NYS Implementation Federal Rules Changes

Summary and Analysis of 08-ADM-07, Dated 10/1/08

March 23, 2009

Author: Don Friedman

Introduction

In response to changes in federal regulations, OTDA issued 08-ADM-07, which took effect in October 2008.  It is unclear whether this ADM, especially those provisions that might be favorable to public assistance recipients, is being implemented.  We therefore thought it might be useful to provide a summary and analysis of the ADM.  We focus on provisions that may affect the rights and obligations of PA recipients, help explain particular local district practices or that may provide support for local policy advocacy.

A detailed explanation of the work rules in New York is provided in An Advocate's Guide to the Welfare Work Rules.

A note on two-parent families:  Because of the federal 90% participation rate for two-parent families, New York removed those households from the TANF program, though these households are nevertheless still subject to New York work requirements.

Key provisions:

1.  Needed in the home to care for a disabled family member

• A parent needed in the home to "provide full-time care for a disabled family member" is exempt from work activities.
  • The person must be a parent, though not necessarily of the disabled household member; non-parent caretakers can also be exempt if needed in the home, even though, under federal law, they will not be excluded from the participation rate calculation.
  • The person must establish that s/he is "needed" with medical evidence
    • The medical evidence must establish the need for care and the expected duration of the disability.  If the expected duration cannot be determined, an update should be requested every three months 
    • Even where the disability is permanent, the documentation should be submitted at least annually
  • If the disabled person being cared for is also a work-eligible individual (such as a spouse), then the household remains in the participation rate calculation, unless the disabled person is otherwise excluded (for instance because s/he receives SSI)
  • If a person is needed in the home part-time, s/he will not be exempt from work but there may be limits placed on the number of assigned hours.

Comments: 

• Until now, caring for a disabled member could be a countable activity, community service.  It can no longer be that, but is now a basis for an exemption.  The relevant regulation will be amended in the near future.
• An earlier provision that the exemption can only be given if the disabled person is not attending school full-time has been eliminated.

2.  Parents receiving SSI or SSDI

• Parents receiving SSI are generally not part of the public assistance case, and therefore not "work-eligible."  Even if they are part of the PA case, such as certain families living in shelters, they are considered to be child-only cases, and not part of the participation rate calculation.
• Parents receiving SSDI are now also excluded from the work-eligible definition and excluded from the participation rate calculation.  If an adult receives public assistance and SSDI, s/he is still exempt from the work requirements, even though federal law includes the household in the participation rate calculation.
• SSI and SSDI recipients, although exempt from the work requirements, may voluntarily participate and receive supportive services.

Comment:  Voluntary participants should not be subject to sanction, see "Deeming Hours," below.

3.  Exclusivity of activities

• Under the revised TANF rules, activity definitions are supposed to be mutually exclusive, so that a given activity can only fall into one classification.  But the ADM notes a few exceptions:
  • Various training activities that can be counted as vocational educational training can also count as job skills directly related to employment if they are necessary and regular parts of the work activity.
  • Basic skills education and ESL can count as vocational educational training if they are necessary and regular parts of that training.  They can also count as education directly related to employment.
  • If a person is being paid by an employer, then treatment, training and other supportive activities can count as employment or on the job training.  

Comment:  When a district classifies an activity under a category that is time limited, such as the 12-month limit on vocational training, or otherwise restricted, advocates may want to creatively examine whether the activity may be reclassified, and the allowable time thereby extended.

4.  Counting only actual hours of participation

• Under the final TANF rule, only actual hours of participation may be counted, not, for example, scheduled hours.  The only exception is with regard to hours of employment, discussed below.

Comment:  HHS approved NYS's plan to count teen parent participation in secondary school if the teen can confirm that s/he teen is enrolled in the school.

• Homework – Supervised homework and study are countable towards an education and training activity.  In addition, OTDA adopts the federal rule, under which the state can count up to one hour of unsupervised homework for each hour of class time, up to the number of homework hours expected by the provider.    

Comment:  Unfortunately, the ADM only encourages, and does not require districts to use this provision to support participation in education.

• Travel time – Districts cannot count travel time to and from work activities as hours of participation.  But they may count hours of travel from one job interview to another as part of job search.
• Hours of paid employment and paid on-the-job training – Unlike most activities, for which only actual hours of participation can be counted, hours of paid employment and paid on-the-job training can be projected up to six months into the future based on current documents.  To project hours and pay, districts should take the average for the preceding four weeks, if possible, and request additional documentation as needed for accuracy. 
  • For paid work activities, up to four weeks of work hours can be credited  based on the client's self-attestation that s/he has started a new job.  This can be done if insisting on added documentation might put the job in jeopardy, and where the claimed hours and wages seem reasonable.
• Self-employment -  Unless other documentation is available, hours of self-employment can be calculated by taking net income, after taking the deductions  set forth in 95 INF-33, and dividing by the federal minimum wage.  If a different number of hours is claimed, then alternate documentation must be submitted.
• Holidays – Recipients can be credited for work hours that are missed because the work site was observing a holiday.  This rule applies to no more than ten holidays a year, which are listed in the ADM.  Workplace holidays in excess of this limit or for holidays that are not on the designated list can count as excusable-good cause absences, but cannot count towards meeting participation rates.
• Excused absences – Excused absences will be now be counted in terms of hours rather than days.  A person can have up to 80 hours of excused absence from an assigned activity in a twelve-month period, with no more than 16 hours per month. Generally, excused absence hours can count towards meeting participation requirements (see the holiday exception above).
  • If a district finds that a client had good cause for a failure to comply and/or that the failure was not willful, then the hours missed should be countable as an excused absence.
• Deeming hours of participation in WEP - The maximum number of hours of work experience that can be assigned is calculated by dividing the monthly PA grant plus food stamps by the higher of the federal or state minimum wage.  If a person is engaged in the maximum allowable number of hours under the formula and that number is fewer than 20, s/he is deemed to be fulfilling the 20-hour core requirement (but not the full 30 hours).
  • Recipients subject to the overall 30-hour work requirement can still be assigned 10 additional hours.  But since single parents with a child under 6 years are only required to engage in 20 hours of activity per week, the deeming described here would enable them to fulfill their required hours.

Comment:  Advocates have tried to persuade OTDA to require that single-parent families with a child under 6 can fully meet their work obligations  if they perform 20 hours a week of work-related activities.  It can be argued that, at least in the case described above, if the single parent performs the maximum number of hours allowable under the formula, then she should be deemed to be fully meeting her work requirement.

• The formula described above applies also to community service, so a person cannot be assigned to more hours of community service than the formula would allow.  However, since OTDA is defining community service as primarily a voluntary activity, it will not deem additional hours in the same manner as it is doing for work experience.

Comment:  I believe this to be intent of the language of the ADM.

• Recipients who fail to participate in a voluntary community service activity cannot be sanctioned, but may be reassigned.
• Distance learning – Up to 10 hours per week of distance learning that would count if it were done in person can be counted as part of a recipient's educational or job skills activity.  The hours must be documented with, for example, on-line tracking and reviews of assigned work.  Detailed records of instruction and work performed must be maintained.  Generally, there must also be a face-to-face component of the instruction, unless OTDA approves a different approach.
  • Among other limitations, distance learning can only be counted if the person cannot participate in classroom instruction, the program is not locally available, or the person is employed at least 20 hours per week.

5.  Documentation of participation

• The TANF rule adopted more strict and uniform requirements for documenting work participation, with penalties imposed upon states that fail to comply.
  • What is considered acceptable documentation can vary, but worksites must at least maintain monthly records that include:
    • the person's name
    • actual hours of participation for each day,
    • the total number of hours for each activity for the month
    • hours missed due to holidays or other excused absences
    • contact information for the person verifying the hours

Comment:  The ADM requires that this documentation be maintained as part of the case record "or by alternate means" (p. 23).  Thus, evidence concerning client participation may be maintained separately from the client's main case record, but should be nevertheless fully accessible.

• When the district obtains information that the client did not attend required hours, the conciliation/sanction process should be initiated.
• Districts should obtain from providers information about holidays and other breaks in work so that, if necessary, the district can schedule alternative activities.  The ADM cites as an example that a break in the program might be replaced with study time that is designed in such a way as to meet federal requirements.

6.  Supervision

• Supervision for paid jobs and on-the-job training will be determined by the employer.
• Other activities must be supervised "no less than frequently than daily."

Attachment A:  Work activity definitions for households with dependent children

Comment:  Attachment A to the ADM sets forth detailed definitions of the work activities.  Three introductory points about these definitions: 

• The ADM instructs that districts should strive to assign people to activities that count toward participation rates.  But districts may allow some non-countable work activities, which must be outlined in the district's employment plan.
• The federal rules sought to make the definitions mutually exclusive, so that with limited exceptions[1], a given activity can only fall into one classification.  The goal was to prevent states from counting people as engaging in an activity that might be time-limited, and then letting them continue in that activity by reclassifying it.
• Most activities require daily supervision.  However, daily supervision means that someone has daily responsibility for oversight of the person's participation, not necessarily daily, in-person contact with the participant [an important exception to the supervision rule is the counting of unsupervised homework, see above].
• Unsubsidized employment – full or part time, public or private
• Subsidized private or public sector employment – can include grant diversion, supported employment programs and paid college work-study at private institutions.

Comment:  For the employment activities listed above, common sense definitions apply.  But the ADM notes that training and supportive activities, such as mental health treatment, that are integrated into the job, can count as employment if the person is paid for the time spent in those activities.

• Work experience – is work done in return for receiving PA, and must enable the person to acquire skills, knowledge and work habits, improving employability.  Approved unpaid internships that are part of an educational curriculum (even if the educational activity is not approved) can count as work experience.
• Maximum assignable hours:  See the section on Deeming Hours of Participation in Work Experience, above.
• Documented hours of work that are required by a residential treatment program and that meet the relevant criteria can count as work experience.

Comment:  The federal rules do not limit this category to residential treatment.  They also note that once a person has completed the 12-month maximum of vocational education, the activity may count as work experience if it meets the criteria.  The ADM does not explicitly adopt this rule for vocational training.  This may suggest an avenue of advocacy.

• On-the-job-training (OJT) – is training provided to a paid employee, and must provide skills and knowledge essential to the performance of the job

Comment:  The federal rule suggests that after a person has met the 12-month limit on vocational education, it is possible that some additional vocational education can be classified as OJT, if it meets the criteria.  The ADM does not address this option.

• Job search/job readiness assistance – these are grouped together in the federal regulations, but separated in the ADM.  Job search includes seeking employment and preparing to seek employment.  Job readiness can include job skills preparation (such as resume writing, interviewing), life skills training, drug and mental health treatment, and rehabilitation.  The need for treatment and therapy must be documented by a qualified professional.  Job search and job readiness can count towards a person's participation for no more than 120 hours in a year for a single-parent household with a child under 6, and for no more than 180 hours for all other households, no more than four weeks of which are consecutive.  Nevertheless, districts can require job search beyond 180 hours.
  • Job search requires daily supervision, but this may include "access" to a supervisor, and actual face-to-face contact can be once a week.
  • Participation in "intensive residential treatment services" can count as up to 8 hours per day of job readiness activity.
  • Drug treatment is a job readiness activity, but, because of the federal rules, can be a countable activity for no more than 6 weeks.  But recipients who require treatment beyond 6 weeks should be permitted to continue, even if they can no longer count as work participants under the federal rules.

Comments: 

• A major problem with the federal rule is the fact that hours spent in the various job readiness activities described above can count as participation for no more than 6 weeks in a year.
• The federal rule does not allow the counting of domestic violence treatment.  HHS justified this by noting that people with D.V. issues can be excused from various activities under the Family Violence Option.

• Community service – is structured activity with a public or non-profit organization that directly benefits the community while aiming to improve the person's employability.  Most of these types of activities would be considered work experience, with this exception:
  • Community service can include "truly volunteer" work, such as with a faith-based institution, Americorps or VISTA.  The district must evaluate the activity to ensure that it provides "workplace experience" and will improve employability.
    • In community service, a person may work more hours than would be assignable under the work experience formula, but cannot be required to do so.  Also, the person can stop working without sanction, but would be subject to an alternative assignment. 
    • An activity cannot count as community service if it is countable as some other activity, such as vocational education or job readiness.
    • Caring for someone in the home who needs full-time care no longer counts as community service, but can be the basis for a work exemption (see above). 
      
• Vocational education (voc. ed.) – includes programs directly related to preparation for employment in "current or emerging occupations."  Programs must prepare participants for specific occupations, although the program may include more general training, such as problem solving skills and work attitudes.
  • Basic and remedial education, including ESL, can be counted as voc. ed. only if they are a necessary or regular part of a voc. ed. program, and must take up less than half of the individual's participation at any given time.
  • Voc. ed. can include no more than two years of post-secondary education.
  • Voc. ed. cannot count towards participation for more than 12 months in a lifetime, but see the discussion of job skills training, below.
• Job skills training directly related to employment – training or education for skills necessary to get or keep a job, advance in a job, or "adapt to the changing needs of the workplace."  This can include literacy education, ESL and other basic education to improve employability.
  • Certain kinds of education and training can be classified as job skills training as well as vocational education, an exception to the rule that every type of activity should fit into only one work category.

Comment:  The ADM thus provides the possibility that after a person has reached the 12-month limit on voc. ed., certain activities – including bachelor's and advanced degree programs – can count as job skills training directly related to employment.

• Education directly related to employment for recipients lacking a high school diploma or equivalent. 
  • The educational activity must be related to a specific occupation, job or job offer, or must improve employability.
  • The activity can include ESL and adult basic education.
  • Teen parents and minor household heads can count as fully meeting their  required work hours if they engage in this activity for at least 20 hours per week.
    
• Satisfactory attendance in secondary school or the equivalent for a recipient who has not completed secondary school.
  • This activity does not include ESL and adult basic education unless they are linked directly to the secondary school or equivalent.
  • Teen parents and minor household heads can count as fully meeting their work requirements if they maintain satisfactory attendance in this activity.

Comment: Note that unlike the preceding activity, education directly related to employment, this activity does not have to be necessary for obtaining a job.

• Providing unpaid child care to a recipient of Family Assistance or Safety Net for Families with Children so that the recipient can engage in community service.
  • This is a countable work activity.  Supervision must be daily, but may include, for example, access to the parent by telephone.

[1]  One exception, important for our purposes, is the federal agency's express advice that, under the right circumstances, college education can be counted as both vocational education and as job skills training.