The Texas Department of Human Services (DHS) adopts the repeal of §90.324; amendments to §90.3, §90.42, §90.191, and §90.326; and new §90.324 without changes to the proposed text published in the April 5, 2002, issue of the Texas Register (27 TexReg 2792).

Justification for the amendments, repeal, and new section is as follows. Section 90.3 added new definitions for quality-of-care monitors, specialized staff, and immediate jeopardy to health and safety. Health and Safety Code, Chapter 255, mandates the creation of offices with quality-of-care monitors for long-term care facilities. Section 255.001 defines the term quality-of-care monitors. The definition is added to the ICF/MR rules because quality-of-care monitors are used in the ICF/MR program. Section 252.040 of the Health and Safety Code requires the department to use specialized staff to conduct ICF/MR surveys. DHS uses staff with expertise in developmental disabilities as the specialized staff so this definition is added. The federal government changed the definition of immediate jeopardy to health and safety in Appendix Q of the State Operations Manual. The department added this new definition to align with the federal requirements.

Section 90.324 removed the requirement for DHS to conduct criminal history checks, which now are directly conducted by the facility in accordance with Health and Safety Code 250.002. The amendments remove DHS as a conduit between facilities and the Texas Department of Public Safety.

New §90.324 transfers the responsibility for emergency medication kits from the physician to the pharmacist to comply with §562.108 of the Occupations Code, which changed the way emergency medication kits are regulated in institutional settings. Emergency medication kits are classified as remote pharmacies licensed under the dispensing pharmacy. The Texas State Board of Pharmacy has adopted rules requiring pharmacies to obtain permits to maintain these kits in facilities, and new §90.324 was coordinated with that agency.

The department received written comments from the Private Providers Association of Texas and the Texas Council of Mental Health and Mental Retardation Centers, Inc. A summary of the comments and the department's response follow.

Comment: Both the Private Providers Association of Texas and the Texas Council of Mental Health and Mental Retardation Centers, Inc., requested that the department delete the proposed definition of quality-of-care monitors and to include this definition with rules implementing the quality-of-care monitoring in Intermediate Care Facilities for persons with Mental Retardation (ICFs/MR).

Response: The department does not agree with the comments. Texas Health and Safety Code §255.501 includes ICFs/MR. The definition of quality-of-care monitors is consistent with the language found in Chapter 255 of the Health and Safety Code (relating to Quality Assurance Early Warning System For Long-Term Care Facilities; Rapid Response Teams), which was effective June 15, 2001. While the Quality-of-Care monitoring system is not yet available in ICFs/MR, a rapid response team may need to respond in an ICF/MR if a problem is detected with the early warning system. A quality-of-care monitor is one of the members of the rapid response team. For this reason, the department retains the definition of a quality-of-care monitor in its rule language.

Subchapter A. INTRODUCTION

The Texas Workforce Commission (Commission) adopts amendments to §809.92 with changes and §809.102 without changes to the text as proposed in the February 22, 2002 issue of the Texas Register (27 TexReg 1292) relating to Child Care and Development rules. The text of §809.102 will not be republished.

The purpose of the 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 were made to §809.92 to correspond with the provisions contained in §811.61 of the Choices rules that require that support services, including subsidized child care, are provided only to recipients who are meeting the requirements outlined in §811.14, §811.23, and §§811.25-811.28 of this title, and as outlined in §809.102 of this title.

Comments were received from two Local Workforce Development Boards: Gulf Coast Workforce Development Board, Capital Area Workforce Board, and the following entities: Welfare Law Center, Now Legal Defense and Education Fund, Child Care Law Center, Texas Welfare Reform Organization, the Center for Public Policy Priorities. Some commenters were for the rules, some disagreed with the changes and some made recommendations for changes to the adopted language. The comment summaries and responses are as follows.

Comment: Three entities commented on §809.72, "General Parent Rights," of the child care rules. The commenters indicated that the rule should require each Board to establish policies regarding the termination of child care services due to the unavailability of funds, or for other reasons not within the control of the parent. The commenters indicated that those policies should include the criteria for determining the priorities for such terminations among the children receiving child care services. The commenters further recommended that the Boards be required to provide parents written notice 90 days prior to the effective date of the termination of the child care services.

Response: Section 809.72 was not open for public comment since no changes to those provisions were proposed. The Commission would state, however, that the Boards have provided the policies to the Commission, and the Commission has reviewed those policies. The Commission does not see a need to propose changes to §809.72 at this time because the 15-day notice period relating to termination of services addresses the needs for expediting the processes for ensuring the effective use of funds while addressing concerns regarding the need to locate child care services.

Comment: Two commenters indicated that the addition of §809.92(b)(4) was confusing because that section deals with "General Eligibility Requirements" and mirrors the federal eligibility requirements, but proposed subsection (b)(4) is not a general eligibility requirement. Rather, it deals specifically with children whose parents are TANF recipients. If the intent of this subsection is to limit mandatory TANF recipients' eligibility for any form of subsidized child care only to recipients that are meeting the Choices work requirements, then this language should be added to §809.121 which deals with "Children Living at Low Incomes." That section makes specific reference to children living at low incomes whose parents are TANF recipients.

Response: The Commission appreciates the observation made by these commenters and agrees that this provision would be more appropriately positioned in §809.121, "Children Living at Low Incomes." Accordingly, a new amendment is being published separately for public comment which repeals §809.92(b)(4) and adds the appropriate language in §809.121. In the meantime, §809.92(b)(4), as adopted, is published as Final in order to implement the provision. The Commission's intent in §809.92(b)(4) is to ensure that only TANF recipients who are demonstrating personal responsibility in meeting the Choices requirements outlined in Chapter 811 receive Commission subsidized child care in order to ensure the efficient and effective use of limited funds to assist families to transition from welfare to work.

Comment: Regarding proposed amendment §809.92(b)(4), one commenter indicated that as currently written the proposed language does not seem to allow for TANF recipients who are not required to participate in Choices to be eligible for child care subsidies.

Response: The Commission agrees with the commenter's observation. The intent of §809.92(b)(4) is to limit Commission subsidized child care assistance to TANF recipients who are subject to and meeting the Choices requirements in Chapter 811. In order to clarify the intent, the Commission has added language that clarifies that this provision applies to TANF recipients who are subject to the Choices requirements in Chapter 811. The Commission also wishes to clarify that the only TANF recipients who are a priority for Commission-funded child care are those that are participating in Choices and meeting the requirements stipulated in Chapter 811.

The changes to §809.92(b)(4) are to add the following: "have met the Choices requirements as specified in Chapter 811, if the child's parent is a TANF recipient 'subject to those requirements.'"

Comment: Regarding §809.92(b)(4), one commenter suggested that the rules not be amended to require families to meet Choices work requirements in order to receive child care subsidies because this is inconsistent with other Commission Child Care rules that make it clear that individuals are eligible for child care subsidies if they are transitioning off TANF and TANF applicants who find work during the TANF application process.

In addition, the commenter stated that §809.92(b)(4) is also unnecessary, as the rules make clear elsewhere that some individuals who are eligible for child care subsidies will not get them because of funding constraints and the priority given to families in the Choices program.

Response: The Commission disagrees with the commenter that §809.92(b)(4) conflicts with other Child Care rules. This section does not address a TANF applicant's eligibility to receive child care, nor does it address transitional child care for former TANF recipients. This section only applies to TANF recipients who are subject to the Choices requirements as stipulated in Chapter 811.

The Commission also disagrees with the commenter that §809.92(b)(4) conflicts and is unnecessary because it reiterates other Commission rule language on prioritization for child care services. Section 809.92(b)(4) does not address prioritization of services; rather, and is necessary as it addresses eligibility for child care services for TANF recipients who are subject to the requirements in Chapter 811.

Comment: What is the impact of the addition of §809.92(b)(4)?

Response: The intent of §809.92(b)(4) is to limit Commission-funded child care for TANF recipients to those who are subject to and meeting the requirements in Chapter 811. This provision promotes an efficient use of the Commission's child care funds by assisting recipients who are working or fully engaged in Choices activities to meet their obligation to support their families.

Comment: Regarding §809.92(b)(4), how frequently will participation by Choices parents be monitored?

Response: Boards are responsible for establishing procedures regarding the frequency of monitoring Choices participants. See § 811.11(d). At a minimum, a Choices recipient's activities must be monitored monthly.

Comment: One commenter had questions regarding the procedures for implementing §809.92(b)(4), stating that child care services may be provided in a given month before a determination is made regarding the recipient's compliance with Choices requirements. The commenter asked if the cost of care provided in advance of the determination of a failure to meet Choices requirements will be recouped from a recipient or if recipients will be required to pay for care in advance and then be reimbursed if Choices requirements are met.

Response: Prior to the addition of §809.92(b)(4), children of Choices recipients who did not comply with the requirements in Chapter 811 in a given month were not prohibited from receiving at-risk child care. To ensure efficient use of funds, §809.92(b)(4) limits Commission subsidized child care to TANF recipients who are meeting the Choices requirements as specified in Chapter 811. Boards' child care contractors place eligible children in Choices child care at the request of the Boards' Choices service providers. The Choices service provider must terminate child care services upon determination that a recipient has failed to meet Choices requirements in Chapter 811 until such time as the recipient is once again fully engaged in Choices activities. The resumption and continuation of child care services is contingent upon the recipient's willingness to engage in Choices activities and to meet the requirements of Chapter 811 as determined by the Choices service provider.

Comment: One commenter indicated support for the proposed addition of §809.92(b)(4) which requires mandatory TANF recipients to meet the Choices work requirements in order to be eligible for child care services. The commenter suggested that the proposed amendment reinforces the Choices work-first philosophy and will encourage Choices clients to fully participate or risk losing their Commission subsidized child care.

Response: The Commission appreciates the commenter's support and agrees that the addition of §809.92(b)(4) reinforces the Work-First design and encourages TANF recipients to work or become fully engaged in Choices activities that will assist them to meet their obligations to support their families.

Comment: Regarding §809.102, one commenter requested that the rules not be amended to eliminate child care for parents in on-the-job training.

Another commenter expressed an understanding that the provision of child care to parents participating in on-the-job training is authorized under Chapter 811.61, Support Services. The same commenter indicated that the Commission's response should explicitly confirm that child care for parents participating in on-the-job training is authorized under Chapter 811.61.

Response: The rules were amended to remove the reference to on-the-job training because on-the-job training is only one of many allowable activities for which child care services are available. Therefore, a specific reference to on-the-job training is unnecessary.

The Commission confirms that child care services are available for Choices individuals in all allowable work activities, including on-the-job training, as authorized in the Choices Rules at § 811.61.

Comment: One commenter expressed support for the removal of §809.102(c) because §809.102(b) states that child care will be provided to children of parents participating in the Choices program who need child care to accept employment and remain employed.

Response: The commenter has identified precisely why §809.102(c) was removed from the rule. The Commission appreciates the commenter's support.

Comment: Regarding §809.103, one commenter requested clarification on the language contained in §809.103(a)(1) that limits applicant child care to applicants who need child care to accept employment. Does this also include those applicants who need child care in order to retain employment, for instance, applicants who were already employed at the time of TANF eligibility determination, but whose incomes are low enough to remain eligible for TANF?

Response: Section 809.103 was not subject to public comment since no changes to those provisions were proposed. However, several Boards have recently requested clarification regarding this issue. To clarify the Commission's intent, a new amendment to §809.103 is being proposed and published separately for public comment. That proposed amendment stipulates the conditions under which individuals may receive Applicant Child Care in order to retain employment.

Comment: Three commenters indicated that §809.103, Workforce Orientation Applicant Child Care, should be amended to require the Boards to provide child care services for TANF applicants who need it to attend the Workforce Orientation for Applicants.

Response: Section 809.103 was not subject to public comment since no changes to those provisions were proposed.

Subchapter F. GENERAL ELIGIBILITY FOR CHILD CARE

The Texas Workforce Commission (Commission) adopts the following repeal of rules regarding Chapter 811 Choices Rules without changes to the proposed text as published in the February 22, 2002 issue of the Texas Register (27 TexReg 1293):

in Subchapter A. General Provisions, §§811.1-811.4;

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

in Subchapter C. Choices Services, §§811.21-811.37;

in Subchapter D. Restrictions on Choices Services, §811.51;

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

in Subchapter F. Appeals, §§811.71-811.72.

The Texas Workforce Commission (Commission) adopts the following new rules regarding Chapter 811 Choices Rules with changes to the proposed text in §§811.1-811.3, §§811.11-811.14, §§811.21-811.26, §811.28, §§811.41-811.46, §§811.47-811.52, §§811.61-811.67 and §811.71, as published in the February 22, 2002 issue of the Texas Register (27 TexReg 1293). The proposed text in §811.27, §811.29, and §§811.72-811.73 is adopted without changes and will not be republished.

The four purposes of Temporary Assistance to Needy Families (TANF) (42 U.S.C.A. §601(a)), are to:

(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 Local Workforce Development Board (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 goals of Choices services, which are employment, job retention, and career advancement.

In light of these purposes and goals, the Commission intends that recipients, as well as applicants who are at risk of becoming dependent on public assistance or former 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 adopted 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 adopted §811.1, support the primary goal of promoting employment, job retention and career advancement;

clearly stating the responsibilities of Boards in planning for and managing Choices services including setting forth a Board's 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 the work first design;

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

clearly stating individual responsibilities;

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

describing allowable activities;

clarifying the application of good cause; and

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

Choices services help cash assistance applicants and recipients transition from welfare to work and assist former recipients in retaining employment and working towards self-sufficiency using the work first design. The work first design provides applicants and recipients with an immediate connection to the local labor market by identifying available job opportunities based on local employer needs. This immediate attachment to the labor force emphasizes the importance of work and a recipient's personal responsibility to participate in work activities that enable the family to move towards self-sufficiency. The work first design also emphasizes post-employment, employer-driven education and training services to increase individuals' skills and encourage career advancement.

On March 31, 2002, the Texas welfare waiver expired. As of April 1, 2002, Texas operates under provisions of the federal welfare reform law not modified by state law or rule. Under federal law, Texas will have more recipients with a work requirement. In addition, the federal welfare reform law specifies allowable activities and limitations on such work requirements.

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.

In general, the rules are directed at Boards, in part because the Commission contracts with Boards and Boards are responsible for passing down requirements to their service providers. Boards contract directly with service providers, not the Commission.

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 repealed. 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: Texas Department of Human Services (TDHS), Exempt Recipient, Mandatory Recipient, Personal Responsibility and Work Opportunities Reconciliation Act (PRWORA), and Work Ready. Modifications were made to the definitions of Choices Individual, Earned Income Deduction (EID), and temporary cash assistance. The definition for temporary assistance was deleted to eliminate redundancy. The terms individual, applicant, recipient, and former recipient were reviewed for appropriateness and, in some places, modified to describe the applicable populations.

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 local-level Memorandum of Understanding (MOU) for coordinated case management with TDHS. The work first design ensures that individuals are connected with employment at the earliest possible opportunity and 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 adopted 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 single-parent and two-parent families as specified in federal statute and regulations.

New §811.14 sets forth conditions under which good cause must be determined, reevaluated, and extended. The Commission provides Boards with the maximum flexibility available under federal law and regulations to determine what may constitute good cause if a mandatory recipient fails to participate for a variety of reasons. Certain changes were made to the reasons why a mandatory participant may receive good cause, including: removing the exception for good cause for recipients who are incarcerated; clarifying good cause reasons for certain parents' inability to obtain needed child care; and including family crises or situations such as domestic violence, substance abuse, and mental health issues that may preclude participation.

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 (FLSA) 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 (WIA). A clarification is added to emphasize the minimum levels of job development services to address the needs of recipients 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 and clarify the general requirements relating to the assessment of Choices individuals.

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 Choices 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 is 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 job seekers 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 are outlined for the Family Work Requirement form for two-parent families. The purpose of the form is to document the agreement by both adults in the two-parent 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 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 provides recipients with valuable skills necessary to enter the labor market. 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 teen heads of household 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 recipients 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 teen heads of household who have not completed secondary school or received a certificate of general equivalency.

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 recipients in single-parent families 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 clarifies 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 provisions provide examples of subsidized employment; explain who may act as employer of record; and require a Board 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 clarify that on-the-job training is provided to paid participants while engaged in productive work on the job; provide for reimbursement to employers for extraordinary costs of training and additional supervision related to the training; and limit the duration of the training as appropriate for the occupation and service strategy of the paid participant. The section also provides that unsubsidized employment after satisfactory completion of training is expected and prohibits Boards from contracting with employers who exhibit a pattern of failure to provide paid participants who receive on-the-job training with continued, long-term employment in a manner equal to that provided to regular employees.

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 recipients be placed in community service activities.

New §811.47 sets forth the requirements for recipients who, as a core work activity, provide child care services to other recipients participating in community service. This section is a new provision as allowed under the federal regulations in 45 CFR §261.30(l). The Commission's intent is to ensure that only recipients who demonstrate personal responsibility in meeting Choices requirements receive Commission-funded child care in order to ensure the efficient and effective use of limited funds to assist families transitioning from welfare to work. 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 recipients reporting hours of participation by providing child 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 by the Texas Rehabilitation Commission to be deemed as vocational educational training provided the services lead to employment, and deleted the word "and" to clarify that the core activity described is vocational educational training.

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 (ABE), English-as-a-Second Language (ESL), 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 initial and ongoing assessments.

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. The Commission's intent in limiting certain support services is to ensure the effective and efficient use of funds. 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 shall only be provided to recipients who are meeting their Choices requirements. Support services are intended to assist Choices individuals who are engaged in allowable work activities that will lead to employment. A provision is added, however, to clarify that Boards shall provide, on a case-by-case basis, support services to a nonparticipating recipient if support services will enable him or her to comply with Choices requirements. A provision is also added to clarify that Boards must adopt policies to ensure that (1) support services are terminated immediately upon a determination that the recipient is not meeting participation requirements; (2) the Board's child care service provider is notified immediately of the nonparticipation; and (3) upon notification, the Board's child care service provider then immediately notifies the child care provider that services are terminating due to nonparticipation. The Commission's intent is to ensure that child care providers are paid for services delivered. A corresponding change is made to §809.92 in the Child Care and Development rules.

In new §811.62, language regarding child care for Choices individuals 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 were adopted. 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 Choices individuals 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 requirements to the TDHS.

Additional background regarding Choices services. TDHS rules relating to employment services, contained in part in 40 TAC Chapter 3, include the following: requirements of applicants to attend WOAs and for recipients to participate in employment services; the exemptions from Choices requirements; and financial penalties applied to benefits resulting from noncompliance. Mandatory recipients, 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 Commission 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 policies and determine Choices service delivery strategies and procedures, other One-Stop Service Delivery Network services and activities available in each local workforce development 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 Workforce Investment Act services should be utilized only after other funding sources, including Choices funds, are exhausted.

Comments were received from the following seven Boards:

Capital Area Workforce Development Board,

Coastal Bend Workforce Development Board,

Concho Valley Workforce Development Board,

Dallas County Workforce Development Board,

Gulf Coast Workforce Development Board,

Middle Rio Workforce Development Board, and

North Central Workforce Development Board.

The following entities also commented: Welfare Law Center, Now Legal Defense and Education Fund, Child Care Law Center, Texas Welfare Reform Organization, and the Center for Public Policy Priority.

Some commenters were for the rules, some disagreed with the changes, and some made recommendations for changes to the proposed language. The comment summaries and responses are as follows:

Comment: Regarding §811.3, one commenter stated that the section requires that TANF recipients and applicants are informed of their individual and parental responsibilities, but does not define those parental responsibilities.

Response: The Commission has not provided a definition for what constitutes parental responsibilities, preferring instead to provide maximum local flexibility for implementation of Choices services. This information may include information on the Personal Responsibility Agreement signed by the Choices individual during the application process for temporary cash assistance, parenting skills training, immunizations, etc.

Comment: Regarding §811.3, one commenter supported the requirement that Boards ensure that MOUs are used to establish relationships with other agencies to serve individuals with disabilities but requested that Boards be required to contract with private, non-governmental organizations as well, when necessary, to ensure that the needs of individuals with disabilities are met.

Response: The Commission disagrees that an amendment is required to address the commenter's concern regarding services to individuals with disabilities. Section 811.3(c)(6) requires Boards to ensure that MOUs or other "contracts" be developed with private, non-governmental organizations. MOUs are required with appropriate agencies that may include private, non-governmental organizations.

Comment: Regarding §811.3, one commenter supported the requirement that Boards ensure that services to individuals with disabilities include reasonable accommodations to allow individuals to access and participate in services, but recommended deleting "where applicable" as unnecessary words.

Response: The Commission appreciates support of this section, but disagrees that the phrase is unnecessary. The Commission agrees, however, that the language is unclear and will amend the rule by adding "where applicable by law."

Comment: Regarding §811.3(c), one commenter expressed concern that the proposed rules are attempting to codify what should be encouraged as best practices and provided the examples, which are addressed under the respective rule numbers, including §811.3(c)(2)(F), and §811.61. Regarding §811.3(c)(2)(F), the commenter stated concern about language that requires the family employment plan to be based upon employer need, and that the rule ignores the concepts of customer choice and the encouragement of self-employment and entrepreneurship.

Response: The rules codify what the Commission believes to be essential elements of comprehensive services that are designed to provide for the efficient use of limited resources and to ensure effective outcomes. The Commission disagrees that the rules on the family employment plan ignore the concepts of customer choice and the encouragement of self-employment and entrepreneurship. The family employment plan is based on the needs of employers because they provide the jobs necessary to serve the needs of Choices individuals transitioning from welfare to work. While customer choice is important, without focus on employer needs, individuals will not be placed into available jobs. In the case of self-employment, the Choices individual and the employer are the same.

Comment: Regarding §811.3(c)(8), one commenter requested clarification on whether the coordinated interagency plan will be integrated into the Board's strategic planning process or will be a stand-alone plan, and requested an amendment to the proposed rule to provide further definition to the scope and purpose of the interagency plan.

Response: The Commission appreciates the commenter's question because it pointed out an error in the rule language. Boards are required to develop local-level MOUs, not coordinated interagency plans, and the rule will be amended to reflect that change. State law enacted in 2001 mandates the development of a MOU between the Commission and TDHS to establish guidelines for coordinated case management. Upon execution of the state-level MOU, the Commission will provide a copy to each Board to assist in the development of its local-level MOUs that must conform to the conditions of the state-level MOU.

Comment: Regarding §811.3(c)(8), one commenter expressed support for the local flexibility given in the proposed rules on WOAs, rather than mandating that they be held at least two times a week. By allowing the flexibility to hold WOAs as needed, Boards will be better able to manage limited resources.

Response: The Commission appreciates the commenter's support of this provision.

Comment: Regarding §811.11(c) and (d), three commenters suggested that rules be amended to require Boards to ensure that individuals receive the support services designated in their family employment plans, including child care services as provided in §811.51(d)(2), and to monitor the provision of those services.

Response: The Commission interprets the comments to request that the rule be amended to ensure that individuals receive support services, specifically transitional child care, and to ensure Boards monitor the receipt of these services. The Commission disagrees that the rule requires amending because §811.61(a) requires Boards to ensure the provision of support services, including the provision of transitional child care services as outlined in §811.62. The Commission agrees that §811.11(d) could be clarified, and will amend the rule to require Boards to ensure that the receipt of needed support services is monitored.

Comment: Regarding §811.11(d), one commenter requested that the rule be amended to clarify that Boards, and not the "Choices program," are responsible for determining and arranging any needed intervention to assist individuals with meeting Choices service requirements. Additionally, regarding §811.11(d)(3), one commenter requested that the term "intervention" be further defined as "including but not limited to supports, services, and reasonable modifications."

Response: The Commission believes that the commenter is making a distinction between Boards and their service providers who provide Choices services, and requesting that the rules require Boards to be responsible for the provision of intervention services. If this is correct, the Commission disagrees because (1) the Commission contracts with Boards only and directs these requirements to Boards; (2) Boards are prohibited by law from directly delivering services, and, therefore, contract with service providers; and (3) Boards are responsible for ensuring that their service providers comply with all state and federal requirements. The Commission disagrees with the commenter's suggestion that the term "intervention" be further defined because the term is self-explanatory.

Comment: Regarding §811.13, one commenter said the rules should not be amended to require individuals, including both voluntary and mandatory participants in Choices, as well as those who participate voluntarily, to participate in or receive counseling, treatment, physical rehabilitation, medical, mental health or other similar services. The rules should require the Boards to ensure that the Choices program assists individuals in finding and arranging for such treatment if individuals need and want this help.

Response: Support services are initiated in response to the declaration of need by a Choices individual. If a Choices individual has identified barriers, the mechanism for addressing them is outlined in the family employment plan as specified in §811.23(d)(3)(B). The family employment plan is a dynamic document that may be modified as circumstances change.

Comment: Regarding §811.14(b)(3), one commenter supported the Commission's clarification that good cause determination should cover a temporary period when a recipient may be unable to participate in Choices. The commenter further stated that this will significantly decrease the misuse of good cause designations automatically given for extended periods of time and will increase the effectiveness of the Choices program.

Response: The Commission appreciates the commenter's support of the clarification that good cause determination covers a temporary period.

Comment: Regarding §811.14(b)(4), three commenters requested that the language which requires that good cause be made at the time of occurrence be deleted as it is vague and confusing. The rules should provide that a good cause determination can be made at any time that program staff become aware of a recipient's circumstances that may give rise to a good cause determination, and should provide sufficient time for making such determination. The commenters also requested that the regulations be amended to include the requirement that every recipient be fully informed, in advance, of the existence of good cause determinations and the reasons that may constitute good cause.

Response: The Commission agrees that the language regarding time of occurrence is vague and will amend the rules to clarify the Commission's intent that time of occurrence means the time at which a recipient notifies a Board's service provider of changes in his or her circumstances that constitute good cause. In addition, the Commission agrees that Boards should ensure that recipients are informed that they must notify the Board's service provider if there are changes in their circumstances that preclude their participation in Choices activities, as this may constitute good cause. The rules will be amended in §811.23 to clarify that the family employment plan must contain this information. The Commission disagrees, however, that a list of specific reasons for nonparticipation should be provided to recipients.

Comment: Regarding §811.14(b)(5), four commenters stated that the rules that require that good cause must be "conditional upon efforts to enable the recipient to address circumstances that limit the ability to participate in Choices services as required in the Personal Responsibility Agreement" and suggested that it is the recipient who must make efforts to address circumstances that limit participation. Individuals should not be denied good cause when the Choices program has failed to address the circumstances that limit participation.

Response: The Commission would like to clarify that identifying and addressing potential barriers that limit a recipient's ability to work or to participate in Choices services is a collaborative effort between the Board's service provider and the recipient. Boards are required in §811.23(d)(3), the family employment plan, to ensure that barriers are addressed. Recipients have a personal responsibility to engage in activities necessary to address any barriers that reduce their ability to obtain employment and support their families.

Comment: Regarding §811.14(b)(5), one commenter supported the requirement that good cause determinations be conditional upon efforts to enable the recipient to address circumstances that limit the ability to participate in Choices services. The commenter further stated, in support of the rule, that good cause should be granted to participants who are actively trying to resolve the circumstances that limit their ability to participate in Choices. This rule is consistent with the Choices Work First philosophy and will encourage participants to take personal responsibility in resolving the problems that are not allowing them to participate.

Response: The Commission appreciates the commenter's support of the provision.

Comment: Regarding §811.14 (c), one commenter recommended the deletion of the twelve-month limitation on good cause for domestic violence because no other reason for good cause is subject to time limitations and because of the individual nature of domestic violence cases and the potential for harm or loss of life. Additionally, the wording of the rule is vague and the possible permutations of domestic violence cases are too varied for this to be an effective rule.

Response: The Commission appreciates the commenter's concern regarding families involved in domestic violence, but disagrees that the rule should be amended. This section of the Choices rules is not new, however, but continues to implement state law enacted in 1999. The Texas Human Resources Code 31.0322(b)(2) places a twelve-month limitation on good cause for domestic violence.

Comment: Regarding §811.14(c)(1), one commenter requested that the section be amended to include a definition for "temporarily [sic] illness or incapacitation" and to require the Commission or Boards to provide written notice of the definition.

Response: The Commission disagrees with the request for a definition for "temporary illness or incapacitation," preferring instead to provide maximum local flexibility for implementation of Choices services. While the Commission agrees that individuals be notified of the definition for temporary illness or incapacitation, it disagrees with the recommendation that the Commission limit local flexibility by promulgating a rule that includes specific procedures for oral and written notifications.

Comment: Regarding §811.14(c)(3), one commenter suggested that the rules be amended to extend good cause to any parent with disabled children, rather than limiting the good cause exemption only to a parent with children whose disabilities required the parent to remain in the home for full-time caretaking.

Response: The Commission disagrees with the request to extend good cause to any recipient with a disabled child. Under state law, the TDHS determines which recipients are exempt from participation in Choices due to individual or family circumstances, including a recipient who is the caretaker of a physically or mentally disabled child who requires the caretaker's presence in the home. Boards must ensure that good cause is granted to recipients who experience a temporary interruption in participation in Choices activities due to circumstances beyond their control. If a longer-term change in a family's circumstances occurs after eligibility is determined, Boards forward a request to TDHS to review the recipient's work status. Families not subject to a work requirement are not penalized. The rules reflect the Commission's intent to ensure the efficient and effective use of limited funds to assist families in transition from welfare to work.

Comment: Regarding §811.14(c)(5), one commenter suggested requiring Boards to inform TANF recipients about all grounds for good cause contained in the regulations, not just good cause that is based on the unavailability of child care. Boards should be required to inform individuals of the standards and criteria used to define these other grounds for good cause.

Response: The Commission disagrees that a list of specific reasons for nonparticipation should be provided to recipients as each family's circumstances must be evaluated individually. The Commission agrees, however, that recipients be informed that they must notify the Board if there are changes in circumstances that may preclude their participation in Choices activities as this may constitute good cause and will amend the proposed rules in §811.23 to clarify that the family employment plan must contain this information.

Comment: Regarding §811.14(c)(5), three commenters suggested that the rule is more restrictive than the Commission's current rule because the phrase "a breakdown in child care arrangements" has been deleted as a description of the type of problems that may serve as reasons for good cause. The commenters suggested that §811.14(c)(5) be amended to parallel the language in §811.14(c)(4)(A)-(B), which provides for good cause when there is no available transportation or a disruption in transportation. The commenters further suggested that the phrase "a breakdown in child care arrangements," be reinserted into the rules throughout to make it clear that even when a parent has child care, such arrangements can be temporarily disrupted due to illness, transportation problems or other reasons.

Response: The Commission agrees that the language on good cause for inability to obtain child care should parallel that for good cause for inability to obtain transportation, and will amend the rule to delete §811.14(c)(4)(B), which describes a "disruption in transportation arrangements." This amendment assures that the language on inability to obtain available child care and on transportation is parallel. The Commission declines, however, to amend §811.14(C)(5)(b) to re-insert the phrase "a breakdown in child care arrangements," as this is redundant. If a recipient experiences a breakdown in care, this situation can be covered under one of the existing child care good cause reasons, such as child care is "unavailable."

Comment: Regarding §811.14(c)(5)(A), four commenters requested that the rules be amended to include a definition for unsuitability of informal care that is the same definition as that included in the Child Care and Development State Plan.

Response: The Commission disagrees with the commenter's suggestion that a definition for "unsuitability of informal care" be included in the rules. TANF regulations require the Commission to define this term only for recipients who are single parents with a child under six years of age. The Commission, therefore, will amend the rule to require Boards to define the term for all Choices individuals, including recipients who are single parents with children under the age of six, preferring to provide Boards with maximum local flexibility to define this term. The amendment will, however, specify that parents shall also have the right to determine care that is unsuitable, to conform to federal parental choice requirements. The Commission will also amend the Child Care and Development Fund State Plan to ensure consistency of terms.

Comment: Regarding §811.14(c)(5)(B), three commenters stated concerns about the definition of "affordable child care arrangements" in the Child Care State Plan. All three commenters requested that the definition be included in the rules and that the definition include any child care arrangement that falls within the maximum rates established by each local Board. The commenters stated that the definition provides that TANF recipients are exempt from co-payments. The commenters went on to state that the USDHHS urged states to set the co-payment rates at a maximum of 10% of the family's gross income, but that some Boards have established higher co-payments. All three commenters recommended that the rules recognize that some families are not able to afford child care co-payments of 9% to 13%, and establish criteria for reducing or waiving co-payments when family circumstances make the co-payment amount a hardship.

Response: The Commission agrees with the commenters' suggestion on a definition for "affordable child care arrangements" and will amend the rule to define "affordable formal child care arrangements," as those that fall within the maximum rates established by each Board. The Commission would like to clarify, however, that "affordability" of child care is not an issue for recipients who need child care to meet the Choices requirements in Chapter 811 because they are exempt from parent co-payments and their child care is fully subsidized. In addition, children eligible for Choices child care are a priority for service, and therefore, do not go on the wait list. Finally, the Commission would also like to point out that, for those for whom a co-payment is applicable, its current Child Care rules at §809.47, "Reduction of Assessed Parent's Share of Cost," allow for a reduction of parent co-payments for families in extenuating circumstances.

The Commission disagrees with the commenters' interpretation of the discussion of parent co-payments in the federal preamble to the Child Care and Development Fund final rule. In that discussion, the USDHHS explicitly states that 10% is offered as a benchmark and is not intended to limit the (state's) lead agency. The lower the parent co-payments, the higher the subsidy. The higher the subsidy, the lower the number of children who can be served. The Commission believes that each Board is in the best position to determine the most appropriate combination of child care income eligibility limits, provider maximum reimbursement rates, and sliding fee scales for parent co-payments to best serve the workforce development needs of residents in each local workforce development area.

Comment: Regarding §811.14(c)(5)(B), three commenters stated that the current definition for appropriate care in the Child Care and Development State Plan suggests that as long as a provider is licensed, registered, or listed with the state, the care is appropriate. The commenters stated that some providers offer care that is unsafe or of poor quality, that being a listed provider with TDPRS is not an accurate measure of whether safe, quality care is being provided, and that the definition should clarify that child care may not be appropriate because it is unsafe or of poor quality, even if it is licensed, registered or listed. The commenters recommended that the definition of appropriate care clarify that care may be inappropriate for one child, even if it is appropriate for another.

The commenters further suggested requiring that children of Choices participants who engage in community service receive the same level of protection as children in self-arranged child care, as regulated by TDPRS, including setting a maximum number of children who may be cared for, the prevention and control of infectious diseases, building and premises safety, continuity of care, and health and safety training.

Response. TDPRS is responsible for licensing and regulating child care that meets the state's minimum requirements for health and safety. Specific information on unsafe or poor quality child care provided by licensed, registered, or listed child care providers should be reported directly to TDPRS. As authorized by state law, the Commission provides Boards with the flexibility to use persons or entities listed with TDPRS to provide Commission-funded child care services. By rule, however, the Commission requires Boards to ensure that only listed providers required to comply with local law protecting the health and safety of children are authorized to provide child care services. Federal law and regulations specify that parents have a right to choose the type of child care option that best suits their needs. The Commission complies with federal requirements on parental choice by requiring Boards to ensure that parents are provided both with information on available child care options as well as assistance, as needed, in choosing child care.

Comment: Regarding §811.14(c)(5)(B)-(C), four commenters stated that the Commission should set a maximum time limit for one-way travel from home to child care provider to work, and provide Boards with the ability to reduce the distance that is considered "reasonable" based on individual circumstances. One commenter recommended that the rule be amended to be the same as the proposed standard regarding transportation in §811.14(c)(4)(C). One commenter also stated that the definition of reasonable distance should be given to each recipient. Finally, in setting reasonable distance, one commenter suggested that the cost of private and public transportation be considered.

Response: The Commission disagrees with the commenters' suggestion to set a statewide standard for a maximum time limit for one-way travel from home to child care provider to work. Because of geographical differences throughout the state, the Commission's intent is to provide Boards with the local flexibility to determine the most appropriate time limit based on regional commuting differences and individual circumstances. In order to provide consistency, the Commission will amend §811.14(c)(4)(C) and §811.14(c)(5)(C) to remove the definition of reasonable commuting distance to provide Boards with maximum local flexibility to define this term.

Comment: Three commenters recommended that the rules specify that TANF families must be informed that recipients have a right to an exception from penalties for failure to participate in work requirements when child care is unavailable in writing (within 10 days of approval of the TANF application) and orally (at specific times, such as at the first face-to-face interview).

Response: While the Commission agrees that recipients must be notified of the penalty exception when child care services are unavailable, it disagrees with the recommendation that the Commission limit local flexibility by promulgating a rule that includes specific procedures for oral and written notifications.

Comment: Regarding §811.14(c)(6), one commenter suggested allowing good cause to be extended to those individuals for whom Boards failed to provide support services, reasonable modifications necessary for equal and meaningful participation, or failed to screen, assess, or address a disability in the family employment plan.

Response: The Commission disagrees that the rule requires clarification. Boards forward information on changes in circumstances that preclude a recipient's participation in Choices activities for an extended period of time to TDHS to review the recipient's work status. The Commission's good cause policy provides the reasonable accommodation necessary to ensure that the family's benefits are not adversely affected during the TDHS review.

Comment: Regarding §811.14(d), three commenters requested that the rules require Boards to notify all TANF families of the penalty exception for the inability to obtain child care, not just single-parent families caring for children under age six. The commenter stated that the lead child care agency must inform "parents who receive TANF benefits" of the right to the exception (45 CFR, 98.33(b)).

Two commenters requested that the rules require Boards, as specified in 45 CFR 261.56, to promulgate such policies and procedures for determining the penalty exception and any other requirements or procedures, such as fair hearing, associated with this provision, and suggested that the rules require Boards to submit such policies to the Commission for approval and retention.

Response: The Commission disagrees that federal regulations require that all recipients must be informed of the penalty exception for an inability to obtain needed child care. The federal regulations at 45 CFR 98.33, based on Section 407 (e)(2) of PRWORA, require states to "Inform parents who receive TANF benefits about the ...exception to the individual penalties associated with the work requirement for any single custodial parent who has a demonstrated inability to obtain needed child care for a child under six years of age." The Commission's rules codify this requirement.

The Commission does agree, however, that Boards must be required, as specified in 45 CFR 261.56, to promulgate such policies and procedures for determining the penalty exception and any other requirements or procedures, such as fair hearing, associated with this provision, and will amend the rule to include this requirement. The Commission disagrees that Boards submit their policies to the Commission for approval and retention, both because the Commission monitors Boards' policies and because the Commission prefers instead to allow Boards maximum flexibility for development of local policies and procedures.

Comment: Regarding §811.14(d)(1)(2), one commenter expressed appreciation for the Commission's inclusion of the requirement to provide information to parents on Boards' policies and procedures for determining an inability to obtain needed child care, other procedures and policies, and rights to fair hearing procedures.

Response: The Commission appreciates the support of the inclusion of this requirement.

Comment: Regarding §811.14 (e)(1), one commenter supported the requirement that good cause be evaluated monthly. The commenter further stated that this will significantly decrease the misuse of good cause designations automatically given for extended periods of time and will increase the effectiveness of the Choices program.

Response: The Commission appreciates the commenter's support of this requirement.

Comment: Regarding §811.22, one commenter suggested that the rules be amended to require Boards to provide to applicants and recipients both voluntary initial screenings and in-depth assessments conducted by qualified professionals using validated screening and assessment tools (in accordance with guidance from the Office for Civil Rights at the USDHHS regarding the application of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act to the administration of TANF programs), and to fully explain the advantages of participation.

The commenter also suggested that the rules be amended to distinguish between an initial, cursory screening and an in-depth assessment, and that the purpose for both is to determine, not just employability, but also the reasonable modifications and support services necessary for an individual to participate in work, education, or training activities as well as to avoid benefit reduction and terminations resulting from a lack of disability accommodation or other barriers to participation. The commenter further suggested the rules be amended to clarify that mental health problems and substance abuse, referred to in the rules, are only examples, and not inclusive, of other disabilities that may be barriers to employment.

Response: In certifying a family's eligibility for temporary cash assistance, TDHS screens for and determines which recipients are not subject to work requirements based on disability. Boards ensure that barriers to employment based on local employer needs are identified and addressed. Identifying and addressing barriers that limit a recipient's ability to work or participate in Choices activities is a collaborative effort between Boards' service providers and recipients. Planned actions to address those barriers are documented in the family employment plan, a dynamic document that is modified as additional information becomes available. Assessment is an ongoing process that begins with an individual's initial contact with Choices services, and based upon individual need, may include standardized screening and assessment instruments. The Commission disagrees that clarification of the definitions for either assessment or barriers to employment is needed.

Comment: Regarding §811.22(a)(1), one commenter stated the rules are unclear because definitions are not provided for what constitutes an in-depth assessment.

Response: The Commission has not provided a definition for in-depth assessment, preferring instead to provide maximum local flexibility for implementation of Choices services.

Comment: Regarding §811.23(d)(1) and (3), one commenter supported the Commission's proposal of a family employment plan based on assessments to address potential barriers that limit the arrangements for support services that address an individual's ability to work and participate. The commenter, however, suggested that the rules be amended to require that the family employment plan address not services and supports, but reasonable modifications needed by individuals with disabilities entitled to these modifications. The commenter suggested a further amendment to require Boards to specify the provision and providers of services, supports, and modifications needed by individuals with disabilities to achieve family employment plan goals.

Response: The Commission appreciates the commenter's support of the family employment plan, but disagrees that the rule requires clarification. Boards' service providers forward information on changes in circumstances that preclude a recipient's participation in work or Choices activities for an extended period of time to TDHS to review the recipient's work status. The Commission's good cause policy provides the reasonable accommodation necessary to ensure that the family's benefits are not adversely affected during the TDHS review.

Comment: Regarding §811.23(d)(3)(C), two commenters supported the requirement of a family employment plan that includes "arranging support services for the individual or the family to address circumstances that limit the individual's ability to work or participate ...." The commenters suggested that the rules be amended, however, to specifically include the arranging of child care services as an essential element of support services that should be discussed with all families, and included in the family employment plans of families who need child care in order to meet the terms and conditions of their plans.

Response: The Commission agrees that child care is a critical support service for families who require such assistance to transition from welfare to work as documented in the family employment plan. The Commission does not agree that the rule should be amended.

Comment: Regarding §811.23(d)(5), one commenter strongly supported the redesignation of the employability plan as the family employment plan as this change recognizes the need to consider the circumstances of the entire family needing to be addressed in order to assist the participant in obtaining and retaining employment. Additionally, the commenter strongly supported the "FEP" requirement for a description of how the required participation hours will be distributed between the adults in two-parent households because it effectively makes the participation requirements for each adult in a two-parent household unmistakable and sets an exact standard for each individual to attain.

Response: The Commission appreciates the support of this provision.

Comment: Regarding §811.13(c)(3) and §811.24, one commenter is concerned that the requirement for a Family Work Requirement form adds additional and unnecessary paperwork, and perpetuates the thinking that one adult in a two-parent household is only responsible for his or her share of required participation hours. The commenter stated that how the family chooses to meet the family participation requirement and distribute the required hours is not important, only that the two-parent family understands that family participation requirements must be met or the mandatory adult(s) will be sanctioned.

Response: The Commission understands and tries to avoid unnecessary paperwork, but does not agree that the form should be modified to remove each parent's hourly participation requirement. This information is required to document the family's work requirement and the agreement between the parents on the division of the required hours. The work requirement applies to the family and state policies allow a family to divide the required family hourly work requirement between two adults. The purpose of the form is to provide appropriate notification to each adult in the family of the family's total work requirement and each adult's agreement to share in that requirement. In the event that both adults are sanctioned due to one adult's failure to comply with his or her hourly requirements, this notification ensures that both adults understand the consequences for failure to comply with their agreements.

Comment: Regarding §811.25, one commenter recommended not distinguishing between core and non-core activities because it would make it more difficult for families to satisfy TANF work requirements and for parents who wish to participate in education and job skills training to improve their employability and increase their ability to obtain higher paying jobs that will enable them to become self-sufficient. The commenter suggested stating that individuals satisfy work requirements if they can participate in work activities, but are unable to participate in the total number of hours of required or core activities due to a disability or child's disability, or because of other barriers to employment. The commenters suggested that the rules are not consistent with the reasonable modification requirements under the ADA and Section 504, because the rules do not clearly state that individuals with disabilities have a right to work fewer hours or to work more hours at "non-core" activities. The rules could be interpreted as discouraging or prohibiting reasonable modifications.

Response: The Commission disagrees with the commenter's recommendation to remove the distinction between core and non-core activities as the definitions in the rules are consistent with federal law and TANF regulations. The Commission also disagrees that the rule requires clarification. Boards ensure that information on changes in circumstances that preclude a recipient's participation in Choices activities for an extended period of time are forwarded to TDHS to review the recipient's work status. The Commission's good cause policy provides the reasonable accommodation necessary to ensure that the family's benefits are not adversely affected during the TDHS review.

Comment: Regarding §811.26, one commenter requested clarification on whether a mandatory recipient who has lost his or her job is required to be enrolled in community service immediately.

Response: To promote rapid reattachment to employment, a mandatory recipient who has lost employment may be enrolled in job search and job readiness if he or she has not met the six-week job readiness and job search limit per federal fiscal year. If he or she has met the six-week limit for the federal fiscal year, community service must be initiated immediately. The Commission will amend the rule to clarify when reemployment assistance is provided to recipients who have participated in Choices for four or more weeks at the time they lose employment.

Comment: Regarding §811.26(a), one commenter disagreed with the requirement that mandatory recipients be placed into unpaid community service. The commenter asked why community service is the only option and pointed out that there is a remaining core activity listed in §811.25, vocational educational training, which might be preferable. The commenter went on to point out the benefits that can be associated with short-term (3-4 weeks) intensive vocational educational training as a means to increase a client's employability. The commenter believed that the provision of vocational educational training will place clients in a "real job" sooner.

Response: For recipients without adequate work skills, as evidenced by their lack of employment, the Commission's intent is to provide an opportunity to learn valuable work skills in the community service setting. Prior to enrollment in community service, Boards ensure that comprehensive job development services offer recipients a wide array of job openings requiring varying degrees of skill levels. The Commission disagrees with the commenter that community service is the only option available after a recipient has been enrolled in Choices services for four weeks. Recipients may also be enrolled in unsubsidized employment, subsidized employment, on-the-job-training, or work experience. These employment activities, as well as community service, may be provided in conjunction with vocational educational training. This ensures an immediate attachment to the labor force, and an emphasis on work and on recipients' personal responsibilities to support their families and to work or participate in other Choices activities. The rules encourage career advancement through work or a combination of work and education and training services.

Comment: Regarding §811.26(a), one commenter disagreed with requiring mandatory recipients, with certain exceptions, who are not in employment activity after four weeks of participation in Choices services be placed in community service because it limits the employment activities in which an individual may enroll. The commenter stated the Work First philosophy is extreme and serves to keep Choices participants in low-end, low-wage jobs that offer little opportunity for career advancement. The commenter stated the rule does not consider that four weeks is an inadequate time period to find employment, given the economy, lack of jobs and that Choices participants are competing for entry-level jobs with a well-educated, experienced workforce.

Response: The Commission disagrees that the rules take the Work First design to the extreme. Choices Ramp Up Plans submitted by Boards in July 2001 documented their plans for providing extensive and comprehensive job development strategies that included employers who need individuals of varying skill levels, as well as self-employment assistance in local workforce development areas with limited employment opportunities. The rule reflects the Boards' commitments, in their Choices Ramp Up Plans, to serve employers and Choices individuals seeking employment. The Commission supports career advancement for Choices individuals, and encourages Boards to provide post-employment services to support job retention and earning increases over time. The Commission intends, however, that recipients without adequate skills to meet the needs of employers be given the opportunity to learn valuable work skills through community service.

Comment: Regarding §811.26(b), one commenter asked if rural clients who are exempt began voluntarily participating in Choices prior to the expiration of the waiver, and were then recoded as mandatory after the waiver expiration, will still be treated as volunteers, for the purposes of §811.26(b).

Response: Recipients exempted under TDHS rules, who voluntarily participate in Choices services and who are later recoded as mandatory by TDHS, must meet the requirements stated in §811.26(a) at the time the change is effective in the TDHS automated system. The Texas welfare waiver expired on March 31, 2002 and Texas must now comply with the federal definitions for the purpose of calculating the state's performance.

Comment: Regarding §811.26(e), one commenter asked if additional hours in educational activities would count towards the 30% cap for individuals who have already met participation in core hours.

Response: The state's 30% cap as specified in Section 407(c)(2)(D) of PRWORA applies to recipients who are meeting their Choices requirements based on hours derived from (1) participation in vocational educational training or (2) participation by teen heads of household in education or education-related employment. The 30% cap includes any vocational education hours that contribute to recipients' work requirements. Recipients who are enrolled in other activities in addition to vocational educational training, and have sufficient participation hours from the other activities, will not be included in the 30% cap. For example, if a recipient is enrolled in community service for an average of 30 hours per week and is also enrolled in vocational educational training, the recipient has met his or her participation requirement through community service. In this instance, the recipient will not be included in the 30% cap regardless of his or her participation in vocational educational training and the months of participation do not count toward state and federal twelve-month limits on this activity.

Comment: Regarding §811.27, one commenter believed that teen heads of household should not be required to enroll in educational activities if they do not have a high school diploma or a GED, preferring that the rules allow these teens to seek employment based on a local evaluation of the teen's circumstances.

Response: The Commission concurs that the attainment of educational credentials is critical to long-term self sufficiency of teen heads of household. The rules, however, do not limit teen heads of household to attendance at high school, but also allow enrollment in education related to employment or other Choices activities specified in the family employment plan.

Comment: Regarding §811.27, one commenter requested clarification on two issues regarding teen heads of households. First, will teen heads of household participating in GED meet participation requirements if they meet satisfactory attendance and progress requirements. Second, will teen heads of household participating in GED be required to participate at least 20 hours a week to meet Choices participation requirements.

Response: In response to the first request for clarification, §811.27 allows teen heads of household who have not completed secondary school or received a GED to either (1) maintain satisfactory attendance at school or the equivalent (i.e., GED); (2) participate at least 20 hours per week in education directly related to employment; or (3) participate in Choices employment and training activities as specified in §811.25. Therefore, satisfactory attendance in GED will meet participation requirements. Boards must work with the educational institution to determine what constitutes satisfactory attendance.

In response to the second request for clarification, teen heads of household enrolled in GED are not required to participate at least 20 hours a week to meet participation requirements. As stated above, teen heads of household must satisfactorily attend GED in order to meet participation requirements. There is no specific hourly requirement imposed for GED. An average of 20 hours per week is required for education directly related to employment.

Comment: Regarding §811.27, one commenter requested a definition of education related to employment as it applies to teen heads of household.

Response: The Commission did not define this activity, preferring instead to provide Boards with the local flexibility to define this activity.

Comment: Regarding §811.28, one commenter suggested deleting the entire section because (1) subsection (a) of proposed §811.28 is identical to §811.14(d)(1), and does not include the requirements mandated by federal law as set forth in §811.14(d)(2); and (2) subsection (b) of proposed §811.28 should be moved to §811.25, which defines work activity participation requirements for various family configurations. The commenter further suggested that the intent of §811.28(b) is to mandate fewer participation requirements for single-parent families with children under age six than for other single-parent families; thus, this provision should be included as a separate subsection of §811.25.

Response: The Commission disagrees. The participation exception requirements are in separate subsections to promote clarity.

Comment: Regarding §811.29, two commenters asked for clarification on exempts who voluntarily participate in Choices prior to the expiration of the waiver, and are then recoded as mandatory after the waiver expiration. Will they lose their volunteer status that qualifies them for extra months of transitional child care benefits?

Response: Exempt recipients who voluntarily participate in Choices services and who are later recoded as mandatory by TDHS will retain eligibility for additional months of transitional child care benefits if there is no break in their participation in Choices services.

Comment: Regarding §811.29, one commenter suggested the rules either be deleted or amended to provide that individuals who are exempt from the Choices program who choose to participate voluntarily are eligible for Choices services such as child care. The commenter asserted the provision is in violation of guidance from the Office for Civil Rights at the USDHHS on the application of the ADA and Section 504 of the Rehabilitation Act to the administration of TANF programs by denying individuals with disabilities who are exempt from mandatory Choices participation on the basis of disability a meaningful and equal opportunity to participate in Choices activities and to receive support services in order to meet the goals of PRWORA to end dependence of needy families on government benefits by promoting job preparation, work, and marriage.

Response: The Commission agrees with the commenter regarding the goal of PRWORA to end dependence of families on government assistance by promoting job preparation, work, and marriage. The Commission disagrees, however, that the rule requires clarification. The Commission's good cause policy provides the reasonable accommodation for exempt recipients whose voluntary participation in Choices activities is temporarily interrupted. The rules reflect the Commission's intent to ensure the effective and efficient use of limited funds to assist families' transition from welfare to work.

Comment: Regarding §811.42, one commenter requested clarification on the inclusion of entrepreneurial training under unsubsidized employment. Are training services a client receives as part of self-employment assistance classified as unsubsidized employment?

Response: The Commission agrees that clarification is needed, and will amend the rule to state that entrepreneurial training provided prior to business start-up is not classified as unsubsidized employment in §811.42. Additionally, entrepreneurial training provided prior to business start-up shall be classified as job skills training as specified in §811.49.

Comment: Regarding §811.43(b), one commenter requested clarification on whether the prohibition of a Board being the employer of record in a subsidized employment activity extends to the Board's contractor.

Response: The rules only prohibit Boards from being the employer of record in a subsidized employment activity.

Comment: Regarding §811.46, one commenter questioned whether the Board or the Board's contractor may enter into community service agreements.

Response: Section 811.46(b) requires Boards to ensure that all recipients subject to community service requirements must be referred to a community service program providing employment or training activities. The rule does not require a community service agreement. However, Boards have local flexibility in determining whether a community service agreement is required and whether they or their service providers may execute the agreement.

Comment: Regarding §811.46, one commenter asked if educational hours in a postsecondary educational component could be counted as participation under community service?

Response: The definition of community service contained in §811.46 does not include educational hours.

Comment: Regarding §811.2 and §811.47, three commenters stated that the rules should: (1) define "Choices individual" or use the phrase "mandatory recipients" if it is intended to be covered and (2) clarify that providing child care qualifies as a core work activity whether or not the children are children of Choices participants doing community service as a core work activity. The commenters stated that allowing a Choices participant to provide child care for children whose parents perform community service is not practical for the parent providing the care because the community service may end when a job is obtained or the worker switches to another work activity so the participation may end at any time. Also, the Choices participants in community service who find employment or switch work activities may need to find other child care for some work hours, which makes it more difficult for them to keep jobs or satisfy work activities.

The commenters further stated that the rule should ensure that recipients providing child care are able to improve their employability by providing child care to all families, not just Choices families and require that Boards arrange training and technical support to enable recipient child care providers to make the transition into jobs as unsubsidized child care providers. The commenters suggested clarifying that recipients have the option and must not be required to engage in providing child care.

Finally, the commenters stated that recipients should be protected by the FLSA provisions that apply to recipients providing child care as a core activity. The commenters suggested either removing the distinction between core and non-core activities, which the commenters strongly recommend for all recipients and particularly for those who are providing child care as their work activity; or defining all child care-related education and training as vocational educational training, a core activity. Thus, recipients could integrate necessary training with their work activities to enable them to achieve self-sufficiency.

Response: The Commission did include a definition for "Individual" in §811.2(6) that means an applicant, a recipient, or a former recipient. However, the Commission agrees that the definition needs clarification, and will amend the rule to define a "Choices Individual." The Commission will also amend §811.47 to specify that this section applies only to recipients participating in Choices services. The Commission disagrees with the recommendations on the flexibility extended to Boards to establish policies allowing recipients to fulfill their work requirements by providing child care for other recipients participating in community service. This core activity is specifically authorized in Section 407(d)(12) of PRWORA and TANF federal regulations. The Commission declines to impose restrictions beyond federal requirements in order to provide maximum local flexibility to Boards.

Section 811.21 requires Boards to ensure that employment and training activities are conducted in compliance with the FLSA. Federal law and regulations specify that only child care provided to a child of a recipient participating in community service may be counted as a core activity in meeting Choices requirements. As with all Choices work activities, the intent is for recipients to gain skills that will enable them to obtain unsubsidized employment.

Comment: Regarding §811.47(b), one commenter strongly disagreed with the rule because it poses a serious health risk to children, and suggested it be deleted unless the quality of child care services provided by a Choices participant can be assured. The commenter further suggested that Choices individuals do not have the education and/or financial resources to complete the state's process for becoming a "registered child care provider," a designation necessary to become a Self-Arranged Child Care Provider. If the provider is not a close relative as specified in the CCDF regulations, then the provider must be licensed, registered or otherwise authorized to provide care in Texas under the provisions set forth in the TDHS regulations. Because the Choices participants will not typically be licensed or otherwise authorized to provide care and not a close relative, the commenter believed that it is unlikely that Choices participants will be able to provide care.

Response: The Commission disagrees as the rule complies with federal law and TANF regulations. Recipients are not required to provide child care as a community service activity, but if elected, the recipient could receive available child care training. The rule reflects the Commission's intent to extend the flexibility afforded to states to Boards, allowing this work activity to be established at the discretion of Boards.

Comment: Regarding §811.48, one commenter expressed a concern that the twenty-hour community service requirement may hinder the provision of Texas Rehabilitation Commission specialized services.

Response: The Commission appreciates the commenter's concern for individuals in need of specialized services, but disagrees that the community service requirement would hinder the provision of specialized services. Rehabilitative services are designed to assist an individual in addressing his or her physical or mental barriers and finding employment. The Commission's intent is to complement these services by assisting recipients through an opportunity to learn valuable work skills.

Additionally, the rules do not include a minimum twenty-hour per week community service requirement. Rather, the total required hours of participation in community service is calculated each month by dividing the total value of a family's temporary cash assistance and food stamp benefit amounts by the federal minimum wage. For example, a recipient whose temporary cash assistance and food stamp benefit amounts total $412 in a month would be required to participate in community service for 80 hours in that month ($412 / $5.15 = 80 hours). If this calculation results in a recipient participating less than twenty hours in any given week, then the Board must require the recipient to complete the twenty-hour per week core service requirement by participating in an additional core activity.

Comment: Regarding §811.48, one commenter asked if academic courses provided by a postsecondary educational institution will be allowed if they are part of a vocational educational training curriculum.

Response: Academic courses that are part of a vocational educational training curriculum will be an allowable core activity, within the restrictions and limitations described in federal and state laws and rules.

Comment: Regarding §811.49(a), one commenter raised several issues on the definition for Job Skills Training. One comment dealt with a concern over job skills training being defined a non-core activity instead of a core activity. According to the commenter, the definition includes "soft" skills, as well as literacy, ESL, and adult basic education; recent research (and practical experience) indicate that "soft" skills may be more important to help welfare clients gain employment than "hard" skills; and basic skills are essential if clients are to go beyond entry level employment and advance to jobs paying a living wage. It seems ironic that such training, which may be the best way to prepare some harder-to-serve welfare recipients for jobs and eventual self-sufficiency, cannot be considered a core activity.

A second comment stated that most occupational educational training should also include a mix of needed "soft" skills and basic skills in programs that concentrate on specific occupational skills. Because the definition of Job Skills Training includes some activities which are very similar to those listed under Job Search Assistance, i.e., §811.41(C), (I) & (J), similar activities could be provided under the heading of personal development and pre-employment classes. The commenter questioned whether it can be assumed that as long as the major emphasis of an activity fits the definitions for occupational educational training or Job Skills Training, that activity will be treated as a whole which complies with the regulations.

Finally, the commenter stated that attempting to define Job Search Assistance as a separate, limited activity may be an exercise in futility, because the purpose of Choices is to help TANF recipients obtain employment, so every activity is, in a broad sense, "job search assistance."

Response: In response to the first comment, job skills training is a federally required non-core activity as defined in federal law and TANF regulations. In response to the second comment, the Commission is unclear on the commenter's intent with regard to treating activities as "a whole." The Commission believes that the commenter is requesting clarification on activities that can be provided under the definition of two separate allowable activities, such as job readiness and job skills training. The Commission agrees that certain activities may be provided under both job readiness and job skills training. If the intent of the activity is to provide job skills training, then all services included in that activity are defined as job skills training. The Commission also clarifies that there is no Choices activity defined as occupational educational training. The Commission interprets the comment to reference vocational educational training. In response to the third comment, the Commission agrees that the intent of all Choices activities is to assist Choices individuals in obtaining and retaining employment; however, the Commission disagrees that every activity is defined as job search assistance.

Comment: Regarding §811.49, one commenter asked if pre-employment classes can be used as a job skills training activity instead of job readiness. The commenter also asked if job skills training could be used in conjunction with other activities to meet participation.

Response: The Commission would like to clarify that various types of activities directly related to employment may qualify as job skills training, including personal development and pre-employment classes. These are activities that may also be provided under job readiness. The Commission also confirms that job skills training may be provided in conjunction with other activities to meet Choices requirements. However, since job skills training is a non-core activity, it must be provided in conjunction with core activities that meet the requirements of §811.24.

Comment: Regarding §811.49 and §811.50, one commenter asked whether or not study time is allowed to count toward an individual's participation requirement.

Response: The Commission intends that study time for related academic courses counts toward a recipient's work requirement, within the restrictions and limitations described in federal and state laws, rules and guidelines, and will amend the rule to include that clarification.

Comment: One commenter requested clarification on whether the activities contained in §811.49 and §811.50 are considered non-core activities or components that could be included under vocational educational training.

Response: The activities contained in §811.49 (job skills training) are non-core activities and are not part of vocational educational training. The activities in §811.50 (education services) are non-core activities for recipients age 20 or older who have not completed secondary school or received a GED. Educational services for recipients who are teen heads of household age 19 or younger as defined in §811.27 are core activities.

Comment: One commenter requested clarification regarding §811.50, and the eligibility criteria for educational services for persons who have not completed secondary school or received a certificate of general equivalence. The commenter asked if someone who is over the age of 20, who has a high school diploma or general equivalency, but has a literacy assessment that shows they have less than a 12th or 9th grade educational level, can still receive job skills training services. Does the fact that they have the high school diploma or GED make them ineligible for job skills training as a non-core activity?

Response: The Commission wishes to clarify that recipients age 20 or older who have completed secondary school or received a certificate of general equivalency, irrespective of their functional literacy levels, may not participate in educational services at §811.50. Participation in work-based literacy services would be an allowable non-core activity under job skills training at §811.49.

Comment: Regarding §811.50, one commenter suggested the rules be amended to allow individuals to satisfy work requirements by participating in education in a much broader range of situations, including adult literacy programs.

Response: The Commission disagrees. The rules comply with federal law and TANF regulations that call for an immediate attachment to the labor market. The Commission expects that post-employment services would include work-based training designed in conjunction with employers to promote continuing education and career advancement.

Comment: Regarding §811.51(e)(2), one commenter requested clarification on the language in §811.51(e)(2) and in the use of Rider 21a funds that stated that only former TANF recipients "at risk" of returning to TANF be eligible for services and asked whether Boards may locally define "at risk," as including recovering substance abusers, victims of domestic violence, and families coping with mental illness or special needs.

Response: Services to former recipients shall only be provided to individuals who are at risk of returning to temporary cash assistance based on their classification as financially needy. Therefore, Choices services to former recipients are linked to an income eligibility test that is based on an individual's continued eligibility for Commission-funded child care or for food stamp benefits. Boards shall not define "at risk" of returning to temporary cash assistance based on personal or family situations such as recovering from substance abuse or being a victim of domestic violence.

In regard to Fiscal Year 2002 Rider 23(a) funds, the Commission contracted with certain Boards to provide services to assist former recipients to retain employment. The Commission believes that the most effective service strategy is to initiate these services immediately upon denial of temporary cash assistance while families continue to be eligible for transitional child care services. The Commission disagrees that the definition of "at risk" of returning to temporary cash assistance should be revised to include former recipients who are on the waiting list for Income Eligible child care.

Comment: Regarding §811.51, one commenter expressed appreciation for the Commission's inclusion of the section on post-employment services as an adjunct to the Work First philosophy. The commenter praised the rules because they include a variety of post-employment activities without restricting the local flexibility. The commenter suggested that the only thing lacking in this section is the additional funding to pay for post-employment activities.

Response: The Commission appreciates the commenter's support of the inclusion of post-employment services. With regard to the comment on the lack of additional funding, the Commission emphasizes that in addition to TANF funds, Boards may have other funding sources available within the One-Stop Service Delivery Network to support the post-employment needs of individuals.

Comment: Regarding §811.52, one commenter requested clarification for whether the determination of the need to receive parenting skills training occurs only at the initial assessment or at both the initial and ongoing assessments.

Response: The Commission's intent is that recipients be referred for parenting skills training at the time the need is identified, whether during the initial or ongoing assessments. Boards are provided flexibility in determining how assessments are conducted, but are responsible for addressing barriers that will affect a recipient's ability to obtain and retain employment at the time the need is identified.

Comment: Regarding §811.61(b), two commenters requested clarification on whether support services may be provided to Choices clients at the time (1) a penalty is requested; (2) the client is coded as "in sanction status" by the TDHS; or (3) the client resumes meeting work requirements. The commenter also asked if Boards must discontinue child care services to teen parents enrolled in alternative high schools who are sanctioned but still receiving child care.

Response: The Commission's intent is that Commission-funded child care be provided to recipients who are demonstrating personal responsibility in meeting the requirements of Chapter 811. At the time a penalty is requested, all support services must be discontinued. No support services are to be provided until such time as the recipient is once again engaged in work activities and meeting requirements, unless the Board determines, on a case-by-case basis, that a recipient needs, and therefore, shall receive support services to comply with the requirements of this section. Teen heads of household satisfactorily attending high school in an "alternative" setting would be considered meeting requirements and eligible for child care services. Support services must be reinstated for recipients who are in sanction status but resume Choices participation.

Comment: Regarding §811.61(b), one commenter requested clarification on whether a sanctioned Choices parent who is enrolled in training and co-enrolled in WIA can continue to receive child care services using WIA funds.

Response: The Commission's intent is that Commission-funded child care be provided to recipients who are demonstrating personal responsibility in meeting the requirements of Chapter 811. Recipients who are not meeting their Choices requirements shall not receive support services funded by TANF or any other funding source, including WIA.

Comment: Regarding §811.61(b), two commenters suggested deleting this provision because many individuals, without good cause, will not be able to meet Choices participation requirements unless and until child care and other supportive services are provided. The commenters stated that the provision denies needed support services to individuals who are unable to find work in a slowing economy and may need support services, especially child care, to participate in job search activities. The commenters suggested requiring that families who engage in core activities at less than the required level be allowed to receive child care services. The commenters stated that the provision violates guidance from the Office for Civil Rights at the USDHHS by denying individuals with disabilities who are exempt from mandatory Choices participation based on disability a meaningful and equal opportunity to participate in Choices activities and to receive support services.

Response: The Commission disagrees. Child care assistance is provided to recipients who are fully engaged in Choices activities that will enable them to obtain and retain employment, but it is the Commission's responsibility to establish policies that promote effective and efficient use of limited funds. TDHS establishes criteria and determines who is not subject to work requirements based upon disability. Information regarding changes in circumstances that will preclude a recipient's full engagement in work activities for an extended period of time are forwarded to TDHS to review the recipient's work status. The Commission's good cause policy provides the reasonable accommodation necessary to ensure that the family's benefits are not adversely affected during the review by TDHS.

Comment: Regarding §811.61(b), one commenter recommended that the rule be either deleted or amended to clarify how long support services may be provided when there is an interruption in an individual's participation in work activities that resulted in failure to meet assigned work requirements during a month, and, if the support services were stopped, when they may be resumed. The commenters also stated that the rule interferes with the local discretion necessary to assist TANF recipients to meet participation requirements by allowing local decisions on when support services need to be provided.

Response: The Commission's intent is that Commission-funded child care not be provided to a recipient participating in Choices but not meeting the requirements of Chapter 811, beginning at the time the failure becomes known by the Board's service providers and continuing until such time as the recipient is once again fully engaged in work activities and meeting requirements.

In this example, the recipient discontinued participation in her assigned work activity, but quickly resumed participation after being counseled by the Board's service providers. Ideally, the Board's service providers would have arranged additional activities in order for the recipient to make up the missed hours of participation. If this is not feasible; however, and the recipient does not meet the number of participation hours assigned for that month, a sanction request must be forwarded to TDHS. In this example, however, child care assistance may continue because the break in participation was short in duration and the recipient began meeting requirements once again before it was practical to terminate the authorization for Choices child care. The resumption and continuation of child care assistance, irrespective of the recipient's sanction status, is contingent upon the recipient's willingness to engage in Choices activities and to meet the requirements of Chapter 811.

Comment: Regarding §811.62(b), one commenter expressed appreciation for the Commission's inclusion of the provision for transitional child care subsidy in the regulations, and would like to encourage the Commission to proceed with a funding request to the Texas Legislature for transitional child care subsidy funds, without which this provision is meaningless.

Response: State law established transitional child care as a priority for service. The Commission appreciates the support provided by the commenter in recognizing the importance of transitional child care services provided to Choices individuals moving from welfare to work.

Comment: Regarding §811.71, two commenters stated that the rules should clarify that the local Board review process can be used to appeal a decision of either a Texas Workforce Center Partner, or of the Choices program itself.

Response: The Commission agrees that appeals relating to the Choices services should be included, which are separate from appeals that are handled by TDHS. Because the language in §811.71(a) and 40 TAC Chapter 823 also provides for appeals relating to Choices services and activities, the Commission does not agree that amending the rule is needed.

Comment: Regarding §811.71, Board Review, two commenters requested that the Boards be required to establish procedures relating to the local Board review process. The commenters also requested that the appeal process include a number of specific provisions relating to how much time an individual has to request a review; who will conduct the review; whether the appeal is an in-person meeting or hearing, phone hearing, or paper review; where the appeal will take place if it is an in-person meeting or hearing; who the appeal should be addressed to; who will make the decision; and any other relevant information. In §811.72, Appeals to the Agency, one commenter indicated that state-level appeal procedures should include the same information.

Response: The Commission agrees that the Boards should establish local procedures consistent with the Commission rules for handling local appeals and that best practices would recommend including the information indicated by the commenter; however, since the Commission rules allow the local reviews to consist of a staff review of the file, as reflected in §811.71(c) and the state-level hearing rules require the Boards to provide notices regarding the appeal process in 40 TAC §823.3, the Commission does not agree that the rules need amending. In conducting local reviews, the Commission recognizes that Board policy may reflect a choice to expedite the local review and appeal process by referring issues under review to the state for immediate setting of a state-level hearing.

The Commission agrees that providing information relating to the state-level appeals process is appropriate; however, the hearing notice that Boards ensure is provided to individuals under 40 TAC §823.3 should generally include information regarding the appeal process. Also, the majority of the information requested is contained in the rules at 40 TAC Chapter 823; therefore, the Commission does not agree with amending the rules at this time. In addition, the notice of hearing issued at the state level includes information relating to many of the items requested. For example, there is information regarding the hearing being held by telephone, unless an in person hearing is necessary, that a hearing officer will be assigned to hold the hearing, and the time and date of the hearing. For that reason, the Commission does not agree that changes to the rules are necessary.

Comment: Two commenters requested that the Boards be required to distribute Board review policies in writing to Choices participants, and to submit their policies to the Commission for approval. The commenter stated that the Commission should retain copies of these policies and make them available to the public upon request.

Response: The Commission agrees that the Boards' review policies should be provided to individuals in writing and the Commission rule at §823.3, which provide for notifying persons of the appeal process, is intended to mean notification in writing. Because 40 TAC Chapter 823 is not open for comment and the rules can be interpreted as requiring written notification, the Commission does not see a need to amend those rules at this time. The Commission would agree that the best practices of Boards should include providing notice of the appeal process in writing to individuals. The Commission does not agree that it is necessary to require that the Boards' local policies be sent to the Commission for approval since the Commission's monitoring process should verify the Boards' compliance with these rules.

Comment: One commenter stated that some Boards had no written procedures for appealing decisions of the Choices program under §811.71, which would include good cause decisions based on child care unavailability.

Response: The Commission agrees that methods for requesting local reviews must be made clear to individuals in the workforce area that receive an adverse decision from the Commission. Because Boards are required to comply with the provisions related to local reviews and appeals as required by 40 TAC Chapter 811 and compliance with Chapter 823, the Commission does not agree with amending the rules.

Comment: One commenter requested that the rules clarify that Boards must allow persons with disabilities to request a review orally if needed due to a disability and to state that individuals with disabilities must be offered assistance during the review process if needed. The Boards should be required to inform individuals of the right to participate in a hearing and/or have a different review process. The Commenter also stated that the requests should inform individuals of the right to request sign language interpreters and translators if needed. The commenter also stated that Boards should inform individuals about the ability to be represented by another.

Response: The Commission agrees that Boards should provide accommodations for persons with disabilities when necessary and to take appropriate steps to communicate the accommodations when applicable. Because the Boards are charged with ensuring that persons with disabilities are provided access to local reviews and state-level appeals as a matter of law, the Commission does not agree with repeating that requirement in each of the Commission rules. The procedures and practices of the Boards should already address these concerns. For that reason, the Commission does not agree with amending the rules.

Comment: One commenter indicated that the rules should clearly state that the Commission appeal process can be used to appeal a decision of a Workforce Board concerning either a Texas Workforce Center partner, or of the Choices program itself.

Response: The Commission agrees that appeals include appeals relating to the Choices services, which are separate from appeals that are handled by the TDHS. Because the language in §811.71(a) broadly covers appeals relating to the Choices services and activities, and those decisions are appealable to the state level under §811.72, the Commission does not agree with amending the rules.

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