Title of Regulation: 22VAC40-35. Virginia Independence Program (amending 22VAC40-35-10, 22VAC40-35-30, 22VAC40-35-40, 22VAC40-35-80, 22VAC40-35-100).

Statutory Authority: § 63.2-217 of the Code of Virginia; 45 CFR 261.22.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 2, 2014.

Effective Date: July 18, 2014.

Agency Contact: Mark Golden, Program Manager, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7385, or email mark.golden@dss.virginia.gov.

Basis: Pursuant to § 63.2-217 of the Code of Virginia, the State Board of Social Services has authority to promulgate rules and regulations necessary for operation of all assistance programs. With regard to amendments to 22VAC40-35-80 specifically, federal regulations at 45 CFR 261.22(c)(1) give the state the option of how long, up to one year, to disregard a custodial parent from engaging in a work program.

Purpose: The purpose of the regulatory action is to amend the Virginia Independence Program regulation by (i) updating program names, such as "Food Stamps" to "SNAP"; some terminology, such as "day care" to "child care"; and definitions and (ii) conforming the regulation to amendments to § 63.2-609 of the Code of Virginia that limit the exemption for caring for a young child to 12 months in a lifetime, which will also bring the regulation into consistency with federal requirements (45 CFR 261.22), allowing for greater access to employment and training opportunities, thereby benefiting the health and welfare of participants.

Rationale for Using Fast-Track Process: During the public comment period of the periodic review process there were no comments made about this regulation. The changes are minimal and expected to be noncontroversial.

Substance: The amendments (i) update the Virginia Independence Program regulation by (i) changing references from "food stamps" to the current "Supplemental Nutrition Assistance Program" or "SNAP," "day care" to "child care," and "Aid to Families with Dependent Children" or "AFDC" to "Temporary Assistance for Needy Families" or "TANF"; (ii) update associated definitions; and (iii) conform the regulation to § 63.2-609 of the Code of Virginia and limit the exemption for caring for a young child to 12 months in a lifetime, which will also bring the regulation into consistency with federal requirements (45 CFR 261.22).

Issues: The primary advantage to the public is that the terms and definitions will be current and correct. The regulation will no longer improperly refer to other programs using outdated program titles. In addition, the regulation will reflect the employment and training exemptions as stated in statute. There are no disadvantages to the public or the Commonwealth.

Small Business Impact Review Report of Findings: This regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Regulation. The State Board of Social Services (Board) proposed to amend its regulations that govern the Virginia Independence Program to update obsolete language and to change a rule that outlines an exemption from Virginia Initiative for Employment not Welfare (VIEW) requirements for parents of infants under 12 months of age. The VIEW exemption language is being changed so that these regulations are consistent with § 63.2-609 of the Code of Virginia (as amended in 2011).

Result of Analysis. Benefits likely exceed costs for all proposed regulatory changes.

Estimated Economic Impact. Regulations for the Virginia Independence Program were last amended in 2009 and still contain references to the Aid for Families with Dependent Children (AFDC) program and to the food stamp program, both of which have been renamed/replaced with the Temporary Aid for Needy Families (TANF) program and the Supplemental Nutrition Assistance Program (SNAP), respectively. These regulations also have not been amended to make them consistent with a Code of Virginia change that was passed in 2011 which puts a limit on the number of months that parents of infants qualify for an exemption to work requirements that are normally mandatory in order to receive TANF benefits. The Board now proposes to amend these regulations to update terminology and make regulatory language consistent with controlling statutory language.

No affected entity is likely to incur costs on account of these proposed regulations. To the extent that these changes remove obsolete language that may be confusing and clarify the rules that recipients are subject to, interested parties will benefit from these changes.

Businesses and Entities Affected. Board staff reports that there are approximately 62,250 low-income families that receive TANF benefits each month. All these families, as well as all future recipients will be affected by these proposed regulatory changes.

Localities Particularly Affected. No locality will be particularly affected by these proposed regulations.

Projected Impact on Employment. These proposed regulations are unlikely to have any impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulations are unlikely to have any effect on the use and value of any private property.

Small Businesses: Costs and Other Effects. No small businesses will be affected by these proposed regulations.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small businesses will be affected by these proposed regulations.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Social Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The amendments (i) update current references to "Aid to Families with Dependent Children" or "AFDC" to "Temporary Assistance for Needy Families" or "TANF," "Food Stamp Program" or "food stamps" to "Supplemental Nutrition Assistance Program" or "SNAP," and "child day care" or "day care" to "child care"; (ii) update definitions; and (iii) conform the regulation to § 63.2-609 of the Code of Virginia and federal regulations by including a 12-month lifetime limit on the exemption from participating in the employment and training program because of caring for a young child.

Part I
General Provisions

22VAC40-35-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Actively seeking employment" means satisfactorily participating in any assigned job-seeking activity while in the program.

"Adult portion" means the TANF amount paid on behalf of the parent or other caretaker-relative with whom the TANF child resides, including a minor parent. This amount is the difference in the standard of assistance for a family size, which includes the adult and the standard of assistance for a family size of one less person.

"Agreement" means the written individualized agreement of personal responsibility required by § 63.2-608 of the Code of Virginia.

"Allotment" means the monthly food stamp SNAP benefit given to a household.

"Applicant" means a person who has applied for TANF or TANF-UP benefits and the disposition of the application has not yet been determined.

"Assistance unit" means those persons who have been determined categorically and financially eligible to receive assistance.

"Caretaker-relative" means the natural or adoptive parent or other relative, as specified in 45 CFR 233.90(c)(1)(v), who is responsible for supervision and care of the needy child.

"Case management" means the process of assessing, coordinating, monitoring, delivering, or brokering activities and services necessary for VIEW participants to enter employment or employment-related activities as quickly as possible.

"Case management services" means services which that include, but are not limited to, job development and job placement, community work experience, education, skills training, and support services.

"Case manager" means the worker designated by the local department of social services, a private-sector contractor or a private community-based organization including nonprofit entities, churches, or voluntary organizations that provide case management services.

"Child day care" means those services for which a participant is eligible pursuant to child day care services policy.

"Child day care services/program" means a regularly operating service arrangement for children where, during the absence of a parent or guardian, a person or organization has agreed to assume responsibility for the supervision, protection, and well-being of children under the age of 13 (or children up to 18 years of age if they are physically or mentally incapable of caring for themselves or subject to court supervision) for less than a 24-hour period.

"Community work experience" means work for benefits in a public or private organization that serves a community/public function.

"Department" means the Virginia Department of Social Services.

"Diversionary cash assistance" means a one-time lump sum payment to an individual or third-party vendor to prevent long-term receipt of TANF.

"Division of Child Support Enforcement" or "DCSE" means that division of the Virginia Department of Social Services which that is responsible under Title IV-D of the Social Security Act (42 USC §§ 651-669) to locate noncustodial parents, establish paternity, establish child support and health care orders, enforce payment of delinquent support, and collect and distribute support payments.

"Employer tax credit" means a tax credit available to an employer pursuant to § 58.1-439.9 of the Code of Virginia.

"Family" means a TANF assistance unit.

"Food Stamp Program" means the program administered through the Virginia Department of Social Services through which a household can receive food stamps with which to purchase food products.

"Full Employment Program" or "FEP" means subsidized, training-oriented, employment which that replaces the TANF and food stamp benefits of a participant. This component of VIEW is designed to train the recipient for a specific job, increase his self-sufficiency, and improve his competitiveness in the labor market.

"Grant" means the monthly TANF benefit payment.

"Hardship exceptions" means prescribed reasons which that, if applicable, would allow an extension of receipt of TANF benefits.

"He" means a male or female, as applicable.

"Hiring authority" means an individual with the authority to hire employees for a business.

"In loco parentis" means an adult relative or other adult who is acting in place of a parent.

"Incapacitated" means a medically verified condition which renders an individual unable to work.

"Job placement" means placing a participant in an unsubsidized or subsidized job.

"Job search" means a structured, time-limited period in which the participant is required to search for employment. The participant must complete a set number of hours searching for employment.

"Job skills training" means training in technical job skills or required knowledge in a specific occupational area in the labor market.

"Local agency" or "local department" means any one of the local social services or welfare agencies throughout the Commonwealth which that administers the VIP program.

"Minor parent" means any parent under 18 years of age.

"On-the-job training" means training which that is provided by an employer during routine performance of a job.

"Parent" means a mother or father, married or unmarried, natural, or adoptive following entry of an interlocutory order. The parent may be a minor parent.

"Participant" means a TANF or TANF-UP recipient who is participating in the VIEW program.

"Participating family" means an assistance unit including a parent who participates in the Virginia Initiative for Employment not Welfare (VIEW) Program.

"Part-time unsubsidized employment" means employment of at least 10 hours but less than 30 hours per week and for which no VIEW, or TANF, or food stamp funds are used to pay the individual's salary.

"Post-secondary education" means formal instruction at an institution of higher education or vocational school leading to the attainment of a certificate, an associate degree, or a baccalaureate degree.

"Recipient" means an individual who is presently receiving a TANF assistance payment or whose eligibility exists even though the assistance payment is zero.

"Recipient family" means an assistance unit in which the caretaker-relative is a parent of the eligible child and the parent's needs may or may not be included on the grant.

"Relative" means spouse, child, grandchild, parent, or sibling of a qualified employer an applicant or recipient.

"Sanction" means to reduce or suspend a participant's TANF grant or food stamp allotment or both, where applicable, for noncompliance with these regulations or the statute.

"School" means (i) any public school from kindergarten through grade 12 operated under the authority of any locality within this Commonwealth or (ii) any private or parochial school that offers instruction at any level or grade from kindergarten through grade 12.

"Supplemental Nutrition Assistance Program" or "SNAP" means the program administered through the Virginia Department of Social Services through which a household receives assistance to purchase food.

"Support services" means services such as child care or transportation provided to program participants to enable the participant to work or to receive training or education which that are intended to lead to employment.

"Temporary Assistance for Needy Families" or "TANF" means the program authorized in § 406 of the Social Security Act (42 USC § 606) and administered by the Virginia Department of Social Services, through which a relative can receive monthly cash assistance for the support of his eligible children.

"Temporary Assistance for Needy Families-Unemployed Parent" or "TANF-UP" means the program authorized in § 63.2-602 of the Code of Virginia and administered by the Virginia Department of Social Services, which provides aid to two-parent families with dependent children who are in financial need.

"Time limitations" means a specified period of time, under the statute, to receive TANF.

"Transitional support services" means child care, transportation, medical assistance or employment and training services provided to working participants whose TANF has been terminated either voluntarily, although still eligible for TANF, or involuntarily, due to time limitations.

"Truant" means a child who (i) fails to report to school for three consecutive school days, or for a total of five scheduled school days per month or an aggregate of seven scheduled school days per school calendar quarter, whichever occurs sooner, and no indication has been received by school personnel that the child's parent or guardian is aware of the child's absence, and a reasonable effort by school personnel to notify the parent or guardian has failed; or (ii) is not enrolled in school at any time during the month.

"Underemployed" means working at a job for less than the federal hourly minimum wage.

"Unsubsidized employment" means employment in which no government funds are used to subsidize directly the wages earned by a participant.

"Virginia Independence Program" or "VIP" means the program in the Commonwealth of Virginia which that is made up of the TANF Program and the Virginia Initiative for Employment not Welfare.

"Virginia Initiative for Employment not Welfare" or "VIEW" means the employment program for TANF recipients.

"Work activity" means participation in unsubsidized employment, FEP, part-time work, community work experience, on-the-job training, job search, job readiness, community service, job skills training directly related to employment, satisfactory attendance at secondary school, or in a course of study leading to a certificate of general equivalence.

22VAC40-35-30. Cooperation in establishing paternity.

A. As a condition of eligibility, the caretaker-relative shall cooperate, as defined in 22VAC40-35-20, with the Division of Child Support Enforcement (DCSE) and the local department of social services in establishing paternity.

B. If the caretaker-relative does not cooperate, the adult portion of the grant shall be denied or terminated until the individual has disclosed the required information.

C. If, after six months of receipt of AFDC TANF, paternity has not been established and the local department determines that the caretaker-relative is not cooperating in establishing paternity, the local department shall terminate the entire grant for a minimum of one month and until cooperation has been achieved. An individual whose AFDC TANF case was terminated due to such noncooperation must cooperate and file a new application for AFDC TANF to receive further benefits.

22VAC40-35-40. Diversionary assistance program eligibility criteria.

A. An assistance unit shall be eligible to receive diversionary cash assistance if:

1. Verification is provided to the local department of social services that the assistance unit has a temporary loss of income or delay in starting to receive income resulting in an emergency;

2. The assistance unit meets AFDC TANF requirements specified in § 63.2-617 of the Code of Virginia; and

3. The local department of social services determines that diversionary assistance will resolve the emergency.

B. The amount of assistance provided shall be up to the maximum TANF amount for 120 days that the family would otherwise be eligible to receive. The amount of the payment is based on immediate needs of the applicant. Local agencies shall strive to provide the most cost-effective solution to the one-time emergency.

C. If an assistance unit receives a diversionary assistance payment, all assistance unit members shall be ineligible for TANF for 1.33 times the number of days for which assistance is granted, beginning with the date that the diversionary assistance is issued.

D. An assistance unit shall be eligible to receive diversionary assistance once in a 12-month period.

E. Receipt of diversionary assistance is voluntary.

F. Local social services agencies shall determine eligibility for diversionary assistance within five working days of the receipt of the final verification that substantiates eligibility, or within 30 days of the date of the receipt of the signed application, whichever occurs first.

Part III
Virginia Initiative for Employment Not Welfare (VIEW)

22VAC40-35-80. Participant eligibility.

A. The following individuals shall be exempt from mandatory participation in VIEW:

1. Any individual, including all minor caretakers, under 16 years of age;

2. Any individual at least 16 but no more than 19 years of age who is enrolled full time in elementary or secondary school, including career and technical education programs. The career and technical education program must be equivalent to secondary school. Whenever feasible, such recipients should participate in summer work.

3. Any individual unable to participate because of a temporary medical condition that prevents entry into employment or training. Such individuals must provide to the local department a written statement from a physician to specify that he is incapacitated, the nature and scope of the incapacity, and the duration of the incapacity.

4. Any individual who is receiving Social Security Disability Benefits or Supplemental Security Income.

5. Any individual who is the sole caregiver of another member of the household who is incapacitated, and whose presence is essential for the care of the other member on a substantially continuous basis. Incapacity is determined by receipt of Social Security Disability Benefits, Supplemental Security Income, or a written medical statement from a physician.

6. Any individual who is age 60 or older.

7. A parent of a child under 12 months of age who personally provides care for the child. A parent exempt from mandatory participation in VIEW shall be exempt for no more than 12 months for this reason. Months during which a person is exempt may be consecutive or nonconsecutive. A parent of a child not considered part of the TANF public assistance unit due to the provisions listed in § 63.2-604 of the Code of Virginia may be granted a temporary exemption of not more than six weeks after the birth of such child.

B. Nonparents who receive TANF shall participate in VIEW if not otherwise exempt.

C. Pregnant women shall participate in VIEW if not otherwise exempt. Pregnant women shall be assigned to job readiness, training, and educational activities during the last trimester of pregnancy.

D. TANF recipients who meet an exemption from participation in VIEW may volunteer for the program.

22VAC40-35-100. VIEW activities.

A. VIEW recognizes that parents have the obligation to support their children through employment.

B. VIEW shall recognize clearly defined responsibilities and obligations on the part of public assistance recipients. VIEW shall require an Agreement of Personal Responsibility and the obligation to seek and obtain employment. Refusal to sign the Agreement of Personal Responsibility shall result in termination of TANF. The Agreement of Personal Responsibility shall be written for each nonexempt participant specifying, among other applicable requirements, the following:

1. The participant's obligations and responsibilities:

a. That it is the participant's responsibility to seek employment to support his own family.

b. That it is the participant's responsibility to participate in assignments made by the case manager.

c. That it is the participant's responsibility to notify the case manager of any change in the participant's circumstances which that would impact the participant's ability to satisfactorily participate in the program.

d. That it is the participant's responsibility to accept offers of suitable employment. Refusal to accept offers of suitable employment will result in the loss of the participant household's TANF.

e. That it is the participant's responsibility to arrange and find transportation and day child care. The agency will provide for transportation and day child care, to the extent funding is available, only when the participant is unable to make his own arrangements.

2. Explanation of the two-year time limit.

C. Modification of the Agreement of Personal Responsibility shall not impact or change the two-year time limit for receipt of TANF benefits.

D. A VIEW participant who does not meet an exemption shall be required to participate in a work activity. The department shall ensure that participants are assigned to one of the following employment categories after TANF eligibility determination and entry into the VIEW program:

1. Unsubsidized private sector employment (full-time, part-time, or temporary) is the preferred employment category. A participant shall be required to accept any offers of suitable employment as defined in § 60.2-618 of the Virginia Unemployment Compensation Act.

2. Subsidized employment as follows:

a. The department shall conduct a work activity which that shall be known as the Full Employment Program (FEP), which shall replace TANF benefits with subsidized employment.

b. The local department, employer, and the full employment participant shall sign a written agreement. At the expiration of this full employment agreement or when the participant leaves FEP, he will be reassessed and a modified Activity and Service Plan will be developed to reassign the participant to an appropriate employment category.

c. The employer is reimbursed for the wages paid to the participant up to the value of the participant's TANF benefits as contained in the agreement signed between the department and the employer.

(1) The employer subsidy will be based on the actual hours the participant works.

(2) The value of the participant's TANF benefits will be based on the benefits received over the period of assignment to a Full Employment Program placement.

3. Community work experience.

a. The participant can be placed into community work experience. Job placements shall serve a useful public purpose as provided in § 482 (f) of the Social Security Act (42 USC § 682 F).

b. The department and local departments shall work with other state, regional, and local agencies and governments in developing job placements. Placements shall be selected to provide skills that will make the participant more employable and serve a public function. Participation in community work experience shall be for an initial period of six months. Program participants shall not displace regular workers.

c. At the expiration of the community work experience assignment or when the participant leaves community work experience, he will be reassessed and a modified Activity and Service Plan will be developed to reassign the participant to an appropriate employment category.

d. There shall be no sick leave benefit attached to this component since participants work in exchange for their TANF and food stamp SNAP benefits. Participants who are ill or incapacitated will continue to receive their benefits.

4. In order to be considered a work activity in VIEW, on-the-job training must be provided by an employer. This is typically employer-required unpaid training by an employer which that must be completed before an individual will be hired.

E. Other VIEW activities include:

1. Education.

a. Education may only be provided in conjunction with work-related activities during the participant's two-year time period.

(1) Educational activities can be substituted for community work experience hours during the participant's initial six-month placement in community work experience. The participant must be engaged in community work experience for at least 20 hours per week in addition to the educational activities. After six months of participation in community work experience, the number of hours required in the work activity can be reduced to allow participation in education to further the participant's employability.

(2) Participants who enroll into education or training programs prior to coming in VIEW shall be required to meet the requirements of the program.

b. Post-secondary education. Participants assigned to post-secondary education should have demonstrated the capability to successfully complete the educational activity in the prescribed time period in an occupational area for which there is demand in the community.

2. Job skills training may only be provided in conjunction with work-related activities during the participant's two-year time period. The choice of occupational skills training offered will vary in each jurisdiction depending upon local labor market conditions. However, skills training must be related to the types of jobs which that are available or are likely to become available in the community.

3. Job search and job readiness.

4. Community service.

5. Vocational education.