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Federal Register / Vol. 86, No. 2 / Tuesday, January 5, 2021 / Rules and Regulations
necessary. In accordance with 7 CFR
272.6a, State agencies are prohibited from discriminating against any applicant or participant in any aspect of SNAP administration for reasons of age, race, color, sex, disability, religious creed, national origin, or political beliefs. Non-discrimination language must also be in all contracts or agreements between State agencies and their E&T providers, and the USDA nondiscrimination statement must be on all forms. In addition, the Department at 7
CFR 272.6 has procedures in place to monitor for discrimination and manage complaints. At the same time, the Department acknowledges there is great deal of flexibility in the types of E&T
programs offered among and within States, and believes it is not feasible to develop a finite list of criteria for use in making provider determinations for all E&T providers to abide by. In fact, a finite list of criteria could actually be harmful by reducing the flexibility State agencies and E&T providers have to target programs to individuals with a wide range of needs. The Department encourages State agencies to work upfront with their providers to identify the criteria for referring individuals to that provider and ensure staff are properly screening prior to referring individuals.
This would go a long way in reducing the need for provider determinations. In addition, the Department agrees that State agencies have a responsibility to monitor their E&T providers to ensure provider determinations are fair and non-discriminatory. The Department will provide oversight of State agency implementation of this provision through ongoing management evaluations.
A not-for-profit agency encouraged the Department to consider allowing E&T participants to request reassignment if the participant believes the provider is ill-suited to the participants needs and interests. As stated above, the Department will allow E&T providers the flexibility, with State agency oversight, to develop the criteria for use in making a provider determination. However, the Department encourages State agencies and providers to take into consideration participants needs and interests when determining whether it is appropriate to refer and enroll them in certain activities. The Department would encourage the use of provider determinations when a participant does not feel they are a good fit for the E&T
component.
The Department received two comments from not-for-profit agencies recommending that anyone who has received a provider determination
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should have the right to appeal that decision through the fair hearing process. The Department understands that individuals may disagree with the decision made by a provider that they are not a good fit for a particular component. However, the Department does not believe that requesting an appeal through the fair hearing process at 7 CFR 273.7f6 is the appropriate approach, as a provider determination does not, in and of itself, result in a sanction or disqualification from SNAP
benefits. The Department would encourage any participant who disagrees with the provider determination to discuss their concern with the State agency. The State agency may be able to help the participant resolve any issues that may have led to the provider determination and to then allow a re-referral. In addition, as discussed above, if an individual believes they have been discriminated against, the Department has procedures in place at 7 CFR 272.6 to file a complaint, and all State agencies must make these procedures available to all SNAP participants.
The Department received one comment on the timing for notifying the State agency when a provider determination has been made. One commenter recommended that the E&T
provider be required to notify the State agency expediently, with a timeframe of no longer than 14 days. The Department agrees that timely notification of the provider determination is an important step and, the sooner the State agency knows of the determination, the sooner the State agency can inform the participant and begin to take one of the four actions in 7 CFR 273.7c18iB.
The Department notes that E&T
providers are required at 7 CFR
273.7c4 to notify the State agency within 10 days if a participant fails to comply with E&T requirements. The Department is choosing to adopt the same 10-day timeframe for E&T
providers to notify the State agency of the provider determination and has updated the regulatory text.
Commenters had differing opinions about the types of information that should be shared between the State agency and the E&T provider regarding E&T participants. Several commenters had concerns over provider-participant confidentiality when E&T providers share data with the State agency on the ill-suited determination, actions that may result in a breach of trust with the participant. Two commenters recommended the Department define specific fields that minimize confidentiality concerns, such as participant does not meet specific
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provider eligibility criteria, and recommended that all E&T participants sign a release of confidential information at intake with the provider.
One commenter suggested that the provider include a recommended next step, such as suggest reassessment for exemption for mental/physical fitness, when they notify the State agency of the provider determination. However, a notfor-profit agency did not believe it was necessary for the State agency to even receive the reason for the provider determination. The commenter strongly supported the proposal to require the State agency to act on the provider determination, even if the E&T provider does not inform the State agency of the reason for the determination, as the State agency can make its own decision about the next step. On the other hand, a local government agency believed the State agency could not appropriately monitor for potential discriminatory actions if there is not a requirement that the provider share information on provider determinations with them. A
not-for-profit agency urged the Department to hold State agencies accountable for collecting, analyzing, and reporting on the characteristics of jobseekers with a provider determination, focusing on the characteristics of race, ethnicity, gender, and age. To enhance State agencies ability to provide oversight, the commenter also recommended that the Department build out accountability mechanisms for situations in which the E&T provider makes a provider determination but fails to provide the reason for that determination. The Department understands that E&T
providers may develop relationships with E&T participants and may learn personal or sensitive information. At the same time, the Department recognizes that the sharing of particular information could assist in State oversight, prevent discrimination, and ensure the appropriateness of subsequent referrals. Thus, the Department concludes that E&T
providers should provide the reason for a provider determination to the State agency, so that the State agency can make the best possible decision about next steps; however, if the provider does not provide the reason, the State agency must continue to process the provider determination without the reason. In addition, the Department is encouraging, but not requiring, the E&T
provider to share a recommended next step when they notify the State agency of the provider determination so that the State agency has as much information as possible to make their decision about
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