22VAC40-35 Virginia Independence Program

REGULATIONS

Vol. 25 Iss. 3 - October 13, 2008

TITLE 22. SOCIAL SERVICES

STATE BOARD OF SOCIAL SERVICES

Chapter 35

Proposed Regulation

Title of Regulation: 22VAC40-35. Virginia Independence Program (amending 22VAC40-35-10, 22VAC40-35-20, 22VAC40-35-40 through 22VAC40-35-120, 22VAC40-35-130; repealing 22VAC40-35-5, 22VAC40-35-125, 22VAC40-35-126, 22VAC40-35-127, 22VAC40-35-128).

Statutory Authority: §63.2-217 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until December 12, 2008.

Agency Contact: Mark L. Golden, TANF Program Manager, Department of Social Services, Division of Benefit Programs, 7 North Eighth Street, Richmond, VA 23219, telephone [phone], FAX (804) 726-7356, TTY [phone], or email [e-mail].

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. The amendments to the regulations are discretionary changes that will make the regulations more complete and consistent with state law.

Purpose: The AFDC program was replaced by the TANF program with passage of the Personal Responsibility and Work Opportunity Reconciliation Act. The term AFDC is therefore obsolete and needs to be updated.

The Virginia Targeted Jobs Grant Program has been discontinued by the General Assembly. The references to the program are obsolete and need to be removed.

The pertinent sections of the Virginia State Code regarding the TANF program were recodified. The state code citations in the regulation are out of date and need to be updated.

The exemptions from VIEW are being updated for consistency with state code. While all of the exemptions listed in state code were allowed in practice, they were not all listed in the regulation. Having a complete, comprehensive list will make the regulation more complete and understandable for citizens.

Allowing greater participation in educational activities for those participating in work experience will provide for better long-range outcomes for recipients of TANF.

Former VIEW participants in the period of ineligibility after VIEW participation should have the opportunity to receive additional months of TANF assistance in certain circumstances. This is addressed by expanding the opportunity to request an evaluation for a hardship exception to include requests received from former VIEW participants in the period of ineligibility after VIEW participation, and from individuals who are participating in VIEW and within 60 days of the scheduled closure of their TANF case due to the receipt of 24 months of TANF benefits.

The change to the regulation regarding noncooperation in establishing paternity was made at the request of the Office of the Attorney General to avoid the potential for litigation. It was determined that the regulation concerning cooperation in establishing paternity was not comprehensive and did not address the situation of a client naming numerous potential putative fathers.

Substance: The regulation will be amended by updating state code citations that changed as a result of recodification, removing obsolete references to Aid to Families with Dependent Children (AFDC) and adding references to the current Temporary Assistance for Needy Families (TANF) program, updating the VIEW exemptions and definitions, removing obsolete language concerning the receipt of federal waivers, removing obsolete references to the Virginia Targeted Jobs Grant Program, allowing greater participation in educational activities when a participant is participating in community work experience, expanding opportunities for hardship exceptions, and addressing situations when an applicant for TANF names multiple putative fathers. If an applicant names multiple potential fathers, the applicant will be considered cooperating until five named fathers have been eliminated by genetic testing, which will be paid for by the Division of Child Support Enforcement. If the applicant fails to assume full responsibility for any additional genetic testing, it will be considered noncooperation.

Issues: Removal of obsolete language and references (such as AFDC and Virginia Targeted Jobs Grant) will make the regulation easier to understand for both citizens and local department of social services staff.

Revising the VIEW exemptions and definitions will provide a clearer understanding of all individuals who will be required to participate in the VIEW program.

By allowing VIEW participants to participate in educational activities once the participant has met the required 20 hours per week of participation in a core work activity, the regulation will provide the participant the opportunity to improve his education and skill level to enhance his future employability while concurrently meeting the participation requirements of the VIEW program.

Revising the number of days that the local social services agency has to determine eligibility for diversionary assistance from within 45 days to within 30 days of the date of the receipt of the signed application or within five working days of the receipt of the final verification that substantiates eligibility, whichever occurs first, will allow this policy to match the policy for processing other Temporary Assistance for Needy Families (TANF) applications.

By allowing former VIEW participants in the period of ineligibility after VIEW participation the opportunity to request a hardship exception, the regulation will provide these individuals the same opportunity to receive additional months of TANF assistance as those individuals who request a hardship exception while still participating in the VIEW program (in the 60 days prior to the closure of the TANF case due to receipt of 24 months of TANF benefits). This will establish a uniform guideline for all VIEW participants to be evaluated for a hardship exception regardless of when the request is made – either prior to or after the TANF case closure.

The regulation will allow the client an opportunity to provide a reasonable number (five) of possible fathers in situations when the client does not know the identity of the father to establish paternity and a child support obligation. By establishing uniform guidelines, the client, as well as the local department of social services, can be assured that the same process is applied to each client without variation.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Social Services (Board) proposes to amend its regulation governing the Virginia Independence Program to eliminate references to the obsolete (since 2003) Virginia Targeted Jobs Grant (VTJG) program, and corresponding statutory citations, and replace references to the Aid to Families with Dependent Children (AFDC) with Temporary Assistance for Needy Families (TANF). The Board also proposes to 1) reduce the allowable processing time for TANF applications from 45 days to 30 days, 2) revise the definition of “job search” to reflect a federal requirement that states count hours spent searching for jobs rather than number of job searches, 3) clarify requirements for hardship exemptions for the TANF program and 4) set limits on the number of paternity tests (per child) for which the Division of Child Support Enforcement (DCSE) will pay.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Because the Virginia Independence Program has not been amended in many years, there are references to federal and state programs that either no longer exist (VTJG) or have been modified and renamed (AFDC). The Board proposes to update this regulation so that obsolete references are eliminated and out-of-date references are updated. There are likely no costs associated with these changes; individuals who read this regulation will likely benefit from the additional clarity that is gained from eliminating potentially confusing obsolete language.

Of the other changes that are proposed by the Board only one is likely to (marginally) change the costs that regulated entities or the state will incur. Currently, mothers who are applying for TANF must name the potential father(s) of their child so that he can be tested. Once paternity is established, the Department of Social Services (DSS) can recover the public monies spent on that child from his/her father. Currently DCSE will pay for an unlimited number of paternity tests for each child that will be covered by TANF (DCSE currently requires fathers to reimburse the costs of testing once paternity is established). The Board proposes to amend this rule so that DCSE will only pay for testing of five potential fathers for each covered child. If more than five tests are needed to establish paternity, the mother of the child will be responsible for paying for the additional testing. Refusal to pursue such testing will be deemed as non-cooperation with the department and can lead to suspension of TANF benefits.

This regulatory change will likely not cause any new costs to be accrued, as no increase or decrease in the cost of testing is anticipated, but it will redistribute some costs from the agency to the mothers of children who are covered by TANF. DCSE does not know how large this redistribution would be because it apparently does not keep data on how many tests it pays for per child. DCSE does report, however, that 6,471 tests were performed in FY2007; these tests cost $634,197. DCSE was able to recover approximately half of this cost ($318,717) from the fathers of the children tested. This likely means that only half of the tests run ended with paternity being established.

Businesses and Entities Affected. This proposed regulation will affect all individuals who apply for or receive TANF benefits. DSS reports that, on average, 33,312 TANF payments were made per month in FY2007.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action will likely have no impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action will likely have no affect on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no affect on real estate development costs in the Commonwealth.

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 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, 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 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 the Department of Planning and Budget's Economic Impact Analysis: The Department of Social Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The proposed amendments eliminate references to the obsolete Virginia Targeted Jobs Grant (VTJG) program and corresponding statutory citations, and replace applicable references to the Aid to Families with Dependent Children (AFDC) with Temporary Assistance for Needy Families (TANF). The proposed amendments also (i) update statutory references, (ii) reduce the allowable processing time for TANF applications from 45 days to 30 days, (iii) revise the definition of “job search” to reflect a federal requirement that states count hours spent searching for jobs rather than number of job searches, (iv) align exemptions from the Virginia Initiative for Employment Not Welfare (VIEW) with those listed in state code, (v) expand opportunities for hardship exceptions in the TANF program, (vi) allow greater participation in educational activities when participating in community work experience, and (vii) set limits on the number of paternity tests (per child) for which the Division of Child Support Enforcement (DCSE) will pay.

Part I
General Provisions

22VAC40-35-5. Federal waivers. (Repealed.)

The provisions of this regulation requiring additional federal waivers (22VAC40-35-20 A 6, 22VAC40-35-100 B 1 d and D 2 c, and 22VAC40-35-110) shall become effective only upon the receipt of such waivers and completion of the promulgation of these regulations.

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.

"AFDC-Foster Care" means a federal program authorized under §472 of the Social Security Act (42 USC §672) and administered by the Virginia Department of Social Services, which provides financial assistance on behalf of qualifying children.

"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 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 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 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 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.

"Full-time unsubsidized employment" means employment which is considered by the employer to be full time, but in no case less than 30 hours per week, and for which no JOBS, VIEW, TANF, or food stamp funds are used to pay the individual's salary.

"Grant" means the monthly TANF benefit payment.

"Hardship exceptions" means prescribed reasons which, 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 Opportunities and Basic Skills Training Program (JOBS)" means the program authorized by Title IV-F of the Social Security Act (42 USC §§681-687). This program provides education, training and work experience to enhance employment opportunities for TANF recipients who are not exempt from participation.

"Job finding" means identification of available jobs.

"Job matching" means matching a participant's minimum skills or prior work experience to available job openings.

"Job placement" means placing a participant in an unsubsidized or subsidized job. Job placement is the result of job finding and job matching.

"Job search" means a structured, time-limited period in which the participant is required to search for employment. To complete the job search, the participant must search and apply for a set number of jobs. 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 administers the VIP program.

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

"On-the-job training" means training which 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 eight 10 hours but less than 30 hours per week and for which no JOBS, VIEW, 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.

"Qualified business employer" means an employer whose business employed not more than 100 employees at the time that the employer first hired a qualified employee.

"Qualified employee" means an employee who is a Virginia resident and is a recipient of Temporary Assistance for Needy Families (TANF).

"Qualified employer" means an employer who may participate in the Virginia Targeted Jobs Grant Program by virtue of meeting all of the program criteria for employers.

"Qualified participant" means a Virginia Initiative for Employment not Welfare participant who meets all of the program criteria and may be hired by a qualified employer.

"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.

"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.

"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 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 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 Job Opportunities and Basic Skills Training Program as implemented in the Commonwealth employment program for TANF recipients.

"Virginia Targeted Jobs Grant" or "VTJG" means a grant paid to an employer in accordance with §63.1-25.3 of the Code of Virginia.

"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.

Part II
Eligibility Requirements

22VAC40-35-20. Cooperation in obtaining support.

A. As a condition of eligibility, each applicant for or recipient of AFDC TANF shall be required to cooperate (unless good cause for refusing to do so is determined to exist in accordance with federal regulations at 45 CFR 232.40 through 232.43). Cooperation shall mean all of the following actions necessary for the identification and location of noncustodial parents and the establishment and collection of child support owed to the person applying for or receiving public assistance:

1. Identifying the parent of a child for whom aid is requested. The applicant or recipient shall provide, under penalty of perjury, the first and last name of the individual against whom paternity or an obligation to provide support is sought to be established, modified, or enforced. If the applicant or recipient is not certain of the child's paternity, he shall identify all individuals with whom the mother had sexual intercourse who may be the father.

2. Providing, under penalty of perjury, additional informational items sufficient to verify the parent's identity including, at a minimum, three of the following: the noncustodial parent's social security number; race; date of birth; place of birth; telephone number; address; schools attended; occupation; employer; driver's license number; make and model of motor vehicle; motor vehicle license plate number; places of social contact; banking institutions utilized; and names, addresses or telephone number of parents, friends, or relatives.

3. Appearing at an office of the local social services agency or the Division of Child Support Enforcement as necessary to provide verbal or written information or documentary evidence known to, possessed by, or reasonably attainable by the applicant.

4. Appearing as a witness at judicial or administrative hearings or proceedings.

5. Providing information, or attesting to the lack of information, under penalty of perjury.

6. 22VAC40-35-20 A 5 shall be repealed upon receipt of appropriate waiver or other authorization from the federal government.

B. If the caretaker-relative is not a parent of the child for whom aid is requested or received, subdivisions A 1 and 2 of this section shall not be required.

C. If the parent is unsure of the identity of the father of the child, she is to name all potential persons who may be the father of the child. The Division of Child Support Enforcement will provide paternity testing for up to five potential fathers at its expense. After five potential fathers have been tested, the parent must assume full responsibility for any additional testing. If the parent fails or refuses to pay for further paternity testing, this will be considered to be noncooperation.

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 requirements specified in §63.1-105 §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 AFDC 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 AFDC 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 60-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 45 30 days of the date of the receipt of the signed application, whichever occurs first.

22VAC40-35-50. School attendance.

A. The Virginia Department of Social Services shall develop procedures with the Department of Education to receive notification from local school divisions of any student who is truant. If notification is received from another source, the local department shall verify such truancy by contacting the school.

B. When verified by the school of such truancy, the local social services department shall do the following:

1. The local department shall send a written notice to the caretaker-relative advising him that the truant recipient is in jeopardy of losing eligibility for AFDC TANF benefits. The caretaker-relative must contact the local department within five days of the notice to cooperate in developing a plan to achieve compliance with compulsory school attendance laws. The notice must also specify that failure to contact the local department may result in the truant recipient's ineligibility for AFDC TANF due to noncooperation.

2. If the caretaker-relative fails to respond within five days of the notice, the local department shall make a personal contact which may include a direct telephone contact with the caretaker-relative to explain the requirement to develop a plan to return the child to school and the result of not cooperating with the requirement.

3. If the local department is unable to make personal contact, the local department shall mail a written advance notice of proposed action to the caretaker-relative advising that AFDC TANF benefits will be reduced if the caretaker-relative fails to contact the local department to develop a plan to return the child to school.

C. If the local department of social services denies or terminates AFDC TANF for noncompliance, the caretaker-relative shall notify the local department in writing of the truant individual's compliance with this section and file a new application for AFDC TANF. The local department shall verify compliance by contacting the school.

22VAC40-35-60. Minor parent residency requirement.

A. To be eligible to receive AFDC TANF, a minor parent shall reside in the home maintained by his parent or person standing in loco parentis unless he meets the good cause exception outlined in subsection B of this section. The local department shall ensure that the following priority order for the minor parent's living arrangements is considered: in a home maintained by a parent, other adult relative, legal guardian, or other adult determined by the department to be acting in place of a parent.

B. The minor parent residency requirement shall not apply if the local department of social services determines, by clear and convincing evidence, that the physical or emotional health or safety of the minor parent or his dependent child would be jeopardized if the minor parent and dependent lived in the same residence with the minor parent's parent or person standing in loco parentis. Such a claim shall be corroborated by evidence such as court, medical, criminal, child protective services, psychological, or law-enforcement records.

C. The local department of social services shall maintain a list of available housing to be used to refer a minor parent who is in need of an adult-supervised supportive living arrangement. If the local department of social services makes a referral, it will be deemed that the local department has made diligent efforts to locate such housing.

D. As a condition of eligibility, the minor parent shall reside at the local housing to which he is referred by the local department.

22VAC40-35-70. Limitation on AFDC TANF benefits.

A. A recipient family is not entitled to an increase in AFDC TANF benefits if the mother of such recipient family gives birth to an additional child during the period of the family's eligibility for financial assistance.

B. Applicants for AFDC TANF financial assistance shall receive notice of the provisions of this section at the time of application. At application or redetermination, such applicant or recipient shall sign a notification acknowledging that they have read and understand the notice.

C. The provisions of this section shall not apply to a child born or adopted during the 10 months following the implementation effective date nor to a child born or adopted during the 10 full calendar months following the month in which the initial assistance check is issued.

D. The provisions of this section shall apply equally to recipient families who adopt a child except that the provision shall be applied using the date of entry of the interlocutory order instead of the child's birthdate.

Part III
Virginia Initiative for Employment Not Welfare (VIEW)

22VAC40-35-80. Participant eligibility.

A. Individuals 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, as determined by a physician, . 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. The worker must reevaluate the participant's incapacity at the time prescribed by the medical statement or every 60 days, whichever comes first. The recipient must provide verification that he continues to be incapacitated.

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

B. 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, shall be exempt from participation in VIEW. Incapacity is determined by receipt of Social Security Disability Benefits or, Supplemental Security Income. The sole other condition under which an individual may be determined incapacitated is by, or a written medical statement from a physician.

6. Any individual who is age 60 or older.

C. AFDC recipients who meet an exemption from participation in VIEW may volunteer for the program.

D. 7. A parent of a child under 12 months of age who personally provides care for the child. 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.

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

F. 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.

22VAC40-35-90. Services.

A. The participant shall have the primary responsibility to arrange transportation to be employed or participate in activities required by the Agreement of Personal Responsibility. Transportation shall be provided only when the participant is unable to make the necessary arrangements.

B. The local department shall provide transitional medical assistance in accordance with the Department of Medical Assistance Services State Plan and regulations.

C. B. The local departments may provide those services itemized in § 63.2-611 B of the Code of Virginia.

D. C. Transitional employment and training services shall be through the VIEW program to certain individuals.

1. Transitional employment and training services can be provided if the following criteria are met:

a. The individual is already employed or the provisions of the employment and training services would allow the individual to become reemployed within 60 days.

b. The activities are designed to maintain employment income, increase employment income or prevent the loss of employment income by the participant.

c. The individual had been enrolled in the VIEW program.

d. The TANF case of which the individual was a member is closed.

e. The case had not been in a VIEW sanction at the time of closure.

f. The individual has not completed an associate degree or four-year degree.

2. The individual can only receive up to 12 months of transitional employment and training services available through the VIEW program.

3. The individual shall enroll in an activity which can be completed within the 12-month time period.

4. An individual can only be enrolled in an activity if approved by a VIEW employment services worker.

5. Individuals may be enrolled only in education and training activities for which there are jobs in the community or jobs are projected to become available in the community.

6. Continued enrollment in education and skills training activities is dependent upon meeting the satisfactory progress requirements for participation in these activities.

a. For education below the post-secondary level (Adult Basic Education and General Equivalency Diploma), the individual must obtain one grade level increase every three months.

b. For certificate and job skills training activities, the participant must meet the satisfactory progress requirements of the institution providing the training.

7. Participants shall not be assigned to FEP (Full Employment Program).

E. D. A VIEW participant shall be eligible for a transitional job retention assistance payment of $50 per month for up to one year after the end of TANF cash assistance. To qualify the participant shall:

1. Be employed at the end of TANF cash assistance;

2. Maintain employment of at least 30 hours per week; and

3. Provide verification of earnings and continued employment of at least 30 hours per week.

22VAC40-35-100. VIEW activities.

A. VIEW recognizes that parents have the obligation to support their children through work/employment 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 AFDC and food stamps 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 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 AFDC and food stamps. Loss of food stamps for refusal to accept offers of suitable employment will result in the entire household's food stamp allotment being terminated when the participant is the head of household. If the participant is not the head of the household, only the participant's prorata share shall be removed from the allotment TANF.

e. That it is the participant's responsibility to arrange and find transportation and day care. The agency will provide for transportation and day 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 AFDC 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 not less than 90 days after AFDC 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 shall be known as the Full Employment Program (FEP), which shall replace AFDC and food stamp 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 combined value of the participant's AFDC and food stamps 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 AFDC and food stamp 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 AFDC TANF and food stamp 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 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) Only eight Assigned hours per week of community work experience hours can be provided substituted for educational activities during the participant's initial six-month placement in community work experience as long as the participant is engaged in community work experience for at least 20 hours per week. 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 are available or are likely to become available in the community.

3. Job search and job readiness.

4. Community service.

5. Vocational education.

22VAC40-35-110. Sanctions.

Local departments of social services shall be authorized to sanction participants in the Food Stamp Program as allowed pursuant to 7 CFR 273.7(g) and in the AFDC TANF Program up to the full amount of the AFDC TANF grant for noncompliance, without good cause as defined by the JOBS State Plan, as follows:

1. A participant assigned to the Full Employment Program who does not work the required hours will only be paid for the actual hours worked. Participants that are terminated from FEP by the employer due to problems with attendance or performance or both will be sanctioned the full amount of the AFDC and food stamp benefits TANF grant.

2. A recipient assigned to VIEW who is determined to be in noncompliance with the VIEW Program shall be sanctioned as follows:

a. For the first offense, the full amount of AFDC TANF benefits for the family shall be suspended for at least one calendar month or until the individual complies with the program requirements, whichever is longer.

b. For the second offense, the full amount of AFDC TANF benefits for the family shall be suspended for at least three calendar months or until the individual complies with the program requirements, whichever is longer.

c. For the third or subsequent offenses, the full amount of AFDC TANF benefits for the family shall be suspended for at least six calendar months or until the individual complies with the program requirements, whichever is longer.

22VAC40-35-120. Hardship exceptions.

A. In certain circumstances, hardship exceptions may be made to the time limitations for receipt of AFDC TANF benefits. A request for a hardship exception may be made by an individual who is either a current VIEW participant in the 60-day period prior to the closure of the TANF case due to the receipt of 24 months of TANF benefits or a former VIEW participant in the period of ineligibility following the receipt of 24 months of TANF benefits. If the participant requests a hardship exception, the local department shall make an evaluation of participation while in VIEW and, if applicable, the period of ineligibility after VIEW participation. This evaluation will determine if a hardship exception may be granted to allow the participant to continue receiving AFDC TANF and to continue to participate in VIEW after the receipt of 24 months of TANF benefits. Once a participant has exhausted the time limit extended to him under a hardship exception, he may not apply for another extension based upon the same hardship.

A participant is not eligible for a hardship exception unless he has complied with the requirements of the program, which are satisfactory participation in assigned program activities, not having been sanctioned more than once during the two-year period for failing to comply with the requirements of the program, and not leaving a job, without good cause as defined by the JOBS State Plan, at any time during the program. Former participants will not be eligible for a hardship exception unless the individual has complied with the requirements of the program while in VIEW and has not lost employment as a result of factors unrelated to his job performance since entering the period of ineligibility. Factors unrelated to job performance are defined as those situations in which the Virginia Employment Commission would determine that the individual would be eligible for unemployment compensation if the participant had worked sufficient hours to qualify.

B. If the above criteria are met, a hardship exception may be granted by the local agency for up to one year if one of the following conditions exists:

1. If the unemployment rate in the participant's locality for the two most recent quarters for which data is available from the Virginia Employment Commission prior to the individual's two-year time limit elapsed request for a hardship exception was 10% or greater. In order to qualify for this exception the participant must also be actively seeking employment as defined in § 60.2-612 of the Code of Virginia.

2. If extension of benefits for up to one year will enable a participant to complete employment-related education or training and the participant had been making satisfactory progress per program requirements.

Participants granted a hardship exception under this subsection shall be reevaluated at least every 90 days to determine if a basis for the hardship exception continues to exist. If a hardship exception is granted, the participant must continue to participate in the program and work activities.

C. A hardship exception shall be granted, if the local department determines that the participant meets all criteria, for up to 90 days if the following conditions exist:

1. If the participant has been actively seeking employment by engaging in job-seeking activities required pursuant to § 60.2-612 of the Code of Virginia and is unable to find employment that would, in combination with any other income sources of assistance that the individual is receiving, pay an amount equal to or exceeding the case's AFDC TANF cash benefits and standard work deduction. The local department may extend benefits for up to three months 90 days to allow the participant to find employment.

2. If the program participant loses his job as a result of factors unrelated to his job performance. Factors unrelated to job performance are defined as those situations in which the Virginia Employment Commission would determine that the individual would be eligible for unemployment compensation if the participant had worked sufficient hours to qualify. The local department may extend benefits for up to three months 90 days to allow the participant to find employment.

Extensions of hardship exceptions will be granted in this subsection in very limited circumstances and only to those persons who demonstrate an extreme hardship. The local department shall refer the case to a panel composed of the Commissioner of the Virginia Department of Social Services, the Commissioner of the Virginia Employment Commission, and the Executive Director of the Governor's Employment and Training Department or designee. The panel commissioner or designee shall evaluate each request individually and grant or deny the request for an extension. The panel commissioner or designee will reevaluate the individual's case as it determines necessary, but at least every 90 days, in order to determine whether the conditions justifying the exception continue to exist.

22VAC40-35-125. The Virginia Targeted Jobs Grant Program. (Repealed.)

A. In order to enhance the employment opportunities of participants, the VIEW program shall administer a grant program called the Virginia Targeted Jobs Grant Program (VTJG).

1. The Virginia Targeted Jobs Grant Program shall pay a grant not to exceed $1,000 to participating qualified employers. For the purpose of this section, a qualified employer may not claim a grant if the qualified employee was employed within one year of the date of the current hiring.

2. Participating employers shall sign an agreement with the Virginia Department of Social Services which will outline the program requirements for both the employer and the Commonwealth.

B. In order to be a qualified employee, the individual must have been a recipient of TANF for at least nine months prior to hiring.

1. The employee must be unemployed or underemployed at the time he is hired by the employer.

2. The employee shall not be a relative of the hiring authority. For the purpose of this section, a relative means a spouse, child, grandchild, parent or sibling of the employer.

3. The employee must have worked for the employer for at least 1,000 hours during the taxable year.

4. The employee must have been placed with the employer as a result of his participation in the Department of Social Services' VIEW Program.

C. In order to make application for the Virginia Targeted Jobs Grant Program grant, a participating employer shall complete the application form supplied by the Department of Social Services. The application form shall be submitted to the Virginia Department of Social Services, Division of Financial Management with certification of the participant's employment for the period in question. The application must be filed no later than the last day of the third month following the close of the taxable year for which the grant is claimed. Grants will be awarded by May 30 of each year. If funds are not sufficient to cover the cost of the VTJGs to which each employer is entitled, each employer will be authorized a credit proportionate to his share of the available funding. Grants for applications received after April 15 will not be awarded until the following fiscal year. A VTJG Certification of Participant Placement must accompany the application.

D. The Commissioner of the Department of Social Services, or his designee, may examine the books, records, and other applicable documents to determine that the employer has satisfied the above requirements and is eligible for a VTJG.

Part IV
Employer Tax Credit

22VAC40-35-126. Employer eligibility. (Repealed.)

A. For taxable years beginning on and after January 1, 1999, a qualified business employer shall be allowed a credit imposed against taxes imposed by Articles 2 (§58.1-320 et seq.), 6 (§58.1-360 et seq.), and 10 (§58.1-400 et seq.) of Chapter 3 of Title 58.1 of the Code of Virginia in an amount equal to 5.0% of the annual salary paid during the taxable year to a qualified employee; however, in no case shall the credit exceed $750 per qualified employee.

B. For the purposes of this section, the amount of any credit attributable to a partnership, electing small business corporation (S corporation), or limited liability company shall be allocated to the individual partners, shareholders, or members, respectively, in proportion to their ownership or interest in such business.

C. Any credit not usable for a taxable year may be carried over to the next three taxable years. The amount of any credit allowed shall not exceed the tax imposed for the taxable year. A credit may not be carried back to a prior taxable year. If a qualified business that is subject to the tax limitation is allowed another credit under another provision of the Code of Virginia, or has a credit carryover from a preceding taxable year, such employer must first utilize any credit which does not have a carry over provision, and then any credit which is carried forward from a prior taxable year, prior to using a credit allowed under this section.

D. The amount of tax credits available, when added to the amount of grants made to employers under the Virginia Targeted Jobs Grant Program for the fiscal year, shall not exceed the amount appropriated to the Virginia Targeted Jobs Grant Fund as provided in the general appropriation act.

E. No qualified business employer shall be eligible to claim a credit for any taxable year that the employer is the recipient of a grant for the same qualified employee under the Virginia Targeted Jobs Grant Program.

Part V
Procedures for Claiming a Virginia Targeted Jobs Grant or Employer Tax Credit

22VAC40-35-127. Procedures for claiming a Virginia Targeted Jobs Grant. (Repealed.)

A. No later than three months following the close of a taxable year, but no later than April 15 of each year, any employer who hires a qualified employee during the taxable year must submit an application for a Virginia Targeted Jobs Grant (VTJG) to the Virginia Department of Social Services, Division of Financial Management, pursuant to 22VAC40-35-125.

B. The employer will include on the application:

1. The taxable year for which the qualified employee was hired;

2. The employee name and SSN;

3. The date the qualified employee was hired;

4. Total wages paid to the qualified employee during the taxable year;

5. Total hours worked by the employee during the taxable year;

6. The employer federal ID number;

7. A statement that the qualified employee was not previously employed by the employer within 12 months of the date the qualified employee was hired; and

8. A certification that the employee is not a relative and has worked for more than 1,000 hours at a rate of pay which is at least the minimum wage during the taxable year for which the employer is claiming the VTJG.

C. By May 15 of each year the total amount of VTJGs will be calculated and grants will be issued by the DSS in accordance with 22VAC40-35-125 C.

D. Unused balances for a fiscal year will be issued to qualifying employers as an employer tax credit.

22VAC40-35-128. Procedures for claiming an employer tax credit. (Repealed.)

A. By April 15 of each year, any qualified business employer who hires a qualified employee during a taxable year beginning on or after January 1, 1999, must submit a Virginia Employer Tax Credit Application Form to the Virginia Department of Social Services, Division of Financial Management.

B. The request will include:

1. A certification that the company meets the definition of a qualified business employer as defined in § 58.1-439.9 of the Code of Virginia;

2. The employee name and SSN;

3. The taxable year for which the qualified employee was hired;

4. The date the qualified employee was hired;

5. Total wages paid to the qualified employee during the taxable year;

6. Total hours worked by the employee during the taxable year; and

7. The employer federal ID number.

C. After the department calculates and issues VTJG payments, the unexpended VTJG appropriation, as set forth in 22VAC40-35-127 D, will be used to determine each qualified employer's entitlement to a employer tax credit. Based upon the number of employer tax credit requests received and the balance of VTJG funds, the department will determine the maximum employer tax credits (MTC) allowed, not to exceed $750 per qualified employee. If funds are not sufficient to cover the cost of the MTC to which each employer is entitled, each employer will be authorized a credit proportionate to his share of the available funding. The department will notify each qualified employer of the employer tax credit allowable for the taxable year which will be the MTC or a lesser amount based upon wages paid or maximum funding available. By June 15 of each year, the department will issue certifications of allowable employer tax credits to each qualified employer. The employer may amend their tax return for the taxable year for which the credit was earned or may apply the credit to a future year pursuant to § 58.1-439.9 of the Code of Virginia.

D. The department will notify the Virginia Department of Planning and Budget of the combined VTJG issued and MTC certified in the fiscal year by June 30 of each year.

Part VI IV
Appeals

22VAC40-35-130. Appeals process.

A participant aggrieved by the decision of a local board granting, denying, changing, or discontinuing assistance may appeal such decision pursuant to §63.1-116 §63.2-517 of the Code of Virginia. A participant cannot appeal the provisions of the Agreement of Personal Responsibility which was mutually developed by the participant and the local agency.

NOTICE: The forms used in administering the above regulation are not being published; however, the name of each form is listed below. The forms are available for public inspection by contacting the agency contact for this regulation, or at the office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia

FORMS

View Agreement of Personal Responsibility.

View Activity and Service Plan.

View Full Employment Agreement.

Virginia Employer Tax Credit Application Form.

VA.R. Doc. No. R07-732; Filed September 23, 2008, 1:39 p.m.