The Texas Commission for the Blind is proposes amendments to §169.1, Purpose and Legal Authority; §169.3, Remedy of Dissatisfaction; §169.4, Definitions; and §169.5, Comparable Services and Benefits, of Subchapter A; §169.10, Referral and Application; §169.12, Prior Authorization of Services and §169.15, Reopening Closed Cases, of Subchapter B; §169.25, Assessment Services; §169.26, Physical Examinations and Other Medical Specialty Examinations; §169.27, Other Diagnostic Evaluations; §169.28, Restoration Services; §169.29, Travel Services; and §169.31, Counseling, Guidance, and Follow-up Services, of Subchapter C; §169.40, Determination, of Subchapter D; §169.52, Order of Selection Expenditure Categories, of Subchapter E; and §169.62, Definitions, of Subchapter F. The Commission also proposes the repeal of and new §169.2, Public Access to Information, Forms, and Documents.

The changes are the result of the agency's review of 40 TAC Chapter 169 under the requirements of Texas Government Code, §2001.039, and the General Appropriations Act, Article IX, §9-10.13, 76th Legislature, 1999. The chapter serves as the agency's rules for serving children with visual impairments. The agency's review indicates that the rules still serve the purpose for which they were adopted; however, the Commission is changing the program's name and has identified several rules that can be improved with cross references and two rules that need technical corrections. No major policy changes are being proposed.

The program's name change is reflected in the chapter title and amendments to §§169.1, 169.3 - 169.5, 169.10, 169.15, 169.25 - 169.29, 169.31, 169.40, 169.52, and 169.62.

The Commission is proposing the repeal of §169.2 in order to proposed a new §169.2 of the same title that provides a cross reference to rules of confidentiality. Amendments are proposed to §169.5(d) to provide a cross reference to rates for medical services and §169.5(e) to correct a misspelling currently in the Texas Administrative Code. An amendment is proposed to §169.12 to clarify that the caseworker is not the only person in the agency that can authorize payment of a service. An additional amendment to §169.52(a)(3)(C)(i) concerning order of selection expenditure categories is proposed to correct an error in the current rule language, which states "uncorrected" instead of "corrected" in reference to the visual acuity of children in priority 3.

Alvin Miller, Chief Financial Officer, has determined that for each year of the first five years the rules are in effect there will be no implications relating to cost or revenues of the state or local governments as a result of enforcing or administering the proposed rules.

Mr. Miller has also determined that for each year of the first five years the rules are in effect the anticipated public benefits will be clear and concise rules for administering the children's program. There will be no economic cost to small businesses or individuals as a result of the rule.

Questions about the content of this proposal may be directed to Jean Crecelius at (512) 377-0611, and written comments on the proposal may be submitted to Policy and Rules Coordinator, P.O. Box 12866, Austin, Texas 78711, within 30 days from the date of this publication. Comments may be also be submitted by e-mail or fax. The e-mail address is pio@tcb.state.tx.us. The fax number is (512) 377-0682.

Subchapter A. GENERAL INFORMATION

The Texas Workforce Commission (Commission) proposes amendments to Chapter 809. Child Care and Development, Subchapter F. General Eligiblity for Child Care §809.92 General Eligibility Requirements and Subchapter G. Child Care for People Transitioning off Public Assistance §809.102 Choices Child Care relating to Child Care and Development rules.

The purpose of the proposed amendments is to conform with the changes to the Choices rules contained in 40 TAC Chapter 811. Changes to the Choices rules are proposed concurrent with these amendments to the child care rule. The preamble to the Choices rules is incorporated herein by reference.

Specifically, changes are made to §809.92 to correspond with the provisions contained in §809.61 of the Choices rules that require that support services, including subsidized child care, are provided only to recipients who are meeting requirements outlined in §811.14 and §§811.25-811.28 of this title, and as outlined in §809.102 of this title.

Changes are made to §809.102 to refer to Chapter 811 instead of select sections of the Human Resources Code and to delete subsection (b) as unnecessary.

Randy Townsend, Chief Financial Officer, has determined that for each year of the first five years the rule will be in effect, the following statements will apply:

There are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rule;

There are no estimated reductions in costs to the state and to local governments as a result of enforcing or administering the rule;

There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rule;

There are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rule; and

There are no anticipated economic costs to persons required to comply with the rule.

Mr. Townsend has also determined that there is no anticipated adverse impact on small businesses as a result of enforcing or administering the rule because small businesses are not regulated or required to do anything by the rule.

James Barnes, Director of Labor Market Information, has determined that there is no significant negative impact upon employment conditions in this state as a result of the proposed rule.

Donna Garrett, Director of Child Care and Development, has determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to set forth the requirements for Choices child care to assist families with becoming self-sufficient.

Comments on the proposal may be submitted to John Moore, Texas Workforce Commission Building, 101 East 15th Street, Room 608, Austin, Texas 78778, (512) 463-3041. Comments may also be submitted via fax to (512) 463-1426 or e-mailed to: John.Moore@twc.state.tx.us. Comments must be received by the Agency within thirty days from the date of the publication in the Texas Register .

Subchapter F. GENERAL ELIGIBILITY FOR CHILD CARE

The Texas Workforce Commission (Commission) proposes the following regarding Chapter 811 Choices Rules:

In Subchapter A. General Provisions, repeal §§811.1-811.4;

In Subchapter B. Access to Choices Services, repeal §§811.11-811.14;

In Subchapter C. Choices Services, repeal §§811.21-811.37;

In Subchapter D. Restrictions on Choices Services, repeal §811.51;

In Subchapter E. Support Services and Other Initiatives, repeal §§811.61-811.67;

In Subchapter F. Appeals, repeal §§811.71-811.72;

in Subchapter A. General Provisions, new §§811.1-811.3;

in Subchapter B. Choices Services Responsibilities, new §§811.11-811.14;

in Subchapter C. Choices Services, new §§811.21-811.29;

in Subchapter D. Choices Work Activities, new §§811.41-811.52

in Subchapter E. Support Services and Other Initiatives, new §§811.61-811.67 and

in Subchapter F. Appeals, new §§811.71-811.73.

The four purposes of TANF (42 U.S.C.A. §601(a)), are:

(1) provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives;

(2) end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage;

(3) prevent and reduce the incidence of out-of-wedlock pregnancies; and

(4) encourage the formation and maintenance of two-parent families.

The goal of Choices services is to end the dependence of needy families on public assistance by promoting work, job preparation, and marriage. A Board is provided the flexibility afforded in the final federal TANF regulations to engage in strategies that also promote the prevention and reduction of out-of-wedlock pregnancies and encourage the formation and maintenance of two-parent families if those strategies support the primary goal of Choices services which is employment and job retention.

In light of these purposes and goals, the Commission intends that recipients of TANF, as well as applicants who are at risk of becoming dependent on public assistance or former TANF recipients who have transitioned off of public assistance, be provided Choices and other services available through the One-Stop Service Delivery Network. More specifically, the changes to the Choices rules are proposed to meet the overarching philosophies and goals of Choices services that include the following:

providing Boards with maximum flexibility to address all purposes of TANF, while ensuring that services provided under purposes 3 and 4, as set forth in proposed §811.1, support the primary goal of promoting employment and job retention/career advancement;

clearly stating the responsibilities of Boards in planning for and managing Choices services including setting forth a Boards' responsibilities related to assessment, development of family employment plans, and the delivery of services to individuals;

improving linkages between employer needs and individuals who participate in Choices services;

continuing the focus on work first design;

linking individuals with comprehensive services available through the One-Stop Service Delivery Network;

clearly stating client responsibilities;

addressing barriers that limit an individual's ability to work or participate;

describing allowable component activities;

clarifying the application of good cause; and

emphasizing the provision of post-employment services to promote job retention and career advancement.

Choices services are used to help cash assistance applicants and recipients transition from welfare to work and to assist former recipients in retaining employment and working towards self-sufficiency using the work first design. The work first design provides individuals with an immediate connection to the local labor market by identifying available job opportunities based on local employer needs. Individuals possessing the skills and abilities needed to fulfill available job openings are employed immediately. This immediate attachment to the labor force emphasizes the importance of work and an individual's personal responsibility to participate in work activities that will enable families to move towards self-sufficiency. The work first design also emphasizes career enhancement through the provision of employer-driven education and training services to increase individuals' skills and enhance their abilities to follow a career path.

On March 31, 2002, the Texas welfare waiver will expire, and on April 1, 2002, Texas will operate under provisions of the federal welfare reform law not modified by State law. Under federal law, Texas will have more mandatory recipients and must serve additional recipients to meet state and federal performance requirements. In addition, the federal welfare reform law specifies allowable activities and limitations on such activities.

Because of the number of format and organizational changes to the Choices rules, the rules are being repealed and replaced with new sections. Following is a more detailed explanation of the changes to each rule.

New §811.1 sets forth the purpose and goal of Choices services. This section includes the same provisions contained in repealed §811.1 and adds new provisions in subsection (c) that emphasize the responsibility of Boards to comply with the TANF State Plan. In addition, a new subsection (d) is added that requires Boards to design Choices services based on local employer needs. This subsection was contained in current §811.11 that is being proposed for repeal. Several provisions contained in § 811.11 specific to the Choices services merely repeat requirements generally applicable to other Board-administered services and activities. Specifically, the basic provisions continue to apply regarding Board flexibility, referenced in Chapter 800, Board planning; referenced in §801.3, monitoring responsibilities; referenced in Chapter 800, Subchapters H and I; and sanctions provisions referenced in Chapter 800, Subchapter E.

New §811.2 sets forth the definitions relating to Choices services. This section includes the same provisions contained in repealed §811.2 with changes to several terms to update and consolidate information consistent with the federal regulations, new state law and for consistency and clarification. The following terms are added: TDHS, Exempt Recipient, Mandatory Recipient, PRWORA, and Work Ready. Modifications were made to the definitions of Earned Income Deduction and temporary cash assistance. The definition for temporary assistance was deleted to eliminate redundancy.

New §811.3 sets forth the Choices service strategy provisions related to Choices services. This section includes some of the same provisions contained in repealed §811.4 with significant changes to expand upon the provisions relating to the work first design, post-employment services (job retention, career advancement, and reemployment services), provisions relating to individuals with disabilities, and the coordinated interagency plan. The work first design is designed to ensure that individuals are connected with employment at the earliest possible opportunity, provided with employer-driven education and training and other necessary post-employment services to facilitate job retention and career advancement.

New Subchapter B sets forth provisions relating to Choices Services. The title of the Subchapter is repealed and proposed as "Choices Services."

New §811.11 sets forth Board responsibilities related to Choices services. This section includes some of the same provisions contained in repealed §811.11 with changes to clarify that hours of participation are tracked and reported as "actual" hours. The changes also clarify that documentation and record keeping shall be available to support information entered into The Workforce Information System of Texas (TWIST). TWIST is the automated system used to track client participation in Choices activities.

New §811.12 sets forth the applicant responsibilities provisions relating to Choices services. The provisions contain the same language as set forth in repealed §811.12 with the only change being to add an acronym, WOA, for Workforce Orientation for Applicants.

New §811.13 sets forth the recipient responsibilities provisions relating to Choices services. The provisions contain the same language as set forth in repealed §811.13 with the following changes. The new language adds a clarification of a Board's role with respect to ensuring that recipients are required to comply with Choices services requirements. In addition, the section clarifies the participation requirements for two-parent and single-parent families as specified in federal statute and regulations.

New §811.14 sets forth the good cause for recipients provisions relating to Choices services. The new language is changed to explain that the existence of good cause shall be reevaluated monthly. Good Cause for domestic violence is limited by state law to a total of twelve months from the first determination of good cause. Additional changes include removing the exception for good cause for individuals who are incarcerated and to clarify good cause reasons for inability to obtain needed child care. Clarification is also included to specify that family circumstances precluding participation include substance abuse and mental health issues.

New Subchapter C sets forth the provisions relating to Choices Services. The purposes for the new rules are as follows.

New §811.21, adds language to the general provisions to clarify the applicability of and a Board's responsibility for complying with the Fair Labor Standards Act related to Choices services. A clarification to the title of the "eligible training provider system" is included for consistency with the changes to Chapter 841 regarding the Workforce Investment Act. A clarification is added to emphasize the minimum levels of job development services to address the needs of individuals with mandatory family work requirements. The changes also make clear that Boards are required to make available job placement services.

In new §811.22, the provisions set forth the general requirements relating to the assessment of individuals. Clarification is provided on assessment requirements for applicants, recipients, and former recipients.

New §811.23, re-designates the "employability plan" as the "family employment plan" to emphasize the need to consider family circumstances that must be addressed to assist the individual in obtaining and retaining employment. The section continues to focus on developing a family employment plan based on employers' needs in the local labor market. New language was added regarding the family employment plan to require Boards to provide certain information to persons who did not receive this information during the WOA. Information about services available through the One-Stop Service Delivery Network must be provided to assist individuals in obtaining employment. This information must be provided prior to the development of the family employment plan. New language is also included to specify how required participation hours are to be distributed between the adults in two-parent families.

In new §811.24, requirements for the Family Work Requirement Form for two-parent families are outlined. The purpose of the form is to document the agreement by both adults in the family to comply with family work requirements through distribution of required hours of participation between one or both adults in the two-parent family.

New §811.25 sets forth the TANF core and TANF non-core activities provisions. The provision also sets forth the participation hours for single-parent and two-parent families. The required participation hours are consistent with federal regulation.

New §811.26 sets forth the special provisions for core and non-core activities, which include a new provision requiring certain recipients who are not employed or engaged in work activities after four weeks of participation in Choices activities to participate in community service. This requirement will increase the ability of recipients to enter the labor market or to participate in work related activities through developing skills to accustom recipients with a work environment. The community service requirement may also create an incentive to enter the labor market. Also included are descriptions of the restrictions regarding Choices activities and a clarification that recipients shall only be enrolled in core and non-core activities for which all or part of the hours in the activities are contributing to the family work requirement. Specific restrictions include: a limit of six weeks for job search in a federal fiscal year, of which no more than four weeks may be consecutive; a twelve month cumulative limit on vocational educational training; and a limitation of 30 percent of a Board's numerator derived from recipients participating in vocational educational training and teens participating in educational activities. The Commission recognizes that Boards may utilize other funding sources to provide for extended job search past six weeks for those individuals who may need additional assistance in securing employment.

New §811.27 sets forth special provisions for teen heads of household to reflect the participation requirements outlined for teens who do not have high school diplomas.

New §811.28 sets forth the special provisions for recipients in single-parent families with children under age six to include new language that adds a section to emphasize the federal requirements that custodial parents with children under the age of six be notified of the penalty exception if child care services are unavailable. In addition, recipients in single-parent families with children under the age of six must participate an average of twenty hours per week.

New §811.29 sets forth special provisions for exempt recipients who voluntarily participate in Choices services. Boards are not required to provide services to these exempt recipients if they fail to meet work requirements.

Subchapter D. Choices Work Activities. Subchapter D is repealed and renamed.

New §§811.41-811.52 define Choices work activities.

New §811.41 sets forth the job search and job readiness assistance provisions. This section includes provisions previously contained in repealed §811.24 and §811.25. The new provisions combine the job search and job readiness assistance provisions into one activity consistent with federal regulations.

New §811.42 sets forth the unsubsidized employment provisions. This section includes provisions previously contained in repealed §811.26 and to clarify that self-employment assistance is included under the definition of unsubsidized employment.

New §811.43 sets forth the subsidized employment provisions. This section includes provisions previously contained in repealed §811.27. The new provision provides examples of subsidized employment; explains who may act as employer of record; and requires Boards to set a policy establishing the amount of wages that are subsidized.

New §811.44 sets forth the on-the-job training provisions. This section includes provisions previously contained in repealed §811.30. The new provisions add clarification regarding on-the-job training relating to the benefits to paid participants in the training, provide that reimbursement to employers for extraordinary costs of providing the training and additional supervision related to the training is permitted, and that on-the-job training is limited in duration relative to the respective occupation and service strategy of the individual. The section also provides that unsubsidized employment after satisfactory completion is expected and that failure by employers to hire any individuals in a manner equal to those that are provided to regular employees is not permitted.

New §811.45 sets forth the work experience provisions. This section includes the same provisions contained in repealed §811.32. The activity was renamed to be consistent with federal regulations. Additionally, nonprofit and public sectors were excluded as providers of work experience activities, because they are included as providers in §811.46.

New §811.46 sets forth the community service provisions. This section includes the same provisions contained in repealed §811.33 with added language to require that individuals be placed in community service activities.

New §811.47 sets forth the requirements for Choices individuals who, as a core work activity, provide child care services to another Choices individual participating in community service. This section is a new provision as allowed under the federal regulations in 45 CFR §261.30(l). The flexibility afforded in the federal regulations is passed to a Board with the requirement that if a Board elects to allow this activity, then local policies are required to ensure the health, safety, and well-being of the children in care. The requirements also specify that limits on the maximum number of children in care must be specified by a Board and that the methodology and mechanism for clients reporting hours of participation by providing care shall also be incorporated.

New §811.48 sets forth the vocational educational training provisions. This section includes the same provisions contained in repealed §811.34. To encourage Boards to address the needs of individuals with disabilities, the Commission has added a new provision in subsection (b) to allow services provided by the Texas Rehabilitation Commission to be deemed as vocational educational training provided the services lead to employment.

New §811.49 sets forth the job skills training provisions, as a non-core activity. This section includes the same provisions contained in repealed §811.31. The new provisions clarify that job skills training includes adult basic education, English as a Second Language, and workforce adult literacy services.

New §811.50 sets forth allowable non-core educational services for recipients who have not completed secondary school or received a certificate of general equivalence. This section includes some of the provisions in repealed §811.36, with added language to incorporate provisions required under federal regulations. The new language clarifies that only recipients who have not completed secondary school or who have not received a certificate of general equivalence are eligible to receive educational services.

New §811.51 sets forth the post-employment services provisions. This section includes the same provisions contained in repealed §811.37. The activity was renamed, and clarifies that post-employment services may include job retention, career advancement, and reemployment. A new provision was added to clarify the length of time a former recipient may receive post-employment services.

New §811.52 sets forth the parenting skills training provisions. This section includes the same provisions contained in repealed §811.35 with added language to require that the determination of the need for parenting skills training be performed during the assessment stage. The purpose for including this requirement is to identify as early as possible the need for these services.

Subchapter E relating to support services and other initiatives, includes changes to §§811.61, 811.62, 811.66 and 811.67.

In new §§811.61-811.67, Choices support services are outlined. Definitions are provided for each support service and clarifications regarding those services are included.

In new § 811.61, language is added to clarify that subsidized support services may only be provided to recipients who are meeting their work requirements. Support services are intended to assist individuals who are engaged in allowable work activities that will lead to employment. A corresponding change is made to §809.92 in the Child Care and Development rules.

In new §811.62, language regarding child care for applicants and recipients is substantially the same as the previous language and designed to cross-reference to the Child Care and Development rules contained in Chapter 809 of this title.

In new §§811.63-811.65 no changes are proposed. Those sections will continue to remain effective.

In new §811.66, Certificate of General Equivalence (GED) Testing Payments contains a technical correction by changing "are" to "is."

In new §811.67, language is changed to clarify that applicants, recipients, and former recipients are not automatically eligible for Individual Development Accounts (IDAs), unless those individuals meet the requirements under the section. Other changes are merely for consistent reference to "IDAs," "TANF funds," and "TDHS."

Subchapter F is changed to add new §811.73, which relates to Appeals to the Texas Department of Human Services, and is added as the location for rules relating to Appeals, which includes §811.71 and §811.72.

In new §811.71, new language is added to clarify that (1) individuals against whom an adverse action is taken by a Texas Workforce Center Partner or (2) a person who believes that a Choices individual has displaced the person from employment may request a review by a respective Board. In subsection (d) the term person is added to clarify that it applies to all types of appeals that fall under the section including those referenced in new paragraph (a)(2). In subsection (e) the rule also includes the term "calendar" before days merely for clarification.

In new §811.72, the term "calendar" is added to days in subsection (b) for clarification.

New §811.73 clarifies that Boards shall provide necessary information about appeals related to the denial of benefits based on noncompliance with Choices service requirements to the Texas Department of Human Services (TDHS).

Additional Background regarding Choices services. Rules of the Texas Department of Human Services relating to employment services, contained in part in 40 TAC Chapter 3, include the following: requirements of applicants of temporary cash assistance to attend workforce orientation sessions and for recipients to participate in employment services; the exemptions from participation requirements; and financial penalties applied to benefits resulting from noncompliance. Mandatory recipients of temporary cash assistance benefits, pursuant to the Personal Responsibility Agreement, are required to work or participate in Choices, the state's TANF employment services program. The Commission, where applicable, cross-references those rules for the purposes of continuity or clarity.

Although these rules govern services available through the TANF block grant funds, individuals are eligible for and may receive services funded through other resources, including services available under the Welfare-to-Work Formula Grant. Boards have the jurisdiction and the authority to set local policy and determine Choices service delivery strategies and procedures, other One-Stop Service Delivery Network services and activities available in each workforce area, and the locations where services are available and delivered consistent with federal and state regulations, rules, and policies. One such federal requirement is that the funding for WIA services should be utilized only after other funding sources, including Choices funds, are exhausted.

Randy Townsend, Chief Financial Officer, has determined that for each year of the first five years the rule will be in effect, the following statements will apply:

there are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rule;

there are no estimated reductions in costs to the state and to local governments as a result of enforcing or administering the rule;

there are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rule;

there are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rule; and

there are no anticipated economic costs to persons required to comply with the rules; however, costs may be incurred if a recipient fails to meet work requirements. Those costs may include monetary sanctions imposed by the TDHS.

Mr. Townsend has also determined that there is no anticipated adverse impact on small businesses as a result of enforcing or administering the rule because small businesses are not regulated by the rule.

James Barnes, Director of Labor Market Information, has determined that there is no foreseeable negative impact upon employment conditions in this state as a result of the proposed amendment. The result of the rules should be improved resources of skilled workers from which employers may benefit and employment opportunities and work enhancing skills throughout Texas for persons at risk of becoming dependent on public assistance.

Luis Macias, Acting Director of Workforce Development, has determined that the public benefit anticipated as a result of the rules as proposed will be to clarify and improve the state and local partnership in policy making and service delivery that will ensure that recipients of temporary cash assistance receive services to aid them in assuming their responsibility to move quickly into work or work activities leading to self-sufficiency.

Comments on the proposed rules may be submitted to John Moore, Assistant General Counsel, Texas Workforce Commission, 101 East 15th Street, Room 608, Austin, Texas 78778, (512) 463-3041. Comments may also be submitted via fax to (512) 463-1426, or e-mailed to John.Moore@twc.state.tx.us. Comments must be received by the Commission no later than thirty days from the date this proposal is published in the Texas Register. In addition, a public hearing will be held on February 26, 2002 at 1:00 p.m. at 101 East 15th St., Rm. 244, Austin, Texas to receive comments.

For additional information about services and activities provided through the Texas Workforce Commission, visit our web page at www.texasworkforce.org.

Subchapter A. GENERAL PROVISIONS