WSR 97-20-129

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Economic Services Administration)

(Public Assistance)

[Filed October 1, 1997, 10:09 a.m., effective November 1, 1997]

Date of Adoption: September 30, 1997.

Purpose: EHB 3901 (1997) and federal legislation under Public Law 104-193, Personal Responsibility and Work Opportunity Act of 1996 repealed the job opportunities and basic skills training program and replaced it with the Washington WorkFirst program. Chapter 388-310 WAC adopts the following rules for the implementation of WorkFirst: WAC 388-310-100, 388-310-200, 388-310-300, 388-310-400, 388-310-500, 388-310-600, 388-310-700, 388-310-800, 388-310-900, 388-310-1000, 388-310-1100, 388-310-1200, 388-310-1400, 388-310-1500, 388-310-1600, 388-310-1700, 388-310-1800, and 388-310-1900.

Statutory Authority for Adoption: RCW 74.08.090 and 74.04.050.

Adopted under notice filed as WSR 97-17-070 on August 18, 1997.

Changes Other than Editing from Proposed to Adopted Version: As a result of a regulatory improvement review, the Department of Social and Health Services has streamlined and simplified these rules to make them consistent with Governor Locke's and Secretary Quasim's executive orders. These rules are easier to understand, do not restate federal or state law, and the intent of the rule is more clear.

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Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 18, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Effective Date of Rule: November 1, 1997.

September 30, 1997

Jerry W. Friedman

Assistant Secretary

Economic Services Administration

WorkFirst

NEW SECTION

WAC 388-310-0100 WorkFirst--Authority and purpose. (1) The WorkFirst program is established under Title 74 RCW.

(2) The goals of WorkFirst are to:

(a) Reduce poverty by helping those receiving temporary assistance for needy families (TANF) and state family assistance (SFA) get and keep jobs;

(b) Sustain the independence of those who become employed by helping them keep jobs; and

(c) Protect children and other vulnerable residents.

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NEW SECTION

WAC 388-310-0200 WorkFirst--Components. Except as otherwise specified, the terms used in this chapter, 388-310 WAC, shall have the same meaning as applied to the TANF program, and terms defined under chapter 388-22 WAC.

WorkFirst components are:

(1) Paid employment, either:

(a) Unsubsidized, including self-employment; or

(b) Subsidized and includes on-the-job training, work-study, and wage subsidy programs.

(2) Work experience;

(3) Community service;

(4) Job search;

(5) Vocational educational training;

(6) Basic education activities;

(7) Post-employment services which include employment retention and career development services.

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NEW SECTION

WAC 388-310-0300 WorkFirst--Participation exemptions. (1) All TANF and state family assistance (SFA) recipients who are sixteen years of age and older and all custodial parents are required to participate in WorkFirst unless exempted under subsection (2)(a) of this section.

(2) A person is exempt from WorkFirst participation requirements if:

(a) The person is needed in the home to personally provide care for a child under twelve months of age.

(b) The person may use this exempt status for a total of twelve months during the person's sixty-month lifetime limit for assistance.

(3) Persons who are exempt may volunteer to participate and will not be subject to sanction for subsequent refusal to participate if still eligible for the exemption.

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NEW SECTION

WAC 388-310-0400 WorkFirst--Participation requirements. (1) Participants are required to participate in job search as the first WorkFirst activity unless temporarily deferred. The department may defer a participant from immediate job search if the participant is:

(a) Working twenty or more hours a week;

(b) Under the age of eighteen and has not completed high school or GED, or is under the age of twenty and is currently attending high school, or its equivalent full-time; or

(c) Experiencing personal or family circumstances which prevents the person's immediate participation in job search.

(2) Participants who are temporarily deferred must participate as part of their individual responsibility plan in an evaluation of their employability from the department.

(3) The department may sanction a person who is nonexempt and who refuses to participate in the employability evaluation under WAC 388-310-0600.

(4) Persons approved by the department or a tribal JOBS or tribal native employment works (NEW) program for post-secondary education or training program prior to the effective date of this chapter will be permitted to continue in the program under WorkFirst until June 30, 1998.

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NEW SECTION

WAC 388-310-0500 WorkFirst--Job search. (1) The purpose of job search is to provide the participant with the opportunity to learn and use skills and abilities needed to find and keep employment. Job search activities include:

(a) Classroom instruction on job finding techniques and employer expectations;

(b) Structured, consistent, and monitored efforts of the person to discover job openings and apply for available or potentially available employment; and

(c) Self-directed efforts of the person to find and obtain employment.

(2) A participant must meet the published standards of job search participation established in each region or community service office or tribal work program.

(3) A person's participation in job search must be of a quality and frequency that would clearly indicate that the individual is making sincere efforts to immediately obtain any employment.

(4) Participants may participate in pre-employment training as an activity equivalent to seeking employment. Pre-employment training is job skills training which has a prior commitment from an employer to hire the trainee immediately upon completion of the training, at an hourly wage greater than the local entry level wage.

(5) The department may not require a participant to participate in job search for more than twelve weeks without evaluating the person's employability under WAC 388-310-0600.

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NEW SECTION

WAC 388-310-0600 WorkFirst--Evaluation of employability. (1) A participant's employability will be evaluated by the department when:

(a) The person has not obtained paid, unsubsidized employment at the conclusion of job search; or

(b) The person was not referred for immediate job search.

(2) The purpose of the employability evaluation process is to determine:

(a) The reasons why a person is unable to find work in the local labor market; and

(b) Which WorkFirst components, support services, or child care services are needed by the participant to become employed in the shortest time possible.

(3) The evaluation will be focused on factors related to the person's ability to find and retain employment in the local labor market.

(4) Information gathered in the evaluation will be the basis for modifying the participant's individual responsibility plan.

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NEW SECTION

WAC 388-310-0700 WorkFirst--Individual responsibility plan. (1) The purpose of the individual responsibility plan is to set forth:

(a) The participant's responsibility to participate in the WorkFirst components as required;

(b) The services the department will provide to the person to enable the person to participate.

(2) The department and the participant will work together in the development and decision-making process for component assignment. If needed, the department may assign the component which will provide the person with the job search, work experience, job skills, substance abuse assessment and treatment, family counseling, or family violence counseling or housing search, acquisition, and stabilization assistance as necessary to be employed in the shortest possible time.

(3) The plan includes the following:

(a) The WorkFirst component, in which participation is required, for what period of time and for how many hours a week;

(b) Any specific requirements relating to participation in the component;

(c) The services the department has determined are necessary for the person to participate in the component which may include provision of direct component cost funding, support services and child care subsidies.

(d) The participant's acknowledgement of their obligations to become and remain employed as quickly as possible.

(4) The department will review the elements in a participant's individual responsibility plan as necessary to ensure the plan continues to meet the person's employability needs.

(5) The participant will sign and receive a copy of their individual responsibility plan at the time the plan is developed and whenever the plan is modified.

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NEW SECTION

WAC 388-310-0800 WorkFirst--Support service and direct component cost funding. (1) The purpose of support service and direct component cost funding is to provide participants access to necessary goods or services which cannot be paid for by another funding source.

(2) The department or its agent will fund support services when:

(a) Determined necessary by the department or its agent;

(b) Denial would prevent participation in the required component; and

(c) It is within available funds.

(3) Support services which may be funded include:

(a) Employment related needs such as work clothing or uniforms, tools, equipment, relocation expenses, or fees;

(b) Transportation costs such as mileage reimbursement, public transportation vouchers, and car repair;

(c) Professional services such as certification or diagnostic testing, counseling or medical examinations or services;

(d) Personal needs such as clothing appropriate for job search or other component activities; and

(e) Special needs such as accommodations for employment.

(4) The department will provide support services and direct component cost funding to support components approved prior to the effective date of this chapter until June 30, 1998 if the participant is making satisfactory progress toward completion of the activity.

(5) WorkFirst participants are eligible for child care subsidy payments under chapter 388-290 WAC.

(6) No funds available to carry out the WorkFirst program may be used to assist, promote, or deter religious activity.

(7) The department may establish maximum funding limits for support services.

(8) The department may provide funding for direct component costs for vocational education activities when the participant:

(a) Is in an approved component as stated on the individual responsibility plan; and

(b) Does not qualify for sufficient student financial aid to meet the cost.

(9) Support services may be identified and provided in order to address specific needs American Indians may have due to location or employment needs.

(10) If the person is not participating as required they will lose eligibility for direct component costs and support services.

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NEW SECTION

WAC 388-310-0900 WorkFirst--Basic education. (1) Basic education is high school completion and classes to prepare for and testing to acquire GED certification. It may include adult basic education (ABE) or English as a second language (ESL) training if:

(a) The ABE or ESL is needed by the person to meet the current standards of the local labor market; and

(b) The activity is combined with paid or unpaid employment or job search.

(2) The department may require a nonexempt custodial parent eighteen and nineteen years of age who lacks a high school diploma or GED certification to participate in basic education if such education is needed by the person to meet the current standards of the local labor market.

(3) Nonexempt participants twenty years of age and older may participate in basic education activities but must also participate in paid or unpaid employment or job search for a minimum of twenty hours a week in addition to the basic education.

(4) The department may require sixteen and seventeen year old TANF and SFA recipients to be in high school or GED certification programs.

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NEW SECTION

WAC 388-310-1000 WorkFirst--Vocational education. (1) Vocational education is training in a specific occupation provided by a private college, technical school or community college licensed, authorized or certified by the state, or provided by a certified tribal college. It may not exceed twelve months in length with respect to any individual. It also includes job skills training in specific skills directly related to employment, and entrepreneurial training, offered through community-based organizations, businesses and tribal governments.

(2) The department may include vocational education in the individual responsibility plan when the person:

(a) Is employed twenty or more hours a week in subsidized or unsubsidized employment; or

(b) Lacks job skills presently in demand for entry level jobs in the local labor market and vocational education can provide such skills; and

(c) Would not be able to acquire the skills needed to obtain employment though available openings in:

(i) Work experience under WAC 388-310-1100; or

(ii) On-the-job training under WAC 388-300-1200.

(3) A nonexempt TANF/SFA recipient may participate in vocational education or other post-secondary education or training activities not included on their individual responsibility plan on their own if the person is meeting WorkFirst hourly participation requirements.

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NEW SECTION

WAC 388-310-1100 WorkFirst--Work experience. (1) Work experience (WEX) is unpaid work with a private nonprofit organization, federal, state, local or tribal government or district. Entities providing WEX unpaid employment positions to WorkFirst participants must be in compliance with all applicable state and federal health and safety standards.

(2) The purpose of WEX is to provide the participant with instruction in essential work practices and to practice or expand work skills.

(3) Participant may be required to conduct a self-directed job search.

(4) Participants must accept offered paid employment while participating in WEX.

(5) A person's assignment to a specific WEX activity in excess of six months requires a department review. The review will determine if the person requires more time to gain the skills and abilities established as the desired outcome of the WEX assignment.

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NEW SECTION

WAC 388-310-1200 WorkFirst--On-the-job training. (1) On-the-job training (OJT) is skills training provided by an employer at the employer's place of business. It may include some classroom training release time.

(2) A participant may be eligible for OJT employment if:

(a) The person lacks skills which are in demand in the local labor market; and

(b) There are employers in the area able to provide the training.

(3) An employer providing OJT may be reimbursed for up to fifty percent of the total gross wages for regular hours of work and pre-approved release time for training.

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NEW SECTION

WAC 388-310-1400 WorkFirst--Community service program. (1) Community service is:

(a) Unpaid work performed for a charitable nonprofit organization, federal, state, local, or tribal government or district such as the work performed by volunteer workers; or

(b) An activity approved by the department which benefits the person, the person's family, or the person's community or tribe. These activities may include traditional activities that perpetuate tribal culture and customs.

(2) Activities which may be approved by the department under subsection (1)(b) of this section as part of the individual responsibility plan include:

(a) Caring for a disabled family member;

(b) Nonparental caretaker relative over age fifty caring for a child;

(c) Provision of child care for a WorkFirst participant by a WorkFirst participant;

(d) Active participation in a drug or alcohol assessment or treatment program certified or contracted through chapter 70.96A RCW;

(e) Specialized services as required by the participant to become employable or retain employment such as family violence counseling or active participation in a drug or alcohol assessment or treatment program certified or contracted through chapter 70.96A RCW.

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NEW SECTION

WAC 388-310-1500 WorkFirst--Employment conditions. (1) Participants will not be required to accept paid or unpaid employment or engage in an activity in which an employer-employee relationship exists which:

(a) Is not covered by industrial insurance under Title 51 RCW, unless the employee is employed by a tribal government or a tribal private, for-profit business;

(b) Is available because of a labor dispute;

(c) Has working hours or other conditions which interfere with the participant's bona fide religious beliefs or observations;

(d) Involves conditions which are in violation of federal, state or tribal health and safety standards;

(e) Has unreasonable work demands or conditions, such as working without getting paid on schedule with regard to paid work; or

(f) Participants will not be required to participate in unpaid work components for more hours than would equal the family's TANF/SFA grant divided by state or federal minimum wage, whichever is higher. For two-parent families in which both parents are nonexempt, the combined hours of required participation in unpaid work may not exceed the family's TANF/SFA grant divided by the higher of the state or federal minimum wage.

(2) Participants will not be required to accept paid employment when the conditions of employment or the employer:

(a) Pays less than the federal, state, or tribe minimum wage, whichever is higher;

(b) Does not provide unemployment compensation coverage under Title 50 RCW, unless the employee is employed by a tribal government, tribal private for-profit business or the employee is exempt under section 7873 of the Internal Revenue Code because the person is a treaty fishing rights related worker;

(c) Requires the person to resign from or refrain from joining a legitimate labor organization; or

(d) Does not provide benefits to participants equal to those provided to other similarly employed workers.

(3) Nothing contained herein shall be in violation of federal or tribal employment laws.

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NEW SECTION

WAC 388-310-1600 WorkFirst--Determination of reasons for nonparticipation. (1) The following actions will be considered failure to participate in WorkFirst requirements:

(a) Refusal of a bona fide offer of employment;

(b) Failure to fulfill participation requirements of any components on the person's individual responsibility plan including not participating in:

(i) Drug and/or alcohol assessment;

(ii) Drug and/or alcohol treatment programs when assessed and determined as drug and/or alcohol dependent by a program certified and contracted through chapter 70.96A RCW;

(c) Failure to provide information requested by the department necessary for the development of the individual responsibility plan; or

(d) Not appearing for one or more appointments scheduled by the department or its agent.

(2) When a participant fails to participate in WorkFirst:

(a) The participants will have the opportunity to explain their nonparticipation; and

(b) The department will determine the adequacy of the reasons for nonparticipation. The department may make a determination based on available information if the participant does not provide information as requested.

(3) The department will determine that failure to participate is refusal, unless the participant provides evidence the nonparticipation is based on an inability to participate such as:

(a) Urgent personal or family circumstances interfering with participation which include but are not limited to:

(i) Threatened or actual family violence issues;

(ii) Eviction or immediate legal problems;

(iii) Injury or illness of the participant or of a family member which requires the presence of the participant; or

(iv) Death of a significant person in the participant's life.

(b) Breakdown in support services necessary for the person to participate and the person had no readily available alternative;

(c) The participant is unable to locate formal or informal child care for a child under the age of twelve years of whom they personally provide care and the department fails to provide such care;

(d) The participant is unable to locate other care services for an incapacitated individual living in the same home as a dependent child and the department fails to provide such care;

(e) Determination by a licensed health professional that a physical, mental, or emotional condition is interfering with the required participation; or

(f) The person did not receive a notice of appointment or program requirement.

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NEW SECTION

WAC 388-310-1700 WorkFirst--Sanctions. (1) Refusal to participate will result in sanction. (2) Sanction for refusing to participate will affect the family's TANF/SFA grant as follows:

(a) For the first month a person is sanctioned the family's TANF/SFA grant amount (less any income deductions) will be reduced by the participant's share.

(b) For second and subsequent months of continuous sanction status a protective payee will be established for reduced grant amount established under subsection (2)(a) of this section.

(c) For the third and subsequent months of continuous sanctions status the family's grant (less any income deductions) will be reduced by the amount established under subsection (2)(a) of this section or by forty percent whichever is higher. The protective payee will continue.

(3) The department will restore the full TANF/SFA grant amount retroactive to the day the participant begins or resumes participation in the component specified on the person's individual responsibility plan when the person meets participation requirements for the component for a minimum of two weeks.

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NEW SECTION

WAC 388-310-1800 WorkFirst--Displacement of regular employees. (1) A person is not required to participate in subsidized employment or unpaid work activities which:

(a) Result in the displacement of any currently employed worker including partial displacement, such as reduction in hours of overtime or nonovertime work, reduction in wages, or employment benefits;

(b) Impair existing contracts for services or collective bargaining agreements;

(c) Result in the employment or assignment of a participant or the filling of a position when:

(i) Any other person is on layoff from the same or a substantially equivalent job within the same organizational unit; or

(ii) An employer has created a vacancy for the purpose of hiring a WorkFirst participant by terminating any regular employee or otherwise reduced its workforce.

(d) Infringe on promotional opportunities of any currently employed person.

(2) The department will terminate wage subsidy program or OJT payments to an employer if the employer's worksite or operation becomes involved in a strike, lockout, or bona fide labor dispute.

(3) When a wage subsidy program or OJT agreement has been terminated and payment to the employer discontinued due to displacement of a regular employee, the WorkFirst participant's continued employment with that employer is at the sole discretion of the person and the employer.

(4) A regular employee (or the employee's representative) of an employer which has hired a WorkFirst participant into a subsidized or unpaid work activity who believes the participant's work activity violates any of the provisions under this section has the right to:

(a) A grievance procedure under WAC 388-200-1100; and

(b) A fair hearing under chapter 388-08 WAC.

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NEW SECTION

WAC 388-310-1900 WorkFirst--Services for American Indian tribal members and other American Indians. (1) The department will refer American Indian TANF applicants and recipients to the person's tribe, according to populations and service area(s) specified by a tribal government for comparable WorkFirst services when:

(a) The tribal government operates a federally-approved Tribal TANF program; and

(b) The person is included in the population and service area identified by the tribal government in the plan.

(2) All other American Indian TANF recipients have equitable access to WorkFirst program components and services under this chapter.