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Empire Justice Comment on Proposed Amendments to 18 NYCRR §§385.6 and 385.7

January 29, 2009


Jeanine Stander Behuniak
NYS Office of Temporary and Disability Assistance
40 N. Pearl St. 16C
Albany, NY, 12243-0001

Subject:  Comments on proposed amendments to 18 NYCRR §§385.6 and 385.7, etc.

Dear Ms. Behuniak:

I appreciate this opportunity to comment on behalf of the Empire Justice Center with regard to the proposed amendments to Title 18 of the Social Services regulations, dated January 28, 2009.  We strongly support these proposed modifications to the extent that they enhance public assistance recipient access to education and training activities.  We also discuss our concerns with certain aspects of the regulations which we fear may hinder progress toward this crucial objective.

1. Comments on the proposed regulations in general

(a) Access to education and training.  The Empire Justice Center has long supported measures that enhance recipient access to education and training.  The evidence discussed in OTDA’s own Regulatory Impact Statement persuasively demonstrates the benefits of every incremental gain in educational attainment.  With each new level of education comes higher rates of employment, higher earnings, higher rates of job retention and wider job training opportunities.  It is fairly shocking that, as noted by OTDA, a substantial majority of adult recipients lack a high school diploma.  Further, 24% of adult recipients are employed but earn so little that they are still eligible for welfare.  We agree with OTDA that the proposed rule will improve skill levels for adults entering the workforce.  We also agree that literacy education will improve the quality of daily living for recipients, and will help them to access further educational opportunities and better-paying employment.

(b) Local district discretion.  We also agree with OTDA that under the proposed regulations local districts will retain their authority and responsibilities with regard to the administration of work programs.  Districts will still have to evaluate the appropriateness of an activity for each individual, taking the district’s needs and resources into account, and will, in other critical respects, make ultimate determinations regarding the individual’s work participation.  We agree that the proposed regulations will not substantially diminish district discretion.

2.  Assessment criteria – prior participation in education and training 

The proposed regulations add prior participation in education and training to the list of factors to be taken into account in the assessment process.  At first glance, it seems reasonable, in evaluating whether a person should be authorized to participate in education or training, to determine whether that individual has previously attended other education or training programs.  But we are concerned that districts will use the person’s prior participation as a basis for unreasonably denying access to additional programs.

There are various reasons why it might be completely appropriate for a person to participate in an education or training program despite prior engagement in such activities.  The prior program might have been of poor quality, the individual might have had a crisis that prevented successful completion at the time, or might have needed the prior program in order to qualify or be prepared for the present program.  Denial of any further opportunity to participate in education or training would be unfair and counterproductive.  

The existing law already allows the assessment to take prior activities into account.  The list of assessment criteria in the regulation, §385.6(a)(2), is explicitly not exclusive.  The district is free to consider a wide range of relevant factors.  But specifically adding prior participation to the current list essentially invites districts to give undue weight to this one factor and to apply it arbitrarily to deny access to education and training programs. 

For these reasons, we urge OTDA not to adopt this amendment.  At the least, if this modification is made to the regulation, we would ask that there be accompanying language to ensure that prior activity cannot be used to unreasonably deny appropriate participation in education and training.  For instance, districts might be required to include in their employability plans an explanation of any denial of education activities based on previous participation.  This explanation should include the facts supporting a finding that further educational activity was unlikely to be beneficial to the recipient.  In short, districts must not be permitted to make arbitrary determinations that prior participation justifies a denial of future participation.

3. Basic literacy and high school equivalency

(a) Introduction.  Too often, local districts have not fully complied with the existing requirement that they encourage or require people lacking basic literacy to participate in educational activities.  To the extent that these amendments will result in broader, more consistent application of this rule, this is a significant and welcome action.  We recognize and appreciate the fact that Commissioner Hansell and OTDA have made a commitment to ensure that districts more fully integrate basic education into the mix of work-related activities. [1] 

(b) 9th grade reading level.  Specifying that a 9th grade reading level will be the defining measure of basic literacy provides a much-needed standard and clarification of the existing rule.  Before the sweeping changes of 1997, Title 18 included a definition of literacy at nearly the same level (8th grade, 9th month), but that crucial provision was eliminated from the regulations at that time.  Restoring that standard to the law, if implemented by the districts in good faith, would represent an important step in improving the employability and the lives of many low-income New Yorkers.

(c) Who is covered by the literacy definition?  From the wording of the proposed regulation, particularly the amended §385.6(a)(4)(ii) and §385.7(a)(4)(ii), it is not clear whether the literacy definition is meant to apply to individuals with a high school diploma.  Sadly, there are many high school graduates who do not read at a 9th grade level, and they should not be denied access to appropriate educational activities. [2]

(d) Who will be evaluated for literacy?  The proposed regulations do not prescribe when and to whom literacy tests should be given.  It is essential that individuals be properly and timely evaluated.  It is therefore troubling that in the Regulatory Impact Statement, OTDA states that districts may choose to test only those who express an interest in participating in educational activities.  The law requires that individuals lacking basic literacy be encouraged or required to participate in education.  Permitting districts to test for literacy only if the individual expresses an interest in pursuing educational activities violates the spirit if not the letter of the law and will likely result in the denial of educational opportunities for many who should be actively encouraged to participate.

Once again, the proposal may seem reasonable on its face.  Why not evaluate only those who express a specific desire to engage in educational activities?  The problem is that too often adults in need of basic education, particularly literacy
training, have difficulty articulating or are reluctant to acknowledge their educational and skill deficits, and too often social services staff do not adequately advise clients of their options, or tend to steer clients away from educational activities.

We are not necessarily advocating mandatory testing for every client, but we strongly oppose a system in which only an explicit request for education triggers the evaluation process.  Ideally, state policy and local practice would ensure that clients are fully informed of their options and of the benefits of an evaluation.

(e) Lacking a high school diploma but having basic literacy.  We applaud the proposed amendment under which recipients who have attained basic literacy but do not have a high school diploma will be offered the option to pursue educational programs.  Commissioner Hansell has observed that approximately two-thirds of adult public assistance recipients lack a high school diploma.  While it is undeniable that basic literacy is essential in modern society, it is increasingly true that decent-paying employment requires much more, at least a high school diploma, and preferably some post-secondary education or specialized skills training.  We hope that in the near future the policy proposed here will be extended to post-secondary education, but we are pleased at this time to support this provision, with the prospect of substantially increased rates of high school graduation among public assistance recipients.

4. Homework

The proposed amendment derives from recent changes in federal law.  It can help recipients to engage in educational activities by giving them credit for homework time, and it can help the districts and the state meet their participation rate obligations.

Unfortunately, it is frustrating that the proposed regulation would leave the districts with discretion to decide whether to count homework hours.  If an educational activity is appropriate for a person, and if homework is a requisite component of the program, then  homework hours are an integral part of the activity and should be counted.  The decision to count homework hours may well determine whether participation in an educational activity is viable for a given individual.  State policy should mandate that it be counted.   

5. Individual Employment Plans

In the course of preparation of these comments, I became aware of an issue that I believe should be addressed in these regulations.  Many students in special education programs complete the requirements of their Individual Educational Plans (IEPs) and do not continue their high school education.  Fulfilling the requirements of the IEP is not the same as or equivalent to receiving a high school diploma and should not be treated as such.  Indeed, these students sometimes leave high school not only without the prerequisites for a high school diploma, but without having achieved basic literacy.

We urge OTDA to make explicit in the regulations that completion of an IEP is not the equivalent of receipt of a high school diploma, and that individuals who have received an IEP “diploma” or “certificate” should not in any respect be considered high school graduates.  If they lack basic literacy, they should be encouraged to participate in literacy training; if they have attained literacy, they should be encouraged to pursue their high school diploma.

Thank you for providing this opportunity to comment on these proposed regulations.


Don Friedman

End Notes: 

[1]We have faith that this commitment will soon extend to higher education as well, but will refrain from entering into that discussion here.
[2] See for example, “Reading to Achieve: A Governor's Guide to Literacy,” National Governors’ Association, 2005, which notes that:  …Today, almost 40 percent of high school graduates lack the reading and writing skills that employers seek, and almost a third of high school graduates who enroll in college require remediation.  Deficits in basic skills cost the nation’s businesses, universities, and underprepared high school graduates as much as $16 billion annually in lost productivity and remedial costs…

For more information, please contact:

Don Friedman

Empire Justice Center
at the Public Advocacy Center
Touro Law School
225 Eastview Drive-Room 222
Central Islip, NY  11722

(631) 650-2316
(631) 348-3571