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SPONSOR: |
Lopez |
DATE TYPED: |
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HB |
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SHORT TITLE: |
Education Works Act |
SB |
360/aSPAC |
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ANALYST: |
Weber |
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APPROPRIATION
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Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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See Narrative |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Responses Received From
Human Services Department
SUMMARY
Synopsis of SPAC Amendment
The Senate Public
Affairs Committee amendment rectify a number of
language changes that needed attention as cited by the Human Services
Department in the original synopsis. The
changes do not change the intent or potential result of SB 360.
Synopsis of Original Bill
Senate Bill 360 establishes a separate
state-funded cash assistance program for students in higher education called
the Education Works Program (EWP).
Participation in the EWP is limited to 24 months, with limited provisions
for extending the time limit.
Eligibility is based on full-time
enrollment at a post secondary educational institution for those who do not
already have a degree, whether the recipient is making satisfactorily progress
as defined by the school, and contains income and resource limits.
SB 360 contains an emergency clause.
Significant Issues
The Human Services Department (HSD)
reports that SB 360 uses many of the statutory requirements found in the New
Mexico Works Act (NMWA) to guide the Education Works Act (EWA). HSD currently administers an Education Works
Program (EWP) cash assistance program that contains many of the provisions
found in the Education Work Act. Most
of the statutory provisions of the Education Works Act mirror HSD's EWP.
Education Works is
currently operating under regulation as part of the TANF services. This bill
puts in statue an existing program.
The TANF funds make possible many of worthy programs such as child care,
childcare training, early childhood development, adult basic education and full
day kindergarten to name only a few.
Some, like full day kindergarten, have been supported only two years and
others much longer. As the TANF program
evolves, new and different support services may be developed that deserve
attention. An example is the CHE funding
initiated for FY04. SB 360 does not
require annual funding but by putting existing programs in statue this natural evolution
process may become more cumbersome. This
may be particularly true since recent proposed federal legislation may create
additional fiscal pressure on the TANF programs which makes flexibility
desirable.
The following summarizes and comments on
the major sections of the bill.
Section 2. DEFINITIONS.
Most definitions for the EWP mirror those
in the NMWA, would provide for consistency between the Temporary Assistance for
Needy Families (TANF)/NMW Cash Assistance Program and would simplify the
administration of the two programs.
There are some new definitions added, specific to the establishment of
the EWP:
A revised definition of
"services" (page 3, lines 16-21) defines services in the same way as
the NMWA. However, under this
definition, HSD would be required to provide an annual payment for
education-related costs to a recipient of EWP.
The amount would be determined by HSD; every recipient who attends one
semester and receives EWP benefits would be eligible for an annual payment.
Section 3. APPLICATION--RESOURCE PLANNING SESSION--INDIVIDUAL EDUCATION
PLAN--REVIEW PERIODS.
This section mirrors the application
process for the NMWA at Subsections A, B, C, E, and F.
Subsection A: An application must be made in the county or
district of residence by the applicant.
A written application on an HSD application form must be made. The applicant must sign the application and
provide information needed to determine eligibility of the applicant and any
dependent children living with the applicant.
Subsection B: HSD must process an application that
qualifies the benefit group for expedited food stamp benefits within 24 hours
after the application is received (page 4, lines 24-25; page 5, lines 1-3).
Subsection C: The applicant must identify all mandatory
benefit group members who live in the home.
After approval of the application, the recipient must report changes in
the membership of the benefit group (page 5, lines 4-8).
Subsection D This section would require HSD to act on an
application no later than 30 days after an application is filed (page 5, lines
10-11). Instead of the requirement for
HSD to complete a resource planning session (required in the NMWA), HSD would
be required to "make referrals" under the Education Works Act.
Subsection E: HSD must issue a payment for childcare no
later than five days after approval of an application for EWP (page 5, lines
12-14). HSD currently issues childcare
payments to approved TANF or EWP cases.
Subsection F: HSD must promptly verify information provided
on the application and must make a record of the applicant's
circumstances. HSD must determine facts
about the application to support the application or verify other information
required by HSD. HSD may make a home
visit to the applicant's home as long as adequate prior notice is given to the
applicant (page 5, lines 15-21).
Subsection G: While the NMWA requires HSD and the applicant
to develop an Individual Responsibility Plan that is work focused, the EWA
requires HSD and the recipient to develop an Individual Educational Plan (IEP)
that sets forth the educational goal of the recipient, identifies barriers to
reaching the goal, identifies the steps necessary to reach the goal, and
includes the services that HSD may provide to assist the recipient in meeting
his educational goal (page 5, lines 22-5; page 6, lines 1-4).
Subsection G, paragraph
3 requires the IEP to include set periodic meeting dates in order to review
financial eligibility and revise the recipient's IEP (page 6, lines 5-8). There are no provisions to complete a review
of all eligibility factors to determine on-going eligibility, such as verifying
grade point average (GPA), student status or enrollment to determine
eligibility for EWP in the subsequent semester.
In effect, the IEP sets in place the "certification period"
for the recipient based on either a six-month period or at the end of the
academic semester. The preferable meeting dates would be the end of the
academic semester (the "certification period") for the EWP recipient
because the six-month period would not necessarily coincide with the end of the
semester, which is a crucial time period for both HSD and the EWP
recipient. It is at the end of the
semester that grades are reviewed and on-going eligibility is determined in the
current EWP.
The requirement in the
IEP for a review of financial eligibility is comparable with HSD's requirement for a "recertification" of
eligibility for all categories of assistance, such as the TANF/NMW and Food
Stamp Program. HSD's
recertification process includes a review of all eligibility factors for the
program, including financial eligibility.
Currently, the Work Program Contractors work with HSD to certify
on-going eligibility for participation in the EWP based on grade point average,
student status or enrollment for the subsequent semester and other factors that
are specific to participation in the EWP.
The IEP limits the
review to a financial review and IEP review, and does not include a review of
all eligibility factors for the EWP program, such as grade point average (GPA),
student status or enrollment for the subsequent semester.
Subsection H
would require HSD (or a representative) and the EWP recipient to sign the IEP
(page 6, lines 9-11), and prohibits HSD from allowing the recipient to refuse
to participate in development of an IEP, to waive the requirement for an IEP
and requires HSD to emphasize the importance of the IEP (page 6, lines
11-17).
There are no penalties
or other consequences established by the Education Works Act in the event the
recipient himself refuses, fails, or declines to participate in the IEP
process. While HSD is prohibited from
waiving the requirement and cannot allow a recipient to decline to develop an
IEP, a recipient could conceivably fail, refuse or decline to participate in
the IEP process and there would be no negative effect on the recipient.
Section 4. EDUCATION WORKS
PROGRAM-ELIGIBILTIY-RESTRICTIONS-REQUIREMENTS
Subsection A
defines a recipient’s eligibility to receive education works services or cash
and requires that at the time of application the recipient meet certain
conditions (P. 6, lines 20-25). Using
the term "recipient" confuses the intent of this statutory provision
because by definition (page 3, lines 11-13), a recipient is a person who
receives cash assistance or services. A
recipient is already eligible for services or cash, and would have already met
the conditions in this Section.
To be eligible for
EWP, the person must demonstrate that:
1) The recipient does not have a
bachelor's degree;
2) the recipient has been accepted or enrolled in a two- or four-year post-secondary degree program; and
3) the degree the
recipient will receive increases the person's ability to engage in full time
employment.
Subsection B prohibits concurrent receipt of TANF funded
cash assistance and State funded education works cash assistance (page 7, lines
5-8).
Subsection C
requires the recipient to apply for all financial aid available from the post
secondary educational institution (page 7, lines 9-11).
Subsection D
establishes a 20-hour-a-week participation requirement for a recipient in the
EWP. Those activities that are
considered as meeting the participation requirement include class time, study
time, work (as defined in Subsection H, page 8, line 6-9), work-study or
volunteering. HSD would be required to
attribute one and one-half hours of study time for each hour of class time
(page 7, lines 12-17).
Subsection E
establishes a 24-month time limit for receiving cash assistance from the EWP,
but allows an extension of the 24-month time limit if the recipient demonstrates
good cause (page 7, lines 18-20). Three
good cause reasons are established by the Act: a recipient is ill, a recipient
is caring for an aging parent of a special needs child, or a recipient has a
learning disability or other kind of mental or physical disability (page 7,
lines 21-25).
Allowing an extension
of the 24-month time limit poses some concerns.
Ř A
recipient who cares for a special needs child can demonstrate good cause and
would be eligible for an extension of the time limit indefinitely, because a
special needs child has special needs indefinitely, and the extension could
last even beyond the four years it typically takes to earn a bachelor's degree.
Ř Similarly,
a recipient who cares for an aging parent, whether or not the parent resides in
the same home, may demonstrate good cause and would be eligible for an extension
of the time limit indefinitely.
Ř Since
the main factor that ends eligibility for EWP is an associates or bachelor's degree,
a recipient with one of the good cause reasons could remain a recipient well
past the 24-month time limit, as long as the recipient has not earned a degree.
Ř Perhaps
the most troubling of the good cause reasons is "illness", which
could be interpreted to mean that having a cold would extend the time limit.
It is recommended that an extension
of the time limit be limited to an extension of one semester in the
post-secondary educational institution when a recipient requires that one
additional semester to earn a degree.
This consideration would allow for a good cause reason (not only the
three mentioned above) that precluded the successful attainment of a degree,
but would not allow indefinite extensions of the time limit.
Subsection F
limits the number of recipients in the EWP to the amount of State funding
available for the program (page 8, lines 1-3).
Subsection G
limits a recipient to only one degree, either an associate's or bachelor's degree
(page 8, lines 4-5).
Subsection H
defines the term "work" as it relates to the participation
requirement for the recipient at Subsection D (page 7, lines 12-17). A recipient may use the activities in the
definition of work toward the 20-hour-a week participation requirement. HSD may define other activities that would be
considered as work and would also be attributed toward the 20-hour-a-week
participation requirement.
Section 5. FINANCIAL STANDARD
OF NEED
Subsection A
enables the Secretary of HSD to establish a financial standard of need (a
maximum cash benefit amount) for the size of a benefit group, based on the
availability of state funds for the EWP (page 8, lines 11-12). The financial standard of need in the EWP
mirrors the NMWA, except that state funds are required for the EWP, and TANF
block grant funds are used for the NMW cash assistance program under the
NMWA.
Subsection B
describes those income sources that cannot be used to determine eligibility or
benefit amounts for applicants or recipients of EWP (page 8, lines 13-25; page
9, lines 1-10).
Subsection C
establishes the maximum income limit for testing the eligibility of the benefit
group. The income test uses gross earned
and unearned income belonging to the benefit group. The maximum income must be equal to or less
than 85% of the federal poverty guideline for the size of the benefit group
(page 9, lines 11-14). The maximum
income limit increases as the size of the benefit group increases. The federal
poverty guideline is adjusted every year, so the maximum income limit by
benefit group size would be adjusted by HSD every year.
Subsection D
establishes the income eligibility test for the benefit group at the gross income
and net income level. The benefit
group's income cannot exceed 85% of the federal poverty guideline for the size
of the benefit group. Once the benefit
group passes the gross income test, the net income test is completed. The benefit group's net income is established
by taking into account allowable disregards from earned income. The benefit group's
earned and unearned income, after allowable disregards, must be less than the
standard of need for the size of the benefit group (page 9, lines 15-24).
Subsection E establishes
the disregards that are applied to the earned income for the benefit group
(page 9, line 25; page 10, lines 1-24).
The disregards are allowed in each month of participation in the EWP as
long as State funds are available. The
disregards under the Education Works Act mirror the disregards in the NMWA,
except for the funding source. Once all
disregards are applied, the resulting earned income and any unearned income are
subtracted from the benefit group's standard of need. If the benefit group's countable income
equals the standard of need the benefit group is not eligible for EWP benefits. The benefit group's countable income must be
less than the standard of need for the size of the benefit group.
The first two
disregards applied to the earned income of the benefit group (page 10, lines
5-13) allow for part of the earned income of the recipient, or both parents in
a two-parent benefit group who are working, to be excluded from consideration
when figuring the net income test for the first two years of receiving EWP cash
assistance. These two conditions require
HSD to exclude all the earned income that exceeds the work requirement rate set
by HSD pursuant to the Education Works Act (page 10, lines 6-7 and lines
12-13). The Education Works Act laid out
in SB 360 does not specifically include or define a "work requirement"
for purposes of the EWP.
SB 360 does establish
a participation requirement for the recipient of EWP of 20-hours-a-week and
includes work as defined in the EWA (see Section 4, Subsections D and H). The discussion concerning the exclusion of
earned income that exceeds the work requirement set by HSD could arguably
authorize HSD to set a separate "work requirement" in addition to the
20-hour-a-week participation requirement at Section 4, Subsection D.
The EWA provides for a
monthly disregard from earned income of $125.00 for a single parent benefit
group and then one-half of the remainder.
If there is a two-parent benefit group, the Act provides for a disregard
from earned income of $225.00 for each parent and then one-half of the
remainder for each parent (page 10, lines 14-18).
Monthly payments made
for child-care can be subtracted from either earned or unearned income. The disregard is capped at $200.00 for a
child under age two and $175.00 for a child age two or older (page 10, lines
19-22).
The costs of
self-employment income and business expenses can be disregarded from earned
income (page 10, line 23-24).
Subsection F
authorizes HSD to recover overpayments of EWP cash assistance on a monthly
basis, but the amount recovered must be 15% or less of the standard of need for
the benefit group (page 11, lines 1-20).
Section 6. RESOURCES
Subsection A establishes
the requirement to count both liquid and non-liquid resources owned by the EWP
benefit group when determining eligibility (page 11, lines 4-6).
Subsection B
establishes a $2,000 resource limit for non-liquid resources (page 11, lines
9-10) and a $1,500 liquid resource limit (page 11, lines 11-12).
The value of the
principal residence of the recipient cannot be considered as a resource at all
(page 11, lines 13-14).
The value of burial
plots and funeral contracts for family members cannot be considered as a
resource (page 11, lines 15-16).
An individual
development account (IDA) held by any benefit group member cannot be considered
as a resource (page 11, line 17).
The value of
work-related equipment up to a value of $1,000 cannot be considered as a
resource (page 11, lines 18-19).
Subsection C
excludes all vehicles owned by the benefit group from consideration as a
resource (page 11, lines 20-22). All
vehicles used for transportation to and from work, school or for daily living
will not be considered when determining the resources available to the benefit
group (see the definition of vehicle, Section 2, Subsection P). Recreational vehicles owned by the benefit
group would be considered when determining the resources available to the
benefit group. SB 360 adopts the
vehicle exclusion language that is currently included as an amendment to the
NMWA in HB 122. This resource exclusion
mirrors the Food Stamp Program resource exclusion for vehicles and would result
in simplification of the administration of the various programs by HSD.
Section 7. INELIGIBILITY
Subsection A lists the persons who are not eligible
to be included in the benefit group (page 11, lines 23-25; page 12, lines 1-25;
page 13, lines 1-25; page 14, lines 1-18).
·
An inmate or patient of a non-medical
institution cannot participate in EWP.
·
A person who transferred real property in
the two years before applying for EWP cannot participate unless he received or
receives a reasonable return for the property; attempted to or attempts to
receive a reasonable return; or attempted to or attempts to regain the real
property. Once the person applies for
EWP, HSD would have to verify one of the three conditions existed or will exist
in order to continue with the application process.
·
A minor unmarried parent who cares for a
child over 12 weeks of age and has not completed his or her high school
education cannot participate in EWP unless he or she participates in
educational activities leading toward a high school diploma or participates in
an alternative educational or training program approved by HSD.
·
A minor unmarried parent who resides in a
home other than a residence with a parent, legal guardian or other adult
relative cannot participate in EWP unless HSD:
After taking into account the needs of the minor unmarried parent, refers or relocates the parent to a second chance home, a maternity home or other appropriate adult supervised supportive living arrangement;
Determines the
unmarried minor parent has no parent, legal guardian or other appropriate adult
relative with which to reside;
Determines the
whereabouts of a parent, legal guardian or other appropriate adult relative are
unknown;
Determines the minor
unmarried parent is not allowed to live with a parent, legal guardian or other
adult relative;
Determines the minor
unmarried parent has been subjected to extreme cruelty or serious physical or
emotional harm, sexual abuse or exploitation in the home of the parent, legal
guardian or other appropriate adult relative;
Finds that the minor
unmarried parent or child of the parent would be in imminent danger or would be
seriously harmed if they live with the parent, legal guardian or other adult
relative;
Determines
that it is in the best interests of the minor unmarried parent to waive the
requirement.
·
A minor child who has been out of the
home or is expected to be out of the home for 45 days is not eligible to
participate in EWP.
·
A person who does not provide a social
security number or refuses to apply for one cannot participate in EWP.
·
A person who is not a resident of this
State cannot participate in EWP.
·
A person is ineligible to participate in
EWP for 10 years if he fraudulently misrepresents residency in order to receive
assistance in two or more states at one time.
This condition is called concurrent receipt of assistance.
·
A person who is a fleeing felon or a
probation or parole violator cannot participate in EWP.
·
A person who receives Supplemental
Security Income (SSI), tribal TANF, or general assistance from the Bureau of
Indian Affairs (BIA) cannot also receive EWP benefits.
·
A parent who does not assign support
rights to the State of
Subsection B
defines a "second chance home" as it is used in Subsection A of this
Section and as it relates to a minor unmarried parent and his or her
eligibility to participate in the EWP (page 14, lines 19-25).
Subsection C
establishes
Section 8. FAIR
HEARINGS REVIEW AND APPEAL
This section provides
for the right of an applicant or recipient of EWP to have a fair hearing if he
or she disagrees with an action taken by HSD, including a delay in processing
an application for cash or services, a denial of an application or part of an
application, or reduction, suspension or termination of benefits.
HSD has established
procedures in place for complying with the fair hearing provisions outlined all
subsections of this Section. The
provisions in this Section mirror the fair hearing requirements in the NMWA for
TANF/NMW recipients.
Section 9. SATISFACTORY
PARTICIPATION
Subsection A
requires a recipient to be a full time student, as defined by the school, in
order to maintain satisfactory participation in EWP. A failure to maintain full time student
status would result in ineligibility for EWP and closure of the EWP case
because there would be no eligible benefit group members. In such a situation, the individual may still
apply for the TANF/NMW cash assistance program.
Subsection B
requires a recipient to be placed on probationary status by HSD if the recipient's
grades fall below the academic standard of the school. The recipient can be placed on probationary
status for one semester. The sole
purpose of the probation period would be to allow the recipient to bring up his
grades (page 18, lines 16-18).
Subsection B also
requires HSD to place a recipient on probationary status if the recipients
overall grade point average (GPA) falls below 2.0 on a four point scale
(C-average). The sole purpose of the
2-month probation period would be to allow the recipient time to bring up his
overall GPA. Such a probationary period
can be allowed for a maximum of two semesters (page 18, lines 18-22).
Ř Using
the term "semester" may be interpreted to mean that only those
recipients who attend school on a semester system may be given the probationary
period and those on a quarter system would not be
eligible for consideration.
Ř Conceivably,
both requirements in this subsection could be in effect during the same school
term. A recipient's grades could fall
below the standard of the school and his GPA could fall below 2.0 in the same
school term, resulting in probationary status in the next school term (for both
reasons). This means the recipient would
be eligible for a maximum of two probation periods (or 10 months of EWP based
on a semester system).
Ř There
is a possibility of three additional probationary periods if each condition in
Subsection B occurs at a different time.
This means the recipient would be eligible for a maximum of three
probationary periods (or 15 months of EWP based on a semester system).
Ř To
avoid the obvious inconsistency and unfairness of the provisions of Subsection
B that would affect a recipient based solely on chance, an amendment is
suggested that would allow the recipient a maximum of two additional
probationary periods if either condition were found to exist in a school term.
Subsection C requires
a recipient to attend classes and participate as required by the standard of
the school (page 18, lines 24-25). In
addition, the recipient is required to report "anything that may affect
his ability to participate in the education works program" (page 19, lines
1-3).
The requirement to
report anything that may affect participation in EWP implies there are
physical, mental or situational reasons that in the recipient's opinion make
him unable to participate in the EWP.
There is no other reference in the Act that makes a recipient responsible
for reporting "changes" that may affect eligibility for EWP based on
all factors outlined in the Act. This
requirement implies the recipient must report personal circumstances or
barriers, but there is a question whether HSD can use the paragraph in Subsection
C as a requirement for the recipient to report those conditions that may affect
the benefit group's eligibility to participate in EWP. HSD would have to take action to ensure
appropriate referrals are made to assist the recipient with any declared
barrier to participation. HSD has a system in place for assisting recipients of
the current EWP program with barriers.
HSD also has rules in place under the currently active EWP for requiring
a recipient to report changes affecting eligibility to participate in the
program.
Subsection C,
paragraph 3, requires the recipient to provide HSD with copies of any financial
aid award letters (page 19, lines 4-5).
HSD would still be required to verify that the recipient had applied for
all financial aid available (page 7, lines 9-11). While the requirement for the recipient to
provide any financial aid award letters assists HSD, this requirement may not
be the only step necessary to verify the recipient had applied for all
financial aid available.
Subsection C,
paragraph 4, requires a recipient to provide HSD with copies of his grades as
they become available (page 19, lines 6-7).
Providing HSD with grades would certainly be a mandatory requirement to
determine eligibility for EWP in the subsequent semester, as well as the need
to place a recipient on probationary status.
The provision allowing the recipient to provide such grades "as
they become available" is open ended and not conducive to HSD's administration of the EWP in the Act. HSD must accurately determine eligibility for
participation in the EWP and would be required to determine a recipient's
eligibility to continue in the EWP by the end of each school term for the subsequent
school term. The clause "as they
become available" is subject to myriad interpretations and does not place
responsibility on the recipient to assist HSD in the requirement to re-assess
eligibility at the end of the school term.
For example, a student
leaves the state at the end of the school term and before receiving his grades
in the mail. The student returns at the
beginning of the next school term, approximately one month later. Of course the clause "as they become
available" could certainly be interpreted as the grades became available
when the recipient checked his mail upon returning to the school.
This provision is
unfair to HSD and may result in an overpayment of cash assistance to the
recipient if HSD has not verified the recipient's enrollment in the college or
university for the subsequent semester.
Administratively, this requirement would be very difficult to track and
HSD would be greatly challenged by this open-ended requirement.
Subsection D
allows HSD the option to require a recipient of EWP benefits to apply for the
TANF funded and time limited NMW cash assistance program if the recipient fails
to meet the four requirements of Subsection C above (page 19, lines 8-11). HSD may close the EWP case of the recipient.
HSD would have to
issue a written notice to the recipient informing him that he may apply for
TANF/NMW if he fails to attend classes, fails to participate in the education
process as required by the standard of the school, fails to report anything
that may affect his ability to participate in the EWP, fails to provide HSD
with copies of any financial aid award letters; or fails to provide HSD with
copies of his grades as they become available.
The recipient has the
right to appeal the action taken by HSD.
FISCAL IMPLICATIONS
Under the current EWP, HSD has been appropriated
$2,000.0 for the last two years from the general fund and is counted toward
Maintenance of Effort (MOE). While there is no appropriation attached to SB
360, there is a $2,000.0 appropriation for EWP contained in the General
Appropriation Act.
ADMINISTRATIVE
IMPLICATIONS
The EWA would require HSD to amend the NMW cash
assistance rules and implement the EWP rules by emergency interim regulations,
with a public hearing that follows the emergency rules.
Field staff will require training on the rules
for the EWP under this Act.
ISD2 programming would be required on the
eligibility system to incorporate the changes to the EWP made in this Act.
MW/yr:prr