Final TANF Rule as published in the Federal Register 4/12/1999

Federal Register / Vol. 64, No. 69 / Monday, April 12, 1999 / Rules and Regulations
parent’s demonstrated inability must be
for one or more of the following reasons:
• Appropriate child care within a
reasonable distance from the
individual’s home or work site is
unavailable;
• Informal child care by a relative or
under other arrangements is unavailable
or unsuitable; or
• Appropriate and affordable formal
child care arrangements are unavailable.
Refusal to work when the State
determines an acceptable form of child
care is available is not protected from
sanctioning.
Because each State has the authority
to determine whether the individual has
adequately demonstrated an inability to
obtain needed child care, we expect the
State to define the terms ‘‘appropriate
child care,’’ ‘‘reasonable distance,’’
‘‘unsuitability of informal care,’’ and
‘‘affordable child care arrangements.’’
The State must also provide families
with the criteria (including the
definitions) that it applies in
implementing the exception and the
means by which a parent can
demonstrate an inability to obtain
needed child care.
To keep families moving toward selfsufficiency
and to promote State
compliance with this penalty exception,
our rules provide that States must have
processes or procedures in place that:
(1) enable a family to demonstrate its
inability to obtain needed child care; (2)
inform parents that the family’s benefits
cannot be reduced or terminated when
they demonstrate that they are unable to
work due to the lack of needed child
care for a child under the age of six; and
(3) advise parents that the time during
which they are excepted from the
penalty will still count toward the time
limit on Federal benefits at section
408(a)(7) of the Act, if applicable.
In response to numerous comments,
as discussed below, the language in
§§ 261.56 and 261.57 reflects these
expectations. In this section, which
focuses on the responsibilities of the
State to inform parents, we also require
that the information States provide must
include the definitions or criteria that
the State uses in its determination
process.
The regulations for the Child Care and
Development Fund (CCDF) reinforce the
importance of providing this vital
information to parents by also requiring
the child care lead agency, as part of its
consumer education efforts, to inform
TANF parents seeking child care in the
CCDF system of the existence of the
child care exception and how to
demonstrate an inability to obtain
needed child care.
The CCDF rule requires the lead
agency for child care to coordinate with
the TANF agency in order to understand
how the TANF agency defines and
applies the terms of the statute
regarding the penalty exception and to
include the definitions of the terms or
criteria in the CCDF plan.
We took this child care rule into
consideration in drafting our proposed
rule. Under § 271.15, we required that
the definitions and criteria be
submitted, but did not specifically
require that the TANF agency submit
them. Our goal was to ensure that this
information was available for audit and
penalty purposes and that it be part of
the public record, not to create an
unnecessary burden for States. We have
not altered this policy in these final
regulations.
We received many comments on the
provisions in this section and made
changes as discussed below.
Comment: Most commenters objected
to having the responsibility for
informing families about the child care
exemption in the hands of the child care
lead agency and urged that we give the
responsibility to the TANF agency.
Response: In the NPRM, we did not
specifically require the TANF agency to
inform clients about the exception to
sanctioning because the CCDF NPRM
(now the CCDF final rule) already
required it. In the NPRM preamble, we
stated our expectation that States would
inform clients, but did not name the
entity responsible. Our intent was to
avoid imposing an additional Federal
burden on the States where the CCDF
requirement addressed the situation
adequately. However, advocates and
States alike made a compelling
argument that not all TANF clients
covered by this protection would
necessarily be referred to the child care
lead agency. Therefore, we have revised
the regulatory language at § 261.56. In
the final rule, the TANF agency must
inform clients of the existence of the
child care exception to sanctions and
how to demonstrate an inability to
obtain needed child care. This
requirement is in addition to the
requirement, in the CCDF rules, that the
CCDF agency inform TANF parents
about the exception.
Comment: Many States objected to
our requiring criteria and definitions,
arguing that we had shifted the burden
of proof from the individual to the State.
We also received a few general
comments to the effect that our rules did
not adequately protect individuals from
harsh State policies.
Response: We do not believe that
requiring States to inform parents of
their rights, including the definition of
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key terms in those rights, shifts the
burden of proof to States. The
individual needs to know how the State
defines key terms to determine whether
the exception applies to his or her case.
Regarding the concern over harsh
State policies, States have considerable
latitude in implementing the child care
protections. We think the final
regulations protect families as much as
possible, given the regulatory restraints
of section 417.
Comment: A few commenters urged
us to require States to inform recipients
about available child care subsidies and
to assist them in obtaining appropriate
and affordable child care.
Response: While we agree that
assisting recipients locate child care is
a reasonable expectation, the statute at
section 417 limits our ability to regulate
in this area. Given that child care is
widely recognized as a fundamental
supportive service, necessary for
recipients to obtain and maintain
employment, we are confident that
States will adopt practices that inform
recipients about available child care
providers. States understand the
importance of employment retention
and career advancement for recipients.
In fact, the publication ‘‘Working Out of
Poverty’’ by the NGA Center for Best
Practices, recognizes the need to inform
recipients of the availability of
transitional supports such as child care
and transportation assistance early, for
example, during eligibility
determinations and assessments, and as
part of job search and job readiness
programs.
Comment: Some commenters were
concerned that the NPRM left room for
a parent who wishes to use a particular
type of child care that is not available
to refuse appropriate available child
care arrangements, without risk of a
penalty. For example, they feared that a
parent who wants only informal relative
care, but has no relative available to
provide care, could refuse affordable,
suitable center-based care. States argue
that this result would be contrary to
Congressional intent and the goals of the
Act. They urged us to make clear that
refusing work under such circumstances
is not protected under the child care
exception to a sanction.
Response: This issue stems from an
interpretation of the wording of the
statute, which uses the phrase ‘‘one or
more’’ in describing the reasons for a
parent’s demonstrated inability to
obtain needed child care. However, we
agree with the commenters that such a
result would be contrary to
Congressional intent, which was to
protect individuals from sanction when
there was no appropriate child care, not