Employment and Training Opportunities in the Supplemental Nutrition Assistance Program

DEPARTMENT OF AGRICULTURE

Food and Nutrition Service

7 CFR Parts 271 and 273

[FNS-2019-0008]

RIN 0584-AE68

Employment and Training Opportunities in the Supplemental Nutrition Assistance Program

AGENCY:

Food and Nutrition Service (FNS), USDA.

ACTION:

Final rule.

SUMMARY:

The final rule implements the changes made by section 4005 of the Agriculture Improvement Act of 2018 (the Act) to the Supplemental Nutrition Assistance Program (SNAP) pertaining to the Employment and Training (E&T) program and aspects of the work requirement for able-bodied adults without dependents (ABAWDs). In general, these changes are related to strengthening the SNAP E&T program, adding workforce partnerships as a way for SNAP participants to meet their work requirements, and modifying the work requirement for ABAWDs.

DATES:

This rule is effective March 8, 2021. The provisions in 7 CFR 237.7(c)(1) pertaining to the consolidated written notice and oral explanation of work requirements, and the provisions in 7 CFR 273.7(c)(11)(iii) and (iv) and 7 CFR 273.7(c)(18) are applicable beginning October 1, 2021.

FOR FURTHER INFORMATION CONTACT:

Moira Johnston, Food and Nutrition Service, Office of Employment and Training, 1320 Braddock Place, Alexandria, VA 22314,

ETORule@USDA.gov.

SUPPLEMENTARY INFORMATION:

The final rule implements the changes made by section 4005 of The Agriculture Improvement Act of 2018 (Pub. L. 115-334) (the Act) to the Supplemental Nutrition Assistance Program (SNAP). The Department published the proposed rule on March 17, 2020, and received 75 comments, 72 of which were substantive.

The final rule requires State agencies to consult with their State workforce development boards on the design of their E&T programs and to document in their E&T State plans the extent to which their E&T programs will be carried out in coordination with activities under title I of the Workforce Innovation and Opportunity Act (WIOA). The final rule also makes changes to E&T components including: Replacing job search with supervised job search as a component; eliminating job finding clubs; replacing job skills assessments with employability assessments; adding apprenticeships and subsidized employment as allowable activities; requiring a 30-day minimum for provision of job retention services; and allowing those activities from the E&T pilots authorized under the Agricultural Act of 2014 (Pub. L. 113-79) that have had the most demonstrable impact on the ability of participants to find and retain employment that leads to increased income and reduced reliance on public assistance to become allowable E&T activities.

The final rule also requires that, in addition to providing one or more E&T components, all E&T programs provide case management services to E&T participants. The rule revises the definition of good cause for failure to comply with the requirement to participate in E&T to include instances in which an appropriate component or opening in an E&T program is not available. It also modifies the required reporting elements in the final quarterly E&T Program Activity Report provided by State agencies to include the number of SNAP applicants and participants who are required to participate in E&T, of those, the number who begin participation in the E&T program and an E&T component, and the number of mandatory E&T participants who are determined ineligible for failure to comply. The rule adds workforce partnerships as a way for SNAP participants to meet their work requirements. It also establishes a funding formula for reallocated E&T funds and increases the minimum allocation of 100 percent funds for each State agency to $100,000, as prescribed by the Act. The rule requires State agencies to re-direct individuals who are determined ill-suited for an E&T program component to other more suitable activities.

The final rule also codifies some changes to policy pertaining to able-bodied adults without dependents (ABAWDs). These changes include updating the regulations to reflect the reduction in the number of ABAWD work exemptions from 15 percent to 12 percent (this change was implemented at the start of Fiscal Year 2020) and referring to such exemptions as “discretionary exemptions,” as well as adding workforce partnerships and employment and training programs for veterans operated by the Department of Labor or the Department of Veteran's Affairs to the list of work programs for ABAWDs. The rule replaces “job search” with “supervised job search” as a type of activity that cannot count as a work program for the purposes of an ABAWD fulfilling their work requirement, unless it comprises less than half the work requirement.

The final rule adds the requirement that all State agencies advise certain zero-income households subject to the general work requirement at recertification of employment and training opportunities. The rule also requires State agencies to provide to all households subject to work requirements a consolidated written notice and comprehensive oral explanation of the work requirements for individuals within the household.

Overall, the Department believes the statutory changes made by section 4005 of the Act will strengthen E&T programs, and improve SNAP participants' ability to gain and retain employment, thus reducing participant reliance on the social safety net. Through this legislation, Congress has tasked the Department and State agencies with reviewing and bolstering the quality and accountability of E&T programs for SNAP participants. The final rule allows for more evidence-based components and requires more accountability on the part of both State agencies and E&T participants while also retaining State flexibility. Notably, the addition of case management to the definition of an E&T program fundamentally changes SNAP E&T and the expectation for how State agencies must engage with E&T participants. As a result, the Department made several changes to the way E&T programs are described. In the final rule, an E&T program is defined as a program providing both case management and one or more E&T components. E&T components may be comprised of a number of activities which are designed to achieve the purpose of the component.

The Department discusses each of the final regulatory changes in more detail below.

Consultation With Workforce Development Boards and Coordination With the Workforce Innovation and Opportunity Act (WIOA)

Current regulations at 7 CFR 273.7(c)(5) require that E&T components must be delivered through the State's statewide workforce development system, unless the component is not available locally through such a system. The Act added the requirement in section 6(d)(4)(A) of the Food and Nutrition Act (FNA) that State agencies must design their SNAP E&T programs in consultation with their State workforce development board or, if the

State agency demonstrates that consultation with private employers or employer organizations would be more effective or efficient, in consultation with private employers or employer organizations. The Act also added a new requirement that State agencies include in their E&T State plans the extent to which the State agency will coordinate with the activities carried out under title I of the Workforce Innovation and Opportunity Act (WIOA). The Department proposed to modify the regulation at 7 CFR 273.7(c)(5) to add the requirement that State agencies design their E&T programs in consultation with their State workforce development board or with employers or employer organizations, if the State agency demonstrates such consultation would be more effective or efficient. The Department also proposed to modify the regulation at 7 CFR 273.7(c)(6)(xii), as re-designated, to require State agencies to describe in their E&T State plans how they met this requirement to consult, to include a description of any outcomes from this consultation, and to document the extent to which their E&T programs are coordinated with activities carried out under title I of WIOA.

The Department received 13 comments on this provision, all of which were supportive of the proposed changes, although some commenters provided suggestions for improvement. Commenters supported the required consultation with workforce development boards to ensure SNAP E&T programs benefit from the expertise of these boards and to streamline the delivery of services. Commenters also noted that better alignment across SNAP E&T and title I of WIOA can help reduce service duplication, generate cost savings, and increase access to resources for jobseekers. One workforce training agency; however, cautioned against folding SNAP E&T into WIOA services. This agency noted that SNAP E&T funding offers certain flexibilities and support services that make it especially well-suited for working with job seekers with lower basic skills and greater barriers to employment, a group that is sometimes excluded from WIOA services. The Department agrees that SNAP E&T is well-positioned to serve individuals with greater need for support. The Department would like to clarify that this provision does not require State agencies to fold E&T into WIOA services and cautions against interpreting the provision this way. The Department encourages State agencies to be part of the conversations regarding States' workforce development strategies, to take full advantage of the knowledge and expertise that currently exists within the statewide workforce development system, and to identify and leverage resources where appropriate and practicable. However, the SNAP E&T program remains the responsibility of the State agency and should be designed around the unique characteristics of the SNAP population. In addition, as discussed in the proposed rule, the new requirements for consultation with State workforce development boards and for documenting in E&T State plans the extent to which State agencies have coordinated with activities carried out under title I of WIOA, do not mean that State agencies need approval from their State workforce development board to implement their E&T program. The State SNAP agency will remain responsible for implementing and operating the State's E&T program.

A not-for profit agency suggested that, if a State agency chooses to consult with private employers or employer organizations instead of workforce development boards, the State agency should also demonstrate that they have consulted with labor representatives such as unions or worker centers. The Department agrees that these organizations may offer an important perspective on workforce development opportunities and would not discourage any State agency from reaching out to union or workforce centers, as applicable. However, the statutory requirement is only for States to consult with State workforce development boards, or private employers or employer organizations, if the State agency demonstrates such consultation would be more effective or efficient, and the Department believes it would impose an unnecessary additional burden on State agencies to expand the number of groups State agencies are required to consult with in the design of their E&T programs. A local government agency and three not-for-profit agencies recommended that the Department also encourage State agencies to engage with local employers or industry representatives to become SNAP E&T providers. The Department does encourage State agencies to collaborate and engage with a wide array of entities to develop training opportunities for SNAP E&T but declines to mandate such collaboration and engagement beyond the requirements of Section 4005 of the Act. State agencies can capitalize on the relationships and labor market expertise of State workforce development boards to facilitate connections to local employers and industry representatives. As a result, the Department concludes that no addition to the proposed regulatory text is necessary.

To further collaboration with WIOA services, a State agency requested the Department commit to coordinated guidance from the United States Department of Agriculture and the Department of Labor on SNAP E&T and WIOA services. The coordinated guidance would “enhance local workforce boards' understanding of the opportunity that SNAP E&T recipients provide and help ensure their due consideration in the distribution of finite local workforce board resources.” The Department regularly interacts with the Department of Labor, and will continue to explore opportunities to ensure awareness and understanding of SNAP E&T by State and local workforce development system stakeholders, including local workforce boards.

In conclusion, the Department finalizes the regulatory text as proposed without any changes.

Supervised Job Search

Current regulations at 7 CFR 273.7(e)(1)(i) establish job search as an allowable E&T component. In addition, current regulations at 7 CFR 273.7(e)(1) specify that “job search or job search training, when offered as components of an E&T program, are not qualifying activities relating to the participation requirements necessary to maintain SNAP eligibility for ABAWDs.” However, with respect to the ABAWD work requirement, the current provision goes on to state that “job search or job search training activities, when offered as part of other E&T program components, are acceptable as long as those activities comprise less than half the total required time spent in the components.” The Act replaced the E&T job search component with supervised job search in section 6(d)(4)(B)(i)(I) of the FNA, and defined supervised job search as an E&T component that occurs at State-approved locations at which the activities of participants shall be directly supervised, and the timing and activities of participants tracked in accordance with guidelines issued by the State agency. The Department proposed to codify the new supervised job search component at current 7 CFR 273.7(e)(1)(i), re-designated as 7 CFR 273.7(e)(2)(i). In addition, the Department proposed to make edits to current 7 CFR 273.7(e)(1), at re-designated 7 CFR 273.7(e)(2), to specify that job search, including supervised job search, when offered as components of an E&T program, are not in and of themselves “qualifying activities relating to the participation

requirements necessary to fulfill the ABAWD work requirement under § 273.24.” However, job search, including supervised job search, is an acceptable activity when offered as part of other E&T program components and it comprises less than half of the total required time spent in the components. The Department recognizes that job search, supervised or otherwise, can be an important activity for E&T participants seeking employment or looking for a new job where they can apply the skills gained through E&T. The Joint Explanatory Statement of the Committee of Conference, issued with the Act, reinforced that view by stating that “unsupervised job search” may be a “subsidiary component” for the purposes of meeting a work requirement, so long as it is less than half of the requirement.

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The Department proposed to add in paragraph 7 CFR 273.7(c)(6)(i) a requirement that State agencies report in their E&T State plans a summary of the State guidelines used to implement supervised job search. The Department also proposed changes related to supervised job search in the section on ABAWD work programs at 7 CFR 273.24(a)(1)(iii), which are discussed in the section titled

Work Programs for Fulfilling the ABAWD Work Requirement

later in this preamble.

1

Conf. Rept. 115-1072, p. 617,

https://www.congress.gov/115/crpt/hrpt1072/CRPT-115hrpt1072.pdf.

In the proposed rule, the Department proposed various factors to consider in interpreting “State-approved location,” “directly supervise participants,” and “tracking timing and activities of participants.” The Department sought comments regarding these phrases. The Department also sought comments describing current job search programs operated as part of E&T programs or other workforce development programs that are directly supervised and where the timing and activities of participants are tracked by the State agency or providers.

The Department received 49 comments on this provision. Twenty-six of the commenters supported defining supervised job search to allow maximum flexibility for State agencies to design programs that meet the needs of local participants. However, one commenter opposed the change explaining supervised job search “would place patronizing, infantilizing, and absurd restrictions on those seeking new employment.” The Department notes that the Act replaced job search with supervised job search and requires direct supervision and tracking of timing and activities, therefore the Department must implement the regulatory change.

In responding to the Department's request for feedback, commenters explained that the nationwide COVID-19 public health emergency demonstrated the importance of providing flexibility within supervised job search as the pandemic had limited face-to-face service options and necessitated that State agencies pivot to online or virtual platforms. A workforce training agency explained that, even before the current pandemic, searching and applying for jobs shifted greatly to online methods due to the increased use of technology. As such, the commenter believed that requiring job seekers to complete job search while being in the same physical location as SNAP E&T program staff is not necessary and should not be required. Two State agencies believed that allowing virtual locations would enable State agencies to integrate delivery of their supervised job search activities with the same online job search portals used by their WIOA and unemployment insurance systems, thus furthering the goal of greater integration with WIOA processes. Commenters also explained that geographic variation in where people live and varied access to public transportation may limit the types of physical locations available to them. For instance, in rural areas it may be prohibitive for participants to travel long-distances to attend in-person job search, so online or mobile application options may better suit these individuals. Commenters also noted it may be burdensome to State agencies and E&T providers to provide enough physical locations to accommodate all supervised job search participants, or to provide enough participant reimbursements to cover the transportation or other costs associated with travel. However, several commenters also cautioned that some participants will not have the ability or the technology to perform job search through a computer or mobile phone and, in these cases, State agencies should maintain easily-accessible locations for in-person job search in the community, or allow participants to access online or smartphone-based job search tools through community organizations like the public library. A workforce training agency and a legal services agency also commented about the importance of job seekers having personal technology now that so many job search resources and job application portals are online. The commenters urged the Department to allow E&T supportive services funding to include technology costs as a permissible expenditure for SNAP E&T providers. A workforce training agency noted that State-administered job boards and workforce exchanges may not always contain up-to-date or relevant job postings, so State agencies should be allowed to direct participants to non-governmental social media and job posting sites. On the other hand, two State agencies lauded their workforce agency's online tools for job search and participant activity tracking. One not-for-profit agency recommended that State agencies give participants the option to participate online or in-person based on the preferences of the participant.

The Department appreciates the number of well-thought-out comments received. The Department concludes the definition of “State approved locations” will include any location deemed suitable by the State agency where the participant has access to the tools they need to perform supervised job search. At these locations, participants may use any tools, such as virtual tools which include but are not limited to websites, portals, or applications to access supervised job search services. For instance, a State agency may choose to allow supervised job search to occur at any physical location where the participant can adequately access an internet connection with appropriate materials (

e.g.,

a computer, tablet, smart phone) to access virtual tools. If the individual does not have access to the appropriate material to use a virtual tool, the State agency must provide the individual with the materials they need to participate in supervised job search, such as a computer, a tablet, Wi-Fi etc. Alternatively, the State may additionally decide to designate specific locations for a supervised job search. In this instance, the State agency must give the participant a list of locations where they can access the necessary tools and materials, such as a library, American Job Center, etc. In this case, the State agency would have to provide participant reimbursements in accordance with 7 CFR 273.7(d)(4) enabling the individual to access the location. To the extent practicable, the Department encourages State agencies to allow participants to choose their preferred location (

e.g.,

at home, a library, a third party provider) to best meet the needs of the participants and better ensure a successful job search. The Department has updated the definition of supervised job search at 7 CFR 273.7(e)(2)(i) accordingly. The Department also reminds State agencies

that 7 CFR 273.7(d)(4) requires State agencies to provide or reimburse the participant for expenses that are reasonably necessary and directly related to participation in the E&T program, including materials to access online programs (

e.g.,

a laptop, tablet, or internet) or transportation assistance to physical locations. State agencies must also provide reasonable accommodations to all E&T participants with a disability in accordance with the Americans with Disabilities Act (Pub. L. 101-336).

Commenters similarly explained that supervision can be effectively delivered through a variety of means including in-person, phone, web-based and text-based methods, and the approach should align with the capabilities of the E&T provider and what will most effectively serve the client. A workforce training agency supported supervision of job search activities as it allows E&T staff to coach participants, build their labor market skills, identify potential barriers to employment, and determine plans for how to address those barriers through supportive services during the job search process. This commenter also explained that participant supervision requirements should be defined based on what supportive components exist as part of the supervision, rather than for pure oversight and compliance reasons. For instance, the commenter believed that time spent sharing and confirming job applications, logging hours committed to independent job search, and receiving assistance from a job coach should all count towards a participant's supervision requirement. Several State agencies noted that supervision of job search services can be completed remotely through web-based services that support active monitoring of participant progress with activities, as well as efficient communication with participants. The State agencies highly recommended that the Department consider technology and remote supervision when defining the supervised job search component for the purposes of E&T. For instance, one State agency explained how participants can utilize the State's workforce agency's online portal to complete career exploration assessments and skill assessments, in addition to seeking employment. The State agency partners with other community agencies offering job coaching to ensure participants have the skills necessary to become self-sufficient. Through other partnerships, the State agency also offers virtual workshops on resume development and “How-To” workshops covering a variety of topics. Another State agency commented that State agencies could use weekly or semi-weekly case management telephonic meetings with participants to discuss digital job search logs and to direct and refine participants' job search moving forward. And a third State agency explained that their current process of developing a job search plan with the participant, combined with at least monthly check-ins to review progress, was an effective model of supervised job search. A not-for-profit agency recommended that State agencies also be allowed to conduct supervised job search programs in an asynchronous format, where program participants engage in job search activities on their own schedule. The Department agrees that both remote and in-person supervision can be effective. As a result, the Department concludes that State agencies will have flexibility to provide supervision through a number of modes (

e.g.,

remote, in-person, or a blend), and encourages State agencies to ensure the mode of supervision aligns with the needs of the participant (

e.g.,

if a participant performs job search online because of the inability to travel long distances, the State agency should consider conducting the supervision remotely as well). Significantly, the Department also concludes, based on language from The Joint Explanatory Statement of the Committee of Conference, issued with the Act,

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that the intent of the statutory change from job search to supervised job search was to make State agencies more accountable to E&T participants by providing direct supervision and guidance to participant job search activities. The Department appreciates that some State agencies are able to provide a significant number of resources to E&T participants through online portals and websites, and believes these resources provide an effective means of providing some types of job search assistance to participants; however, online resources are not by themselves sufficient to fulfill the statutory obligation to provide direct supervision. To ensure participants engaged in supervised job search are provided the support they need to be successful, the Department concludes that supervision must be provided by skilled staff who can provide meaningful guidance and support to help participants find suitable employment through at least monthly check-ins with participants. These check-ins could cover a number of topics, including reviews of participant job search logs, feedback on job applications, barrier reduction, progress monitoring, and job search coaching, and must be conducted with the aim of helping the participant find suitable employment. This supervision can also be provided asynchronously (

i.e.,

the supervision need not occur at the same time a participant is searching for or applying for a job), but the Department will require at least monthly communication with the participant—either in-person or remotely—with a skilled staff person. Supervision that only occurs through automatic or autonomous computer programs, without at least monthly communication between the participant and skilled staff, would not fulfill the requirement to provide meaningful guidance and support, and would not meet the requirements for direct supervision. The Department has modified the regulation at 7 CFR 273.7(e)(2)(i), as re-designated, accordingly.

2

Conf. Rept. 115-1072, p. 617,

https://www.congress.gov/115/crpt/hrpt1072/CRPT-115hrpt1072.pdf.

Commenters also noted that a number of methods exist to track the timing and activities of participants, including counters and timers in web-based programs to track hours logged in, sign-in sheets, job logs, and a deemed number of hours per job application. Several commenters encouraged the Department to allow State agency flexibility to use technology or other means to log and track job search efforts. The Department concludes State agencies should have discretion to devise the most appropriate means for tracking job search activities given the capabilities of the local programs and the needs of participants, and has modified the regulation accordingly at 7 CFR 277.7(e)(2)(i), as re-designated. The Department also notes that State agencies will continue to have flexibility to determine the most suitable method to track job search hours (

e.g.,

by the number of applications submitted, or the number of hours logged onto a portal). Lastly, the Department would like to clarify that hours spent receiving job search supervision, in addition to hours spent looking for a job, count toward hours spent in the component.

Overall, commenters noted State agencies and their E&T providers should work with E&T participants to ensure participants are directed to supervised job search programs that are accessible and well-matched to the participant's needs. Commenters also believed that the introduction of the requirement for supervision would make job search programs more accountable and responsive to participants to increase

their ability to gain regular employment. Several commenters also suggested additional changes or clarifications as detailed below.

Two commenters recommended allowing supervised job search to be coordinated with case management and the assessment process, as having only one entity conduct the activities would save resources and better allow case managers to coordinate services. The Department agrees and encourages State agencies, as a best practice, to coordinate the provision of supervised job search, case management, participant assessments, and any other E&T activities within the same provider. No revision to the regulatory text is necessary.

A not-for-profit agency urged the Department to require State agencies to explain in their E&T State plans how their approach to supervised job search: (1) Is based on evidence that individuals are likely to successfully comply; (2) targets individuals likely and able to find employment through job search; and (3) provides adequate information to each individual about the program design, anticipated outcomes, sanctions for noncompliance, how to obtain assistance overcoming obstacles to compliance (such as the lack of child care or transportation), reasonable accommodations for persons with disabilities, and where to obtain additional information. The Department agrees all E&T components operated by the State agency, not just supervised job search, should employ successful strategies to help participants move toward self-sufficiency, be appropriately targeted to individuals based on their training needs, and provide adequate information to the participant. For these reasons, the Department emphasized in the proposed rule the importance of State agency accountability for E&T programs and introduced new processes to ensure individuals are directed to the most appropriate component, or exempted from mandatory E&T, if appropriate. These efforts include the requirements that all E&T participants receive case management and that case managers share information about possible exemptions or good cause circumstances with the State agency, as well as the introduction of a new form of good cause if there is not an appropriate or available opening in E&T. The Department also agrees that State agencies must provide E&T participants with information about the E&T program, consequences for non-compliance, participant reimbursements, and any other information that would help mandatory E&T participants with compliance. For this reason, the Department proposed that all households with individuals subject to the work requirements receive a consolidated written notice and oral explanation of those work requirements. In addition, several commenters recommended the Department require a direct link between job search activities and employment opportunities in order for the component to be approved. The commenters believed this language would help ensure that training be relevant and targeted to individuals who are able and likely to benefit from it. The Department agrees that the intent of replacing job search with supervised job search was to better support individuals to find suitable employment, not just fill work hours, and has added to the definition of supervised job search at 7 CFR 273.7(e)(2)(i), as redesignated, that job search activities must increase the employment opportunities of the participant.

Several State agencies and workforce training agencies requested that the Department change how State agencies must summarize the State guidance for the supervised job search component in their E&T State plans. The commenters explained that, instead of requiring specific sites for supervised job search to be documented in the plan, the State agencies should be allowed to include the specific criteria used by the State agency to approve supervised job search location. The Department agrees that, given the broad definition of supervised job search, it would likely be far too burdensome to have to identify in the E&T State plan all the approved locations. As a result, the Department has modified the regulation at 7 CFR 273.7(c)(6)(i) to require that State agencies instead provide the criteria used to approve locations and an explanation of why those criteria were chosen.

The Department received several requests to clarify how job search and job search training can be integrated as subsidiary activities of another component. As stated in the proposed rule, with the replacement of job search with supervised job search, unsupervised job search may no longer be a standalone E&T component. However, also as stated in the proposed rule, job search that does not meet the definition of supervised job search is allowed as a subsidiary activity of another E&T component, so long as the job search activity comprises less than half of the total required time spent in the component. One State agency, in particular, asked the Department to clarify whether job search may only be a subsidiary activity of another component when offered to a mandatory E&T participant or ABAWD, or whether this construction also applies to E&T volunteers. The Department appreciates how the statement in the proposed regulatory text of “required time spent in the component” could be understood as only referring to mandatory participants. Therefore, the Department is clarifying that, in this context, allowable E&T components are the same whether offered to mandatory or voluntary E&T participants for this purpose, and has consequently modified the regulatory text at 7 CFR 273.7(e)(2)(i) to remove “required.” The State agency also questioned how to measure if job search makes up less than half the time in the component. The State agency provided the example of an E&T provider who employs a comprehensive curriculum with vocational education classes the first several months, followed by full-time job search. The State agency wondered if such a program could track all hours under the educational component, provided the hours spent in job search make up less than half of the total hours over the duration of the entire component. For purposes of fulfilling the ABAWD work requirement, the Department has always provided discretion to State agencies on how they measure the length of time participants spend in job search when job search is integrated into another component, to ensure job search makes up less than half the total required time spent in the component. The Department will allow similar discretion to State agencies when determining if time spent in unsupervised job search makes up less than half the time spent in the broader E&T component.

The Department also received a question about supervised job search and the ABAWD work requirement. This commenter asked if the Department has the flexibility to allow supervised job search activities to count for the ABAWD work requirement if the activities are offered through WIOA. The answer is, if an individual is enrolled in a program under title 1 of WIOA, supervised job search can count toward the ABAWD work requirement. However, supervised job search offered through any other WIOA program cannot count toward the ABAWD work requirement, unless it makes up less than half the requirement.

A not-for-profit agency expressed a number of concerns about the existing regulations that allow State agencies, at their option, to require SNAP applicants to participate in E&T, and expressed specific concerns related to requiring applicants to participate in job search. The commenter asked the Department to

require the following assurances in E&T State plans: That State agencies must adhere to the requirement at 7 CFR 273.7(c)(2) to screen each work registrant to determine whether it is appropriate to refer the individual to an E&T program component; that State agencies must reimburse applicants for all reasonable and necessary costs to participate in any E&T activity, including supervised job search, as required by 7 CFR 273.7(d)(4); that supervised applicant job search must not impose a new condition of eligibility in accordance with 7 CFR 273.2(a); and that applicant job search cannot delay determining SNAP eligibility. The Department agrees that all State agencies must adhere to the above policies for all E&T participants, whether they have chosen to serve applicants or not. Treating applicants differently than other E&T participants would not further the purposes of E&T and the changes required by the Act designed to enhance the effectiveness and accountability of SNAP E&T programs. Therefore, the Department has clarified the regulation at 7 CFR 273.7(e)(2), as re-designated, to indicate that, if a State agency requires an applicant to participate in E&T, the State agency must screen the applicant to determine if it is appropriate for that individual to participate in E&T in accordance with paragraph 7 CFR 273.7(c)(2) of this section, provide the applicant with participant reimbursements in accordance with 7 CFR 273.7(d)(4), and inform the applicant of E&T participation requirements, including how to access the component and consequences for failing to participate. The Department has also added a reference in the supervised job search paragraph at 7 CFR 273.7(e)(2)(i) citing the criteria necessary to serve applicants in 7 CFR 273.7(e)(2).

The Department also received several comments on the job search training component requesting the Department add the phrase “employment opportunities” to the sentence in paragraph 7 CFR 273.7(e)(2)(ii), as re-designated, thereby stating, “a direct link between the job search training activities and job-readiness and employment opportunities must be established for a component to be approved.” The commenters believed the addition of “employment opportunities” would allow providers to include activities such as job placement services, which may increase employment opportunities, but not affect their job-readiness. While the Department believes that job placement activities can be part of a job search training, the purpose of the job search training component is to improve a participant's skills to search for and acquire a job. These skills can be valuable in the future when the participant engages in new job searches. For this reason, the Department is not adding “employment opportunities” to the description of job search training.

The Department also received a comment requesting that job readiness training not be included as part of supervised job search, but instead be included as part of the education component. The Department received a similar comment requesting the Department to clarify that soft skills and job readiness training can be considered an education component. The Department understands that the commenters are confused about where to properly categorize job readiness training. The Department already recognizes work readiness training (

i.e.,

job readiness training) as part of the E&T education component, but notes that work readiness training is not formally listed within the education component at 7 CFR 273.7(e)(2)(iv), as re-designated. The Department has updated the regulatory text at 7 CFR 273.7(e)(2)(iv) to include work readiness training to reduce confusion and facilitate proper categorization of work readiness activities in the education component in the future.

In conclusion, the Department adopts the proposed regulatory language with the above noted changes to the definition of supervised job search, the modification of what State agencies must report on their E&T State plan, the addition of clarifying language about requiring applicants to participate in E&T, and the explicit addition of work readiness as an allowable activity to the education component.

Employability Assessments

Current regulations at 273.7(e)(1)(ii) permit the use of job skills assessments as part of a job search training component in a State's E&T program. The Act replaced job skills assessments in section 6(d)(4)(B)(i)(II) of the FNA with “employability assessments.” The Department proposed to incorporate this change into the regulations by modifying paragraph 7 CFR 273.7(e)(1)(ii), re-designated as 7 CFR 273.7(e)(2)(ii), to remove the reference to job skills assessments and replace it with employability assessments.

The Department received six comments on this provision, with all commenters supporting the change. One commenter explained the shift to employability assessments in the Act recognized that a more holistic focus on “employability” explicitly acknowledges the role that non-skill barriers (such as a suspended driver's license, a criminal record, or unreliable childcare) can play in impacting how a person fares in the job market. However, one not-for-profit agency and one local government agency asked the Department to clarify that employability assessments can be part of both case management and the job search training component. The Department agrees that employability assessments can be helpful in a number of contexts and thus they are allowable under either category. However, State agencies and their providers should coordinate assessments so a participant does not undergo an employability assessment twice in a short period of time. One commenter asked for further clarification on the statement from the proposed rule that “the information collected through employability assessments should be used, together with ongoing case management, to improve and individualize services to E&T participants.” The commenter wondered if providers must continue to offer case management as a follow-up to an employability assessment. As discussed later in this preamble, State agencies and their providers are encouraged to continue to offer case management to all E&T participants so long as they are engaged with E&T and the participant shows interest in continuing case management. The Department encourages State agencies to work with their E&T providers to determine appropriate follow-up steps after an employability assessment, bearing in mind the needs of the participant, the structure of the E&T program, and provider capacity.

Additionally, a not-for-profit agency urged the Department to proceed carefully and mindfully in the design and delivery of employability assessments. In this commenter's experience employability assessments can be used to screen out an individual from job placement, even when the individual is very motivated to work. The commenter also explained that employability assessments are subject to racial bias in that people of color—and Black people in particular—are disproportionately over-represented with regards to homelessness, involvement in the criminal legal system, and chronic unemployment. The commenter recommended the Department take a “zero exclusion” approach to employability assessments—as well as services offered—that assumes employability

and worker motivation, and makes every effort to accept and accommodate all jobseekers receiving SNAP E&T services. The commenter also recommended that State agencies collect information on the characteristics of jobseekers determined “not ready” for employment based on employability assessments. The Department appreciates the experience and perspective of the commenter and agrees that, in general, State agencies should strive to serve all individuals who are motivated to work or train for employment. State agencies are prohibited from discriminating against SNAP participants, in accordance with 7 CFR 272.6, and must have agreements in place with their providers to ensure discrimination is prohibited. The Department notes; however, that employability assessments may uncover circumstances that would make an individual exempt from a work requirement or provide good cause for non-compliance. If the E&T case manager is made aware of these circumstances, the Department requires at 7 CFR 273.7(e)(1), as re-designated, that the case manager inform the appropriate State agency staff. If the exemption or good cause is granted, the individual would no longer be required to participate in E&T. The Department also notes that State agencies are encouraged to collect information on E&T program performance, and may track the number of jobseekers determined “not ready.”

In conclusion, the Department codifies the regulatory language as proposed without any changes.

Removal of Job Finding Clubs

Current regulations at 7 CFR 273.7(e)(1)(ii) include job finding clubs as an allowable activity under the job search training component. The Act modified the job search training component in section 6(d)(4)(B)(i)(II) of the FNA to remove job finding clubs from the list of activities that can be included in a job search training program. As a result, the Department proposed to modify the regulation at 7 CFR 273.7(e)(1)(ii), now re-designated as 7 CFR 273.7(e)(2)(ii), to remove job finding clubs as an activity under the job search training component.

The Department received one comment on this provision from a workforce training agency, who claimed it was contradictory to remove job finding clubs and require that job search be supervised, as the commenter viewed these activities as similar. As already discussed, the Department views supervised job search as encompassing a robust set of supervisory activities and does not believe the removal of job finding clubs from job search training activities will inhibit the implementation of supervised job search. In addition, while job finding clubs are specifically eliminated as an allowable activity, other activities that increase the employability of participants are still permitted, such as State or agency facilitated peer-to-peer learning opportunities or offering job search trainings in a group format.

In conclusion, the Department codifies the regulation as proposed without any changes.

Job Retention

Current regulations at 7 CFR 273.7(e)(1)(viii) allow job retention services as an allowable E&T component. These regulations explain that State agencies offering this component must provide no more than 90 days of job retention services. The Act modified the job retention E&T component in section 6(d)(4)(B)(i)(VII) of the FNA to require that State agencies choosing to provide job retention services must offer a minimum of 30 days of services, but did not modify the existing 90 day statutory maximum for the receipt of job retention services. As a result, the Department proposed to modify the current regulations at 7 CFR 273.7(e)(2)(viii), as re-designated, to add a 30-day minimum for the receipt of job retention services. Consistent with the statute, the proposed regulation stated that job retention services would need to be provided for a minimum of 30 days and no more than 90 days.

The Department received nine comments on this provision, all of which were supportive of the addition of the 30-day minimum. Commenters did, however, request clarification on some aspects of the rule as described below. A local government agency and a workforce training agency supported the minimum of 30 days, but requested that State agencies be allowed to offer up to 365 days of job retention services. The commenters explained the extended period of job retention services would better support the transition to employment and to a more independent lifestyle because, in the commenters' experience, the challenges that participants juggle as they begin to work can last throughout the first full year of employment. The Department agrees that some E&T participants may benefit from extended job retention services, but the Department does not have discretion through rulemaking to extend job retention services beyond the 90-day limit in the FNA.

A not-for-profit agency encouraged the Department to offer additional guidance to specify that job retention services must include support for child care and transportation costs associated with retaining employment. The commenter explained many job retention participants may benefit from these services, but do not receive them, and as a result may not successfully transition to employment. The Department agrees that child care and transportation assistance may be helpful supports for the newly employed. However, as with all components, State agencies have flexibility to determine what services to offer under its job retention component. Job retention services may include providing or reimbursing participants for costs associated with transportation and childcare so that an individual can go to work. It is true that per § 273.7(d)(4), State agencies are required to provide participant reimbursements that are reasonable and necessary, and directly related to participating in an E&T component, including the job retention component. However, employment, in and of itself, is not a job retention service and, therefore, the State agency is not required to provide participant reimbursements so that an individual can go to work. Rather, if a State agency offers a service outside of work, such as a class on workplace etiquette, that requires individuals to travel to get there, a State agency is required to provide or reimburse individuals for their transportation costs in accordance with § 273.7.d(4). The Department encourages State agencies to consider offering job retention services, and work with their E&T providers to identify available and appropriate services that will support successful employment, but the Department cannot require a State agency to provide job retention services, nor require that the State agency provide child care and transportation services as part of the job retention component, outside of the required participant reimbursements that are reasonable and necessary for participating in a job retention activity outside of work.

Three commenters were concerned with preamble language that offered examples of how the State agency could demonstrate a good faith effort to provide at least 30 days of job retention services. The commenters explained that the example of creating a case management program for job retention participants that extended at least 30 days would deter some providers and participants from participating in the job retention component, because many providers of job retention do not create a case management plan for each

participant, but rather offer services based on the most salient needs of the participant at the time of contact. One commenter explained it would also be confusing to have a broader E&T case management plan and a more specific one for job retention. Instead the commenters proposed that service providers describe a general approach to job retention case management in their agreements with the State agency. A not-for-profit agency believed that a good faith effort to provide job retention services should also include a reasonable number of documented outreach attempts to the participant. The Department appreciates the comments that developing a separate case management plan for job retention may not always be feasible or helpful. The Department only intended to include a case management plan as an example of how a provider is making a good faith effort to provide at least 30 days of job retention. The Department requires that the provider must demonstrate in some way that a good faith effort has been made to provide 30 days of services. This could include, among other ideas, making a reasonable number of attempts to contact a participant, discussing the 30 day minimum requirement with the participant at the outset, or outlining specific steps the provider or the participant will take over the next 30 days to maintain a job.

In conclusion, the Department codifies the regulation as proposed without any changes.

E&T Pilot Activities

The Act provided the Secretary with discretion to allow programs and activities from the E&T pilots authorized under the Agricultural Act of 2014 (Pub. L. 113-79) (2014 Farm Bill) as regular E&T components in section 6(d)(4)(B)(i)(VIII). The Act specified that this determination must be based on the results from the independent evaluation of the 2014 Farm Bill E&T pilots, showing which programs and activities have the most demonstrable impact on the ability of participants to find and retain employment that leads to increased household income and reduced reliance on public assistance. As a result, the Department proposed adding similar language to the regulations in a new paragraph at 7 CFR 273.7(e)(2)(ix) to create a new E&T component category. The Department would note that the independent evaluation of the 2014 Farm Bill E&T pilots will not be completed until late 2021; as a result, the Department is not yet able to specifically identify new E&T components from the 2014 Farm Bill E&T pilots.

The Department received 13 comments on this provision. As the evaluation is not yet complete, commenters generally expressed support in engaging with pilot activities once the Department has completed their assessment. However, one commenter recommended that States that participated in the pilots be allowed to continue those activities until the evaluation is complete and the Department has identified which activities have been found effective. The commenter explained Congressional interest in continuing these pilots is reflected in the Congressional prioritization of reallocated 100 percent E&T Federal funds. The Department appreciates the commenter's interest in the 2014 Farm Bill E&T pilots. As discussed later in this preamble, 50 percent of reallocated 100 percent funds shall be reallocated to State agencies requesting such funds to conduct employment and training programs and activities for which such State agencies had previously received pilot funding that the Secretary determines have the most demonstrable impact on the ability of participants to find and retain employment that leads to increased household income and reduced reliance on public assistance. However, until the final assessment, the Act allows the Department some discretion in determining activities with the most demonstrable impact, including using interim pilot reports or other information relating to performance of programs and activities.

In conclusion, the Department codifies the regulatory text as proposed without any changes.

Subsidized Employment and Apprenticeships

Current regulations at 7 CFR 273.7(e)(1)(iv) describe a work experience program as a program designed to improve the employability of household members through actual work experience or training, or both, and to enable individuals employed or trained under such programs to move promptly into regular public or private employment. The Act added subsidized employment and apprenticeship in section 6(d)(4)(B)(i)(IV) of the FNA as examples of allowable activities under a program designed to improve the employability of individuals through actual work experience or training (

i.e.,

a work experience program). The Department proposed to modify the regulation at 7 CFR 273.7(e)(1)(iv), now re-designated as 7 CFR 273.7(e)(2)(iv), to better align the definition of a work experience program and activities with other Federal workforce development programs, by delineating work experience programs into two sets of activities: Work activities and work-based learning. Subsidized employment and apprenticeships were added as work-based learning activities. The Department strongly encouraged State agencies interested in incorporating work-based learning activities into their E&T programs to work with their State Departments of Labor, American Job Centers, Perkins Career and Technical Education (CTE) providers, and other stakeholders, such as community colleges and community-based organizations, to capitalize on existing work-based learning infrastructure and services. The Department also proposed amending 7 CFR 273.7(d)(1)(ii)(A) to allow E&T funds to be used to subsidize the wages of E&T participants.

The Department received 41 comments on this provision. Commenters were very supportive of the changes to the definition of work experience and the alignment of the definitions of work experience, work activity, and work-based learning with definitions in other programs, as well as the inclusion of apprenticeships and subsidized employment as allowable activities. Several commenters mentioned they would like to implement subsidized employment as soon as possible, particularly in light of the spike in unemployment resulting from the COVID-19 public health emergency. However, some commenters were concerned that wages earned through subsidized employment would count as income for the SNAP eligibility determination, potentially making E&T participants ineligible for SNAP and, consequently, ineligible for E&T and the subsidized wage. FNS is not aware of any existing laws that would allow income from subsidized employment to be excluded when determining eligibility for SNAP. The Department advises, as a best practice, that the State agency advise participants of whether earnings from a work-based learning activity under an E&T program could potentially decrease the amount of SNAP benefits they receive or make their household ineligible for SNAP, and by extension, E&T, depending on their circumstances.

A not-for-profit agency explained they appreciated the Department's recognition in the proposed rule that the work experience component must be consistent with the Fair Labor Standards Act (FLSA), must not displace existing workers, and must provide participants with the same benefits and opportunities as anyone else doing a

substantially similar job. The commenter encouraged the Department to partner with Department of Labor (DOL) to issue guidance helping states avoid FLSA violations when using work-based learning models. The Department agrees that, with the introduction of subsidized employment, State agencies may be partnering with employers unfamiliar with E&T, and appreciates that guidance on avoiding FLSA violations, as well as other technical assistance on implementing a subsidized employment program, may be helpful. The Department will work with DOL to determine the most appropriate next steps to assist States agencies building their work-based learning programs in E&T.

A State agency asked for clarification on the application of the FLSA hour limitation rules to the ABAWD work requirement and the work experience component. The commenter explained that they understood the hours worked by an ABAWD in a work experience component would be countable towards the ABAWD work requirement; however, with the FLSA limitation of hours, the commenter believed an ABAWD could be in a situation where they participate in a work activity, as defined at 7 CFR 273.7(e)(2)(iv), for the number of hours equal to their benefit divided by the minimum wage, but this number of hours may not be sufficient to meet the ABAWD work requirement. The commenter explained TANF participants are “deemed up” for participation in the TANF work requirement when they complete the maximum hours allowable under FLSA rules. The State agency recommended for the work experience component that ABAWD hours be treated the same as they are in the TANF program and with SNAP workfare. The Department understands the commenters concerns; however, the FNA is specific in this area and the Department does not have discretion to allow work experience hours to be “deemed up” as they are in TANF. An ABAWD who participates in a work experience component is prohibited from being required to work more than their benefit divided by the higher of the applicable Federal or State minimum wage, in accordance with the FLSA. However, if those hours are not sufficient to meet the ABAWD work requirement, the ABAWD would then need to participate in another activity to meet the balance of hours necessary to meet the ABAWD work requirement. The Department encourages State agencies to provide additional opportunities through the E&T program that would allow the ABAWD to meet the ABAWD work requirement.

The Department would also like to make a clarification to the language in 7 CFR 273.7(e)(5)(iii) regarding voluntary E&T participants being permitted to work in an E&T program or workfare for more hours in a month than the value of their household allotment divided by the higher of the applicable Federal or State minimum wage. The Department recognized that the language at 7 CFR 273.7(e)(5)(iii), as proposed, could have been interpreted in some circumstances to allow voluntary E&T participants to choose to work additional hours for less than minimum wage in violation of Federal and State minimum wage laws. The clarified final regulation will now only permit those additional hours if the voluntary E&T participant earns a wage at least equal to minimum wage for the additional hours. For instance, if an E&T participant volunteers to participate in a subsidized employment activity, the participant may volunteer to participate for more hours in a month than their household allotment divided by the higher of the applicable Federal or State minimum wage, so long as the subsidized employment activity provides the participant with a wage at least equal to the higher of the applicable Federal or State minimum wage for those additional hours. The Department would also like to note that voluntary E&T participants in a work activity will not be allowed to volunteer for additional hours beyond the number of hours in a month that is equal to the value of their household allotment divided by the applicable Federal or State minimum wage, as allowing such excess would translate to receiving less than the minimum wage in the form of SNAP benefits. The Department has made this clarification at 7 CFR 273.7(e)(5)(iii), as re-designated.

A workforce training agency cautioned that, while subsidized wages can provide an incentive to employers to hire people with greater barriers to work, there must be oversight to ensure that employers do not just use the subsidy as a discount on labor, replacing the worker as soon as the subsidy ends with another subsidized worker. The commenter explained there needs to be systems of accountability to ensure employers retain and advance workers. The Department agrees that the objective of work-based learning, including subsidized employment, is to create a learning environment with the employer that includes specific training objectives and leads to regular employment. The objective of work-based learning, including subsidized employment, is not to provide employers with low-cost workers until the subsidy “runs out.” Work-based learning is also part of the broader work experience component. The Department explains in the regulatory text that a work experience program is designed to improve the employability of household members through actual work experience or training, or both, and to enable individuals employed or trained under such programs to move promptly into regular public or private employment. The Department expects State agencies implementing subsidized employment programs to have agreements in place with employers to provide actual training to SNAP participants and a plan to move participants into unsubsidized employment as a result of the subsidized employment experience, either with the same employer or with another employer. As part of outcome reporting for E&T, as required in 7 CFR 273.7(c)(17), State agencies will be expected to report on participant outcomes for participants engaged in the work experience component.

The Department also received comments from a State agency and a workforce training agency that urged the Department to clarify whether wages or stipends provided by the employers participating in subsidized employment can be considered the non-Federal amount for which they may receive 50 percent reimbursement (

e.g.,

the employer pays a total training wage or stipend of $15 per hour, with $7.50 reimbursed through E&T). The commenters recommended allowing wages or stipends provided by employers to be eligible for 50 percent reimbursement in order to increase the potential number of subsidized employment opportunities that may be offered. The Department is hereby clarifying that the Department will reimburse the State agency 50 percent of non-Federal funds expended on allowable E&T activities and services, including allowable costs associated with wages though a subsidized employment program, in accordance with applicable SNAP laws and regulations, as well as the Federal cost principles in title 2 of the CFR. The Department would also like to make a clarification to the regulatory text at 7 CFR 273.7(d)(1)(ii) to explain that while the E&T grants may be used to subsidize wages as part of the subsidized employment activity within the work experience component, that the E&T grant will not otherwise be permitted to subsidize wages for E&T participants.

These commenters also asked the Department to clarify if wages earned

for both classroom training and work are eligible for reimbursement under SNAP E&T. A State agency explained one of their E&T providers employs a model where participants earn wages for time spent in the classroom instruction phase of the curriculum, as well as the following phase, when individuals begin applying their knowledge through actual work. The Department is hereby clarifying that if an individual is in a job (

e.g.,

subsidized employment, apprenticeship etc.), and that job requires classroom training in addition to the regular work, then State agency expenditures on wages earned for the classroom training are eligible for 50 percent reimbursement.

A local government agency agreed with the addition of apprenticeships and subsidized employment as allowable work experience activities, but suggested that pre-apprenticeship training should also be included, as pre-apprenticeship programs can function as an on-ramp to success in an actual apprenticeship program. The Department agrees and, for this reason, included pre-apprenticeships as a type of work-based learning program in the regulatory text at 7 CFR 273.7(c)(2)(iv)(A)(2).

A local government agency explained the most recent reauthorization of the Carl D. Perkins Career and Technical Education Act included simulated environments in the definition of work-based learning. The commenter recommended ensuring this option is included in allowable activities in E&T. The commenter explained instruction in a classroom setting is not always feasible for participants, particularly those with family or dependent care responsibilities, so online instruction fosters familiarity with technology, and is better aligned with the future of work. The commenter cautioned, however, that given the “digital divide” faced by many economically disadvantaged households, online learning should only be one in a range of options, with the provision of necessary supports. The Department agrees that simulated environments can be one way to deliver work-based learning, and included simulated environments in the definition of work-based learning in the proposed rule, and will keep simulated environments as part of the final rule at 7 CFR 273.7(c)(2)(iv)(A)(2).

A workforce training agency noted that in the Department's revised definition of work experience, work activity, and work-based learning, there no longer appears to be a place for “non-workfare activities” that build a participant's general skills, knowledge, and work habits, and provide a history of work experience, but are not aligned with a career path in a specific field. The commenter explained the definition of work activity appears similar to workfare activities, to provide participants with the “general skills, knowledge, and work habits necessary to obtain employment,” while work-based learning is intended to build skills and experience in a given career field. The commenter believed some populations require work-based learning experiences that are more general in nature to allow them to build a work history that will lead to other employment. For example, an E&T provider may provide work experiences for E&T participants on parole or probation. These experiences are extremely important in helping the participant demonstrate the ability to obtain and retain future employment; however, they are not always connected to a specific career path. The commenter urged that the final language should allow for these types of work experiences within the definition of work-based learning or should broaden the definition of work activity. The Department recognizes that some E&T providers provide services that prepare individuals for the “first rung” of a career ladder. Mastery of soft skills and other work readiness activities—including general skills building, developing good work habits, and building a work history—are important foundational elements of any career pathway. Thus, these experiences can be included under work experience as part of a career pathway program. The Department also notes that, in some cases, basic skills training may be a better fit under another activity like work readiness in the education component.

The Department also received a comment from a not-for-profit agency opposing any work requirement in exchange for any form of basic assistance, including SNAP. As a result, the commenter rejected the premise in the proposed definition of a work activity, stating that work activities are “performed in exchange for SNAP benefits.” The commenter expressed that people experiencing hunger should not have to “perform activities” in exchange for food. The Department appreciates the commenter's point of view, but the Department believes it is important, to the extent practicable, to align the definition of work activity in SNAP with the definition from TANF. Household members participating in a work activity or workfare are being compensated for their work through the SNAP allotment. The FNA in section 6(d)(4)(F) and regulations at 7 CFR 273.7(e)(4)(ii), as re-designated, prohibit members of a household from being required to work in an E&T program or participating in workfare for more hours than value of the household allotment for the month divided by the higher of the applicable State or Federal minimum wage. The Department stands by the proposed definition of work activity as one of several different types of work experience that can be offered by a State agency to develop the skills and experience of E&T participants, and move them toward self-sufficiency.

In conclusion, the Department codifies the regulatory language as proposed, with a modification to the language at 7 CFR 273.7(e)(5)(iii) pertaining to voluntary E&T participant work hours.

WIOA Programs

In the proposed rule, the Department proposed to modify 7 CFR 273.7(e)(2)(v), as re-designated, pertaining to allowing “WIA or State or local program” to serve as E&T components. The Department proposed to strike “or a WIA or State or local program” from the regulatory language because with the Act's inclusion of subsidized employment and apprenticeships as allowable activities in E&T, all activities operated under WIOA (formerly referred to as the Workforce Improvement Act or WIA) are now allowable within other E&T components. Similarly, any services offered by the State agency or through State or local programs can be included in one of the other E&T components. By making this change, the Department is not intending to convey that programs operated under WIOA would be unallowable as E&T activities; in fact, all would be allowable and coordination would be encouraged. The Department received no comments on this change and hereby codifies the regulatory language as proposed.

Case Management

Current regulations at 7 CFR 273.7(c)(4) establish the requirement that each State agency must design and operate an E&T program that must consist of one or more E&T components as described in 7 CFR 273.7(e)(1). The Act modified the definition of an E&T program in section 6(d)(4)(B)(i) of the FNA to require that each State E&T program must also provide case management services, such as comprehensive intake assessments, individualized service plans, progress monitoring, or coordination with service providers, in addition to at least one E&T component. The Department

proposed to modify the regulation at 7 CFR 273.7(c)(4) to add that State agencies must offer case management services to all E&T participants. The Department also proposed to modify the regulations at 7 CFR 273.7(e) to add a new paragraph (e)(1), stating that case management services are a required part of all State E&T programs, and to provide examples from the Act of case management services. The Department proposed in new paragraph 7 CFR 273.7(c)(6)(ii), requiring that State agencies include information in their E&T State plans about case management operations, including a description of their case management services and models, the cost for providing the services, how participants will be referred to case management, how the participant's case will be managed, who will provide services, and how the service providers will coordinate with E&T providers, the State agency, and other community resources, as appropriate. In addition, the Department proposed various changes to the definitions in 7 CFR 271.2, the screening and referral process for E&T at 7 CFR 273.7(c)(2), and other E&T provisions to reflect the inclusion of case management services in the E&T program.

The Department received 35 comments on the case management provision, most of which believed case management was a beneficial addition that would help individuals successfully participate in E&T. Commenters supported the flexibility within the proposed regulation allowing case management services to be tailored to the needs of the participants and the capacity of the service provider. Many State agencies and workforce training agencies mentioned that case management is already a regular part of their E&T programs. Commenters also supported the requirement that case managers inform the appropriate State agency staff about possible participant exemptions or good cause circumstances, although some commenters were concerned that the State agency may not take the appropriate action with that information. In addition, while all commenters felt that case management would be helpful to E&T participants, some commenters were concerned that mandatory participants could be sanctioned for failing to participate in case management. Commenter concerns are discussed at greater length below.

The Department received several requests to clarify what services may constitute case management, to clearly state that State agencies have discretion to develop their own case management programs, and to clarify if hours spent in case management count toward the ABAWD or E&T work requirements. As stated in the proposed rule, State agencies would have flexibility in the types of case management services offered, but the provision of case management services should generally be consistent with the examples provided in the Act, and driven by the needs of the participant. In the proposed rule, the Department stated that, to be allowable, the State agency would need to be able to demonstrate how a case management service is supporting an individual to successfully participate in E&T. Several not-for-profit agencies explained that E&T participants can face a number of barriers to employment, including housing instability, domestic violence, and unmet physical and behavioral health care needs. The commenters recommended that case management providers have broad flexibility in the types of services and supports they can provide participants to address these barriers. The Department understands that many different kinds of services can be offered under the umbrella of case management and that E&T participants can face a large number of barriers to successful participation in E&T. However, the Department wants to clarify that, while case managers may assist participants with barrier removal (

e.g.,

perform an assessment of participant barriers, identify resources in the community to address those barriers, make referrals), SNAP E&T funds can only be used for allowable E&T activities and support. E&T funds must be used for the administrative costs of planning, implementing and operating SNAP E&T. This includes allowable components and activities, and supports that are reasonably necessary and directly related to participating in E&T, such as transportation, dependent care or other work, training or education related expenses. For instance, case managers might identify substance use disorder as a significant barrier to training or employment and in such a case would be allowed to make a referral to a substance use disorder treatment center. However, the State agency would not be allowed to support treatment costs at a substance use disorder treatment center with E&T funds, as this is not an allowable E&T component nor an allowable participant reimbursement. Similarly, a case manager might learn that an individual needs transportation assistance to get to the E&T site or help purchasing training supplies that are required in order to successfully participate in an E&T component. In such instances, the case manager could provide the individual with participant reimbursements to fund those costs.

Another State agency asked for clarification that hours a participant spends reducing barriers identified in their individual employment plan and assigned through case management may count towards the work requirement. Case management is part of the E&T program. Thus, time spent participating in case management counts towards the time a participant spends in E&T. In addition, E&T is a way for ABAWDs to fulfill the ABAWD work requirement, with certain restrictions as detailed in 7 CFR 273.7(e)(2). As such, hours an E&T participant spends with a case manager must count towards the participant's mandatory E&T requirement and ABAWD work requirement. However, hours spent by the individual actually participating in the barrier removal activities do not count, unless the activity is an allowable E&T activity. For instance, hours a participant spends with a case worker identifying a temporary housing solution must count toward their work requirement, but not hours spent actually moving into temporary housing, as moving is not an E&T component or activity. On the other hand, a case manager may identify limited English proficiency as a barrier to successful participation in an E&T activity and refer the individual to an education component to build basic reading skills. Time spent in the education component would count toward work hours just as would time spent in any other E&T component. The Department has modified the regulation at 7 CFR 273.7(e)(1) to state that case management can include a number of activities and supports, but the services must directly support an individual's participation in an E&T program to count towards the individual's work requirement. Case management may include referrals to activities and supports outside of the E&T program, but State agencies can only use E&T funds for allowable components, activities, and participant reimbursements.

The Department also notes that 7 CFR 273.7(e)(1), as re-designated, requires a case manager to report to the appropriate State agency staff any likely exemptions or potential good cause circumstances applicable to an E&T participant. In some cases, an individual facing significant barriers may be better served with a referral to another program, and can return to E&T when they are able to seek work or train for a job. In these circumstances, a case manager would be allowed to assist the individual with any State agency

follow-up on the request for an exemption or good cause, and the Department would encourage case managers to make a warm hand-off to other appropriate non-E&T services, if and when the exemption or good cause is granted. More discussion of the case manager's responsibilities to inform the appropriate State agency staff about exemptions and good cause is found later in the preamble, in the section on State agency accountability for participation and good cause.

Several commenters wrote of their support for the statement at 7 CFR 273.7(e)(1) that “the provision of case management services must not be an impediment to the participant's successful participation in E&T,” but urged the Department to strengthen this provision by specifying that, if a participant is otherwise participating in SNAP E&T activities, the participant may not be sanctioned for noncompliance solely because of non-compliance with case management activities. One not-for-profit agency recommended that the case management provider be required to gather input from the SNAP E&T participant about their desired level of participation. If the participant is still engaged in other SNAP E&T activities, but no longer interested in case management services, the participant would not be sanctioned for noncompliance solely for not participating in case management. Another not-for-profit agency suggested that case management should be provided to each individual at least once and be offered on an ongoing basis, but not be required beyond the initial interaction, if not desired or needed by the participant. A legal service agency recommended that the rule should explicitly state that case management activities not add additional case maintenance, paperwork burdens, or eligibility steps that could result in delays, reductions, or terminations of SNAP benefits due to non-compliance with case management activities. A workforce training agency cautioned that the Department should also not require the provision of case management services with a particular frequency (

e.g.,

once a month). The Department acknowledges that a mandatory E&T participant can be sanctioned for failure to comply with case management, as case management is part of the E&T program, but the Department also believes that State agencies have sufficient flexibility in the design of their case management services to ensure that case management supports individuals participating in E&T and does not become a barrier for low-income individuals who need access to E&T or food assistance. The Department also recognizes the wide variability in how E&T programs are structured across States, and that case management will be provided in a number of ways depending on the structure of the program and the needs of the participants. For instance, some participants may receive case management services embedded in a component, whereas other participants may receive stand-alone case management services separate from a component. Some participants may desire regularly occurring case management meetings, whereas other participants may only desire receiving case management when requested. The Department believes it is important to maintain this flexibility, and expects State agencies and their providers to work with participants to determine the best and most efficient delivery of case management services. The Department also reminds State agencies that the purpose of case management is to support participation in the E&T program. While all E&T participants must receive some case management, there is not an expectation that participants receive ongoing case management or multiple sessions of case management, if that is not desired by the participant, and the participant is otherwise successfully participating in an E&T component. The Department strongly urges State agencies and their providers to communicate upfront with participants about the participant's need for and interest in case management, and plan for case management services that meet those interests and needs. If the State agency or a provider finds that an individual has received some case management services, but is not currently engaged with case management, and is otherwise successfully participating in an E&T component, the Department would strongly encourage the State agency or the provider to communicate with the participant about their interest in case management, and adjust the provision of case management services accordingly.

The Department strongly believes that E&T programs should not unduly burden participants with administrative hurdles, meaningless tasks, and inefficient processes. Several commenters agreed that overly intensive or complex services, such as exhaustive skills assessments, numerous in-person meetings, or multiple hand-offs between providers can deter individuals, even in voluntary E&T programs, from completing the case management process, especially for those that already face transportation or accessibility barriers. One not-for-profit agency urged the Department to require State agencies to include in their State E&T plans a description of how the case management services will support the goals of guiding participants to appropriate services, support individuals throughout the E&T activity, and provide additional services. The Department agrees that case management services must be tailored to the need of participants. State agencies and their providers should only provide services when there is a clear connection between those services and supporting the participant to succeed in the training or improving the employability of the participant. State agencies must also design their case management processes in a way that reduces hand-offs and unnecessary steps. The Department recognizes that State agencies will provide case management services in a number of ways—through State agency staff, E&T provider staff, or through other professionals—so it may not be possible to describe all case management services and the way they are provided in the E&T State plan. The Department notes that the regulatory text at 7 CFR 273.7(e)(1), as re-designated, states that the purpose of case management services shall be to guide the participant towards appropriate E&T components and services based on the participant's needs and interests, support the participant in the E&T program, and provide activities and resources that help the participant achieve program goals. However, the Department has modified the regulation at 7 CFR 273.7(c)(6)(ii) to require State agencies to include in their E&T State plan a general description of how the State agency will ensure E&T participants are provided with targeted case management services through an efficient administrative process. The Department will also continue to work with State agencies to develop case management processes that are efficient and adaptable to make best use of E&T resources and reduce participation barriers.

The Department also received a comment from a not-for-profit agency suggesting that the proposed rule incorrectly implemented the case management statutory provision by requiring case management be provided to all E&T participants. The commenter stated that the changes to section 6(d)(4)(B)(i) of the FNA only required case management to be a part of every State E&T program, not that every E&T

participant must receive case management. The commenter explained a State E&T program can contain case management and one component, or case management and multiple components. In the latter instance, all E&T participants are not required to participate in all components. The Department does not concur. The Department believes reading the statute in a manner that only offers case management to some E&T participants instead of all E&T participants does not make sense or further the purpose of the Act's changes. This change means all States agencies must now offer both case management and at least one component to each participant, and each individual must receive both case management and at least one component.

The Department received general support for including a description of the case management services offered by the State in the State E&T plan. However, several commenters did not support requiring cost information associated with the case management services in the E&T State plan. A not-for-profit agency that works with service providers and several workforce training agencies explained that providers integrate case management into other individually tailored services within E&T components, such as career counseling and job readiness training, and it would be burdensome and difficult for providers to account for each activity separately. They asked the Department to allow the cost of case management services to be embedded within component costs when participants receive case management services as part of that component. In addition, two workforce training agencies, who already provide case management to E&T participants, asked that the Department not impose onerous tracking, reporting, and other requirements for case management on E&T providers. The Department agrees that regulations pertaining to case management should not impose unnecessary burdens on E&T providers or participants. The flexibility provided within the regulations allows E&T providers, in conjunction with the State agency, to develop and provide case management services that are tailored to the needs of participants, the capacity of the E&T provider, and the structure of the E&T program in the State. The Department also understands that, in many circumstances, embedding case management in the E&T component will best serve the needs of the E&T participant, and that separately tracking the cost of those case management services could indeed be onerous. As a result, the Department has modified the regulation at 7 CFR 273.7(c)(6)(ii) to remove the requirement that State agencies include the estimated cost of case management services in the E&T State plan. However, the Department notes that State agencies must still track the receipt of case management services for the E&T quarterly reports to ensure every E&T participant receives case management. The Department provides State agencies with discretion regarding how they collect data from their providers. As such, State agencies should work with their respective E&T providers to develop reporting systems that efficiently and accurately gather the appropriate information required for E&T quarterly and annual reports.

The Department also received a comment from a workforce training agency urging the Department to set aside a portion of E&T 100 percent funds to only be used for case management, and a separate comment from a not-for-profit agency to provide additional 100 percent funds for case management. Both commenters explained that the provision of high quality case management services is expensive, and may be cost prohibitive for some agencies if they do not receive dedicated or additional funds. In addition, both commenters explained that setting aside dedicated case management funds would encourage agencies to work more with individuals facing high barriers. The Department understands that the provision of high-quality case management services is resource intensive. Each State agency receives 100 percent funds that can be used to offset the costs of case management services, and State agencies have discretion in how these funds are distributed to their E&T providers. In addition, FNS reimburses State agencies 50 percent for allowable costs paid for with non-Federal funds above that amount, which would include costs associated with case management. The Department encourages State agencies to work with their E&T providers to ensure these resources are used to provide robust E&T case management services while maximizing the impact of E&T.

Lastly, the Department also received a comment regarding the frequency of case management meetings. The commenter had read in the Regulatory Impact Assessment (RIA) that the Department estimated approximately monthly case management meetings. The commenter was concerned about what they viewed as the Department's decision to regulate the number and frequency of meetings. The Department is clarifying that the values provided in the RIA are only used to estimate the impact of the regulation on the affected public, and that the Department understands, as discussed above, that the number and frequency of case management meetings will vary by individual, depending on their circumstances, the structure of the E&T program, and the capacity of the E&T providers.

In conclusion, the Department codifies the proposed regulations with changes made to the description of case management at 7 CFR 273.7(e)(2) and the information required in the E&T State plan at 7 CFR 273.7(c)(6)(ii).

Referral of Individuals

Section 4005 of the Act added a new requirement for State agencies regarding any E&T participant, not otherwise exempted from the general work requirement, who is determined by the operator of an E&T component to be ill-suited to participate in that E&T program component. For work registrants determined to be ill-suited, the Act required the State agency to do the following: (1) Refer the individual to an appropriate E&T component; (2) refer the individual to an appropriate workforce partnership, if available; (3) re-assess the individual's physical and mental fitness; or (4) to the maximum extent practicable, coordinate with other Federal, State, or local workforce or assistance programs to identify work opportunities or assistance for the individual. During this time, also per the Act, the State agency shall ensure that an individual undergoing and complying with the process above shall not be found to have refused without good cause to participate in an E&T program. This new requirement was added at new section 6(d)(4)(O) of the FNA. The Department proposed to codify this new requirement in a new paragraph at 7 CFR 273.7(c)(18). The Department believes this new provision was intended by Congress to increase the accountability of State agencies, particularly for mandatory E&T participants. While State agencies are already required to develop State criteria to determine who should be required to participate in E&T, State agencies often do not apply sufficient due diligence to ensure the SNAP participants who are referred to the E&T program have the capacity to benefit from the particular training or that the particular component to which they are referred matches the SNAP participant's needs and skill level. Unfortunately, in these situations, SNAP participants could fail to benefit from the program and, ultimately, could be disqualified

for failure to participate. This new provision strives to strengthen State accountability for their E&T programs by requiring State agencies take additional steps to ensure SNAP participants who are determined ill-suited for an E&T component receive the targeted help they need to move toward self-sufficiency. The Department proposed several new processes to implement the provision, including a requirement that individuals with an ill-suited determination receive a Notice of E&T Participation Change (NETPC) from the State agency soon after their ill-suited determination.

The Department received 44 comments on this provision. Commenters were generally supportive and believed the provision would ensure more participants are directed to activities most likely to help them move toward self-sufficiency. However, many commenters had questions and concerns on segments of the provision as proposed, most notably the term “ill-suited,” the applicability of the provision to self-referrals and voluntary households, the NETPC requirements, and the inability to stop the ABAWD time clock after an ill-suited determination.

Several commenters explained that the term “ill-suited” was insensitive and stigmatizing, and did not take a strengths-based approach to working with participants. A not-for-profit agency explained that people are not “ill-suited” for programs, but programs can be ill-suited for people. Another commenter explained there may be multiple reasons a referral from a State agency may not be successful, including a lack of an available slot or a lack of follow-up from the participant or provider, and believed these other reasons should also be communicated back to the State agency under a mandatory E&T program. Alternative terms like “incomplete referral,” “revised referral,” or “reassigned referral” were suggested. The Department agrees that a switch to different terminology for this situation could be less stigmatizing, but also notes “ill-suited” is the language used in the statute. For the purposes of the regulations, the Department will use the phrase “provider determination” in place of “ill-suited determination.” The Department also recognizes there are many reasons why a participant may not successfully complete a component, but for the purposes of this regulation the Department is finalizing language pertaining to individuals who are determined by the provider to not be a good fit for the component.

Commenters also asked the Department to recognize a new referral is a significant burden on the time and hopefulness of a jobseeker, and can be a demoralizing process. Commenters spoke of the need for State agencies to have as much information as possible about E&T providers so that State agencies can make the best possible referrals, thus heading off instances when an individual and an E&T program are not well-aligned. One workforce training agency explained it frequently receives referrals from the State agency for individuals who do not meet criteria for enrollment; this commenter believed a handbook for State agency staff which offered more information about available providers would be helpful. A not-for-profit agency that works with many E&T providers suggested a more upstream solution to invest additional resources into data systems, as well as the development of robust and holistic intake and referral processes. The commenter encouraged the Department to support the development of these systems. The commenter further explained these data systems could support making a better match and facilitating the back and forth with a client when a provider determination is made. The Department agrees that E&T participants must always be treated with care and respect, which is why State agencies should implement screening and referral processes that are both effective and efficient. The Department encourages State agencies to work with their providers to develop appropriate screening criteria so they only refer individuals who meet the providers' criteria for enrollment. The Department also agrees that State agencies should consider developing data systems and other processes to improve their ability to screen and refer individuals to appropriate providers. The Department will continue to offer technical assistance to support State agencies in these efforts.

The proposed rule stated that the E&T provider has the authority to determine if an individual referred to or participating in an E&T component should receive a provider determination for that E&T component. Two commenters urged the Department to make an addition to paragraph 7 CFR 273.7(c)(18)(i) to require the State agency to ensure E&T providers are informed, not only of their authority, but also their responsibility to make a provider determination for a particular E&T component. The commenters believed this addition would place an expectation on the provider to inform the State agency whenever an individual was not a good fit for the program component. The Department agrees that, not only do E&T providers have the authority to make a provider determination, the E&T providers must also have the responsibility to make this determination. The addition of “responsibility” more clearly lays out the Department's expectation that E&T providers will identify individuals who are not a good fit and notify the State agency of the provider determination in accordance with 7 CFR 273.7(c)(18)(i).

Commenters also shared that E&T providers should have more guidance on what constitutes a provider determination, to ensure consistency among providers and to avoid discriminatory practices. Commenters also felt that E&T providers should be given guidance on how to approach the decision to make a provider determination with compassion and a spirit of assistance, acknowledging that some E&T participants, particularly ABAWDs, may face barriers that would make it hard for them to meet E&T program expectations. For instance, providers should consider how to enable an individual to participate rather than immediately making an E&T provider determination. Another commenter explained that, while the end goal of the provider determination may be to match a jobseeker with more appropriate programming, in practice the determination screens a jobseeker out of an available E&T component with the hope that the State agency will have another, better option available for the individual down the line. The commenter recommended that the Department take steps to make transparent the criteria that inform an E&T provider determination and to offer opportunities for feedback and revision of these criteria. In addition, the commenter was concerned that deferring sole authority to E&T providers to make these determinations could result in a patchwork of unaligned and confusing approaches that are subject to staff discretion and, therefore, also subject to staff's implicit or explicit racial biases. The Department agrees that E&T providers should not indiscriminately refer E&T participants back to the State agency. The Department has long discouraged providers from “creaming”—serving only participants that show potential for good outcomes. The Department encourages providers to make every reasonable effort to assist individuals' participation in the training to which they have been referred, only making a provider determination if absolutely

necessary. In accordance with 7 CFR 272.6(a), 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 non-discrimination 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 up-front 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 re-assignment if the participant believes the provider is “ill-suited” to the participant's 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 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 273.7(f)(6) 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 273.7(c)(18)(i)(B). The Department notes that E&T providers are required at 7 CFR 273.7(c)(4) 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 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 not-for-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

the next step. The Department Encourages State agencies to include appropriate protocols for the secure handling of personal or sensitive information in their agreements with providers, including any such protocols based on Federal or State law and guidance. E&T providers should follow their internal protocols, as well as any protocols outlined in their agreements with the State agency, consistent with applicable laws regarding secure handling of such information.

Several State agencies expressed concern with the section of the proposed rule that would require the State agency to be the entity that makes the choice among the four available actions. These State agencies agreed that rescreening the individual for mandatory participation in the E&T program is the responsibility of eligibility workers, but they did not think eligibility workers would be the most appropriate group to refer the individual to another E&T component, workforce partnership, or another assistance program. One State agency suggested that case managers would be the most appropriate entity to make the re-referral and, in their State, case managers are embedded with E&T providers. As a result, requiring the individual with a provider determination to go back to the State agency, rather than to their provider case manager, would be problematic because: The participant has an established relationship with their case manager (not with an eligibility worker); individuals will lose trust they have built with their case manager; individuals will be forced to “start over” potentially causing them to disengage from the program; eligibility workers are not well-versed in the specific E&T components offered in the State; and case managers know more about the participant's circumstances and are better able to recommend other appropriate next steps, including possible exemptions. The State agency recommended that the Department provide flexibility to allow individuals with a provider determination to go back to their case managers for next steps, while still allowing eligibility functions to remain with the eligibility workers. Several commenters stated that allowing case managers or staff associated with the E&T providers to re-refer the participant to another component would also reduce the number of times an individual bounces around to different offices, thereby reducing confusion and inconvenience. Another State agency operating both a mandatory and voluntary E&T program explained that E&T providers are very capable of assigning the participant to a new component, referring the participant to another partner organization, reassessing the individual, and obtaining other assistance for the participant. Similarly, a second State agency operating a voluntary program explained that the proposed provision assumes that State agencies are not already implementing a “no wrong door” approach to service delivery. The State agency explained their existing process already allows for a “no wrong door” approach, which provides for re-referrals within the provider network and for participants to be screened for suitability before receiving services across multiple programs. The Department does not disagree that E&T providers may, in some cases, have the necessary skills and capacity to reassess individuals and determine a more appropriate component. However, the Department believes, particularly with regard to mandatory programs, but also with voluntary programs, that the State agency, not other entities, must determine if a participant with a provider determination should actually continue to participate in E&T. Congress included, as one of the four options after an individual receives a provider determination, that the State agency reassess the individual's mental and physical fitness. The Department interprets this to mean that Congress intended for the State agency to only re-refer an individual to E&T or, at the participant's discretion, refer to a workforce partnership (the two methods of meeting a mandatory E&T requirement), if the individual remained eligible for E&T. Only the State agency can determine if an individual is eligible to participate in E&T, and if it would be appropriate for the individual to do so.

A professional organization noted the proposed rule goes beyond what is specified in the Act to dictate that the decision regarding appropriate next steps after a provider determination is a function of eligibility staff. The commenter urged the Department not to assign this as a function of eligibility staff, and allow State agencies to identify which parties within the E&T program are the most appropriate to be involved in the decision-making and communication with the clients. A State agency also asked the Department to clarify the difference between an eligibility function and the functions of State staff that are more directly engaged in E&T. When the Department refers to an eligibility function or eligibility staff, the Department is referring to the workers who make eligibility determination for SNAP benefits (including determining exemptions from the work requirements and referring individuals to E&T) as specified in section 11(e)(6) of the FNA. State E&T staff are those who evaluate participants' suitability for certain E&T activities and otherwise coordinate activities within the E&T program. The Department believes that the decision about which of the four actions to take at 7 CFR 273.7(c)(18)(i)(B) for an individual with a provider determination must be performed by an eligibility worker because only an eligibility worker can determine if it is appropriate, as a condition of eligibility, to refer someone to E&T in accordance with State agency criteria. Similarly, only an eligibility worker can re-screen an individual for exemptions from work registration as that determination is closely related to eligibility. While other State agency staff beyond eligibility workers could refer an individual to a workforce partnership or coordinate with other Federal, State, or local workforce or assistance programs, the Department does not think it is logistically or administratively feasible to split the decision-making authority at 7 CFR 273.7(c)(18)(i)(B) between eligibility and non-eligibility staff. That being said, the Department does believe that State E&T staff, case workers, and E&T providers likely have important information to share that may inform which of the four actions would be the most appropriate for an individual with a provider determination. The Department would encourage these staff to share this information with the eligibility worker to inform the eligibility worker's decision. In addition, the Department believes State agencies must take greater accountability for individuals they refer to E&T programs—both in voluntary and mandatory programs. If an individual has already received a provider determination after an initial referral to an E&T program, the State agency must seriously consider if E&T is the most appropriate placement for the individual, or if another program, as described in 7 CFR 273.7(c)(18)(i)(B)(4), would be a better use of a participant's time. As described earlier, E&T provider staff are encouraged to provide the reason for the provider determination and make a recommendation regarding the best next action to the State agency, but ultimately the decision about the next action rests with eligibility staff in the State agency. In light of these explanations, no modification to the regulatory language is made.

A State agency operating a voluntary program noted that its State E&T program had contracted with several E&T providers who operate multiple components, and found that such providers are able to re-assign individuals from one component to a more appropriate component without re-involving the State agency. The commenter explained how the E&T provider enters the component change in the E&T data system and thus the State agency is informed. The State agency requested that the Department modify language to allow an E&T provider offering multiple components approved by the State agency to move participants to a more appropriate component without referring the individual back to the State agency. The commenter believed granting E&T providers this discretion would ensure an individual could move into a more suitable activity as soon as reasonably possible while maintaining continuity of case management services. The Department notes that section 6(d)(4)(O) of the FNA refers to an individual being “ill-suited” for a “component” and not for an “E&T program.” However, the Department agrees with the commenter that, if an E&T provider makes a provider determination for one component and believes an individual would be a good fit for another State-approved component offered by the same provider, a reasonable next step would be for the E&T provider to enroll the individual in the second component. The Department believes that the intent of the statutory language was to give E&T providers a tool to refer individuals back to the State agency when an E&T provider makes a determination that it is unable to serve the participant well. As a result, if an E&T provider determines an individual is ill-suited for a component and there is a more suitable component available, the State agency will have the option to either require the E&T provider to refer the individual back to the State agency with a provider determination, if the individual is ill-suited for one component, or allow the E&T provider to switch the individual to another component without referral back to the State agency. In the latter case, the E&T provider must inform the State agency of the new component. If an E&T provider does not have a more suitable component, the E&T provider must refer the individual back to the State agency with a provider determination. The Department has added this language to allow State agency discretion at 7 CFR 273.7(c)(18)(i).

Several commenters, including State agencies operating voluntary E&T programs, explained that implementing the ill-suited process, as described in the proposed rule, would be onerous and confusing for a voluntary E&T program to operate, and would likely create unnecessary burdens for both participants and State agency staff. One commenter recommended that, for voluntary programs, the State agency require E&T providers to refer participants with a provider determination to other providers, but only if appropriate and desired by the participant. Commenters explained that, since voluntary participants cannot be sanctioned for failure to comply with E&T, it is not necessary to include voluntary households in the actions described at 7 CFR 273.7(c)(18). The Department agrees that voluntary participants cannot be sanctioned for failure to comply with E&T, but also notes that the Act does not differentiate between voluntary and mandatory E&T participants with regard to the ill-suited process. In addition, the Department believes there is value in requiring voluntary participants with a provider determination to be reassessed by the State agency to determine the next most appropriate action. As stated above, the State agency must be accountable to E&T participants and the efficient use of E&T resources even in voluntary programs. The State agency has a responsibility to properly screen individuals for participation in E&T and match participants to the most appropriate E&T component. The State agency must also ensure all participants, both mandatory and voluntary, are being adequately served by the State's E&T providers.

The Department also received comments on the interaction between reverse referrals and provider determinations. A State agency explained that voluntary E&T participants may be referred to a specific program by the State agency or they may self-refer to an E&T provider. This State agency explained their E&T program is structured so that all E&T providers provide case management and case managers work with the participant to place them into the most compatible component. Using the proposed model, the State agency believed few individuals would be placed in a component where they are “ill-suited.” However, the State agency wondered what would happen if an E&T participant self-referred to an E&T provider and the individual received a provider determination for that component. The State agency explained they would prefer that the E&T provider, using their case management services, refer the participant to a more appropriate E&T provider, rather than back to the State agency, adding unnecessary complexity. The Department does not believe that the process described in the rule is inconsistent with self-referrals as described by this State agency, and the Department notes that self-referrals can occur in both voluntary and mandatory programs. Self-referrals (also known as reverse referrals) happen when a SNAP participant identifies an E&T provider without being directly referred to that provider and independently asks to enroll in the program. The E&T provider must determine, by contacting the State agency, that the individual is a SNAP participant and request the individual be formally referred by the State agency to the E&T component offered by the provider. If then referred by the State agency, the E&T provider may then enroll the participant in the component. The Department would expect, as a best practice that, if a potential E&T participant self-refers to an E&T provider, the E&T provider would assess the individual for compatibility with the E&T components offered prior to sending a request to the State agency for a formal referral to their E&T component. The Department reminds State agencies that E&T providers cannot enroll SNAP participants as E&T participants unless the State agency has first screened individuals to determine if it is appropriate to refer them to E&T and then refers them to the E&T program in accordance with 7 CFR 273.7(c)(2). If an E&T provider is asking the State agency to enroll walk-ins without first making sure the individual is a good fit for their program and is, in fact, a SNAP participant, and if the State agency is not scrutinizing self-referral requests from providers to ensure it is appropriate to refer individuals to the E&T program, then both the E&T provider and the State agency are failing in their responsibility to ensure participants are matched to programs where they are likely to be successful. The State agency has an accountability role to play in ensuring that self-referrals should be officially referred to E&T and, if not, to assist the individual in finding a more appropriate program.

Several commenters expressed concerns with the Notice of E&T Participation Change (NETPC). Some commenters strongly recommended the Department make the NETPC optional for voluntary E&T participants or do away with the notice requirement entirely. A not-for-profit agency

explained the State agency and local E&T providers with whom they work already have structures in place for communicating with voluntary E&T participants, and did not believe that State and Federal administrative resources should be spent on sending an unnecessary and confusing notice. The commenter urged the Department to, at a minimum, consider different parameters for the notice (

e.g.,

in a voluntary state, the NETPC language would need to inform the participant that E&T has no bearing on SNAP eligibility and not doing E&T would not harm their SNAP benefits). A State agency that runs both a voluntary and mandatory E&T program explained that the Act already requires all E&T programs to provide case management services to E&T participants, and believed it is more appropriate that the provider determination be addressed during regular on-going case management. The commenter suggested the case manager could re-assess the individual's physical and mental fitness to participate in the assigned E&T component or refer the individual to a more appropriate E&T component or workforce partnership. Another State agency, running both a voluntary and a mandatory program, explained the ill-suited notification for participants should be left to the discretion of State agencies. The commenter explained that, in their State, all E&T participants have an Employment and Career Development plan, which is updated by the participant and their case worker when circumstances change. The State agency believed this form would provide sufficient notification of the participant's changing requirements. A professional organization suggested the Department should consider providing only basic guidance that notices be given in some State-established form, acknowledging that State agencies are in the best position to identify how and when notice should be given. The commenter stated this approach would in part alleviate the burden on State agencies to establish a new written notice and procedure, but still allow State agencies to ensure that participants are communicating with their providers and case managers regarding critical decisions in the services they are receiving. This could help to reduce confusion on the part of the SNAP participant by ensuring the necessary conversations are had with staff who already have a relationship with and knowledge of the participant.

On the other hand, some commenters supported the formal noticing requirement and asked that the Department include more information in the notice. A not-for-profit agency explained notice issues have been a core element of confusion for individuals subject to a work requirement, and noted that life circumstances can change quickly for this population, potentially changing their exemption status. This commenter noted that clear communications outlining steps that can be taken to maintain benefits, including pursuing an exemption or good cause, are important to ensuring participants have continued access to the SNAP benefits they need. This not-for-profit agency recommended: Requiring State agencies to not only mail the NETPC, but also to send it via other channels like email; requiring the State agency to mail the notice to the individual subject to the work rules to ensure the message is targeted to the individual of interest; including language about exemptions and good cause in the notice; informing the E&T participant about next steps and explaining that the E&T participant is not at risk of sanction for failure to comply with E&T during that time; explaining the State agency will follow-up (by taking one of the four steps); and informing participants they will get a follow-up notice if a negative action is being taken on their SNAP case. A different not-for-profit agency explained the NETPC should clearly articulate the reason for the “ill-suited” determination, the next steps that the State agency will take to match the jobseeker to another opportunity, the time frame in which those next steps will occur, and how the jobseeker can appeal the decision. Another not-for-profit agency recommended that the Department work with State agencies to establish automatic notification procedures to ensure that E&T providers alert State agencies of a provider determination as soon as it is made. This commenter also explained State agencies should be directed to establish procedures that then communicate this notification in multiple formats (such as mail, email, and text or phone) to participants immediately upon its receipt from the provider. In addition, another not-for-profit agency urged the Department to amend 7 CFR 273.7(18)(ii) to provide notice that an ABAWD's countable months may still accrue unless the individual meets or is otherwise not subject to the ABAWD work requirement.

The Department's intent in requiring the NETPC in the proposed rule was to ensure that the individual with a provider determination understood that they had received such a determination and that they should no longer attend their E&T program, to provide the participant with some background about what would happen next and, in the case of an ABAWD, inform the ABAWD about the accrual of countable months if the ABAWD is subject to the time limit and not meeting the work requirement in accordance with 7 CFR 273.24. The Department agrees with commenters that there may be other ways, beyond a formal notice, to share this information with participants. Therefore, with this final rule, the Department is not requiring the State agency to send a NETPC, but is requiring that the State agency develop and implement procedures to notify individuals about the provider determination, steps the State agency will take to identify another opportunity, and necessary information to contact the State agency. The Department acknowledges that entities outside the State agency, such as E&T providers or other case management staff, may have a relationship with the E&T participant who received the provider determination, but the Department believes that it is the State agency's responsibility, not providers, to notify the individual of the provider determination. This is because, as noted previously, the State agency is responsible for taking one of the four actions in 7 CFR 273.7(c)(18)(i)(B) and, as discussed below, if the individual with the provider determination is an ABAWD, the State agency is responsible for informing the ABAWD that they will accrue countable months unless the ABAWD fulfills the work requirement in accordance with 7 CFR 273.24, has good cause, lives in a waived area, or is otherwise exempt. The Department is providing State agencies with discretion to determine how the State agency will notify the individual with the provider determination—for instance, in writing or verbally. The State agency must, at a minimum, document this notification in the case file. The Department is not requiring that the State agency notify the participant of the reason for the provider determination, although the State agency may do so. In any case, as previously stated, State agencies can move forward with processing a provider determination before obtaining the information from the provider as to the reason for the provider determination. In the case of either a mandatory or voluntary E&T participant, the State agency must also notify the participant that they are not being sanctioned as a result of the provider determination. The Department has added these

requirements to 7 CFR 273.7(c)(18)(i)(A).

With regard to an ABAWD who receives a provider determination, the State agency must notify the ABAWD, at the same time the State agency informs the ABAWD of the information above, that he or she will accrue countable months toward the 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 work requirements in accordance with 7 CFR 273.24, or the ABAWD has good cause, lives in a waived area, or is otherwise exempt. The Department has modified the language regarding the accrual of countable months in the final rule to state the ABAWD will accrue countable months “the next full benefit month after the month during which the State agency notifies the ABAWD of the provider determination.” The Department recognizes that ABAWDs could potentially receive a provider determination during a partial benefit month, which is not to be considered a countable month under 7 CFR 273.24(b)(1). Additionally, for ABAWDs that are notified of a provider determination during the middle of a full benefit month, this provision will not penalize ABAWDs for lost opportunities to meet the ABAWD work requirement that month. The Department does not believe it is appropriate to penalize ABAWDs for being referred to an E&T component for which an ABAWD is determined to be ill-suited, likely due to no fault of their own, nor for the time during which such an ABAWD may not have definitive communication of the provider determination. This change will mean that ABAWDs can only be assigned countable months when the ABAWD has a full month (and a full opportunity) to fulfill the work requirement after being notified of a provider determination. As a result, ABAWDs would not accrue a countable month for the month in which they receive notification of a provider determination. The ABAWD would be expected to fulfill the ABAWD work requirement by working (paid or unpaid) or participating in a work program or workfare program during the next full benefit month, unless the ABAWD has good cause, lives in a waived area, or is otherwise exempt. The regulations at 7 CFR 273.7(c)(18)(i)(A) and 7 CFR 273.7(c)(18)(ii) have been modified to reflect this change, and a corresponding change has been made to the definition of countable months at 7 CFR 273.24(b)(1). The State agency might find it appropriate on these occasions to consider whether the individual should be considered for an exemption or good cause determination and inform the ABAWD of exemption and good cause determination processes.

The Department notes that notifying individuals of the provider determination, in accordance with 7 CFR 273.7(c)(18)(i)(A), is necessary even for voluntary E&T participants, as the individual may not understand their participation in that component has ended, and wonder what their next step to receive training and assistance should be. In addition, in some cases, ABAWDs may be voluntary participants and, as discussed above, it is particularly important that ABAWDs receive information about the accrual of countable months in the next full benefit month after the month during which the State agency notifies the ABAWD of the provider determination.

The Department is also making a change to the timing of when the State agency must notify E&T participants of a provider determination. Given how crucial it is for ABAWDs to receive that notification, so that they may begin to identify other opportunities to fulfill the ABAWD work requirement, and for other E&T participants to be notified of the provider determination, so that they are not left wondering what their next step ought to be, the Department is adding a requirement to 7 CFR 273,7(c)(18)(i)(A) that the State agency must notify E&T participants with a provider determination of that determination within 10 days of receiving the notification from the E&T provider.

The Department also received comments regarding when the State agency should be required to take one of the actions in 7 CFR 273.7(c)(18)(i)(B). One not-for-profit agency recommended that the State agency be required to take one of the four actions at the next recertification because the State agency is already required to contact the participant at that time and will have the opportunity to ask questions related to the provider determination. The same commenter also suggested the participant should be given the opportunity to contact the State agency sooner for help in identifying E&T opportunities. Another commenter believed the final rule should specify steps the State agency can take to ensure that an individual with a provider determination is moved into a more suitable activity as soon as reasonably possible. Some of these steps might include having State agency staff speak with the participant about their employment goals and interests, requiring the State agency to maintain an up-to-date database of existing workforce development programming, specifically targeted to jobseekers who face more significant barriers to employment, or having the State agency employ system navigators who can better coordinate options on behalf of a participant. Given the flexibility State agencies have to structure their E&T programs based on agency priorities and the needs of local providers, the Department is providing State agencies flexibility with regard to when they take one of the actions in 7 CFR 273.7(c)(18)(i)(B), so long as the action is taken no later than the individual's recertification. The Department also believes it is important for the State agency to be responsive to individuals with a provider determination who would like to move on to one of the next steps as soon as possible. As a result, if an individual with a provider determinations tells the State agency they would like the State agency to make a decision among the four options and refer, the State agency should do so as soon as possible. The Department believes that the vast majority of E&T participants will be properly screened and initially assigned to components for which they are a good match and thus expects this provision to only apply to a small subset of the overall E&T population. The regulation at 7 CFR 273.7(c)(18)(i)(B) has been updated accordingly.

The Department received a comment from a not-for-profit agency suggesting that, rather than making a re-assessment of general work requirement exemptions, including a re-assessment of mental and physical fitness, one of the four options at 7 CFR 273.7(c)(18)(i)(B)(

3

), all participants should be reassessed for exemptions at the point that an E&T provider makes a provider determination. The commenter explained that, in their State, many mandatory E&T participants and ABAWDs could end up qualifying for an exemption from mandatory E&T or the ABAWD work requirement after a short period of time. The commenter believed re-assessing exemptions should be the starting point before seeking to refer participants to additional programs or identifying other work opportunities. Further, the commenter believed the regulation at 7 CFR 273.7(c)(18)(i)(B)(

3

) should also include an evaluation of exemptions for all the work requirements the participant is subject to, not just the general work requirement. The Department agrees that individuals who should be exempt

from any work requirement receive those exemptions, and that it is the responsibility of the State agency to screen for and provide those exemptions. The Department considered requiring the State agency to first re-assess individuals with a provider determination for an exemption from the general work requirement before taking one of the other three actions; however, the Department concluded that this requirement would be administratively burdensome for the State agency because not all individuals with a provider determination will need a re-assessment for an exemption. The Department decided that providing re-assessment as one of the four options would allow State agencies to perform the re-assessment if they had reason to believe a re-assessment was necessary (

i.e.,

received information from the provider, a case manager, or a participant suggesting an individual may be exempt). The Department would strongly encourage the State agency to re-asses the individual for an exemption if the E&T provider suggested the reason for the provider determination was related to an exemption. In addition, the Department does not believe it is necessary to require State agencies to always re-assess an ABAWD with a provider determination for exemptions from the ABAWD work requirement; however, the State agency may do so at any time.

The Department would also like to clarify a misunderstanding of the proposed regulatory text at 7 CFR 273.7(c)(18)(i)(B)(

1

). In the proposed rule, the Department explained that, if the State agency chose to re-refer an individual with a provider determination to another E&T component, the individual must also receive case management in accordance with 7 CFR 273.7(c)(2). A not-for-profit agency explained many individuals re-referred to an E&T component might not actually be placed into the component due to a lack of provider slots, the participant not meeting eligibility criteria, or the participant or provider not following through with the referral. The commenter further explained that many SNAP agencies are not configured to provide case management outside of their E&T providers, and many E&T providers would not be willing to provide case management if they did not have available component slots or the participant did not meet eligibility criteria. The commenter concluded that case management should only be required if the SNAP participant is successfully placed in a component. The Department identifies several misunderstandings in this statement, and would like to clarify both the overall role of case management in E&T, the general purpose of the provider determination, and the application of next steps in 7 CFR 273.7(c)(18)(i)(B). First, all E&T programs must provide case management to all E&T participants. If a State agency chooses to re-refer a participant to an E&T component after the individual received a provider determination, the State agency must provide that participant with case management, whether through the E&T provider or through some other means. This case management could be a continuation of the case management the participant was receiving before the provider determination, or a new set of case management services. As discussed previously in the case management section of the preamble, the State agency should tailor case management services to the needs of the participant. Second, the Department does not understand why a State agency would refer an individual to an E&T component after the individual received a provider determination if the component does not have a place for the participant, if the participant does not meet eligibility criteria, or there is a likelihood that the provider will not follow through on the referral. State agencies should not refer individuals to E&T components that do not have available slots or are inappropriate for the individual. The State agency has a choice among the four actions in 7 CFR 273.7(c)(18)(i)(B) and can choose the most helpful path for an individual in moving toward self-sufficiency. If there is not an appropriate E&T component available, the State agency should refer the participant to a workforce partnership in accordance with 7 CFR 273.7(c)(18)(i)(B)(

2

), if available and of interest to the participant, or coordinate with another program in accordance with 7 CFR 273.7(c)(18)(i)(B)(

4

). No changes to the regulatory text are necessary with this clarification.

The Department received one comment recommending the Department require the State agency to inform individuals who are referred to an E&T component, in accordance with 7 CFR 273.7(c)(18)(i)(B)(

1

) that the participant may be disqualified for failure to report or begin the new E&T component. The Department believes that modifications to paragraph 7 CFR 273.7(c)(2) in this rulemaking regarding screening and referral to E&T sufficiently outline the necessary steps the State agency must take to inform E&T participants regarding compliance with E&T. The requirements in paragraph 7 CFR 273.7(c)(2) apply to individuals who are referred to E&T as a result of actions in 7 CFR 273.7(c)(18)(i)(B)(

1

); therefore, no additional regulatory changes are necessary.

The Department received one comment requesting the Department clearly state in 7 CFR 273.7(c)(18)(i)(B)(

4

), if the State agency finds that the best option is to coordinate with Federal, State, or local workforce or assistance programs, rather than refer the individual to E&T or a workforce partnership, then that individual must be exempted from mandatory E&T. The Department discussed in the preamble to the proposed rule that if a State agency determines that other work opportunities or assistance would be most appropriate for the individual, then the State agency cannot subject the individual to mandatory E&T requirements because the other work opportunities or assistance would not fulfill a mandatory E&T requirement. In other words, it would be not be fair to subject an individual to a mandatory E&T requirement if the State agency has determined that other Federal, State, or local workforce or assistance programs would be more beneficial. The Department agrees that an individual should not be required to participate in E&T if the State chooses this option and has modified the regulation at 7 CFR 273.7(c)(18)(i)(B)(

4

) to more clearly state this understanding. In addition, the Department notes that if a State agency chooses the option at 7 CFR 2737.7(c)(18)(i)(B)(

3

) to reassess the mental and physical fitness of the participant, and the State agency determines that an individual does not meet an exemption from the general work requirement, but the State agency also determines the individual should be exempted from mandatory E&T, the State agency must exempt the individual.

The Department also received comments on the requirement in 7 CFR 273.7(c)(18)(ii) that, 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 paragraph 7 CFR 273.7(c)(18)(i)(B), the individual shall not be found to have refused without good cause to participate in mandatory E&T. A not-for-profit agency explained that taking one or all of the actions in 7 CFR 273.7(c)(18)(i)(B) does not guarantee State agency follow-up on referrals or successful identification of an appropriate and available placement by the State agency. The commenter, therefore, suggested that the statement

in 7 CFR 273.7(c)(18)(ii) 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 (i)(B) of this section that leads to State-confirmed 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 273.7(c)(18)(i), 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 273.7(c)(18)(ii) 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 273.7(c)(18)(ii).

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 273.7(c)(18)(i)(B) 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 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-for-profit 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 6(d)(4)(O) of the FNA only applies to the requirement to participate in E&T. ABAWDs have many ways to meet the ABAWD work requirement 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 273.24(a)(1). 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 273.7(c)(18)(i)(A) 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 273.7(e)(1), 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 273.7(c)(18): 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

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 273.7(c)(18)(i)(B) 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 273.7(c)(18)(i)(B)(

4

), 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 appropriate and available opening in an E&T program is beyond the E&T participant's control. As a result, the Department proposed to add new § 273.7(i)(4) 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 273.7(c)(2) 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 273.7(i)(4). The Department also proposed in paragraph 7 CFR 273.7(e)(1), 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 273.7(e)(2), re-designated as 7 CFR 273.7(e)(3). The Department also noted that this proposed new form of good cause wo

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