PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 385.6(a) and (b), 385.7(a) and (b) and 385.9(c) of Title 18 NYCRR.
Statutory authority:
42 USC, sections 601(a) and 607; and Social Services Law, art. 5, title 9-B
Subject:
Educational Activities.
Purpose:
To increase the skills of individuals receiving public assistance through the provision of additional opportunities to participate in education and other skill development activities.
Text or summary was published
in the January 28, 2009 issue of the Register, I.D. No. TDA-04-09-00011-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Jeanine Stander Behuniak, New York State Office of Temporary and Disability Assistance, 40 North Pearl Street, 16C, Albany, New York 12243-0001, (518) 474-9779, email: Jeanine.Behuniak@OTDA.state.ny.us
Assessment of Public Comment
During the public comment period with respect to the proposed rule to help nonexempt public assistance recipients increase their literacy level through the provision of additional opportunities to participate in basic education and other skill development activities, the Office of Temporary and Disability Assistance (OTDA) received comments from ten organizations. The majority of comments were notably supportive of OTDA’s efforts to expand access to education and training for nonexempt public assistance recipients. Nine organizations offered comments on certain aspects of the proposed rule which are described in greater detail below, of which only one strongly opposed the proposed rule, and one additional organization provided a letter stating no comments.
Comment: Seven commenting organizations expressed support of OTDA’s intent to clarify the basic literacy standard, such as specifying that a ninth grade reading level will be the defining measure of basic literacy. One commenter voiced concern that using the standard of the ninth grade has the potential for delaying employment and self-sufficiency observing that many individuals who test at only a sixth grade level are able to work. This commenter further noted that some employers do not require either a high school diploma or the equivalent, instead looking for industry credentials as the primary criteria necessary to place an individual in a position or a work activity.
Response: While OTDA acknowledges that individuals with a basic literacy level equal to the sixth grade may be able to successfully engage in certain types of employment, the research reviewed demonstrates that individuals who do not have a high school diploma are, on average, expected to have lower earnings, higher rates of unemployment and reduced job training opportunities as compared to those with a high school diploma. OTDA is committed to helping public assistance recipients improve their literacy level so that they may have increased opportunities for employment and wage gains over time. Taking this into account, OTDA’s regulatory impact statement and the proposed regulations provide that assigned work activities including participation in educational activities must still be based on the individual’s employment assessment and identified in the employment plan. Furthermore, districts are encouraged to combine such educational activities with at least 20 hours weekly of work-based activities, such as employment, work experience and internships both for purposes of meeting federal and State work participation rates and to improve employment outcomes.
Comment: Two commenting organizations advised that the completion of an Individual Education Plan (IEP) is different from a high school diploma in that an individual can complete an IEP, but still not complete high school and receive a high school diploma. These commenters recommended that the OTDA clarify in the regulations that completion of an IEP will not be treated as the equivalent of attaining a high school diploma or the equivalent for purposes of work assignments and access to educational activities.
Response: OTDA will clarify in Office policy that individuals who have completed an IEP, but have not attained a high school diploma or the equivalent, should be treated consistent with all individuals who do not have a high school diploma or the equivalent for purposes of work assignments and access to educational activities.
Comment: Five commenting organizations suggested that OTDA add language to clarify that individuals who have attained a high school diploma or its equivalent, but nonetheless have a basic literacy level below the 9th grade be considered to be individuals with low basic literacy and accordingly be encouraged to participate in educational activities.
Response: OTDA will clarify in Office policy that nonexempt public assistance recipients who have attained a high school diploma or its equivalent, but are nevertheless determined to have low basic literacy are to be encouraged to participate in appropriate educational activities designed to enhance their level of literacy as part of the individual’s public assistance work requirement, consistent with the individual’s employment assessment and plan.
Comment: Three commenting organizations recommended that OTDA include accompanying language to the regulations or otherwise require that individuals are adequately informed of their option to participate in educational activities and are actively encouraged/offered the opportunity to participate in such activities. One of these organizations suggested that individuals should be advised by a qualified counselor of the benefits of obtaining a higher education.
Response: Social services districts are already required to encourage, and may, in fact, require nonexempt public assistance recipients who have not achieved basic literacy to participate in appropriate educational activities as part of their public assistance work requirement. These regulatory changes will further require districts to offer the option to participate in certain educational activities and may require a nonexempt public assistance recipient who has achieved a basic literacy level, but has not attained a high school diploma or the equivalent to participate in educational activities designed to prepare the individual for attaining a high school diploma. OTDA will provide technical assistance in connection with the Administrative Directive that will be issued prior to the effective date of the regulation, and will add language to the next update of the LDSS-4148A, “WHAT YOU SHOULD KNOW ABOUT YOUR RIGHTS AND RESPONSIBILITIES” to inform individuals of the opportunity to participate in educational activities as part of the individual’s public assistance work requirement. OTDA does not believe that the imposition of an unfunded mandate upon districts to provide information via a “qualified counselor” is warranted.
Comment: Two commenters suggested that the regulations require social services districts to provide written notice of opportunities to participate in educational activities.
Response: OTDA believes that the social services districts are in the best position to determine appropriate work and educational activities based on the individual’s circumstances, and OTDA does not intend to require districts to provide such opportunities to participate in educational activities in writing.
Comment: One organization which supported the proposed regulations voiced some concern that the proposed regulations might somehow be applied so as to unreasonably deny or discourage individuals from participating in educational activities.
Response: While OTDA would dispute that the regulations might be applied to unreasonably deny a public assistance recipient of appropriate and available educational activities, OTDA will issue an Administrative Directive reminding social services districts of the requirement to encourage nonexempt public assistance recipients who have not achieved basic literacy or to offer nonexempt public assistance recipients who have achieved basic literacy, but have not attained a high school diploma or the equivalent to participate in appropriate educational activities, consistent with the individual’s employment assessment and plan as part of the individual’s public assistance work requirement.
Comment: Two commenters recommended that social services districts be required to provide assistance to enable public assistance recipients to locate and enroll in educational activities, (such as basic education, English as a second language and preparation for the General Educational Development [GED] exam).
Response: Social services districts already describe the availability of work activities, including educational programs as part of the orientation provided to public assistance recipients conducted in accordance with 18 NYCRR § 385.5. While OTDA encourages districts to provide information on available work activities, OTDA firmly believes that the discussion about the availability and appropriateness of specific educational activities and programs should be completed on an individual basis, consistent with the individual’s assessment and employment plan. OTDA further believes that districts generally do provide information to public assistance recipients to locate available and appropriate educational programs which may then be assigned as a work activity.
Comment: One commenter felt that an individual with limited education should have the right to pursue additional education as part of their employment plan and recommended that this be clearly set forth to social services districts.
Response: OTDA agrees that nonexempt public assistance recipients who have not achieved a high school diploma or its equivalent should be afforded the opportunity to include appropriate educational activities as a component of their employment plan. The proposed regulations provide for such opportunities.
Comment: Five commenting organizations noted that the proposed rule does not specify when and to whom the literacy test should be given. Several organizations offered the opinion that testing for basic literacy level should not rely upon an individual expressing an interest in pursuing educational activities. Some of these commenters advised that the law requires that individuals lacking basic literacy be encouraged and may be required to participate in education. One other commenter recommended that basic literacy testing be offered to all public assistance applicants and recipients. By contrast, one commenting organization expressed their belief that requiring districts to test all nonexempt public assistance recipients who do not have a high school diploma or the equivalent for basic literacy levels may be redundant in some instances and counterproductive in others.
Response: The proposed regulations will require districts to offer nonexempt public assistance recipients without a high school diploma or the equivalent the ability to improve their basic literacy and/or obtain a High School Equivalency Diploma. At that point, if the recipient does not want to participate in an educational program, mandatory testing for literacy levels would not be necessary. Given that literacy testing may be inconsistent with the recipient’s interest or goals and that district resources are limited, OTDA does not believe that a State mandate of literacy testing for all public assistance recipients is warranted.
Comment: Six of the organizations offering comments supported the ability to count home work/study time which is completed as part of an assigned educational activity towards the individual’s required hours of work participation, but felt that the regulation did not go far enough in such regard. Instead they desired that the regulations/State policy require districts to count all hours of homework/study time towards work participation.
Response: OTDA anticipates that districts will generally support counting of home work/study time completed as part of an approved educational activity towards the individual’s public assistance work requirement, but maintains that social services districts are in the best position to determine when and to what extent homework/study time should be counted towards the individual’s work requirement. In many instances counting all hours of homework/study time would effectively preclude social services districts from being able to meet federal and State work participation rates or otherwise engage individuals in at least 20 hours of a work-based activity, such as employment, work experience or internship. OTDA believes that part-time enrollment in a work-based activity is often the appropriate method to help individuals achieve and reinforce positive work and educational outcomes. Therefore, OTDA believes that the questions of when and to what extent homework/study time should be approved as a work activity is best left to the determination made by the social services district.
Comment: Seven commenters expressed concerns relative to the addition of “prior participation in education and training” as a factor that districts may consider when evaluating whether an individual should be assigned to an educational activity as part of such individual’s public assistance work requirement. These commenters noted that current statute and regulations already allow the employment assessment to take prior activities into account and voiced concern that by affirmatively adding “prior participation” to the list may result in districts denying an individual’s participation in educational activities solely because the individual may have previously been referred to an educational activity without regard for whether he/she successfully completed same. The concern is that OTDA ensure that “prior participation” in an educational activity is not used to “unreasonably deny” appropriate participation in available educational activities.
Response: OTDA acknowledges that there may be any number of reasons why an individual might not have been successful in a prior educational assignment. The purpose of this provision is not to imply that districts should deny an individual’s participation in educational activities which are otherwise consistent with the individual’s assessment and employment plan, but rather to clarify that prior participation in educational activities may be taken into consideration when evaluating whether or not participation in an educational activity is an appropriate work activity. OTDA agrees that individuals should not be categorically denied participation in available educational activities which are consistent with the individual’s employment assessment solely based on the fact that the individual participated in the same or similar activities in the past and perhaps was found to not make progress or to fully participate. While OTDA strongly believes that social services districts are in the best position to determine the appropriateness of work and educational activities based on the individual’s unique circumstance, out of deference to the concern raised, OTDA will provide additional guidance pertaining to “prior participation” in educational activities via an Administrative Directive that will be released prior to the effective date of the proposed regulations.
Comment: Four commenters expressed support for the provision to offer nonexempt public assistance recipients who have attained basic literacy, but still have not attained a high school diploma or the equivalent, the ability to participate in educational activities designed to prepare him/her for attaining a high school diploma or its equivalent. One organization recommended that the language of the regulation be revised to require that nonexempt public assistance recipients who have attained basic literacy, but have not attained a high school diploma or its equivalent be encouraged (not offered) to participate in educational activities, and that an accompanying provision be included to define the term “encourage.”
Response: OTDA appreciates the support voiced for the proposed regulation and believes that these services, provided with other work activity participation as deemed appropriate by the district, are important in enhancing employment opportunities to help public assistance recipients achieve economic independence.
Comment: One commenter raised concern that by requiring districts to offer recipients preparatory courses towards a high school diploma or the equivalent (which may be offered at times that frequently would require coordination in scheduling concurrent work activities) regardless of such individual’s employment plan will make it more difficult to meet the federal participation rates inasmuch as literacy programs alone are not a countable activity for federal participation purposes.
Response: Districts are currently required by statute to encourage public assistance recipients who have not achieved a basic literacy level to participate in educational activities designed to improve basic literacy as part of the individual’s employment plan. As stated in the Regulatory Impact Statement, the proposed rule retains the district’s authority governing individual enrollments in work activities, including, but not limited to, assigning individuals to a work activity or a combination of work activities which the district has determined as appropriate to enhance the individual’s work skills and that are consistent with the individual’s assessment and employment plan. OTDA recognizes that coordination of work activities will be necessary to concurrently enroll individuals in work activities and educational activities, based on the individual’s assessment and employment plan, but doing so would enable districts to continue to emphasize the importance of work and meet work participation rates. OTDA considers improving literacy and/or attaining a high school diploma or its equivalent to be consistent with the Office’s overall employment goals.
Comment: Two comments offered agreement with OTDA’s determination that the proposed regulations should not result in significant costs. One commenter, however, did state that the proposed changes would have a dramatic impact on programs, require system changes and necessitate staff training with respect to the changes in order to effectively implement the proposed regulations.
Response: OTDA acknowledges that system changes, staff training and other adjustments may need to be completed in order to effectively implement these regulatory changes. The effective date of the regulations will be October 1, 2009, to permit social services districts time to implement the necessary changes.
Comment: One commenting organization suggested that the regulations as written will require social services districts to stop ongoing employment activities to test all current recipients already successfully engaged in work activities for basic literacy levels. This commenter consequently recommended that additional time be given to implement any changes required by the regulations and that it be made explicit that the proposed changes only apply to new public assistance applicants after the effective date.
Response: OTDA does not intend for social services districts to interrupt or discontinue an individual’s participation in current assigned work activities. Districts will be expected to reevaluate an individual’s work assignment at the next update to the employment assessment or recertification for public assistance benefits, at which time discussions would take place as appropriate with nonexempt individuals without a high school diploma regarding the interest in participating in educational activities. OTDA will clarify the required timeframes in Office policy.
Comment: Three responding organizations suggested that the regulations prioritize work assignments as follows: class time, homework time and then additional hours of participation, as needed. One organization noted that stand-alone educational activities do not generally count towards the federal or State participation rates and in some instances are not held at times that would easily permit engaging individuals in concurrent work activities.
Response: As stated in the Regulatory Impact Statement, OTDA seeks to increase the skills of nonexempt individuals receiving public assistance through the provision of additional opportunities to participate in education and other work activities. OTDA acknowledges that this goal must be accomplished consistent with federal participation rate requirements, which (generally) count hours of participation in educational activities only after the individual has participated in defined core work activities, such as paid employment, work experience and community service, for a minimum of twenty hours on average per week during the month. Districts are expected to achieve both required participation standards and to offer enrollments in educational services as defined in these regulations. Generally, these requirements can both be met through a combination of twenty hours of a work-based activity combined with other skill development activities such as education or training.
Comment: One commenting organization voiced concern that the proposed regulations ignore both the economic climate and the need to continue the successful employment-focused approach. This commenter suggested that it may be more prudent, given the current economy to ensure that individuals receiving public assistance work toward a job placement whenever possible.
Response: OTDA agrees that social services districts should maintain an employment-focused approach with respect to the provision of public assistance benefits. However, OTDA also recognizes employment-related and other benefits of helping public assistance recipients increase their skills through participation in education and other skill development activities as part of the individual’s public assistance work requirement. Improved basic skills and other jobs skills training can expand the number of jobs individuals are qualified to perform, enhance the ability of individuals to learn on the job, and increase the number of higher level training opportunities the individual will be qualified to enter. For these reasons, among others, OTDA considers efforts to improve basic skills and obtain a High School Equivalency Diploma as consistent with an employment-focused program. OTDA would expect that basic educational services be combined with a work-based activity in most instances and that progress be expected and monitored to retain program accountability.
