3957520 To amend existing rules to administer the District of Columbia’s graduated TANF sanction policy.

DEPARTMENT OF HUMAN SERVICES

 

NOTICE OF THIRD PROPOSED RULEMAKING

 

The Director of the District of Columbia Department of Human Services (DHS), pursuant to authority set forth in section 205(c) of the District of Columbia Public Assistance Act of 1982 (Public Assistance Act), as amended, effective April 6, 1982 (D.C. Law 4-101; D.C. Official Code § 4-202.05(c)(2012 Supp.)), and Mayor’s Order 2011-118, dated July 14, 2011, hereby gives notice of its intent to amend chapter 58, Temporary Assistance for Needy Families (TANF), of title 29 of the District of Columbia Municipal Regulations. 

 

The District initially published proposed rules for a graduated TANF sanction policy on Friday, August 19, 2011, at 58 DCR 7544.  Public comments were received during the comment period and DHS revised the original proposed rulemaking to reflect the comments received.  DHS published the revised proposed rules on Friday, February 10, 2012, at 59 DCR 1117.  After additional public comments, DHS again revised the proposed rulemaking to reflect comments received.  Because the revisions represent substantial alterations, DHS is republishing the rules as a proposed rulemaking, in accordance with section 303(f) of the District of Columbia Administrative Procedure Act, as added by section 4 of the District of Columbia Documents Act, effective March 6, 1979 (D.C. Law 2-153; D.C. Official Code § 2-553(f) (2012 Repl.)).  In accordance with section 205(c) of the Public Assistance Act, these rules will be transmitted to the Council of the District of Columbia for a forty-five (45) day period of Council review excluding Saturdays, Sundays, legal holidays, or days of Council recess. See D.C. Official Code § 4-202.05.  DHS also gives notice of its intent to adopt these rules as final in no less than thirty (30) days and after Council approval or expiration of the forty-five (45) Council review period, whichever occurs first.

 

The purpose of the amended chapter is to amend existing rules to administer the District of Columbia’s graduated TANF sanction policy.  The proposed graduated TANF sanction policy is designed to motivate TANF customers to take a more active role in developing their TANF self-sufficiency plan or Individual Responsibility Plan (IRP), to foster customer’s accountability for the IRP, and drive compliance with the activities specified in the IRP.  TANF customers negotiate their own IRPs once they engage with a TANF Service Provider (Provider) and shall have the opportunity to renegotiate their IRPs should their Plan fall short of meeting their needs or goals.  Ultimately, it is DHS’s goal to meet the needs of TANF customers and help them achieve self-sufficiency.   As such, DHS will provide additional outreach resources to help customers at risk of a sanction to ensure that customers are provided the opportunity to complete their assessment and IRP, or to re-engage with and re-negotiate their IRP, prior to imposing a new sanction. Those customers who fail to comply with their personally negotiated TANF IRP, however, shall be subject to this graduated sanction policy. 

 

SUPPLEMENTARY INFORMATION

 

Since the passage of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, as amended (Pub. L. No. 104-193, 110 Stat. 2105; 42 U.S.C. §§ 601, et seq.), TANF State agencies have struggled to meet the fifty percent (50%) federal work participation standard and efficiently allocate the limited resources available for an ever-growing population of low income families.  In addition, PWORA imposed a sixty (60)-month limit on receipt of federal TANF benefits.  Across most states, there are two (2) sources of funding for TANF benefits—the Federal TANF grant and the local Maintenance of Effort (MOE) funding.  TANF programs funded with either source of funding are subject to federal reporting and federal participation requirements.  While strictly enforcing the federal rules for those TANF customers who met the new federal work participation rates and time limit requirements, the District adopted a third funding source, with all local dollars, which is not subject to either the federal time limit or reporting requirements.

 

Over time, the proportion of customers who failed to meet the federal participation requirements or who received TANF for over sixty (60) months grew to greater than half of the District’s work-eligible TANF population.  Currently, over six thousand (6,000) work-eligible customers have received TANF benefits for over sixty (60) months.   As a result, the District is bearing a higher percentage of the financial responsibility through local funding, and families remain in poverty and dependency.  Recognizing this broken paradigm, the District has redesigned the TANF program to more appropriately leverage District resources by reinvesting them into the program to provide more effective case management, training, and education to TANF recipients.  This graduated sanction policy is a part of the TANF Redesign and is intended not to be punitive and harsh, but rather to strike a balance in the reciprocal relationship between the TANF customer and the District government. 

 

 

Section 5812, SANCTIONS, of chapter 58, TEMPORARY ASSISTANCE FOR NEEDY FAMILIES, of title 29, PUBLIC WELFARE, of the DCMR is amended to read as follows:

 

5812                SANCTIONS

 

5812.1             A non-exempt TANF customer (Customer) is required to comply with his or her negotiated TANF Individual Responsibility Plan (IRP) as approved by the Director or his or her designee, or meet his or her work requirements, as set forth in D.C. Official Code §§ 4-205.19b and  4-205.19d (2008 Repl. & 2012 Supp.). DHS shall impose the appropriate graduated sanction on Customers who fail to meet this requirement for at least four (4) consecutive weeks, without good cause. 

 

5812.2             TANF customers are assigned to a TANF Service Provider (Provider) with whom the customer communicates with in regards to his or her efforts to work on and achieve the goals set out in their approved IRP.  Providers shall report monthly to DHS each customer’s level of participation in working on their IRP.  Providers shall report to DHS whether the customer is:

 

(a)                Fully participating;

 

(b)               Partially participating and making meaningful efforts to improve their participation;

 

(c)                Participating at consistently low levels of participation and not working in a meaningful way to improve their participation; or

 

(d)               Completely non-participating.

 

5812.3             “Non-compliance” for purposes of § 5812.1 is defined as either participating at a consistently low level of participation and not working in a meaningful way to improve his or her participation for at least eight (8) consecutive weeks or completely non-participating for at least four (4) consecutive weeks, as determined by the Department following the review required by § 5812.5.

 

5812.4             For any Customer who is at risk of non-compliance as defined in § 5812.3, the Provider shall:  

 

(a)        Reach out and make efforts to engage and support the Customer in becoming compliant by making at least three (3) attempts through at least two (2) different methods to contact the Customer at his or her last known address or phone number; and  

 

(b)        Document the steps that the Provider took to help the customer meet the requirements of § 5812.1. 

 

5812.5             When a Provider notifies DHS that a Customer has consistently low levels of participation and is not working in a meaningful way to improve his or her participation for at least eight (8) weeks or is completely non-participating for at least four (4) weeks, DHS shall conduct a review of all relevant information to determine whether there exists any known basis for an exemption or good cause reason for non-compliance.  Information to be reviewed shall include the Provider’s outreach and engagement efforts, DHS records, and other relevant records and information available to DHS. 

 

5812.6             If upon completion of the DHS review required by § 5812.5, DHS determines that a Customer is non-compliant as defined by § 5812.3 and at risk of a sanction, DHS shall send a written notice to the Customer's last known address.  The notice shall state:

 

(a)        That the Customer is non-compliant with the requirements of § 5812.1 and is at risk of a sanction;

 

(b)        The basis for non-compliance, including the specific dates and facts surrounding the Customer’s non-compliance;

 

(c)        The level of sanction that will be imposed, the date the sanction will be imposed, and the consequences of the sanction;

 

(d)       That the customer can avoid the sanction by:

(1)        Re-engaging in accordance with their IRP by participating in the activities and meeting the requirements of the IRP for four (4) consecutive weeks prior to the effective date of the sanction;

 

(2)        Re-negotiating their IRP one (1) time before the sanction becomes effective, provided the renegotiated plan addresses a factor that prevented the customer from meeting the requirements of § 5812.1; or

 

(3)        Demonstrating that the Customer is in compliance because he or she:

 

(A)             Met the requirements of § 5812.1 for at least one (1) calendar month prior to the effective date of a proposed sanction;

 

(B)              Provided hard copy documentation of a good cause reason for non-compliance due to absence, in accordance with 29 DCMR § 5810.3, to his or her Provider or the DHS Office of Work Opportunity, TANF Connections Unit, within ten (10) business days of the absence;

 

(C)       Provided hard copy documentation of an exemption, in accordance with 29 DCMR § 5809, to his or her Provider or the DHS Office of Work Opportunity, TANF Connections Unit, within ten (10) business days of the absence; or

 

(D)       Provided hard copy documentation that the Customer met the requirements of § 5812.1 during the period of non-compliance to his or her Provider or the DHS Office of Work Opportunity, TANF Connections Unit within thirty (30) calendar days after the day the work activity was completed, with the exception of pay stubs, which shall be accepted within thirty (30) days of payment;

 

(e)      That the Provider is available to help the Customer meet the requirements of § 5812.1; and

 

(f)        The name, address, phone, and fax number of the Provider and person to contact for questions.

 

5812.7             When a Customer fails to come into compliance with the requirements of § 5812.1, despite Provider outreach and engagement efforts required by § 5812.4 and the DHS notice to him or her as required by § 5812.6, DHS shall provide advance written notice to the Customer that a sanction shall be imposed. This notice shall be provided in accordance with D.C. Official Code § 4-205.55 (2008 Repl.).

 

5812.8             When a Customer fails to meet the requirements of § 5812.1, DHS shall impose a graduated system of sanctions, which consist of the following four (4) levels:

 

(a)        Level One: an individual sanction is applied when a Customer fails to meet the requirements of § 5812.1; 

 

(b)        Level Two: a fifty percent (50%) reduction in the assistance unit’s TANF benefits as determined in accordance with D.C. Official Code § 4-205.52 (2012 Supp.), is applied when a Customer fails to meet the requirements of § 5812.1 a second time;

 

(c)        Level Three: a one (1) month full family sanction is applied when a Customer fails to meet the requirements of § 5812.1 a third time.  To receive TANF benefits following a one (1) month full family sanction, a Customer must reapply for TANF benefits, complete an updated assessment, and re-negotiate their IRP; and

 

(d)       Level Four: A three (3) month full family sanction is applied if the Customer fails to meet § 5812.1 a fourth time.  To be eligible to re-apply for and receive TANF benefits following a three (3) month full family sanction, a Customer must demonstrate compliance with their IRP for four (4) consecutive weeks.  The customer may re-negotiate their IRP at any time during or following the sanction period.  Regardless of compliance, however, this level of sanction shall be in effect for a minimum of three (3) months.

 

5812.9             Before a customer is subject to any level of sanction set forth in § 5812.8, the requirements of § 5812.4, 5812.5, 5812.6 and 5812.7 must be completed.

 

5812.10           Any Customer who, after completing at least six (6) months compliance with their IRP following any level of sanction, fails to comply with § 5812.1 an additional time, shall initially be subject to the Level One sanction, as if they had not previously been sanctioned.

 

5812.11           A Customer subject to sanction shall have the right to appeal a sanction through an administrative review and a fair hearing, pursuant to D.C. Official Code §§ 4-210.01, et seq. (2008 Repl.).  The Customer has the right to appeal the sanction on the following grounds: 

               

(a)                The Customer timely submitted hard copy documentation to his or her Provider or DHS that supports:

 

(1)               A good cause reason for non-compliance in accordance with § 5810.3;

 

(2)               An exemption from work participation requirements in accordance with § 5809; or

 

(3)               Compliance with the requirements of § 5812.1 during the period of non-compliance; and

 

(4)               The Customer’s Provider or DHS did not act on or approve documentation provided;

  

(b)        The Customer has a good cause reason for failing to provide such documentation; or

           

(c)        The Provider or DHS failed to meet the due process requirements under this section. 

 

5812.12           The Level One or Level Two sanction shall be lifted when the Customer complies with the requirements of § 5812.1 for at least four (4) consecutive weeks. The Level One or Level Two sanction shall be lifted beginning the first day of the first month following compliance.

 

5812.13           A Customer under a Level Three or Level Four sanction shall not be eligible for TANF benefits for the duration of the sanction period.  To receive benefits following a Level Three or Level Four sanction period, the Customer shall complete an application, orientation, and assessment, and negotiate a revised or new IRP.  In addition, a Customer under a Level Four sanction must demonstrate compliance with his or her IRP for four (4) consecutive weeks, as set forth in § 5812.8(d).

 

5812.14           When a Customer’s TANF benefits under a Level One or Level Two sanction is terminated for any reason, and the Customer subsequently completes a new application for TANF benefits, the Customer shall receive a TANF benefit subject to the Level One or Level Two sanction, respectively, and shall be subject to the next level of sanction, if the Customer continues to be non-compliant with his or her IRP, in accordance with § 5812.2.

 

5812.15           A Customer who is sanctioned under the DHS TANF sanction policy in effect prior to the promulgation of these rules shall receive adequate notice that he or she shall be scheduled to complete an orientation and assessment, and shall be required to negotiate an IRP.  A Customer who fails to complete an orientation and assessment and fails to negotiate an IRP within sixty (60) days of the date of the notice, shall be subject to a Level Two sanction. 

 

 

 

Section 5899, DEFINITIONS, is amended as follows:

 

Subsection 5899.1 is amended by adding, in alphabetical order, the following new definitions:

 

“Full Family Sanction” - the termination of the entire cash assistance grant for a non-exempt TANF family.

 

“Good Cause” - a circumstance as defined in 29 DCMR § 5810.3.

 

“Individual Responsibility Plans (IRP)” - a written agreement developed jointly by the customer and DHS or a DHS Provider that acts as the customer’s roadmap to securing employment and becoming self-sufficient. The IRP outlines specific steps that the customer agrees and commits to take in order to address and remove barriers, and find and retain employment.

 

“Individual Sanction” - a reduction in the Customer’s TANF grant whereby the needs of the work eligible household member is excluded from the assistance unit.

 

“TANF Service Provider” – The primary case manager service provider who is providing direct services to a TANF customer in accordance with the Customer’s Individual Responsibility Plan. 

 

All persons who desire to comment on these proposed rules should submit their comments in writing to David A. Berns, Director, DHS, 64 New York Avenue, N.E., Washington, D.C. 20002, Attn: Deborah A. Carroll, Administrator, Economic Security Administration (formerly known as the Income Maintenance Administration).  All comments must be received by DHS not later than thirty (30) days after publication of this notice in the D.C. Register.  Copies of these rules and related information may be obtained by writing to the above address, by calling the DHS Economic Security Administration at [phone], or by sending an e-mail to [e-mail].