1910141 Department of Human Services Notice of Proposed Rulemaking for Temporary Assistance for Needy Families Sanction Policy

DEPARTMENT OF HUMAN SERVICES

 

NOTICE OF 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)(2011 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 has revised the original proposed rulemaking to reflect the comments received.  Because the revisions represent substantial alterations, DHS is republishing the rules as 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) (2011 Repl.).  In addition, in accordance with section 205(c) of the Public Assistance Act, these proposed rules are being transmitted to the Council of the District of Columbia.  DHS also gives notice of its intent to take final rulemaking action to adopt these regulations and the final rules may not become effective until the expiration of the forty-five (45) day period of Council review or upon approval by Council resolution, 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’ goal to meet the needs of TANF customers and help them achieve self-sufficiency.   As such, DHS shall make reasonable efforts to ensure that customers have the resources they need to succeed.  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.  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, the District also adopted a third funding source, with all local dollars, which is not subject to federal reporting and therefore not countable towards the District’s work participation rate.

 

Over time, the proportion of customers 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) 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 entire 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. 

 

The public comment period for the Friday, August 19, 2011, publication of the initial proposed rulemaking officially ended on September 19, 2011.  DHS held a meeting with concerned public persons and stakeholders in September 2011 to discuss the comments DHS had received.  DHS wishes to thank all of the commenters for their thoughtful and detailed comments on the proposed rules.  DHS carefully reviewed and considered each comment.  In the following introductory section to the revised proposed rules, DHS addresses each provision and the comments received to the Friday, August 19, 2011, publication.

 

Subsection 5812.1 

 

Federal TANF policy and District law requires work-eligible single adults receiving TANF assistance to participate in work activities for at least twenty (20) hours per week if they have a child over one (1) but under six (6) years old, and thirty (30) hours per week if they have a child six (6) years or older.  See 42 U.S.C. §§ 601, et seq., D.C. Official Code § 4-205.19b (2008 Repl. & 2011 Supp.).  In two-parent families, there is a collective participation requirement of fifty-five (55) hours per week, if they receive subsidized child care; and thirty (35) hours per week if there is no subsidized child care.  DHS established a general rule for when a TANF graduated sanction can be imposed for failure to comply with work participation requirements or failure to comply with the IRP.

 

Specifically, subsection 5812.1 as published reads:

 

“A non-exempt TANF customer (Customer) who, without good cause, fails to comply with his or her negotiated TANF Individual Responsibility Plan (IRP) as approved by the Director or his or her designee, or otherwise fails to meet his or her work requirements as set forth in D.C. Official Code § 4-205.19b (2008 Repl.; 2011 Supp.) and D.C. Official Code § 4-205.19d (2008 Repl.; 2011 Supp.), shall be subject to sanctions by DHS.”

 

Public Comment No. 1: Remove the language "or otherwise fails to meet his or her work requirement as set forth in DC Official Code," making it clear to customers that they will be allowed to negotiate an IRP and develop a plan based on his or her interests and needs before a sanction would be imposed.

 

DHS Response: Federal rules provide States significant latitude to sanction TANF customers who fail to meet work participation requirements.  Under District law, a customer must comply with his or her IRP, or meet his or her work requirements.  DHS will adopt the recommendation to remove “or otherwise fails to meet” and will restate it as “IRP or work participation requirements.”  DHS believes that a customer may need the flexibility of this provision.  This flexibility is important to begin fostering accountability and independence on the part of the customer, akin to the requirements encountered during employment.  Customers should not be dependent purely upon the agency to fill every hour with activities.  It is incumbent upon the TANF customer to take personal responsibility and find part-time work, education, volunteer experiences, or work experiences to fill the number of hours to comply with the law.  This policy will be explained and reinforced in the TANF orientation and the TANF Employment Program guide.

 

Public Comment No. 2:  Change "shall" to "may" in the last line of this section to clarify that DHS has the authority and discretion to impose or not to impose a sanction depending on the specific circumstances.

 

DHS Response:  DHS believes that the commenter’s concern is addressed in the qualifying phrase “without good cause.”  Additionally, a customer will be given the opportunity to avoid a sanction requested by the customer’s Provider.  Upon receipt of a sanction request from a Provider, DHS will review the request before imposing the sanction.  This review shall consist of an analysis of the customer’s eligibility record to determine whether there is evidence of an exemption,  and a review of the customer’s participation records and case management notes to ensure that the Provider has completed all the steps specified in § 5812.3 and § 5812.4 prior to requesting the sanction.  DHS will not overturn a sanction request unless DHS’ analysis indicates an erroneous sanction request, or the customer’s Provider requests the withdrawal of the request prior to the imposition of the sanction.  As specified in § 5812.4, the Provider will notify the customer of a sanction request and this notification will set out the steps the customer can take to avoid a sanction.  These steps are set out in § 5812.5.  Consequently, DHS believes that the use of “shall” in § 5812.1 is appropriate.

 

Subsection 5812.2

 

Public Comment No. 3: Subsections 5812.1 through § 5812.3 indicate that a customer is subject to a sanction after falling out of compliance with his or her IRP or work requirements. The rule would make a family subject to sanctions even if the level of non-compliance is minimal.  A customer who meets her work requirements fully for three (3) weeks and then falls a few hours short in the final week would be subject to sanction under the proposed rule.  During discussions DHS conducted with advocates, examples such as illness, child care, appointment cancellations, or reduced work hours were provided as some of the reasons a customer may not meet the required hours or objectives in the plan.  The commenter also suggests that a “substantial compliance” standard be used, which can be defined by multiple months of partial non-compliance.

 

DHS Response: These and other reasons provided by the commenter as to why a customer may have fallen short of his or her participation requirement or fails to comply with his or her IRP are captured by the good cause reasons outlined in 29 DCMR § 5810, or exemptions outlined in 29 DCMR § 5809.  Additionally, a Provider can only request a sanction after completing the steps specified in § 5812.3 and § 5812.4, which includes at least three (3) attempts to contact the customer, notifying the customer of the sanction request, and documenting the steps that the Provider took to help the customer comply with § 5812.1.  Given the mandatory efforts required of a Provider before a sanction request can be made and because of the “good cause” and exemption provisions, DHS does not believe that a “substantial compliance” standard is necessary. 

 

Subsection 5812.3

 

Public Comment No. 4: Recommendation that DHS create two (2) tiers of Level One sanctions to create a more meaningful ''wake-up call" for customers who need to understand the importance of compliance with an IRP.

 

DHS Response: DHS agrees that in the past, customers often did not react to mail from DHS, which resulted in termination of benefits or imposition of sanctions.  The new graduated sanction policy will only apply to those customers who have completed the DHS orientation and assessment, except for those customers who are currently under a sanction and repeatedly fail to respond to DHS outreach to come in and obtain the orientation, assessment, and new IRP as provided in § 5812.11.  Thus, customers will be fully informed about the new policy, the importance of engaging with their Provider, and the consequences for failing to comply with their IRP.  Additionally, the Provider shall complete a number of steps as detailed in § 5812.3 before the Provider requests a sanction.  Based upon this analysis, DHS does not believe there is a need for two (2) tiers of a Level One sanction.

 

Public Comment No. 5: Recommendation that DHS create a new partial sanction equal to fifty percent (50%) of the family’s full pre-sanction benefits.

 

DHS Response: DHS reviewed numerous graduated sanction policies and scenarios designed to stimulate customer engagement and compliance.  DHS also weighed the cost and benefits of each of these policies and scenarios.  Based on the totality of the analysis, DHS believes that the proposed sanction policy strikes the best balance.

 

Public Comment No. 6:  Recommendation that DHS consider reducing the Level Three sanction from six (6) months to three (3) months.

 

DHS Response: As currently formulated, the graduated sanction policy provides significant opportunity for customers to avoid progressing to a Level Three sanction.  For example, customers who meet the requirements of § 5812.1 continuously for twelve (12) months start with a clean slate regardless of the last sanction level.  Given that customers under a Level Three sanction also start from a clean slate once the six (6) month sanction period lapses, DHS believes that the Level Three sanction must have enough impact to stimulate the customer’s compliance with his or her IRP once the customer re-applies for TANF benefits. 

 

Public Comment No. 7: Recommendation that DHS clarify when a customer can renegotiate his or her IRP.  The commenter believes that this section is not clear as to whether: (1) all customers will be informed of this choice and will be given the right to request a renegotiation; (2) the opportunity to renegotiate an IRP also applies to customers in Level Two and Three sanctions; (3) the IRP can be renegotiated before or after the imposition of the sanction or both; and (4) the renegotiation of the IRP after a sanction has been imposed nullifies or cures the sanction.  Additionally, the commenter recommends that: (1) a TANF customer should be able to seek a new IRP based on evidence that a modified IRP would better match his or her needs, before or after any sanction (Level One, Two, or Three); (2) TANF customers should be notified of the right to present such evidence prior to imposition of a sanction; (3) if an IRP is renegotiated prior to the imposition of a sanction, and if the modification addresses a factor that contributed to non-compliance, then the sanction shall be nullified and not considered when determining the level of any future sanction; (4) if an IRP is renegotiated after a sanction is imposed, based on an ongoing condition that could have been included in a customer's initial IRP, a customer's first request for renegotiation shall nullify the sanction; (5) for any subsequent renegotiations, the IRP modification shall not nullify the sanction, although it shall be considered as re-establishing compliance for a Level One sanction under § 5812.5; and (5) if an IRP is renegotiated after a sanction is imposed based on a condition that arose since development of the IRP and that condition contributed to non-compliance, then the sanction shall be terminated and nullified.

 

DHS Response:  As detailed in § 5812.4(e), the customer may request to renegotiate his or her plan one (1) time before a sanction becomes effective, provided that the renegotiated plan addresses the factor that led the Provider to request a sanction for the customer.  Therefore, regardless of which level the customer is at risk of being sanctioned, the customer will be afforded the opportunity to renegotiate his or her plan.  If the Provider deems that the renegotiated plan does indeed address the factor that made the customer non-compliant, then the Provider may withdraw the sanction request.  

 

Subsection 5812.5

 

Public Comment No. 8: Recommendation that DHS reinstate benefits for a Level One sanction in the same month that families come back into compliance, if that occurs within the first half of the month.

 

DHS Response: Retroactive application of benefits negates the penalty and makes it as if the customer was never sanctioned.  DHS believes that a valid sanction should not be negated by future compliance; otherwise the customer will not realize the consequences for non-performance.  As with any employer, performance is tantamount to the success of sustainable employment.  The sanction is the last resort available after repeated attempts to engage the customer and assist the customer with achieving his or her goals.

 

Subsection 5812.9

 

Public Comment No. 9: Recommendation that additional provisions be added to the fair hearing provisions.  The commenter recommends adding violations of the DC Language Access Act, the ADA or any other applicable D.C. or federal law. The commenter believes the rules must allow TANF customers to request fair hearings to determine whether sanctions were improper because the customer is exempt from work requirements due to a disability, domestic violence, or some other reason; DHS or a DHS vendor failed to perform the required steps before referring a customer for sanction; any non-compliance was insubstantial; or the customer should have been allowed to renegotiate his or her IRP.  In addition, the commenter recommends that the word “written” be removed from paragraphs (a)(1) and (a)(3) to allow other forms of documentation.

 

DHS Response: Violations of the D.C. Language Access Act and the Americans with Disabilities Act (ADA) are under the jurisdiction of applicable federal agencies, and the District of Columbia Office of Human Rights (OHR), which addresses complaints of unlawful discrimination including Language Access and the ADA (D.C. Official Code §§ 2-1411.01, et seq. (code edition year)).  Violations of these provisions (Language Access and ADA) are not a basis of a fair hearing request pursuant to D.C. Official Code §§ 4-210.01, et seq. (2008 Repl.).  A right to file a human rights complaint is independent of the customer’s fair hearing rights.  Accordingly, human rights complaints must be addressed by OHR or applicable federal agencies, and not through the fair hearings process.  DHS agrees, however, that the word “written” should be removed from paragraphs (a)(1) and (a)(3), and will change it to “hard copy”.  The purpose is to avoid fraud and to comply with the one hundred (100%) work verification requirements required for A-133 Single Audit purposes.  For example, if an employer contacts the Provider to verify employment, the Provider shall ask the employer to send a note on letter head memorializing the discussion.

 

 

Section 5812.10

 

Public Comment No. 10: Recommendation to consider an alternative to termination such as retaining TANF eligibility by zeroing out benefits for the specified time-period rather than terminating the benefits and having the customer reapply.  The commenter expressed concern that the customer may lose eligibility for childcare or participation in education or training in TANF programs.

 

DHS Response:  If the customer is actively engaged in education, training, or work, as part of his or her IRP or work participation, and informs DHS within the guidelines set forth in § 5812.4, a sanction will not be imposed.  Additionally, the customer is not eligible for child care subsidy if he or she is not actively employed, engaged with an employment program, or education or job training program consistent with the requirements of the Day Care Policy Act of 1979, as amended (D.C. Law 3-16, D.C. Official Code § 4-404.01 (2008 Repl.)).  DHS will refer the customer to the District of Columbia Department of Employment Services’ One Stop locations, which will enable the sanctioned customer to maintain eligibility for child subsidy, provided the requirements are met.

 

Public Comment No. 11: Recommendation to outline the minimum steps required before a sanction can be proposed by the Provider.

 

DHS Response: DHS agrees with this recommendation, and the rule is enumerated in the revised § 5812.3.

 

Chapter 58, TEMPORARY ASSISTANCE FOR NEEDY FAMILIES, of Title 29, PUBLIC WELFARE, of the DCMR is amended as follows:

 

Section 5812 is amended as follows:

 

5812                SANCTIONS

 

5812.1             A non-exempt TANF customer (Customer) must 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 (2008 Repl. & 2011 Supp.), and D.C. Official Code § 4-205.19d (2008 Repl. & 2011 Supp.). DHS shall impose a graduated sanction on Customers who fail to meet this requirement for one (1) calendar month, without good cause.

 

5812.2             The graduated system of sanctions consists of the following three (3) levels:

 

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

 

(b)        Level Two: a one (1) month full family sanction is applied when a Customer fails to meet the requirements of subsection 5812.1 a second time within twelve (12) months of the effective date of the Level One sanction; and

 

(c)        Level Three: a six (6) month full family sanction is applied when a Customer fails to meet the requirements of subsection 5812.1 a third time within twelve (12) months of the effective date of the Level One sanction.

 

5812.3             Before imposing a sanction, a TANF Service Provider (Provider) shall:

 

(a)        Make at least three (3) attempts to contact the customer at his or her last known address or phone number;

 

(b)        Document the steps that the Provider took to help the customer meet the requirements of subsection 5812.1; and

 

(c)        Notify the customer that he or she is at risk of sanction, in accordance with subsection 5812.4.

 

5812.4             When a Customer is at risk of a sanction the Provider 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 subsection 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 and the consequences of the sanction;

 

(d)       What the customer can do to avoid the sanction, in accordance with 5812.5(b);

 

(e)        That the Customer may request to renegotiate his or her plan one (1) time before a sanction becomes effective, provided the renegotiated plan addresses a factor that prevented the customer from meeting the requirements of subsection 5812.1;

 

(f)        That the Provider is available to help the customer meet the requirements of subsection 5812.1; and

 

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

 

5812.5             A Customer can avoid a sanction, by:

 

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

 

(b)        Providing 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)        Providing 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)       Providing hard copy documentation that the Customer met the requirements of subsection 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,

 

5812.6             When a Customer fails to come into compliance with the requirements of subsection 5812.1, DHS shall provide advance written notice to the Customer that a sanction will be imposed. This notice shall be provided in accordance with D.C. Official Code § 4-205.55 (code edition year), except that the notice shall be provided no less than thirty (30) days prior to the effective date of the sanction.

 

5812.7             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 subsection 5810.3;

 

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

 

(3)               Compliance with the requirements of section 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. 

 

5812.8             The Level One sanction shall be lifted when the customer complies with the requirements of subsection 5812.1 for at least one (1) calendar month. The Level One sanction shall be lifted beginning the first day of the first month following compliance.

 

5812.9             A Customer under a Level Two or Level Three sanction shall not be eligible for TANF benefits for the duration of the sanction period.  To receive benefits following a Level Two or Level Three sanction period, the Customer shall complete an application, orientation and assessment, and negotiate a new IRP.

 

5812.10           When a Customer’s TANF benefits under a Level One sanction is terminated for any reason, and the Customer subsequently completes a new application for TANF benefits, the Customer shall remain under the Level One sanction until he or she is compliant. If the Customer continues to be non-compliant with their IRP, in accordance with subsection 5812.1, the Customer shall progress to a Level Two sanction, in accordance with subsection 5812.2.

 

5812.11           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 ninety (90) days of the date of the notice, shall be subject to a Level Two sanction. 

 

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 § 5810.33.

 

“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 are excluded from the assistance unit.

 

 

 

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 email to [e-mail].