WSR 97-17-070

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Economic Services Administration)

(Public Assistance)

[Filed August 18, 1997, 4:00 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-14-046.

Title of Rule: Chapter 388-310 WAC, WorkFirst program.

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3901 (1997) and federal legislation under Public Law 104-193, Personal Responsibility and Work Opportunity Act of 1996 repealed the job opportunities and basic skills training program and replaced it with the Washington WorkFirst program.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 provides rules for the operation of the WorkFirst program.

Statutory Authority for Adoption: RCW 74.08.090 and 74.04.050.

Statute Being Implemented: Chapter 58, Part III, Laws of 1997.

Summary: Chapter 388-310 WAC establishes broad regulations governing the treatment of TANF eligible persons with regard to their personal responsibilities to be engaged in work or work activities as a condition of full benefit receipt. The rule establishes criteria for who must participate in WorkFirst; decision making regarding the activities in which the person will be required to participate; what penalties will be imposed if a person refuses to participate as required; and acknowledges the impact on and involvement of Native Americans in WorkFirst.

Reasons Supporting Proposal: State legislation directs the department to establish the WorkFirst program.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Sue Langley, WorkFirst Division, (360) 413-3241.

Name of Proponent: Department of Social and Health Services, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: Chapter 388-310 WAC establishes broad regulations governing the treatment of TANF eligible persons with regard to their personal responsibilities to be engaged in work or work activities as a condition of full benefit receipt. The purpose of the rule is to establish the criteria for: Determining who must participate in WorkFirst; decision making regarding the activities in which the person will be required to participate; determining which employers may participate in wage subsidy program; ensuring that current employees and WorkFirst participants considered employees for specific purposes are provided labor standards protections; imposing sanctions in participants who refuse to participate in WorkFirst without adequate reason; and acknowledging the impact on and involvement of Native Americans in WorkFirst.

The effect of this rule will be an increase in the number of families who leave assistance due to earnings, a reduction in the overall amount of payments made to families due to earnings, and protection for vulnerable populations.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not impose new or additional regulations on any businesses.

RCW 34.05.328 does not apply to this rule adoption. This section does not apply to Department of Social and Health Services rules regarding financial or medical eligibility.

Hearing Location: Lacey Government Center (behind Tokyo Bento restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on September 23, 1997, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Leslie Baldwin by September 15, 1997, phone (360) 902-7540, TTY (360) 902-8324, e-mail lbaldwin@dshs.wa.gov.

Submit Written Comments to and Identify WAC Numbers: Leslie Baldwin, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, FAX (360) 902-8292, by September 23, 1997.

Date of Intended Adoption: No sooner than September 24, 1997.

August 18, 1997

Merry A. Kogut, Manager

Rules and Policies Assistance Unit

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) assistance 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--Definitions. 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.

"Component" means a WorkFirst work activity. WorkFirst components are:

(1) Paid employment in the private or public sector which may be either:

(a) Unsubsidized; or

(b) Subsidized by the department, its agent, or another publicly funded program, and includes on-the-job training, work-study, and wage subsidy programs.

(2) Work experience which is unpaid work for a private nonprofit organization, public agency, or tribal government;

(3) Community service which is:

(a) Unpaid work for a charitable nonprofit organization, public agency, or tribal government; or

(b) An activity which would benefit the participant, the participant's family, or the participant's community or tribe, as determined by the department on a case-by-case basis.

(4) Job search includes assistance in preparing to search for work;

(5) Vocational educational training includes job skills training directly related to employment;

(6) Basic education activities which are high school completion, GED certification preparation, and may include adult basic education or English as a second language training;

(7) Specialized services, such as substance abuse assessment and treatment and family violence counseling, to assist the participant to become employable or to become eligible for assistance programs other than TANF when provided through appropriate department programs and services;

(8) Providing child care services to an individual who is participating in a community service program.

"Department" means the department of social and health services (DSHS).

"Pre-employment training" means job skills training which has an immediate outcome of unsubsidized employment with an hourly wage greater than the local entry level wage.

"Satisfactory progress" means a participant in secondary or vocational education has achieved and is maintaining a grade point average and credits or mastery of competencies sufficient to complete the course in the prescribed time for the curriculum.

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NEW SECTION

WAC 388-310-0300 WorkFirst--Participation exemptions. (1) The department will determine the exempt status of all TANF recipients who are sixteen years of age and older and all custodial parents under eighteen years of age.

(2)(a) A person is exempt from WorkFirst participation requirements if the person is needed in the home to personally provide care for a child under twelve months of age. The person may use this exempt status for a total of twelve months during the person's sixty-month lifetime limit for assistance.

(3) Unless determined exempt under subsection (2) of this section, the TANF recipient must participate in WorkFirst. Persons who are exempt may volunteer to participate and will not be subject to sanction for subsequent refusal.

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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) Is an unmarried custodial parent under the age of eighteen or a dependent child who is sixteen or seventeen years of age who has not completed high school or GED; 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 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 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 to include such elements as:

(a) Attendance at workshops and other group activities;

(b) Hours of participation in group activities and individual job search; and

(c) Number of employer contacts per week.

(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 seek pre-employment training as an activity equivalent to seeking employment.

(5) The department may not require a participant to participate in job search for an extended period of time 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. These factors include, but are not limited to:

(a) The person's education level, employment strengths, and employment history;

(b) Factors which interfere with the person's ability to become employed including high levels of unemployment in the person's locale; and

(c) The participant's personal or family circumstances which the department determines to be relevant.

(4) Information gathered in the evaluation will be the basis for 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 responsibility of the participant to participate as required in the WorkFirst components included in the plan;

(b) The obligations of the department to provide services needed by the person in order to participate.

(2) The department will involve the participant in the development and decision-making process for component assignment. The component will be selected on the basis of whether the activity will provide the person with the work experience, job skills, substance abuse assessment and treatment, or other service necessary to be employed in the shortest possible time.

(3) The plan may include services needed to stabilize personal or family circumstances which impede the person's employment prospects. These services may include substance abuse treatment, physical or mental health evaluation and treatment, family counseling, or family violence counseling and housing search, acquisition, and stabilization assistance.

(4) The plan includes the following:

(a) The WorkFirst component, to include job search, in which the person is required to participate for what period of time and for how many hours a week;

(b) Any specific requirements relating to the person's 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.

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

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

(6) 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 component cost funding. (1) The purpose of support service and component cost funding is to ensure that participants have access to necessary goods or services which cannot be paid for by the participant or other funding sources.

(2) The department or its agent will fund support services requested by participants when it is determined that the person would be prevented from participation in the component if the person fails to receive the requested service.

(3) Support services which may be fund 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 care 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) If the department determines that services are necessary and the department does not make available funds or an in-kind benefit sufficient to meet the need, the participant is not subject to sanction under WAC 388-310-1700 for refusing to participate in the specific component for which the needed services was not provided.

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

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

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

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

(9) If the person does not qualify for sufficient student financial aid to meet the cost of tuition, books, supplies and fees for vocational education activities the department may provide funding for these direct component costs. This funding will only be provided if the person is participating in a component included on the person's individual responsibility plan.

(10) Tribal programs may provide support services in a specialized manner in order to address specific needs that Indians may have due to location or employment needs.

(11) A participant will lose eligibility for direct costs or support services if the person:

(a) Fails to meet the definition of satisfactory progress in WAC 388-310-0200; or

(b) Has ceased to participate in a component included on the individual responsibility plan.

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NEW SECTION

WAC 388-310-0900 WorkFirst--Basic education. (1) Basic education includes high school completion and classes to prepare for and testing to acquire GED certification and 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 years of age or older 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) The department may require the person to combine participation in educational activities with another WorkFirst component activity to total twenty hours a week of participation if the person is not engaged in basic education for at least twenty hours a week under subsection (2) of this section.

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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 technical school or community college administered or certified by the state, or provided by a regionally certified tribal college. It may not exceed twelve months in length with respect to any individual. It also includes job skills training and pre-employment training in specific skills offered through community-based organizations, businesses and tribal governments.

(2) The department may include vocational education on 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 in the local labor market and vocational education can provide the person with 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 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 rate requirements. The department must allow the person to arrange the hours of their WorkFirst participation in a manner that does not interfere with completion of the self-initiated education or training activity.

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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:

(a) Instruction in essential work practices;

(b) A chance for the person to exercise or expand work skills.

(3) A WEX participant may also be required to conduct a self-directed job search.

(4) If the participant is offered paid employment while participating in WEX, the person is required to accept the paid employment.

(5) A person's assignment to a specific WEX activity may not exceed six months in length without a departmental review of whether the person requires more time to gain the skills and abilities which were 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 job 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 388-310-1300 WorkFirst--Wage subsidy programs. (1) On a case-by-case basis the department may use a TANF recipient's grant to provide a wage subsidy to an eligible employer who hires the participant in subsidized employment under a wage subsidy programs.

(2) A participant is limited to nine TANF payment months of subsidized employment through a wage subsidy program job.

(3) The department may require a person to accept employment under a wage subsidy program if unsubsidized employment is not available in the local labor market.

(4) The following categories of employers will be considered for wage subsidy programs:

(a) Private for-profit businesses;

(b) Federal, state or local governmental agencies;

(c) Private nonprofit businesses, charities, and educational institutions;

(d) Businesses operated by tribal organizations; and

(e) Tribal governments.

(5) Only those employers which demonstrate a commitment to WorkFirst program goals by retaining subsidized employees in unsubsidized employment or by taking actions which enable a participate to move into other unsubsidized employment will be considered for further subsidized employees.

(6) All wages from a wage subsidy program job will be considered as earnings for all purposes.

(7) A family's TANF case will be suspended until the subsidy period ends if the participant's earnings from employment under a wage subsidy program would make the person's family ineligible for TANF. The time a person is employed in a wage subsidy program job will count as time on assistance for the purposes of the sixty-month lifetime limit for TANF.

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NEW SECTION

WAC 388-310-1400 WorkFirst--Community service program. (1) The department may require nonexempt TANF recipients to participate in community service if the person is not engaged in some other WorkFirst components.

(2) 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.

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

(a) Caring for a disable family member;

(b) Grandparents caring for grandchildren;

(c) Active participation in a drug or alcohol assessment or treatment program approved by the department; or

(d) Active participation in pursuing Supplemental Security Income eligibility.

(4) The participant must notify the department of any community service activity the person finds or develops on their own.

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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;

(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; or

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

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

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NEW SECTION

WAC 388-310-1600 WorkFirst--Determination of reasons for nonparticipation. (1) The following actions on the part of a participant will be considered as a refusal to participate in WorkFirst:

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

(b) Not fulfilling the participation requirements associated with components on the individual responsibility plan including not participating in a drug or alcohol assessment or not attending drug or alcohol treatment programs when certified under the division of alcohol and substance abuse as drug or alcohol dependent;

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

(d) Not appearing for one or more appointments scheduled by the department or its agency without notifying the department or its agent of the reason within a period of time accepted by local employers for failure to report to work.

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

(a) The participant will have the opportunity to further explain their reason for refusing to participate; and

(b) The department will make a determination of the adequacy of the person's reasons for refusing to participate. The department may make the determination based on available information if the participant does not provide information as requested.

(3) The department will not sanction the person as a result of the refusal to participate when the participant clearly demonstrates or provides evidence that the refusal is based on an adequate reason. Adequate reasons include but are not limited to:

(a) Urgent personal or family circumstances are 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 person or of a family member which requires the presence of the person who has refused to participate; or

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

(b) Breakdown in support services such as transportation or in child care arrangements necessary for the person to participate and the person had no readily accessible alternative;

(c) The participant is unable to locate formal or informal child care for a child under the age of six years for 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 person's required participation; or

(f) The person did not receive a notice of appointment or program requirement or the person's refusal to participate was due to a misunderstanding of program requirements.

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NEW SECTION

WAC 388-310-1700 WorkFirst--Sanctions. (1) A person who is determined by the department to be refusing to participate in a component included on the person's individual responsibility plan for reasons other than those described under WAC 388-310-1600 may be sanctioned.

(2) Imposition of sanction will affect the family's TANF grant as follows:

(a) For the month a person is sanctioned the family's TANF grant amount (less any other required 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 received by the assistance unit.

(c) For the third and subsequent months of continuous sanctions status the family's grant will be reduced by a total of forty percent and the protective payee will continue.

(3) The department will restore the full TANF grant amount retroactive to the day the participant begins participation in the component specified on the person's individual responsibility plan if 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) The department shall take all reasonable steps to ensure that a person is not required to participate in subsidized employment or unpaid work activities which:

(a) Result in he 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 provision 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 Indian tribal members and other American Indians. (1) The department will refer Indian TANF applicants and recipients to the person's tribe 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 Indian TANF recipients have equitable access to WorkFirst program components and services under this chapter.