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Federal Register / Vol. 86, No. 2 / Tuesday, January 5, 2021 / Rules and Regulations
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notification within 10 days; requiring that the State agency notify the individual that they are not being sanctioned as a result of the provider determination; allowing the State agency to take one of the four actions in 7 CFR 273.7c18iB by no later than the next recertification; allowing, at State agency option, an E&T provider to enroll a participant in another component offered by the provider if the initial component was not a good fit;
and requiring that, if the State chooses option 7 CFR 273.7c18iB4, the participant must not be required to participate in E&T.
State Agency Accountability for Participation in an E&T Program and Good Cause The Act introduced several new provisions that emphasize State agencies responsibilities to build E&T
programs that are well-targeted to E&T
participants needs and support E&T
participants as they engage with those programs. In addition to addressing these provisions in the proposed rule, the Department also proposed additional ways to enhance State agency responsibility and capacity to build E&T
programs that provide robust work and training opportunities to participants. In this section, the Department will discuss three of these additional provisions: A new form of good cause provided to E&T participants when there is not an appropriate or available opening in the E&T program;
clarification of the application of good cause for failure or refusal to participate in an E&T program for ABAWDs; and a clarification that State agencies must first determine if non-compliance with a work requirement was without good cause before sending a notice of adverse action. Later sections of the preamble discuss other accountability provisions, like new State agency reporting requirements regarding mandatory E&T
participants on the quarterly reports, and a new requirement to provide a consolidated written notice and oral explanation of all applicable work requirements to households.
The Department believes that, if a State agency requires participation in E&T as a condition of eligibility, it has a responsibility to build an E&T
program that can accommodate all mandatory E&T participants. In situations where there is not an appropriate and available opening for a mandatory E&T participant in the E&T
program, the Department does not believe that the mandatory E&T
participant should be disqualified for failing to comply with the E&T
requirement, as the lack of an
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appropriate and available opening in an E&T program is beyond the E&T
participants control. As a result, the Department proposed to add new 273.7i4 to define good cause to include circumstances where the State agency determines that there is no appropriate and available opening in the E&T program to accommodate a mandatory E&T participant. The Department proposed that the period of good cause would extend until the State agency identifies an appropriate and available opening in the E&T program, and the State agency informs the SNAP
participant of such an opening. The Department proposed in 7 CFR
273.7c2 that, if there is not an appropriate and available opening in an E&T program for a mandatory participant, the State agency must determine the participant has good cause for failure to comply with the mandatory E&T requirement in accordance with paragraph 7 CFR
273.7i4. The Department also proposed in paragraph 7 CFR
273.7e1, as re-designated, that case managers must inform the appropriate State agency staff about the lack of an appropriate and available E&T
component for a mandatory E&T
participant. Lastly, the Department noted in the proposed rule preamble that, ideally, if there is not an appropriate and available opening in the E&T program, the State agency should consider exempting the individual from mandatory E&T under the discretion provided to State agencies in 7 CFR
273.7e2, re-designated as 7 CFR
273.7e3. The Department also noted that this proposed new form of good cause would only apply to mandatory E&T participants and would not provide all ABAWDs with good cause for failure to fulfill the ABAWD work requirement in 7 CFR 273.24. In other words, an ABAWD who is also a mandatory E&T
participant, but for whom there is not an appropriate and available opening in an E&T program, would receive good cause for failure to participate in E&T, but would not receive good cause for failure to comply with the ABAWD work requirement.
The Department received 28
comments on this provision, most of which were very supportive, although two commenters, while supportive, were concerned the provision would be applied too liberally and provided suggestions to mitigate this possibility.
In addition, four supporters felt that the good cause for mandatory E&T should also apply to the ABAWD work requirement. The Department did not receive any comments opposing the
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addition of the new form of good cause for mandatory E&T.
Commenters believed that the addition of the new form of good cause for mandatory E&T provides an important safeguard for mandatory E&T
participants who are not able to participate in E&T, through no fault of their own, because the State agency has not provided an appropriate or available slot in an E&T program. However, one not-for-profit agency felt that the Departments introduction of this new form of good cause overestimated the demand for such exemptions, while underestimating the flexibility of the work requirement, as most E&T
programs struggle to recruit participants into E&T. The commenter believed that good cause for this purpose should only ever be granted when a participant attempts to access a slot and is denied entry for lack of an opening. Further, the commenter believed the Department could mitigate concerns about over-use of this good cause provision if participants, upon receiving good cause for non-compliance, were expected to find work experience and volunteer opportunities outside a State agencys formal E&T program, pushing the participant to re-engage with their community and build work experience.
The Department agrees with the commenter that the focus of State agencies should be on building robust E&T programs that provide participants opportunities in training and work experience programs that lead to improved employment outcomes, and not on excusing participants from the requirement to participate because there is not an appropriate or available opening. The Department has invested considerable resources to support State agencies in growing their capacity and developing E&T programs that are responsive to the needs of individuals and the employers. However, the Department feels strongly that, if a State agency is going to require individuals to participate in E&T as a condition of eligibility, it should hold up its end of the bargain by creating enough appropriate and available E&T
opportunities so the individuals may meet this requirement. The Department would like to clarify that State agencies have the flexibility to determine who they serve in E&T, and the responsibility to screen and refer individuals to E&T only if appropriate.
States have the discretion to exempt an individual or categories of individuals from participating in E&T. The Department notes that well-managed programs should have very few circumstances where there is a need to
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