Final Regulations Enhance Public Assistance Recipients Access to Education Activities

August 13, 2009

Author: Don Friedman

In late January, the Office of Temporary and Disability Assistance (OTDA) proposed amendments to state regulations relating to public assistance recipient participation in educational and training activities.  Following a period during which the public was invited to comment on the proposed regulations, OTDA has now finalized those regulations, without making any changes.  They are scheduled to take effect on October 1, 2009.

These regulations may contribute in a significant way toward enhancing public assistance recipients’ access to education activities.  But as important as these changes may be, it is likely that local districts will be reluctant to implement the changes if they believe they are onerous, or local staff simply may not fully understand the obligations that these regulations establish.  It is therefore incumbent upon advocates to familiarize themselves with the changes in the law and ensure that districts implement them fully.  This article describes the main features of the new regulations with a few editorial comments. 

Defining “basic literacy”:  State law and regulations already provide that a person lacking basic literacy shall be encouraged and may be required to participate in educational activities, including high school equivalency.  The new regulation provides that (1) basic literacy means reading at a 9th grade level, and (2) for persons lacking a high school diploma, literacy levels shall be determined based on a test determined appropriate by the State Education Department.

Comments:

1. For many years, the state failed to define basic literacy.  Designating a 9th grade reading level as the standard for defining basic literacy is a valuable addition to and clarification of the existing rule.
2. The literacy definition does not apply to individuals with a high school diploma. Sadly, there are too many high school graduates who do not read at a 9th grade level, and they should not be denied access to appropriate educational activities.  In response to a number of comments on this point, OTDA declined to modify the regulation, but said they would make clear “in office policy” that such individuals must also be encouraged to participate in educational activities.
3. The regulations also do not prescribe when and to whom the literacy test should be administered.  In response to comments, OTDA noted that all recipients without a high school diploma must be informed of their right to pursue educational activities, and that if they express an interest in such activities, they will then be tested. They therefore concluded that no testing mandates are warranted. This will be an area for close scrutiny.

Recipients lacking a high school diploma or equivalent:  If the district finds that a person has achieved basic literacy but lacks a diploma, that person must be offered the option, or may be required, to participate in education designed to improve literacy and/or “prepare the individual for attainment of” a diploma.  This activity may be combined with other work activities and must be consistent with the person’s employability plan.

Assessments – prior participation in education: The final regulation retains the provisions stating that the factors to be taken into account in the assessment process should include the individual’s “prior participation in education and training.”

Comment:

This might seem like a reasonable factor to look at in the assessment, but there is the danger that  local districts will use the fact that a person has lready participated in some prior program as the basis for unreasonably denying access to additional programs.  In response to comments, OTDA agreed to clarify in Office policy that the fact that a recipient has in the past participated in educational activities should not, by itself, justify a denial of  further educational activities.

Homework:  When a person is assigned to educational activities, the district may count as participation all hours spent in supervised homework and up to one hour of unsupervised homework time for each hour of class time.  The total countable homework time cannot exceed the  number of homework hours recommended or required by the educational program.

Comment: 

A number of commenters expressed frustration that the proposed regulation would leave the districts with the discretion to decide whether to count homework hours.  It was our view that the decision to count homework time might well determine whether an individual can successfully engage in the educational activity.  Nevertheless,OTDA determined to leave that discretion to the counties. 

Afterword – The Regulatory Impact Statement:  Although it is not an official part of the regulations, the statement that accompanied the proposed regulations is worth noting, in part because of its persuasive language about the importance of education for welfare recipients.  Among other information provided, OTDA shares two important facts:  first, that a majority of adult recipients lack a high school diploma, and second, that 24% of adult recipients are employed but earn so little that they are still eligible for welfare.  The Statement then observes that people who do not a have high school diploma, compared with those who do, are likely to have lower earnings, higher rates of unemployment, lower rates of job retention and fewer job training opportunities.  Similarly, the Impact Statement also recites the advantages of basic literacy in terms of daily living, access to further educational opportunities, and employment.

To view the regulations, click on the link below, which will take you to the state register. Then go to page 24.  http://www.dos.state.ny.us/info/register/2009/jan28/pdfs/rules.pdf