995 Revision to Chapter 187, Support from relatives not living with the client, to support implementation of the family violence option

Notice of Rule Change; Revision to Chapter 187, Support from Relatives Not Living with the Client, to Support Implementation of the Family Violence Option

[30 Pa.B. 2957]

   By this notice, the Department of Public Welfare (DPW) announces its intent to amend 55 Pa. Code Chapter 187, to establish rules and procedures to identify victims of domestic violence, waive child support requirements for them, and refer them for appropriate counseling. These changes are based on provisions of Federal law applicable to the Temporary Assistance to Needy Families (TANF) program, but will also be applicable to the state-funded General Assistance (GA) program. One of the cornerstones of TANF is the establishment of paternity and the pursuit and enforcement of child and spousal support. This principle supports the goal of aiding families in reaching self-sufficiency. A state is permitted to waive the requirement for applicants and recipients to cooperate in establishing paternity and obtaining child support, as part of its efforts for victims of domestic violence. Pennsylvania announced its intent to implement special provisions for victims of domestic violence in the TANF State Plan, Item VI.A.15, published at 27 Pa.B. 342, 350 (January 18, 1997).

   The changes announced in this notice are based on provisions of Section 103(a)(1) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) (Pub. L. No. 104-193), amending Sections 402(a)(7) and 408(a)(7)(C)(iii) of the Social Security Act (42 U.S.C.A. §§ 602)(a)(7) and 608(a)(7)(C)(iii)). Section 402(a)(7) of the Social Security Act, 42 U.S.C.A. § 602(a)(7), gives states the option to include in their TANF plan provisions to screen and identify victims of domestic violence, refer those individuals to counseling and supportive services, and waive certain program requirements, including support requirements, for those individuals as needed. This option is referred to as the Family Violence Option (FVO). The elements of this option are set forth in 42 U.S.C.A. § 602(a)(7)(A). The state must have standards to:

   (a)  screen and identify victims of domestic violence while maintaining the confidentiality of such individuals,

   (b)  refer such individuals to counseling and supportive services, and

   (c)  waive, pursuant to a determination of good cause, certain program requirements for up to six months where compliance with such requirements would make it more difficult for individuals receiving Temporary Assistance for Needy Families (TANF) (42 U.S.C.A. §§ 601--619) cash assistance to escape domestic violence or unfairly penalize such individuals who are or have been victimized by such violence, or individuals who are at risk of further domestic violence. A reassessment of the waiver will take place every six months to determine if the waiver is still necessary and if the services plan is still appropriate.

   In addition, former Federal child support regulations found at 45 CFR Chapter 232, which had been the basis for Pennsylvania's child support regulations, were rescinded in December 1997. Consequently, DPW has developed new policy and revised existing policy as necessary to support implementation of the FVO when the determination of non-cooperation and good cause is made by the local County Assistance Office (CAO).

   These changes are also based in part on Federal regulations implementing the TANF program, found at 45 CFR 260.50--260.59, and on section 4372(b) of the Domestic Relations Code, 23 Pa.C.S. § 4372(b).

   The changes set forth in this Notice of Rule Change will be applied to applicants and recipients effective July 3, 2000.

   The following changes in requirements apply to the TANF and General Assistance programs. Each change in policy described also identifies the section of Title 55 of the Pennsylvania Code that is being amended.

   1.  Process for Establishing Good Cause/New Verification Form

   Current regulations describe the requirements for establishing good cause.

   This Notice of Rule Change revises the standards and process for establishing good cause, including a new verification form and a new process to verify good cause by client affirmation for domestic violence victims. This regulation is therefore amended to reference the new procedure described in subparagraph (iii), as amended.

   55 Pa. Code § 187.23(a)(3); Pub. L. No. 104-93, Title I, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii))

   2.  How Good Cause is Established

   Current regulations provide for waiving cooperation requirements for good cause if cooperation in establishing paternity or obtaining child support will result in serious physical or emotional harm to the child or serious physical or emotional harm to the mother or other caretaker/relative with whom the child is living to the degree that it reduces her capacity to care for the child adequately.

   This amendment removes the terms ''serious'' as it describes physical or emotional harm.

   This amendment also removes the phrase ''with whom the child is living to the degree that it reduces that individual's capacity to care for the child adequately.'' Deleting this phrase removes the subjective determination regarding the applicant's or recipient's ability to care for a child while a victim of domestic violence. The ''capacity to care for the child'' requirement was an element of the rescinded Federal regulations which defined good cause circumstances to be circumstances under which cooperation may be ''against the best interests of the child.'' The FVO, because of its independent interest in the safety of the parent as well as the child, is not guided merely by a best interests of the child standard.

   This amendment also provides for additional circumstances that, when present, are criteria for the establishment of good cause due to domestic violence. Good cause is established if cooperation may result in, and the individual or family member has been subjected to:

*	physical acts that resulted in, or threatened to result in, physical injury to the individual;
*	sexual abuse;
*	sexual activity involving a dependent child;
*	being forced as the caretaker relative of a dependent child to engage in nonconsensual sexual acts or activities;
*	threats of, or attempts at, physical or sexual abuse;
*	mental abuse;
*	good cause may also be established if cooperation would make it more difficult for individuals receiving TANF or General Assistance to escape domestic violence; or
*	unfairly penalize such individuals who are or have been victimized by such violence, or individuals who are at risk of further domestic violence.

   55 Pa. Code § 187.23(a)(3)(i)(A); Pub. L. No. 104-93, Title 1, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii)):

   3.  Evidence to Corroborate Good Cause/Verification of Good Cause Based on Domestic Violence Form

   Current regulations provide a list of types of evidence that may be used to corroborate good cause.

   This amendment adds the requirement that a Verification of Good Cause Based on Domestic Violence form is completed at application when an applicant claims good cause based on domestic violence. This form is also completed when the good cause waiver is reviewed but no less often than every six months. The form is used to:

*	Accompany acceptable verification that an applicant or recipient has provided of the good cause claim; or
*	Authorize by written consent of the applicant or recipient that a third party may provide verification/corroboration of the good cause claim; or
*	Grant good cause for up to six months when an applicant or recipient affirms she is unable to safely obtain evidence to verify the claim of domestic violence within the established time frames for providing verification.

   After six months, an applicant or recipient who continues to claim good cause may establish that claim by providing any of the items of verification listed in subsection (ii). If, after six months, the applicant or recipient is unable to provide documentation of her claim other than her initial affirmation, the CAO will make a determination of good cause based on a current assessment of the recipient's circumstances by a domestic violence counselor or other person trained in domestic violence and substantiated by completion of the Verification of Good Cause Based on Domestic Violence form.

   55 Pa. Code § 187.23(a)(3)(ii); Pub. L. No. 104-93, Title 1, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii)):

   4.  Sworn Third Party Statements as Evidence of Good Cause

   Current regulations provide that sworn statements from individuals with knowledge of the circumstances which provide the basis for the good cause claim are acceptable evidence of the good cause claim.

   This amendment deletes the term ''sworn.'' In addition to those items listed in the current regulation, acceptable evidence includes, but is not limited to, a statement from an individual with knowledge of the circumstances which provide the basis for the good cause claim, including a domestic violence service provider, a medical, psychological, or social service provider, a law enforcement professional, a legal representative, an acquaintance, friend, relative, or neighbor of the claimant, or other person.

   55 Pa. Code § 187.23(a)(3)(ii)(F); Pub. L. No. 104-93, Title 1, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii)):

   5.  Time Frame for Authorizing Assistance When Good Cause is Claimed

   Current regulations provide that an applicant or recipient has 20 days from the date the good cause claim is made to provide corroborative evidence of the good cause claim.

   This amendment provides that assistance will be authorized no later than 30 days following application where the applicant claims good cause due to domestic violence and verification is not readily available or is pending from a third party. This is consistent with the manner in which other applicants are treated when certain eligibility factors are not readily available or pending from a third party.

   55 Pa. Code § 187.23(a)(3)(iii); Pub. L. No. 104-93, Title 1, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii)):

   6.  CAO Investigation of Good Cause Claim

   Current policy provides the procedures that apply when verification is not available to prove that domestic violence exists. The CAO may conduct an investigation and may also attempt to determine the credibility of the client.

   This amendment deletes the text of 55 Pa. Code §§ 187.23(a)(3)(v) and (vi), 187.23(4)(ii) and portions of 187.23(a)(4) because this Notice of Rule Change revises the process for establishing good cause at 55 Pa. Code § 187.23(a)(3)(ii) and (iii), making the deleted sections irrelevant and unnecessary.

   55 Pa. Code § 187.23(a)(3)(v) and (vi) and (4), and (4)(ii); Pub. L. No. 104-93, Title 1, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii)):

   7.  No CAO Contact with the Alleged Perpetrator Pending Good Cause Waiver

   Current regulations permit the CAO to contact the putative father or non-custodial parent when such contact is determined necessary to establish the good cause claim.

   This amendment clarifies that the putative father or non-custodial parent should not be contacted to verify good cause in a domestic violence situation. Such contact could endanger the safety of a victim of domestic violence by inciting the abuser to violence or disclosing her location. The alleged abuser may not be a source of accurate information regarding domestic violence.

   55 Pa. Code § 187.23(a)(3)(vi); Pub. L. No. 104-93, Title 1, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii)):

   8.  Deletion of Obsolete Good Cause Procedure

   Current regulations provide a procedure that applies when the CAO is determining good cause based on physical or emotional harm to the parent.

   This amendment deletes this regulation. In light of the revised standards and process for establishing good cause, this regulation is no longer needed.

   55 Pa. Code § 187.23(a)(4)(iii); Pub. L. No. 104-93, Title 1, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii)):

   9.  Final Authority of CAO to Establish Good Cause

   Current regulations provide a process for giving the Bureau of Child Support Enforcement the opportunity to review and comment on the CAO's findings on good cause.

   This amendment deletes those portions of the regulations. The regulations give the CAO final authority to make good cause determinations, making these provisions unnecessary. This amendment also makes explicit that the applicant is notified of the good cause determination.

   55 Pa. Code § 187.23(a)(4)(iv) and (v); Pub. L. No. 104-93, Title 1, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii)):

   10.  Time Frame for Support/Paternity Action After Denial/Expiration of Good Cause Claim

   Current regulations provide that the Bureau of Child Support Enforcement will not attempt to establish paternity or obtain support during the time of a good cause waiver.

   This amendment expands the policy to provide that neither DPW nor the Bureau of Child Support Enforcement will attempt to establish paternity or obtain support for at least 30 days after the client has been informed orally and in writing of the denial of the good cause claim.

   55 Pa. Code § 187.23(a)(4)(iv) and (v); Pub. L. No. 104-93, Title 1, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii)):

   11.  Review of Good Cause Waiver at Redetermination

   Current regulations require the CAO to review the circumstances of the good cause waiver at each eligibility review.

   This amendment is added to clarify that a recipient who provided corroborative evidence of the good cause claim does not have to provide additional corroborative evidence upon reassessment of good cause if circumstances have not changed since the initial waiver was approved. However, the recipient must establish that continuation of the good cause waiver is necessary by providing a Verification of Good Cause Based on Domestic Violence form completed by a domestic violence counselor or other person trained in domestic violence.

   55 Pa. Code § 187.23(a)(4)(viii); Pub. L. No. 104-93, Title 1, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii)):

   12.  Individualized Safety and Services Plan

   This amendment provides that the CAO will waive cooperation requirements under a determination of good cause based on domestic violence. Simultaneously, the CAO will refer the applicant or recipient to counseling and supportive services. The applicant or recipient must cooperate with the appropriate agency to develop an individualized safety and services plan. The services plan will:

*	be developed by a person trained in domestic violence;
*	reflect the individualized assessment and any revisions indicated by the redetermination of the good cause waiver;
*	be designed to help lead to work to the extent that compliance with program requirements does not make it more difficult to escape domestic violence or unfairly penalize those who are or have been victimized by such violence or who are at risk of further domestic violence; and
*	be maintained in the files of the originating agency.

   This amendment also provides that an applicant or recipient's failure to cooperate in the development of a services plan or failure to comply with a services plan, without good cause, may result in the denial of the good cause waiver.

   55 Pa. Code § 187.23(a)(4)(x); Pub. L. No. 104-93, Title 1, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii)):

   13.  Good Cause Requirements/Spousal Support

   Current regulations provide a requirement for seeking spousal support.

   This amendment provides that an individual will be excused from seeking spousal support when good cause is established under the standards and procedures set forth in subsection (a) of this section.

   55 Pa. Code § 187.23(b); Pub. L. No. 104-93, Title 1, Section 103 (42 U.S.C.A. § 602(a)(7)(A)(iii)):

   Failure by DPW to implement the provisions of this Notice of Rule Change will result in noncompliance with the TANF State Plan as published at 29 Pa.B. 5658 (October 30, 1999).

   This Rule Change has been reviewed and approved by the Office of General Counsel and the Office of Attorney General.

   This Rule Change is made under the Joint Committee on Documents Resolution 1998-1 (2), 28 Pa.B. 2629 (June 6, 1998). This Rule Change will be in effect for 365 days pending adoption of final rulemaking by DPW.

   Public comments to this Rule Change may be made by writing to Edward J. Zogby, Director, Bureau of Policy, Office of Income Maintenance, Room 431, Health and Welfare Building, Harrisburg, PA 17105.

   Persons with a disability may use the AT&T Relay Service by calling [phone] (TDD users) or [phone] (Voice users).

FEATHER O. HOUSTOUN,   
Secretary

   Fiscal Note:  14-NRC-76. (1) General Fund; (2) Implementing Year 1999-00 is $77,000; (3) 1st Succeeding Year 2000-01 is $77,000; 2nd Succeeding Year 2001-02 is $77,000; 3rd Succeeding Year 2002-03 is $77,000; 4th Succeeding Year 2003-04 is $77,000; 5th Succeeding Year 2004-05 is $77,000; (4) 1998-99 Program--$259.688 Million; 1997-98 Program--$323.388 Million; 1996-97 Program--$523.236 Million; (7) Cash Grants; (8) recommends adoption. Funds are available to cover the cost of this rule change.

[Pa.B. Doc. No. 00-995. Filed for public inspection June 9, 2000, 9:00 a.m.]