Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

In the matter of the amendment of ARM 37.78.102, 37.78.430, 37.78.505, and 37.78.812, pertaining to TANF policy revisions

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

TO: All Concerned Persons

1. On November 17, 2011, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed amendments of the above-stated rules.

2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on November 9, 2011, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail [email protected].

3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

37.78.102 TANF: FEDERAL REGULATIONS ADOPTED BY REFERENCE

(1) remains the same.

(2) The "Montana TANF Cash Assistance Manual" dated ~~July 1, 2011~~ January 1, 2012 is adopted and incorporated by this reference. A copy of the Montana TANF Cash Assistance Manual is available for public viewing at each local Office of Public Assistance, and at the Department of Public Health and Human Services, Human and Community Services Division, 111 N. Jackson St., 5th Floor, P.O. Box 202925, Helena, MT 59620-2925. Manual updates are also available on the department's web site at www.dphhs.mt.gov.

AUTH: 53-4-212, MCA

IMP: 53-4-211, 53-4-601, MCA

37.78.430 TANF: UNDERPAYMENTS AND OVERPAYMENTS (1) through (3)(c)(ii) remain the same.

(iii) In the case of an individual or assistance unit currently receiving assistance, if the household was determined to have committed an Intentional Program Violation (IPV) the department may recover an overpayment by reducing the current cash assistance amount by 20% or $20, whichever is higher, and retaining the sum by which the cash assistance has been reduced to repay the overpayment. At the department's option, recovery may also be made by voluntary payments by a member of the overpaid assistance unit or any other legal means available to collect a debt, including the use of offset against any monies which the state of Montana owes or may owe to a member of the filing unit.

(iii) remains the same, but is renumbered (iv).

(4) remains the same.

AUTH: 53-2-201, 53-4-212, MCA

IMP: 53-2-108, 53-2-201, 53-4-211, MCA

37.78.505 TANF: TANF CASH ASSISTANCE; INTENTIONAL PROGRAM VIOLATION AND DISQUALIFICATION HEARINGS (1) remains the same.

(2) If a TANF participant appears to have committed an IPV as defined in (1), ~~the local Office of Public Assistance (OPA)~~ the department must initiate administrative disqualification hearing (ADH) procedures to determine if the person should be disqualified from receiving cash assistance.

(3) The individual subject to the ADH must be ~~contacted in writing and~~ ~~requested to appear for a prehearing meeting at the local Office of Public Assistance. During the prehearing meeting, the individual~~ sent written notification and will be presented with the following:

(a) an explanation of the charges against the individual;

~~(b) the total amount of the overpayment and the time period for which the claim was established;~~

(4) If the individual does not sign a waiver of the right to an ADH ~~at the prehearing meeting in the local office, an~~ within ten days of the date of the written notification, ADH procedures shall be ~~scheduled~~ initiated and the individual alleged to have committed an IPV shall be sent a written notice of the hearing at least 30 days prior to the date of the hearing.

(a) through (7)(c) remain the same.

(8) After the ADH, the hearing officer shall issue a written decision to the participant and the department no later than 90 days after written notice is given to the participant of the hearing, unless the hearing has been postponed, in which case the 90-day period shall be extended for as many days as the hearing was postponed. If the written decision is adverse to the participant the decision will notify the participant of the right to appeal to the Board of Public Assistance.

(a) and (b) remain the same.

(9) If the hearing officer determines after an ADH has been held that the individual committed an IPV, the department must provide the individual with a written notice of disqualification prior to the commencement of the disqualification period. The notice must contain the following information:

(a) remains the same.

(b) the date the disqualification shall take effect; and

(c) if the individual is not currently participating in the program, notice that the period of disqualification shall be deferred until the individual applies for and is found eligible for assistance again;

~~(d)~~ (c) the amount of assistance the remaining household members, if any, will receive during the disqualification period.

(10) through (14) remain the same.

AUTH: 53-4-212, MCA

IMP: 53-2-201, 53-4-211, 53-4-601, MCA

37.78.812 TANF: PARTICIPATION CRITERIA UNDER PARENTS AS SCHOLARS PROGRAM (1) Based on current federal TANF participation rates, the department will set and allow a limited number of TANF recipients to continue postsecondary education activities under the Parents as Scholars Program if:

~~(a) the participant has completed an assessment/screening which includes 12 months of successful postsecondary school attendance as a TANF recipient;~~

~~(b) the participant's course work will lead to a degree or certificate in the approved program;~~

~~(c) the participant does not have a baccalaureate degree or a certification in a field for which a degree or certificate was previously awarded;~~

(d) the participant is enrolled full time in an approved educational program in a unit of the Montana university system as provided in 20-25-201, MCA, or any other accredited college in Montana, or enrolled online with an accredited college whose credits are transferable in their entirety to an approved educational program in Montana, or is enrolled in an accredited high school or training program approved by the department by rule;

~~(e) the participant is making satisfactory progress in accordance with the requirements of the institution the participant is attending;~~

(f) the participant has developed a comprehensive plan for the completion of the course of study and the attainment of a degree or certificate, regardless of the number of months remaining on the individual's TANF time clock;

(g) the training provides skills that will lead to gainful employment in Montana in an area where the participant lives, or the participant is willing to relocate to an area within the United States where the acquired skills will lead to gainful employment;

~~(h) the participant is cooperating with paternity and child support enforcement requirements; and~~

~~(i) the participant completes a 180-hour work activity requirement in a 12-month period that may include work study, internships, or paid employment.~~

(2) If applicants for the Parents as Scholars Program exceed the number of available openings as determined by the department, applicants will be chosen on the basis of merit determined on the basis of:

~~(a) proximity to graduation with a degree or certification;~~

~~(b) probability of the degree or certification leading to gainful employment in the state;~~

~~(c) academic history, including but not limited to grade point average and any history of academic probation;~~

~~(d) any sanctions history; and~~

~~(e) chronology of application.~~

(1) The department will allow a maximum of 25 TANF recipients to continue postsecondary education activities under the Parents as Scholars Program (PAS).

(2) Twenty-five slots will be available statewide. Slots will be awarded through an application process and regional lottery as described in the Temporary Assistance for Needy Families (TANF) policy manual, section 701-3(a). Once a slot has been awarded to a participant, the participant will be entitled to retain the slot as long as the participant continues to meet the PAS requirements outlined in (3).

(3) A TANF recipient is eligible to participate in PAS if the recipient:

(a) meets all basic eligibility requirements for TANF;

(b) is a full-time vocational training/post secondary education student enrolled in an approved education program at least 12 credit hours each semester or 30 credit hours per year, or is in an Adult Basic Education (ABE) program providing full-time enrollment leading to a General Equivalency Diploma (GED);

(d) does not have a baccalaureate degree or a certification in a field for which a degree or certificate was previously awarded;

(e) is enrolled full time in an approved educational program in a unit of the Montana university system as provided in 20-25-201, MCA, or any other accredited college in Montana, or enrolled online with an accredited college whose credits are transferable in their entirety to an approved educational program in Montana, or is enrolled in an accredited high school or training program approved by the department by rule;

(f) maintains a cumulative GPA of 2.0 on a 4.0 scale and provides verification of current GPA at the end of each semester as well as verification of registration for classes for the next semester with a minimum of 12 credits or is making satisfactory progress in accordance with the requirements of the institution the participant is attending;

(g) has developed a comprehensive plan for the completion of the course of study and the attainment of a degree or certificate, regardless of the number of months remaining on the individual's TANF time clock;

(h) has successfully completed 12 months of Short Term Training while on TANF and is in good standing with the educational program; and

(i) maintains monthly face-to-face contact with the WoRC case manager and school counselor throughout the PAS participation period to ensure ongoing case management, compliance with FIA/EP requirements and satisfactory progress in educational activities outlined in the comprehensive plan.

AUTH: 53-4-212, MCA

IMP: 53-4-209, 53-4-211, 53-4-601, MCA

4. Statement of Reasonable Necessity

The Department of Public Health and Human Services (the department) is proposing amendments to ARM 37.78.102, 37.78.430, 37.78.505, and 37.78.812, pertaining to TANF policy revisions including: Parents of Scholars Program, incorporating by reference the TANF policy manual, overpayment grant reduction option, and administrative disqualification hearing procedure.

ARM 37.78.102

ARM 37.78.102 currently adopts and incorporates by reference the TANF policy manual effective July 1, 2011. The department proposes to make some revisions to this manual that will take effect on January 1, 2012. The proposed amendments to ARM 37.78.102 are necessary to incorporate into the Administrative Rules of Montana the revised versions of the policy manual and to permit all interested parties to comment on the department's policies and to offer suggested changes. It is estimated that changes to the TANF manual could affect approximately 8461 TANF recipients, which is the average of the total number of recipients between February 2011 – April 2011.

No controversy is anticipated over this change.

Fiscal impact: No fiscal impact is anticipated due to this rule change.

Following is a brief overview of the TANF manual sections with substantive changes related to the above ARM changes.

TANF 701-1 Family Investment Agreement/WoRC Employability Plan

Incorporated TANF Bulletin 56 to reflect the change in the requirement to print and renegotiate a Family Investment Agreement (FIA) with the participant at the annual redetermination. Current policy allows a participant to complete a face-to-face or phone interview to complete the annual redetermination of TANF benefits, which includes the printing and renegotiation of the FIA. By removing the requirement to print and renegotiate a FIA at redetermination, it will expedite the redetermination process when completed by phone by eliminating the additional time to mail the FIA for signature and have it returned to the OPA. The section regarding Family Investment agreement/Employability Plan ( FIA/EP) Renewal was removed from the manual.

TANF 801-2 At-Risk Interview, Plan, and Follow-up

Incorporated TANF Bulletin 58

Current policy requires that the Office of Public Assistance (OPA), County Director, conduct a separate at-risk interview with participants that are within 12 months of meeting their 60-month time limit on TANF benefits. Based on comments from the OPA and WoRC program regarding the ineffectiveness of a formal At-Risk Interview with the OPA director, and the fact that WoRC Programs are currently providing the majority of case management activities, which include discussion of TANF time clock months, it was determined that At-Risk Interviews will no longer be conducted as a separate interview by the OPA County Director. The WoRC program will continue to address participants at risk of exhausting their 60-month time limit on benefits during case management meetings.

Timeclock At-Risk reports, listing current open cases that are within 12 months of meeting their 60-month time limit on benefits, will be sent to the Office of Public Assistance County Directors, Work Readiness Component Supervisors and the TANF unit by the 10th of each month.

Section 801-2 will be removed from the manual material.

TANF 1502-1 Redetermination

Incorporated TANF Bulletin 56 to reflect the change in the requirement to print and renegotiate a Family Investment Agreement (FIA) with the participant at redetermination. Current policy allows a participant to complete a face-to-face or phone interview to complete the annual redetermination of TANF benefits, which includes the printing and renegotiation of the FIA. By removing the requirement to print and renegotiate a FIA at redetermination, it will expedite the redetermination process when completed by phone by eliminating the additional time to mail the FIA for signature and have it returned to the OPA.

ARM 37.78.430

ARM 37.78.430 has been changed to increase the rate in which an overpayment resulting from an Intentional Program Violation (IPV) may be recovered by grant reduction from the current rate of 10% or $10, whichever is higher, to 20% or $20, whichever is higher.

This policy is being changed to align the TANF policy with the Supplemental Nutrition Assistance Program (SNAP) policy regarding IPVs.

Possible controversy is anticipated over this change from participants and advocacy groups as it will reduce the TANF grant amount the client is currently receiving, if the department chooses the option of recovery by grant reduction.

Fiscal impact: No fiscal impact is anticipated due to this rule change. The department will recover an overpayment due to an IPV sooner because of the increased percentage or minimum amount, but the total recovery will be the same.

Following is a brief overview of the TANF manual sections with substantive changes related to the above ARM changes.

TANF 1504-1 Overpayments

This manual section was updated to include the change in the rate an overpayment resulting from an IPV will be recovered by grant reduction. The amount was changed from 10% or $10, whichever is higher, to 20% or $20, whichever is higher.

ARM 37.78.505

The Intentional Program Violation (IPV) and Disqualification Hearings rule has been updated to remove the requirement of an Administrative Disqualification Hearing (ADH) prehearing meeting. If a TANF participant appears to have committed an IPV, the department will now initiate the ADH procedure by sending the individual written notification of the ADH rather than conducting a prehearing meeting. This change is proposed because it is more efficient and less time-consuming for both the department's employees and the TANF participant to conduct this step by mail rather than in person. The individual will have ten days from the date of the written notification to respond before ADH procedures will be initiated. The department proposes to delete references to the offices of public assistance because the department's Quality Assurance Division (QAD) now investigates and processes IPVs, rather than the offices of public assistance.

No controversy is anticipated over this change.

Fiscal impact: No fiscal impact is anticipated due to this rule change.

ARM 37.78.812

ARM 37.78.812, Parents As Scholars (PAS), has been updated to incorporate revisions made by Senate Bill 385. This revision will allow no more than 25 eligible participants at any one time, that have exhausted the 12 months of allowable Short Term Training (STT) as an activity, to continue in a STT type of activity above and beyond the 12 months. These participants will count against the state's work participation rate.

TANF participants will need to complete an application to determine if they meet the eligibility criteria outlined in the bill. To be eligible for PAS a participant must also meet all basic eligibility requirements for TANF. The 25 slots will be awarded through an application process and regional lottery as outlined in the Temporary Assistance for Needy Families (TANF) policy manual, section 701-3 (a). Once awarded, slots will be retained as long as the participant continues to meet PAS eligibility requirements.

Federal regulations do not allow for SST as an activity beyond 12 months. Therefore, it is necessary to put these revisions of the current PAS program into the administrative rules to allow SST under state regulation.

Fiscal impact: This policy change would result in continuation of TANF benefits for up to 25 participants who under present policy would likely have their cases closed if they continued full-time education.

None of the families in the PAS program could have a household size of less than two persons. Using the monthly benefit for a family of three of $504, times 12 months, times 25 participants, the additional benefit would be $151,200 per year. The increased cash benefit would reduce the TANF block grant fund balance faster.

If a penalty is imposed for failure to meet the work participation rate, the state will be required to use MOE funds at 80% versus the current 75%. The department does not expect it will fail to meet the work participation rate.

Following is a brief overview of the TANF manual sections with substantive changes related to the above ARM changes.

TANF 701-3 (a) Parents as Scholars

This department has revised this section to reflect the revisions to the Parents As Scholars (PAS) program based on Senate Bill 385. It has also been revised to include additional eligibility criteria and the criteria for the approved PAS recipient to continue participating in the PAS program. Finally, this section has been revised to limit the number of participants to no more than 25 slots statewide and provide that slots will be awarded through a regional lottery. Approved slots can be retained during the summer months and school breaks as long as the student/participant continues to meet the PAS criteria.

5. The department intends to apply the amendments to ARM 37.78.812 retroactively to August 1, 2011, based on the provision of Senate Bill 385 (SB 385), passed by the 62nd Montana Legislature. All other amendments will be effective on January 1, 2012.

6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail [email protected], and must be received no later than 5:00 p.m., November 25, 2011.

7. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form at any rules hearing held by the department.

9. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

10. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by telephone on October 14, 2011.

/s/ Barbara B. Hoffmann /s/ Mary E. Dalton acting for

Rule Reviewer Anna Whiting Sorrell, Director

Public Health and Human Services

Certified to the Secretary of State October 17, 2011.