Refugee Resettlement Program: Requirements for Employability Services, Job Search, and Employment; Refugee Medical Assistance; Refugee Social Services; Targeted Assistance Services; and Federal Funding for Administrative Costs

SUMMARY: This rule amends or clarifies current requirements governing

employability services, job search, employment, refugee medical

assistance, social services, and Federal funding for State

administrative costs and would establish requirements for the targeted

assistance program.

A proposed rule was published in the Federal Register on August 12,

1994 (59 FR 41417). Some changes have been made and clarifications

provided in this final regulation after consideration of the written

comments received.

EFFECTIVE DATE: October 1, 1995.

ADDRESSES: Office of Refugee Resettlement, Administration for Children

and Families, Department of Health and Human Services, 370 L'Enfant

Promenade S.W., 6th Floor, Washington, D.C. 20447.

FOR FURTHER INFORMATION CONTACT: Toyo A. Biddle, (202) 401-9253.

SUPPLEMENTARY INFORMATION:

Background

The Refugee Act of 1980 amended the Immigration and Nationality Act

(INA) to create a domestic refugee resettlement program to provide

assistance and services to refugees resettling in the United States.

With the enactment of this legislation, the Office of Refugee

Resettlement (ORR) issued a series of regulations, at 45 CFR Part 400,

to establish comprehensive requirements for a State-administered

Refugee Resettlement Program (RRP), beginning with the publication on

September 9, 1980 (45 FR 59318) of a regulation governing State plan

and reporting requirements. Subsequent regulations covered cash and

medical assistance and Federal funding, published March 12, 1982 (47 FR

10841); grants to States, child welfare services (including services to

unaccompanied minors), and Federal funding for State expenditures,

published January 30, 1986 (51 FR 3904); and cash and medical

assistance, requirements for employability services, job search, and

employment, and refugee social services published February 3, 1989 (54

FR 5463).

Discussion of Changes

The changes made in this final regulation, as compared with the

proposed rule published on August 12, 1994, are as follows:

1. The proposal to limit the definition of case management to the

referral and tracking of refugee participation in employment-related

services only has been withdrawn.

2. Section 400.104 has been revised to allow a refugee medical

assistance (RMA) recipient who becomes employed to continue to receive

RMA for the full time-eligibility period, regardless of whether the

recipient obtains private medical coverage, as long as the RMA payment

is reduced by the amount of the third party payment.

3. Section 400.145 has been revised to more clearly state that

refugee women must have the same opportunities as men to participate in

all services funded under the refugee program, including job placement

services.

4. The eligibility period for social services has been changed from

the proposed 36 months to 60 months, consistent with the eligibility

period for targeted assistance. In addition, referral and interpreter

services are exempted from the time-limitation in both social services

and targeted assistance.

5. The proposed revision to Sec. 400.155(f) has been withdrawn;

translation and interpreter services will continue to be allowable

regardless of whether such services are available from another source.

6. Section 400.156(d) has been revised to require the provision of

refugee-specific services designed to meet refugee needs in lieu of

requiring a separate refugee-specific service system in which refugees

are the only client group served.

7. We have added a provision under Sec. 400.156 which requires the

development of a family self-sufficiency plan for any refugee who

participates in refugee program-funded employment-related services.

8. We have added language to Sec. 400.301 which establishes that a

replacement designee must adhere to the same regulations that apply to

a State-administered program, with the exception of certain specified

provisions.

Description of the Regulation

This rule clarifies some current policies, amends others, and sets

forth regulatory requirements for the targeted assistance program

(TAP).

In recent years, annual refugee admissions have been high,

resulting in an expanding pool of refugees in need of services. As of

September 30, 1993, 1.6 million refugees had been resettled in the U.S.

since 1975. All of these refugees, with the exception of those who have

become U.S. citizens, are eligible to receive refugee program services.

At the same time, the level of funds appropriated for services has

remained essentially unchanged, making it difficult to serve all

refugees in need of services with available resources. It is not

uncommon, for example, for English language training classes, funded by

the refugee program, to have waiting lists so that refugees who arrive

in the country are not able to access English language training without

a delay. Nine major States have indicated that there are currently

waiting lists for refugee services, especially for English language

training, in their States.

We believe the increased demand for services makes it necessary to

sharpen the program's priorities. Resources in the refugee program are

no longer sufficient to provide the level of services needed to assist

refugees for an open-ended period of time to become self-sufficient. We

have learned from experience in the refugee program that the greatest

impact that services can have on a refugee's social adjustment and

economic well-being occurs during a refugee's initial years in the

United States. These initial services often define a refugee's future

experience.

Findings from several studies indicate that comprehensive services,

provided soon after a refugee's arrival in the U.S., increase the

likelihood of early employment. Under commission from ORR in 1992, Dr.

Robert L. Bach, in an examination of data from the Oregon Refugee Early

Employment Project (REEP), found that refugees who received job

services or pre-employment training in the first 90 days reduced the

time to their initial job by almost two months. Dr. Bach's analysis

indicated that each job service provided in the first 90 days increased

the probability of employment by three percent. A study of the Oregon

REEP, conducted by the Refugee Policy Group (RPG) and published in

1989, found that REEP set up client/caseworker ratios that permitted a

staff-intensive approach early in the resettlement experience, an

element which in large part, according [[Page 33585]] to RPG, was

crucial to REEP's achievement of earlier employment. Similarly,

performance reported for the first year of the United States Catholic

Conference (USCC) Wilson/Fish project in San Diego indicated that the

project was able to reduce the average length of time on cash

assistance by over two months through the provision of early

comprehensive services aimed at employment.

After the initial years, we believe the effect of services on the

achievement of economic self-support diminishes significantly. A

report, entitled ``Progress Toward Economic Self-Sufficiency Among

Southeast Asian Refugees'', prepared for ORR in July 1989 by Dr. Robert

L. Bach and Rita Argiros, presented findings, based on an analysis of

data from the ORR Annual Survey of Southeast Asian Refugees, which

underlined the importance of service interventions in the first few

years. Bach and Argiros found that the longer a refugee remains out of

the labor force, the less likely he or she is to begin to search for a

job or find a job in a subsequent year. The most significant move into

the labor force occurs in the first and second years, followed by a

steady decline in the probability of entering the labor force for those

who delayed their initial job search.

We believe it is important, therefore, to target refugee program

resources on the provision of comprehensive refugee-specific services

to refugees during their first few years of resettlement in order to

provide new refugees with the best foundation for economic independence

in the future. We believe that after this initial period of special

assistance, refugees should be treated like other U.S. residents and

have access to the same assistance and service programs that are

available to other eligible populations. Thus we have decided to limit

service eligibility for refugee social services to refugees who have

been in the U.S. 60 months (5 years) or less, effective October 1,

1995.

Similarly, service eligibility for the targeted assistance program

will be limited to refugees who have been in the U.S. 60 months or

less, effective on the same date. The 5-year limitation on service

eligibility is consistent with the 5-year U.S. residency requirement

for U.S. citizenship. Once refugees become U.S. citizens, they are no

longer eligible for services under the refugee program.

In regard to the provision of refugee social services and targeted

assistance, we believe that States and local entities should be given

greater flexibility to design appropriate services to fit local refugee

needs. The program's emphasis on the provision of employment services

to achieve economic self-support, however, will remain. However, we are

eliminating the job search requirements currently contained in

Sec. 400.80 and the requirement contained in Sec. 400.146 that requires

a State to use at least 85 percent of its social service grants to

provide employability services if the State's welfare dependency rate

is 55 percent or more.

To ensure that refugees receive maximum benefit and maximum results

from services provided during the time-limited service eligibility

period, it is essential that services be provided in the most

efficacious and appropriate manner possible. To accomplish this,

program experience dictates that certain principles require greater

emphasis in the provision of services to refugees: (1) Services should

be provided in a manner that is linguistically and culturally

compatible with a refugee's background; (2) refugee-specific services,

designed for refugees, should be provided during the initial years of

resettlement; (3) English language instruction should be provided in a

concurrent, rather than sequential, time period with employment or with

other employment-related services; and (4) as required by the Refugee

Act, refugee women should have the same opportunities as men to

participate in training and instruction.

Under current policy, if a refugee who is receiving refugee medical

assistance becomes ineligible solely because of increased earnings from

employment, the refugee's medical assistance is extended for a period

of 4 months or until the refugee reaches the end of the RMA time-

eligibility period (currently the first 8 months after a refugee's

arrival in the U.S.), whichever occurs first. The distinction between

RMA and extended RMA has caused confusion in some States, with the

effect of extended RMA being inappropriately denied to some eligible

refugees. In addition, current policy generates administrative costs

because eligibility workers need to make separate determinations of

refugee eligibility for extended RMA once a refugee becomes ineligible

due to increased earnings from employment.

In order to alleviate this confusion, we are removing the

distinction between RMA and extended RMA by eliminating the extended

RMA provision and by making RMA available to eligible refugees for the

full period of time-eligibility determined by the Director in

accordance with Sec. 400.204 beginning with the first month the refugee

entered the U.S., regardless of whether a refugee receives increased

earnings from employment.

Thus, under the 8-month eligibility period currently in effect,

once a refugee is determined to be eligible for RMA at time of

application, the refugee will be able to continue to receive RMA for a

refugee's first 8 months in the U.S. regardless of whether a refugee

receives increased earnings from employment during that period of time.

This provision replaces the current 4-month extended RMA coverage for

employed refugees. We believe this change will make the administration

of RMA less confusing to States and, therefore, less subject to error

than the current extended RMA provision. At the same time, this change

will better ensure continued medical coverage to refugees for a clearly

specified period of time.

To summarize, the policy changes are intended to: (1) Ensure that

comprehensive refugee-specific services are provided to both refugee

men and women within the first few years after arrival in the United

States for the purpose of accelerating family economic independence and

acculturation; (2) establish a time-eligibility limitation for the

receipt of refugee social services and targeted assistance services so

that funds will be concentrated on recently arrived refugees to help

ensure that employable refugees are placed in jobs as soon as possible

after their arrival in the U.S.; (3) increase State and local

flexibility in the provision of services; and (4) replace the current

4-month extended RMA provision for employed refugees with a provision

that would make RMA available for the full period (currently 8 months)

of time-eligibility to RMA recipients, regardless of whether a refugee

becomes employed.

In addition, the regulation limits the administrative costs a State

may claim to those costs that are determined to be reasonable and

allowable as defined by the Administration for Children and Families.

This rule also establishes procedures to be used when a State withdraws

from the refugee program. Finally, this rule sets forth basic

requirements for the administration of the targeted assistance program

which has been in operation since FY 1983.

Consistent with the preceding actions, 45 CFR 400.1, 400.4, 400.5,

400.9, 400.11, 400.13, 400.62, 400.70, 400.71, 400.75, 400.76, 400.79,

400.80, 400.82, 400.83, 400.94, 400.100, 400.104, 400.106, 400.107,

400.140, 400.141, 400.145, 400.146, 400.147, 400.152, 400.153, 400.154,

400.155, 400.156, 400.203, 400.204, 400.206, 400.207, 400.210, and

subpart K are amended or removed and a new 400.212 and subpart L are

added.

[[Page 33586]]

Subpart A--Introduction

Section 400.1(a) is amended to provide that 45 CFR Part 400

prescribes requirements concerning grants to States and other public

and private non-profit agencies, wherever applicable, under title IV of

the Immigration and Nationality Act.

Subpart B--Grants to States for Refugee Resettlement

Section 400.4(b) is amended to require that a State must certify no

later than 30 days after the beginning of each fiscal year that the

approved State plan is current and continues in effect. If a State

wishes to change its plan, a State is required to submit a proposed

amendment to the plan for ORR review and approval in accordance with

Sec. 400.8.

Section 400.5(h) is revised to expand the types of agencies that a

State must meet with on a quarterly basis to plan and coordinate the

placement of refugees in advance of their arrival. This revision

requires the inclusion of local community service agencies and other

agencies that serve refugees in these quarterly meetings. Section

400.5(h), as revised, also advises States that currently have an

approved exemption to this requirement that existing exemptions will

expire 90 days after the effective date of this rule. Any State wishing

an exemption may apply to ORR. An approved exemption will remain in

effect for three years, at which time a State may reapply. A number of

States were granted exemptions to this requirement in the early years

of the program on the basis of the absence of problems associated with

the planning and coordination of refugee placement or the small number

of refugees in those States. We believe it is time to review these

exemptions, given the passage of time, changing refugee flows, and

changing circumstances in the States. A State wishing to request an

exemption to the provisions regarding the holding or frequency of

meetings under Sec. 400.5(h) must set forth the reasons why the State

considers these meetings unnecessary because of the absence of problems

associated with the planning and coordination of refugee placement.

These requests should be submitted in writing to the Director of ORR.

Section 400.11(b) is amended to clarify that States would be

required to submit yearly estimates for reimbursable costs for cash and

medical assistance, costs for unaccompanied minors, and related

administrative costs for the fiscal year in accordance with guidelines

prescribed by the Director of ORR.

Section 400.11(b)(2) is amended by requiring that the annual social

services plan that a State must submit to ORR must be developed on the

basis of a local consultative process. Section 400.11(b)(2) is also

amended by changing the submission date for the plan from a date that

is no later than 45 days prior to the beginning of the State's planning

cycle for social services to a date that is to be prescribed by the

Director of ORR.

Section 400.11(b)(3) is amended by removing the word ``quarterly''

before the word ``estimates''.

Section 400.11(c) is amended by requiring that final financial

reports must be submitted in accordance with the requirements specified

under Sec. 400.210. The language regarding the submission of quarterly

financial reports remains unchanged; quarterly reports will continue to

be due 30 days after the end of each quarter. Thus States must submit

fourth-quarter reports by October 30 of each year, instead of the

current deadline of December 30 of each year. ORR needs to receive end-

of-year financial data from States soon after the end of the fiscal

year to enable more timely forecasting for the next fiscal year.

Adjustments may continue to be made, under Sec. 400.210, until one year

after the end of the fiscal year in the case of grants for cash

assistance, medical assistance, and related administrative costs, and 2

years in the case of grants for social services and targeted

assistance.

Section 400.13(d) is revised to prohibit the charging of case

management costs against the cash assistance, medical assistance, and

administrative costs (CMA) grant. This revision conforms to priorities

established by ORR in FY 1991.

Subpart E--Refugee Cash Assistance

Section 400.62 is amended to require that refugee cash assistance

(RCA) begin on the same date, in relation to the date of application,

as assistance under the program of aid to families with dependent

children (AFDC) would begin under the State's plan for AFDC. For

example, if a State has opted under its AFDC plan to provide assistance

no later than the date of authorization or 30 days after the receipt of

an application, whichever is earlier, then that same rule will apply

regarding RCA. This provision prohibits a State from adopting this rule

for AFDC but paying assistance retroactive to the date of application

for RCA. This provision thus assures that RCA and AFDC applications and

assistance in a given State are treated equitably.

Subpart F--Requirements for Employability Services, Job Search, and

Employment

Section 400.70 is revised by removing references to refugees who

are applicants or recipients of AFDC or GA.

Section 400.71 is amended by adding a definition of the term

``Family self-sufficiency plan''.

Section 400.75(a)(1) is amended by requiring, as a condition for

receipt of refugee cash assistance, that a refugee who is not exempt

under Sec. 400.76 must participate in employment services within 30

days of receipt of aid.

Section 400.76(a)(7) is amended by exempting from participation in

employment services and acceptance of appropriate employment, a parent

or other caretaker relative of a child under age 3, rather than age 6,

who provides full-time care of the child.

Section 400.76(a)(9) is amended by exempting a pregnant woman from

registration and participation in employment services if the child is

expected to be born within the next 6 months, instead of the next 3

months.

The proposed changes in Secs. 400.76(a)(7) and (a)(9) would make

ORR policy consistent with the requirements of the Job Opportunities

and Basic Skills Training (JOBS) program contained in the Family

Support Act of 1988, Pub. L. No. 100-485 (42 U.S.C. Sec. 602(a)(19)).

Section 400.79(a) is amended to emphasize that an employability

plan must be developed as part of a family self-sufficiency plan where

applicable for each non-exempted recipient of refugee cash assistance

in a filing unit.

Section 400.80 is revised by replacing the existing job search

requirement with the provision that a State must require job search for

employable refugees where appropriate. Other references in the

regulation to job search at Secs. 400.75(a)(2), 400.76(b),

400.79(c)(3), 400.82, and 400.156(a) are removed.

Section 400.82(b)(3) is amended by removing the paragraph on

conciliation.

Section 400.83 is amended by adding the paragraph on conciliation

from Sec. 400.82 and changing the heading to ``Conciliation and fair

hearings''.

Subpart G--Refugee Medical Assistance

Section 400.94(a) is amended by clarifying that a State must

determine Medicaid eligibility under its Medicaid State plan for each

individual member of a family unit that applies for medical assistance.

This is to clarify that if any individual in a family unit is eligible

for medical assistance under a State's title XIX plan, then the State

must provide that assistance under Medicaid and not [[Page 33587]] RMA.

For example, under sections 1902(a)(10) and 1902(l) of the Social

Security Act, certain children under age 19 who were born after

September 30, 1983, may be eligible for Medicaid even though their

parents are eligible for refugee medical assistance. Assistance may not

be provided to such children under RMA if they are eligible under

Medicaid.

Section 400.100(d) is amended to clarify that only those recipients

of refugee cash assistance who are not eligible for Medicaid are

eligible for refugee medical assistance.

Section 400.104 is revised by removing the existing provision for

extended RMA for recipients who receive increased earnings from

employment and replacing it with a provision that would enable RMA

recipients who receive earnings from employment to continue to receive

RMA until they reach the end of their time-eligibility period, in

accordance with Sec. 400.100(b). The provision also requires that in

cases where a refugee obtains private medical coverage, any payment of

RMA for that individual must be reduced by the amount of the third

party payment. Section 400.106 is amended to clarify that a State may

provide additional medical services to refugees who are determined

eligible under Sec. 400.94 only to the extent that sufficient

appropriated funds are available to enable ORR to reimburse costs for

refugee Medicaid recipients. Beginning in FY 1991, ORR had to cease

reimbursements to States for the costs of assistance to refugee

recipients of AFDC, SSI, and Medicaid due to insufficient appropriated

funds. We want to make clear that additional services under

Sec. 400.106 may not be provided to refugee Medicaid recipients with

refugee funding as long as appropriated funds continue to be

insufficient to enable ORR reimbursements to States for these costs.

Section 400.107 is amended by replacing the words ``health

assessments'' with the words ``medical screening'', the term used in

the INA.

Subpart I--Refugee Social Services

Section 400.140 is amended to clarify that the requirements in

subpart I apply only to formula allocation grants to States.

Section 400.141 is amended by removing references to title XX

social services. We have removed references to title XX services in

this section and in Secs. 400.152, 400.153, and 400.155 in order to

limit the scope of services allowable under refugee social services to

those services that are most in keeping with the goals and priorities

of the refugee program.

Section 400.145 is amended by adding the requirement that a State

must insure that women have the same opportunities as men to

participate in all services funded under this part, including job

placement services.

Section 400.146 is revised by removing the current requirement that

a State must use at least 85 percent of its social service grants to

provide employability services if a State's dependency rate is 55

percent or more and by replacing it with a general requirement that a

State must use its social service grants primarily for employability

services designed to enable refugees to obtain jobs within one year of

becoming enrolled in services in order to achieve economic self-

sufficiency as soon as possible. The proposed revision is intended to

provide States greater flexibility in determining how to best allocate

refugee resources in keeping with refugee service needs. Social

services may continue to be provided after a refugee has entered a job

to help the refugee retain employment or move to a better job. Social

service funds may not be used for long-term training programs such as

vocational training that last for more than a year or educational

programs that are not intended to lead to employment within a year.

Section 400.147 is revised by establishing client priorities for

services in the following order of priority, except in the most extreme

circumstances: (1) All newly arriving refugees during their first year

in the U.S., who apply for services; (2) refugees who are receiving

cash assistance; (3) unemployed refugees who are not receiving cash

assistance; and (4) employed refugees in need of services to retain

employment or to attain economic independence. Assignment of first

priority to newly arriving refugees is intended to ensure that these

refugees receive timely services and are not placed on waiting lists

for core refugee services.

Section 400.152 is amended by removing references to title XX

services and by revising paragraph (b) to limit the provision of social

services, with the exception of referral and interpreter services, to

refugees who have been in the U.S. for 60 months or less, except that

refugees who are receiving employability services, as defined in

Sec. 400.154(a), as of September 30, 1995, as part of an employability

plan, may continue to receive those services through September 30,

1996, or until the services are completed, whichever occurs first,

regardless of their length of residence in the U.S. As of the effective

date of this requirement, the time-limitation on services will apply

regardless of which fiscal year of funding is used to provide the

services.

Section 400.153 regarding the provision of title XX social services

is removed and reserved.

Section 400.154 is amended by adding the development of a family

self-sufficiency plan as an allowable service under Sec. 400.154(a).

Section 400.154 is also amended to clarify under Sec. 400.154(g) that

day care as an allowable service means day care for children. Section

400.154 is further amended by revising paragraph (h) to allow

transportation as a job-related expense and by removing the note after

paragraph (j) which allows case management costs to be charged against

the CMA grant. Because of funding limitations, case management costs

may not currently be charged against the CMA grant.

Section 400.155(b) is amended to clarify that outreach services may

include activities designed to explain the purpose of available

services and to facilitate access to these services.

Section 400.155(c)(1) is amended to clarify that assessment and

short-term counseling may be provided to families as well as individual

persons.

Section 400.155(d) is amended to clarify that day care as an

allowable service means day care for children.

Section 400.155(h) is revised by removing title XX social services

from the list of allowable services under refugee social services and

by adding, as an allowable service subject to the approval of the

Director of ORR, any additional service aimed at strengthening the

ability of refugee individuals, families, and refugee communities to

achieve and maintain economic self-sufficiency, family stability, and

community integration. An example of an allowable service under this

provision would be the provision of technical assistance and

organizational development training to strengthen the capability of

refugee mutual assistance associations (MAAs) to provide employment-

related and other services to refugees.

Section 400.156 is amended by revising the heading to read

``Service requirements'' and by amending Sec. 400.156(b) to clarify

that, in planning services, States must take into account the reception

and placement (R & P) services provided by resettlement agencies in

order to ensure the provision of seamless, coordinated services to

refugees that are not duplicative. Section 400.156 is also amended by

adding new requirements that States must implement: (1) English

[[Page 33588]] language instruction must be provided in a concurrent,

rather than sequential, time period with employment or with other

employment-related services; (2) refugee-specific services must be

provided, except in the case of vocational or job skills training, on-

the-job training (OJT), or English language training, which are

specifically designed to meet refugee needs and are in keeping with the

rules and objectives of the refugee program; (3) services must be

provided to the maximum extent feasible in a manner that is culturally

and linguistically compatible with a refugee's language and cultural

background; (4) services must be provided to the maximum extent

feasible in a manner that includes the use of bilingual/bicultural

women on service agency staffs to ensure adequate service access by

refugee women; and (5) a family self-sufficiency plan must be developed

for anyone who receives employment-related services funded under this

part. Providing services in a manner that is culturally and

linguistically compatible means that an agency providing services

funded under this part must employ or contract with staff who (1) speak

the native language of and (2) are either from the same ethnic

background as, or are culturally knowledgeable of, the refugee

populations the agency serves.

Subpart J--Federal Funding

Sections 400.203 and 400.204 are amended by clarifying that Federal

funding is available for the cash and medical assistance programs

described in these sections only to the extent that sufficient funds

are appropriated. We have added this clarification in light of the

steady decline in Federal refugee funding for the State share of aid to

families with dependent children (AFDC), supplemental security income

(SSI), Medicaid, and general assistance (GA) which began in FY 1986 and

has resulted since FY 1991 in no ORR reimbursement to States for the

State share of these programs due to insufficient appropriated funds.

Section 400.206 is amended by changing the heading to ``Federal

funding for social services and targeted assistance services'' and by

adding a paragraph on Federal funding for targeted assistance services.

Section 400.207 is revised to clarify that Federal funding is

available for reasonable and identifiable administrative costs of

providing only those assistance and service programs for which Federal

funding is currently made available under the refugee program. Thus

Federal funding under 45 CFR Part 400 is not available at this time for

administrative costs related to the provision of AFDC, Medicaid, GA, or

SSI to refugees. This section is further revised to limit the

administrative costs that a State may claim to those costs that are

determined to be reasonable and allowable as defined by the

Administration for Children and Families.

Section 400.10 is revised to clarify time limits for obligating and

expending funds as well as for submitting final financial reports on

expenditures of CMA grants and social service and targeted assistance

grants.

Subpart J is amended to prohibit the use of funds under this part

for travel outside the United States, without the written approval of

the Director.

Subpart K--Waivers

Subpart K is amended by revising the heading to read ``Waivers and

Withdrawals'' and by revising Sec. 400.300 to allow for a more flexible

waiver policy in keeping with Executive Order No. 12875, issued on

October 26, 1993, which calls for increased flexibility for State and

local waivers. In addition, a new Sec. 400.301 is added which requires

that if a State decides to cease participation in the refugee program,

the State must provide 120 days advance notice to the Director before

withdrawing from the program. Section 400.301 clarifies that in order

to participate in the refugee program, a State is expected to operate

all components of the refugee program. In the event that a State wishes

to retain responsibility for only part of the refugee program, it must

obtain prior approval from the Director of ORR. Such approval will be

granted only under extraordinary circumstances and if it is in the best

interest of the Government. Section 400.301 also provides that when a

State withdraws from all or part of the refugee program, the Director

may authorize a replacement designee or designees to administer the

provision of assistance and/or services, as appropriate, to refugees in

that State. Pursuant to the statutory authority in 412(c)(1)(A) and

412(e)(1) of the INA to provide grants to, and contracts with, public

or private non-profit agencies for services, cash assistance, and

medical assistance to refugees, the Director may authorize a designee

to administer the refugee program in place of a State when the State

chooses not to participate in the refugee program. This authority is

different from the statutory authority in 412(e)(7) of the INA which

permits the Director to authorize the development and implementation of

alternative projects under the Fish/Wilson program. Section 301 further

establishes that a replacement designee must adhere to the same

regulations under this part that apply to a State-administered program,

with the exception of the following provisions: 45 CFR 400.5(d), 400.7,

400.55(b)(2), 400.56(a)(1), 400.56(a)(2), 400.56(b)(2)(i), 400.94(a),

400.94(b), 400.94(c), and subpart L.

Subpart L--Targeted Assistance

Section 400.310 establishes that the basis and scope of this

subpart is to set forth requirements concerning formula allocation

grants to States under 412(c)(2) of the INA for targeted assistance.

Section 400.311 establishes a definition for ``targeted assistance

grants''.

Section 400.312 requires that a State must provide any individual

wishing to do so an opportunity to apply for targeted assistance

services and determine the eligibility of each applicant.

Section 400.313 requires that a State must use its targeted

assistance grant primarily for employability services designed to

enable refugees to obtain jobs with less than one year's participation

in the targeted assistance program in order to achieve economic self-

sufficiency as soon as possible. Targeted assistance services may

continue to be provided after a refugee has entered a job to help the

refugee retain employment or move to a better job. Targeted assistance

funds may not be used for long-term training programs such as

vocational training that last for more than a year or educational

programs that are not intended to lead to employment within a year.

Section 400.314 establishes client priorities for targeted

assistance services in the following order of priority, except in the

most extreme circumstances: (1) Cash assistance recipients,

particularly long-term recipients; (2) unemployed refugees who are not

receiving cash assistance; and (3) employed refugees in need of

services to retain employment or to attain economic independence.

Section 400.315 establishes that the same standards and criteria

that are applied in the determination of eligibility for refugee social

services under Secs. 400.150 and 400.152(a) shall be applied in the

determination of eligibility for targeted assistance services. Section

400.315 limits the provision of targeted assistance services, except

referral and interpreter services, to refugees who have been in the

U.S. for 60 months or less, except that refugees who are receiving

employability services, as defined in Sec. 400.316, as of September 30,

1995, as [[Page 33589]] part of an employability plan, may continue to

receive those services through September 30, 1996, or until the

services are completed, whichever occurs first, regardless of their

length of residence in the U.S. As of the effective date of this

requirement, the time-limitation on services will apply regardless of

which fiscal year of funding is used to provide the services.

Section 400.316 establishes that a State may provide the same scope

of services under targeted assistance as may be provided under refugee

social services under Secs. 400.154 and 400.155, with the exception of

Sec. 400.155(h). Since the purpose of the targeted assistance program

is to direct resources to localities that have large refugee

populations and high use of public assistance by refugees, our intent

is to focus the use of targeted assistance funds on employability

services aimed at economic self-sufficiency, while providing States and

counties some flexibility to use the funds for non-employment-related

services. Thus, we have included the non-employment-related services

that are allowable under Sec. 400.155, but have not included the new

category of services that has been added under Sec. 400.155(h), which

includes services to strengthen family and community.

Section 400.317 establishes that a State must adhere to the same

limitations and restrictions in the provision of targeted assistance

services as are applied to the provision of refugee social services

under Sec. 400.156.

Section 400.318 establishes that eligible grantees under the

targeted assistance program are those agencies of State governments

which are responsible for the refugee program under Sec. 400.5 in

States containing counties which qualify for targeted assistance

awards. Section 400.318 also establishes that the use of targeted

assistance funds for services to Cuban and Haitian entrants is limited

to States which have an approved State plan under the Cuban/Haitian

Entrant Program (CHEP).

Section 400.319 establishes that a State with more than one

qualifying targeted assistance county may allocate its targeted

assistance funds differently from the formula allocations for counties

presented in the ORR targeted assistance notice in a fiscal year, only

on the basis of its population of refugees who arrived in the U.S.

during the most recent 5-year period. A State may use welfare data as

an additional factor in the allocation of targeted assistance funds if

it so chooses; however, a State may not assign a greater weight to

welfare data than it has assigned to population data in its allocation

formula. Section 400.319 also establishes that a State must assure that

not less than 95 percent of the total award to the State is made

available to the qualified county or counties, except in those cases

where the qualified county or counties have agreed to let the State

administer the targeted assistance program in the county's stead.

Discussion of Comments Received

Fifty-two letters of comments were received in response to the

notice of proposed rulemaking published in the Federal Register on

August 12, 1994. The commenters included State and local governments,

national and local voluntary agencies, refugee mutual assistance

associations, and refugee service providers. These comments were taken

into consideration in the development of this final rule.

The comments are summarized below and are followed in each case by

the Department's response.

Effective Date

Comment: Six commenters expressed concern over the effective date

for the regulation of October 1, 1994, which appeared in the NPRM. Two

of the commenters suggested that the rule should be effective no sooner

than 90 days after the issuance of the final regulation. Another

commenter suggested an effective date that would allow sufficient time

for careful consideration of the comments.

Response: The inclusion in the NPRM of an October 1, 1994,

effective date for a final rule was an error. We want to assure the

commenters that ORR had no intention of imposing an October 1, 1994,

effective date. The effective date for this final rule will be October

1, 1995.

Comments on Subpart A

Sec. 400.2: Comment: Eight commenters expressed opposition to

limiting the definition of case management to the referral and tracking

of refugee participation in employability services. One commenter

supported the proposed elimination of case management for non-

employment-related purposes. Commenters expressed concern that the

narrowed definition would remove the ability to case manage a wide

range of services needed to fully assist refugee families to overcome

barriers to self-sufficiency. Several commenters were concerned that

the proposed change in definition would preclude coordinating services

for the entire family, regardless of employability status. One

commenter pointed out that the proposed change runs counter to ORR's

emphasis on strengthening families.

Response: After considering these comments, we have decided to drop

the change in definition and allow case management to continue to be

used to refer and track refugee participation in non-employment-related

services, as well as employment-related services. However, we feel

strongly that case management should be provided in combination with a

package of services leading to employment and self-sufficiency.

Comments on Subpart B

Sec. 400.4(b): Comment: One commenter objected to the requirement

that a State must certify no later than 30 days after the beginning of

each fiscal year that the approved State plan is current and continues

in effect. The commenter recommended that States be given 90 days to

provide certification.

Response: If a State requires more time to prepare the

certification, since the due date will remain the same each year and

thus will be known, a State can allow itself the time it needs by

simply starting the preparation as early as needed before the due date.

Sec. 400.5(h): Comment: We received 5 comments on this provision.

One commenter objected to the inclusion of local community service

agencies in quarterly meetings as impractical and unwieldy. Another

commenter, while agreeing with this provision, recommended giving

States the flexibility to request meeting less frequently or using

telephone conference calls to better use State resources to meet the

needs of local communities in the most appropriate manner. A third

commenter also called for flexibility, suggesting that meetings should

be scheduled in a manner that accommodates State and local resources

and activities. One commenter expressed concern that administrative

costs would be greatly increased in carrying out these meetings when

the numbers of refugees being placed in the State are expected to

diminish. Another commenter felt that ORR should clarify the State's

role and responsibilities in this effort. The commenter pointed out

that the State can facilitate planning efforts and can act in an

oversight capacity regarding resettlement within the State, but it

cannot enforce coordination efforts.

Response: We believe the benefit of including local community

service agencies in quarterly meetings to enable all agencies that

serve refugees to be informed and prepared for anticipated arrivals

more than offsets any logistical difficulties a State may experience in

[[Page 33590]] organizing such meetings. Regarding flexibility with

respect to the frequency and holding of meetings, we are certainly

willing to work with States to consider alternative approaches, as

necessary. If a State believes it has good reason for holding fewer

meetings, using conference calls in lieu of meetings, or using other

alternatives to quarterly meetings, a State may request an exemption to

this requirement, as described in this provision.

Regarding the State's role under this provision, we agree with the

commenter that the State's role is to facilitate coordination, not to

enforce it.

Sec. 400.11(b): Comment: One commenter recommended an effective

date of October 1, 1995, for submission of a yearly CMA estimate. The

commenter also requested input into the development of the form.

Response: We agree with the commenter; the effective date for this

provision is October 1, 1995. As Sec. 400.11(b) indicates, States will

have to submit yearly CMA estimates in accordance with guidelines

prescribed by the Director of ORR, in lieu of a form. As ORR develops

these guidelines, States will have an opportunity to provide input and

review before the guidelines are made final.

Sec. 400.11(b)(2): Comment: Seven commenters commented on this

provision. One commenter objected to the change in due date for the

annual services plan since no replacement date was indicated in the

NPRM. Two commenters felt a specific date needs to be given. Another

commenter agreed with changing the due date. One commenter wondered if

the due date for submission will change periodically for all States or

whether the due date could vary for each State. While one commenter

supported the emphasis on a local consultative process in the planning

of services, another commenter recommended the inclusion of a waiver

option regarding local consultation. The commenter recommended that

States be given the option of determining an appropriate process for

local input in the planning process. One commenter suggested that ORR

strongly encourage the inclusion of State and local health departments

in the ongoing planning of refugee resettlement services. Another

commenter, requesting clarification, pointed out that ORR State Letter

94-13 indicates that the Annual Services Plan is to be submitted on the

revised Quarterly Performance Plan (QPR), thus eliminating the Annual

Services Plan. Another commenter wanted clarification on whether ORR

wants the services plan to reflect prospective services planned, based

on a needs assessment, or actual services funded. The commenter

recommended reporting actual services funded.

Response: The Annual Services Plan has not been eliminated. ORR

State Letter 94-13 simply instructs States to submit the Annual

Services Plan in Schedule A, as part of the fourth quarter QPR

submission. Therefore, the new due date for the Annual Services Plan is

November 15 of each year, as stated in ORR State Letter 94-13.

Regarding whether the services plan should reflect services planned,

based on a needs assessment, or actual services funded, the

instructions for Schedule A of the QPR ask for a reporting of actual

services funded.

We do not agree with the commenter's suggestion that States should

be allowed the option of waiving local consultation in the development

of a services plan. Regarding States having the option of determining

an appropriate process for local input in the planning process, it is

up to each State to determine what process it wants to use; the method

for obtaining local consultation is not prescribed. We agree that State

and local health departments should be included in the local

consultation process in the planning of services and we strongly

encourage States to do so.

Sec. 400.11(b)(3): Comment: One commenter indicated that it is

unclear what the phrase ``quarterly estimates required in paragraph

(b)(1)'' refers to when Sec. 400.11(b)(1) requires a yearly, not

quarterly, estimate.

Response: We thank the commenter for pointing out this discrepancy.

We have revised this provision by deleting the word ``quarterly''.

Sec. 400.11(c): Comment: Six commenters addressed this provision.

One commenter objected to the 30-day due date for the 4th quarter

financial report and recommended a 90-day due date. Another commenter

concurred. One commenter suggested a 45-day or 60-day due date. One

commenter pointed out that RMA expenditure claims are difficult to

obtain within the 30-day time frame and that States need 12 months

after the end of the fiscal year to liquidate all obligations incurred

through the end of the fiscal year. Another commenter indicated that

the due date would require the State to estimate CMA expenditures with

two months less of actual expenditure data, resulting in less accurate

reporting. Another commenter expressed concern that this rule change

could have an impact on Federal funding for the State. This commenter

was concerned that contract obligations might be outstanding and

recommended that the close-out date should continue to be December 30

of each year.

Response: Since States will continue to have until one year after

the end of the fiscal year in which the Department awarded the grant to

liquidate obligations and to submit a final financial report for CMA,

and two years after the end of the fiscal year in which the Department

awarded the grant to liquidate obligations and to submit a final

financial report for social services and targeted assistance formula

funds, we do not see a compelling reason to change the 30-day due date

for the 4th quarter financial report. We understand that States may

have to base their 4th quarter report on a shorter period of actual

expenditure data than was the case under the current due date. The 30-

day due date for the 4th quarter report will have no impact on Federal

funding to the State and should have no impact on the time frame for

liquidating obligations and closing out contracts since the one-year

and two-year time frames described above and as stated in Sec. 400.210

remain in effect.

Sec. 400.13(d): Comment: Three commenters expressed concern about

this provision. Two commenters felt that States should be allowed to

charge case management costs to CMA. One of the commenters felt that

the program would be well-served by using CMA funds for this purpose

especially in light of the early employment emphasis of the

regulations. Another commenter recommended that States be allowed to

use CMA funds to purchase equipment, software, and consultation

services to establish and maintain a case management system. One

commenter expressed concern that the prohibition against using CMA

funds for case management could cause a State to spend State funds for

some case workers and other administrative costs in the CMA program. In

one State, State law has prohibited the expenditure of State funds for

the refugee program. The CMA restriction could cause the State to be

liable for possible Federal exceptions.

Response: In FY 1991, ORR established priorities for reimbursement

under CMA since insufficient appropriated funds were available to

reimburse costs in all CMA categories. The priority areas to be

reimbursed included costs for (1) unaccompanied minors, including any

allowable administrative costs of the unaccompanied minors program, (2)

RCA and RMA costs and associated administrative costs, and (3)

allowable administrative costs incurred for the overall management of

the State refugee program. Lower priority categories included (4) the

State share of allowable [[Page 33591]] costs for AFDC, Medicaid, SSI,

and foster care payments under title IV-E of the Social Security Act

and lastly (5) case management costs during an RCA recipient's first 12

months in the U.S. or an AFDC recipient's first 4 months in the U.S.

Since FY 1991, ORR has not had sufficient appropriated funds available

to reimburse States for the costs of either category (4) or (5). Thus

the prohibition against using CMA funds for case management has been in

effect since FY 1991. We do not anticipate any increase in the level of

appropriated funds for CMA in the foreseeable future to enable any

change in policy regarding reimbursable CMA categories.

Regarding the commenter's concern about liability for possible

Federal exceptions, the commenter is right to be concerned. If the

State has been inappropriately charging case management costs to CMA,

the State is indeed at risk of possible audit disallowances.

Comments on Subpart C

Sec. 400.25: Comment: One commenter observed that Sec. 400.25 which

states that a State may not impose requirements as to duration of

residence as a condition of participation in the State's program of

assistance or services may be in conflict with the 36- and 60-month

time-limitation proposed for social services and targeted assistance.

Response: This provision is not in conflict with the time-

limitation requirement for services in Secs. 400.152 and 400.315. The

prohibition against duration of residence requirements in Sec. 400.25

means that a State may not impose a requirement that a refugee must

have resided in the State for a required period of time before

qualifying for assistance or services.

Comments on Subpart E

Sec. 400.62: Comment: Two commenters expressed support for making

the RCA start date in relation to the date of application congruent

with AFDC policy, while another commenter objected to this requirement,

expressing concern that this requirement would be in conflict with

State law in his State because the Home Relief program, which

corresponds to the refugee program, has a different requirement than

the AFDC program. The commenter recommended deleting this requirement

or allowing for a waiver. One of the commenters suggested that ORR and

the States should provide clear direction and training to ensure that

clients are not penalized by faulty enrollment or eligibility

determination procedures that result in delays in receipt of

assistance.

Response: Regardless of whether there might be a conflict with

State law, a State would be expected to comply with this Federal

requirement. The commenter's point regarding the need for clear

direction and training to avoid delays in receipt of assistance is

well-taken. We agree that States should take measures to ensure that

eligibility determination procedures result in timely receipt of

assistance.

Comments on Subpart F

Secs. 400.71 and 400.79: Comment: Two commenters requested

clarification on the definition of what constitutes a family. Another

commenter recommended that States be allowed to define family broadly

to include everyone in a household. One commenter felt that the concept

of family self-sufficiency plans needs to be defined more fully to

ensure some consistency in the implementation of this provision. One

commenter said that family self-sufficiency plans are welcome as long

as all employable family members are included in the plan. Another

commenter asked whether family self-sufficiency plans would only be

required for RCA clients or be required for refugee AFDC clients as

well. One commenter requested clarification on whether individual

employability plans must also be developed for recipients of AFDC and

GA. One commenter felt that it is unclear what should be included in a

family self-sufficiency plan and how States should monitor the

development and implementation of such a plan. Another commenter

suggested putting out guidelines to providers to give them concrete

strategies regarding the development of family self-sufficiency plans.

Response: In order to be consistent with how ORR counts families

who move off aid, we define a family as those individuals included in a

cash assistance filing unit whose needs are taken into account when

determining the payment level for the filing unit. Using this

definition, a family could constitute a one-person unit as in many RCA

cases. States have the flexibility, however, to define family more

broadly to include everyone in a household if it so chooses.

We define a family self-sufficiency plan as a plan that includes

(1) a determination of the total amount of income a particular family

would have to earn to exceed its cash grant and move into self-support

without suffering a monetary penalty; (2) a strategy and timetable for

obtaining that level of family income through the placement in

employment of sufficient numbers of employable family members at

sufficient wage levels; and (3) employability plans for every

employable member of the family, as a part of (2). Providers should

focus on the family, not the individual refugee, as the unit of

intervention. Individual employability plans for members of the same

family, therefore, should be kept together as part of the family self-

sufficiency plan under one case file. We believe family self-

sufficiency plans should be developed with the involvement of every

employable family member, not just the primary wage earner, to the

extent possible.

We appreciate the commenter raising the question of whether family

self-sufficiency plans are to be required only for RCA recipients or

for refugee AFDC recipients as well. We intend family self-sufficiency

plans to be required for anyone who receives employment-related

services funded by the refugee program, including recipients of RCA,

AFDC, SSI, and GA, as well as refugees who are not receiving cash

assistance but who apply for employment-related services. Thus, while

references to family self-sufficiency plans in Secs. 400.71 and 400.79

apply only to RCA recipients, we have added a provision under

Sec. 400.156(g) which requires the development of a family self-

sufficiency plan for anyone who participates in refugee program-funded

employment-related services. We would expect agencies to coordinate the

development of family self-sufficiency plans to avoid duplication of

effort if a family self-sufficiency plan for a refugee client already

exists.

States should monitor the development and implementation of family

self-sufficiency plans in the same manner as they would monitor the

development and implementation of employability plans: by conducting a

case file review as part of a State's on-site monitoring.

ORR does not plan to issue national guidelines on family self-

sufficiency planning. However, some States have developed guidance on

family self-sufficiency planning for use within their States.

Sec. 400.75: Comment: One commenter wondered if the requirement for

participation in employment services within 30 days of receipt of aid

could be required of refugees on AFDC as well. Another commenter asked

if non-compliance would result in a client sanction or a negative

program review. One commenter expressed concern that the level of

funding might be inadequate, resulting in employment

[[Page 33592]] services only to RCA refugees to the exclusion of AFDC

recipients. The commenter recommended requiring participation in

employment services within 30 days of receipt of aid only if funding is

available. Another commenter was concerned that the level of funding

might be insufficient to provide services to all RCA refugees and

recommended that the rule be revised to require States to include an

assurance in their State plan that newly arrived refugees will be

enrolled promptly in employment services.

Response: The provisions under subpart F, including the requirement

for participation in employment services within 30 days of receipt of

aid, apply only to RCA recipients; these regulations do not apply to

recipients of AFDC. The AFDC program, administered by the Office of

Family Assistance, is governed by separate regulations under 45 CFR

Chapter II. However, we refer the commenter to 45 CFR 233.100(a)(6),

which requires that within 30 days after the receipt of aid under the

AFDC-UP program, unemployed principal earners will participate or apply

for participation in a JOBS program.

Non-compliance with Sec. 400.75 would result in a client sanction

or a negative program review. Regarding funding availability, we

believe it would be a rare situation where service funds would not be

sufficient to provide services to all RCA recipients in accordance with

Sec. 400.75.

Sec. 400.76: Comment: Two commenters strongly supported ORR's

proposal to make exemption requirements consistent with JOBS

requirements, while two commenters opposed exempting a parent or

caretaker who has a child under 3 years of age and opposed exempting

pregnant women from registration and participation in employment

services if the child is expected to be born within 6 months. One of

the commenters felt that welfare parents should be required to use

child care, as non-welfare parents do, in order to work. The commenter

also expressed the view that since many non-welfare women continue to

work until their 8th month of pregnancy, welfare recipients should not

be exempted from participation because of pregnancy. Two commenters

expressed concern about the availability of affordable day care. One

commenter was concerned that a single parent would not be able to

afford day care costs. Another commenter felt that ORR should take into

consideration the possible hardship that families may experience

finding suitable child care for non-school age refugee children.

Response: We believe the criteria for exemptions from participation

in the refugee program should be as consistent as possible with the

criteria for exemptions in the JOBS program in order to maintain equity

among welfare clients. While we recognize the potential problems that

some refugee families may experience finding suitable and affordable

child care, we believe there are a number of options available to

refugee families for securing subsidized child care through ORR-funded

day care or through the JOBS program.

Sec. 400.80: Comment: Six commenters wrote in support of

elimination of the job search requirement. We received no comments

opposing elimination of this requirement.

Response: We continue to believe that job search is an appropriate

activity for certain types of refugees and should be required as part

of a refugee's employability plan in such cases. Therefore, we have

decided to modify Sec. 400.80 accordingly instead of totally

eliminating this requirement. A refugee who refuses to carry out job

search would be subject to sanction, in accordance with Sec. 400.77, if

job search is a required service in the refugee's employability plan.

Sec. 400.83: Comment: One commenter recommended that since one

State has already obtained ORR approval to modify its timeframe for the

conciliation period, this provision should be revised to accommodate

the State's method of handling the conciliation period.

Response: A revision is not necessary. The State in question was

granted a waiver to this provision a few years ago. This waiver is not

affected by this regulation.

Sec. 400.94(a): Comment: One commenter was opposed to requiring

refugees to be screened for Medicaid eligibility first. Another

commenter expressed concern that the requirement to determine the

Medicaid eligibility of every individual in an RMA family instead of

making a single determination for the family as a unit could have the

potential for increased administrative costs as a result of

implementing this new method of determination.

Response: The revision in Sec. 400.94(a) does not represent a

change in policy; it is simply a clarification of a regulation that has

been in effect since its publication as a final rule in the Federal

Register (54 FR 5480) on February 3, 1989. Therefore, States that are

not making Medicaid eligibility determinations for refugees who apply

for medical assistance, or are not making Medicaid determinations for

each member in a family unit, should take immediate steps to comply

with the requirements under Sec. 400.94(a).

Sec. 400.100(d): Comment: One commenter objected to the provision

that only those recipients of RCA who are not eligible for Medicaid are

eligible for RMA. The commenter expressed concern that RMA may be

eliminated in one State because all RCA recipients in the State are

eligible for Medical Assistance (MA). The commenter also questioned

whether this provision refers to all MA benefits or only Federally

mandated or reimbursed MA benefits. Another commenter pointed out that

it is essential to ensure that refugees on RMA who are eligible for

partial Medicaid benefits are not denied RMA coverage for medical

treatment that is not covered by the partial Medicaid coverage.

Response: This provision is simply a restatement or clarification

of current policy and refers only to Federally reimbursed benefits

under title XIX of the Social Security Act. Regarding RMA coverage for

refugees who are eligible for partial Medicaid benefits, since

Sec. 400.100(d) does not represent a change in policy, States should

continue handling these cases as they do under current policy.

Sec. 400.104: Comment: Twenty-four commenters indicated support for

this provision. Two commenters questioned whether a refugee would be

required to accept private insurance, if the employer offered the

insurance at a cost. One commenter asked if States would be required to

impose penalties for refusal to accept private medical coverage. In

cases where private insurance only covers the employee, one commenter

wondered whether remaining family members would be able to continue on

RMA. Three commenters recommended that instead of terminating RMA once

private insurance is obtained, RMA could be billed only after any and

all private insurance payments were accessed, as is the arrangement in

the Medicaid program. One commenter noted that the proposed rule

suggests that RMA recipients would be eligible for RMA through the 8th

month, regardless of the reason for their ineligibility. The commenter

questioned whether RMA recipients would be eligible for continued RMA

if they began receiving unearned income or acquired excess resources

that would make them ineligible for RMA.

Response: An RMA recipient who becomes employed would not be

required to accept health insurance offered by his/her employer; if an

RMA recipient chooses not to accept private [[Page 33593]] insurance,

his/her eligibility for continued RMA would not be affected. If an

employed RMA recipient obtains private health insurance which covers

self only, the remaining family members, if they were RMA recipients,

could continue to receive RMA for the full time-eligibility period.

Unearned income or excess resources would only be a factor in

determining initial eligibility for RMA; once a refugee becomes an RMA

recipient, however, he/she would be eligible for continued RMA

regardless of whether he/she began receiving unearned income or

acquired excess resources.

After considering the commenters' recommendation, we have revised

the rule to allow an RMA recipient who becomes employed to continue to

receive RMA for the full time-eligibility period, regardless of whether

the recipient obtains private medical coverage. However, we have

revised this provision to require in cases where a refugee obtains

private medical coverage, that RMA payment must take into consideration

any third party payments. This policy is similar to Medicaid policy set

forth in Medicaid regulations at 42 CFR 433.139.

Sec. 400.106: Comment: One commenter asked for clarification as

follows: The preamble states that ``* * * additional services under

Sec. 400.106 may not (emphasis added) be provided to refugee Medicaid

recipients with refugee funding as long as appropriated funds continue

to be insufficient to enable ORR reimbursements to States for these

costs,'' while the actual proposed regulation states that ``the State

may (emphasis added) provide to refugees who are determined eligible

under Secs. 400.94, only to the extent that sufficient funds are

appropriated, or 400.100 of this part the same services through public

facilities.''

Response: The meaning is the same; the main point is that

appropriated funds have not been sufficient to enable ORR reimbursement

for refugees eligible under Sec. 400.94 (Medicaid) since FY 1991, thus

additional medical services to refugee Medicaid recipients under

Sec. 400.106 may not be provided with ORR funding.

Sec. 400.107: Comment: Four commenters recommended the continued

use of the term ``health assessment'' instead of the term ``medical

screening'', while one commenter supported the change of wording. One

commenter felt it was unclear whether the change in terms implied a

change in definition. Two commenters stated that the use of the term

``medical screening'' implies that health assessments can only be done

by physicians when in practice non-physician health care providers are

the primary resource used for conducting health assessments. One

commenter expressed concern that the term ``medical screening'' may

blur the distinction between initial assessment and actual provision of

medical care. The commenter felt that the term implied a more

comprehensive service than will be provided and that it is important to

distinguish that a public health setting is not a comprehensive care

delivery setting. Two other commenters felt that the word ``screening''

is inaccurate to describe the set of health services needed in domestic

resettlement. A screening should be understood as one component of a

more comprehensive set of services. One commenter requested that ORR

provide a definition of medical screening which would allow current

practices to continue.

Finally, one commenter indicated that a review of the Immigration

and Nationality Act did not reveal the use of the term ``medical

screening'' in relation to domestic health assessments.

Response: We have chosen to use the term ``medical screening'' in

place of the term ``health assessment'' simply to be consistent with

the language of the INA. Section 412(b)(5) of the INA authorizes the

Director ``to make grants to, and enter into contracts with, State and

local health agencies for payments to meet their costs of providing

medical screening and initial medical treatment to refugees.'' The use

of the term ``medical screening'' is in no way intended to suggest that

ORR believes that health assessments/medical screenings must be

performed by physicians instead of non-physician health care personnel.

We have been working with State refugee health coordinators and the

Centers for Disease Control and Prevention during the past year to

develop a medical screening protocol, as required under

Sec. 400.107(a)(1), that clearly defines what are allowable services

under medical screening. We intend to issue this protocol later this

fiscal year.

Comments on Subpart I

Secs. 400.141, 400.152, and 400.153: Comment: One commenter felt

that the elimination of title XX services as allowable for refugee

program funding would be damaging to the community. One commenter

recommended that references to title XX be retained in ORR regulations

to enable refugees to access services which they might not otherwise to

able to access because of the absence of bilingual staff and limited

resources. Another commenter supported the elimination of title XX

services. One commenter assumed that the elimination of title XX

services from the list of allowable services was intended to increase

State and local flexibility in the provision of services. The commenter

questioned whether flexibility would, in fact, be increased or whether

the elimination would serve as an impediment to flexibility. Another

commenter questioned what title XX services ORR considers

inappropriate.

Response: As we indicated in the NPRM, the purpose of eliminating

title XX services from the list of allowable services that may be

provided with ORR funding is to limit the scope of refugee program

services to those services that are most in keeping with the goals and

priorities of the refugee program. Our intention is to sharpen the

focus of refugee funding, not necessarily to increase State

flexibility. We do not believe that the full range of allowable

services under the title XX program is consonant with the major

priorities of the refugee program. We have included in our list of

allowable refugee social services those title XX services which we

believe fit with the goals and purpose of the refugee program. However,

there are other title XX services that we believe go beyond ORR

priorities. For example, ORR does not believe that title XX services

such as preparation and delivery of meals and day care services for

adults fall within the main priorities of employment and economic self-

sufficiency in the refugee program. While we believe there are refugees

who may need these services, we believe these services should be

accessed through the State's title XX program instead of through the

refugee program. At the same time we agree with the commenter that

refugees often have difficulty accessing mainstream services because of

the lack of culturally and linguistically appropriate services. ORR

intends to work with other Federal programs over the next few years to

increase refugee access to these services. We strongly encourage States

to do the same at the State level.

Sec. 400.145: Comment: Six commenters wrote in support of requiring

States to insure that women have the same opportunities as men to

participate in training and instruction, as required in the Immigration

and Nationality Act. One commenter, however, wondered why equal

opportunity for employment placement was not included. The commenter

also expressed concern that unless child care and transportation are

provided for women, equal opportunity for services would be moot.

Another commenter, while supporting the [[Page 33594]] provision,

cautioned that ORR, in monitoring this requirement, should not assume

that equal opportunity necessarily results in equal participation. The

commenter felt that ORR tends to equate unequal participation with

unequal access. Another commenter suggested that in light of the

proposed time-limitation for service eligibility, the regulation should

clearly state that pregnant women who wish to participate in employment

services should have access to them, even though they may be exempt

from participation under Sec. 400.76(a)(9). One commenter suggested

that services to women should be provided within the context of a

family self-sufficiency plan.

Response: We agree that refugee women should have equal opportunity

to participate in all services, including employment placements. In the

proposed rule, we used the phrase ``to participate in training and

instruction'' to be consistent with the language in the INA. However,

to more clearly convey our intent to provide women equal opportunity

for all services, we have revised Sec. 400.145 in the final rule to

read: ``A State must insure that women have the same opportunities as

men to participate in all services funded under this part, including

job placement services.''

We concur that services to women should be provided within the

context of a family self-sufficiency plan, as should services to

refugee men and other employable members of a family. As part of that

self-sufficiency plan, we would expect States to make sure that service

providers make every effort to arrange transportation and child care

for those women who are not able to participate in services without

such assistance. We agree with the commenter that without these

supportive services equal access to services would be unattainable for

many women.

We also agree with the comment that equal access does not

necessarily result in equal participation. The emphasis, in our mind,

is on providing to refugee women the same opportunity to participate in

services as refugee men have. We understand that providing access to

services does not guarantee that refugee women will necessarily choose

to participate in services or employment placement due to certain

cultural constraints. On the other hand, since ORR regulations require

that all employable refugee women, with the exception of those who meet

the exemption requirements of Sec. 400.76, must participate in

employment services, we would not expect to see a great disparity in

participation between refugee men and women.

Given the time-limitations for service eligibility that will go

into effect with this final regulation, we agree with the comment that

pregnant women who wish to participate in employment services may

access these services, even though they may be exempt. Section

400.75(b) already requires that a State must permit anyone in any of

the exempted categories under Sec. 400.76 to register for employment

services if he/she so chooses.

Sec. 400.146: Comment: Eight commenters concurred with the

elimination of the 85/15 rule that required any State with a refugee

welfare dependency rate of 55% or more to use 85% of its social service

funds for employability services and no more than 15% of its social

service funds for non-employment-related services.

Three commenters wrote in support of the requirement that

employment services must be designed to enable refugees to obtain jobs

with less than one year's participation in services. Another commenter

disagreed with the prohibition against vocational training that lasts

for more than a year or education programs that are not intended to

lead to employment within a year, stating that many refugees receiving

AFDC will not be able to become self-sufficient in one year due to

limited English language ability and job skills. The commenter

requested a later effective date if this provision were made final. One

commenter requested clarification on whether ESL is considered an

educational program and if the one year starts at the beginning of the

educational program or at the end of the educational program. Another

commenter recommended that a percentage of funds be allowed for the

purchase of selected long-term training for qualified refugees as long

as the training leads to employment soon after training is completed.

Response: This rule does not require refugees to become self-

sufficient with less than one year's participation in services. Section

400.146 requires that services be designed to help a refugee to become

employed, not necessarily self-sufficient, with less than one year's

participation in services. We recognize that a refugee's first job may

not provide sufficient wages to enable self-support; nonetheless, we

believe that that first job is an essential step towards self-

sufficiency and should occur as soon as possible. Section 400.146

permits the continued provision of services to a refugee for more than

one year, as needed, to move a refugee and his or her family to full

self-support. We believe the prohibition against training programs that

last for more than a year or educational programs that are not intended

to lead to employment within a year is reasonable, given limited

resources, and is in keeping with the refugee program's statutory

requirement that refugees be placed in employment as soon as possible

after arrival in the U.S.

We consider ESL to be an educational program that may be provided

for more than a year as long as other services designed to lead to

employment within one year are being provided concurrently to a refugee

as part of an overall self-sufficiency plan. Under the requirements of

Sec. 400.146, it would be unacceptable to provide only ESL to a

refugee, without the provision of other employment-related services

that are intended to lead to employment within one year, since ESL

alone is unlikely to enable a refugee to obtain employment with less

than one year's participation in ESL. The one year starts at the

beginning of the educational program, not at the end.

Sec. 400.147: Comment: Four commenters supported the proposed

client priorities. Two commenters agreed that new arrivals should be

given first priority. One commenter recommended limiting first priority

to all newly arriving refugees on cash assistance during their first

year in the U.S. The commenter noted that while Sec. 400.147 places

refugees on cash assistance on a lower priority than newly arrived

refugees, Sec. 400.75 requires that RCA recipients who are not exempt

must participate in employment services within 30 days of receipt of

aid. The commenter expressed concern that some counties might not have

sufficient funds to serve the top two priority groups. Another

commenter asked why RCA clients couldn't be given the same priority

status as the first priority group since RCA recipients are within

their first year of residence in the U.S. Another commenter recommended

that second priority be given to serving employed refugees in need of

services to maintain employment so that these refugees would not be

tempted to lose their jobs in order to become a higher priority for

services. Another commenter noted that according to the proposed client

priorities, a newly arrived refugee in priority group #1 who is

employed and making $25,000 a year and who wants to upgrade his job,

would receive services before a client in priority group #3 who is

time-expired, unemployed, and living on the streets but anxious to

work. Another commenter wrote that he interprets the priority order to

mean that (1) refugees [[Page 33595]] within their first year of

residence in the U.S. and receiving cash assistance will have priority

over refugees within their first year of residence who are not

receiving cash assistance; and (2) refugees within their first year of

residence who are not receiving cash assistance will have priority,

regardless of their employment status, over refugees receiving cash

assistance, but residing in the U.S. longer than one year. The

commenter recommends that maximum flexibility be given to States and

local service providers in applying these priorities.

Response: To clarify, the first priority group includes both

refugees receiving cash assistance, including RCA and AFDC recipients,

during their first year in the U.S. and refugees who are not receiving

cash assistance during their first year in the U.S. who apply for

services. For refugees in their first year in the U.S., we are not

making a distinction in terms of priority between refugees on cash

assistance and refugees not on cash assistance. We believe that most

States and counties would have sufficient refugee funds to serve all

first-year refugees, regardless of cash assistance status. However, if

for some reason sufficient funds are not available to serve both first

year cash assistance and non-cash assistance clients, common sense

would suggest that priority be given to RCA recipients for service in

order to meet the requirements of Sec. 400.75.

The commenter is correct that refugees in their first year in the

U.S. who are not receiving cash assistance are a higher priority,

regardless of their employment status, than refugees receiving cash

assistance but residing in the U.S. longer than one year. While this

rule will require States to follow these priorities, we recognize there

may be some instances where States and providers will need to exercise

their best judgement in determining who is in greater need of services

on a case-by-case basis. We, therefore, have added the phrase ``except

in certain individual extreme circumstances'' at Sec. 400.147 regarding

client priorities for the social services program and at Sec. 400.314

regarding client priorities for the targeted assistance program. For

example, it may be the best judgement of a provider that a refugee

recipient of cash assistance in need of a job who has been in the U.S.

for more than a year needs to be served before a refugee in priority

group #1 who is earning enough to support his/her family and is not in

danger of being laid off, but wants a job upgrade.

Regarding the case of the first-year refugee earning $25,000 a year

having priority over the time-expired refugee in priority group #3 who

is unemployed, if the refugee is time-expired in terms of being in the

U.S. longer than the time frames specified in Secs. 400.152 and

400.315, that refugee would not be eligible to receive services funded

by the refugee program except those services specified under

Secs. 400.152(b) and 400.315(b). If, however, the refugee in priority

group #3 is not time-expired, and if $25,000 a year is sufficient to

enable the first-year refugee to support his/her family, common sense

would suggest that you serve the refugee in priority #3.

We do not agree with the commenter who believes that second

priority should be given to employed refugees who have been in the U.S.

more than one year (priority #4) to avoid the possibility of refugees

needing to lose their jobs in order to become a higher priority for

services. We do not believe that this scenario is likely to become a

problem.

Sec. 400.152(b) and 400.315: Comment: Nineteen commenters opposed

the proposed time-limitation for refugee social services and targeted

assistance services, while 11 commenters wrote in support of the

proposed limitation. One commenter felt that the time-limitation should

be advisory, not mandatory. One commenter agreed with the longer time-

limitation for targeted assistance, while another commenter supported

the staggered implementation of the time-limitation. One commenter felt

that limitations on service eligibility impose a needed discipline on

providers and recipients alike.

A variety of concerns was expressed regarding the proposed time-

limitation: the time-limitation might preclude refugee women, who delay

participating in services due to cultural reasons, from accessing

services at a later date; the time-limitation will result in the most

needy populations being abandoned without a safety net; it will leave a

significant number of refugees and entrants without the means to

achieve true economic self-sufficiency; the long-term refugee welfare

population will no longer receive the services they need; many

community-based organizations will fold due to lack of funding; refugee

adjustment services, such as mental health and family counseling are

required beyond 3 years and will not be provided due to limited State

and local resources; many refugees will continue to need bilingual

services which are only provided through the refugee program; the time-

limitation will pass fiscal responsibility to State and local

governments that do not have the resources to serve this population;

the time-limitation has the potential of provoking adverse public

reaction to the presence of refugees if certain services are not

provided to post-36-month refugees with refugee program funding; the

limitation will result in bilingual workers having to meet the needs of

the time-expired refugees during their lunch break, after regular work

hours, or on weekends; and the time-limitation on services will

severely limit MAA eligibility for refugee social service funding.

Two commenters questioned limiting services in all States based on

the existence of waiting lists in just a few States. One commenter also

questioned making a regulatory change for refugees in the 1990s based

on study findings primarily of Southeast Asians in the 1980s. One

commenter questioned ORR's authority to limit eligibility for services

for entrants, citing title V, Sec. 501(d) of the Refugee Education

Assistance Act of 1980, which states: ``* * * the authorities provided

in this section are applicable to assistance and services provided with

respect to Cuban and Haitian entrants at any time after their arrival

in the United States * * *.'' Another commenter felt that if ORR

ensures that discretionary social service and TAP funds respond to the

needs of refugees over 36 months, appropriate attention will have been

given to this population.

Several commenters cited problems with having different eligibility

periods for social services and targeted assistance. One commenter felt

that this difference would create an inequitable situation in service

availability between States that have TAP grants and those that do not,

and would also create inequity in service availability among

communities within a State. Another commenter pointed out that having

two different time periods for the provision of social services and

TAP, which are often provided by the same agency to the same client,

would likely generate considerable confusion for both the refugees and

the agencies. One commenter felt it is inconsistent to permit impacted

communities to provide employment services for 5 years but not allow

other communities to do so. Another commenter indicated that the 36-

month time limit for social services would place great stress on TAP

funds, since staffing for the post-36 month population would have to be

funded solely with TAP funding. One commenter felt that the time limit

would force voluntary agencies to place new arrivals only in urban

areas where targeted assistance is available. Another commenter felt

the two eligibility periods would make data collection

[[Page 33596]] more complex and cumbersome at the agency and State

level. One commenter raised the question of when, if a client is served

by a dually funded program (social services and TAP), would the refugee

cease to be eligible for services--at 36 months or at 60 months.

Another commenter asked whether clients who are in the U.S. less than

60 months at the start of the fiscal year, who pass the 60-month mark

during the fiscal year, would be allowed to complete the service plan.

Four commenters expressed concern about the lack of refugee access

to mainstream services. One commenter was concerned that adding refugee

clients to mainstream service systems would have a negative impact on

the existing service system, in light of decreasing funds in mainstream

programs. Two commenters emphasized that if refugees are to be treated

like other U.S. residents and have access to the same assistance and

service programs available to other populations after the first 3 years

in the U.S., it is incumbent upon ORR to foster interagency cooperation

at the Federal level to ensure that refugees have equal access to

mainstream programs. One commenter made the point that if we achieved

the two goals of obtaining equal access for refugees to mainstream

services and achieving citizenship, we wouldn't need to impose a time-

limitation on refugee services.

One commenter requested clarification on whether discretionary

grants provided by ORR would be subject to the 36-month and 60-month

limitation on eligibility. Another commenter requested clarification on

whether the time-limitation applies to all services or only to those

services listed under Sec. 400.154.

Several commenters offered alternative recommendations to the

proposed time-limitations: One commenter recommended allowing the

States the flexibility to provide services as they are needed within

the priorities described in Sec. 400.147; another commenter recommended

adding post-36-month refugees as the last priority under Sec. 400.147;

several commenters recommended that a State be allowed the flexibility

to serve deserving clients beyond 36 months if a State is able to meet

the needs of new arrivals as indicated by an effective and efficient

job placement rate; another commenter recommended that the time-

limitation should not apply to outreach and crisis services; one

commenter recommended excluding community strengthening activities from

the time-limitation, while another commenter recommended that services

such as mental health services should be excluded from the time-

limitation.

One commenter recommended that the time-limitations should be

waived for each county that is impacted with Lao-Hmong, Cambodian, or

Soviet Pentecostal refugees, while another commenter recommended a

waiver to States that have a substantial time-expired welfare

population and can demonstrate that they are able to enroll newly

arrived refugees in employment services within 30 days of receipt of

aid.

Five commenters recommended that, if a time-limited eligibility

period must be established, the same time limit of 5 years should apply

to both refugee social services and targeted assistance, in congruence

with the 5-year residency requirement for citizenship. One of the

commenters alternatively suggested that TAP funding be restricted to

clients who are not served through refugee social service funding. One

commenter proposed that the time-limitation be extended to 60 months

for elderly refugees who apply for non-employment-related services such

as social adjustment, health, and mental health services. Another

commenter recommended that if a time limit must be imposed it should be

no less than 10 years after arrival in the U.S. Two commenters

recommended allowing a State to spend no more than a fixed percentage

of a State's refugee funding on services for post-36-month refugees.

One of the commenters suggested allowing a certain percentage of

funding for post-36-month refugees only in non-targeted assistance

areas.

Response: We continue to believe in the necessity and efficacy of

limiting eligibility for services funded by the refugee program to a

specified time period after a refugee arrives in the U.S. However,

after considering the comments, we have made two revisions to the time-

limitation provision: (1) We have extended the eligibility period for

social services from 36 months to 60 months, in congruence with the

proposed time-limitation for the targeted assistance program and with

the 5-year residency requirement for U.S. citizenship; and (2) we are

exempting referral and interpreter services from the time-limitation in

both programs to enable referral of post-60-month refugees to

mainstream services and emergency interpreter services regardless of

time in the country. By extending the social services time-limitation

to 60 months, refugees will have a longer time to access the services

needed to attain self-sufficiency and States and providers will be

spared the difficulty of administering different eligibility periods

for social services and targeted assistance. We believe these changes

will go a long way towards alleviating many of the areas of concern to

commenters, while maintaining the time-limitation principle.

On the question of whether title V, section 501(d) of the Refugee

Education Assistance Act of 1980 would prohibit ORR from limiting

eligibility for services to a certain time period for Cuban and Haitian

entrants, the intent of section 501(d) needs to be examined within the

context of section 501(a)(1). Section 501(a)(1) states that ``[t]he

President shall exercise authorities with respect to Cuban and Haitian

entrants which are identical to the authorities which are exercised

under chapter 2 of title IV of the Immigration and Nationality Act.''

Regarding this provision, the legislative history states that ``it is

the intent of the Congress that services provided pursuant to this

section shall be provided to Cuban and Haitian entrants by the same

agencies, under the same conditions, and to the same extent, that

assistance is provided to persons determined to be refugees in

accordance with the terms of the Refugee Act of 1980.'' 126 Cong. Rec.

28470 (September 30, 1980). This indicates that Congress clearly

intended that Cuban and Haitian entrants should receive the same

benefits that refugees receive pursuant to the INA. We believe the only

way to interpret section 501(d) in a way that makes sense in

conjunction with section 501(a)(1) is that benefits provided to

entrants should not be any more constrained by time barriers than

benefits provided to refugees. If interpreted the way the commenter

suggests, Cuban and Haitian entrants would receive more extensive

services than refugees because services would only be time-limited for

refugees. Congress clearly did not intend such unequal treatment.

To clarify, the time limitation applies to all services, not just

to those services listed under Sec. 400.154. The time limitation,

however, does not apply to services funded with ORR discretionary

grants, including both social service discretionary and targeted

assistance 10% discretionary grants.

The concerns about the lack of refugee access to mainstream

services are well taken. We agree with the commenters' suggestion that

more has to be done at the Federal level with other programs to ensure

better access by refugees to mainstream programs. We are making it an

ORR priority to work with other Federal agencies and mainstream

programs over the next two years to increase access and quality of

services for refugees. [[Page 33597]]

Sec. 400.154: Comment: Two commenters who supported elimination of

job search as a mandatory requirement recommended that job search be

included as an allowable employment service. One commenter also

recommended including the development of family self-sufficiency plans

as an allowable service. Another commenter recommended adding job-

related expenses as an allowable employability service. One commenter

asked whether match grant clients are excluded from all employment-

related services listed under Sec. 400.154. One commenter wrote in

support of the day care definition in Sec. 400.154.

Response: Job search is already included as an allowable

employability service under Sec. 400.154(a). We have revised

Sec. 400.154 to include the development of family self-sufficiency

plans as an allowable service under Sec. 400.154(a). Regarding job-

related expenses, we believe the most important job-related expenses to

include as allowable services are child care and transportation

expenses. Child care as a job-related expense is already allowable

under Sec. 400.154 and we have amended Sec. 400.154(h) to allow

transportation as a job-related expense.

Match grant clients are not excluded from participating in the

employment-related services listed under this provision.

Sec. 400.155: Comment: Two commenters expressed concern about the

proposed change to Sec. 400.155(f). One of the commenters was concerned

that the change in language implies that translation and interpreter

services may not be provided as a distinct service in its own right;

thus translation/interpretation for a refugee in traffic court or

juvenile court might not be allowable under this provision. The

commenter recommended that translation and interpreter services be

allowed to remain as distinct adjustment services. The other commenter

objected to the proposed change to Sec. 400.155(f), arguing that the

provision as amended would reduce a State's ability to fund refugee

mutual assistance associations for services such as interpreter

services. The commenter also felt that by restricting interpreter

services to instances in which these services are not available from

any other source, ORR would be hampering the desirable goal of

assisting refugees to take advantage of mainstream services.

One commenter requested clarification on proposed Sec. 400.155(g)

regarding the process for submission, the criteria that will be used to

approve additional services, and whether requests will be reviewed

uniformly or on a case-by-case basis. Another commenter asked whether

volunteer coordination and training for ESL tutors, for example, would

require special approval under proposed Sec. 400.155(g). One commenter

suggested that technical assistance to strengthen MAA capability is not

a direct service and thus would more appropriately be supported through

ORR's discretionary program.

One commenter suggested that fraud prevention education should be

addressed through refugee orientation and acculturation services.

Response: We have decided to drop the proposed revision to

Sec. 400.155(f). Translation and interpreter services will continue to

be allowable under Sec. 400.155(f) regardless of whether such services

are available from another source.

If a State wishes to provide additional services under proposed

Sec. 400.155(g), which now will be Sec. 400.155(h), the State should

submit as part of its annual services plan a request which describes

the proposed services, documents the absence of waiting lists in the

State for core refugee services (employment services, ESL, job

training, and case management), demonstrates that the proposed services

fit the purpose of strengthening the ability of refugee individuals,

families, and refugee communities to achieve and maintain economic

self-sufficiency, family stability, and community integration,

documents the need for such services, and describes the results the

State expects to achieve with the provision of these services.

Volunteer coordination and training for ESL tutors would not

require special approval under Sec. 400.155(h). We do not agree with

the comment regarding technical assistance to strengthen the capability

of MAAs; we believe this is an appropriate activity under

Sec. 400.155(h).

Fraud prevention education is allowable as a consumer education

service under Sec. 400.155(c)(3).

Sec. 400.156: Comment: One commenter requested clarification of the

meaning of the phrase ``to the maximum extent feasible''. The commenter

recommended adding the words ``as determined by the State'' after the

words ``to the maximum extent feasible''. Another commenter felt that

the phrase ``to the maximum extent feasible'' regarding the hiring of

bilingual women on staff would provide a convenient out for agencies.

Two commenters requested flexibility regarding the applicability

and feasibility of Secs. 400.156 (c), (d), (e), and (f). One of the

commenters suggested changing the phrase ``must be provided'' to

``should be provided'' to allow some flexibility.

Response: We have revised section 400.156 by removing the phrase

``to the maximum extent feasible'' in paragraphs (c) and (d) because we

believe that in the refugee program, ESL should always be provided

concurrently with other employment-related services or employment and

that services should always be refugee-specific services designed for

refugees and in keeping with the rules and objectives of the refugee

program, with the exception of those services stated in

Sec. 400.156(d). The phrase ``to the maximum extent feasible'' is

retained in paragraphs (e) and (f) and means that these requirements

must be carried out to the fullest extent possible, while recognizing

that there may be some circumstances where it may not be feasible or

possible to require full compliance with this requirement. For example,

it may not be feasible for a service agency to provide linguistically

and culturally compatible services for a new ethnic group that includes

only 2 individuals. Thus, while we believe these requirements must be

met in most cases, we recognize there may be some exceptions where it

may be unreasonable, and perhaps not in the best interests of the

program, to require full compliance. The use of the phrase ``to the

maximum extent feasible'' should not provide a convenient out regarding

the hiring of bilingual women. The phrase acknowledges that there may

some exceptions when it may not be feasible; but it does not open the

door to non-compliance.

We believe the phrase ``to the maximum extent feasible'' provides

sufficient flexibility regarding feasibility. We do not agree with the

suggestion to replace the word ``must'' with the word ``should''.

Sec. 400.156(b): Comment: One commenter asked for a definition of

seamless services and examples to show that they work. Another

commenter, while commenting that the provision of seamless services

between reception and placement (R & P) services and State-administered

social services is a laudable goal, noted that voluntary agencies

provide R & P services under contract with their national offices

through a Department of State (DOS) contract. The commenter suggested

that a similar requirement should be included in the DOS agreement.

Another commenter recommended that coordination as called for under

Sec. 400.156(b) should be expressed in a State plan and should reflect

policies that ensure service continuity from R & P through self-

sufficiency. The [[Page 33598]] commenter recommended that the case

management authority of the voluntary agencies should be respected as

refugees move through the service system.

Response: Seamless services means that there is a relationship and

a continuum between R & P services and State-funded services and an

absence of service gaps or service duplication. This works because

avoidance of service duplication results in a more efficient use of

resources, and an absence of service gaps results in better service to

refugees.

We will forward to the Department of State the commenter's

recommendation to add a requirement on seamless services in the R & P

agreement.

We do not believe it is necessary to require States to address the

coordination required in this provision in State plans. Section

400.11(b)(2), as revised, requires States to develop annual social

services plans on the basis of a local consultative process. This would

be the logical vehicle for carrying out the coordination required under

Sec. 400.156(b).

We believe the case management authority of voluntary agencies

should be respected in those cases where the voluntary agency continues

to be a refugee family's principal provider as it moves through the

service system. In cases where a refugee family's principal provider is

another agency, such as an MAA or other organization, the case

management authority of that agency should be respected regarding that

particular family.

Section 400.156(c): Comment: Seven commenters indicated support for

the provision of ESL concurrent with employment-related services.

Another commenter emphasized that ESL concurrent with employment-

related services is not appropriate for all populations. Another

commenter wondered in the case of an ESL program where job readiness

activities are part of the curriculum and/or the ESL student is also

looking for job training, whether these activities constitute

employment services. Another commenter wondered whether a student

enrolled in an ESL program, who is employed, may attend another ESL

program after he/she completes the current ESL program. One commenter

recommended that this provision should be expanded to allow for

worksite ESL and literacy as desirable services.

Response: We do not believe there is any refugee population that

would not benefit, in most cases, from participation in ESL concurrent

with participation in other employment-related services. We believe

this is an appropriate arrangement for all employable refugees,

regardless of ethnic background. The purpose of requiring that ESL be

provided concurrently, instead of sequentially, with other employment-

related services is to ensure that refugees receive a comprehensive set

of services needed to maximize a refugee's chance of becoming employed

and self-sufficient in a timely manner. Therefore, the example of

enrollment in an ESL class only, even though job readiness activities

are a part of the curriculum, as well as the example of an ESL student

who happens also to be looking for job training, would not, in our

view, constitute ESL concurrent with other services and would not meet

the requirement under Sec. 400.156(c).

It is perfectly allowable for an ESL student, who is employed, to

enroll in another ESL program after he/she completes the current ESL

program. Worksite ESL and literacy are currently allowable under

Sec. 400.154.

Sec. 400.156(d): Comment: Ten commenters indicated support for

providing services through refugee-specific service systems, while 6

commenters opposed making this a requirement. One commenter recommended

making this provision an option instead of a requirement. One commenter

noted that the proposed rule would preclude funding to a refugee

service unit in a JTPA agency, a refugee mutual assistance association

(MAA) that serves refugees along with immigrants and citizens, or a

school that provides ESL. Several commenters felt that their current

service system effectively provides services tailored to refugees while

ensuring refugee access to suitable mainstream programs. They felt that

such combined programs have resulted in the leveraging of mainstream

program dollars and services in a beneficial way for refugees. One

commenter argued that States that can demonstrate effective use of

mainstream resources to provide culturally compatible services focused

on early employment should be allowed to continue to use these systems.

Another commenter felt that as Federal resources diminish, it is

particularly incumbent upon States to utilize other resources and to

mainstream refugees where possible and where appropriate for the

client. One commenter stressed the importance of making clear that this

provision is not intended to relieve mainstream providers of their

obligation to serve refugees seeking other than employment services or

those refugees who have been in the U.S. beyond the 36-month time

period.

Response: We concur with the commenters concerns and have revised

Sec. 400.156(d) to require the provision of refugee-specific services

and have eliminated the requirement that services must be provided

through a separate refugee-specific service system in which refugees

are the only client group served. We believe this change will address

all of the commenters' concerns. The revised provision will allow

funding to a refugee service unit in a mainstream agency such as a JTPA

agency; it will allow funding to an MAA that serves refugees along with

immigrants and citizens, or to a school that provides ESL; and it will

not preclude the leveraging of mainstream funds for refugees or the use

of mainstream systems that have demonstrated the ability to provide

refugee-specific services.

Specifically, Sec. 400.156(d), as revised, requires the provision

of refugee-specific services which must be designed to meet the needs

of refugees and must be in keeping with the rules and objectives of the

refugee program. There are, however, some exceptions to which this

requirement does not apply; the following services are exempt from this

rule: Vocational or job skills training and on-the-job training (OJT)

which involves the purchase of slots for refugees in mainstream

programs; and English language training. We do not believe it would be

cost-efficient or necessary to require refugee-specific vocational

training or OJT. Nor do we feel it is as essential for ESL to be

designed specifically for refugees as long as the ESL is effectively

designed for non-English speaking populations in general and is

provided concurrently with other employment services to refugees.

Sec. 400.156(e): Comment: Five commenters wrote in support of the

proposed rule to require culturally and linguistically compatible

services. Two commenters cautioned that while culturally and

linguistically compatible services can be provided for large groups, it

is not possible to do for all groups; it would be too expensive and

impractical to provide for just a few refugees of a particular

background. One commenter recommended adding language to this provision

that would permit the use of ``qualified'' volunteers. Another

commenter asked how providers can be expected to lay off staff with 15

years' experience just because the ethnic groups they represent no

longer need services. One commenter felt that the expertise of existing

ethnic staff should not be discarded as new refugee populations arrive.

The commenter felt that volunteers can often support the cultural and

linguistic needs of new populations in concert [[Page 33599]] with

experienced staff who may not represent the ethnicity of the new

groups.

One commenter suggested that a requirement should be included in

the Department of State R & P agreement with voluntary agencies which

would require these agencies to work together to facilitate the cluster

resettlement of refugees of the same language background so that States

and localities can develop culturally and linguistically compatible

services.

Response: We learned early in the refugee program that it was

important to use bilingual staff who were culturally compatible with

the refugee groups being served in order to provide effective

resettlement services to these groups. We believe the new incoming

groups deserve the same consideration as the earlier groups. It is

important to balance the expertise of current staff, regardless of

ethnicity, with the linguistic and cultural needs of the new

populations. We expect States and providers to be as responsive as

possible in carrying out this provision by incorporating the new ethnic

groups on staff as much as is needed, either through new hires,

contract employment, or when appropriate, through the use of qualified

volunteers, while maintaining the expertise of existing staff as much

as possible. If volunteers are to be used, we feel strongly that these

volunteers need to be properly trained by the agency to ensure that

refugees are receiving appropriate and useful bilingual services.

We will forward the commenter's recommendation regarding the

cluster resettlement of refugees to the Department of State.

Sec. 400.156(f): Comment: One commenter felt that the principle of

equal access for refugee women, which is critical, should not be

translated into the rigid staffing pattern suggested by the language in

Sec. 400.156(f).

Response: We believe that access to services and communication

between client and provider improve significantly for refugee women

when there are bilingual women on staff to provide services to these

clients. For this reason it is important to ensure that women are

adequately represented on service agency staff.

Comments on Subpart J

Secs. 400.203 and 400.204: Comment: One commenter expressed concern

that the policy of reimbursing States for only those cash and medical

assistance costs for which ORR has sufficient appropriated funds has

the potential of transferring costs for non-reimbursed expenditures to

States.

Response: ORR has not had sufficient appropriated funds to cover

the costs of all the cash and medical assistance programs listed in

Secs. 400.203 and 400.204 since FY 1991 and has, since FY 1991, only

reimbursed States for the costs of RCA, RMA, State administration, and

the unaccompanied minors program. The commenter is correct that the

costs for non-reimbursed expenditures have been born by the States.

Sec. 400.207: Comment: One commenter felt it is unclear what change

is proposed in this provision. Another commenter questioned who will

determine ``reasonableness'' and felt there should be an appeals

process if ACF and the States do not agree on what is allowed. Another

commenter recommended that ACF should publish its definition of

reasonable and allowable costs and provide States and other interested

parties a chance to comment. One commenter felt that ORR should be

consistent with the requirements in a variety of OMB Circulars

regarding allowable administrative expenses. The commenter further

recommended that if ORR decides to further limit allowable

administrative costs, it should specify these limitations in rule form.

Two commenters expressed concern that the language in this

provision would prohibit States from claiming costs for overall State

coordination activities and recommended that ORR clarify in the final

rule that overall State coordination and management of the refugee

program are allowable costs under Sec. 400.207. One commenter felt that

reimbursable costs for State coordination should not be restricted to

the 3-year time-limited population since a State Coordinator's work

involves coordination beyond the funded services to the time-limited

population. Two commenters were concerned that the proposed language in

this provision implies that ORR intends to impose percentage

limitations on State administrative costs. The commenters pointed out

that percentage limitations would make it very difficult for States

with small funding allocations to operate. One commenter supported

limiting administrative costs a State may charge to refugee social

services and to targeted assistance. Two commenters opposed the

limitation of Federal reimbursement for only those programs for which

funding is currently available under the refugee program, which

eliminates reimbursement for administrative costs related to

categorical programs such as AFDC and Medicaid. The commenters felt

this limitation is unfair since States are required to determine

eligibility for AFDC and Medicaid prior to determining RCA/RMA

eligibility, which requires extra staff time, resulting in increased

State costs.

Response: States may continue to claim administrative costs for the

overall management and coordination of the refugee program as they

always have. No change was intended to prohibit the claiming of costs

for coordination and oversight activities; administrative costs for

these activities are allowable under Sec. 400.13(c). Reimbursement of

costs for a State Coordinator's oversight activities is not limited to

the 3 or 5-year time-eligible population. We also have no intentions of

imposing an administrative cap or percentage limitation on State

administrative costs. We do intend to review the issue of what

constitutes reasonable and allowable administrative costs in the

refugee program and, if needed, to develop guidelines defining

reasonable and allowable costs in consultation with States. The

guidelines, if developed, will be consistent with the requirements in

relevant OMB Circulars regarding allowable administrative costs and

will be distributed to States for review and comment.

Comments on Subpart K

Sec. 400.301: Comment: One commenter recommended that the advance

notice that a State must provide ORR before withdrawing from the

refugee program should be 90 days instead of the proposed 120 days. The

commenter felt that ORR should not require a longer period of advance

notice than the 90-day notice that ORR provides for changes in the RCA/

RMA eligibility period. Another commenter recommended that the final

rule should clarify that the Director's designation of an alternate

agency does not preclude a Wilson/Fish demonstration and operates only

as an interim arrangement to ensure service continuity to refugees.

Another commenter recommended that if a State withdraws, ORR must make

sure that the replacement designee adheres to the same standards as a

State-run program, is monitored according to the same standards as a

State-run program, and that all assistance and services provided are

equitable with State-provided assistance and services. The commenter

requested clarification on whether suspension of assistance payments by

a State due to a lack of Federal funding would be considered

withdrawing from the program or withdrawing from part of the program,

without proper notice. [[Page 33600]]

Response: We believe 120 days notice is a reasonable period of time

to require when a State is planning to drop out of the program. The

purpose of requiring the advance notice is to allow enough time to

enable ORR to make alternative arrangements to ensure that refugees in

that State continue to receive assistance and services without a break

in service. The commenter is correct that the designation of a

replacement agency does not preclude the possibility of a Wilson/Fish

demonstration project at a later date. Regarding whether a replacement

designee would operate as an interim arrangement, the replacement

designee would administer the provision of assistance and services to

refugees in the State for a period of time allowable in accordance with

Federal grant-making rules, followed by the selection of an agency

through a competitive grant process.

The replacement designee will be required to adhere to the same ORR

regulations that apply to a State-administered program, with the

exception of certain provisions described under Sec. 400.301 of this

regulation. Certain provisions are excepted because they apply only to

States and become moot when a State withdraws and is replaced by

another entity. States would continue to be responsible for

administering the other excepted provisions because these provisions

refer to the administration of other State-run public assistance

programs.

ORR would not consider the suspension of RCA/RMA assistance

payments by a State due to a lack of Federal funding to be a withdrawal

from the program, unless the State indicated that it intended to

withdraw from the refugee program.

Comments on Subpart L

Comment: Two commenters wrote in support of establishing

regulations for the targeted assistance program (TAP). Another

commenter asked for clarification on whether TAP regulations would

apply to FY 1994 dollars used for the FY 1995 program.

Response: These regulations would apply to whatever dollars are

being used to provide services on October 1, 1995, the effective date

of this final rule.

Sec. 400.312: Comment: One commenter felt that the requirement to

provide any client with targeted assistance-funded services places an

undue burden on a limited funding stream. Another commenter asked what

a State's responsibility is if a client is eligible for TAP services

but there is insufficient funding to provide services to lower priority

applicants. One commenter felt that the language regarding the

opportunity to apply for TAP services is vague regarding eligible

persons and should be revised to be more specific by stipulating that a

State must provide any individual wishing to apply for services who has

been in the U.S. 60 months or less the opportunity to do so. Another

commenter recommended adding the words ``or agencies'' after the word

``individuals'' to read: ``* * * a State must provide any individual or

agencies wishing to do so an opportunity to apply for targeted

assistance services and determine the eligibility of each applicant.''

Response: This provision parallels the language regarding social

services in the current regulation under Sec. 400.145 which has been in

effect since 1989. The provision simply allows any refugee to have the

opportunity to apply for services and to have his/her eligibility for

services determined, nothing more. Eligibility would be determined

based on the eligibility requirements in this regulation, including the

time-eligibility requirement. This provision does not require a State

to provide services to all individuals who apply for services. If a

State does not have sufficient funds to serve lower-priority

applicants, it is not required to do so. We do not agree with the

suggestion to add the words ``or agencies'' to this provision. To do so

would be inappropriate since agencies do not apply for services under

the refugee program; only clients do.

Sec. 400.313: Comment: One commenter recommended that ESL and adult

basic education should be allowed to be provided as long as these

activities are provided concurrently with other employment services and

are within an employment plan designed to lead to employment within one

year.

Response: These services are allowed under the targeted assistance

program if they are provided concurrently with other employment

services designed to lead to employment within one year.

Sec. 400.314: Comment: One commenter felt that the client

priorities for the targeted assistance program do not address the 60-

month time limit. The commenter recommended adding language to this

provision that specifies ``refugees who have been in the U.S. less than

61 months''. One commenter indicated that the proposed client

priorities are not fully consistent with client priorities that were

approved for one State's TAP program. Another commenter indicated that

the priority #1 emphasis on long-term recipients seemed to be

contradictory to the proposed time-limitation of 60 months for the

targeted assistance program. Another commenter expressed concern that

the TAP formula allocations may not be adequate to cover the additional

service costs of the persistently unemployable welfare population in

certain States, which raises the specter of cost shifts from the

Federal government to the States.

Response: The 60-month eligibility time limit for targeted

assistance is included under Sec. 400.315, ``General eligibility

requirements''; these requirements apply to the client priorities under

Sec. 400.314, as well as to all sections under subpart L. The reference

to long-term recipients in priority #1 refers to recipients who have

been on welfare for a number of years within the 60-month time limit.

We would consider an individual who has been a welfare recipient for 3-

5 years a long-term recipient. The commenter's concern that the TAP

formula allocation in certain States may not be adequate to cover the

service costs for the persistently unemployable welfare population, the

population in priority #1, is somewhat puzzling, since long-term

welfare recipients have always been a priority group for TAP services.

It would seem that States would have a better chance of covering the

service costs for a 60-month time-limited welfare population with TAP

funds than for a welfare population that has been in the U.S. for an

open-ended period of time. The State whose approved client priorities

may be different from those listed in this provision will be required

to adhere to the new client priorities when this rule becomes

effective.

Sec. 400.316: Comment: One commenter questioned why services to

strengthen families and communities were not included as an allowable

service under TAP when one of the client priorities is long-term cash

assistance recipients. Another commenter recommended that assistance to

emerging refugee community leadership to develop their own resources

should be an allowable service under TAP, particularly in light of the

proposed time-limitations. One commenter stressed that services

designed to employ women must include child care. The commenter felt

that there is a need to renew limited funding for child care under the

targeted assistance program.

Response: As we explained in the August 12, 1994, NPRM, services to

strengthen families and communities, including assistance to refugee

community leadership, were not included in the list of allowable

services under the targeted assistance program because we wished to

focus the use of TAP funds on employability services aimed at helping

refugees become self-supporting. We feel this focus is

[[Page 33601]] particularly important since the targeted assistance

program is the last opportunity to use refugee program dollars to help

long-term welfare recipients and other unemployed refugees into

employment before they become time-ineligible for our program. Services

to strengthen families and communities and to develop refugee

leadership may be provided through refugee social service funds and ORR

discretionary programs.

We agree that services that are designed to employ women must

include child care services. We expect States to emphasize to their

providers the need to arrange for child care as part of a family's

self-sufficiency plan. Targeted assistance funding has always been

available for child care. We have given special emphasis each year to

the need for child care services in the notice of targeted assistance

allocations to States.

Sec. 400.319: Comment: Four commenters objected to the proposed

requirement that States with more than one qualifying TAP county that

wish to allocate differently from the formula allocations presented in

the ORR TAP notice, must allocate TAP funds based on the most recent 5-

year refugee population. One commenter supported this requirement and

recommended that States should not be allowed to allocate TAP funds

based solely on the numbers of refugees receiving welfare. Two

commenters suggested that States should be authorized to allocate

social services and targeted assistance funds using welfare data.

Response: We believe it makes sense to require a State that wishes

to re-allocate TAP funds to do so based on a population formula that is

consistent with the population the TAP program is allowed to serve.

Since this rule will limit eligibility for TAP services to refugees who

have been in the U.S. 5 years or less, it is reasonable to require that

funds be allocated based on the most recent 5-year refugee population.

States may use welfare data as an additional factor, but not as the

sole factor, in the allocation of targeted assistance funds if they so

choose, without additional authorization; however, we do not require

them to do so. A State that chooses to use welfare data in its

allocation formula may not assign a greater weight to welfare data than

it has assigned to population data.

General Comments

Comment: One commenter noted that the proposed rule does not allow

for an MAA set-aside. The commenter recommended that there should be at

least a 10-20% set-aside for MAAs and that specific language be

included which ensures that States and counties give funding priority

to MAAs for service provision. The commenter also recommended that the

regulation should include language that ensures that MAAs are treated

as full partners in all refugee programs. Another commenter urged ORR

to consider allocating resources for capacity building in communities

that have an over-36-month refugee population. The commenter felt it

would be particularly helpful to strengthen MAAs in order to better

serve their communities.

Response: We do not believe that regulatory language is the

appropriate way to ensure full and equal participation by MAAs in the

refugee program. We plan to review our policy on MAAs and to develop a

more comprehensive strategy regarding refugee community development

over the next few years in order to help refugee communities develop

their capacity to be viable, self-sustaining communities. As part of

this effort, we will be reviewing the social service and targeted

assistance allocations notices to determine if changes are needed to

better ensure service funding to qualified MAAs.

Comment: One commenter recommended that ORR and JOBS staff consult

to amend any JOBS regulations that may impede refugee AFDC recipients

from enrollment in JOBS services. The commenter recommended allowing

States with large refugee populations the option to make refugee AFDC

recipients a JOBS target group.

Response: We intend to consult with JOBS staff on these issues.

Comment: One commenter expressed concern about the impact that the

implementation of the proposed rule will have on the changes to the

quarterly performance report (QPR) that ORR is proposing. The commenter

recommended that ORR wait to make changes in the QPR reporting form

until final decisions are reached on the proposed rule.

Response: Implementation of this rule will not have an adverse

impact on the revised QPR. The final QPR form will be consistent,

rather than at odds, with the new regulatory requirements.

Regulatory Procedures

Executive Order 12866

Executive Order 12866 requires that regulations be reviewed to

ensure that they are consistent with the priorities and principles set

forth in the Executive Order. The Department has determined that this

rule is consistent with these priorities and principles. An assessment

of the costs and benefits of available regulatory alternatives

(including not regulating) demonstrated that the approach taken in the

regulation is the most cost-effective and least burdensome while still

achieving the regulatory objectives.

Paperwork Reduction Act

This rule does not contain collection-of-information requirements.

Regulatory Flexibility Act

The Regulatory Flexibility Act (Pub. L. 96-354) requires the

Federal government to anticipate and reduce the impact of regulations

and paperwork requirements on small entities. The primary impact of

these rules is on State governments and individuals. Therefore, we

certify that these rules will not have a significant impact on a

substantial number of small entities because they affect benefits to

individuals and payments to States. Thus, a regulatory flexibility

analysis is not required.

Statutory Authority

Section 412(a)(9) of the Immigration and Nationality Act, 8 U.S.C.

1522(a)(9), authorizes the Secretary of HHS to issue regulations needed

to carry out the program.

(Catalogue of Federal Domestic Programs: 93.566, Refugee and Entrant

Assistance--State-Administered Programs)

List of Subjects in 45 CFR Part 400

Grant programs--Social programs, Health care, Public assistance

programs, Refugees, Reporting and recordkeeping requirements.

Dated: January 9, 1995.

Mary Jo Bane,

Assistant Secretary for Children and Families.

Approved: May 17, 1995.

Donna E. Shalala,

Secretary, Department of Health and Human Services.

For the reasons set forth in the preamble, 45 CFR part 400 is

amended as follows:

PART 400--REFUGEE RESETTLEMENT PROGRAM

1. The authority citation for part 400 continues to read as

follows:

Authority: Section 412(a)(9), Immigration and Nationality Act (8

U.S.C. 1522(a)(9)).

Sec. 400.1 [Amended]

2. Section 400.1(a) is amended by adding the words ``and other

public and private non-profit agencies, wherever applicable'' after the

word ``States''.

3. Section 400.4(b) is revised to read as follows: [[Page 33602]]

Sec. 400.4 Purpose of the plan.

* * * * *

(b) A State must certify no later than 30 days after the beginning

of each Federal fiscal year that the approved State plan is current and

continues in effect. If a State wishes to change its plan, a State must

submit a proposed amendment to the plan. The proposed amendment will be

reviewed and approved or disapproved in accordance with Sec. 400.8.

4. Section 400.5(h) is revised to read as follows:

Sec. 400.5 Content of the plan.

* * * * *

(h) Provide that the State will, unless exempted from this

requirement by the Director, assure that meetings are convened, not

less often than quarterly, whereby representatives of local affiliates

of voluntary resettlement agencies, local community service agencies,

and other agencies that serve refugees meet with representatives of

State and local governments to plan and coordinate the appropriate

placement of refugees in advance of the refugees' arrival. All existing

exemptions to this requirement will expire 90 days after the effective

date of this rule. Any State that wishes to be exempted from the

provisions regarding the holding and frequency of meetings may apply by

submitting a written request to the Director. The request must set

forth the reasons why the State considers these meetings unnecessary

because of the absence of problems associated with the planning and

coordination of refugee placement. An approved exemption will remain in

effect for three years, at which time a State may reapply.

Sec. 400.9 [Amended]

5. Section 400.9(g) is amended to correct the spelling of the word

``initiable'' to ``initial''.

Sec. 400.11 [Amended]

6. Section 400.11(b)(1) is amended by removing the words ``on a

form'' after the word ``year'' at the end of the paragraph and adding

in their place the words ``in accordance with guidelines''.

7. Section 400.11(b)(2) is amended by adding the words ``developed

on the basis of a local consultative process'' after the word ``plan''

and by removing the words ``no later than 45 days prior to the

beginning of the State's annual planning cycle for social services''

and adding the words ``and at a time'' after the word ``form''.

8. Section 400.11(b)(3) is amended by removing the word

``quarterly'' before the word ``estimates''.

9. Section 400.11(c) is amended by adding a period ``.'' after the

word ``quarter'', removing the remainder of the sentence, beginning

with the word ``except'' and ending with the word ``year'', and

replacing it with a new sentence that reads as follows:

* * * * *

(c) * * * Final financial reports must be submitted in accordance

with the requirements described in Sec. 400.210.

* * * * *

Sec. 400.13 [Amended]

10. Section 400.13(a) is amended by adding the words ``Refugee

Resettlement Program'' before the word ``RRP'' and placing the word

``RRP'' in parentheses.

11. Section 400.13(d) is revised to read as follows:

Sec. 400.13 Cost allocation.

* * * * *

(d) Costs of case management services, as defined in Sec. 400.2,

may not be charged to the CMA grant.

12. Section 400.62 is amended by adding a new paragraph (c) to read

as follows:

Sec. 400.62 Need standards and payment levels.

* * * * *

(c) The date refugee cash assistance begins must be the same date,

in relation to the date of application, as assistance would begin under

a State's plan for AFDC under Sec. 206.10(a)(6) of this title.

Subpart F--Requirements for Employability Services and Employment

13. The heading of subpart F is revised to read as set forth above.

14. Section 400.70 is revised to read as follows:

Sec. 400.70 Basis and scope.

This subpart sets forth requirements for applicants for and

recipients of refugee cash assistance concerning registration for

employment services, participation in social services or targeted

assistance, and acceptance of appropriate employment under section

412(e)(2)(A) of the Act. A refugee who is an applicant for or recipient

of refugee cash assistance must comply with the requirements in this

subpart.

Sec. 400.71 [Amended]

15. Section 400.71 is amended by alphabetically adding the

definition for the term ``family self-sufficiency plan'' to read as

follows:

* * * * *

Family self-sufficiency plan means a plan that addresses the

employment-related service needs of the employable members in a family

for the purpose of enabling the family to become self-supporting

through the employment of one or more family members.

* * * * *

Sec. 400.75 [Amended]

16. Section 400.75(a)(1) is amended by adding the words ``, within

30 days of receipt of aid,'' after the word ``and''. Section

400.75(a)(2) is removed and paragraphs (a)(3), (a)(4), (a)(5), (a)(6),

and (a)(7) are redesignated as paragraphs (a)(2), (a)(3), (a)(4),

(a)(5), and (a)(6), respectively.

17. Section 400.76 is amended by revising paragraph (a)(7) to read

as follows:

Sec. 400.76 Criteria for exemption from registration for employment

services, participation in employability service programs, and

acceptance of appropriate offers of employment.

(a) * * *

(7) A parent or other caretaker relative of a child under age 3 who

personally provides full-time care of the child with only very brief

and infrequent absences from the child. Only one parent or other

relative in a case may be exempt under this paragraph.

* * * * *

18. Section 400.76(a)(9) is amended by removing the number ``3''

and adding in its place the number ``6''.

19. Section 400.76(b) is amended by removing the words ``carrying

out job search,'' after the word ``programs,''.

Sec. 400.79 [Amended]

20. Section 400.79(a) is amended by adding the words ``as part of a

family self-sufficiency plan where applicable'' after the words ``must

be developed'' and by adding the words ``in a filing unit'' after the

words ``refugee cash assistance''.

21. Section 400.79(c)(3) is removed.

22. Section 400.80 is revised to read as follows:

Sec. 400.80 Job search requirements.

A State must require job search for employable refugees where

appropriate.

Sec. 400.82 [Amended]

23. The heading in section 400.82 and the undesignated centerhead

immediately preceding it are amended by removing the words ``to carry

out job search or'' after the word ``refusal'' in the title.

24. Section 400.82(a) is amended by removing the words ``to carry

out job search,'' after the word ``services,''.

25. Section 400.82 is amended by removing paragraph (b)(3)(iii).

[[Page 33603]]

26. The heading of Sec. 400.83 is revised to read as set forth

below.

27. Section 400.83 is amended by redesignating the current text as

paragraph (b) and by adding a new paragraph (a) to read as follows:

Sec. 400.83 Conciliation and fair hearings.

(a) A conciliation period prior to the imposition of sanctions must

be provided for in accordance with the following time-limitations: The

conciliation effort shall begin as soon as possible, but no later than

10 days following the date of failure or refusal to participate, and

may continue for a period not to exceed 30 days. Either the State or

the recipient may terminate this period sooner when either believes

that the dispute cannot be resolved by conciliation.

* * * * *

Sec. 400.94 [Amended]

28. Section 400.94(a) is amended by removing the words ``refugees

who apply'' and adding in their place the words ``each individual

member of a family unit that applies'' before the words ``for medical

assistance''.

Sec. 400.100 [Amended]

29. Section 400.100(d) is amended by adding the words ``who are not

eligible for Medicaid'' after the words ``cash assistance''.

30. Section 400.104 is revised to read as follows:

Sec. 400.104 Continued coverage of recipients who receive increased

earnings from employment.

If a refugee who is receiving refugee medical assistance receives

increased earnings from employment, the increased earnings shall not

affect the refugee's continued medical assistance eligibility. The

refugee shall continue to receive refugee medical assistance until he/

she reaches the end of his or her time-eligibility period for refugee

medical assistance, in accordance with Sec. 400.100(b). In cases where

a refugee obtains private medical coverage, any payment of RMA for that

individual must be reduced by the amount of the third party payment.

Sec. 400.106 [Amended]

31. Section 400.106 is amended by adding the words ``, only to the

extent that sufficient funds are appropriated,'' after the words

``Secs. 400.94''.

Sec. 400.107 [Amended]

32. The heading of Sec. 400.107 is amended by removing the words

``Health assessments'' and adding in their place the words ``Medical

screening''.

33. Section 400.107(a) is amended by removing the words ``a health

assessment'' and adding in their place the words ``medical screening''

and by replacing the word ``assessment'' with the word ``screening''

each time the word ``assessment'' is used.

Sec. 400.140 [Amended]

34. Section 400.140 is amended by adding the words ``formula

allocation'' before the word ``grants''.

Sec. 400.141 [Amended]

35. Section 400.141 is amended by removing the words ``any title XX

social service as defined below or'' from the first paragraph and by

removing the second paragraph.

36. Section 400.145 is amended by adding a new paragraph (c) that

reads as follows:

Sec. 400.145 Opportunity to apply for services.

* * * * *

(c) A State must insure that women have the same opportunities as

men to participate in all services funded under this part, including

job placement services.

37. Section 400.146 is revised to read as follows:

Sec. 400.146 Use of funds.

The State must use its social service grants primarily for

employability services designed to enable refugees to obtain jobs

within one year of becoming enrolled in services in order to achieve

economic self-sufficiency as soon as possible. Social services may

continue to be provided after a refugee has entered a job to help the

refugee retain employment or move to a better job. Social service funds

may not be used for long-term training programs such as vocational

training that last for more than a year or educational programs that

are not intended to lead to employment within a year.

38. Section 400.147 is revised to read as follows:

Sec. 400.147 Priority in provision of services.

A State must plan its social service program and allocate its

social service funds in such a manner that services are provided to

refugees in the following order of priority, except in certain

individual extreme circumstances:

(a) All newly arriving refugees during their first year in the

U.S., who apply for services;

(b) Refugees who are receiving cash assistance;

(c) Unemployed refugees who are not receiving cash assistance; and

(d) Employed refugees in need of services to retain employment or

to attain economic independence.

39. The heading of Sec. 400.152 is revised to read as set forth

below.

40. Section 400.152(b) is revised to read as follows:

Sec. 400.152 Limitations on eligibility for services.

* * * * *

(b) A State may not provide services under this subpart, except for

referral and interpreter services, to refugees who have been in the

United States for more than 60 months, except that refugees who are

receiving employability services, as defined in Sec. 400.154, as of

September 30, 1995, as part of an employability plan, may continue to

receive those services through September 30, 1996, or until the

services are completed, whichever occurs first, regardless of their

length of residence in the U.S.

Sec. 400.153 [Removed]

41. Section 400.153 is removed.

Sec. 400.154 [Amended]

42. Section 400.154(a) is amended by adding the words ``a family

self-sufficiency plan and'' after the words ``development of''.

43. Section 400.154(g) is amended by adding the words ``for

children'' after the words ``Day care''.

44. Section 400.154(h) is amended by adding the words ``or for the

acceptance or retention of employment'' after the words ``employability

service''.

45. Section 400.154 is amended by removing the note after paragraph

(j).

46. Section 400.155(b) is amended by adding the words ``, to

explain the purpose of these services, and facilitate access to these

services'' after the words ``available services'' at the end of the

paragraph.

47. Section 400.155(c)(1) is amended by adding the words ``or

families'' after the word ``persons'' and before the word ``in''.

48. Section 400.155(d) is amended by adding the words ``for

children'' after the words ``Day care''.

49. Section 400.155(h) is revised to read as follows:

Sec. 400.155 Other services.

* * * * *

(h) Any additional service, upon submission to and approval by the

Director of ORR, aimed at strengthening and supporting the ability of a

refugee individual, family, or refugee community to achieve and

maintain economic self-sufficiency, family stability, or community

integration which has been demonstrated as [[Page 33604]] effective and

is not available from any other funding source.

Sec. 400.156 [Amended]

50. Section 400.156 is amended by revising the heading to read as

set forth below:

51. Section 400.156(a) is amended by removing the words ``job

search and'' after the word ``refugee''.

52. Section 400.156(b) is amended by removing the words ``and not

duplicate the provision of such services to such refugee'' after the

word ``sponsors'' and adding in their place the words ``in order to

ensure the provision of seamless, coordinated services to refugees that

are not duplicative''.

53. Section 400.156 is amended by adding new paragraphs (c), (d),

(e), (f) and (g) that read as follows:

Sec. 400.156 Service requirements.

* * * * *

(c) English language instruction funded under this part must be

provided in a concurrent, rather than sequential, time period with

employment or with other employment-related services.

(d) Services funded under this part must be refugee-specific

services which are designed specifically to meet refugee needs and are

in keeping with the rules and objectives of the refugee program, except

that vocational or job skills training, on-the-job training, or English

language training need not be refugee-specific.

(e) Services funded under this part must be provided to the maximum

extent feasible in a manner that is culturally and linguistically

compatible with a refugee's language and cultural background.

(f) Services funded under this part must be provided to the maximum

extent feasible in a manner that includes the use of bilingual/

bicultural women on service agency staffs to ensure adequate service

access by refugee women.

(g) A family self-sufficiency plan must be developed for anyone who

receives employment-related services funded under this part.

Sec. 400.203 [Amended]

54. Section 400.203 is amended by adding the words ``To the extent

that sufficient funds are appropriated,'' before the words ``Federal

funding'' at the beginning of paragraphs (a) and (c).

Sec. 400.204 [Amended]

55. Section 400.204 is amended by adding the words ``To the extent

that sufficient funds are appropriated,'' before the words ``Federal

funding'' at the beginning of paragraphs (a) and (c).

56. Sections 400.206 is amended by revising the section heading as

set forth below, by designating the existing paragraph as paragraph

(a), and by adding a new paragraph (b) to read as follows:

Sec. 400.206 Federal funding for social services and targeted

assistance services.

* * * * *

(b) Federal funding is available for targeted assistance services

as set forth in subpart L of this part, including reasonable and

necessary identifiable State administrative costs of providing such

services, not to exceed 5 percent of the total targeted assistance

award to the State.

57. Section 400.207 is revised to read as follows:

Sec. 400.207 Federal funding for administrative costs.

Federal funding is available for reasonable and necessary

identifiable administrative costs of providing assistance and services

under this part only for those assistance and service programs set

forth in Secs. 400.203 through 400.205 for which Federal funding is

currently made available under the refugee program. A State may claim

only those costs that are determined to be reasonable and allowable as

defined by the Administration for Children and Families. Such costs may

be included in a State's claims against its quarterly grants for the

purposes set forth in Secs. 400.203 through 400.205 of this part.

58. Section 400.210 is revised to read as follows:

Sec. 400.210 Time limits for obligating and expending funds and for

filing State claims.

Federal funding is available for a State's expenditures for

assistance and services to eligible refugees for which the following

time limits are met:

(a) CMA grants, as described at Sec. 400.11(a)(1) of this part:

(1) Except for services for unaccompanied minors, a State must use

its CMA grants for costs attributable to the Federal fiscal year (FFY)

in which the Department awards the grants. With respect to CMA funds

used for services for unaccompanied minors, the State may use its CMA

funds for services provided during the Federal fiscal year following

the FFY in which the Department awards the funds.

(2) A State's final financial report on expenditures of CMA grants,

including CMA expenditures for services for unaccompanied minors, must

be received no later than one year after the end of the FFY in which

the Department awarded the grant. At that time, the Department will

deobligate any unexpended funds, including any unliquidated

obligations.

(b) Social service grants and targeted assistance grants, as

described, respectively, at Secs. 400.11(a)(2) and 400.311 of this

part:

(1) A State must obligate its social service and targeted

assistance grants no later than one year after the end of the FFY in

which the Department awards the grant.

(2) A State's final financial report on expenditures of social

service and targeted assistance grants must be received no later than

two years after the end of the FFY in which the Department awarded the

grant. At that time, the Department will deobligate any unexpended

funds, including any unliquidated obligations.

59. Subpart J is amended by adding a new Sec. 400.212 that reads as

follows:

Sec. 400.212 Restrictions in the use of funds.

Federal funding under this part is not available for travel outside

the United States without the written approval of the Director.

Subpart K--Waivers and Withdrawals

60. The heading of subpart K is revised to read as set forth above:

61. Subpart K is amended by revising Sec. 400.300 and adding a new

Sec. 400.301, that read as follows:

Sec. 400.300 Waivers.

If a State wishes to apply for a waiver of a requirement of this

part, the Director may waive such requirement with respect to such

State, unless required by statute, if the Director determines that such

waiver will advance the purposes of this part and is appropriate and

consistent with Federal refugee policy objectives. To the fullest

extent practicable, the Director will approve or disapprove an

application for a waiver within 130 days of receipt of such

application. The Director shall provide timely written notice of the

reasons for denial to States whose applications are disapproved.

Sec. 400.301 Withdrawal from the refugee program.

(a) In the event that a State decides to cease participation in the

refugee program, the State must provide 120 days advance notice to the

Director before withdrawing from the program.

(b) To participate in the refugee program, a State is expected to

operate all components of the refugee program, including refugee cash

and medical assistance, social services, preventive health, and an

unaccompanied minors program if appropriate. A State is also expected

to play a coordinating role in [[Page 33605]] the provision of

assistance and services in accordance with Sec. 400.5(b). In the event

that a State wishes to retain responsibility for only part of the

refugee program, it must obtain prior approval from the Director of

ORR. Such approval will be granted only under extraordinary

circumstances and if it is in the best interest of the Government.

(c) When a State withdraws from all or part of the refugee program,

the Director may authorize a replacement designee or designees to

administer the provision of assistance and services, as appropriate, to

refugees in that State. A replacement designee must adhere to the same

regulations under this part that apply to a State-administered program,

with the exception of the following provisions: 45 CFR 400.5(d), 400.7,

400.55(b)(2), 400.56(a)(1), 400.56(a)(2), 400.56(b)(2)(i), 400.94(a),

400.94(b), 400.94(c), and subpart L. Certain provisions are excepted

because they apply only to States and become moot when a State

withdraws from participation in the refugee program and is replaced by

another entity. States would continue to be responsible for

administering the other excepted provisions because these provisions

refer to the administration of other State-run public assistance

programs.

62. Part 400 is amended by adding a new subpart L, that reads as

follows:

Subpart L--Targeted Assistance

Sec.

400.310 Basis and scope.

400.311 Definitions.

400.312 Opportunity to apply for services.

Funding and Service Priorities

400.313 Use of funds.

400.314 Priority in provision of services.

400.315 General eligibility requirements.

400.316 Scope of targeted assistance services.

400.317 Service requirements.

400.318 Eligible grantees.

400.319 Allocation of funds.

Subpart L--Targeted Assistance

Sec. 400.310 Basis and scope.

This subpart sets forth requirements concerning formula allocation

grants to States under section 412(c)(2) of the Act for targeted

assistance.

Sec. 400.311 Definitions.

For purposes of this subpart--

``Targeted assistance grants'' means formula allocation funding to

States for assistance to counties and similar areas in the States

where, because of factors such as unusually large refugee populations

(including secondary migration), high refugee concentrations, and high

use of public assistance by refugees, there exists and can be

demonstrated a specific need for supplementation of available resources

for services to refugees.

Sec. 400.312 Opportunity to apply for services.

A State must provide any individual wishing to do so an opportunity

to apply for targeted assistance services and determine the eligibility

of each applicant.

Funding and Service Priorities

Sec. 400.313 Use of funds.

A State must use its targeted assistance funds primarily for

employability services designed to enable refugees to obtain jobs with

less than one year's participation in the targeted assistance program

in order to achieve economic self-sufficiency as soon as possible.

Targeted assistance services may continue to be provided after a

refugee has entered a job to help the refugee retain employment or move

to a better job. Targeted assistance funds may not be used for long-

term training programs such as vocational training that last for more

than a year or educational programs that are not intended to lead to

employment within a year.

Sec. 400.314 Priority in provision of services.

A State must plan its targeted assistance program and allocate its

targeted assistance funds in such a manner that services are provided

to refugees in the following order of priority, except in certain

individual extreme circumstances:

(a) Cash assistance recipients, particularly long-term recipients;

(b) Unemployed refugees who are not receiving cash assistance; and

(c) Employed refugees in need of services to retain employment or

to attain economic independence.

Sec. 400.315 General eligibility requirements.

(a) For purposes of determining eligibility of refugees for

services under this subpart, the same standards and criteria shall be

applied as are applied in the determination of eligibility for refugee

social services under Secs. 400.150 and 400.152(a).

(b) A State may not provide services under this subpart, except for

referral and interpreter services, to refugees who have been in the

United States for more than 60 months, except that refugees who are

receiving employability services, as defined in Sec. 400.316, as of

September 30, 1995, as part of an employability plan, may continue to

receive those services through September 30, 1996, or until the

services are completed, whichever occurs first, regardless of their

length of residence in the U.S.

Sec. 400.316 Scope of targeted assistance services.

A State may provide the same scope of services under this subpart

as may be provided to refugees under Secs. 400.154 and 400.155, with

the exception of Sec. 400.155(h).

Sec. 400.317 Service requirements.

In providing targeted assistance services to refugees, a State must

adhere to the same requirements as are applied to the provision of

refugee social services under Sec. 400.156.

Sec. 400.318 Eligible grantees.

Eligible grantees are those agencies of State governments which are

responsible for the refugee program under 45 CFR 400.5 in States

containing counties which qualify for targeted assistance awards. The

use of targeted assistance funds for services to Cuban and Haitian

entrants is limited to States which have an approved State plan under

the Cuban/Haitian Entrant Program (CHEP).

Sec. 400.319 Allocation of funds.

(a) A State with more than one qualifying targeted assistance

county may allocate its targeted assistance funds differently from the

formula allocations for counties presented in the ORR targeted

assistance notice in a fiscal year only on the basis of its population

of refugees who arrived in the U.S. during the most recent 5-year

period. A State may use welfare data as an additional factor in the

allocation of targeted assistance funds if it so chooses; however, a

State may not assign a greater weight to welfare data than it has

ass

This text is long and has been trimmed here. Open the source document for the complete record.