[Federal Register Volume 86, Number 2 (Tuesday, January 5, 2021)]
[Rules and Regulations]
[Pages 358-411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28610]
[[Page 357]]
Vol. 86
Tuesday,
No. 2
January 5, 2021
Part II
Department of Agriculture
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Food and Nutrition Service
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7 CFR Parts 271 and 273
Employment and Training Opportunities in the Supplemental Nutrition
Assistance Program; Final Rule
Federal Register / Vol. 86 , No. 2 / Tuesday, January 5, 2021 / Rules
and Regulations
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DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 271 and 273
[FNS-2019-0008]
RIN 0584-AE68
Employment and Training Opportunities in the Supplemental
Nutrition Assistance Program
AGENCY: Food and Nutrition Service (FNS), USDA.
ACTION: Final rule.
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SUMMARY: The final rule implements the changes made by section 4005 of
the Agriculture Improvement Act of 2018 (the Act) to the Supplemental
Nutrition Assistance Program (SNAP) pertaining to the Employment and
Training (E&T) program and aspects of the work requirement for able-
bodied adults without dependents (ABAWDs). In general, these changes
are related to strengthening the SNAP E&T program, adding workforce
partnerships as a way for SNAP participants to meet their work
requirements, and modifying the work requirement for ABAWDs.
DATES: This rule is effective March 8, 2021. The provisions in 7 CFR
237.7(c)(1) pertaining to the consolidated written notice and oral
explanation of work requirements, and the provisions in 7 CFR
273.7(c)(11)(iii) and (iv) and 7 CFR 273.7(c)(18) are applicable
beginning October 1, 2021.
FOR FURTHER INFORMATION CONTACT: Moira Johnston, Food and Nutrition
Service, Office of Employment and Training, 1320 Braddock Place,
Alexandria, VA 22314, ETORule@USDA.gov.
SUPPLEMENTARY INFORMATION: The final rule implements the changes made
by section 4005 of The Agriculture Improvement Act of 2018 (Pub. L.
115-334) (the Act) to the Supplemental Nutrition Assistance Program
(SNAP). The Department published the proposed rule on March 17, 2020,
and received 75 comments, 72 of which were substantive.
The final rule requires State agencies to consult with their State
workforce development boards on the design of their E&T programs and to
document in their E&T State plans the extent to which their E&T
programs will be carried out in coordination with activities under
title I of the Workforce Innovation and Opportunity Act (WIOA). The
final rule also makes changes to E&T components including: Replacing
job search with supervised job search as a component; eliminating job
finding clubs; replacing job skills assessments with employability
assessments; adding apprenticeships and subsidized employment as
allowable activities; requiring a 30-day minimum for provision of job
retention services; and allowing those activities from the E&T pilots
authorized under the Agricultural Act of 2014 (Pub. L. 113-79) that
have had the most demonstrable impact on the ability of participants to
find and retain employment that leads to increased income and reduced
reliance on public assistance to become allowable E&T activities.
The final rule also requires that, in addition to providing one or
more E&T components, all E&T programs provide case management services
to E&T participants. The rule revises the definition of good cause for
failure to comply with the requirement to participate in E&T to include
instances in which an appropriate component or opening in an E&T
program is not available. It also modifies the required reporting
elements in the final quarterly E&T Program Activity Report provided by
State agencies to include the number of SNAP applicants and
participants who are required to participate in E&T, of those, the
number who begin participation in the E&T program and an E&T component,
and the number of mandatory E&T participants who are determined
ineligible for failure to comply. The rule adds workforce partnerships
as a way for SNAP participants to meet their work requirements. It also
establishes a funding formula for reallocated E&T funds and increases
the minimum allocation of 100 percent funds for each State agency to
$100,000, as prescribed by the Act. The rule requires State agencies to
re-direct individuals who are determined ill-suited for an E&T program
component to other more suitable activities.
The final rule also codifies some changes to policy pertaining to
able-bodied adults without dependents (ABAWDs). These changes include
updating the regulations to reflect the reduction in the number of
ABAWD work exemptions from 15 percent to 12 percent (this change was
implemented at the start of Fiscal Year 2020) and referring to such
exemptions as ``discretionary exemptions,'' as well as adding workforce
partnerships and employment and training programs for veterans operated
by the Department of Labor or the Department of Veteran's Affairs to
the list of work programs for ABAWDs. The rule replaces ``job search''
with ``supervised job search'' as a type of activity that cannot count
as a work program for the purposes of an ABAWD fulfilling their work
requirement, unless it comprises less than half the work requirement.
The final rule adds the requirement that all State agencies advise
certain zero-income households subject to the general work requirement
at recertification of employment and training opportunities. The rule
also requires State agencies to provide to all households subject to
work requirements a consolidated written notice and comprehensive oral
explanation of the work requirements for individuals within the
household.
Overall, the Department believes the statutory changes made by
section 4005 of the Act will strengthen E&T programs, and improve SNAP
participants' ability to gain and retain employment, thus reducing
participant reliance on the social safety net. Through this
legislation, Congress has tasked the Department and State agencies with
reviewing and bolstering the quality and accountability of E&T programs
for SNAP participants. The final rule allows for more evidence-based
components and requires more accountability on the part of both State
agencies and E&T participants while also retaining State flexibility.
Notably, the addition of case management to the definition of an E&T
program fundamentally changes SNAP E&T and the expectation for how
State agencies must engage with E&T participants. As a result, the
Department made several changes to the way E&T programs are described.
In the final rule, an E&T program is defined as a program providing
both case management and one or more E&T components. E&T components may
be comprised of a number of activities which are designed to achieve
the purpose of the component.
The Department discusses each of the final regulatory changes in
more detail below.
Consultation With Workforce Development Boards and Coordination With
the Workforce Innovation and Opportunity Act (WIOA)
Current regulations at 7 CFR 273.7(c)(5) require that E&T
components must be delivered through the State's statewide workforce
development system, unless the component is not available locally
through such a system. The Act added the requirement in section
6(d)(4)(A) of the Food and Nutrition Act (FNA) that State agencies must
design their SNAP E&T programs in consultation with their State
workforce development board or, if the
[[Page 359]]
State agency demonstrates that consultation with private employers or
employer organizations would be more effective or efficient, in
consultation with private employers or employer organizations. The Act
also added a new requirement that State agencies include in their E&T
State plans the extent to which the State agency will coordinate with
the activities carried out under title I of the Workforce Innovation
and Opportunity Act (WIOA). The Department proposed to modify the
regulation at 7 CFR 273.7(c)(5) to add the requirement that State
agencies design their E&T programs in consultation with their State
workforce development board or with employers or employer
organizations, if the State agency demonstrates such consultation would
be more effective or efficient. The Department also proposed to modify
the regulation at 7 CFR 273.7(c)(6)(xii), as re-designated, to require
State agencies to describe in their E&T State plans how they met this
requirement to consult, to include a description of any outcomes from
this consultation, and to document the extent to which their E&T
programs are coordinated with activities carried out under title I of
WIOA.
The Department received 13 comments on this provision, all of which
were supportive of the proposed changes, although some commenters
provided suggestions for improvement. Commenters supported the required
consultation with workforce development boards to ensure SNAP E&T
programs benefit from the expertise of these boards and to streamline
the delivery of services. Commenters also noted that better alignment
across SNAP E&T and title I of WIOA can help reduce service
duplication, generate cost savings, and increase access to resources
for jobseekers. One workforce training agency; however, cautioned
against folding SNAP E&T into WIOA services. This agency noted that
SNAP E&T funding offers certain flexibilities and support services that
make it especially well-suited for working with job seekers with lower
basic skills and greater barriers to employment, a group that is
sometimes excluded from WIOA services. The Department agrees that SNAP
E&T is well-positioned to serve individuals with greater need for
support. The Department would like to clarify that this provision does
not require State agencies to fold E&T into WIOA services and cautions
against interpreting the provision this way. The Department encourages
State agencies to be part of the conversations regarding States'
workforce development strategies, to take full advantage of the
knowledge and expertise that currently exists within the statewide
workforce development system, and to identify and leverage resources
where appropriate and practicable. However, the SNAP E&T program
remains the responsibility of the State agency and should be designed
around the unique characteristics of the SNAP population. In addition,
as discussed in the proposed rule, the new requirements for
consultation with State workforce development boards and for
documenting in E&T State plans the extent to which State agencies have
coordinated with activities carried out under title I of WIOA, do not
mean that State agencies need approval from their State workforce
development board to implement their E&T program. The State SNAP agency
will remain responsible for implementing and operating the State's E&T
program.
A not-for profit agency suggested that, if a State agency chooses
to consult with private employers or employer organizations instead of
workforce development boards, the State agency should also demonstrate
that they have consulted with labor representatives such as unions or
worker centers. The Department agrees that these organizations may
offer an important perspective on workforce development opportunities
and would not discourage any State agency from reaching out to union or
workforce centers, as applicable. However, the statutory requirement is
only for States to consult with State workforce development boards, or
private employers or employer organizations, if the State agency
demonstrates such consultation would be more effective or efficient,
and the Department believes it would impose an unnecessary additional
burden on State agencies to expand the number of groups State agencies
are required to consult with in the design of their E&T programs. A
local government agency and three not-for-profit agencies recommended
that the Department also encourage State agencies to engage with local
employers or industry representatives to become SNAP E&T providers. The
Department does encourage State agencies to collaborate and engage with
a wide array of entities to develop training opportunities for SNAP E&T
but declines to mandate such collaboration and engagement beyond the
requirements of Section 4005 of the Act. State agencies can capitalize
on the relationships and labor market expertise of State workforce
development boards to facilitate connections to local employers and
industry representatives. As a result, the Department concludes that no
addition to the proposed regulatory text is necessary.
To further collaboration with WIOA services, a State agency
requested the Department commit to coordinated guidance from the United
States Department of Agriculture and the Department of Labor on SNAP
E&T and WIOA services. The coordinated guidance would ``enhance local
workforce boards' understanding of the opportunity that SNAP E&T
recipients provide and help ensure their due consideration in the
distribution of finite local workforce board resources.'' The
Department regularly interacts with the Department of Labor, and will
continue to explore opportunities to ensure awareness and understanding
of SNAP E&T by State and local workforce development system
stakeholders, including local workforce boards.
In conclusion, the Department finalizes the regulatory text as
proposed without any changes.
Supervised Job Search
Current regulations at 7 CFR 273.7(e)(1)(i) establish job search as
an allowable E&T component. In addition, current regulations at 7 CFR
273.7(e)(1) specify that ``job search or job search training, when
offered as components of an E&T program, are not qualifying activities
relating to the participation requirements necessary to maintain SNAP
eligibility for ABAWDs.'' However, with respect to the ABAWD work
requirement, the current provision goes on to state that ``job search
or job search training activities, when offered as part of other E&T
program components, are acceptable as long as those activities comprise
less than half the total required time spent in the components.'' The
Act replaced the E&T job search component with supervised job search in
section 6(d)(4)(B)(i)(I) of the FNA, and defined supervised job search
as an E&T component that occurs at State-approved locations at which
the activities of participants shall be directly supervised, and the
timing and activities of participants tracked in accordance with
guidelines issued by the State agency. The Department proposed to
codify the new supervised job search component at current 7 CFR
273.7(e)(1)(i), re-designated as 7 CFR 273.7(e)(2)(i). In addition, the
Department proposed to make edits to current 7 CFR 273.7(e)(1), at re-
designated 7 CFR 273.7(e)(2), to specify that job search, including
supervised job search, when offered as components of an E&T program,
are not in and of themselves ``qualifying activities relating to the
participation
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requirements necessary to fulfill the ABAWD work requirement under
Sec. 273.24.'' However, job search, including supervised job search,
is an acceptable activity when offered as part of other E&T program
components and it comprises less than half of the total required time
spent in the components. The Department recognizes that job search,
supervised or otherwise, can be an important activity for E&T
participants seeking employment or looking for a new job where they can
apply the skills gained through E&T. The Joint Explanatory Statement of
the Committee of Conference, issued with the Act, reinforced that view
by stating that ``unsupervised job search'' may be a ``subsidiary
component'' for the purposes of meeting a work requirement, so long as
it is less than half of the requirement.\1\ The Department proposed to
add in paragraph 7 CFR 273.7(c)(6)(i) a requirement that State agencies
report in their E&T State plans a summary of the State guidelines used
to implement supervised job search. The Department also proposed
changes related to supervised job search in the section on ABAWD work
programs at 7 CFR 273.24(a)(1)(iii), which are discussed in the section
titled Work Programs for Fulfilling the ABAWD Work Requirement later in
this preamble.
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\1\ Conf. Rept. 115-1072, p. 617, https://www.congress.gov/115/crpt/hrpt1072/CRPT-115hrpt1072.pdf.
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In the proposed rule, the Department proposed various factors to
consider in interpreting ``State-approved location,'' ``directly
supervise participants,'' and ``tracking timing and activities of
participants.'' The Department sought comments regarding these phrases.
The Department also sought comments describing current job search
programs operated as part of E&T programs or other workforce
development programs that are directly supervised and where the timing
and activities of participants are tracked by the State agency or
providers.
The Department received 49 comments on this provision. Twenty-six
of the commenters supported defining supervised job search to allow
maximum flexibility for State agencies to design programs that meet the
needs of local participants. However, one commenter opposed the change
explaining supervised job search ``would place patronizing,
infantilizing, and absurd restrictions on those seeking new
employment.'' The Department notes that the Act replaced job search
with supervised job search and requires direct supervision and tracking
of timing and activities, therefore the Department must implement the
regulatory change.
In responding to the Department's request for feedback, commenters
explained that the nationwide COVID-19 public health emergency
demonstrated the importance of providing flexibility within supervised
job search as the pandemic had limited face-to-face service options and
necessitated that State agencies pivot to online or virtual platforms.
A workforce training agency explained that, even before the current
pandemic, searching and applying for jobs shifted greatly to online
methods due to the increased use of technology. As such, the commenter
believed that requiring job seekers to complete job search while being
in the same physical location as SNAP E&T program staff is not
necessary and should not be required. Two State agencies believed that
allowing virtual locations would enable State agencies to integrate
delivery of their supervised job search activities with the same online
job search portals used by their WIOA and unemployment insurance
systems, thus furthering the goal of greater integration with WIOA
processes. Commenters also explained that geographic variation in where
people live and varied access to public transportation may limit the
types of physical locations available to them. For instance, in rural
areas it may be prohibitive for participants to travel long-distances
to attend in-person job search, so online or mobile application options
may better suit these individuals. Commenters also noted it may be
burdensome to State agencies and E&T providers to provide enough
physical locations to accommodate all supervised job search
participants, or to provide enough participant reimbursements to cover
the transportation or other costs associated with travel. However,
several commenters also cautioned that some participants will not have
the ability or the technology to perform job search through a computer
or mobile phone and, in these cases, State agencies should maintain
easily-accessible locations for in-person job search in the community,
or allow participants to access online or smartphone-based job search
tools through community organizations like the public library. A
workforce training agency and a legal services agency also commented
about the importance of job seekers having personal technology now that
so many job search resources and job application portals are online.
The commenters urged the Department to allow E&T supportive services
funding to include technology costs as a permissible expenditure for
SNAP E&T providers. A workforce training agency noted that State-
administered job boards and workforce exchanges may not always contain
up-to-date or relevant job postings, so State agencies should be
allowed to direct participants to non-governmental social media and job
posting sites. On the other hand, two State agencies lauded their
workforce agency's online tools for job search and participant activity
tracking. One not-for-profit agency recommended that State agencies
give participants the option to participate online or in-person based
on the preferences of the participant.
The Department appreciates the number of well-thought-out comments
received. The Department concludes the definition of ``State approved
locations'' will include any location deemed suitable by the State
agency where the participant has access to the tools they need to
perform supervised job search. At these locations, participants may use
any tools, such as virtual tools which include but are not limited to
websites, portals, or applications to access supervised job search
services. For instance, a State agency may choose to allow supervised
job search to occur at any physical location where the participant can
adequately access an internet connection with appropriate materials
(e.g., a computer, tablet, smart phone) to access virtual tools. If the
individual does not have access to the appropriate material to use a
virtual tool, the State agency must provide the individual with the
materials they need to participate in supervised job search, such as a
computer, a tablet, Wi-Fi etc. Alternatively, the State may
additionally decide to designate specific locations for a supervised
job search. In this instance, the State agency must give the
participant a list of locations where they can access the necessary
tools and materials, such as a library, American Job Center, etc. In
this case, the State agency would have to provide participant
reimbursements in accordance with 7 CFR 273.7(d)(4) enabling the
individual to access the location. To the extent practicable, the
Department encourages State agencies to allow participants to choose
their preferred location (e.g., at home, a library, a third party
provider) to best meet the needs of the participants and better ensure
a successful job search. The Department has updated the definition of
supervised job search at 7 CFR 273.7(e)(2)(i) accordingly. The
Department also reminds State agencies
[[Page 361]]
that 7 CFR 273.7(d)(4) requires State agencies to provide or reimburse
the participant for expenses that are reasonably necessary and directly
related to participation in the E&T program, including materials to
access online programs (e.g., a laptop, tablet, or internet) or
transportation assistance to physical locations. State agencies must
also provide reasonable accommodations to all E&T participants with a
disability in accordance with the Americans with Disabilities Act (Pub.
L. 101-336).
Commenters similarly explained that supervision can be effectively
delivered through a variety of means including in-person, phone, web-
based and text-based methods, and the approach should align with the
capabilities of the E&T provider and what will most effectively serve
the client. A workforce training agency supported supervision of job
search activities as it allows E&T staff to coach participants, build
their labor market skills, identify potential barriers to employment,
and determine plans for how to address those barriers through
supportive services during the job search process. This commenter also
explained that participant supervision requirements should be defined
based on what supportive components exist as part of the supervision,
rather than for pure oversight and compliance reasons. For instance,
the commenter believed that time spent sharing and confirming job
applications, logging hours committed to independent job search, and
receiving assistance from a job coach should all count towards a
participant's supervision requirement. Several State agencies noted
that supervision of job search services can be completed remotely
through web-based services that support active monitoring of
participant progress with activities, as well as efficient
communication with participants. The State agencies highly recommended
that the Department consider technology and remote supervision when
defining the supervised job search component for the purposes of E&T.
For instance, one State agency explained how participants can utilize
the State's workforce agency's online portal to complete career
exploration assessments and skill assessments, in addition to seeking
employment. The State agency partners with other community agencies
offering job coaching to ensure participants have the skills necessary
to become self-sufficient. Through other partnerships, the State agency
also offers virtual workshops on resume development and ``How-To''
workshops covering a variety of topics. Another State agency commented
that State agencies could use weekly or semi-weekly case management
telephonic meetings with participants to discuss digital job search
logs and to direct and refine participants' job search moving forward.
And a third State agency explained that their current process of
developing a job search plan with the participant, combined with at
least monthly check-ins to review progress, was an effective model of
supervised job search. A not-for-profit agency recommended that State
agencies also be allowed to conduct supervised job search programs in
an asynchronous format, where program participants engage in job search
activities on their own schedule. The Department agrees that both
remote and in-person supervision can be effective. As a result, the
Department concludes that State agencies will have flexibility to
provide supervision through a number of modes (e.g., remote, in-person,
or a blend), and encourages State agencies to ensure the mode of
supervision aligns with the needs of the participant (e.g., if a
participant performs job search online because of the inability to
travel long distances, the State agency should consider conducting the
supervision remotely as well). Significantly, the Department also
concludes, based on language from The Joint Explanatory Statement of
the Committee of Conference, issued with the Act,\2\ that the intent of
the statutory change from job search to supervised job search was to
make State agencies more accountable to E&T participants by providing
direct supervision and guidance to participant job search activities.
The Department appreciates that some State agencies are able to provide
a significant number of resources to E&T participants through online
portals and websites, and believes these resources provide an effective
means of providing some types of job search assistance to participants;
however, online resources are not by themselves sufficient to fulfill
the statutory obligation to provide direct supervision. To ensure
participants engaged in supervised job search are provided the support
they need to be successful, the Department concludes that supervision
must be provided by skilled staff who can provide meaningful guidance
and support to help participants find suitable employment through at
least monthly check-ins with participants. These check-ins could cover
a number of topics, including reviews of participant job search logs,
feedback on job applications, barrier reduction, progress monitoring,
and job search coaching, and must be conducted with the aim of helping
the participant find suitable employment. This supervision can also be
provided asynchronously (i.e., the supervision need not occur at the
same time a participant is searching for or applying for a job), but
the Department will require at least monthly communication with the
participant--either in-person or remotely--with a skilled staff person.
Supervision that only occurs through automatic or autonomous computer
programs, without at least monthly communication between the
participant and skilled staff, would not fulfill the requirement to
provide meaningful guidance and support, and would not meet the
requirements for direct supervision. The Department has modified the
regulation at 7 CFR 273.7(e)(2)(i), as re-designated, accordingly.
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\2\ Conf. Rept. 115-1072, p. 617, https://www.congress.gov/115/crpt/hrpt1072/CRPT-115hrpt1072.pdf.
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Commenters also noted that a number of methods exist to track the
timing and activities of participants, including counters and timers in
web-based programs to track hours logged in, sign-in sheets, job logs,
and a deemed number of hours per job application. Several commenters
encouraged the Department to allow State agency flexibility to use
technology or other means to log and track job search efforts. The
Department concludes State agencies should have discretion to devise
the most appropriate means for tracking job search activities given the
capabilities of the local programs and the needs of participants, and
has modified the regulation accordingly at 7 CFR 277.7(e)(2)(i), as re-
designated. The Department also notes that State agencies will continue
to have flexibility to determine the most suitable method to track job
search hours (e.g., by the number of applications submitted, or the
number of hours logged onto a portal). Lastly, the Department would
like to clarify that hours spent receiving job search supervision, in
addition to hours spent looking for a job, count toward hours spent in
the component.
Overall, commenters noted State agencies and their E&T providers
should work with E&T participants to ensure participants are directed
to supervised job search programs that are accessible and well-matched
to the participant's needs. Commenters also believed that the
introduction of the requirement for supervision would make job search
programs more accountable and responsive to participants to increase
[[Page 362]]
their ability to gain regular employment. Several commenters also
suggested additional changes or clarifications as detailed below.
Two commenters recommended allowing supervised job search to be
coordinated with case management and the assessment process, as having
only one entity conduct the activities would save resources and better
allow case managers to coordinate services. The Department agrees and
encourages State agencies, as a best practice, to coordinate the
provision of supervised job search, case management, participant
assessments, and any other E&T activities within the same provider. No
revision to the regulatory text is necessary.
A not-for-profit agency urged the Department to require State
agencies to explain in their E&T State plans how their approach to
supervised job search: (1) Is based on evidence that individuals are
likely to successfully comply; (2) targets individuals likely and able
to find employment through job search; and (3) provides adequate
information to each individual about the program design, anticipated
outcomes, sanctions for noncompliance, how to obtain assistance
overcoming obstacles to compliance (such as the lack of child care or
transportation), reasonable accommodations for persons with
disabilities, and where to obtain additional information. The
Department agrees all E&T components operated by the State agency, not
just supervised job search, should employ successful strategies to help
participants move toward self-sufficiency, be appropriately targeted to
individuals based on their training needs, and provide adequate
information to the participant. For these reasons, the Department
emphasized in the proposed rule the importance of State agency
accountability for E&T programs and introduced new processes to ensure
individuals are directed to the most appropriate component, or exempted
from mandatory E&T, if appropriate. These efforts include the
requirements that all E&T participants receive case management and that
case managers share information about possible exemptions or good cause
circumstances with the State agency, as well as the introduction of a
new form of good cause if there is not an appropriate or available
opening in E&T. The Department also agrees that State agencies must
provide E&T participants with information about the E&T program,
consequences for non-compliance, participant reimbursements, and any
other information that would help mandatory E&T participants with
compliance. For this reason, the Department proposed that all
households with individuals subject to the work requirements receive a
consolidated written notice and oral explanation of those work
requirements. In addition, several commenters recommended the
Department require a direct link between job search activities and
employment opportunities in order for the component to be approved. The
commenters believed this language would help ensure that training be
relevant and targeted to individuals who are able and likely to benefit
from it. The Department agrees that the intent of replacing job search
with supervised job search was to better support individuals to find
suitable employment, not just fill work hours, and has added to the
definition of supervised job search at 7 CFR 273.7(e)(2)(i), as
redesignated, that job search activities must increase the employment
opportunities of the participant.
Several State agencies and workforce training agencies requested
that the Department change how State agencies must summarize the State
guidance for the supervised job search component in their E&T State
plans. The commenters explained that, instead of requiring specific
sites for supervised job search to be documented in the plan, the State
agencies should be allowed to include the specific criteria used by the
State agency to approve supervised job search location. The Department
agrees that, given the broad definition of supervised job search, it
would likely be far too burdensome to have to identify in the E&T State
plan all the approved locations. As a result, the Department has
modified the regulation at 7 CFR 273.7(c)(6)(i) to require that State
agencies instead provide the criteria used to approve locations and an
explanation of why those criteria were chosen.
The Department received several requests to clarify how job search
and job search training can be integrated as subsidiary activities of
another component. As stated in the proposed rule, with the replacement
of job search with supervised job search, unsupervised job search may
no longer be a standalone E&T component. However, also as stated in the
proposed rule, job search that does not meet the definition of
supervised job search is allowed as a subsidiary activity of another
E&T component, so long as the job search activity comprises less than
half of the total required time spent in the component. One State
agency, in particular, asked the Department to clarify whether job
search may only be a subsidiary activity of another component when
offered to a mandatory E&T participant or ABAWD, or whether this
construction also applies to E&T volunteers. The Department appreciates
how the statement in the proposed regulatory text of ``required time
spent in the component'' could be understood as only referring to
mandatory participants. Therefore, the Department is clarifying that,
in this context, allowable E&T components are the same whether offered
to mandatory or voluntary E&T participants for this purpose, and has
consequently modified the regulatory text at 7 CFR 273.7(e)(2)(i) to
remove ``required.'' The State agency also questioned how to measure if
job search makes up less than half the time in the component. The State
agency provided the example of an E&T provider who employs a
comprehensive curriculum with vocational education classes the first
several months, followed by full-time job search. The State agency
wondered if such a program could track all hours under the educational
component, provided the hours spent in job search make up less than
half of the total hours over the duration of the entire component. For
purposes of fulfilling the ABAWD work requirement, the Department has
always provided discretion to State agencies on how they measure the
length of time participants spend in job search when job search is
integrated into another component, to ensure job search makes up less
than half the total required time spent in the component. The
Department will allow similar discretion to State agencies when
determining if time spent in unsupervised job search makes up less than
half the time spent in the broader E&T component.
The Department also received a question about supervised job search
and the ABAWD work requirement. This commenter asked if the Department
has the flexibility to allow supervised job search activities to count
for the ABAWD work requirement if the activities are offered through
WIOA. The answer is, if an individual is enrolled in a program under
title 1 of WIOA, supervised job search can count toward the ABAWD work
requirement. However, supervised job search offered through any other
WIOA program cannot count toward the ABAWD work requirement, unless it
makes up less than half the requirement.
A not-for-profit agency expressed a number of concerns about the
existing regulations that allow State agencies, at their option, to
require SNAP applicants to participate in E&T, and expressed specific
concerns related to requiring applicants to participate in job search.
The commenter asked the Department to
[[Page 363]]
require the following assurances in E&T State plans: That State
agencies must adhere to the requirement at 7 CFR 273.7(c)(2) to screen
each work registrant to determine whether it is appropriate to refer
the individual to an E&T program component; that State agencies must
reimburse applicants for all reasonable and necessary costs to
participate in any E&T activity, including supervised job search, as
required by 7 CFR 273.7(d)(4); that supervised applicant job search
must not impose a new condition of eligibility in accordance with 7 CFR
273.2(a); and that applicant job search cannot delay determining SNAP
eligibility. The Department agrees that all State agencies must adhere
to the above policies for all E&T participants, whether they have
chosen to serve applicants or not. Treating applicants differently than
other E&T participants would not further the purposes of E&T and the
changes required by the Act designed to enhance the effectiveness and
accountability of SNAP E&T programs. Therefore, the Department has
clarified the regulation at 7 CFR 273.7(e)(2), as re-designated, to
indicate that, if a State agency requires an applicant to participate
in E&T, the State agency must screen the applicant to determine if it
is appropriate for that individual to participate in E&T in accordance
with paragraph 7 CFR 273.7(c)(2) of this section, provide the applicant
with participant reimbursements in accordance with 7 CFR 273.7(d)(4),
and inform the applicant of E&T participation requirements, including
how to access the component and consequences for failing to
participate. The Department has also added a reference in the
supervised job search paragraph at 7 CFR 273.7(e)(2)(i) citing the
criteria necessary to serve applicants in 7 CFR 273.7(e)(2).
The Department also received several comments on the job search
training component requesting the Department add the phrase
``employment opportunities'' to the sentence in paragraph 7 CFR
273.7(e)(2)(ii), as re-designated, thereby stating, ``a direct link
between the job search training activities and job-readiness and
employment opportunities must be established for a component to be
approved.'' The commenters believed the addition of ``employment
opportunities'' would allow providers to include activities such as job
placement services, which may increase employment opportunities, but
not affect their job-readiness. While the Department believes that job
placement activities can be part of a job search training, the purpose
of the job search training component is to improve a participant's
skills to search for and acquire a job. These skills can be valuable in
the future when the participant engages in new job searches. For this
reason, the Department is not adding ``employment opportunities'' to
the description of job search training.
The Department also received a comment requesting that job
readiness training not be included as part of supervised job search,
but instead be included as part of the education component. The
Department received a similar comment requesting the Department to
clarify that soft skills and job readiness training can be considered
an education component. The Department understands that the commenters
are confused about where to properly categorize job readiness training.
The Department already recognizes work readiness training (i.e., job
readiness training) as part of the E&T education component, but notes
that work readiness training is not formally listed within the
education component at 7 CFR 273.7(e)(2)(iv), as re-designated. The
Department has updated the regulatory text at 7 CFR 273.7(e)(2)(iv) to
include work readiness training to reduce confusion and facilitate
proper categorization of work readiness activities in the education
component in the future.
In conclusion, the Department adopts the proposed regulatory
language with the above noted changes to the definition of supervised
job search, the modification of what State agencies must report on
their E&T State plan, the addition of clarifying language about
requiring applicants to participate in E&T, and the explicit addition
of work readiness as an allowable activity to the education component.
Employability Assessments
Current regulations at 273.7(e)(1)(ii) permit the use of job skills
assessments as part of a job search training component in a State's E&T
program. The Act replaced job skills assessments in section
6(d)(4)(B)(i)(II) of the FNA with ``employability assessments.'' The
Department proposed to incorporate this change into the regulations by
modifying paragraph 7 CFR 273.7(e)(1)(ii), re-designated as 7 CFR
273.7(e)(2)(ii), to remove the reference to job skills assessments and
replace it with employability assessments.
The Department received six comments on this provision, with all
commenters supporting the change. One commenter explained the shift to
employability assessments in the Act recognized that a more holistic
focus on ``employability'' explicitly acknowledges the role that non-
skill barriers (such as a suspended driver's license, a criminal
record, or unreliable childcare) can play in impacting how a person
fares in the job market. However, one not-for-profit agency and one
local government agency asked the Department to clarify that
employability assessments can be part of both case management and the
job search training component. The Department agrees that employability
assessments can be helpful in a number of contexts and thus they are
allowable under either category. However, State agencies and their
providers should coordinate assessments so a participant does not
undergo an employability assessment twice in a short period of time.
One commenter asked for further clarification on the statement from the
proposed rule that ``the information collected through employability
assessments should be used, together with ongoing case management, to
improve and individualize services to E&T participants.'' The commenter
wondered if providers must continue to offer case management as a
follow-up to an employability assessment. As discussed later in this
preamble, State agencies and their providers are encouraged to continue
to offer case management to all E&T participants so long as they are
engaged with E&T and the participant shows interest in continuing case
management. The Department encourages State agencies to work with their
E&T providers to determine appropriate follow-up steps after an
employability assessment, bearing in mind the needs of the participant,
the structure of the E&T program, and provider capacity.
Additionally, a not-for-profit agency urged the Department to
proceed carefully and mindfully in the design and delivery of
employability assessments. In this commenter's experience employability
assessments can be used to screen out an individual from job placement,
even when the individual is very motivated to work. The commenter also
explained that employability assessments are subject to racial bias in
that people of color--and Black people in particular--are
disproportionately over-represented with regards to homelessness,
involvement in the criminal legal system, and chronic unemployment. The
commenter recommended the Department take a ``zero exclusion'' approach
to employability assessments--as well as services offered--that assumes
employability
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and worker motivation, and makes every effort to accept and accommodate
all jobseekers receiving SNAP E&T services. The commenter also
recommended that State agencies collect information on the
characteristics of jobseekers determined ``not ready'' for employment
based on employability assessments. The Department appreciates the
experience and perspective of the commenter and agrees that, in
general, State agencies should strive to serve all individuals who are
motivated to work or train for employment. State agencies are
prohibited from discriminating against SNAP participants, in accordance
with 7 CFR 272.6, and must have agreements in place with their
providers to ensure discrimination is prohibited. The Department notes;
however, that employability assessments may uncover circumstances that
would make an individual exempt from a work requirement or provide good
cause for non-compliance. If the E&T case manager is made aware of
these circumstances, the Department requires at 7 CFR 273.7(e)(1), as
re-designated, that the case manager inform the appropriate State
agency staff. If the exemption or good cause is granted, the individual
would no longer be required to participate in E&T. The Department also
notes that State agencies are encouraged to collect information on E&T
program performance, and may track the number of jobseekers determined
``not ready.''
In conclusion, the Department codifies the regulatory language as
proposed without any changes.
Removal of Job Finding Clubs
Current regulations at 7 CFR 273.7(e)(1)(ii) include job finding
clubs as an allowable activity under the job search training component.
The Act modified the job search training component in section
6(d)(4)(B)(i)(II) of the FNA to remove job finding clubs from the list
of activities that can be included in a job search training program. As
a result, the Department proposed to modify the regulation at 7 CFR
273.7(e)(1)(ii), now re-designated as 7 CFR 273.7(e)(2)(ii), to remove
job finding clubs as an activity under the job search training
component.
The Department received one comment on this provision from a
workforce training agency, who claimed it was contradictory to remove
job finding clubs and require that job search be supervised, as the
commenter viewed these activities as similar. As already discussed, the
Department views supervised job search as encompassing a robust set of
supervisory activities and does not believe the removal of job finding
clubs from job search training activities will inhibit the
implementation of supervised job search. In addition, while job finding
clubs are specifically eliminated as an allowable activity, other
activities that increase the employability of participants are still
permitted, such as State or agency facilitated peer-to-peer learning
opportunities or offering job search trainings in a group format.
In conclusion, the Department codifies the regulation as proposed
without any changes.
Job Retention
Current regulations at 7 CFR 273.7(e)(1)(viii) allow job retention
services as an allowable E&T component. These regulations explain that
State agencies offering this component must provide no more than 90
days of job retention services. The Act modified the job retention E&T
component in section 6(d)(4)(B)(i)(VII) of the FNA to require that
State agencies choosing to provide job retention services must offer a
minimum of 30 days of services, but did not modify the existing 90 day
statutory maximum for the receipt of job retention services. As a
result, the Department proposed to modify the current regulations at 7
CFR 273.7(e)(2)(viii), as re-designated, to add a 30-day minimum for
the receipt of job retention services. Consistent with the statute, the
proposed regulation stated that job retention services would need to be
provided for a minimum of 30 days and no more than 90 days.
The Department received nine comments on this provision, all of
which were supportive of the addition of the 30-day minimum. Commenters
did, however, request clarification on some aspects of the rule as
described below. A local government agency and a workforce training
agency supported the minimum of 30 days, but requested that State
agencies be allowed to offer up to 365 days of job retention services.
The commenters explained the extended period of job retention services
would better support the transition to employment and to a more
independent lifestyle because, in the commenters' experience, the
challenges that participants juggle as they begin to work can last
throughout the first full year of employment. The Department agrees
that some E&T participants may benefit from extended job retention
services, but the Department does not have discretion through
rulemaking to extend job retention services beyond the 90-day limit in
the FNA.
A not-for-profit agency encouraged the Department to offer
additional guidance to specify that job retention services must include
support for child care and transportation costs associated with
retaining employment. The commenter explained many job retention
participants may benefit from these services, but do not receive them,
and as a result may not successfully transition to employment. The
Department agrees that child care and transportation assistance may be
helpful supports for the newly employed. However, as with all
components, State agencies have flexibility to determine what services
to offer under its job retention component. Job retention services may
include providing or reimbursing participants for costs associated with
transportation and childcare so that an individual can go to work. It
is true that per Sec. 273.7(d)(4), State agencies are required to
provide participant reimbursements that are reasonable and necessary,
and directly related to participating in an E&T component, including
the job retention component. However, employment, in and of itself, is
not a job retention service and, therefore, the State agency is not
required to provide participant reimbursements so that an individual
can go to work. Rather, if a State agency offers a service outside of
work, such as a class on workplace etiquette, that requires individuals
to travel to get there, a State agency is required to provide or
reimburse individuals for their transportation costs in accordance with
Sec. 273.7.d(4). The Department encourages State agencies to consider
offering job retention services, and work with their E&T providers to
identify available and appropriate services that will support
successful employment, but the Department cannot require a State agency
to provide job retention services, nor require that the State agency
provide child care and transportation services as part of the job
retention component, outside of the required participant reimbursements
that are reasonable and necessary for participating in a job retention
activity outside of work.
Three commenters were concerned with preamble language that offered
examples of how the State agency could demonstrate a good faith effort
to provide at least 30 days of job retention services. The commenters
explained that the example of creating a case management program for
job retention participants that extended at least 30 days would deter
some providers and participants from participating in the job retention
component, because many providers of job retention do not create a case
management plan for each
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participant, but rather offer services based on the most salient needs
of the participant at the time of contact. One commenter explained it
would also be confusing to have a broader E&T case management plan and
a more specific one for job retention. Instead the commenters proposed
that service providers describe a general approach to job retention
case management in their agreements with the State agency. A not-for-
profit agency believed that a good faith effort to provide job
retention services should also include a reasonable number of
documented outreach attempts to the participant. The Department
appreciates the comments that developing a separate case management
plan for job retention may not always be feasible or helpful. The
Department only intended to include a case management plan as an
example of how a provider is making a good faith effort to provide at
least 30 days of job retention. The Department requires that the
provider must demonstrate in some way that a good faith effort has been
made to provide 30 days of services. This could include, among other
ideas, making a reasonable number of attempts to contact a participant,
discussing the 30 day minimum requirement with the participant at the
outset, or outlining specific steps the provider or the participant
will take over the next 30 days to maintain a job.
In conclusion, the Department codifies the regulation as proposed
without any changes.
E&T Pilot Activities
The Act provided the Secretary with discretion to allow programs
and activities from the E&T pilots authorized under the Agricultural
Act of 2014 (Pub. L. 113-79) (2014 Farm Bill) as regular E&T components
in section 6(d)(4)(B)(i)(VIII). The Act specified that this
determination must be based on the results from the independent
evaluation of the 2014 Farm Bill E&T pilots, showing which programs and
activities have the most demonstrable impact on the ability of
participants to find and retain employment that leads to increased
household income and reduced reliance on public assistance. As a
result, the Department proposed adding similar language to the
regulations in a new paragraph at 7 CFR 273.7(e)(2)(ix) to create a new
E&T component category. The Department would note that the independent
evaluation of the 2014 Farm Bill E&T pilots will not be completed until
late 2021; as a result, the Department is not yet able to specifically
identify new E&T components from the 2014 Farm Bill E&T pilots.
The Department received 13 comments on this provision. As the
evaluation is not yet complete, commenters generally expressed support
in engaging with pilot activities once the Department has completed
their assessment. However, one commenter recommended that States that
participated in the pilots be allowed to continue those activities
until the evaluation is complete and the Department has identified
which activities have been found effective. The commenter explained
Congressional interest in continuing these pilots is reflected in the
Congressional prioritization of reallocated 100 percent E&T Federal
funds. The Department appreciates the commenter's interest in the 2014
Farm Bill E&T pilots. As discussed later in this preamble, 50 percent
of reallocated 100 percent funds shall be reallocated to State agencies
requesting such funds to conduct employment and training programs and
activities for which such State agencies had previously received pilot
funding that the Secretary determines have the most demonstrable impact
on the ability of participants to find and retain employment that leads
to increased household income and reduced reliance on public
assistance. However, until the final assessment, the Act allows the
Department some discretion in determining activities with the most
demonstrable impact, including using interim pilot reports or other
information relating to performance of programs and activities.
In conclusion, the Department codifies the regulatory text as
proposed without any changes.
Subsidized Employment and Apprenticeships
Current regulations at 7 CFR 273.7(e)(1)(iv) describe a work
experience program as a program designed to improve the employability
of household members through actual work experience or training, or
both, and to enable individuals employed or trained under such programs
to move promptly into regular public or private employment. The Act
added subsidized employment and apprenticeship in section
6(d)(4)(B)(i)(IV) of the FNA as examples of allowable activities under
a program designed to improve the employability of individuals through
actual work experience or training (i.e., a work experience program).
The Department proposed to modify the regulation at 7 CFR
273.7(e)(1)(iv), now re-designated as 7 CFR 273.7(e)(2)(iv), to better
align the definition of a work experience program and activities with
other Federal workforce development programs, by delineating work
experience programs into two sets of activities: Work activities and
work-based learning. Subsidized employment and apprenticeships were
added as work-based learning activities. The Department strongly
encouraged State agencies interested in incorporating work-based
learning activities into their E&T programs to work with their State
Departments of Labor, American Job Centers, Perkins Career and
Technical Education (CTE) providers, and other stakeholders, such as
community colleges and community-based organizations, to capitalize on
existing work-based learning infrastructure and services. The
Department also proposed amending 7 CFR 273.7(d)(1)(ii)(A) to allow E&T
funds to be used to subsidize the wages of E&T participants.
The Department received 41 comments on this provision. Commenters
were very supportive of the changes to the definition of work
experience and the alignment of the definitions of work experience,
work activity, and work-based learning with definitions in other
programs, as well as the inclusion of apprenticeships and subsidized
employment as allowable activities. Several commenters mentioned they
would like to implement subsidized employment as soon as possible,
particularly in light of the spike in unemployment resulting from the
COVID-19 public health emergency. However, some commenters were
concerned that wages earned through subsidized employment would count
as income for the SNAP eligibility determination, potentially making
E&T participants ineligible for SNAP and, consequently, ineligible for
E&T and the subsidized wage. FNS is not aware of any existing laws that
would allow income from subsidized employment to be excluded when
determining eligibility for SNAP. The Department advises, as a best
practice, that the State agency advise participants of whether earnings
from a work-based learning activity under an E&T program could
potentially decrease the amount of SNAP benefits they receive or make
their household ineligible for SNAP, and by extension, E&T, depending
on their circumstances.
A not-for-profit agency explained they appreciated the Department's
recognition in the proposed rule that the work experience component
must be consistent with the Fair Labor Standards Act (FLSA), must not
displace existing workers, and must provide participants with the same
benefits and opportunities as anyone else doing a
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substantially similar job. The commenter encouraged the Department to
partner with Department of Labor (DOL) to issue guidance helping states
avoid FLSA violations when using work-based learning models. The
Department agrees that, with the introduction of subsidized employment,
State agencies may be partnering with employers unfamiliar with E&T,
and appreciates that guidance on avoiding FLSA violations, as well as
other technical assistance on implementing a subsidized employment
program, may be helpful. The Department will work with DOL to determine
the most appropriate next steps to assist States agencies building
their work-based learning programs in E&T.
A State agency asked for clarification on the application of the
FLSA hour limitation rules to the ABAWD work requirement and the work
experience component. The commenter explained that they understood the
hours worked by an ABAWD in a work experience component would be
countable towards the ABAWD work requirement; however, with the FLSA
limitation of hours, the commenter believed an ABAWD could be in a
situation where they participate in a work activity, as defined at 7
CFR 273.7(e)(2)(iv), for the number of hours equal to their benefit
divided by the minimum wage, but this number of hours may not be
sufficient to meet the ABAWD work requirement. The commenter explained
TANF participants are ``deemed up'' for participation in the TANF work
requirement when they complete the maximum hours allowable under FLSA
rules. The State agency recommended for the work experience component
that ABAWD hours be treated the same as they are in the TANF program
and with SNAP workfare. The Department understands the commenters
concerns; however, the FNA is specific in this area and the Department
does not have discretion to allow work experience hours to be ``deemed
up'' as they are in TANF. An ABAWD who participates in a work
experience component is prohibited from being required to work more
than their benefit divided by the higher of the applicable Federal or
State minimum wage, in accordance with the FLSA. However, if those
hours are not sufficient to meet the ABAWD work requirement, the ABAWD
would then need to participate in another activity to meet the balance
of hours necessary to meet the ABAWD work requirement. The Department
encourages State agencies to provide additional opportunities through
the E&T program that would allow the ABAWD to meet the ABAWD work
requirement.
The Department would also like to make a clarification to the
language in 7 CFR 273.7(e)(5)(iii) regarding voluntary E&T participants
being permitted to work in an E&T program or workfare for more hours in
a month than the value of their household allotment divided by the
higher of the applicable Federal or State minimum wage. The Department
recognized that the language at 7 CFR 273.7(e)(5)(iii), as proposed,
could have been interpreted in some circumstances to allow voluntary
E&T participants to choose to work additional hours for less than
minimum wage in violation of Federal and State minimum wage laws. The
clarified final regulation will now only permit those additional hours
if the voluntary E&T participant earns a wage at least equal to minimum
wage for the additional hours. For instance, if an E&T participant
volunteers to participate in a subsidized employment activity, the
participant may volunteer to participate for more hours in a month than
their household allotment divided by the higher of the applicable
Federal or State minimum wage, so long as the subsidized employment
activity provides the participant with a wage at least equal to the
higher of the applicable Federal or State minimum wage for those
additional hours. The Department would also like to note that voluntary
E&T participants in a work activity will not be allowed to volunteer
for additional hours beyond the number of hours in a month that is
equal to the value of their household allotment divided by the
applicable Federal or State minimum wage, as allowing such excess would
translate to receiving less than the minimum wage in the form of SNAP
benefits. The Department has made this clarification at 7 CFR
273.7(e)(5)(iii), as re-designated.
A workforce training agency cautioned that, while subsidized wages
can provide an incentive to employers to hire people with greater
barriers to work, there must be oversight to ensure that employers do
not just use the subsidy as a discount on labor, replacing the worker
as soon as the subsidy ends with another subsidized worker. The
commenter explained there needs to be systems of accountability to
ensure employers retain and advance workers. The Department agrees that
the objective of work-based learning, including subsidized employment,
is to create a learning environment with the employer that includes
specific training objectives and leads to regular employment. The
objective of work-based learning, including subsidized employment, is
not to provide employers with low-cost workers until the subsidy ``runs
out.'' Work-based learning is also part of the broader work experience
component. The Department explains in the regulatory text that a work
experience program is designed to improve the employability of
household members through actual work experience or training, or both,
and to enable individuals employed or trained under such programs to
move promptly into regular public or private employment. The Department
expects State agencies implementing subsidized employment programs to
have agreements in place with employers to provide actual training to
SNAP participants and a plan to move participants into unsubsidized
employment as a result of the subsidized employment experience, either
with the same employer or with another employer. As part of outcome
reporting for E&T, as required in 7 CFR 273.7(c)(17), State agencies
will be expected to report on participant outcomes for participants
engaged in the work experience component.
The Department also received comments from a State agency and a
workforce training agency that urged the Department to clarify whether
wages or stipends provided by the employers participating in subsidized
employment can be considered the non-Federal amount for which they may
receive 50 percent reimbursement (e.g., the employer pays a total
training wage or stipend of $15 per hour, with $7.50 reimbursed through
E&T). The commenters recommended allowing wages or stipends provided by
employers to be eligible for 50 percent reimbursement in order to
increase the potential number of subsidized employment opportunities
that may be offered. The Department is hereby clarifying that the
Department will reimburse the State agency 50 percent of non-Federal
funds expended on allowable E&T activities and services, including
allowable costs associated with wages though a subsidized employment
program, in accordance with applicable SNAP laws and regulations, as
well as the Federal cost principles in title 2 of the CFR. The
Department would also like to make a clarification to the regulatory
text at 7 CFR 273.7(d)(1)(ii) to explain that while the E&T grants may
be used to subsidize wages as part of the subsidized employment
activity within the work experience component, that the E&T grant will
not otherwise be permitted to subsidize wages for E&T participants.
These commenters also asked the Department to clarify if wages
earned
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for both classroom training and work are eligible for reimbursement
under SNAP E&T. A State agency explained one of their E&T providers
employs a model where participants earn wages for time spent in the
classroom instruction phase of the curriculum, as well as the following
phase, when individuals begin applying their knowledge through actual
work. The Department is hereby clarifying that if an individual is in a
job (e.g., subsidized employment, apprenticeship etc.), and that job
requires classroom training in addition to the regular work, then State
agency expenditures on wages earned for the classroom training are
eligible for 50 percent reimbursement.
A local government agency agreed with the addition of
apprenticeships and subsidized employment as allowable work experience
activities, but suggested that pre-apprenticeship training should also
be included, as pre-apprenticeship programs can function as an on-ramp
to success in an actual apprenticeship program. The Department agrees
and, for this reason, included pre-apprenticeships as a type of work-
based learning program in the regulatory text at 7 CFR
273.7(c)(2)(iv)(A)(2).
A local government agency explained the most recent reauthorization
of the Carl D. Perkins Career and Technical Education Act included
simulated environments in the definition of work-based learning. The
commenter recommended ensuring this option is included in allowable
activities in E&T. The commenter explained instruction in a classroom
setting is not always feasible for participants, particularly those
with family or dependent care responsibilities, so online instruction
fosters familiarity with technology, and is better aligned with the
future of work. The commenter cautioned, however, that given the
``digital divide'' faced by many economically disadvantaged households,
online learning should only be one in a range of options, with the
provision of necessary supports. The Department agrees that simulated
environments can be one way to deliver work-based learning, and
included simulated environments in the definition of work-based
learning in the proposed rule, and will keep simulated environments as
part of the final rule at 7 CFR 273.7(c)(2)(iv)(A)(2).
A workforce training agency noted that in the Department's revised
definition of work experience, work activity, and work-based learning,
there no longer appears to be a place for ``non-workfare activities''
that build a participant's general skills, knowledge, and work habits,
and provide a history of work experience, but are not aligned with a
career path in a specific field. The commenter explained the definition
of work activity appears similar to workfare activities, to provide
participants with the ``general skills, knowledge, and work habits
necessary to obtain employment,'' while work-based learning is intended
to build skills and experience in a given career field. The commenter
believed some populations require work-based learning experiences that
are more general in nature to allow them to build a work history that
will lead to other employment. For example, an E&T provider may provide
work experiences for E&T participants on parole or probation. These
experiences are extremely important in helping the participant
demonstrate the ability to obtain and retain future employment;
however, they are not always connected to a specific career path. The
commenter urged that the final language should allow for these types of
work experiences within the definition of work-based learning or should
broaden the definition of work activity. The Department recognizes that
some E&T providers provide services that prepare individuals for the
``first rung'' of a career ladder. Mastery of soft skills and other
work readiness activities--including general skills building,
developing good work habits, and building a work history--are important
foundational elements of any career pathway. Thus, these experiences
can be included under work experience as part of a career pathway
program. The Department also notes that, in some cases, basic skills
training may be a better fit under another activity like work readiness
in the education component.
The Department also received a comment from a not-for-profit agency
opposing any work requirement in exchange for any form of basic
assistance, including SNAP. As a result, the commenter rejected the
premise in the proposed definition of a work activity, stating that
work activities are ``performed in exchange for SNAP benefits.'' The
commenter expressed that people experiencing hunger should not have to
``perform activities'' in exchange for food. The Department appreciates
the commenter's point of view, but the Department believes it is
important, to the extent practicable, to align the definition of work
activity in SNAP with the definition from TANF. Household members
participating in a work activity or workfare are being compensated for
their work through the SNAP allotment. The FNA in section 6(d)(4)(F)
and regulations at 7 CFR 273.7(e)(4)(ii), as re-designated, prohibit
members of a household from being required to work in an E&T program or
participating in workfare for more hours than value of the household
allotment for the month divided by the higher of the applicable State
or Federal minimum wage. The Department stands by the proposed
definition of work activity as one of several different types of work
experience that can be offered by a State agency to develop the skills
and experience of E&T participants, and move them toward self-
sufficiency.
In conclusion, the Department codifies the regulatory language as
proposed, with a modification to the language at 7 CFR 273.7(e)(5)(iii)
pertaining to voluntary E&T participant work hours.
WIOA Programs
In the proposed rule, the Department proposed to modify 7 CFR
273.7(e)(2)(v), as re-designated, pertaining to allowing ``WIA or State
or local program'' to serve as E&T components. The Department proposed
to strike ``or a WIA or State or local program'' from the regulatory
language because with the Act's inclusion of subsidized employment and
apprenticeships as allowable activities in E&T, all activities operated
under WIOA (formerly referred to as the Workforce Improvement Act or
WIA) are now allowable within other E&T components. Similarly, any
services offered by the State agency or through State or local programs
can be included in one of the other E&T components. By making this
change, the Department is not intending to convey that programs
operated under WIOA would be unallowable as E&T activities; in fact,
all would be allowable and coordination would be encouraged. The
Department received no comments on this change and hereby codifies the
regulatory language as proposed.
Case Management
Current regulations at 7 CFR 273.7(c)(4) establish the requirement
that each State agency must design and operate an E&T program that must
consist of one or more E&T components as described in 7 CFR
273.7(e)(1). The Act modified the definition of an E&T program in
section 6(d)(4)(B)(i) of the FNA to require that each State E&T program
must also provide case management services, such as comprehensive
intake assessments, individualized service plans, progress monitoring,
or coordination with service providers, in addition to at least one E&T
component. The Department
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proposed to modify the regulation at 7 CFR 273.7(c)(4) to add that
State agencies must offer case management services to all E&T
participants. The Department also proposed to modify the regulations at
7 CFR 273.7(e) to add a new paragraph (e)(1), stating that case
management services are a required part of all State E&T programs, and
to provide examples from the Act of case management services. The
Department proposed in new paragraph 7 CFR 273.7(c)(6)(ii), requiring
that State agencies include information in their E&T State plans about
case management operations, including a description of their case
management services and models, the cost for providing the services,
how participants will be referred to case management, how the
participant's case will be managed, who will provide services, and how
the service providers will coordinate with E&T providers, the State
agency, and other community resources, as appropriate. In addition, the
Department proposed various changes to the definitions in 7 CFR 271.2,
the screening and referral process for E&T at 7 CFR 273.7(c)(2), and
other E&T provisions to reflect the inclusion of case management
services in the E&T program.
The Department received 35 comments on the case management
provision, most of which believed case management was a beneficial
addition that would help individuals successfully participate in E&T.
Commenters supported the flexibility within the proposed regulation
allowing case management services to be tailored to the needs of the
participants and the capacity of the service provider. Many State
agencies and workforce training agencies mentioned that case management
is already a regular part of their E&T programs. Commenters also
supported the requirement that case managers inform the appropriate
State agency staff about possible participant exemptions or good cause
circumstances, although some commenters were concerned that the State
agency may not take the appropriate action with that information. In
addition, while all commenters felt that case management would be
helpful to E&T participants, some commenters were concerned that
mandatory participants could be sanctioned for failing to participate
in case management. Commenter concerns are discussed at greater length
below.
The Department received several requests to clarify what services
may constitute case management, to clearly state that State agencies
have discretion to develop their own case management programs, and to
clarify if hours spent in case management count toward the ABAWD or E&T
work requirements. As stated in the proposed rule, State agencies would
have flexibility in the types of case management services offered, but
the provision of case management services should generally be
consistent with the examples provided in the Act, and driven by the
needs of the participant. In the proposed rule, the Department stated
that, to be allowable, the State agency would need to be able to
demonstrate how a case management service is supporting an individual
to successfully participate in E&T. Several not-for-profit agencies
explained that E&T participants can face a number of barriers to
employment, including housing instability, domestic violence, and unmet
physical and behavioral health care needs. The commenters recommended
that case management providers have broad flexibility in the types of
services and supports they can provide participants to address these
barriers. The Department understands that many different kinds of
services can be offered under the umbrella of case management and that
E&T participants can face a large number of barriers to successful
participation in E&T. However, the Department wants to clarify that,
while case managers may assist participants with barrier removal (e.g.,
perform an assessment of participant barriers, identify resources in
the community to address those barriers, make referrals), SNAP E&T
funds can only be used for allowable E&T activities and support. E&T
funds must be used for the administrative costs of planning,
implementing and operating SNAP E&T. This includes allowable components
and activities, and supports that are reasonably necessary and directly
related to participating in E&T, such as transportation, dependent care
or other work, training or education related expenses. For instance,
case managers might identify substance use disorder as a significant
barrier to training or employment and in such a case would be allowed
to make a referral to a substance use disorder treatment center.
However, the State agency would not be allowed to support treatment
costs at a substance use disorder treatment center with E&T funds, as
this is not an allowable E&T component nor an allowable participant
reimbursement. Similarly, a case manager might learn that an individual
needs transportation assistance to get to the E&T site or help
purchasing training supplies that are required in order to successfully
participate in an E&T component. In such instances, the case manager
could provide the individual with participant reimbursements to fund
those costs.
Another State agency asked for clarification that hours a
participant spends reducing barriers identified in their individual
employment plan and assigned through case management may count towards
the work requirement. Case management is part of the E&T program. Thus,
time spent participating in case management counts towards the time a
participant spends in E&T. In addition, E&T is a way for ABAWDs to
fulfill the ABAWD work requirement, with certain restrictions as
detailed in 7 CFR 273.7(e)(2). As such, hours an E&T participant spends
with a case manager must count towards the participant's mandatory E&T
requirement and ABAWD work requirement. However, hours spent by the
individual actually participating in the barrier removal activities do
not count, unless the activity is an allowable E&T activity. For
instance, hours a participant spends with a case worker identifying a
temporary housing solution must count toward their work requirement,
but not hours spent actually moving into temporary housing, as moving
is not an E&T component or activity. On the other hand, a case manager
may identify limited English proficiency as a barrier to successful
participation in an E&T activity and refer the individual to an
education component to build basic reading skills. Time spent in the
education component would count toward work hours just as would time
spent in any other E&T component. The Department has modified the
regulation at 7 CFR 273.7(e)(1) to state that case management can
include a number of activities and supports, but the services must
directly support an individual's participation in an E&T program to
count towards the individual's work requirement. Case management may
include referrals to activities and supports outside of the E&T
program, but State agencies can only use E&T funds for allowable
components, activities, and participant reimbursements.
The Department also notes that 7 CFR 273.7(e)(1), as re-designated,
requires a case manager to report to the appropriate State agency staff
any likely exemptions or potential good cause circumstances applicable
to an E&T participant. In some cases, an individual facing significant
barriers may be better served with a referral to another program, and
can return to E&T when they are able to seek work or train for a job.
In these circumstances, a case manager would be allowed to assist the
individual with any State agency
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follow-up on the request for an exemption or good cause, and the
Department would encourage case managers to make a warm hand-off to
other appropriate non-E&T services, if and when the exemption or good
cause is granted. More discussion of the case manager's
responsibilities to inform the appropriate State agency staff about
exemptions and good cause is found later in the preamble, in the
section on State agency accountability for participation and good
cause.
Several commenters wrote of their support for the statement at 7
CFR 273.7(e)(1) that ``the provision of case management services must
not be an impediment to the participant's successful participation in
E&T,'' but urged the Department to strengthen this provision by
specifying that, if a participant is otherwise participating in SNAP
E&T activities, the participant may not be sanctioned for noncompliance
solely because of non-compliance with case management activities. One
not-for-profit agency recommended that the case management provider be
required to gather input from the SNAP E&T participant about their
desired level of participation. If the participant is still engaged in
other SNAP E&T activities, but no longer interested in case management
services, the participant would not be sanctioned for noncompliance
solely for not participating in case management. Another not-for-profit
agency suggested that case management should be provided to each
individual at least once and be offered on an ongoing basis, but not be
required beyond the initial interaction, if not desired or needed by
the participant. A legal service agency recommended that the rule
should explicitly state that case management activities not add
additional case maintenance, paperwork burdens, or eligibility steps
that could result in delays, reductions, or terminations of SNAP
benefits due to non-compliance with case management activities. A
workforce training agency cautioned that the Department should also not
require the provision of case management services with a particular
frequency (e.g., once a month). The Department acknowledges that a
mandatory E&T participant can be sanctioned for failure to comply with
case management, as case management is part of the E&T program, but the
Department also believes that State agencies have sufficient
flexibility in the design of their case management services to ensure
that case management supports individuals participating in E&T and does
not become a barrier for low-income individuals who need access to E&T
or food assistance. The Department also recognizes the wide variability
in how E&T programs are structured across States, and that case
management will be provided in a number of ways depending on the
structure of the program and the needs of the participants. For
instance, some participants may receive case management services
embedded in a component, whereas other participants may receive stand-
alone case management services separate from a component. Some
participants may desire regularly occurring case management meetings,
whereas other participants may only desire receiving case management
when requested. The Department believes it is important to maintain
this flexibility, and expects State agencies and their providers to
work with participants to determine the best and most efficient
delivery of case management services. The Department also reminds State
agencies that the purpose of case management is to support
participation in the E&T program. While all E&T participants must
receive some case management, there is not an expectation that
participants receive ongoing case management or multiple sessions of
case management, if that is not desired by the participant, and the
participant is otherwise successfully participating in an E&T
component. The Department strongly urges State agencies and their
providers to communicate upfront with participants about the
participant's need for and interest in case management, and plan for
case management services that meet those interests and needs. If the
State agency or a provider finds that an individual has received some
case management services, but is not currently engaged with case
management, and is otherwise successfully participating in an E&T
component, the Department would strongly encourage the State agency or
the provider to communicate with the participant about their interest
in case management, and adjust the provision of case management
services accordingly.
The Department strongly believes that E&T programs should not
unduly burden participants with administrative hurdles, meaningless
tasks, and inefficient processes. Several commenters agreed that overly
intensive or complex services, such as exhaustive skills assessments,
numerous in-person meetings, or multiple hand-offs between providers
can deter individuals, even in voluntary E&T programs, from completing
the case management process, especially for those that already face
transportation or accessibility barriers. One not-for-profit agency
urged the Department to require State agencies to include in their
State E&T plans a description of how the case management services will
support the goals of guiding participants to appropriate services,
support individuals throughout the E&T activity, and provide additional
services. The Department agrees that case management services must be
tailored to the need of participants. State agencies and their
providers should only provide services when there is a clear connection
between those services and supporting the participant to succeed in the
training or improving the employability of the participant. State
agencies must also design their case management processes in a way that
reduces hand-offs and unnecessary steps. The Department recognizes that
State agencies will provide case management services in a number of
ways--through State agency staff, E&T provider staff, or through other
professionals--so it may not be possible to describe all case
management services and the way they are provided in the E&T State
plan. The Department notes that the regulatory text at 7 CFR
273.7(e)(1), as re-designated, states that the purpose of case
management services shall be to guide the participant towards
appropriate E&T components and services based on the participant's
needs and interests, support the participant in the E&T program, and
provide activities and resources that help the participant achieve
program goals. However, the Department has modified the regulation at 7
CFR 273.7(c)(6)(ii) to require State agencies to include in their E&T
State plan a general description of how the State agency will ensure
E&T participants are provided with targeted case management services
through an efficient administrative process. The Department will also
continue to work with State agencies to develop case management
processes that are efficient and adaptable to make best use of E&T
resources and reduce participation barriers.
The Department also received a comment from a not-for-profit agency
suggesting that the proposed rule incorrectly implemented the case
management statutory provision by requiring case management be provided
to all E&T participants. The commenter stated that the changes to
section 6(d)(4)(B)(i) of the FNA only required case management to be a
part of every State E&T program, not that every E&T
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participant must receive case management. The commenter explained a
State E&T program can contain case management and one component, or
case management and multiple components. In the latter instance, all
E&T participants are not required to participate in all components. The
Department does not concur. The Department believes reading the statute
in a manner that only offers case management to some E&T participants
instead of all E&T participants does not make sense or further the
purpose of the Act's changes. This change means all States agencies
must now offer both case management and at least one component to each
participant, and each individual must receive both case management and
at least one component.
The Department received general support for including a description
of the case management services offered by the State in the State E&T
plan. However, several commenters did not support requiring cost
information associated with the case management services in the E&T
State plan. A not-for-profit agency that works with service providers
and several workforce training agencies explained that providers
integrate case management into other individually tailored services
within E&T components, such as career counseling and job readiness
training, and it would be burdensome and difficult for providers to
account for each activity separately. They asked the Department to
allow the cost of case management services to be embedded within
component costs when participants receive case management services as
part of that component. In addition, two workforce training agencies,
who already provide case management to E&T participants, asked that the
Department not impose onerous tracking, reporting, and other
requirements for case management on E&T providers. The Department
agrees that regulations pertaining to case management should not impose
unnecessary burdens on E&T providers or participants. The flexibility
provided within the regulations allows E&T providers, in conjunction
with the State agency, to develop and provide case management services
that are tailored to the needs of participants, the capacity of the E&T
provider, and the structure of the E&T program in the State. The
Department also understands that, in many circumstances, embedding case
management in the E&T component will best serve the needs of the E&T
participant, and that separately tracking the cost of those case
management services could indeed be onerous. As a result, the
Department has modified the regulation at 7 CFR 273.7(c)(6)(ii) to
remove the requirement that State agencies include the estimated cost
of case management services in the E&T State plan. However, the
Department notes that State agencies must still track the receipt of
case management services for the E&T quarterly reports to ensure every
E&T participant receives case management. The Department provides State
agencies with discretion regarding how they collect data from their
providers. As such, State agencies should work with their respective
E&T providers to develop reporting systems that efficiently and
accurately gather the appropriate information required for E&T
quarterly and annual reports.
The Department also received a comment from a workforce training
agency urging the Department to set aside a portion of E&T 100 percent
funds to only be used for case management, and a separate comment from
a not-for-profit agency to provide additional 100 percent funds for
case management. Both commenters explained that the provision of high
quality case management services is expensive, and may be cost
prohibitive for some agencies if they do not receive dedicated or
additional funds. In addition, both commenters explained that setting
aside dedicated case management funds would encourage agencies to work
more with individuals facing high barriers. The Department understands
that the provision of high-quality case management services is resource
intensive. Each State agency receives 100 percent funds that can be
used to offset the costs of case management services, and State
agencies have discretion in how these funds are distributed to their
E&T providers. In addition, FNS reimburses State agencies 50 percent
for allowable costs paid for with non-Federal funds above that amount,
which would include costs associated with case management. The
Department encourages State agencies to work with their E&T providers
to ensure these resources are used to provide robust E&T case
management services while maximizing the impact of E&T.
Lastly, the Department also received a comment regarding the
frequency of case management meetings. The commenter had read in the
Regulatory Impact Assessment (RIA) that the Department estimated
approximately monthly case management meetings. The commenter was
concerned about what they viewed as the Department's decision to
regulate the number and frequency of meetings. The Department is
clarifying that the values provided in the RIA are only used to
estimate the impact of the regulation on the affected public, and that
the Department understands, as discussed above, that the number and
frequency of case management meetings will vary by individual,
depending on their circumstances, the structure of the E&T program, and
the capacity of the E&T providers.
In conclusion, the Department codifies the proposed regulations
with changes made to the description of case management at 7 CFR
273.7(e)(2) and the information required in the E&T State plan at 7 CFR
273.7(c)(6)(ii).
Referral of Individuals
Section 4005 of the Act added a new requirement for State agencies
regarding any E&T participant, not otherwise exempted from the general
work requirement, who is determined by the operator of an E&T component
to be ill-suited to participate in that E&T program component. For work
registrants determined to be ill-suited, the Act required the State
agency to do the following: (1) Refer the individual to an appropriate
E&T component; (2) refer the individual to an appropriate workforce
partnership, if available; (3) re-assess the individual's physical and
mental fitness; or (4) to the maximum extent practicable, coordinate
with other Federal, State, or local workforce or assistance programs to
identify work opportunities or assistance for the individual. During
this time, also per the Act, the State agency shall ensure that an
individual undergoing and complying with the process above shall not be
found to have refused without good cause to participate in an E&T
program. This new requirement was added at new section 6(d)(4)(O) of
the FNA. The Department proposed to codify this new requirement in a
new paragraph at 7 CFR 273.7(c)(18). The Department believes this new
provision was intended by Congress to increase the accountability of
State agencies, particularly for mandatory E&T participants. While
State agencies are already required to develop State criteria to
determine who should be required to participate in E&T, State agencies
often do not apply sufficient due diligence to ensure the SNAP
participants who are referred to the E&T program have the capacity to
benefit from the particular training or that the particular component
to which they are referred matches the SNAP participant's needs and
skill level. Unfortunately, in these situations, SNAP participants
could fail to benefit from the program and, ultimately, could be
disqualified
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for failure to participate. This new provision strives to strengthen
State accountability for their E&T programs by requiring State agencies
take additional steps to ensure SNAP participants who are determined
ill-suited for an E&T component receive the targeted help they need to
move toward self-sufficiency. The Department proposed several new
processes to implement the provision, including a requirement that
individuals with an ill-suited determination receive a Notice of E&T
Participation Change (NETPC) from the State agency soon after their
ill-suited determination.
The Department received 44 comments on this provision. Commenters
were generally supportive and believed the provision would ensure more
participants are directed to activities most likely to help them move
toward self-sufficiency. However, many commenters had questions and
concerns on segments of the provision as proposed, most notably the
term ``ill-suited,'' the applicability of the provision to self-
referrals and voluntary households, the NETPC requirements, and the
inability to stop the ABAWD time clock after an ill-suited
determination.
Several commenters explained that the term ``ill-suited'' was
insensitive and stigmatizing, and did not take a strengths-based
approach to working with participants. A not-for-profit agency
explained that people are not ``ill-suited'' for programs, but programs
can be ill-suited for people. Another commenter explained there may be
multiple reasons a referral from a State agency may not be successful,
including a lack of an available slot or a lack of follow-up from the
participant or provider, and believed these other reasons should also
be communicated back to the State agency under a mandatory E&T program.
Alternative terms like ``incomplete referral,'' ``revised referral,''
or ``reassigned referral'' were suggested. The Department agrees that a
switch to different terminology for this situation could be less
stigmatizing, but also notes ``ill-suited'' is the language used in the
statute. For the purposes of the regulations, the Department will use
the phrase ``provider determination'' in place of ``ill-suited
determination.'' The Department also recognizes there are many reasons
why a participant may not successfully complete a component, but for
the purposes of this regulation the Department is finalizing language
pertaining to individuals who are determined by the provider to not be
a good fit for the component.
Commenters also asked the Department to recognize a new referral is
a significant burden on the time and hopefulness of a jobseeker, and
can be a demoralizing process. Commenters spoke of the need for State
agencies to have as much information as possible about E&T providers so
that State agencies can make the best possible referrals, thus heading
off instances when an individual and an E&T program are not well-
aligned. One workforce training agency explained it frequently receives
referrals from the State agency for individuals who do not meet
criteria for enrollment; this commenter believed a handbook for State
agency staff which offered more information about available providers
would be helpful. A not-for-profit agency that works with many E&T
providers suggested a more upstream solution to invest additional
resources into data systems, as well as the development of robust and
holistic intake and referral processes. The commenter encouraged the
Department to support the development of these systems. The commenter
further explained these data systems could support making a better
match and facilitating the back and forth with a client when a provider
determination is made. The Department agrees that E&T participants must
always be treated with care and respect, which is why State agencies
should implement screening and referral processes that are both
effective and efficient. The Department encourages State agencies to
work with their providers to develop appropriate screening criteria so
they only refer individuals who meet the providers' criteria for
enrollment. The Department also agrees that State agencies should
consider developing data systems and other processes to improve their
ability to screen and refer individuals to appropriate providers. The
Department will continue to offer technical assistance to support State
agencies in these efforts.
The proposed rule stated that the E&T provider has the authority to
determine if an individual referred to or participating in an E&T
component should receive a provider determination for that E&T
component. Two commenters urged the Department to make an addition to
paragraph 7 CFR 273.7(c)(18)(i) to require the State agency to ensure
E&T providers are informed, not only of their authority, but also their
responsibility to make a provider determination for a particular E&T
component. The commenters believed this addition would place an
expectation on the provider to inform the State agency whenever an
individual was not a good fit for the program component. The Department
agrees that, not only do E&T providers have the authority to make a
provider determination, the E&T providers must also have the
responsibility to make this determination. The addition of
``responsibility'' more clearly lays out the Department's expectation
that E&T providers will identify individuals who are not a good fit and
notify the State agency of the provider determination in accordance
with 7 CFR 273.7(c)(18)(i).
Commenters also shared that E&T providers should have more guidance
on what constitutes a provider determination, to ensure consistency
among providers and to avoid discriminatory practices. Commenters also
felt that E&T providers should be given guidance on how to approach the
decision to make a provider determination with compassion and a spirit
of assistance, acknowledging that some E&T participants, particularly
ABAWDs, may face barriers that would make it hard for them to meet E&T
program expectations. For instance, providers should consider how to
enable an individual to participate rather than immediately making an
E&T provider determination. Another commenter explained that, while the
end goal of the provider determination may be to match a jobseeker with
more appropriate programming, in practice the determination screens a
jobseeker out of an available E&T component with the hope that the
State agency will have another, better option available for the
individual down the line. The commenter recommended that the Department
take steps to make transparent the criteria that inform an E&T provider
determination and to offer opportunities for feedback and revision of
these criteria. In addition, the commenter was concerned that deferring
sole authority to E&T providers to make these determinations could
result in a patchwork of unaligned and confusing approaches that are
subject to staff discretion and, therefore, also subject to staff's
implicit or explicit racial biases. The Department agrees that E&T
providers should not indiscriminately refer E&T participants back to
the State agency. The Department has long discouraged providers from
``creaming''--serving only participants that show potential for good
outcomes. The Department encourages providers to make every reasonable
effort to assist individuals' participation in the training to which
they have been referred, only making a provider determination if
absolutely
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necessary. In accordance with 7 CFR 272.6(a), State agencies are
prohibited from discriminating against any applicant or participant in
any aspect of SNAP administration for reasons of age, race, color, sex,
disability, religious creed, national origin, or political beliefs.
Non-discrimination language must also be in all contracts or agreements
between State agencies and their E&T providers, and the USDA non-
discrimination statement must be on all forms. In addition, the
Department at 7 CFR 272.6 has procedures in place to monitor for
discrimination and manage complaints. At the same time, the Department
acknowledges there is great deal of flexibility in the types of E&T
programs offered among and within States, and believes it is not
feasible to develop a finite list of criteria for use in making
provider determinations for all E&T providers to abide by. In fact, a
finite list of criteria could actually be harmful by reducing the
flexibility State agencies and E&T providers have to target programs to
individuals with a wide range of needs. The Department encourages State
agencies to work up-front with their providers to identify the criteria
for referring individuals to that provider and ensure staff are
properly screening prior to referring individuals. This would go a long
way in reducing the need for provider determinations. In addition, the
Department agrees that State agencies have a responsibility to monitor
their E&T providers to ensure provider determinations are fair and non-
discriminatory. The Department will provide oversight of State agency
implementation of this provision through ongoing management
evaluations.
A not-for-profit agency encouraged the Department to consider
allowing E&T participants to request re-assignment if the participant
believes the provider is ``ill-suited'' to the participant's needs and
interests. As stated above, the Department will allow E&T providers the
flexibility, with State agency oversight, to develop the criteria for
use in making a provider determination. However, the Department
encourages State agencies and providers to take into consideration
participants' needs and interests when determining whether it is
appropriate to refer and enroll them in certain activities. The
Department would encourage the use of provider determinations when a
participant does not feel they are a good fit for the E&T component.
The Department received two comments from not-for-profit agencies
recommending that anyone who has received a provider determination
should have the right to appeal that decision through the fair hearing
process. The Department understands that individuals may disagree with
the decision made by a provider that they are not a good fit for a
particular component. However, the Department does not believe that
requesting an appeal through the fair hearing process at 7 CFR
273.7(f)(6) is the appropriate approach, as a provider determination
does not, in and of itself, result in a sanction or disqualification
from SNAP benefits. The Department would encourage any participant who
disagrees with the provider determination to discuss their concern with
the State agency. The State agency may be able to help the participant
resolve any issues that may have led to the provider determination and
to then allow a re-referral. In addition, as discussed above, if an
individual believes they have been discriminated against, the
Department has procedures in place at 7 CFR 272.6 to file a complaint,
and all State agencies must make these procedures available to all SNAP
participants.
The Department received one comment on the timing for notifying the
State agency when a provider determination has been made. One commenter
recommended that the E&T provider be required to notify the State
agency expediently, with a timeframe of no longer than 14 days. The
Department agrees that timely notification of the provider
determination is an important step and, the sooner the State agency
knows of the determination, the sooner the State agency can inform the
participant and begin to take one of the four actions in 7 CFR
273.7(c)(18)(i)(B). The Department notes that E&T providers are
required at 7 CFR 273.7(c)(4) to notify the State agency within 10 days
if a participant fails to comply with E&T requirements. The Department
is choosing to adopt the same 10-day timeframe for E&T providers to
notify the State agency of the provider determination and has updated
the regulatory text.
Commenters had differing opinions about the types of information
that should be shared between the State agency and the E&T provider
regarding E&T participants. Several commenters had concerns over
provider-participant confidentiality when E&T providers share data with
the State agency on the ill-suited determination, actions that may
result in a breach of trust with the participant. Two commenters
recommended the Department define specific fields that minimize
confidentiality concerns, such as ``participant does not meet specific
provider eligibility criteria,'' and recommended that all E&T
participants sign a release of confidential information at intake with
the provider. One commenter suggested that the provider include a
recommended next step, such as ``suggest reassessment for exemption for
mental/physical fitness,'' when they notify the State agency of the
provider determination. However, a not-for-profit agency did not
believe it was necessary for the State agency to even receive the
reason for the provider determination. The commenter strongly supported
the proposal to require the State agency to act on the provider
determination, even if the E&T provider does not inform the State
agency of the reason for the determination, as the State agency can
make its own decision about the next step. On the other hand, a local
government agency believed the State agency could not appropriately
monitor for potential discriminatory actions if there is not a
requirement that the provider share information on provider
determinations with them. A not-for-profit agency urged the Department
to hold State agencies accountable for collecting, analyzing, and
reporting on the characteristics of jobseekers with a provider
determination, focusing on the characteristics of race, ethnicity,
gender, and age. To enhance State agencies' ability to provide
oversight, the commenter also recommended that the Department build out
``accountability mechanisms'' for situations in which the E&T provider
makes a provider determination but fails to provide the reason for that
determination. The Department understands that E&T providers may
develop relationships with E&T participants and may learn personal or
sensitive information. At the same time, the Department recognizes that
the sharing of particular information could assist in State oversight,
prevent discrimination, and ensure the appropriateness of subsequent
referrals. Thus, the Department concludes that E&T providers should
provide the reason for a provider determination to the State agency, so
that the State agency can make the best possible decision about next
steps; however, if the provider does not provide the reason, the State
agency must continue to process the provider determination without the
reason. In addition, the Department is encouraging, but not requiring,
the E&T provider to share a recommended next step when they notify the
State agency of the provider determination so that the State agency has
as much information as possible to make their decision about
[[Page 373]]
the next step. The Department Encourages State agencies to include
appropriate protocols for the secure handling of personal or sensitive
information in their agreements with providers, including any such
protocols based on Federal or State law and guidance. E&T providers
should follow their internal protocols, as well as any protocols
outlined in their agreements with the State agency, consistent with
applicable laws regarding secure handling of such information.
Several State agencies expressed concern with the section of the
proposed rule that would require the State agency to be the entity that
makes the choice among the four available actions. These State agencies
agreed that rescreening the individual for mandatory participation in
the E&T program is the responsibility of eligibility workers, but they
did not think eligibility workers would be the most appropriate group
to refer the individual to another E&T component, workforce
partnership, or another assistance program. One State agency suggested
that case managers would be the most appropriate entity to make the re-
referral and, in their State, case managers are embedded with E&T
providers. As a result, requiring the individual with a provider
determination to go back to the State agency, rather than to their
provider case manager, would be problematic because: The participant
has an established relationship with their case manager (not with an
eligibility worker); individuals will lose trust they have built with
their case manager; individuals will be forced to ``start over''
potentially causing them to disengage from the program; eligibility
workers are not well-versed in the specific E&T components offered in
the State; and case managers know more about the participant's
circumstances and are better able to recommend other appropriate next
steps, including possible exemptions. The State agency recommended that
the Department provide flexibility to allow individuals with a provider
determination to go back to their case managers for next steps, while
still allowing eligibility functions to remain with the eligibility
workers. Several commenters stated that allowing case managers or staff
associated with the E&T providers to re-refer the participant to
another component would also reduce the number of times an individual
bounces around to different offices, thereby reducing confusion and
inconvenience. Another State agency operating both a mandatory and
voluntary E&T program explained that E&T providers are very capable of
assigning the participant to a new component, referring the participant
to another partner organization, reassessing the individual, and
obtaining other assistance for the participant. Similarly, a second
State agency operating a voluntary program explained that the proposed
provision assumes that State agencies are not already implementing a
``no wrong door'' approach to service delivery. The State agency
explained their existing process already allows for a ``no wrong door''
approach, which provides for re-referrals within the provider network
and for participants to be screened for suitability before receiving
services across multiple programs. The Department does not disagree
that E&T providers may, in some cases, have the necessary skills and
capacity to reassess individuals and determine a more appropriate
component. However, the Department believes, particularly with regard
to mandatory programs, but also with voluntary programs, that the State
agency, not other entities, must determine if a participant with a
provider determination should actually continue to participate in E&T.
Congress included, as one of the four options after an individual
receives a provider determination, that the State agency reassess the
individual's mental and physical fitness. The Department interprets
this to mean that Congress intended for the State agency to only re-
refer an individual to E&T or, at the participant's discretion, refer
to a workforce partnership (the two methods of meeting a mandatory E&T
requirement), if the individual remained eligible for E&T. Only the
State agency can determine if an individual is eligible to participate
in E&T, and if it would be appropriate for the individual to do so.
A professional organization noted the proposed rule goes beyond
what is specified in the Act to dictate that the decision regarding
appropriate next steps after a provider determination is a function of
eligibility staff. The commenter urged the Department not to assign
this as a function of eligibility staff, and allow State agencies to
identify which parties within the E&T program are the most appropriate
to be involved in the decision-making and communication with the
clients. A State agency also asked the Department to clarify the
difference between an eligibility function and the functions of State
staff that are more directly engaged in E&T. When the Department refers
to an eligibility function or eligibility staff, the Department is
referring to the workers who make eligibility determination for SNAP
benefits (including determining exemptions from the work requirements
and referring individuals to E&T) as specified in section 11(e)(6) of
the FNA. State E&T staff are those who evaluate participants'
suitability for certain E&T activities and otherwise coordinate
activities within the E&T program. The Department believes that the
decision about which of the four actions to take at 7 CFR
273.7(c)(18)(i)(B) for an individual with a provider determination must
be performed by an eligibility worker because only an eligibility
worker can determine if it is appropriate, as a condition of
eligibility, to refer someone to E&T in accordance with State agency
criteria. Similarly, only an eligibility worker can re-screen an
individual for exemptions from work registration as that determination
is closely related to eligibility. While other State agency staff
beyond eligibility workers could refer an individual to a workforce
partnership or coordinate with other Federal, State, or local workforce
or assistance programs, the Department does not think it is
logistically or administratively feasible to split the decision-making
authority at 7 CFR 273.7(c)(18)(i)(B) between eligibility and non-
eligibility staff. That being said, the Department does believe that
State E&T staff, case workers, and E&T providers likely have important
information to share that may inform which of the four actions would be
the most appropriate for an individual with a provider determination.
The Department would encourage these staff to share this information
with the eligibility worker to inform the eligibility worker's
decision. In addition, the Department believes State agencies must take
greater accountability for individuals they refer to E&T programs--both
in voluntary and mandatory programs. If an individual has already
received a provider determination after an initial referral to an E&T
program, the State agency must seriously consider if E&T is the most
appropriate placement for the individual, or if another program, as
described in 7 CFR 273.7(c)(18)(i)(B)(4), would be a better use of a
participant's time. As described earlier, E&T provider staff are
encouraged to provide the reason for the provider determination and
make a recommendation regarding the best next action to the State
agency, but ultimately the decision about the next action rests with
eligibility staff in the State agency. In light of these explanations,
no modification to the regulatory language is made.
[[Page 374]]
A State agency operating a voluntary program noted that its State
E&T program had contracted with several E&T providers who operate
multiple components, and found that such providers are able to re-
assign individuals from one component to a more appropriate component
without re-involving the State agency. The commenter explained how the
E&T provider enters the component change in the E&T data system and
thus the State agency is informed. The State agency requested that the
Department modify language to allow an E&T provider offering multiple
components approved by the State agency to move participants to a more
appropriate component without referring the individual back to the
State agency. The commenter believed granting E&T providers this
discretion would ensure an individual could move into a more suitable
activity as soon as reasonably possible while maintaining continuity of
case management services. The Department notes that section 6(d)(4)(O)
of the FNA refers to an individual being ``ill-suited'' for a
``component'' and not for an ``E&T program.'' However, the Department
agrees with the commenter that, if an E&T provider makes a provider
determination for one component and believes an individual would be a
good fit for another State-approved component offered by the same
provider, a reasonable next step would be for the E&T provider to
enroll the individual in the second component. The Department believes
that the intent of the statutory language was to give E&T providers a
tool to refer individuals back to the State agency when an E&T provider
makes a determination that it is unable to serve the participant well.
As a result, if an E&T provider determines an individual is ill-suited
for a component and there is a more suitable component available, the
State agency will have the option to either require the E&T provider to
refer the individual back to the State agency with a provider
determination, if the individual is ill-suited for one component, or
allow the E&T provider to switch the individual to another component
without referral back to the State agency. In the latter case, the E&T
provider must inform the State agency of the new component. If an E&T
provider does not have a more suitable component, the E&T provider must
refer the individual back to the State agency with a provider
determination. The Department has added this language to allow State
agency discretion at 7 CFR 273.7(c)(18)(i).
Several commenters, including State agencies operating voluntary
E&T programs, explained that implementing the ill-suited process, as
described in the proposed rule, would be onerous and confusing for a
voluntary E&T program to operate, and would likely create unnecessary
burdens for both participants and State agency staff. One commenter
recommended that, for voluntary programs, the State agency require E&T
providers to refer participants with a provider determination to other
providers, but only if appropriate and desired by the participant.
Commenters explained that, since voluntary participants cannot be
sanctioned for failure to comply with E&T, it is not necessary to
include voluntary households in the actions described at 7 CFR
273.7(c)(18). The Department agrees that voluntary participants cannot
be sanctioned for failure to comply with E&T, but also notes that the
Act does not differentiate between voluntary and mandatory E&T
participants with regard to the ill-suited process. In addition, the
Department believes there is value in requiring voluntary participants
with a provider determination to be reassessed by the State agency to
determine the next most appropriate action. As stated above, the State
agency must be accountable to E&T participants and the efficient use of
E&T resources even in voluntary programs. The State agency has a
responsibility to properly screen individuals for participation in E&T
and match participants to the most appropriate E&T component. The State
agency must also ensure all participants, both mandatory and voluntary,
are being adequately served by the State's E&T providers.
The Department also received comments on the interaction between
reverse referrals and provider determinations. A State agency explained
that voluntary E&T participants may be referred to a specific program
by the State agency or they may self-refer to an E&T provider. This
State agency explained their E&T program is structured so that all E&T
providers provide case management and case managers work with the
participant to place them into the most compatible component. Using the
proposed model, the State agency believed few individuals would be
placed in a component where they are ``ill-suited.'' However, the State
agency wondered what would happen if an E&T participant self-referred
to an E&T provider and the individual received a provider determination
for that component. The State agency explained they would prefer that
the E&T provider, using their case management services, refer the
participant to a more appropriate E&T provider, rather than back to the
State agency, adding unnecessary complexity. The Department does not
believe that the process described in the rule is inconsistent with
self-referrals as described by this State agency, and the Department
notes that self-referrals can occur in both voluntary and mandatory
programs. Self-referrals (also known as reverse referrals) happen when
a SNAP participant identifies an E&T provider without being directly
referred to that provider and independently asks to enroll in the
program. The E&T provider must determine, by contacting the State
agency, that the individual is a SNAP participant and request the
individual be formally referred by the State agency to the E&T
component offered by the provider. If then referred by the State
agency, the E&T provider may then enroll the participant in the
component. The Department would expect, as a best practice that, if a
potential E&T participant self-refers to an E&T provider, the E&T
provider would assess the individual for compatibility with the E&T
components offered prior to sending a request to the State agency for a
formal referral to their E&T component. The Department reminds State
agencies that E&T providers cannot enroll SNAP participants as E&T
participants unless the State agency has first screened individuals to
determine if it is appropriate to refer them to E&T and then refers
them to the E&T program in accordance with 7 CFR 273.7(c)(2). If an E&T
provider is asking the State agency to enroll walk-ins without first
making sure the individual is a good fit for their program and is, in
fact, a SNAP participant, and if the State agency is not scrutinizing
self-referral requests from providers to ensure it is appropriate to
refer individuals to the E&T program, then both the E&T provider and
the State agency are failing in their responsibility to ensure
participants are matched to programs where they are likely to be
successful. The State agency has an accountability role to play in
ensuring that self-referrals should be officially referred to E&T and,
if not, to assist the individual in finding a more appropriate program.
Several commenters expressed concerns with the Notice of E&T
Participation Change (NETPC). Some commenters strongly recommended the
Department make the NETPC optional for voluntary E&T participants or do
away with the notice requirement entirely. A not-for-profit agency
[[Page 375]]
explained the State agency and local E&T providers with whom they work
already have structures in place for communicating with voluntary E&T
participants, and did not believe that State and Federal administrative
resources should be spent on sending an unnecessary and confusing
notice. The commenter urged the Department to, at a minimum, consider
different parameters for the notice (e.g., in a voluntary state, the
NETPC language would need to inform the participant that E&T has no
bearing on SNAP eligibility and not doing E&T would not harm their SNAP
benefits). A State agency that runs both a voluntary and mandatory E&T
program explained that the Act already requires all E&T programs to
provide case management services to E&T participants, and believed it
is more appropriate that the provider determination be addressed during
regular on-going case management. The commenter suggested the case
manager could re-assess the individual's physical and mental fitness to
participate in the assigned E&T component or refer the individual to a
more appropriate E&T component or workforce partnership. Another State
agency, running both a voluntary and a mandatory program, explained the
ill-suited notification for participants should be left to the
discretion of State agencies. The commenter explained that, in their
State, all E&T participants have an Employment and Career Development
plan, which is updated by the participant and their case worker when
circumstances change. The State agency believed this form would provide
sufficient notification of the participant's changing requirements. A
professional organization suggested the Department should consider
providing only basic guidance that notices be given in some State-
established form, acknowledging that State agencies are in the best
position to identify how and when notice should be given. The commenter
stated this approach would in part alleviate the burden on State
agencies to establish a new written notice and procedure, but still
allow State agencies to ensure that participants are communicating with
their providers and case managers regarding critical decisions in the
services they are receiving. This could help to reduce confusion on the
part of the SNAP participant by ensuring the necessary conversations
are had with staff who already have a relationship with and knowledge
of the participant.
On the other hand, some commenters supported the formal noticing
requirement and asked that the Department include more information in
the notice. A not-for-profit agency explained notice issues have been a
core element of confusion for individuals subject to a work
requirement, and noted that life circumstances can change quickly for
this population, potentially changing their exemption status. This
commenter noted that clear communications outlining steps that can be
taken to maintain benefits, including pursuing an exemption or good
cause, are important to ensuring participants have continued access to
the SNAP benefits they need. This not-for-profit agency recommended:
Requiring State agencies to not only mail the NETPC, but also to send
it via other channels like email; requiring the State agency to mail
the notice to the individual subject to the work rules to ensure the
message is targeted to the individual of interest; including language
about exemptions and good cause in the notice; informing the E&T
participant about next steps and explaining that the E&T participant is
not at risk of sanction for failure to comply with E&T during that
time; explaining the State agency will follow-up (by taking one of the
four steps); and informing participants they will get a follow-up
notice if a negative action is being taken on their SNAP case. A
different not-for-profit agency explained the NETPC should clearly
articulate the reason for the ``ill-suited'' determination, the next
steps that the State agency will take to match the jobseeker to another
opportunity, the time frame in which those next steps will occur, and
how the jobseeker can appeal the decision. Another not-for-profit
agency recommended that the Department work with State agencies to
establish automatic notification procedures to ensure that E&T
providers alert State agencies of a provider determination as soon as
it is made. This commenter also explained State agencies should be
directed to establish procedures that then communicate this
notification in multiple formats (such as mail, email, and text or
phone) to participants immediately upon its receipt from the provider.
In addition, another not-for-profit agency urged the Department to
amend 7 CFR 273.7(18)(ii) to provide notice that an ABAWD's countable
months may still accrue unless the individual meets or is otherwise not
subject to the ABAWD work requirement.
The Department's intent in requiring the NETPC in the proposed rule
was to ensure that the individual with a provider determination
understood that they had received such a determination and that they
should no longer attend their E&T program, to provide the participant
with some background about what would happen next and, in the case of
an ABAWD, inform the ABAWD about the accrual of countable months if the
ABAWD is subject to the time limit and not meeting the work requirement
in accordance with 7 CFR 273.24. The Department agrees with commenters
that there may be other ways, beyond a formal notice, to share this
information with participants. Therefore, with this final rule, the
Department is not requiring the State agency to send a NETPC, but is
requiring that the State agency develop and implement procedures to
notify individuals about the provider determination, steps the State
agency will take to identify another opportunity, and necessary
information to contact the State agency. The Department acknowledges
that entities outside the State agency, such as E&T providers or other
case management staff, may have a relationship with the E&T participant
who received the provider determination, but the Department believes
that it is the State agency's responsibility, not providers, to notify
the individual of the provider determination. This is because, as noted
previously, the State agency is responsible for taking one of the four
actions in 7 CFR 273.7(c)(18)(i)(B) and, as discussed below, if the
individual with the provider determination is an ABAWD, the State
agency is responsible for informing the ABAWD that they will accrue
countable months unless the ABAWD fulfills the work requirement in
accordance with 7 CFR 273.24, has good cause, lives in a waived area,
or is otherwise exempt. The Department is providing State agencies with
discretion to determine how the State agency will notify the individual
with the provider determination--for instance, in writing or verbally.
The State agency must, at a minimum, document this notification in the
case file. The Department is not requiring that the State agency notify
the participant of the reason for the provider determination, although
the State agency may do so. In any case, as previously stated, State
agencies can move forward with processing a provider determination
before obtaining the information from the provider as to the reason for
the provider determination. In the case of either a mandatory or
voluntary E&T participant, the State agency must also notify the
participant that they are not being sanctioned as a result of the
provider determination. The Department has added these
[[Page 376]]
requirements to 7 CFR 273.7(c)(18)(i)(A).
With regard to an ABAWD who receives a provider determination, the
State agency must notify the ABAWD, at the same time the State agency
informs the ABAWD of the information above, that he or she will accrue
countable months toward the three-month participation time limit the
next full benefit month after the month during which the State agency
notifies the ABAWD of the provider determination, unless the ABAWD
fulfills the work requirements in accordance with 7 CFR 273.24, or the
ABAWD has good cause, lives in a waived area, or is otherwise exempt.
The Department has modified the language regarding the accrual of
countable months in the final rule to state the ABAWD will accrue
countable months ``the next full benefit month after the month during
which the State agency notifies the ABAWD of the provider
determination.'' The Department recognizes that ABAWDs could
potentially receive a provider determination during a partial benefit
month, which is not to be considered a countable month under 7 CFR
273.24(b)(1). Additionally, for ABAWDs that are notified of a provider
determination during the middle of a full benefit month, this provision
will not penalize ABAWDs for lost opportunities to meet the ABAWD work
requirement that month. The Department does not believe it is
appropriate to penalize ABAWDs for being referred to an E&T component
for which an ABAWD is determined to be ill-suited, likely due to no
fault of their own, nor for the time during which such an ABAWD may not
have definitive communication of the provider determination. This
change will mean that ABAWDs can only be assigned countable months when
the ABAWD has a full month (and a full opportunity) to fulfill the work
requirement after being notified of a provider determination. As a
result, ABAWDs would not accrue a countable month for the month in
which they receive notification of a provider determination. The ABAWD
would be expected to fulfill the ABAWD work requirement by working
(paid or unpaid) or participating in a work program or workfare program
during the next full benefit month, unless the ABAWD has good cause,
lives in a waived area, or is otherwise exempt. The regulations at 7
CFR 273.7(c)(18)(i)(A) and 7 CFR 273.7(c)(18)(ii) have been modified to
reflect this change, and a corresponding change has been made to the
definition of countable months at 7 CFR 273.24(b)(1). The State agency
might find it appropriate on these occasions to consider whether the
individual should be considered for an exemption or good cause
determination and inform the ABAWD of exemption and good cause
determination processes.
The Department notes that notifying individuals of the provider
determination, in accordance with 7 CFR 273.7(c)(18)(i)(A), is
necessary even for voluntary E&T participants, as the individual may
not understand their participation in that component has ended, and
wonder what their next step to receive training and assistance should
be. In addition, in some cases, ABAWDs may be voluntary participants
and, as discussed above, it is particularly important that ABAWDs
receive information about the accrual of countable months in the next
full benefit month after the month during which the State agency
notifies the ABAWD of the provider determination.
The Department is also making a change to the timing of when the
State agency must notify E&T participants of a provider determination.
Given how crucial it is for ABAWDs to receive that notification, so
that they may begin to identify other opportunities to fulfill the
ABAWD work requirement, and for other E&T participants to be notified
of the provider determination, so that they are not left wondering what
their next step ought to be, the Department is adding a requirement to
7 CFR 273,7(c)(18)(i)(A) that the State agency must notify E&T
participants with a provider determination of that determination within
10 days of receiving the notification from the E&T provider.
The Department also received comments regarding when the State
agency should be required to take one of the actions in 7 CFR
273.7(c)(18)(i)(B). One not-for-profit agency recommended that the
State agency be required to take one of the four actions at the next
recertification because the State agency is already required to contact
the participant at that time and will have the opportunity to ask
questions related to the provider determination. The same commenter
also suggested the participant should be given the opportunity to
contact the State agency sooner for help in identifying E&T
opportunities. Another commenter believed the final rule should specify
steps the State agency can take to ensure that an individual with a
provider determination is moved into a more suitable activity as soon
as reasonably possible. Some of these steps might include having State
agency staff speak with the participant about their employment goals
and interests, requiring the State agency to maintain an up-to-date
database of existing workforce development programming, specifically
targeted to jobseekers who face more significant barriers to
employment, or having the State agency employ system navigators who can
better coordinate options on behalf of a participant. Given the
flexibility State agencies have to structure their E&T programs based
on agency priorities and the needs of local providers, the Department
is providing State agencies flexibility with regard to when they take
one of the actions in 7 CFR 273.7(c)(18)(i)(B), so long as the action
is taken no later than the individual's recertification. The Department
also believes it is important for the State agency to be responsive to
individuals with a provider determination who would like to move on to
one of the next steps as soon as possible. As a result, if an
individual with a provider determinations tells the State agency they
would like the State agency to make a decision among the four options
and refer, the State agency should do so as soon as possible. The
Department believes that the vast majority of E&T participants will be
properly screened and initially assigned to components for which they
are a good match and thus expects this provision to only apply to a
small subset of the overall E&T population. The regulation at 7 CFR
273.7(c)(18)(i)(B) has been updated accordingly.
The Department received a comment from a not-for-profit agency
suggesting that, rather than making a re-assessment of general work
requirement exemptions, including a re-assessment of mental and
physical fitness, one of the four options at 7 CFR
273.7(c)(18)(i)(B)(3), all participants should be reassessed for
exemptions at the point that an E&T provider makes a provider
determination. The commenter explained that, in their State, many
mandatory E&T participants and ABAWDs could end up qualifying for an
exemption from mandatory E&T or the ABAWD work requirement after a
short period of time. The commenter believed re-assessing exemptions
should be the starting point before seeking to refer participants to
additional programs or identifying other work opportunities. Further,
the commenter believed the regulation at 7 CFR 273.7(c)(18)(i)(B)(3)
should also include an evaluation of exemptions for all the work
requirements the participant is subject to, not just the general work
requirement. The Department agrees that individuals who should be
exempt
[[Page 377]]
from any work requirement receive those exemptions, and that it is the
responsibility of the State agency to screen for and provide those
exemptions. The Department considered requiring the State agency to
first re-assess individuals with a provider determination for an
exemption from the general work requirement before taking one of the
other three actions; however, the Department concluded that this
requirement would be administratively burdensome for the State agency
because not all individuals with a provider determination will need a
re-assessment for an exemption. The Department decided that providing
re-assessment as one of the four options would allow State agencies to
perform the re-assessment if they had reason to believe a re-assessment
was necessary (i.e., received information from the provider, a case
manager, or a participant suggesting an individual may be exempt). The
Department would strongly encourage the State agency to re-asses the
individual for an exemption if the E&T provider suggested the reason
for the provider determination was related to an exemption. In
addition, the Department does not believe it is necessary to require
State agencies to always re-assess an ABAWD with a provider
determination for exemptions from the ABAWD work requirement; however,
the State agency may do so at any time.
The Department would also like to clarify a misunderstanding of the
proposed regulatory text at 7 CFR 273.7(c)(18)(i)(B)(1). In the
proposed rule, the Department explained that, if the State agency chose
to re-refer an individual with a provider determination to another E&T
component, the individual must also receive case management in
accordance with 7 CFR 273.7(c)(2). A not-for-profit agency explained
many individuals re-referred to an E&T component might not actually be
placed into the component due to a lack of provider slots, the
participant not meeting eligibility criteria, or the participant or
provider not following through with the referral. The commenter further
explained that many SNAP agencies are not configured to provide case
management outside of their E&T providers, and many E&T providers would
not be willing to provide case management if they did not have
available component slots or the participant did not meet eligibility
criteria. The commenter concluded that case management should only be
required if the SNAP participant is successfully placed in a component.
The Department identifies several misunderstandings in this statement,
and would like to clarify both the overall role of case management in
E&T, the general purpose of the provider determination, and the
application of next steps in 7 CFR 273.7(c)(18)(i)(B). First, all E&T
programs must provide case management to all E&T participants. If a
State agency chooses to re-refer a participant to an E&T component
after the individual received a provider determination, the State
agency must provide that participant with case management, whether
through the E&T provider or through some other means. This case
management could be a continuation of the case management the
participant was receiving before the provider determination, or a new
set of case management services. As discussed previously in the case
management section of the preamble, the State agency should tailor case
management services to the needs of the participant. Second, the
Department does not understand why a State agency would refer an
individual to an E&T component after the individual received a provider
determination if the component does not have a place for the
participant, if the participant does not meet eligibility criteria, or
there is a likelihood that the provider will not follow through on the
referral. State agencies should not refer individuals to E&T components
that do not have available slots or are inappropriate for the
individual. The State agency has a choice among the four actions in 7
CFR 273.7(c)(18)(i)(B) and can choose the most helpful path for an
individual in moving toward self-sufficiency. If there is not an
appropriate E&T component available, the State agency should refer the
participant to a workforce partnership in accordance with 7 CFR
273.7(c)(18)(i)(B)(2), if available and of interest to the participant,
or coordinate with another program in accordance with 7 CFR
273.7(c)(18)(i)(B)(4). No changes to the regulatory text are necessary
with this clarification.
The Department received one comment recommending the Department
require the State agency to inform individuals who are referred to an
E&T component, in accordance with 7 CFR 273.7(c)(18)(i)(B)(1) that the
participant may be disqualified for failure to report or begin the new
E&T component. The Department believes that modifications to paragraph
7 CFR 273.7(c)(2) in this rulemaking regarding screening and referral
to E&T sufficiently outline the necessary steps the State agency must
take to inform E&T participants regarding compliance with E&T. The
requirements in paragraph 7 CFR 273.7(c)(2) apply to individuals who
are referred to E&T as a result of actions in 7 CFR
273.7(c)(18)(i)(B)(1); therefore, no additional regulatory changes are
necessary.
The Department received one comment requesting the Department
clearly state in 7 CFR 273.7(c)(18)(i)(B)(4), if the State agency finds
that the best option is to coordinate with Federal, State, or local
workforce or assistance programs, rather than refer the individual to
E&T or a workforce partnership, then that individual must be exempted
from mandatory E&T. The Department discussed in the preamble to the
proposed rule that if a State agency determines that other work
opportunities or assistance would be most appropriate for the
individual, then the State agency cannot subject the individual to
mandatory E&T requirements because the other work opportunities or
assistance would not fulfill a mandatory E&T requirement. In other
words, it would be not be fair to subject an individual to a mandatory
E&T requirement if the State agency has determined that other Federal,
State, or local workforce or assistance programs would be more
beneficial. The Department agrees that an individual should not be
required to participate in E&T if the State chooses this option and has
modified the regulation at 7 CFR 273.7(c)(18)(i)(B)(4) to more clearly
state this understanding. In addition, the Department notes that if a
State agency chooses the option at 7 CFR 2737.7(c)(18)(i)(B)(3) to
reassess the mental and physical fitness of the participant, and the
State agency determines that an individual does not meet an exemption
from the general work requirement, but the State agency also determines
the individual should be exempted from mandatory E&T, the State agency
must exempt the individual.
The Department also received comments on the requirement in 7 CFR
273.7(c)(18)(ii) that, from the time an E&T provider determines an
individual is ill-suited for an E&T component until after the State
agency takes one of the actions in paragraph 7 CFR 273.7(c)(18)(i)(B),
the individual shall not be found to have refused without good cause to
participate in mandatory E&T. A not-for-profit agency explained that
taking one or all of the actions in 7 CFR 273.7(c)(18)(i)(B) does not
guarantee State agency follow-up on referrals or successful
identification of an appropriate and available placement by the State
agency. The commenter, therefore, suggested that the statement
[[Page 378]]
in 7 CFR 273.7(c)(18)(ii) be revised to state, ``from the time an E&T
provider determines an individual is ill-suited for an E&T component
until after the State agency takes one of the actions in (i)(B) of this
section that leads to State-confirmed enrollment in an appropriate SNAP
E&T component or workforce partnership that meets mandatory E&T
requirements, or else leads to an exemption, the individual shall not
be found to have refused without good cause to participate in mandatory
E&T.'' The Department understands that, at the time a State agency
takes one of the four actions in 7 CFR 273.7(c)(18)(i), there may still
be actions the participant must take to follow through, for example,
beginning the E&T program or workforce partnership; however, the
Department believes it would be too administratively burdensome to
track the end of the period when an individual cannot be found to have
failed to comply with mandatory E&T to multiple disparate end points
(i.e, when someone starts E&T, when someone receives good cause etc.).
In addition, while the language in 7 CFR 273.7(c)(18)(ii) specifies for
a period after a provider determination during which an individual
cannot be found to failed to comply with E&T, at the end of this
period, State agencies still have a responsibility to determine
exemptions and good cause related to the mandatory E&T requirement, as
appropriate, as they would in any other case. As a result, the
Department does not believe the additional language proposed by the
commenter is necessary, and does not modify the text at 7 CFR
273.7(c)(18)(ii).
The Department received several comments urging the Department to
not allow ABAWDs to accrue countable months after they received a
provider determination. A professional organization suggested ABAWDs
would be unduly penalized for a decision that is ultimately outside of
their control, and the work that ABAWDs did complete within those
months would go unacknowledged. The commenter believed that pausing the
accrual of countable months while awaiting the State agency to take
action on one of the four options in 7 CFR 273.7(c)(18)(i)(B) would
also allow State agencies adequate time to react, re-assess, and
reassign ABAWDs. A not-for-profit agency explained that, at present in
their State, when organizations attempt to refer individuals back to
the State agency for reasons of suitability, administrative delays
often prevent a timely response. The commenter noted this leaves the
ABAWD in limbo at no fault of their own. The commenter argued the time
spent waiting for State agencies to respond should not count towards
the three-month time limit. Another not-for-profit agency explained the
Department is essentially saying that it is acceptable to disconnect an
ABAWD from the E&T service that was allowing that individual to fulfill
the ABAWD work requirement, at the same time expecting that individual
to fulfill the work requirement on their own, while the State agency
has unlimited time to take one of the four required action steps to
match that ABAWD to an appropriate service. Moreover, the commenter
explained, the ABAWD is not at fault if their E&T provider makes a
provider determination for the services offered by the provider. Given
the unequal expectations in this situation, the commenter strongly
encouraged the Department to reconsider its requirement that ABAWDs may
accrue countable months toward their three-month participation time
limit after having received a provider determination, while at the same
time acknowledging that doing so may be outside of the scope of this
particular rulemaking. Another not-for-profit agency was concerned that
E&T providers may actually be hesitant to make a provider determination
for an ABAWD if they know that an ABAWD may begin to accrue countable
months, resulting in an ABAWD continuing in a component where they are
not able to benefit and may ultimately not complete. This not-for-
profit agency also urged the Department to add regulatory language that
would direct State agencies to re-assess ABAWDs for good cause if the
ABAWD received a provider determination. The commenter explained that
not all individuals who receive a provider determination for a
particular component would have good cause, but some might, and ABAWDs
should be re-assessed after a provider informs the State agency of a
poor match to determine if it might suggest they should have good cause
for not fulfilling the ABAWD work requirement.
The Department understands the concern that an ABAWD may accrue
countable months after receiving a provider determination and, in many
cases, the ABAWD may receive the determination through no fault of
their own (e.g., the ABAWD was mis-assigned by the State agency).
However, the mandatory protection from sanction in section 6(d)(4)(O)
of the FNA only applies to the requirement to participate in E&T.
ABAWDs have many ways to meet the ABAWD work requirement outside
participation in E&T. The Department also notes that ABAWDs will accrue
countable months even if they are participating in E&T, but not
fulfilling the ABAWD work requirement in accordance with 7 CFR
273.24(a)(1). The Department does believe it is important that the
ABAWD be notified of the provider determination as soon as possible, so
that the ABAWD can seek out other work or training opportunities. For
this reason, the Department has directed State agencies in 7 CFR
273.7(c)(18)(i)(A) to notify ABAWDs within 10 days of receiving
notification of the provider determination from the E&T provider, that
the ABAWD will accrue countable months toward their three month
participation time limit the next full benefit month after the month
during which the State agency notifies the ABAWD of the provider
determination, unless the ABAWD fulfills the ABAWD work requirement in
accordance with 7 CFR 273.24, or the ABAWD has good cause, resides in a
waived area, or is otherwise exempt. As discussed earlier, as a best
practice, providers are encouraged to provide the reason for the
provider determination to the State agency and suggest a recommended
next step for the individual. If the provider was providing case
management, the case manager is required in accordance with 7 CFR
273.7(e)(1), as re-designated, to share information about a possible
exemption or good cause with the State agency.
In conclusion, the Department is making several changes to the
proposed regulatory text at 7 CFR 273.7(c)(18): Replacing the phrase
``ill-suited determination'' with ``provider determination;'' stating
that the E&T provider has the authority and the responsibility to make
a provider determination; requiring the E&T provider to notify the
State agency of the provider determination within 10 days; replacing
the requirement to send the NETPC with a requirement to notify the
participant about the provider determination and the accrual of
countable months for an ABAWD; stating that ABAWDs will accrue
countable months toward their three month participation time limit the
next full benefit month after the month during which the State agency
notifies the ABAWD of the provider determination, unless the ABAWD
fulfills the ABAWD work requirement in accordance with 7 CFR 273.24, or
the ABAWD has good cause, resides in a waived area, or is otherwise
exempt; requiring the State agency to notify the E&T participants of
the provider
[[Page 379]]
notification within 10 days; requiring that the State agency notify the
individual that they are not being sanctioned as a result of the
provider determination; allowing the State agency to take one of the
four actions in 7 CFR 273.7(c)(18)(i)(B) by no later than the next
recertification; allowing, at State agency option, an E&T provider to
enroll a participant in another component offered by the provider if
the initial component was not a good fit; and requiring that, if the
State chooses option 7 CFR 273.7(c)(18)(i)(B)(4), the participant must
not be required to participate in E&T.
State Agency Accountability for Participation in an E&T Program and
Good Cause
The Act introduced several new provisions that emphasize State
agencies' responsibilities to build E&T programs that are well-targeted
to E&T participants' needs and support E&T participants as they engage
with those programs. In addition to addressing these provisions in the
proposed rule, the Department also proposed additional ways to enhance
State agency responsibility and capacity to build E&T programs that
provide robust work and training opportunities to participants. In this
section, the Department will discuss three of these additional
provisions: A new form of good cause provided to E&T participants when
there is not an appropriate or available opening in the E&T program;
clarification of the application of good cause for failure or refusal
to participate in an E&T program for ABAWDs; and a clarification that
State agencies must first determine if non-compliance with a work
requirement was without good cause before sending a notice of adverse
action. Later sections of the preamble discuss other accountability
provisions, like new State agency reporting requirements regarding
mandatory E&T participants on the quarterly reports, and a new
requirement to provide a consolidated written notice and oral
explanation of all applicable work requirements to households.
The Department believes that, if a State agency requires
participation in E&T as a condition of eligibility, it has a
responsibility to build an E&T program that can accommodate all
mandatory E&T participants. In situations where there is not an
appropriate and available opening for a mandatory E&T participant in
the E&T program, the Department does not believe that the mandatory E&T
participant should be disqualified for failing to comply with the E&T
requirement, as the lack of an appropriate and available opening in an
E&T program is beyond the E&T participant's control. As a result, the
Department proposed to add new Sec. 273.7(i)(4) to define good cause
to include circumstances where the State agency determines that there
is no appropriate and available opening in the E&T program to
accommodate a mandatory E&T participant. The Department proposed that
the period of good cause would extend until the State agency identifies
an appropriate and available opening in the E&T program, and the State
agency informs the SNAP participant of such an opening. The Department
proposed in 7 CFR 273.7(c)(2) that, if there is not an appropriate and
available opening in an E&T program for a mandatory participant, the
State agency must determine the participant has good cause for failure
to comply with the mandatory E&T requirement in accordance with
paragraph 7 CFR 273.7(i)(4). The Department also proposed in paragraph
7 CFR 273.7(e)(1), as re-designated, that case managers must inform the
appropriate State agency staff about the lack of an appropriate and
available E&T component for a mandatory E&T participant. Lastly, the
Department noted in the proposed rule preamble that, ideally, if there
is not an appropriate and available opening in the E&T program, the
State agency should consider exempting the individual from mandatory
E&T under the discretion provided to State agencies in 7 CFR
273.7(e)(2), re-designated as 7 CFR 273.7(e)(3). The Department also
noted that this proposed new form of good cause would only apply to
mandatory E&T participants and would not provide all ABAWDs with good
cause for failure to fulfill the ABAWD work requirement in 7 CFR
273.24. In other words, an ABAWD who is also a mandatory E&T
participant, but for whom there is not an appropriate and available
opening in an E&T program, would receive good cause for failure to
participate in E&T, but would not receive good cause for failure to
comply with the ABAWD work requirement.
The Department received 28 comments on this provision, most of
which were very supportive, although two commenters, while supportive,
were concerned the provision would be applied too liberally and
provided suggestions to mitigate this possibility. In addition, four
supporters felt that the good cause for mandatory E&T should also apply
to the ABAWD work requirement. The Department did not receive any
comments opposing the addition of the new form of good cause for
mandatory E&T.
Commenters believed that the addition of the new form of good cause
for mandatory E&T provides an important safeguard for mandatory E&T
participants who are not able to participate in E&T, through no fault
of their own, because the State agency has not provided an appropriate
or available slot in an E&T program. However, one not-for-profit agency
felt that the Department's introduction of this new form of good cause
overestimated the demand for such ``exemptions,'' while underestimating
the flexibility of the work requirement, as most E&T programs struggle
to recruit participants into E&T. The commenter believed that good
cause for this purpose should only ever be granted when a participant
attempts to access a slot and is denied entry for lack of an opening.
Further, the commenter believed the Department could mitigate concerns
about over-use of this good cause provision if participants, upon
receiving good cause for non-compliance, were expected to find work
experience and volunteer opportunities outside a State agency's formal
E&T program, pushing the participant to re-engage with their community
and build work experience. The Department agrees with the commenter
that the focus of State agencies should be on building robust E&T
programs that provide participants opportunities in training and work
experience programs that lead to improved employment outcomes, and not
on excusing participants from the requirement to participate because
there is not an appropriate or available opening. The Department has
invested considerable resources to support State agencies in growing
their capacity and developing E&T programs that are responsive to the
needs of individuals and the employers. However, the Department feels
strongly that, if a State agency is going to require individuals to
participate in E&T as a condition of eligibility, it should hold up its
end of the bargain by creating enough appropriate and available E&T
opportunities so the individuals may meet this requirement. The
Department would like to clarify that State agencies have the
flexibility to determine who they serve in E&T, and the responsibility
to screen and refer individuals to E&T only if appropriate. States have
the discretion to exempt an individual or categories of individuals
from participating in E&T. The Department notes that well-managed
programs should have very few circumstances where there is a need to
[[Page 380]]
provide this new form of good cause. State agencies should be
continuously monitoring the capacity of their E&T providers, properly
screening individuals to determine if it is appropriate to refer them
to E&T program, and only referring individuals to providers that have
appropriate and available openings. If a State agency is unable to
provide an appropriate slot for an individual required to participate
in E&T, the State agency should use its flexibility to exempt them from
participation--otherwise, the State agency must provide good cause
until a slot is available.
The Department also believes it would be unnecessarily restrictive
to limit this new form of good cause to circumstances where a
participant attempts to access a slot and is denied entry for lack of
an opening. For instance, with the introduction of the requirement that
all E&T participants receive case management, the Department would
expect case managers to play a role in sharing information with the
appropriate staff in the State agency about client participation. If a
case manager is made aware that there is not an appropriate and
available opening for a particular E&T participant, the case manager,
as proposed in 7 CFR 273.7(e)(1), must share this information with the
appropriate State agency staff, so that the State agency can determine
if it is appropriate to provide good cause. The Department believes it
would be unreasonable to require a participant to attempt to access a
program, when the participant, through the case manager, already knows
an opening does not exist.
The Department also appreciates the comment from the same not-for-
profit agency that a mandatory E&T participant who is found to have
good cause for non-compliance with E&T, because of a lack of an
appropriate or available opening should be expected to find other work
or volunteer experience. The Department agrees that E&T is not the only
avenue available to SNAP participants to advance their skills and
training, and would encourage State agencies to assist SNAP
participants with referrals to other agencies or organizations.
However, State agencies cannot require SNAP participants to engage in
other work or training opportunities in place of E&T. In accordance
with section 6(d)(4)(E) of the FNA, State agencies can only require
work registrants to participate in a SNAP E&T program as defined in
section 6(d)(4)(B)(i) of the FNA. The Department does note; however,
that the Act requires State agencies to advise all work registrants
living in households without earned income and without an elderly or
disabled member about employment and training opportunities in the
community, and the Department has added this requirement at 7 CFR
273.14(b)(5). Moreover, the Department encourages State agencies, as a
best practice, to provide this information to additional households,
including mandatory E&T participants for whom the State does not have
an appropriate or available opening in E&T, to guide these participants
toward other opportunities. Lastly, as already noted, ABAWDs who
receive good cause for failure to participate in E&T because of a lack
of an appropriate or available opening are still subject to the ABAWD
work requirement, and must work or participate in a work program or
workfare program to receive benefits beyond the three-month time limit.
The Department encourages the State agency, as a best practice, to
share the employment and training information discussed above with
these ABAWDs or any SNAP participant that is likely to benefit from
this information.
Four commenters expressed their concern regarding the Department's
proposal that good cause for lack of appropriate or available opening
in mandatory E&T would not apply to the ABAWD work requirement. A State
agency stated that the Department's justification that there are many
ways to fulfill the ABAWD work requirement, other than through SNAP
E&T, is not consistent with the recent Families First Coronavirus
Response Act (FFCRA) (Pub. L. 116-127), which temporarily suspended the
time limit for those ABAWDs not offered a slot in a work program or
workfare program. Given this precedent, the State agency felt USDA
should stipulate at 7 CFR 273.7(i)(4) that good cause should be granted
for failure to fulfill the ABAWD work requirement during periods when
the Secretary determines, or Congress appoints by law, that the options
available to meet the work requirement are limited. An act of Congress
to suspend the ABAWD time limit, such as with FFCRA, does not need to
be incorporated into the regulation because such act specifically
suspended the ABAWD time limit statute and regulations. In addition,
section 6(o)(4) of the FNA and 7 CFR 273.24(f) already allow the
Secretary to waive the ABAWD time limit upon request from a State
agency, if certain conditions are met, therefore such provision does
not need to be adopted by this final rule. More broadly, the Department
does not believe it is good policy, or consistent with FFCRA, to
provide good cause for the ABAWD work requirement when an appropriate
E&T slot is unavailable. As noted by the commenting State agency,
Congress only temporarily suspended the ABAWD time limit for those not
offered slots in work program beyond SNAP E&T. As stated in the
proposed rule, there are many ways to fulfill the ABAWD work
requirement other than through SNAP E&T. The lack of appropriate or
available opening in a SNAP E&T program would not prevent an ABAWD from
fulfilling the ABAWD work requirement in another way.
Another State agency commented that this new form of good cause for
a lack of appropriate or available opening, does not have any
applicability in a voluntary E&T State and, in a voluntary State,
ABAWDs who were unable to find an appropriate and available E&T opening
would still lose eligibility if they exceeded their three-month time
limit. The Department agrees that, in voluntary States, ABAWDs who
exceed their three countable months because they are unable to find an
opening in an E&T program, another work program or workfare, or work
enough hours to meet the work requirement would lose eligibility
regardless of the good cause provision. This same State agency
misinterpreted the Department's explanation in the proposed rule
preamble suggesting that State agencies should, as appropriate, exempt
individuals from mandatory E&T if there is not an appropriate and
available opening. The State agency thought the Department was saying
State agencies should use ABAWD discretionary exemptions under section
6(o)(6) of the FNA and 7 CFR 273.24(g) to exempt individuals from E&T.
The Department is clarifying that the reference in the proposed rule
preamble to exempting individuals from mandatory E&T referred to
exemptions under 7 CFR 273.7(c)(2).
An anonymous commenter explained that, if an ABAWD received good
cause for non-compliance with E&T because there was not an appropriate
or available opening, the Department should not assume that the ABAWD
will be able to find other opportunities to meet the ABAWD work
requirement. This commenter noted that ABAWDs face many barriers to
employment and E&T services may be necessary to prepare the ABAWD for
work. However, as the Department has previously noted, there are many
ways to fulfill the ABAWD work requirement, including other work
programs that can prepare ABAWDs for work. The lack of an appropriate
or available opening in a SNAP E&T program would not prevent
[[Page 381]]
the ABAWD from fulfilling the ABAWD work requirement in another way.
A not-for-profit agency also suggested that ABAWDs who receive good
cause from participating in mandatory E&T, because there is no
appropriate and available opening, will be confused when they also do
not receive good cause from the ABAWD work requirement and may, as a
result, lose eligibility because they do not understand they are still
subject to the ABAWD time limit. The commenter suggested that the
Department require State agencies to send a notice to ABAWDs in this
situation explaining all relevant information about the application of
good cause and what they must do to maintain eligibility. The
Department agrees this application of good cause could be confusing to
ABAWDs and, for this reason, is requiring State agencies to include a
clear, thorough description of good cause in the consolidated written
notice and oral explanation of all applicable work requirements for
individuals in the household during the application process and at
recertification, in accordance with 7 CFR 273.7(c)(1).
The Department also proposed two changes to good cause regulations
pertaining to the ABAWD work requirement in paragraph 7 CFR
273.24(b)(2). First, if an individual is determined to have good cause
for failure or refusal to comply with mandatory E&T under 7 CFR
273.7(i), the Department proposed the State agency be required to
provide good cause for failure to meet the ABAWD work requirement,
without having to make a separate good cause determination (an
exception to this proposed policy, as discussed, is that good cause for
failure to comply with mandatory E&T under the proposed 7 CFR
273.7(i)(4) for lack of an appropriate or available E&T opening would
not provide good cause for failure to comply with the ABAWD work
requirement). The Department proposed this change to codify long-
standing practice (see Supplemental Nutrition Assistance Program--ABAWD
Time Limit Policy and Program Access published on November 19, 2015 \3\
and Policy Clarifications for Administering the Supplemental Nutrition
Assistance Program (SNAP) Employment and Training (E&T) Programs
published on January 19, 2017) \4\ that, good cause under 7 CFR
273.7(i) for failure to comply with mandatory E&T (7 CFR 273.7(a)(ii))
or State-assigned workfare (7 CFR 273.7(a)(iii)) also provides good
cause under 7 CFR 273.24(b)(2) for purposes of the ABAWD work
requirement. However, while this longstanding policy provided good
cause for ABAWDs who were referred to a mandatory E&T program or State-
assigned workfare to meet their ABAWD work requirement, it did not
provide good cause for ABAWDs participating in other work programs or
other types of workfare programs. So, the Department proposed a second
change that, if an ABAWD is participating in work, a work program, or
workfare, and would have fulfilled the ABAWD work requirement in 7 CFR
273.24, but missed some hours for good cause, the individual would be
considered to have fulfilled the ABAWD work requirement if the absence
from work, the work program, or workfare is temporary and the
individual retains his or her job, training or workfare slot. The
Department proposed this change so that State agencies can apply fair
and consistent treatment to ABAWDs who have good cause, regardless of
how the ABAWD chooses to meet the ABAWD work requirement.
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\3\ https://fns-prod.azureedge.net/sites/default/files/resource-files/ABAWD-Time-Limit-Policy-and-Program-Access-Memo-Nov2015.pdf.
\4\ https://fns-prod.azureedge.net/sites/default/files/resource-files/Policy%20Clarifications%20for%20Mandatory%20E%26T-508.pdf.
---------------------------------------------------------------------------
The Department received 18 comments on this provision, all of which
were supportive. Two commenters did recommend the Department make an
additional change to the regulatory text at 7 CFR 273.24(b)(2) to
strike the language, ``and the individual retains his or her job,
training or workfare slot,'' reasoning that some employers and trainers
will not be able to retain the SNAP participant even if he or she has a
good cause circumstance. The commenters proposed that good cause be
allowed in cases where the absence is temporary, whether or not the
individual retains his or her job, training or workfare slot. For
example, a worker who has COVID-19 might lose his or her job due to an
extended absence, but be available for work upon recuperation. The
Department agrees that there may be conditions outside of an ABAWD's
control that cause both a temporary absence from work, a work program,
or workfare, and also cause an ABAWD to lose his or her job, training,
or workfare slot. The COVID-19 public health absence is an example of
such situation. As a result, the Department has modified the language
at 7 CFR 273.24(b)(2) to strike the language ``and the individual
retains his or her job, training or workfare slot.''
In the proposed rule, the Department also noted a discrepancy in
the process for establishing good cause and issuing a notice of adverse
action between current paragraphs 7 CFR 273.7(c)(3) and 7 CFR
273.7(f)(1)(i). The Department proposed revising the language in 7 CFR
273.7(c)(3) to clarify that, before a State agency issues a notice of
adverse action to an individual or a household, as appropriate, for
non-compliance with SNAP work requirements, the State agency must
determine that the non-compliance was without good cause. The
Department received three comments on this provision, all of which were
supportive. Several commenters recommended that the Department also
make a change to 7 CFR 273.24(b)(2) to explicitly require the State
agency establish whether good cause exists for non-compliance with the
ABAWD work requirement before sending a notice of adverse action. The
Department agrees that, as a best practice, the State agency should
establish whether an ABAWD had good cause before issuing a notice of
adverse action in accordance with section 7 CFR 273.24(b)(2). However,
the Department is declining to make a regulatory change at this time,
but may consider this change in future rule-making.
In the proposed rule, the Department also stated the expectation
that the new authority allowing E&T providers to determine if an
individual is ill-suited for their E&T component (i.e., an E&T provider
determination), and the new requirement that all E&T participants
receive case management, do not absolve the State agency from doing a
thorough initial screening to ensure it is appropriate to require an
individual to participate in an E&T program. Existing statutory and
regulatory language clearly indicate that the State agency has primary
responsibility for the design and operation of their E&T program, which
may include agreements with one or more E&T providers who may provide
case management, E&T components, or other activities as outlined in the
E&T State plan. While State agencies may choose the method of delivery
that best meets their operational needs, the Department emphasized in
the proposed rule that each State agency retains responsibility for its
E&T program. This includes properly screening individuals for
exemptions from the requirement to participate in E&T, and following up
on information from E&T providers and case managers that may affect
exemptions or good cause determinations after the State agency makes
the determination to require participation. The Department proposed in
paragraph 7 CFR 273.7(e)(1), as re-designated, that the E&T case
manager
[[Page 382]]
must inform appropriate State agency staff of a possible exemption and
if there is not an appropriate or available E&T opening for the
participant. If the State agency determines the participant does in
fact meet an exemption or have good cause, the State agency must then
exempt or provide good cause to the individual, if appropriate.
The Department received several comments on the requirement that
case managers share possible exemption and good cause information with
the State agency. The commenters were supportive and felt the
requirement will better target E&T programs to those most likely to
benefit; however, commenters felt the proposed requirement did not
protect the participant if the State agency fails to act upon the
information. Some commenters also recommended the Department clarify
that the case manager should assist the participant in reporting all
potential good cause for non-compliance, not just good cause when there
is a lack of an appropriate or available opening in E&T. The Department
agrees that case managers may assist participants in following-up with
State agency staff on the status of an exemption or good cause
determination, but ultimately only State agency eligibility staff,
having the authority to determine an exemption or good cause, can make
that determination. The Department also agrees that case managers must
provide to the State agency information on all potential good cause
circumstances for non-compliance with a work requirement, beyond just
circumstances relating to a lack of an appropriate or available opening
in E&T, and has added this to the final regulatory text.
As a result, the Department codifies the final regulation as
proposed with the modification that case managers must share with the
State agency all potential instances of good cause.
Improving Accountability in State Agency Quarterly Reports
Current regulations at 7 CFR 273.7(c)(9), 7 CFR 273.7(c)(10), and 7
CFR 273.7(c)(11) require State agencies to submit quarterly E&T Program
Activity Reports. 7 CFR 273.7(c)(11) specifies that the fourth quarter
report provide a list of all the E&T components offered during the
fiscal year, as well as the number of ABAWDs and non-ABAWDs who began
participation in each component. The report must also provide the
number of ABAWDs and non-ABAWDs who participated in the E&T program
during the fiscal year. The Department is committed to ensuring that
State agencies are providing mandatory E&T participants with real
opportunities to gain skills and appropriate services that help them be
successful. Therefore, the Department proposed adding additional
reporting elements to this fourth quarter report focused on mandatory
E&T participants: The unduplicated number of SNAP applicants and
participants required to participate in an E&T program during the
fiscal year and, of those, the number who actually begin to participate
in an E&T program. An E&T participant begins to participate in an E&T
program when the participant commences at least one part of an E&T
program, including an orientation, assessment, case management, or a
component. The Department proposed to codify this new requirement by
inserting a new paragraph at 7 CFR 273.7(c)(11)(iii).
The Department received 21 comments on this provision. Commenters
were very supportive, explaining their belief that the new data
elements will generate useful information on the take-up rate of E&T
and the number of individuals who actually begin participation.
Commenters expressed their concern that high non-participation rates in
E&T likely indicate increased hardship among those terminated from SNAP
and poorly designed or implemented programs that do not engage
mandatory E&T participants.
While all commenters supported including the first proposed data
element, the ``number of SNAP participants required to participate in
E&T by the State agency,'' the Department received several comments
suggesting the Department replace the second proposed data element,
``of those, the number who begin participation in an E&T program'',
with ``of those, the number who are successfully placed into a
qualifying component.'' These commenters stated that activities such as
orientation and assessment are considered participation and may take
place at the State agency prior to component placement, yet generally
do not allow participants to meet the minimum hours of mandatory
programs. Moreover, commenters explained the language of placement
rather than participation narrowly focuses the accountability for
placement into a qualifying component on the State agency, whether or
not the participant actually appears at the placement site. Other
commenters also provided a different variation to the modification
described above, requesting to replace ``and of those the number who
begin participation in an E&T program'' with ``of those the number who
were actually enrolled in an E&T component or case management.'' These
commenters, like those above, felt it was important to capture if
participants were engaging with the main elements of an E&T program,
rather than just attending an assessment or orientation, but did not
have the same concerns with the verbs participate versus placed, and
considered case management and component participation equally
important to capture.
Two commenters recommended State agencies report both the number of
individuals who, as proposed, begin to participate in an E&T program,
as well as the number who begin participating in an E&T component.
These commenters believed adding the third data element specific to
participation in an E&T component would capture issues related to the
``hand off''--from the State agency to a specific training activity
(i.e., the E&T component). The commenters stated this has been a
challenge for many E&T programs, and obtaining useful information about
participation in a component could provide important insights for State
agencies and policymakers interested in improving SNAP E&T. Further,
these commenters suggested the addition of this third data element
would not be a burden to E&T providers or the State agency, as current
regulations at 7 CFR 273.7(c)(11) already require the reporting of
participation in individual components as well as in an E&T program.
One commenter suggested a much longer list of data elements to be
added to the fourth quarter report, including the number of SNAP
participants who are mandated to report for an E&T assessment, the
number of mandatory participants who receive an E&T assessment, the
number of mandatory participants who participate in an E&T activity,
the number who are sanctioned for non-compliance, and the number of
those mandated to participate who are later found to be exempt. The
commenter also suggested the Department require State agencies to
report on the employment rates in the second quarter and the fourth
quarter after SNAP recipients are required to participate in E&T.
Lastly, a not-for-profit agency suggested the Department also collect
both the sanction rate and the employment rate for the full universe of
those assigned to mandatory E&T in order to present a complete account
of the impact of mandatory programs on SNAP participants.
The Department agrees that the proposed requirement to collect data
on the number of participants required to participate in E&T and the
number who begin to participate in the E&T program
[[Page 383]]
would not allow for analysis of how many mandatory E&T participants
actually begin to participate in a component. For instance, a mandatory
E&T participant may attend an orientation the same day they visit the
SNAP office for their certification interview but, because of State
agency mis-communication, not understand when or where to begin their
E&T component, and eventually be sanctioned for failure to comply with
the requirement to participate in E&T. With the proposed regulatory
language, these individuals would be counted as having begun to
participate in the E&T program, but would actually receive very little
benefit from E&T. As a result, the Department has added a third data
element at 7 CFR 273.7(c)(11)(iii) to also collect the number of
individuals who begin participation in an E&T component. The Department
believes it is important to gather information on the number who
``participate'' in a component, rather than just the number ``placed''
in a component, because the Department believes that the ``hand-off''
between the State agency and the E&T provider of the component is a
challenging transition, and many E&T participants should be better
supported by the State agency to cross the bridge and show up for the
component. Individuals can be placed in an E&T component but, due to no
fault of their own, never make it to the component to begin training.
For example, a State agency may not inform an individual that they may
receive transportation assistance to their appointment, and as a
result, the individual does not show up to their appointment due to
lack of transportation. Further, while the Department believes that
case management is an important service, the Department would like to
capture the number of individuals who begin participation in a
component as a standalone measure. The Department believes the
components are where the training and skill development occurs. The
Department counts an E&T participant as beginning to participate in an
E&T component when the participant commences the first activity in the
E&T component. The Department also appreciates the comment that State
agencies should be required to provide data on the number of mandatory
E&T participants who are determined ineligible for failure to comply
with the requirement to participate in E&T. The Department believes
this is an important complementary piece of information to the number
of individuals who begin to participate in E&T and the number who begin
to participate in a component. The Department, as stated above,
believes it is important that State agencies support all mandatory E&T
participants to fulfill their requirement. Data on the number of
participants determined ineligible will provide both State agencies and
the Department with important information to improve E&T programs. The
Department believes that the addition of these new data elements
adequately addresses the need to support improved oversight of State
mandatory E&T programs, but will continue to monitor data received from
State reports and make revisions as necessary.
In conclusion, the Department has added a third and fourth data
element to 7 CFR 273.7(c)(11)(iii) to capture the number of mandatory
E&T participants who begin to participate in an E&T component and the
number of E&T participants who are determined ineligible for failure to
participate in E&T.
Workforce Partnerships
The Act established workforce partnerships. Workforce partnerships
are not an E&T component, but they are partnerships between the State
agency and other entities that create a new way for SNAP participants
to gain high-quality, work-related skills, training, work, or
experience that will increase the ability of the participants to obtain
regular employment. The Act added workforce partnerships to the list of
work programs through which an ABAWD may fulfill the ABAWD work
requirement, and workforce partnerships may be a way for mandatory E&T
participants to meet their E&T requirement. The Act added workforce
partnerships to several sections of the FNA, including sections
6(d)(4)(B)(ii), 6(d)(4)(E), 6(d)(4)(H), and new paragraph 6(d)(4)(N).
The Department proposed adding the description and requirements for
workforce partnerships to new paragraph 7 CFR 273.7(n). In addition,
the Department proposed including two additional State agency
responsibilities associated with workforce partnerships. First, the
Department proposed to require State agencies to re-screen any
individual for the requirement to participate in mandatory E&T when the
State agency learns the individual is no longer participating in a
workforce partnership. Second, the Department proposed to require State
agencies to provide sufficient information to household members subject
to the general work requirements of 7 CFR 273.7 and ABAWD work
requirements of 7 CFR 273.24 about workforce partnerships, so that
individuals could make an informed decision about participation.
The Department received 12 comments on this provision. While no
comments opposed the addition of workforce partnerships as a way for
SNAP participants to meet their work requirement and gain new skills,
some commenters appear to have misunderstood the general structure and
purpose of workforce partnerships. Commenters also shared some concerns
about the Department's requirement to inform SNAP participants about
the availability of workforce partnerships.
The Department received several questions about how workforce
partnerships would be structured and the interaction between workforce
partnerships and E&T programs. Each of these questions is answered in
more detail below, but the Department would like to emphasize that key
to understanding workforce partnerships is that they are a new concept
introduced by the Act in 2018. Workforce partnerships, as described in
7 CFR 273.7(n), as amended by this final rule, are not industry or
sector partnerships as defined under WIOA. Workforce partnerships are
also not part of the E&T program. Workforce partnerships, as described
in 7 CFR 273.7(n), are a particular opportunity available to State
agencies to provide SNAP recipients one additional way to meet their
work requirement (i.e., mandatory E&T or the ABAWD work requirement)
while gaining skills. The Act provided specific instructions regarding
what may constitute a workforce partnership, and how they are to be
managed by the State agency. While State agencies are encouraged to
pursue workforce partnerships with interested employers or eligible
WIOA training services providers, there is no requirement that they do
so. In addition, if a State agency chooses not to pursue workforce
partnerships, as described in 7 CFR 273.7(n), the State agency is still
encouraged to partner with employers and training providers to identify
and build new opportunities for skills training for SNAP participants
through the E&T program.
A State agency expressed concerns that E&T funding cannot be used
for workforce partnerships. The commenter suggested this may make it
difficult to motivate organizations to participate in creating
workforce partnerships that provide 80 hours per month of work and
training. The Department understands the commenter's concern, but the
Act explicitly prohibits any FNA funding from being used for workforce
partnerships. See section 6(d)(4)(B)(ii)(I)(bb)(CC) of the FNA.
[[Page 384]]
Another State agency explained that many E&T providers already
create internships and work experiences with private employers. The
commenter asked if the requirement to provide work registrants with
information about workforce partnerships also requires State agencies
to furnish an exhaustive list of all possibilities, including
opportunities through E&T, to the participant. The State agency was
concerned that such a list could prove unwieldy and create a burden,
having to constantly update the evolving available work sites and
participating employers. As discussed above, the Department emphasizes
that workforce partnerships described in 7 CFR 273.7(n) are completely
separate concept from the E&T work experience component at 7 CFR
273.7(e)(2)(iv). In addition, if a State agency is offering an E&T work
experience component, the activities provided under the component would
be prohibited from inclusion in a workforce partnership, as workforce
partnerships may not use funds authorized by the FNA and all E&T
components are supported by FNA funding. If a State agency has
certified one or more workforce partnerships, only the activities
associated with those workforce partnerships must be provided to
individuals targeted for participation in a workforce partnership, in
accordance with 7 CFR 273.7(n)(10).
The State agency also asked if State agencies would be able to use
private employers for workfare, if workforce partnerships could include
work experience, and if so, if the work experience could more closely
mirror TANF work experience. The State agency recommended that the
relationship with workforce partners mirror the relationship with
partners engaged in TANF work experience to create a more flexible
system. As discussed above, workforce partnerships at 7 CFR 273.7(n)
are a separate concept from E&T components at 7 CFR 273.7(e)(2),
workfare at 7 CFR 273.7(m), or any other activity described in current
regulations which provide work experience or training for SNAP
participants. The introduction of workforce partnerships does not
change how workfare or any of the E&T components are regulated or
operated. As stated in 7 CFR 273.7(n)(4)(i), workforce partnerships
must ``assist SNAP households in gaining high-quality, work-relevant
skills, training, work, or experience that will increase the ability of
the participants to obtain regular employment.'' Thus, within the
bounds of the workforce partnership requirements at 7 CFR 273.7(n),
State agencies will have flexibility in identifying work, training, or
experience that increases the employability of SNAP participants.
The same State agency asked what the requirements will be for
certification of workforce partnerships, and if the requirements would
be flexible and designable by the State. The Act established specific
requirements for certification of a workforce partnerships and the
Department included these requirements at 7 CFR 273.7(n)(4). The
Department encourages any State agency interested in certifying a
workforce partnership to reach out to the Department for technical
assistance on specific questions regarding the certification
requirements.
Two commenters asked if participation with workforce partnerships
is ``all or nothing'' for participants looking to fulfill the ABAWD
work requirement. That is, because ABAWDs can fulfill their work
requirement through a combination of work, volunteer hours, and
training, can workforce partnerships be offered for fewer than 20 hours
per week so that ABAWDs can meet the balance of their work requirement
in another way? The commenters felt the proposed requirement to certify
that workforce partnerships offer at least 20 hours per week of
training, work, or experience may limit the number of workforce
partnerships available to participants. The Department understands that
ABAWDs may look to fulfill their work requirement through several types
of activities, but the Act requires that, to be certified, workforce
partnerships must provide not less than 20 hours a week of training,
work, or experience. See sections 6(d)(4)(N)(i)(I) and
6(d)(4)(B)(ii)(I)(bb)(BB) of the FNA. This requirement is reflected at
7 CFR 273.7(n)(4). The Department would also like to emphasize that
participation in a workforce partnership must be voluntary; ABAWDs
cannot be required to participate in a workforce partnership.
Another State agency explained how they interpreted the proposed
workforce partnership regulation to mean State agencies would need to
create ``Workforce Partnerships'' similar to those in WIOA. The State
agency asked how the proposed workforce partnerships would be
distinguished from the current WIOA partnerships. The State agency also
explained their interest in examples of partnerships that operate
outside of the WIOA regulations. As discussed above, workforce
partnerships described at 7 CFR 273.7(n) are a new concept created by
the Act in 2018 and are separate from industry or sector partnerships
defined by WIOA, from the E&T program, workfare, and other activities
currently described in regulations. Workforce partnerships, as
described at 7 CFR 273.7(n), must meet very specific criteria,
including a set of certification requirements, and are one additional
way for SNAP participants to meet their SNAP work requirements and gain
skills. The Department is not aware of any existing workforce
partnerships that meet the criteria in 7 CFR 273.7(n).
The Department also received two comments regarding the burden of
providing a list of workforce partnerships to all SNAP work registrants
at certification and recertification, as required in proposed 7 CFR
273.7(n)(10). A local government agency felt this requirement, as
proposed, was onerous, unnecessary, and potentially confusing to work
registrant households who may not be a good match for a slot in a
workforce partnership, but who would be required to receive information
about them anyway. The local government agency explained they would be
in a better place to determine if a work registrant was a good match
for a workforce partnership and, therefore, State agencies should be
given the flexibility to target information about workforce
partnerships to those most likely to benefit. A State agency and a
professional association did not oppose providing the list, but felt it
would take at least a year to develop and make the system changes to
distribute it, particularly given the backlog of system changes
resulting from the COVID-19 public health emergency. The Department's
intent in requiring the State agency to provide the list of workforce
partnerships at certification and recertification was to ensure that
SNAP households were made aware of their existence. Since SNAP
households cannot be required to participate in a workforce
partnership, but a workforce partnership can be a way for a SNAP
participant to meet their work requirements, the Department wanted to
make sure work registrants who could benefit from participation,
received the appropriate information. In response to comments, the
Department has concluded that State agencies need not provide a list of
workforce partnerships at certification and recertification to all work
registrants, as this would be overly burdensome and potentially
confusing to some SNAP participants. However, the State agency must
inform any SNAP participant determined as likely to benefit from
participation in a
[[Page 385]]
workforce partnership of the availability of the workforce partnership,
and provide the participant with all available pertinent information
regarding the workforce partnership to enable the participant to make
an informed choice about participation. State agencies are also
encouraged to include workforce partnerships in the list of employment
and training opportunities provided to households with no reported
earned income at 7 CFR 273.14(b)(5).
In conclusion, the Department codifies the regulations pertaining
to workforce partnerships as proposed, with one modification at 7 CFR
273.7(n)(10) to require the State agency to target information about
workforce partnerships to SNAP participants most likely to benefit from
participation in workforce partnerships.
Minimum Allocation of 100 Percent Funds
Current regulations at 7 CFR 273.7(d)(1)(i)(C) provide that no
State agency will receive less than $50,000 in Federal E&T grant funds
and set forth the methodology to ensure an equitable allocation among
the State agencies. The Act increased this baseline of Federal E&T
funds for each State to $100,000 in section 16(h)(1)(D) of the FNA. The
Department proposed to modify 7 CFR 273.7(d)(1)(i)(C) to reflect the
change in the baseline, and received one comment on this provision,
which was supportive. The Department is therefore finalizing the
regulatory language as proposed.
Prioritized Reallocation of Employment and Training Federal Grant Funds
Current regulations at 7 CFR 273.7(d)(1)(i)(D) provide the process
for the Department to reallocate unobligated or unexpended Federal E&T
funds to other State agencies requesting additional E&T funds. The Act
introduced priorities for the reallocation of these funds in section
16(h)(1)(C)(iv) of the FNA. Those priorities are: At least 50 percent
shall be reallocated to requesting State agencies that were awarded
grants to operate E&T pilots under the Agricultural Act of 2014 (Pub.
L. 113-79) (also known as the 2014 Farm Bill), to conduct those E&T
programs and activities from the pilots that the Secretary determines
have the most demonstrable impact on the ability of participants to
find and retain employment that leads to increased household income and
reduced reliance on public assistance; at least 30 percent must be
available to State agencies requesting funds for E&T programs and
activities authorized under section 6(d)(4)(B)(i) of the FNA that are
targeted to individuals with high barriers to employment and that the
Secretary determines have the most demonstrable impact on the ability
of participants to find and retain employment that leads to increased
household income and reduced reliance on public assistance; and the
remaining funds to other State agencies requesting additional funds for
E&T programs and activities that the Secretary determines have the most
demonstrable impact on the ability of participants to find and retain
employment that leads to increased household income and reduced
reliance on public assistance. The Department proposed to add new
paragraph 7 CFR 273.7(d)(1)(iii) to specify these priorities for the
reallocation of funds. Additionally, the Department proposed to add new
paragraph 7 CFR 273.7(c)(6)(xix) to specify that State agencies
requesting additional funds would need to submit those requests when
their E&T State Plan is submitted for the upcoming Federal fiscal year.
Lastly, the Department proposed to reallocate any unobligated funds
remaining after the prioritized reallocation process described above at
the proposed new 7 CFR 273.7(d)(1)(iii)(E) to State agencies requesting
additional funds for E&T programs and activities that the Secretary
determines have the most demonstrable impact.
The Department received five comments on this provision, all of
which were supportive of the proposed rule; however, commenters did
provide some additional suggestions as detailed below.
With regard to the 30 percent reallocation focused on individuals
with substantial barriers to employment, three commenters suggested
that, when the State agency requests funds, the State agency estimate
the percentage of E&T participants that the State agency expects to
serve for each of the listed categories of highly-barriered
individuals. Another commenter suggested it may be advantageous for
reallocated funds to serve a specific target population of jobseekers
(e.g., individuals experiencing homelessness) who are
disproportionately under-represented among existing E&T participants in
the State seeking additional E&T funds. The Department agrees that
focusing reallocated funds on individuals with high barriers to
employment is an opportunity to target E&T funds to individuals most
likely to need extra support, which is the objective of the 30 percent
reallocation. However, the Department does not believe additional
qualifying criteria (like the percentage of E&T participants that the
State agency expects to serve falling into each of the listed
categories) are necessary to achieve this objective. The Department
believes creating additional criteria to determine how funds are
distributed would actually hamper the Department's ability to balance
all concerns and re-distribute funds in the most efficient and
impactful manner.
Two commenters recommended that the Department require State
agencies include in their request for reallocated funds under 7 CFR
273.7(d)(1)(iii)(F) whether the State agency plans to initiate or
maintain new services, enhanced services, or new slots with the
reallocated E&T funding. The Department does not believe the required
inclusion of this information in the State agency's request would
significantly alter how reallocated funds are distributed, as a result
the Department does not believe a change is necessary.
In conclusion, the Department codifies the regulatory text as
proposed without any changes.
Advisement of Employment and Training Opportunities
The Act added a requirement at section 11(w) of the FNA that, at
the time of recertification, State agencies advise SNAP household
members subject to the requirements of section 6(d) of the FNA (the
general work requirements) of available employment and training
opportunities, if these individuals are members of households
containing at least one adult, with no elderly or disabled individuals,
and with no earned income at their last certification or required
report. The Department proposed to codify this requirement in proposed
paragraph at 7 CFR 273.14(b)(5). As a minimum standard for meeting this
requirement, the Department proposed that State agencies provide the
household, in either electronic (e.g., on a website or in an email) or
in printed form, a list of available employment and training services
for household members subject to the general work requirements. The
Department clarified that employment and training services are not
limited to SNAP E&T. Rather, State agencies should also provide
information about the availability of opportunities through the
American Job Centers or local community-based organizations. This is
particularly important in areas that do not operate SNAP E&T programs.
The Department encouraged State agencies to consult with their
Departments of Labor when developing information about available
employment and
[[Page 386]]
training services. In meeting this requirement, State agencies should
consider how to best target lists of employment and training
opportunities to increase access of work opportunities for SNAP
participants, including creating tailored lists for certain regions or
municipalities, or for SNAP participants with particular career
interests or barriers to employment.
The Department received five comments on this provision, all of
which were generally supportive. The commenters suggested the list of
employment and training opportunities be provided in paper whenever
possible because some SNAP participants may not have access to reliable
internet, and to make sure the list is updated at least annually. The
Department agrees that some SNAP participants may not have reliable
access to the internet and believes State agencies are in the best
position to know how to ensure participants can access the information,
either electronically or in paper form. The Department also believes
that the list of training opportunities should be updated as often as
is necessary to maintain a reasonable level of accuracy in the
information provided, and believes State agencies are in the best
position to determine this frequency. The commenters also recommended
that the list of training providers be paired with labor market
information to help SNAP participants identify the ``fastest growing or
largest sectors for entry-level jobs and living wage jobs that can be
accessed with limited training, and the career pathways associated with
them.'' While the Department believes this information may be helpful
to SNAP participants and would encourage interested State agencies to
provide this additional information, the Department does not believe
that requiring the inclusion of labor market information is necessary
to meet the statutory obligation and would constitute an additional
burden for State agencies that outweighs the benefits. Commenters also
recommended that the list be made available to underemployed SNAP
participants and E&T participants. The Department notes that while the
list of training opportunities must be provided to the specific set of
households with no earned income described in the previous paragraph,
State agencies may provide the list to a broader group of SNAP
households at their discretion.
In conclusion, the Department finalizes the regulatory text as
proposed without any changes.
Work Programs for Fulfilling the ABAWD Work Requirement
Current regulations at 7 CFR 273.24(a)(3) define the types of work
programs in which ABAWDs may participate to meet the ABAWD work
requirement and thereby remain eligible beyond the 3 months in 36-month
time limit. The Act added the following types of programs to that
definition in section 6(o)(1) of the FNA: An employment and training
program for veterans operated by the Department of Labor or the
Department of Veterans Affairs, as approved by the Secretary; and
workforce partnerships. The Department proposed to add these programs
to the existing paragraph at 7 CFR 273.24(a)(3). As noted earlier, the
Act also changed section 6(o)(1)(C) of the FNA by replacing the term
``job search program'' with ``supervised job search program.'' For the
purposes of ABAWD work requirements, the Department proposed to
implement this terminology change by revising 7 CFR 273.24(a)(3)(iii).
The Department received four comments on this provision, all of
which were generally supportive. Commenters supported the Department's
clarification that job search does not need to be supervised when
integrated as a subsidiary activity into one or more other components,
so long as it makes up less than half the time in the component, as
provided in The Joint Explanatory Statement of the Committee of
Conference issued with the Act (Conf. Rept. 115-1072, p. 617).
Commenters also supported the Department's reiteration of current
policy that job search, whether supervised or not supervised, and job
search training activities can count toward the ABAWD work requirement,
so long they are offered as part of other E&T program components and
comprise less than half the total required time spent in the
components. However, commenters did ask for further clarification
regarding how ``total required time spent in the components'' should be
measured for the purposes of ensuring job search, supervised job
search, and job search training make up less than half the total
required time spent in the component (for instance, can the fraction of
time spent in job search be calculated over the average length of the
component). The Department recognizes that different E&T components run
for different lengths of time and comprise different activities at
different points in time. For this reason, the Department has always
provided flexibility to State agencies to determine the most effective
and efficient way to calculate if job search, supervised job search, or
job search training make up less than half the total required time
spent in the component for the purpose of compliance with the ABAWD
work requirement. The Department will continue to provide this
flexibility to State agencies.
In conclusion, the Department finalizes the regulatory text as
proposed without any changes.
Discretionary Exemptions for ABAWDs Subject to the Time Limit
Current regulations at 7 CFR 273.24(g) state that each State agency
shall be allotted exemptions equal to an estimated 15 percent of
``covered individuals,'' as defined at 7 CFR 273.7(g)(ii). States can
use the exemptions available to them to extend SNAP eligibility for a
limited number of ABAWDs subject to the time limit. When one of these
exemptions is provided to an ABAWD, that one ABAWD is able to receive
one additional month of SNAP benefits. The Act changed the number of
exemptions allocated by the Department to State agencies each Federal
fiscal year from 15 percent to 12 percent of the ``covered
individuals'' in the State, and this change took effect in Fiscal Year
2020. The Department proposed replacing the number ``15'' with the
number ``12'' in paragraphs 7 CFR 273.24(g)(1) and 7 CFR 273.24(g)(3),
and also proposed changing the name of these exemptions from ``15
percent exemptions'' to ``discretionary exemptions'' in paragraph 7 CFR
273.24(g).
The Department received six comments on this section. Two
commenters supported the change, three commenters opposed the change,
and one did not express a clear opinion. A not-for-profit agency who
supported the change felt that these exemptions hold back able-bodied
adults who could otherwise rise out of welfare, thus trapping
prospective workers in dependency and taking benefits away from those
more in need. The commenter explained that reducing the number of
exemptions would provide more opportunity for work to more individuals.
The commenter also felt the name change to ``discretionary exemptions''
emphasized that States should use discretion when applying the
exemptions to unusual circumstances when ABAWDs face unique barriers to
work or training not already covered by another exemption. The
commenters who opposed the provision emphasized how important these
exemptions are for low-income individuals struggling with multiple
barriers to work, including domestic violence survivors. However, the
[[Page 387]]
commenters also acknowledged that the Department has no discretion in
implementing the statutory change from 15 to 12 percent. The Department
agrees that there is no discretion in implementing this change.
In conclusion, the Department finalizes the regulatory text as
proposed without any changes.
Informing SNAP Participants About Their Work Requirements
In the proposed rule, the Department noted that many of the changes
made by section 4005 of the Act emphasized State agency responsibility
to assist SNAP participants in finding and retaining employment. The
Department believes that foundational to this increased accountability
for both the State agency and SNAP participants is improved
communication between the State agency and SNAP participants regarding
the nature of any work requirement that the SNAP household may be
subject to, consequences for not complying with work requirements, and
how to find more information. The Department also noted in the proposed
rule that a single individual may be subject to multiple work
requirements, which may be confusing for the household to decipher to
ensure compliance, especially if these requirements are communicated to
the individual at different times via different mediums. In order to
streamline and improve communication between the State agency and the
household, and to improve the household's customer service experience,
the Department proposed to consolidate the State requirement to inform
individuals of their applicable work requirements (i.e., the general
work requirements, including the mandatory E&T requirement, and the
ABAWD work requirement). This consolidated work information requirement
would take two forms: A single written notice and a comprehensive oral
explanation of all the work requirements that would pertain to a
particular household. The consolidated work information requirement
would merge two existing requirements to inform the household about
their work requirements (i.e., the general work requirement and
mandatory E&T) with a new more clearly delineated requirement to inform
ABAWDs regarding their ABAWD work requirement and time limit. The
consolidated work information requirement to inform households of all
applicable work requirements would be added at new 7 CFR 273.7(c)(1), 7
CFR 273.7(c)(2) and 7 CFR 273.24(b)(8). The Department proposed that
the new written notice would need to include all pertinent information
related to each of the applicable work requirements for individuals in
the household, including: An explanation of each applicable work
requirement; exemptions from each applicable work requirement; the
rights and responsibilities of each applicable work requirement for
individuals subject to the work requirements; what is required to
maintain eligibility under each applicable work requirement; pertinent
dates by which an individual must take any actions to remain in
compliance with each of the applicable work requirements; the
consequences for failure to comply with each applicable work
requirement; and any other information the State agency believes would
assist the household members with compliance. If the household were to
contain an individual who is subject to mandatory E&T, the written
notice would also need to explain the individual's right to receive
participant reimbursements for allowable expenses related to
participation in E&T, up to any applicable State cap, and the
responsibility of the State agency to exempt the individual from the
requirement to participate in E&T if the individual's allowable
expenses exceed what the State agency would reimburse, as provided in
paragraph 7 CFR 273.7(d)(4).
The Department received 28 comments on this provision. Seventeen
commenters supported the provision, ten commenters provided conditional
support with suggestions for improvement, and two commenters opposed
the provision. Supporters generally felt that the new consolidated
requirement to provide information about the work requirements to
households will help individuals understand their responsibilities and
expectations, allow participants to share concerns or ask questions,
and increase participant awareness of what they must do to prevent
unexpected termination of SNAP benefits.
Several commenters in support of providing the consolidated work
information to participants proposed adding to the written notice an
explanation of the process for requesting good cause consideration,
examples of good cause circumstances, and contact information to
initiate a good cause request. The Department agrees, and has added an
explanation of good cause to the list of pertinent information in 7 CFR
273.7(c)(2)(iii).
In addition to including good cause information, a legal services
agency and a not-for-profit agency also recommended that the written
and oral information include: The full scope of ways that an individual
can meet the work requirement; the list of exemptions on the notice
itself (so that the State agency does not direct individuals to a
website they may not be able to access); how to claim exemptions; and
the fact that an exemption can be claimed at any time if there is a
change in circumstances. Conversely, the Department also received a
comment from a State agency arguing that including the full list of
exemptions for each work requirement on the written statement would be
unmanageable and confusing to participants. The Department is
interested in balancing the need to provide pertinent information to
participants with the readability of the document. As a result, the
Department has revised the final regulation at 7 CFR 273.7(c)(2)(iii)
to require that the written notice include information on how to claim
an exemption and claim good cause, and provide contact information to
initiate a request. However, the Department notes that it is the
responsibility of the State agency to screen for exemptions from the
general work requirement, mandatory E&T and the ABAWD work requirement,
and not the responsibility of the participant to ``request'' an
exemption. Similarly, it is the State agency's responsibility to
establish good cause for failure to meet the general work requirements
and not the responsibility of the participant to ``request'' good
cause. That being said, participant circumstances can change after
certification and the Department believes it would be helpful to the
participant to know how to inform the State agency of this change in
circumstance, if the participant believes they may qualify for an
exemption or good cause. The Department also understands that providing
the entire list of exemptions, particularly from mandatory E&T, could
be quite extensive and confusing to participants. Nonetheless, the
State agency is required to screen for exemptions during the
application process, and has an opportunity to explain the exemptions
to the client at that time. Providing the full list of exemptions is
also a helpful reference for participants should their circumstances
change. For these reasons, the Department believes it is important to
include the full list of exemptions in the written notice. Lastly, with
regard to the comment to include an explanation of ways the individual
can meet the work requirement, the Department believes the requirement,
as proposed, to include in the written notice ``what is required to
maintain
[[Page 388]]
eligibility under each applicable work requirement,'' already calls for
a description of the ways the individual may meet their work
requirement and believes it unnecessary to make an addition to the
regulatory text. Nevertheless, the Department encourages State agencies
to include examples of how to meet the mandatory E&T and ABAWD work
requirements, as applicable, in the written notice and oral explanation
to aid participant comprehension.
A legal services agency commented that the proposed regulatory text
at 7 CFR 273.7(c)(1) and 7 CFR 273.7(c)(2) was unclear regarding to
whom the oral explanation and written notice should be directed, i.e.,
the head of household or each individual household member with a work
requirement. The commenter asked the Department to clarify that the
oral explanation and written notice must be given specifically to the
individual with the work requirement, not solely to the head of
household, because the individual's compliance impacts the rest of the
household. The commenter explained that, because the work rules are
unique and extremely complex, communicating this important information
only to the head of household and not also directly to the individual
subject to the work requirement, means the message could be muddled or
not communicated at all. The commenter also asked that the State agency
be required to include in the oral explanation that the individual
should review the written notice, as well as where the individual can
go to find resources and learn more information. The Department
understands the interest in providing the written notice and oral
explanation to each individual in a household subject to a work
requirement, to ensure information is shared accurately and
comprehensively with the individual who needs it. However, the
Department believes that such a requirement for the oral explanation
would be impractical given the challenge, in some instances, of
tracking down in a short period of time several individuals per case,
and could potentially slow application processing. The proposal is also
out of sync with other SNAP regulations pertaining to the eligibility
process, like the SNAP interview, that do not require the participation
of more than one individual. The Department also notes that, for the
purposes of work registration, an authorized representative has long
been allowed to register others in the household because work
registration must occur prior to certification (see 7 CFR
273.7(a)(1)(i)). For similar practical reasons, the Department believes
one written notice should be sent to the household, but language should
be included in the written notice that clearly states which individuals
in the household are subject to which work requirement. Information to
this effect has been added to the final regulatory text. The Department
has also modified the text in 7 CFR 273.7(c)(1)(ii) through (iii) to
more clearly indicate that the household is the recipient of the oral
explanation and written notice.
A workforce training agency recommended adding a requirement that
the State agency must follow up by phone and mail to notify ABAWDs and
mandatory E&T participants in advance of dates by which an individual
must take action. The commenter explained that mandatory participants
often do not understand that they must report to a location to
establish a plan for E&T, and miss important information because they
did not receive a piece of mail or understand the consequence of
missing that date. Similarly, the commenter believed ABAWDs should have
specific follow-up by case managers if they are approaching their third
month of eligibility and need to prove compliance with the work
requirement. The Department agrees that ABAWDs and mandatory E&T
participants may often miss important information detailing the
necessary steps to maintain eligibility. For this reason, with this
final rule-making, the Department has added the requirement at 7 CFR
273.7(c)(1)(ii) and 273.24(b)(8) that, during the application process,
at recertification, and whenever an individual loses an exemption or
there is a new household member, the State agency must provide each
household with a written notice and oral explanation regarding the
applicable work requirement for individuals in the household. The
Department also believes the new requirement that each E&T participant
receive case management services will help participants better navigate
their work requirements and support participants who are struggling to
meet important milestones. As a result, the Department does not believe
that an additional State notification requirement is necessary.
Two non-profit agencies suggested the written notice must be:
Provided in a timely manner; written at a widely-accessible reading
level; translated as needed; and be accessible to people with
disabilities. One commenter asked the Department to consider providing
participants with an explanatory video about the information contained
in the statement. The commenter also stated that the oral explanation
be provided in the SNAP participant's spoken language of choice, or via
sign language, as needed. Several commenters urged the Department to
develop and share with State agencies model notices that have been
user-tested for both plain language and clear information about the
steps that participants must take in order to retain their benefits. A
professional association asked the Department to clarify that the
written notice can be delivered in electronic form without a waiver,
consistent with USDA memorandum issued on November 3, 2017,
``Electronic Notice Waivers and Options.'' \5\ The commenter suggested
the allowance of electronic notices is beneficial to clients who prefer
accessing information through electronic devices and may allow for
greater access to information.
---------------------------------------------------------------------------
\5\ https://fns-prod.azureedge.net/sites/default/files/snap/Memo-Electronic-Notice-and-Other-Options-11317.pdf.
---------------------------------------------------------------------------
The Department agrees that, to be helpful to SNAP participants, the
oral explanation and written notice must be provided in a timely
manner, be clearly written or spoken, and be provided in the
appropriate language. Existing SNAP regulations at 7 CFR 272.4(b) lay
out procedures to ensure State agencies provide program information in
languages that reflect those spoken in the surrounding community. State
agencies, in accordance with existing laws, must also provide
reasonable accommodations to individuals with disabilities, and
regulations at 7 CFR 272.6 lay out procedures for participants to file
a discrimination complaint. The Department will consider how to
effectively provide technical assistance to State agencies as they
develop the written notice and scripts for the oral explanation to help
ensure they are clear, comprehensible, and in compliance with existing
regulations. The Department will also consider how to support making
use of new innovative platforms, like videos, to supplement the
requirements in the regulation. State agencies may choose to provide
the written notice as an electronic notice if they do so in accordance
with the FNS memorandum, ``Electronic Notice Waivers and Options''
issued on November 3, 2017, and other applicable policy guidance and
regulations. In particular, the State agency must notify its Regional
Office upon adopting e-notices and provide a list of the notices that
will be offered electronically. The State agency must also include this
information in its SNAP State Plan. As a result, no changes to the
regulatory text are required.
[[Page 389]]
One State government and one local government agency opposed the
requirement to provide a written notice and oral explanation of the
work requirements because of the increased administrative burden. In
addition, one professional organization, while supportive, also
cautioned about the increased burden to State agencies. The local
government agency and a professional organization noted that,
particularly during the COVID-19 public health emergency, any
additional administrative and fiscal requirements imposed on the State
agency would be particularly burdensome since they are already
experiencing increased applications and special operational demands
imposed by the public health emergency. The professional organization
requested that the Department consider a reasonable timeline for
implementation of the new requirement. A State agency explained that
adding the level of detail the Department is proposing would be more
confusing to participants and most likely would result in an increased
administrative burden for State agencies as they help clients
understand the written statement, leading to further delays in
individuals beginning to participate in E&T. The State agency further
explained their existing process is less burdensome and provides
targeted information to participants at different points in the process
based on the needs at that time, for instance, at application and
interview, and again when the participant makes contact with the E&T
provider. The State agency recommended that this process continue to be
allowable. The State agency also allowed that participants don't always
read their notices and miss important information.
The Department agrees that information about the work requirements
can be overwhelming to participants, particularly when multiple
individuals in the household may be subject to different requirements.
For this reason, the Department believes it is important to have a
comprehensive and consolidated written notice of this information
during the application process and at recertification, so that
participants are clear on the expectations from the start. For
instance, information on reimbursements for E&T participants should be
provided during certification, and not withheld until the participant
makes their first contact with an E&T provider or attends an E&T
orientation. During certification, the participant should also be
informed that the State agency must exempt the individual if the costs
to participate exceed the allowable amount of participant
reimbursements. Otherwise, without that explanation, a participant
could be inappropriately sanctioned for missing their first E&T
appointment because they lacked transportation or child care, not
realizing they could have received those services as participant
reimbursements to support their participation in E&T. The Department
also agrees that developing the new written notice and script for the
oral explanation will take time and effort, but as explained by a
different State agency, the additional time to develop the written
notice and provide the oral explanation is time well-invested by
reducing the likelihood of a participant misunderstanding or
disregarding the work requirements, and reducing the possibility of
participants losing benefits due to noncompliance. Additionally, the
Department allowed for a longer implementation period for this
provision (until October 1, 2021). As stated above, the Department is
considering ways to work with State agencies to ensure the written
notices and oral scripts are understandable and responsive to the
information needs of participants. Information provided in a clear and
comprehendible fashion may be more likely read and understood by
participants. The Department would also like to point out that, while
the final regulation is requiring the written notice and oral
explanation be provided during the application process,
recertification, and when a previously exempt individual or new
household member becomes subject to a work requirement, nothing in the
new regulation would prohibit State agencies or their E&T providers, as
a best practice, from regularly sharing information with participants
at important stages in their certification period to reinforce
information previously provided. As already mentioned for E&T
participants, case managers can also be an important support and
information resource. The Department also notes that, as a best
practice, State agencies are also encouraged to inform ABAWDs about
their time limit when the area in which the ABAWD lives comes off a
waiver.
In conclusion, the Department finalizes the requirement to provide
a written notice and oral explanation of all applicable work
requirements as proposed, with clarification of the information to be
contained in the written notice and that the household is the target of
the oral and written explanation.
Voluntary E&T Participation Time Limits
The Department proposed a technical correction to paragraph 7 CFR
273.7(e)(5)(iii) to align the regulations with the statutory provision
at section 6(d)(4)(F)(iii) of the FNA, allowing voluntary participants
to participate in E&T activities for more than the maximum number of
hours calculated as their benefit divided by the minimum wage and for
more than 120 hours in a month. The Department received no comments
directly on this provision, but did make a change to this section based
on a comment received on the subsidized employment provision discussed
earlier in this preamble and to clarify that the Department does not
interpret section 6(d)(4)(F)(iii) to override Federal and State minimum
wage laws. The Department has modified language at 7 CFR
273.7(e)(5)(iii), as re-designated, to indicate that for any additional
hours a volunteer chooses to participate in an E&T work program or
workfare beyond the number of hours equal to the household allotment
for that month divided by the higher of the applicable Federal or State
minimum wage, the participant must earn a wage at least equal to the
higher of the Federal or State minimum wage. This adjustment has been
added to ensure no E&T participant works for less than the minimum
wage.
Procedural Matters
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
This final rule has been determined to be significant and was
reviewed by the Office of Management and Budget (OMB) in conformance
with Executive Order 12866. The table below presents the expected costs
of the rule changes. Derivation of these costs, and the overall impact
on Federal and State spending, are summarized in the discussion that
follows.
[[Page 390]]
Table 1--Summary of Impacts
--------------------------------------------------------------------------------------------------------------------------------------------------------
In millions of dollars FY 2020 FY 2021 FY 2022 FY 2023 FY 2024 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impacts on Federal Transfers (nominal dollars)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Increased 100% E&T grant funding **..................... $13 $13 $13 $13 $13 $65
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impacts on Federal (50%) and State (50%) Administrative Costs (nominal dollars)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Administrative costs/burden--case management +.......... 39.8 39.8 39.8 39.8 39.8 199.0
Administrative costs/burden--related to sending new 0 (*) 6.8 6.8 6.8 20.4
required ABAWD notice and notifying participants of
Provider Determinations +.............................
Administrative costs/burden--reporting of additional 0 0 (*) (*) (*) (*)
measures +............................................
-----------------------------------------------------------------------------------------------
Total............................................... 39.8 39.8 46.6 46.6 46.6 219.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impacts on Burden of Participating Households (costs in nominal dollars)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Household Burden--case management....................... 4.6 4.6 4.6 4.6 4.6 23.0
Household Burden--Notification of Provider Determination 0 0 (*) (*) (*) (*)
......................................................
Household Burden--List of E&T Services.................. 0.8 0.8 0.8 0.8 0.8 4.0
Household Burden--ABAWD Notification .................. 0 0 1.6 1.6 1.6 4.8
-----------------------------------------------------------------------------------------------
Total............................................... 5.4 5.4 7.0 7.0 7.0 31.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
** The 2018 Farm Bill included an additional $13 million per year in 100 percent grant funding for E&T.
+ A portion of these costs are expected to be covered using existing 100 percent grant funding.
These provisions are effective 10/1/21.
Regulatory Impact Analysis: A regulatory impact analysis must be
prepared for major rules with economically significant effects ($100
million or more in any one year). The Department does not anticipate
that this final rule will have economic impacts of $100 million or more
in any one year, and therefore, it does not meet the definition of
``economically significant'' under Executive Order 12866. An analysis
assessing the costs and benefits of this rule is presented below.
As explained above, this rule codifies the 2018 Farm Bill changes
related to E&T program operations, the ABAWD work requirement, and the
allocation and reallocation of 100 percent grant funds. Those changes
and their expected costs and benefits are summarized briefly below:
Changes to SNAP E&T Programs, Components, and Activities
Pursuant to the 2018 Farm Bill, the final rule makes several
changes to E&T components and allowable activities, including:
Replacing job search with supervised job search as an E&T
component and clarifying that ``supervision'' may be provided through a
variety of modes including virtual modes to ensure States can continue
to deliver services during the COVID pandemic;
eliminating job finding clubs as an allowable activity;
replacing job skills assessments with employability
assessments;
adding apprenticeships and subsidized employment as
allowable activities;
requiring a 30-day minimum for receipt of job retention
services; and
allowing activities from the 2014 Farm Bill E&T pilots to
become allowable E&T components, if those activities had a demonstrable
impact on the ability of participants to find and retain employment
that leads to increased income and reduced reliance on public
assistance.
The rule also implements the 2018 Farm Bill provision that requires
all E&T programs to provide case management services to E&T
participants, in addition to one or more E&T components. We expect the
cost of the case management to be approximately $39.8 million per year.
While all E&T participants must receive some case management, there is
no expectation that participants receive ongoing case management if
that is not desired by the participant and the participant is otherwise
successfully participating in E&T. Consistent with the estimates used
for the Paperwork Reduction Act section of the proposed rule, we assume
approximately 460,000 annual E&T participants participate on average
for 3.27 months. We further assume the average participant receives
just over 1 hour total of case management services (30 minutes for the
initial case management meeting and 15 minutes for subsequent monthly
meetings). In addition, we expect caseworkers to spend approximately 10
minutes per case management session preparing for the meeting and 5
minutes recording case notes and otherwise documenting the case
management interactions (for a total of 1.87 hours per case). Using a
fully-loaded hourly rate (including benefits and indirect costs) of
approximately $46.32 \6\ results in an annual cost of about $39.8
million, shared equally. The Department believes that initially most
States will use 100 percent grant funding, including the increased
funding provided through the 2018 Farm Bill, to pay for the required
case management services. In some States this may mean States
reallocate funds from other activities in order to provide sufficient
case management.
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\6\ Based on May 2019 BLS Occupational and Wage Statistics for
``Social Workers, All Other,'' available at https://www.bls.gov/oes/tables.htm, plus approximately 50 percent for fringe and overhead.
Overhead is included because this is a new activity and will likely
result in hiring of additional staff or contractors.
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The case management requirement will also increase burden on
individual
[[Page 391]]
SNAP participants as they will be required to participate in monthly
discussions with their case manager regarding their E&T participation
and plans for self-sufficiency. While the Department expects most of
the conversations will be held by telephone, in some instances E&T
participants may need to travel to meet their case manager in person.
Therefore, the average number of burden hours per participant includes
travel time. Total burden per participant is 1.4 hours, compared to an
estimate of 1.32 hours for State agencies (excluding the time needed
for note taking and other documentation).\7\ The additional burden is
expected to cost SNAP E&T participants approximately $4.6 million
annually. While these estimates include travel time to permit E&T
participants to meet their case manager in person, the Department notes
that the rule provides States with flexibility to deliver case
management services virtually. It is likely that few participants will
meet face-to-face with a case manager during the current public health
emergency; therefore the burden on participants could be lower for the
duration of the pandemic.
---------------------------------------------------------------------------
\7\ For more information on the derivation of these estimates,
please see the Paperwork Reduction Act section of this proposed
rule.
Table 2--Annual Cost of Burden Associated With Case Management Services
------------------------------------------------------------------------
State agency Household
burden burden
------------------------------------------------------------------------
E&T participants per year............... 460,000 460,000
Burden hours per participant............ 1.87 1.4
Hourly wage rate *...................... $46.32 $7.25
-------------------------------
Total Annual Cost (Federal and State $39.8 $4.6
shares millions)...................
------------------------------------------------------------------------
* State Agency rate is a fully loaded rate. Household rate is equal to
the federal minimum wage. Totals may not sum due to rounding.
Changes to Funding Allocation/Reallocation
The final rule establishes a funding formula for reallocated E&T
funds, in accordance with statutory changes. It also codifies the
increase to $100,000 in the minimum allocation of 100 percent funds to
State agencies. While these changes may affect the amount of funds
received by individual States, the Department does not expect these
changes to affect overall spending on SNAP E&T. Prior to the 2018 Farm
Bill, three States (Virgin Islands, Wyoming and North Dakota) received
less than the $100,000 minimum allocation and now receive a larger
grant. Over the past three years, less than $10 million per year in 100
percent grant funds have been reallocated, and the amount available for
reallocation has been declining.
Changes Affecting Work Requirements
Pursuant to the 2018 Farm Bill, the rule makes a number of changes
affecting SNAP work requirements (both the ABAWD requirement and
mandatory E&T). The final rule:
Adds workforce partnerships to the list of programs that
may be used to meet SNAP work requirements;
adds employment and training programs for veterans
operated by the Department of Labor or the Department of Veterans
Affairs to the list of work programs that may be used to meet the ABAWD
work requirement;
requires State agencies to provide an oral explanation and
written notice to ABAWDs of all applicable work requirements during
certification, recertification, and when a previously exempt individual
or new household member becomes subject to a work requirement;
codifies the statutory change that reduces the number of
ABAWD work exemptions from 15 percent to 12 percent and change their
name to ``discretionary exemptions;''
requires State agencies to provide good cause for
noncompliance with E&T if an appropriate or available opening in the
E&T program is not available;
requires State agencies to re-direct individuals who are
determined by a provider not to be a good fit for the E&T component to
other more suitable activities and notify the participant of the
provider's determination; and
requires that, at recertification, all State agencies
advise certain types of households subject to the general work
requirement of employment and training opportunities.
Most of these provisions are not expected to have cost impacts.
Most States have not historically and do not currently use all of their
available discretionary exemptions, so the reduction in the number of
available exemptions is unlikely to impact individual ABAWDs.\8\ While
the regulatory impact analysis for the final rule Supplemental
Nutrition Assistance Program: Requirements for Able-Bodied Adults
Without Dependents assumed that some States would use their carryover
exemptions and would subsequently use more (although not all) of their
available discretionary exemptions to exempt individual ABAWDs in
response to the rule's changes to waiver eligibility, those regulatory
changes have been set aside by a Federal court. Furthermore, the
Families First Coronavirus Response Act generally suspended the ABAWD
work requirement and time limit for the duration of the COVID-19 public
health emergency, so individual ABAWDs are unlikely to be at risk of
losing SNAP at this time. Together, these recent changes reduce the
need for States to use all of their available exemptions.\9\
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\8\ Typically States use far fewer exemptions in a fiscal year
than they earn (see FY 2020 Discretionary Exemptions with
Carryover). In 2019, nine States used more exemptions than they
earned for FY 2019 and thus had to use a portion of their carryover
exemptions. In three of those States, most carryover exemptions were
used as an adjustment to account for misreporting of exemptions used
in earlier years. Of the remaining 44 States, none used more
exemptions in 2019 than they earned in 2020 (the first year
exemptions were reduced to 12 percent).
\9\ A small number of States have continued to offer work
program slots to ABAWDs, which results in those ABAWDs being subject
to the ABAWD work requirement and time limit. However, in most cases
States have not offered ABAWDs slots in work programs during the
pandemic.
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Permitting individuals to fulfill the ABAWD work requirement or
mandatory E&T through workforce partnerships, which are operated by
private employers or non-profit groups, may result in additional ABAWDs
meeting the work requirement and retaining SNAP eligibility. However,
such programs are not currently widespread. Given the lack of available
data for such programs and the requirements for establishing a
workforce partnership, the Department does not believe they will become
[[Page 392]]
commonplace and has, therefore, assumed there would be only negligible
impacts of this change on the SNAP ABAWD population.
The requirement that State agencies inform ABAWDs both orally and
in writing of the ABAWD work requirement and time limit is expected to
result in additional burden for State agencies as this is a new
requirement. The Department received a comment that informing ABAWDs of
their work requirement may take longer than proposed; as a result FNS
has increased the burden in the final rule. However, having this
information may mean that ABAWDs better understand the work requirement
and how to meet it, and thus are better able to fulfill those
requirements and retain SNAP eligibility. States agencies are already
required to inform work registrants and mandatory E&T participants of
their respective work requirements in existing regulations at 7 CFR
273.7(c) (OMB Control Number 0584-0064; Expiration date 12/31/2020,
currently under review with OMB). This this additional burden is
expected to cost approximately $6.7 million annually when implemented
on 10/1/21, with costs divided equally between State agencies and the
Federal government. The table below shows how these estimates were
derived. The Department notes that the actual burden associated with
this provision may be lower if the COVOD-19 public health emergency is
still in place at implementation.
Table 3--State Agency Cost of Burden Related To Sending New Required
ABAWD Notice
------------------------------------------------------------------------
ABAWD written
notice
------------------------------------------------------------------------
Occurrences per year \10\............................... 2,700,000
Burden hours per occurrence............................. 0.083
Hourly wage rate \11\................................... $30.12
---------------
Total Annual Cost (Federal and State shares, $6.7
millions)..........................................
------------------------------------------------------------------------
States will also face burden related to the requirement that they
notify participants when a provider determination has been made that
the individual is not a good fit for the E&T component and re-direct
individuals to other more suitable activities. The Department estimates
that the burden associated with this activity will be about $0.11
million annually when implemented on 10/1/21. To the extent that fewer
individuals participate in E&T due to COVID-19, actual burden
associated with notifying individuals of the provider determination may
be lower for the duration of the pandemic.
---------------------------------------------------------------------------
\10\ Estimates of occurrences of ABAWD notifications are based
on the expected number of SNAP ABAWD participants in FY 2021. For
more information on these estimates, please see the Paperwork
Reduction Act section of this rule.
\11\ Based on the Bureau of Labor Statistics May 2019
Occupational and Wage Statistics for ``eligibility interviewers,
government programs,'' available at https://www.bls.gov/oes/tables.htm.
Table 4--State Agency Cost of Burden Related To Notifying Participants
of Provider Determination
------------------------------------------------------------------------
Notify
participant of
provider
determination
------------------------------------------------------------------------
Occurrences per year \6\................................ 46,000
Burden hours per occurrence \12\........................ 0.083
Hourly wage rate \13\................................... $30.12
---------------
Total Annual Cost (Federal and State shares, $0.11
millions)..........................................
------------------------------------------------------------------------
The Department also anticipates a small ($0.06 million) one-time
burden for State Agencies to develop the new ABAWD written notice and
the list of employment and training services that will be provided to
work registrant households at recertification This assumes States spend
on average 24 hours developing the list of E&T services and 40 hours
developing the ABAWD notice, and an average wage of $18.41 per hour
(64*18.41*53 State Agencies = $62,447).
---------------------------------------------------------------------------
\12\ Estimates of occurrences of notifying individuals of a
provider determination assume 10 percent of E&T participants are
found to be ill-suited for their assigned activity. For more
information on these estimates, please see the Paperwork Reduction
Act section of this rule.
\13\ Based on the Bureau of Labor Statistics May 2019
Occupational and Wage Statistics for ``eligibility interviewers,
government programs,'' available at https://www.bls.gov/oes/tables.htm.
---------------------------------------------------------------------------
ABAWDs will also face new burden associated with reviewing the
ABAWD written notice when received. Households with work registrants,
who will receive a list of E&T services at recertification, will face
additional burden associated with reading that list. Each activity is
expected to result in a minimal amount of administrative burden, about
$2.4 million total over the two activities.
Table 5--Household Cost of Burden Related to New Informational
Activities
------------------------------------------------------------------------
List of
ABAWD written employment and
notice training
services
------------------------------------------------------------------------
Occurrences per year \4\................ 2,700,000 5,496,000
[[Page 393]]
Burden hours per occurrence \14\........ .08 0.2
Hourly wage rate \15\................... $7.25 $7.25
-------------------------------
Total Annual Cost (Federal and State $1.6 $0.8
shares, millions)..................
------------------------------------------------------------------------
While these changes are estimated to increase burden for State
agencies and individuals, these changes are expected to provide
important protections to individuals subject to the ABAWD time limit.
The notice requirement will help ensure that these individuals are
adequately informed of their responsibilities with respect to work
requirements and of what steps they should take in order to comply with
those requirements or if they believe they should be exempt from those
requirements. The Department also notes that, in response to the COVID-
19 pandemic, States currently have flexibilities regarding
certification periods that may reduce the frequency of certification
actions. In addition, as noted previously, the ABAWD time limit is
temporarily and partially suspended. Therefore, actual burden on
households may be lower than these estimates for the duration of the
public health emergency.
---------------------------------------------------------------------------
\14\ Estimates of occurrences per year are based on the expected
number of SNAP ABAWD participants and work registrants in FY 2021.
For more information on these estimates, please see the Paperwork
Reduction Act section of this rule.
\15\ Based on the Bureau of Labor Statistics May 2019
Occupational and Wage Statistics for ``eligibility interviewers,
government programs,'' available at https://www.bls.gov/oes/tables.htm.
---------------------------------------------------------------------------
Changes to Reporting Requirements
The final rule modifies the required reporting elements in the
quarterly E&T Program Activity Report provided by State agencies to add
four additional reporting elements to form FNS-583, which State
agencies must submit annually with the further quarter report. These
new reporting elements include (1) the number of SNAP participants who
are required to participate in E&T (mandatory participants); (2) of
those in (1), the number who begin participation in an E&T program; (3)
of those in (1), the number who begin participation in an E&T
component; and (4) the number of participants who are determined
ineligible for non-compliance. Reporting on these additional elements
is expected to increase reporting burden on 17 State agencies that
currently operate mandatory E&T programs. The Department will add four
reporting elements to form FNS-583, which State agencies must submit
annually with the fourth quarter report. This additional burden is
expected to be of minimal cost to State agencies.
Table 6--Cost of State Agency Burden, New Reporting Requirements
------------------------------------------------------------------------
State Agency
burden
------------------------------------------------------------------------
State agencies.......................................... 17
Reports per year (4 additional elements)................ 1
Hours per response...................................... 51
Hourly wage rate \16\................................... $18.41
---------------
Total Annual Cost (Federal and State shares)........ (*)
------------------------------------------------------------------------
* Minimal--less than $1 million.
Overall Impact on E&T Spending
---------------------------------------------------------------------------
\16\ Based on the Bureau of Labor Statistics May 2019
Occupational and Wage Statistics for ``Office and Administrative
Support Workers, All other,'' available at https://www.bls.gov/oes/tables.htm.
---------------------------------------------------------------------------
In addition to the 100 percent grant funding provided by the
Federal government, most States spend their own funds on SNAP E&T
services. This additional State E&T spending is matched by the Federal
government and referred to as 50-50 spending. While the rule provisions
are expected to result in some additional cost to State agencies
(primarily related to case management and administrative burden), it is
the Department's belief that States will use the following strategies
as they modify their E&T programs in accordance with the statutory and
regulatory changes:
In the first five years after implementation, the
Department expects that most States will use 100 percent grant funding,
including the increased funding provided through the 2018 Farm Bill, to
pay for the required case management services.
The Department anticipates that changes to allowable
components and activities, which may result in a higher cost per E&T
participant, will initially be managed by adjusting the number of
participants served through various components/activities rather than
through investment of additional 50-50 matching funds by State
Agencies. State Agencies' budgets are often less flexible (for example,
prohibitions on running a deficit or budgets that cover multiple years)
and may not permit immediate increases in State E&T spending. This is
especially true currently due to the COVID-19 pandemic and the
resulting need for States to redirect resources to public health
activities.
Over the five year period covered by these estimates, the
Department expects that some but not all States will increase their
investment in 50-50 matching funds to cover both the costs of case
management services and to permit greater participation in new
allowable activities and components that may show more success in
moving individuals toward greater self-sufficiency.
In total, we estimate that these provisions of the rule will
increase spending on E&T by $0 million in Fiscal Year (FY) 2020, and by
$21 million over the five FYs 2020-2024. Costs would be
[[Page 394]]
shared equally between the Federal government and State agencies.
The estimates were derived as follows:
Between FY 2016 and FY 2018, the Federal share of 50-50
spending increased by about $17 million, from $171 million to $188
million. Therefore, we assume that the Federal share of State 50-50
spending would have increased by about $8 million per year.
In response to the changes in allowable components and
activities as well as the case management requirement, we assume that
each year beginning in FY 2022 a small number of States increase their
50-50 spending beyond current projected spending. In FY 2020 and FY
2021, we assume no States increase their 50-50 spending due to the
ongoing pandemic. In FY 2022, 4 States spend about 10 percent more, and
by FY 2024 8 States have increased their spending by about 10 percent
overall.
The per-State increase in 50-50 spending is approximately
$0.5 million per State. The per-State increase is estimated as follows:
A 10 percent increase in 50-50 spending equals $20.5 million in FY
2020. There are 53 State agencies (including the District of Columbia,
Guam, and the U.S. Virgin Islands), 43 of which currently spend 50-50
funding on E&T services, therefore $20.5 million is divided by 43 to
calculate the average ($20.5 million/43 = $0.49 million).
Table 7--Expected Increase in State 50-50 Spending Over Time
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Dollars in millions) FY 2020 FY 2021 FY 2022 FY 2023 FY 2024 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pre-Farm Bill projected 50-50 spending.................. 205 213 221 229 237 ..............
10% increase (amount per State)......................... .49 .49 .49 .49 .49 ..............
Number of States increasing spending.................... 0 0 4 6 8 ..............
State agency Cost....................................... 0 0 2 2 5 10
-----------------------------------------------------------------------------------------------
Total, Federal + State.............................. 0 0 4 7 10 21
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.
Benefits of Final Rule
The Department believes the statutory changes made by Section 4005
of the 2018 Farm Bill are intended to strengthen E&T programs and
improve SNAP participants' ability to gain and retain employment, thus
reducing participant reliance on the social safety net. The changes
contained in the final rule allow for more evidence-based activities,
requiring more accountability on the part of both State agencies and
E&T participants, while also retaining State flexibility. The
requirement to inform ABAWDs of their work requirement will help ensure
that these individuals are adequately informed of their
responsibilities with respect to work requirements and of what steps
they should take in order to comply with those requirements, or if they
believe they should be exempt from those requirements.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies
to analyze the impact of rulemaking on small entities and consider
alternatives that would minimize any significant impacts on a
substantial number of small entities. Pursuant to that review, the
Secretary certifies that this rule would not have a significant impact
on a substantial number of small entities. This final rule would not
have a measurable impact on small entities because the changes required
by the regulations are primarily directed toward State agencies
operating SNAP programs and SNAP E&T programs. Some E&T providers may
be considered small entities. This rule requires that E&T providers
inform the State agency within 10 days when they have made a
determination that an individual who was referred for E&T services is
not a good fit for the component.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
Executive Order 13771
Executive Order 13771 directs agencies to reduce regulation and
control regulatory costs and provides that the cost of planned
regulations be prudently managed and controlled through a budgeting
process. This final rule is considered an E.O. 13771 regulatory action.
We estimate that it will impose $20.30 million in annualized costs at a
7% discount rate, discounted to a 2016 equivalent, over a perpetual
time horizon.''
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local and tribal
governments and the private sector. Under section 202 of the UMRA, the
Department generally must prepare a written statement, including a cost
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local or tribal
governments, in the aggregate, or the private sector, of $100 million
or more in any one year. When such a statement is needed for a rule,
Section 205 of the UMRA generally requires the Department to identify
and consider a reasonable number of regulatory alternatives and adopt
the most cost effective or least burdensome alternative that achieves
the objectives of the rule.
This final rule does not contain Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local and
tribal governments or the private sector of $100 million or more in any
one year. Thus, the rule is not subject to the requirements of sections
202 and 205 of the UMRA.
Executive Order 12372
This Supplemental Nutrition Assistance Program is listed in the
Catalog of Federal Domestic Assistance under Number 10.551 and is
subject to Executive Order 12372, which requires intergovernmental
consultation with State and local officials. (See 2 CFR chapter IV.)
FNS Regional offices are in contact with State agencies, who provide
feedback on policies and procedures for the E&T program and overall
SNAP policy.
Federalism Summary Impact Statement
Executive Order 13132 requires Federal agencies to consider the
impact of their regulatory actions on State and local governments.
Where such actions have federalism implications, agencies are directed
to provide a statement for inclusion in the preamble to the regulations
describing the agency's considerations in terms of the three categories
called for under Section
[[Page 395]]
(6)(b)(2)(B) of Executive Order 13132. The Department has considered
the impact of this rule on State and local governments and has
determined that this rule does not have federalism implications.
Therefore, under section 6(b) of the Executive Order, a federalism
summary is not required.
Executive Order 12988, Civil Justice Reform
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is intended to have preemptive effect
with respect to any State or local laws, regulations or policies which
conflict with its provisions or which would otherwise impede its full
and timely implementation. This rule is not intended to have
retroactive effect unless so specified in the Effective Dates section
of the final rule. Prior to any judicial challenge to the provisions of
the final rule, all applicable administrative procedures must be
exhausted.
Civil Rights Impact Analysis
FNS has reviewed the final rule, in accordance with Departmental
Regulation 4300-004, ``Civil Rights Impact Analysis,'' to identify and
address any major civil rights impacts the rule might have on
participants on the basis of race, color, national origin, sex, age, or
disability. A comprehensive Civil Rights Impact Analysis (CRIA) was
conducted on the final rule, including an analysis of participant data
and provisions contained in the final rule. While the CRIA did not find
any major civil rights implications, the CRIA outlines outreach and
mitigation strategies that would lessen any possible civil rights
impacts. This final rule will impact all State agencies in their
administration of the E&T programs. Additionally, the final rule will
impact applicants and recipients of SNAP who are E&T participants.
However, the Department finds that the CRIA and the mitigation and
outreach strategies outlined within the CRIA provide ample
consideration to applicants' and participants' ability to participate
in SNAP. For instance, FNS will provide implementation guidance and
technical assistance to support State agencies implementation of the
new regulations consistent with the final rule. FNS, through review and
approval of E&T State plans, performance of management evaluations, and
collection and analysis of required data elements, will monitor the
implementation of the new rule to mitigate potential civil rights
violations. Among the outreach strategies included in the CRIA, FNS
National Office will communicate regulatory changes to Regional Offices
who directly interact and provide technical assistance to State
agencies. Regional Offices will also communicate with the National
Office regarding implementation challenges so that FNS can take
appropriate action.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments, or proposed legislation. Additionally, other policy
statements or actions that have substantial direct effects on one or
more Indian Tribes, the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes also require
consultation.
The USDA's Office of Tribal Relations (OTR) has assessed the impact
of this rule on Indian tribes and determined that this rule has tribal
implications that require consultation under E.O. 13175. FNS discussed
the proposed rule in Washington, DC on May 1, 2019, at the United
States Department of Agriculture Farm Bill Tribal Consultation. FNS
also discussed the final rule in a virtual Tribal SNAP Learning Session
on October 30, 2020. FNS received no comments.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR
1320) requires the Office of Management and Budget (OMB) approve all
collections of information by a Federal agency before they can be
implemented. Respondents are not required to respond to any collection
of information unless it displays a current valid OMB control number.
In accordance with the Paperwork Reduction Act of 1995, this final
rule contains information collections that are subject to review and
approval by the Office of Management and Budget; therefore, FNS is
submitting for public comment the changes in the information collection
burden that would result from adoption of the proposals in the rule.
Once the information collection request is approved by OMB, the agency
will publish a separate notice in the Federal Register announcing OMB
approval.
Title: Employment and Training Opportunities in the Supplemental
Nutrition Assistance Program.
OMB Number: 0584-NEW.
Form Number: FNS 583.
Expiration Date: N/A.
Type of Request: New request.
Abstract: This final rule would implement changes made by section
4005 of the Act to the E&T program to strengthen State and Federal
accountability to move SNAP participants toward self-sufficiency. FNS
is requesting a new OMB Control Number for the requirements in this
final rule. Some of the final changes will modify current regulations
resulting in an increase in the reporting burden for State agencies.
Other requirements are new and will result in new mandatory reporting
burden requirements for State agencies, as well as individuals
participating in E&T. First, the Act requires that State agencies
provide individuals participating in E&T with case management services.
Many State agencies already provide case management activities to SNAP
E&T participants; however, State agencies are not currently reporting
this activity to the Department and the Department is not currently
collecting case management activities from these State agencies. This
regulatory change to require that State agencies provide these services
as part of their E&T programs and include them in their E&T State plans
will help ensure that E&T participants receive the guidance and support
needed to move toward self-sufficiency. Second, the Act establishes
that individuals participating in an E&T component who receive a
provider determination (i.e., are determined ill-suited) by the E&T
provider for that component, must be engaged by the State agency to
assess their mental or physical fitness or to identify another type of
training or assistance. The Department requires at 7 CFR
273.7(c)(18)(i) that individuals who have received a provider
determination be notified of this determination, and if the individual
is an ABAWD, be notified that they will begin to accrue countable
months. This process to notify individuals with a provider
determination will constitute a new burden for State agencies and for
SNAP participants who must exchange the information. Third, to increase
State accountability for moving SNAP participants toward self-
sufficiency, the Department has added at 7 CFR 273.7(c)(11) four
additional data elements to the final quarterly E&T Program Activity
Report (FNS 583 reports) (SNAP Employment and Training Program activity
Report; OMB Control Number: 0584-0594; Expiration Date: 7/31/2023
currently under renewal) to collect information on the
[[Page 396]]
number of SNAP applicants and participants who are required by the
State agency to participate in an E&T program, of those the number who
begin to participate in an E&T program and an E&T component, and the
number of mandatory participants who are determined ineligible for
failure to comply. Fourth, the Department requires in new paragraph 7
CFR 273.24(a)(5) to add a State agency requirement to inform every
ABAWD in writing about the ABAWD work requirement and time limit, thus
creating a new burden to develop and provide this written notice, and
to participants to read this notice. This requirement to inform ABAWDs
of their work requirement is added to a consolidated written notice
that consolidates the requirements to inform ABAWDs, work registrants,
and mandatory E&T participants of their work requirements, as
applicable. The requirements to inform work registrants and mandatory
E&T participants of their work requirements are already covered by an
existing burden (OMB Control number: 0584-0064; Expiration Date 12/31/
2020, currently under review with OMB). And fifth, the Department
requires in new paragraph 7 CFR 273.14(b)(5) that, at a minimum, the
State agency provide households with no earned income and with no
elderly or disabled members a list of available employment and training
services for household members subject to the general work requirements
either electronically (e.g., on a website or in an email) or in printed
form. This requirement creates a new burden on State agencies to
develop the list of opportunities and for participants to read the
list. The Department notes that the final rule create a new requirement
for State agencies to consult with their workforce development boards,
and to explain in their E&T State plans the extent to which they
coordinate with title 1 of WIOA. Based on the existing regulatory
requirement to work with their State workforce development systems,
this information is already collected by the Department through the E&T
State plans and is included in an existing burden (OMB Control Number:
0584-0083; Expiration Date: 8/31/2023 currently under OMB review), as a
result the new requirement in the Act is not expected to increase the
existing burden.
The existing burden for the FNS-583 is currently covered under the
information collection for the Food Programs Reporting System, OMB
Control Number 0584-0594, expiration date 7/31/2023. The recordkeeping
burden for the FNS 583 is already sufficient as documented in OMB
Control Number: 0584-0339; Expiration Date: 1/31/2021. The basic
recordkeeping requirement for household case file documentation is part
of OMB Control Number: 0584-0064; Expiration Date 10/31/2020. FNS will
add additional burden to this collection to accommodate the increased
burden resulting from providing case management to E&T participants.
FNS intends to merge the new reporting burden 0584-0594 and 0584-0064,
once the final rulemaking information collection request is approved.
At that time, FNS will publish a separate notice in the Federal
Register announcing OMB's approval.
The Department received some comments directly on the cost and hour
burden, as well as comments related to the underlying policy. As a
result, the Department has made changes to the rule's burden. Regarding
the requirement that all E&T participants receive case management, the
Department received a comment from a State agency agreeing that the
State agency will experience increased costs as a result of the
requirement, but the State agency did not dispute the values provided
in the burden. The Department did receive one comment that State agency
staff will need time to prepare for the case management sessions, thus
the Department added 10 minutes per case management meeting to account
for this preparation time. Regarding the requirement in the proposed
rule to send a Notice of E&T Participation Change (NETPC) when an
individual receives an ill-suited determination, the Department
received a comment from a State agency that the notice was unnecessary
and more costly to implement than provided for in the burden. The
Department, as described in the final rule preamble, has decided not to
require the NETPC, and instead will only require that State agencies
notify the participant with State discretion regarding the mode for
providing the information. The burden has also been updated to account
for the act of notifying the individual, rather than sending a formal
notice. Regarding the new data elements for the FNS-583, the Department
received several comments requesting the Department add a third and
fourth data element capturing the number of individuals who begin an
E&T component and the number of mandatory E&T participants who are
sanctioned for failure to comply. The Department agreed with these
commenters and has added a third and fourth data element to the FNS-583
fourth quarter report. The burden for the FNS-583 new data elements has
been updated to include this third and fourth element and to correct
errors in estimation during the proposed rule, resulting in a decrease
in burden hours for this element. Regarding the requirement to inform
ABAWDs of the ABAWD work requirement, the Department received one
comment from a State agency that the impact of the proposal would add
burden to the State agency, but on balance, the State agency believed
that it may be time well spent if ABAWDs better understand the work
requirement, thus reducing churn. The Department has modified the
burden for informing ABAWDs of the work requirement by increasing the
time to orally inform the ABAWD from two minutes to five minutes to
account for the additional information commenters believed should be
communicated during the interaction (e.g., good cause and exemption).
The Department also increased the amount of time it will take State
agencies to develop the written notice from 24 to 40 hours to account
for the greater amount of information required to be in the notice in
the final rule. Regarding the requirement that State agencies advise
certain households with zero earned income, the Department received no
comments regarding the burden and has made no changes to the burden
from what was proposed.
Respondents: State Agencies.
Estimated Number of Respondents: 53 State Agencies.
Estimated Number of Responses per Respondent: 108,575.64.
Estimated Total Annual Responses: 5,754,509.
Estimated Time per Response: 0.1899868.
Estimated Total Annual Burden on Respondents: 1,093,281.
Respondents: (Individuals) SNAP E&T participants.
Estimated Number of Respondents: 8,702,000.
Estimated Number of Responses per Respondent: 1.1199954034.
Estimated Total Annual Responses: 9,746,200.
Estimated Time per Response: 0.100411135.
Estimated Total Annual Burden on Respondents: 978,627.
The total burden for this rulemaking is 2,069,983 burden hours and
15,500,709 total annual responses.
[[Page 397]]
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Estimated Differences Fully
Description of Estimated Estimated Total burden total Previous due to Difference Hourly wage loaded Estimated
Reg. section Affected public Respondent type activity number of frequency of annual hours per burden burden program due to rate * hourly wage cost to
respondents response responses response hours hours used changes adjustment rate (x.33) respondents
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
7 CFR 273.7(c)(1)............. State Agencies... State Agency E&T Provide Case 53 28,381 1,504,193 0.493 741,567.15 0 0 0 $29.69 $39.4877 $29,282,781
Case Manager *. Management
Services.
7 CFR 273.7(c)(1)............. ................. State Agency E&T Document Case 53 28,381 1,504,193 0.08 120,335.44 0 0 0 29.69 39.4877 4,751,770
Case Manager *. Management
Services.
7 CFR 273.7(c)(18)(i)......... ................. State Eligibility Notify E&T 53 868 46,000 0.083 3,818.00 0 0 0 22.65 30.1245 115,015
worker *. Participants of
Provider
Determination.
7 CFR 273.7(c)(11)............ ................. State Agency Reporting FNS 53 4 212 98 20,776.00 21,889 0 1,113 18.41 24.4853 508,707
Administrative 583 data
Staff *. lements ** (OMB
Control Number
0584-0594).
7 CFR 273.7(c)(11)............ ................. State Agency Reporting 17 1 17 4 68.00 0 51 0 18.41 24.4853 1,665
Administrative additional FNS
Staff *. 583 data
elements.
7 CFR 273.7(a)(5)............. ................. State Agency Develop ABAWD 53 1 53 40 2,120.00 0 0 0 18.41 24.4853 51,909
Administrative written
Staff *. statement of
work
requirements.
7 CFR 273.7(a)(5)............. ................. State Eligibility Inform ABAWDs of 53 50,943 2,700,000 0.083 224,100.00 0 0 0 22.65 30.1245 6,750,900
worker *. the ABAWD work
requirement.
7 CFR 273.14(b)(5)............ ................. State Agency Develop list of 53 1 53 24 1,272.00 0 0 0 18.41 24.4853 31,145
Administrative Employment and
Staff *. Training
Services.
-------------------------------------------------------------------------------------------------------------------------------------------------
Sub-Total State Agencies.. ................. ................. ................ 53 108,575.642 5,754,509 0.1899868 1,093,281 ........... ........... ........... ........... ........... 40,985,186
7 CFR 273.7(c)(1)............. Individual & E&T Participants. Participate in 460,000 3.27 1,504,200 0.426 640,789.00 0 0 0 7.25 n/a 4,645,720
Household. Case Management.
7 CFR 273.7(c)(18)(i)......... ................. E&T Participants. Review 46,000 1 46,000 0.083 3,818.00 0 0 0 7.25 n/a 27,681
Information on
Provider
Determination.
7 CFR 273.7(a)(5)............. ................. E&T Participants. Read ABAWD 2,700,000 1 2,700,000 0.083 224,100.00 0 0 0 7.25 n/a 1,624,725
written
statement of
work
requirements.
7 CFR 273.14(b)(5)............ ................. E&T Participants. Read list of 5,496,000 1 5,496,000 0.02 109,920.00 0 0 0 7.25 n/a 796,920
Employment and
Training
Services.
-------------------------------------------------------------------------------------------------------------------------------------------------
Sub-Total Individual/ ................. ................. ................ 8,702,000 1.119995403 9,746,200 0.1004111 978,627 ........... ........... ........... ........... ........... 7,095,046
Households.
=================================================================================================================================================
Grand Total Reporting ................. ................. ................ 8,702,053 108,576.76 15,500,709 0.1336653 2,071,908 21,889 8,788 1,113 ........... ........... 48,080,231
Burden with both affected
public and States.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Note: Each State Eligibility worker is counted once as all State Agency employees.
** Note: FNS has not included the burden already approved for the current 583 reporting elements w/additional funds in the grand total. The current FNS 583 reporting elements are undergoing a separate revision with OMB control
number: 0584-0594; Expiration Date: 7/31/2023; FNS is not seeking approval for these burden estimates in the request. All burden hours associated with the FNS 583 will be merged into 0584-0594 when OMB approves the information
collection request (ICR) associated with the Final Rule.
*** Numbers may not add due to rounding.
[[Page 398]]
E-Government Act Compliance
The Department is committed to complying with the E-Government Act,
2002 to promote the use of the internet and other information
technologies to provide increased opportunities for citizen access to
Government information and services, and for other purposes.
List of Subjects
7 CFR Part 271
Administrative practice and procedures, Food stamps, Grant
programs-social programs.
7 CFR Part 273
Administrative practice and procedures, Food stamps, Grant
programs-social programs, Penalties, Reporting and recordkeeping.
Accordingly, 7 CFR parts 271 and 273 are amended to read as
follows:
0
1. The authority citation for parts 271 and 273 continues to read as
follows:
Authority: 7 U.S.C. 2011-2036.
PART 271--GENERAL INFORMATION AND DEFINITIONS
0
2. In Sec. 271.2:
0
a. Revise the definitions of ``Employment and training (E&T)
component'' and ``Employment and training (E&T) mandatory
participant'';
0
b. Add in alphabetical order a definition for ``Employment and Training
(E&T) participant'';
0
c. Revise the definition of ``Employment and training (E&T) program'';
0
d. Add in alphabetical order a definition for ``Employment and Training
(E&T) voluntary participant''; and
0
e. Remove the definition of ``Placed in an employment and training
(E&T) program''.
The revisions and additions read as follows:
Sec. 271.2 Definitions.
* * * * *
Employment and Training (E&T) component a work experience, work
training, supervised job search or other program described in section
6(d)(4)(B)(i) of the Food and Nutrition Act of 2008 (7 U.S.C.
2015(d)(4)(B)(i)) designed to help SNAP participants move promptly into
unsubsidized employment.
Employment and Training (E&T) mandatory participant a supplemental
nutrition assistance program applicant or participant who is required
to work register under 7 U.S.C. 2015(d)(1) or (2) and who the State
determines should not be exempted from participation in an employment
and training program and is required to participate in E&T.
Employment and Training (E&T) participant means an individual who
meets the definition of a mandatory or voluntary E&T participant.
Employment and Training (E&T) program means a program operated by
each State agency consisting of case management and one or more E&T
components.
Employment and Training (E&T) voluntary participant means a
supplemental nutrition assistance program applicant or participant who
volunteers to participate in an employment and training (E&T) program.
* * * * *
PART 273--CERTIFICATION OF ELIGIBLE HOUSEHOLDS
0
3. In Sec. 273.7, revise paragraphs (c) through (f) and (i) and add
paragraph (n) to read as follows:
Sec. 273.7 Work provisions.
* * * * *
(c) State agency responsibilities. (1)(i) The State agency must
register for work each household member not exempted by the provisions
of paragraph (b)(1) of this section. The State agency must permit the
applicant to complete a record or form for each household member
required to register for employment in accordance with paragraph
(a)(1)(i) of this section. Household members are considered to have
registered when an identifiable work registration form is submitted to
the State agency or when the registration is otherwise annotated or
recorded by the State agency.
(ii) During the certification process, the State agency must
provide a written notice and oral explanation to the household of all
applicable work requirements for all members of the household, and
identify which household member is subject to which work requirement.
These work requirements include the general work requirement in
paragraph (a) of this section, mandatory E&T in paragraph (a)(1)(ii) of
this section, and the ABAWD work requirement at Sec. 273.24. The
written notice and oral explanation must be provided in accordance with
(c)(1)(iii) of this section. This written notice and oral explanation
must also be provided to the household when a previously exempt
household member or new household member becomes subject to these work
requirements, and at recertification.
(iii) The consolidated written notice must include all pertinent
information related to each of the applicable work requirements,
including: An explanation of each applicable work requirement; which
individuals are subject to which work requirement; exemptions from each
applicable work requirement; an explanation of the process to request
an exemption (including contact information to request an exemption);
the rights and responsibilities of each applicable work requirement;
what is required to maintain eligibility under each applicable work
requirement; pertinent dates by which an individual must take any
actions to remain in compliance with each applicable work requirement;
the consequences for failure to comply with each applicable work
requirement; an explanation of the process for requesting good cause
(including examples of good cause circumstances and contact information
to initiate a good cause request); and any other information the State
agency believes would assist the household members with compliance. If
an individual is subject to mandatory E&T, the written notice must also
explain the individual's right to receive participant reimbursements
for allowable expenses related to participation in E&T, up to any
applicable State cap, and the responsibility of the State agency to
exempt the individual from the requirement to participate in E&T if the
individual's allowable expenses exceed what the State agency will
reimburse, as provided in paragraph (d)(4) of this section. In
addition, as stated in paragraph (c)(2) of this section and Sec.
273.24(b)(8), the State agency must provide a comprehensive oral
explanation to the household of each applicable work requirement
pertaining to individuals in the household.
(2) The State agency is responsible for screening each work
registrant to determine whether or not it is appropriate, based on the
State agency's criteria, to refer the individual to an E&T program. If
the State agency determines the individual is required to participate
in an E&T program, as defined in paragraph (e) of this section and
Sec. 271.2, the State agency must provide the participant with the
written notice and the comprehensive oral explanation described in
paragraph (c)(1)(iii) of this section. The State agency must refer
participants to E&T, this referral may vary from participant to
participant, but in all cases E&T participants must receive both case
management services and at least one E&T component while participating
in
[[Page 399]]
E&T. The State agency must determine the order in which the participant
will receive the elements of an E&T program (e.g., case management
followed by a component, case management embedded within a component,
etc.). The State agency must explain to the participant next steps for
accessing the E&T program. If there is not an appropriate and available
opening in an E&T program, the State agency must determine the
participant has good cause for failure to comply with the mandatory E&T
requirement in accordance with paragraph (i)(4) of this section. The
State agency may, with FNS approval, use intake and sanction systems
that are compatible with its title IV-A work program. Such systems must
be proposed and explained in the State agency's E&T State Plan.
(3) After learning of an individual's non-compliance with SNAP work
requirements, the State agency must issue a notice of adverse action to
the individual, or to the household if appropriate, within 10 days of
establishing that the noncompliance was without good cause. The notice
of adverse action must meet the timeliness and adequacy requirements of
Sec. 273.13. If the individual complies before the end of the advance
notice period, the State agency will cancel the adverse action. If the
State agency offers a conciliation process as part of its E&T program,
it must issue the notice of adverse action no later than the end of the
conciliation period. Mandatory E&T participants who have received a
provider determination in accordance with paragraph (c)(18)(i) of this
section shall not be subject to disqualification for refusal without
good cause to participate in a mandatory E&T program until after the
State has taken one of the four actions in paragraph (c)(18)(i)(B) of
this section, and the individual subsequently refuses to participate
without good cause.
(4) The State agency must design and operate an E&T program that
consists of case management services in accordance with paragraph
(e)(1) of this section and at least one or more, or a combination of,
employment and/or training components as described in paragraph (e)(2)
of this section. The State agency must ensure that it is notified by
the agency or agencies operating its E&T components within 10 days if
an E&T mandatory participant fails to comply with E&T requirements.
(5) The State agency must design its E&T program in consultation
with the State workforce development board, or with private employers
or employer organizations if the State agency determines the latter
approach is more effective and efficient. Each component of the State
agency's E&T program must be delivered through its statewide workforce
development system, unless the component is not available locally
through such a system.
(6) In accordance with Sec. 272.2(d) and (e) of this chapter, the
State agency must prepare and submit an E&T Plan to its appropriate FNS
Regional Office. The E&T Plan must be available for public inspection
at the State agency headquarters. In its E&T Plan, the State agency
will detail the following:
(i) The nature of the E&T components the State agency plans to
offer and the reasons for such components, including cost information.
The methodology for State agency reimbursement for education components
must be specifically addressed. If a State agency plans to offer
supervised job search in accordance with paragraph (e)(2)(i) of this
section, the State agency must also include in the E&T plan a summary
of the State guidelines implementing supervised job search. This
summary of the State guidelines, at a minimum, must describe: The
criteria used by the State agency to approve locations for supervised
job search, an explanation of why those criteria were chosen, and how
the supervised job search component meets the requirements to directly
supervise the activities of participants and track the timing and
activities of participants;
(ii) A description of the case management services and models, how
participants will be referred to case management, how the participant's
case will be managed, who will provide case management services, and
how the service providers will coordinate with E&T providers, the State
agency, and other community resources, as appropriate. The State plan
should also discuss how the State agency will ensure E&T participants
are provided with targeted case management services through an
efficient administrative process;
(iii) An operating budget for the Federal fiscal year with an
estimate of the cost of operation for one full year. Any State agency
that requests 50 percent Federal reimbursement for State agency E&T
administrative costs, other than for participant reimbursements, must
include in its plan, or amendments to its plan, an itemized list of all
activities and costs for which those Federal funds will be claimed,
including the costs for case management and casework to facilitate the
transition from economic dependency to self-sufficiency through work.
Costs in excess of the Federal grant will be allowed only with the
prior approval of FNS and must be adequately documented to assure that
they are necessary, reasonable and properly allocated;
(iv) The categories and types of individuals the State agency
intends to exempt from E&T participation, the estimated percentage of
work registrants the State agency plans to exempt, and the frequency
with which the State agency plans to reevaluate the validity of its
exemptions;
(v) The characteristics of the population the State agency intends
to place in E&T;
(vi) The estimated number of volunteers the State agency expects to
place in E&T;
(vii) The geographic areas covered and not covered by the E&T Plan
and why, and the type and location of services to be offered;
(viii) The method the State agency uses to count all work
registrants as of the first day of the new fiscal year;
(ix) The method the State agency uses to report work registrant
information on the quarterly Form FNS-583;
(x) The method the State agency uses to prevent work registrants
from being counted twice within a Federal fiscal year. If the State
agency universally work registers all SNAP applicants, this method must
specify how the State agency excludes those exempt from work
registration under paragraph (b)(1) of this section. If the State
agency work registers nonexempt participants whenever a new application
is submitted, this method must also specify how the State agency
excludes those participants who may have already been registered within
the past 12 months as specified under paragraph (a)(1)(i) of this
section;
(xi) The organizational relationship between the units responsible
for certification and the units operating the E&T program, including
units of the statewide workforce development system, if available. FNS
is specifically concerned that the lines of communication be efficient
and that noncompliance be reported to the certification unit within 10
working days after the noncompliance occurs;
(xii) The relationship between the State agency and other
organizations it plans to coordinate with for the provision of
services, including organizations in the statewide workforce
development system, if available. Copies of contracts must be available
for inspection. The State agency must document how it consulted with
the State workforce development board. If the State agency consulted
with private employers or employer organizations in lieu of the State
workforce development
[[Page 400]]
board, it must document this consultation and explain the determination
that doing so was more effective or efficient. The State agency must
include in its E&T State plan a description of any outcomes from the
consultation with the State workforce development board or private
employers or employer organizations. The State agency must also address
in the E&T State plan the extent to which E&T activities will be
carried out in coordination with the activities under title I of WIOA;
(xiii) The availability, if appropriate, of E&T programs for
Indians living on reservations;
(xiv) If a conciliation process is planned, the procedures that
will be used when an individual fails to comply with an E&T program
requirement. Include the length of the conciliation period;
(xv) The payment rates for child care established in accordance
with the Child Care and Development Block Grant provisions of 45 CFR
98.43, and based on local market rate surveys;
(xvi) The combined (Federal/State) State agency reimbursement rate
for transportation costs and other expenses reasonably necessary and
directly related to participation incurred by E&T participants. If the
State agency proposes to provide different reimbursement amounts to
account for varying levels of expenses, for instance for greater or
lesser costs of transportation in different areas of the State, it must
include them here;
(xvii) Information about expenses the State agency proposes to
reimburse. FNS must be afforded the opportunity to review and comment
on the proposed reimbursements before they are implemented;
(xviii) For each component that is expected to include 100 or more
participants, reporting measures that the State will collect and
include in the annual report in paragraph (c)(17) of this section. Such
measures may include:
(A) The percentage and number of program participants who received
E&T services and are in unsubsidized employment subsequent to the
receipt of those services;
(B) The percentage and number of participants who obtain a
recognized credential, a registered apprenticeship, or a regular
secondary school diploma (or its recognized equivalent), while
participating in, or within 1 year after receiving E&T services;
(C) The percentage and number of participants who are in an
education or training program that is intended to lead to a recognized
credential, a registered apprenticeship an on-the-job training program,
a regular secondary school diploma (or its recognized equivalent), or
unsubsidized employment;
(D) Measures developed to assess the skills acquisition of E&T
program participants that reflect the goals of the specific components
including the percentage and number of participants who are meeting
program requirements or are gaining skills likely to lead to
employment; and
(E) Other indicators approved by FNS in the E&T State plan; and
(xix) Any State agency that will be requesting Federal funds that
may become available for reallocation in accordance with paragraph
(d)(1)(iii)(A), (B), or (D) of this section should include this request
in the E&T State plan for the year the State agency would plan to use
the reallocated funds. The request must include a separate budget and
narrative explaining how the State agency intends to use the
reallocated funds. FNS will review all State agency requests for
reallocated funds and notify State agencies of the approval of any
reallocated funds in accordance with regulations at (d)(1)(iii)(E) of
this section. FNS' approval or denial of requests for reallocated funds
will occur separately from the approval or denial of the rest of the
E&T State plan.
(7) A State agency interested in receiving additional funding for
serving able-bodied adults without dependents (ABAWDs) subject to the
3-month time limit, in accordance with paragraph (d)(3) of this
section, must include in its annual E&T plan:
(i) Its pledge to offer a qualifying activity to all at-risk ABAWD
applicants and recipients;
(ii) Estimated costs of fulfilling its pledge;
(iii) A description of management controls in place to meet pledge
requirements;
(iv) A discussion of its capacity and ability to serve at-risk
ABAWDs;
(v) Information about the size and special needs of its ABAWD
population; and
(vi) Information about the education, training, and workfare
components it will offer to meet the ABAWD work requirement.
(8) The State agency will submit its E&T Plan annually, at least 45
days before the start of the Federal fiscal year. The State agency must
submit plan revisions to the appropriate FNS regional office for
approval if it plans to alter the nature or location of its components
or the number or characteristics of persons served. The proposed
changes must be submitted for approval at least 30 days prior to
planned implementation.
(9) The State agency will submit an E&T Program Activity Report to
FNS no later than 45 days after the end of each Federal fiscal quarter.
The report will contain monthly figures for:
(i) Participants newly work registered;
(ii) Number of ABAWD applicants and recipients participating in
qualifying components;
(iii) Number of all other applicants and recipients (including
ABAWDs involved in non-qualifying activities) participating in
components; and
(iv) ABAWDs subject to the 3-month time limit imposed in accordance
with Sec. 273.24(b) who are exempt under the State agency's
discretionary exemptions under Sec. 273.24(g).
(10) The State agency will submit annually, on its first quarterly
report, the number of work registrants in the State on October 1 of the
new fiscal year.
(11) The State agency will submit annually, on its final quarterly
report:
(i) A list of E&T components it offered during the fiscal year and
the number of ABAWDs and non-ABAWDs who participated in each;
(ii) The number of ABAWDs and non-ABAWDs who participated in the
E&T Program during the fiscal year. Each individual must be counted
only once;
(iii) Number of SNAP applicants and participants required to
participate in E&T by the State agency and of those the number who
begin participation in an E&T program and the number who begin
participation in an E&T component. An E&T participant begins to
participate in an E&T program when the participant commences at least
one part of an E&T program including an orientation, assessment, case
management, or a component. An E&T participant begins to participate in
an E&T component when the participant commences the first activity in
the E&T component; and
(iv) Number of mandatory E&T participants who were determined
ineligible for failure to comply with E&T requirements.
(12) Additional information may be required of the State agency, on
an as needed basis, regarding the type of components offered and the
characteristics of persons served, depending on the contents of its E&T
Plan.
(13) The State agency must ensure, to the maximum extent
practicable, that E&T programs are provided for Indians living on
reservations.
(14) If a benefit overissuance is discovered for a month or months
in which a mandatory E&T participant has already fulfilled a work
component
[[Page 401]]
requirement, the State agency must follow the procedure specified in
paragraph (m)(6)(v) of this section for a workfare overissuance.
(15) If a State agency fails to efficiently and effectively
administer its E&T program, the provisions of Sec. 276.1(a)(4) of this
chapter will apply.
(16) FNS may require a State agency to make modifications to its
SNAP E&T plan to improve outcomes if FNS determines that the E&T
outcomes are inadequate.
(17) The State agency shall submit an annual E&T report by January
1 each year that contains the following information for the Federal
fiscal year ending the preceding September 30.
(i) The number and percentage of E&T participants and former
participants who are in unsubsidized employment during the second
quarter after completion of participation in E&T.
(ii) The number and percentage of E&T participants and former
participants who are in unsubsidized employment during the fourth
quarter after completion of participation in E&T.
(iii) Median average quarterly earnings of the E&T participants and
former participants who are in unsubsidized employment during the
second quarter after completion of participation in E&T.
(iv) The total number and percentage of participants that completed
an educational, training work experience or an on-the-job training
component.
(v) The number and percentage of E&T participants who:
(A) Are voluntary vs. mandatory participants;
(B) Have received a high school degree (or GED) prior to being
provided with E&T services;
(C) Are ABAWDs;
(D) Speak English as a second language;
(E) Are male vs. female; and
(F) Are within each of the following age ranges: 16-17, 18-35, 36-
49, 50-59, 60 or older.
(vi) Of the number and percentage of E&T participants reported in
paragraphs (c)(17)(i) through (iv) of this section, a disaggregation of
the number and percentage of those participants and former participants
by the characteristics listed in paragraphs (c)(17)(v)(A), (B), and (C)
of this section.
(vii) Reports for the measures identified in a State's E&T plan
related to components that are designed to serve at least 100
participants a year; and
(viii) States that have committed to offering all at-risk ABAWDs
participation in a qualifying activity and have received an additional
allocation of funds as specified in paragraph (d)(3) of this section
shall include:
(A) The monthly average number of individuals in the State who meet
the conditions in paragraph (d)(3)(i) of this section;
(B) The monthly average number of individuals to whom the State
offers a position in a program described in Sec. 273.24(a)(3) and (4);
(C) The monthly average number of individuals who participate in
such programs; and
(D) A description of the types of employment and training programs
the State agency offered to at risk ABAWDs and the availability of
those programs throughout the State.
(ix) States may be required to submit the annual report in a
standardized format based upon guidance issued by FNS.
(x) State agencies certifying workforce partnerships for operation
in their State in accordance with paragraph (n) of this section may
report relevant data to demonstrate the number of program participants
served by the workforce partnership, and of those how many were
mandatory E&T participants.
(18)(i) The State agency must ensure E&T providers are informed of
their authority and responsibility to determine if an individual is
ill-suited for a particular E&T component. Such determinations shall be
referred to as provider determinations. For purposes of this paragraph,
an E&T provider is the provider of an E&T component. The E&T provider
must notify the State agency of a provider determination within 10 days
of the date the determination is made and inform the State agency of
the reason for the provider determination. The E&T provider may also
provide input on the most appropriate next step, as outlined in
paragraph (c)(18)(i)(B) of this section, for the individual with a
provider determination. If the State agency is unable to obtain the
reason for the provider determination from the E&T provider, the State
agency must continue to act on the provider determination in accordance
with this section. If an E&T provider finds an individual is ill-suited
for one component, but the E&T provider determines the individual may
be suitable for another component offered by the E&T provider, at State
agency option, the E&T provider may switch the individual to the other
component and inform the State agency of the new component without the
need for the State agency to act further on the provider determination.
The E&T provider has the authority to determine if an individual is
ill-suited for the E&T component from the time an individual is
referred to an E&T component until completion of the component. When a
State agency receives notification that an individual has received a
provider determination, and the individual is not exempt from the work
requirement as specified in paragraph (b) of this section, the State
agency must:
(A) Notify the mandatory or voluntary E&T participant, within 10
days of receiving notification from the E&T provider, of the provider
determination including the following information, as applicable. The
State agency must explain what a provider determination is, the next
steps the State agency will take as a result of the provider
determination, and contact information for the State agency. In the
case of either a mandatory or voluntary E&T participant with a provider
determination, the State agency must also notify the individual that
they are not being sanctioned as a result of the provider
determination. In the case of an ABAWD who has received a provider
determination, the State agency must also notify the ABAWD that the
ABAWD will accrue countable months toward their three-month
participation time limit the next full benefit month after the month
during which the State agency notifies the ABAWD of the provider
determination, unless the ABAWD fulfills the work requirements in
accordance with Sec. 273.24, or the ABAWD has good cause, lives in a
waived area, or is otherwise exempt. The State agency may make such
notification either verbally or in writing, but must, at a minimum,
document when the notification occurs in the participant's case file;
and
(B) Take the most suitable action from among the following options
no later than the date of the individual's recertification. If an
individual with a provider determination requests that the State agency
take one of the following actions sooner than the next recertification,
the State agency must take the most suitable action as soon as
possible:
(1) Refer the individual to an appropriate E&T program component in
accordance with paragraph (e)(2) of this section. Before making this
referral, the State agency must screen the individual for participation
in the E&T program in accordance with paragraph (c)(2) of this section,
and determine that it is appropriate to refer the individual to an E&T
component, considering the suitability of the individual for any
available E&T components. In accordance with paragraph (e)(1) of this
section, all E&T participants must
[[Page 402]]
receive case management services along with at least one E&T component;
(2) Refer the individual to an appropriate workforce partnership as
defined in paragraph (n) of this section, if available. Before making
this referral, the State agency must provide information about
workforce partnerships to assist the individual in making an informed
decision about whether to voluntarily participate in the workforce
partnership, in accordance with paragraph (n)(10) of this section;
(3) Reassess the physical and mental fitness of the individual. If
the individual is not found to be physically or mentally fit, the
individual is exempt from the work requirement in accordance with
paragraph (b)(1)(ii) of this section. If the individual is found to be
physically or mentally fit, and the State agency determines the
individual is not otherwise exempt from the general work requirements
the State agency must consider if one of the other available actions in
paragraph (c)(18)(i)(B) of this section would be appropriate for the
individual. If the State agency determines the individual should not be
required to participate in E&T, the State agency must exempt the
individual from mandatory E&T; or
(4) Coordinate, to the maximum extent practicable, with other
Federal, State, or local workforce or assistance programs to identify
work opportunities or assistance for the individual. If the State
agency chooses this option, the State agency must not require the
individual to participate in E&T.
(ii) From the time an E&T provider determines an individual is ill-
suited for an E&T component until after the State agency takes one of
the actions in paragraph (c)(18)(i)(B) of this section, the individual
shall not be found to have refused without good cause to participate in
mandatory E&T. In the case of an ABAWD who has received a provider
determination, the ABAWD will accrue countable months toward their
three-month participation time limit the next full benefit month after
the month during which the State agency notifies the ABAWD of the
provider determination, unless the ABAWD fulfills the work requirements
in accordance with Sec. 273.24, or the ABAWD has good cause, lives in
a waived area, or is otherwise exempt.
(d) Federal financial participation--(1) Employment and training
grants--(i) Allocation of grants. Each State agency will receive a 100
percent Federal grant each fiscal year to operate an E&T program in
accordance with paragraph (e) of this section. The grant requires no
State matching.
(A) In determining each State agency's 100 percent Federal E&T
grant, FNS will apply the percentage determined in accordance with
paragraph (d)(1)(i)(B) of this section to the total amount of 100
percent Federal funds authorized under section 16(h)(1)(A) of the Act
for each fiscal year.
(B) FNS will allocate the funding available each fiscal year for
E&T grants using a formula designed to ensure that each State agency
receives its appropriate share.
(1) Ninety percent of the annual 100 percent Federal E&T grant will
be allocated based on the number of work registrants in each State as a
percentage of work registrants nationwide. FNS will use work registrant
data reported by each State agency on the FNS-583, Employment and
Training Program Activity Report, from the most recent Federal fiscal
year.
(2) Ten percent of the annual 100 percent Federal E&T grant will be
allocated based on the number of ABAWDs in each State, as determined by
SNAP QC data for the most recently available completed fiscal year,
which provide a breakdown of each State's population of adults age 18
through 49 who are not disabled and who do not live with children.
(C) No State agency will receive less than $100,000 in Federal E&T
funds. To ensure this, FNS will, if necessary, reduce the grant of each
State agency allocated more than $100,000. In order to guarantee an
equitable reduction, FNS will calculate grants as follows. First,
disregarding those State agencies scheduled to receive less than
$100,000, FNS will calculate each remaining State agency's percentage
share of the fiscal year's E&T grant. Next, FNS will multiply the
grant--less $100,000 for every State agency under the minimum--by each
remaining State agency's same percentage share to arrive at the revised
amount. The difference between the original and the revised amounts
will represent each State agency's contribution. FNS will distribute
the funds from the reduction to State agencies initially allocated less
than $100,000.
(ii) Use of funds. (A) A State agency must use E&T program grants
to fund the administrative costs of planning, implementing and
operating its SNAP E&T program in accordance with its approved State
E&T plan. E&T grants must not be used for the process of determining
whether an individual must be work registered, the work registration
process, or any further screening performed during the certification
process, nor for sanction activity that takes place after the operator
of an E&T program reports noncompliance without good cause. For
purposes of this paragraph (d), the certification process is considered
ended when an individual is referred to an E&T program for assessment
or participation. E&T grants may be used to subsidize wages in
accordance with paragraph (e)(2)(iv)(2) of this section, and may not be
used to reimburse participants under paragraph (d)(4) of this section.
(B) A State agency's receipt of its 100 percent Federal E&T grant
is contingent on FNS's approval of the State agency's E&T plan. If an
adequate plan is not submitted, FNS may reallocate a State agency's
grant among other State agencies with approved plans. Non-receipt of an
E&T grant does not release a State agency from its responsibility under
paragraph (c)(4) of this section to operate an E&T program.
(C) Federal funds made available to a State agency to operate an
educational component under paragraph (e)(2)(vi) of this section must
not be used to supplant nonfederal funds for existing educational
services and activities that promote the purposes of this component.
Education expenses are approvable to the extent that E&T component
costs exceed the normal cost of services provided to persons not
participating in an E&T program.
(D) In accordance with section 6(d)(4)(K) of the Food and Nutrition
Act of 2008, and notwithstanding any other provision of this paragraph
(d), the amount of Federal E&T funds, including participant and
dependent care reimbursements, a State agency uses to serve
participants who are receiving cash assistance under a State program
funded under title IV-A of the Social Security Act must not exceed the
amount of Federal E&T funds the State agency used in FY 1995 to serve
participants who were receiving cash assistance under a State program
funded under title IV-A of the Social Security Act.
(1) Based on information provided by each State agency, FNS
established claimed Federal E&T expenditures on this category of
recipients in fiscal year 1995 for the State agencies of Colorado
($318,613), Utah ($10,200), Vermont ($1,484,913), and Wisconsin
($10,999,773). These State agencies may spend up to a like amount each
fiscal year to serve SNAP recipients who also receive title IV
assistance.
(2) All other State agencies are prohibited from expending any
Federal E&T funds on title IV cash assistance recipients.
(iii) If a State agency will not obligate or expend all of the
funds allocated to
[[Page 403]]
it for a fiscal year under paragraph (d)(1)(i) of this section, FNS
will reallocate the unobligated, unexpended funds to other State
agencies during the fiscal year or subsequent fiscal year. FNS will
allocate carryover funding to meet some or all of the State agencies'
requests, as it considers appropriate and equitable in accordance with
the following process:
(A) Not less than 50 percent shall be reallocated to State agencies
requesting funding to conduct employment and training programs and
activities for which the State agency had previously received funding
under the pilots authorized by the Agricultural Act of 2014 (Pub. L.
113-79) that FNS determines have the most demonstrable impact on the
ability of participants to find and retain employment that leads to
increased household income and reduced reliance on public assistance.
(B) Not less than 30 percent shall be reallocated to State agencies
requesting funding for E&T programs and activities under paragraph
(e)(1) or (2) of this section that FNS determines have the most
demonstrable impact on the ability of participants to find and retain
employment that leads to increased household income and reduced
reliance on public assistance, including activities targeted to:
(1) Individuals 50 years of age or older;
(2) Formerly incarcerated individuals;
(3) Individuals participating in a substance abuse treatment
program;
(4) Homeless individuals;
(5) People with disabilities seeking to enter the workforce;
(6) Other individuals with substantial barriers to employment,
including disabled veterans; or
(7) Households facing multi-generational poverty, to support
employment and workforce participation through an integrated and
family-focused approach in providing supportive services.
(C) State agencies who receive reallocated funds under paragraph
(d)(1)(iii)(A) of this section may also be considered to receive
reallocated funds under paragraph (d)(1)(iii)(B) of this section.
(D) Any remaining funds not accounted for with the reallocations
specified in paragraphs (d)(1)(iii)(A) or (B) of this section shall be
reallocated to State agencies requesting such funds for E&T programs
and activities under paragraph (e)(1) or (2) of this section that FNS
determines have the most demonstrable impact on the ability of
participants to find and retain employment that leads to increased
household income and reduced reliance on public assistance.
(E) State agencies requesting the reallocated funds specified in
paragraph (d)(1)(iii)(A), (B), or (D) of this section, shall make their
request for those funds in their E&T State plans submitted for the
upcoming fiscal year. FNS will determine the amount of reallocated
funds each requesting State agency shall receive and provide the
reallocated funds to those State agencies within a timeframe that
allows each State agency to which funds are reallocated at least 270
days to expend the reallocated funds. When making the reallocations,
FNS will also consider the size of the request relative to the level of
the State agency's E&T spending in prior years, the specificity of the
State agency's plan for spending carryover funds, and the quality of
program and scope of impact for the State's E&T program.
(F) Unobligated, unexpended funds not reallocated in the process
specified in paragraph (E) of this section, shall be reallocated to
State agencies upon request for E&T programs and activities under
paragraph (e)(1) or (2) of this section that FNS determines have the
most demonstrable impact on the ability of participants to find and
retain employment that leads to increased household income and reduced
reliance on public assistance. In making these reallocations FNS will
also consider the size of the request relative to the level of the
State agency's E&T spending in prior years, the specificity of the
State agency's plan for spending carryover funds, and the quality of
program and scope of impact for the State's E&T program.
(2) Additional administrative costs. Fifty percent of all other
administrative costs incurred by State agencies in operating E&T
programs, above the costs referenced in paragraph (d)(1) of this
section, will be funded by the Federal Government.
(3) Additional allocations. In addition to the E&T program grants
discussed in paragraph (d)(1) of this section, FNS will allocate $20
million in Federal funds each fiscal year to State agencies that ensure
availability of education, training, or workfare opportunities that
permit ABAWDs to remain eligible beyond the 3-month time limit.
(i) To be eligible, a State agency must make and comply with a
commitment, or ``pledge,'' to use these additional funds to defray the
cost of offering a position in an education, training, or workfare
component that fulfills the ABAWD work requirement, as defined in Sec.
273.24(a), to each applicant and recipient who is:
(A) In the last month of the 3-month time limit described in Sec.
273.24(b);
(B) Not eligible for an exception to the 3-month time limit under
Sec. 273.24(c);
(C) Not a resident of an area of the State granted a waiver of the
3-month time limit under Sec. 273.24(f); and
(D) Not included in each State agency's 15 percent ABAWD exemption
allotment under Sec. 273.24(g).
(ii) While a participating pledge State may use a portion of the
additional funding to provide E&T services to ABAWDs who do not meet
the criteria discussed in paragraph (d)(3)(i) of this section, it must
guarantee that the ABAWDs who do meet the criteria are provided the
opportunity to remain eligible.
(iii) State agencies will have one opportunity each fiscal year to
take the pledge described in paragraph (d)(3)(i) of this section. An
interested State agency, in its E&T Plan for the upcoming fiscal year,
must include the following:
(A) A request to be considered as a pledge State, along with its
commitment to comply with the requirements of paragraph (d)(3)(i) of
this section;
(B) The estimated costs of complying with its pledge;
(C) A description of management controls it has established to meet
the requirements of the pledge;
(D) A discussion of its capacity and ability to serve vulnerable
ABAWDs;
(E) Information about the size and special needs of the State's
ABAWD population; and
(F) Information about the education, training, and workfare
components that it will offer to allow ABAWDs to remain eligible.
(iv) If the information provided in accordance with paragraph
(d)(3)(iii) of this section clearly indicates that the State agency
will be unable to fulfill its commitment, FNS may require the State
agency to address its deficiencies before it is allowed to participate
as a pledge State.
(v) If the State agency does not address its deficiencies by the
beginning of the new fiscal year on October 1, it will not be allowed
to participate as a pledge State.
(vi) No pledges will be accepted after the beginning of the fiscal
year.
(vii)(A) Once FNS determines how many State agencies will
participate as pledge States in the upcoming fiscal year, it will, as
early in the fiscal year as possible, allocate among them the $20
million based on the number of ABAWDs in each participating State, as a
percentage of ABAWDs in all the participating States. FNS will
determine the number of ABAWDs in each
[[Page 404]]
participating State using SNAP QC data for the most recently available
completed fiscal year, which provide a breakdown of each State's
population of adults age 18 through 49 who are not disabled and who do
not live with children.
(B) Each participating State agency's share of the $20 million will
be disbursed in accordance with paragraph (d)(6) of this section.
(C) Each participating State agency must meet the fiscal
recordkeeping and reporting requirements of paragraph (d)(7) of this
section.
(viii) If a participating State agency notifies FNS that it will
not obligate or expend its entire share of the additional funding
allocated to it for a fiscal year, FNS will reallocate the unobligated,
unexpended funds to other participating State agencies during the
fiscal year, as it considers appropriate and equitable, on a first
come-first served basis. FNS will notify other pledge States of the
availability of additional funding. To qualify, a pledge State must
have already obligated its entire annual 100 percent Federal E&T grant,
excluding an amount that is proportionate to the number of months
remaining in the fiscal year, and it must guarantee in writing that it
intends to obligate its entire grant by the end of the fiscal year. A
State's annual 100 percent Federal E&T grant is its share of the
regular 100 percent Federal E&T allocation plus its share of the
additional $20 million (if applicable). Interested pledge States must
submit their requests for additional funding to FNS. FNS will review
the requests and, if they are determined reasonable and necessary, will
reallocate some or all of the unobligated, unspent ABAWD funds.
(ix) Unlike the funds allocated in accordance with paragraph (d)(1)
of this section, the additional pledge funding will not remain
available until obligated or expended. Unobligated funds from this
grant must be returned to the U.S. Treasury at the end of each fiscal
year.
(x) The cost of serving at-risk ABAWDs is not an acceptable reason
to fail to live up to the pledge. A slot must be made available and the
ABAWD must be served even if the State agency exhausts all of its 100
percent Federal E&T funds and must use State funds to guarantee an
opportunity for all at-risk ABAWDs to remain eligible beyond the 3-
month time limit. State funds expended in accordance with the approved
State E&T Plan are eligible for 50 percent Federal match. If a
participating State agency fails, without good cause, to meet its
commitment, it may be disqualified from participating in the subsequent
fiscal year or years.
(4) Participant reimbursements. The State agency must provide
payments to participants in its E&T program, including applicants and
volunteers, for expenses that are reasonably necessary and directly
related to participation in the E&T program. The Federal Government
will fund 50 percent of State agency payments for allowable expenses,
except that Federal matching for dependent care expenses is limited to
the maximum amount specified in paragraph (d)(4)(i) of this section.
These payments may be provided as a reimbursement for expenses incurred
or in advance as payment for anticipated expenses in the coming month.
The State agency must inform each E&T participant that allowable
expenses up to the amounts specified in paragraphs (d)(4)(i) and (ii)
of this section will be reimbursed by the State agency upon
presentation of appropriate documentation. Reimbursable costs may
include, but are not limited to, dependent care costs, transportation,
and other work, training or education related expenses such as
uniforms, personal safety items or other necessary equipment, and books
or training manuals. These costs must not include the cost of meals
away from home. If applicable, any allowable costs incurred by a
noncompliant E&T participant after the expiration of the noncompliant
participant's minimum mandatory disqualification period, as established
by the State agency, that are reasonably necessary and directly related
to reestablishing eligibility, as defined by the State agency, are
reimbursable under paragraphs (d)(4)(i) and (ii) of this section. The
State agency may reimburse participants for expenses beyond the amounts
specified in paragraph (d)(4)(i) of this section; however, only costs
that are up to but not in excess of those amounts are subject to
Federal cost sharing. Reimbursement must not be provided from E&T
grants allocated under paragraph (d)(1)(i) of this section. Any expense
covered by a reimbursement under this section is not deductible under
Sec. 273.10(d)(1)(i).
(i) The State agency will reimburse the cost of dependent care it
determines to be necessary for the participation of a household member
in the E&T program up to the actual cost of dependent care, or the
applicable payment rate for child care, whichever is lowest. The
payment rates for child care are established in accordance with the
Child Care and Development Block Grant provisions of 45 CFR 98.43, and
are based on local market rate surveys. The State agency will provide a
dependent care reimbursement to an E&T participant for all dependents
requiring care unless otherwise prohibited by this section. The State
agency will not provide a reimbursement for a dependent age 13 or older
unless the dependent is physically and/or mentally incapable of caring
for himself or herself or is under court supervision. The State agency
must provide a reimbursement for all dependents who are physically and/
or mentally incapable of caring for themselves or who are under court
supervision, regardless of age, if dependent care is necessary for the
participation of a household member in the E&T program. The State
agency will obtain verification of the physical and/or mental
incapacity for dependents age 13 or older if the physical and/or mental
incapacity is questionable. Also, the State agency will verify a court-
imposed requirement for the supervision of a dependent age 13 or older
if the need for dependent care is questionable. If more than one
household member is required to participate in an E&T program, the
State agency will reimburse the actual cost of dependent care or the
applicable payment rate for child care, whichever is lowest, for each
dependent in the household, regardless of the number of household
members participating in the E&T program. An individual who is the
caretaker relative of a dependent in a family receiving cash assistance
under title IV-A of the Social Security Act in a local area where an
employment, training, or education program under title IV-A is in
operation is not eligible for such reimbursement. An E&T participant is
not entitled to the dependent care reimbursement if a member of the E&T
participant's SNAP household provides the dependent care services. The
State agency must verify the participant's need for dependent care and
the cost of the dependent care prior to the issuance of the
reimbursement. The verification must include the name and address of
the dependent care provider, the cost and the hours of service (e.g.,
five hours per day, five days per week for two weeks). A participant
may not be reimbursed for dependent care services beyond that which is
required for participation in the E&T program. In lieu of providing
reimbursements for dependent care expenses, a State agency may arrange
for dependent care through providers by the use of purchase of service
contracts, by providing vouchers to the household or by other means. A
State agency may require that dependent care provided or arranged by
the State agency meet all applicable standards of State and local
[[Page 405]]
law, including requirements designed to ensure basic health and safety
protections (e.g., fire safety). An E&T participant may refuse
available appropriate dependent care as provided or arranged by the
State agency, if the participant can arrange other dependent care or
can show that such refusal will not prevent or interfere with
participation in the E&T program as required by the State agency.
(ii) The State agency will reimburse the actual costs of
transportation and other costs (excluding dependent care costs) it
determines to be necessary and directly related to participation in the
E&T program up the maximum level of reimbursement established by the
State agency. Such costs are the actual costs of participation unless
the State agency has a method approved in its E&T Plan for providing
allowances to participants to reflect approximate costs of
participation. If a State agency has an approved method to provide
allowances rather than reimbursements, it must provide participants an
opportunity to claim actual expenses up to the maximum level of
reimbursements established by the State agency.
(iii) No participant cost that has been reimbursed under a workfare
program under paragraph (m)(7)(i) of this section, title IV of the
Social Security Act or other work program will be reimbursed under this
section.
(iv) Any portion of dependent care costs that are reimbursed under
this section may not be claimed as an expense and used in calculating
the dependent care deduction under Sec. 273.9(d)(4) for determining
benefits.
(v) The State agency must inform all mandatory E&T participants
that they may be exempted from E&T participation if their monthly
expenses that are reasonably necessary and directly related to
participation in the E&T program, including participation in case
management services and E&T components, exceed the allowable
reimbursement amount. Persons for whom allowable monthly expenses in an
E&T component exceed the amounts specified under paragraphs (d)(4)(i)
and (ii) of this section are not required to participate in that
component. These individuals will be placed, if possible, in another
suitable component in which the individual's monthly E&T expenses would
not exceed the allowable reimbursable amount paid by the State agency.
If a suitable component is not available, these individuals will be
exempt from E&T participation until a suitable component is available
or the individual's circumstances change and his/her monthly expenses
do not exceed the allowable reimbursable amount paid by the State
agency. Dependent care expenses incurred that are otherwise allowable
but not reimbursed because they exceed the reimbursable amount
specified under paragraph (d)(4)(i) of this section will be considered
in determining a dependent care deduction under Sec. 273.9(d)(4).
(5) Workfare cost sharing. Enhanced cost-sharing due to placement
of workfare participants in paid employment is available only for
workfare programs funded under paragraph (m)(7)(iv) of this section at
the 50 percent reimbursement level and reported as such.
(6) Funding mechanism. E&T program funding will be disbursed
through States' Letters of Credit in accordance with Sec. 277.5 of
this chapter. The State agency must ensure that records are maintained
that support the financial claims being made to FNS.
(7) Fiscal recordkeeping and reporting requirements. Total E&T
expenditures are reported on the Financial Status Report (SF-425 using
FNS-778/FNS-778A worksheet) in the column containing ``other''
expenses. E&T expenditures are also separately identified in an
attachment to the SF-425 using FNS-778/FNS-778A worksheet to show, as
provided in instructions, total State and Federal E&T expenditures;
expenditures funded with the unmatched Federal grants; State and
Federal expenditures for participant reimbursements; State and Federal
expenditures for E&T costs at the 50 percent reimbursement level; and
State and Federal expenditures for optional workfare program costs,
operated under section 20 of the Food and Nutrition Act of 2008 and
paragraph (m)(7) of this section. Claims for enhanced funding for
placements of participants in employment after their initial
participation in the optional workfare program will be submitted in
accordance with paragraph (m)(7)(iv) of this section.
(e) Employment and training programs. Work registrants not
otherwise exempted by the State agency are subject to the E&T program
participation requirements imposed by the State agency. Such
individuals are referred to in this section as E&T mandatory
participants or mandatory E&T participants. Requirements may vary among
participants. Failure to comply without good cause with the
requirements imposed by the State agency will result in
disqualification as specified in paragraph (f)(2) of this section.
Mandatory E&T participants who receive an E&T provider determination in
accordance with paragraph (c)(18)(i) of this section shall not be
subject to disqualification for refusal without good cause to
participate in mandatory E&T during the time specified in (c)(18)(ii)
of this section.
(1) Case management. The State E&T program must provide case
management services such as comprehensive intake assessments,
individualized service plans, progress monitoring, or coordination with
service providers which are provided to all E&T participants. The
purpose of case management services shall be to guide the participant
towards appropriate E&T components and activities based on the
participant's needs and interests, support the participant in the E&T
program, and to provide activities and resources that help the
participant achieve program goals. Case management services and
activities must directly support an individual's participation in the
E&T program. Case management may include referrals to activities and
supports outside of the E&T program, but State agencies can only use
E&T funds for allowable components, activities, and participant
reimbursements. The provision of case management services must not be
an impediment to the participant's successful participation in E&T. In
addition, if the case manager determines a mandatory E&T participant
may meet an exemption from the requirement to participate in an E&T
program, may have good cause for non-compliance with a work
requirement, or both, the case manager must inform the appropriate
State agency staff. Also, if the case manager is unable to identify an
appropriate and available opening in an E&T component for a mandatory
E&T participant, the case manager must inform the appropriate State
agency staff.
(2) Components. To be considered acceptable by FNS, any component
offered by a State agency must entail a certain level of effort by the
participants. The level of effort should be comparable to spending
approximately 12 hours a month for two months making job contacts (less
in workfare or work experience components if the household's benefit
divided by the minimum wage is less than this amount). However, FNS may
approve components that do not meet this guideline if it determines
that such components will advance program goals. An initial screening
by an eligibility worker to determine whom to place in an E&T program
does not constitute a component. The State agency may require SNAP
applicants to participate in any component it offers in its E&T program
at the time of
[[Page 406]]
application. The State agency must screen applicants to determine if it
is appropriate to participate in E&T in accordance with paragraph
(c)(2) of this section, provide the applicant with participant
reimbursements in accordance with (d)(4) of this section, and inform
the applicant of E&T participation requirements including how to access
the component and consequences for failing to participate. The State
agency must not impose requirements that would delay the determination
of an individual's eligibility for benefits or in issuing benefits to
any household that is otherwise eligible. In accordance with section
6(o)(1)(C) of the Food and Nutrition Act of 2008 and Sec. 273.24,
supervised job search and job search training, when offered as
components of an E&T program, are not qualifying activities relating to
the participation requirements necessary to fulfill the ABAWD work
requirement under Sec. 273.24. However, job search, including
supervised job search, or job search training activities, when offered
as part of other E&T program components, are acceptable as long as
those activities comprise less than half the total required time spent
in the components. An E&T program offered by a State agency must
include one or more of the following components:
(i) A supervised job search program. Supervised job search programs
are those that occur at State-approved locations at which the
activities of participants shall be directly supervised and the timing
and activities of participants tracked in accordance with guidelines
issued by the State agency and summarized in their E&T State plan in
accordance with paragraph (c)(6)(i) of this section. State-approved
locations include any location deemed suitable by the State agency
where the participant has access to the tools and materials they need
to perform supervised job search. Tools used in the supervised job
search program may include virtual tools, including, but not limited
to, websites, portals, or web applications to access supervised job
search services. State agencies are encouraged to offer a variety of
locations and formats to best meet participant needs, and to the extent
practicable, allow participants to choose their preferred location.
Supervision can occur asynchronously with respect to the participant's
job search activities, but must be provided by skilled staff, either
remotely or in-person, who provide meaningful guidance and support with
at least monthly check-ins, and must be provided in such a way so as to
best support the participant. State agencies have discretion to develop
tracking methods that best meet the needs of the participant.
Supervised job search activities must have a direct link to increasing
the employment opportunities of individuals engaged in the activity.
Job search that does not meet the definition of supervised job search
is allowed as a subsidiary activity of another E&T component, so long
as the job search activity comprises less than half of the total time
spent in the component. The State agency may require an individual to
participate in supervised job search from the time an application is
filed for an initial period established by the State agency, so long as
the criteria for serving applicants in this paragraph (e)(2) are
satisfied. Following this initial period (which may extend beyond the
date when eligibility is determined) the State agency may require an
additional supervised job search period in any period of 12 consecutive
months. The first such period of 12 consecutive months will begin at
any time following the close of the initial period. The State agency
may establish a supervised job search period that, in its estimation,
will provide participants a reasonable opportunity to find suitable
employment. The State agency should not, however, establish a
continuous, year-round supervised job search requirement. If a
reasonable period of supervised job search does not result in
employment, placing the individual in a training or education component
to improve job skills will likely be more productive. In accordance
with section 6(o)(1)(C) of the Food and Nutrition Act of 2008 and Sec.
273.24, a supervised job search program is not a qualifying E&T
activity relating to the participation requirements necessary to
maintain SNAP eligibility for ABAWDs. However, a job search program,
supervised or otherwise, when operated under title I of the Workforce
Innovation and Opportunity Act (WIOA), under section 236 of the Trade
Act, or a program of employment and training for veterans operated by
the Department of Labor or the Department of Veterans Affairs, is
considered a qualifying activity relating to the participation
requirements necessary to maintain SNAP eligibility for ABAWDs.
(ii) A job search training program that includes reasonable job
search training and support activities. Such a program may consist of
employability assessments, training in techniques to increase
employability, job placement services, or other direct training or
support activities, including educational programs determined by the
State agency to expand the job search abilities or employability of
those subject to the program. Job search training activities are
approvable if they directly enhance the employability of the
participants. A direct link between the job search training activities
and job-readiness must be established for a component to be approved.
In accordance with section 6(o)(1)(C) of the Food and Nutrition Act of
2008 and Sec. 273.24, a job search training program is not a
qualifying activity relating to the participation requirements
necessary to maintain SNAP eligibility for ABAWDs. However, such a
program, when operated under title I of WIOA, under section 236 of the
Trade Act, or a program of employment and training for veterans
operated by the Department of Labor or the Department of Veterans
Affairs, is considered a qualifying activity relating to the
participation requirements necessary to maintain SNAP eligibility for
ABAWDs.
(iii) A workfare program as described in paragraph (m) of this
section.
(A) The participation requirements of section 20(b) of the Food and
Nutrition Act of 2008 and paragraphs (m)(5)(i)(A) and (B) of this
section for individuals exempt from SNAP work requirements under
paragraphs (b)(1)(iii) and (v) of this section, are not applicable to
E&T workfare components.
(B) In accordance with section 20(e) of the Food and Nutrition Act
of 2008 and paragraph (m)(6)(ii) of this section, the State agency may
establish a job search period of up to 30 days following certification
prior to making a workfare assignment. This job search activity is part
of the workfare assignment, and not a job search ``program.''
Participants are considered to be participating in and complying with
the requirements of workfare, thereby meeting the participation
requirement for ABAWDs.
(C) The sharing of workfare savings authorized under section 20(g)
of the Food and Nutrition Act of 2008 and paragraph (m)(7)(iv) of this
section are not available for E&T workfare components.
(iv) A work experience program designed to improve the
employability of household members through actual work experience or
training, or both, and to enable individuals employed or trained under
such programs to move promptly into regular public or private
employment. Work experience is a planned, structured learning
experience that takes place in a workplace for a limited period of
time. Work experience may be paid or unpaid, as appropriate, and
consistent with other laws such as the Fair Labor Standards Act. Work
experience may be arranged within the
[[Page 407]]
private for-profit sector, the non-profit sector, or the public sector.
Labor standards apply in any work experience setting where an employee/
employer relationship, as defined by the Fair Labor Standards Act,
exists.
(A) A work experience program may include:
(1) A work activity performed in exchange for SNAP benefits that
provides an individual with an opportunity to acquire the general
skills, knowledge, and work habits necessary to obtain employment. The
purpose of work activity is to improve the employability of those who
cannot find unsubsidized full-time employment.
(2) A work-based learning program, which, for the purposes of SNAP
E&T, are sustained interactions with industry or community
professionals in real world settings to the extent practicable, or
simulated environments at an educational institution that foster in-
depth, firsthand engagement with the tasks required in a given career
field, that are aligned to curriculum and instruction. Work-based
learning emphasizes employer engagement, includes specific training
objectives, and leads to regular employment. Work-based learning can
include internships, pre-apprenticeships, apprenticeships, customized
training, transitional jobs, incumbent worker training, and on-the-job
training as defined under WIOA. Work-based learning can include both
subsidized and unsubsidized employment models.
(B) A work experience program must:
(1) Not provide any work that has the effect of replacing the
employment of an individual not participating in the employment or
training experience program; and
(2) Provide the same benefits and working conditions that are
provided at the job site to employees performing comparable work for
comparable hours.
(v) A project, program or experiment such as a supported work
program aimed at accomplishing the purpose of the E&T program.
(vi) Educational programs or activities to improve basic skills,
build work readiness, or otherwise improve employability including
educational programs determined by the State agency to expand the job
search abilities or employability of those subject to the program.
(A) Allowable educational programs or activities may include, but
are not limited to, courses or programs of study that are part of a
program of career and technical education (as defined in section 3 of
the Carl D. Perkins Act of 2006), high school or equivalent educational
programs, remedial education programs to achieve a basic literacy
level, and instructional programs in English as a second language.
(B) Only educational components that directly enhance the
employability of the participants are allowable. A direct link between
the education and job-readiness must be established for a component to
be approved.
(vii) A program designed to improve the self-sufficiency of
recipients through self-employment. Included are programs that provide
instruction for self-employment ventures.
(viii) Job retention services that are designed to help achieve
satisfactory performance, retain employment and to increase earnings
over time. The State agency may offer job retention services, such as
case management, job coaching, dependent care assistance and
transportation assistance, for up to 90 days to an individual who has
secured employment. State agencies must make a good faith effort to
provide job retention services for at least 30 days. The State agency
may determine the start date for job retention services provided that
the individual is participating in SNAP in the month of or the month
prior to beginning job retention services. The State agency may provide
job retention services to households leaving SNAP up to the 90-day
limit unless the individual is leaving SNAP due to a disqualification
in accordance with Sec. 273.7(f) or Sec. 273.16. The participant must
have secured employment after or while receiving other employment/
training services under the E&T program offered by the State agency.
There is no limit to the number of times an individual may receive job
retention services as long as the individual has re-engaged with E&T
prior to obtaining new employment. An otherwise eligible individual who
refuses or fails to accept or comply with job retention services
offered by the State agency may not be disqualified as specified in
paragraph (f)(2) of this section.
(ix) Programs and activities conducted under the pilots authorized
by the Agricultural Act of 2014 (Pub. L. 113-79) that the Secretary
determines, based on the results from the independent evaluations
conducted for those pilots, have the most demonstrable impact on the
ability of participants to find and retain employment that leads to
increased household income and reduced reliance on public assistance.
(3) Exemptions. Each State agency may, at its discretion, exempt
individual work registrants and categories of work registrants from E&T
participation. Each State agency must periodically reevaluate its
individual and categorical exemptions to determine whether they remain
valid. Each State agency will establish the frequency of its periodic
evaluation.
(4) Time spent in an employment and training program. (i) Each
State agency will determine the length of time a participant spends in
case management or any E&T component it offers. The State agency may
also determine the number of successive components in which a
participant may be placed.
(ii) The time spent by the members of a household collectively each
month in an E&T work program (including, but not limited to, those
carried out under paragraphs (e)(2)(iii) and (iv) of this section)
combined with any hours worked that month in a workfare program under
paragraph (m) of this section must not exceed the number of hours equal
to the household's allotment for that month divided by the higher of
the applicable Federal or State minimum wage. The total hours of
participation in an E&T program for any household member individually
in any month, together with any hours worked in a workfare program
under paragraph (m) of this section and any hours worked for
compensation (in cash or in kind), must not exceed 120.
(5) Voluntary participation. (i) A State agency may operate an E&T
program in which individuals elect to participate.
(ii) A State agency must not disqualify voluntary participants in
an E&T program for failure to comply with E&T requirements.
(iii) Voluntary participants are not subject to the restrictions in
paragraph (e)(4)(ii) of this section, as long as the voluntary
participants are paid a wage at least equal to the higher of the
applicable Federal or State minimum wage for all hours spent in an E&T
work program or workfare.
(f) Failure to comply--(1) Ineligibility for failure to comply. A
nonexempt individual who refuses or fails without good cause, as
defined in paragraphs (i)(2), (3), and (4) of this section, to comply
with SNAP work requirements listed under paragraph (a)(1) of this
section is ineligible to participate in SNAP, and will be considered an
ineligible household member, pursuant to Sec. 273.1(b)(7).
(i) As soon as the State agency learns of the individual's
noncompliance it must determine whether good cause for the
noncompliance exists, as discussed in paragraph (i) of this section.
Within 10 days of establishing that the noncompliance was without good
cause, the State agency must provide the individual with a notice of
adverse action, as specified in Sec. 273.13. If the
[[Page 408]]
State agency offers a conciliation process as part of its E&T program,
it must issue the notice of adverse action no later than the end of the
conciliation period.
(ii) The notice of adverse action must contain the particular act
of noncompliance committed and the proposed period of disqualification.
The notice must also specify that the individual may, if appropriate,
reapply at the end of the disqualification period. Information must be
included on or with the notice describing the action that can be taken
to avoid the disqualification before the disqualification period
begins. The disqualification period must begin with the first month
following the expiration of the 10-day adverse notice period, unless a
fair hearing is requested.
(iii) An E&T disqualification may be imposed after the end of a
certification period. Thus, a notice of adverse action must be sent
whenever the State agency becomes aware of an individual's
noncompliance with SNAP work requirements, even if the disqualification
begins after the certification period expires and the household has not
been recertified.
(2) Disqualification periods. The following disqualification
periods will be imposed:
(i) For the first occurrence of noncompliance, the individual will
be disqualified until the later of:
(A) The date the individual complies, as determined by the State
agency;
(B) One month; or
(C) Up to three months, at State agency option.
(ii) For the second occurrence, until the later of:
(A) The date the individual complies, as determined by the State
agency;
(B) Three months; or
(C) Up to six months, at State agency option.
(iii) For the third or subsequent occurrence, until the later of:
(A) The date the individual complies, as determined by the State
agency;
(B) Six months;
(C) A date determined by the State agency; or
(D) At the option of the State agency, permanently.
(3) Record retention. In accordance with Sec. 272.1(f) of this
chapter, State agencies are required to retain records concerning the
frequency of noncompliance with FSP work requirements and the resulting
disqualification actions imposed. These records must be available for
inspection and audit at any reasonable time to ensure conformance with
the minimum mandatory disqualification periods instituted.
(4) Disqualification plan. In accordance with Sec.
272.2(d)(1)(xiii) of this chapter, each State agency must prepare and
submit a plan detailing its disqualification policies. The plan must
include the length of disqualification to be enforced for each
occurrence of noncompliance, how compliance is determined by the State
agency, and the State agency's household disqualification policy.
(5) Household ineligibility. (i) If the individual who becomes
ineligible to participate under paragraph (f)(1) of this section is the
head of a household, the State agency, at its option, may disqualify
the entire household from SNAP participation.
(ii) The State agency may disqualify the household for a period
that does not exceed the lesser of:
(A) The duration of the ineligibility of the noncompliant
individual under paragraph (f)(2) of this section; or
(B) 180 days.
(iii) A household disqualified under this provision may reestablish
eligibility if:
(A) The head of the household leaves the household;
(B) A new and eligible person joins the household as the head of
the household, as defined in Sec. 273.1(d)(2); or
(C) The head of the household becomes exempt from work requirements
during the disqualification period.
(iv) If the head of the household joins another household as its
head, that household will be disqualified from participating in SNAP
for the remaining period of ineligibility.
(6) Fair hearings. Each individual or household has the right to
request a fair hearing, in accordance with Sec. 273.15, to appeal a
denial, reduction, or termination of benefits due to a determination of
nonexempt status, or a State agency determination of failure to comply
with SNAP work requirements. Individuals or households may appeal State
agency actions such as exemption status, the type of requirement
imposed, or State agency refusal to make a finding of good cause if the
individual or household believes that a finding of failure to comply
has resulted from improper decisions on these matters. The State agency
or its designee operating the relevant component or service of the E&T
program must receive sufficient advance notice to either permit the
attendance of a representative or ensure that a representative will be
available for questioning over the phone during the hearing. A
representative of the appropriate agency must be available through one
of these means. A household must be allowed to examine its E&T program
casefile at a reasonable time before the date of the fair hearing,
except for confidential information (that may include test results)
that the agency determines should be protected from release.
Confidential information not released to a household may not be used by
either party at the hearing. The results of the fair hearing are
binding on the State agency.
(7) Failure to comply with a work requirement under title IV of the
Social Security Act, or an unemployment compensation work requirement.
An individual exempt from SNAP work requirements by paragraph
(b)(1)(iii) or (v) of this section because he or she is subject to work
requirements under title IV-A or unemployment compensation who fails to
comply with a title IV-A or unemployment compensation work requirement
will be treated as though he or she failed to comply with SNAP work
requirement.
(i) When a SNAP household reports the loss or denial of title IV-A
or unemployment compensation benefits, or if the State agency otherwise
learns of a loss or denial, the State agency must determine whether the
loss or denial resulted when a household member refused or failed
without good cause to comply with a title IV-A or unemployment
compensation work requirement.
(ii) If the State agency determines that the loss or denial of
benefits resulted from an individual's refusal or failure without good
cause to comply with a title IV or unemployment compensation
requirement, the individual (or household if applicable under paragraph
(f)(5) of this section) must be disqualified in accordance with the
applicable provisions of this paragraph (f). However, if the
noncomplying individual meets one of the work registration exemptions
provided in paragraph (b)(1) of this section (other than the exemptions
provided in paragraph (b)(1)(iii) or (v) of this section) the
individual (or household if applicable under paragraph (f)(5) of this
section) will not be disqualified.
(iii) If the State agency determination of noncompliance with a
title IV-A or unemployment compensation work requirement leads to a
denial or termination of the individual's or household's SNAP benefits,
the individual or household has a right to appeal the decision in
accordance with the provisions of paragraph (f)(6) of this section.
(iv) In cases where the individual is disqualified from the title
IV-A program for refusal or failure to comply with a
[[Page 409]]
title IV-A work requirement, but the individual meets one of the work
registration exemptions provided in paragraph (b)(1) of this section,
other than the exemption in paragraphs (b)(1)(iii) of this section, the
State agency may, at its option, apply the identical title IV-A
disqualification on the individual under SNAP. The State agency must
impose such optional disqualifications in accordance with section 6(i)
of the Food and Nutrition Act of 2008 and with the provisions of Sec.
273.11(1).
* * * * *
(i) Good cause. (1) The State agency is responsible for determining
good cause when a SNAP recipient fails or refuses to comply with SNAP
work requirements. Since it is not possible for the Department to
enumerate each individual situation that should or should not be
considered good cause, the State agency must take into account the
facts and circumstances, including information submitted by the
employer and by the household member involved, in determining whether
or not good cause exists.
(2) Good cause includes circumstances beyond the member's control,
such as, but not limited to, illness, illness of another household
member requiring the presence of the member, a household emergency, the
unavailability of transportation, or the lack of adequate child care
for children who have reached age six but are under age 12.
(3) Good cause for leaving employment includes the good cause
provisions found in paragraph (i)(2) of this section, and resigning
from a job that is unsuitable, as specified in paragraphs (h)(1) and
(2) of this section. Good cause for leaving employment also includes:
(i) Discrimination by an employer based on age, race, sex, color,
handicap, religious beliefs, national origin or political beliefs;
(ii) Work demands or conditions that render continued employment
unreasonable, such as working without being paid on schedule;
(iii) Acceptance of employment by the individual, or enrollment by
the individual in any recognized school, training program or
institution of higher education on at least a half time basis, that
requires the individual to leave employment;
(iv) Acceptance by any other household member of employment or
enrollment at least half-time in any recognized school, training
program or institution of higher education in another county or similar
political subdivision that requires the household to move and thereby
requires the individual to leave employment;
(v) Resignations by persons under the age of 60 which are
recognized by the employer as retirement;
(vi) Employment that becomes unsuitable, as specified in paragraphs
(h)(1) and (2) of this section, after the acceptance of such
employment;
(vii) Acceptance of a bona fide offer of employment of more than 30
hours a week or in which the weekly earnings are equivalent to the
Federal minimum wage multiplied by 30 hours that, because of
circumstances beyond the individual's control, subsequently either does
not materialize or results in employment of less than 30 hours a week
or weekly earnings of less than the Federal minimum wage multiplied by
30 hours; and
(viii) Leaving a job in connection with patterns of employment in
which workers frequently move from one employer to another such as
migrant farm labor or construction work. There may be some
circumstances where households will apply for SNAP benefits between
jobs particularly in cases where work may not yet be available at the
new job site. Even though employment at the new site has not actually
begun, the quitting of the previous employment must be considered as
with good cause if it is part of the pattern of that type of
employment.
(4) Good cause includes circumstances where the State agency
determines that there is not an appropriate and available opening
within the E&T program to accommodate the mandatory participant. Good
cause for circumstances where there is not an appropriate or available
opening within the E&T program shall extend until the State agency
identifies an appropriate and available E&T opening, and the State
agency informs the SNAP participant. In addition, good cause for
circumstances where there is not an appropriate and available opening
within the E&T program shall only apply to the requirement to
participate in E&T and shall not provide good cause to ABAWDs who fail
to fulfill the ABAWD work requirement in accordance with Sec. 273.24.
(5) Verification. To the extent that the information given by the
household is questionable, as defined in Sec. 273.2(f)(2), State
agencies must request verification of the household's statements. The
primary responsibility for providing verification, as provided in Sec.
273.2(f)(5), rests with the household.
(n) Workforce partnerships. Workforce partnerships must meet the
following requirements.
(1) Workforce partnerships are programs operated by:
(i) A private employer, an organization representing private
employers, or a nonprofit organization providing services relating to
workforce development; or
(ii) An entity identified as an eligible provider of training
services under section 122(d) of WIOA (29 U.S.C. 3152(d)).
(2) Workforce partnerships may include multi-State programs.
(3) Workforce partnerships must be in compliance with the Fair
Labor Standards Act of 1938 (29 U.S.C. 201 et seq), as applicable.
(4) Certification of workforce partnerships. All workforce
partnerships must be certified by the Secretary or by the State agency
to the Secretary to indicate all of the following. The workforce
partnership must:
(i) Assist SNAP households in gaining high-quality, work-relevant
skills, training, work, or experience that will increase the ability of
the participants to obtain regular employment;
(ii) Provide participants with not less than 20 hours per week,
averaged monthly of training, work, or experience; for the purposes of
this provision, 20 hours a week averaged monthly means 80 hours a
month;
(iii) Not use any funds authorized to be appropriated under the
Food and Nutrition Act of 2008;
(iv) Provide sufficient information to the State agency, on
request, to determine whether members of SNAP households who are
subject to the work requirement in 7 CFR 273.7(a), the ABAWD work
requirements in 7 CFR 273.24, or both are fulfilling the work
requirement through the workforce partnership;
(v) Be willing to serve as a reference for participants who are
members of SNAP households for future employment or work-related
programs.
(5) In certifying that a workforce partnership meets the criteria
in paragraphs (n)(4)(i) and (ii) of this section to be certified as a
workforce partnership, the Secretary or the State agency shall require
that the program submit to the Secretary or the State agency sufficient
information that describes both:
(i) The services and activities of the program that would provide
participants with not less than 20 hours per week of training, work, or
experience; and
[[Page 410]]
(ii) How the workforce partnership would provide services and
activities described in paragraph (n)(5)(i) of this section that would
directly enhance the employability or job readiness of the participant.
(6) Application to employment and training. (i) Workforce
partnerships may not use any funds authorized to be appropriated by the
Food and Nutrition Act of 2008.
(ii) If a member of a SNAP household is required to participate in
an employment and training program in accordance with paragraph
(a)(1)(ii) of this section, the State shall consider an individual
participating in a workforce partnership certified in accordance with
paragraph (n)(4) of this section to be in compliance with the
employment and training requirements. The State agency cannot
disqualify an individual for no longer participating in a workforce
partnership. When a State agency learns that an individual is no longer
participating in a workforce partnership, and the individual had been
subject to mandatory E&T in accordance with paragraph (a)(1)(ii) of
this section, the State agency must re-screen the individual to
determine if the individual qualifies for an exemption from the work
requirements in accordance with paragraph (b) of this section, and re-
screen the individual to determine if the individual meets State
criteria for referral to an E&T program or component in accordance with
paragraph (c)(2) of this section. After this re-screening, if it is
appropriate to require the individual to participate in an E&T program,
the State agency may refer the individual to an E&T program or
workforce partnership, as applicable.
(7) Supplement, Not Supplant. A state agency may use a workforce
partnership to supplement, not to supplant, the employment and training
program of the State agency.
(8) Application to work programs. Workforce partnerships certified
in accordance with paragraph (n)(4) of this section are included in the
definition of a work program under 7 CFR 273.24(a)(3) for the purposes
of fulfilling the ABAWD work requirement.
(9) The State agency shall not require any member of a household
participating in SNAP to participate in a workforce partnership.
(10) List of workforce partnerships. A State agency shall maintain
a list of workforce partnerships certified in accordance with paragraph
(n)(4) of this section. A State agency must also inform any SNAP
participant whom the State agency has determined is likely to benefit
from participation in a workforce partnership of the availability of
the workforce partnership, and provide the participant with all
available pertinent information regarding the workforce partnership to
enable the participant to make an informed choice about participation.
The information must include, if available: contact information for the
workforce partnership; the types of activities the participant would be
engaged in through the workforce partnership, screening criteria used
by the workforce partnership to select individuals, the location of the
workforce partnership, the work schedule or schedules, any special
skills required to participate, and wage and benefit information, if
applicable.
(11) Participation in a workforce partnership shall not replace the
employment or training of an individual not participating in a
workforce partnership.
(12) A workforce partnership may select individuals for
participation in the workforce partnership who may or may not meet the
criteria for the general work requirement at 7 CFR 273.7(a), including
participation in E&T, or the ABAWD work requirement at 7 CFR
273.24(a)(1).
(13) Reporting. Workforce partnership reporting requirements to the
State agency are limited to the following:
(i) On notification that an individual participating in the
workforce partnership is receiving SNAP benefits, notifying the State
agency that the individual is participating in a workforce partnership;
(ii) Identifying participants who have completed or are no longer
participating in the workforce partnership;
(iii) Identifying changes to the workforce partnership that result
in the workforce partnership no longer meeting the certification
requirements in accordance with paragraph (n)(4) of this section; and
(iv) Providing sufficient information, on request by the State
agency, for the State agency to verify that a participant is fulfilling
the applicable work requirements in paragraph (a) of this section or 7
CFR 273.24.
0
4. In Sec. 273.14, add paragraph (b)(5) to read as follows:
Sec. 273.14 Recertification.
* * * * *
(b) * * *
(5) Advise of available employment and training services. (i) At
the time of recertification, the State agency shall advise household
members subject to the work requirements of Sec. 273.7(a) who reside
in households meeting the criteria in paragraph (b)(5)(ii) of this
section of available employment and training services. This shall
include, at a minimum, providing a list of available employment and
training services electronically or in printed form to the household.
(ii) The State agency requirement in paragraph (b)(5)(i) of this
section only applies to households that meet all of the following
criteria, as most recently reported by the household:
(A) Contain a household member subject to the work requirements of
Sec. 273.7(a);
(B) Contain at least one adult;
(C) Contain no elderly or disabled individuals; and
(D) Have no earned income.
* * * * *
0
5. In section Sec. 273.24:
0
a. Revise paragraph (a)(3);
0
b. Amend paragraph (b)(1)(iii) by removing the word ``or'' at the end
of the paragraph;
0
c. Revise paragraph (b)(1)(iv);
0
d. Add paragraph (b)(1)(v);
0
e. Revise paragraph (b)(2);
0
f. Add paragraph (b)(8);
0
g. Amend the paragraph (g) subject heading by removing the words ``15
percent'' and adding in its place the word ``Discretionary'';
0
h. Amend paragraph (g)(1) introductory text by removing the words ``15
percent exemption'' and adding in their place the words ``discretionary
exemptions''; and
0
i. Amend paragraph (g)(3) introductory text by removing the number
``15'' and adding in its place the number ``12''.
The revisions and additions read as follows:
Sec. 273.24 Time limit for able-bodied adults.
* * * * *
(a) * * *
(3) Work Program means:
(i) A program under title 1 of the Workforce Innovation and
Opportunity Act (WIOA) (Pub. L.113-128);
(ii) A program under section 236 of the Trade Act of 1974 (19
U.S.C. 2296);
(iii) An employment and training program operated or supervised by
a State or political subdivision of a State agency that meets standards
approved by the Chief Executive Office, including a SNAP E&T program
under Sec. 2 73.7(e) excluding any job search, supervised job search,
or job search training program. However, a program under this clause
may contain job search, supervised job search, or job search training
as subsidiary activities as long as such activity is less than half the
requirement. Participation in job search, supervised job search, or job
search training as subsidiary activities that
[[Page 411]]
make up less than half the requirement counts for purposes of
fulfilling the work requirement under paragraph (a)(1)(ii) of this
section.
(iv) A program of employment and training for veterans operated by
the Department of Labor or the Department of Veterans Affairs. For the
purpose of this paragraph, any employment and training program of the
Department of Labor or Veterans Affairs that serves veterans shall be
an approved work program; or
(v) A workforce partnership under Sec. 273.7(n)
* * * * *
(b) * * *
(1) * * *
(iv) Receiving benefits that are prorated in accordance with Sec.
273.10; or
(v) In the month of notification from the State agency of a
provider determination in accordance with Sec. 273.7(c)(18)(i).
(2) Good cause. As determined by the State agency, if an individual
would have fulfilled the work requirement as defined in paragraph
(a)(1) of this section, but missed some hours for good cause, the
individual shall be considered to have fulfilled the work requirement
if the absence from work, the work program, or the workfare program is
temporary. Good cause shall include circumstances beyond the
individual's control, such as, but not limited to, illness, illness of
another household member requiring the presence of the member, a
household emergency, or the unavailability of transportation. In
addition, if the State agency grants an individual good cause under
Sec. 273.7(i) for failure or refusal to meet the mandatory E&T
requirement, that good cause determination confers good cause under
this paragraph, except in the case of Sec. 273.7(i)(4), without the
need for a separate good cause determination under this paragraph. Good
cause granted under Sec. 273.7(i)(4) only provides good cause to
ABAWDs for failure or refusal to participate in a mandatory SNAP E&T
program, and does not confer good cause for failure to fulfill the work
requirement in paragraph (a)(1) of this section.
* * * * *
(8) The State agency shall inform all ABAWDs of the ABAWD work
requirement and time limit both in writing and orally in accordance
with Sec. 273.7(c)(1)(ii) and (iii).
* * * * *
Dated: December 21, 2020.
Sonny Perdue,
Secretary, United States Department of Agriculture.
Appendix
Note: This appendix will not be published in the Code of
Regulations.
Regulatory Impact Analysis
7 CFR part 271 and 273: Employment and Training Opportunities in
the Supplemental Nutrition Assistance Program.
[FR Doc. 2020-28610 Filed 1-4-21; 8:45 am]
BILLING CODE 3410-30-P