[Federal Register Volume 65, Number 56 (Wednesday, March 22, 2000)]
[Rules and Regulations]
[Pages 15410-15450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6848]



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Part II





Department of Health and Human Services





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Office of Refugee Resettlement



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45 CFR Parts 400 and 401



Refugee Resettlement Program: Requirements for Refugee Cash Assistance; 
and Refugee Medical Assistance; Final Rule

  Federal Register / Vol. 65, No. 56 / Wednesday, March 22, 2000 / 
Rules and Regulations  

[[Page 15410]]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of Refugee Resettlement

45 CFR Part 400 and Part 401

RIN 0970-AB83


Refugee Resettlement Program; Requirements for Refugee Cash 
Assistance; and Refugee Medical Assistance

AGENCY: Office of Refugee Resettlement, Administration for Children and 
Families (ACF), HHS.

ACTION: Final rule.

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SUMMARY: This rule amends current requirements governing refugee cash 
assistance and refugee medical assistance and provides States the 
option to establish the refugee cash assistance program as a public/
private partnership between States and local resettlement agencies or 
to continue the refugee cash assistance program as a publicly-
administered program.
    A proposed rule was published in the Federal Register on January 8, 
1999 (64 FR 1159). Some changes have been made and clarifications 
provided in this final regulation after consideration of the written 
comments received.

EFFECTIVE DATE: Effective April 21, 2000, except the amendments to 45 
CFR 400.100 through 400.104 which are effective June 20, 2000.

FOR FURTHER INFORMATION CONTACT: Gayle Smith, (202) 205-3590.

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 (CMA) 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); cash and medical 
assistance, requirements for employability services, job search, and 
employment, and refugee social services published February 3, 1989 (54 
FR 5463); and requirements for employability services, job search, 
employment, refugee medical assistance (RMA), refugee social services, 
targeted assistance services, and Federal funding for administrative 
costs, published June 28, 1995 (60 FR 33584).

Discussion of Major Changes

    The changes made in this final regulation, as compared with the 
proposed rule published on January 8, 1999, are as follows:
    1. The proposal to require States to enter into a public/private 
partnership with local resettlement agencies has been revised. States 
will have the flexibility to establish a public/private refugee cash 
assistance (RCA) program with local resettlement agencies, operate a 
publicly-administered RCA program modeled after a State's Temporary 
Assistance for Needy Families (TANF) program, or establish an 
alternative approach under the existing Wilson/Fish program, which is 
authorized by section 412(e)(7) of the Immigration and Nationality Act 
(INA) (8 U.S.C. 1522(e)(7)).
    2. Under Sec. 400.57, States that elect to establish a public/
private RCA program are only required to include counties and national 
voluntary agencies that resettle refugees in that State in the planning 
and consultation process. The requirement for public comments has been 
withdrawn.
    3. Under Sec. 400.60, States and local resettlement agencies that 
operate a public/private RCA program may combine RCA payments with 
employment incentives that exceed the monthly payment ceiling as long 
as the total combined payments to a refugee do not exceed the Federal 
monthly ceiling multiplied by the allowable number of months of RCA 
eligibility.
    4. Under Sec. 400.61, States will be able to contract with or award 
grants to any service provider for the provision of services to 
participants in the public/private RCA program. States will not be 
required to only contract with or award grants to local resettlement 
agencies to provide these services.
    5. States must notify ORR within 6 months of the date of 
publication of the final rule as to whether they intend to establish a 
public/private RCA program. The due date for submission of a public/
private RCA plan, however, has been extended to no later than 12 months 
after the date of publication of the final rule. States are to include 
in the RCA plan a proposed date for implementation of the public/
private RCA program, not to exceed 24 months after the date of 
publication of the final rule.
    6. The section on monitoring has been withdrawn.
    7. The requirements in the current regulation that prohibit States 
from considering any resources remaining in the applicant's country of 
origin or from considering a sponsor's income and resources when 
determining eligibility for RCA have been restored. In addition, we 
have added a requirement that prohibits States from considering any 
cash grant provided to a refugee under the Department of State or 
Department of Justice Reception and Placement (R & P) programs when 
determining eligibility for RCA. These requirements will apply to both 
the public/private RCA program as well as publicly-administered RCA 
programs.
    8. The proposed requirement for requesting an exception to the 
public/private RCA program has been withdrawn. A State that chooses to 
operate a publicly-administered RCA program modeled after its TANF 
program must submit an amendment to its State Plan to the Office of 
Refugee Resettlement for approval no later than 6 months after the date 
of publication of the final rule, describing the elements of its TANF 
program that will be used in its RCA program.
    9. Under Sec. 400.100(a), whether a refugee has been denied, or 
terminated from, refugee cash assistance may no longer be used as a 
criterion for determining that an applicant is ineligible for RMA.
    10. Section 400.101 has been amended to extend to all States the 
option to establish an RMA financial eligibility standard at up to 200% 
of the national poverty level.
    11. Section 400.102 has been amended by requiring that any cash 
assistance payments that a refugee receives may not be considered in 
determining eligibility for RMA.
    12. Section 400.104 has been amended by making the transfer from 
Medicaid to RMA mandatory for refugees who lose Medicaid eligibility 
due to early employment.
    13. Under Sec. 400.152(b), citizenship and naturalization services 
are exempt from the 60-month limitation on services.
    14. Section 400.55 has been amended to clarify that translations of 
written policies, notices, and determinations in refugee languages must 
be provided to recipients in both public/private RCA programs and 
publicly-administered RCA programs. We have amended this requirement in 
accordance with the Department of Justice's regulations

[[Page 15411]]

regarding compliance with title VI of the Civil Rights Act of 1964. 
This section now requires that agency policies, notices of eligibility 
and of adverse action, and determinations must be provided to refugees 
in English and in appropriate languages where a significant number or 
proportion of the recipient population needs information in a 
particular language. For refugee language groups that constitute a 
small number or proportion of the refugee recipient population, these 
provisions require States, or local resettlement agencies in the case 
of a public/private RCA program, to use an alternative method such as a 
verbal translation in a refugee's native language, to ensure that the 
content of the written policy or notice is effectively communicated.
    15. The proposed amendment to 400.13(d) which would have allowed 
certain case management costs to be charged to CMA has been withdrawn.

Description of the Regulation

    This rule provides States with options in designing a refugee cash 
assistance (RCA) program for those refugees not eligible for Temporary 
Assistance for Needy Families (TANF) or Supplemental Security Income 
(SSI), changes the procedure for determining the financial eligibility 
of refugees for receipt of refugee medical assistance (RMA), and amends 
other policies.
    During the period following World War II until the passage of the 
Refugee Act of 1980, a variety of programs were funded by Congress and/
or the private sector to assist newly arriving refugee groups. In 
authorizing and funding these programs for refugees, Congress 
continually demonstrated its recognition that special programs were 
needed to help refugees restart their lives in the U.S.
    It is important to note that resettlement in the U.S. is the last 
stage of a much larger, world-wide humanitarian effort to aid victims 
of oppression and war. The U.S. participates and exercises its 
leadership in this effort by contributing to international relief and 
protection efforts, and also by offering resettlement to some refugees 
who have no other durable solution and who qualify for admission to the 
U.S. These refugees arrive from diverse backgrounds and parts of the 
world. However, what they all have in common, in addition to having had 
to seek refuge, is that they arrive with virtually no worldly 
possessions.
    With the passage of the Refugee Act, Congress further underscored 
its belief that refugees need special assistance by authorizing an on-
going program for providing assistance and services to all refugees 
after their arrival in the U.S. However, unlike U.S. welfare programs 
which assist the needy, the Refugee Act does not require that an income 
standard be met in order to receive this special refugee cash 
assistance, only that refugees register for and participate in programs 
to help them find employment. Congress provided the Office of Refugee 
Resettlement (ORR) the latitude to structure the refugee program in 
accordance with the refugee situation at that time.
    After passage of the Refugee Act of 1980, ORR chose to establish 
direct ties to the State-administered Aid to Families with Dependent 
Children (AFDC) program in order to ensure that cash assistance was 
available to newly-arrived refugees not categorically eligible for that 
program. ORR established the refugee cash assistance program and 
required States to use the AFDC need and payment standards for the 
provision of RCA. The AFDC welfare system provided a nationally 
accessible structure which ensured that cash assistance was available 
to all refugees in a timely and equitable manner. ORR also established 
the refugee medical assistance program modeled on the Medicaid program.
    At that time, ORR received sufficient appropriations to allow 
States to provide needy refugees with refugee cash assistance and 
refugee medical assistance during a refugee's first 36 months in the 
U.S. In addition, some portion of the refugee population received 
assistance under the mainstream AFDC and Medicaid programs. ORR also 
reimbursed the State share of AFDC and Medicaid costs during a 
refugee's first 36 months.
    In the intervening years, due to declining appropriations, ORR 
reduced the period of availability of RCA and RMA to refugees. At the 
present time, ORR reimburses States for 100 percent of their RCA and 
RMA costs during a refugee's first eight months. Refugees eligible for 
the TANF and Medicaid programs receive assistance under those programs; 
the costs of providing TANF and Medicaid to refugee recipients are not 
included in the refugee appropriation.
    With the passage of welfare reform legislation in 1996, two things 
have occurred which caused ORR to review the current system for 
providing RCA: (1) More refugee families have qualified for assistance 
through the TANF program than had previously qualified under the AFDC 
program, resulting in a smaller RCA program; and (2) States have 
expressed concerns about the administrative difficulties of maintaining 
a separate system based upon former AFDC rules to provide cash 
assistance for only 8 months to a small population of refugees.
    With these two considerations in mind, ORR conducted eight 
consultations around the country and two teleconferences to discuss 
whether and how States, voluntary agencies, service providers, and 
refugee organizations would like to see the regulations changed. These 
consultations were attended by 35 State Refugee Coordinators, ten 
national voluntary agencies, more than one hundred local voluntary 
agency affiliates, representatives from State and local TANF agencies, 
local service providers, refugee mutual assistance agencies, unions, 
and national advocacy groups. The consultations were useful in helping 
us to identify certain issues and to gauge whether there was a general 
willingness and a suitable climate across the country in which to 
change the program.
    We have concluded, based upon the consultations, that it is an 
opportune time to provide States the flexibility to separate the link 
between the RCA program and the welfare/TANF system for the following 
reasons: (1) The current period of time for provision of cash 
assistance is shorter, requiring a simple, more integrated and direct 
approach to resettlement; and (2) the RCA population, comprised almost 
entirely of singles and couples without children or with adult 
children, is a smaller, more distinct population to serve.
    The Refugee Act acknowledged the roles of both States and private 
voluntary agencies in resettlement and authorized the Director of ORR 
``to provide assistance, reimbursement to States, and grants to, and 
contracts with, public or private nonprofit agencies for 100 per centum 
of the cash assistance and medical assistance provided to any refugee * 
* *.'' This language provided ORR with statutory flexibility to deliver 
assistance through public or private means. We believe that the public/
private program described in this regulation more closely follows what 
Congress intended in passing the Refugee Act. The addition of a public/
private program also provides States increased flexibility by offering 
another option for administering the RCA program.
    In addition to the public/private program, this rule also provides 
States the option to establish the refugee cash assistance program as a 
publicly-administered RCA program modeled after their TANF program in 
regard to determination of eligibility, treatment of

[[Page 15412]]

income and resources, benefit levels, and budgeting methods.
    This rule provides States that elect to establish the refugee cash 
assistance program as a public/private partnership the option to enter 
into contracts with or award grants to local resettlement agencies to 
administer the provision of cash assistance or to administer both the 
provision of cash assistance and services needed to help RCA recipients 
become employed and self-sufficient within the RCA eligibility period. 
The RMA program will continue to be administered by the States and will 
not be included in the public/private partnership program. In addition, 
assistance and services to refugees eligible for TANF will not be 
affected by the public/private RCA program.
    We believe that giving States an option of operating a combined 
assistance and services program, administered outside the welfare 
system, makes programmatic sense for the RCA population. Placing 
responsibility for cash assistance and services with the resettlement 
agencies will result in a continuity of assistance to RCA-eligible 
refugees from initial resettlement to self-sufficiency. Currently, 
resettlement agencies are responsible, under contract with the 
Department of State (DOS), for providing refugees with initial housing, 
food, clothes, and shelter for the first 30 days after arrival in the 
U.S. However, in order to receive cash assistance, refugees must apply 
to the local welfare office where they become engaged in a service 
delivery system which, in many States, may not include their local 
resettlement agency.
    We believe a public/private RCA program will more firmly unite the 
two key players--States and resettlement agencies--into a partnership 
that will best utilize their respective strengths. States will maintain 
the important role of administering the program and providing financial 
management and policy oversight, while the resettlement agencies will 
have an enhanced role in the longer-term resettlement of refugees they 
place in the State. Under the public/private RCA program, States and 
voluntary agencies will have the flexibility to design programs to 
deliver refugee cash assistance in a manner that more fully integrates 
and supports resettlement. In order to accommodate resettlement in 
communities across the U.S. with different cost-of-living conditions, 
ORR is establishing payment ceilings which may be provided to refugees. 
Within these ceilings, a State and the resettlement agencies in that 
State will have the opportunity to develop a resettlement plan which 
incorporates the features, such as sliding scale payments or 
incentives, that they believe are best suited to achieving early self-
sufficiency and to enriching the quality of life for refugees placed in 
their State. In addition, States and resettlement agencies will have 
the flexibility to establish the income-eligibility standard for RCA 
that they believe would best enable most newly arriving refugees to 
qualify for RCA and which would encourage early employment.
    States and the agencies responsible for providing services to 
recipients in the public/private RCA program will be responsible for 
moving refugees to economic and social self-sufficiency within the RCA 
eligibility period by placing them in full-time employment.
    This rule will allow States under Sec. 400.207 to claim reasonable 
and necessary administrative costs incurred by resettlement agencies in 
the administration of the public/private RCA program.
    We expect States that opt to establish a public/private RCA 
program, when developing their annual social services plan, to cover 
the costs of services in the new RCA program within their regular 
social services budget. We also expect States to link the new RCA 
program with the existing State refugee social services system in order 
to enhance the coordination of services. We recognize that there may be 
additional service costs to fully implement the service component of 
the new RCA program while maintaining the State's regular refugee 
social services program for non-RCA refugees who have been in the U.S. 
for less than 5 years. For this reason, subject to the availability of 
funds, ORR plans to make available to States a portion of the non-
formula funds that are reserved for the Director's discretionary use 
each year. These non-formula funds would be used during the initial 
start-up years to enable States to establish a viable public/private 
RCA program without compromising their existing social services 
program.
    States that elect to establish a public/private RCA program will be 
required to engage in a planning and consultation process with the 
national voluntary and local resettlement agencies and with other 
agencies, such as mutual assistance associations (MAAs), that serve 
refugees in the State to design the public/private RCA program. From 
that process, States and resettlement agencies will develop a public/
private RCA plan for submission to ORR no later than 12 months after 
publication of the final rule.
    While a public/private RCA program is ORR's preferred approach, we 
fully recognize that this approach may not be the best choice in all 
States. Therefore, under the final rule, States will have the option to 
establish a publicly-administered RCA program modeled after their TANF 
program. States that conclude that neither a public/private RCA program 
nor a publicly-administered RCA program would be the best way to serve 
refugees in their State may pursue a third option--an alternative 
program funded under the standing Wilson/Fish announcement. The Wilson/
Fish program provides States and public and private non-profit agencies 
the opportunity to develop innovative approaches to providing cash 
assistance, social services, and case management as an alternative to 
the regular State-administered refugee program.
    The final rule contains a number of provisions to ensure that 
refugee rights and protections are safeguarded in the RCA program. 
While we have no interest in having resettlement agencies adopt the 
full range of rules and regulations of a government bureaucracy, it is 
essential to have adequate client protections in place to ensure due 
process and equitable treatment.
    We have added three changes to the refugee medical assistance 
program to enable certain groups of refugees currently without medical 
coverage, such as newly arrived refugees who become employed within the 
first few weeks of arrival, to be eligible for RMA. First, States will 
be required to determine RMA eligibility on the basis of a refugee 
applicant's income and resources on the date of application, rather 
than averaging income over the application processing period. Second, 
States will be given the option of using a higher financial eligibility 
standard of up to 200% of the national poverty level for determination 
of RMA eligibility. Third, refugees residing in the U.S. less than 8 
months, who lose their eligibility for Medicaid because of earnings 
from employment, will be transferred to RMA without an eligibility 
determination. We believe these changes in RMA eligibility are 
important to ensure that most newly arriving refugees, many of whom 
arrive with medical problems resulting from war-related trauma, have 
medical coverage during their first 8 months in the U.S.
    Consistent with the preceding actions, 45 CFR 400.2, 400.5, 400.11, 
400.13, 400.23, 400.27, 400.43, 400.44, Subpart E, 400.70, 400.71, 
400.72, 400.75, 400.76, 400.77, 400.78, 400.79, 400.80, 400.81, 400.82, 
400.83, 400.93, 400.94, 400.100, 400.101, 400.102, 400.103, 400.104, 
400.107, 400.152, 400.154,

[[Page 15413]]

400.155, 400.203, 400.207, 400.208, 400.209, 400.210, 400.211, 400.301, 
and 401.12 are being amended or removed. Some of these changes are 
technical in nature and are not discussed in the preamble.

Subpart A--Introduction

    Section 400.2 is amended by replacing all references to the AFDC 
program with references to the TANF program, by adding a definition of 
an RCA Plan, designee, economic self-sufficiency, and a family unit, 
and by adding separate definitions of a national voluntary agency and a 
local resettlement agency.

Subpart B--Grants to States for Refugee Resettlement

    Section 400.5 is amended by reinserting paragraph (i) which was 
inadvertently removed when 45 CFR Part 400 was last codified in 1995.
    Section 400.13 is amended by adding a new paragraph (e) which would 
allow States to charge administrative costs incurred by local 
resettlement agencies in the administration of the public/private RCA 
program (i.e., administrative costs of providing cash assistance) to 
the CMA grant. Administrative costs of managing the services component 
of the RCA program must continue to be charged to the social services 
grant.
    Administrative costs of providing cash assistance may include: (1) 
The salary costs of staff responsible for eligibility determinations 
and other administrative functions associated with the provision of 
cash payments; and (2) the portion of the local resettlement agency 
Director's time spent on managing the cash assistance component.

Subpart C--General Administration

    Section 400.23 (Hearings) is amended by clarifying that the public 
assistance hearing regulation at 45 CFR 205.10(a) applies to assistance 
and services provided to refugees unless otherwise specified in ORR 
regulations.
    Section 400.27 (Safeguarding and sharing of information) is amended 
by adding language to paragraph (b) to enable States that have 
established a public/private RCA program to obtain client information 
from local resettlement agencies without a signed consent from clients, 
and by removing paragraph (c) which references an AFDC regulation. It 
should be noted that Sec. 400.58 requires that a State's public/private 
RCA plan contain a description of the procedures to be used to 
safeguard the disclosure of information regarding refugee clients.

Subpart D--Immigration Status and Identification of Refugees

    Section 400.43 is amended by removing the following obsolete alien 
statuses for purposes of the refugee program: ``Admitted as a 
conditional entrant under section 203(a)(7) of the Act'' and ``Admitted 
with an immigration status that entitled the individual to refugee 
assistance prior to enactment of the Refugee Act of 1980, as specified 
by the Director'' and by adding Cuban and Haitian entrants in 
accordance with requirements in Part 401; and Amerasian immigrants to 
this section.
    Section 400.44 is amended by clarifying that applicants for asylum 
are not eligible for assistance under the refugee program unless 
otherwise provided by Federal law, as is the case with Cuban and 
Haitian asylum applicants under section 501 of the Refugee Education 
Assistance Act of 1980.

Subpart E--Refugee Cash Assistance

    The sections of Subpart E that pertain specifically to AFDC 
requirements have been retained and modified under a new Sec. 400.45. 
For example, we have dropped the prohibition against applying a $30 and 
\l/3\ earned income disregard; any reception and placement cash 
received by a refugee may not be considered in determining income 
eligibility; and the State agency may use the date of application as 
the date RCA begins. These requirements must be followed by States 
until they have implemented a new public/private RCA program or a 
publicly-administered RCA program modeled after TANF. These 
requirements also apply to those States that obtain an approved waiver 
from ORR to continue an AFDC-type RCA program.
    Subpart E is revised by providing States the flexibility to 
establish a new public/private partnership program in which States 
would contract with or award grants to local resettlement agencies to 
provide transitional cash assistance and services to RCA-eligible 
refugees as described below, or to operate a publicly-administered RCA 
program modeled after the TANF program.
General
    The following general sections apply to both the public/private RCA 
program and publicly-administered RCA programs, including RCA programs 
currently modeled after AFDC unless otherwise noted in Sec. 400.45.
    Section 400.50 (Basis and scope) is retained without changes and 
redesignated as Sec. 400.48.
    Section 400.51 (Definitions) is removed.
    Section 400.52 (Recovery of overpayments and correction of 
underpayments) is redesignated as Sec. 400.49 and amended by removing 
references to AFDC requirements.
    Section 400.55 (Opportunity to apply for cash assistance) is 
redesignated as Sec. 400.50 and amended by removing (b)(1), which 
references AFDC requirements, by amending (b)(2), and by removing 
(b)(3), (b)(4), and (c), which require States to contact sponsoring 
resettlement agencies regarding financial assistance and offers of 
employment to refugees. Paragraph (b)(4) and (c) have been moved to 
Sec. 400.68. Paragraph (d) has been removed and moved to Sec. 400.54.
    This section is amended by adding a requirement that an eligibility 
determination must be made as promptly as possible within no more than 
30 days from the date of application and that applicants must be 
informed of their rights and responsibilities.
    Section 400.56 (Determination of eligibility under other programs) 
is redesignated as Sec. 400.51 and is amended by removing paragraphs 
(a)(1) and (a)(2) and redesignating paragraph (a)(3) as (a).
    Section 400.57 (Emergency cash assistance to refugees) is 
redesignated as Sec. 400.52.
    Section 400.53 (General eligibility requirements) replaces 
Sec. 400.60 and establishes the following eligibility requirements for 
the RCA program. To be eligible for the RCA program, a refugee must: 
(1) Be a new arrival who has resided in the U.S. less than the RCA 
eligibility period determined by the ORR Director in accordance with 
Sec. 400.211; (2) be ineligible for TANF and SSI; (3) have the proper 
immigration status and documentation for eligibility for benefits under 
the refugee program; (4) not be a full-time student in an institution 
of higher education; and (5) meet the income eligibility standard 
established by the State.
    Section 400.54 (Eligibility redeterminations in States with 
residency requirements) has been removed and a new Sec. 400.54 (Notice 
and hearings) has been added. This section describes timely and 
adequate notice and certain hearing requirements necessary in the 
administration of public/private and publicly-administered RCA programs 
(See the comment and response sections to Secs. 400.82 and 400.83 for 
further discussion).
    Section 400.55 (Availability of agency policies) requires a State 
or the

[[Page 15414]]

agency(s) responsible for the provision of RCA to make available to 
refugees the written policies of the public/private RCA program, 
including all notices and all agency policies regarding eligibility 
standards, the duration and amount of cash assistance payments, the 
requirements for participation in services, the penalties for non-
cooperation, and client rights and responsibilities to ensure that 
refugees understand what they are eligible for, what is expected of 
them, and what protections are available to them. The State or the 
agency(s) responsible for the provision of RCA must ensure that agency 
policy materials and notices, including notices required in 
Secs. 400.54, 400.82, and 400.83 are made available to refugee clients 
in English and in appropriate languages where a significant number or 
proportion of the recipient population needs information in a 
particular language.
Public/Private Partnership RCA Program
    Section 400.56 (Structure) provides States the option of entering 
into a partnership with local resettlement agencies for the provision 
of cash assistance through a public/private RCA program. This section 
provides States the flexibility to enter into a public/private 
partnership by administering the RCA program through contracts or 
grants with the local resettlement agencies that resettle refugees in 
the State. We define local resettlement agencies in Sec. 400.2 as local 
affiliate agencies which provide initial reception and placement 
services to refugees under a cooperative agreement with the Department 
of State.
    We believe that giving the local resettlement agencies that are 
responsible for the initial placement of refugees the additional 
responsibility of providing cash assistance to those refugees will 
result in more effective and better quality resettlement. At the same 
time, we fully recognize the policy and administrative oversight 
capacity that States are able to contribute to the resettlement 
process. This public/private structure is a way to more firmly unite 
the two sectors into a partnership to help refugees.
    We expect States to implement a public/private RCA program 
statewide. It is intended that all resettlement agencies placing 
refugees in a State will participate in the public/private RCA program 
to the extent possible.
    However, if it is not feasible to operate a statewide public/
private RCA program, States may propose a geographically split program 
for the delivery of RCA. We recognize that in some places the statewide 
public/private model may not be a reasonable approach. For example, in 
a State with a major urban area that receives 75% of the State's newly 
arriving refugees, the State and resettlement agencies may wish to 
operate a public/private RCA program in the urban area only, while 
choosing to operate a publicly-administered RCA program through the 
State welfare agency in the balance of the State where the geographic 
dispersion of refugees may hinder resettlement agency delivery of 
benefits.
    ORR will not consider a plan where the State proposes having both a 
public/private RCA program and a publicly-administered RCA program in 
the same location. Such an arrangement would not be programmatically 
wise because it would cause confusion for refugees and would create 
unnecessary duplication.
    We recognize that some local resettlement agencies sponsor refugees 
in States other than where they have an office, e.g., in States 
bordering and in close proximity to their local office such as occurs 
in Kansas/Missouri and in the District of Columbia/Maryland/Virginia 
metropolitan area. ORR intends, where possible, that these resettlement 
agencies also be involved in the planning of the public/private RCA 
plan of the bordering State. However, if that is not feasible (some 
States, for example, may not be able to enter into contracts or grants 
outside of the State), ORR expects States, in conjunction with the 
local resettlement agencies, to make appropriate provisions for 
eligible refugees resettled by agencies not located within State 
boundaries. Examples of appropriate provisions may include the 
establishment of an office by the sponsoring resettlement agency in the 
State where they are placing refugees or co-locating staff with a 
resettlement agency that already has a presence in the State.
    We recognize that some States may not have the staff or 
administrative support to contract with and manage numerous local 
agency contracts or grants. We also recognize that some local 
resettlement agencies may not have the administrative and fiscal 
capacity to manage a cash assistance program. Therefore, under the 
public/private RCA plan, States and local resettlement agencies may 
consider different types of arrangements such as: (1) An agency-
contained model where the local resettlement agency performs all fiscal 
and eligibility functions including the determination of eligibility, 
authorization of the RCA payment amount, the cutting of the checks, and 
the provision of payments to refugees; (2) a lead agency approach in 
which one resettlement agency assumes responsibility for managing the 
cash assistance component of the program for all the resettlement 
agencies; or (3) a model where the State acts as the fiscal agent, 
cutting benefit checks and managing cash flow, while the local 
resettlement agency determines eligibility, calculates the payment 
amount, and provides payments to refugees.
    States and resettlement agencies that choose to implement the 
public/private RCA program will have 24 months from the date of 
publication of the final rule to implement the new program.
    Section 400.57 (Planning and consultation) requires a State that 
wishes to establish a public/private RCA program to engage in a 
planning and consultation process with local resettlement agencies to 
develop a public/private RCA plan, the content of which is described in 
Sec. 400.58. Primary participants in the planning process must include 
representatives of the State and each local agency that resettles 
refugees in the State. In addition, representatives of refugee mutual 
assistance associations (MAAs), counties, local community services 
agencies, national voluntary agencies, representatives of each refugee 
ethnic group, and other agencies that serve refugees must be given the 
opportunity to participate in the discussion during the development 
period. We believe that full participation by MAAs and other community 
agencies throughout the planning process is essential to the 
development of a workable public/private RCA program. To facilitate 
this participation, it is permissible for States to charge to their CMA 
grant reasonable travel and per diem costs for MAAs and other agencies, 
as needed, to enable these agencies to more easily participate in the 
consultation process.
    This section requires local resettlement agencies to keep their 
respective national voluntary resettlement agencies fully informed of 
the details of the public/private RCA program as the program is 
developed. Local resettlement agencies will be responsible for 
obtaining a letter of agreement from their national agency stating that 
the national agency supports the public/private RCA plan and will 
continue to place refugees in the State under the new public/private 
program.
    Section 400.58 (Development of a public/private RCA plan) 
establishes the requirements for the development of a public/private 
RCA plan which describes how the State and local resettlement agencies 
will administer and deliver RCA to eligible refugees. The plan must 
describe the agreed-upon public/private RCA system including:

[[Page 15415]]

(1) The proposed income standards for RCA eligibility; (2) proposed 
payment levels to be used to provide cash assistance to eligible 
refugees; (3) assurance that the payment levels established are not 
lower than the State TANF amount; (4) a detailed description of how 
benefit payments will be structured, including the employment 
incentives and/or income disregards to be used, if any, as well as 
methods of payment; (5) a description of how all refugees residing in 
the State will have reasonable access to cash assistance and services; 
(6) a description of the procedures to be used to ensure appropriate 
protections and due process for refugees, such as notice of adverse 
action and the right to mediation, a pre-termination hearing, and an 
appeal to an independent entity; (7) a description of proposed 
exemptions from participation in employability services; (8) a 
description of the employment and self-sufficiency services that will 
be provided to RCA recipients; (9) procedures for providing RCA to 
eligible secondary migrants who move to the State, including secondary 
migrants who were sponsored by a resettlement agency that does not have 
a presence in the receiving State; (10) if applicable, provisions for 
providing assistance to refugees resettling in the State who are 
sponsored by a resettlement agency in a bordering State which does not 
have an office in the State of resettlement; (11) a description of the 
procedures to be used to safeguard the disclosure of information on 
refugee clients; (12) letters of agreement from the national voluntary 
resettlement agencies indicating support for the public/private RCA 
program and that refugee placements in the State will continue under 
the public/private RCA program; (13) a breakdown of the proposed 
program and administrative costs of both the cash assistance and 
service components of the public/private RCA program, including per 
capita caps on administrative costs only if a State proposes to use 
such caps; and (14) a proposed implementation date for the public/
private RCA program.
    The plan must be signed by the Governor or his or her designee and 
must be submitted to the ORR Director for review and approval no later 
than 12 months after the date of publication of the final rule. A State 
must, however, notify the ORR Director of its intent to establish a 
public/private RCA program no later than 6 months after the date of 
publication of the final rule.
    RCA plan amendments must be developed in consultation with the 
local resettlement agencies to reflect any changes in policy and 
submitted to ORR in accordance with Sec. 400.8.
    Section 400.59 (Eligibility for the public/private RCA program) 
establishes that to be eligible for the public/private RCA program, a 
refugee must meet the income eligibility standard jointly established 
by the State and local resettlement agencies in the State. This section 
also states that any resources remaining in the applicant's country of 
origin or a sponsor's income and resources may not be considered in 
determining income eligibility. Any cash grant received by the 
applicant under the Department of State or Department of Justice 
Reception and Placement programs also may not be considered in 
determining income eligibility since such a grant is intended to cover 
the initial costs of resettlement, not ongoing living expenses.
    In establishing an income eligibility standard for the public/
private RCA program, States and resettlement agencies may wish to set a 
standard, for example, at 150% of the poverty level, that will allow 
refugees who are employed part-time in a low wage job to also be 
eligible for some level of cash assistance. States may wish to consider 
such a need standard in order to provide a more solid economic 
foundation for refugees during their first 8 months in the U.S. to 
better ensure continued self-sufficiency.
    Section 400.60 (Cash payment levels) establishes allowable cash 
payment levels under the public/private RCA program. This section 
requires monthly cash assistance payments to be made to eligible 
refugees using a payment level that does not exceed the following 
payment ceilings, except in cases where the State TANF payment level is 
higher or a State wishes to provide early employment incentives as 
described below.

------------------------------------------------------------------------
                                                                Monthly
                     Size of family unit                        payment
                                                                ceiling
------------------------------------------------------------------------
1 person.....................................................       $335
2 persons....................................................        450
3 persons....................................................        570
4 persons....................................................        685
------------------------------------------------------------------------

    These ceiling payment levels are based on 50% of the 1998 HHS 
Poverty Guidelines for each family size, divided by 12 months, except 
as noted below.
    For family units greater than 4 persons, the payment ceiling may be 
increased by $70 for each additional person.
    If the ORR Director determines that the payment ceilings need to be 
adjusted for inflation, ORR will issue revised payment ceilings through 
a notice in the Federal Register.
    We expect that most refugees eligible for RCA will be one-person or 
two-person family units, singles and childless couples. We expect that 
most refugee families with dependent children will be eligible for TANF 
and, therefore, will not need to access the RCA program.
    Payments to refugees may not be lower than the State TANF payment 
for the same sized family unit. States, therefore, that have TANF 
payment levels that are higher than the ceilings indicated above, must 
provide payment levels under the new public/private RCA program that 
are comparable to the State TANF payment levels. ORR will reimburse 
States at the higher TANF payment levels in such instances.
    We encourage States and local resettlement agencies to use the 
flexibility provided in the payment ceilings to include income 
disregards or other incentives such as employment bonuses, that will 
encourage early employment and self-sufficiency. This flexibility would 
allow States and local resettlement agencies to provide continued cash 
support while moving refugees into early employment. States and local 
resettlement agencies may design whatever combination of assistance 
payments and incentives they believe would be effective, as long as the 
total combined payments to a refugee do not exceed the monthly ceiling 
multiplied by the allowable number of months of RCA eligibility. States 
and local resettlement agencies that plan to exceed the monthly payment 
ceilings in order to provide employment incentives must budget their 
resources carefully to ensure that sufficient RCA funds are available 
to cover a refugee's cash assistance needs in the latter months of a 
refugee's eligibility period, if needed.
    We encourage States and local resettlement agencies to look at 
different approaches and to be creative in designing a program that 
will help refugees to establish a good economic foundation during the 
8-month RCA period. We encourage States and local resettlement agencies 
to design an RCA program that takes into account that refugees arrive 
in the U.S. with little or no financial resources and that 8 months of 
cash assistance provides a limited period of time to gain a degree of 
financial stability.
    One approach might be to permit the total of earned income and cash 
assistance of refugees who become employed full-time to exceed the cash 
assistance only payments made to refugees who are not employed. Another

[[Page 15416]]

approach, currently being used in one State, provides an incentive to 
employed refugees through monthly reimbursements for work-related 
expenses such as tools, uniforms, work-related transportation expenses, 
medical insurance co-payments, or the cost of additional work-related 
training. The State has found this to be an effective incentive for 
early employment.
    Section 400.61 (Services in the public/private RCA program) 
establishes that services provided to recipients of refugee cash 
assistance in the public/private program may be provided by the local 
resettlement agencies that administer the public/private RCA program or 
by other refugee service agencies. It will be important not only to 
place refugees in employment at wages that will enable self-support, 
but to ensure that refugees receive the skills, such as English 
language acquisition and basic living skills, needed to live 
successfully in this country. We plan to work with States and 
resettlement agencies to develop appropriate social self-sufficiency 
and English acquisition outcome measures.
    This section also establishes that in public/private RCA programs 
where local resettlement agencies are responsible for administering 
both cash assistance and services, States and local resettlement 
agencies must maintain ongoing coordination with refugee mutual 
assistance associations and other ethnic representatives that represent 
or serve the ethnic populations that are being resettled in the U.S. to 
ensure that the services provided under the public/private RCA program: 
(1) Are appropriate to the linguistic and cultural needs of the 
incoming populations; and (2) are coordinated with the longer-term 
resettlement services frequently provided by ethnic community 
organizations after the 8-month RCA period.
    In public/private RCA programs where the agencies responsible for 
providing services to RCA recipients are not the same agencies that 
administer the cash assistance program, States must: (1) Establish 
procedures to ensure close coordination between the local resettlement 
agencies that provide cash assistance and the agencies that provide 
services to RCA recipients; and (2) set up a system of accountability 
that identifies the responsibilities of each participating agency and 
holds these agencies accountable for the results of the program 
components for which they are responsible.
    Allowable services under the public/private program are limited to 
those services described under Secs. 400.154 and 400.155.
    Section 400.62 (Coverage of secondary migrants, asylees, and Cuban/
Haitian entrants) provides that the State and local resettlement 
agencies must ensure that there is a system in place which is 
accessible to eligible secondary migrant refugees, asylees, and Cuban/
Haitian entrants who want to apply for assistance. In developing these 
procedures, consideration must be given to how to ensure coverage of 
eligible secondary migrants and other eligible applicants who were 
sponsored by a resettlement agency which does not have a presence in 
the State or who were not sponsored by any agency.
    Section 400.63 (Preparation of local resettlement agencies) 
requires national voluntary agencies to be responsible, in concert with 
the States, in preparing local resettlement agencies for their new 
responsibilities under the public/private RCA program during a period 
of transition. In light of the ongoing relationship of the national 
voluntary agencies with their local affiliates under the Department of 
State cooperative agreements for initial Reception and Placement 
services, we believe the national agencies should share in the 
responsibility with the States for ensuring that their affiliate 
agencies have the capacity and structure to effectively handle the cash 
assistance and service needs of refugees over an 8-month period.
    The States and national voluntary agencies will develop a plan for: 
(1) Determining the training needed to enable local resettlement 
agencies to achieve a smooth transition into their expanded role; and 
(2) providing the training in a uniform way to ensure that all local 
resettlement agencies in the State will implement the new program in a 
consistent manner. Part of this training should involve helping the 
local resettlement agencies to change how they view their role--from a 
short-term initial resettlement role to a longer-term commitment to the 
economic self-sufficiency and social integration of the refugees they 
resettle. The national voluntary agencies should also be instrumental 
in helping the local resettlement agencies to establish a smooth 
linkage between Reception and Placement services and services under the 
RCA program and in facilitating the development of consortia among 
affiliates. States may also wish to call upon the national voluntary 
agencies to assist in providing remedial assistance and training to 
poorly performing affiliate agencies before contract or grant sanctions 
are applied.
    ORR intends to use a portion of its non-formula social services 
funding, subject to the availability of appropriated funds, to support 
the national voluntary agencies in these training activities during a 
transition period ending two years after publication of the final rule.
Publicly-Administered RCA Programs
    Section 400.65 (Continuation of a publicly-administered RCA 
program) provides a State that does not elect to establish a public/
private RCA program the option of operating its RCA program consistent 
with its TANF program. A State that chooses to operate a TANF-type RCA 
program must submit an amendment to its State Plan no later than 6 
months after publication of the final rule, describing the elements of 
its TANF program that will be used in its RCA program.
    Section 400.66 (Eligibility and payment levels in a publicly-
administered RCA program) establishes that in administering an RCA 
program modeled after TANF, the State agency must operate its refugee 
cash assistance program consistent with the provisions of its TANF 
program in regard to: (1) The determination of initial and on-going 
eligibility (treatment of income and resources, budgeting methods, need 
standard); (2) the determination of benefit amounts (payment levels 
based on size of the assistance unit, income disregards); (3) proration 
of shelter, utilities, and similar needs; and (4) any other State TANF 
rules relating to financial eligibility and payments.
    This section retains the requirements that a State agency may not 
consider any resources remaining in the applicant's country of origin 
or a sponsor's income and resources in determining income eligibility. 
This section contains an additional requirement that a State agency may 
not consider any cash grant provided to the applicant under the 
Department of State or Department of Justice Reception and Placement 
programs in determining income eligibility. This section also permits 
States to use the date of application as the date refugee cash 
assistance begins, instead of the date used in the States' TANF 
program.
    Section 400.67 (Non-applicable TANF requirements) establishes that 
a State that chooses to model its RCA program after its TANF program 
may not apply certain TANF requirements to refugee cash assistance 
applicants or recipients as follows: Instead of TANF work requirements, 
States must apply the requirements in Sec. 400.75 which requires RCA 
recipients, as a condition of receipt of assistance, to participate in 
employment services within 30 days of receipt of aid, and Subpart I of 
45 CFR Part 400 with respect to the provision of

[[Page 15417]]

services for RCA recipients. The requirements and expectations for 
employment and participation in employment services in the refugee 
program are no less serious than the requirements in the TANF program. 
The requirements in the refugee program are simply different from TANF 
requirements in that the types of activities allowed in the refugee 
program are designed for the needs of newly-arrived refugees who 
typically arrive with little or no English language skills. Thus, in 
the refugee program, refugees participate extensively in English 
language training, assisted job search, and other employment-related 
activities that are designed to help limited-English speaking refugees 
to become self-sufficient within 8 months.
    Section 400.68 (Notification of resettlement agencies) requires 
States: (a) To notify the local agency that was responsible for the 
initial resettlement of a refugee whenever the refugee applies for 
refugee cash assistance under a publicly-administered RCA program; and 
(b) to contact the applicant's sponsor or resettlement agency to 
inquire whether the applicant has voluntarily quit employment or has 
refused to accept an offer of employment within 30 consecutive days 
immediately prior to the date of application, in accordance with 
Sec. 400.77.
    Section 400.69 (Alternative RCA programs) provides States, that 
determine that neither a public/private RCA program nor a publicly-
administered program modeled after its TANF program is the best 
approach for their State, the option to establish an alternative 
approach under the Wilson/Fish program, authorized by section 412(e)(7) 
of the INA. Applications for the Wilson/Fish program may be submitted 
under the standing Wilson/Fish grant announcement published in the 
Federal Register on April 22, 1999 (64 FR 19793).

Subpart F--Requirements for Employability Services and Employment

    Section 400.70 (Basis and scope) is amended to clarify that Subpart 
F applies to applicants and recipients of both a public/private RCA 
program and a publicly-administered RCA program.
    Section 400.72 (Arrangements for employability services) is amended 
to clarify that the requirements in paragraphs (a) and (b) of this 
section apply equally to States that operate a public/private RCA 
program through contracts or grants with local resettlement agencies 
and to States that operate a publicly-administered RCA program, while 
paragraph (c) applies only to a publicly-administered RCA program.
    Section 400.76 (Exemptions) is revised by removing the list of 
individuals who may be exempt from participation in employment 
services. States agencies may determine what specific exemptions, if 
any, are appropriate for recipients of a time-limited RCA program in 
their State. Given the short duration of the RCA program, however, and 
the need for refugees to become self-sufficient within this limited 
time frame, we would expect States to require most RCA recipients to 
participate in employment services, with few exceptions.
    Section 400.78 (Service requirements for employed recipients of 
refugee cash assistance), which requires an RCA recipient who is 
employed less than 30 hours a week to participate in part-time 
employment services, as a condition of continued receipt of refugee 
cash assistance, is removed and reserved. We leave it to States and 
local resettlement agencies to determine how best to design a program 
that moves refugees to full-time employment in a reasonable period of 
time.
    Section 400.80 (Job search requirements), which requires job search 
where appropriate, is removed and reserved. Again, we leave it to the 
judgement of States and local resettlement agencies to decide the types 
of employment services that are the most effective in placing refugees 
in jobs.
    Section 400.81(a) (Criteria for appropriate employability services 
and employment) is amended by replacing the reference to AFDC with a 
reference to TANF.
    Section 400.81(b) is amended by limiting professional refresher 
training and other recertification services only to individuals who are 
working.
    Section 400.82 (Failure or refusal to accept employability services 
or employment) is revised to specify requirements for timely and 
adequate notice of intended termination under both a public/private RCA 
program and a publicly-administered RCA program.
    Section 400.83 (Conciliation and fair hearings) is revised by 
establishing requirements for mediation and fair hearings in the 
public/private RCA program and requiring that States specify the public 
agency mediation/conciliation and fair hearings procedures to be used 
in cases where a State operates a publicly-administered RCA program. 
Under this requirement, hearings must meet the due process standards 
set forth in the U.S. Supreme Court decision in Goldberg v. Kelly, 397 
U.S. 254 (1970).

Subpart G--Refugee Medical Assistance

    This subpart is amended in several places to clarify that refugee 
medical assistance is only available to refugees who are ineligible for 
Medicaid or SCHIP, regardless of how the State has administratively 
implemented its SCHIP program. Without these clarifying amendments, the 
regulations as currently drafted would only require States to determine 
SCHIP eligibility prior to RMA eligibility if the State has 
administratively implemented SCHIP as an expansion of benefits under 
the State's Medicaid Plan under title XIX of the Social Security Act. 
As currently written, the RMA regulations do not require States to make 
SCHIP eligibility determinations prior to RMA eligibility 
determinations for refugee children, if the State has chosen to 
implement its SCHIP program as a separate State SCHIP Program pursuant 
to title XXI of the SSA.
    Section 400.93 (Opportunity to apply for medical assistance) is 
amended to clarify that the notice indicating that assistance has been 
authorized, denied or terminated must clearly distinguish between RMA, 
Medicaid and SCHIP.
    Section 400.94 (Determination of eligibility for Medicaid) is 
amended to clarify that refugee medical assistance is only available to 
refugees who are ineligible for Medicaid or SCHIP.
    Section 400.100(a) (General eligibility requirements) is amended by 
removing the prohibition against the provision of RMA to refugees who 
have been denied, or terminated from, refugee cash assistance.
    Sections 400.100(a)(1) and (d) (General eligibility requirements) 
are amended by clarifying that refugee medical assistance is only 
available to refugees who are ineligible for Medicaid or SCHIP.
    Section 400.101 (Financial eligibility standards) is amended by 
giving all States the option of increasing the financial eligibility 
standard for RMA eligibility determination to up to 200% of the 
national poverty level by family size. Our intent in allowing States 
this new option is to ensure that States have the flexibility to 
broaden financial eligibility for refugee medical assistance, while 
receiving 100% Federal reimbursement of costs, in order to extend 
coverage to certain groups of new arrivals who are currently not 
covered under RMA. Refugees currently without medical coverage who 
would be affected by this provision include: (1) Refugees who are 
ineligible for transitional Medicaid because they were not considered 
eligible to receive AFDC assistance in at least 3 of the last 6

[[Page 15418]]

months due to hours of or income from employment; and (2) refugee 
spouses who arrive in the U.S. a number of months after their spouse 
who preceded them, and are not eligible for RMA because their employed 
spouse's income renders them ineligible for RMA.
    Section 400.101(b) is amended with respect to States without a 
medically needy program by clarifying that references to AFDC refer to 
the AFDC payment standards and methodologies in effect as of July 16, 
1996, including any modifications elected by the State under Section 
1931(b)(2) of the Social Security Act (SSA). This is in keeping with 
the amendments made by section 114 of the Personal Responsibility and 
Work Opportunity Reconciliation Act of 1996 (PRWORA) to Section 1931 of 
the SSA.
    Section 400.102 (Consideration of income and resources) is revised 
to clarify that determination of eligibility for refugee medical 
assistance (RMA) must be based on the applicant's income and resources 
on the date of application, rather than on a refugee's income averaged 
prospectively over the RMA application processing period.
    The purpose of this revision is to ensure that refugees who enter 
employment within the first few weeks after arrival in the U.S. are not 
penalized for accepting early employment by denial of refugee medical 
assistance. Refugees arrive in the U.S. with no income, and generally 
apply for refugee medical assistance very soon after arrival. With this 
revision, a newly arrived refugee who applies for refugee medical 
assistance soon after arrival and becomes employed within the first 30 
days in the U.S. subsequent to filing the RMA application, would not 
lose RMA eligibility.
    Section 400.102 is also amended to prohibit the consideration of 
any cash assistance payments received by a refugee in determining a 
refugee's eligibility for RMA.
    Section 400.102 is amended to remove references to the AFDC program 
which no longer apply due to changes in Medicaid eligibility 
determinations contained in PRWORA as described above.
    Section 400.103 (Coverage of refugees who spend down to State 
financial eligibility standards) is amended to clarify that all States 
must allow applicants of RMA who do not meet the financial eligibility 
standards elected in Sec. 400.101 to spend down to the elected 
standard.
    Section 400.104 (Continued coverage of recipients who receive 
increased earnings from employment) is amended to require refugees 
residing in the U.S. less than 8 months, who lose their eligibility for 
Medicaid because of earnings from employment, to be transferred to 
refugee medical assistance without an RMA eligibility determination. 
This amendment will allow refugees who lose Medicaid eligibility 
because they obtain early employment to maintain medical coverage under 
RMA during the remainder of their first 8 months in the U.S. The 
purpose of this amendment is to encourage early economic self-
sufficiency by ensuring that refugees receive continued medical 
assistance while employed and by ensuring that refugees are not 
discouraged from early employment by the potential loss of medical 
coverage.

Subpart I--Refugee Social Services

    Section 400.152(b) (Limitations on eligibility for services) is 
amended by adding citizenship and naturalization services to the 
services that are exempt from the 60-month limitation.
    Sections 400.154 (Employability services) is amended by adding 
assistance in obtaining employment authorization documents (EADs) as an 
allowable employability service under the social services and targeted 
assistance formula programs. This provision will allow States to use 
service funds to cover the cost of refugee provider staff time to help 
asylees or refugees obtain EADs. Social services and targeted 
assistance funds, however, may not be used to pay for the cost of EADs.
    Section 400.155 (Other services) is amended by adding citizenship 
and naturalization services as allowable services under the social 
services and targeted assistance formula programs. Citizenship and 
naturalization services may include such services as English language 
training and civics instruction to prepare refugees for citizenship, 
application assistance for adjustment to legal permanent resident 
status and citizenship status, assistance to disabled refugees in 
obtaining disability waivers from English and civics requirements for 
naturalization, and the provision of interpreter services for the 
citizenship interview, as needed.

Subpart J--Federal Funding

    Section 400.207 (Federal funding for administrative costs) is 
amended by clarifying that a State may claim reasonable and necessary 
administrative costs incurred by local resettlement agencies in the 
administration of a public/private RCA program.
    Section 400.210 (Time limits for obligating and expending funds and 
for filing State claims) is amended by revising Sec. 400.210(b)(2) to 
extend the due date for a State's final financial report of 
expenditures of social services and targeted assistance formula grants 
to no later than 90 days after the end of the two-year expenditure 
period. This section clarifies that States must expend their social 
services and targeted assistance funds no later than two years after 
the end of the Federal fiscal year in which the Department awarded the 
grant. Thus, under this revision, States must have expended social 
services and targeted assistance funds awarded to them in FY 1999, for 
example, by no later than September 30, 2001, and a State's final 
financial report must be received no later than December 31, 2001. If, 
at that time, a State's final financial report has not been received, 
the Department will deobligate any unexpended funds, including any 
unliquidated obligations, on the basis of a State's last submitted 
financial report.
    This revision is in response to requests from several States 
needing a full 2-year period to expend social services and targeted 
assistance funds from the end of the Federal fiscal year in which the 
funds are awarded.
    Section 211(a) (Methodology to be used to determine time-
eligibility of refugees) is amended to clarify that after making a 
determination of the RCA/RMA eligibility period as soon as possible 
after funds are appropriated for the refugee program, the Director will 
make redeterminations at subsequent points during the year only if a 
reduction in the eligibility period appears indicated.

Subpart K--Waivers and Withdrawals

    Section 400.301 (Withdrawal from the refugee program) is amended by 
removing the words ``only under extraordinary circumstances and'' in 
Sec. 400.301(b). This would allow the ORR Director greater discretion 
to approve cases in which a State wishes to retain responsibility for 
only part of the refugee program if it is in the best interest of the 
Government, without requiring extraordinary circumstances. For example, 
when a State with a small refugee population wishes to drop out of the 
refugee program, but is willing to retain responsibility for 
administering just the RMA program, it would be in the best interest of 
the Government to approve such an arrangement without other 
constraints.
    Section 400.301(c) is amended by clarifying that a replacement 
designee must adhere to the regulations regarding the targeted 
assistance formula program

[[Page 15419]]

under Subpart L if the State wishing to drop out of the refugee program 
authorizes the replacement designee appointed by the ORR Director to 
act as the State's agent in applying for and receiving targeted 
assistance funds.

Discussion of Comments Received

    We received one hundred and thirty-six letters of comments in 
response to the notice of proposed rulemaking published in the Federal 
Register on January 8, 1999. The commenters included State and local 
governments, national and local voluntary agencies, refugee mutual 
assistance organizations, refugee service providers, advocacy 
organizations, national unions, national government organizations, and 
national public policy organizations. We took these comments into 
consideration in the development of the final rule. We have summarized 
and responded to the comments below. Some of the comments addressed 
existing provisions of the regulations that were not included in the 
NPRM for change. While we have reviewed these comments as well, we have 
included a discussion of comments only on those provisions outside of 
the NPRM that we have decided to change as a result of the comments.

Comments on Subpart A--Introduction

Section 400.2
    Comment: Three commenters recommended defining TANF assistance as 
TANF cash assistance since there are other types of assistance which 
States may provide with TANF funds. One commenter recommended that the 
definition of TANF should include a reference to title IV-A of the 
Social Security Act.
    One commenter recommended that the final rule define the term 
``family unit'' to ensure consistency of interpretation for cash 
assistance payment cases. The issue of whether adult children are 
considered part of their parents' ``family unit'' or as separate family 
units or whether two unmarried adults living together are considered to 
be one or two family units needs clarification.
    One commenter suggested adding a definition of economic self-
sufficiency to Sec. 400.2. The commenter recommended defining economic 
self-sufficiency on the basis of total household income in relation to 
a percentage of the Federal poverty standard. The commenter felt that 
the measure of hours of work per week should be eliminated as a measure 
of self-sufficiency and that agency performance should not be evaluated 
on the basis of whether each refugee meets the hours of work per week 
standard.
    Response: The final rule includes the technical changes to the 
definition of TANF that were recommended by the commenters. We have 
included a definition of family unit as requested. We define a family 
unit as an individual adult, married individuals without children, or 
parents, or custodial relatives, with minor children who are not 
eligible for TANF. With respect to the question of whether two 
unmarried adults living together are considered to be one or two family 
units, we regard such a living arrangement to constitute two family 
units. We have also included a definition of economic self-sufficiency 
which we have defined as earning a total family income at a level that 
enables a family unit to support itself without receipt of a cash 
assistance grant. Regarding the elimination of hours worked per week as 
a measure of self-sufficiency, we view hours worked per week as a 
useful measure of employment, not self-sufficiency, which should not be 
eliminated. We require States and other major grantees to report client 
outcomes that include self-sufficiency (sufficient earnings to 
terminate cash assistance), which is the ultimate measure, and full-
time and part-time employment, which are interim measures leading to 
self-sufficiency. These measures are important in tracking refugee 
progress towards economic self-sufficiency.

Comments on Subpart B--Grants to States for Refugee Resettlement

Section 400.8
    Comment: One commenter asked for clarification on the relationship 
between the State Plan and amendments to the public/private RCA plan.
    Response: The public/private RCA plan, once it is reviewed and 
approved by ORR, becomes part of the larger State Plan that is required 
in Sec. 400.4 and replaces the existing RCA section of the State Plan. 
An amendment to the public/private RCA plan should be treated as an 
amendment to the State Plan.
Section 400.11
    Comment: One commenter felt this section should be amended to 
include a new subsection that provides for cash advances to 
resettlement agencies, through either the States or directly from ORR.
    Response: A State's contracting and grant-making rules govern 
whether cash advances may be provided to State contractors and 
grantees. This is an issue that local resettlement agencies should 
discuss with their State during the public/private RCA consultation. 
Federal rules would not apply since local resettlement agencies 
participating in the public/private RCA program would not be our direct 
grantees.
Section 400.13
    Comment: One commenter felt that the new rule will impose new 
limitations on RCA which will not allow States to claim most case 
management costs. The commenter expressed concern that the proposed 
limitations may be a precursor to future funding restrictions 
particularly regarding the administrative portion of the RCA 
allocation. The same commenter felt that the proposed case management 
rule would increase the burden on service providers to track each 
client by public assistance category.
    Two commenters requested clarification on what types of case 
management services are chargeable to CMA. One of the commenters asked 
whether administrative costs related to employment-related case 
management are chargeable to CMA. Another commenter requested 
confirmation that case management services related to ESL, VESL, skills 
training, and on-the-job training may be charged to CMA. Two commenters 
stated that activities such as job referral, job readiness instruction, 
assisted job search, job development and placement, and post-placement 
services appear to be case management functions under the proposed 
rule. One commenter asked whether 100% of staff time is billable to the 
CMA grant in cases where staff have multiple functions.
    Another commenter wondered what services funds are to be used for 
and whether administrative funds for service activities are to be added 
to services costs. One commenter suggested eliminating the requirement 
that administrative costs related to the provision of social services 
must be charged to the social services grant. The commenter felt that 
this requirement forces States to allocate social services funds to 
resettlement agencies that otherwise might not have received funding 
through a competitive social service grant process.
    One commenter requested the extension of case management as a 
chargeable expense to CMA to allow for 90 days of post-placement 
follow-up to ensure real self-sufficiency. Another commenter felt that 
there is a disparity between ORR's requirement to provide employment 
services to refugee TANF recipients and the lack of funding for case 
management of these services since

[[Page 15420]]

only case management costs targeted to RCA recipients may be chargeable 
as CMA administrative costs. The commenter complained that this places 
a State in a position where it may only provide case management as an 
employability service to TANF recipients as an unfunded option.
    One commenter requested that ORR provide parameters for the 
allocation of administrative costs and recommended that private 
agencies should have the same percentage of administrative overhead 
allowed in their contracts as States.
    Response: We have decided to withdraw the provision which would 
have allowed certain case management costs for RCA eligible recipients 
to be charged to CMA. The comments suggest to us that there exists a 
broad range of understanding regarding case management which could 
result in costs charged inappropriately to CMA and/or an inappropriate 
increase in administrative costs charged for tracking and allocating of 
those costs. Based on the comments, we were uncertain whether this 
provision would have resulted in sufficient benefit to refugees to 
justify the change. Therefore, we believe that further review and 
discussion is needed before case management costs can be charged to 
CMA. Thus, the provision at 45 CFR 400.13(d), which prohibits the 
charging of case management service costs to the CMA grant, remains 
unchanged.
    Regarding the commenter's concern about the administrative cost 
provision at Sec. 400.13(e), it is our view that whether private 
agencies should have the same percentage of administrative overhead 
allowed in their contracts as States is an issue that is up to the 
States to negotiate with their contractors in the refugee program.

Comments on Subpart C--General Administration

Section 400.23
    Comment: Two commenters felt that the RMA hearing process used 
should be the same as the process used in the State's Medicaid program. 
One of the commenters recommended that Sec. 400.23 should conform with 
Sec. 400.93(b) in existing regulations which requires that RMA hearings 
be the same as those required for Medicaid. One commenter recommended 
that each State should be allowed to specify in its State plan what 
hearing process it intends to use in an excepted RCA program. A State 
may prefer to use the Food Stamp/Medical Assistance fair hearing 
procedures in order to simplify procedures since an RCA recipient is 
likely to be a Food Stamp/Medical Assistance recipient but will not be 
a TANF recipient. One commenter questioned whether it was feasible for 
local resettlement agencies to use the same hearing procedures as are 
used in the TANF program. Another commenter felt that replicating the 
local district fair hearing process for one or more local contractors 
would not be cost-effective and would not make administrative sense. 
The commenter felt that the State would have to insist that RCA hearing 
procedures be consistent with TANF and general assistance hearing 
procedures and that small contractors would not have the resources to 
implement such a hearing process. The commenter felt that the proposed 
rule may already contain the flexibility to allow for private agencies 
to use the public process.
    Response: In keeping with commenters' suggestions, we have revised 
this section by removing reference to the RMA program since 
Sec. 400.93(b) requires the RMA hearing process to conform with the 
State's Medicaid program, and we have revised Sec. 400.54(b) to require 
a State to specify in its State plan what hearing process it intends to 
use in a publicly-administered RCA program. In regard to whether it is 
feasible for local resettlement agencies operating a public/private RCA 
program to refer hearing requests to the State hearing process used in 
the TANF program or some other public agency hearing process, yes it is 
feasible as long as the State agrees to such an arrangement. There is 
no restriction in this rule that prohibits States from designing 
public/private RCA programs that utilize public agency hearing 
procedures such as the TANF hearing procedure.
    We have revised this section to make clear that the public 
assistance hearing procedures at 45 CFR 205.10(a) continue to apply to 
all assistance and services provided under the refugee program, unless 
otherwise specified by regulations in this part. For example, in the 
determination of eligibility for RMA in accordance with Sec. 400.93(b), 
the State must use the Medicaid fair hearing procedures. In providing 
RCA, the final rule at Sec. 400.54(b) specifies that States must 
describe the public agency hearing procedures they intend to use in the 
RCA program. All RCA hearings must comport with the constitutional 
requirements of Goldberg v. Kelly, 397 U.S. 254 (1970). See the Comment 
and Response section at Sec. 400.83 for further discussion of the 
hearing requirements for adverse RCA determinations.
Section 400.27
    Comment: One commenter recommended adding the words ``or by a 
voluntary resettlement agency to a State'' in Sec. 400.27(b) to enable 
a State that has established a public/private RCA program to monitor 
the provision of cash assistance provided by a local resettlement 
agency without individual client signed consent.
    Response: We have amended this section to incorporate the 
commenter's suggestion.

Comments on Subpart D--Immigration Status and Identification of 
Refugees

Section 400.43
    Comment: One commenter complained that the NPRM does not remedy the 
inequitable treatment of asylees. Current policy provides 8 months of 
RCA/RMA eligibility to asylees from their date of arrival in the U.S., 
the same as refugees. However, since it may take up to 6 months or more 
for an asylum applicant to be granted asylum, the actual period of RCA/
RMA eligibility that is available for asylees is usually 2 months or 
less. The commenter recommended amending the regulations to allow 
asylees RCA/RMA eligibility for 8 months from the date that asylum is 
granted as opposed to 8 months from the date of arrival. Another 
commenter pointed out that the current regulation and the proposed rule 
do not describe how and when asylees may access Federal benefits and 
recommended that the final rule address this serious omission.
    Response: ORR's policy on asylee eligibility for refugee program 
assistance, issued in a policy notice in 1982, defines the time-
eligibility of an asylee as beginning with the first month in which an 
asylee has entered the United States, in accordance with sections 
412(d)(2)(A) and 412(e)(1) of the Immigration and Nationality Act. Thus 
asylees, like refugees, are eligible for RCA and RMA during their first 
8 months in the U.S. and are eligible for social services during their 
first 5 years in the U.S. We recognize that as a result of the time it 
takes for an asylum applicant to be granted asylum, an asylee often has 
few months of eligibility remaining for RCA and RMA. We will examine 
this issue further to determine from a policy and operational 
perspective whether the existing policy may be modified.

Comments on Subpart E--Refugee Cash and Medical Assistance

Section 400.50 (Sec. 400.51 in the NPRM)
    Comment: One commenter recommended that the definitions of

[[Page 15421]]

filing unit and household in Sec. 400.51 of existing regulations be 
retained and that States be required to define the members of the 
filing unit in their State.
    Another commenter pointed out that by removing references to AFDC 
requirements in this section, the proposed rule omits key client 
protections which should not be omitted, such as requirements that 
applications must be processed promptly, that applicants must be 
informed of their rights and responsibilities, and that once an 
individual has been found eligible, he or she remains eligible until 
determined ineligible. The commenter also recommended that the 
regulations should retain the requirement that benefits be provided to 
all eligible persons. The commenter stated that this section should 
specify that notice to an RCA applicant that cash assistance has been 
authorized or denied must include an explanation of the reasons for the 
decisions and of the right to request a hearing to appeal the decision. 
The commenter felt that this is an essential element of due process and 
must be addressed.
    Another commenter recommended that if an RCA recipient is notified 
of termination because of time-ineligibility, the local resettlement 
agency must be required to ensure that the recipient is assisted in 
applying to the appropriate State agency for other cash assistance 
programs and that the State must be required to determine eligibility 
for TANF and general assistance.
    Response: Since we have included a definition of ``family unit'' in 
Sec. 400.2, we do not see the need to retain the terms ``filing unit'' 
or ``household''.
    We have amended this section to include the requirement that 
eligibility must be determined as promptly as possible within no more 
than 30 days from the date of application and that applicants must be 
informed of their rights and responsibilities. In regard to the comment 
that a notice to an RCA applicant indicating authorization or denial of 
cash assistance must include an explanation of the reasons for the 
decisions and of the right to request a hearing to appeal the decision, 
we have added a new Sec. 400.54(a) which includes this information. It 
should be noted that these notices must be translated into appropriate 
languages as required by Sec. 400.55. Section 400.54(a) includes a 
requirement that a State or its designee, such as local resettlement 
agencies, must review the case of an RCA recipient who is terminated 
because of time-ineligibility to determine possible eligibility for 
TANF or GA. We believe that the regulation implicitly requires that all 
eligible persons will receive RCA until they are no longer eligible. 
See, e.g., Sec. 400.60(a).
Section 400.51 (Sec. 400.52 in the NPRM)
    Comment: Four commenters recommended adding a provision to this 
section that would allow refugee families to receive RCA until 
eligibility for TANF is determined. One of the commenters also 
recommended requiring States to reimburse local resettlement agencies 
for the amount of RCA provided during the period of TANF eligibility 
determination. The same commenter recommended that local resettlement 
agencies should be required to ensure that potentially eligible 
refugees are assisted in applying in a timely manner for TANF and SSI. 
Another commenter asked for clarification on the process to be used to 
determine TANF eligibility through the State public assistance offices 
prior to accessing RCA. Another commenter requested clarification on 
whether refugees may be determined ineligible for TANF without 
necessarily being processed through the States' public assistance 
offices.
    Four commenters expressed concern that refugees under the public/
private RCA program will be less likely to access other support and 
benefit programs. Three commenters recommended adding a provision that 
would require local resettlement agencies to refer refugees to 
Medicaid, RMA, or Food Stamps so that RCA applicants would be informed 
of their rights to other government benefits and services. Two 
commenters suggested that ORR address the benefits of co-location of 
State and private eligibility staff. One commenter felt that one of the 
outcome measures that must be used for the public/private RCA program 
is the percentage of refugees that are referred to and receive RMA and 
Medicaid.
    Response: While we allow refugees to receive RCA until eligibility 
for SSI is determined because the time frame between application and 
receipt of the first SSI payment is frequently long, we do not see a 
compelling reason to allow the same coverage for refugee families who 
are waiting for TANF eligibility to be determined. We have not received 
reports of refugee TANF applicants having to wait a significantly 
longer period of time for eligibility determination than RCA 
applicants.
    Regarding eligibility determination for other cash assistance 
programs, Sec. 400.50 (Sec. 400.51 in the NPRM) includes a requirement 
that States and their designee agencies must refer refugees or other 
cash assistance programs for eligibility determinations. We have 
amended this provision to indicate that such referrals must be made 
promptly. In designing a public/private RCA program, it is the 
responsibility of States to develop a procedure that ensures that 
refugees are properly referred to other benefit programs, in accordance 
with Sec. 400.50(c) (Sec. 400.51(b) in the NPRM). We believe that 
States, in consultation with local agencies, will adequately address 
how to ensure that refugees are able to access other public benefit 
programs for which they may be eligible. The ORR Matching Grant Program 
has been operated for many years by voluntary agencies and referral to 
other programs has not been an issue for refugees.
    We support the co-location of State and private eligibility staff 
and encourage States to consider this arrangement in their public/
private RCA program. Some of our programs, particularly the Wilson/Fish 
alternative programs, have very effectively co-located public 
eligibility workers at refugee provider agencies to ensure that refugee 
eligibility for other cash assistance programs and other benefits is 
determined in a timely manner.
    In regard to tracking the percentage of refugees that are referred 
to and receive RMA and Medicaid as an outcome measure, we already have 
a system for tracking the number of refugees who access RMA. States are 
required to report the number of RMA recipients to ORR on a quarterly 
basis. Since Medicaid is not under the jurisdiction of the refugee 
program and we no longer reimburse States for refugee Medicaid costs, 
we do not require States to report on refugee Medicaid use. ORR's 
annual national refugee telephone survey, however, provides data on the 
percentage of refugees in the household survey who report receiving 
Medicaid. The annual survey includes telephone interviews with a large 
sample of refugee households that have been in the U.S. 5 years or 
less.
Section 400.52 (Sec. 400.53 in the NPRM)
    Comment: One commenter expressed concern that, in the absence of 
any other prompt processing requirement, this provision seems to 
suggest that a State or agency only is required to process applications 
as quickly as possible if there is a determination of urgent need. The 
commenter felt that a general requirement for processing all 
applications promptly should be added.
    Response: We have added language regarding prompt eligibility 
determinations to Sec. 400.50 (Sec. 400.51 in the NPRM).

[[Page 15422]]

Section 400.53 (Sec. 400.54 in the NPRM)
    Comment: Three commenters noted that the proposed rule would 
eliminate the existing eligibility exception for full-time students in 
the current regulations which allows RCA eligibility for full-time 
students in higher education if such enrollment is approved by the 
State, or its designee, as part of an individual employability plan for 
a refugee. The commenters stated that RCA recipients with professional 
skills can benefit from full-time enrollment in higher education to 
obtain certification to practice their profession in the U.S. The 
commenters recommended restoration of this eligibility exception.
    Another commenter expressed concern that by restricting eligibility 
for RCA to refugees who are ineligible for TANF, SSI, OAA, AB, and 
APTD, all newly arrived refugees will not be able to benefit from the 
refugee-specific transitional assistance to be provided through the new 
public/private RCA program. The commenter recommended deleting this 
subsection.
    Response: Section 412(e)(2)(B) of the INA prohibits refugees who 
are full-time students in institutions of higher education from 
receiving cash assistance. The refugee program emphasizes early 
employment by requiring refugees to become employed and self-sufficient 
within 8 months. We do think it's consistent with ORR's program goal 
for an RCA recipient to become employed and then enroll in a 
professional refresher training or recertification program at refugee 
program expense as allowed under Sec. 400.81.
    It is not possible to include TANF-eligible and SSI-eligible newly 
arrived refugees in the public/private RCA program because the costs 
would far exceed ORR's level of appropriated funding.
Section 400.55 in the NPRM
    Comment: Two commenters noted that the proposed rule concerning 
eligibility redeterminations in States with TANF residency requirements 
inaccurately assumes that these residency requirements may legitimately 
be applied to refugees. One commenter pointed out that Congress, in 
enacting the welfare reform law, did not intend for the durational 
residency requirements to apply to newly arrived refugees from 
overseas, only to interstate migrants. The purpose was to prevent 
secondary migration across States and was not intended to preclude 
newly arrived refugees from accessing TANF benefits. One commenter 
recommended amending this section to state that the statutory authority 
for States to impose residency requirements does not preclude TANF 
eligibility for arriving refugees.
    Response: While it may not have been Congress' intent to apply 
residency requirements to newly arrived refugees from overseas, there 
were a few States that, under State law, were applying the State's TANF 
residency requirement to newly arrived refugees, thereby denying TANF 
eligibility to these refugees and placing them on RCA for the 8-month 
RCA eligibility period. With the recent Supreme Court ruling in Saenz 
v. Roe, 119 S. Ct. 1518 (May 17, 1999), which makes the application of 
residency requirements to any TANF applicant who moves into a State 
unconstitutional, States must change their laws and practices. Given 
this ruling, we are removing this requirement.
Section 400.55 (Sec. 400.63 in the NPRM)
    Comments: Three commenters objected that the proposed requirement 
to provide agency policy materials to refugees in both English and 
their native language would be a significant burden that would be cost 
prohibitive. One commenter suggested that States be given an option to 
provide a notice in English and provide a verbal translation of the 
notice to refugees. Another commenter recommended amending this 
provision to indicate that local contracts should demonstrate 
reasonable and practical methods to assist clients to understand agency 
policies in their own languages. In contrast, one commenter recommended 
that the required list of written policies in this section should be 
more comprehensive to include good cause criteria, procedures for an 
appeal of an adverse determination, including appeal procedures outside 
of the resettlement agency. The commenter went on to recommend that the 
resettlement agencies should provide written notice in the refugee's 
native language of the availability of the more detailed written 
policies. Two commenters recommended that the final rule clarify that 
the local resettlement agencies are the entities that should provide 
written translated policies and procedures to individual refugees, not 
the State. Two commenters indicated that local resettlement agencies 
would need to be given administrative funds to pay for a lot of 
translators to translate agency policies and procedures into refugee 
languages.
    Response: By law, entities receiving federal financial assistance 
have an obligation to ensure that limited-English speaking people have 
meaningful access to their services. Section 601 of title VI of the 
Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. states that ``[n]o 
person in the United States shall, on the ground of race, color or 
national origin, be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination under any program or 
activity receiving Federal financial assistance.'' Language barriers 
experienced by persons with limited English proficiency can result in 
exclusions, delays or denials that may constitute discrimination on the 
basis of national origin, in violation of title VI. Department of 
Justice (DOJ) regulations at 28 CFR 42.405(d)(1) address the 
circumstances in which agencies that administer Federal financial 
assistance must make available language assistance, in written form, to 
persons with limited English proficiency. Based on this DOJ provision, 
we are requiring States or the agency(s) responsible for the provision 
of RCA, to ensure that reasonable steps are taken to provide written 
information in appropriate languages where a significant number or 
proportion of the population eligible to be served needs information in 
a particular language. Although this principle has never been expressly 
stated in ORR regulations, it is a restatement of current obligations 
under title VI and would apply in the RCA program, regardless of 
whether the RCA program is a public/private program or a program that 
mirrors the TANF program. Therefore we are moving this provision from 
the public/private RCA section of the regulations to the general RCA 
section and redesignating the section as Sec. 400.55.
    It is essential that States and/or local resettlement agencies 
ensure that every RCA recipient understands any and all policies that 
will have an effect on a recipient's cash assistance payment. This 
requirement includes all notices to refugees regarding eligibility, 
payment adjustments, or terminations. Regarding refugee language groups 
that constitute a small number or proportion of the RCA recipient 
population served, the State or the agency(s) responsible for the 
provision of RCA is not required to provide written information in the 
native language of the refugee ethnic group. However, States and/or 
local resettlement agencies must use an alternative method to 
effectively communicate agency policies to a limited English-speaking 
recipient such as the use of a verbal translation in the refugee's 
native language, to ensure that the content of the agency's policies is 
effectively communicated to each refugee. We do not have a particular

[[Page 15423]]

position on whether local resettlement agencies or the State should 
produce the written translated policies for recipients in the public/
private RCA program. This issue should be worked out in the development 
of the public/private RCA plan. The preparation of written RCA policies 
in refugee languages and the use of interpreter/translators to explain 
agency RCA policy may be charged as an administrative cost to a State's 
CMA grant.
Section 400.56(a)
    Comment: Twenty-nine commenters wrote in support of the public/
private RCA program, 10 commenters stated they could not fully endorse 
the new program as proposed, and 70 commenters opposed the new program. 
Of the commenters who supported the program, 8 commenters supported the 
separation of RCA from the TANF program, while 17 commenters endorsed 
the flexibility that the new program would allow. Four commenters 
expressed support for strengthening a public/private partnership, while 
two commenters felt that the new program would firmly unite States and 
resettlement agencies into a partnership that will best utilize their 
respective strengths. Of those commenters who indicated they could not 
fully endorse the new program, two commenters stated that unless 
important components regarding resettlement agency capacity, 
flexibility, and legal protections from liability are put into place, 
they had serious doubts about the new program's likelihood of success. 
Of the commenters who opposed the establishment of the public/private 
RCA program, 49 commenters felt that the existing program has already 
demonstrated a high rate of success in achieving self-sufficiency and 
questioned the need to change the existing program. Seven commenters 
felt that the new program would not be in the best interests of 
refugees and would not benefit refugees.
    Five commenters felt that the administration of RCA by private 
agencies should be an option, not a mandate. One commenter recommended 
letting States develop their own program design instead of mandating a 
certain approach.
    Three commenters expressed concern that the addition of cash 
assistance administration to the responsibilities of local resettlement 
agencies would not necessarily result in greater self-sufficiency 
outcomes for clients who only have 8 months of assistance. One 
commenter expressed concern that the distribution of cash assistance 
would place an increased burden on the agency's administrative and 
accounting staff and would detract from the agency's primary focus of 
preparing clients for early employment. Two commenters were concerned 
that the establishment of the new program would result in trading a 
known system for an unknown and untried system. Two commenters had 
concerns about the additional burden on local resettlement agencies 
that developing a new program for a small portion of clients will 
create, while another commenter expressed concern about the additional 
burden the new program will place on States.
    One commenter expressed the opinion that the public/private program 
as outlined in the NPRM is not practical if a State has a minimal 
number of refugees receiving RCA and/or those refugees are 
geographically dispersed across the State making implementation of a 
public/private partnership inefficient and costly.
    Nineteen commenters made the point that the proposed RCA program 
would only benefit a small portion of the refugee arrival population 
and recommended that the public/private program should be offered to 
all newly arriving refugees, particularly TANF-eligible refugee 
families, if possible. Five commenters expressed concern about the 
inequity of refugees under the new RCA program being treated better 
than refugee families with minor children under TANF. Three commenters 
recommended that ORR pursue alternatives to TANF for families with 
minor children. One of the commenters proposed shifting funds from TANF 
funding to create a unified refugee resettlement program that includes 
TANF-type refugee families. Since the proposed rule specified that a 
family that becomes ineligible for Medicaid may be transferred to RMA, 
one commenter asked why the ORR regulations could not also specify that 
families with minor children, who terminate TANF because they are 
unable to meet the conditions of eligibility, may be transferred to 
RCA.
    Eight commenters objected to restricting participation in the 
public/private RCA program only to local resettlement agencies. One 
commenter suggested that it would be more judicious, before mandating a 
specific type of agency, if ORR tested the capabilities of local 
resettlement agencies in handling the public/private program through a 
pilot. A second commenter felt that it was inconceivable to propose 
that States contract out several hundreds of million dollars annually 
in Federal funds without a required procedure to consider whether local 
resettlement agencies have the capacity to administer and deliver cash 
assistance and services before the program is initiated. Another 
commenter expressed concern that by limiting who the State may contract 
with, ORR's proposed rule represents a step back from the flexibility 
provided to States through welfare reform. The commenter felt that ORR 
regulations should allow flexibility that is equal to, or greater than, 
the flexibility allowed in TANF regulations. One commenter expressed 
concern that the new RCA program will require States to contract with 
agencies limited in experience in providing income maintenance.
    Six commenters recommended that opportunity be given to refugee 
mutual assistance associations and other community-based organizations, 
in addition to local resettlement agencies, to administer the RCA 
program. Two of these commenters felt that the NPRM reflected 
unfairness to MAAs. Two commenters recommended amending this section to 
allow the greatest flexibility in program design by allowing public/
private RCA partnerships with ``local resettlement agencies or other 
private non-profit partners providing refugee-specific services.''
    Thirty-two commenters expressed concern that the new RCA program 
will increase administrative costs and questioned the cost-
effectiveness of the proposed program. Of these, 12 commenters were 
particularly concerned about the level of administrative costs needed 
to implement the new program, in light of the relatively small number 
of refugees to be served. Five commenters felt that contracting with 
local resettlement agencies to administer RCA would cost considerably 
more than the existing State system. Three commenters predicted that 
there would be no savings in State agency costs that could be used to 
offset resettlement agency costs because there would be no reduction in 
State agency staffing or State responsibilities such as RMA 
administration, confirmation of TANF ineligibility, and notification of 
ineligibility to refugee clients and resettlement agencies. One 
commenter expressed concern about the risks in managing the funding 
level for the new RCA program if local resettlement agencies overspend 
RCA or have other difficulties in meeting a budget.
    Four commenters expressed the opinion that increased levels of 
administrative costs will not result in improved employment outcomes. 
Two commenters expressed concern that replicating existing systems for 
the

[[Page 15424]]

provision of cash assistance with each agency will duplicate 
bureaucracy and multiply costs beyond reason. One commenter complained 
that the private eligibility determination and case management 
functions would duplicate responsibilities remaining with the State 
agency and would substantially increase costs. Another commenter stated 
that ORR should not force a more costly program on States.
    One commenter felt that although the new program will result in 
additional costs initially, the new program, over time, will not cost 
more than the current program.
    Five commenters raised questions about funding for the 
administrative costs of the new RCA program. Of these, one commenter 
asked how a State is to know how much is available for administrative 
costs. Another commenter asked if discretionary grant funds will be 
made available to States to cover private agency administrative costs. 
Another commenter asked if additional funding would be added to social 
service formula allocations to States to fund RCA administration. One 
commenter asked ORR to clarify its intent to cover administrative costs 
in the out years of the program, after initial start-up. The commenter 
felt that the NPRM was unclear about a State's responsibility for 
administrative costs.
    Twelve commenters expressed concern that an increase in 
administrative costs to operate the new RCA program could force a 
reduction in the RCA eligibility period.
    Twelve commenters felt that the due date for implementation of the 
new public/private RCA program of one year after publication of the 
final rule is unrealistic. The commenters indicated that many States 
may need more than 6 months after an RCA plan has been submitted to 
implement the plan to allow adequate time to negotiate contracts with 
participating agencies and to develop written policy. One commenter 
stated that it would take a year to simply amend administrative rules 
to accommodate the new program. Two commenters recommended an 18-month 
deadline with at least 12 of those months devoted to implementation. 
One commenter suggested having the implementation date coincide with 
the beginning of a fiscal year even if this extends the deadline beyond 
one year. Three commenters recommended requiring States to include a 
proposed implementation date in their public/private RCA plans, rather 
than setting a national due date. Three commenters supported an 
implementation date of October 1, 2000, or one year after the 
publication of the final rule and felt that the date for implementation 
should not be extended. One commenter recommended that more than 6 
months within that one-year time frame be devoted to planning and 
consultation and less time for implementation, if necessary.
    Response: We have given these comments, as well as the comments 
that appear in response to other sections of the proposed rule, a great 
deal of thought and have concluded, given the wide variance of views on 
the public/private RCA program, that it would be in the best interests 
of refugees and the refugee program to offer the public/private RCA 
program as an option, not as a requirement, to States. We found 
particularly compelling the argument from many commenters that the 
program in its current form has been very successful in helping 
refugees to achieve self-sufficiency and should not be changed. Equally 
compelling were the concerns expressed by a number of local 
resettlement agencies about the increased administrative burden of 
managing a cash assistance program and adhering to client protection 
and due process requirements, as well as concerns about having legal 
protection from liability. Also persuasive were commenters' concerns 
that the increased costs of administering the new program might not 
improve results for refugees.
    The totality of comments gave us the view that the public/private 
RCA program would be eagerly pursued in some States as the right 
approach for the circumstances in those States, while in other States, 
such an approach would not necessarily result in the best program for 
newly arriving refugees and, therefore, would not be welcomed in those 
States.
    Although we have not changed our belief that this is an opportune 
time to remove the refugee program from the public welfare system and 
move it towards a greater public/private partnership, we have no 
interest in forcing a public/private approach upon reluctant 
participants. Instead our principal goal is to provide greater 
flexibility to the program and its participants. Therefore, as this 
final rule describes, instead of requiring States to establish a 
public/private RCA program, we have decided to offer States the option 
of choosing this approach if they believe such an approach will work in 
their State. States that choose to pursue this option in concert with 
local resettlement agencies in their State must follow the regulations 
that specifically apply to the public/private RCA program in 
Secs. 400.56, 400.57, 400.58, 400.59, 400.60, 400.61, 400.62, and 
400.63.
    In regard to the comments on expanding the public/private RCA 
program to include TANF-eligible families, while it would be ideal to 
place all newly arriving refugees in a special resettlement program for 
an initial period, it is not financially feasible to do so within the 
refugee program's appropriation level. The program's appropriation 
level has not been sufficient to reimburse States for the costs of 
refugee AFDC recipient costs since FY 1991. Regarding the 
recommendation to shift TANF funds to create a unified refugee program 
that includes TANF-type refugees, given the block grant nature of TANF 
funding, any decision to use TANF funds in the refugee program in ways 
that are consistent with a TANF purpose would rest with States.
    With respect to limiting participation in the public/private RCA 
program only to local resettlement agencies, we have designated the 
same agencies that are responsible for the initial resettlement of 
refugees under the R & P program to maintain a continuity of assistance 
for newly arriving refugees. Many of these agencies have an experienced 
record of providing cash assistance to refugees through the Matching 
Grant program and, to a lesser extent, through the Wilson/Fish 
alternative program. Those refugee community-based organizations, 
including mutual assistance associations, who have a subcontract with a 
national voluntary agency to provide R & P services and meet the 
definition of a local resettlement agency at Sec. 400.2 may participate 
in the public private refugee cash assistance program. These agencies 
would have had similar experience in administering cash assistance and 
would offer the continuity of assistance we are seeking.
    In regard to comments about funding, discretionary funds will not 
be made available to States to cover private agency administrative 
costs. As described in Sec. 400.13(e), a State may charge local 
resettlement agencies' administrative costs related to providing cash 
assistance to a State's CMA (cash, medical, and administrative) grant. 
With regard to how a State knows how much is available for 
administrative costs, States are not given a set amount or ceiling for 
administrative costs. In accordance with Sec. 400.207, States may 
submit claims for reasonable and necessary identifiable administrative 
costs to ORR, using ORR's cost allocation guidelines. Since the refugee 
program began, States have been reimbursed 100% for their 
administrative claims.

[[Page 15425]]

    The administrative costs of managing the services component of the 
public/private RCA program, regardless of the type of agency, must be 
charged to a State's formula social services grant. In response to 
another comment, ORR intends to make discretionary funds available 
during the initial years of start-up to help States pay for services to 
refugees in the public/private RCA program, particularly if a State's 
program design plans for a different group of agencies to provide 
services to public/private RCA recipients than the State's regular 
social service providers. A State may use a portion of these additional 
social service funds for social service administrative costs, but not 
for RCA administrative costs.
    Regarding the coverage of administrative costs for the public/
private program after the initial start-up years, States may continue 
to charge the public/private program's RCA administrative costs to CMA, 
while the public/private program's social service administrative costs 
may be paid for with a State's formula social services funds, just as 
the social service administrative costs of a State's regular social 
service program are paid for with formula social services funds, in 
accordance with Sec. 400.206. With regard to concerns about a reduction 
in the RCA eligibility period as a result of an increase in costs to 
operate the public/private RCA program, ORR's first priority is to 
maintain the current RCA eligibility period.
    Regarding the deadline for implementation of a public/private RCA 
program, we agree with the suggestion to allow States to include a 
proposed implementation date in their public/private RCA plans, and 
have added such a provision to the public/private RCA plan at 
Sec. 400.58(a)(14). A State's proposed implementation date, however, 
may not be any later than 24 months after the date of publication of 
the final rule.
Section 400.56(b)
    Comment: Four commenters expressed the need to have the flexibility 
to arrange consortia of providers in order to provide cash assistance 
and services to refugee clients of agencies too small to enter into 
direct contracts. These commenters pointed out that without achieving 
economies of scale through collaboration, States will not be able to 
enter into contracts at a reasonable administrative cost. The 
commenters also felt that if a State and the resettlement agencies 
handling the majority of resettlement in an area are able to arrive at 
a consensus which provides services to all refugees in the area, they 
must be able to proceed even if a minor agency is not willing or able 
to join the consortium.
    Four commenters were concerned that States may, in the interest of 
administrative expediency, strive for uniformity in local program 
design and unintentionally undermine private sector diversity by 
excluding the smaller church-based agencies. Six commenters expressed 
concern that States will choose a lead agency or limit the number of 
resettlement agencies to contract with in order to limit the 
administrative burden of administering multiple contracts. These 
commenters recommended the inclusion of safeguards to prevent any 
interested resettlement agency from being excluded from full 
participation in the public/private RCA program.
    One commenter recommended adding language to the final rule that 
would exempt States from Federal competitive procurement requirements 
when a lead agency is agreed upon through the planning process. Another 
commenter suggested expanding the language to allow States to contract 
with or make grants to local resettlement agencies since the ability in 
some States to make a grant to a non-profit is easier than contracting 
with a non-profit.
    Fourteen commenters expressed concern about cash flow problems that 
many local resettlement agencies would experience if they are under 
contract to administer the new RCA program without cash advances. 
Several of the commenters pointed out that States generally use cost 
reimbursement contracts and do not provide cash advances. The lack of 
cash up front would pose a serious operating problem for most 
resettlement agencies. Eight commenters requested that ORR include a 
provision in the final rule that would provide advance funding to local 
resettlement agencies either through the States or directly from ORR. 
One commenter pointed out that it will be essential for ORR to permit 
the obligation of CMA to pay for the issuance of cash assistance checks 
to refugees in the early months of each fiscal year until the first 
quarter CMA award is made to States.
    One commenter asked whether the final rule will require local 
resettlement agencies to notify the State of refugees who have become 
recipients of RCA, in order to reduce the risk of State offices 
enrolling these refugees in some other cash assistance program such as 
General Assistance or SSI.
    Response: We have no objections to States arranging consortia of 
providers to provide cash assistance and services to RCA recipients in 
order to achieve greater cost-effectiveness. While we strongly 
encourage States that are planning to establish a public/private RCA 
program to consider including all local resettlement agencies that are 
interested in participating in the new program, we also believe that 
States must take financial and administrative considerations into 
account, as well as the capability of each agency, when making 
contracting decisions. Regarding whether a State and the local 
resettlement agencies handling the majority of resettlement in an area 
may proceed with a public/private program when a smaller agency is not 
willing or able to participate, this is a decision which the State may 
make. While we require consultation with all local resettlement 
agencies as well as other refugee providers in the planning of the 
public/private RCA program, final decision-making is in the purview of 
the State. However, all eligible refugees must have RCA available to 
them. We expect that where a local resettlement agency cannot or does 
not wish to participate and the State and other local resettlement 
agencies decide to implement a public/private RCA program, that 
appropriate provisions for referral and access to RCA will be made for 
the refugees who are resettled by the non-participating agency. The 
Director of ORR may also elect to implement the placement authority 
provided by the Refugee Act, should it appear necessary.
    We have amended the language in this section to allow States to 
make grants, as well as contracts, to local resettlement agencies as 
one commenter recommended. In regard to exemption from Federal 
competitive procurement requirements, the regulations at 45 CFR Part 74 
that require open and free competition would not be applicable to the 
public/private RCA program since our regulations require States that 
choose to establish a public/private RCA program to enter into 
contracts or grants with local resettlement agencies or a lead 
resettlement agency.
    With the exception of a portion of the first quarter of each fiscal 
year, ORR currently provides advance CMA funding to States through 
quarterly CMA allocations at the beginning of each quarter to cover 
anticipated costs in that quarter. We cannot provide advance funding 
directly to local resettlement agencies that participate in the public/
private RCA program because they are not our direct grantees; they are 
the State's grantees or contractors. Therefore, whether cash advances 
may be provided to local resettlement agencies is a State contracting 
or grant matter to resolve. Regarding obligation of CMA funds in the 
early months of the

[[Page 15426]]

fiscal year, we now have a way to permit States to obligate CMA funds 
early in each fiscal year to cover the costs of cash assistance 
payments to refugees in the public/private RCA program. The President's 
FY 2000 budget request to Congress included multi-year spending 
authority for the refugee program to allow funds appropriated in FY 
1998 and FY 1999 to be available through FY 2001. Congress granted ORR 
this spending authority in its FY 2000 appropriation which will allow 
funds to pay for RCA costs in the early months of the new fiscal year.
    Regarding whether local resettlement agencies will be required to 
notify States of refugees who have become recipients of RCA, States 
will have to require local resettlement agencies to provide them with 
timely information on RCA recipients since States are required to 
report RCA recipient numbers to ORR on a quarterly basis. We assume 
that each State that enters into a public/private RCA program will 
require in their contracts that local resettlement agencies must 
provide them with information on who is receiving RCA. States will need 
this information to monitor time-eligibility and duplication of 
assistance as well as to carry out their responsibilities under 
Sec. 400.49. We do not believe this issue needs to be addressed further 
in our regulations.
Section 400.56(c)
    Comment: Five commenters expressed concern that local resettlement 
agencies will not have the capacity to provide adequate statewide 
coverage and protection to new arrivals. These commenters predicted 
that the geographic dispersion of refugees in their States would result 
in refugees who reside in remote pockets of a State having difficulty 
accessing assistance and services. Another commenter was concerned that 
if an area of the State chooses to opt out of the new RCA program, this 
situation could be inequitable for refugees since the flexibility and 
incentives provided to refugees in the parts of the State where the 
public/private RCA program is operating may not exist in the sections 
of the State where a publicly-administered RCA program is operating. 
One commenter felt that a State must have complete discretion to choose 
those areas of the State in which a public/private program may be 
implemented and should not be bound by a need to reach agreement on 
this issue with a small local resettlement agency.
    Response: Concerns about reaching refugees who reside in remote 
pockets within a State can be addressed by either choosing to provide 
RCA through the State welfare system in remote parts of the State and 
through a public/private RCA program in the populated areas of the 
State or by deciding that a public/private RCA program may not be 
appropriate for the State if the refugee population is small and is 
dispersed throughout the State. If a State is concerned about 
inequities between incentives that a refugee receives through the 
State's public/private RCA program and what a refugee receives through 
a TANF-type RCA program elsewhere in the State, the State has the 
latitude to minimize inequities through its program design of the 
public/private program. States, after consultations, do have the 
discretion to choose the areas of their State where they wish to 
implement a public/private program and whether they still wish to 
establish a public/private program.
Section 400.56(d)
    Comment: Six commenters expressed the view that the eligibility 
determination function is an essential function of government that must 
be performed by public sector employees in order to ensure fair, 
unbiased and impartial eligibility determinations. Two commenters 
argued that the determination of eligibility by public sector employees 
avoids conflicts of interest such as potential cost or contract savings 
that may affect decision-making by private agencies. Two commenters 
stated that the proposed rule inappropriately empowers private 
organizations with decision-making and policy-setting authority for 
Federal funding for which States are ultimately responsible. Another 
commenter recommended that ORR amend this provision from ``must be 
responsible for determining eligibility * * *'' to ``may be responsible 
for determining eligibility * * *'' to allow more flexibility for an 
alternative division of tasks between the resettlement agencies and the 
States. One commenter recommended that States and local resettlement 
agencies should have the flexibility to allow eligibility determination 
by either party.
    Eleven commenters expressed concerns about liability. The 
commenters pointed out that local resettlement agencies administering 
cash assistance could be sued by a refugee who disagrees with a 
decision. Even if an agency is proven to be right, the cost of staff 
time and legal fees would be very high. These commenters requested that 
the final rule include a provision to indemnify local agencies in 
disputes. One commenter asked for clarity on what responsibility local 
resettlement agencies would have for repaying ORR for unallowable 
expenses or for payments made to a refugee in error.
    Response: Section 412(e)(1) of the INA (8 U.S.C. 1522(e)(1)) 
expressly authorizes private non-profit agencies to provide cash and 
medical assistance to newly arrived refugees. Public sector employees 
therefore are not required by law to make RCA eligibility 
determinations. Furthermore, ORR has implemented 13 projects under the 
Wilson/Fish authority where the eligibility determination function has 
been successfully performed by private sector agencies. We have, 
however, changed the language by replacing the word ``must'' with the 
word ``may'' in the sentence: ``Local resettlement agencies may be 
responsible for determining eligibility, and authorizing and providing 
payments to eligible refugees.'' We have made this change to provide as 
much flexibility to States as possible in deciding which of the fiscal 
and eligibility functions of the RCA program the State wishes to assign 
to the local resettlement agencies and which of these functions the 
State wishes to retain.
    Regarding the appropriateness of giving private organizations 
decision-making authority over Federally-funded programs for which 
States are responsible, we are aware of no legal barrier to the kind of 
public/private partnership that is described in this regulation. 
Although the regulations call for joint planning between States and 
local resettlement agencies to design and implement a public/private 
RCA program, clearly, final decision-making authority in regard to the 
public/private program's policies rests solely with the State as our 
direct grantee.
    Regarding protections from liability, we cannot provide local 
resettlement agencies with protection from liability. No agency, public 
or private, is free of liability. Clients have a right to take legal 
action if they feel they have been treated unfairly or discriminated 
against. In regard to the question about repayment of unallowable 
expenses to ORR under the public/private RCA program, since States are 
ORR's grantees, States, as the recipients of the funds, would be 
responsible for repaying the Federal government for improper 
expenditures. Local resettlement agencies, as subrecipients, would be 
accountable to the State, not to ORR.
Section 400.56(e)
    Comment: One commenter expressed the opinion that the prohibition 
against

[[Page 15427]]

operating both a public/private RCA program and a State-excepted 
program in the same geographic location presents a barrier to 
implementing a public/private program where there are multiple 
resettlement agencies. Since a State cannot compel local resettlement 
agencies to participate in a private RCA program, a State would have to 
maintain the current RCA program in areas where only some local 
resettlement agencies chose to participate in the new program.
    Response: We see no justifiable rationale for operating both a 
public/private RCA program and a publicly-administered RCA program in 
the same geographic location. This would not be programmatically wise; 
it would be duplicative, expensive, and confusing. In cases where not 
all local resettlement agencies are interested in participating in the 
public/private program, the State has the latitude to decide to 
establish a public/private RCA program in which all RCA-eligible 
refugees are served only by those local resettlement agencies that are 
interested in participating in the program. There would be no need to 
operate a publicly-administered RCA program in the same locale just 
because some of the local resettlement agencies do not want to 
participate in the public/private program. The deciding factors, in our 
view, would be the number of resettlement agencies that are not 
interested in participating and the proportion of new arrivals to the 
area that these agencies have resettled. If these agencies represent 
the majority of new arrivals resettled in the area, this would argue 
against establishing a public/private program.
Section 400.57(a)
    Comment: Nine commenters expressed the view that national voluntary 
agencies must be included in the planning, development, and oversight 
of the public/private partnership. One of the commenters further stated 
that the involvement of the national agencies should entail 
establishing national standards to guide program design, assisting 
affiliates in developing program models and performance measurements, 
and encouraging and facilitating consultations. Two commenters 
suggested that the planning and consultation process, in addition to 
the local resettlement agencies, should include only MAAs and community 
service agencies that represent current and anticipated refugee groups. 
Two commenters wrote in support of the importance of MAA participation 
in the planning and consultation process.
    One commenter felt that it is important to ensure that recent 
arrivals who are represented through local churches, such as Bosnians 
and populations from the former Soviet Union, have equal representation 
in the same manner as an established non-church MAA. One commenter 
suggested that States should look at the last 3 years of refugee 
arrivals in their respective States to determine the appropriate 
proportion of representatives from each refugee group that should be 
included in the decision-making. Two commenters noted that counties are 
not included in the planning process and should be. The commenters 
expressed concern that the new RCA program will be administered without 
the leadership and experience of the California counties. Two 
commenters suggested that the final rule should contain language that 
reflects ORR's commitment to making the RCA plan a joint effort on the 
part of States and local resettlement agencies. The commenters felt 
that States should negotiate the new RCA program with local 
resettlement agencies first, as primary participants, before consulting 
with others.
    Two commenters cautioned that setting eligibility policies for the 
public/private RCA program should not be a negotiation or joint 
decision-making process with private agencies. One commenter pointed 
out that a government agency can be required to consult with private 
agencies on the policies, but should not be required to have the 
resettlement agencies participate in the final decision-making. One 
commenter recommended that the final rule should make clear that the 
final decision on the policy elements of the public/private RCA plan is 
the sole responsibility of the State agency.
    Response: We agree that national voluntary agencies should be 
involved in the planning and development of a public/private RCA 
program. We have amended Sec. 400.57(a) accordingly to include national 
voluntary agencies in the planning and consultation process.
    With regard to limiting participation in the planning and 
consultation process only to MAAs and other organizations that 
represent current and anticipated refugee groups, we do not agree with 
this limitation. We believe MAAs and other agencies that serve 
refugees, but are not representatives of these refugees in the sense of 
being of the same ethnic group, are important organizations to include 
in the planning and consultation process because of their experience as 
refugee service providers and because they are likely to be affected by 
the establishment of a public/private RCA program. We agree that States 
should make sure that each refugee population group is given the 
opportunity to participate in the planning and consultation process. We 
do not feel, however, that States need to be so precise as to follow a 
3-year arrival population ethnic breakdown to determine the degree of 
representation of each ethnic group at the consultations.
    In regard to participation by counties, we agree and have amended 
this section to include counties. The participation of counties is 
particularly crucial in States such as California where the refugee 
program is a county-administered program.
    As we indicated in our response to comments relating to 
Sec. 400.56(d), we agree that final decision-making on policies for the 
public/private RCA program is the ultimate responsibility of the State 
as our grantee. However, we see nothing in this section that is 
inappropriate.
Section 400.57(b)
    Comment: Two commenters questioned the need for a public comment 
period, with one commenter suggesting that this provision appeared 
unnecessary, redundant, and of little usefulness. This commenter also 
suggested that a longer planning period would be necessary in part 
because of this requirement. Two other commenters recommended that a 
description of the public comment process be included in the State's 
public/private RCA plan, including a list of participants and a summary 
of comments received.
    Response: We have reconsidered our proposed requirement for public 
comment on the public/private RCA plan and have decided that this 
requirement is not essential enough to justify the additional time and 
burden that implementation of this requirement would place on States. 
We have, therefore, removed this requirement. We believe the comments 
of agencies and individuals involved in refugee resettlement will 
provide the necessary input that States will need to develop a public/
private RCA program. However, States still have the option of 
soliciting public comment.
Section 400.57(c) (Sec. 400.57(b) in the Final Rule)
    Comment: Five commenters expressed concern about this provision 
that would require a local resettlement agency to inform its national 
voluntary agency of the proposed public/private RCA program and obtain 
a written agreement that the national voluntary agency would continue 
to place refugees in the State under the public/private

[[Page 15428]]

RCA program. Four commenters felt that the role of the national 
voluntary agencies in the public/private program should be clarified. 
Two commenters recommended that documentation be included that the 
national agencies endorse the plan. One commenter said that agreement 
by the national agencies to continue resettling refugees in the State 
is an important provision. However, this commenter wondered if it is 
allowable for a national voluntary agency and a State to agree that the 
local affiliate agency will not be participating in an RCA contract but 
will be resettling refugees. The same commenter asked if a national 
voluntary agency would be prohibited from continuing to resettle in an 
area if the national voluntary agency and State could not agree on an 
RCA contract. The commenter also questioned whether letters had to be 
received from every national voluntary agency, even if only a few place 
refugees in the State. One commenter suggested that the letters of 
agreement from national voluntary agencies should include an assurance 
that refugee placements in the State will continue when the planning 
process determines that a public/private RCA program is not feasible 
and an excepted RCA program or Wilson/Fish program is selected.
    Response: We agree that national voluntary agencies should have the 
opportunity to register their support or endorsement of a State's 
proposed public/private RCA plan. We have, therefore, amended this 
provision to require that letters from national voluntary agencies 
should indicate that the national agency supports the plan and intends 
to continue resettling refugees in the area. Letters from only those 
national agencies resettling refugees in the area need to be solicited. 
It is permissible for a State and a national voluntary agency (and the 
local affiliate) to agree that the local affiliate agency will not be 
participating in a public/private RCA contract or grant but will 
continue to resettle refugees in the State. Similarly, a national 
voluntary agency would not be prohibited from continuing to resettle 
refugees in a State if the national voluntary agency (and local 
affiliate) and the State cannot agree on an RCA contract or grant, 
provided that arrangements are included in the State plan to ensure 
that refugees resettled by the non-participating agency will be 
referred to the participating agency or agencies for services and 
assistance.
    We do not agree with the suggestion that letters of agreement from 
national voluntary agencies should include an assurance that refugee 
placements will continue to a State that does not decide to establish a 
public/private RCA program. We do not see the necessity of such a 
requirement; voluntary agencies have been resettling refugees in States 
with publicly-administered RCA programs for years. The structure of the 
RCA program is only one factor to be considered in placement decisions 
in conjunction with other factors such as family reunification, 
available employment opportunities, and suitable resettlement 
conditions.
Section 400.58
    Comment: One commenter asked if States only have a one-time 
opportunity to participate in the public/private RCA program and if 
States that opt to do the new RCA program have the latitude to later 
choose to opt out of the public/private program.
    Response: States are not limited to a one-time opportunity to 
participate in the public/private RCA program, nor are States 
prohibited from opting out of a public/private program at a later date. 
States are expected to make their initial decision within 6 months and 
to implement whatever RCA option they choose--a public/private RCA 
program, a publicly-administered TANF-type RCA program, or a Wilson/
Fish alternative--no later than 24 months after the date of publication 
of the final rule. If, in the future, a State that implemented a 
publicly-administered RCA program decides it wishes to switch to a 
public/private RCA program, the State may do so by following the 
requirements in Secs. 400.57 and 400.58 and submitting a public/private 
RCA plan as an amendment to the State Plan for ORR review and approval. 
Similarly, if a State that originally implemented a public/private RCA 
program decides it would be better to change to a publicly-administered 
RCA program, the State may do so by submitting a State Plan amendment 
to ORR for approval.
Section 400.58(a)
    Comment: Ten commenters expressed concern regarding the degree of 
program and budget information required in the public/private RCA plan. 
Five commenters felt that the level of detail regarding budgets and 
other program details required is unrealistic and inappropriate to 
include in the RCA plan since it will likely change regularly. One of 
the commenters suggested it would be more appropriate to include 
detailed budget information in the annual budget estimate that States 
are required submit to ORR under an existing provision in 
Sec. 400.11(b)(1).
    One commenter felt that a general service description should be 
required rather than a detailed description. The commenter pointed out 
that a detailed plan would have to be changed annually since ethnic 
groups, community needs, and available resources vary annually. In 
contrast, another commenter felt that the proposed plan does not 
require sufficient detail of the program policies and procedures to be 
established in a State's public/private RCA program. Two commenters 
opposed requiring an RCA plan that is separate from the State Plan that 
States are required to submit to ORR under Sec. 400.4. One commenter 
recommended amending Sec. 400.58(a)(4) to read: ``including a 
description of employment incentives and/or income disregards to be 
used, if any, as well as methods of payment, i.e., direct cash, vendor 
payments, etc.''
    Three commenters objected to the words ``easy access'' in 
Sec. 400.58(a)(5) as too vague. Two of the commenters felt that ORR 
should set minimum access requirements that the public/private RCA 
program must meet. One commenter recommended at a minimum that the 
final rule require that refugees have access during normal business 
hours and not be required to travel more than two hours round trip to 
access any benefits or services. Another commenter was concerned that 
the use of a vague term such as ``easy access'' could produce a 
standard for access to benefits that will result in litigation. One 
commenter recommended revising this provision to require RCA benefits 
administered under the public/private RCA program to be provided in as 
timely manner as under the current system.
    Four commenters felt that the plan requirements regarding client 
protections and due process should be strengthened. One of the 
commenters felt that the due process requirement in the plan is 
insufficient and that a detailed description of the procedures that the 
public/private RCA program will follow should be required. The 
commenter recommended that the final rule should require that all 
services and notice be provided in the refugee's native language and 
that the RCA plan describe how this requirement will be met. Three 
commenters felt that the RCA plan should include a listing of good 
cause criteria for non-compliance with work activities. Another 
commenter recommended that certain due process elements should be 
required in the RCA plan: that refugees cannot be subject to any 
eligibility criteria that are not set forth in the public/private plan; 
that applications be processed promptly; that an applicant be informed 
of rights and responsibilities, and that an individual

[[Page 15429]]

retain eligibility for the duration of the benefit period unless 
affirmatively determined ineligible. Two commenters recommended that 
the RCA plan include a description of the means by which an individual 
can bring a problem to the attention of the State and obtain 
intervention, whether through an ombudsman or State Refugee 
Coordinator. Two commenters expressed concern that the client 
protection and due process requirements of the RCA plan will require 
local agencies to fully replicate the welfare system, particularly in 
regard to sanctions and appeals, fraud control, case composition, 
employability standards, and medical exams relating to employability. 
Another commenter asked what requirements of the public system would 
not be required of the private system.
    Five commenters specifically objected to the language in 
Sec. 400.58(a)(13) which requires a breakdown of costs ``including per 
capita caps on administrative costs.'' The commenters recommended 
deleting the reference to per capita caps on administrative costs, 
stating that per capita or percentage caps on administrative costs 
would make it difficult to maintain small programs, would limit case 
management capacity, and would limit a local agency's capacity to 
participate in the public/private RCA program. One commenter asked ORR 
to cite the authority for requiring a cap on administrative costs.
    Three commenters suggested adding new elements to the RCA plan. The 
commenters recommended adding a Sec. 400.58(a)(14) that would require a 
description of the public comments process used, including a listing of 
the participants and a summary of comments received in the RCA plan. 
One commenter recommended adding a Sec. 400.58(a)(15) that would 
require a description of the performance standards and measures upon 
which the new program will be monitored.
    Two commenters expressed concern that the proposed public/private 
RCA plan requirements add substantially to existing reporting 
requirements. One of the commenters felt that the requirement for a 
detailed budget specific to the public/private program without 
eliminating any other plans and reports already required, adds to the 
administrative burden and to the cost.
    Twenty-four commenters felt that a 6-month period to develop a 
public/private RCA plan is too short, while one commenter felt that 6 
months was an adequate time frame. Two commenters recommended allowing 
9 to 12 months for planning, another commenter recommended one year for 
planning and one year for implementation, while one commenter 
recommended a planning period of 12 to 18 months after publication of 
the final rule. One commenter recommended that ORR be flexible with due 
dates to allow planners sufficient time to handle unexpected 
contingencies and to make changes to the plan during its development.
    Response: We believe it is essential for the public/private RCA 
plan to include the details this section requires. Each of the items in 
the plan is important to address and thoroughly consider in order to 
successfully implement the new program. Given that a shift to an RCA 
program administered by private agencies represents a major change in 
the refugee program, we need to see the details of the proposed program 
in order to make a responsible decision regarding approval. Regarding 
budget, we require a breakdown of proposed program and administrative 
costs in order to assess the cost effectiveness of various program 
designs. It is essential that States provide the required budget 
breakdown as part of the public/private RCA plan. However, in 
subsequent years, after the new program is implemented, it makes sense, 
per one commenter's suggestion, to include budget information on the 
public/private RCA program in a State's annual budget estimate to ORR.
    In regard to the requirement that the budget breakdown include per 
capita caps on administrative costs, we want to clarify that we do not 
intend to impose caps or ceilings on administrative costs, nor are we 
authorized to do so in our statute. The intent of the language on 
administrative caps is simply to require, in a case where a State 
decides to set an administrative cap in its contracts or grants with 
local resettlement agencies in an effort to contain costs, that the 
State include this information in its budget breakdown. We have amended 
the language in this provision to clarify that information on 
administrative caps should be included only when a State proposes to 
use a cap on administrative costs.
    In response to a commenter's suggestion, we have added language to 
Sec. 400.58(a)(4) that requires information on methods of payment, in 
addition to employment incentives. We have decided, however, not to add 
any new elements to the RCA plan, other than the inclusion at 
Sec. 400.58(a)(14) of a proposed implementation date.
    In regard to comments that client protections and due process 
requirements should be strengthened in the RCA plan, we have added 
language to Sec. 400.50 requiring States and local resettlement 
agencies to process applications as promptly as possible within no more 
than 30 days from the date of application and to inform applicants of 
their rights and responsibilities. Such requirements do not need to be 
addressed in the RCA plan; they need to be described in the public/
private program's procedural and policy manuals. We believe the other 
recommendations regarding client protections are excessive or are 
unnecessary because they are adequately addressed in other sections of 
the regulations.
    Regarding concerns that the client protection and due process 
requirements for the public/private RCA program will turn local 
resettlement agencies into mini-welfare systems, the reality is that 
private agencies that administer the RCA program are subject to the due 
process requirements contained in the U.S. Supreme Court decision in 
Goldberg v. Kelly the same as public agencies. In States that elect to 
establish a public/private RCA program, it will be important for local 
resettlement agencies that are concerned about taking on due process 
responsibilities to work with their State in delineating the due 
process responsibilities that the State may be willing to retain, such 
as the hearing process, and those responsibilities that the private 
agencies may have to exercise, such as notifying applicants or 
recipients in a timely fashion that benefits have been denied or 
terminated and explaining the reasons for the action and how the 
decision can be appealed.
    Regarding the words ``easy access'', we have decided that a more 
appropriate term to use is ``reasonable access'' and have amended this 
provision accordingly. Rather than prescribing what reasonable access 
means, we prefer to allow States to define reasonable access in keeping 
with circumstances in their particular State. States may define 
reasonable access in terms of the length of time it takes a recipient 
to reach the local resettlement agency, such as the example provided by 
the commenter, or in terms of the distance between the location where a 
recipient resides and the location of the agency.
    In response to comments about the due date for submission of the 
public/private RCA plan, we have changed the due date for the plan to 
no later than 12 months after the date of publication of the final 
rule. A State that chooses to establish a public/private RCA program, 
however, must notify the ORR Director

[[Page 15430]]

of its choice no later than 6 months after the final rule is published. 
As stated in response to the prior comment, States that initially 
decide to implement a public/private RCA program must do so within 24 
months of the date of publication of the final rule.
Section 400.58(d)
    Comment: Two commenters objected to ORR prior approval of the 
public/private RCA plan. One of the commenters recommended deleting the 
prior approval requirement and the 45 days for the plan to be approved.
    Response: We believe that ORR review and approval of the public/
private RCA plan is essential, as is our review and approval of all 
elements of the State Plan.
Section 400.58(e)
    Comment: One commenter recommended deleting this provision that 
requires that any amendments to the public/private RCA plan be 
developed in consultation with local resettlement agencies and 
submitted to ORR. Another commenter felt the proposed amendment process 
was too cumbersome and recommended that only a major change in 
providers and eligibility and benefit amounts should require a plan 
amendment. One commenter recommended amending this provision to require 
that any amendments to the RCA plan must be developed in consultation 
with the national voluntary agencies, as well as local resettlement 
agencies. One commenter recommended that any amendment to the public/
private RCA plan should include consultation beyond the local 
resettlement agencies, to include MAAs, refugee service organizations, 
and the public.
    Response: We have not made any changes to this provision. We 
believe each of the items listed in Sec. 400.58(a) is sufficiently 
major to require that amendments to these items be submitted to ORR for 
review and approval, since changes to these items will have an effect 
on RCA recipients. In regard to suggestions that consultations on plan 
amendments should include a broader range of agencies, including 
national voluntary agencies, MAAs, and the general public, we believe 
such a requirement would be excessive and unnecessary.
Section 400.59
    Comment: Three commenters recommended adding language that would 
prohibit States and local resettlement agencies from considering any 
resources remaining in the applicant's country of origin or from 
considering a sponsor's income and resources when determining 
eligibility for RCA.
    Response: We have amended this section, as well as Sec. 400.66, in 
keeping with the commenters' suggestion.
Section 400.60(a)
    Comment: Six commenters felt that the payment ceilings were 
inadequate. Another commenter concurred, but stated that the payment 
ceilings should be increased to the extent that the appropriation 
permits without reducing the eligibility period. Another commenter 
suggested that the final rule should include payment ceilings that are 
based on the most recent Federal poverty level depending on when the 
final rule is published. Another commenter wants an assurance in the 
final rule that refugees will not be tied to State standards for TANF, 
which the commenter describes as inadequate. Another commenter did not 
support the establishment of a national payment ceiling. Instead, this 
commenter suggested that States and local resettlement agencies make 
cash payments to refugees at a level they agree is best suited to 
achieving early self-sufficiency and to enriching the quality of life. 
One commenter felt that it would be better to use funds to extend the 
RMA eligibility period instead of increasing RCA benefit levels.
    Seven commenters expressed concern that public/private RCA payment 
rates could be higher in a given State than the TANF payments, creating 
an inequity for participants in the two programs. Two of the commenters 
felt that consistency across programs, especially if the State operated 
a public/private program for RCA recipients in major resettlement areas 
and a State excepted program in the balance of the State, is important 
to maintain. The commenters recommended adding language to this section 
that would allow States to reserve the difference between the TANF 
payment level and the higher RCA payment level for non-direct cash 
purposes such as first and last month's rent, a Job Access loan to 
cover tools, etc.
    One commenter stated that ORR is erroneously assuming that few 
families with minor children are relying on RCA because they are 
eligible for TANF in most States. The commenter believed that 
significant numbers of families will need to rely on RCA rather than 
TANF since in nearly half the States, two-parent families are not 
eligible for TANF unless they meet certain requirements regarding work 
history or current unemployment.
    Two commenters suggested that ORR advise States to consider the 
possible impact of increased benefit levels on eligibility for RMA and 
consider the use of indirect payments or non-cash payments to avoid 
adverse effects.
    Response: In order to ensure that ORR has adequate funding from 
appropriations to meet cash assistance costs, it is necessary to 
balance the desire for higher payment ceilings, or no payment ceilings, 
against the need to accurately forecast costs. A payment ceiling serves 
as a budget forecasting tool used by ORR to estimate cash assistance 
payments. ORR has set the payment ceilings at a level that represents 
what ORR estimates it can provide to meet each refugee's basic needs 
from appropriated funds without lowering the RCA eligibility period, 
based on the most recent data available regarding the number of RCA 
refugee arrivals. In fact, the ORR payment ceilings are higher than 
many State TANF payment levels. The payment ceilings are based on the 
1998 HHS Poverty Guidelines. As stated in the NPRM, if the Director 
determines that the payment ceilings need to be adjusted for inflation, 
ORR will issue revised payment ceilings through a notice in the Federal 
Register.
    In States where the public/private RCA payment ceilings are higher 
than a State's TANF payment level, if a State is concerned about 
maintaining uniformity in the payment levels of both programs for the 
sake of equity, States have the flexibility to set the public/private 
RCA payment equal with the TANF payment or to use the difference 
between the TANF payment level and the higher public/private RCA 
payment level for purposes such as one-time direct cash incentives for 
early employment and self-sufficiency, or non-direct cash purposes such 
as rent or a loan to cover the cost of tools as one commenter 
recommended. We see no need to amend this section to allow this type of 
flexibility; the flexibility already exists in the proposed rule.
    With respect to the possible impact of increased benefit levels on 
RMA eligibility, we have removed the possibility of adverse effects on 
RMA eligibility by adding a requirement under Sec. 400.102 that any 
cash assistance payments received by a refugee may not be considered in 
a determination of RMA eligibility, including RCA or any cash grants 
received by a refugee under the Matching Grant program and the 
Department of State or Department of Justice Reception and Placement 
programs.
    Regarding one commenter's belief that significant numbers of 
refugee families

[[Page 15431]]

with dependent children will need to rely on RCA, ORR's RCA 
participation data do not support the commenter's assertion. To the 
contrary, we have experienced a steady and significant national decline 
in the RCA participation rate since the inception of State TANF 
programs, particularly in States where refugee families with dependent 
children were historically served in the RCA program because they did 
not meet the AFDC work history requirements for two-parent families. We 
have seen a major shift of refugee families with children from the RCA 
program to the TANF program.
Section 400.60(b)
    Comment: Two commenters concluded that the NPRM seems to limit 
reimbursements to States to no more than the ORR payment ceiling so 
that States with a TANF rate higher than the RCA ceiling would have to 
absorb the difference between the two payment rates with no ORR 
reimbursement. Another commenter asked whether refugees will receive 
less than 8 months of payments in States where the TANF payment level 
is higher than the RCA ceiling.
    Response: We do not intend to limit reimbursements to States to the 
public/private RCA payment ceiling in situations where RCA is paid at a 
higher TANF payment rate. In States where the TANF payment is higher 
than the RCA payment rate, we will reimburse States for RCA costs at 
the higher TANF payment rate. In States where the TANF payment level is 
higher than the RCA ceiling, a refugee's RCA eligibility period will 
not be affected by the higher payment rates.
Section 400.60(c)
    Comment: Eight commenters recommended allowing States to offer 
bonuses or other incentives that exceed the monthly ceiling as long as 
the total combined payment to refugees does not exceed the monthly 
ceiling times the total number of months in the eligibility period. The 
commenters felt this type of flexibility would allow States and local 
resettlement agencies to design a program that rewards early 
employment. Two commenters wanted to use varying levels of cash 
assistance and other incentives throughout the 8-month period instead 
of providing equal monthly payments in the belief that this type of 
approach would most effectively encourage early employment. Another 
commenter expressed concern that the ceiling limits the flexibility to 
support work by providing stipends or incentives up front since the 
NPRM would not allow a work expense stipend and work incentive bonus 
before the earnings are received if this amount plus the cash payment 
exceeds the monthly ceiling. The same commenter also stated that the 
NPRM seems to preclude one-time payments for work-related expenses such 
as tools or uniforms in states where the RCA monthly payment is near 
the ceiling level.
    One commenter asked whether cash payments may continue to be given 
after a refugee becomes employed. The commenter also wondered whether 
each local resettlement agency would be free to give different 
employment incentives/bonuses as is done in the Matching Grant program 
or whether all resettlement agencies would have to give identical 
assistance.
    One commenter stated that the NPRM seems to make it beneficial to 
clients to access cash assistance before job placement which may delay 
the goal of self-sufficiency and increase dependence on cash 
assistance. This may pose a problem in States where the goal is to 
place refugees in jobs right away before accessing cash assistance. The 
commenter suggested providing incentives to those States and local 
resettlement agencies that obtain immediate job placements for 
refugees.
    Response: We have revised this section to allow States and their 
public/private RCA agencies the flexibility to exceed the monthly 
payment ceiling in order to provide incentives to encourage early 
employment as long as the total payment to a refugee does not exceed 
the ORR monthly ceiling times the total number of months in the RCA 
eligibility period. We will allow this flexibility in the monthly 
payment ceiling with one stipulation: States and local resettlement 
agencies must ensure that RCA funds for any refugee are not used up 
before the end of the 8-month period in a way that would jeopardize a 
refugee who might need cash assistance in the latter part of the 8-
month eligibility period. In other words, we do not want to see a total 
of 8 months of RCA funds given to a refugee early in the eligibility 
period such that there are no RCA funds left for that refugee should 
he/she need assistance in the latter months of the 8-month eligibility 
period.
    Cash payments may continue to be provided after a refugee becomes 
employed as long as a State's public/private RCA program design permits 
cash payments after employment. Whether each local resettlement agency 
will be able to provide different employment incentives instead of a 
uniform incentive again will depend on a State's public/private RCA 
program design. These are not issues that ORR intends to regulate.
    In regard to States where the focus is on placing refugees into 
early employment to limit the need to access cash assistance, such 
States, in order to maintain this focus, could choose to design their 
public/private RCA program as a cash assistance diversion program where 
newly arriving refugees would be given a one-time payment for not 
accessing RCA. It is important to emphasize that with this final rule, 
States will have a great deal of flexibility to design a public/private 
RCA program as they choose.
Section 400.61
    Comment: Twelve commenters objected to limiting the contracting of 
services under the public/private RCA program to local resettlement 
agencies, thereby excluding many experienced MAAs and community-based 
organizations from providing services to public/private RCA recipients. 
These commenters expressed particular concern that refugee providers 
that have been the primary employment service providers in a number of 
States, and have a successful record of moving refugees to self-
sufficiency, would now be excluded from receiving service contracts 
under the public/private program, resulting in a loss of expertise 
offered by these organizations. One commenter made the point that the 
proposed rule would duplicate or replace services that are already 
successfully operating. Five commenters were concerned that local 
resettlement agencies in many States may not have the experience or 
capability to offer effective employment services to refugees. One of 
the commenters worried that those resettlement agencies that are 
inexperienced in providing employment services will require a long 
period of time to achieve the level of expertise held by existing 
service providers, thereby creating a gap in services. Another 
commenter felt that the final rule should require local resettlement 
agencies to maintain subcontracts with existing qualified service 
providers. One commenter raised the point that some States now provide 
services directly, a role that ORR is proposing to give to local 
resettlement agencies.
    Three commenters felt that the exclusion of MAAs violates the 
principle of equal opportunity by discriminating against MAAs. One 
commenter observed that the proposed exclusion of MAAs and community-
based organizations appears to run counter to ORR's emphasis on 
empowering communities because it

[[Page 15432]]

disempowers the very community-based organizations that were founded by 
refugee communities.
    Three commenters stated that the proposed program is in conflict 
with California law (AB 3245) which places responsibility for refugee 
employment service programs with the counties.
    Nine commenters recommended that the services contracted to local 
resettlement agencies under the public/private program should be 
limited only to those employment services designated in the State Plan. 
Twelve commenters felt that services such as ESL, health screening, 
mental health services, and vocational training are more efficiently 
contracted by the State for the total refugee population and should not 
be fragmented through local resettlement agency administration for the 
public/private RCA recipient population.
    One commenter observed that separate service programs for RCA 
clients are unworkable and if mandated, will greatly increase costs.
    Five commenters felt that post-RCA services should not be 
restricted to ethnic community providers and that the current array of 
eligible providers should be maintained. Three commenters asked whether 
refugees who become self-sufficient and no longer receive cash 
assistance will continue to be eligible to receive social services. Two 
commenters asked whether service dollars would have to go through the 
lead agency and then be subcontracted out to other resettlement 
agencies in cases where a lead agency is used to administer the public/
private program. One commenter asked whether a local resettlement 
agency could provide social services if the agency is not providing 
cash assistance. Another commenter wanted clarification on whether an 
RCA client returns to the local resettlement agency for services if the 
client becomes employed before 8 months of services are up and then 
becomes unemployed, thereby needing more services.
    Ten commenters had comments about program outcomes in the new 
program. Four commenters felt that the final rule needs to provide more 
specific guidance on what the outcome measures and criteria will be for 
evaluating the success of the new program. One commenter cautioned that 
the public/private program may result in higher job placement costs 
because service providers that have had experience in providing job 
placements at low cost will, in some cases, be replaced by less 
experienced providers. Three commenters viewed the establishment of 
another set of outcome measures as redundant and unnecessary, given the 
existing Government Performance and Results Act (GPRA) measures that 
ORR already requires of States and Matching Grant agencies, as well as 
the Department of State's Reception and Placement standards and local 
TANF standards. If separate standards must be established for the new 
public/private program, the commenters argued for designing the 
measures at the local level, not the national level.
    While one commenter indicated support for designing outcome 
measures that assess more than employment outcomes, the commenter 
cautioned that measures such as language outcomes require more 
sophisticated means of assessment. The commenter recommended that ORR 
needs to consider for the final rule the outcome expectations that are 
most appropriate within the limits of an 8-month program. One commenter 
took issue with the language that ORR is looking to the resettlement 
agencies ``to ensure that refugees receive the skills, such as English 
language acquisition * * *.'' The commenter noted that no one can 
ensure this and felt that it doesn't make sense to add this as an 
outcome because it doesn't involve any measurable result, other than a 
process outcome.
    Three commenters felt that the difference in performance measures 
followed by the Department of State and ORR should be made into a 
uniform set of measures where both agencies are using the same measures 
and the same time frames for looking at outcomes.
    Response: While philosophically we believe in the wisdom of having 
the same agencies that are responsible for the placement of refugees in 
a State to also be accountable for what happens to these refugees in 
regard to economic and social self-sufficiency, we are persuaded by the 
comments that in terms of the provision of services, it would not make 
sense to require States to contract or award grants for services only 
with local resettlement agencies under the public/private RCA program. 
In States where local resettlement agencies are the major providers of 
employment services, it would make eminent sense for a public/private 
RCA program to contract with the resettlement agencies for both the 
provision of cash assistance and services. But we recognize that in 
States where MAAs and other community-based organizations have been the 
primary providers of employment services, it would not be in refugees' 
best interests to divert RCA refugees away from the established refugee 
social service network to agencies that may be new to employment 
services. Therefore, while we would encourage States that choose to 
establish a public/private RCA program to contract or award grants for 
services, whenever programmatically wise, with the same agencies that 
administer the cash assistance program, we have decided not to mandate 
States to do so. We will leave it to the States to select the service 
agencies that can most effectively help refugees in the public/private 
RCA program become employed and self-sufficient.
    In public/private RCA programs in which local resettlement agencies 
are responsible for both the provision of cash assistance and services, 
the locus of accountability will rest with these agencies for the 
achievement of resettlement and self-sufficiency outcomes, as well as 
for the provision of proper and timely cash payments to refugees. In 
the case of public/private RCA programs where States choose to contract 
or award grants for services with different agencies than the local 
resettlement agencies that are administering the cash assistance 
program, States will be required to: (1) Establish procedures to ensure 
close coordination between the local resettlement agencies providing 
cash assistance and the agencies providing services to RCA recipients; 
and (2) set up a system of accountability that identifies the 
responsibilities of the different participating agencies and holds 
these agencies accountable for the results of the program components 
they are responsible for.
    In regard to commenters' recommendations that the services that 
public/private RCA agencies provide should be limited to employment 
services, our position is that the range of services that agencies, be 
they local resettlement agencies, MAAs, or other agencies, are 
contracted to provide under the public/private program is a State 
decision. The only stipulations are that the services must be among the 
allowable services listed in Secs. 400.154 and 400.155 and the service 
agencies must be held accountable for employment and self-sufficiency 
outcomes. We agree that services such as ESL, health screening, mental 
health services, and vocational training do not have to be provided by 
the public/private RCA service agencies and may be more effectively 
provided by other agencies.
    With respect to the provision of post-RCA services, we did not 
intend to imply that post-RCA services may only be provided by ethnic 
community providers. Services provided to refugees after their 8-month 
participation in the public/private RCA program may be provided by any 
provider that a State

[[Page 15433]]

decides to contract with. We stated in the NPRM that States and local 
resettlement agencies must maintain ongoing coordination with MAAs and 
other ethnic representatives to ensure that services provided under the 
public/private program are coordinated with longer-term resettlement 
services that are frequently provided by ethnic community organizations 
after the 8-month RCA period. This statement was not meant to suggest 
that MAAs and other ethnic organizations are the only providers of 
post-RCA services.
    In cases where a lead agency is used to administer the public/
private program, whether service funds must go through the lead agency 
to other resettlement agencies through subcontracts is up to States to 
decide as part of their program design. ORR is not requiring a 
particular approach when a lead agency is used. In response to another 
comment, a local resettlement agency could provide social services even 
if the agency is not providing cash assistance. A client in the public/
private RCA program who loses a job before the end of the 8-month 
period and needs additional services should return to the same service 
agency that was providing the client with services before he or she got 
the job.
    With respect to comments on program outcomes, we do not believe 
that detailed guidance on program outcomes for the public/private RCA 
program should be regulated. We intend to issue guidance on outcome 
measures for the public/private program at a later date through a State 
Letter just as we have done in regard to outcome measures for the 
social services and targeted assistance programs, under the Government 
Performance and Results Act. The commenters' concerns about the 
potential redundancy of establishing another set of outcome measures in 
addition to what States are already required to report under GPRA is a 
point well-taken. We will make every effort to dovetail outcome 
requirements to minimize redundancy and reporting burden as we 
consider, in collaboration with States, outcome measures for the new 
public/private RCA program. Regarding measures of English language 
acquisition and basic living skills, we do not intend to include 
process outcomes, such as classroom enrollment, in our consideration of 
appropriate measures for skill acquisition.
    Regarding commenters' requests that the Department of State and ORR 
use a uniform set of measures and time frames, we are working with our 
DOS colleagues to reduce differences in the outcome measures that each 
agency uses and will continue to work with DOS on this issue.
Section 400.62
    Comment: One commenter asked how local resettlement agencies will 
be given their fair share of secondary migrant cases that are resettled 
through national voluntary agencies that do not have affiliates in the 
local area. The commenter wondered if ORR intends each resettlement 
agency to be assigned all secondary migrants who were resettled through 
their national office. Another commenter wondered how the program will 
be equitably managed by the State if secondary migrants resettle in 
areas without representation by local resettlement agencies. One 
commenter suggested that in the case of secondary migrants who are not 
affiliated with a local resettlement agency, it might make sense to 
allow a refugee service provider that has contact with the secondary 
migrant to be responsible for eligibility determinations and the 
provision of cash assistance and services under the public/private RCA 
program. Another commenter requested ORR guidance on the impact of 
secondary migration on outcome measures, particularly secondary 
migrants who arrive late in the 8-month eligibility period.
    Response: The arrangement used to serve secondary migrants will be 
determined by States. In States that plan to establish a public/private 
RCA program, commenters should take up their concerns about the 
assignment and handling of secondary migrants with their State during 
the planning and consultation process.
Section 400.63 (Sec. 400.64 in the NPRM)
    Comment: Fourteen commenters provided comments on this provision. 
Seven commenters opposed the use of national voluntary agencies in 
training local resettlement agencies for the new RCA program either 
because they questioned how a national organization could meaningfully 
provide training to local affiliates on a plan jointly developed by 
States and local agencies or because they felt the use of discretionary 
social services funds for this purpose could not be justified, given 
the need to address long-term social adjustment issues with these 
funds.
    Four commenters felt that national voluntary agencies could play a 
useful role in providing technical assistance and monitoring to local 
affiliates. One of the commenters, a State, suggested that the national 
agencies could be helpful in assisting local affiliates to develop the 
capacity to manage cash transfer systems and in advising States on 
their local affiliates' ability to manage cash transfer. Three 
commenters were concerned that the funding to support national 
voluntary agency participation was not clearly identified in the NPRM. 
One of these commenters stated that the funding mechanism to support 
the national voluntary agencies' role should be embodied in the 
regulations and not left to the availability of discretionary funds. 
Three commenters suggested that more clarity is needed on which 
training responsibilities rest with States and which with the national 
voluntary agencies. One commenter felt that this provision was too 
vague and suggested that national agencies should be required to 
provide certification that the training of all relevant staff has been 
conducted prior to the start of the project. One commenter, a local 
resettlement agency, felt that the role of the national voluntary 
agencies should be limited to training and technical assistance and 
only when it is requested at the local level. Two commenters suggested 
that the States were in a better position to train local agencies.
    Response: Since national voluntary agencies have had a long-term 
oversight relationship with their affiliate agencies in regard to both 
the R & P program and the Matching Grant program, we believe it is 
appropriate and useful for national voluntary agencies to share in the 
responsibility of preparing local resettlement agencies for their new 
role in implementing the public/private RCA program. In States that 
choose the public/private RCA option, we would expect the State and the 
relevant national voluntary agencies to work out the details of the 
training together and delineate precisely which training 
responsibilities will be carried out by the State and which 
responsibilities will be carried out by the national agencies. We do 
not feel that the details of the training should be prescribed in 
regulation. States that elect to establish a public/private RCA program 
are likely to develop different program designs that will vary in terms 
of local resettlement agency responsibilities, requiring customized 
training, not a national, regulated delineation of training 
responsibilities between States and national voluntary agencies.
    Regarding funding to support national voluntary agency 
participation in training, we do not believe that it is appropriate or 
necessary to regulate the funding mechanism to be used to pay for 
national voluntary agency participation in the public/private program. 
We believe the use of non-formula discretionary funds will be the best 
way to support national voluntary agency participation.

[[Page 15434]]

Section 400.65 in the NPRM
    Comment: Three commenters thought that monitoring needs to begin 
immediately after implementation. One commenter thought that use of 
discretionary funds for monitoring is unacceptable and that funding to 
support this activity must be integral to the program and part of the 
final rule. One commenter felt that the monitoring by ORR, the State, 
and the national agencies as proposed in the NPRM is not reasonable and 
that monitoring by just one entity would be sufficient. Another 
commenter thought that local agencies and States can develop their own 
responses to training and monitoring needs. Two commenters suggested 
that the final rule should have specific performance measures by which 
the new program will be evaluated. One of the commenters felt that the 
regulations require compliance monitoring, but do not require States to 
take any action against agencies based upon findings. Another commenter 
said that the regulations should empower the state agencies to 
terminate a private agency's ability and right to participate in a 
public/private partnership at any time for mismanagement. Two 
commenters supported joint monitoring but thought that arrangements, 
particularly dates, times, and content need to be negotiable and 
planned cooperatively in advance.
    Response: We have decided to remove this section. Now that the 
public/private RCA program will be optional, it does not make sense to 
regulate a particular monitoring approach for the public/private 
program. If a number of States choose the public/private option and are 
interested in a joint monitoring approach that involves the national 
voluntary agencies, we will explore ways to support that collaboration.
    Regarding the suggestion that the final rule should contain 
language that empowers States to terminate a local resettlement 
agency's participation in the public/private program for mismanagement, 
States already have this authority through State grant and contract 
rules.
Section 400.65 (Sec. 400.66 in the NPRM)
    Comment: Eight commenters stated that States should not have to go 
through a cumbersome waiver process to opt to continue a public sector 
RCA program. Two of these commenters felt that the public sector 
program should be the requirement, with the public/private RCA program 
being the exception. Three commenters objected in particular to having 
to go through an elaborate, time-consuming consultation process in 
order to choose the excepted program. One commenter indicated that 
requiring States to show that they have made a ``good faith effort to 
reach an agreement'' as a condition of receiving approval from ORR for 
an excepted RCA program is inappropriate. One commenter recommended 
that the requirements and criteria for an exception be deleted and this 
section be amended to allow a State to choose the proposed program 
structure that meets the needs of refugees in the State. The commenter 
also recommended adding language that gives the Governor of a State the 
latitude to elect to operate its public RCA program consistent with the 
State's TANF program, without ORR review. This flexibility would allow 
States to operate the RCA program in a manner that is least divisive 
for the States.
    Thirteen commenters recommended making it harder for States to opt 
out of a public/private RCA program. Seven commenters recommended 
requiring Governors to obtain concurrence from resettlement agencies in 
States that decline to participate in the public/private program. Two 
commenters recommended that ORR require a full explanation and 
accompanying documentation before granting an exception. Two commenters 
recommended requiring public hearings as part of the exception process. 
One commenter recommended adding additional criteria for seeking an 
excepted program to make it harder for States to opt for the status 
quo. Two commenters questioned what guarantees are there that States 
will act in good faith in negotiating with voluntary agencies. Two 
commenters recommended that the Governor of a State must make a good 
faith effort through meetings with local resettlement agencies and 
other organizations, prior to making a decision to request an 
exception.
    Two commenters suggested that States should have the option to 
continue operating the RCA program using old AFDC rules rather than the 
State's TANF rules. One of the commenters stated that his State did not 
see it as a burden to maintain a separate system based on former AFDC 
rules. One commenter recommended that in the case of a State that has 
an excepted program as well as a public/private program operating in 
the State, the State should be allowed the option to use the same 
payment levels, eligibility standard, etc. in the RCA excepted program 
as in the State's public/private program, instead of being required to 
mirror TANF. The commenter pointed out that without this flexibility, 
States would either have to make the public/private program identical 
to TANF, or have refugees in different parts of the State receiving 
different benefits.
    Seven commenters recommended expanding the alternatives in States 
that determine that neither a public/private RCA program nor an 
excepted program are the best approach for their State. Four commenters 
recommended including a voluntary agency model as an option under this 
provision, while three commenters specifically recommended the Matching 
Grant program as a viable alternative that should be added under this 
provision. One commenter recommended adding a model of direct 
contracting between ORR and national voluntary agencies as an 
alternative. Two commenters recommended that currently funded 
comprehensive alternative projects would be acceptable alternatives 
under this subsection.
    Response: In keeping with our decision to allow States the 
flexibility to choose among different options for the RCA program, we 
have removed the proposed section and replaced it with a provision that 
allows States the option of modeling their RCA program after their 
State TANF program. States will be required to submit an amendment to 
their State Plan describing the elements of their TANF program that 
will be used in their RCA program pursuant to the procedure described 
in Sec. 400.8 no later than 6 months after the publication of the final 
rule. A publicly-administered TANF-type RCA program must be implemented 
no later than 24 months after the date of the publication of the final 
rules. Those States that wish to maintain their current AFDC-type RCA 
program, instead of changing to a TANF-type RCA program, may submit a 
request for a waiver to the ORR Director under Sec. 400.300. The ORR 
regulations that govern an AFDC-type RCA program have been retained for 
this purpose under Sec. 400.45.
    In regard to the comments that argued for making it harder for 
States to opt out of a public/private RCA program, we do not believe 
that such a course of action would benefit the refugee program and 
would only serve to foster an adversarial climate between States and 
local resettlement agencies. In addition, it is unrealistic and 
inappropriate to require a Governor to obtain concurrence from 
resettlement agencies to opt out of a public/private RCA program. A 
Governor does not have to obtain concurrence from service agencies 
before making a decision on a program.
    We have no objections to the recommendation that States that choose 
to operate both a public/private RCA

[[Page 15435]]

program and a TANF-type RCA program in their State should be allowed 
the option of using the same payment levels and eligibility standards 
in the TANF-type RCA program as in the public/private RCA program. If, 
for some reason, a State wishes to, and is able to, set up such an 
arrangement, we have no problems with such an approach.
    Regarding comments on alternative RCA options, neither the Matching 
Grant program nor another direct contracting arrangement between ORR 
and national voluntary agencies would be an appropriate alternative for 
the State-administered RCA program because these models involve direct 
grants from ORR rather than contracts or grants administered by States. 
Any alternative that a State chooses would have to allow State 
management of the alternative. However, outside the context of this 
regulation, the Wilson/Fish authority at Sec. 412(e)(7)of the INA 
allows non-profit agencies to be direct grantees of ORR.
Section 400.66 (Sec. 400.67 in the NPRM)
    Comment: One commenter recommended that States operating an 
excepted RCA program should be allowed to make the beginning date for 
RCA cash assistance payments to be the date of application even if cash 
assistance payments are started later under the State's TANF program. 
The commenter felt that the short RCA eligibility period justifies 
avoiding any delays in payment. One commenter felt that the final rule 
should make clear that adherence to other TANF rules is only required 
with respect to financial eligibility and clearly state that the full 
range of non-financial eligibility policies and procedures under TANF 
do not apply to RCA.
    Response: After considering the commenter's suggestion, we have 
amended this section to allow States that have elected to operate a 
publicly-administered RCA program to use the date of application as the 
beginning date for RCA payments, in lieu of the TANF beginning date for 
cash assistance payments, if they so choose. We agree that States 
should have the flexibility to choose the earlier start date for cash 
assistance payments in light of the short eligibility period for RCA 
recipients.
    We have amended Sec. 400.66(a)(4) (Sec. 400.67(e) in the NPRM) by 
adding the word ``financial'' before the word ``eligibility.''
Section 400.67 (Sec. 400.68 in the NPRM)
    Comment: One commenter indicated that the language in the proposed 
regulation, that identifies TANF work requirements as hours of 
participation and allowable work activities, creates confusion by only 
referring to certain aspects of the TANF work requirements, thereby 
implying that other aspects of the TANF work requirements would apply 
to the State-excepted RCA program. The parenthetical reference to hours 
and allowable activities should either be deleted or comprehensively 
expanded.
    Response: We agree with the commenter and have deleted the words 
``hours of participation and allowable work activities.''

Comments on Subpart F--Requirements for Employability Services and 
Employment

Section 400.75(a)
    Comment: One commenter recommended adding a new item (7) to this 
subsection that would require refugee RCA recipients who are also Food 
Stamp recipients, if they live in a geographic area where there are no 
refugee service providers, to participate in the Food Stamp Employment 
and Training (FSET) program as a condition of receipt of RCA.
    Response: If an RCA recipient lives in an area where there are no 
refugee providers, the recipient may participate in the FSET program or 
any other employment and training program to satisfy the requirement at 
Sec. 400.75(a)(1) that an RCA recipient must participate in employment 
services within 30 days of receipt of RCA.
Section 400.76
    Comment: Two commenters indicated their support for removal of 
Federal requirements for exemptions from employability services, while 
one commenter felt that the regulations should retain certain 
exemptions such as persons over 65 who are incapacitated or are needed 
in the home to care for an incapacitated family member. The commenter 
also felt that the regulations should exempt victims of domestic 
violence from work activities under certain circumstances. Two 
commenters recommended that the final rule should permit States to add 
additional exemptions from the work requirements.
    Response: We are leaving it up to the States to determine the 
exemptions they believe are necessary for the RCA program. States are 
as capable, if not more capable, of making decisions on exemptions as 
we are. We trust the States to make intelligent decisions on when and 
under what circumstances to exempt victims of domestic violence and 
elderly persons.
Section 400.81
    Comment: One commenter pointed out that Sec. 400.81(c)(2) in 
existing regulations should be removed since it conflicts with proposed 
revisions to Sec. 400.81(b) which limits full-time professional 
recertification services to individuals who are working. Another 
commenter argued that the proposed rule to restrict full-time 
professional recertification training to refugees who are employed 
should be withdrawn. The commenter felt that it should be up to each 
State's RCA program to decide whether such training may be available to 
a refugee who is not employed.
    Response: Our thanks to the commenter for pointing out the problem 
with Sec. 400.81(c)(2). We have removed this subsection. We continue to 
hold to our view that full-time professional recertification training 
is an appropriate use of our funds for employed refugees, but not 
unemployed refugees. We do not believe that this type of full-time 
training, which generally is not short-term in duration, is appropriate 
for unemployed refugees in a program that emphasizes early employment 
and has a short period of cash assistance.
Section 400.82
    Comment: Five commenters expressed concern that the proposed rule 
does not adequately ensure the constitutional due process rights of RCA 
applicants and recipients. One commenter cautioned that ORR cannot give 
resettlement agencies flexibility to decide what due process must be 
provided. The commenter further cautioned that providing inadequate 
guidance on due process issues would handicap local resettlement 
agencies from understanding what is expected of them under the law and 
would increase the likelihood of violating the constitutional rights of 
refugees.
    One commenter felt that it is essential that the regulations govern 
all adverse actions and hearings for both the public/private RCA 
program and the excepted RCA program. The commenter noted that the 
language in this section regarding the public/private RCA program 
appears to apply to all adverse actions and hearings, while the 
language regarding the excepted RCA program seems to limit adequate 
notice and an opportunity for a hearing to work-related sanctions. In 
addition, there is no requirement that notice must be in the refugee's 
native language or that good cause criteria be provided in writing in 
the excepted RCA program. The commenter also noted that the proposed 
rule requires that local resettlement agencies provide timely

[[Page 15436]]

and adequate notice of any determination but does not define these 
terms. The commenter pointed out that the Supreme Court decision in 
Goldberg v. Kelly contains considerable detail on what constitutional 
due process requires with regard to timely and adequate notice. These 
details should be included in the final rule to prevent local 
resettlement agencies from inadvertently implementing inadequate 
standards, thereby risking litigation.
    Another commenter felt that while safeguards are necessary to 
protect clients, it would be highly counterproductive if standards were 
limited to the complex standards of the public assistance system. The 
regulations should allow the development of standards more appropriate 
to private service providers. Two commenters were concerned that the 
requirement to provide written notice in a refugee's native language 
would be extremely costly and burdensome. One of the commenters 
suggested giving States the option of providing notice in English with 
a verbal translation of the notice.
    One commenter asked whether a sanction implies loss of service as 
well as loss of cash assistance. One commenter suggested requiring 
States to specify in their State Plan what sanction process it will 
use. The commenter felt that States should be allowed to choose either 
the Food Stamp Employment and Training (FSET) or TANF sanction process 
because an RCA recipient is more likely to be an FSET recipient than a 
TANF recipient. Three commenters indicated that it would be essential 
to allow reversals of sanctions in the case of administrative error or 
changes in a client's circumstances that warrant a reversal of 
decision.
    Response: This section of the NPRM described actions that private 
agencies administering the public/private RCA program must take to meet 
due process requirements and did not provide the same level of detail 
with respect to a publicly-administered program because we believe that 
State TANF programs must follow the due process requirements 
established by the Supreme Court in Goldberg v. Kelly, 397 U.S. 254 
(1970). However, we have, nonetheless, added a new Sec. 400.54 that 
governs all notices and hearings in both the public/private and 
publicly-administered RCA programs. Section 400.54 defines ``timely'' 
and ``adequate''. We have also made clear in Sec. 400.55 of the final 
rule that written notice in refugee languages applies to publicly-
administered RCA programs as well as the public/private RCA program. In 
regard to commenters' concerns about the cost and burden of providing 
written notice in a refugee's language, as we said earlier in response 
to similar comments on Sec. 400.55 (Sec. 400.63 in the NPRM), agencies 
that administer Federal financial assistance are required under title 
VI of the Civil Rights Act of 1964 to provide written information in 
appropriate languages where a significant number or proportion of the 
eligible population requires the information in a particular language 
in order to fully understand the content of the information. In regard 
to refugee language groups that constitute a small proportion of the 
recipient population served, agencies must use an alternative method, 
such as verbal translation into the refugee's language, to effectively 
communicate the content of the notice of adverse action to the 
recipient.
    It is important to clarify that the due process standards that 
agencies must follow are not standards derived from the public 
assistance program, as one commenter suggested; they are standards 
prescribed by constitutional law. Regarding whether a sanction implies 
loss of service as well as loss of cash assistance, ORR's definition is 
that sanction implies loss of cash assistance only. Reversals of 
sanctions in the case of administrative error, without question, are 
not only allowed, but are required.
Section 400.83
    Comment: One commenter felt that the NPRM does not adequately 
ensure compliance with due process principles because the proposed rule 
includes only selected due process requirements instead of fully 
incorporating the due process provisions of the existing ORR 
regulations which cite 45 CFR 205.10(a) of the AFDC regulations.
    Two commenters were concerned that the proposed rule does not 
specify any time frames for completion of the mediation and hearing 
process and recommended language specifying time periods and automatic 
referral of adverse determinations to an independent State entity. Both 
commenters felt this was particularly crucial because of the short 
duration of the RCA eligibility period. The timeliness of the process 
should be responsive to the refugee's need for a quick resolution.
    One commenter asked whether an independent mediator on contract 
with a local resettlement agency would be an acceptable approach and if 
so, where would funding come from to pay for such a mediator. One 
commenter opposed contracting out the adjudication of appeals to any 
private entity. The commenter expressed the opinion that local 
resettlement agencies do not have the structure to administer an 
appeals process. The commenter felt that the entire appeals process 
should remain in the public agency where an adjudicatory structure and 
necessary safeguards exist to protect client rights. Two commenters 
recommended that hearings be conducted by an impartial official outside 
of the local resettlement agency. One of the commenters specified that 
the independent outside entity must be a State or local hearing 
authority. Three commenters felt that the final arbiter of disputes 
should be the State. One commenter recommended that States be given the 
option of choosing to have all hearings, including the initial hearing, 
conducted outside of the local resettlement agency. Two commenters felt 
that the final rule should explicitly indicate that the final hearing 
by an independent outside entity must be conducted prior to termination 
of benefits. The final rule should specify that aid must be paid 
pending this independent hearing.
    One commenter recommended that States be required to specify the 
hearing process to be used in their State Plan. The commenter felt that 
States should have the option to elect the Food Stamp administrative 
hearing process rather than the TANF process since RCA recipients are 
also likely to be Food Stamp recipients and the same action would 
result in a sanction in both programs.
    One commenter was concerned that a non-centralized fair hearing 
system may increase the possibility of non-uniform treatment of 
refugees in the appeals process. Six commenters expressed concern that 
local resettlement agencies will be required to fully replicate the 
welfare system functions to meet client protection requirements. Three 
commenters urged ORR to allow some flexibility in the design of due 
process protections and suggested that the Matching Grant program be 
looked at as a model.
    Response: We have created a new Sec. 400.54 that provides more 
detail about the appeals process resulting from any adverse action in 
the RCA program, including sanctions. While we recognize that local 
resettlement agencies may find it burdensome to put into place required 
due process procedures, the due process requirements set forth in the 
U.S. Supreme Court decision in Goldberg v. Kelly must, by law, be met. 
Publicly-administered RCA programs may use the TANF hearing procedures, 
Food Stamp hearing procedures, or any other public agency hearing 
procedures in accordance with Sec. 400.54(b)(2) as long as they meet 
the due process

[[Page 15437]]

standards in Goldberg v. Kelly and as long as the sanction requirements 
under Sec. 400.82(c)(2), which are required by statute, are followed. 
In keeping with the commenter's suggestion, States are required under 
Sec. 400.54(b)(2) to indicate in their State Plan the hearing process 
to be used. In developing a public/private RCA program, States and 
local resettlement agencies may decide, as several commenters 
suggested, that the best arrangement would be for all hearing requests 
to be referred to a State-administered hearing process, such as the 
TANF hearing process or some other public agency hearing process. 
States and local resettlement agencies may decide, however, not to use 
a pre-existing State-administered process. We wish to note that the 
courts have never stated that due process and, in particular, fair 
hearings, must be provided by a governmental agency. In fact, the 
Supreme Court affirmed a prior Medicare Part B process which required 
final, non-reviewable decisions to be made by hearing officers 
appointed by private insurance companies. See Schweiker v McClure, 456 
U.S. 188 (1982).
    Although the AFDC rules did not permit aid to be paid to the 
claimant pending an administrative appeal of an adverse evidentiary 
decision, we agree with the recommendation that a refugee's RCA 
benefits should not be terminated until after a final administrative 
action has been taken. We have included this requirement in the final 
rule at Sec. 400.54(b)(4). Of course, if the agency action is upheld, 
the assistance must be repaid.
    In response to the comment on mediation, it would be an acceptable 
approach for a local resettlement agency to contract with an 
independent mediator, if the State agrees to this approach. This type 
of service is administrative in nature and could be claimed against the 
State's CMA grant.
    The comments regarding the need for time frames is well-taken. We 
have added specific time frames for completion of the mediation and 
hearing process in the public/private RCA program as follows: In 
accordance with Sec. 400.83(a)(1), mediation must begin 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. This is the same time 
frame we required for conciliation in prior ORR regulations. Regarding 
a time frame for completion of the hearing process, we have decided in 
Sec. 400.54(b)(1)(iii) to require that final and definitive 
administrative action must be taken within 60 days from the date of a 
request for a hearing in the case of a public/private RCA program where 
a pre-existing State-administered hearing process is not used.

Comments on Subpart G--Refugee Medical Assistance

Section 400.100
    Comment: Two commenters suggested that Sec. 400.100(a)(4) be 
deleted or revisited because mandatory termination of medical benefits 
for clients sanctioned under either the public/private or public RCA 
program should not occur. One of the commenters noted that the refugee 
program statute does not authorize or mandate denial of eligibility for 
RMA if a refugee has lost RCA eligibility due to a sanction. Another 
commenter pointed out that States have the option to terminate medical 
benefits for clients receiving TANF who are sanctioned. One of the 
commenters recommended that, at a minimum, States should be given the 
option as to whether to have a policy that denies RMA to refugees in 
RCA sanction status and/or be allowed to align their RCA/RMA sanction 
policy with their TANF/Medicaid sanction policy.
    One commenter felt the use of the term ``filing unit'' is 
technically more correct and consistent with Medicaid eligibility 
requirements and should be maintained.
    Response: We agree with the commenters that Sec. 400.100(a)(4) 
which limits eligibility for RMA to refugees who have not been denied 
or terminated from RCA should be removed. We have done so. We have been 
advised that the more correct term to use, in keeping with Medicaid 
terminology, is ``assistance unit''. We have changed the term 
accordingly.
Section 400.101
    Comment: Four commenters strongly supported the provision for 
increased flexibility for RMA eligibility determinations. Several 
commenters expressed concern that the ability to set higher financial 
eligibility standards only seemed to apply to States with medically 
needy programs under Medicaid and does not apply to refugees in States 
without medically needy programs. The commenters recommended coverage 
as well in States without a medically needy program in order to allow 
more refugees to remain eligible if they have earnings and to allow 
more late arriving spouses to be eligible. One commenter said that 
there is no apparent legal or policy reason to restrict either the 
Section 1931 financial eligibility option or the 200% of the Federal 
poverty level option, therefore the regulations should be changed to 
provide all States with as much flexibility as possible to use a higher 
financial eligibility standard.
    One commenter recommended that if the final rule continues the 
requirement that States without a medically needy program must use 
their section 1931 methodologies in their RMA program, the final rule 
should be revised to at least allow a State to use the methodologies 
that a State currently has in place in their Section 1931 category, 
rather than require States to use the July 16, 1996, methodologies.
    One commenter recommended eliminating Sec. 400.101(b) so that 
obsolete AFDC need standards do not have to be applied to RMA. The 
commenter felt that this subsection is repetitive with the following 
section.
    Response: After considering the comments, we have revised this 
section to extend the 200% of the Federal poverty level eligibility 
standard option to RMA programs in all States. We have also amended 
Sec. 400.101(b) to allow a State to use the section 1931 methodologies 
that a State currently has in place.
Section 400.102
    Comment: Four commenters supported RMA eligibility being determined 
on the basis of income on the date of application. Two commenters 
recommended that the final rule indicate that cash assistance provided 
through the public/private partnership should not be determined as 
either income or asset for purposes of RMA eligibility. The commenters 
hoped that this revision would eliminate the need for spend-down which 
is a hardship on newly arrived refugees and is hard to administer. One 
commenter felt that ORR should use the term ``methodologies'' wherever 
the word ``standards'' is currently used in this section to be 
consistent with the terminology used in the Medicaid statute.
    Response: In considering the comments, we have decided to add a 
requirement that cash assistance payments may not be considered in 
determining eligibility for RMA. This would apply to cash assistance 
payments made under the publicly-administered RCA program, the 
Department of State's Reception and Placement program, the Matching 
Grant program, a Wilson/Fish alternative project, and the public/
private RCA program. This change will ensure that cash assistance 
payment levels such as those in the public/private RCA program will not 
jeopardize RMA eligibility.

[[Page 15438]]

    We have added the word ``methodologies'' to this section.
Section 400.103
    Comment: One commenter indicated that some States do not have spend 
down programs and, instead, use their own state-funded medical 
assistance programs. The commenter recommended deleting this section or 
amending it to allow States to use a substitute methodology appropriate 
for their State. Another commenter recommended changing this provision 
to allow refugees with medical expenses to spend down to the financial 
eligibility standards that are used in the State's RMA program.
    Response: We have clarified this section so it is clear now that 
States with a medically needy program and States without a medically 
needy program must allow RMA applicants to spend down to the requisite 
financial eligibility standard used in their State. The provision has 
been amended to require States to allow applicants for RMA who do not 
meet the financial eligibility standards used by the State to spend 
down to such a standard using an appropriate method for deducting 
incurred medical expenses. The State can use the methods set forth in 
42 CFR 435.831(d) or a reasonable substitute methodology.
Section 400.104
    Comment: Six commenters wrote in support of the provision to allow 
refugees who lose eligibility for Medicaid due to early employment to 
be transferred to RMA. Two commenters recommended that this provision 
be revised to make the transfer from Medicaid to RMA without an 
eligibility determination mandatory. One commenter suggested that the 
provision be revised to ensure that a refugee who is receiving Medicaid 
and has been residing in the U.S. less than the time eligibility for 
RMA, is transferred to RMA without an eligibility redetermination ``for 
the duration of the 8-month eligibility period.''
    Response: We have amended this provision by making the transfer 
from Medicaid to RMA without an eligibility determination mandatory.

Comments on Subpart I--Refugee Social Services

Section 400.152
    Comment: Twenty commenters suggested that ORR add citizenship/
naturalization services to the list of allowable services for refugees 
who have been in the U.S. more than 60 months. Two commenters said that 
the term ``referral and interpreter services'' should be defined, 
questioning whether translation services are included in interpreter 
services and whether information can be provided, or only referral. 
This commenter asked whether emergency services and community education 
of the elderly, youth gang intervention, resolving intergenerational 
conflict and similar services are to be provided only to refugees who 
have been in the U.S. less than 5 years. This commenter recommends that 
more expensive employability related services and ESL be provided for 
the under 5-year population while the occasional emergency and other 
community services be provided without regard to time in country.
    Response: We agree with the commenters that citizenship/
naturalization services should be available to refugees who have been 
in the U.S. more than 5 years as well as refugees who have in the 
country less than 5 years. We have amended Sec. 400.152 accordingly. We 
define referral and interpreter services to include translation 
services as well as the provision of information about services to 
which a refugee will be referred. We also consider referral and 
interpreter services to include assistance to refugees to apply for the 
referred service or benefit and following up to ensure that refugees 
receive the service.
    Services such as emergency services, community education of the 
elderly, youth gang intervention, conflict resolution, and other 
community services may not be provided to refugees in the U.S. over 5 
years unless these services are funded by ORR non-formula social 
services or non-formula targeted assistance funds.
Section 400.155
    Comment: Thirty-four commenters expressed support for the inclusion 
of citizenship services as an allowable service under the social 
services and targeted assistance formula programs. One commenter 
suggested that ORR consider allowing voluntary agencies to be 
reimbursed for the costs of assisting refugees to obtain employment 
authorization documents. This commenter also suggested that ORR allow 
the cost of assisting refugees to apply for adjustment of status to 
legal permanent resident. Another commenter suggested that ORR clarify 
that funds can be used to assist disabled refugees in obtaining N-648 
disability waivers from English and civics requirements for 
naturalization.
    Response: To clarify, we do consider citizenship services to 
include the cost of assisting refugees to apply for adjustment to legal 
permanent resident status and the cost of assisting disabled refugees 
to obtain N-648 disability waivers from English and civics requirements 
for naturalization. Agency assistance to help asylees to obtain 
employment authorization documents (EADs) is not a citizenship service. 
However, we see it as an employability service and have added 
assistance to obtain EADs as an allowable service under Sec. 400.154. 
Assistance to obtain EADs, as an allowable service for which ORR funds 
may be used, must be limited to the agency staff time used to assist an 
asylee or refugee to obtain an EAD and does not include paying the fee 
for EADs.

Comments on Subpart J--Federal Funding

Section 400.207
    Comment: One commenter said that the regulation does not address 
how administrative costs will be determined, especially for States with 
very low refugee numbers. One commenter asked whether a State could 
limit voluntary agency administrative costs. Two commenters asked for 
clarification as to what constitutes reasonable cost and who makes that 
determination. One commenter asked whether there is a guaranty that all 
CMA administrative costs will be reimbursed by ORR.
    Response: It is up to a State to determine its administrative costs 
for the public/private RCA program; ORR does not determine a State's 
administrative cost needs. In answer to the second comment, a State may 
limit the administrative costs of participating resettlement agencies. 
Regarding reimbursement of CMA administrative costs, we will reimburse 
100% of a State's reasonable and necessary identifiable administrative 
costs, including the administrative costs of the public/private RCA 
program, to the extent available appropriated funds allow. To date, 
since the inception of the refugee program in 1980, ORR has been able 
to reimburse States each year for 100% of their administrative costs 
with available appropriated funds.
    In regard to what constitutes reasonable cost and who makes that 
determination, we refer commenters to ORR's cost allocation guidelines 
which were issued to States in 1985 and continue in effect. See 
Transmittal No. 85-137 (June 18, 1985). These guidelines describe the 
kinds of administrative costs that States may claim and the allocation 
of these different types of administrative costs to different ORR 
funding sources. These guidelines, however, do not prescribe a

[[Page 15439]]

dollar amount to each type of administrative cost. States are currently 
allowed to claim 100% of their actual administrative costs as long as 
these costs are for the kinds of administrative activities listed in 
the ORR cost allocation guidelines. Thus ORR, as the ACF office 
responsible for issuing refugee program cost allocation guidelines, and 
States, which are responsible for setting the cost of different 
administrative activities, are both responsible for making the 
determination as to what constitutes reasonable administrative costs in 
the refugee program.
Section 400.210
    Comment: Nine commenters expressed support for the proposed change 
to extend the due date for a State's final financial report for social 
services and targeted assistance formula grants. Two of these 
commenters indicated that 90 days for closeout may not be long enough, 
with one commenter suggesting 120 days for closeout. One commenter 
stated that ORR's prohibition against obligating cash and medical 
assistance beyond the current fiscal year presents a procedural problem 
for the public/private partnership, which will have to operate on a 
contractual basis.
    Response: The due date for a State's final financial report for 
social services and targeted assistance formula grants will remain at 
no later than 90 days after the end of the two-year expenditure period. 
We do not believe a longer close-out period is warranted.
Section 400.211
    Comment: One commenter asked what ORR will do when there is excess 
money, given the proposed change to Sec. 400.211. The commenter 
suggested that excess funds be passed on to States for their uncovered 
costs and unfunded mandates of resettling refugees.
    Response: The purpose of the proposed change to this section is to 
avoid a situation where ORR would be required by its regulation to 
increase the RCA/RMA eligibility period mid-way through the fiscal year 
because a redetermination is made at that time that indicates 
sufficient funds are available to raise the RCA/RMA eligibility period 
for the remainder of the fiscal year. Raising the eligibility period to 
9 months for the balance of the fiscal year and then reducing it back 
to the current 8-month eligibility period at the beginning of the next 
fiscal year, due to insufficient funds to sustain the higher 
eligibility period, would not be in the best interests of either 
refugee recipients or the States that have to administer RCA and RMA. 
Regarding our use of excess funds, in budgeting our funds, we reserve 
some unspent funds to cover late CMA claims that States have a year to 
submit after the end of the fiscal year in which the funds were 
awarded. Beyond that, we have used statutory carry-forward language 
contained in recent appropriation laws to provide surplus CMA funds to 
States for social services or to help cover the resettlement costs of 
emergency arrivals such as the Kurds in FY 1997, and more recently, the 
Kosovars.

Other Comments

    Comment: Nineteen commenters expressed concern that it would not be 
in the best interests of refugees to reduce available funding levels 
for formula and discretionary refugee social services to pay for high 
administrative costs to run the new program. One commenter adamantly 
opposed the use of social service funds to cover administrative costs 
in the new program. Another commenter noted that even States that 
choose not to operate a public/private program would be hurt to the 
extent that the increased costs for start-up, training, and monitoring 
in the new RCA program in participating States would result in the 
availability of less non-formula social service funding for other 
States.
    Four commenters expressed the opinion that refugees will be 
penalized after the initial years of start-up because the increased 
administrative costs needed to run the new program will have to be paid 
with social services funding or a reduction in the RCA eligibility 
period. Two commenters expressed concern that ultimately the cost of 
administration for the new program will be at the expense of essential 
refugee services. Two commenters stated that ORR non-formula funds 
should be used to assist long-term refugee TANF recipients to become 
self-sufficient, not to pay for start-up costs. Another commenter 
stated that the use of discretionary social services funds to 
supplement formula funds may result in curtailing some discretionary 
projects that are in place, which will compromise services now and 
doubly so at the end of the grace period. One commenter would welcome 
additional social services funds in lieu of the program changes. 
Another commenter stated that the costs of the new program would 
further erode refugee social services, which have steadily declined on 
a per capita basis over the past 12 years.
    Response: The administrative costs of the new public/private RCA 
program will be covered by CMA funds, not social service funds. During 
the initial years of start-up, we intend to supplement States' formula 
social services allocations with non-formula social services funds to 
cover the services component of the new RCA program, not the 
administrative component of the new program. These funds will not be 
used to cover the program's administrative costs, except for the 
administrative costs of providing social services. After the initial 
years of start-up, the service component of the new program will be 
covered by a State's formula social services funds, while the program's 
administrative costs will continue to be claimed against CMA funds. 
Regarding the concern that the use of non-formula social service funds 
to supplement State formula social services could result in curtailing 
some discretionary projects now in place, ORR's non-formula social 
service funding has been sufficient over the years to cover 
continuation projects as well as new funding uses. We do not agree with 
the assertion that refugee social services funds have steadily declined 
on a per capita basis over the past 12 years. To the contrary, refugee 
formula social services funds have increased somewhat over the 12-year 
period, while non-formula social services have increased dramatically 
over recent years. Since FY 1995, refugee arrivals have declined, 
thereby increasing the per capita amount for services.
    Comment: Sixteen commenters expressed concern about how the 
establishment of the new public/private RCA program would affect the 
continued operation of the Matching Grant program and wondered how the 
two programs would be synchronized. The commenters were concerned that 
the use of the Matching Grant program would be diminished.
    Response: We do not intend to reduce the use of the Matching Grant 
program. The Matching Grant program is an important alternative program 
for moving refugees to early self-sufficiency and we remain committed 
to the program. As State plans for establishing a public/private RCA 
program emerge, we will work with the Matching Grant agencies to 
determine in what ways the Matching Grant program should be modified, 
if at all, to ensure that the public/private program in a State and a 
Matching Grant program in the same State are working in concert to 
avoid duplication.
    Comment: Four commenters felt that the final rule should provide 
adequate transition rules between the old and new RCA programs. Two 
commenters stated that ORR should fund an overlap

[[Page 15440]]

period to ensure that refugees in the old program experience no 
interruption of benefits.
    Response: We would anticipate that States which decide to establish 
a public/private RCA program would plan to have an overlap period where 
refugees currently on RCA would continue in the old RCA program until 
their eligibility expires, while refugees who arrive in the State after 
a certain date would enter the new public/private program. We intend to 
reimburse States for the RCA costs in both programs during the overlap 
period.
    Comment: Two commenters made the point that employment services 
under the new RCA program should be coordinated with Food Stamp 
employment and training activities (E&T), noting that able-bodied 
refugee Food Stamp recipients must meet Food Stamp employment and 
training participation requirements in order to receive more than 3 
months of Food Stamps. One of the commenters asked if the final rule 
would give the States the authority to pass on to private agencies any 
financial penalties that result from the agencies' RCA/Food Stamp 
recipients not participating in the required E&T services.
    Response: We received guidance from the Food Stamp Program on 
November 11, 1997, which clarified that refugee employability services 
approved, funded, or operated by ORR are federally recognized training 
programs for the purposes of Food Stamp eligibility. Therefore, 
refugees participating at least half-time in programs approved or 
funded by ORR are exempt from Food Stamp work requirements and time 
limits. We transmitted this information to States, national voluntary 
agencies, ORR discretionary grantees, and other interested parties 
through ORR State Letter 97-28 on December 5, 1997. The exemption from 
Food Stamp employment and training participation would apply to RCA 
recipients participating in the public/private RCA program.
    Comment: One commenter said that the final regulation should 
address the need for changes to voluntary agency placement policy and 
require both consultation with States as to their capacity and the 
resettlement of free cases in areas not already highly impacted.
    Response: We are engaged in ongoing discussions with the Department 
of State (DOS) and the national voluntary agencies on placement policy, 
including the issues raised by the commenter.
    Comment: Several commenters expressed concern about how the public/
private RCA program would be coordinated with the Department of State 
Reception and Placement (R&P) program. Two commenters felt that States 
would need to recognize the requirements for employment under the R&P 
program so that local resettlement agencies would be able to maintain 
their ability to place free cases in the State. Another commenter asked 
whether the provision for free case employment will be maintained. One 
commenter said that RCA handled by the local resettlement agencies 
would enable more refugees to receive RCA, thereby providing a more 
viable bridge between reception and placement support and earned 
income. One commenter asked how existing agreements between the 
voluntary agencies and the State Department would be changed and asked 
about the role of the State Department in the public private 
partnership. One commenter asked whether services to refugees resettled 
by a voluntary agency in an adjoining state are to take the place of 
State Department reception and placement services. One commenter noted 
that Sec. 400.51 appears to allow RCA during the first 30 days, which 
is contrary to DOS reception and placement provisions.
    Response: We agree that the relationship between the State 
Department's R&sP program and the public/private RCA program is 
important. We will work in partnership with the State Department to 
ensure that the two programs work well together to achieve the goal of 
seamless and coordinated services for RCA recipients. We intend to 
address the issues raised by the commenters in discussions with the 
Department of State, States, and the voluntary agencies soon after 
publication of the final rule.
    Regarding the comment about RCA eligibility during a refugee's 
first 30 days in the U.S., ORR regulations have never precluded a 
refugee from accessing RCA during his/her first 30 days in the U.S. If 
a refugee who is receiving assistance and services under the DOS 
Reception and Placement program wishes to apply for RCA, under 
Sec. 400.50(a), a State agency must provide that refugee the 
opportunity to apply for RCA and determine the eligibility of that 
applicant, the same as any other applicant.
    Comment: Three commenters stated that the new public/private RCA 
program appears to be in conflict with the national move to co-locate 
employment and training services in a coordinated one-stop system. One 
commenter felt that the proposed program would remove refugees and 
refugee services from the one-stop system potentially hindering refugee 
utilization of other programs.
    Response: The refugee service system in most States is a separate 
network of resettlement and employment services that are not co-located 
in a one-stop shop system. The establishment of a new public/private 
RCA program would not alter this arrangement. Because of the unique 
nature of the refugee resettlement program, Congress did not intend for 
refugee program services to be merged into a one-stop shop system with 
employment and training services for the general population. To the 
extent that services are offered at a one-stop shop that are 
appropriate to the needs of refugees, we encourage refugee providers to 
help refugees to access those services.
    Comment: One commenter recommended an immediate effective date for 
the RMA changes and the inclusion of citizenship services as an 
allowable service.
    Response: The general effective date in this rule is 30 days from 
the date of publication of the final rule, as required by the 
Administrative Procedure Act, 5 U.S.C. Sec. 553(d). However, we 
recognize that States vary in the amount of time required to revise RMA 
policy instructions and implement the changes in RMA and that some 
States may not be able to implement these changes within the 30-day 
time frame. Therefore, while we expect States to implement the RMA 
changes as quickly as possible, we will allow States that need extra 
time to implement the RMA provisions no later than 90 days after the 
date of publication of the final rule. The 90-day effective date for 
the RMA provisions is indicated in the Effective Date section of this 
rule.

Regulatory Impact Analyses

A. Executive Order 12866

    Executive Order 12866 requires that regulations be drafted to 
ensure that they are consistent with the priorities and principles set 
forth in the Executive Order. The Department has determined that this 
final rule is consistent with these priorities and principles. This 
final rule implements statutory authority based on broad consultation 
and coordination.
    The Executive Order encourages agencies, as appropriate, to provide 
the public with meaningful participation in the regulatory process. As 
described elsewhere in the preamble, ORR conducted eight consultations 
around the country and two teleconferences to discuss whether and how 
States, voluntary agencies, service providers, and refugee 
organizations would like to

[[Page 15441]]

see the regulations changed. These meetings were attended by close to 
500 participants representing the broad resettlement network. We also 
consulted with representatives of States, Washington-based interest 
groups, refugee mutual assistance associations, and national voluntary 
agencies in follow-up sessions in Washington, D.C. to discuss what we 
learned from the initial round of consultations and to obtain feedback 
on our possible regulatory changes. We received additional feedback 
after group representatives consulted more broadly within their 
networks following the last round of meetings. The input we received is 
reflected in these regulations to a considerable degree.
    These rules represent a renewed, more flexible stage in the refugee 
program State/Federal partnership. Rather than requiring that one 
national program fit all local situations, ORR has provided States the 
option to establish a public/private RCA program with local 
resettlement agencies or continue a publicly-administered RCA program 
modeled after their TANF program. If a State chooses to establish a 
public/private RCA program, the State has the flexibility to determine 
that the public/private RCA partnership would work well in only one 
community, and propose to implement a geographically split model.
    Under the public/private RCA program, we have also given States and 
local resettlement agencies broad flexibility to design a program which 
they believe will best serve refugees in their community. Rather than 
prescribing certain elements, we have given States and resettlement 
agencies the flexibility to determine: The income standard for receipt 
of RCA in their State; the benefit level within a broad range of 
benefit levels; whether employment incentives should be provided, and 
if so, how those incentives should be provided; the services to be 
provided; and the procedures States and local resettlement agencies 
will put in place to ensure due process and protections for refugees. 
States are also given the option to set a higher need standard for 
refugee medical assistance. And within the proposed public/private RCA 
plan structure, there are several administrative models which may be 
considered by States and local resettlement agencies.
    One of our key goals in drafting the regulations was to recognize, 
encourage, and enhance the partnerships that Congress intended with the 
passage of the Refugee Act. Although we have drafted regulations for a 
federally-funded program, this rule is intended to reflect our 
recognition that resettlement takes place at the local level and works 
best when all parties work together. In the final rule, we have tried 
to support the different, but equally important, contributions that the 
public and private sectors are able to bring to the refugee 
resettlement process. We hope that the final rule will serve to foster 
better and stronger partnerships at all levels, including those among 
local resettlement agencies and service providers, which will result in 
good resettlement.
    We estimate that the regulatory changes in the final rule could 
result in increased costs of approximately $8 million annually due to 
added administrative costs of local resettlement agencies in States 
that elect to establish a public/private program, $8 million annually 
for expanded refugee eligibility for refugee medical assistance, and $1 
million for RCA payment ceilings. We believe that the number of States 
that will choose the public/private program option, however, may be 
limited.
    This rule is considered significant and has been reviewed by OMB.

B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (5 U.S.C. Ch. 6) requires the 
Federal government to anticipate and reduce the impact of rules and 
paperwork requirements on small businesses and other small entities. 
Small entities are defined in the Act to include small businesses, 
small non-profit organizations, and small governmental entities. This 
rule will affect 46 participating States and the District of Columbia, 
and local resettlement agencies that agree to assume responsibility for 
providing cash assistance and services to newly arrived refugees in 
States that elect to establish the new public/private RCA program. 
Local resettlement agencies are non-profit private organizations that 
are responsible for the initial resettlement of refugees in the U.S. 
under cooperative agreements with the Department of State. 
Participation of these local agencies in the public/private RCA program 
to be established by this regulation will be strictly voluntary. In 
addition, local resettlement agencies that choose to assume 
responsibility for the new RCA program will be fully funded with 
Federal refugee program funds. These rules will only have an impact on 
those small entities (local resettlement agencies) that voluntarily 
elect to participate in the public/private RCA program. Thus, a 
regulatory flexibility analysis is not required.

C. Paperwork Reduction Act of 1995

    The following sections contain information collection, third party 
reporting, or recordkeeping requirements that are subject to review and 
approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)): Secs. 400.50(b), 
400.54, 400.55, 400.57(b), 400.58, 400.65, and 400.68(b). The 
Administration for Children and Families has submitted a copy of these 
sections to the Office of Management and Budget (OMB) for its review.
    Section 400.54(a) requires that States or their designees provide 
notice to applicants or recipients to indicate that assistance has been 
authorized, denied, or terminated and the program under which that 
determination was made. Section 400.54(b) requires States to specify in 
their State Plans the hearing procedures to be followed in the RCA 
program and requires that the written notice of any hearing 
determination adequately explains the basis for the decision and any 
further appeal rights. Section 400.55 requires that States or their 
designee agency(s) make available to refugees the written policies and 
all notices in English and in appropriate languages where a significant 
number or proportion of the recipient population requires information 
in a particular language, in accordance with Department of Justice 
regulations at 28 CFR 42.405(d)(1) regarding compliance with title VI 
of the Civil Rights Act of 1964. Section 400.57(b) requires that each 
local voluntary agency resettling in a State inform its national 
resettlement agency of the proposed public/private RCA program and 
obtain a letter of agreement from the national agency. Section 400.58 
requires that States submit a public/private RCA plan for ORR review 
and approval before the State implements the plan. Section 400.65 
requires States that elect to operate a publicly-administered RCA 
program to submit an amendment to their State Plan describing the 
elements of their TANF program that will be used in their RCA program.
    The information in these plans is needed to carry out ORR's 
oversight responsibilities under section 412 of the Immigration and 
Nationality Act. Additionally, certain information is typically 
necessary to respond to Congressional and other inquiries about the 
program.
    The effect of these information collection, reporting, or third-
party notification requirements will be

[[Page 15442]]

limited to the 46 States and the District of Columbia that participate 
in the refugee program, and 2-3 non-profit agencies that administer the 
program in States that no longer participate in the refugee program. We 
anticipate that a limited number of States will elect to operate a 
public/private RCA program; those States that choose not to operate 
such a program will not have to submit a public/private RCA plan. Those 
States that choose to implement a public/private RCA program will have 
to submit a public/private RCA plan only once. Additional submissions 
will only be necessary if the plan is modified in the future. The 
average burden per response for the preparation of an RCA plan is 
estimated to be 24 hours. The total maximum annual reporting and 
recordkeeping burden that will result from this collection of 
information is an estimated 1,176 hours if all States elect to 
implement a public/private RCA program. States that wish to operate a 
publicly-administered RCA program will have to submit an amendment to 
their State Plan once. The average burden per response for the 
preparation of a State Plan amendment is estimated to be 3 hours. The 
total maximum annual reporting and recordkeeping burden that will 
result from this collection of information is an estimated 147 hours if 
all States elect to operate a publicly-administered RCA program. Other 
requirements, such as the State plan (Sec. 400.5), are not changed. 
States receiving refugee program funds have a plan on file at ORR. We 
estimate the number of hours required to amend the plan to be a maximum 
of 1 hour annually. The total maximum annual reporting and 
recordkeeping burden that will result from this collection of 
information is estimated to be no more than 47 hours if all States 
amend their plan in a given year. We estimate the average burden for 
other sections as follows: Sec. 400.54 will be 1,200 hours annually; 
Sec. 400.57(c) will be 200 hours the first year; Sec. 400.55 will be 
1,000 hours the first year and 300 hours annually thereafter.

D. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1532) requires that a covered agency prepare a budgetary impact 
statement before promulgating a rule that includes any Federal mandate 
that may result in the expenditure by State, local, and Tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any one year.
    If a covered agency must prepare a budgetary impact statement, 
section 205 further requires that it select the least costly, most 
cost-effective or least burdensome alternative that achieves the 
objectives of the rule and is consistent with the statutory 
requirements. In addition, section 203 requires a plan for informing 
and advising any small government that may be significantly or uniquely 
impacted by the proposed rule.
    We have determined that this final rule will not impose a mandate 
that will result in the expenditure by State, local, and Tribal 
governments, in the aggregate, or by the private sector, of more than 
$100 million in any one year. Accordingly, we have not prepared a 
budgetary impact statement, specifically addressed the regulatory 
alternatives considered, or prepared a plan for informing and advising 
any significantly or uniquely impacted small government.

E. Family Well-Being Impact

    As required by Section 654 of the Treasury and General Government 
Appropriations Act of 1999, we have assessed the impact of this final 
rule on family well-being. The final rule implements new provisions for 
RCA and RMA, programs which serve primarily single refugees, childless 
couples, or couples with adult children. We believe that the provisions 
contained in this rule promote better, more timely support for 
refugees. We expect this to strengthen families as they will receive a 
better economic start in the U.S. and move toward self-sufficiency in a 
more supportive environment.

F. Executive Order 13132

    Executive Order 13132 on Federalism applies to policies that have 
federalism implications, defined as ``regulations, legislative comments 
or proposed legislation, and other policy statements or actions that 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.'' 
This rule does not have federalism implications as defined in the 
Executive Order. The impact of this rule is not substantial as defined 
in the Executive Order. Rather, this rule provides States increased 
options for administering refugee resettlement programs.

G. Congressional Review of Rulemaking

    This rule is not a ``major'' rule as defined in chapter 8 of 5 
U.S.C.

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

45 CFR Part 400

    Grant programs-Social programs, Health care, Public assistance 
programs, Refugees, Reporting and recordkeeping requirements.

45 CFR Part 401

    Cuba, Grant programs-Social programs, Haiti, Health care, Public 
assistance programs, Refugees.

    Dated: October 14, 1999.
Olivia A. Golden,
Assistant Secretary for Children and Families.

    Approved: November 22, 1999.
Donna E. Shalala,
Secretary, Department of Health and Human Services.

    For reasons set forth in the preamble, 45 CFR Parts 400 and 401 are 
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)).
    2. Section 400.2 is amended as follows:
    a.-b. Removing the word ``AFDC'' wherever it appears in this 
section and adding in its place the word ``TANF'';
    c. Removing the word ``to'' after the word ``refer'' in the 
definition of case management services; 
    d. Removing the definitions of AFDC and Voluntary resettlement 
agency; and
    e. Adding in alphabetical order definitions of Designee, Economic 
self-sufficiency, Family unit, Local resettlement agency, National 
voluntary agency, RCA Plan and TANF to read as follows:


Sec. 400.2  Definitions

* * * * *
    Designee, when referring to the State agency's designee, means an 
agency designated by the State agency for the purpose of carrying out 
the requirements of this part.
* * * * *
    Economic self-sufficiency means earning a total family income at a 
level that enables a family unit to support itself without receipt of a 
cash assistance grant.
* * * * *

[[Page 15443]]

    Family unit means an individual adult, married individuals without 
children, or parents, or custodial relatives, with minor children who 
are not eligible for TANF, who live in the same household.
* * * * *
    Local resettlement agency means a local affiliate or subcontractor 
of a national voluntary agency that has entered into a grant, contract, 
or cooperative agreement with the United States Department of State or 
other appropriate Federal agency to provide for the reception and 
initial placement of refugees in the United States.
* * * * *
    National voluntary agency means one of the national resettlement 
agencies or a State or local government that has entered into a grant, 
contract, or cooperative agreement with the United States Department of 
State or other appropriate Federal agency to provide for the reception 
and initial placement of refugees in the United States.
* * * * *
    RCA Plan means a written description of the public/private RCA 
program administered by local resettlement agencies under contract or 
grant with a State.
* * * * *
    TANF means temporary assistnace for needy families under title IV-A 
of the Social Security Act.
* * * * *

    3.-10. Section 400.5 is amended in paragraph (h) by removing the 
words ``local affiliates of voluntary resettlement agencies'' and 
adding in their place the words ``local resettlement agencies'', and by 
adding paragraph (i) to read as follows:


Sec. 400.5  Content of the plan.

* * * * *
    (i) Provide that the State will:
    (1) Comply with the provisions of title IV, Chapter 2, of the Act 
and official issuances of the Director;
    (2) Meet the requirements in this part;
    (3) Comply with all other applicable Federal statutes and 
regulations in effect during the time that it is receiving grant 
funding; and
    (4) Amend the plan as needed to comply with standards, goals, and 
priorities established by the Director.


Sec. 400.11  [Amended]

    11.-12. Section 400.11 is amended in paragraph (a)(1) by removing 
the words ``aid to families with dependent children (AFDC)'' and adding 
in their place the words ``temporary assistance for needy families 
(TANF)'', and by revising in paragraph (b)(1) the word ``then'' to read 
``than''.

    13.-14. Section 400.13 is amended by adding a new paragraph (e) 
that reads as follows:


Sec. 400.13  Cost allocation.

* * * * *
    (e) Administrative costs incurred by local resettlement agencies in 
the administration of the public/private RCA program (i.e., 
administrative costs of providing cash assistance) may be charged to 
the CMA grant. Administrative costs of managing the services component 
of the RCA program must be charged to the social services grant.


Sec. 400.23  [Amended]

    15. Section 400.23 is amended in paragraph (a) by adding the words 
``unless otherwise specified in this part'' after the word 
``programs'', and in paragraph (b) by adding the words ``or its 
designee'' after the word ``State''.


Sec. 400.27  [Amended]

    16.-17. Section 400.27 is amended in paragraph (b) by removing the 
words ``voluntary resettlement agency, as defined in Sec. 400.2'' and 
adding in their place the words ``local resettlement agency or by a 
local resettlement agency to a State'', and by removing paragraph (c).

    18.-19. Section 400.43 is amended by removing paragraphs (a) (2) 
and (5) and by redesignating paragraphs (a)(3) and (4) as paragraphs 
(a)(2) and (3) respectively; and by adding new paragraphs (a)(4) and 
(5) that read as follows:


Sec. 400.43  Requirements for documentation of refugee status.

    (a) * * *
    (4) Cuban and Haitian entrants, in accordance with requirements in 
45 CFR part 401;
    (5) Certain Amerasians from Vietnam who are admitted to the U.S. as 
immigrants pursuant to section 584 of the Foreign Operations, Export 
Financing, and Related Programs Appropriations Act, 1988 (as contained 
in section 101(e) of Public Law 100-202 and amended by the 9th proviso 
under Migration and Refugee Assistance in title II of the Foreign 
Operations, Export Financing, and Related Programs Appropriations Acts, 
1989 (Public Law 100-461 as amended)); or
* * * * *


Sec. 400.44  [Amended]

    20. Section 400.44 is amended by adding the words ``unless 
otherwise provided by Federal law'' after the word ``Act'' at the end 
of the sentence.
    21. Subpart E is revised to read as follows:
Subpart E--Refugee Cash Assistance
Sec.
400.45   Requirements for the operation of an AFDC-type RCA program.
400.48   Basis and scope.
400. 49   Recovery of overpayments and correction of underpayments.
400.50   Opportunity to apply for cash assistance.
400.51   Determination of eligibility under other programs.
400.52   Emergency cash assistance to refugees.
400.53   General eligibility requirements.
400.54   Notice and Hearings.
400.55   Availability of agency policies.

Public/Private RCA Program

400.56   Structure.
400.57   Planning and consultation process.
400.58   Content and submission of public/private RCA plan.
400.59   Eligibility for the public/private RCA program.
400.60   Payment levels.
400.61   Services to public/private RCA recipients.
400.62   Treatment of eligible secondary migrants, asylees, and 
Cuban/Haitian entrants.
400.63   Preparation of local resettlement agencies.

Publicly-Administered RCA Programs

400.65   Continuation of a public-administered RCA program.
400.66   Eligibility and payment levels in a publicly-administered 
RCA program.
400.67   Non-applicable TANF requirements.
400.68   Notification to local resettlement agency.
400.69   Alternative RCA programs.

Subpart E--Refugee Cash Assistance


Sec. 400.45  Requirements for the operation of an AFDC-type RCA 
program.

    This section applies to a State's RCA program that follows the 
State's rules under the Aid to Families with Dependent Children (AFDC) 
program under title IV-A of the Social Security Act, prior to amendment 
by Public Law 104-33. A State must continue to apply these rules to its 
RCA program until it implements a new RCA program under Sec. 400.56 or 
Sec. 400.65. A State that receives an approved waiver under 
Sec. 400.300 to continue an AFDC-type RCA program must follow the rules 
in this section.
    (a) Recovery of overpayments and correction of underpayments --The 
State agency must comply with regulations at Sec. 233.20(a)(13) of this 
title governing recovery of overpayments and correction of 
underpayments in the AFDC program.

[[Page 15444]]

    (b) Opportunity to apply for cash assistance. (1) A State must 
provide any individual wishing to do so, an opportunity to apply for 
cash assistance and must determine the eligibility of each applicant.
    (2) In determining eligibility for cash assistance, the State 
must--
    (i) Comply with the regulations at part 206 of this title governing 
applications, determinations of eligibility, and furnishing assistance 
under public assistance programs, as applicable to the AFDC program;
    (ii) Determine eligibility for other cash assistance programs in 
accordance with Sec. 400.51; and
    (iii) Comply with regulations at Sec. 400.54(a)(3) and 400.68.
    (c) Emergency cash assistance to refugees--A State must comply with 
the regulations at Sec. 400.52.
    (d) General eligibility requirements--A State must comply with the 
regulations at Sec. 400.53.
    (e) Consideration of income and resources. In considering the 
income and resources of applicants for and recipients of refugee cash 
assistance, the State agency must:
    (1) Apply the regulations at Sec. 233.20(a)(3) through (2) of this 
title for considering income and resources of AFDC applicants; and
    (2) Apply the regulations at Sec. 400.66(b) through (d).
    (f) Need standards and payment levels. (1) In determining need for 
refugee cash assistance, a State agency must use the State's AFDC need 
standards established under Sec. 233.20(a)(1) and (2) of this title.
    (2) In determining the amount of the refugee cash assistance 
payment to an eligible refugee who meets the standards in paragraph 
(f)(1) of this section and applying the consideration of income and 
resources in paragraph (e) of this section and in Sec. 400.66(b) 
through (d), a State must pay 100 percent of the payment level which 
would be appropriate for an eligible filing unit of the same size under 
the AFDC program.
    (3) The State agency may use the date of application as the date 
refugee cash assistance begins in order to provide payments quickly to 
newly arrived refugees.
    (g) Proration of shelter, utilities, and similar needs--If a State 
prorated allowances for shelter, utilities, and similar needs in its 
AFDC program under Sec. 233.20(a)(5) of this title, it must prorate 
such allowances in the same manner in its refugee assistance programs.
    (h) Other AFDC requirements applicable to refugee cash assistance--
In administering the program of refugee cash assistance, the State 
agency must also apply the following AFDC regulations in this title:
    233.31  Budgeting methods for AFDC.
    233.32  Payment and budget months (AFDC).
    233.33  Determining eligibility prospectively for all payment 
months (AFDC).
    233.34  Computing the assistance payment in the initial one or two 
months (AFDC).
    233.35  Computing the assistance payment under retrospective 
budgeting after the initial one or two months (AFDC).
    233.36  Monthly reporting (AFDC)--which shall apply to recipients 
of refugee cash assistance who have been in the United States more than 
6 months.
    233.37  How monthly reports are treated and what notices are 
required (AFDC).
    235.110  Fraud.

General


Sec. 400.48  Basis and scope.

    This subpart sets forth requirements concerning grants to States 
under section 412(e) of the Act for refugee cash assistance (RCA). 
Sections 400.48 through 400.55 apply to both public/private RCA 
programs and publicly-administered RCA programs.


Sec. 400.49  Recovery of overpayments and correction of underpayments.

    The State agency or its designee agency(s) must maintain a 
procedure to ensure recovery of overpayments and correction of 
underpayments in the RCA program.


Sec. 400.50  Opportunity to apply for cash assistance.

    (a) A State or its designee agency(s) must provide any individual 
wishing to do so, an opportunity to apply for cash assistance and must 
determine the eligibility of each applicant as promptly as possible 
within no more than 30 days from the date of application.
    (b) A State or its designee agency(s) must inform applicants about 
the eligibility requirements and the rights and responsibilities of 
applicants and recipients under the program.
    (c) In determining eligibility for cash assistance, the State or 
its designee agency(s) must promptly refer elderly or disabled refugees 
and refugees with dependent children to other cash assistance programs 
to apply for assistance in accordance with Sec. 400.51.


Sec. 400.51  Determination of eligibility under other programs.

    (a) TANF. For refugees determined ineligible for cash assistance 
under the TANF program, the State or its designee must determine 
eligibility for refugee cash assistance in accordance with Secs. 400.53 
and 400.59 in the case of the public/private RCA program or 
Secs. 400.53 and 400.66 in the case of a publicly-administered RCA 
program.
    (b) Cash assistance to the aged, blind, and disabled. (1) SSI. (i) 
The State agency or its designee must refer refugees who are 65 years 
of age or older, or who are blind or disabled, promptly to the Social 
Security Administration to apply for cash assistance under the SSI 
program.
    (ii) If the State agency or its designee determines that a refugee 
who is 65 years of age or older, or blind or disabled, is eligible for 
refugee cash assistance, it must furnish such assistance until 
eligibility for cash assistance under the SSI program is determined, 
provided the conditions of eligibility for refugee cash assistance 
continue to be met.
    (2) OAA, AB, APTD, or AABD. In Guam, Puerto Rico, and the Virgin 
Islands --
    (i) Eligibility for cash assistance under the OAA, AB, APTD, or 
AABD program must be determined for refugees who are 65 years or older, 
or who are blind or disabled; and
    (ii) If a refugee who is 65 years of age or older, or blind or 
disabled, is determined to be eligible for refugee cash assistance, 
such assistance must be furnished until eligibility for cash assistance 
under the OAA, AB, APTD, or AABD program is determined, provided the 
conditions of eligibility for refugee cash assistance continue to be 
met.


Sec. 400.52  Emergency cash assistance to refugees.

    If the State agency or its designee determines that a refugee has 
an urgent need for cash assistance, it should process the application 
for cash assistance as quickly as possible and issue the initial 
payment to the refugee on an emergency basis.


Sec. 400.53  General eligibility requirements.

    (a) Eligibility for refugee cash assistance is limited to those 
who--
    (1) Are new arrivals who have resided in the U.S. less than the RCA 
eligibility period determined by the ORR Director in accordance with 
Sec. 400.211;
    (2) Are ineligible for TANF, SSI, OAA, AB, APTD, and AABD programs;
    (3) Meet immigration status and identification requirements in 
subpart D

[[Page 15445]]

of this part or are the dependent children of, and part of the same 
family unit as, individuals who meet the requirements in subpart D, 
subject to the limitation in Sec. 400.208 with respect to nonrefugee 
children; and
    (4) Are not full-time students in institutions of higher education, 
as defined by the Director.
    (b) A refugee may be eligible for refugee cash assistance under 
this subpart during a period to be determined by the Director in 
accordance with Sec. 400.211.


Sec. 400.54  Notice and hearings.

    (a) Timely and adequate notice. (1) A written notice must be sent 
or provided to a recipient at least 10 days before the date upon which 
refugee cash assistance will be reduced, suspended, or terminated.
    (2) In providing notice to an applicant or recipient to indicate 
that assistance has been authorized, denied, reduced, suspended, or 
terminated, the written notice must clearly state the action that will 
be taken, the reasons for the action, and the right to request a 
hearing.
    (3) In providing notice to an applicant or recipient to indicate 
that assistance has been authorized, denied, reduced, suspended, or 
terminated, the State or its designee agency(s) must specify the 
program(s) to which the notice applies, clearly distinguishing between 
RCA and other assistance programs. For example, in the case of a 
publicly-administered program, if a refugee applies for assistance and 
is determined ineligible for TANF but eligible for refugee cash 
assistance, the notice to the applicant must specify clearly the 
determinations with respect both to TANF and to refugee cash 
assistance. When a recipient of refugee cash assistance is notified of 
termination because of reaching the time limit on such assistance, the 
State or its designee must review the case file to determine possible 
eligibility for TANF or GA due to changed circumstances and the notice 
to the recipient must indicate the result of that determination as well 
as the termination of RCA.
    (b) Hearings. All applicants for and recipients of refugee cash 
assistance must be provided an opportunity for a hearing to contest 
adverse determinations. States must ensure that hearings meet the due 
process standards in Goldberg v. Kelly, 397 U.S. 254 (1970).
    (1) Public/private RCA programs. The State must specify in the 
public/private RCA plan the hearing procedures to be used in the RCA 
program. The plan may specify that the local resettlement agency(s) 
will refer all hearing requests to a State-administered hearing 
process. If the plan does not specify the use of a State-administered 
hearing process, then the procedures to be followed must include:
    (i) The State or local resettlement agency(s) responsible for the 
provision of RCA must provide an applicant for or recipient of refugee 
cash assistance an opportunity for an oral hearing to contest adverse 
determinations. Hearings must be conducted by an impartial official or 
designee of the State or local resettlement agency who has not been 
involved directly in the initial determination of the action in 
question.
    (ii) The State must ensure that procedures are established to 
provide refugees a right of final appeal for an in-person hearing 
provided by an impartial, independent entity outside of the local 
resettlement agency.
    (iii) Final administrative action must be taken within 60 days from 
the date of a request for a hearing.
    (2) Publicly-administered RCA programs. The State must specify in 
the State Plan referenced in Sec. 400.4 the public agency hearing 
procedures it intends to use in the RCA program.
    (3) In both a public/private RCA program and a publicly-
administered RCA program, the written notice of any hearing 
determination must adequately explain the basis for the decision and 
the refugee's right to request any further administrative or judicial 
review.
    (4) In both a public/private RCA program and a publicly-
administered RCA program, a refugee's benefits may not be terminated 
prior to completion of final administrative action, but are subject to 
recovery by the agency if the action is sustained.
    (5) In both a public/private RCA program and a publicly-
administered RCA program, a hearing need not be granted when Federal 
law requires automatic grant adjustments for classes of recipients 
unless the reason for an individual appeal is an incorrect grant 
computation.
    (6) In both a public/private RCA program and a publicly-
administered RCA program, a hearing need not be granted when assistance 
is terminated because the eligibility time period imposed by law has 
been reached, unless there is a disputed issue of fact that is 
unresolved by the process in Sec. 400.23.


Sec. 400.55  Availability of agency policies.

    A State, or the agency(s) responsible for the provision of RCA, 
must make available to refugees the written policies of the RCA 
program, including agency policies regarding eligibility standards, the 
duration and amount of cash assistance payments, the requirements for 
participation in services, the penalties for non-cooperation, and 
client rights and responsibilities to ensure that refugees understand 
what they are eligible for, what is expected of them, and what 
protections are available to them. The State, or the agency(s) 
responsible for the provision of RCA, must ensure that agency policy 
materials and all notices required in Secs. 400.54, 400.82, and 400.83, 
are made available in written form in English and in appropriate 
languages where a significant number or proportion of the recipient 
population needs information in a particular language. In regard to 
refugee language groups that constitute a small number or proportion of 
the recipient population, the State, or the agency(s) responsible for 
the provision of RCA, at a minimum, must use an alternative method, 
such as verbal translation in the refugee's native language, to ensure 
that the content of the agency's policies is effectively communicated 
to each refugee.

Public/Private RCA Program


Sec. 400.56  Structure.

    (a) States may choose to enter into a partnership agreement with 
local resettlement agencies for the operation of a public/private RCA 
program. Sections 400.56 through 400.63 apply to the public/private RCA 
program.
    (b) The public/private RCA program must be administered by the 
State through contracts or grants with local resettlement agencies or a 
lead resettlement agency that provides initial resettlement services 
under the terms of the Department of State Cooperative Agreement for 
Reception and Placement.
    (c) The public/private RCA program must be statewide, unless the 
State determines that it is not in the best interests of refugees to 
provide a public/private RCA program in a particular area of the State.
    (d) Local resettlement agencies may be responsible for determining 
eligibility, and authorizing and providing payments to eligible 
refugees.
    (e) States and local resettlement agencies may not propose to 
operate a public/private RCA program and a publicly-administered RCA 
program in the same geographic location.
    (f) States must ensure the provision of RCA assistance to eligible 
refugees in the State who are sponsored by local resettlement agencies 
in bordering states, where applicable.

[[Page 15446]]

Sec. 400.57  Planning and consultation process.

    A State that wishes to establish a public/private RCA program must 
engage in a planning and consultation process with the local agencies 
that resettle refugees in the State to develop a public/private RCA 
plan in accordance with the requirements under Sec. 400.58.
    (a) Primary participants in the planning process must include 
representatives of the State and each local agency that resettles 
refugees in the State. During the planning process, the State must 
fully consult with representatives of counties, refugee mutual 
assistance associations (MAAs), local community services agencies, 
national voluntary agencies that resettle refugees in the State, 
representatives of each refugee ethnic group, and other agencies that 
serve refugees.
    (b) Each local resettlement agency that resettles refugees in the 
State must inform its national resettlement agency of the proposed 
public/private RCA program and must obtain a letter of agreement from 
the national agency that indicates that the national agency supports 
the public/private RCA plan and will continue to place refugees in the 
State under the public/private RCA program.


Sec. 400.58  Content and submission of public/private RCA plan.

    (a) States and local resettlement agencies must develop a public/
private RCA plan which describes how the State and local resettlement 
agencies will administer and provide refugee cash assistance to 
eligible refugees. The plan must describe the agreed-upon public/
private RCA program including:
    (1) The proposed income standard to be used to determine RCA 
eligibility;
    (2) The proposed payment levels to be used to provide cash 
assistance to eligible refugees;
    (3) Assurance that the payment levels established are not lower 
than the comparable State TANF amounts;
    (4) A detailed description of how benefit payments will be 
structured, including a description of employment incentives and/or 
income disregards to be used, if any, as well as methods of payment to 
be used, such as direct cash or vendor payments;
    (5) A description of how all RCA eligible refugees residing in the 
State will have reasonable access to cash assistance and services;
    (6) A description of the procedures to be used to ensure 
appropriate protections and due process for refugees, such as the 
correction of underpayments, notice of adverse action and the right to 
mediation, a pre-termination hearing, and an appeal to an independent 
entity;
    (7) A description of proposed exemptions from participation in 
employability services;
    (8) A description of the employment and self-sufficiency services 
to be provided to RCA recipients by--
    (i) Local resettlement agencies under contract or grant, and/or
    (ii) Other refugee services providers;
    (9) Procedures for providing RCA to eligible secondary migrants who 
move to the State, including secondary migrants who were sponsored by a 
local resettlement agency that does not have a presence in the 
receiving State;
    (10) If applicable, provisions for providing assistance to refugees 
resettling in the State who are sponsored by a local resettlement 
agency in a bordering State which does not have an office in the State 
of resettlement;
    (11) A description of the procedures to be used to safeguard the 
disclosure of information regarding refugee clients;
    (12) Letters of agreement from the national voluntary resettlement 
agencies that indicate support for the proposed public/private RCA 
program and indicate that refugee placements in the State will continue 
under the public/private RCA program;
    (13) A breakdown of the proposed program and administrative costs 
of both the cash assistance and service components of the public/
private RCA program, including any per capita caps on administrative 
costs only if a State proposes to use such caps; and
    (14) The proposed implementation date for the State's public/
private RCA program;
    (b) In cases where the State, after consultation with the local 
resettlement agencies in the State, determines that a public/private 
RCA program is not feasible statewide and proposes to implement a 
public/private RCA program in only a portion of the State and to 
operate a publicly-administered RCA program in the balance of the 
State, the State's RCA plan must include the information required in 
Sec. 400.65(b).
    (c) The plan must be signed by the Governor or his or her designee.
    (d) The Director of ORR will follow the procedures in Sec. 400.8 
for the approval of public/private RCA plans. An approved public/
private RCA plan will be incorporated into the refugee program State 
Plan.
    (e) Any amendments to the public/private RCA plan must be developed 
in consultation with the local resettlement agencies and must be 
submitted to ORR in accordance with Sec. 400.8. The Director of ORR 
will follow the procedures in Sec. 400.8 for approval of amendments to 
public/private RCA plans.


Sec. 400.59  Eligibility for the public/private RCA program.

    (a) Eligibility for refugee cash assistance under the public/
private program is limited to those who meet the income eligibility 
standard established by the State after consultation with local 
resettlement agencies in the State.
    (b) Any resources remaining in the applicant's country of origin 
may not be considered in determining income eligibility.
    (c) A sponsor's income and resources may not be considered to be 
accessible to a refugee solely because the person is serving as a 
sponsor.
    (d) Any cash grant received by a refugee under the Department of 
State or Department of Justice Reception and Placement programs may not 
be considered in determining income eligibility.


Sec. 400.60  Payment levels.

    (a) Under the public/private RCA program, States and the local 
resettlement agencies contracted or awarded grants to administer the 
RCA program must make monthly cash assistance payments to eligible 
refugees that do not exceed the following payment ceilings, according 
to the number of persons in the family unit, except as noted in 
paragraphs (b) and (c) of this section. For family units greater than 4 
persons, the payment ceiling may be increased by $70 for each 
additional person.

------------------------------------------------------------------------
                                                                Monthly
                     Size of family unit                        payment
                                                                ceiling
------------------------------------------------------------------------
1 person.....................................................       $335
2 persons....................................................        450
3 persons....................................................        570
4 persons....................................................        685
------------------------------------------------------------------------

    (b) States and local resettlement agencies may not make payments to 
refugees that are lower than the State's TANF payment for the same 
sized family unit. In States that have TANF payment levels that are 
higher than the ceilings established in this section, States and local 
resettlement agencies must provide payment levels under the public/
private RCA program that are comparable to the State's TANF payment 
levels.
    (c) Income disregards and other incentives. (1) States and local 
resettlement agencies may design an assistance program that combines 
RCA payments with income disregards or

[[Page 15447]]

other incentives such as employment bonuses, or graduated payments in 
order to encourage early employment and self-sufficiency, as long as 
the total combined payments to a refugee do not exceed the ORR monthly 
ceilings established in this section multiplied by the allowable number 
of months of RCA eligibility.
    (2) States that elect to exceed monthly payment ceilings in order 
to provide employment incentives must budget their resources to ensure 
that sufficient RCA funds are available to cover a refugee's cash 
assistance needs in the latter months of a refugee's eligibility 
period, if needed.
    (d) If the Director determines that the payment ceilings need to be 
adjusted for inflation, the Director will publish a document in the 
Federal Register announcing the new payment ceilings.


Sec. 400.61  Services to public/private RCA recipients.

    (a) Services provided to recipients of refugee cash assistance in 
the public/private RCA program may be provided by the local 
resettlement agencies that administer the public/private RCA program or 
by other refugee service agencies.
    (b) Allowable services under the public/private program are limited 
to those services described in Secs. 400.154 and 400.155 and are to be 
funded in accordance with Sec. 400.206.
    (c) In public/private programs in which local resettlement agencies 
are responsible for administering both cash assistance and services, 
States and local resettlement agencies must coordinate on a regular 
basis with refugee mutual assistance associations and other ethnic 
representatives that represent or serve the ethnic populations that are 
being resettled in the U.S. to ensure that the services provided under 
the public/private RCA program:
    (1) Are appropriate to the linguistic and cultural needs of the 
incoming populations; and
    (2) Are coordinated with the longer-term resettlement services 
frequently provided by ethnic community organizations after the end of 
the time-limited RCA eligibility period.
    (d) In public/private programs in which the agencies responsible 
for providing services to RCA recipients are not the same agencies that 
administer the cash assistance program, the State must:
    (1) Establish procedures to ensure close coordination between the 
local resettlement agencies that provide cash assistance and the 
agencies that provide services to RCA recipients; and
    (2) Set up a system of accountability that identifies the 
responsibilities of each participating agency and holds these agencies 
accountable for the results of the program components for which they 
are responsible.


Sec. 400.62  Treatment of eligible secondary migrants, asylees, and 
Cuban/Haitian entrants.

    The State and local resettlement agencies must establish procedures 
to ensure that eligible secondary migrant refugees, asylees, and Cuban/
Haitian entrants have access to public/private RCA assistance if they 
wish to apply. In developing these procedures, consideration must be 
given to ensuring coverage of eligible secondary migrants and other 
eligible applicants who were sponsored by a resettlement agency which 
does not have a presence in the State or who were not sponsored by any 
agency.


Sec. 400.63  Preparation of local resettlement agencies.

    The State and the national voluntary agencies whose affiliate 
agencies will be responsible for implementing the public/private RCA 
program:
    (a) Must determine the training needed to enable local resettlement 
agencies to achieve a smooth implementation of the RCA program; and
    (b) Must provide the training in a uniform way to ensure that all 
local resettlement agencies in the State will implement the public/
private RCA program in a consistent manner.

Publicly-Administered RCA Programs


Sec. 400.65  Continuation of a publicly-administered RCA program.

    Sections 400.65 through 400.69 apply to publicly-administered RCA 
programs. If a State chooses to operate a publicly-administered RCA 
program:
    (a) The State may operate its refugee cash assistance program 
consistent with its TANF program.
    (b) The State must submit an amendment to its State Plan, 
describing the elements of its TANF program that will be used in its 
refugee cash assistance program.


Sec. 400.66  Eligibility and payment levels in a publicly-administered 
RCA program.

    (a) In administering a publicly-administered refugee cash 
assistance program, the State agency must operate its refugee cash 
assistance program consistent with the provisions of its TANF program 
in regard to:
    (1) The determination of initial and on-going eligibility 
(treatment of income and resources, budgeting methods, need standard);
    (2) The determination of benefit amounts (payment levels based on 
size of the assistance unit, income disregards);
    (3) Proration of shelter, utilities, and similar needs; and
    (4) Any other State TANF rules relating to financial eligibility 
and payments.
    (b) The State agency may not consider any resources remaining in 
the applicant's country of origin in determining income eligibility.
    (c) The State agency may not consider a sponsor's income and 
resources to be accessible to a refugee solely because the person is 
serving as a sponsor.
    (d) The State agency may not consider any cash grant received by 
the applicant under the Department of State or Department of Justice 
Reception and Placement programs.
    (e) The State agency may use the date of application as the date 
refugee cash assistance begins in order to provide payments quickly to 
newly arrived refugees.


Sec. 400.67  Non-applicable TANF requirements.

    States that choose to operate an RCA program modeled after TANF may 
not apply certain TANF requirements to refugee cash assistance 
applicants or recipients as follows: TANF work requirements may not 
apply to RCA applicants or recipients, and States must meet the 
requirements in subpart I of this part with respect to the provision of 
services for RCA recipients.


Sec. 400.68  Notification to local resettlement agency.

    (a) The State must notify promptly the local resettlement agency 
which provided for the initial resettlement of a refugee whenever the 
refugee applies for refugee cash assistance under a publicly-
administered RCA program.
    (b) The State must contact the applicant's sponsor or the local 
resettlement agency concerning offers of employment and inquire whether 
the applicant has voluntarily quit employment or has refused to accept 
an offer of employment within 30 consecutive days immediately prior to 
the date of application, in accordance with Sec. 400.77(a).


Sec. 400.69  Alternative RCA programs.

    A State that determines that a public/private RCA program or a 
publicly-administered program modeled after its TANF program is not the 
best approach for the State may choose instead to establish an 
alternative approach under the Wilson/Fish program, authorized by 
section 412(e)(7) of the INA.

[[Page 15448]]

Sec. 400.70  [Amended]

    22. Section 400.70 is amended by adding the words ``under both the 
public/private RCA program and the publicly-administered RCA program'' 
after the word ``assistance'' and before the word ``concerning''.


Sec. 400.71  [Amended]

    23. Section 400.71 is amended by removing the definition of the 
term Designee.

    24. Section 400.72 is amended by adding introductory text to read 
as follows:


Sec. 400.72  Arrangements for employability services.

    Paragraphs (a) and (b) of this section apply equally to States that 
operate a public/private RCA program and to States that operate a 
publicly-administered RCA program. Paragraph (c) applies only to 
publicly-administered RCA programs.
* * * * *


Sec. 400.75  [Amended]

    25. Section 400.75 is amended by adding in paragraph (a)(6)(i) the 
word ``local'' before the words ``resettlement agency'', and by adding 
in paragraph (b) the words ``or its designee'' after the words ``State 
agency''.

    26.-27. Section 400.76 is revised 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.

    States and local resettlement agencies operating a public/private 
RCA program, as well as States operating a publicly-administered RCA 
program, may determine what specific exemptions, if any, are 
appropriate for recipients of a time-limited RCA program in their 
State.


Sec. 400.77  [Amended]

    28. Section 400.77(a) is amended by removing the words 
``Sec. 400.82(b)(3)(ii)'' and adding in their place the words 
``Sec. 400.82(c)(2).''


Sec. 400.78  [Removed]

    29. Section 400.78 is removed.


Sec. 400.79  [Amended]

    30. Section 400.79 is amended as follows:
    a. By removing in paragraph (a) the word ``filing'' and adding in 
its place the word ``family'' before the word ``unit'';
    b. By adding in paragraph (b) the word ``local'' before the words 
``resettlement agency''; and
    c. By adding the word ``and'' at the end of the paragraph (c)(1) 
and by removing the semicolon and the word ``and'' at the end of 
paragraph (c)(2) and adding in their place a period.


Sec. 400.80  [Removed]

    31.-33. Section 400.80 and the undesignated centerhead immediately 
preceding it are removed.

    34. Section 400.81 is amended as follows:
    a. By removing the word ``AFDC'' and adding in its place the word 
``TANF'' in paragraphs (a) introductory text and (a)(4);
    b. By adding a sentence at the end of paragraph (b) that reads: 
``This training may only be made available to individuals who are 
employed.''; and
    c. By revising paragraph (c) to read as follows:


Sec. 400.81  Criteria for appropriate employability services and 
employment.

* * * * *
    (c) A job offered, if determined appropriate under the requirements 
of this subpart, is required to be accepted by the refugee without 
regard to whether such job would interrupt a program of services 
planned or in progress unless the refugee is currently participating in 
a program in progress of on-the-job training (as described in 
Sec. 400.154(c)) or vocational training (as described in 
Sec. 400.154(e)) which meets the requirements of this part and which is 
being carried out as part of an approved employability plan.

    34.-38. Section 400.82 is amended by redesignating paragraph (b)(3) 
as (c) and by redesignating paragraphs (b)(3)(i) and (ii) as (c)(1) and 
(2) respectively, and by revising paragraphs (a) and (b) to read as 
follows:


Sec. 400.82  Failure or refusal to accept employability services or 
employment.

    (a) Termination of assistance. When, without good cause, an 
employable non-exempt recipient of refugee cash assistance under the 
public/private RCA program or under a publicly-administered RCA program 
has failed or refused to meet the requirements of Sec. 400.75(a) or has 
voluntarily quit a job, the State, or the agency(s) responsible for the 
provision of RCA, must terminate assistance in accordance with 
paragraphs (b) and (c) of this section.
    (b) Notice of intended termination--(1) In cases of proposed action 
to reduce, suspend, or terminate assistance, the State or the agency(s) 
responsible for the provision of RCA, must give timely and adequate 
notice, in accordance with adverse action procedures required at 
Sec. 400.54.
    (2) The State, or the agency(s) responsible for the provision of 
RCA, must provide written procedures in English and in appropriate 
languages, in accordance with requirements in Sec. 400.55, for the 
determination of good cause, the sanctioning of refugees who do not 
comply with the requirements of the program, and for the filing of 
appeals by refugees.
    (3) In addition to the requirements in Sec. 400.54, the written 
notice must include--
    (i) An explanation of the reason for the action and the proposed 
adverse consequences; and
    (ii) Notice of the recipient's right to mediation and a hearing 
under Sec. 400.83.
    (4) A written notice in English and a written translated notice, or 
a verbal translation of the notice, in accordance with the requirements 
in Sec. 400.55, must be sent or provided to a refugee at least 10 days 
before the date upon which the action is to become effective.
* * * * *
    40. Section 400.83 is revised to read as follows:


Sec. 400.83  Mediation and fair hearings.

    (a) Mediation. (1) Public/private RCA program. The State must 
ensure that a mediation period prior to imposition of sanctions is 
provided to refugees by local resettlement agencies under the public/
private RCA program. Mediation 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 local resettlement agency(s) responsible for the 
provision of RCA) or the recipient may terminate this period sooner 
when either believes that the dispute cannot be resolved by mediation.
    (2) Publicly-administered RCA programs. Under a publicly-
administered RCA program, the State must use the same procedures for 
mediation/conciliation as those used in its TANF program, if available.
    (b) Hearings. The State or local resettlement agency(s) responsible 
for the provision of RCA must provide an applicant for, or recipient 
of, refugee cash assistance an opportunity for a hearing, using the 
same procedures and standards set forth in Sec. 400.54, to contest a 
determination concerning employability, or failure or refusal to carry 
out job search or to accept an appropriate offer of employability 
services or employment, resulting in denial or termination of 
assistance.

[[Page 15449]]

Sec. 400.93  [Amended]

    41. Section 400.93(d) is amended to add the words ``or the State 
Children's Health Insurance Program (SCHIP)'' after the word 
``Medicaid'' each time it appears.


Sec. 400.94  [Amended]

    42. Section 400.94 is amended:
    a. By adding in paragraph (a) the words ``and SCHIP'' before the 
word ``eligibility'' and by removing the words ``State plan'' and 
adding in their place the words ``and SCHIP State plans'';
    b. By adding in paragraph (c) the words ``and SCHIP'' after the 
word ``Medicaid''; by removing the word ``program'' and adding in its 
place the word ``programs''; and by removing the word ``plan'' and 
adding in its place the word ``plans''; and
    c. By adding in paragraph (d) the words ``or SCHIP'' after the word 
``Medicaid'' and by deleting the word ``plan'' and adding in its place 
the word ``plans''.


Sec. 400.100  [Amended]

    43-45. Section 400.100 is amended:
    a. By adding in paragraph (a)(i) the words ``or SCHIP'' after the 
word ``Medicaid'';
    b. By removing in paragraph (a)(2) the word ``filing'' and adding 
in its place the word ``assistance'' before the word ``unit'';
    c. By removing paragraph (a)(4) and redesignating paragraphs (a)(5) 
and (a)(6) as (a)(4) and (a)(5) respectively; and
    d. By adding in paragraph (d) the words ``or SCHIP'' after the word 
``Medicaid''.

    46-49. Section 400.101 is amended by revising paragraphs (a) and 
(b) to read as follows:


Sec. 400.101  Financial eligibility standards.

* * * * *
    (a) In States with medically needy programs under 42 CFR part 435, 
subpart D:
    (1) The State's medically needy financial eligibility standards 
established under 42 CFR part 435, subpart I, and as reflected in the 
State's approved title XIX State Medicaid plan; or
    (2) A financial eligibility standard established at up to 200% of 
the national poverty level; and
    (b) In States without a medically needy program:
    (1) The State's AFDC payment standards and methodologies in effect 
as of July 16, 1996, including any modifications elected by the State 
under section 1931(b)(2) of the Social Security Act; or
    (2) A financial eligibility standard established at up to 200% of 
the national poverty level.

    50. Section 400.102 is revised to read as follows:


Sec. 400.102  Consideration of income and resources.

    (a) Except as specified in paragraphs (b), (c), and (d) of this 
section, in considering financial eligibility of applicants for refugee 
medical assistance, the State agency must--
    (1) In States with medically needy programs, use the standards 
governing determination of income eligibility in 42 CFR 435.831, and as 
reflected in the State's approved title XIX State Medicaid plan.
    (2) In States without medically needy programs, use the standards 
and methodologies governing consideration of income and resources of 
AFDC applicants in effect as of July 16, 1996, including any 
modifications elected by the State under section 1931(b)(2) of the 
Social Security Act.
    (b) The State may not consider in-kind services and shelter 
provided to an applicant by a sponsor or local resettlement agency in 
determining eligibility for and receipt of refugee medical assistance.
    (c) The State may not consider any cash assistance payments 
provided to an applicant in determining eligibility for and receipt of 
refugee medical assistance.
    (d) The State must base eligibility for refugee medical assistance 
on the applicant's income and resources on the date of application. The 
State agency may not use the practice of averaging income prospectively 
over the application processing period in determining income 
eligibility for refugee medical assistance.

    51. Section 400.103 is revised to read as follows:


Sec. 400.103  Coverage of refugees who spend down to State financial 
eligibility standards.

    States must allow applicants for RMA who do not meet the financial 
eligibility standards elected in Sec. 400.101 to spend down to such 
standard using an appropriate method for deducting incurred medical 
expenses.

    52. Section 400.104 is revised to read as follows:


Sec. 400.104  Continued coverage of recipients who receive increased 
earnings from employment.

    (a) If a refugee who is receiving refugee medical assistance 
receives earnings from employment, the earnings shall not affect the 
refugee's continued medical assistance eligibility.
    (b) If a refugee, who is receiving Medicaid and has been residing 
in the U.S. less than the time-eligibility period for refugee medical 
assistance, becomes ineligible for Medicaid because of earnings from 
employment, the refugee must be transferred to refugee medical 
assistance without an RMA eligibility determination.
    (c) Under paragraphs (a) and (b) of this section, a 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).
    (d) In cases where a refugee is covered by employer-provided health 
insurance, any payment of RMA for that individual must be reduced by 
the amount of the third party payment.


Sec. 400.107  [Amended]

    53. Section 400.107(b) is amended by removing the word 
``assessment'' and adding in its place the word ``screening''.


Sec. 400.152  [Amended]

    54. Section 400.152(b) is amended by adding the words ``citizenship 
and naturalization preparation services and'' after the words ``except 
for'' and by placing a period after the words ``60 months'' and 
removing the rest of the sentence.

    55. Section 400.154 is amended by removing in paragraph (j) the 
word ``AFDC'' and adding in its place the word ``TANF'' and by adding a 
new paragraph (k) to read as follows:


Sec. 400.154  Employability services.

* * * * *
    (k) Assistance in obtaining Employment Authorization Documents 
(EADs).


Sec. 400.155  [Amended]

    56-57. Section 400.155 is amended by adding a new paragraph (i) 
that reads as follows:


Sec. 400.155  Other services.

* * * * *
    (i) Citizenship and naturalization preparation services, including 
English language training and civics instruction to prepare refugees 
for citizenship, application assistance for adjustment to legal 
permanent resident status and citizenship status, assistance to 
disabled refugees in obtaining disability waivers from English and 
civics requirements for naturalization, and the provision of 
interpreter services for the citizenship interview.

[[Page 15450]]

Sec. 400.203  [Amended]

    58. Section 400.203(a)(1) is amended by removing the word ``AFDC'' 
and adding in its place the word ``TANF''.


Sec. 400.207  [Amended]

    59. Section 400.207 is amended by adding a sentence after the word 
``Families'' that reads: ``Such costs may include reasonable and 
necessary administrative costs incurred by local resettlement agencies 
in providing assistance and services under a public/private RCA 
program.'' and by removing the word ``Such'' in the last sentence and 
adding in its place the word ``Administrative''.


Sec. 400.208  [Amended]

    60. Section 400.208 is amended by removing the word ``filing'' 
whenever it appears and adding in its place the word ``family'' before 
the word ``unit''.


Sec. 400.209  [Amended]

    61. Section 400.209 is amended by removing the word ``filing'' 
wherever it appears and by adding in its place the word ``family'' 
before the word ``unit'' and by removing the word ``AFDC'' in paragraph 
(a) and adding in its place the word ``TANF''.

    62. Section 400.210 is amended by revising paragraph (b)(2) to read 
as follows:


Sec. 400.210  Time limits for obligating and expending funds and for 
filing State claims.

* * * * *
    (b) * * *
    (2) A State must expend its social service and targeted assistance 
grants no later than two years after the end of the FFY in which the 
Department awards the grant. A State's final financial report on 
expenditures of social services and targeted assistance grants must be 
received no later than 90 days after the end of the two-year 
expenditure period. At that time, if a State's final financial 
expenditure report has not been received, the Department will 
deobligate any unexpended funds, including any unliquidated 
obligations, based on a State's last submitted financial report.


Sec. 400.211  [Amended]

    63. Section 400.211(a) is amended:
    a. By removing in paragraph (a) introductory text the word 
``necessary'' and adding in its place the words ``a reduction in the 
eligibility period is indicated'' after the word ``if'';
    b. By removing in paragraph (a)(2) the word ``member'' and adding 
in its place the word ``number'' after the word ``annual'';
    c. By removing in paragraph (a)(3) the word ``AFDC'' wherever it 
appears; and
    d. By removing in paragraph (b) the word ``impleting'' and adding 
in its place the word ``implementing''.


Sec. 400.301  [Amended]

    64.-67. Section 400.301 is amended:
    a. By removing in paragraph (b) the words ``only under 
extraordinary circumstances and'' after the word ``granted'';
    b. By adding in paragraph (c) the following sentence after the 
words ``subpart L'': ``Replacement designees must also adhere to the 
Subpart L regulations regarding formula allocation grants for targeted 
assistance, if the State authorized the replacement designee appointed 
by the Director to act as its agent in applying for and receiving 
targeted assistance funds''; and
    c. By removing in paragraph (c) the words ``400.55(b)(2), 
400.56(a)(1), 400.56(a)(2), 400.56(b)(2)(i)'' and adding in their place 
the words ``400.51 (b)(2)(i) and 400.58(c)''.

PART 401--CUBAN/HAITIAN ENTRANT PROGRAM

    1. The authority citation for Part 401 continues to read as 
follows:

    Authority: Section 501(a), Pub. L. 96-422, 94 Stat. 1810 (8 
U.S.C. 1522 note); Executive Order 12341 (January 21, 1982).


Sec. 401.12  [Amended]

    2. Section 401.12(a) is amended by removing the word 
``Sec. 400.62'' and adding in its place the words ``subparts E and G of 
part 400 of this title''.
[FR Doc. 00-6848 Filed 3-21-00; 8:45 am]
BILLING CODE 4184-01-U