[Federal Register Volume 60, Number 124 (Wednesday, June 28, 1995)]
[Rules and Regulations]
[Pages 33584-33605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15701]
[[Page 33583]]
_______________________________________________________________________
Part V
Department of Health and Human Services
_______________________________________________________________________
Administration for Children and Families
_______________________________________________________________________
45 CFR Part 400
Refugee Resettlement Program; Final Rule
Federal Register / Vol. 60, No. 124 / Wednesday, June 28, 1995 /
Rules and Regulations
[[Page 33584]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of Refugee Resettlement
45 CFR Part 400
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
AGENCY: Administration for Children and Families (ACF), Office of
Refugee Resettlement, HHS.
ACTION: Final rule.
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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
assigned to population data in its allocation formula.
(b) 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.
[FR Doc. 95-15701 Filed 6-27-95; 8:45 am]
BILLING CODE 4184-01-P
