, the Department intensified its efforts to meet the Federal WPR and instituted new initiatives to ensure that all work-eligible individuals participate in approved work or work-related activities. As these participants enroll in employment and training activities or search for or obtain employment, the demand for special allowances for supportive services increases, as does the strain on the Commonwealth's fiscal resources. In fact, the number of recipients increased from 11,877 recipients in Fiscal Year (FY) 2002-2003 to 75,723 recipients in FY 2009-2010.
Further, under the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-234), also known as the 2008 U.S. Farm Bill, section 4108 allows SNAP employment and training funds to support SNAP only participants who participate in other SNAP work-related activities and obtain employment. These funds allow the Department to provide additional support to these recipients.
Affected Individuals and Organizations
This final-form rulemaking affects individuals who receive TANF and General Assistance (GA) cash assistance and who are participating in approved work or work-related activities, as specified on an approved Agreement of Mutual Responsibility (AMR). This final-form rulemaking also affects SNAP only participants who participate in approved work or work-related activities according to the provisions of their approved Employment Development Plan (EDP).
Accomplishments and Benefits
The purpose of this final-form rulemaking is to enhance program integrity and effectiveness and to help ensure that funds for special allowances are available to the greatest number of participants with a verified need for supportive services. This final-form rulemaking benefits individuals who receive TANF and GA cash assistance and who are participating in approved work or work-related activities. This final-form rulemaking also benefits SNAP only recipients who shall participate in approved work or work-related activities according to their approved EDPs. This final-form rulemaking is designed to meet the needs of participants while maintaining fiscal responsibility and accountability. The final-form rulemaking effectively supports individuals receiving cash assistance and SNAP benefits as they move successfully toward achieving economic self-sufficiency.
Fiscal Impact
The Department estimates the net result of the amendments to Chapter 165 will yield a savings of $2.107 million in the first year, with the first full-year savings estimated at $6.322 million.
Changes in the maximum amount for special allowances yield savings estimated at $5.818 million in the first fiscal year. The Department anticipates that savings for the first full fiscal year after implementation at $17.455 million.
Changes that increase the maximum allowances for the purchase of a motor vehicle and mileage reimbursement will cost the Commonwealth $3.711 million in the first fiscal year. Full-year implementation costs the following year are estimated at $11.133 million.
Paperwork Requirements
Verification of the need for special allowances is required prior to authorization. A participant is also required to verify actual expenses. Both a participant and a provider of supportive services may be required to verify the receipt of supportive services and the amount of the actual payment.
Public Comment
Written comments and suggestions were solicited during a 30-day comment period after the publication of the proposed rulemaking. Following publication of the proposed rulemaking, 36 separate commentators submitted comments to the Department. The Department also received comments from the Independent Regulatory Review Commission (IRRC) and Representative Matthew E. Baker.
The Department carefully reviewed and considered each comment and thanks the individuals and organizations that commented on the proposed rulemaking. The Department appreciates the many thoughtful comments that were received. Many of these comments were incorporated into the final-form rulemaking. In addition, the Department met with advocates and consumers in the development of the proposed rulemaking and continued to meet with interested parties following publication of the proposed rulemaking.
Discussion of Comments and Major Changes
Following is a summary of the comments received following publication of the proposed rulemaking and the Department's response to those comments.
General
The Department received 13 comments supporting the proposed rulemaking because it strengthened accountability of the program while utilizing scarce resources to serve the greatest number of people. Several commentators, however, objected to the proposed rulemaking, suggesting that it imposes significant, short-sighted limits on supportive services. They raised concerns that the regulations will deprive TANF and SNAP only recipients of getting the supports they need to work or participate in work-related activities. They expressed concern that recipients may be penalized by losing cash assistance or SNAP benefits and become deprived of the opportunity to achieve self-sufficiency.
Response
The Department appreciates the commentators' support for the amendments to the regulations. Following the 30-day comment period, the Department carefully considered the comments and participated in meetings with stakeholders and legislators.
The Department identified the major concerns in the rulemaking, as follows. The Department attempted to take into account all voices heard in the regulatory debate and continued consulting and meeting with stakeholders, consumers and legislators to help ensure that this final-form rulemaking will strike a fair balance between the competing interests of all parties.
General—Support for the KEYS program
Commentators praised Keystone Education Yields Success (KEYS) as a program that significantly helps individuals continue their postsecondary education. They noted that KEYS is a collaborative program between the Department and the Pennsylvania Commission for Community Colleges, designed to help TANF and SNAP only recipients pursue postsecondary education at one of the 14 community colleges in this Commonwealth.
Response
The Department concurs that KEYS an important program and thanks the commentators for their support.
General—Comments about the PA WORKWEAR initiative
One commentator noted that the clothing allowance adequately reflects the cost of the special allowance. This commentator suggested that the final-form rulemaking provide for administrative funding for the PA WORK- WEAR Initiative because of the cost of collecting, distributing and purchasing special allowance items.
Another commentator also highlighted the positive aspects of this initiative, including how it has improved fiscal responsibility. The commentator suggested that PA WORKWEAR can be used as a model for similar initiatives regarding special allowances.
Response
Although the Department is unable to expand funding for the PA WORKWEAR program at this time due to fiscal constraints, the Department concurs that the initiative improves fiscal responsibility. The Department may consider using the PA WORKWEAR program as a model for future initiatives.
Appendix A
IRRC, Representative Baker and several commentators expressed concern about the proposed annual and lifetime limits. The Department carefully considered these concerns and accordingly revised several provisions in the final-form rulemaking. These changes are described more fully as follows.
A. Comment
IRRC questioned how the Department took into account availability, costs and the number of recipients needing services within the geographic area in determining the new limits for special allowances. IRRC also asked the Department to provide more detail about how it examined the availability, costs or number of recipients needing services in developing the amendments to Appendix A.
Response
First, the Department formulated the annual and lifetime parameters by reviewing the costs of the program and how those costs were distributed among the types of special allowances. In doing so, the Department considered several factors, such as the average cost of each type of special allowance, the distribution of the total allowance amounts issued annually to individuals in the past, how many recipients received allowances totaling under and over $2,000, the average length of enrollment in employment and training programs, the number of individuals supported by the programs, community and stakeholder support for increases in mileage and motor vehicle purchase amounts and the respective demand for each special allowance. The Department also studied the nature and extent of special allowances in other states.
Second, Federal law limits the activities that count toward meeting state work participation requirements. For example, certain education and training activities are limited to 12 months in a lifetime. This limitation provided the context within which the Department analyzed expenditure patterns for the allowances associated with education and training activities. In analyzing the program, the Department reviewed historical special allowance data, which showed that in a 1-year period, over 97% of participants would not be impacted by the proposal; and that over a 2-year period, a maximum of 92% of individuals who receive special allowances would not be impacted. Departmental data also confirms the short-term nature of most employment and training programs—18 weeks or less. The parameters set for work, education and training special allowances are more than adequate to support not only the benchmark amount of 18 weeks of participation in employment and training programming, but also those individuals who participate for a longer period of time, such as many of those in the KEYS program. With regard to the transportation allowances, the Department's analysis shows that over 99% of participants historically would be supported within the $1,500 annual transportation-related allowance. Based on historical data, the Department concluded that 99.9% of individuals requiring a special allowance for motor vehicle insurance would not be adversely affected by the lifetime limit and 98.5% of individuals requesting an allowance to purchase a motor vehicle would not be adversely affected. Based on the historical data and the impact of the PA WORKWEAR initiative, over 99% of individuals would not be adversely affected by the clothing allowance.
Third, the Department anticipates that the low percentage of adversely affected individuals will be even lower as a result of the Department's additional revisions in the final-form rulemaking.
Finally, a reduction in the overall costs of the special allowance program is likely as the Department continues to strengthen its implementation and to offer appropriate, targeted case-managed supports for individuals on the road to economic self-sufficiency. For example, one of the Department's initiatives, PA WORKWEAR, has substantially reduced the Department's costs for clothing allowances. The Department anticipates additional savings as the Department considers future initiatives.
B. Comment
IRRC noted that the Department claimed the proposed rulemaking would assist in providing services to the greatest number of recipients given the current budget crisis. Commentators claimed that spending, however, has actually decreased in these programs over the years. In addition, commentators contended that the program utilizes a very small percentage of the available block grant funding. IRRC, therefore, requested more detail about why the changes are necessary to provide services to the greatest number of individuals.
Response
Although the cost of providing certain special allowances has decreased, the Department is offering special allowances to more recipients than ever and doing so in the face of a deeply troubled National and Statewide economic crisis. In FY 2002-2003, the Department served 11,877 recipients. In contrast, in FY 2009-2010, the Department served 75,723 recipients. To continue to provide special allowances to the greatest number of recipients, the Department accordingly revised Appendix A.
For example, the Department developed and implemented fiscally responsible initiatives, such as PA WORKWEAR, to reduce overall special allowance costs. Costs decreased from $56,047,690 in FY 2006-2007 to $31,516,534 in FY 2009-2010. In FY 2006-2007, the Department served 35,830 people. Two years later, in FY 2009-2010, the Department served approximately 75,723 recipients, more than double the number of recipients. This final-form rulemaking will enable the Department to further strengthen and improve the special allowance program. With these new initiatives and prudent budgetary and programmatic strategizing, the Department managed to serve 53% more people with 44% less cost.
C. Comment
IRRC noted that commentators contended that the limits will undercut participants' efforts to obtain better employment and that ultimately the proposed amendments would defeat the purpose of the allowances. For example, they questioned the $1,500 annual private transportation limit. Commentators contended that between gas, repair costs and other expenses, it would be virtually impossible for a recipient not to exceed that limit. Commentators expressed concern about the limits on education expenses. Without these supports, commentators indicated that many will be unable to pursue educational programs that exceed more than 1 or 2 years, or to return to receive additional training or education in the future. They surmised that employment will be limited to low-paying jobs. Commentators argued that in the long run, these limits will be more costly to taxpayers because fewer people will be able to permanently become self-sufficient.
Response
The Department agrees with IRRC and other commentators who suggested that in some circumstances individuals might exhaust their annual or lifetime parameters before completing their Department-approved education, training or work program and that denying recipients who are successfully participating in a work-related activity with the support they need to complete the activity is counter to the intended purpose of the program. The Department revised the final-form rulemaking by adding § 165.1(e), which clarifies that this regulation does not affect the Department's existing ability to provide supportive services to individuals through contracted employment and training programs.
This provision clarifies that the Department may provide additional supportive services to the extent required by an approved work or work-related program under a written agreement with the Department. In the context of a written agreement with the Department, such as through the EARN or KEYS program, cash and SNAP only recipients may receive the supportive services they need to complete their approved activity even if they have reached the limits in Appendix A.
The reason for creating this exception in the context of a written agreement with the Department (such as within the Department's contracted work activity programs) is simple: these programs utilize case management. Case management is a highly effective tool in the delivery of services to recipients participating in work or work-related activities. Case management facilitates the coordination and tracking of recipient services, including supportive services, especially for those with multiple employment barriers. Case managers are skilled at assessing, tailoring, managing and monitoring a recipient's supportive services to best fit each recipient's particular needs in a sensible and cost-effective way. In short, case management helps to ensure that recipients are well served and the Department's funds are wisely spent.
Even an individual completing self-initiated education or training (for example, an individual who completed the KEYS program and is continuing on to complete a 4-year degree) may receive additional supportive services if offered through an employment and training provider under a written agreement with the Department. The new provision should allay the commentators' concerns without sacrificing the Department's authority—indeed, its duty—to keep expenditures within reasonable, predictable bounds.
D. Comment
IRRC commented that the Department should explain its methods for determining each of the annual and lifetime limits. In addition, IRRC requested that the Department should address concerns of the affected communities regarding the impact of each limit on those seeking to improve their training and education, and to obtain and maintain long-term employment and self-sufficiency. IRRC requested a thorough fiscal analysis and explanation of the impact of and need for the proposed rulemaking.
Response
For ease of administration and to maximize recipient choice, the Department divided special allowances into six categories. These categories enable individuals to select the allowances that will best meet their needs.
In researching the types and limits of special allowances in other states, the Department found that other states have similar categories and parameters for special allowances for supportive services. Washington and Miss- issippi limit special allowances by category and dollar amount. For example, Washington limits special allowances to a total of $3,000 per participant per program year. Within that annual limit, special allowances are limited by category: $300 for educational expenses per request; $250 for vehicle repairs per program year; mileage reimbursement at the state employee rate; and up to $300 for each professional fee.
Mississippi offers several categories of assistance and specifies totals that are available for these items. For example, transportation-related items are limited up to $300 per month and clothing or books are limited up to $500 per year.
Comparing Pennsylvania to its near neighbors shows that many individual levels of special allowances are substantially lower than Pennsylvania. For example, New Jersey permits a totality of $500 for all work-related expenses and a per diem rate for transportation. West Virginia allows $1,000 in total for motor vehicle insurance and $2,000 for vehicle repair. West Virginia recipients do not receive special allowance for a motor vehicle purchase.
As previously described, in determining the parameters for special allowances for supportive services, the Department considered the Federal limits on activities counting towards the WPR, data on the length of participation in employment and training programs, historical data on special allowance usage and the impact of the regulations on future usage. Historical special allowance data showed that for work, education and training related allowances, in a 1-year period, over 97% of participants would not be impacted by the proposed parameters; and over a 2-year period, a maximum of 92% of individuals who receive special allowances would not impacted. The parameters set for work, education and training special allowances are more than adequate to support not only the benchmark amount of 18 weeks of participation in employment and training programming, but also those individuals who participate for a longer period of time, such as many of those in the KEYS program.
With regard to the transportation allowances, the Department's analysis shows that over 99% of participants historically would be supported within the $1,500 annual transportation-related allowances for public and private transportation. Based on historical data, the Department concluded that 99.9% of individuals requiring a special allowance for motor vehicle insurance would not be adversely affected by the lifetime limit and 99% of individuals requesting an allowance to purchase a motor vehicle would not be adversely affected. Based on the historical data and the impact of the PA WORKWEAR initiative, over 99% of individuals would not be adversely affected by the clothing allowance parameter.
E. Comment
One commentator contended that according to the Regulatory Analysis Form, the Department anticipates saving $2.199 million ($1.753 million in State funds) in the first year, with the first full-year savings estimated at $6.599 million ($5.259 million in State funds). The commentator contended that the Department has not provided data to support this assertion and that the Department arrived at this number by simply totaling the special allowances paid in the past that would not be paid in the future due to the imposition of the new and annual lifetime limits.
According to the commentator, this rulemaking will not save as much as the Department anticipates because the Department has not accounted for the number of recipients that may be unable to move off the assistance rolls and achieve self-sufficiency through quality education and training. The commentator asserted the Department will be called upon to continue to pay for public benefits received by these families because their ability to obtain self-sufficient employment will be impaired.
Response
The Department provided data to support the regulations. Both preceding and following the publication of the proposed rulemaking, the Department provided program data to stakeholders, including the commentator. As described in the response to the previous comment, the Department explained how it developed the amendments in Appendix A. Contrary to the opinion of the commentator, the Department derived its numbers in a factual and objective manner, drawing upon current and historic program data including cost, usage, current initiatives like PA WORKWEAR, other state's data and savings. The Department also does not agree with the commentator's statement that the amendments to Appendix A will hinder individuals from moving off assistance. To the contrary, the Department has a robust employment and training program designed to move individuals off assistance and into employment and has achieved a high success rate, even with the current economic downturn, in successfully assisting individuals participating in the TANF program in acquiring the skills and knowledge that they need to successfully move from the cash assistance program to the workplace. As of May 2010, well over 1,500 individuals per month are successfully moving into employment. The regulations are intended to protect the special allowance program from waste, abuse and fraud and assure its integrity while meaningfully supporting individuals with appropriate, targeted work supports.
F. Comment
Representative Baker expressed concern with the annual and lifetime limits in the proposed rulemaking. He stated that although the existing regulation limits the value of certain allowances, it does not limit how often allowances needed for education or training may be issued, nor does it limit needed transportation payments. Representative Baker expressed concern that the newly proposed limits may harm individuals seeking to better their lives through education or training, especially as the training required for a family-sustaining job may take more semesters than the proposed supports for education and training expenses would permit.
Representative Baker and another commentator are concerned about the harm these limits may cause recipients in rural areas because of travel needs. Representative Baker noted that the lifetime limits may also harm individuals who have worked their way off welfare but suffered a setback, such as domestic violence, a child's disability or a job loss, requiring them to start again.
Response
As previously discussed, annual and lifetime totals are rationally based on a number of factors, meaningfully provide for the needs of those seeking to successfully move into the workplace and are in line with or more generous than policies in many other states.
Regarding transportation, Departmental data reveals that 97% of the cases that utilized transportation would not be adversely affected. The Department analyzed transportation costs for students traveling from significant distances in rural counties to attend quality training programs and found that the $1,500 annual allowance is adequate. For example, a student enrolled in a two semester computer support specialist course at the Community College of Beaver County would require a maximum of $1,016 in transportation support for mileage between Beaver and Monaca. A participant attending an 8-week nurse aid training course at the Central Pennsylvania Institute of Science and Technology would require a maximum of $470.20 in transportation support for mileage from Moshannon.
With respect to the impact on participants who may be more reliant on automobile travel, the analysis showed that 90% of participants received only one allowance to assist with the purchase of an automobile to support participation in an approved work activity.
The Department also revised the final-form rulemaking to clarify that the Department may provide additional supportive services under a written agreement with the Department, as previously discussed. This revision addresses the concern raised about how to support an individual who is actively engaged in a program to help achieve self-sufficiency through improved quality education or training.
The Department disagrees with the assertion that this rulemaking will hamper individuals from achieving self-sufficiency. The Department's final-form rulemaking will support those individuals in their quest for independence from the public welfare system. The supports available through the special allowance programs are targeted to match the needs that people have as they move from welfare to work.
Finally, in response to Representative Baker's statement that current Departmental regulations do not place effective control on how many times a category of special allowances may be received, except for the transportation allowance of $250, the Department does not agree. The existing regulation contains many provisions limiting how often an individual may receive certain special allowances. For example, motor vehicle purchase and repair is once per job; motor vehicle-related expenses (such as a driver's license and inspection fees) is once per job; moving expenses related to accepting employment is once per 12-month period; and clothing, tools, books and fees is once per job. In addition to the foregoing limitations, the existing regulation restricts the special allowance for public and private transportation to the period up to the date of the first pay after employment.
G. Comment
Twenty commentators expressed concern that the limits appear to be arbitrary and unrealistically low. Some commentators stated that annual and lifetime limits are not necessary for program integrity because the Department has existing policies to prevent unnecessary spending. One commentator suggested that if limits are imposed, the limitations should be minimal and that the program should be implemented in a manner that rewards people complying with the regulation. One commentator expressed concern that this regulation would be detrimental to KEYS participant's ability to complete their degree programs.
Response
This rulemaking is intended to achieve fiscal responsibility and accountability while providing appropriate and effective targeted supports for individuals on the road to economic self-sufficiency. Departmental data indicates the average amount per issuance for several of these special allowances was notably less than the current maximum allowance. For example, the average payment is $384.88 for tools and equipment, $308.93 for books and supplies and $106.18 for fees. Current regulation provides up to $2,000 for tools and equipment per job, $500 for books and supplies as required for education and training and $250 for fees per job.
Departmental data for the KEYS program during FY 2009-2010 demonstrates that of the 11.8% of the participants who graduated from KEYS in that time period, 56% of them did so in less than 6 semesters. The average issuance of $308.93 for books and supplies multiplied by 6 semesters is below the $2,000 permissible for work, education and training-related allowances. For the remaining individuals who exceed 6 semesters, the Department reiterates that it added a provision to the final-form rulemaking clarifying the availability of additional supportive services to the extent required by an approved work, work-related or education program under written agreement with the Department, which would include individuals participating in the KEYS program. These individuals who are in the KEYS program will be able to access appropriately targeted supports to complete their participation and move into the workforce on solid ground.
Finally, this final-form rulemaking provides binding norms to increase enforceability of the current policy that laid the foundation for this final-form rulemaking. The annual and lifetime parameters are just one aspect of this final-form rulemaking; a final-form rulemaking that as a whole, enhances program efficiency and integrity and supports an effective program for individuals seeking to improve their knowledge, skills and opportunities to successfully participate in the workforce. This final-form rulemaking also appropriately provides for the Department's comprehensive effort to strengthen verification requirements and to collect overpaid special allowances.
H. Comment
IRRC commented that § 165.46(c) does not comply with the requirements of the Regulatory Review Act (71 P. S. §§ 745.1—745.12). IRRC suggested that this subsection be removed from the final-form rulemaking.
Response
Although the Department has the authority to adjust payment frequency, types and amounts in appendices by means of a notice, the Department deleted subsection (c) in the final-form rulemaking to maximize the public comment process in future adjustments of the codified amounts.
Key sections of the code reveal the General Assembly's intent to bestow upon the Department the authority to create and modify some aspects of eligibility without resorting to rulemaking. The plain language of section 408(c) of the code directs the Department to base the nature and extent of work supports on four factors: (1) availability; (2) costs; (3) number of recipients needing services; and (4) distribution to the greatest number of recipients. To fulfill this statutory mandate, the General Assembly instructed the Department ''to take such measures not inconsistent with the purposes of [the statute].'' Consistent with section 408(c) of the code are ''such measures'' as publishing a notice in the Pennsylvania Bulletin to modify special allowances as these four factors require.
Section 403(b) of the code and section 432 of the code (62 P. S. § 432) specify the Department has the power and duty to ''establish rules, regulations and standards'' regarding the nature and extent of eligibility for public assistance. Also, section 201(2) of the code requires the Department to promulgate regulations as well as to ''establish and enforce standards and to take such other measures as may be necessary. . . .'' Applying general rules of statutory construction, ''rules'' and ''standards'' are necessarily distinct from ''regulations''—to interpret otherwise would render those words superfluous. See 1 Pa.C.S. § 1922(2) (relating to presumptions in ascertaining legislative intent).
In fact, the Pennsylvania Code is replete with examples of the Department's authority to adjust appendices and provisions involving payment frequency and amounts via publication of a notice in the Pennsylvania Bulletin. A few of these examples are §§ 181.1, 299.37, 1150.61 and 1187.2.
§ 165.1(a)—Eligibility for special allowances for supportive services
Comment
IRRC noted that commentators claimed this subsection would require exempt volunteers to adhere to an hourly service requirement. IRRC pointed out that section 405.1(b) of the code (62 P. S. § 405.1) does not impose this requirement, but states that an applicant or recipient exempted from RESET may participate in employment and work-related activities. IRRC questioned the Department's statutory authority for subsection (a).
IRRC noted that commentators argued this subsection is not in the public interest and that exempt RESET individuals include those with disabilities and domestic violence victims. IRRC questioned how the Department intends to protect these exempt individuals while maintaining the hourly requirement.
Response
The Department agrees with the concerns expressed by IRRC and the commentators and amended the language in § 165.1(a) in the final-form rulemaking.
§ 165.44—Verification for special allowances for supportive services
A. Comment
IRRC noted that commentators expressed concern with the deletion of the phrase ''only when it is not readily apparent'' in subsection (a)(2). IRRC challenged the Department to explain the need for verification for authorization of every expense. IRRC questioned whether the need for transportation expenses would be readily apparent based on the address of the recipient and the job site or school. IRRC suggested that the Department provide examples of acceptable and readily accessible means of verification.
Response
Because what is readily apparent may be a matter of subjective opinion, the Department declined to restore the deleted text. For a fair, even-handed approach, individuals in varying scenarios shall verify the need for a special allowance. With this uniform approach, caseworkers need not risk making an erroneous call on what facts do or do not require supportive documentation. That said, the Department is confident that for arguably readily apparent facts, verification will not be difficult to obtain. With the availability of fast, reliable resources like the internet and caseworker assistance when necessary, verification of arguably readily apparent facts is often a few questions or keystrokes away. Verification of the need for a transportation allowance might occur in the context of an interview between caseworker and recipient. The caseworker would document the facts gathered during the interview. Verification of the distance from home to work may consist of a print off from a simple Mapquest search or the local transit provider's web site, which the caseworker would place in the recipient's file. Caseworkers may assist those without access to such fast, reliable resources as the Internet.
Finally, the Department agrees that individuals should not be required to provide verification from employers, school officials, training and social services providers for facts unknown to them. For example, a new employer is likely ignorant of an individual's personal transportation circumstances, so the Department would not look to the employer as the source of that verification. The list of sources for verification is not exhaustive in this section. Verification may involve caseworker inquiry and assistance.
B. Comment
IRRC raised a concern with respect to verification of service in subsection (b)(1)(i). IRRC questioned the need for subsection (b)(1)(i). Additionally, IRRC asked under what circumstances the Department would require verification from both the participant and the provider.
Response
If unreliable or inadequate verification is provided, the Department may require additional verification from the recipient or provider. The need to provide verification from both the participant and provider arises in the unusual circumstance where there is a reason to question the validity of verification provided by only one of these sources. The purpose of subsection (b)(1)(i) is to prevent fraud involving the special allowances through the provider or recipient, or both. Verification from both the provider and participant is not expected to be routinely requested. It might be requested when, for example, the County Assistance Office (CAO) has reason to believe verification provided by one source may be forged. For example, if the caseworker suspects or receives a tip that a car dealer or repair shop engaged in deceptive business practices, the caseworker might seek verification that the recipient actually received exactly the specific car or repair the special allowance paid for. If the caseworker suspects that a car purchase might be a sham transaction for the dealer and recipient's mutual benefit, the caseworker might seek documentation from both to prevent the apparent collusion. Finally, for incomplete, ambiguous or otherwise inadequate documentation, the caseworker might ask the supportive service provider to supplement the recipient's information.
C. Comment
IRRC commented that subsection (b)(2) sets forth when the Department will process supportive services overpayment referrals. IRRC noted that commentators expressed concern that this language would always result in overpayment referrals for the full amount, even though participants may have completed the majority of their required hours. IRRC questioned whether the amount that a participant will be required to repay will be pro-rated based on the hours.
Response
The Department agrees with IRRC and other commentators that an overpayment referral for the entire special allowance is not appropriate in all circumstances. For example, for individuals who have completed most or a portion of a work or work-related activity, the Department agrees that a partial, prorated overpayment referral—to the extent of the misuse of the special allowance—is the fairest approach. To clarify this sensible approach to special allowance overpayments, the Department added the phrase ''the extent of the misuse'' to subsection (b)(2).
One example is when an individual receives books to attend vocational education then stops attending half-way through the semester because the individual lost interest in the program. In this circumstance, the Department may process an overpayment for half the cost of the books. In another example, an individual might receive a monthly bus pass to attend a training program, but drops out after 1 week, thereby not fulfilling the requirement of the AMR or EDP. The Department may process an overpayment for the cost of the unused portion of the bus pass. On the other hand, if the individual stopped attending due to illness, hospitalization, homelessness or similar circumstance, the Department would not process an overpayment.
D. Comment
IRRC and a commentator noted that there is not a subparagraph (vii) and subparagraph (viii), therefore, should be renumbered.
Response
The Department agrees with IRRC and the commentator and renumbered this subparagraph.
§ 165.46—Types of special allowances for supportive services
Comment
IRRC and one commentator stated that the proposed regulation eliminates special allowances for moving costs. They also noted that section 432.20 of the code (62 P. S. § 432.20) specifically allows for assistance for moving costs ''to ensure gainful employment.'' IRRC asked the Department to examine the economic impact of this deletion and explain the need for this change.
Response
The Department revised the final-form rulemaking by adding moving and relocation expenses as a special allowance. Under section 432.20 of the code, the special allowance may be authorized as required to accept gainful, permanent employment, not more than once in a 12-month period, and for the actual cost up to $200.
Regulatory Review Act
Under section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)), on August 25, 2010, the Department submitted a copy of the final-form rulemaking, to IRRC and the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the House and Senate Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.1) and (j.2) of the Regulatory Review Act, on October 6, 2010, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 7, 2010, and approved the final-form rulemaking.
Findings
The Department finds that:
(a) The public notice of proposed rulemaking has been 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.
(b) The adoption of this final-form rulemaking in the manner provided by this preamble is necessary and appropriate for the administration and enforcement of the code.
Order
The Department, acting under sections 201(2), 403(b) and 408(c) of the code and 7 CFR 273.7(d)(4), orders that:
(a) The regulations of the Department, 55 Pa. Code Chapter 165, are amended by amending §§ 165.2, 165.41—165.43, 165.45 and 165.91 to read as set forth at 40 Pa.B. 2111 and by amending §§ 165.1, 165.44, 165.46 and Appendix A to read as set forth in Annex A.
(b) The Secretary of the Department shall submit this order, 40 Pa.B. 2111 and Annex A to the Offices of General Counsel and Attorney General for approval as to legality and form as required by law.
(c) The Secretary of the Department shall certify and deposit this order, 40 Pa.B. 2111 and Annex A with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon final publication in the Pennsylvania Bulletin.
HARRIET DICHTER,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 6226 (October 23, 2010).)
Fiscal Note: 14-518. No fiscal impact; (8) recommends adoption.
Enactment of this regulation is expected to save $1.679 million in state funds.
Annex A
TITLE 55. PUBLIC WELFARE
PART II. PUBLIC ASSISTANCE MANUAL
Subpart C. ELIGIBILITY REQUIREMENTS
CHAPTER 165. ROAD TO ECONOMIC SELF-SUFFICIENCY THROUGH EMPLOYMENT AND TRAINING (RESET) PROGRAM
GENERAL RESET PROVISIONS § 165.1. General.
(a) A recipient who is not exempt shall participate in and comply with RESET, including meeting hourly and other work and work-related requirements as specified on the AMR or EDP, unless the recipient establishes good cause. An exempt individual may volunteer to participate in an approved work or work-related activity. The Department will inform an applicant and recipient of the rights, responsibilities and services and benefits available to RESET participants. The Department or its agent will assess the recipient's ability to meet RESET participation requirements after consultation with the recipient.
(b) The Department will provide RESET participants with case management and special allowances for supportive services as required to help them become self-sufficient. The Department will authorize special allowances for supportive services for the least costly item or service which is available and practical considering the location and hours of scheduled employment or training, and the location of the participant's residence in relation to the provider of the item or service. In addition, the Department will provide participants with or refer them to work or work-related activities designed to break the cycle of welfare dependency. To the extent it deems possible, the Department will identify and promote resources in the public and private sectors that may assist participants to prepare for and obtain employment they may realistically be expected to obtain.
(c) Nothing in this chapter 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.
(d) This chapter applies to recipients of TANF and GA cash assistance. Sections 165.41—165.46 (relating to special allowances for supportive services) also apply to SNAP only participants defined in § 165.2 (relating to definitions). For SNAP only participants, a special allowance for supportive services may be authorized as determined by the Department only up to the employment start date, with the following exception. SNAP only participants who obtain employment after participating in a SNAP work-related activity may receive special allowances for supportive services not to exceed the types and time frames permitted by Federal law.
(e) The Department may provide for additional supportive services to the extent required by an approved work, work-related or educational program under a written agreement with the Department.
SPECIAL ALLOWANCES FOR
SUPPORTIVE SERVICES§ 165.44. Verification for special allowances for supportive services.
(a) Verification needed to authorize special allowances for supportive services.
(1) Before authorizing the special allowance for supportive services, the Department will determine the following:
(i) Whether the supportive service requested is required to enable the participant to engage in an approved work or work-related activity.
(ii) The expected charge for the service or item requested.
(iii) The date the service or item is needed by the participant.
(iv) The date that payment for the service or item is required under the provider's usual payment policy or practice.
(2) Verification, including collateral contact, that the special allowances for supportive services is required will be provided prior to authorization.
(3) Acceptable verification consists of collateral contacts, written statements or completed Departmental forms, obtained from sources such as employers, prospective employers, school officials, employment and training providers or providers of supportive services. If collateral contacts are used, the information will be documented in the participant's file.
(4) The Department will use collateral contacts whenever necessary to ensure that payment is made in advance of the date that payment is required.
(b) Verification needed for reoccurring and nonrecurring special allowances for supportive services.
(1) The participant's eligibility for a special allowance for a supportive service is reviewed monthly, or more often if expenses are likely to change, at each redetermination or recertification, whenever a change in employment or training is reported by the participant or the employment and training provider, and whenever the AMR or EDP is revised.
(i) A participant shall verify the actual costs incurred by the participant for the supportive service and the participant's attendance at the approved work or work-related activity. The Department may require that the participant or provider of the supportive service, or both, verify that the participant received the approved special allowance for supportive services and that the provider received payment for the amount the participant was eligible to receive.
(ii) When verification provided indicates a change in eligibility, payment of the special allowance to the participant shall be reduced, terminated or increased, as appropriate, upon issuance of a confirming notice to the participant, in accordance with § 133.4(c) (relating to procedures).
(2) The Department will process an overpayment referral to recover a special allowance for supportive services to the extent of the misuse in accordance with § 165.91 (relating to restitution) and Chapter 255 (relating to restitution). Circumstances for which a referral may be appropriate include the following:
(i) The participant was ineligible for cash assistance or SNAP only benefits in the month the Department issued a special allowance for supportive services.
(ii) The participant did not use the special allowance for supportive services for its intended purpose.
(iii) The actual cost of the supportive service was less than the estimated cost of the service.
(iv) The participant provided falsified or erroneous documentation to obtain a special allowance for supportive services.
(v) The participant received a reoccurring special allowance for supportive services when the need no longer existed.
(vi) The participant or provider of supportive services, or both, did not provide verification, such as a receipt, that the supportive services requested were obtained using the special allowance payment.
(vii) The participant did not participate in or comply with RESET, including meeting hourly and other work and work-related requirements as specified on the AMR or EDP.
§ 165.46. Types of special allowances for supportive services.
(a) Transportation and related expenses. The Department will pay for transportation and related expenses required for an individual to engage in approved work or work-related activities up to the maximum allowance established in Appendix A (relating to work or work-related special allowances). Transportation-related allowances are provided for the least costly type of transportation which is available and practical considering the location and hours of scheduled approved work or work-related activity, the participant's physical condition and the need to transport children to a child care provider. Transportation-related allowances are not provided if the activity is secondary education or an equivalent level of vocational or technical training unless the individual is pregnant or a custodial parent.
(1) Public transportation. Public transportation-related allowances are provided for costs incurred for transportation provided by bus, subway, commuter rail, taxi, paratransit or other recognized modes of transportation.
(i) An allowance for public transportation is the actual cost to the participant up to the maximum amount established by the Department in Appendix A (relating to work and work-related special allowances).
(ii) Verification of the need and the cost of transportation is required.
(2) Private transportation. Private transportation-related allowances are provided for costs incurred for transportation provided by privately owned vehicles, ride sharing and car or van pools.
(i) An allowance for private transportation provided by a vehicle owned by the participant is the mileage rate established by the Department in Appendix A and the actual cost of parking and highway or bridge tolls up to the maximum amount established by the Department in Appendix A.
(ii) An allowance for transportation provided by a volunteer driver or if the participant is permitted to use another person's vehicle is the mileage rate established by the Department in Appendix A and the actual cost of parking and highway or bridge tolls up to the maximum amount established by the Department in Appendix A.
(iii) An allowance provided for transportation by a car or van pool is the participant's proportionate share of the cost up to the maximum amount established by the Department in Appendix A. If the participant's share is a flat fee, the payment is the actual fee up to the maximum amount established by the Department in Appendix A.
(3) Motor vehicle purchase or repair. When there is no other type of practical transportation available or other available transportation is more expensive, a special allowance may be authorized toward the purchase, down payment or repair of a motor vehicle for an individual to participate in an approved work or work-related activity.
(i) The maximum total allowance toward a motor vehicle purchase, down payment and repair is limited to the rate and frequency established by the Department in Appendix A.
(ii) Preexpenditure approval is required.
(4) Motor vehicle-related expenses. The cost of a driver's license, State inspection fee, emission control inspection fee, license plates and vehicle registration fee may be authorized for a participant if they are required for participation in an approved work or work-related activity.
(i) Payment is made for actual cost up to the maximum allowance and frequency established by the Department in Appendix A.
(ii) Preexpenditure approval is required.
(5) Motor vehicle insurance. The cost of motor vehicle insurance may be authorized if the allowance is required for participation in an approved work or work-related activity.
(i) The allowance is provided only to participants who use their own vehicles.
(ii) Payment is made for actual cost up to the maximum allowance established by the Department in Appendix A.
(iii) Preexpenditure approval is required.
(b) Other expenses related to approved work and work-related activities. Special allowances may be authorized for other items related to participation in approved work or work-related activities. Preexpenditure approval is required. The maximum allowances for these items are subject to the rates and frequencies established by the Department in Appendix A.
(1) Clothing. The Department may refer a participant to other public or nonprofit sources that provide clothing and grooming items at no cost. If these sources are not available or do not have appropriate clothing or other required items, the Department may authorize a special allowance for supportive services for clothing and grooming items required to participate in an approved work or work-related activity.
(2) Tools and other equipment. A special allowance may be authorized for tools and other equipment which an employer, education, employment or training provider requires for participation in an approved work or work-related activity but which are not provided by the employer, education, employment or training provider and are not available under Federal, State or other educational grants.
(3) Books and supplies. A special allowance may be authorized for books and supplies that an employer or employment and training provider requires for a participant to participate in an approved work or work-related activity if these items are not provided by the employer or training provider and are not available under Federal, State or other educational grants.
(4) Fees. A special allowance for supportive services may be authorized for a fee to take a test such as a high school equivalency test, a test that is a prerequisite for employment or for registration or enrollment fees required for an individual to enter an approved work or work-related activity. Tuition is not construed to be a fee.
(5) Union dues and professional fees. If payment of union dues or professional fees is a condition of employment, a special allowance for supportive services may be authorized to participants who receive TANF or GA cash assistance for the initial fee only and for the period up to the date of the participant's first pay. A special allowance for supportive services may not be issued to pay for reoccurring fees, such as license fees, even if they are necessary for the individual to maintain employment.
Appendix A
WORK AND WORK-RELATED SPECIAL ALLOWANCES
Type of Allowance Frequency Maximum Allowance TANF or GA SNAP Only PUBLIC TRANSPORTATION
RELATED ALLOWANCES—actual cost up to $1,500 annually Transportation
Public
—bus
—subway
—commuter rail
—taxi
—paratransit
—as required for job interviews, work or work-related activities —as required for job interviews, work or work-related activities —for employment, may be authorized for the period up to the date of the first pay —for employment, may be authorized for the period up to the start date PRIVATE TRANSPORTATION
RELATED ALLOWANCES—actual cost up to $1,500 annually, except for moving/relocation costs to accept employment Transportation
Private
—privately-owned vehicle
—volunteer car and driver
—as required for job interviews, work or work-related activities —as required for job interviews, work or work-related activities —mileage reimbursement rate will be set by the Department by notice not to exceed Commonwealth reimbursement rate for actual cost of gasoline, plus the actual cost of parking and highway and bridge tolls —for employment, may be authorized for the period up to the date of the first pay —for employment, may be authorized for the period up to the start date Transportation
Car or van pool—as required for job interviews, work or work-related activities —as required for job interviews, work or work-related activities —for employment, may be authorized for the period up to the date of the first pay —for employment, may be authorized for the period up to the start date Moving/relocation costs to accept employment —to accept a verified offer of gainful, permanent employment —to accept a verified offer of gainful, permanent employment —actual cost up to $200 —no more than once in a 12-month period —no more than once in a 12-month period Motor Vehicle Repair —as required for work or work-related activities —as required for work or work-related activities or if required to accept employment Motor Vehicle-Related Expenses
—driver's license
—State inspection fee
—emission control inspection fee
—license plates
—vehicle registration fee
—as required for work or work-related activities —as required for work or work-related activities or if required to accept employment MOTOR VEHICLE PURCHASE —as required for work or work-related activities —as required for work or work-related activities or if required to accept employment —actual cost for one vehicle up to $1,500 in a lifetime. MOTOR VEHICLE INSURANCE —as required for work or work-related activities —as required for work-or work-related activities or if required to accept employment —actual cost up to $1,500 in a lifetime. CLOTHING —as required for work or work-related activities —as required for work or work-related activities or if required to accept employment —required clothing or actual cost of clothing up to $150 annually WORK, EDUCATION AND TRAINING RELATED ALLOWANCES —actual cost up to $2,000 in a lifetime Tools and Equipment —as required for work or work-related activities —as required for work or work-related activities or if required to accept employment Books and Supplies —as required for work or work-related activities —as required for work or work-related activities Fees —as required for work or work-related activities —as required for work-or work-related activities or if required to accept employment Union Dues/Professional Fees —may be authorized for the period up to date of first pay —may be authorized for the period up to the start date
[Pa.B. Doc. No. 10-2195. Filed for public inspection November 19, 2010, 9:00 a.m.]
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