WSR 11-22-100

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed November 2, 2011, 9:03 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 11-17-137.

Title of Rule and Other Identifying Information: To comply with the requirements in RCW 74.08A.040 and enact rules covering at a minimum the appropriate uses of state maintenance of effort (MOE) funds and annual reports on program operations by tribal TANF programs, the department is proposing to create new rules, chapter 388-315 WAC, in TITLE 388 WAC.

WAC 388-315-1000 Tribal TANF -- Overview -- Why do we need state rules regarding tribal temporary assistance for needy families (TTANF) program and state maintenance of effort funds?, 388-315-1050 Tribal TANF -- Overview -- What is state maintenance of effort?, 388-315-1100 Tribal TANF -- Overview -- Do tribal TANF programs receive state maintenance of effort funds?, 388-315-1150 Tribal TANF -- Overview -- How does a tribal TANF program qualify to receive state maintenance of effort funding?, 388-315-2000 Tribal TANF -- State maintenance of effort requirements -- What state and federal statutes or regulations regarding state maintenance of effort apply to tribal TANF programs?, 388-315-2050 Tribal TANF -- State maintenance of effort requirements -- What are some important concepts that must be considered when tribal TANF programs spend state maintenance of effort funds?, 388-315-2100 Tribal TANF -- State maintenance of effort requirements -- What are the four purposes of the TANF program?, 388-315-2150 Tribal TANF -- State maintenance of effort requirements -- Must tribal TANF programs use state maintenance of effort funds in a manner reasonably calculated to accomplish one of the four purposes of TANF?, 388-315-2200 Tribal TANF -- State maintenance of effort requirements -- May tribal TANF programs spend state maintenance of effort funds only on eligible families?, 388-315-2250 Tribal TANF -- State maintenance of effort requirements -- What are the special requirements that tribal TANF programs must meet when they spend state maintenance of effort funds on current state or local programs that also operated in 1995?, 388-315-2300 Tribal TANF -- State maintenance of effort requirements -- Do federal match and penalty funding restrictions apply to tribal TANF programs when they spend state maintenance of effort funds?, 388-315-2350 Tribal TANF -- State maintenance of effort requirements -- May tribal TANF programs spend state maintenance of effort funds to provide assistance to Native Americans who are Canadian citizens?, 388-315-2400 Tribal TANF -- State maintenance of effort requirements -- May tribal TANF programs spend state maintenance of effort funds to provide assistance to Native Americans who exceeded their TANF time limit?, 388-315-3000 Tribal TANF -- Reporting requirements -- Is a tribal TANF program required to report program data to the department?, 388-315-3050 Tribal TANF -- Reporting requirements -- When are the reports due?, 388-315-3100 Tribal TANF -- Reporting requirements -- What kinds of information must be included in the closed report?, 388-315-3150 Tribal TANF -- Reporting requirements -- What kinds of information must be included in the caseload report?, 388-315-3200 Tribal TANF -- Reporting requirements -- What kinds of information must be included in the performance measures report?, and 388-315-3250 Tribal TANF -- Reporting requirements -- Is a tribal TANF program required to submit quarterly reports after the end of an intergovernmental TANF agreement funding period?

Hearing Location(s): Office Building 2, Auditorium, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html or by calling (360) 664-6094), on December 6, 2011, at 10:00 a.m.

Date of Intended Adoption: Not earlier than December 7, 2011.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 1115 Washington Street S.E., Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on December 6, 2011.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by November 22, 2011, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at jennisha.johnson@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: It is necessary to adopt these rules so the department and the eligible tribes within Washington state upon approval of a tribal TANF program by the secretary of the federal Department of Health and Human Services have a clear understanding of what is required.

Reasons Supporting Proposal: These amendments are necessary to comply with RCW 74.08A.040.

Statutory Authority for Adoption: RCW 74.08A.040.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of social and health services, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Mike Mowrey, P.O. Box 45857, Olympia, WA 98504-5857, (360) 725-4656.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rules do not have an economic impact on small businesses. The proposed rule making relates to requirements a tribal TANF program must follow concerning the appropriate uses of state MOE funds and annual reports on program operations by tribal TANF programs.

A cost-benefit analysis is not required under RCW 34.05.328. These amendments are exempt as allowed under RCW 34.05.328 (5)(b)(v) which states: "Rules the content of which is explicitly and specifically dictated by statute." The proposed amendments are necessary to comply with RCW 74.08A.040.

October 24, 2011

Katherine I. Vasquez

Rules Coordinator

4335.2
NEW SECTION
WAC 388-315-1000   Tribal TANF--Overview--Why do we need state rules regarding tribal temporary assistance for needy families (TTANF) program and state maintenance of effort funds?   (1) Under RCW 74.08A.040, the department of social and health services is required to adopt rules regarding state maintenance of effort and reporting requirements for tribal TANF programs.

(2) We are adopting these rules to set out procedures and processes so that everyone has an understanding of what is required.

[]


NEW SECTION
WAC 388-315-1050   Tribal TANF--Overview--What is state maintenance of effort?   State maintenance of effort is a federal TANF requirement that a state must spend at least a specified amount of state funds for benefits and services for members of needy families each year. A broad, but not unlimited, array of benefits and services for low-income families with children can count toward satisfying a state's maintenance of effort obligation.

[]


NEW SECTION
WAC 388-315-1100   Tribal TANF--Overview--Do tribal TANF programs receive state maintenance of effort funds?   Yes. Tribes may elect to operate a tribal TANF program under 45 CFR 286. Per RCW 74.08A.040, the department must transfer a fair and equitable amount of the TANF state maintenance of effort funds to eligible tribes within Washington State upon approval of a tribal TANF program by the secretary of the federal department of health and human services.

[]


NEW SECTION
WAC 388-315-1150   Tribal TANF--Overview--How does a tribal TANF program qualify to receive state maintenance of effort funding?   To qualify to receive state maintenance of effort funding, a tribal TANF program must:

(1) Have a tribal family assistance plan approved by the federal Administration for Children and Families;

(2) Complete an intergovernmental TANF agreement with the department;

(3) Complete a data share agreement with the department; and

(4) Complete an operational agreement with the department.

[]


NEW SECTION
WAC 388-315-2000   Tribal TANF--State maintenance of effort requirements--What state and federal statutes or regulations regarding state maintenance of effort apply to tribal TANF programs?   In addition to the rules found in this chapter of the Washington Administrative Code, there are many state and federal laws, rules and guidance documents which control how tribal TANF programs spend their state maintenance of effort funds. The department relies on the following noninclusive list of resources:

(1) 42 USC 601(a).

(2) 42 USC 609 (a)(7).

(3) 45 CFR 260.20.

(4) 45 CFR Part 263.

(5) 45 CFR 92.

(6) RCW 74.08A.040.

(7) OMB circulars A-87 and A-133.

(8) Federal Register, Volume 64, Number 69 pages 17816 to 17838.

(9) Federal Register, Volume 73, Number 24, pages 6774 and 6817 to 6818.

(10) Administration for Children and Families policy announcements, program instructions and information memoranda.

[]


NEW SECTION
WAC 388-315-2050   Tribal TANF--State maintenance of effort requirements--What are some important concepts that must be considered when tribal TANF programs spend state maintenance of effort funds?   When tribal TANF programs spend state maintenance of effort funds, the following concepts apply:

(1) It must support the four purposes of the TANF program, as set forth in 45 CFR 260.20.

(2) It must comply with the federal definition of assistance as provided in 45 CFR 260.31.

(3) Use of funds must meet four basic conditions before the expenditure may be considered an allowable use of funds that counts toward state maintenance of effort:

(a) The spending must be reasonably calculated to accomplish one or more of the four purposes of TANF, as provided in WAC 388-315-2150;

(b) The funds must be spent on an eligible family, as provided in WAC 388-315-2200;

(c) The program must follow special rules for funding current state or local programs that also operated in federal fiscal year 1995, as provided in WAC 388-315-2250; and,

(d) The program must stay within federal match and penalty funding restrictions for the use of state maintenance of effort funds, as provided in WAC 388-315-2300.

(4) If the tribal TANF program commingles its federal TANF funds with its state maintenance of effort funds, the program must follow federal TANF spending rules for all of the commingled funds.

[]


NEW SECTION
WAC 388-315-2100   Tribal TANF--State maintenance of effort requirements--What are the four purposes of the TANF program?   According to 45 CFR 260.20, the TANF program has the following four purposes:

(1) To provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives;

(2) To end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage;

(3) To prevent and reduce the incidence of out-of-wedlock pregnancies and establish annual numerical goals for preventing and reducing the incidence of these pregnancies; and

(4) To encourage the formation and maintenance of two-parent families.

[]


NEW SECTION
WAC 388-315-2150   Tribal TANF--State maintenance of effort requirements--Must tribal TANF programs use state maintenance of effort funds in a manner reasonably calculated to accomplish one of the four purposes of TANF?   Tribal TANF programs must use state maintenance of effort funds in a manner that is reasonably calculated to accomplish at least one of the four purposes of temporary assistance for needy families (TANF), as provided in WAC 388-315-2100. Such uses include but are not limited to:

(1) Cash assistance;

(2) Child care assistance;

(3) Educational activities designed to increase self-sufficiency, job training or work;

(4) Any other use reasonably calculated to accomplish the purposes of TANF; or

(5) Related administrative costs.

[]


NEW SECTION
WAC 388-315-2200   Tribal TANF--State maintenance of effort requirements--May tribal TANF programs spend state maintenance of effort funds only on eligible families?   (1) According to 45 CFR 263.2 (b)(2) and (3) and federal guidance, state maintenance of effort rules restrict spending to "eligible families". An eligible family:

(a) Is a financially needy family that consists, at a minimum, of a child living with a custodial parent or other adult caretaker relative, or consists of a pregnant individual.

(b) Can include anyone defined as part of a "needy family", "tribal member family" or "Indian family" in the tribal TANF program's federally approved tribal family assistance plan.

(2) When determining financial need:

(a) Financial need must be based on the family's income.

(b) At their option, tribal TANF programs can also add a resource limit.

(c) Tribal TANF programs can use different need (income/resource) levels for different types of benefits as documented in their tribal family assistance plan.

(3) Under the Deficit Reduction Act of 2005 (S. 1932), states and tribes may use state maintenance of effort funds to provide specified pro-family nonassistance benefits that meet TANF purposes #3 or #4 regardless of financial need or family composition. Pro-family benefits are the benefits that can be provided under the Healthy Marriage Promotion and Responsible Fatherhood Grants as described in Part IV-A of the Social Security Act, sections 403 (a)(2)(A)(iii) and 403 (a)(2)(C)(ii).

[]


NEW SECTION
WAC 388-315-2250   Tribal TANF--State maintenance of effort requirements--What are the special requirements that tribal TANF programs must meet when they spend state maintenance of effort funds on current state or local programs that also operated in 1995?   A tribal TANF program may be able to expend state maintenance of effort funds on a current state or local program, such as a childcare center, that also operated in federal fiscal year 1995 under certain conditions. If a tribal TANF program wishes to fund this type of program, it must notify the state before they use state maintenance of effort funds. The state will research former aid to families with dependent children rules and notify the tribal TANF program whether this is an allowable expenditure under the state maintenance of effort spending provisions in 45 CFR 263.5.

[]


NEW SECTION
WAC 388-315-2300   Tribal TANF--State maintenance of effort requirements--Do federal match and penalty funding restrictions apply to tribal TANF programs when they spend state maintenance of effort funds?   (1) Tribal TANF programs must stay within federal match and penalty funding restrictions for the use of state maintenance of effort funds. Under these federal rules, tribal TANF programs cannot spend state maintenance of effort for expenditures:

(a) Made as a condition of receiving federal funds under another program. "Another program" means any program that was not authorized under Title IV-A of the Social Security Act.

(b) Used to match federal welfare-to-work funds.

(c) Used to replace federal TANF dollars lost due to federal penalties.

(2) Tribal TANF programs may use state maintenance of effort funds to meet the Healthy Marriage Promotion and Responsible Fatherhood Grant match requirement since these programs are authorized under Title IV-A of the Social Security Act.

[]


NEW SECTION
WAC 388-315-2350   Tribal TANF--State maintenance of effort requirements--May tribal TANF programs spend state maintenance of effort funds to provide assistance to Native Americans who are Canadian citizens?   (1) A Native American who is a Canadian citizen may qualify for state maintenance of effort funded benefits if he or she meets the definition of a qualified alien as provided in 8 USC 1641. To be a qualified alien, the Native American must show evidence that she or he:

(a) Was born in Canada;

(b) Has at least fifty percent Native American blood; and

(c) Has established and maintained residence in the United States.

(2) A Native American who is a qualified alien, and who entered the United States on or after August 22, 1996, is barred from receiving federally-funded TANF benefits for five years from his or her date of entry. In the interim, the person may receive state maintenance of effort-funded benefits that have not been commingled with federal TANF funds.

[]


NEW SECTION
WAC 388-315-2400   Tribal TANF--State maintenance of effort requirements--May tribal TANF programs spend state maintenance of effort funds to provide assistance to Native Americans who exceeded their TANF time limit?   Yes. Under 45 CFR 263.2 (b)(1)(ii), tribes are authorized to spend state maintenance of effort funds to provide assistance to persons who would be eligible for TANF assistance but for the time limit on the receipt of federally funded assistance.

[]


NEW SECTION
WAC 388-315-3000   Tribal TANF--Reporting requirements--Is a tribal TANF program required to report program data to the department?   Yes. A tribal TANF program must submit quarterly reports to the department specified in the intergovernmental TANF agreement. The reports provide program data in the following areas:

(1) State maintenance of effort expenditure information;

(2) Caseload information; and

(3) Performance measures.

[]


NEW SECTION
WAC 388-315-3050   Tribal TANF--Reporting requirements--When are the reports due?   (1) A tribal TANF program must collect on a monthly basis, and submit to the department on a quarterly basis the required quarterly reports referenced in WAC 388-315-3000.

(a) For the reporting quarter, January 1st through March 31st, reports are due on May 10th.

(b) For the reporting quarter, April 1st through June 30th, reports are due on August 10th.

(c) For the reporting quarter, July 1st through September 30th, reports are due November 10th.

(d) For the reporting quarter, October 1st through December 31st, reports are due February 10th.

(2) For the required performance measures report referenced in WAC 388-315-3000(3), the department may agree to different reporting deadlines in the intergovernmental TANF agreement.

[]


NEW SECTION
WAC 388-315-3100   Tribal TANF--Reporting requirements--Is there a required format for a tribal TANF program's quarterly state maintenance of effort expenditure report?   A quarterly state maintenance of effort expenditure report from a tribal TANF program must report state maintenance of effort expenditures using a form mutually agreed upon by the tribal TANF program and the department.

[]


NEW SECTION
WAC 388-315-3150   Tribal TANF--Reporting requirements--What kinds of information must be included in the caseload report?   A quarterly caseload report from a tribal TANF program must include:

(1) The total number of cases served for each month in the quarter;

(2) The total number of child only cases served for each in the quarter;

(3) The total single parent cases served for each month in the quarter;

(4) The total two parent cases served for each month in the quarter;

(5) State maintenance of effort funds expended by the tribe in the quarter; and

(6) Total unspent state maintenance of effort funds since the start of the program.

[]


NEW SECTION
WAC 388-315-3200   Tribal TANF--Reporting requirements--What kinds of information must be included in the performance measures report?   The performance measures report from a tribal TANF program must include a minimum of four separate performance measures quantifying the success and benefits derived from a specific TANF service or program provided for clients.

Each performance measure must be measurable and consistent with the tribal TANF program's federally approved tribal family assistance plan.

[]


NEW SECTION
WAC 388-315-3250   Tribal TANF--Reporting requirements--Is a tribal TANF program required to submit quarterly reports after the end of an intergovernmental TANF agreement funding period?   A tribal TANF program must continue to abide by all terms of the intergovernmental TANF agreement regarding state maintenance of effort use and reporting requirements until all of the funds have been expended if:

(1) State maintenance of effort funds remain unspent at the conclusion or termination of the intergovernmental TANF agreement funding period; and

(2) The tribal TANF program continues to operate.

[]

Washington State Code Reviser's Office