Brief for the Appellants by liuhongmeiyes


									                          TABLE OF CONTENTS

Table of Cases and Authorities . . . . . . . . . . . . . . . ii
Statement of Prior or Related Appeals         . . . . . . . . . . . iv

Statement of Jurisdiction . . . . . . . . . . . . . . . . . . 1

     Subject Matter Jurisdiction . . . . . . . . . . . . . . .       1
     Appellate Jurisdiction   . . . . . . . . . . . . . . . . .      1

Statement of Issues Presented for Review . . . . . . . . . . . 1

Statement of the Case      . . . . . . . . . . . . . . . . . . . . 2

     Nature of the Case      . . . . . . . . . . . . . . . . . . .   2
     Statement of Facts      . . . . . . . . . . . . . . . . . . .   3

Argument . . . . . . . . . . . . . . . . . . . . . . . . ...8
     A.      Treatment of GA-WEAT Benefits as
             Interim Assistance Violates the
             Social Security Act   . . . . . . . . . . . . . .       8

     B.      Recoupment of GA-WEAT Benefits
             from Retroactive SSI Violates
             State and Federal Contract Law       . . . . . . . . . 19

     c.      Recoverv of GA-WEAT From
             Aooellants' Retroactive SSI Was
             Void For Failure to Comolv With   _
             the Utah Administrative Rule
             MakinaAct      . . . . . . . . . . . . . . . . . . . 21

     D.      Services Performed Under the
             EWP or a GA-WEAT Proiect Must
             Be Compensated at Minimum Waae . . . . . . . . . . 22

Conclusion       . . . . . . . . . . . . . . . . . . . . . . . . 25

Oral Argument Requested . . . . . . . . . ., . . . . . . . . 26

Certificate of Service       . . . . . . . . . . . . . . . . . . 26

District Court Order Appealed From


                          CASES CITED

Allen v. Denver Public School M.,
928 P.2d 978, 983 (10th Cir. 1991) . . . . . . . . . . . . . . 8
Aulston v. U.S., 915 F.2d 584,596 (10th Cir. 1990) . . . . . 12
Bonnette v. California Health and Welfare Auencv,
704 F.2d 1465, 1469 (9th Cir. 1983) . . . . . . . . . . . . . 23
Bresqal v. Brock, 843 F.2d 1163 (9th Cir. 1987) . . . . . . . 12

Chevron U.S.A. v. Natural Resources
Defense Council, 467 U. S. 837,842-43(1984) . . . . . . . . . 11
Corso v. Creicyhton University, 731 F.2d 529, 533
(8th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . 19
Dept. of Treasurv v. FLRA, 837 F.2d 1163
(D.C. Cir. 1988)  .. . . . .. . . . . . . . . . . . . . . .    12

Edwards v. Valdez, 789 F. 2d 1477, 1481
(10th Cir. 1986)  . .. .. . . . . . . . . . . . . . . . . .    12

Ellis v. Utah State Retirement Board, 757 P.2d 882
(Ut.App.1988) . . . . . . . . . . . . . . . . . . . . . . . 22
Esta Later Charters, Inc. v. Icnacio, 875 F.2d 234,
239 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . 16
Palk v'. Brennon, 414 U.S. 190, 195 (1973) . . . . . . . . . . 25

Goldbera v. Whitaker House Cooperative, Inc.,
366 U.S. 28, 33 (1961) . . . . . . . . . . . . . . . . . . . 23

Helitzer v. Helitzer, 761 F.2d 582, 589
(10th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . 19
In Re Vazauez, Guerrero and Comnton, 788 F.2d 130,
134 (3rd Cir. 1986) . . . . . . . . . . . . . . . . . . . . . 19

Klaips v. Beroland, 715 F.2d 477, 481
(10thCi.r. 1983) . . . . . . . . . . . . . . . . . . . . . . 24

Lane v. Board of Review, 727 P.2d 206, 208
(Ut.1986) . . . . . . . . . . . . . . . . . . . . . . . . . 22

Merrill Lunch. Pierce, FeMer h Smith v. Curran,
456 U.S. 353,377-78 (1982) . . . . . . . . . . . . . . . . . 12

Mitchell v. Lublin, McGauuhv h Associates,
358 U.S. 207, 211 (1959) . . . . . . . . . . . . . . . . 0         l   23

National Foods, Inc. v. Rubin, 936 F.2d 656,
660 (2nd Cir. 1991) . . . . . . . . . . . . . . . . . . . . . 15
Owvhee. Inc. v. Robbins Marco Polo, 407 P.2d 565,
567 (Ut. 1965) . . . . . . . . . . . . . . . . . . . . . . . 20

Perrin v. United States, 444 U.S. 37, 42 (1979) . . . . . . . 12

Philpott v. Essex Countv Welfare Board,
409 U.S. 413(1973). . . . . . . . . . . . . . . . . . . . . . - 9

Respect Inc. v. Committee on the Status of Women,
781 F.Supp. 1358, 1364 (N-D. Ill.,E.D. 1992) . . . . . . . . 19
Tony 6, Susan Alamo Foundation v. Sec. of Labor,
471 U.S. 290 (1985) . . . . . . . . . . . . . . . . . . . . . 23
U.S. v. 1002.5 Acres of Land, 942 F.2d 733,
735 (10th Cir. 1991) . . . . . . . . . . . . . . . . . . . . 16
U.S. v. Turkette, 452 U.S. 576, 580 (1981) . . . . . . . . . 15
Walker v. Shanq, 412 N.Y.S. 2d 629
(S.Ct., App. Div. 2d Dep. 1979) . . . . . . . . . . . . . . . 15
Williams v. Public Service Commission,
720 P.2d 773, 775-77 (Ut. 1986) . . . . . . . . . . . . . . . 21

28 U.S.C. s1291 . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. SS1331, 1343(a)(3) 61 (4) . . . . . . . . . . . . . . 1

28 U.S.C. Ss2201, 2202 . . . . . . . . . . . . . . . . . 0 0           l   1

29 U.S.C. SS201 et. seq . . . . . . . . . . . . . . . . . . .          23
29 U.S.C. S203 (d)     . . . . . . . . . . . . . . . . . . . . .       23
29 U.S.C. S206(a)    . . . . . . . . . . . . . . . . . . . . . .       23
42 U.S.C. S407(a)    . . . . . . . . . . . . . . . . . . . . . . .         9

42 U.S.C. S1381 . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. S1383(g) . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. S1383(g)(3) . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. s1383(g) et. seq. . . . . . . . . .                                .   .   .   .   .   .       9,lO

42 U.S.C. s1983 . . . . . . . . . . . . . . .                                .   .   .   .   .   .   .    .l

20 C.F.R. ss416.1100 et. seq.             .   .    .   .   .    .    .   .   .   .   .   .   .   .   .     17

20 C.F.R. S416.1104   .   .   .   .   .   .   .    .   .   .   .     .   .   .   .   .   .   .   .   .     17

20 C.F.R. S416.1110 . . . . . . . . . . . . .                                .   .   .   .   .   .   .     17

20 C.F.R. S416JllO(d)         . . . . . . . . . . .                          .   .   .   .   .   .   .     18

20 C.F.R. s416.1112 . . . . . . . . . . . . .                                .   .   .   .   .   .   .     18

20 C.F.R. s416.1121(g)        .   .   .   .   .    .   .   .    .    .   .   .   .   .   .   .   .   .     18

20 C.F.R. ss 416.525 and 416.1901 .et.                         SW.           .   .   .   .   .   .   .     10

There are no prior or related appeals.

                         STATEMENT OF JURISDICTION

Subiect Matter Jurisdiction

          Jurisdiction   was     conferred on the district court by 28

U.S.C. §§1331, 1343(a)(3) & (4).            Declaratory relief was authorized

by 28 U.S.C. $x2201, 2202 and Rule 57 of the Federal Rules of Civil
Procedure.     The action was brought pursuant to 42 U.S.C. S1983,

alleging that defendants had violated plaintiffs rights under the
United States Constitution and the Social Security Act by recouping

amounts from plaintiffs' retroactive SSI awards.
Apoellate Jurisdiction
          This is an appeal from a final judgment that disposes of all

claims with respect to the parties.                This court has jurisdiction

pursuant to 28 U.S.C. s1291.              The district court entered an order

on June 7, 1994 granting defendants' motion for summary judgment

and denying plaintiffs' motion for summary judgment.                        Notice of

appeal was timely filed in the district court on June 29, 1994,

pursuant to F.R.A.P. 4(a)(l).


1.   Whether state assistance paid to a participant in a work

program     (GA-WEAT)    while      a     disability   application        is   pending

represents interim assistance under the Social Security Act, 42

U.S.C.    §1383(g)(3),     and      may    be   recouped   from    a     participant's

retroactive SSI award.

2.   Whether    recovery       of    GA-WEAT     assistance       from    appellants'

retroactive SSI benefits violated appellants' rights under state

and federal contract law.

3.     Whether recoupment of GA-WEAT assistance from retroactive SSI
benefits      was   void    for    failure    to     comply     with     the    Utah

Administrative Rule Making Act.
4.     Whether services performed under the EWP and GA-WEAT programs

must be compensated at minimum wage under the Fair Labor Standards


                             STATEMFNT OF THE CASE
Nature of the Case, Course of Proceedinas, and Disposition

          Michael Johns received assistance under the Emergency Work

Program (EWP) during the time when his application for disability

benefits under the Supplemental Security Income (SSI) program .was

pending.      Aplt. App., at 7,8 & 24,25.          When he was found disabled

and awarded retroactive SSI, the EWP benefits he had worked for
were withheld as interim assistance.            Aplt. App., at 31.             Robert

Witbeck, who was also required to participate in EWP while his SSI
disability application was pending, died prior to agreement on a

partial settlement.        His survivors have received the amount owing

to him under the partial settlement described below.                   John Davies

received financial assistance under the GA-WRAT program and was

required to work 96 hours per month in order to qualify. Aplt.

APP.,    at    11,27.      After   being     determined       eligible    for     SSI
disability,     appellees withheld as interim assistance, all of the

CA-WHAT benefits paid to Davies.           Aplt. App., at 32.
          Johns and Davies brought suit claiming the amounts they

received under the two work programs were not interim assistance,

because they had worked to earn the benefits.                They maintained the

recoupment of benefits from their retroactive SSI awards violated

the Social Security Act as well as other rights protected by state
and federal law.          Aplt. App., at 1.        They further alleged they

should have been compensated at minimum wage under the Fair Labor
Standards Act (FLSA).

          The parties reached a partial settlement, agreeing to class
certification,      the    return   of   all     benefits    recouped   from   EWP

participants and reimbursement of the WEAT allowance. Aplt. App.,
at 33.    The parties submitted the remaining questions regarding the

GA-WEAT program and the minimum wage issue to the court on cross
motions    for   summary     judgment.        The court ruled in favor' of

appellees on all issues submitted.
Statement of Facts

     At issue in this appeal are two programs funded by the State
of Utah: General Assistance (GA) and the Emergency Work Program

(EWP)?     The GA program began as a form of assistance for persons
who were "unemployable" or who were "marginally employable." Utah-

DHS-OFS    Volume   II    (hereinafter       "Vol.11")   S   810,812.31&.32.   EWP

began in 1983 as an emergency work program to benefit employable

individuals and required a minimum of 32 hours of work per week.

In addition to 32 hours of work per week, the EWP participant was

required to devote 8 hours each week to job search, adult education

     'The state of Utah policies and procedures pertaining to the
GA and WEAT programs are reproduced in the Addendum, as they
appeared at the time this case arose.

or skill training.         Vol. II S808.27.

         At the time Davies applied for assistance, "unemployable"

was defined in state policy as follows:

       The impairment must be so severe that
       the person cannot do his previous work.
       In addition, he could not reasonably hope
       to find any other kind of "substantial work"
       considering his age, education, and work
       experience.   "Substantial work" is work
       which pays $500 or more a month.
Vol.    II S812.31.         A     client    whose    medical      report    established

inability to work for 30 days or more or whose "marked limitations"
evidence no reasonable hope of finding any other work is to be
determined "unemployable." Vol. II S812.31.

       A G A     recipient         deemed        capable     of    benefiting         from

rehabilitation       or    a    work   requirement          can   be       required    to

participate in a self-sufficiency program. Vol. II S812.6. Among

the self-sufficiency requirements available is a program known as

the Work Experience and Training program (WEAT).                       Based upon an

assessment by a self-sufficiency worker at the local office, using

medical evidence produced by the applicant, some GA applicants are
required to participate in a WEAT project while others are not.

Those GA recipients who refuse without good cause to participate in

self-sufficiency,         including a WEAT project, can be terminated from

the program.     Vol. II S812.6.           A terminated GA-WEAT participant who

is     reinstated    cannot        receive       benefits     until    24    hours      of

satisfactory participation have been completed. Vol. II $812.6.

Incapacity     may   be    good    cause    for     not   participating     in   a WEAT

project. Vol. II S812.6.

      Those        for     whom    WEAT     participation              is   mandatory         must

participate 96 hours per month. At the time this case arose, GA

participants        received       a     grant       of   $233.00       a     month    and,     if

participation in a WEAT project was required, an additional $45.00

work allowance.           All WEAT payments are made from state funds to GA

recipients before participation in the work project.

      The      state      of   Utah    participates        in     an    interim       assistance

agreement with the Social Security Administration (SSA).                                    Under

this agreement, SSA reimburses the state for "interim assistance"
provided to SSI disability applicants while their applications are
pending.       The state defines interim assistance as:

      General Assistance grants payments made to a client to
      meet basic needs while awaiting a final decision on SSI

Vol. II S812.52.

      GA applicants who have applied, or do apply, for SSI must
complete       a   Form    75,    "Agreement         to   Repay     Interim      Assistance,"
whereby they agree to reimburse the state                       for any assistance paid
to   them      during     the     time    their      eligibility        for    SSI     is   being
determined.         The state instructs its caseworkers concerning the

Form 75:

      The client must understand the following about
      the Form 75:

           General Assistance is an interim assistance

      pending approval for SSI. Failure to apply for
      SSI will cause the GA to be discontinued.

Vol. II S812.53 2.             The state's GA policies in effect at the time

this case arose directed caseworkers to obtain a Form 75.

        Michael Johns applied for financial assistance at the Brigham

City Office of Family Support on September 14, 1990.               Aplt. App.,

at 42-47.     At that time Johns suffered from schizophrenia, anemia

and chronic pain.     Aplt. App., at 11, 27, 48.          Johns was determined

eligible for participation in EWP and was sent to Job Service for
assignment to a work project.        Aplt. App., at 49.         Johns signed an

EWP Agreement on September 14, 1990.            Aplt. App., at 50.      Johns'

caseworker referred him to the Brigham City Corporation to begin

work on September 15, 1990.        Aplt. App., at 49.        On September 17,

1990,    Johns   signed   and   acknowledged    receipt    of   Emergency   Work

Program Worker Guidelines. Aplt. App., at 51.              Johns participated

in EWP until January 12, 1991, when a hernia injury forced him to

quit working. Aplt. App., at 52. In February 1991, Johns began
receiving GA-Marginally Employable benefits.               Aplt. App., at 52.

Johns was permitted to receive GA benefits, but was not required to
particioate in a WEAT project.        On March 5, 1991, he signed a Form

75, Agreement to Repay Interim Assistance.           Aplt. App., at 53.

        AS a requirement for participation in EWP, Johns completed:
             (a) A series of EWP time cards covering
             September 17, 1990 through January 4, 1991
             Aplt. App., at 54-61;and

             (b) EWP weekly search records. Aplt. App., at 62-70.

        During his participation in EWP, Johns performed 413 hours of

community work at Brigham City             Corporation,    in addition to job

search and time excused for illness.              For his EWP performance,

Johns was paid $1,124.00 in EWP benefits. Defendants' Answers to

Plaintiffs'      Interrogatories, No. 83(f).

        Johns first injured himself on October 15, 1990, when he fell

from a ladder while working for Brigham City Corporation, while

performing painting duties.            He later suffered a hiatal hernia.

Aplt. App., at 71-72.         On October 29, 1990, Johns applied for SSI

disability benefits but was continued in the EWP program.                    On May

12,   1991, Johns was advised by SSA that he had been approved for

SSI benefits. Aplt. App., at 73-75.            A portion of his retroactive

SSI award was withheld by the state of Utah as reimbursement for

amounts paid under EWP.         Aplt. App., at 76-78.

        John Davies suffers from a major depression disorder, alcohol
dependence,    adjustment      disorder,      dependent      personality,    hiatal
hernia, gastrointestinal problems and arthritis.                  Aplt. App., at

11, 27.     He applied for SSI disability on February 26, 1990. Aplt.

APP.,    at 11, 27.      Davies signed a Form 75, Agreement to                Repay
Interim    Assistance,    on   March    11,   1991,    in    connection     with   an
unsuccessful application for CA-Unemployable benefits. Aplt. App.,
at 79, 80-90.        On July 22, 1991, he applied again for GA and was

approved    September    9,    1991,   subject to      the    condition     that   he

participate     in    self-sufficiency.       -Aplt.   APP.,- at     91-104.       On

September 6,    1991, he completed a CA-Self-Sufficiency Resume and

signed a GA Self-Sufficiency Plan wherein he agreed to "work 96

hours on the WEAT program," continue with mental health treatment

and follow through on his SSI appeal.             Aplt. App., at 105-06. On

September 10, 1991, he signed an Employment Plan whereby he agreed,
among other things, to "fulfill my WEAT assignment as if it were

actual employment."       Aplt. App., at 107.          On the same day, Davies

signed a WEAT Agreement and agreed, in part:

        I must work on a WEAT Program to be
        eligible for general assistance. If I do
        not work satisfactorily, my financial
        case will be closed.  I will not be
        eligible for financial assistance for
        two months. To have my case re-opened at
        the end of the sanction period, I
        must reapply at the Social Services
        Office.  I may be required to accept a
        new WEAT assignment. Aplt. App., at 108.

On October 10, 1991, Davies began his WEAT assignment with Weber

County Division of Aging where he drove a bus transporting senior
citizens.        Aplt. App., at 109.           During his participation on CA-

WEAT, Davies worked a total of 750 hours and received $2,765.00 in
GA benefits and WEAT allowances.               Aplt. App., at 110-117.    Davies

was determined eligible for SSI disability on April 17, 1992. From
his retroactive SSI check, the state of Utah withheld $2,765.00 as

reimbursement for GA-WEAT benefits paid.                Aplt. App., at 118-19.


A.      Treatment of GA-WEAT Benefits as Interim Assistance Violates
        the Social Securitv Act
        1.    Standard of Review

               The court reviews the granting of a motion for summary

judgment       in   the   same   manner   as    the   district   court.   Summary

judgment is appropriate only where there are no genuine issues of

fact and one party is entitled to judgment as a matter of law.
Allen v. Denver Public School Bd., 928 F.2d 978, 983 (10th Cir.

1991)        This issue was raised at page 24 of Plaintiffs' Memorandum

in Support of Motion for Summary Judgment and was ruled on in the

district court's order, entered June 7, 1994, granting defendants'

motion for summary judgment.

       The Social Security Act prohibits the attachment of disability

benefits from a beneficiary by any legal means unless authorized by

       (a) The right of any person to any future payment under
       this subchapter shall not be transferable or assignable,
       at law or in equity, and none of the moneys paid or
       payable or rights existing under this subchapter shall be
       subject to execution, levy, attachment, garnishment, or
       other legal process, or to the operation of any
       bankruptcy or insolvency law.

42 U.S.C. §407(a).        The same prohibition was carried over to the

SSI disability program when it was adopted in 1972. 42 U.S.C.

§1383(d).     Applying section 407(a), the Supreme Court upheld a
decision    barring     the    New   Jersey   welfare    agency    from    reaching

federal    disability    benefits.      Philoott v.      Essex    Countv   Welfare

Board, 409 U.S. 413(1973).

       The SSI program came into existence October 30, 1972, "[f]or
the    purpose     of   establishing     a    national    program    to    provide

Supplemental Security Income to individuals who have attained age
65 or are blind or disabled. . ." 42 U.S.C. S 1381. Because of the

long wait involved in obtaining an SSI disability determination,

many states began providing state assistance to unemployables under
general    assistance     programs.      In    an   effort   to   encourage    such

support, Congress amended the Social Security Act to provide for

reimbursement of such state assistance out of a successful SSI

disability       applicant's    retroactive     benefits.         Thus,    Congress

created the interim assistance program ("IAP"), 42 U.S.C. §1383(g)

et. seq., whereby a state could be reimbursed for interim payments,

provided certain qualifications were met:

      (a)   The state enters into a reimbursement agreement with
            the Secretary of Health and Human Services
            (hereinafter "the Secretary"); and

      (b)   The Secretary receives written authorization from the SSI
            applicant which allows the Secretary to withhold benefits
            due to the SSI recipient and pay to the state an amount
            sufficient to reimburse it for interim assistance
            provided to that individual.

42 U.S.C. §1383(g);       20 C.F.R. $$ 416.525 and 416.1901 et. sea.

Congress defined "interim assistance" as follows:

      (3) For purposes of this subsection, the term "interim
      assistance"   with respect to any individual means
      assistance financed from State or local funds and
      furnished for meeting basic needs (A) during the period,
      beginning with the month in which the individual filed an
      application for benefits (as defined in paragraph (2)),
      for which he 'was eligible for such benefits, or (B)
      during the period beginning with the first month for
      which the individual's benefits (as defined in paragraph
      (2)) have been terminated or suspended if the individual
      was subsequently found to have been eligible for such

      The primary issue presented to the court is one of statutory
interpretation.       When it created the IAP in 1972, Congress did‘not
address whether interim assistance included state assistance paid
participants     in    "workfare"      programs      such     as    GA-WEAT.         Davies

asserts that GA benefits received from working 96 hours per month

are   essentially      different       from    GA   benefits       received    for    doing

nothing.     Had      Davies    been    placed      on   CA-Unemployable,        or     CA-

Marginally Employable as Johns was in January 1991, and not been

required    to   work,    his    GA     benefits      would    have     been    properly
classifiable as interim assistance.                 The state takes the position

that GA-WEAT benefits are the same as CA-Unemployable benefits, and

that the work performed is irrelevant.                   It bases     this conclusion

on its own interpretation of the federal statute, since the federal

regulations   promulgated   by   the    Secretary   of   Health   and   Human

Services provide little guidance. ' The state has the burden of

showing that its interpretation is consistent with the intent of

      The approach to be taken in determining whether a statute has

been correctly applied is well-stated in Chevron U.S.A. v. Natural
Resources Defense Council, 467 U. S. 837,842-43(1984):

     When a court reviews an agency's construction of the
     statute which it administers, it is confronted with two
     questions.    First, always, is the question whether
     Congress has directly spoken to the precise question at
     issue.   If the intent of Congress is clear, that is the
     end of the matter; for the court, as well as the agency,
     must give effect to the unambiguously expressed intent of
     Congress, If, however, the court determines Congress has
     not directly addressed the precise question atissue, the
     court does not simply impose its own construction on the
     statute, as would be necessary in the absence of an

     'The Secretary defines interim assistance in the regulations
as follows:
     Interim assistance means assistance the State uives you,
     including payments made on your behalf to providers of
     goods or services, to meet your basic needs, beginning
     with the day of the month you apply for SSI benefits and
     are eligible for them, and ending with, and including,
     the month your SSI benefit payments begin, or assistance
     the State gives you beginning with the day for which your
     eligibility for SSI benefits is reinstated after a period
     of suspension or termination and ending with, and
     including, the month the Secretary make the first payment
     of benefits following the suspension or termination if it
     is determined subsequently that you were eligible for
     benefits during that period.       It does not include
     assistance the State uives to or for any other person.
     If the State has prepared and cannot stop delivery of its
     last assistance payment to you when it receives your SSI
     benefits payment is included as interim assistance to be
     reimbursed.     Interim assistance does not include
     assistance payments financed wholly or partly with
     Federal funds.   (emphasis added).


        administrative interpretation. Rather, if the statute is
        silent or ambiguous with respect to the specific issue,
        the question for the court is whether the agency's answer
        is based on a permissible construction of the statute.

        Absent ambiguity or irrational result, the literal language of

the statute controls.               Edwards v. Valdez, 789 F. 2d 1477, 1481

(10th Cir. 1986).             In this case consideration of the legislative

history     is       appropriate,      since it is not clear from the plain
language        of    the    statute    whether    the   definition      of    "interim

assistance" encompasses workfare benefits.

        The court's focus must be on "the intent of Congress" at the

time the legislation was enacted.                Merrill Lvnch, Pierce, Fenner &

Smith v. Curran, 456 U.S. 353,377-78 (1982). It is a "fundamental
canon" that "unless otherwise defined, words will be interpreted as

taking their ordinary, contemporary, common meaning."                     Brescral v.
Brock.    843 F.2d          1163 (9th Cir. 1987),        citina   Perrin v. United
States, 444 U.S. 37, 42 (1979).

        Since it is not the federal agency charged with responsibility

for implementing the interim assistance language of the statute,

the     state    of    Utah's   interpretation      is   entitled   to    no   special
deference.           Aulston v. U.S., 915 F.2d 584,596 (10th Cir. 1990);
Dept.    of Treasurv v. FLRA,            837 F.2d 1163 (D.C. Cir. 1988). The
court must, therefore, use the tools for statutory interpretation

available to it and decide whether the GA-WEAT benefits furnished

to John Davies,             on condition of work performance,            are    interim


        The language of the statute does not conclusively determine

whether Congress intended interim assistance to include workfare.

Their is no dispute that the GA-WEAT benefits Davies received came

from    "State or local funds."             The       dispute      centers     on   whether

"furnished for meeting basic needs" encompasses workfare. At first

blush it would appear to do so, since the GA check did help to meet

Davies'      basic needs.       However,    the more difficult question is

whether      "furnished"     implies a gift,           in which case it would not

include benefits that had to be worked for, or does it mean simply
the    act     of   transmitting    something         to    another.          Black's     Law

Dictionary defines "furnish" as "to supply or give or
afford..."      but also notes that it means "[t]o deliver, whether

gratuitously or otherwise."

       The federal regulation implementing IAP contains the Secretary
of Health and Human Services' definition of interim assistance and

uses the word "gives" three times, e.g.: "Interim assistance means
assistance the State gives you...: As to accepted definitions of
"give",      Black's Law Dictionary offers:                "To transfer ownership or

possession      without    compensation..."           and "To bestow upon another

gratuitously or without consideration..." Both meanings would rule

out    workfare.     Given    the   Secretary's         familiarity       with      the   SSI

program and its interrelationship with state-funded programs, the

choice    of    a   word   commonly   understood            in    the   law    to   mean   a

gratuitous transfer supports Davies' position.                          The choice of an

operative word that would have included workfare                          benefits could

have   been     added   quite    easily,        had    that      been   the    Secretary's

understanding of congressional intent.

       A consideration of the ordinary, contemporary meaning of the

words used also supports Davies' position.                  It is unlikely that the

contemporary meaning of "assistance" when the 1A.P was conceived
included GA-WEAT       benefits,      since workfare         programs are of more

recent vintage.        There is no evidence in the legislative history

that   Congress      had   workfare     in    mind   when    it   defined     the   term

"interim assistance."          Congress was legislating in a disability

context where the concept of putatively disabled individuals being
required to work likely would not have been raised.
       The Congressional Record report of the debate in the Senate

contains nothing to suggest that the inclusion of workfare in the

definition was ever considered.              In fact, the consistent references

are to disabled individuals, not to working persons.                       Senator Long

refers to states providing            "interim payments to meet the basic

needs of aged, blind and disabled persons until their SSI checks
start coming..." and again to "interim payments it may have made to

him in lieu of SSI benefits for which he was eligible but which had
not    Yet    been     processed."       Senator      Taft        echoes     the    same

understanding,        referring    to        the   state-funded       assistance      as

"emergency assistance" provided the aged, blind and disabled.

He describes the absence of "a viable emergency assistance program"

as "a tragic shortcoming of the new SSI program."

       Senator Long's description of interim assistance as a payment

"in lieu of SSI benefits" is instructive.                   SSI benefits are given

to aged,     blind and disabled individuals; they are not paid to

persons who work. Indeed, the notion of working is inconsistent

with disability.        "Emergency assistance" implies an individual in

crisis,     not    an   able-bodied        worker.        Thus,    when    the     word

"assistance" is looked at in its contemporary context at the time

the IAP legislation was considered, and not when the state of Utah

interpreted the statute, the conclusion follows that Congress did

not intend to include workfare in its definition.

      Equitable considerations also support Davies' position that
his GA-WEAT benefits should not be treated as interim assistance,
because they were earned, not bestowed on him gratuitously. In

Walker v. Shanq, 412 N.Y.S. 2d 629 (S.Ct., App. Div. 2d Dep. 1979),

the court held that home relief benefits, for which the recipient
was   required     to   participate      in     a   public    works   project,      were
"earned" and could be used to reduce a mortgage lien in the amount

of public assistance received that had been placed on his home by
the   state   agency.      The    court       noted    with   approval    legislative

history establishing "equitable considerations that a person who is

compelled     to    participate     in      PWP     should    to   some    degree     be

compensated for his labors vis-a-vis a person not so compelled..."

Id., at 636.
      The     court's    holding      in      Walker    v.    Shanq      avoided     the

unreasonable result of treating benefits received by a workfare

participant the same as traditional welfare.                   The avoidance of an

unreasonable or absurd result is one of the criteria identified by

the courts as appropriate in statutory interpretation.                       U.S.     v.

Turkette, 452 U.S. 576, 580 (1981); National Foods, Inc. v. Rubin,

936 F.2d 656, 660 (2nd Cir. 1991). When the statute is silent or

ambiguous, "courts can proceed by assuming that Congress authorizes

them to prevent manifest injustice."               U.S. v. 1002.5 Acres of Land,

942 F.2d 733, 735 (10th Cir. 1991).                 Where the choice is between

two   equally      plausible     interpretations,         it    is   appropriate     to

consider    the    effect   on       the   parties    involved       and   choose   the

interpretation that avoids a patently unjust result.                       Esta Later

Charters, Inc. v. Iclnacio, 875 F.2d 234, 239 (9th Cir. 1989).

      The GA policies described above demonstrate that the state

places     great   importance        on    self-sufficiency,         especially     work
efforts.     The state recognizes that workfare is to be encouraged

over welfare.       The WEAT client's effort at a project site is just

as much work as the person working next to him who receives a
paycheck cut by the employer at the end of the pay period.                          In a

very real sense, the WEAT client has "earned" his GA-WFAT benefit,

because if he quits without good cause, he receives no assistance.

Even assuming arauendo that some accommodations may be made for

some GA-WEAT clients who engage in work at a WEAT project site,
although there was none given to either Johns or Davies, it is

undeniable that the WEAT participant is doing something more than

the CA-Unemployable recipient.

      If more is required of the GA-WEAT participant who works than

of the CA-Unemployable recipient who does nothing, then it is

unreasonable to treat them the same for purposes of recovering

interim     assistance.        The    court      should   not   accept     the   state's

interpretation of the federal statute, when it produces such an

unreasonable result.           An equally plausible interpretation of the

statute       is    that    it   was       intended      to    apply     to    assistance        given

persons       who    were     "incapacitated,"            "unemployable"         or    "marginally

employable" as Johns was in early 1991, not to assistance that was,

in effect, earned by laboring at a WEAT project, as Davies did for

eight months.          To hold otherwise works an injustice on all GA-WRAT

participants who are told that working is better than doing little
or nothing.

        The     interpretation urged               by     appellants      does       not   create    a

windfall for GA-WRAT participants, nor does it amount to "double-

dipping"        as     appellees       successfully             argued    below.           The     SSI

regulations take into consideration the receipt of income, either

earned or unearned;by an SSI recipient.                           20 C.F.R. SS 416.1100 et.

seq. See Addendum.                Had Johns worked as a regular employee for

Weber    County       Division        of    Aging       while    his     SSI   application         was
pending,        or     been      given      a     monthly       allotment       by     a   generous

benefactor,          or even free food and shelter, the SSI regulations
required       that    his retroactive award be reduced to reflect the

"income" received.               20 C.F.R. S 416.1104.                 What Davies received

fits several categories of income under the SSI regulations.

        The SSI regulations define earned income as including: (a)

wages,        (b)    net    earnings        from    self-employment,            (c)    refunds      of

Federal income taxes and (d) payments for services performed in a

sheltered           workshop     or    work       activities       center.            20   C.F.R.    S

416.1110.           What Davies received may be classified as wages under

the definition of that term in $404.429(c). Alternatively, Davies'

GA-WEAT        benefits       readily       fit     the       description      of     payment      for

services in a sheltered work setting:

     Payments for services performed in
     a sheltered workshop or work activities
     center are what you receive for
     participating in a Procram desiuned
     to help you become self-supporting.
     (emphasis added).

20 C.F.R.     §416.1110(d).          There is no dispute that GA-WEAT is

designed to help persons become self-supporting and that Davies

performed     services.           Thus,    the     payments      he    received    may   be

classified as earned income which would reduce his SSI benefit
amount,     after   allowable       deductions       are    subtracted.          20 C.F.R.


     Alternatively, what Davies received as GA-WRAT benefits may be
treated as unearned income.               If, as appellees argue, Davies did not

earn his benefits, then they must have been a unique gift.                               For

income purposes, the SSI regulations define a gift as "something
you receive which is not repayment to you for goods or services you

provided    and     which    is    not     given    to     you   because    of    a   legal

obligation on the giver's part."                  20 C.F.R. §416.1121(g).

     Whether treated as earned or unearned income, the point is

made: the SSI regulations preclude a windfall.                        The successful SSI

disability applicant is required to report all income and the

retroactive award is reduced accordingly.                        The same applies to

Davies and the class he represents: if successful on appeal, they

are obliged to report the GA-WEAT benefits as income and have their

retroactive    awards       recalculated.           The requirements of the SSI

regulations       are   then      satisfied        and     appellees'      objection      is


B.    Recoupment of GA-WEAT Benefits from Retroactive SSI Violates
      State and Federal Contract Law

      1.    Standard of Review

      The same standard of review applies as stated, supra, prior to

discussion of the first issue.          This issue was raised at page 50 of

Plaintiffs' Memorandum in Support of Motion for Summary Judgment

and was ruled on in the district court's order, entered June 7,

1994, granting defendants' motion for summary judgment.

      The interim assistance agreement (Form 75) signed by Davies is
treated as a common law assignment , giving rise to contract rights

under state and federal law.           In Re Vazuuez, Guerrero and Compton,
788 F.2d 130, 134 (3rd Cir. 1986).            Ambiguities in an agreement are
to   be    resolved   against    the    party    who     drafted   the   document.

Helitzer v. Helitzer, 761 F.2d 582, 589 (10th Cir. 1985).                   When a
contract is on a printed form prepared by one party, and adhered to
by another who has little or no bargaining power, ambiguities must
be   construed   against   the    drafting      party.      Corso v.     Creiuhton
University, 731 F.2d 529, 533 (8th Cir. 1984).                 Under the common
law, a contract lacking essential terms is void for uncertainty.

Respect Inc. v. Committee on the Status of Women, 781F.Supp. 1358,

1364 (N.D. Ill.,E.D. 1992).
      The interim assistance agreement signed by Davies on March 11,
1991 bears the designation:

                                  Form 75 7/89
There is no dispute that the document was prepared by the state of

Utah and, under the cited law, any ambiguity must be interpreted

against the drafting party.              Moreover, Davies had no bargaining
power    when    he    signed   the   document      agreeing   to       assign       his    SSI

benefits.         He    was     suffering    from     a   combination           of    mental

impairments which prevented him from returning to any past work he

had preformed.         Davies' eventual qualification for SSI disability
covering the time when he signed the Form 75 confirms he was

mentally disabled at the time he signed away his rights.

        The Form 75 signed by Davies is ambiguous since it does not

define two key terms: "public assistance" and "interim assistance."

Under Utah law, to be enforceable, a contract must be definite as

to its terms.          Owvhee, Inc. v. Robbins Marco Polo, 407 P.2d 565,
567 (Ut. 1965).         Davies signed the Form 75 in March 1991 when he
was considered for and denied GA-Unemployable benefits.                          Thus,' it
is unlikely that he knew when he signed the Form 75 that, six

months    later   when    he    was   given GA-WEAT       benefits,        he    would       be
required to work 96 hours per month, and that his benefits would be

treated the same as GA-Unemployable benefits for which no work is
required.       There is no evidence that anyone explained the meaning
of the terms at the time Davies signed the Form 75 in March 1991.

The form does not include a definition of "interim assistance";

therefore, Davies could not have known that the state of Utah's own

policies defined the term as "the GA financial payment made to a

client while his eligibility for SSI is pending." Vol. II S812.52.

      The term "public assistance" is equally ambiguous, since it

could be interpreted as meaning either GA-Unemployable, for which

no   work   is    required,      or   GA-WEAT,   which     has      a    specific          work

requirement.           Without clear knowledge of the terms used by the
state,       Davies could not have made an intelligent and informed

decision in March 1991to assign his SSI benefits for GA-WEAT to be

received in October 1991 through May 1992.                            Had the terms been

defined       in     the     assignment,     he       might   have     chosen       to   forego

participation in GA-WEAT.                Absent a clear meeting of the minds on

March        11,     1991,     the   assignment          of    SSI     was    invalid         and

C. Recoverv of GA-Weat from Appellants' Retroactive SSI Was Void
for Failure to Complv With the Utah Administrative Rule Makinu Act

        1.     Standard of Review

                   The same standard of review applies as was discussed,
suora, prior to the first issue.                     This issue was raised at page 46
of Plaintiffs' Memorandum in Support of Motion for Summary Judgment

and was ruled on in the district court's order, entered June 7,
1994, granting appellees' motion for summary judgment.

        Under Utah law a state agency must follow certain rulemaking

procedures before implementing an administrative rule.                              Utah Code
Ann. S63-46a-1 et. seq.               See Addend-um.          There is no dispute that
the rulemaking statute applies to defendants. Defendants deny that

they violated the Rulemaking Act when they began recovering GA-WEXT

benefits from retroactive SSI awards.

        The    Utah        Supreme   Court      has    held    that    the    rules      of    an

administrative agency are not valid unless the agency complies with

the rulemaking procedures prescribed in the Act.                                Williams v.

Public       Service       Commission,    720     P.2d   773,    775-77      (Ut.    1986).     A

proposed rule that has not been adopted in accordance with the

provisions of the Utah Administrative Rulemaking Act is not valid

and enforceable.        Lane v. Board of Review, 727 P.2d 206, 208 (Ut.

1986).      Rulemaking is required whenever agency action affects a

general class of persons, rather than specific persons.                 Ellis v.

Utah State Retirement Board, 757 P.2d 882 (Ut. App. 1988).

       The state of Utah has never promulgated rules pertaining to

the    recovery    of   GA-WEAT     from   retroactive     SSI   benefits.     The

policies in effect at the time this case arose directed caseworkers
to obtain a Form 75 in cases wherein a GA recipient had applied for

SSI.     A fair reading of the rules at Vol. II SS812.5 et. seq. is

that they were intended to cover CA-Unemployable and CA-Marginally

Employable benefits but did not contemplate the case in which the
person was engaged in a GA-WEAT work project.                As appellants have

argued      throughout,   GA-WEAT    is    intrinsically    different   from   CA-
Unemployable where no work is expected.             The rules pertaining to

GA-WEAT contain no reference to recovery of such workfare benefits
from retroactive SSI, nor are caseworkers directed to obtain a Form
75.      Vol.   II S812.6.    Thus,       appellees have taken action which
affects a broad class of people--those disabled persons who are

required to pay back GA-WEAT benefits from their retroactive SSI
awards --without any specific authorization in state policy.                 Their

actions are improper under Utah law.             The amounts recovered from

appellants must be reimbursed to them.

D.     Services Performed Under EWP or a GA-WEAT Proiect Must Be
       Compensated at Minimum Waue

       1.    Standard of Review

       The same standard applies           as was discussed, suora, prior to

consideration of the first issue.          The issue was raised at page 53

of Plaintiffs' Memorandum in Support of Motion for Summary Judgment

and ruled on in the district court's order, entered June 7, 1994,

granting appellees' motion for summary judgment.

     The hourly rate for the work performed by Johns and Davies

under the two work programs at issue was less than minimum wage.

The Fair Labor Standards Act was designed to prohibit employers
from obtaining the services of employees at less than minimum wage.

29 U.S.C. S9201 et. seq.            See Addendum.      Currently,    the    Act

requires payment at the rate of $4.25 an hour.          29 U.S.C. §206(a).

For FLSA purposes, "employer" is defined as including a public

agency such as the State of Utah Department of Human Services. 29
U.S.C. §203(d).

      The test of employment for FLSA purposes is one of "economic
reality."     Goldberu v. Whitaker House Cooperative, Inc., 366 U.S.

28, 33 (1961).      The Supreme Court has consistently construed the
FLSA "liberally to apply to the furthest reaches consistent with

congressional      direction..."      Mitchell   v.   Lublin,    McGauuhv      &

Associates,    358 U.S. 207, 211 (1959).       The statute has been found

to   apply    to   non-profit   organizations.        Tony   &   Susan     Alamo

Foundation v. Sec. of Labor, 471 U.S. 290 (1985).                 Whether     an

administrative agency is an employer for FLSA purposes is a legal

issue.   Bonnette v. California Health and Welfare Auencv, 704 F.2d

1465, 1469 (9th Cir. 1983).        The court is not limited by the common

law concept of "employer" and an expansive interpretation is in

order so as to effectuate the FLSA's broad remedial purposes. Id.

Factors to be considered in determining the applicability of the

FLSA include whether the alleged employer:

        (1) had the power to hire and fire the

        (2) supervised and controlled employee work
        schedules or conditions of employment;

        (3) determined the rate and method of payment; and
        (4) maintained employment records.

Bonnette v. California Health and Welfare, 704 F.2d at 1470.
        The   court    has        never    directly     addressed     whether   workfare

programs such as EWP and GA-WEAT are subject to the minimum wage

requirements of the FLSA.                 In Klaips v. Beruland, 715 F.2d 477, 481

(10th Cir. 1983),            the court opined that for food stamp purposes

prior to 1978, WEAT workers were not employees of the Utah State
Department of Social Services.                     However, Klaips was not reviewed

according to the more liberal "economic reality" test applicable
under the FLSA and should not be controlling in this case. An

analysis under the FLSA supports the conclusion that, like the
choreworkers in Bonnette, the Em/GA-WEAT workers in this case were

covered under the FLSA.

        A    review    of    the    facts     in     light    of   appellees'   policies

justifies the conclusion that appellants were entitled to a minimum

wage.       Appellees had the power to hire and fire, since termination

from the program is mandated for failure to complete the work

assignment.       Vol. II SS 808.27 & 812.6.                 Control and supervision of

the EWP and GA-WEAT workers is shared between appellees and the

employer       where        the    worker     is     assigned.       This   sharing   of

responsibility does not remove appellees from FLSA coverage, since

two or more employers may jointly employ someone for purposes of

the FLSA.     Falk v. Brennon, 414 U.S. 190, 195 (1973). Defendants

determined the rate and method of payment, since they set the

monthly benefit check which in some cases could vary in amount,

depending on the amount of work performed.                    Finally,     appellees

maintained employment records, including:

         (1) a GA Self-Sufficiency Resume;

         (2) a GA Self-Sufficiency Plan;

         (3) an Employment Plan;

         (4) a WEAT Agreement;
         (5) a Work Experience and Training Project
             Assignment form;

         (6) a form entitled, "Information Exchange
             Self-Sufficiency/Assistance Teams/Job Service; and

         (7) an Individual Participant WEAT Time
These     forms,    though    prepared    and     used   by   a   public     agency,
facilitated actual work in the local economy just as surely as work
records prepared by a private employer.                  All of the indicia are

present for a finding that FLSA coverage applies and the court

should rule accordingly.

         The court should reverse the decision of the district court

granting defendants' motion for summary judgment.                  It should rule

as   a    matter   of   law   that   appellees'    interpretation    of     "interim

assistance" conflicts with the Social Security Act and the recovery

of Davies' SSI for GA-WEAT benefits violated the Act.                      It should

further    rule   that   appellees    violated      appellants'   rights   under

contract    law    and    failed     to    comply    with   state     rulemaking

requirements.     Finally, it should rule that under the FLSA, EWP and

GA-WEAT participants are entitled to a minimum wage.                  The court

should remand the case to the district court for entry of an order

granting plaintiffs' motion for summary judgment.

Oral Aruument Requested

     Johns and Davies request oral argument, because many of the
issues presented in their appeal are unprecedented.                 They believe

oral argument will aid the court in resolving these issues and
benefit the class they represent.
                                                 3   fi
            Respectfully     submitted           3oYday of August, 1994.

                                               Utah Legal Services, Inc.
                                               550 24th Street, Suite 300
                                               Ogden, Utah 84401
                                               Attorney for Plaintiffs-
                          CERTIFICATE OF SERVICE
     I certify that on August 30, 1994, two copies of the foregoing
Brief for Appellants and Appendix were mailed, via first-class U.S.
Mail, postage prepaid, to the following:

                              Tamara K. Prince
                              Assistant Attorney General
                              State of Utah
                              120 North 200 West, 4th Floor
                              P.O. Box 1980

                        ORDER APPEATZD FROM

     District Court Order Entered June 7, 1994 by the Honorable
David Sam.

Assistant Attorney General
Attorney General
120 North 200 West, 4th Floor
P.O. Box 1980
Salt Lake City, Utah 84110-1980
Telephone:   (801) 538-4660

                     FOR THE DISTRICT OF UTAH
                         NORTHERN DIVISION

MICHAEL c. JOHNS                   :
ROBERT WITBECK, and JOHN           :              ORDER
DAVIES, individually               :
and on behalf of all other         :
persons similarly situated,       :
           Plaintiffs,             :
     V.                            :
MICHAEL STEWART, in his        :        Civil No. 92-NC-080s
capacity as Executive Director:
of the Utah Department of      :
Human Services; and EMMA       :
CHACON, in her capacity as     :
Director of the Office of      :
Recovery Services,             :
          Defendants.          :

     This matter came before the Court for oral argument on the
22nd day of April, 1994 on cross motions for summary judgment.
Plaintiffs'   counsel,     Michael E.   Bulson and Thomas McWhorter,
appeared on behalf of Plaintiffs and Defendants' counsel, Tamara K.
Prince,   Assistant      Attorney General,   appearedon behalf of
Defendants.   Based upon the memoranda and oral arguments by Michael
E. Bulson and Tamara K. Prince and there being no material facts in
dispute, the Court concludes as a matter of law that:
     State funded General Assistance granted to General Assistance
Work Experience and Training (GA-WEAT) participants is interim
assistance under the federal statutes and regulations and therefore
recoverable from a participants' retroactive SSI award.    'GA-WEAT is
state-funded assistance based upon need.   The fact that it contains
a self-sufficiency component does not take it out of the plain
meaning of the federal Interim Assistance Reimbursement program
(IAR).   The IAR couches the authorization in terms of recovery of
interim assistance furnished on behalf of the individual by the
state. The plain and statutory meaning of the word "furnish" can
clearly encompass assistance given under the terms of GA-WEAT.
     GA-WEAT is recoverable under state law and the Defendants did
not violate state rule making by recovering such assistance.
Furthermore, the contracts signed by the recipients allowing the
State to recover interim assistance from their retroactive ,531
awards are enforceable.
     Regarding Plaintiffs' equal protection claims, the State of
Utah's practice of recovering benefits paid to GA-WEAT participants
is rationally related to a legitimate state goal.         There is no
invidious   classification of    GA-WEAT participants or       others
similarly situated.    The State of Utah is not recovering the


        retroactive SSI benefits because the Plaintiffs are disabled,
        rather the state is preventing receipt of duplicative assistance.
        Furthermore,   the federal statute authorizes recovery of state
        interim assistance.     To   allow the participant to receive interim
        assistance and SSI for the same time period would result in double
        assistance payments.
             Plaintiffs' due process arguments likewise fail.         Plaintiffs
        have failed to establish an entitlement to retaining interim
        assistance payments in addition to their retroactive SSI benefits.
             The Court further concludes that there is no employer/employee
        relationship between the Defendants and GA-WEAT and Emergency Work
        Program (EWP) participants under the Fair Labor Standards Act.
        Although participants participate in community work projecb and
        have required hours, those hours can be met by educational and job
        search activities as well as performance of community work. In
        addition, the public assistance is granted for days missed due to
                                              2-L -_-_ 2
        excused absences such as illness, job A-~L=L v rews,       problems with
        transportation and assignments are tailored to meet the physical
        and other needs of participants.         Applying the economic reality
        test, neither Plaintiffs nor others similarly situated are entitled
        to minimum wage for tasks performed pursuant to the GA-WEAT and EWP
        program requirements.        This conclusion is supported by Klaiw v.
        Beraland, 715 477 (10th Cir. 1983).         Furthermore,   public policy


        compels the conclusion that public assistance programs which
        include education,     job training, and actual work experience as
        required components do not create an employer/employee relationship
        between the state and program participants. Rather, they encourage
        self-sufficiency and aid recipients in finding work to provide for
        their health and well-being.      Therefore, it is
             HEREBY ORDERED that Defendants' Motion for Summary Judgment is
        granted and the Plaintiffs' Motion for Summary Judgment is denied.
                DATED this     344 day   of May, 1994.
                                          BY TEE COURT:

                                          DAVID SAM
                                          United States District Court Judge

        Approved as to Form:

        Michael E. Bulssn
        Attorney for the Flaintiffs

                                                                               800 - 808.1

              800 SPECIAL STATE -PROGRAMS

              808 EMERGENCY WORK PROGRAM (EWP)

                  In return for participation in adult education, short term skill training,
                  community work and job search, the EWP provides financial assistance on a
                  short-term basis. The program contains very strict performance standards
                  to help ensure that households become self-supporting as soon as
                  possible. EWP is not a substitute for other emergency assistance programs.

                 Two parent families with dependent children or a pregnant spouse, women in
                 the first or second trimester of pregnancy, and single persons and
                 couples, are eligible anytime during the year. Participation is limited
                 to a maximum of 6 months in any 12 month period excluding the month of
                 application.   Extentions may be approved by the State Office if necessary
                 for employment. Also, enrollment may be limited and participation period
                 shortened at anytime based on program budget. A person eligible for
                 Bureau of Indian Affairs (8IA) General Assistance is not eligible for

                 The rules in the other sections of the manual apply unless a different
                 rule is stated below.

                 808.1      General Reauirements

                            With two exceptions, the policies and procedures in Section 100
                            apply to the EWP.

                            The first exception is payments will not be continued or
                            reinstated when a participant in EWP requests a fair hearing.
                            If the fair hearing decision reverse: the action of the local
                            office, the local office will issue retro-active benefits in the
                            amount specified in the hearing decision.

                            The second exception is lo-day advance notice is not required
                            when EWP payments are reduced or terminated because the
                            participant has not participated during part or all of the
                            bi-weekly period. However, advance notice of other adverse
                            actions must be given.

                                                                   BP-90-60-OFS                -:

g&       :.                                                                       .
                                                                                                 . .   ..

                                                                                             ;. .* 7.. ..-. -      ;

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                                                                                                       _ _ . -,

                                                   EXHIBIT 3
                UTAH-DHS-OFS                       .                                        808.2 - 808.22
                Volume 11-P                                                                 01-91
                    808.2              &wram Standards                              -‘ ;
                            808.21            Refu~eCash_As.~S~a~~~(RCA).AFDC.UnemQ19~~
                                              Compensation (UC)

                                                  1. Refuaee CL& As;i stance and    F-EWp

                                                       When a refuge 0 applies for financial assistance,
                                                       determine eligibility first for AFDC, next for 'F-EWP.
                                                       If the refugee is not eligible for AFDC or F-EWP,
                                                       determine eligibility for Refugee Cash Assistance (See
                                                       Section 244.)

                                              2.       Other Families and AFDC

                                                       With two exceptions, a household that appears eligible
                                                       for AFDC must apply for AFDC.   If the household is
                                                       eligible for AFDC, the household is ineligible for
                                                       EWP.  The two exceptions are:

                                                       a.    A two parent household which might be eligible
                                                             for AFDC as incapacitated can apply for EWP.

                                                       b.    A household with two adults who acknowledge
                                                             paternity of a child in common can apply for
                                                             EWP.   (See Sec. 230.2 how to acknowledge _

                                              3.       Unemolovment Compensa.tlon (UC>

                                                       If any adult member of the household appears to be
                                                       eligible for unemployment compensation (UC), the
                                                       individual must apply fcr UC. The household is
                                                       ineligible for EWP if the UC benefits paid to the
                                                       household in a participation period are more than the
                                                       EWP payment.

                        808.22               Residence

                                              1.        Re
                                                       U.S.s i d e n c e

                                                       If a household contains one or more members who do not
                                                       meet the U.S. residence requirements, the remaining
                                                       members may still be eligible as long as all other.
                                                       eligibility requirements are met. This includes the
                                                       work and job search requirements which may be '-;

                                                             (cont. on next page>
            c    sehol d            A-married couple who lives together is a household. Parents and
                    . ._            their unemancipated flatural, adoptive, or stepchildren who live
                         .-:,wlth them are a household. Other persons, related or not;-.are
g$-?   .-     .- -:    .'.' -?-?separate households even If they live together. :- '-.Q.ZY::.--
                       :... . . -...-<-, .I
                        .                                                                    -... ;
                                  -- ..:..-.. .I                             BP~g1~03~OFS -- ::_::c; :: -.
            _ . i , . . . ..-. .- .."-_-o.- .-
                                                                                                       --.    c
                       _...’   -,...    ,   .-.
                                                                                                    808.22(Cont.)      - 808.24

                                                              completed by the non-citizen.    Pay these households
                                                              only fcr th e number of eligibl e household members.
                                                        L.    Utah Residenp,       Local Offic?    Residonco

                                                              Section    204   and 206 apply.

                              808.23                    Social Secul itv Numl,ers     (SSN>

                                                        Each household pat-ticipating in or applying for the EIV
                                                        shall be required to provide an SSN or apply for one for
                                                        each person age 18 or older and for each person under aoe
                                                        18 who receives cQljntable income.

                                                        1.    If any housohnld member who is requited to provide an
                                                              SSN is unable! to provide it, and therefore must apply
                                                              for one, allow him to participate while awaiting
                                                              receipt of an SSN.

                                                              a.      When a household member provide; Form 5028 or
                                                                      2880 in place of an SSN, at three months send a

L-          I                                          2.
                                                                      request tn the recipient for the SSN. The
                                                                      recipient must either provide the SSN or a new
                                                                      Form 5028 or 2880 each six month period.

                                                             Refer an!/ individual who must obtain an           SSN  to the
                                                                  Social Security Administration !SSA)
                                                              local                                                 office
                                                             using Form 55-s.

                                                             a.       Instruct the individual to take the completed
                                                                      SS-S and the required proofs of age. citizenship
                                                                      and identify to the SSA office.  Persons applying
                                                                      for a duplicate number need only proof of

                             808.24                   Dutv   of    Su~p~
                                                       Duty of     Suppm-t   rules apply unless:

                                                       a.    Both Darents 31-e in the home and they are legal 1-v
                                                             married to each other. AND

                                                       b.    Both father and mother are the'child's legally -.-:.- .-.
                                                             reCOgniZed natural or adoptive pa~-ent~           r?ttrJ, St-CnI-cIiIrg

                                                             to Utah law, they are the only people responsible f&.
                                                             the support of the child.                       _-.

a:.-.                .   . ,.
                                                                                                   Bp-90-4()-()FS       .
                                                                                                                               . ..-- .__
                                                                                                                             ^. ..-I. .-.
                                                                                                                                 ,.--1:. _’             --

EF    ‘..                ‘3;.           .       -                                                                        . : .;‘;‘;.‘-.-y . . _
                                                                                                                        ,-. ._.i .__. .__: 7:
                                                                                                                           . -.-- _-____.
                                                                                                                              . . .:.., .._..
                                                                                                                                  . . . . .s:.. . . . . .
                                                                                                                                ._-.              .-.
                                                                                                                                  ._ -

                               ._       .   .     .                                                                           .-_ ..; . . . . .
                .-       --         -           Le.                                                                 ..-..-       *-:.                        _
                  UTAH-OHS-OFS                                                                                                                 808.27                          ~
                  VOLUME II-PACMIS                                                                                                             07-90
._ -.                                                                                    ;<

                                                          808.27                              Performance Requirements

                                                                                              One adult household member mll;: spend 40 hour; per weok in
                                                                                              ccmmunity work, .job search, and adult education or skill
                                                                                              training.   All other adult members must search for a ,iob
                                                                                              and participat- in education and employment activities For
                                                                                              20 hours a week unless excused for good cause by the JTFA
                                                                                              agency/local EWP coordinator.

                                                                                              Refer all adults tsb .lTPA/local FWP coordin;rtr\r for
                                                                                              asses;ment and establishment of participation standards.

                                                                                              1.   The adtllt ho1J;ehold member must satisfactorily
                                                                                                   participate Ii hour; a week in approved community
                                                                                                   work, adult education, short term skill training, and
                                                                                                   8 hours of ,jnb search.   The local JTPA/EWP coordinator
                                                                                                   may reduce the job search hours if necessary to enable
                                                                                                   increased participation in education or skill
                                                                                                   training.   The hours spent in job assessment count
                                                                                                   toward participation.

        I                                                                                     2.   The SPOIISF! anfl all other adult household members mllst
                                                                                                   each participate 20 hours a week in a combination of
                                                                                                   job search, a(.lult education or skills training
                                                                                                   activities.     The hours spent in job assessment
                                                                                                   interview counts as part of this req!rirement.

                                                                                              3.   Two adults in the same household cannot share the
                                                                                                   performance r9quirementz in any participation period.
                                                                                                   At the end of ? participation period, the local office
                                                                                                   or JTPA agency may agree to'change the adult who must
                                                                                                   participate 40 hours a week.

                                                                                              4. Prorate the payment for the hours of performance when
                                                                                                   the adult does not complete all the time requirements.

                                                                                         5 .       Close the case effective the end of the performance
                                                                                                   period If the adult Fails to comply with the
                                                                                                   performance requirements. The household will he
                                                                                                   inpli~rihlc FOI- six months starting with the week after
                                                                                                   fhe cit?:tf;e. -


                                             .              -. . . ..-
                                                          ._. .- . ..-. ._:
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                                                               . \-,.,-.                                                                                   ._            :.
            .           -               .-.              - w-.--L        . . ..__
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                                                                  __.      ~.
                                                                                _   _-
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                                   :.                    _,

                        _      .        ‘:         ,       -..     .L’.     .
          UTAH-OHS-OFS                                                                                                                            808.271-808.272
          VULUME II-PACMIS                                                                                                                        07-90

                                                       808.271                                          Countable Perff-rmance
                                                                                                                -_A_ <.--.--

      I                                                                                                 1.   Cot.rnt the hour; a job inter*/iew takes as pavt of
                                                                                                             the roqll ired performance if the adult has a bona
                                                                                                             Fide job interT/iew and he must be excused to
                                                                                                             attend it.
                                                                                                        L.   Colrnt the hours that the individual is excused
                                                                                                             because of illne:s.   The JTPA agency may require
                                                                                                             verification of the illness.   If the illness will
                                                                                                             last lonner than 30 days, consider the households
                                                                                                             eligibility for AFDC or GA.

                                                                                                        3.   Count the hours that the individual spends in'
                                                                                                             paid employment.

                                                                                                        a.   Col.lnt the hours the adult is excused when the
                                                                                                             Regional director, his designee, or the JTPA
                                                                                                             aqency decides there is gcod cause for not
                                                                                                             meetina  the  performance requirement;.  Good cause
                                                                                                             may include s?rcli things as a death in the
                                                                                                             immediate Family or the inability to get to the
                                                                                                             work project because of unusual transportation

                                                      808.272                                           Proratinqae   Pavmend

                                                                                                        1.   Prorate l:he payment for the hours the adult
                                                                                                             performof when th e household applied after the
                                                                                                             start of the performance period and could not
                                                                                                             meet the 40 hour performance requirement before
                                                                                                             the next payment date.

                                                                                                        2.   Prorate the payment for the hours of performance
                                                                                                             if the adult started a job and could not complete
                                                                                                             the performance requirements.


                                  -.      _.
                     :            .,   __                  .         -7.                   -
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                :.  i’..              _-.                                              .::
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                -.           .-   _   _           -    .^   ._ .
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               .-...        -.     -.    .-       i   _-.e                 .a._..,..

                                      .:                              ‘.

               .                         .                                       ._.
          -.   -._
                 -“-:                        _.            --.,...._-__,                            .

                       UTAH-DHS-OFS                                                                       808.28-808.291
    -*.*               VOLUME II-PACMIS                                                                   07-90

                                           808.28   Residents of.Inrt~tutLons.       Gm.up   Homes and Alcoholism - and
                                                                                                a----               ---.
                                                    @I'IJCI Traatmor, t Ton tar’-
                                                    -         - - L---L.% .--z-:2

                                                     blith qne excepticn. Soctiqn 238 applies.   The exception
                                                     is:   resident; of halfway house S may participate if they
                                                     meet the other requirement;.

                                       808.29       PartiLUt i_sF-ri-~~-- Li !V!tj
                                                    Do not count the mr?nth of application.   Participation for
                                                    part of a month co1dnt.s as a whole month. A household may
                                                    not be on the program for more than six months in the
                                                    previous twelve llV?lltll;.

                                                    For example, a family applies in December.   December does
                                                    not count towards the six month limit.   The limit would be
                                                    up June 30th.   If the family got a temporary job and did
                                                    not participate in ENP during any time in May, the six
                                                    months would be up July 31.

                                                    The local JTPA office shall review with the locaL office
                                                    families reaching the 6 month limit who will probably be
                                                    unable to secure a job.  The review should consider
                                                    eligibility for other programs and additional efforts which
                                                    could be made to assist the family in securing a job.

                                                    To test the effect of the six month limit, the limit will
                                                    net apply to F category ce:ses residing in Brigham Cit.y,
                                                    Logan, or Ogden.   If a family moves from these locations to
                                                    another office, the EWP participation in Brigham City,
                                                    Logan, or 'Ogden. colJnt towards the si.< month limi t. If the
                                                    family moves to these locations from another offi ces in the
                                                    State, the six month limit does not apply.

                                               808.291   EWP

                                                         At the request of the local JTPA agency or Local
                                                         office, an extenSion for up to three months may he
                                                         approved by the State Director of the Emergency pork.

                                                         Approval t&y he granted:

                                                         1.    To allow completion of short term skill training.
                                                         2.    To provide interim assistance until ).he pot-s&
                                                               will be hired [trrder a definite .jol! offer. ~

                                                         3.    To provide time for ;perial job efforts to be
                                                               made which provide a reasonable hope for       . ._._._.
                                                                                                             .-. . .-..
@#                                                                                                            -.
&;                                                             employment.
                                                                                                         .-- -._..s.. .._. .
                                                                                                               .- . -.
                                                                                                           ..- R .
_..        -   _            .   _.-   ._

                                                                                   BP-90-40-OFS         :.-2, . I .._
.     .
    -. .:. . .          _
                                                                                                                ._ --7---r- --
                         UTAH-DHS-OFS                                                                 808.3
                         Volume II-PACKS                                                               12-90


                                 808.3             Income Standards

                                                   Use the definitions of earned income     and unearned income that
                                                   are in section 300 of this manual.

                                          808.31       Income Disreaards and Exemotions

                                                       For Category F cases, Section 300 rules apply except the
                                                       family is not eligible for the 25% income disregard. The
                                                       bi-weekly amount for the $90 work expense allowance is
                                                       $42. The bi-weekly amount for $30 of the $30 and l/3
                                                       disregard is $14.

                                                       For Category G cases. Section 813.2 rules apply. The only
                                                       earned income disregard is the $90 work expense allowance.
                                                       Persons receiving SSI are not eligible as a household
                                                       member but the SSI income is counted in computing the EWP
                                                       payment. There is no 25% income disregard.

                                                       A person eligible for Bureau of Indian Affairs (BIA>
                                                       General Assistance is not eligible for G-EWP.

                                          808.32       Income Commutation

                                                       Compute income on a bi-weekly basis to correspond with                        the
                                                       bi-weekly payments from EWP.

                                                       a.   Don't use retrospective budgeting -.
                                                       b.   Count income received and expected to be received
                                                            during the bi-weekly period.
                                                       C.   Pro-rate income received on a regular monthly basis.
                                                            Divide the monthly amount by 2.15 to get bi-weekly

                                 808.4         Asset Standards

                                               Section 400 rules apply.

                                 808.5         Benefit Levels

                                          808.51       Standard Pavment

                                                       Household Size                Standard Bi-Weekly
                                                            1                         $130.00
                                                            5 or more                                                     ._
b -: -.                                                                                                              -.-..-.          -.
L%E%& .~ -- i 1. ;-I : 1.                              If eligible, add the pregnancy allowance of $15 a.'mouth or .:
w..                               -..               $7 bi-weekly.                                   -          .I - - . . . . ..'.I
    ._ __- ..-.. -'. ... _:.. .._ _- .-
                                  -.                                                 Bp-go-60-oFs _ d,'.';--, :;.; ; , -y;F+T:..
                                                                                                                      _ _ _.. i- :
.         _
          -   .   .-..   _   .    .                                                                                     .;..:
                                                                                                                         f . . . . ye. ,.’

    UTAH-DHS-OF5                                                          808.52 - 808.61
    Volume II-PACMIS                                                      07-90
                                                                              =    =

                     808.52       Pot-i(>ds h-1 .-

                              Farticipation peri,xi; are two week.;.  They begin on
                              Zaturda:/ and end on the ;econd fcllowing Friday.   Make
                              payment; during the week following the end of the
                              participation period.

                     808.53   Pavment Amounts, Bi-Weekly Income, and Eliaibilu

                              Either deny the application or close the case if the
                              household's hi-weoJ:ty countable income exceeds the
                              bi-weekly payment. If the household's income changes in
                              subsecluent weeks, it mu:t re-apply.

                              Pay the household for the difference between its countable
                              bi-weekly income and the bi-weekly payment.

                              Make payment ovorv two weeks at the end of the
                              participation period, except:

                                    Pay new participants who start 'during the first ,week
                                    of a participation period a partial payment at the end
                                    of that first week.  Subtract this payment from the
                                    regular payment.

                                    Provide enrollees who terminate from the program the
                                    appropriate payment upon verification of performance.

                              Make pa;lment only for the actual number of hours of

       808.6                  Proaram     Procedures.

                     808.61   Applications

                              Use the same application forms that you use for other
                              financial assistance programs. Determine the household's
                              eligibility.   If eligible, approve the application within
                              two working days of the day the household provides the
                              necessary     verification.

                              You must explain the program and all it's requirements                             to
*                             the applicant at application time. You must also tell                              the
                              applicant that payment will not be made if he does not                             meet
                              the requirements.                                  -... :                           .

                              If you have any reason to que:tion the identity l >F an
                              applicant, YOIJ may r-oql~ire verification. Hqw~trtar- : :‘I F:-.L.:-:‘-
                              identity is not au estionable, accept the ap~l icant~s~~~..~-.:~
                                                                                 --'---'*..- .,-..
       .        .    .
                              statement.                                        -..-- .;. n,.~*.~-.ccc _
           _   .‘_   1.                                                                             ---.;--J.l.7&';'-.:'_.‘
                                                                                         : ',. ; .;‘.:IT;:‘ -..a>--.-
                                                                                              . .-._ -..-.-.-.. - -._.._.
                         -                                   BP-go-a()-OF'j         :-, ::-.T:.. - -~-III-EE=CCI-
                                                                                        . .f '.-y Z"' b'X.L..S r:: :.:
                                                                                  . . .. . .-.c ..-.0--*-s.. .
                                                                                                   .P. --_.._. -..CII;..--
                                                                                                           .-&i< _ 2.. _.

                                                                                                     :_        ;. .*.,'.;& ,
                                                                                                       - ..;...-i.A~.... .:
                                                                                                             -. . . .._.

                 UTAH-DHS-OFS                                                           808.6l(Cont.)         - 808.63
                 VOLUME II-PACMIS                                                       07-90

                                        Do wt de 1 ?.;I e 1 i ?i 1) i 1 i ty arid payment fsr th i 5 progr;rm whi 1e
                                        w a i t i n g fgr infPrm?.?.icn cr v e r i f i c a t i o n fgr a n y other

                           808.62       Set VD the Case EF or Cateqorv EG

                                        With one exception. set up two parent families with
                                        dependent children 91' with a pregnant spol~so in the third
                                        trime;ter as pr?gr?m typo EF.    Families receiving pt'cgram
                                        type EF will alzo j‘eceive medicaid under program type EM.

                                        To meet the requirements-for program type EF. the principal
                                        earner must:

                                        a.     Have receivc?fl !lnemployment Compensat-i nn in the past
                                               year or be able to prove he was qua1 i fied for IJ$ or
                                               would have been qualified for UC if trho work had been
                                               covered for l!C      OR

                                        b.     Have six q!rpr to;-; of covered employment.'

                                              If this requirement is not met, set IJ~ the family for
  --                                          program type EG.

                                        Set up all other IlolJseholds for program type EG

                          808.63        Referral to JTPA rlffica

                                       If the hollsehf?ld is eligible, have the applicant complete
                                       and sign the Form WP-6 EWP Agreement. Make sure that the
                                       adult members of the household understand the EWP
                                       requirements and the sanctions for not meeting the
                                       requirements.    Then refer all of the adult household
                                       members directly to JTPA and send a copy of the agreement
                                       to the local JTPA office.    Note, whether the case is F or G.

                                       The   JTPA   agency wi 1 I perform job assersment, monitor
                                       participatmn and report performance to the lc?cal office.

               QUARTERS OF EMPLOYMENT COVERAGE: Three-month periods in which an Individual
            earned income of $50 or more, or partir: i pated in kIIbl or + ~qmt.rni IV WQ,-~ c:-:‘-‘--
               program. .The 6 quarter s of coverage must octu~* in any 13 C<vlS~~fJ~~i~~~
               prior to 'one year preceding the date of application. The three-mcnth time
               periods begin January 1, April 1, July 1. 01’ October 1. Jf the j:>?-_l~-s&
             the cafe file seems consistent anduppzrt; the Quarter; of cpveLage::,l.+.:-. . - - - - .-_ - - _ .
Fig+:.:                                                                             .- .-- -7. -._. c__
+.:            reauirement additIona verification ij unnecessary,
                , . . ::                                                                    .._ _.-__ I -. ._.,.z _ _. _
                                .:     ,,                                                          .--. ..-._
                                                                                                 ._., .-___ -i
--‘- _ ._
                                    _. :'                          ~p-90-4(,-OFs -. +‘, ;-j+-.yc..-.
. -_ -r>    .- -. . .-. -. _ I. _ _. _                                                         . , . '.‘,,'-.'":'_ i
                                                                                 ,. i. . . .,. .d. .e.cs& ..--.._
                                                                                                 . .F ,.L,Y -.
  .              .I                                                                                  'e-s,.    ye*--

               UTAH-DHS-OFS                                                             808.64 - 8 0 8 . 6 6
     -..       VOLUME II-PACMIS                                                         07-90

                               808.54    Xanctions

                                         ‘~1~~~ the CSX~ fpj- ?.IIY of the fol lo,wing ci r‘cumst-nc-s,
                                         1.    Failure to immediately report to the local office all
                                               income ;rnrJ resn~~rces and any other change; that would
                                               affect the smxunt of payment.
                                         2.    Failure to meet the work standards or participation
                                               requirements for the adult household member; who are
                                               not excused Ilnder 808.26.
                                         3.    Failure of tile adult household members to accept a
                                               full or part time employment offer without good cause
                                               or to actively ieek employment.

                                        The household will he ineligible for six months beginnina
                                        with the week following the closure.

                               808.65   BIP oavment     and Food Stamef_

                                        Assume that EIJP income will be available only after the
                                        household receives the first payment.   Then enter the
                                        projected monthly amount ! 2.15 x the hi-weekly amount less
                                        $90.00) on Pacmis screen UNIN, coded EW.

                                        The first $90 provided each month under the EWP program is
                                        a work experience allowance reimbursement and is not
                                        counted as income for Food Stamps. This is a Special Food
                                        5tamp Exemption.    kfluct the $90.00 from the projected
                                        monthl-y payment (2.15 x the bi-weekly amount) before ycllJ
                                        enter on Pacmi; VFI.!FI jCl‘"oIl.

                                        Treat the EWP payment as a public assistance grant (Volume
                                        IV, Section 330, paragraph 3b). Do not require EWP
                                        participants to report monthly. The EWP case is not
                                        affected by failure to meet food stamp monthly reporting

                                        Food Stamp volvnti!rily quit rules do not apply when someone
                                        stops participating in EWP.

                               808.66   EIdP Payment and Medicaid

                                        F category families are eligible'for Medicaid on the first
                                        day of the month that the family has met the WQI.~.              .-
                                        performance criteria and, thus, qualified fcr an EIIF -.:. _:I.
                                                                                                               _+ '_
                                                                                                              . .._. :
                                        If the case is Closer! becaYs of inrre;lse~.l ea~'riin~s ',),' ..
                                        hours of employment the family may be eligible f~:~r-e~&je,!
                                        Medicaid eligibility. Regular AFDC rules-in Sectioti:S2~~3~~~',
!!& +               : ;.                                                                             --- ---.
                                                                                              - ...- .--.. I)-:-. -.-.
r) --                                   apply.                                                       -.
                                                                                             .. ..-. -. .-.-. .-._-. . . .
                                                                                                    ..-..._. I_..___.___.
 1     ..        -_                                                                                            . . '.
                                                                                                          -. --. ..a:-id:;-
>      .._.    . ..-
                                                                                                -... :-wy.y.-,:. .-_.
                .    .     .                                                                                 --. . . ..A. e..,;. _-
_          -                                                                                                . .Y-- ‘I: ?u,~~~~-
UTAH-0%APA                                               808.67 - 808.68
VOLUME II-PACMIS                                         03-90 =

         808.67    EWP Special Needs

                   Work Expenses

                   Often a client has expenses that    limit a client's ability
                   to start or continue job search,    training, or community
                   work.   Examples of expenses are:   transportation, clothing,
                   uniforms, licenses, school fees.    You can pay for these
                   expenses if the reason and amount    of the request is
                   specified in writing by the JTPA    agency.

                   Medical   Assistance

                   EWP clients who have medical conditions not covered by UMAP
                   which prevent them from employment, maybe eligible for
                   special GASP funds. Medical treatment must remove the
                   condition preventing employment as determined by EWP/JTP
                   Coordinator.  Because of limited funding, approval is on a
                   case by case basis thru UMAP.

        808.68     EWP Case Review_s_

                   EWP cases will not need a regularly scheduled


                                                                                                _- ,.
                                                                         .              .       .


                                                                                       . ..-.*a ^_..         .:
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                                                                                  .-....L:-, _... i . 5
                         UTAH-OHS-OFS                                                            808.7 - 808.74
                         VOLUME II-PACMIS                                                        07-90

                             508.7        Recvd   Manaqement

                                     808.71   Eyceotion;   t$ ;ecticn   790

                                              Except for advance notice requirements, address changes
                                              from one district area to another, and changes in household
                                              c'2mpo;itiori. the pr.ncedu~.e; in section 700 nf VOL II,
                                              Financial A;;izt?flce will apply where applicable to the EbIP

                                     808.72                                         AI-~a to Anotljel-
                                              Chanae of Arldr~ss Ft-pm One Di;trict ---_.__
                                                            L----z..- --.-

                                              If the household mf>ves from one district are;l to at-tot-h&
                                              transfer the case I!:ing the procedure; outlined in Volumk
                                              II Section 729.2.  In addition, the ;ending office must
                                              notify JTPA in the ?ld project area of the trarrsfer. The
                                              receiving agency must notify JTFA in the new project area
                                              gf the transfer.  The client must accept the participation
                                              assignment in the new pro,ject area.

                                     808.73   Household ComD_o_s.iticn Chanaes_

                                              If the household size increases sufficiently to affect the
                                              amount of payment, adjust the payment for the next pavment
                                              Perind follnwing the! date the hob;ehold report; the cilange.

                                              Tf the household ;i,o decrease; sufficiently tc affect: the
                                              amount of the pavrnor~t, the client must immediately report
                                              the change to th4 ?fFice.     The office must adjl.l;t the
                                              payment for the next payment period. An overpayment will
                                              exist from the date of change if the household fails to
                                              report. as required.


                                                                                                         .               _
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4     .                                                                                                             -.
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                                                                                                         .               ._-

        UTAH-DHS-OFS                                                           810 - 812.1
        VOLUME II-PACMIS                                                       1Z-90
        810           General Assistance/Self-Sufficiency Proqram

                      The General Assistance Self-Sufficiency Program (GASSP) provides
                      temporary cash assistance to single persons and couples while they
                      are overcoming the condition which makes them unemployable and while
                      they are qualifying for SSI. They must be at least 18 years old or
                      emancipated. To qualify, a person must be unemployable because of a
                      medical or psychological problem, they must be "marginally
                      employable", or a spouse of a qualifying recipient. Applicants and
                      recipients must participate in rehabilitation and employment services
                      and follow through on efforts to qualify for SSI. Less capable
                      clients will need special help from Human Service staff in applying
                      for SSI and participating in Self-Sufficiency activities.

                      The program is based on the concept of mutual responsibility. The
                      client has the responsibility to make efforts to overcome the
                      condition making him unemployable, to move towards self-sufficiency
                      and to qualify for SSI. Staff have the responsibility to assist
                      clients in becoming self-sufficient and in securing SSI. A goal, not
                      an eligibility condition, is to enable most participants to achieve
                      employment and/or SSI in six months.

                      A person eligible for Bureau of Indian Affairs (BIA) General
                      Assistance is not eligible for GASSP.

                      AFDC rules apply unless a different ru le is stated below.

        all           n

                      Section 100 applies.

        a12           Prosram Standards

              812.1       Aqe and Factuallv Emanciuated Child

                           The individual must be at least eighteen years of age. or

                          A person who is not legally emancipated may claim to be
                          factually emancipated. He must live independently from his
                          parents or guardian and have been economically self-supporting
                          for the past 6 months.

                          If the parents are available, the local office shall contact
                          them by telephone or use Form 544, Affidavit of Non-Support, to
                          determine if they will support the child.

                          a.   The child is ineligible If the parents will support him.

                          b.   If the parents refuse to support the child or are             .
                               unavailable, complete duty of support procedures. *.'
                                                                                   .-       _:-.
                          C.   If the applicant refuses without good cause to cooperate' in
                                                                                .i,. . .;..:', ._ _.
                               locating the parents, he is ineligible.          ..- .,, . - _....
                                                                                          r       -.,
                                                                                ...._^.._.. e_.LI. ;
                                                                   BP-90-6O-OFS        :- --_ :. . .

                                      EXHIBIT 4
            UTAH-OHS-OFS                                                                812.2 - 812.31
            VOLUME II-PAWS                                                              12-90

                 812.5        Residents Of Institutions. G~OUD Homes. anb Alc-oholism and Drug
                              Treatment Centers

                              See Section 208

                 812.3        Determination of EmDlovability

                              A person must work less than 100 hours per month and must meet
                              one of the following three criteria:

                              1.   Unemployable, or

                              2.   "Marginally employable" as determined by the district
                                   director at his discretion, or
                              3.   60 years of age or older.

                         812.31    UnemDlovable

                                   The applicant must provide medical evidence that he is not
                                   employable due to a physical or mental impairment. If the
                                   medical statement does not provide medical evidence, offer
                                   to help the client obtain medical evidence. Medical
                                   records or specialized medical evaluations may provide
                                   medical evidence. The local office has the responsibility
                                   to pay for medical exams to provide evidence needed to
                                   determine eligibility. The exams must be prior approved by
                                   the local office. The client is responsible for securing
                                   medical records, contacting a specialist if needed, and
                                   scheduling evaluations.

                                   The impairment must be so severe that the person cannot do
                                   his previous work. In addition, he could not reasonably
                                   hope to find any other kind of "substantial work"
                                   considering his age, education, and work experience.
                                   "Substantial work" is- work which pays $500 or more a month.

                                   If the applicant states he has a medical problem and cannot
                                   work, either accept the medical/psychological evidence the
                                   client may have or give him Form 20 Pisabi 1 ity or Form 21
                                   Medical ReDort to be completed and returned. Use Form 20
                                   Disability, if the client might be eligible for 0
                                   disability or SSI, or if needed, for appropriate assignment
                                   to an education or employment program. If client medical
                                   records are available, the client must provide them.

           Medical Evidence - A client saying he has a medical problem does not
           constitute medical evidence. Medical evidence are signs and findings based -on
           tests, x-rays, observation, and other medlcal procedures. Signs are
           anatomical, physiological or psychological abnormalities which can be observed
           with clinical techniques. For psychiatric impairments. signs are medically --
-i-!-.9    demonstrable abnormalities of behavior, affect, thought, memory, orientation
pp. .      and contact with reality. For example, a person saying they are depressed js
    .      not medical evidence. Participation in mental health programs, psychological'.
    -- _   tests, and observation of behavior are examples of medical evidence.-~.;1.';;3.~;,;.;_-
                                                                                              &":A -.
                                                                                    .--s-e...PY . ..-. __
                                                                                          J ..y,
                                                            BP-90-60-OFS                        .
                                                                                              ..:.-'. .,"
         UTAH-DHS-OFS                                                     812.31(Cont.J - 812.32
         VOLUME II-PACMIS                                                  12-90

                             The local office may accept a physician's statement, a
                             licensed/certified psychologist statement, a State Indigent
                             Medical Service statement, or a statement from another
                             agency involved in disability determination, such as, the
                             Veteran's administration, or the Division of Rehabilitation
                             Services. The local office may require a second opinion by
                             a specific person or agency.  The cost of any physical
                             examination will be covered by the use of Form 22,
                             Administrative Medical Examinations - Practitioner Invoice.

                             1.   If the medical report says the client can work with no
                                  limitations or that the limitations will last less
                                  than 30 days from the date of the onset of the
                                  physical or mental impairment, deny the case.

                             2.   If the medical report indicates the applicant is
                                  unable to work for 30 days or more from the date of
                                  the onset of the physical or mental impairment, and
                                  medical evidence of the impairment is provided, he is

                             3.   If the medical report says he can work but has marked
                                  limitations, supported by medical evidence, examine
                                  his ability to secure a job. If the limitation
                                  prevents him from participating in his previous line
                                  of work and he can not reasonably hope to find any
                                  other work, he is unemployable.

                             4.   If the available medical/psychological data is
                                  inconclusive, incomplete or conflicting, Form 689,
                                  Policy Decision, may be used to establish
                                  employable/unemployable.  Document this decision based
                                  on available medical/psychological data, case history
                                  and observations.

                             5.   If the illness or incapacity may last longer than a
                                  year, then the person must apply for SSDI/SSI benefits.

                    812.32   Maroinallv Emplovable

                             Persons identified by the agency as employable but unable
                             to compete in the regular labor market may be determined by
                             the agency as "marginally employable". Complete Form 689,
                             Policy Decision, to document the decision.

                             Example:   A mentally and physically slow person who-cannot
                                        read or write could be considered as unable to
                                        compete in the regular labor market.

                                        A 59 year old without job skills, who shows signs
                                        of disfunctional behavior could be considered as
&                                       unable to compete in the regular labor market:'.‘ .:
  _.-                                                                              _. _.._._ -_ . .r _
1_._ _      _   .   .                                       BP-90-60-OFS
                                                                                   . . -,i..7 ___.__.  .z.
      UTAH-DHS-OFS                                                      812.33-812.4
      VOLUME II-PAWS                                                    12-90

.-.             .-

              812.33      Emerqencv Work Proaram

                          When open to singles and couples, the Emergency Work
                          Program (EWP), is an alternative to the GA Self-Sufficiency
                          Program for some clients.  The client must be able to meet
                          the EWP 40 hour a week performance requirement.

              812.34      Soouse Participation

                          A spouse, excluding SSI recipients, may be included in the
                          GASSP grant if they meet unemployable criteria or actively
                          follow through on a Self Sufficiency Plan. This should
                          include active job search activities.

             812.4        Self-Sufficiencv

                     All GASSP applicants and their spouses, at time of application,
                     and recipients at time of review, must be interviewed by a GA
                     self-sufficiency worker and complete a self-sufficiency plan
                     unless exempted. If a recipient at review, has a
                     Self-Sufficiency plan, an interview by the Self-Sufficiency
                     worker is not required.  Recipients must actively follow through
                     on the plan.

                     A person may be exempted from these requirements by the worker

                     1)   the person has qualified for SSI and is waiting for the
                          first check, or

                     2)   Regional director or designee decision.

                     Document the reason in the case record on the case action log.

                     Inform applicants who have not been exempted that eligibility
                     can not be determined until a self-sufficiency plan is
                     developed.  Provide a copy of the medical records and other
                     relevant data to the GA self-sufficiency worker.

                     If a GA self-sufficiency worker is not available, a non-exempted
                     applicant must be referred to the Division of Rehabilitation
                     ServicesCDRS) and follow through with DRS. When referring
                     clients to the local DRS office, call for an appointment and use
                     Form 59, DRS-APA Referral Reuort.      _

                                                             BP-90-60-OFS              -.
UTAH-DHS-OF;                                                          812.5 - 812.52
VOLUME II-PACMIS                                                      07-30
812.5    SSI and GA

         l4hen sn applicant/recipient t?f GA seems to meet the requirement; For
         SSI because of 1ge, disabilit;l, or blindness, he must apply for SSI.
         The worker will obtain a Form 75 from the client upon the initial
         contact.   The client will be referred to the Social Security office
         to complete the SSI application.     Initial GA eligibility may be
         granted before the SSI application is filed; however GA recipients
         must follow through on the S?I application.     A GA case will be
         discontinued if a recipient h;rt not followed through on the SSI
         application within 60 days of the GA application.

    812.51    l&finition   of '52.1 Disabilid

             To qualify for Social Security Di;ability Insurance (SCDI> or
             SSI Disability, a person must hav e a severe physical or mental
             impairment which can bo expected to result in death or which has
             lasted or can be expected tc last for a continuous period of not
             les; than twelve mcnths.      The physical or mental impairment or
             blindness must be so severe that the person cannot do his
             previous work.   Nor COIJICI he, considering his age, education,
             and work oxnerience. eng>go in any other kind of "substantial
             gainful activity."    "Substantial gainful activity" is defined as
             earning 6500 a month or more.

             In cases of mental impairment, the condition must ;everely
             restrict daily activities, interest;, and ability to relate to
             other people.

   812.52     f      o
             Dofiniticns      r   -S;T/f’P f’nr\l-rJinal-t:on
                                    .-z-1-2: - - - - - - - - - - -A

             J~jt.iil--CLa& - An application mad o for SSI by an individual for
             the first time.   If an individual has not received an.SSI
             payment in the last 13 months, he is makcrlg an initial

             .fjQrt Eliaibilitr - An anolication made for SSI by an individual
             pending a suspension, termination. or appeal for- benefit;. This
             occurs only upon having received SSI preViolJjly.

             Authorization - A complete and signed Form 75.
             -   -   -   -

                           (Continued       w the next pq?e~


                                                                                -. +‘. . .   :
      UTAH-DHS-OFS                                             812.52    (Cont.1     -     812.53
...   VOLUf!E II-PACMIS                                        07-90

                     Interim ,q;;i;tanco Reimbllrsement - Interim Assistance is the GA
                     financial payment made t? a client while his eligibility for SSI
                     is pending.   The reimbllt-sement is the process where S'S1 pays the
                     initial lump sum SSI pavment to Social Services, Office of
                     Recover-y Services.   Tilii repays the GA financial payment because
                     the SSI payment is made retroactive to include the time period
                     paid under General Assistance.

                    Protective Filina
                    ----. ---.---- -_- .- - The eliaibility date for SSI is the same
                    date as the For,m 75 is received by Social Services.      For
                    protective filing to be valid. an application for SSI must he
                    filed at the Social Secltrity Office within 60 days of the date
                    the Form 75 is receiv?fJ.

          812.53    Interim aid for SSI Appl.i_c_ant;

                    The person must c'?mpleko Form 75 "Agreement to Repav Interim
                    Azsistance" before he applies for SSI.

                     1). The worker must understand the following about the Form 75:

                          3).  The date the Form 75 is returned and sianed by the
                          client is also the SSI eligibility date providing the
                          client applies for SSI within 60 days of the initial GA
                          application.  Date :tamp all forms received on the day they
                          are received.  For those mailed, use'the day the envelope
                          ii received in the {Jffice and not the post mark date.

                          b) . .The client mu:t apply for SST within 60 days.       The
                          client may do this at the Social- Security Office.

                          c>.  The Form 75 must not be batched and sent in'groups to
                          SSA.   Send individual forms immediately to SSA but not more
                          than 10 days after it has been received in the Social
                          Services Office.   Do not wait to see if the GA will be

                          d,.  Send a copy of the Form 75 to ORS, Team 73 in Salt
                          Lake City. A copy must also be given to the client. keep
                          a copy in the case record.

                          e>.  Cooperate with ORS on any matters requested. QRS
                          needs to know when we have discontinued GA eligibility.
                          When ORS says that the first SfI check has been receiverI.
                          close the case.

                                                               BP-90-40-OFS        ..-... . .. .-
                                                                                      - .:- _.
UTAH-DHS-OFS                                                        812.53   (Cont.>
VOLUME II-PACMIS                                                    07-90

                    f!. Qbtain a new Ff?rrn 75 whenever a client makes a new
                    applicati?n for ZC!, the claim for SZI is approved or
                    denied and no appeal i; filed, the period of time for an
                    appeal has passed. mqr-e than 1 year ha; passed ;irice it was
                    signed? or whenever the client and State agree to terminate
                    the last Form 75.

                    g!. Decide if the rlient's claim for SSI is an "Initial
                    Claim" or a. "Fast Eligibility" situation.     The same Form 75
                    cannot be user.1 fclr both an initial claim and a post
                    eligibility claim.      If the wrong box is marked on the Form
                    75. Social Security will reject and retlJrn the form. Time
                    and money will be l*?st.

              2.   The client must understand the following about the Form 75:

                   a,\ . General Assistance is an interim assistance pending
                   approval for SSI.    Failure to apply for SSI will cause the
                   GA to be discontinlred.

                   b). The client mu:t identify if the cla,im for S;I i;,an
                   initial claim 01' ? rlt‘;t eligibility claim.

                   c!. The initial ll!mp sum SSI payment will be paid to the
                   Office of Recovery Services:   Any. amount of SSI over the
                   paid GA will be retllrned to the client within 10 days of
                   ORS receiving payment from SSI.

             3.   The client mu;t prnvi!Ie w,.itten proof from the Social
             Security Off ice that ho has applied for SSi within GO days of
             submitting the Form 75.    Set an alert for a notice to be sent
             reminding the client of th e need to apply for SSI on the 30th
             day.   Give the client no more than 10 additional days to submit
             the proof that he applied for SSI within the 60 day period to
             the Social Services office.     If the proof has not been received
             within those 10 days, close the case.      Remember to allow for 10
             days notice.

             4.  If the recipient receives the first SSI check by mistake.
             inform OR;.

             5. An individusl may I- eceive a three month ptoslrmptive
             eligibility SSI payment.   Close the GA case when this begins.
             If no decision has been made by SSA at the end of three months.
             the client may reapply for GA.

UTAH-DSS-FSA                                                             812.53 (Cant.)(2)- 812.55
VOLUME II-PACMIS                                                         lo-89   -

              6. Each time an individual files an SSI application or the
              client’s benefits are suspended or terminated, complete another
              " i n i t i a l c l a i m " o r " p o s t e l i g i b i l i t y " authorization Form 75.

             7. If a client reapplies for GA after a closure because he has
             not applied for SSI within the 60 day time period, require the
             client to apply for SSI and provide proof of the application
             from the Social Security Office before approval.

    812.54   i52iLletials and AFJF&S

             Request recipients to provide the agency with a copy of any SSI
             denial notice.

             Recipients must appeal an SSI denial decision if the agency
             feels there is a reasonable chance for a successful appeal and
             assistance in making the appeal is available. Individuals can
             appeai an SSI denial within 60 days by filing a request for
             reconsideration of the decision at the local Social Secur,ity
             Office. Additional medical information may result in a
             successful appeal. If appropriate, individuals should be
             referred to one or more of the following for help: an adult    .
             service worker, Legal Center for the Handicapped, Utah Legal

   812.55 Medical Reimbursement

             If the date of medicaid eligibility is backdated to the date of
             S S I e l i g i b i l i t y , the state will receive Title XIX reimbursement
             for any Indigent Medical Services provided to the GA recipient.
             If a GA recipient has received Indigent Medical Services during
             the period he was eligible for SSI, approve the person for
             Medicaid Assistance. Begin Medicaid eligibility as of the .date
             the person applied for medical services or is eligible for SSI,
             whichever is later.

                                                                                     .   .

      UTAH-DSS-APA                                                      812.6
      VOLUME II                           PACMIS                        07-88
      PACMI S

          812.6      Rehabili tatlon and Emulovment Performance Requirements

                     Meeting unemployable, “marginally employable” or 60 years of age
                     or older criteria does not mean that the client can not benefit
                     from and be required to meet one or more rehabilitation or work

                     To promote rehabilitation and employment, the GA
                     Self-Sufficiency worker or designated staff may require a GA
                     recipient to meet one or more-self-sufficiency requirements.
                     The following are examples of self-sufficiency requirements.

                     1.    Participation in Division of Rehabilitation (DRS)
                           services. DRS provides individualized medical, counseling,
                           and employment services for persons handicapped in securing
                           employment because of a physical or mental problem. When
3                          referring clients to the local DRS office, call for an
                           appointment and use Form 59 DRS-XP Referral Report.
i                          Follow-up to ensure that the client is actively
3                          participating.

                     2.    Participation in medical or mental health care or an
f                          alcoholism or drug treatment program if available at no
                          cost to the recipient.

I                    3.   Participate satisfactorily on a WEAT project. The GA
                          Self-Sufficiency worker can establish with the client the
1                         hours of participation for each performance period. Each
.:I                       person assigned shall be given a Form 743, To All GA WEAT.
                          Clients and a completed form WP-1 Work Experience and
                          Training Assignment. For WEXT requirements, see Section

                     4.   Job Search and Job Search Training.

                     5.   Enrollment and participation in seif-sufficiency groups,
                          adult education or skill training programs.

                     6.   Registration for employment with Job Service. The
1L                        registration must remain current and continuous.

                     7.    Other activities leading towards self-sufficiency or agreed
                         - upon in the Self-Sufficiency plan.
                     An individual may not refuse a bona fide offer of employment
                     without good cause.

                                            PACMI S

;    UTAH-DHS-OFS                                     812.6 (Cont.)-812.62
     VOLUME II            =
                    If a recipient is required to and fails to meet one
                    or more of the above rehabilitation or employment
                    standards without good cause,     close the GASSP
                    Financial case effective at the end of the current
                    month.   The GASSP financial case remains closed
                    until the client participates in the required
                    self-sufficiency activity and demonstrates that he
                    will continue to satisfactorily participate.

                    Verified     illness,     incapacity,   lack    of
                    transportation,       arrest,     or  extenuating
                    circumstances as approved by the district director
                    or designee may be good cause for not meeting an
                    employment or rehabilitation requirement.

                    If the sanctioned client wants to end the sanction
                    by participating in community work, have the client
                    sign a statement that he understands that the GASSP
                    grant and WEAT allowance will not be initiated
                    until 24 hours of satiafactorl/ participation have
                    been c<omoleted.
                             L          Satisfactory   participation and
                    case   reopening is      determined by       the  GA
                    Self-Sufficiency worker.       Once the sanctioned
                    client has satisfactorily participated, reopen the
                    case back to the date of participation and add the
                    WEAT allowance.

              812.62     Continued Self Sufficiencv    Services

                         The GA self sufficiency counselor may provide
                         help to clients up to six months after GASSP
                         case closure.   On a case by case basis, the
                         services may include, but are not li'mited to,
                        help in getting needed services, job placement
                        services, counseling, GASSP medical services
                        and GASSP-Z fund assistance.

          Fide Offer of Emolovment:   An offer of employment was given
    and was made in good faith.

    Emolovment Good Cause: .A definite job offer-was not made.     The
    wages did not meet minimum wage requirements. The employment was
    a risk to the health or safety of the worker.      The employment
    lacked workmen's compensation benefits.   The position offered is
    vacant due to a strike, lockout or other bona fide labor dispute.
    The individual is unable to work for physical reasons or for lack
    of transportation.
UTAH-OHS-OFS                                                     813
VOLUME II-PAWS                                                   12-90

813    Jncome Standards. Eliaibilitv and Grant Determi natloq

       A person prospectively.eligible for another financial assistance
       program with benefits at or above the standard grant level is
       ineligible for GASSP. AFDC rules apply unless a different rule is
       stated below.

        1.   Financial responsibility is limited to spouse for spouse. Count
             the income and assets of people with financial responsibility
             for a GASSP client in determining eligibility and grant amount
             if they are living with the client.

       2.    Grant amount.

             a.   The only people included in the grant are those who:
                       Live Together, AND
                       Have financial responsibility for one another

             b.   Count the SSI income of financially responsible househol d
                  members. A person receiving SSI is not eligible for GA.

             C.   The only earned income disregards are:
                       A work expense allowance of $90 for each eligible
                       individual employed.

             d.   Do m allow the 25% income disregard.

             e.   The household is eligible if the available Income is less
                  than the standard grant. The minimum grant shall not be
                  less than one dollar.

             Example #l:     A husband meets all GASSP eligibility
                             requirements. He and his wife live together.
                             She is employed part time.   Count her income in
                             determining the grant.  Include her in the grant
                             if she agrees to participate in self sufficiency
                             activities. The standard grant amount is for a
                             two person household.

             Example #2:     A husband, wife and 19 year old son live
                             together. The husband meets all GASSP
                             eligibility requirements and has no income. The
                             wife receives $175.00 SSI. The son is working
                             full time. Count the wife's income in
                             determining the grant amount. Do not count the
                             son's income.    Exclude the wife and son from the
                             household count.

             Example #3:     2 disabled persons live together. They are not
                             married. Each person is a separate GASSP case.

       3.    GASSP recipients are not subject to monthly reporting unless
             they are required to as part of meeting Food Stamps or Medica id
             standards or they are required by the local office to report
             monthly to handle fluctuating earned income.

                                                 BP-90-60-OFS            '*
           UTAH-DHS-OFS                                                814 - 818
           VOLUME II-PACMIS                                            12-90

           814      Assets

                    The assets of spouses are counted in determ i ning eligibility if they
                    live together. The asset limit is Sl.000.

                    Section 400 applies with one exception. 00 not apply the real
                    property exemption.  (See Section 410 para. 8)

             5      GASSP Medical Benefit

                    A person receiving General Assistance Self Suff i ciency (GASSP)
                    assistance is eligible for Utah Medical Assistance Program (MAP)
                    without completing a separate application.

             6      GASSP Special Assistant?

                    General Assistance Self Sufficiency recipients receiving food stamps
                    may be issued up to $25 a month to cover the cost of transportation,
                    fees and other costs to participate in self sufficiency activities.

                    General Assistance self sufficiency (GASSP) funds have been allocated
                    to each region to use al ong with 2 funds to provide special needs in
                    order to participate in self sufficiency activities.

                    GASSP recipients who have medical conditions not covered by UMAP
                    which prevents them from gainful employment, may be eligible for
                    special GASSP funds. Medical treatment must remove the condition
                    that makes the person unemployable as determined by the Self
                    Sufficiency worker.

                    If requested by the GA Self Sufficiency counselor and approved by
                    UMAP and the state OFS office as part of the GASSP medical program,
                    UMAP-GASSP services may be extended up to six months after a person
                    leaves GASSP because of employment. This pol cy is to enable persons
                    with significant medical problems to maintain employment.
                    Participants are required to enroll in health insurance if offered by
                    the    empioyer.    '

                    Because of limited funding, approv al of GASSP medical services is on
                    a case by case basis.

           817      Reviews

                   If the recipient is actively invol ved in following through on
                   self-sufficiency activities, a review every 12 months may be
                   appropriate.  Otherwise, review the case at least every 6 months.
                   Each individual must have developed a self-sufficiency plan and be
                   following through on that plan unless exempted. If exempted, review
                   to see if the reason for the exemption still applies. Also, review
                   for SSI eligibility.

           ;I8     Special General Assistance Proaram For Transient Persons
. m.....
                   Transient persons are non-residents of Utah who are temporarily
                   stranded and do not intend to stay in Utah.

                   The Regional Director or designee may approve assistance to cover' the
                   emergency need under the GA category.
Utah-DSS-APA                                                         ala - ala.3
Volume II                        = PACMIS                            01-88

818 Self Sufficiency

    It is a goal of the Department to help AFDC clients become
    self-sufficient.   To reach this goal, you must refer all AFDC clients for
    a self-sufficiency interview. The only exceptions are disabled adults or
    children in school or pre-school.

    The program is not an eligibility factor.       You*cannot deny or hold the
    client’s benefits for this program.*

    ala.1       When to Refer a Client

                1.   When the client applies.

                2.   When a client is able to work after being ill or disabled.

                3.   When you find clients who have not yet been referred for an

                4.   When a client loses his job.

                5.   When a client asks to be referred.

   ala.2       Bow to Refer a Client

               Follow procedures for your district when you refer clients.
               Explain that the interview is not required. His assistance will
               not be denied or held for its completion.*

                Document your effort in the self-sufficiency program. Record it
                in the case file. Use the case action log, the Form 124, or any
                other form that will not be purged from the file.

   ala.3       Pot Clients Who Are Not Referred

                If you do not refer a client because he is disabled, explain
                this in the case action log.

               If you postpone the referral because the client is unable to
               work, explain this in the case action log. You will need to
               refer the client when he is again able to work;

   *       Some districts combine the WIN Appraisal and Self-Sufficiency
           intemievs. This makes Self-Sufficiency automatic for clients who
           are not exempt from WIN. Make sure these clients understand that
           they must meet the m reauirement to receive an AFDC grant.


Utah-DSS-APA                                                          ala.4
Volume II                          PACMIS                             01-88

    818.4      Self-Sufficiencv Client with SDecial Needs     .

               Often a self-sufficiency client has unexpected expenses that
               threaten his ability to start or continue job search activities
               or training. The self-sufficiency worker may issue special
               funds to help pay these expenses. The self-sufficiency
               supervisor must approve any issuance of these funds.

               Examples of expenses that can be paid are:

               1.   Transportation.
               2.   Clothing. *
               3.   Uniforms.
               4.   License and school fees.

               This money is not counted against the grant.
-- UTAH-DSS-APA                                              820    -


  820 State SuDDlemental Pavment to SSI ReciDients

      The state supplement payment to SSI recipients is administered by the
      Social Security Administration through a contractual agreement with
      the state. The state supplement amount is added to the regular SSI
      monthly check for individuals who receive an SSI payment during the
      month and have a living arrangement other than D (institutional).

      At the present time, the amount of the supplemental is $6.00. If the
      number of SSI recipients increase, this amount may be reduced in
      order to stay within budget.


UTAH-DHS-OFS                                                   820
VOLUME II                                                      07-91

820 State Suoolemental Pavment to SSI Recioients
     The state supplement payment to SSI recipients is administered
     by the Social Security Administration through a contractual
     agreement with the state.     The state supplement amount is
     added to the regular SSI monthly check for individuals who
     receive an SSI payment during the month and have a living
     arrangement other than D (institutional).

     As of July    1, 1991, the amount of the state supplemental
     payment is   $ 5.30 for individuals and $ 10.60 for couples. If
     the number    of SSI recipients increase, this amount may be
     reduced in   order to stay within budget.


            UTAH-DSS-APA                                                   820 - 820.2
            VOLUME I I                  :       PACMI S                    01-88

            820 State SuPplemental Payment   to SSI Recioients

                A State Supplemental cneck is issued monthly to individuals who
                receive an SSI payment during the month and do not live in an
                institution according to the SDX file and PACMIS information.

               The amount of the supplemental check will vary depending on the
               number of SSI recipients in the state.

               820.1      Elinibilitv

                          The following describes the automatic state payment system
                          and eligibility requirements.

                          1.   SST Pavment     If an individual does not receive a SSI
                               benefit during the month even though SSI eligible, no
                               state supplemental payment is made until an SSI
                               payment is made.

                          2.   Petroactive SSI Pavments       If a retroactive SSI
                               payment is made, only one state supplemental payment
                               is issued for the month in which a lump sum payment is
                               made on the SDX.

                          3.   flursti Homes Nursing home patients and residents of
                               state institutions are not eligible for a state
                               supplemental payment.

                          4.   Comouter Cross Check     A cross check is made with
                               PACMIS for changes of address and nursing home

                          5.   PACMIS Channes       PACMIS automatically includes the
                               state supplemental payment as Food Stamp unearned
               820.2     Pavment Dates and Information

                         The state supplemental check is issued on about the 3rd of
                         the month. On about the 20th of the month a second benefit
                         run is made to individuals who were issued payments
                         according to supplemental SDX tapes-but who didn’t receive
                         a state supplemental payment of the 3rd.

                         A semi-monthly SDX recipient microfiche is sent to the
                         d i s t r i c t s . The microfiche provides SSI information
                         including names, social security numbers, SSI payment,
                         eligibility status, and payment codes.

                         A check register and microfiche of state supplemental
                         payments is sent after each benefit nm to the district
                                                                          82C.3 - 820.7
                                        PACMIS                            01-88

          820.3   Lost or Stolen Checks

                  U n l i k e S S I p a y m e n t s , ’ state supplemental checks are not
                  forwarded to a new address. If a recipient has moved, the
                  check is sent to the district office. Please check with the
                  appropriate district office before issuing a replacement check.

                  If the individual has an open case on our data       system, the
                  case payee and mailing address are used for the      SSI $10
                  supplemental issuance. If the individual is not      on our data
                  system, the payee and mailing address from the       Social Security
                  file are used.

                  Lost or stolen checks are handled according to regular Volume
                  II Financial Assistance procedures.

          820.4   SSI Check but No State Sunnlemental

                  Occasionally the SDX or the local Social Security Office
                  reports a check issued, but the $10 supplement payroll does
                  not show a check issued. Report the problem to Management
                  Support Services.

          820.5   No Check Wanted .

                  If a recipient does not &ant to receive the $10 supplemental
                  check, the recipient or guardian should send a letter to
                  management support services requesting a hold on payments..
                  The social security number of the recipient must be included.

          820.6   Guardians

                  Sometimes the computer does not pick up the guardian’s name
                  from the SDX and the check is printed in the recipient’s name
                  only. Contact Management Support Services if this is creating
                  a problem for the recipient.

          820.7   Returned Check Procedures

                  When a State Supplemental check is returned to the district
                  o f f i c e , check the terminal by recipient name and SSA number to
                  determine if there is an open case with either OCO or DFS. If
                  there is an open case, check for a new address.

                  a.   If a new address cannot be found, hold the check until
                       the next month’s supplemental payroll to check for a new

                  b.   If no new address is identified, hold the check for 60 .
l ,....
                       days from the date of issuance. After 60 days, void the
                       check and return to the Bureau of Finance.
. . . .
 __. .:

 ,!ELFARE           OJB-AGE, ETC., INSURANCE                                                  42 5407

ntitled, un-            Where attorney sought more than sufficient to encourage members of bar
  uested fee        $5,000 for work in social security dis- to undertake representation of disability
 Ours spent         ability appeals case which he acknowl- claimants, but that the disability award,
 in light of        edged required no more than 15.8 hours, from which the fee is paid, is normally
 in support         submitted no contemporarily main- an already inadequate stipend for sup
his normal          tained, appropriately detailed time port and maintenance of claimant and
  in federal        records, failed to adequately examine his dependents. MacDonald v. Wein:
entitled to         into and respond to his client’s legit- berger, C.A.Ariz.1975, 512 F.2d 144.
t award of
n                   imate questions, and insisted that escrow
                    account be funded at time when Secre- 82. Return of excess award
I:ant to So-
  om claim-
ether with
                    tary of Health and Human Services had             Fee received by social security claim-
                    already withheld 25% of pastdue bene- ant’s attorney in excess of that awarded
E q u a l Ac-       fits and was thus protecting attorney’s by court must be paid to clerk of court
‘s represen-        fee, no fee was warranted under Social for benefit of client. Miracle v. Gard-
  of Health         Security Act provision authorizing fees. ner, C.A.6, 1968, 391 F.2d 918.
1.1987, 654         Coldicott v. Secretary of Health and Hu-          Disability claimant’s attorney was re-
                    man Services, D.C.N.Y.1985, 610 F.Supp. quired to refund to the claimant the
vrite briefs         171.                                           amount of the smaller of. fees awarded
:ould have              Attorney fee award to counsel for SO-       to the attorney under the Social Security
one-half of         cial security disability benefits claim was Act and the Eoual Access to Justice Act.
as attorney         properly based on eight-hour service Bradley v. Secretary of U.S. Dept. of
-ant’s attor-       where case was remanded, on Secre- Health and Human Services, D.Idaho
me-half of          tary’s motion, immediately after com- 1990, 741 F.Supp. 1461.
fs could be         plaint was filed. Rosado Vazquez v. Sec-
 , N.D.Iowa         retary of Health and Human Services, 83. Interest
                     D.C.Puerto Rico 1985, 608 F.Supp. 346.           Statute allowing an award of attorney
lot reason-             Counsel for social security disability fees to attorney who represents success-
3 and one-          benefits claim reasonably spent 21 hours ful social security claimant does not au-
 filing stan-        on federal court action and was entitled thorize an award of interest. Burnett V.
nt, so that          to a fee under Social Security Act at a Heckler, C.A.8 (Ark.) 1985, 756 F.2d 621.
1s entitled          rate of $75 per hour. Garber v. Heckler,
gly, where           D.C.N.Y.1985, 607 F.Supp. 574.                 84. Particular awards
:essor, and             Time spent preparing attorney fee peti-       Award of $2,500 to attorney, who suc-
ks. Moore            tion in social securitv case cannot be cessfully represented social security
urnan Ser-           compensated.       Sniz&ki v . H e c k l e r , claimant in recovering f15,584.20, rath-
supp. 514.           D.C.Pa.1985, 602 F.Supp. 1119.                 er than attorney’s requested 25 percent
Idependent               Award of $2,500 was reasonable fee of the accrued benefits, was not abuse of
n in social          for work performed before district court discretion.          Edgens v. Richardson,
-e attorney          in action on application for disability        C.A.S.C.1972, 455 F.2d 508.
lot, on its          insurance and supplemenml security                Fee of f5m for 4.75 hours of legal
-eject lode-         benefits in view of prevailing legal fees services before court was properly
xcept as to          for such type of work and where claim- awarded in social security action.
3s personal          ant’s counsel had stated that over 200 zarrv Rivera v. Secretary of Health iii
ler, D.C.Pa.          hours was expended on matter. Ruzicka Human Services, D.Puerto Rico 1988,
                      v. Heckler, D.C.Ill.1983, 562 F.Supp. 499. 689 F.Supp. 42.
reparation      ,    81. - Mlacelhneous factors                        District court had authority to order
 represent-              In determining whether fee requested attorney’s fee in amount of 20 percent of
on seeking            by attorney for representing social secur- claimant’s total recovery of disability
  disability          ity claimant before district court is rea- benefits under this subchapter. Sparks
n lodestar            sonable, district judee must consider v. Celebreae, D.C.Tex.1964, 228 F.Supp.
C.Pa.1985,            that attorney’s comp&sation must be 508, affirmed 342 F.2d 286.
  in certain
 ses, court
)r services         Q 407.  Assignment; amendment of section
,dministra-           (a) The right of any person to any future payment under this
lent corre-
;; further-         subchapter shall not be transferable or assignable, at law or in
/o negative         equity, and none of the moneys paid or payable or rights existing
that expec-         under this subchapter shall be subject to execution, levy, attach-
    Snizaski        ment, garnishment, or other legal process, or to the operation of
:supp. 529,
                    any bankruptcy or insolvency law.
              SUPPLEMENTAL SECURITY INCOh’IE                            42 $j 1383

 ied from       (6) In any case in which an individual visits a field office of the
 ation ob-    Social Security Administration and represents during the visit to an
  are only    officer or employee of the Social Security Administration in the
i that the    office that the individual’s visit is occasioned by-
5 and for             (1) the receipt of a notice from the Social Security Adminis-
,nts of the        tration indicating a time limit for response by the individual, or
 payments             (2) the theft, loss, or nonreceipt of a benefit payment under
 212(a) of         this subchapter,
y, request    the Secretary shall ensure that the individual is granted a face-to-
‘3(Z)(7) of   face interview at the office with an officer or employee of the Social
rom State     Security Administration before the close of business on the day of
nply with     the visit.
under sub-    (f) Furnlshlng of Information by Federal agencies
le.             The head of any Federal agency shall provide such information as
              the Secretary needs for purposes of determining eligibility for or
report of
              amount of benefits, or verifying other information with respect
ity for or
the Secre-
bmitting a    (g) Relmbursement to States for Interim assistance payments
 any other       (1) Notwithstanding subsection (d)(l) of this section and subsec-
 (1)) shall   tion (b) of this section as it relates to the payment of less than the
layable to    correct amount of benefits, the Secretary may, upon written autho-
              rization by an individual, withhold benefits due with respect to that
‘Y,           individual and may pay to a State (or a political subdivision thereof
delay, and    if agreed to by the Secretary and the State) from the benefits
tch failure   withheld an amount sufficient to reimburse the State (or political
              subdivision) for interim assistance furnished on behalf of the indi-
              vidual by the State (or political subdivision).
cause for
                (2) For purposes of this subsection, the term “benefits” with
              respect to any individual means supplemental security income
 payments     benefits under this subchapter, and any State supplementary pay-
not reside    ments under section 1382e of this title or under section 212 of
or mailing    Public Law 93-66 which the Secretary makes on behalf of a State
              (or political subdivision thereof), that the Secretary has determined
;faction of   to be due with respect to the individual at the time the Secretary
  apply for   makes the first payment of benefits with respect to the period
on provid-    described in clause (A) or (B) of paragraph (3). A cash advance
the Social    made pursuant to subsection (a)(4)(A) of this section shall not be
Gbility for   considered as the first payment of benefits for purposes of the
deemed to     preceding sentence.
                (3) For purposes of this subsection, the term “interim assistance”
rovided to    with respect to any individual means assistance financed from State
              or local funds and furnished for meeting basic needs (A) during the
luirements    period, beginning with the month in which the individual filed an
tion there-   application for benefits (as defined in paragraph (2)), for which he
              was eligible for such benefits, or (B) during the period beginning
42 0 1383                          PUBLIC HEALTH AND WELFARE              SUPPLEMEl
with the first month for which the individual’s benefits (as defined       by a repress
in paragraph (2)) have been terminated or suspended if the individ-        an administ
ual was subsequently found to have been eligible for such benefits.        the maximt
  (4) In order for a State to receive reimbursement under the             travel origir
provisions of paragraph (l), the State shall have in effect an agree-     jurisdiction
ment with the Secretary which shall provide-
                                                                          (I) Unnegotla,
        (A) that if the Secretary makes payment to the State (or a             to State:
     political subdivision of the State as provided for under the
     agreement) in reimbursement for interim assistance (as defined         (1) The Se
     in paragraph (3)) for any individual in an amount greater than       the Secretar
     the reimbursable amount authorized by paragraph (l), the State       which incluc
     (or political subdivision) shall pay to the individual the balance   as described
     of such payment in excess of the reimbursable amount as              for payment
     expeditiously as possible, but in any event within ten working       which they 1
     days or a shorter period specified in the agreement; and               (2) The SC
        (B) that the State will comply with such other rules as the       representing
     Secretary finds necessary to achieve efficient and effective         pursuant to
     administration of this subsection and to carry out the purposes      under sectio
     of the program established by this subchapter, including protec-     such benefit
     tion of hearing rights for any individual aggrieved by action        and eighty d
     taken by the State (or political subdivision) pursuant to this       pay each St2
     subsection.                                                          State’s share
                                                                          shall be retu
   (5) The provisions of subsection (c) of this section shall not be
applicable to any disagreement concerning payment by the Secre-           nally paid.
tary to a State pursuant to the preceding provisions of this subsec-         (3) The Se
tion nor the amount retained by the State (or political subdivision).     under parag
                                                                          described in
(h) Payment of certain travel expenses
                                                                          that State’s a
   The Secretary shall pay travel expenses, either on an actual cost      in one hund
or commuted basis, to individuals for travel incident to medical          issued.
examinations requested by the Secretary in connection with disabil-
ity determinations under this subchapter, and to parties, their             (4) The Se
representatives, and all reasonably necessary witnesses for travel        gate the whe:
within the United States (as defined in section 1382c(e) of this title)   checks were
to attend reconsideration interviews and proceedings before admin-        eighty days 2
istrative law judges with respect to any determination under this         (j) Application
subchapter. The amount available under the preceding sentence
for payment for air travel by any person shall not exceed the coach         (1) Notwit.
fare for air travel between the points involved unless the use of         this title, an:
first-class accommodations is required (as determined under regula-               (A) wi
tions of the Secretary) because of such person’s health condition or           tion 138
the unavailability of alternative accommodations; and the amount               pursuanl
available for payment for other travel by any person shall not                    (B) wl
exceed the cost of travel (between the points involved) by the most            or pursu
economical and expeditious means of transportation appropriate to              months,
such person’s health condition, as specified in such regulations.              may not
The amount available for payment under this subsection for travel              ant to ei
0 416.520                               TITLE %EMPLOYEES’ BENEFITS
                                                                                            CHAPTER m-so
no more than the least of these             furnished on behalf of the individu-
three amounts.                              al.                                             aration from the qL
                                            [41 FR 20872, May 21, 1976)                     al. A review of tl
  (1) In computing the emergency                                                            established on or E
advance payment amount, we apply                                                            31, 1973, will provic
the monthly income counting and                  Q 416.532 Method of payment
                                                       when the essential person re-        determination as to
proration rules appropriate for the                                                         maining eligible inc
month in which the advance is paid,                    sides with more than one eligi-
                                                       ble person.                          ble spouse meets tl
as explained in 93 416.420 and 416.-                                                        qualified individua
421.                                                 (a) When an essential person           consideration of th
   (2) For a couple, we separately lives with an eligible individual and                    son will be depend
compute each member’s emergency an eligible spouse, the State may                          the essential perso
advance payment amount.                          report that the person is essential to     live with a qualifiec
                                                 one or both members of the couple.        the essential person
   (d) Recovery of emergency ad- In either event, the income and re-                       a qualified individu
vance payment where eligibility is sources of the essential person will                    essential person is I
e s t a b l i s h e d T h e a m o u n t o f a n be considered to be available to the
emergency advance payment is de- family unit. The payment incre-                               (e> Where an eli
                                                                                           separated for less 1
ducted from payment(s) certified to ment attributable to the essential                     the full payment att
the United States Treasury when the person will be added to the rate of                    essential person, les
individual or spouse is determined payment for the couple, the counta-                     the essential person,
to be eligible. (See paragraph (e) of ble income subtracted, and the re-                   the qualified indivic
this section if the individual or sulting total benefit divided equally                    the essential perso
spouse is determined to be ineligi- between the eligible individual and                    5 416.430 for camp
ble.)                                            the eligible spouse.                      ment where one pen
   (e) L&position of emergency ad-                   (b) Where the essential person        ed couple has an es
vance payments where eligibility is lives with two eligible individuals                    [39 FR 33796, Sept. ;
not established If a presumptively (as opposed to an eligible individual                    48572. Nov. 26, 1985; 5
eligible individual (or spouse) or and eligible spouse), one of whom                       ,28, 19861
couple is determined to be ineligi- has been designated the qualified
ble, the emergency advance pay- individual, the income and re-
ment constitutes a recoverable over- sources of the essential person will
payment. (See the exception in be considered to be available only                             Except as provide
9 416.537(b)(l) when payment is to the qualified individual (as de-                        and Subpart S of th
made on the basis of presumptive fined in 5 416.221) and any increase                      cial Security Admil
disability or presumptive blindness.) in payment will be made to such                      not certify payment (
[SO FR 48572, Nov. 26, 1985; 55 FR qualified individual.                                  security income benl
4422, Feb. 8, 1990; 55 FR 7411, Mar. 1,                                                    feree or assignee of a
 19901                                               (c) In those instances where the
                                                 State has designated the essential        for such benefits L
                                                 person as essential to two or more        The Social Security
5 416.525 Reimbursement to eligible individuals so that both are                           shall not certify payI
       States for interim assistance qualified individuals, the payment                    mental security incc
       payments.                                  increment attributable to the essen-     any person claiming
                                                  tial person must be shared equally,      by virtue of an exec
   Notwithstanding 3 416.542, the                                                          tachment, garnishme
Social Security Administration may, and the income and resources of the                    gal process or by virt
in accordance with the provisions of essential person divided and count-                   ruptcy or insolven
Subpart S of this part, withhold sup ed equally against each qualified in-                 against or affecting t’
plemental security income benefits dividual.                                               ble for benefits undc
due with respect to an individual                    (d) When an essential person          [41 FR 20873, May 21,
and may pay to a State (or political lives with an eligible individual and
subdivision thereof, if agreed to by an eligible spouse (or two or more
the Social Security Administration eligible individuals) only one of                       0 416.535 Under
and the State) from the benefits whom is the qualified individual, es-                          overpayments.
withheld, an amount sufficient to sential person status is not automat-                      (a) GeneraL Wher
reimburse the State (or political ically retained upon the death of the                    receives SSI benefits
subdivision) for interim assistance qualified individual or upon the sep                   correct amount, adj
                                               654                                         fected as described
Q 416.1904                               TITLE u)-EMPLOYEES BENEFITS

  (b) Your authorization is in effect         he State if we are to repay the State
at the time we make the SSI benefit           ‘or interim assistance. The follow-       Q 4~6~.l9~~
payment.                                      .ng requirements must be part of
                                              the agreement:
                                                                                          Under its
                                                (a) SSA to repay the State. We          agreement wi
                                              must agree to repay the State for         agree to give J
   Your authorization for us to with-         interim assistance it gives you. Fe-      ahearingif!
hold your SSI benefit payment, to             payment to the State takes prionty        State’s actions
repay the State for interim assist-           over any underpayments due you            of interim ass
ance the State gives you, is effective        (see 05 416.525 and 416.542).             you are entitb
when we receive it, or (if our agree-                                                   State if you d
ment with the State allows) when                (b) State to pay any exca repay-        regarding the
we receive notice from the State              ment to you. The State must agree         ment the Stat
that it has received your authoriza-          that, if we repay it an amount great-     of any excess
tion. It remains in effect until-             er than the amount of interim as-         You are not
    (a) We make the first SSI benefit         sismce it gave to you, the State          hearing on t
payment on your initial application                -                                    garding repa]
 for benefits or, in the case of an                                                      axe.
                                                (1) Pay the excess amount to you
 authorization effective for a period         no later than 10 working days from
 of suspense or termination, until the        the date the State receives repay-        9 4;6iJZ
 initial payment following the termi-         ment from us; or
 nation or suspension of your bene-                                                       If you di:
 fits.                                          (2) Refund the excess amount to         amount of m
     (b) We make a final determina-           us for disposition under the rules in     and sent to tl
 tion on your claim (if your SSI              Subpart E of the ’ this part on pay-      assistance it ;
  claim is denied, the denial is the          ment of benefits if the State cannot      right to appe
  final determination, unless you file        pay it to you (for example, you die       Subpart N o
  a timely appeal as described in Sub         or you move and the State cannot
  part N of this part);                       locate you).                               SUBPART
     (c) You and the State agree to ter-                                                    MENTA
                                                  (c) State to notify you. The State
  minate your authorization; or                                                             AGREE-
                                               must agree to give you written no-
      (d) If earlier than the event in         tice explaining-                          Au-mown: S e
 paragraph   (ah   (b),   or   (4   of   es                                              1631 of the
 section, the date (if any) specified m          (1) How much we have repaid the         U.S.C. 1302, 1
 your authorization.                           State for interim assistance it gave      212 of Pub.L.
  [56 FR 19262, Apr. 26, 1991)                 you;                                      of Pub.L 93-
                                                                                         and 2 of Pu
                                                 (2) The excess amouxlt, if any,
  Q 416.1908 When we need an-                  due you; and
                                                                                         ~~JRCE: 40 F-
      other authorization.                                                               less otberwk
                        described in             (3) That it will give you an oppor-
  5 %F~~90~oc~~~tyour authoriza-               tunity for a hearing if you disagree      0 416.2(#
  tion is no longer effective. If you          with State’s actions regarding repay-        ry Payr
  reapply for SSI benefits, or the au-         ment of interim assistance.                   (a) State
  thorization has expired, the State
  must obtain a new authorization                (d) Duration of the agreement.           merits; def?
                                               We and the State must agree to the         ry paymer
  from you in order for us to repay                                                       made by a
  the State for interim assistance It          length of time that the agreement
                                                                                          cal subdivis
  gives you.                                   will remain in effect.                     payments fl
                                                  (e) State to comply with other reg-     is available
    INTERXMASSISTANCEAG~                                                                  Administra
                                                ulations. The State must agree to
  Q 416.1910 Requirements for                   comply with any other regul.ations        94-23, as a:
     Interim assistance agreement.              that we find necessary to admlmster        supplemen
                                                the interim assistance provisions.         fits (or to ;
   An interim assistance agreemen!                                                         be eligible
  must be in effect between us and

e previously       5 416.1090, or gives the notice re-     Thus, the amount of income you
  for making       ferred to in 5 416.1091, make any       have is a major factor in deciding
5 other activ-     new commitments to spend funds          whether you are eligible for SSI
ability deter-     allocated to it for performing the      benefits and the amount of your
 the time it       disability determination function       benefit. We count income on a
will continue      without the approval of the appro-      monthly basis. Generally, the more
until the re.      priate SSA regional commissioner.       income you have the less your bene-
ragraph a r e      The State will make every effort to     fit will be. If you have too much
 will aSStlme                                              income, you are not eligible for a
 for perform-      close out as soon as possible all ex-
                   isting commitments that relate to       benefit. However, we do not count
etermination                                               all of your income to determine
                   performing the disability determina-
                   tion function.                          your eligibility and benefit amount.
                                                           We explain in the following sections
tiOn Of   State                                            how we treat your income for the
                   9 416.1094 Final accounting             SSI program. These rules apply to
    We will de-         by the State.                      the Federal benefit and to any op-
zdures to im-         The State will submit its final      tional State supplement paid by us
iall or com-       claims to us as soon as possible, but   on behalf of a State (5 416.2025)
abi i?ity deter-   in no event later than 1 year from      except as noted in Subpart T and in
 m the State       the effective date of our assumption    the Federal-State agreements with
90 or § 416.-      of the disability determination func-    individual States. While this sub-
    Except for     tion unless we grant an extension of     part explains how we count income,
dministrator,      time. When the final claim(s) is         Subpart D of these regulations ex-
  or assistant     submitted, a final accounting will       plains how we determine your bene-
   e uivalent),    be made by the State of any funds        fits, including the provision that we
; o9 the State     paid to the State under 0 416.1026       generally use countable income in a
e of perform-      which have not been spent or com-        prior month to determine how
ility determi-
:nce over any      mitted prior to the effective date of    much your benefit amount will be
 ng positions      our assumption of the disability de-     for a month in which you are eligi-
are qualified.     termination function.        Disputes    ble (5 416.420).
)reference in      concerning final accounting issues       [50 FR 48573, Nov. 26, 19851
q’s adminis-       which cannot be resolved between
trator, or as-      the State and us will be resolved in    9 416.1101 D e f i n i t i o n o f
)r his equiva-      proceedings before the Grant Ap-                terms.
ish a system        peals Board as described in 45 CFR
iring priority      Part 416.                                     As used in this subpart-
State agency                                                      “Calendar quarter” means a peri-
tances where              SUBPART K-INCOME                     od of three full calendar months
of them.                                                       beginning with January, April, July,
                   AUTHORITY: Sets. 1102, 1602, 1611, 1612, or October.
1 Secrerary of     1613, 1614(f), 1621, and 1631 of the So-
sume respon-       cial Security Act; 42 U.S.C. 1302, 1381a,      “Child” means someone who is
 the disability    1382, 1382a, 1382b. 1382c(f), 1382j. and not married, is not the head of a
  from a State     1383: sec. 211 of F’ub.L. 93-66, 87 Stat. household, and is either under age
 Labor deter-      154.                                         18 or is under age 22 and a student.
as made fair       SOURCE: 45 FR 65547, Oct. 3, 1980, unless   (See 5 416.1856)
ments under        otherwise noted.
ite and local                                                     “Couple” means an eligible indi-
:rests of em-                                                  vidual and his or her eligible
                                   GENERAL                     spouse.
splaced from
USA of the as-     5 416.1100 Income and SSI el-                  “Current market value” means the
will not hire.          4W.b.                                   price of an item on the open market
                      YOU are eligible for supplemental in your localiQ’*
don                ~ectnity income (SSI) benefits if you          “Federal benefit rate” means the
:s after 12        are an aged, blind, or disabled per- monthly payment rate for an eligi-
                   son who meets the requirements de- ble individual or couple. It is th:
y not, after it    scribed in Subpart B and who has figure from which we substract
:ferred t o i n    limited income and resources. countable income to find out how
Q 416.1101                                TITLE 20--EMPLOYEES’ BENEFITS                        CBAPTER II

much your Federal SSI benefit                           (1) Given to you free of charge or       (3) Cash p:
should be. The Federal benefit rate                  paid for directly to the provider by      ernmental so
does not include the rate for any                    someone else;                             (except cash ;
State supplement paid by us on be-                      (2) Room and board you receive         or shelter) it’
half of a State.                                     during a medical confinement;               (9 Repaym
   “Institution” means an establish-                    (3) Assistance provided in cash or     proved sex-vi:
ment which makes available some                      in kind (including food, clothing, or     paid for; or
treatment or services beyond food                    shelter) under a Federal, State, or         (ii) A pa>r
and shelter to four or more persons                  local government program, whose           future purct
who are not related to the proprie-                  purpose is to provide medical care        proved sen-i:
tor. (See 0 416.201)                                 or services (including vocational re-       Eulnlpl~ If \
                                                     habilitation);                            own househoii
   “Spouse” means someone who                                                                  cial services i
lives with another person as that                       (4) In-kind assistance (except         cash to pay a i
person’s husband or wife. (See                       food, clothing, or shelter) provided      income.
@j 416.1806 and 416.1811)                            under a nongovernmental program                (c) Receipr
   ‘We,” “Us,” or “Our” means the                    whose purpose is to provide medical       change, or
Social Security Administration.                      care or medical services;                 source. Ret:
                                                        (5) Cash provided by any nongov-       change, or
   ‘You” or ‘Your” means a person                    ernmental medical care or medical
who is applying for, or already re-                                                            source are r
                                                     services program or under a health        sources thz:
ceiving, SSI benefits.                               insurance policy (except cash to
[50 FR 48570, 48573, Nov. 26, 1985; 51 cover food, clothing, or shelter) if
                                                                                                form. This 1
FR 10616, Mar. 28, 19861                                                                        kind item ttz
                                                     the cash is either:                        or repair a ri
  ’ So in original. Probably should be “subtract”.
                                                        (i) Repayment for program-ap-           that has beer
                                                     proved services you have already           l e n . Sectio:
9 416.1102 What is income.                           paid for; or                                1151 discuss
   Income is anything you receive in                                                            replace or rf
                                                         (ii) A payment restricted to the        ing a majo:
cash or in kind that you can use to future purchase of a program-ap-
meet your needs for food, clothing, proved service.                                              some other c
and shelter. Sometimes income                                                                    loss of a rei
                                                        Example: If you have paid for pre-           Exampk E
also includes more or less than you scription drugs and get the money back
actually recieve [sic] (see 9 416.- from your health insurance, the money                        the money yo
1110 and 3 416.1123(b)). In-kind is not income.                                                  is another fc:
income is not cash, but is actually                      (6) Direct payment of your medi-            (d) Incorr.
food, clothing, or shelter, or some- cal insurance premiums by anyone                            amount re?-
thing you can use to get one of on your behalf.                                                  you have 2
these.                                                                                            come.
[56 FR 3212, Jan. 29, 19911                              (b) Social services. Social servic-
                                                      es are not income if they are any of           (e) Paymr
                                                      the following:                              i t disabilir:
5 416.1103 what is not in-                               (1) Assistance provided in cash or
                                                                                                  made under
      come.                                                                                       disability ir
                                                      in kind (but not received in return         behalf are I
   Some things you receive are not for a service you perform) under                                  Elanlpk i
income because you cannot use any Federal, State, or local govern-                                pays off tht
them as food, clothing, or shelter, or ment program whose purpose is to                            after you be
use them to obtain food, clothing, or provide social services including vo-                        dent, we do :
shelter. In addition, what you re- cational rehabilitation (Example:                               ment or yo-
ceive from the sale or exchange of Cash given you by the Veterans Ad-                              home to be
your own property is not income; it ministration to purchase aid and at-                              (f) Proc~
remains a resource. The following tendance);                                                       you borrov
are some items that are not income:                      (2) In-kind assistance (except            as repaym:
   (a) Medical care and services. food, clothing, or shelter) provided                             come. Ho
Medical care and services are not under a nongovernmental program                                   ceive o n c
income if they are any of the follow- whose purpose is to provide social                            income. B
ing:                                                  services; or                                  as though >-

:e of charge or      (3) Cash provided by a nongov-             ey and what you purchase this way
ne provider by     ernmental social services program            is not income.
                   (except cash to cover food, clothing,          (g) Bilk paid for you Payment
*d YOU receive     or shelter) if the cash is either:           of your bills by someone else direct-
Ifinement;           (i) Repayment for program-ap-              ly to the supplier is not income.
ded in cash or     proved services you already have             However, we count the value of any-
d, clothing, or    paid for; or                                 thing you receive because of the
eral, State, or      (ii) A payment restricted to the           payment if it is in-kind income as
%ram, whose        future purchase of a program-ap-             defined in 5 416.1102.
  medical care     proved service.                                Examples: If your daughter uses her
 vocational re-      Example: If you are unable to do your      own money to pay the grocer to provide
                   own household chores and a private so-       you with food, the payment itself is not
 .nce (except      cial services agency provides you with       your income because you do not receive
                   cash to pay a homemaker the cash is not      it. However, because of your daughter’s
‘Iter) provided                                                 payment, the grocer provides you with
mtal program       income.
                                                                food; the food is in-kind income to you.
.ovide medical        (c) Receipts from the sale, ex-           Similarly, if you buy clothing on credit
ces;               change, or replacement of a re-              and your son later pays the bill, the
y any nongov-      source. Receipts from the sale, ex-          payment to the store is not income to
re or medical      change, or replacement of a re-              you but the clothing is in-kind income to
                   source are not income but are re-            you. In this example, if your son pays
nder a health                                                   for the clothing in a quarter after the
cept c a s h t o   sources that have changed their
                   form. This includes any cash or in-          quarter of purchase, we will count the
or shelter) if                                                  in-kind income to you in the quarter in
                   kind item that is provided to replace        which he pays the bill. On the other
                   or repair a resource (see Subpart L)         hand, if your brother pays a lawn ser-
 program-ap-       that has been lost, damaged, or sto-
have already                                                    vice to mow your grass, the payment is
                   len. Sections 416.1150 and 416.-             not income to you because the mowing
                    115 1 discuss treatment of receipts to      cannot be used to meet your needs for
ricted to the      replace or repair a resource follow-         food, clothing, or shelter. Therefore, it
 program-ap-       ing a major disaster or following            is not in-kind income as defined in
                   some other event causing damage or           5 416.1102.
 paid for pre-     loss of a resource.                            (h) Replacemenr of income you
le money back        Example: If you sell your automobile,      have already received. If income is
ce, the money      the money you receive is not income; it      lost, destroyed, or stolen and you
                   is another form of a resource.               receive a replacement, the replace-
f your medi-          (d) I n c o m e tar refunds. Any          ment is not income.
s by anyone        amount refunded on income taxes                Example: If your paycheck is stolen
                   you have already paid is not in-             and you get a replacement check, we
iocial servic-     come.                                        count the first check as income. The
my are any of                                                   replacement check is not income.
                     (e) Payments by credir life or cred-
                   it disability insurance. Payments               (i) Wearherizarion     assistance.
 :d in cash or     made under a credit life or credit           Weatherization assistance (Exam-
zd in return       disability insurance policy on your          ples: insulation, storm doors and
‘arm) under        behalf are not income.                       windows) is not income.
ocal govem-          ErampL If a credit disability policy          (j) Receipt of certain noncash
purpose is to      pays of? the mortgage on your home           items. Any item you receive (except
n&ding vo-         after YOU become disabled in an acci-        shelter as defined in 5 416.1130,
   (Example:       dent, we do not consider either the pay-     food, or clothing) which would be
                   ment or your increased equity in the
Jeterans Ad-       home to be income.                           an excluded nonliquid resource (as
: aid and at-                                                   described in Subpart L of this Part)
                     (f) Proceeds of a loan. Money              if you kept it, is not income.
                   you borrow or money you receive                 Erample I: A community takes up a
:e (except         as repayment of a loan is not in- c o l l e c t i o n t o b u y y o u a s p e c i a l l y
:r) provided       come. However, interest you re- equipped van which is your only vehicle.
tal program        ceive on money you have lent is The value of this gift ir not income be-
3vide social       income. Buying on credit is treated cause the van does not provide you with
                   as though you were borrowing mon- food, clothing, or shelter and will be-
Q 416.1103                              TITLE 20-EMPLOYEES’ BENEFITS                        CHAPTER III,

come an excluded nonliquid resource                  (a) Wages. Wages are what you          same code. Y(
under 5 416.1218 in the month follow-             receive (before any deductions) for       income tax cr(
ing the month of receipt.                         working as someone else’s employ-         you meet cer,
   Example 2: You inherit a house which           ee. Wages are the same for SSI            family compos
is your principal place of residence.             purposes as for the earnings test in      its.
The value of this inheritance iF income           the social security retirement pro-          (d) Payment
because the house provides you with               gram. (See 9 404.429(c) of this
shelter and shelter is income. However,           chapter.) Wages include salaries,         !Z?dfZiv%
we value the house under the rule in              commissions, bonuses, severance
5 416.1140.                                                                                 for services I
                                                  pay, and any other special payments       tered workshc
 [45 FR 65.547, Oct. 3, 1980; 49 FR 48038,        received because of your employ-
Dec. 10, 19841                                                                              center are wh:
                                                  ment. They may also include the           ticipating in a
                                                  value of food, clothing, or shelter,      help you becc
9 416.1104 Income we count. or other items provided instead of
                                                                                            (sets. 1102, 160
   We have described generally what cash. We refer to this as in-kind                       1614, and 1631
income is and is not for SSI pur- earned income. However, if you                            amended; sec.
poses (5 416.1103). There are dif- are a domestic or agricultural work-                     Stat. 647, as 2
ferent types of income, earned and er, the law requires us to treat your                    1466, 1468, 14’
unearned, and we have rules for in-kind pay as unearned income.                             Stat. 154; 42 1
counting each. The earned income                      (b) Net earnings from self-employ-    1382, 1382a. 18
rules are described in 59 416.1110 ment. Net earnings from self-em-                         202 of Pub. L.
through 416.1112 and the unearned ployment are your gross income                            U.S.C. 1382~)
i n c o m e r u l e s a r e d e s c r i b e d i n from any trade or business that you       [45 FR 65547, (
55 416.1120 through 416.1124. One operate, less allowable deductions                        May 24, 1983;
type of unearned income is in-kind for that trade or business. Net                          1985; 56 FR 3
support and maintenance (food, earnings also include your share of
 clothing, or shelter). The way we profit or loss in any partnership to                      § 4::y;
value it depends on your living ar- which you belong. These are the
 rangement. These rules are de- same net earnings that we would                                  (a) Wages.
 scribed in 55 416.1130 through 416~ count under the social security re-                     the earliest c
 1146. In some situations we must tirement insurance program and                             when you r
 consider the income of certain peo- that you would report on your Fed-                      they are cred
 ple with whom you live as available eral income tax return. (See 5 404.-                    set aside for
 to you and part of your income. 1080 of this chapter.)                                      mine wages
 These rules are described in                          (c) Refunds of Federal income             (b) Net eat
 55 416.1160 through 416.1169. We tares and advance payments by em-                           ment. We c
 use all of these rules to determine ployers made in accordance with the
 the amount of your countable in- earned income credit provisions Of                          basis. HOWC
 come-the amount that is left after the internal Revenue Code. Re-                            of these earr
 we subtract what is not income or is funds on account of earned income                       months in t
 not counted.                                       credits are payments made to you          your earninE
                                                    under the provisions of section 43        example, if :
              &RNELB INCOME                         of the Internal Revenue Code of           taxable year
                                                    1954, as amended. These “refunds”
  9 416.1110 what is earned in- may be greater than taxes you have                            that you r
       come.                                                                                   month. If y
                                                    paid. You may receive earned in-           self-employr
     Earned income may be in cash or come tax credit payments along                            over the ta:
  in kind. We may include more of with any other Federal income tax                            way, and wt
  your earned income than you actu- refund you receive because of over-                        your other
  ally receive. We include more than payment of your income tax, (Fed-
  you actually receive if amounts are eral income tax refunds made on                             (c) Refun
  withheld from earned income be- the basis of taxes you have already                          taxes and a>
  cause of a garnishment or to pay a paid are not income to you as stated                      players mai
  debt or other legal obligation, or to in 5 416.1103(d).) Advance pay-                        come credit
  make any other payments. Earned ments of earned income tax credits                            nal Revenu
  income consists of the following are made by your employer under                              ments adva
                                                    the provisions of section 3507 of the       and refund
  types of payments:


                  same code. You can receive earned            es made under the earned income
                  income tax credit payments only if           credit provisions of the Internal
                  you meet certain requirements of             Revenue Code of 1954 in the quar-
                  family composition and income lim-           ters in which you receive them.
                  its.                                         You receive refunds in a single
                     (d) Payments for services per-            quarter if they are paid as a result
                  formed in a sheltered workshop or            of the filing of your income tax re-
                  work activities center. Payments             turn and as an addition to the re-
                  for services performed in a shel-            fund of taxes withheld by your em-
                  tered workshop or work activities            ployer. You receive payments ad-
                  center are what you receive for par-         vanced by your employer along
                  ticipating in a program designed to          with your wages spread over the
                  help you become self-supporting.             period of your employment. If we
                                                               do not pay you the correct amount
                  (Sets. 1102, 1601, 1602, 1611, 1612, 1613,   of benefits (that is, we withheld too
                  1614, and 1631, Social Security Act, as      much from your benefits) because
                  amended; sec. 2 11 of Pub. L. 93-66; 49      your employer has advanced you
                  Stat. 647, as amended, 86 Stat. 1465,
                  1466, 1468, 1470, 1471, 1473, 1475, 87       more than was actually due, SSA
                  Stat. 154; 42 U.S.C. 1302, 1381, 1381a,      will make up the difference in bene-
                  1382, 1382a, 1832b, 1383~ and 1383, sec.     fits when the correct amount of
                  202 of Pub. L. 96-265, 94 Stat. 449; 42      your earned income credits is deter-
                  U.S.C. 1382~)                                mined by the Internal Revenue Ser-
                  [45 FR 65547, Oct. 3, 1980; 48 FR 23179,     vice (see 5 416.542 for the rules on
                  May 24, 1983; 50 FR 48574, Nov. 26,          underpayments). If your employer
                  1985; 56 FR 3212, Jan. 29, 19911             advanced less than you were actual-
                                                               ly due we will count the additional
                  9 4~~~~l~co~w                we count        amount in the quarter in which you
                              .                                receive it from Internal Revenue
                    (a) Wages. We count wages at               Service.
                  the earliest of the following points:           (d) Payments for services in a
                  when you receive them or when                sheltered workshop or activities cen-
                  they are credited to your account or         ter. We count payments you re-
                  set aside for your use. We deter-            ceive for services performed in a
                  mine wages for each month.                   sheltered workshop or work activi-
                   (b) Net earnings from self-employ-          ties center when you receive them
                  ment. We count net earnings from             or when they are set aside for your
                  self-employment on a taxable year            use. We determine the amount of
                  basis. However, we divide the total          the payments for each calendar
                  of these earnings equally among the          quarter.
                  months in the taxable year to get              (e) In-kind earned income. We
                  your earnings for each month. For            use the current market value of in-
                  example, if your net earnings for a          kind earned income for SSI pur-
lese “refunds”    taxable year are $2,400, we consider         poses. (See Q 416.1101 for a defini-
axes you have     that you received $200 in each               tion of current market value.) If
 ve earned in-    month. If you have net losses from           you receive an item that is not fully
rments along      self-employment, we divide them paid for and are responsible for the
al income tax     over the taxable year in the same unpaid balance, only the paid-up
cause of over-    way, and we deduct them only from value is income to you. (See the
me tax, (Fed-     your other earned income.             example in 5 416.1123(c))
nds made on         (c) Refunds of Federal income
  have already                                               1102, 1601, 1602,
                  taxes and advance payments by em- (Sets. and 1631, Social 1611, 1612, 1613,
  you as stated                                         1614                   Security Act, as
                  ployers made under the earned in- amended; sec. 211 of Pub. L. 93-66; 49
idvance pay-
ne tax credits    come credit provisions of the Inter- Stat. 647, as amended, 86 Stat. 1465,
tployer under     nal Revenue Coda We count pay- 1466, 1468, 1470, 1471, 1473, 1475, 87
m 3507 of the     ments advanced by your employer Stat. 154; 42 U.S.C. 1302. 1381, 1381a.
                  and refunds of Federal income tax- 1382, 1382a, 1382b, 1383~ and 1383, sec.
                                                                                               CHAPTER III
Q 416.1111                              TITLE 2bEMPLOYES’ BENEFITS

                                                                                               rules on whe
202 of Pub. L. 96-265, 94 Stat. 449; 42               (4) $65 of earned income in a            plies.
U.S.C. 1382~)                                      month;
                                                                                               (Sea 205, 223,
[45 FR 65547, Oct. 3, 1980; 48 FR 23179,              (5) Earned income you use: to pay        Social Security
May 24, 1983; 48 FR 30357, July 1, 1983;           impairment-related work expenses            302 of Pub. L. ’
50 FR 48574, Nov. 26, 19851                        described in 5 416.976, if you are          amended; 70 St
                                                   disabled (but not blind) and under          Stat. 647, as am
5 416.1112 Earned income we age 65 or you are disabled (but nyt                                1471, 1475, as
       do not count.                               blind) and received SSI as a dts-           451; 42 U.S.C.
                          W h i l e w e m u s t abled person for the month before              1382~ and 138:
   (a) General.                                                             (However, if       [45 FR 65547, C
know the source and amount of all YOU reached age 65. without ben-
                                                    your countable mcome                       May 16, 1983:
of your earned income for SSI, we efit of the exclusion exceedie;Ere                           19851
do not count all of it to determine
your eligibility and benefit amount. Federal SSI ltmtt when we can-
                                                    mine your imttal ehgbthty, we                         UNE
We first exclude income as autho- not apply this provision until your
rized by other Federal laws (see countable income without benefit of                           Q 416.112(
paragraph (b) of this section). Then this exclusion is within the Federal                          income.
we apply the other exclusions in the SSI limit,) Once you qualify for the                        Unearned
 order listed in paragraph (c) of this exclusion of impairment-related                         that is not e:
 section to the rest of your income in work expenses, you continue to be                       scribe some
 the month. We never reduce your entitled to the exclusion for all sub-                        earned incor
 earned income below zero or apply sequent consecutive m o n t h s i n                         consider all
 any unused earned income exclu- which your countable income after                             earned incon
 sion to unearned income.                            the exclusion is within the Federal       them in casl
     (b) Other Federal laws. ‘Orne SSI limit or, if applicable, the higher
 Federal laws other than the Social income limit for an optional supple-                        Q 416.112
  Security Act provide that we cannot ment which we administer for the                                 income.
  count some of your earned income State where you live. If in a subse-                            Some type
  for SSI purposes. We list the .laws quent month your countable in-                            are-
  and exclusions in the appendtx to come after the exclusion exceeds ei-
  this subpart which we update pert- ther of these limits, you no longer                            (a) Annui;
  odically.                                           qualify for the exclusion unttl YOUR      pwiodic pa]
                                                                                                income is I
       (c) Other earned income we do countable income without benefit of                        work or se
  not count. We do not count as this exclusion is again within the                              example, pr
  earned income-                                      Federal limit);
                                                                                                curity bene
       (1) up to $10 of earned income in                 (6) One-half of remaining earned       veterans be:
   a month if it is infrequent or uregu-              income in a month;                        sation, railr
   lar; that is, if you receive it only                  (7) Earned income used to meet          and unempl
   once in a calendar quarter from a any expenses reasonably attribum-                           fits.
   single source or if you cannot rea- ble to the earning of the income ?f                           (b) Alimc
   s o n a b l y e x p e c t i t . I f t h e .total you are blind and under age 65 or tf         m e n t s . For
   amount of your infrequent or irreg- you receive sSI as a blind person                         and supper
   ular earned income for a month ex- for the month before you reach age                         in-kind con
    ceeds $10, we cannot use this exclu- 65. (We consider that you “reach” a                     or all of a
    sion;                                              certain age on the day before             clothing, o
        (2) Dn to $400 per month but not particular birthday.);                                  merits may
    m&k -than ‘$1,6iO i n a c a l e n d a r               (8) Any earned income you re-          because of
    year, if YOU are a blind or didhd ceive and me to fulfill an approved                        (sometimes
    child who is a student regularly at- plan to achieve self-support if you                     an allowan
    tending school as described in are blind or disabled and under age                           the funds c
    6 416.1861;                                        65 or blind or disabled and received       spouse in c
     - (3) Any portion of the $20 month-               sSI as a blind or disabled person for      separation
     l y e x c l u s i o n i n 5 416.1124(~)(10) the month before you reached age                   (c) Divir
     which has not been excluded from 65. See 55 416.1180 through 416.-                           ties. Divic
     your unearned income in that same 1182 for an explanation of plans to                        turns on 1
     month,                                             achieve self-support and for the

rules on when this exclusion ap             as stocks, bonds, or savings ac-
plies.                                      counts. Royalties are payments to
                                            the holder of a copyright or patent.
(!$xs. 205, 223, 1102, 1612, 1614. 1631,    Royalties may also be paid to the
Social Security Act, as amended; sec.       owner of a mine, oil well, timber
302 of Pub. L. 96-265; 53 Stat. 1368. as    tract, or other resource, for extrac-
anxmled; 70 Stat. 815, as amended; 49
Stat. 647, as amended; and 86 Stat. 1468.   tion of a product. (See 5 416.-
1471, 1475, as amended; 94 Stat. 450,        1110(b) if you receive this type of
451; 42 U.S.C. 405, 423, 1302, 1382a,       income as part of your trade or
1382~ and 1383)                             business.)
[45 FR 65547, Oct. 3, 1980; 48 FR 21943,
May 16, 1983; 50 FR 48574, NOV. 26,              (d) Rents. Rents are payments
19851                                        you receive for the use of reaLny
                                             personal property such as
          UNEARNEn INCOME                    housing, or machinery. We deduc;
                                             from rental payments your ordinary
5 416.1120 What is unearned                  and necessary expenses in the same
    income.                                  taxable year. These include only
  Unearned income is all income              those expenses necessary for the
that is not earned income. We de-            production or collection of the rent-
scribe some of the types of in-              al income and they must be deduct-
earned income in 5 416.1121. We              ed when paid, not when they are
consider all of these items as un-            incurred. Some examples of de-
earned income, whether you receive            ductible expenses are interest on
them in cash or in kind.                      debts, State and local taxes on real
                                              and personal property and on motor
                                              fuels, general sales taxes, and .ex-
 8 4ktLi21 Types of unearned                  penses of managing or maintammg
                                              the property. (Sections 163, 164,
    Some types of unearned income             and 212 of the Internal Revenue
 are-                                         Code of 1954 and related regula-
    (a) Annuities, pensions, and other         tions explain this in more detail.)
 periodic paymentr. This unearned             We do not consider depreciation or
 income is usually related -to prior           depletion of property a deductible
 work or service. It includes, for             expense. - (See 9 416.1110(b) for
 example, private pensions, social se’         rules on rental income that is
 curity benefits, disability benefits,         earned from self-employment. For
 veterans benefits, worker’s compen-           example, you may be in the busi-
 sation, railroad retirement annuities          ness of renting properties.)
 and unemployment insurance bene-            (e) Death benefits. We count pay-
 fits.                                     ments you get which were occa-
     (b) Alimony and support pay- sioned by the death of another per-
  ments. For SSI purposes, alimony son except for the amount of such
  and support payments are cash or payments that you spend on the de-
  in-kind contributions to meet some ceased person’s last illness and buri-
  or all of a person’s needs for food, al expenses. Last illness and burial
  clothing, or shelter. Support. pay expenses include related hospital
  ments may be made voluntarily or and medical expenses, funeral, buri-
  because of a court order. Alimony al plot and interment expenses, and
  (sometimes called “maintenance”) IS other related costs.
  an allowance made by a court from
                                             E.tzmple: If you receive
  the funds of one spouse to the other your uncle’s life insurance$2,000 from
                                                                        policy and
   spouse in connection with a suit for you spend $900 on his last illness and
   separation or divorce.                   burial expenses, the balance, $!,?m, is
      (c) Dividends, interest, and royal- unearned-income. If you spend me en-
   ties Dividends and interest are re- tire $2,000 for the last illness and burial,
   turns on capital investments, such there is no unearned income.
                                                                                       CHAPTER III-
0 416.1121                          TITLE 2&EMPLOYEES’ BENEFITS

                                                                                       receive a retroa
   (f) Prizes and awards. A prize is     your unearned income than you ac-             benefit program
generally something you win in a         tually receive.                               gal fees connec
contest, lottery or game of chance.         (1) We include more than you ac-           are subtracted.
An award is usually something you        tually receive where another benefit          from any taxabl
receive as the result of a decision by   payment (such as a social security            the part you h
a court, board of arbitration, or the    insurance benefit) (see 5 416.1121)           personal incom
like.                                    has been reduced to recover a previ-          ment of taxes is
  (g) Gifts and inheritances. A gift     ous overpayment. You are repay-               have in getting
is something you receive which is        ing a legal obligation through the               (4) In certain
not repayment to you for goods or        withholding of portions of your ben-          consider some0
services you provided and which is       efit amount, and the amount of the            be available to :
not given to you because of a legal      debt reduction is also part of your           it actually is. (1
obligation on the giver’s part. An       unearned income. Exception: We                process,      calle
inheritance is something that comes      do not include more than you actu-            55 416.1160 thr
to you as the result of someone’s        ally receive if you received both SSI
                                         benefits and the other benefit at the            (c) In-kind in
death. It can be in cash or in kind,                                                   current market
including any right in real or per-      time the overpayment of the other
                                         benefit occurred and the overpaid             5 416.1101) of i
sonal property. Gifts and inheri-                                                      come to determ
tances occasioned by the death of        amount was included in figuring
                                         your SSI benefit at that time.                purposes. We c
another person, to the extent that                                                     tions to this r
they are used to pay the expenses of       Enzmple: Joe, an SSI beneficiary, is        through 416.114
the deceased’s last illness and buri-    also entitled to social security insurance
                                         benefits in the amount of $200 per            item that is no
al, as defined in paragraph (e) of       month. However, because of a prior            are responsible
this section, are not considered in-     overpayment of his social security insur-     the paid-up vah
come.                                    ance benefits, $20 per month is being            Ellarnple: You i
   (h) Support and maintenance in        withheld to recover the overpayment.          mobile but must I
                                         In figuring the amount of his SSI bene-       You are receiviq
kind This is food, clothing, or shel-    fits, the full monthly social security in-
ter furnished to you. Our rules for      surance benefit of $200 is included in           (d) Retroactia
valuing this income depend on your       Joe’s unearned income. However, if Joe        curity benefits.
living arrangement. We use one           was receiving both benefits when the          application for
rule if you are living in the house-     overpayment of the social security insur-     fits and retroal
hold of a person who provides you        ance benefit occurred and we then in-         security benefit
with both food and shelter. We use       cluded the overpaid amount as income,         application for
different rules for other situations     we will compute his SSI benefit on the        you also receivf
where you receive food, clothing, or     basis of receiving $180 as a social securi-   &ding federal!
                                         ty insurance benefit. This is because we
shelter. We discuss all of the rules     recognize that we computed his SI ben-        supplementary
in 59 416.1130 through 416.1147.         efit on the basis of the higher amount        your retroactiv
[56 FR 36000, July 30, 19911             when he was overpaid.                         curity benefits
                                                                                       received in tl
                                            (2) We also include more than              than reducing y
Q   4j.6.~~2~co~w we count un-           you actually receive if amounts are           quarters prior
                     .                   withheld from unearned income be-             retroactive mo
                                         cause of a garnishment, or to pay a           benefit, we wil
   (a) When we count unearned in-        debt or other legal obligation, or to
come We count unearned income                                                          tive social secl
                                         make any other payment such as                amount equal t
at the earliest of the following         payment of your Medicare premi-
points: . When you receive it or                                                       payments (inc:
when it is credited to your account                                                    m i n i s t e r e d Sl
or set aside for your use. We deter-   (3) We include less than you actu-              payments) that
mine your unearned income for       ally receive if part of the payment is             paid to you if
each month. We describe an excep    for an expense you had in getting                  benefits had b,
tion to the rule on how we count    the payment. For example, if you                   larly due rathl
unearned income in paragraph (d)    are paid for damages you receive in                 (see 5 404.4081
of this section.                    an accident, we subtract from the                  due you from
                                    amount of the payment your medi-                    cial security b
 (b) Amount considered as income. cal, legal, or other expenses con-                    duction, f o r S
We may include more or less of nected with the accident. If you
                    CHAPTER        III-SOCIAL     SECURITY ADMINISTRATION 5 416.1124

                    receive a retroactive check from a not count the balance as unearned
  in you ac-        benefit program other than SSI, le- income in a subsequent month in
                    gal fees connected with the claim which you receive it. This is be-
                    are subtracted. We do not subtract cause your social security benefits
   an you ac-
                    from any taxable une&-ned income were used to determine the amount
   ier benefit
   d security       the part you have to use to pay of the reduction. This exception to
    416.1121)       personal income taxes. The pay- the unearned income counting rule
   ler a previ-     ment of taxes is not an expense you does not apply to any monthly so.
                     have in getting income.                                   cial security benefits for a period
   are repay-                                                                  for which you did not receive SSI.
   trough the           (4) In certain situations, we may
  f your ben-        consider someone else’s income to                            (e) Veterans benefits. If you re-
  nmt of the         be available to you, whether or not ceive a veterans benefit that m-
,2u-t of your        it actually is. (For the rules on this eludes an amount paid to you be-
:e@ion: W e          process,                                        see cause of a dependent, we do not
31n you actu-        55 416.1160?~:ughd’4i%%‘.)                                count as your unearned income the
  :d both SSI            (c) In-kind income. We use the amount paid to you because of the
jeinefit at the       current market value (defined m dependent.
Of: the other         5 416.1101) of in-kind unearned in- [45 FR 65547, Oct. 3, 1980; 47 FR 4988
:h’e overpaid         come to determine its value for SSI Feb. 3, 1982; 47 FR 13794, Apr. 1, 1982;
  i n figuring                                                                  50 FR 48574,
                      purposes. We describe some excep- 20599, May 18, Nov. 26, FR 3212, Jan.            1985; 55 FR
It time.                                                                                        1990; 56
                      tions to this rule in 53 416.1131 29, 19911
be:neficiiUy, is      through 416.1147. If you receive an
ui ty insurance       item that is not fully paid for and
   )f $200 per        are responsible for the balance, only 0 4~f.~~~~t E-rd income
 92 of a prior
 security insur-      the paid-up value is income to you.
month is being            Example: You are given a $1500 autp                                      While we must
                       mobile but must pay the $1000 due on It.                    (a) General.
i his SSI bene-        You are receiving income of $500.                        know the source and amount of all
ial security in-                                                                of your unearned income for SSI,
                           (d) Retroactive monthly social se- we do not count all of it to deter.
 is included in        curity benefits. When you file an mine your eligibility and benefit
&vever, if Joe
:fits when the         application for social security bene- amount. We first exclude income
 security insur-       fits and retroactive monthly social as authorized by other Peoerai ,--...
                                            ..              ,,m--r.
                                                                                                            . 1
id we then in-         security benetits are payaoie on &at (see paragraph (b) of this section).
unt as income,         application for a period for which Then we apply the other exclusions
 benefit on the        you also received SSI payments (in- in the order listed in paragraph (c)
 a social securi-      eluding federally administered State of this section to the rest of your
s is because we        supplementary payments), we .count unearned income in the month.
ted his SSI ben-       your retroactive monthly social se- We never reduce your unearned in-
higher amount           curity benefits as unearned income come below zero or apply any un-
                        received in that period. Rather used unearned income exclusion to
e more than             than reducing your SSI payments in earned income except for the $20
! amounts are           quarters prior to your receipt of a general exclusion described in para-
ed income be-           retroactive monthly social security
lt, or to pay a         benefit, we will reduce the retroac- graph (c)(12) of this section.
Iligation, or to        tive social security benefits by an                         (b) Other Federal laws. So?e
ment such as             amount equal to the amount of SSI Federal laws other than the Social
:dicare premi-           payments (including federally ad- Security Act provide that we cannot
                         m i n i s t e r e d S t a t e s u p p l e m e n t a r y count SOme of your unearned i n .
than you actu-           payments) that we wdd not have come for ~1 purposes. We list the
;he payment is           paid to you if your social security laws and the exclusions in the ap-
lad in getting           benefits had been paid when regu- pendix to this subpart which we UP-
sample, if YOU           larly due rather than retroactively date periodically.
you receive in           (see 5 404.408b(b)). If a balance is
                          due you from your retroactive so.                          (c) Other unearned income we do
ract from the
:nt your medi-            cial security benefits after this re- not count. We do not count as un-
 expenses con-            duction, for SSI purposes we will earned income-
ident. I f y o u                                                              797
8 416.1124                                TlTLJWbEMPLOYEES'BENEFITS
                                                                                                  CHAPTER Ina          1
                                                                                                    (13) Any une:
     (1) Any public agency’s refund of on your length of residence and at-                        receive and US
taxes on real property or food;                    tainment of age 65;                            proved plan to : ~
     ( 2 ) Assistance based on need                   (8) Payments for providing foster           if you are blin ~
which is wholly funded by a State care to an ineligible child who was                             under age 65 o
or one of its political subdivisions. placed in your home by a public or                          and received SS
 (For purposes of this rule, an Indian private nonprofit child placement or                       abled person fo
 tribe is considered a political subdi- child care agency;
 _.--                                                                                             you reached ag
 vision of a State.) Assistance is                                                                 1180 through 4 1
                                                      (9) Any interest earned on exclud-
 based on need when it is provided ed burial funds and any apprecia-                               nation of plans
 under a program which USES the tion in the value of an excluded                                   port and for the
  amount of your income -as -one burial arrangement which are left to                              exclusion applic
  factor to determine your elupbihty. accumulate and become a part of
  Assistance based on need includes the separately identifiable burial                              (14) The vah
  State supplementation of Federal fund. (See 9 416.1231 for an expla-                            paid with respe
  SSI benefits as defined in Subpart T nation of the exclusion of burial as-                      under-
  of this part but does not include sets.) This exclusion from income                                (i) The Unite
  payments under a Federal/State applies to interest earned on burial                              of 1937;
  grant program such as Aid to Fami- funds or apfprtion in value of
   lies with Dependent Children under excluded                                arrangements           (ii) The Nati
   title IV-A of the Social Security Act; which occur beginning November 1,
                                                                                                     (iii) Section
        (3) Any portion of a grant, schol- 1982, or the date you first become                      and U r b a n I
   arship! -or fellowship used for pay- eligible for SSI benefits, if later.                       1965;
    ing tuition, fees, or other necessary
    educational expenses. However, we                   (10) Certain support and mainte-              (iv) Title V (
    do count any portion set aside or nance assistance as described in                              1949; or
    actually used for food, clothing, or 5 416.1157.
    shelter;                                                                                         (v) Section :
                                                         (1 I ) One-third of support pay-
         ( 4 ) F o o d w h i c h y o u o r y o u r ments made to or for you by an                   Act of 1959.
     spouse raise if it is consumed by absent parent if you are a child;                               (15) Any in
     you or your household:                                                                         left to accun
         (5) Assistance received under the &;d income in a month other                              value of an
     Disaster Relief Act of 1974 and as- +L- - IUL
                                            _ . ..,an :--ome in the form of in-kind                 purchase ag
     sistance provided under any Federal support and maintenance received                            sion from inc
     statute because of a catastrophe in the 1household of another -(see                             accrued on c
     which the President of the United 6 +,,.,,31) and income based cm
                                            .         J A,‘,,
     States declares to be a major djisas- need. Income based on need is a                          (Sets. 1102 ax
     ter. See 5 416.1150 flor a more,nce benefit that uses financial need as
                                               de-                                                  Act, as amen<
      tailed discussion of this assista               measured by your income as. a                 1383; sec. 128
      oarticularly the treatment (If in-kind factor to determine your eligibthty.                   1612(b) as am’
      support and maintenance received TL- qcv *ax...’ *I,& mn .=vrlusion does not apply to
                                                                                                     L. 97-424; se
      as the result of a major disaster; a ~--..h h.Tl.c                                             1614, and 163
                                                           ,eL151,L ,,ed on need that is total-      amended; sec.
          (6) Up to $20 of unearned income lv;or partially funded by the Federal                     Stat. 1368, as
      in a month if it is infrequent or e’overnment or b y a n o n g o v e m - .                     amended; 49 !
       irregular; that is, if you receive a &Gal agency. However, assist-                            86 Stat. 1468,
      type of income listed in 5 416.1121 ance which is based on need and                            94 stat. 450,
       only once during a calenda u quarter firm whollv by a State or one of
                                                  _U....--     ..-_--d
                                                                                                     1302, 1382a,
       from a sirrgle source or if you Can- its political SUbd ivisions is excluded                  [4 FR 65547,
       not reasonlably expect it. If the to. todly Irulll :..rr   L-- lubame as described in
                                                                                                     Dec. 8, 1982;
       tal amourtt of infrequent or irregu- 5 4161124(c)(2). If you have less                        4 8 FR 3325:
                     ned income in a month than $20 of unearned income in a    ----J :-..             57127, Dec. 2
       EL%? 20, we cannot use this ex- month and you nave earn= ,,Lorne         -_                    26, 1985; 51
        elusion;                                        in that month, we will ust: the rest          FR 19164, N
                                                             the $20 exclusion to reduce the          July 11, 1990
           (7) Periodic payments made~by a of
        State under a program establ:         ished anmmt of your countable earned                      ‘soinmigin.
        before July 1, 1973, a nd based solely income;
                  auPTER III-SOCIAL SECURITY AIMINISTIWI’ION 5 416.1130

dence and at.       (13) Any unearned income you              h&ND &JPPORT AND WCE
                  receive and use to fulfill an ap-
                  proved plan to achieve self-support         5 416.1130 Introduction.
)tiding foster
tild who was      if you are blind or disabled and              (a) GeneraL Both earned income
                  under age 65 or blind or disabled           and unearned income include items
8~ a public or
                  and received SSI as a blind or dis-         received in kind (5 416.1102). Gen-
Placement or                                                  erally we value in-kind items at
                  abled person for the month before
                  you reached age 65. See I§ 416..            their current market value and we
ed on exclud.     1180 through 416.1182 for an expla-         apply the various exclusions for
mY apprecia-      nation of plans to achieve self-sup-        both earned and unearned income.
 an excluded                                                  However, we have special rules for
                  port and for the rules on when this         valuing food, clothing, or shelter
;ch are left to
                  exclusion applies. and ’                    that is received as unearned income
 le a part of
 iable burial       (14) The value of any assistance          (in-kind support and maintenance).
 For an expla.    paid with respect to a dwelling unit        This section and the ones that fol-
 of burial as.    under-                                      low discuss these rules. In these
 rom income                                                   sections (50 416.1130 through 416..
 ed on burial       (i) The United States Housing Act         1148) the Federal benefit rate that
  in value of     of 1937;                                    applies for the purpose of valuing
 rrangements                                                  in-kind support and maintenance is
November 1,         (ii) The National Housing Act;            the rate for the month in which you
first become        (iii) Section 101 of the Housing          receive the in-kind support and
5, if later.                                                  maintenance.
                  and Urban Development Act of
                                                                Example: Joe receives an SSI benefit
and mainte-       1965;                                       which is computed by subtracting one-
lescribed i n       (iv) Title V of the Housing Act of        third from the Federal benefit rate.
                  1949; or                                    This one-third represents the value of the
                                                              income he receives by reason of the fact
1ppoi-t pay-       (v) Section 202(h) of the Housing          that he lives in the household of a son
 you by an                                                    who provides both food and shelter (in-
we a child;       Act of 1959.                                kind support and maintenance). When
                     (15) Any interest accrued on and         the SSI benefit rate is increased in Janu-
o f a n y un-                                                 ary, his SSI benefit for that month is
nonth other       left to accumulate as part of the           based on the value of the in-hind support
n of in-kind      value of an excluded burial space           and maintenance he received in Novem-
Ice received      purchase agreement. This exclu-             ber-(measured as one-third of the Feder-
.nother (see      sion from income applies to interest        al benefit rate for November).
e based on        accrued on or after April 1, 1990.            (b) How we define in-kind support
‘1 need is a                                                  and maintenance In-kind support
 ial need as      (Sets. 1102 and 1631, Social Security       and maintenance means any food,
 :ome a s a       Act, as amended, 42 U.S.C. 1302 and         clothing or shelter that is given to
 r eligibility.   1383; sec. 128 of Pub. L. 97-377 and sec.
                  1612(b) as amended by sec. 545 of Pub.      you or that you receive because
 lot apply to                                                 someone else pays for it. Shelter
 :hat is total-   L. 97424; sets. 205, 223, 1102, 1612,
                  1614, and 1631, Social Security Act, as     includes room rent, mortgage pay-
  the Federal                                                 ments, real property taxes, heating
                  amended; sec. 302 of Pub. L. 96-265; 53
  nongovem-       Stat. 1368, as amended; 70 Stat. 815, as    fuel, gas, electricity, water, sewer-
 ver, assist-     amended; 49 Stat. 647, as amended; and      age, and garbage collection services.
 I need and       86 Stat. 1468, 1471, 1475, as amended;      You are not receiving in-kind sup-
 e or one of      94 Stat. 450, 451; 42 U.S.C. 405, 423,      port and maintenance in the form
 is excluded      1302, 1382a, 1382~ and 1383)                of room or rent if you are paying
 Iescribd in      [4 FR 65547, Oct. 3, 1980; 47 FR 55213,     the amount charged under a busi-
 I have less      Dec. 3, 1982; 48 FR 21943, May 16, 1983;    ness arrangement. A business ar-
 lcome in a       48 F’R 33258, July 21, 1983; 48 FR          rangement exist [sic] when the
 ned income       57127, Dec. 28, 1983; 50 FR 48574. Nov.     amount of monthly rent required to
 lse the rest     26, 1985; 51 FR 39523, Oct. 29, 1986; 54    be paid equals the current market
  reduce the      I% 19164. May 4, 1989; 55 FR 23378,         rental values (see 5 416.1101). E-r-
 ble earned       July 11, 1990; 56 FR 1384, Jan. 14, 19921   ception: In the States in the Seventh
                    'SOiOOli@ll.                              Circuit (Illinois, Indiana, and Wis-
 .June 25, 197;                         CONGRESSIONAL RECORD - SEXATE
  negotiation process a: that time. The 18-     Import Bank stating that no additional          which the Secretary makes on behnlf of a
  month period was selected instead of a       loans will be made to the Sollet Union           St&e (or pollt1ce.l subdlvlslon thereof) that
  g-year extension as recommended by the       during that 30-day period. Many of               t h e Secretary h a s determined to b e d u e
  Board so that the committee wotid make                                                        wlT.b respect to the lndlvldual at tbe time
                                               us have been concerned about the                 the Secretary makes tbe iIrst payment of
  its substantive review prior to the end      large number of loans, the tremendous             benefiti. .4 cash edvance made pursuant to
  o: the IirsL session of the 94th Congress.   amounts of tax funds, that have been              Section 1631(a) (4) (A) shall nof be mnsid-
     In addition. it is expected that within   made available to the Soviet Union.               ered BS the drst payment of beneflts for pur-
  the next 18 months the backlog of rene-         This has been done in defiance of leg-        poses of the preceding sentence.
  gotiation cases resulting from Vletnam-      islation which already has passed the               “(3) For purposes of this subsection. the
  related procedure will be largely elim-      House of Representatives and k now be-            term lncerlm 8sslstance means assistance 5-
  inated. For essmple, the Board reports       fore the Committee on Finance.                   nanced from State or local funds and :ur-
  that the bulk of the excessive profit           Mr. President,   it seems to me that if       nlshed IOr meeting basic needs during the
  determinations made during the flrst 9                                                        period. beqinnmg with the month ln which
                                               the Senate rs being asked and lf Con-            the lndlvldual ffled an application for bene-
 months of fiscal year 1974 Fere appli-        gress is being asked to extend for 30            ata (85 defined ln pamgraph (2) ), for which
 cable to contractor fiscal years 1987-        days the life of the Export-Import Bank          he was ellglble for such benefits.
 1969.                                         so that the new legislation can be con-             “(41 In order for a State to receive rel,m-
     For the above reasons. -Mr. President,    sidered at the end of that time, then            bursement under the prOVlslon of paraqraph
 the Committee on Finance has requested        the Bank should be willing to give a letter       (1). the State shall have In effect an agree-
 that the staff of the Joint Committee on      to Congress stating that no additional           ment Wth the Secretary which shall pro-
 Internal Revenue Taxation complete its                                                         vide-
                                               funds will be made available to the So-             “(1) that l.f the Secretmy m8keS payment
 study on the renegotiation process. The       viet Union until Congress has an oppor-          to the State (or subdlvlslon of the State as
 staff of the Joint Committee is to con-       tunity to consider the full extension of         provlded for under the agreement) in retm-
 tinue their consultation with the Rene-       the Bank Act.                                    bursement for 1ntW.m aaslstnnce (8s defined
 gotiation Board staff. and make a Anal          In the interest of time I hope that            Ln paragraph (3) ) iOr any individual in 8n
 report in time for hearings to be held        whoever is handling this legislation will        a m o u n t greater t h a n the reimbursable
 well before the expiration of the act, as     contact the Export-Import Bank and               amount 8UthOrlZed b y par2graph (1). t h e
 extended by the bill.                                                                          Stste (or subdlvlslon of the State as pro-
                                               arrange for such a communication to be           vided ror under the agreement) S&811 p8y
     At the same time. the Renegotiation       sent to the manager of the bill who, in          to the lndlvldual the balance of such par-
 Board is requested to report its legisla-     turn. could read it on the floor of the          ment ln excess of the reimbursable amount
 tive recommendations early in 1975 to         Senate.                                          as expedltlously BS possible. but In any event
 give sufficient time for them to be con-        I thank the Senator from Louisiana             wlthln ten working days or 8 shorter period
sidered by the Joint Committee staff prior     for yielding.                                    specl5ed ln the agreement; and
 to the hearings. The Board is further                                                             “111) such other rules as the Secretary
 requested to continue its review of the                                                        flnds necessary to schleve ettfclent and ef-
 statutory factors used in determining ex-                                                      fectlre admlnlstratlon of thls provision and
 cessive Profits in order to clarify the       RENEGOTIATION AMENDMENTS OF                      to can-7 out the purposes of the program
 application of the factors in different                          1974                          established by thls title lncludlng protec-
                                                                                                tion of hearing rights for any lndlvldual nz-
 cases. The committee believes that this          The Senate continued with the con-            gr!eved by action taken by the Stata (or
 is very important in considering further      sideration of the bill (RR 14833) to             subdlvlslon of the State BS provided for
 legislative changes.                          extend the Renegotiation Act of 1951 for         under the agreement) pUrSU8nt to this sub-
    Although the Renegotiation Board           18 months.                                       section.
 made SeVeral recommendations to the              Mr. LONG. Mr. President, I know that             ‘*fSI The provisions of subsection (c) shall
Congress. the Committee on Finance             amendments have been proposed bp the             not be appllc8ble to any dlsngreement con-
 agreed with the House that it would be        Senator from Ohio (Mr. TAFT), the Sen-           cemlng pnyment by the Secretary to 8 State
better to consider these proposals at the      ator from Minnesota 0Mr. MONDALE), and           pursuant to the preceding provisions of this
                                                                                                subsection nor the amount retained by the
time the committee makes its compre-           the Senator from Connecticut (Mr. RIBI-          State (or subdlvlsion of the State 85 pro-
hensive review of the entire renegotiation     COW). I do not intend to resist these            rlded iOr under 8n agreement under para-
process next year.                             amendments: in fact, I wish to support           graph (4)).
    Mr. President. the bill, H.R. 14833, vas   them.                                               “(61 The provlslons of thls subrectlon shall
reported without objection by the Com-            Mr. President, on behalf of the Senator       expire on June 30. 1975. At least sixty (60)
mittee on Finance, and I urge its passage      from Ohio (Mr. TAFT). I ask that his             days prlor to such expiration date. *he Sec-
by the Senate.                                 amendment be stated.                             retary shall submit to Congress 8 report a+
    Mr. President, while we are waiting           The PRESIDING OFFICER. The                    senlng the effeCti Of 8CtlOn.g taken pursuant
                                                                                                to this sUbsectiOn. including the adequacy
for Senators t0 offer their amendments         amendment will be stated.                        a: interim aaslstance provided and the ef-
on this measure. the Senator fmm Vlr-            The assistant legislative clerk read as        Sclency 8nd effectiveness of 8dmfnlstration
ginia wishes to make a statement, and          follows:                                         of such provisions. Such report may include
I ask UIIaIIimOUs consent that I may yield        The Senatcr from Louislana (Mr. LONG).        s u c h reCOmmend8tlonS as t h e Secrerarp
to him. without prejudicing my righti          for Mr.    Taft. proposes an amendment 8~.       deems approprlste.”
to the Soor.                                   follows :
                                                  At the end of the blll insert the following      Mr. LONG. Mr. President, when an
    The PRESIDING OFFICER. Without                                                              aged, blind. or disabled individual ap-
objection, it is so ordered. The Senator       new aect1on:
                                                  SEC. -. Section 1631 of the So&l Secu-        plies to the Social Security Administra-
from Virginia is recognized.                   rity Act ls amended by adding the following      tion for supplemental security income
    Mr. HARRY F. BYRD, JR. I thank             at the end thereof:                               CSSI) benefits. a certain amount of time
the Senator from Louisiana.                       “Reimbursement to States for Interim          is needed for that Agency to determine
                                               Assistance Payments (g) (I) Notwlthstand-        his eligibility and process his claim to
                                               lng subaectlon fd) (1) and rubsection (b)
       EXPORT-IMPORT BANK                      m it relates to the payment of less than the     payment. While this processing is going
                                               mrrect amount of benefits. the Secrew            on. several States have provided 1nt.erl.m
  Mr. HARRY F. BYRD. JR. Mr. Presi-            may upon written authorlzatlon by an in-         payments to meet the basic needs of
dent. I understand that in the next day        dlvldual. withhold benefits due wlth respect     aged. blind. and disabled persons until
or so a resolution will be presented to the    to that lndlvldual and may pay to a State        their SSI checks start coming. Present
Senate to extend the Exwrt-Import              (or polltlc8l subdlvislon thereof as may be      law. however. does not provide for reim-
Bank for 30 days. The authorization ex-        agreed to bp the Secretary and the State)        bursing the States for these interim pap-
pires on June 30. and the proposal will        from the benefits withheld an amount sufE-
                                               clent to reimburse the State (or polltlcal       ments even though the State payment
be to extend it for 30 days. At the end                                                         would have been unnecessary if the SSI
of thnt time, as I understand it, a new        subdlvlslon thereof) for interim assistance
Esport-Import Bank Act til be pre-             furnished on behalf of the lndlvldual by the     claim had been processed sooner. The
                                               State (or polltlcal subdlvlslon thereof).        amendment would authorize the Social
sented to the Senate.                             “(2) For purposes of thls subsection, the
  In order to expedite the consideration                                                        Security Administration, upon authorl-
                                               term benefits means supplemental security
of the 30-day resolution, I hope that          Income benefits under thls tltle and any         zation by the individual, to withhold
whoever manages this matter will bring         State supplementary payments under Sec-          from his flrst SSI check an amount suf-
to the Senate a letter from the Export-        tlon 1616 or under Section 212 of PL. 96-66      Scienc to reimburse the State for any
      c.--- 1323-Part 16
                                         CONGRESSIONAL RECORD - SENATE                                               June 25, 1974
   interim pasments it may have made to          rangement on a voluntary basis and is           The amendment ordered to be printed
   him in lieu of SSI bentits for which he       paid any SSI owed retroactively to him        in the RECORD is as follows:
   ~85 eligible but which had not yet been       within 10 working days of its receipt by        At the end of the bill. add the following
   processed. No additional cost over Pree-      a State or local government. A June 30.       new bectlon6:
  ent law would be involved. The amend-          1975. expiration date is included so that       SEC. -. The last 6entence of   section   203
   ment is temporary, expiring on June 30,       while adopting my arrangement to pro-          (e) (2) of the Federal-State Extended un-
                                                                                               employment Compensation Act of 1970 (M
   1975.                                         vide immediate relief. Congress will con-     Bdded by Section 20 Of Public Law 93-233
      -Mr. President, this amendment is meri-    tinue to evaluate the Federal role in pro-    and amended by actlon 2 of Public Low
  torious. and the Committee on Finance         viding this type of assistance. To facili-     93-256) ls further amended by strlkinq out
   would have taken care of the item had it      tate this end. the Government would be        “1974” and lnsertlng ln lieu thereof “1976”.
   been brought before the committee.           required to report on the effectiveness of        SEC. -. Section 204(b) of the Emergency
      I ask that the amendment be agreed         this legislation and make recommenda-         UnemploFent Compensation Act of 1971
   to on behalf of the Senator from Ohio.        tions concerning it 60 days prior to its      16 amended by striking out “PG3(b) (3)” and
                                                 expiration date.                              inserting in lieu thereof “905(d) “.
      Mr. TAFT. Mr. President. I am ex-
   tremely pleased that the distinguished           This amendment is the result of hard          Mr. RIBICOFF. Mr. President. this
   chairman has seen At to support and           work on the part of administration and        amendment would extend the life of the
   accept my amendment. It should provide        American Public Welfare Association           extended benefits under the unemploy-
   relief for hundreds of thousands of our       staff officials. I believe that it will ad-   ment insurance program. This program
  aged. blind, and disabled citizens without     dress the problem in a manner which is        provides an additional 13 weeks of tm-
   increasing Federa.l income supplementa-       satisfactory enough to all concerned so       employment beneflts over and above the
   tion costs. I hope and trust that the         that it can be enacted promptly. The          26 weeks of benefits paid under the regu-
  House of Representatives will agree to         administration of emergency advances          lar program.
   allow this to happen.                         will remain at least for now a State or          When the extended benefits program
      As the chairman has explained, my          local function, but those governments         was enacted into law back in 1970. there
   amendment would allow the Federal             will now have assured reimbursement for       were two requirements for eligibility.
   Government to reimburse States and            advances to persons eligible for SSI. As a    First. the State’s insured unemployment
  local governments for emergency assist-       result, the governments will be able to        had to be at 4 percent. And. second. un-
  ance which they provide aged, blind. and       offer much expanded emergency assist-         employment had to be rising at 20 per-
  disabled individuals waiting for deter-        ance programs with minimized financial        cent over the previous 2 years. At a time
  minations of eligibility for supplemen-        risk. Most importantly. many more SSI         of increasing unemployment, most
  tary security Income.                         beneficiaries will be able to receive as-      States could participate because their
      It has become apparently already after    sistance immediately upon application          unemployment was rising at the required
  only 6 months that the lack of a viable       ror ssr.                                       20 percent.
  emergency assistance progr3m is a tragic          An extra 2 or 3 months without Gov-           In the last year. however, unemploy-
  shortcoming of the new SSI program.           ernment assistance can mean the se-            ment has leveled off-often, as in the
  While it is true that benefits are paid       verest hardship to some of our elderly,        case of Connecticut, at a relatively high
  retroactively once a determination of eli-    blind, and disabled citizens. By adopting      level.
  gibility is made. this is Or little con-      my amendment we can prevent many                 In order to allow States to continue
  solation to the potential recipient during    such cases. without even spending much         to participate in the extended beneflts
  the 2 to 5 months that he sometimes           money for a change. I can see no ex-           program. Congress has temporarily
  must wait for a determination. The rood       cuse for inaction.                             waived the 20-percent requirement, most
  bills. medical bills, and other necessarv         Mr. President, on June 3 I introduced      recently in March of 1974 for a 3-month
  expenses will not wait for the Social         an amendment to the debt limit bill            period. As of June 30. 1974, however, no
  Security Administration to make its de-       which would prevent some SSI recipi-           State will be allowed to continue in the
  termination.                                  ents from being cut off food stamps in         extended program unless It meets the
     Tragically. the delays generally have      a discriminatory manner on June 30. My         20-percent requirement. My proposal
  been the longest when our disabled citi-      two amendments deal with problems re-          waives the 20-percent -requirement for
  zens are involved. They may receive im-       lated to the SSI program which must be         an additional year.
  mediate assistance which continues for        straightened out immediately, and I am            At the present time the States of Cal-
 3 months if they are determined pre-           delighted that Congress has now passed         ifornia, Delaware. Maine, Massachu-
 SU’rIPtiVelY disabled. However, this deter-    a blll which would accomplish the pur-         setts. Michigan. Minnesota, New Jersey.
 mination is made only under extremely          pose of my debt limit amendment. Sev-          New York, Gregon, Pennsylvania, Rhode
 Iimlted circumstances. such as cases or        eral other problems have developed In          Island, Vermont, and Washington are
 double amputees. paraplegics, or those         this program and I am now considering          paying beneflts under the extended pro-
 who are obviously blind. Other “pre-           legislation to deal with them.                 gram. Connecticut has been eligible to
 sumptively eligible” citizens map receive         In the meantime. however. I hope that       pay entended beneflts since late Feb-
 onlg a one-time advance or $100. which         the Congress will not fail to take Anal        ruary, but the State legislature has failed
 is available only upon determinations          action upon this amendment. The Sen-           te enact the enabling legislation neces-
 that they face financial emergencies.          ate’s action today is a fine start.            sary to permit an additional 13 weeks of
     The Social Security Administration             The PRESIDING OFFICER. Does the            benefits.
 has made the argument that State and           Senator yield back his time?                      If my proposal is adopted. the rollow-
 local governments should administer any            Mr. LONG. I yield back my time.            ing States will become eligible for an
 programs 0r emergency advances.                    The PRESIDING OFFICER. All time            additional 13 weeks of benefits:
     However. these governments are un-         is yielded back. The question is on               Alaska, California, Connecticut, Dela-
 derstandably reluctant to do so since          agreeing to the amendment.                     ware, Hawaii. Idaho, Maine, Massachu-
 they cannot be assured of being reim-             The amendment was aareed to.                setts, Michigan, Minnesota. Montana.
 bursed by the SSI recipient once the              Mr. RIBICOFF. Mr. President. I send         Nevada, New Jersey, New Mexico, New
 retroactive payment 0r SSI beneflts has        to the desk an amendment and ask that          York, North Dakota. Oregon, Pennsyl-
 been made. As a result, in many States         it be read.                                    vania. Puerto Rico, Rhode-Island. Utah.
 and areas the emergency assistance pro-           The PRESIDING OFFICER. The                  Vermont, Washington, and West Vir-
                                                amendment will be stated.                      ginia.
 grams are extremely inadequate.                   The assistant legislative clerk pro-           It is time to extend the requirement
     MY amendment would allow the Fed-          ceeded to read the amendment.                  that unemployment be rising at 20 per-
 eral Government to reimburse State and            Mr. RIBICOFF. Mr. President, I ask          cent. My bill allows States to change
 local governments for emergency assist         unanimous consent that further read-           their laws so that unemployed workers
 ante Payments to an SSI recipient, by          ing of the amendment be dispensed with.        can receive the additional 13 weeks of
 deducting those payments from the re-             The PRESIDING OFFICER. Without              benefits without regard to any 20-per-
 cipient’s retroactive SSI payment. Pro-        objection. it is so ordered; and, without      cent provision.
 tections are Included to insure that the       objection. t h e a m e n d m e n t will b e       In Connecticut it is impenrtive that
(SSI recipient participates in this ar-         printed in the RECORD.                         additional assistance to unemployed
  June 5, 1974                               CONGRESSIONAL RECORD - SEN ATE
  workers be Provided. In mid-April Con-           Such maslon le. accompan1ad by a provi-           section 215(l) (2) (D) fo be publlahed themin
 neccicUt   unemployment w~f estimated at          SlOn -enQiq sectlon 204(b) of the Fzmer-          by remon of such determination) the sup-
  82.000 or 5.8 percent 86 compared with           gency unemployment Compensation Act to            plementlll security beneftt rata (as d e t e r -
  79,100 or 5.7 percent In March. While            auhsUfute a reference to aectlon 9061d) of        nUned under subsection (b) ) which shall be
                                                   the Social Security Act for the referenw to       effective for the period beginning wlth the
  many of these unemployed workers are             903(b) (3). Advances from the Treasury            month following the llrst month that the
  receiving unemployment benefits over             which were made to pay the cost of emer-          lncreax (l! any) In benedte payable under
  lO.OOO 0f them exhausted their ?6 w88ks         gency beneflte would thus be repayable ln          title II becomes eEectlve under section215(1)
 of beneflk between November of 1973              the same manner as advances for the present        by reran of such decsnnlnatlon by the Sec-
 snd February of 1974.                            extended benefits program. Thus. these ad-         retary.
     Workers who exhaust their 36 weeks or        vances would be repayable from Federal On-           “(b) (1) As used in this section. the term
  benefits and still have no jobs will have       employment Tax Act funds rather than Reed          ‘supplemental security beneflt rats means
                                                  Act funds.                                         whichever oi the following IS the greater-
 no place to go except on welfare unless             To avoid the necessity for addltlonal ln-          “(A) the dollar amount9 (namely. $1.752
 ;iy legislation ls enacted. We must pro-         term extensions. we would not object to            and 82.828. referred e0 in sections 1611 (a) (1)
 ride help for workers and their ramilles         prorldlng the States the option to waive the        (A). 1811(a) (2) (A). 1811(b) (1). and 1811
 who are temporarily out of work. 2Ay bffl        120 percent lscmr wlth respect to weeks of          (b)(2)). or
 provides that help.                              unemnlovment beglnnlng b e f o r e J u l y 1.
                                                            .----~                                      “(B) the dollar amounta (referred to in
    ,Mr. President, this matter has been          1975. -                                            such sections) which were ln effect lmme-
 discmd with the Labor Department. I                 The odlca of Management and Budget ad-          dhtely prior to the most recent increaSe
                                                  vises that there ls no oblectlon to the sub-       under thls section.
 have a letter addressed to Chairman              mlsslon of this report irom the standpoint            “(2) The supplemental aecurlty benefit
 LOXG indicating that the administration          of the Admlnistratlon’s program.                   rate which shall be effective by reason or an
 accepts the l-year extension. I have                 Sincerely.                                     increase brought about by the appllcatlon or
 discussed this with the chairman and,                                PETEE J. BUXJVNAN.             subsection (a) shall he such rate, as In effect
 as I understand It, having cleared it with                               Secretary of Labor.       l.mmedlarely prior to such lncresse. plus a
 the administration, he is willing to ac-                                                            per centurn thereof equal to the per centum
                                                    -Mr. LONG. Mr. President, I have no              of increase in benefits payable under title II
 cept it.                                         objection to the amendment.
   Xr. LONG. Mr. President, I ask ~nani-                                                             brought about pursuant to section 215(l):‘.
                                                    The PRESIDING OFFICER. Do Sena-                     fc) Section 211(a) (1) (A) of PubUc Law
 mouS COnSent to h a v e p r i n t e d h t&
                                                  tors yield back their time?                        9343 (as ln effect on July 1. 1974) ls amend-
~EEc~RD a copy 0r a letter rrom the De-        Mr. LONG. I yield back my time.                      ed by striking “$878” and lnsertlng in lieu
partment of Labor which, in effect,            Mr. RIBICOFF. I yield back my time.                  thereof “an amount equal to 50 per wnw
states that the administration favors the      The PRESIDING OFFICER. All time                      ol the amount speclfled In section 1811 (a)
amendment.                                  is vielded back. The question is on agree-               (1) (A)“.
   There being no objection. the letter ing to the amendment.                                           ( d 1 Title XVI of the Social Security Act IS
was ordered to be printed in the RECORD,                                                            rurrher amended by adding lmmedlately after
as f0ilOwS:
                                               The amendment was agreed to.                         seclon 1817 (as added by subsection (b) ) the
                                              .Mr. LONG. Mr. President, on behalf                   r0u0wLng new section:
            US. D=aasrxlm 01 LABoa,         of the Senator from Minnesota (Mr.
          Washfnpton. DC., June 25, 1974.                                                           “OPERATION OF STATE SCPPLEMZNTAL PPOGmm
Eon. RuSSnL B. hN0,                         MONDALE) I send to the desk an amend-                      “S EC . 1818. (a) In order for any State
c!:arman, Committee on Ffnance, VS. Sen- ment.                                                       (other than the Commonwealth of Puerto
     ate, Woshfngton. D.C.                    The PRESIDING OFFICER. The                            Rico. Guam. or the Vlrgln Islands) Which
   DEAR %I% Cn.u~&uv: As you know, sec- amendment will be stated.                                   hk5 at anr time after December 1973 had In
tion 2 of Public L&w 93-268 suspended for a   The assistant legislative clerk proceed               effect a program of supplementation pay-
  period of 3 months the “120 percent factor” to read the amendment.                                ments described In section 1818 (a) to be
  1:: the State “on” and *‘ofY lndlcators of the     Mr. LONG. Mr. President, I ask unanl-          ellglble :or paymenti pursuant to tltle XIX.
  Federal-State extended unemployment bene-                                                         with respect to expendlturu for any calen-
  zirs progam. This factor requlres that ex- mous consent that further reading of the               dar quarter which belngs-
  tended benefits are not payable ln a State amendment be dispensed with.                              “( 1) after June 30.1975, or. if later,
  uxiess the rates of insured unemployment          The PRESIDING OFFICER. Without                     “(2) after the calendar quarter ti which
  ire at least 20 percent hlgher than they had objection, it is so ordered; and, without            eupplementatlon payments are tit made
 been In the prlor 2 years. The suspensions objection, the amendment will be printed                under such program, such State must have
 e:lacted by Congress have allowed a State in th? RECORD.                                           in effect an agreement wlth the Secretary
  :o participate voluntarily ln the program         The amendment ordered to be printed             whereby the State wlll-
 without regard to this factor. as long as ln- in the RECORD is as follows :                           “(3) continue to operate such program,
 sured unemployment ln the State l.s sufU-          At the end of the bfll. add the following
                                                                                                       “ (4) maintain. under such program, a level
 ciently hlgh. The present temporary bus- new section :                                             of benefits which (prior to appllcatlon of the
 pens:on wlll explre with respect to weeks of                                                       provlslons of paragraph (5) ) Is not lower
                                                    Sec. -. (a) Section 1611 of the Social S&u-     than the level of benefits under the program
 unemployment which begin after July 1, rlty Act (as enacted by aectlon 301 of Public
 :974.                                                                                              for the tit month that the program wan ln
                                                 Law 92403 and as In effect on July 1. 1974)
     There nppears to be general agreement la amended-                                              elect. or (U later) January 1974. and
 thzit the 120 percent factor has not operated                                                         “(5) In determmlng ellglblllty for and the
                                                    (1)       subaectlon (a) (1) (A).
 as intended. and. but for the temporary “(or. ln greater. the amount by lnsertlng
                                                         if                           determined
                                                                                                    amount oi payment to which any applicant
 waiver enacted by the Congress on four occa- ;ild;i2 section 1617) ” lmmedlately after             or recipient ls entltled under the program
 sions. would have resulted in extended bene-             .*.                                       disregard an amount of the Income. lnclud-
 3:s bemg unavailable In States with very                                                           lng income ln the form of benefits payable
                                                    ti) ln’ subaectlon (a) (2) (A). by lnsertlng    under section 1811. of such applicant or
 high rates cf lnsured unemployment, be- “ ( o r ,            grenter. t h e a
 cause such rates. high BS they were, were not under lfsection 1817)” m o u n t determined
                                                                               lmmedlately after
                                                                                                    reclplent equal to the amount, lf any, by
&c least 20 percent hlgher than they had                                                            which
been In the prior 2 years.                       “$2.828”:                                             “(A) the aggregate amount of the lncreasea
                                                    (3) ln subaectlon (b) (1). by inserting “(or.   which have occurred ln the level or supple-
    At the same time. we do not telleve that a lf greater. the amount determined under
permanent suspension of the 120 percent fac- section 1817) ” lmmedlately after “$1.762”:            mental security benefits payable under this
tor or Its repeal ls an adequate solution ta and                                                    tltie as a result or cost-of-living adfustments
questions oi unemployment insurance dura-                                                           under section 1817 (as determined under reg-
                                                    (4) ln subsection (b) (2), by lnsertlng “for.   ulatlons of the Secretary) since the fmst
:lon. Permsnent suspenslon or repenl althout lf greater, the amount determlned under wlth the problems wlth which the section 1817) ” lmmedlately after “$2.828”.               month with respect to which papnents were
ilO percent IaCtor was originally intended to                                                       made under the State program Of supple-
                                                    (b) Part A of title XVI of the Social Se-       mentation. exceeds.
deal Tould merely create other ineqnitles        curltp Act (as enacted by sectlon 301 of
and unbalances ln the system.                                                                          “IB) the aggregate amount or the ln-
                                                 Public Law 92-603) Is amended by addlng            creees over the level SpecLfled In paragraph
    A full study of duration tssues, lncludlng at the end thereof the foilowlng new section:
the adequacy of the existing trlgger mecha-                                                         (4) which have occurred In the level of
%m. 1s clearly necessary and such a study          “COST-OF--G ADJUSTMENTS IN BEN-                  benefits under such State program.
k now underway In the Department of                “Sxc. 1817. (a) Whenever the Secretary,             ‘l(b) The Secretary, In determlnlng for
Labor.                                           pursuant to section 215(i) makes a deter-          purposes of subsection (a) the level of
    In order to allow tlme for such a study and mlnatlon that a base quarter In a calendar          benefits provlded under a State supplemen-
sPProprlate Congressional conslderatlon. we year is alao a cost-or-living computation               tatlon program and the aggregate amount of
would not object at thls time ta another quarter. he shall determine and publish ln                 any increaKs ln such level. shall (after re-
temporary extension of the optlon to din-        the Federal Register (together wlth. and at        vT%vlng the program as It affects the verlous
%ard the 120 percent factor provlded that        the same time. as the material requlred by         classes and categories oi benenclarles covered
209iO                                       CONGRESSIONAL RECORD - SENATE                                                J u n e 25, 1971
thereunder)   consider the program as It af-          Mr. .MONDALE subsequently said: Mr.          aged. blind and disabled. Yet in many
fects the vast majority of benedclarles: and        President. I offer this amendment on be-
the Secretary shall not determIne that a                                                           States. a small increase in social security
State has failed tc meet the reaulrements          half of myself and my colleague from            income can render a reciplent totally in-
imposed by paragraph (4) or (5) of such            Minnesota (Mr. Hwa~~mu~).                       eligible for the medicaid Program-leav-
subsection solely because its supplementa-            LMr. President. as every American            ing that person far worse 0% in real
tion program does not meet m one or more            knows, these are times of intolerable in-      terms than before the Increase.
reSDeCts or ln the cue of one or more              flation. In the last year alone, the Con-          -Mr. President, the amendments which
closes or Categories or bened&rles. such           sumer Price Index mse by 10.2 percent.          I propose today would address these
reqUlremen%. lf the Secretary 4::ds that           All Americans are su%ering under tbls           three key problems:
the level of benefits provided under such          burden. But those who suffer most are              By proposing cost-of-living increases
program to the beneflclaries thereunder,
when such beneflclarles are viewed as a             the aged poor, the blind, and the disabled     in the SSI program to accompany such
single group. 1s not slgnlfknntly lower than       who must struggle to live on fixed in-          increases under the social security Pro-
the level which would obtain lf such re-           comes which do rdt grow as the economy          gram, my amendment would help assure
quirements were idly met in every respect           expands.                                       that social security increases are “paued
and In the case of each and every class or            No national commitment is more fun-          through” to the aged, blind and disabled;
category of beneficiaries:                         damental to the character of this Na-              By requiring States which supplement
    (e) Section 212(a) (3) (C) (1) of Public Law   tion than our promise to help these             to pass these increases through to SSI
93-66 1s amended by msertlng “(except that,
there shall not be counted so much of any          citizens toward a decent retirement.            recipients receiving supplemental pay-
such benefit for any month es ls attf!butable         And in the fall of 1972, we made major       ments, my amendment would assure that
to any increase made In the level of supple-       strides toward realizing this commit-           the beneflt of Federal cost-of-living in-
mental security income benefits pursuant to        ment. The Social Security Amendments            cresses is given to the aged, blind. and
section 1617 of such Act) ‘* immediately after     of 1972 provided for automatic cost-of-         disabled and not to treasuries of State
“Social Securltr Act”.                             living increases in the social security         government: and
    (f) The limitation imposed by section 401      program. And these amendments pro-                 By assuring simultaneous cost-of-liv-
 (a) of the Soclal Security Amendments of          vided for replacing the old and complex         ing increases in both SSI and social
1972 on the amount payable to the Secretary                                                        security, my amendment assures that
of Health. Education. and Welfare by a             program of aid to the aged, blind, and
State pursuant to its agreement or agree-          disabled with the new SSI program-a             Social Security cost-of-living increases
ments under section 1616 of the Social Se-         Federal guaranteed minimum income for           will not render the aged, blind and dis-
curity Act shall be applied without regard         the aged, blind, and disabled.                  abled ineligible for the medicaid pro-
to pnragraph (2) of such section In the case          At present the SSI program, which            gram.
or 3n amount equal to one-half or so much          went into effect last January 1. provides           .Mr. President, in his economic mes-
of the espendltures under the agreement or         a nationwide minimum income of $140 a           sage the President recommended cost-
agreements 3s are necessary !n order to en-                                                        of-living increases in the SSI program.
able the State to meet the requirements im-        month for aged, blind, and disabled
posed bp section 1618 of the Social Securlry       Americans.                                      The staff of the Pinance Committee. as-
Act or to meet the requirement imposed by             This amount will increase to $146 on         suming 10 percent inflation over the
the amendment made by subsection (e) of            July 1. This is by no means generous or         course of the next year, has estimated
thls section.                                      even adequate. And in a majority of             that the cost of this. provision would
   Amend the tltle of the bfll so as to read       States, supplementation of this basic           amount to $300 million in Ascal year
as follows: “An Act to amend Public Law            Federal payment by the States is essen-         1976. In most States. the additional re-
93-233 to extend for an addltlonal twelve                                                          quirement to pass through the cost-of-
months (untlI July 1. 1975) the ellglblllty        tial if the program is to work fairly.
of supplemental security income reclplenzs            Unfortunately, the law which estab-          living increase would not result in sub-
for food stamps, and for other purposes.”          lished the SSI program does not provide         stantial additional expenditures. The
                                                   for automatic cost-of-living increases.         States would be asked not to retain the
  Mr. LONG. Mr. President, present law             This means that when cost-of-living in-         Federal cost-of-living increase in their
provides for automatic increases in so-            creases take place under the Social Se-         own treasuries.
cial security benefits if the cost of living       curity Act. SSI payments are reduced by             In eight States-California, Hawaii.
has increased at least 3 percent during            the same dollar amount. Elderly &neti-          Massachusetts, Nevada, New Jersey, New
the prior year. Under the Mondale                  cans who are poor are effectively deprived      York. Rhode Island. and Wisconsin-
amendment. Federal SSI beneflts for                of the cost-of-living increases provided        there would be an additional cost. These
the aged. blind, and disabled would be ln-         under the Social Security Act. This is a        States have entered into an agreement
creased by the same percentage and at              form of unjustifiable cruelty which we          wlth the Federal Government under
the same time as social security benefits          cannot tolerate.                                which, in return for State payment to
whenever there is an automatic cost-of-               But simply providing !or automatic           the Federal Government of its full 1972
living increase in social security benefits.       cost-of-living increases in the SSI pro-        cost of assistance. the Federal Govem-
In addition, each State would have to              gram is not enough.                             ment assumes full responsibility for any
raise the level of income assurance which             In January of this Year there were ap-       increase in costs due to increased case-
it has established for aged, blind. and            proximately 3 million SSI recipients            load. Under present law, cost-of-living
disabled persons by the dollar amount of           throughout the Nation. And of these,            increases in these States are wholly a
the automatic cost of living increase in           nearly half were receiving supplementary         Stgte responsibility. In these States. our
the Federal SSI level. Based on the cur-            p?.yments from State government. Under          amendment imposes the new require-
rent size of the SSI rolls and assuming a          current law, Federal cost-of-living in-          ment that States increase their payment
10 percent annual rate of in%ation~in               creases are not “passed through” to these       to the aged, blind and disabled by the
1974. it is estimated that the cost of             recipients of combined Federal-State as-         amount of any Federal cost-of-living in-
automatically Increasing Federal SSI               sistance. Instead, the increased Federal         crease in the SSI program. In addition.
benefits would be roughly $300 mllllon in          payments may be retained by State gov-           our amendment provides for Federal re-
fiscal year 1976-the %rst year the pro-             ernment and used for any purpcse what-          imbursement of one-half of these addi-
posal would be effective. In most States,           soever. The two SSI increases enacted to        tional costs. Federal cost of this provi-
the requirement that the increase be                date-one which took effect January 1            sion in fiscal year 1976 has been es-
passed along to recipients would involve            and one which will take edect July l-           timated to be $75 million.
no substantial increase in the amount of            have in effect resulted in ?.dding hun-             Mr. President, I deeply regret that
beneAts being paid by a State. In eight             dreds of millions of dollars tc. the general    these “passthrough” provisions cannot
States-California. Hawaii, Massachu-                revenues of State government. With re-          be made applicable to the Federal SSI
setts, Nevada. New Jersey, New York,                spect to those aged. blind and disabled         and social security increases which nill
Rhode Island, a n d Wiscomin-there                  persons receiving State supplementary            take place on July 1. I would emphasize
would be an absolute cost to the States.            paqments. they have not in most cases           that it is within the power-and I be-,
The additional costs in these States re-            led to cost-of-living increases as the Con-      lieve it is the responsibility-of every
sulting from the amendment would be                 gress intended.                                 State to provide a cost-of-living beneflt
shared evenly by the Federal Govern-                   And there is a third problem. The             to their aged, blind and disabled citizens
ment, $75 million, and the States, $75              medicaid program provides medical care           I hope that they will do so.
 million.                                           for low-income persons including the                And I also deeply regret that the
6345a-3                             STATE AFFAIRS IN GENERAL                                                                                        553

      (6) ‘Station” means the Utah engineering ex-             course of the design, construction, and operation of                                                 Cc) the agen
    periment station, University of Utah.      1994            the pilot plant during the objective period:                                                      comment;
                                                                       (a) shall be owned by the state of Utah to the                                                (d) the agen
6345a-3.       Contract for pilot plant - Contents -                same extent as the pilot plant and production                                                comment; and
              Financing - Termination of contract.                  from it as nrovided for in Subsection 63&a-           i                                          (e) the agent
   (1) The council is authorized to enter into contracts            3(2)(e); and -                                        I
                                                                                                                                                                 ing process.
with contractors to provide for the design, construc-                  (b) shall, if patentable, be patented in a man-                                       (2) “Agency” me:
tion, and operation of a pilot plant to fulfill the pur-            ner appropriate to this ownership by the state                                        ity, commission, ir
poses of this act.                                                  and the other owners.                                 t                               sion, officer, or otl
   (2) The contracts provided for in Subsection (1)               (2) Any intellectual properties described in Subsec-    T                               other than the Leg
shall provide, among other things, for the following:          tion (1) insofar as they are so owned by the state may                                     political subdivisior
         (a) The nlans and specifications for and the          be licensed for the objective period upon such terms                                       which is authorized
                                                                                                                          i                               rules, adjudicate, j
      processes tb be used in the pilot plant must be          as are approved by the council.                     lS80
      approved by the council.                                                                                                                            grant or withhold rc
         (bj The station is to be the project engineer in                                                                 t                               perform other sirnil:
      respect to the pilot plant and is to represent the                           CHAYI’ER 46                                                            by law.
      council in respect to it. As the project engineer                                                                                                       (3) “Bulletin” me
                                                                     ADMINISTRATIVE RULE MAKING                               !
                                                                                                                                                              (4) “Code” means
      the station has the responsibility of monitoring
      performance by the contractors, gathering data                                                                                                       as compiled and or
                                                                    (Repealed by Laws 1985, ch. 156, 5 2.)                    i                            entitled “Utah Adn
      pertinent to the purpose for which the pilot plant
      is to be constructed and operated, and performing        63.46-l to 6346.13. Repealed.                                  I                               (5) “Director” me
      such administrative, accounting, and other du-
                                                                                                                              r                            sion of Administrat
      ties assigned to it in respect to the pilot plant by                                                                                                    (6) “Division” me
      the council. As compensation for its services the                           CHAPTER 46a                                 :                            trative Rules.
      station is to receive its costs, direct and indirect,                                                                                                    (7) “Effective” ml
                                                                   ADMINISTRATIVE RLJLEMAKING ACT                                                          able.
      calculated in accordance with standard account-                                                                         1
      ing procedures followed by the University of                                                                                                             (8) (a) “File” me:
                                                               Section                                                        I                                   the division as
      Utah in contracts with the United States govem-          63.46a-1.       Short title.                                   c                                       (b) “Filing dz
      ment and its agencies; and the amount to be so           63-46a-2.       Definitions.
      paid to the station is to be considered part of the                                                                                                          the document i:
                                                               63-46a-3.       When rulemaking is reouired.                       ,
      costs of design, construction, and operation of the      63-46a-4.       Rulemaking procedure. -                            ;
                                                                                                                                  1                            (9) “Order” mean:
      pilot plant.                                             63.46a-5.       Public hearings.
         (c) The contractor shall provide all funds nec-                                                                           1                        mines the legal rig1
                                                               63-46a-6.       Changes in rules.                                  7                         nities, or other inte
      essary to the design, construction, and operation        63.46a-7.       Exceptions to rulemaking procedure.                                          persons, but not a
      of the pilot plant for the objective period which                                                                             1
                                                               63-46a-8.       Repealed.                                                                        (10) “Person” me:
      are not provided by the appropriation made to                                                                                !
                                                               63.46a-9.       Agency review of rules - Schedule of                                         ship, corporation, a:
      the council for purposes of this act under Section                         filings.                                                                   tity, or public or 1
      5. To provide its portion of these funds the con-                                                                            I
                                                               63-46a-9.5.     Division of Administrative Rules cre-               7                        character other tha
      tractor may use both private and public sources,                           ated - Appointment of director.                    1                           (11) (a) “Policy” :
      but that from public sources can only be used            63-46a-10.      Division of Administrative Rules -                                                   to persons or a
      with prior approval by the council.                                                                                           +
                                                                                 Duties generally.                                                                           (i) broadi
         (d) The site for the pilot plant is subject to        63.46a-10.5.    Repeal and reenactment of Utah Ad-                  ,                                      of action, g
      prior approval by the council.                                             ministrative Code.                                f                                      cedures; or
         (e) The pilot plant and any production from it        63.46a-11.      Administrative Rules Review Com-                                                               (ii) presc:
      shall be owned by the state of Utah in the propor-                         mittee.                                                                                  ment of an
      tion that its appropriation for purposes of this- act    63.46a-11.5.    Legislative reauthorization of agency                                                    (b) A policy i:
       under Section 5 bears to the total cost of design-                        rules - Extension of rules by gover-                                               definition of a
      ing, constructing, and operating the pilot plant                           nor.                                                   .
                                                                                                                                                                 (12) “Publication”
      for the objective period. This total cost does not       63.46a-12.      Interested parties.                                                           able to the public b!
      include the cost or value of the site for the pilot      63-46a-12.1.    Judicial challenge to administrative                     .                    mary of the rule ir
      plant or tar sand feedstock for the objective pe-                          rules.                                                                          (13) “Publication
      riod.                                                    63-46a-13.      Repealed.                                                                     date of the bulletin
         (D The council shall have the exclusive right         63.46a-14.      Time for contesting a rule.                              l
                                                                                                                                                                 (14) (a) “Rule” n
       to determine when the end of the objective period       63-46a-15.      Repealed.                                                                             statement that:
       has been reached, at which time any contracts           63.46a-16.      Utah Administrative Code as official                     9                                      (i) is exp
       between the council and the contractor regarding                           compilation of rules - Judicial no-                                                      by state or 1
       the pilot plant shall terminate. The pilot plant is                        tice.                                                                                    cable law;
       then to be sold for cash pursuant to law at com-                                                                                                                        (ii) has t
       petitive bidding when the sale of the pilot plant       63-&a-1. Short title.                                                                                           (iii) impI,
       equipment is determined to be practicable by the          This act is known as the “Utah Administrative
                                                                                                                                                                            or federal 1
       council. The gross proceeds from the sale shall be      Rulemaking Act.”                           1985
                                                                                                                                                                                (iv) appli
       paid to the state but not in excess of the amount                                                                                                                    other agenc
       of the appropriation made under Section 5 plus          63-46a-2. Definitions.                                                       b

                                                                                                                                                                         (b) “Rule” inc
       an interest factor of 10% per year from the date          As used in this chapter:                                                                             peal of an exis
       of the contracts to the sale date.               lssu          (1) “Administrative record” means informa-
                                                                                                                                                                         (c) “Rule” dot

                                                                   tion an agency relies upon when making a rule
                                                                                                                                                                                (i) orders
63-45a.4. InteIIectual properties discovered or                    under this chapter including copies of:                                  ,                                   (ii) unenf
           developed - Ownership - Patenting                               (a) the proposed rule, change in the pro-                                                            (iii) inter
                                                                        posed rule, and the rule analysis form;
           - Licensing.                                                                                                                                                     the agency
  (1) To the extent not inconsistent with the patent                       (b) the public comment received and re-                          &
                                                                                                                                                                            rights of a
laws of the United States, the intellectual properties                  corded by the agency during the public com-                             I

                                                                         ment period;                                                                                        agency;
which are newly discovered or newly developed in the

                                                               STATE AFFAIRS IN GENERAL                                                    63-46a-3

n, and operation of                    (c) the agency’s response to the public                             (iv) the governor’s executive orders or
tive period:                        comment;                                                            proclamations;
State Of Utah to the                   (d) the agency’s analysis of the public                              (v) opinions issued by the attorney
ant ami production                  comment; and                                                        general’s office;
Subsection 63-&a.                      (e) the agency’s report of its decision-mak-                         (vi) declaratory rulings issued by the
                                    ing process.                                                         agency according to the provisions of
patented in a man-               (2) “Agency” means each state board, author-                            Section 63-46b-21 except as required by
sixhip by the state           ity, commission, institution, department, divi-                            Section 63-46a-3; or
                              sion, officer, or other state government entity                               (vii) rulings by an agency in adjudica-
described in Subset.          other than the Legislature, its committees, the                            tive proceedings, except as required by
ed by the state may           political subdivisions of the state, or the courts,                        Subsection 63-46a-3(6).
)d upon such terms            which is authorized or required by law to make                      (15) “Rule analysis form” means the form cre-
                 1880         rules, adjudicate, grant or withhold licenses,                    ated by the division to summarize and analyze
                              erant or withhold relief from legal obligations, or               rules.
                              i&form other similar actions or duties delegated                    (16) “Substantive change” means a change in
                              by law.                                                           a rule that affects the application or results of
EMAILING                         (3) “Bulletin” means the Utah State Bulletin.                  agency actions.                                l!I!lO
                                 (4) “Code” means the body of all effective rules
ch. 158, 8 2.)                as compiled and organized by the division and                 63-46a-3. When rulemaking is required.
                              entitled “Utah Administrative Code.”                             (1) Each agency shall:
                                  (5) “Director” means the director of the Divi-                      (a) maintain a complete copy of its current
                              sion of Administrative Rules.                                       rules; and
                                 (6) “Division” means the Division of Adminis-                        (b) make it available to the public for inspec-
                              trative Rules.                                                      tion during its regular business hours.
                                  (7) “Effective” means operative and enforce-                 (2) In addition to other rulemaking required by
                              able.                                                         law, each agency shall make rules when agency ac-
                                  (8) (a) “File” means to submit a document to              tion:
                                     the division as prescribed by this chapter.                      (a) authorizes, requires, or prohibits an action;
                                        (b) “Filing date” means the day and time                      (b) provides or prohibits a material benefit;
is required.                         the document is recorded as received by the                      (c) applies to a class of persons or another
lure.                                division.                                                    agency; and
                                  (9) “Order” means an agency action that deter-                      (d) is explicitly or implicitly authorized by
                               mines the legal rights, duties, privileges, immu-                  statute.
naking procedure.              nities, or other interests of one or more specific              (3) Rulemaking is also required when an agency
                               persons, but not a class of persons.                         issues a written interpretation of a state or federal
rles - Schedule of                (10) “Person” means any individual, partner-              legal mandate.
                               ship, corporation, association, governmental en-                (4) Rulemaking is not required when:
rtrative Rules cre-            tity, or public or private organization of any                         (a) agency action applies only to internal
nent of director.              character other than an agency.                                    agency management, inmates or residents of a
.strative Rules -                 (11) (a) “Policy” means a statement applying                    state correctional, diagnostic, or detention facil-
                                     to persons or agencies that:                                  ity, persons under state legal custody, patients
ment of Utah Ad-                               (i) broadly prescribes a future course
                                                                                                   admitted to a state hospital, members of the state
                                            of action, guidelines, principles, or pro-
                                            cedures; or                                            retirement system, or students enrolled in a state
les Review Com-                                                                                    education institution:
%&ion of agency
                        Ii                     (ii) prescribes the internal manage-
                                            ment of an agency.                                         (b) a standardized agency manual applies only
                                         (b) A policy is a rule if it conforms to the              to internal tiscal or administrative details of gov-
of rules by gover-                                                                                 ernmental entities supervised under statute;
                                      definition of a rule.

                        !                                                                              (c) an agency issues policy or other statements
                                   (12) “Publication” means making a rule avail-
                               able to the public by printing the rule or a sum-                   that are advisory, informative, or descriptive,
to administrative                                                                                  and do not conform to the requirements of Sub-

                               mary of the rule in the bulletin.
                                   (13) “Publication date” means the inscribed                     sections (2) and (3); or
                               date of the bulletin.                                                   (d) an agency makes nonsubstantive changes
    a rule.                                                                                         in a rule, except that the agency shall file all
                                   (14) (a) “Rule” means an agency’s written
                                      statement that:                                               nonsubstantive changes in a rule with the divi-
e Code as official

                                               (i) is explicitly or implicitly required             sion.
es - Judicial no-                                                                               (5) A rule shall enumerate any penalty authorized
                                            by state or federal statute or other appli-
                                             cable law;                                      by statute that may result from its violation.

                                                (ii) has the effect of law;                     (6) Each agency shall enact rules incorporating the
n Administrative                                (iii) implements or interprets a state       principles ofiaw not alreadv in its rules that are es-
               1885                          or federal legal mandate; and                   tablished bv final adiudicative decisions within 120

                          i                     (iv) applies to a class of persons or an-
                                             other agency.
                                                                                             days after the decision is announced in its cases.
                                                                                                (7) (a) Each agency may enact a rule that incorpo-

 means informa-           ;               (b) “Rule” includes the amendment or re-
                                      peal of an existing rule.
                                                                                                    rates by reference:
                                                                                                            (i) all or any part of another code, rule, or

:n making a rule                          (c) “Rule” does not mean:                                       regulation that has been adopted by a fed-
:opies of                                       (i) orders;                                               eral agency, an agency or political subdivi-
.ange in the pro-
.nalysis form;
received and re-
                          1                     (ii) unenforceable policies;
                                                (iii) internal management policies of
                                             the agency that do not restrict the legal
                                                                                                          sion of this state, an agency of another state,
                                                                                                          or by a nationally-recognized organization or
g the public com-                            rights of a class of persons or another                         (ii) lists, tables, illustrations, or similar
                                             agency;                                                       materials that are subject to frequent
           change, fully described in the rule, and are               (h) the time and place of any scheduled public               6346a-7. Exceptionr
           available for public inspection; or                      hearing;                                                         (1) All agencies shal
             (iii) lists, tables, illustrations, or similar           (i) the name and telephone number of an                      procedures of Section 6:
           materials that the director determines are               agency employee who may be contacted about the                 that these procedures
           too expensive to reproduce in the adminis-              rule;                                                                   (al cause an ir
           trative code.                                              C.0 the name of the agency head or designee                       health, safety, or
        (b) Rules incorporating materials by reference             who authorized the rule; and                                             (b) cause an in
     shall:                                                           (k) the date on which the rule may become ef-                     cause of budget !
             (i) be enacted according to the procedures            fective following the public comment period.                          ments; or
           outlined in this chapter;                            (4) A copy of the rule analysis form shall be mailed                        (cj place the ags
             (ii) state that the referenced material is       to all persons who have made timely request of the                         state iaw.
           incorporated by reference; and                     agency for advance notice of its rulemaking proceed-                    (2) (a) When findim
             (iii) define specifically what material is       ings and to any other person who, by statutory or                          regular rulemakir
           incorporated by reference and identify any         federal mandate or in the judgment of the agency,                          the agency shall
           agency deviations from it.                         should also receive notice.                                                         Ci) a copy c
        Cc) The agency shall identify any substantive           (5) Following the publication date, the agency                                    (ii) a rule 2.
     changes in the material incorporated by refer-           shall allow at least 30 days for public comment on the                            specific reasor
     ence by following the rulemaking procedures of           rule.                                                                             ings.
     this chapter.                                              (6) (a) Except as provided in Sections 63-46a-6 and            i             (b) The divisior
        Cd) The agency shall maintain a complete and               63-46a-7, a proposed rule becomes effective on                        bulletin as provic
     current copy of the referenced material -available            any date specified by the agency that is no fewer                         Cc) The agency
     for public inspection at the agency and at the                than 30 nor more than 90 days after the publica-                       as provided in St
     division.                                                     tion date.                                                                Cd) The rule bet
  (8) (a) This chapter is not intended to inhibit the                 (b) The agency shall provide written notice of                      exceeding 120 da:
     exercise of agency discretion within the limits               the rule’s effective date to the division.                             later date design
     prescribed by statute or agency rule.                            Cc) The division shall publish notice of the ef-                 (3) If the agency ix
        (b) An agency may enact-a rule creating a jus-             fective date of the rule in the next issue of the                beyond 120 days, the
     tified exception to a rule.                                   bulletin.                                      1992              the procedures of Sect
  (9) An agency may obtain assistance from the at-
torney general to ensure that its rules meet legal and        6346a-5. Public hearings.                                             6346a-8. Repealed
constitutional requirements.                           lsss     (1) Each agency may hold a public hearing on a
                                                              proposed rule, amendment to a rule, or repeal of a                     6346a-9. Agency rl
6346a-4. Rulemaking procedure.                                rule during the public comment period.                                                 filings.
  (1) Except as provided in Sections 63-46a-6 and               (2) Each agency shall hold a public hearing on a                        (1) (a) Each agent!
63-46a-7, when making, amending, or repealing a               proposed rule, amendment to a rule, or repeal of a                            five years of the I
rule agencies shall comply with:                              rule if:                                                                      five-year interva
       (a) the requirements of this section;                         (a) a public hearing is required by state or fed-                      prior to 1988 net
       Ib) consistent procedures required by other                 eral mandate;                                                               (b) At the cone
     statutes;                                                       (b) (i) another state agency, ten interested                           shall continue, 2
       (cl applicable federal mandates; and                             persons, or an interested association having                     (2) If the agency :
       (d) rules made by the division to implement                      not fewer than ten members request a public                   shall comply with the
     this chapter.                                                      hearing; and                                                  chapter.
  (2) (a) Each agency shall file its proposed rule and                     (ii) the agency receives the request in                       (3) (a) If’ the agent
     rule analysis form with the division.                              writing not more than 15 days after the pub-                         a notice of contin
       Cb) Rule amendments shall be marked with                         lication date of the proposed rule.                                  supporting reaso
     new language underlined and deleted language               (3) The agency shall hold the hearing:                                          Cbj The staten
     interlined.                                                     (a) before the rule becomes effective; and                                        (i) a conci:
       Cc) ci) The division shall publish the rule anal-             (b) no less than seven days nor more than 30                                  statutory prc
          ysis form and the text of the proposed rule in           days after receipt of the request for hearing. 1987                             enacted and
          the next issue of the bulletin. For rule                                                                                                 or require t
          amendments, only the section of the rule be-        6346a-6. Changes in rules.                                                                (ii) a sum
          ing amended shall be printed.                          (1) (a) To change a proposed rule already pub-                                    ceived after 0
             (ii) If the director determines that the rule          lished in the bulletin, an agency shall file with                               e&d persol
          is too long to publish, the director shall pub-           the division:                                                                   rule; and
          lish the rule analysis form and shall publish                     (i) a copy of the changed rule; and                                         (iii) a rea
          the rule by reference to a copy on file with                      (ii) a rule analysis form containing a de-                              tion of the I
          the division.                                                   scription of the change and the information                               agency disa,
  (3) The rule analysis form shall contain:                               required by Section 63-46a-4.                                           “,Con to the
       (a) a summary of the rule or change;                            (b) The division shall publish the rule analysis                    (4) (a) The divisic
       (b) the purpose of the rule or reason for the                form for the changed rule in the bulletin.                                statement in th
     change;                                                           (cl The changed proposed rule will become ef-                             (b) The divisil
       Cc) the statutory authority or federal require-              fective on a date specified by the agency, not less                       and publication
     ment for the rule;                                             than 30 days or more than 90 days after its publi-                         merits, provided
       Cd) the anticipated cost or savings to:                      cation.                                                                    shall be publish
             ti) the state budget;                               (2) If the rule change is nonsubstantive:                                     review deadline
             (ii) local governments; and                               (al the agency need not comply with the re-                             63-46a-9(l).
             (iii) individuals;                                     quirements of Subsection (11; and
       (e) the compliance cost for affected persons;                   (b) the agency shall notify the division of the                  6346a-9.5.   Divisic
       KI how interested persons may inspect the full               change in writing.                                                             created
     text of the rule;                                           (3) If the rule is effective, the agency shall amend                    (1) There is creatl
       (g) how interested persons may present their           the rule according to the procedures specified in Sec-                    ministrative Service
     views on the rule;                                       tion 63-46a-4.                                        1991                Rules, to be admin
                       555                                  STATE AFFAIRS IN GENERAL                                            63-46a-10.5
  r scheduled public   6346a-7. Exceptions to rulemaking procedure.                      (2) The director of administrative rules shall be ap-
                         (1) All agencies shall comply with the rulemaking             pointed by the executive director with the approval of
  e number of an       procedures of Section 63-46a-4 unless an agency finds           the governor.                                       1987
  Intacted about the   that these procedures would:
                              (a) cause an imminent peril to the public                6346a-10. Division of Administrative Rules -
  head or designee          health, safety, or welfare;                                               Duties generally.
                              (b) cause an imminent budget reduction be-                 (1) The Division of Administrative Rules shall:
  e may become ef-          cause of budget restraints or federal require-                     (a) establish all tiling, publication, and hear-
  mment period.             ments; or                                                       ing procedures necessary to make rules under
  n shall be mailed            (c) place the agency in violation of federal or              this chapter;
  ly request of the         state law.                                                         (b) record in a register the receipt of all agency
  ?making proceed-       (2) (a) When finding that its rule is excepted from                rules, rule analysis forms, and notices of effective
  by statutory or           regular rulemaking procedures by this section,                  dates;             -
  lt of the agency,         the agency shall tile with the division:                           (c) make the register, copies of all proposed
                                    (i) a copy of the rule; and                             rules. and rulemaking documents available for
  ate, the agency                   (ii) a rule analysis form that includes the             public inspection; -
  : comment on the                specific reasons and justifications for its tind-            (d) publish all proposed rules, rule- analysis
                                  ings.                                                     forms, notices of effective dates, and contmuation
  ons 63-46a-6 and             (b) The division shall publish the rule in the               notices in the bulletin at least monthly, except
  mes effective on          bulletin as provided in Subsection 63-46a-4(2).                 that the division may publish the complete text
  r that is no fewer           (c) The agency shall notify interested parties               of any proposed rule that the director determines
  Leer the publica-         as provided in Subsection 63-46a-4(4).                          is too long to print or too expensive to publish by
                               (d) The rule becomes effective for a period not              reference-to a copy on file;
  written notice of         exceeding 120 days on the date of tiling or any                    (e) comoile. format, number, and index all ef-
  division.                 later date designated in the rule.                              fective r&s in an administrative code, and peri-
  notice of the ef-       (3) If the agency-intends the rule to be effective                odically publish that code and supplements or re-
  ext issue of the     beyond 120 days, the agency shall also comply with                   visions to it;
               lss7.   the procedures of Section 63-46a-4.                      1987            (f7 publish a digest, at least monthly, summa-
                                                                                            rizing all rules and notices printed in the most
                       63-46a-8. Repealed.                                      1992        recent bulletin:
  ic hearing on a                                                                               (g) publish at least annually an index of all
  , or repeal of a     63-46a-9.      Agency review of rules - Schedule of                   changes to the administrative code and the effec-
  iod.                               filings.                                                tive date of each change;
  ic hearing on a        (1) (a) Each agency shall review every rule within                     (h) print. or contract to print. all rulemaking
  , or repeal of a          five years of the rule’s effective date and then at              publications the division determines necessary to
                            five-year intervals, except that rules effective                 implement this chapter;
   by state or fed-         prior to 1988 need not be reviewed until 1993.                      (i) distribute without charge copies of the bul-
                               (b) At the conclusion of the review, the agency               letin and administrative code to state-designated
   ten interested           shall continue, amend, or repeal the rule.                       repositories, the Administrative Rules Review
  ociation having        (2) If the agency amends or repeals the rule, it                    Committee, the Office of Legislative Research
  -equest a public     shall comply with the rulemaking procedures of this                   and General Counsel, and the two houses of the
                       chapter.                                                              Legislature;
  :he request in         (3) (a) If the agency continues the rule, it shall file                 (i) distribute without charge copies of the di-
   s after the pub-         a notice of continuation and a statement citing a                gest and index to state legislators, agencies, po-
  I rule.                   supporting reason for continuation.                              litical subdivisions on request. and the Office of
  ring:                        (bj The statement shall include:                              Legislative Research and General Counsel;
  fective; and                       (i) a concise explanation of the particular                 (k) distribute, at prices covering all costs, all
  - more than 30                  statutory provisions under which the rule is               rulemaking publications to all other requesting
  r hearing. issz                 enacted and how these provisions authorize                 persons and agencies;
                                  or require the rule;                                           (1) provide agencies assistance in rulemaking;
                                     (ii) a summary of written comments re-                   and
  already pub-                    ceived after enactment of the rule from inter-                 (m) administer this chapter and require state
  shall file with                 ested persons supporting or opposing the                    agencies to comply with filing, publication, and
                                  rule; and                                                  hearing procedures.
  rule; and                          (iii) a reasoned justification for continua-         (2) All funds appropriated or collected for publish-
  ntaining a de-                  tion of the rule, including reasons why the           ing the division’s publications shall be nonlapsing.
   le information                  agency disagrees with comments in opposi-                                                                  1994
                                   tion to the rule, if any.
                          (4) (a) The division shall publish the notice and             63-46a-10.5. Repeal and reenactment of Utah
                             statement in the bulletin.                                             Admi&trative Code.
                                (b) The division may schedule the submission              (11 When the director determines that the Utah
                             and publication of agency notices and state-               Administrative Code requires extensive revision and
                             ments, provided that no notice and statement               reorganization. the division may repeal the code and
                             shall be published more than one year after the            reenact a new code according to the requirements of
                             review deadline established under Subsection               this section.
                             63-46a-9(l).                                     1994        (2) The division may:
                                                                                               (a) reorganize, reformat, and renumber the

 division of the        63-46a-9.5. Division of Administrative Rules                         code;
                                   created - Appointment of director.                          (b) require each agency to review its rules and
 cy shall amend           (1) There is created within the Department of Ad-                  make any organizational or substantive changes
specified in Sec-       ministrative Services the Division of Administrative                 according to the requirements of Section
                        Rules, to be administered by a director.                             63-46a-6: and

63-46a-11                          STATE AFFAIRS IN GENERAL                                                    556      557
        (c) require each agency to prepare a brief sum-                   (iii) Members shall serve for two-year            committee that have
     mary of all substantive changes made by the                       terms or until their successors are appointed.       whose rules are the,
     agency.                                                             (iv) A vacancy exists whenever a commit-         (7) (a) The committee
  (3) The division may make nonsubstantive                             tee member ceases to be a member of the              review of state agen
changes in the code by:                                                Legislature, or when a member resigns from            the Legislature at c
        (a) adopting a uniform system of punctuation,                  the committee. Vacancies shall be tilled by             (b) The report sh:~
     capitalization, numbering, and wording;                           the appointing authority, and the replace-                   (i) the tindir
       (b) eliminating duplication;                                    ment shall serve out the unexpired term.                   made by the con
        (c) correcting defective or inconsistent section            (c) When the committee reviews existing                         (ii) any actioi
     and paragraph structure in arrangement of the               rules, the committee’s permanent members shall                   sponse to comm
     subject matter of rules;                                    invite the Senate and House chairmen of the                        (iii) any recor
        (d) eliminating all obsolete or redundant                standing committee and the Senate and House                      tee for legislatio
     words; and                                                  chairmen of the appropriation subcommittee that
        (e) correcting obvious errors and inconsisten-           have jurisdiction over the agency whose existing       6346a-11.5. Legislati\
     cies in punctuation, capitalization, numbering,             rules are being reviewed to participate as nonvot-                     agency ruler
     and wording.                                                ing, ex officio members with the committee.                            governor.
  (4) (a) To inform the public about the proposed                   (d) Two representatives and two senators from          (1) All grants of rulen
     code reenactment, the division shall publish in             the permanent members are a quorum for the             lature to a state agency
     the bulletin:                                               transaction of business at any meeting.                ject to the provisions o’
             (i) notice of the code reenactment;              (2) Each agency rule as defined in Section 63-46a-2          (2) (a) Except as prov
             (ii) the date, time, and place of a public     shall be submitted to the committee at the same time               agency rule that is :
           hearing where members of the public may          public notice is given under Section 63-46a-4.                     calendar year expir
           comment on the proposed reenactment of the         (3) (a) The committee shall exercise continuous                  less it has been rea
           code;                                                 oversight of the process of rulemaking.                       during its annual 1
             (iii) locations where the proposed reenact-            (b) The committee shall examine rules submit-                  (b) Notwithstand.
           ment of the code may be inspected;                    ted by each agency to determine:                              tion (l)(a), an ager
             (iv) agency summaries of substantive                                                                                        (i) the rule is
                                                                          (i) whether or not they are authorized by
           changes in the reenacted code.                              statute;                                                       era1 law or re&
        (b) To inform the public about substantive                        (ii) whether or not they comply with legis-                    (ii) a provisic
     changes in agency rules contained in the pro-                     lative intent;                                                 the agency wit
     posed reenactment, each agency shall:                                (iii) their impact on the economy and the                   thority to regu
             (i) make copies of their reenacted rules                  government operations of the state and local         (3) (a) F’rior to Janus
           available for public inspection during regu-                political subdivisions; and                              istrative Rules Re
           lar business hours; and                                        (iv) their impact on affected persons.                omnibus legislatioi
             iii) comply with the requirements of Sub                                                                           by the Legislature (
                                                                    (c) To carry out these duties, the committee
           section 63-46a-4(4).                                                                                                 sion.
  (5) The division shall hold a public hearing on the            may examine any other issues that it considers
                                                                 necessary. The committee may also notify and                       (b) The omnibus
proposed code reenactment no fewer than 30 days nor                                                                             tially in the follow
more than 45 days after the publication required by              refer rules to the chairmen of the interim com-
                                                                 mittee which has jurisdiction over a particular                state agencies are r
Subsection (3)(a).                                                                                                              lowing:“.
  (6) The division shall distribute complete copies of           agency when the committee determines that an
                                                                 issue involved in an agency’s rules may be more                    (c) Before sendin
the proposed code reenactment without charge to:                                                                                 nor for his action.
        (a) state-designated repositories in Utah;               appropriately addressed by that committee.
                                                                    (d) In reviewing the rules, the committee shall              view Committee sh
        (b) the Administrative Rules Review Commit-                                                                              nor and to the agen
     tee; and                                                    follow generally accepted principles of statutory
                                                                 construction.                                                   the committee beli
        (c) the Office of Legislative Research and Gen-                                                                          reauthorized.
     eral Counsel.                                            (4) The committee may request that the Office of
                                                            the Legislative Fiscal Analyst prepare a fiscal note             (4) The Legislature’s
  (7) The former code is repealed and the reenacted                                                                       legislation does not con
code is effective at noon on a date designated by the       on any rule.
                                                              (5) In order to accomplish its oversight functions,         the rule, nor is it adn
division that is not fewer than 45 days nor more than                                                                     evidence of legislative
90 days after the publication date required by this         the committee has all the powers granted to legisla-
                                                            tive interim committees as set forth in Section                   (5) (a) If an agency
section.                                                                                                                          not been reauthori
  (8) Repeal and reenactment of the code meets the          36-12-11.
                                                              (6) (a) The committee may prepare written tind-                     will be allowed to
requirements of Section 63-46a-9 for a review of all
                                                                 ings of its review of each rule and may include                  force and effect an
agency rules.                                        les?
                                                                 any recommendations, including legislative ac-                   rized rulemaking
63-46a-11. Administrative Rules Review Com-                      tion.                                                            the governor’s decl
            mittee.                                                 (b) The committee shall provide to the agency                 yond the expiratic
  (1) (a) There is created an Administrative Rules               that enacted the rule:                                              (b) In seeking tl
     Review Committee of six permanent members                            (i) a copy of its findings, if any; and                 submit a petition
     and four ex offcio members.                                          (ii) a request that the agency notify the               tively states:
       (b) (i) The committee’s permanent members                       committee of any changes it makes in the                             !il that the
          shall be composed of three members of the                    rule.                                                                (ii) a citatio
         Senate, appointed by the president of the                  (cl The committee shall provide a copy of its                        to make the
         Senate, and three members of the House, ap-             findings to any member of the Legislature and to                     (c) (i) If the go\
         pointed by the speaker of the House, with no            any person affected by the rule who requests a                          does exist, an
         more than two senators and two representa-                                                                                      thority to ma1
          tives from the same political party.                      (d) The committee shall provide a copy of its                        rule to be exte
             (ii) The permanent members shall con-               findings to the presiding officers of both the                          ration in the
          vene as a committee to review new agency               House and the Senate, Senate and House chair-                           on or before
          rules, amendments to existing agency rules,            men of the standing committee, and the Senate                               (ii) The dec
          and repeals of existing agency rules.                  and House chairmen of the Appropriation Sub-                             to be extende,
               556         557                                  STATE AFFAIRS IN GENERAL                                             63-46a-12.1
s-ve for two-year      I
                                committee that have jurisdiction over the agency                     necessary. and a citation to the source of the
s0r-s are appointed.            whose rules are the subject of the findings.                         agency’s authority to make the rule.
henever a commit.      i     ( 7) (a) The committee may submit a report on its                    (d) If the omnibus bill required by Subsection
  a member of the               review of state agency rules to each member of                 (3) fails to pass both houses of the Legislature,
mmber resigns from              the Legislature at each regular session.                       the governor may declare all rules to be extended
  shall be tilled by               (b) The report shall include:                               by publishing a single declaration in the Admin-
   and the replace.                     (i) the findings and recommendations                   istrative Rules Bulletin on or before April 15
  unexpired term.                     made by the committee under Subsection (6);              without meeting requirements of Subsections (b)
  reviews existing                      (ii) any action taken by an agency in re-              and cc).                                         1989
                       ,              sponse to committee recommendations; and
ent members shall
   chairmen of the                      (iii) any recommendations by the commit-          63-46a-12. Interested parties.
Senate and House       ?              tee for legislation.                   1992           (li An interested person may petition an agency
subcommittee that                                                                         requesting the making, amendment, or repeal of a
icy whose existing
                           63&a-11.5. Legislative   reauthorization of                    rule.
ticipate as nonvot-
                                    agency rules - Extension of rules by                    (21 The division shall prescribe by rule the form for
 the committee.                                                                           petitions and the procedure far their submission, con-
 two senators from     v      (1) All ~~~fortlemaking power from the Legis-               sideration, and disposition.
a quorum for the           lature to a state agency in any statute are made sub-             (3) A statement shall accompany the proposed
Y meeting.             .   ject to the provisions of this section.                        rule, or amendment or repeal of a rule. demonstrat-
n Section 63-46a-2            (2) (a) Except as provided in Subsection (b), every         ing that the proposed action is within the jurisdiction
: at the same time               agency rule that is in effect on January 1 of any        of the agency and appropriate to the powers of the
on 63-46a-4.                      calendar year expires on May 1 of that year un-         agency.
                                 less it has been reauthorized by the Legislature            (4) Within 30 days after submission of 2 petition.
ercise continuous
lemaking.                        during its annual general session.                       the agency shall either deny the petition in a writing
                                     (b) Notwithstanding the provisions of Subsec-        stating its reasons for the denial, or initiate rulemak-
nine rules submit-                                                                        ing proceedings in accordance with Section 63-46a-4.
line:                             tion (l)(a), an agency’s rules do not expire if:                                                                19%
are authorized by                           (i) the rule is explicitly mandated by a fed-
                                         eral law or regulation; or                         6346a-12.1. Judicial challenge to administra-
:omply with legis-                          (ii) a provision of Utah’s constitution vests                 tive rules.
                                         the agency with specific constitutional au-          (1) (a) Any person aggrieved by a rule may obtain
economy and the        ,                 thority to regulate.
he state and local             :3) (a) Prior to January 1 of each year, the Admin-              -iudicial review of the rule by filing a complaint
                                                                                                 wrth the county clerk in the-district court where
                                  istrative Rules Review Committee shall have                    the person resides or in the district court in Salt
acted persons.                    omnibus legislation prepared for consideration                 Lake County.
‘s, the committee                 by the Legislature during its annual general ses-                 (b) Any person aggrieved by an agency’s fail-
  that it considers               sion.                                                          ure to comply with Section 63-46a-3 may obtain
1 also notify and                    (b) The omnibus legislation shall be substan-               judicial review of the agency‘s failure to comply
 the interim com-                 tially in the following form: “All rules of Utah               by filing a complaint with the clerk of the district
over a particular                 state agencies are reauthorized except for the fol-            court where the person resides or in the district
termines that an                  lowing:“.                                                       court in Salt Lake County.
Jles may be more                      (c) Before sending the legislation to the gover-        (2) (a) Except 2s provided in Subsection (h), a per-
rt committee.                     nor for his action, the Administrative Rules Re-                son seeking judicial review under this section
B committee shall                 view Committee shall send a letter to the gover-                shall -exhaust his administrative remedies by
iples of statutory                nor and to the agency explaining specifically why               complying with the requirements of Section
                                  the committee believes any rule should not be                   63-46a-12 before tiling the complaint.
.hat the Office of                 reauthorized.                                                     (b) When seeking judicial review of a rule, the
bare a fiscal note             (4) The Legislature’s reauthorization of a rule by                 person need not exhaust his administrative rem-
                            legislation does not constitute legislative approval of               edies if
!rsight functions,          the rule, nor is it admissible in any proceeding as                            (i) less than six months has passed since
ranted to legisla-          evidence of legislative intent.                                             the date that the rule became effective and
Forth in Section               (5) (a) If an agency believes that a rule that has                       the person had submitted verbal or written
                                   not been reauthorized by the Legislature or that                     comments on the rule to the agency during
ire written flnd-                  will be allowed to expire should continue in full                    the public comment period;
and may include                    force and effect and is a rule within their autho-                      (ii) 2 statute granting r&making author-
,g legislative ac-                 rized rulemaking power, the agency may seek                          ity expressly exempts rules made under au-
                                   the governor’s declaration extending the rule be-                    thority of that statute from compliance with
de to the agency                   yond the expiration date.                                            Section 63-46a-12: or
                                       (b) In seeking the extention, the agency shall                      (iii) compliance with Section 63-46a-12
, if any; and                      submit a petition to the governor that affirma-                      would cause the person irreparable harm.
gency notify the                   tively states:                                              (3) (a) Besides the information required by the
 it makes in the                             (i) that the rule is necessary; and                   Utah Rules of Civil Procedure, 2 complaint filed
                                             (ii) a citation to the source of its authority        under this section shall contain:
ide a copy of its                         to make the rule.                                                 (i) the name and mailing address of the
egislature and to                      (c) (i) If the governor finds that the necessity                 plaintiff:
 who requests a                           does exist, and that the agency has the au-                       (ii) the name and mailing address of the
                                          thority to make the rule, he may declare the                   defendant agency;
ide a copy of its                         rule to be extended by publishing that decla-                     (iii) the name and mailing address of any
ers of both the                           ration in the Administrative Rules Bulletin                    other party joined in the action as a defen-
.nd House chair-                          on or before April 15 of that year.                            dant;
 and the Senate                              (ii) The declaration shall set forth the rule                  (iv) a copy of the rule or proposed rule, if
propriation Sub-                          to be extended, the reasons the extention is                   any;
 63-46a-13                            STATE AFFAIRS IN GENERAL
               (v) an allegation that he has either ex-          Section                                                                      probation, to actions
             hausted the administrative remedies bv com-         63-46b-1.       Scope and applicability of chapter.                          atric Security Revit
            plying with Section 63-46a-12 or met the re-         63-46b-2.       Definitions.                                                 charge, conditional 1
            quirements for waiver of exhaustion of ad-           63-46b-3.       Commencement of adjudicative pro-                            sons under its jurist
            ministrative remedies established by Sub-                              ceedings.                                  \               resolution of grievar
            section (2)(b);                                      63-46b-4.       Designation of adjudicative proceed-                         finement of, or the t
               (vi) the relief sought; and                                                                                    I
                                                                                   ings as informal - Standards -                             dents of any correcti
               (vii) factual and legal allegations support-                        Undesignated proceedings formal.           r               Hospital, the Utah S
            ing the relief sought.                               63-46b-5.       Procedures for informal adjudicative         I               or persons in the CL
         (b) (i) The plaintiff shall serve a summons and                           proceedings.                                               Division of Mental l
            a copy of the complaint as required by the           63-46b-6.       Procedures for formal adjudicative           1
                                                                                                                                              tion or parole, or jud
            Utah Rules of Civil Procedure.                                         proceedings - Responsive plead-            I
                                                                                                                                                   (d) state agency ac
               (ii) The defendants shall file a responsive                         ings.                                      :
                                                                                                                                              employ, transfer, re.
            pleading as required by the Utah Rules of            63-46b-7.       Procedures for formal adjudicative           /
                                                                                                                                              or teachers in any s
            Civil Procedures.                                                      proceedings - Discovery and sub-             1             tion, or judicial rev
               (iii) The agency shall file the administra-                         poenas.                                      ,                  (e) applications fc,
            tive record of the rule, if any, with its resnon-    63-46b-8.       Procedures for formal adjudicative             t              personnel actions v
            sive pleading.                                                         proceedings - Hearing procedure.                            its own employees, c
   (4) The district court may grant relief to the peti-          63-46b-9.       Procedures for formal adjudicative
tioner by:                                                                                                                        .            tions;
                                                                                   proceedings - Intervention.                                      (0 the issuance oi
         (a) declaring the rule invalid, if the court finds      63-46b-10.      Procedures for formal adjudicative                            under Title 35, Ch.
      that:                                                                        proceedings - Orders.                          .
               (i) the rule violates constitutional or stat-                                                                                   Safety and Health A
                                                                 63-46b-11.      Default.                                                      Utah Construction 1
            utory law or the agency does not have legal          63-46b-12.      Agency review - Procedure.
            authority to make the rule;                                                                                                        that this chapter go\
                                                                 63-46b-13.      Agency review - Reconsideration.                              menced by the emp
               (ii) the rule is not supported by substan-        63-46b-14.      Judicial review - Exhaustion of ad-
            tial evidence when viewed in light of the                                                                                          son authorized by 1:
                                                                                   ministrative remedies.                                      correctness of the c
            whole administrative record; or                      63-46b-15.      Judicial review - Informal adjudica-
               (iii) the agency did not follow proper rule-                                                                                         (g1 state agency
                                                                                   tive proceedings.                              .             ment of state fund:
            making procedure;                                    63-46b-16.      Judicial review - Formal adjudica-
         (b) declaring the rule nonapplicable to the pe-                                                                                        posal of school and i:
                                                                                   tive proceedings.
      titioner;                                                  63-46b-17.      Judicial review - Type of relief.                  t           except that this ch
         (c) remanding the matter to the agency for              63-46b-18.      Judicial review - Stay and other tem-                          final action commer
      compliance with proper rulemaking piocedures                                 porary remedies pending final dis-                           to Section 65A-1-i.
      or further fact-finding;                                                     position.                                                    chase or sale of proc
         (d) ordering the agency to comply with Section          63-46b-19.      Civil enforcement.                                             goods, or services b>
      63-46a-3:                                                  63-46b-20.      Emergency adjudicative proceedings.                            an agency of the L
         (e) issuing a judicial stay or injunction to en-        6346b-21.       Declaratory orders.                                            those contracts, or
     join the agency from illegal action or action that          63-4613-22.     Transition procedures.                               1         tions;
      would cause irreparable harm to the petitioner;                                                                                                (h) state agency z
      or                                                         6346b-0.5. Short title.                                              I          1, Article 3, Powers
         (f, any combination of Subsections (a) through            This act is known as the “Administrative Proce-                               of Financial Institu
      (e).                                                       dures Act.”                                                          i          Possession of Depot
   (5) If the plaintiff meets the requirements of Sub-
                                                                                                                                      1.         sioner; Title 7, Cha;
section (2Kb) the district court may review and act on           634613-l. Scope and applicability of chapter.                                   Depository Institur
a complaint under this section whether or not the                   (1) Except as set forth in Subsection (2), and except                        and Title 63, Char
plaintiff has requested the agency review under Sec-             as otherwise provided by a statute superseding provi-                           Immunity Act, or ju
tion 63-46a-12.                                                  sions of this chapter by explicit reference to this chap-
                                                                                                                                      r               (i) the initial detl
                                                                 ter, the provisions of this chapter apply to every                              igibility for unemF
6346a-13. Repealed.                                      1990    agency of the state and govern:                                                 determination of an
6346a-14. Time for contesting a rule.                                     (a) all state agency actions that determine the
                                                                       legal rights, duties, privileges, immunities, or
                                                                                                                                        *         tits under Title 35,
                                                                                                                                                  sation. and Title Z
   A proceeding to contest any rule on the ground of
noncompliance with the procedural requirements of
this chapter shall commence within two years of the
                                                                       other legal interests of one or more identifiable
                                                                       persons, including all agency actions tn grant,
                                                                                                                                       1.         tional ‘Disease Act,
                                                                                                                                                  a person’s unempld
effective date of the rule.                     1985                   deny, revoke, suspend, modify, annul, withdraw,                                 (i) state agency
                                                                       or amend an authority, right, or license; and                              bution or award c
63-46a-15. Repealed.                                     lSl38            (b) judicial review of these actions.
                                                                    (2) This chapter does not govern:
                                                                                                                                        I         tween government4
                                                                                                                                                  opment, or the art
 6346a-16. Utah Administrative Code as official
             compilation of rules - Judicial notice.
    The code shall be received by all the judges, public
                                                                          (a) the procedures for &king agency rules, or
                                                                       the judicial review of these procedures or rules;                t         actions;
                                                                                                                                                       (k) the issuance
 officers, commissions, and departments of the state
 government as evidence of the administrative law of
                                                                          (b) the issuance of any notice of a deficiency in
                                                                       the payment of a tax, the decision to waive penal-                1        order under Title 2
                                                                                                                                                  Medical Services S:
                                                                       ties or interest on taxes, the imposition of and                            Air Conservation .
the state of Utah and as an authorized compilation of
the administrative law of Utah. All courts shall take                  penalties or interest on taxes, or the issuance of
                                                                       any tax assessment, except that this chapter gov-
                                                                                                                                          I        Drinking Water A
                                                                                                                                                   Quality Act; Title
judicial notice of the code and its provisions.     1992                                                                                           and Hazardous WI
                                                                       erns any agency action commenced by a taxpayer
                                                                       or by another person authorized by law to contest                           Part 4, Undergrou
                    CHAPTER 46b                                        the validity or correctness of those actions;                                19, Chapter 6, Part
   ADMINISTRATIVE PROCEDURES ACT                                          (cl state agency actions relating to extradition,                         except that this cb
                                                                       to the granting of pardons or parole, commuta-                               tion commenced b)
Section                                                                tions or terminations of sentences, or to the re-                            to contest the vali$
63-46b-0.5.      Short title.                                          scission, termination, or revocation of parole or                            or order;
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               'J0U s! ,5,&T 30 6lua~puau.W spJ8puSJc; J0q87 "!"A aqJ kj paq!msaad
                qd8a%a.l8d qms u! pa8puS'Js aum[oA .~tl[[op aql II! allutlqa 8 3 0 asn83              -xa 30 aA!snl3xa) ooo'ogz$ utlqy ssal lou s! auop ssau!snq a0 ap8ur
                                                                                                      salm 3 0 atm[oA 660.123 [Snuua asoqM '(z) qdSJSSJ8d u! paqysap
               -aq v!w PUB ‘aiw vw 3 0 tr)@)soz uowas 01 Wqns sm ‘8~61                                s! qa!qM pm3 s~uawqs!~qS~sa aa!A.ras .ro I!SlaJ 30 X[aA!srq9xa pas!.rd
I’              '0s aunf uo q3!qM 'sluatuqs!lqqsa aquas a0 Ip3la.i aaotu a0 auo $0
                pas!.rdwoD s! q3!qM aS!.IdJaJUa IIS '(z) qda.rSea8d 8U!pU??JSqJ!MJoN
                                                                                                      -u103 s! q3!qM as!ad.ra)ua ue ueql .iaqlo 'as!adaaqua US s! $961
                                                                                                      '1 hrErtJqa,$ SU!UU!Baq put? ‘(palal Qa?r?aedas a m          q3!qm laAa[
                                          *a3.raumo3 a03 pampoad a0 u! paAour uaaq aA8q               IyaJ aq? me saxe? as!3xa 3 0          aayml3xa) 000’09z$ uSq$ ssal ?ou
               laql sl8!.IaJ8tu Jo 6pooB u o Suy.roM as!Maaqlo JO '8uglas 'Bu!IpuSq                   s! sa[ss 30 atunloh sso.GJ [mum asoqm ~uautqs!lqS~sa aa!Aaas au!1
                saalCo[dura .IO 'amaumo3 ~03 spooB 30 uo!yanpo.ld aql u! .IO 'a3aaumxo3
                                                                                                      -0sS8 t? s! .IO (paleJs L[a$medas am q3!qM [aAa[ [!SJaJ aql ?S saxal
                u! pa9e8ua saal('oldura a q 03 pawaap a q uoy3asqns mq.7 3 0 sasochd                  as!axa 3 0 aA!s:qaxa) ooo'oog$ uoql ssa[ 7ou s! a u o p ssauynq JO
                .103 [(Eqs kNIal8 D![qnd 8 s! qXqM af+xd.xa~ua US 3 0 saaXo[dura aq&                  ap8w sa[tX 3 0 aum~oA ~~0.1~ [L'IluUC asoqM as!.Id.ialua ut? s! '6g~~
 i;             wo!laasqns s!qJ 30 asodand aql a03 as!adaayua km 30 salss 30 awn                      ‘1~ hrnnuur qSno.:q~ ‘~961 ‘1 A.lun.lqa~ po!.rad aqy Bu!.rnp (1)
 :’             -10~ 660.18 [enuutl aq$ Bu!upJ.Iaa~ap 30 asohnd aq$ a03 papn[m! aq JOU
 ;/,            Il8qs luaurqtyqtl~sa qms 30 Sal86 aql pu8 'as+aalua US qans 30 Ja8d 8
                ao a3JaLuwoa ~03 6~008 30 uoympoad aql u! .x10 a3aaumo3 u! pafwaua
                                                                                                      pu8 ‘uosaad Xue lcq aa.tawuIo3 -703 pampoJd J O u! paAour u a a q aABq

   :I2 !
                                                                                                      1893 slr+a~w.u .lo spoo8 u o       ikty.roM as!M.laq~o .io ‘%u!llas ‘lu!lpuBq
                as!.rd.xalua u8 aq 03 paaap!suoa aq Jou 11wqs JauMo qms 30 4!mtt3 aI6
                                                                                                      saado[dwa .IO 'a3aaumo3 .103 spool 30 uo!ynpo.7d aql u! .IO aaJauIwo3
                -!pauxuri aql 30 aaqwaur Jaq$o JO 'p[!qa ‘asnods ‘?uaaed,aql ao 3oaaaql
                                                                                                      II! palJE!aua saaLo[dtua soq q3!qM as!Jdaalua u8 sueaw ,,a3aawwo3 a03
   I,’          .xau,%o aql saaXo[dtua a8lnla.I @IO SJ! 68 st?q qa!qM ~uawqs~[q8,1sa buv
                                                                                                      spool 30 uo!$mpold aql u! ao a3Jaumo3 u! paasBua as!Jdlalug,, (6)
’! I
                                              'kHIa~8 yqnd 8 30 ~~!A!JJW U8 Et! (9)
                                                                  ao !(~!3oad a03 IOU                         *asotind ssau!snq 8.103 patmo3aad say!A!Jm aq 07 pauraap aq Il8qs
                                                                                               2 LI
 ii :           JO l!Jo"d .103 palE.Iado ao a$wA!ad JO ayqnd s! (ooqm JO 'uo!?nlys             .
                                                                                                                'huai?B cyqnd 8 30 sa!l!Ayatl aq') q?!M uoyaauuo2 II! (&)
i’ j,            -II! 'Iq!dsoq yms lou .IO aaqqaqm 30 ssa[p.I88a.I) uo!y8mpa .raqs!q            :I                                                  ao ‘(v3oJd ~03 IOU SO
\ 1;                                                                                           8’
 !; /           JO uo!~rt?!ym~ u8 a0 'pmq36 hspuoaas a0 h8luauraIa '[ooqasaJd 8
                 'uaJp(ya pa?3!8 ao padd8alpu8q X[[83!sXqd 10 X[[wluaw a03 [ooqas              :.
                                                                                                      ?!3oad a03 palmado io aJEA!Jd so ayqnd s! sa!aaw JO XBMI!BJ qans
                                                                                                      qou.~o.~aqJaqM 30 ssa~pm%ta.1) XsuaSa 18301 Jo ayzls e bq uo!Jaln8aa
                 8 'uo!~nl!~suy qms 30 sas!uxaJd ayl uo ap!saJ 0qM aAjq3a3ap .10 II!           IT<    03 ?aafqns a.m aa!aaSa a0 X8Mj!Sa qans 30 saa!Alas pu8 sa?eJ aql J!
1/i              X[[tr)uaw aq$ 'pal38 aql 'ya!s aql JO aJ83 aq? u! paS8lua Xl!JEuyad           >;
                                                                                                      ‘Ja!JJ83 6nqJolour d o Xalloal Imol Jo ‘XILM~!IB a!aJDaja uaq.ln.lalu!
1 j              uo!$ncjJyur U8 'Iqidsoq 8 30 UO!JE.IadO SqJ U! paB8~US s! (g),                       JO urrqanqns 'JaaJls v 3 0 uo!luJado aq$ qyM uoyaauuoa u! (z)
   I                                                                     !qqoq .lo 'uoy        b                                                       ao ‘(1!3oad ~03 qou
I* I             -anqsuoaaJ JO uo!$ma$suo3 3 0 ssau!snq aql u! pal88ua s! ( p )                       JO  1!3oad a03 pa$EJadO a0 a)8A!Jd ao D!lqnd s! Iooqas JO 'uo!?n~!~s
                                                                               ! SJ!SlqEJ      !$     -u! '[q!dsoq qms 'Jou Jo aaq?aqM 30 SSalpa8i?aa) UO!J83npa .laq&q
0nji             a0 myqlo13 dU!J!EdaJ a0 ?Ju!uaaIa 9u!aapun81 u! pal88ua s! (6)                       30 uo!lrtJ!?su! US a0 '[ooqw hSpuo9as Jo Xasluawala '[ooqasaad S
    I II iI                                                        !(pap?qS rC[aJUJEdaS               'uaJp[!qD pa?3!8 JO paddmpuuq X[[m!sXqd JO 1CllSluaur "03 potp
                                                                                                      8 'uoyn~ysu! qms 30 sas!uraJd aql uo ap!saa 0qM aag3a3ap JO II!
     I/  yqq~ laAa[ I!8laJ: aqq ~8 sax81 as!axa 30 aysnl3xa) oog'zgg$
 1.IIt ’ Ii’
         1                           sauvawm uofm uwd                                8 ‘V3
                                                                                               &      8 “I3                             ?IofIv1
                                                                                                                                                                    COZ 6 6Z
               EOZ     9   6Z
                                                                                                                                                       29 §203

NOTES OF DECISIONS                                                        (e)(l) Except as provided in paragraphs (2), (3), and (4) the term “employee” means
Rt of mini-        ployee may enforce his‘ or her’ rieht to ron~tlv      any individual employed by an employer.
                   computed overtime ivages by FLSA action. Va-
le minimal         din0 v. A. Valey Engineers, CA.3 (Pa.) 1990,903         (2) In the case of an individual employed by a public agency, such term means-
h, efficien-       F2d 2%
Scribe cer-                                                                                     [See main volume for text of (A) and (B)]
                    By enactment of this chapter Congress in-
conditions.       tended to achieve a uniform national policy of                                                                                                          ‘: i
!4 FSupp.         guaranteeing compensation for all work or em-                (C) any individual employed by a State, political subdivision of a State, or an            ;,:
                  ployment engaged in by covered employees and               interstate governmental agency, other than such an individual-                                :.
fmm sub-          any custom or contract falling short of that basic                 (i) who is not subject to the civil service laws of the State, political
                  @ICY cannot be utilized to deprive emplovees of                 subdivision, or agency which employs him; and
                  their stdutory rights. Lerwill v. Inflight Me
!ct all co”-      km Pictures, Inc., C.AXal.1978, 582 F2d 507.                       (ii) who-
s paid to
tiond La-
                     21. Persons protected                                                      [See main volume for text of (I) and (II)]
                       Lerwill v. Itight Services, Inc., 379 F.Supp.
wm, 1983,            690 [main volume] affirmed 582 F2d 507.                              (III) is appointed by such an officeholder to serve on a policymaking            1
pter is to
                       It would be contrary to congressional intent to                 level,
                    permit an employer who exercises substantial
ception of          control over a worker, but whose hiring deci-                         (IV) is an immediate adviser to such an officeholder with respect to the
‘ce should          sions occasionally may be subjected to a third                     constitutional or legal powers of his office, or
let&ion in
nder sub-
                    party’s veto, to escape compliance with this                          (V) is an employee in the legislative branch or legislative body of that
                    chapter. Carter v. Dutchess Community Col-
!ans Fire-          lege, C.A.N.Y.1984, 735 F2d 8.                                     State, political subdivision, or agency and is not employed by the legisla-
of City of
                       This chapter was intended to protect compli-
                                                                                       tive library of such State, political subdivision, or agency.
                   ant employers and their employees as well as
                   underpaid employees. International Ladies’                                        [See main volume for text of (3)]
ivities of         Garment Workers’ Union v. Donovan, 1983, 722
.ed inter-         F2d 795, 232 U.S.App.D.C. 309.                          (4)(A) The term “employee” does not include any individual who volunteers to
I rational             Night watchmen, who, in addition to patrolling    perform services for a public agency which is a State, a political subdivision of a State,
ts powers          estate buildings and grounds, mended tools            or an interstate governmental agency, if-
io domes-          called repairmen to fi appliances, watched                   (i) the individual receives no compensation or is paid expenses, reasonable
.C.Puerto          grandchildren, and answered telephone, were
                   “employees in domestic service,” and thus were             benefits, or a nominal fee to perform the services for which the individual volun-
                   covered by this cliapter. Marshall v. Rose,                teered; and
                   CA.S.C.1980, 616 F.2d 102.                                   (ii) such services are not the same type of services which the individual is
gress in-
 policy of
                      In performing its analysis to determine                 employed to perform for such public agency.
                  whether an individual is an employee or an
k or em-          independent contractor for purposes of Fair La-           (B) An employee of a public agency which is a State, political subdivision of a State,
vered by          bor Standards Act, court is guided by six crit,e-       or an interstate governmental agency may volunteer to perform services for any other
tion Pic-         riaz nature and degree of alleged employer’s            State, political subdivision, or interstate governmental agency, including a state, political
                  control as to manner in which work is to be             subdivision or agency with which the employing State, political subchvlslon, or agency
                 performed, alleged employee’s opportunity for
                 profit or loss depending upon his managerial             has a mutual aid agreement.
cr is to         skill, alleged employee’s investment in equip
k among          ment or materials required for his task, or his                                   [See main volume for text of (jl to fl)]
I to work
                 employment of workers, whether service ren-
Iamburg          dered requires a special skill, degree of perma-            (m) ‘Wage” paid t.n any employee includes the reasonable cost, as the
I.               nency and duration of working relationship, and          Administrator to the employer of furnishing such employee with board, lodgmg, or
                 extent to which service rendered is an integral          other faciliti&, if such board, lodging, or other facilities are customarily furnished by
e of this        part of alleged employer’s business; court may           such employer tn his employees: Provided, That the cost of board, lodging, or othyr
mnem             not make its determination based on one partic-          facilities shall not be included as a part of the wage paid to any employee to the extent It
 of mini-        ular factor. but rather must look to all the             ls excluded therefrom under the terms of a bona fide collective-bargaining agreement
                 circumstances of the work activity. Dole v.
                Amerilink Corp., E.D.Mo.1990, 729 F.Supp. 73.             applicable to the particular employee: Pnwided fiLtiher, That the Secretary is autho-
workers,                                                                  rized to determine the fair value of such board, lodging, or other facilities for defined
ate com-             “Domestic service employee,” wiithin 1974
sition of       amendment to this section to include such em-             classes of employees and in defined areas, based on average cost to the employer or to
Harshall        ployees within this chapter’s coverage, means             groups of employers similarly situated, or average value to groups of employees, or
380, 621        employee who performs home-related noncom-                other appropriate measures of fair value. Such evaluations, where applicable and
                mercial labor in private family homes and whose           pertinent, shall be used in lieu of actual measure of cost in determining the wage paid to
                work. but for the availability of outside paid help       any employee. In determining the wage of a tipped employee, the amount paid such
                and the economic means of the homeowner to                kmployee by his emplover shall be deemed to be increased on account of tips by an
ar rate”        compensate the same. would be done, by tradi-
r Labor         tion and necessity, in every household by mem-            amount determined by &e employer, but not by an amount in excess of (1) 45 percent of
lot con-        bers of that family unit. Marshall v. Cordero.            the applicable minimum wage rate during the year beginning April 1, 1990, and (2) 50
mt. em-         D.C.Puerto Rico 1981, 508 F.Supp. 324.                    percent of the applicable minimum wage rate after March 31, 1991, except that the
                                                                          amount of the increase on account of tips determined by the employer may not exceed
                                                                          the value of tips actually received by the employee. The previous sentence shall not
                                                                           apply with respect to any tipped employee unless (1) such employee has been mformed                     I
                                                                           by the employer of the provisions of this subsection, and (2) all tips received by such             i
dme for text of (a) to (d)]                                                emnlovee have been retained by the employee, except that this subsection shall not be
           62                                                                                                                                                                      !
2 9 §205                               LABOR                                      Ch. 8      Ch. 8               FAIR LABOR
sented on commlttee. or at least a mnjor- for committee declslon. Red Star Mfg.                  wage rate applicable under th,
lty of members of committee from the Co. v. Grimes, C.A.D.C.lQSI, 221 F.2d 524,
south which had a mathematical prepon- 95 U.S.App.D.C. 244.                                     Administrator, or his authoriz
derance in textile industry, where 9 of                                                         er to make such regulations c
t h e 2 1 m e m b e r s o f a committee w e r e S. Valldlty of o r d e r s                      propriate to carry out any of
from the south, Administrator could con-            An order of Administrator appolnting
elude that 5 others fairly represented the an industry committee for the textile in.            including the power without li!
south, and record disclosed that lowest dustry was not void because of changes                  going, to define any operation
wage scale prevailed in the southern in definitlon of industry made after ap-                   by such home work employee
mills. and a selection of committee, ma- pointment, since it is to advantage of ad-
jority of whose members represented a ministration of this chapter that com-                    Islands; to establish minimum
low wage locality, would tend to defeat pleteness and accuracy of definition                    occupation so defined; to pre
purposes of this chapter which was in- should be reexamined and definition re-
tended to protect interests of employers vised with the ald of committee at any                 for ascertaining and promulgat
and employees of mills in other localities time before report is submitted to the               scribe standards for employer
which competed with the low wage scale Administrator, Opp Cotton Mills v. Ad-                   portion or class of employees v
 mills. Id.                                        ministrator of Wage and Hour Division
                                                   of Department of Labor, llM1, 6 1 S.Ct.
                                                                                                minimum hourly wage rate ;
4. Yalldlty of reports                             524, 312 U.S. 126. 65;. E5 L.Ed. 624.        er” ; and to prescribe the cc
  Resignations of two of nine members           In determining validity of wage order           agents, contractors, and subco
of Puerto Rican pearl button and buckle       made by Administrator on recommenda-              produced by home workers;
industry committee before its report, ap-     tion of industry committee for textile in-
proved by all members, recommending          dustry, it was immaterial that substitutes            (3) if such employee is empl
minimum wage increase In industry, was        were appointed for IKO members of com-            the rate or rates provided by
signed and filed with Administrator, did      mittee in course of its deliberations,
not affect validity of report, in riew of     where it did not appear that substitutes          of this section, not less than
provisions of this section that 5 of mem-     did not consider the evidence taken and           the Secretary of Labor in act
bers should constitute quorum and that        the proceedings had before their appoint-
only majority of members was required         ment to the committee. Id.                        a special industry committee
                                                                                                point in the same manner and
                                                                                                are applicable to the special
8   206.      wmum w a g e                                                                      Puerto Rico and the Virgin I:
                                                                                                from time to time. Each su(
  Employeem engaged In commeree~ home worker8 in Puerto RICO and Vlr~~ln
    Islandal crnph~ee~ In Amerlean Samoan mmnen OII Amerlean VemmelBl                           powers and duties and shall ;
                           agricultural employee8                                               spect to the application of 1
    (a) Every employer shall pay to each of his employees who in any                            employees employed in Amer
 workweek is engaged in commerce or in the production of goods for                              industry committees establish
 commerce, or is employed in an enterprise engaged in commerce or in                            with respect to employees ernr
 the production of goods for commerce, wages at the following rates:                            Islands. The minimum wage
                                                                                                teed the rate prescribed in pal
          (1) not less than $2.65 an hour during the year beginning
       January 1, 1978, not less than $2.90 an hour during the year                                (4) if such employee is em1
       beginning January 1, 1979, not less than $3.10 an hour during the                        vessel, not less than the rate
       year beginning January 1, 1980, and not less than $3.35 an hour                          for the period covered by the
       after December 31, 1980, except as otherwise provided in this                            pensation at the hourly rate r
       section ;                                                                                subsection for all hours during
                                                                                                duty (including periods aboa
          (2) if such employee is a home worker in Puerto Rico or the
       Virgin Islands, not less than the minimum piece rate prescribed                          watch or was, at the directio
                                                                                                work or standing by, but not : ’
       by regulation or order; or, if no such minimum piece rate is in
                                                                                                provided pursuant to the emr 1
       effect, any piece rate adopted by such employer which shall yield,
       to the proportion or class of employees prescribed by regulation                             (5) if such employee is en 1
       or order, not less than the applicable minimum hourly wage rate.                          the minimum wage rate in efft ,
       Such minimum piece rates or employer piece rates shall be com-                            ber 31, 1977.                 I
       mensurate with, and shall be paid in lieu of, the minimum hourly
  29 $203                                                                                LABOR
  construed to prohibit the pooling of tips among employees who customarily and
  regularly receive tips.                                                                                                           HISTORICAL Ah?, STATUTORY NOTES
                                                                                                                                                           Effective Date of 1985
                             LSee main volume for text of h) to (q)]                                1989 Amendment
                                                                                                                                                               @ion of Regulation
                                                                                                        Subset, cm). Pub.L. 101-157, § 5, substituted
     (r)(l) “Enterprise” means the related activities performed (either through unified             “m excess of (1) 45 percent of the applicable              Section 6 of PubL.
  operation or common control) by any person or persons for a common business purpose,              minimum wage rate during the year beginning            “The amendments mad
  and includes all such activities whether performed in one or more establishments or by            April 1, 1990, and (2) 50 percent of the apphc;t;      sections 203,207, and 2.
                                                                                                                                                           big provisions set out
  one or more corporate or other organizational units including departments of an                   ble minimum wage rate after March 31, 1991,
                                                                                                                                                           203, 207, 215, and 216
  establishment operated through leasing arrangements, but shall not include the related            for “in excess of 40 per centum of the applicable
                                                                                                                                                           effect, April 15, 1986.
  activities performed for such enterprise by an independent contractor. Within the                 minimum wage rate,” in the third sentence.
                                                                                                                                                           shall before such date
  meaning of this subsection, a retail or service establishment which is under independent               Subset. (r). Pub.L. 101-157, 5 3(d), designat-    tions as may be reql
                                                                                                    ed the first of the two existing sentences com-
  ownership shall not be deemed to be so operated or controlled as to be other than a               prising subsec. (r) as par. (l), in par. (1) as SO
  separate and distinct enterprise by reason of any arrangement, which includes, but is              designated made a separate sentence out of the        Presemation of Cow
  not necessarily limited to, an agreement (A) that it will sell, or sell only, certain goods        existing proviso and redesignated clauses (l),             Section 3(b) of Pub.
 specified by a particular manufacturer, distributor, or advertiser, or (B) that it wili join        (2). and (3) as (A), (B), and (C), respectively,           “(1) In General.-
 with other such establishments in the same industry for the purpose of collective                   designated the second of the two existing sen-         March 31,1990, was s
 purchasing, or,(C) that it will have the exclusive right to sell the goods or use the brand         tences comprising subset. (r) as par. (2), in par.     the Fair Labor Stand;
 name of a manufacturer, distributor, or advertiser within a specified area, or by reason            (2) as so designated redesignated existing pars.       206(a)(l) ) [section 2’
 of the fact that it occupies premises leased to it by a person who also leases premises to          (l), (2). and (3) as subpars. (A), (B), and (C),       that because of the ar:
                                                                                                     respectively, and, in subpar. (A) as so redesig-
 other retail or service establishments.                                                             nated, substituted “school is operated” for
                                                                                                                                                            tion (a) [amending su
                                                                                                                                                            not subject to such s
    (2) For purposes of paragraph (l), the activities performed by any person or                     “school is public or private or is operated”.
                                                                                                                                                                    “(A) pay its en
 persons-                                                                                                 Subset. (s). Pub.L. 101-157, 8 3(a), completely       minimum wage in (
          (A) in connection with the operation of a hospital, an institution primarily                revised the “enterprise test” embodied in this             March 31, 1990;
                                                                                                      subsection so as to increase the dollar threshold
       engaged in the care of the sick, the aged, the mentally ill or defective who reside on         for most small enterprises to a uniform %QWOQ
                                                                                                                                                                    “(B) pay its en
       the premises of such institution, a school for mentally or physically handicapped or           in gross annual sales ubile eliminating several of
                                                                                                                                                                 section 7 of such
                                                                                                                                                                 207 of this title];
       gifted children, a preschool, elementary or secondary school, or an institution of             the existing separate tests, allowing existing                 “(C) remain sI
       higher education (regardless of whether or not such hospital, institution, or school is        provisions regarding public agencies, hospitals,           Act (29 U.S.C. ‘7:
       operated for profit or not for profit), or                                                     schools, and family businesses to remain un-
                                                                                                       changed, and continuing the wage, overtime, and           “(2) Violations.-
          (B) in connection with the operation of a street, suburban or interurban electric            child labor protections for workers previously        (1) shah be conside!
       railway, or local trolley or motorbus carrier, if the rates and services of such railway        covered.                                              or j2 of the Fair I
       or carrier are subject to regulation by a State or local agency (regardless of                                                                        [section 206,207, 0~
       whether or not such railway or carrier is public or private or operated for profit or           1983 Amendment                                        may be.”
       not for profit), or                                                                                 Subset. (e)(l). Pub.L. 99-150, § 4(a)(l), sub-    Exclusion From (
                                                                                                       stituted “paragraphs (2), (3), and (4)” for “para-
          (0 in connection with the activities of a public agency, shall be deemed to be               graphs (2) and (3)“.                                       Nothing in the ;
       activities performed for a business purpose.                                                                                 Pub.L. 9%X0, § 5,         1@2j9 [see She
                                                                                                           Subset. (eK?)(CXi).                                note under sectio:
    (s)(l) “Enterprise engaged in commerce or in the production of goods for commerce”                 struck out “or” at the end of subcl. (III), struck     to be construed
 means an enterprise that-                                                                             out “who” in subcl. (IV), substituted “, or” for       section 906 Of PI
         (A)(i) has employees engaged in commerce or in the production of goods for                    the neriod at the end of subcl. (IV), and added        this section] to ub
                                                                                                        subci. 0.
      commerce, or that haa employees handling, selling, or otherwise working on goods                      Subset. (e)(4). Pub.L. 99-W § 4(a)(2), add-
                                                                                                                                                              financial assistant
      or materials that have been moved in or produced for commerce by any person;                                                                            fore Mar. 22, 1:
                                                                                                        ed subset. (e)(4).                                     100-259, hlar. 2%
      and                                                                                                                                                     note under sectic
         (ii) is an enterprise whose annual gross volume of sales made or business done is              1971 Amendment
                                                                                                                                                               Effect of Amenc
      not less than $500,000 (exclusive of excise taxes at the retail level that are                        Subset. (m). Pub.L. 95-151. 5 3(b)(l), sub
                                                                                                                                                                  on Public Age
      separately stated);                                                                               stituted “45” for “50” , effective Jan. 1, 19iQ.
                                                                                                            Pub.L. 95-151, 8 3(b)(2), substitutea “40” for        Employee Co
         (B) is engaged in the operation of a hospital, an institution primarily engaged in             “45”, effective Jan. 1, 1980.
                                                                                                                                                                  ment Policy
      the care of the sick, the aged, or the mentally ill or defective who reside on the                                                                          Amendment i
                                                                                                            S&.i~n 3(b)(l) of Pub.L. 9X51 provided m
      premises of such institution, a school for mentally or physically handicapped or                   part that the amendment to subset. (m) of t.his
                                                                                                                                                               liability of pub?
      gifted children, a preschool, elementary or secondary school, or an institution of                 section by section 3(b)(l) of Pub.L. 95-161 is
                                                                                                                                                               violation occurs
      higher education (regardless of whether or not such hospital, institution, or school is            effective Jan. 1, 1979.
                                                                                                                                                               section 7 of PL
                                                                                                                                                               under section 2
      public or private or operated for profit or not for profit); or                                       Section 3(b)(2) of Pub.L. 955-151 provided in
         CC) ia an activity of a public agency.                                                          part that the amendment to subsec. (m) of this Volunteers; P
                                                                                                         section by section 3(h)(2) of Pub.L. 95-151 is            Section 403)
   (2) Any establishment that has as its only regular employees the owner thereof or the                 effective Jan. 1, 1980.                                “Not later than
parent, spouse, child or other member of the immediate family of such owner shall not                                                                           Labor shall iss
be considered to be an enterprise engaged in commerce or in the production of gooda for                  Effective Date of 1989 Amendment                       graph (4) of se
commerce or a part of such an enterprise. The sales of such an establishment shaU not                        Section 3(e) of Pub.L. 101-157 provided that:      tion (a) of th;
be included for the purpose of determinin g the annual gross volume of sales of any                       “The amendments made by this section [amend-          title].”
enterprise for the purpose of this subsection.                                                           ing subsets. (r) and (s) of this section and sec-
                                                                                                          tion 213(a) and (g) of this title] shall become       Practice of PI
                          [See main volume for text of 0) to (a$]                                         effective on April 1, 1990.”
                                                                                                                                                                    1986; Liab
                                                                                                             Section 5 of Pub.L. 101-157 provided in part
(As amended Nov. 1, 1977, Pub.L. 9.%151, P 3(h), 91 Stab 1249; Nov. 14, 1985, Pub.L..9Q-150               that the amendment of the third sentence of               Section 41c
55 4(a), 5, 99 Stat 790, Nov. 17, 1939, Pub.L. 101-167, 55 3(a), (d), 5, 103 Stat 938, 939, 941.;         subset. (m) of this section by Pub.L. 101-157 is       “If, before AI
                                                                                                          effective April 1, 1990.                               agency wss n

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