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PA Bulletin, Doc. No. 04-2116



Notice of Comments Issued

[34 Pa.B. 6370]

   Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).

   The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.

Close of the Public Comments
Reg No. Agency/Title Comment Period Issued
35-29 Pennsylvania Commission on Crime and
   Delinquency, Office of Victims' Services
Crime Victims Compensation
34 Pa.B. 5032 (September 11, 2004)
10/12/04 11/12/04
14-489 Department of Public Welfare
Subsidized Child Care Eligibility
34 Pa.B. 5044 (September 11, 2004)
10/12/04 11/12/04

Pennsylvania Commission on Crime and Delinquency, Office of Victims' Services Regulation # 35-29 (IRRC #2428)

Crime Victims Compensation

November 12, 2004

   We submit for your consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Office of Victims' Services (OVS) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on October 12, 2004. If the final-form regulation is not delivered within two years of the close of the public comment period, the regulation will be deemed withdrawn.

1.  Section 411.2. Definitions.--Legislative intent; Consistency with statute; Need; Clarity.


   The House Judiciary Committee (House Committee) commented that this term should be defined to clarify the intent to ''. . . ensure that payment may be made to cover the cost associated with the clean-up of blood and stains caused by other bodily fluids as a direct result of the crime. . . . '' We agree.

Dependent child

   This definition contains the phrase ''eighteen years of age or younger.'' Section 11.702(b)(2)(ii) of the Crime Victims Act (Act) (18 P. S. § 11.702(b)(2)(ii)) includes the language ''under 18 years of age'' to describe an individual who is not an adult. For clarity, OVS should use the phrase ''under 18 years of age'' to define a ''dependent child.''

Loss of earnings and Stolen benefit cash

   The House Committee commented on both of these regulatory definitions. We agree that these definitions are confusing. We have two concerns.

   First, the regulatory term ''stolen benefit cash'' is confusing because it is virtually identical to the statutory definition of ''loss of earnings.'' Subsection (b) states ''[t]he definitions in section 103 of the act (18 P. S. § 11.103) are incorporated by reference.'' Hence, why is the regulatory term ''stolen benefit cash'' needed?

   Second, if the term ''stolen benefit cash'' is needed, why does it vary from the statutory definition of ''loss of earnings''? The definition of ''stolen benefit cash'' uses the term ''direct victim'' in place of the term ''victim.'' The statute defines both the term ''victim'' and ''direct victim'' differently. The statute uses the term ''victim'' in its definition of ''loss of earnings.''

   OVS should either explain the need for the term ''stolen benefit cash'' or delete it from the definitions and the regulation. In its place, the term ''loss of earnings'' should be amended to be consistent with the statute.

2.  Section 411.11. Filing procedures.--Consistency with statute; Clarity.

Time limits

   This section does not include a time limit for filing claims for compensation with OVS. The regulation should include the time limits in Section 702(b) of the Act (18 P. S. § 11.702(b)).

Subsection (a)

   This subsection states, ''A claim may be filed by a person eligible under the act.'' Subsection (a) should also reference Section 411.3(a) of this Chapter.

   Subsection (e) and Subsection (g)

   Subsections (e)(2)(v) and (g)(3) allow OVS to consider ''other circumstances deemed appropriate by OVS.'' What ''other circumstances'' will OVS consider?

Subsection (h)

   This subsection describes violations of a protection from abuse order involving an eligible crime. To fulfill the requirements of this subsection, the eligible crime must be reported in a ''timely manner.'' What is considered a ''timely manner''?

Subsection (i)

   The House Committee suggests adding language to Paragraph (i)(7) to determine whether damage as a result of the crime is covered by homeowners insurance, similar to provisions in Subsections (i)(2)(iv) and (i)(6)(iv). We agree.

   Additionally, this subsection states, ''when requested by OVS, the claimant shall submit copies of documents that are needed to process the particular type of claim, which include the following. . . .'' Under the list of provisions, Paragraph (6)(v)(A) Witness., would require the claimant to submit ''a police report obtained by OVS.'' If OVS obtained the police report, why is the claimant required to submit a copy?

3.  Section 411.14. Determinations.--Reasonableness; Clarity.

Subsection (a)

   This subsection states a claimant may provide ''additional information or clarification on the claim post-marked no later than 30 days from the date of OVS's initial determination. . . .'' Does this mean the date on which the claimant receives notice of the initial determination?

Subsection (c)

   This subsection includes a list of individuals that may receive a copy of OVS' final determination. The House Committee suggests that the district attorney having jurisdiction where the crime occurred should be added to this list. Title 18 Section 1106(c)(4) (18 Pa.C.S. § 1106(c)(4)) requires district attorneys to make recommendations to the sentencing court for the amount of restitution. Notice from OVS regarding a claim determination will assist the district attorney in meeting this requirement. We agree.

4.  Section 411.15. Actions affecting awards.--Consistency with statute; Clarity.

Subsection (a)

   This subsection sets standards for consideration of whether the conduct of the direct victim or intervenor contributed to the injury. The standard in Paragraph (3) is the direct victim or intervenor ''used poor judgment resulting in the placement of the direct victim or intervenor into a situation likely to result in injury.'' The standard of ''poor judgment'' is subjective. This standard should be deleted or amended to more closely relate to the conduct of the direct victim or intervenor.

Subsection (c)

   The intent of this subsection is not clear. How will the victim of a driving under the influence crime be treated differently? How does driving without a license differ from the conduct standards in Subsection (a)?

Subsection (g)

   Subsection (g) states OVS may consider a failure to cooperate with law enforcement and OVS justified when a number of situations occur. However, this subsection does not include minors. Are minors able to cooperate with OVS?

Subsection (g) and Subsection (h)

   Subsections (g)(3) and (h)(5) allow OVS to consider other circumstances deemed appropriate by OVS or other factors that OVS deems relevant. What other circumstances or factors will OVS consider?

5.  Section 411.16. Reductions, offsets and limitations.--Clarity.

Subsection (a)

   This subsection states, ''an award made under the act and this chapter shall be reduced by the amount of any payments received or to be received. . . .'' Paragraph (1) includes any payment from or on behalf of the individual who committed the crime. The House Committee commented that ''any decision by OVS to reduce, offset or limit an award to a claimant should only be made after first considering the ability of the Board to exercise its right to subrogation and restitution.'' We agree.

Subsection (e)

   This subsection includes a citation to the federal Medicare Program. This program is found at 42 U.S.C. § 1395 et. seq. For clarity, the Commission should cite the sections that deal specifically with Medicare reimbursement allowances as a result of a motor vehicle incident.

6.  Section 411.31. Reconsideration.--Reasonableness.

Subsection (a)

   This subsection allows a claimant to contest OVS's determination ''by submitting a written request for reconsideration post-marked no later than 30 days from the date of determination.'' There are two concerns.

   First, how will the claimant know when the 30-day period began? Section 704(d) of the Act (18 P. S. § 11.704(d)) requires OVS to promptly notify the claimant of its final decision. We also note that the 30-day period for judicial review under 18 P. S. § 11.705 begins 30 days after the claimant receives a copy. The regulation should specify that the claimant has 30 days from receipt of OVS' determination.

   Second, the requirement of a post-mark would limit the method of filing. This subsection should be amended to be similar to Section 411.11(c) which allows several methods of filing, including electronic means.

7.  Section 411.32. Hearing.--Clarity.

Subsection (h)

   This subsection requires the claimant to ''provide written confirmation to OVS of the claimant's intent to attend the hearing, including a list of witnesses and documentary exhibits to be presented. . . .'' The House Committee requests this section be amended to clarify whether the submission of a list of documentary exhibits will satisfy this requirement, or if the actual documentary exhibits must be provided. We agree with the House Committee, and request the OVS clarify this subsection in the final-form regulation.

Subsection (j)

   This subsection states ''a hearing will not be rescheduled more than once.'' Shouldn't the hearing examiner have the flexibility to review the reason the claimant did not attend and, based on that information, make a determination on whether another hearing should be scheduled?

Subsection (l)

   This subsection allows a hearing officer to ''issue subpoenas for attendance of witnesses or for the production of documentary evidence.'' The House Committee suggested procedures for requesting subpoenas be included in Section 411.32(k). We agree.

8.  Section 411.33. Final decision after hearing.--Reasonableness; Clarity.

   This section does not contain any timeframe for the hearing officer to deliver the report or for OVS action on the report. Should timeframes be added to ensure claims are processed in a timely manner?

9.  Section 411.42. Out-of-pocket loss.--Reasonableness; Clarity.

Dollar amount of allowed expenses

   Commentators have said that the $200 amount for the loss of eyeglasses in Section 411.42(d)(1) is too low. Additionally, commentators stated the $5,000 limit for funeral expenses in Section 411.42(c) is not enough. OVS should explain how the dollar amounts were derived, and why they are reasonable.


   A commentator requested that this regulation include pre-approval of dental care, plastic surgery, vision or eye care, prosthetics and pharmacy costs because victims are denied non-emergency care when they cannot guarantee payment. Is there a way for a victim to demonstrate need for non-emergency medical care before the procedure is done? Can a provider be paid directly?

Subsection (g)

   This subsection states, ''OVS will reimburse expenses associated with travel to obtain medical care or counseling and, in the case of an injury that results in death, for travel in connection with making the funeral arrangements and transport of the body.'' The House Committee commented that travel expenses for funeral arrangements should be allowed as out-of-pocket loss, but should also be required to be ''reasonable and necessary.'' We agree.


Department of Public Welfare Regulation #14-489 (IRRC #2429)

Subsidized Child Care Eligibility

November 12, 2004

   We submit for your consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Department of Public Welfare (Department) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on October 12, 2004. If the final-form regulation is not delivered within two years of the close of the public comment period, the regulation will be deemed withdrawn.

1.  Additional responsibilities of eligibility agencies and costs for currently enrolled children.--Fiscal impact.

   The Department has indicated that this rulemaking will allow an additional 3,388 children to receive subsidized child care annually. The estimated cost of this rulemaking is $5.5 million for the remainder of the 2004-2005 fiscal year and $9.9 million per year thereafter. The Department has indicated that these costs relate only to day care for new children eligible for subsidized child care. We have two concerns related to the fiscal impact of this regulation.

   First, some child care information service (CCIS) agencies have commented that the rulemaking will increase their administrative duties and costs of operating. They claim their costs will rise due to new requirements of record keeping and verifying eligibility factors. Since none of the additional funding will be dedicated to these program costs, how will the CCIS agencies be reimbursed for additional expenses they may incur under this regulation?

   Second, the rulemaking will allow families currently enrolled in the subsidized child care program to qualify for more hours of care. In addition, parents/caretakers in education programs who work fewer hours could pay lower co-payments which would result in higher costs to the Department. How much additional funding is needed to serve the children currently enrolled in the subsidized child care program? How will these costs be funded?

2.  Policy revisions.--Fiscal impact; Reasonableness.

   The Department has proposed numerous policy changes in an effort to accomplish its stated goals of making high quality child care more accessible to families, promoting family self-sufficiency and promoting parental choice of child care options. Some CCIS agencies have expressed opposition to or concern with the following policy changes:

*  Eliminating the existing requirement for the parent or caretaker to seek court-ordered child support;
*  Eliminating the cap on the number of hours of subsidy in a seven-day period;
*  Allowing receipt of subsidy for child care to cover travel time and sleep time (§§ 3041.14(a)(1) and (2));
*  Increasing the time period during which a parent/caretaker may continue to receive subsidy from the date of an involuntary loss of work, the date a strike begins or the date the parent/caretaker completes an education program from 30 days to 60 days;
*  Eliminating a live-in companion's income from the family income determination;
*  Including only a portion of a stepparent's income in the family income determination (§ 3041.33(5));
*  Reducing the minimum required number of work hours from 25 to 20 per week, or a combination of 10 hours per week of work and 10 hours per week of training (§ 3041.43(a) and (c)); and
*  Eliminating the requirement that the parent/caretaker earn at least minimum wage.

   The commentators are concerned that these changes will: raise the Department's and CCIS agencies' costs of administering the subsidized child care program; discourage families from becoming self-sufficient; and significantly increase waiting lists. We request the Department further explain how these proposed policy changes will achieve its stated goal of promoting family self-sufficiency. We also request that the Department explain how these proposed changes will meaningfully increase access to care if waiting lists are expanded.

3.  Section 3041.3. Definitions--Reasonableness.

   The term ''self-certification'' is defined as, ''A written statement provided by a parent or caretaker for the purpose of establishing selected factors of nonfinancial eligibility.'' The Department has noted that ''self-certification'' will make it easier for families to apply and qualify for subsidized child care. Given that self-certification does not require follow-up documentation, is there a risk that non-eligible families may obtain subsidized child care to which they are not entitled?

4.  Section 3041.16. Subsidy limitations.--Clarity.

   Subsection (d) allows a family with two parents or caretakers to be eligible for subsidized child care if one of the parents or caretakers is unable to care for the child because of a physical or mental disability. This subsection should include a cross-reference to Section 3041.71, relating to verification of permanent inability to work.

5.  Section 3041.20. Subsidy continuation during breaks in work.--Reasonableness.

   This section allows a family's eligibility for subsidized child care to continue during specified interruptions of work. Maternity leave is not included in the list of interruptions. Based on discussions with Department staff, we understand that the Department intended to include maternity leave. Therefore, the final-form regulation should be amended to reflect the Department's intent.

6.  Section 3041.22. Subsidy disruption.--Reasonableness.

   Under Subsection (c), if subsidized care is disrupted because the eligibility agency does not have sufficient State or Federal funding, the subsidy for children whose families have the highest income is disrupted first. Since family sizes vary, we question the reasonableness of basing disruption of subsidy solely on income level. The Department should explain the rationale for this approach.

7.  Section 3041.43. Work, education and training.--Reasonableness; Clarity.

   Subsection (d) provides that a parent or caretaker who misses work due to ''illness, injury, employer closings, holidays, temporary work slow-downs, emergencies or domestic violence'' remains eligible for subsidy if he or she is normally scheduled to work 20 hours per week. We recognize that this subsection was written with the purpose of providing CCISs the flexibility to meet the particular needs of the families they serve. However, it contains vague language which may make it difficult for this provision to be administered consistently and uniformly throughout the Commonwealth. We have three concerns.

   First, the term ''temporary work slow-downs'' is unclear. The final-form regulation should include the criteria the Department will use to determine what qualifies as a ''temporary work slow-down.'' Additionally, the Department should specify at what point a ''temporary work slow-down'' becomes a permanent reduction in work hours.

   Second, the final-form regulation should specify for how long a person can have fewer than 20 hours per week of work and remain eligible for subsidized child care.

   Finally, the term ''emergency'' is open to interpretation. The Department should either define this term or specify the criteria it will use to determine if a situation qualifies as an emergency.

8.  Section 3041.46. Immunization.--Clarity.

   Subsection (c) states, ''The parent's or caretakers' self-certification on the application or on another form provided by the Department is verification of immunization or exemption from immunization requirements.'' Section 3041.67 relating to Verification of immunization also provides that acceptable verification of immunization is the parent's or caretaker's self-certification.

   These provisions could be interpreted as allowing children to enter child care facilities without documentation that they have the required immunizations, or an exemption from immunizations. Based on discussion with Department staff, we understand that this is not the intent. The purpose of the provisions in this regulation is to avoid duplication of paperwork requirements. Parents or caretakers will still have to provide immunization records to the child care provider as required by 55 Pa. Code § 3270.131(d)(5). The clarity of Section 3041.46(c) and Section 3041.67 could be improved by adding a cross-reference to the requirements in 55 Pa. Code § 3270.131(d)(5).

9.  Section 3041.65. Verification of residence.--Reasonableness.

   This section allows a parent or caretaker to self-certify their residency status on applications or eligibility redetermination forms. Self-certification does not require the applicant to supply documentation to support their claim. However, self-declaration does require an applicant to provide documentation within 30 days. Therefore, we recommend that this section be amended to allow a parent or caretaker to self-declare their residency status.

10.  Section 3041.85. Record retention.--Need; Reasonableness.

   Subsection (b) requires eligibility agencies to maintain records for at least seven years. The existing regulation requires records to be kept for four years. The Department should explain why it is necessary to increase record retention to seven years.

11.  Section 3041.145. Self-declaration and reporting.--Clarity

   Paragraph (1) requires Temporary Assistance for Needy Families (TANF) and former TANF parents or caretakers to self-declare several eligibility factors. We note that Subsection (d) of Section 3041.63, relating to Self-declaration, requires the parent or caretaker ''to provide another form of acceptable verification no later than 30 calendar days following the date the written self-declaration is accepted. . . .'' Section 3041.145(1), however, does not require this follow-up verification.

   Based on discussions with Department staff, we understand that for families who move immediately from TANF to the subsidized child care program, follow-up verification is unnecessary because extensive records are maintained by the TANF program. These records would simply transfer to the subsidized child care eligibility agent. However, the regulation does not address follow-up verification for families who do not immediately transfer from TANF to subsidized child care. The final-form regulation should address the verification requirements for these families.

12.  Miscellaneous clarity issues.

*  Sections 3041.14(b) and 3041.32(1) use the phrase ''biological or adoptive parent or stepparent.'' This phrase is not defined and differs from the phrase ''parent or caretaker'' which is used throughout the remainder of the regulation. The final-form regulation should be amended to consistently use the phrase ''parent or caretaker.''
*  Section 3041.64, relating to verification of income, uses the terms ''earned income'' and ''unearned income.'' The final-form regulation should define these terms.
*  Section 3041.101, relates to general co-payment requirements. Subsection (e) states that a co-payment is due on the first day of the family's first full-service week. This conflicts with § 3041.104(f), relating to parent or caretaker co-payment requirements, which states that the co-payment is due on the first day of the service week. The final-form regulation should make these two provisions consistent.
*  As published in the Pennsylvania Bulletin, there is a typographical error in the heading of the section relating to Notice of overpayment. The numeric heading for this section is printed as ''§ 3040.167.'' This should be changed to § 3041.167. (Emphasis added.)
*  Section 3041.171(6) references ''§ 3040.21.'' This reference should be changed to § 3041.21. (Emphasis added.) Similarly, Section 3041.171(7) references ''§ 3040.22.'' This reference should be changed to § 3041.22. (Emphasis added.)
[Pa.B. Doc. No. 04-2116. Filed for public inspection November 24, 2004, 9:00 a.m.]

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