Section 824 - Work Requirement (ABAWD)

Exemptions

Q. Are Title IV-A and UC recipients categorically exempt from the ABAWDs provision?

They are not categorically exempt, but most of them will be exempt. Individuals subject to and complying with a title IV work registration requirement or the Federal-State unemployment compensation system are exempt from the ABAWD provision. Other individuals may be exempt under other food stamp provisions such as the exemption for adults caring for children.

Q. Can a person be exempt if the unemployment compensation system only requires job search?

A. Yes. An individual is exempt from Section 824 if that individual is otherwise exempt under subsection (d)(2) of Section 6 of the Food Stamp Act. Under Section 6(d)(2)(A) of the Food Stamp Act, an individual is exempt if complying with the Federal-State unemployment compensation system, whatever that system requires. The job search and job search training limitation does not apply to the enumerated exemptions, it only applies to what will be considered as participation in a "work program."

Q. Must 2 separate determinations be made--one for E&T and one for the ABAWD provision?

A. An individual must comply with both the E&T requirement and the ABAWD provision.

Q. Are persons exempt from E&T considered ABAWDs?

The exceptions to the ABAWD work requirement are enumerated specifically in the law. Individuals are exempt if they are: (1) under 18 or over 50; (2) medically certified as physically or mentally unfit for employment; (3) a parent or other member of a household with responsibility for a dependent child; (4) otherwise exempt under subsection (d)(2) [of section 6 of the Food Stamp Act]; or (5) a pregnant woman.

Q. What does "is otherwise exempt from employment criteria" mean?

A. The law exempts individuals who are "otherwise exempt under subsection (d)(2)" of section 6 of the Food Stamp Act. The exceptions contained in subsection 6(d)(2) of the Food Stamp Act are exceptions to the work registration requirements.

Q. Exemptions from E&T vary from state to state. Does this mean that the definitions of exemptions from E&T will carry forward so that ABAWD exemptions will vary?

A. No. The law says, "otherwise exempt under subsection (d)(2) {of Section 6 of the Food Stamp Act}." The exemptions under this provision are therefore limited to those specifically listed in Section 6(d)(2). This section identifies exemptions from work registration - it does not include State exemptions of work registration from the E&T program.

Q. Will a person be exempt during any trimester of pregnancy?

A. A person will be exempt during any trimester of pregnancy.

Q. What is the definition of "dependent" in this section?

We will either address this in the regulations or allow State flexibility in this area. In the interim, State agencies may use their discretion.

Q. Regarding the dependent care exemption, does this mean the individual with primary responsibility for the dependent child is exempt? Would a dependent child exempt one or both parents from the work requirements?

A. We believe that the legislative history shows a clear intent to exempt any parent living with his or her children.

Q. If the parent(s) and one or more other adults are living in the household and all claim to have responsibility for a child, may they all be exempt?

A. This issue will be addressed by the regulations.

Q. What is the age limit for a dependent child to exempt a person from the ABAWD provision?

This will be addressed by the regulations.

Q. Can the parents of a child be exempt under Section 824 if the child is temporarily not in the household (e.g., in the hospital for more than 30 days, or where there is shared custody)?

We will either address this in the regulations or allow State flexibility in this area. In the interim, State agencies may use their best judgment.

Q. What is the definition of able-bodied or the criteria for such determination?

A. The phrase "able-bodied" does not appear in the legislation. The law exempts individuals who are "medically certified as physically or mentally unfit for employment." We will either address this in regulations or allow State flexibility in this area.

Q. What does "medically certified" mean and is there a special form to be used?

A. We will either address this in the regulations or allow State flexibility in this area. In the interim, State agencies may use their discretion.

Q. Is there a time period for the medical certification?

A. We will either address this in the regulations or allow State flexibility in this area. In the interim, State agencies may use their discretion.

Q. A person "over 50 years of age" is exempt from the ABAWD work requirement. Does an individual have to wait until his or her 51^st birthday to become exempt?

A. No. For purposes of this provision, an individual becomes exempt on his or her 50^th birthday.

Q. Are teachers exempt from the ABAWD work requirement during the summer months even though they do not actually work during the summer months?

Section 824 of the PRWORA exempts from the ABAWD work requirement individuals who are exempt from the work registration requirements. An individual is exempt from the work registration requirements if he or she works 30 hours per week or receives earnings equal the minimum wage multiplied by 30 hours per week. Current policy, as outlined in Policy Memo 81-37, is that the number of weeks to be used for the calculation may be tied to the number of weeks it may best be anticipated that the person will remain in that position. This number shall not exceed either the length of the certification period or the 12-month work registration period. The average may be based on any number of weeks less than either of these two periods which will allow a reasonable approximation of the number of hours worked per week. Therefore, if the number of hours the teacher works during a 12-month certification period is at least 30 hours a week, or his or her salary, when averaged over the 12-month period is equal to the minimum wage times 30 hours per week, the teacher is exempt during the entire 12-month period from both the work registration and ABAWD requirements.

Q. Some individuals are required to participate in a JTPA program which is like job search. Does this count as a "work program"?

A. The law specifically allows any JTPA program to count as a "work program."

Q. Does the 120 hour per month maximum as time spent in an E&T program under 7 CFR 273.7 also apply to ABAWDs?

A. No. The work requirement of Section 824 is separate from the E&T program. 7 CFR 273.7(f) contains the requirements for an E&T program, one of which provides that an individual cannot be required to work more than 120 hours per month. These requirements are not relevant to the work requirement of Section 824.

Q. How will 20 hours on average be determined?

A. The law says "20 hours per week, averaged monthly." That means that someone who worked 80 hours in 2 weeks would have an average of 20 hours per week for the month.

Q. Is a combination of 20 hours of work and participating/complying with a "work program" acceptable when determining eligibility?

A. We will either address this in the regulations or allow State flexibility in this area. In the interim, we recommend that States allow an exemption based on a combination of work and participation in and compliance with the requirements of a work program which total 20 hours per week, averaged monthly. For example, a person would be exempt from the ABAWD provision if he or she worked for 20 hours during each of the first two weeks in the month and participated in and complied with a work program for 20 hours during each of the last two weeks in the month.

Q. To qualify as "work," does the job have to be paying minimum wage or meet certain criteria? Can self-employment count as "work"? Can volunteer work count as "work"?

A. We will either address this in the regulations or allow State flexibility in this area. In the interim, State agencies may use their best judgment.

Q. If a State has a waiver which exempts certain areas of that state, how is a client who moves from a non-exempt area within the state to an exempt area within the State treated?

A. If a client moves into an exempt area, than the client becomes exempt and his participation while not working does not count toward the 3 month limit. However, his 36 month period continues.

Q. Who determines when an area does not have sufficient employment and how often is that determination made? How will "area" be defined? Will the regional offices or the national offices grant these waivers?

A. FCS issued interim guidance on December 3, 1997, and will address this further in the regulations.

(Regain eligibility)

Q. The language in the law does not preclude someone who regains eligibility and is subsequently fired for good reason (i.e., breaks work rules, frequently absent, etc.) or who quits a job from getting the 3-month extension. Should we apply the language of the law literally and grant the 3-month extension without regard to the reason for the job loss?

A. Section 824 is clear that the rest of the Food Stamp Act still applies; if a voluntary quit or other sanction is imposed, then the client is subject to the sanction. This "additional" eligibility is just additional eligibility under this provision; it does not make someone eligible who is not otherwise eligible.

Q. To regain eligibility under the work requirement of Section 824, does a workfare participant have to work 80 hours over a 30-day period?

A. No. The individual only needs to participate in and comply with the requirements of a workfare program for a 30-day period.

Q. Does the client have to finish the cure before he or she is eligible, or if the client wants to participate in a work program, should the client be approved assuming that they will comply?

They have to have worked 80 hours in a 30-day period before they regain eligibility.

Q. The PRWORA states that people who lose then regain eligibility can be eligible for another consecutive 3 month period. How are non-consecutive months treated? For example, a client regains eligibility, then loses it in March. The client receives two months of food stamps, then regains eligibility by meeting the work requirement in the third month. What happens if the client once again fails to meet the work requirements in month five?

A. The law specifically states that once an individual regains eligibility and then loses it again, the individual, "shall remain eligible for a consecutive 3 month period, beginning on the date the individual first notifies the State agency that the individual no longer meets the requirements in subparagraph (A), (B), or (C) of paragraph (2).[work requirements]. The department may provide further guidance in regulations.

Q. Does the 3-month extension if a person loses his job only apply 1 time in a 36-month period?

A. It only applies one time in a 36-month period.

Q. Individuals may regain eligibility by working or participating in a work program 80 hours in a 30-day period. What if there is a break in the middle of this participation?

Within a 30-day period, the individual has to work or participate in a work program for 80 or more hours, or participate in and comply with a work fare program. If the individual works 50 hours, and then 60 days later works another 30 hours, the individual has not worked 80 hours within a 30-day period, and so has not regained eligibility under this provision.

Q. When a person returns to the food stamp office and reapplies to regain eligibility, is the date of application the date the household reports he has just started working or the date the cure is completed?

A. The date of application is the date the household submits an application with a name, address, and signature. This was not changed by the welfare reform law. However, the date that a disqualified person can regain eligibility on the basis that he or she is cured will either be addressed by regulations or States will be allowed flexibility in this area.

Q. To be eligible for the one time 3-month extension, does the individual have to be receiving food stamps at the time his employment or training program participation ends?

No. There is nothing in the law that requires that the person be participating in order to regain eligibility.

Q. Will the 3 "additional" months of ABAWD eligibility be allowed only to those individuals who were denied benefits because of the provisions of this Section?

A. Yes. The law specifically states, "An individual denied eligibility under paragraph (2) [work requirements] shall regain eligibility to participate…"

Q. If an individual was denied because he or she was not working or participating in a work or workfare program, the individual can regain eligibility to participate if, during a 30-day period, the individual works or participates in a work or workfare program the required number of hours. If an ABAWD’s certification period expired and the ABAWD did not reapply because he or she knew he or she would not be eligible, can the ABAWD subsequently regain eligibility if, during a 30-day period, the individual works or participates in a work or workfare program the required number of hours even though he or she was not technically "denied"?

A. Yes. An ABAWD who would have been denied had they reapplied shall be treated the same as an ABAWD who reapplied and was denied.

Q. A case is closed because an ABAWD is not working or participating in a work or workfare program the required number of hours. The person reapplies because he or she has become medically certified as unfit for employment and the disability is verified. Can the person regain eligibility on the basis that he or she is now exempt from the ABAWD work requirement or does the person have to be working or participating in a work or workfare program the required number of hours to regain eligibility?

A. The person can regain eligibility based on the disability. The ABAWD work requirement does not apply to individuals who are medically certified as physically or mentally unfit for employment.

General

Q. If a person leaves the program and then returns, where does his 36 months start?

A. Once started, the 36-month period continues uninterrupted, even while the person is not participating; it is only the 3-month "clock" that starts and stops.

Q. If the recipient has not worked and has received food stamp benefits for 2 ½ months but it is verified that they will begin employment, will the State agency look at the case prospectively and consider the recipient eligible and determine eligibility?

A. We will either address this in regulations or allow State flexibility in this area. In the interim, State agencies may use their best judgment.

Q. Is a partial or prorated month of eligibility considered one month of the 3 months ABAWDs are eligible for the program without working?

A. We will either address this in regulations or allow State flexibility in this area. In the interim, State agencies may use their best judgment.

Q. When does the actual 36 months begin? Is it a rolling clock or a fixed clock with all time counted against the clock (for the 36-month period)? If a rolling clock is to be used, how will 36-month blocks be defined? Is it different for currently participating individuals?

A. For the current participants, the clock starts November 22, 1996 or the date the State agency sent the notice, whichever is earlier. States have the option to use a rolling or fixed period. But in no event can participation be counted before November 22 or the date the State agency sent the notice. We may address this further in regulations.

Q. When determining length of participation for an ABAWD, if the initial month was prorated, will it be counted as one of the 3 months of eligibility?

A. We will either address this in regulations or allow State flexibility in this area. In the interim, State agencies may use their best judgment.

Q. Will State agencies be required to create new work programs to place recipients in employment or a work or workfare program for purposes of this provision?

The law does not require States to create new programs for purposes of this section.

Q. Will a national tracking system be developed to track able-bodied adults without dependents ages 18 through 50? Will States be expected to enforce this requirement for individuals who move from State to State?

A. There are no plans for a national tracking system. The DRS system will only handle IPV disqualifications. States should be concerned primarily with in-State households but must act on other information that is available.

Q. If a person completes a cure on January 1 but does not reapply until February 1 and provides verification of the cure on February 10, from what date would benefits be prorated?

A. Benefits would be calculated from February 1, the date of application.

Q. When an individual has been denied benefits under Section 824, is the household required to report when this individual leaves the household, starts a job, etc.?

A. We will either address this in the regulations or allow State flexibility in this area. In the interim, State agencies may use their best judgment.

Q. Does the reference to 80 hours per month to regain eligibility pertain to 4 weeks or to 30 days?

A. Thirty days. The law specifically states, "an individual denied eligibility under paragraph (2) shall regain eligibility to participate in the food stamp program if, during a 30 day period, the individual works 80 or more hours…."

Q. Should the State act on changes that it becomes aware of (e.g., a client gets a workfare job or someone else tells the worker that the client has lost his or her job, etc.)?

A. Yes. The State agency is required to act on information when it becomes aware of a change in household circumstances.

Q. Can a State consider the first month after a recipient's recertification as the first month of the 3-month time limit?

A. No. The law requires that for current recipients, the 3-month time frame starts either November 22, 1996, or the date the State notifies recipients of this provision, whichever is earlier. Our implementing instructions of August 26, 1996 allowing States to implement this provision at recertification did not waive these provisions of the law. By allowing States to apply this provision at recertification, we were simply indicating that State agencies are not required to perform case reviews to identify and terminate benefits for individuals that will become ineligible under this provision--they can do this at the time of recertification.

Q. If an individual is ineligible under Section 824, is that individual also ineligible for the Food Distribution Program on Indian Reservations?

A. No. That individual is still eligible for the Food Distribution Program on Indian Reservations (FDPIR) because Section 824 makes individuals ineligible for "the food stamp program." The FDPIR is not "the food stamp program," and so the provisions of Section 824 do not apply.

Q. Section 824 of PRWORA provides that ABAWDs can only get food stamps for three months in three years if they are not meeting the work requirement, not covered by a waiver, or are otherwise exempt. Does that mean State agencies should only assign three month certification periods to ABAWDS?

A. No. The State agency may assign any length certification period it deems appropriate as long as it does not exceed twelve months. However, States may find it to be administratively easier to assign three month certification periods to any ABAWD who is not working at the time of certification.

Q. If the State agency assigns a certification period that is longer than three months to an ABAWD who is not working at the time of certification, and the recipient does not report that he/she has not gotten a job, should the State agency cut him/her off automatically at the end of three months or is the recipient entitled to a notice of adverse action?

A. No. The State agency shall not cut the recipient off automatically. ABAWDs are entitled to a notice of adverse action. However, when the State agency sends out the notice of adverse action will be addressed in Q and A number 3 and 4.

Q. The State agency knows at the time of certification that the ABAWD is not working and is subject to the three month time limit. The State agency assigns a certification period longer than three months. At what point in the certification period should the State agency issue the notice of adverse action?

A. The State agency shall issue the notice of adverse action in a timely fashion to ensure that the ABAWD gets no more than three months of benefits while not working.

Q. If the State agency assigns a certification period longer than three months to an ABAWD who is not working at the time of certification and is subject to the three month time limit, and the State agency has reasonable expectations that the recipient is going to get a job or a workfare slot in the third month, does the State agency have to issue a notice of adverse action?

A. No. If the State agency can verify that the recipient is going to start a job or participate and comply with workfare in the third or fourth month thus maintaining his/her eligibility, the State agency does not have to issue a notice of adverse action. However, if the recipient fails to begin employment or does not participate and comply in the workfare program as anticipated, the State agency must issue a notice of adverse action and establish a claim for any benefits issued beyond the allowable time period.

Q. An individual applies in January and is denied because he has used up his first and second three months and is no longer meeting the work requirement. In June, this applicant returns and provides verification that he/she is medically certified as unfit for employment and was as of January. Do we provide restored benefits?

A. No. If the applicant fails to disclose on the application that he/she is medically certified as physically or mentally unfit for employment and/or fails to provide verification within the time frames outlined in 273.2(h) then the State agency is not required to provide restored benefits. However, 7 CFR 273.2(j)(1)(iv) provides that households that file joint applications (FS and SSI) and are determined to be categorically eligible after being denied NPA food stamps shall have their benefits for the initial month prorated from the date the SSI is approved or the date of the original food stamp application date, whichever is later.

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