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Federal Register / Vol. 86, No. 2 / Tuesday, January 5, 2021 / Rules and Regulations
in 7 CFR 273.7c18ii be revised to state, from the time an E&T provider determines an individual is ill-suited for an E&T component until after the State agency takes one of the actions in iB
of this section that leads to Stateconfirmed enrollment in an appropriate SNAP E&T component or workforce partnership that meets mandatory E&T
requirements, or else leads to an exemption, the individual shall not be found to have refused without good cause to participate in mandatory E&T.
The Department understands that, at the time a State agency takes one of the four actions in 7 CFR 273.7c18i, there may still be actions the participant must take to follow through, for example, beginning the E&T program or workforce partnership; however, the Department believes it would be too administratively burdensome to track the end of the period when an individual cannot be found to have failed to comply with mandatory E&T to multiple disparate end points i.e, when someone starts E&T, when someone receives good cause etc.. In addition, while the language in 7 CFR
273.7c18ii specifies for a period after a provider determination during which an individual cannot be found to failed to comply with E&T, at the end of this period, State agencies still have a responsibility to determine exemptions and good cause related to the mandatory E&T requirement, as appropriate, as they would in any other case. As a result, the Department does not believe the additional language proposed by the commenter is necessary, and does not modify the text at 7 CFR 273.7c18ii.
The Department received several comments urging the Department to not allow ABAWDs to accrue countable months after they received a provider determination. A professional organization suggested ABAWDs would be unduly penalized for a decision that is ultimately outside of their control, and the work that ABAWDs did complete within those months would go unacknowledged. The commenter believed that pausing the accrual of countable months while awaiting the State agency to take action on one of the four options in 7 CFR 273.7c18iB
would also allow State agencies adequate time to react, re-assess, and reassign ABAWDs. A not-for-profit agency explained that, at present in their State, when organizations attempt to refer individuals back to the State agency for reasons of suitability, administrative delays often prevent a timely response. The commenter noted this leaves the ABAWD in limbo at no
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fault of their own. The commenter argued the time spent waiting for State agencies to respond should not count towards the three-month time limit.
Another not-for-profit agency explained the Department is essentially saying that it is acceptable to disconnect an ABAWD from the E&T service that was allowing that individual to fulfill the ABAWD work requirement, at the same time expecting that individual to fulfill the work requirement on their own, while the State agency has unlimited time to take one of the four required action steps to match that ABAWD to an appropriate service. Moreover, the commenter explained, the ABAWD is not at fault if their E&T provider makes a provider determination for the services offered by the provider. Given the unequal expectations in this situation, the commenter strongly encouraged the Department to reconsider its requirement that ABAWDs may accrue countable months toward their three-month participation time limit after having received a provider determination, while at the same time acknowledging that doing so may be outside of the scope of this particular rulemaking. Another not-forprofit agency was concerned that E&T
providers may actually be hesitant to make a provider determination for an ABAWD if they know that an ABAWD
may begin to accrue countable months, resulting in an ABAWD continuing in a component where they are not able to benefit and may ultimately not complete. This not-for-profit agency also urged the Department to add regulatory language that would direct State agencies to re-assess ABAWDs for good cause if the ABAWD received a provider determination. The commenter explained that not all individuals who receive a provider determination for a particular component would have good cause, but some might, and ABAWDs should be re-assessed after a provider informs the State agency of a poor match to determine if it might suggest they should have good cause for not fulfilling the ABAWD work requirement.
The Department understands the concern that an ABAWD may accrue countable months after receiving a provider determination and, in many cases, the ABAWD may receive the determination through no fault of their own e.g., the ABAWD was mis-assigned by the State agency. However, the mandatory protection from sanction in section 6d4O of the FNA only applies to the requirement to participate in E&T. ABAWDs have many ways to meet the ABAWD work requirement
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outside participation in E&T. The Department also notes that ABAWDs will accrue countable months even if they are participating in E&T, but not fulfilling the ABAWD work requirement in accordance with 7 CFR 273.24a1.
The Department does believe it is important that the ABAWD be notified of the provider determination as soon as possible, so that the ABAWD can seek out other work or training opportunities.
For this reason, the Department has directed State agencies in 7 CFR
273.7c18iA to notify ABAWDs within 10 days of receiving notification of the provider determination from the E&T provider, that the ABAWD will accrue countable months toward their three month participation time limit the next full benefit month after the month during which the State agency notifies the ABAWD of the provider determination, unless the ABAWD
fulfills the ABAWD work requirement in accordance with 7 CFR 273.24, or the ABAWD has good cause, resides in a waived area, or is otherwise exempt. As discussed earlier, as a best practice, providers are encouraged to provide the reason for the provider determination to the State agency and suggest a recommended next step for the individual. If the provider was providing case management, the case manager is required in accordance with 7 CFR 273.7e1, as re-designated, to share information about a possible exemption or good cause with the State agency.
In conclusion, the Department is making several changes to the proposed regulatory text at 7 CFR 273.7c18:
Replacing the phrase ill-suited determination with provider determination; stating that the E&T
provider has the authority and the responsibility to make a provider determination; requiring the E&T
provider to notify the State agency of the provider determination within 10
days; replacing the requirement to send the NETPC with a requirement to notify the participant about the provider determination and the accrual of countable months for an ABAWD;
stating that ABAWDs will accrue countable months toward their three month participation time limit the next full benefit month after the month during which the State agency notifies the ABAWD of the provider determination, unless the ABAWD
fulfills the ABAWD work requirement in accordance with 7 CFR 273.24, or the ABAWD has good cause, resides in a waived area, or is otherwise exempt;
requiring the State agency to notify the E&T participants of the provider
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