Title 45—Public Welfare--Volume 1
PART 287—THE NATIVE EMPLOYMENT WORKS (NEW) PROGRAM
§ 287.1   What does this part cover?
(a) The regulations in this part prescribe the rules for implementing section 412(a)(2) of the Social Security Act (the Act), as amended by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) (Pub. L. 104-193) and the Balanced Budget Act of 1997 (Pub. L. 105-33).
(b) Section 412(a)(2) of the Act, as amended, authorizes the Secretary to issue grants to eligible Indian tribes to operate a program that makes work activities available to “such population and such service area or areas as the tribe specifies.”
(c) We call this Tribal work activities program the Native Employment Works (NEW) program.
(d) These regulations specify the Tribes who are eligible to receive NEW Program funding. They also prescribe requirements for: funding; program plan development and approval; program design and operation; and data collection and reporting.
§ 287.5   What is the purpose and scope of the NEW Program?
The purpose of the NEW Program is to provide eligible Indian tribes, including Alaska Native organizations, the opportunity to provide work activities and services to their needy clients.
§ 287.10   What definitions apply to this part?
The following definitions apply to this part:
ACF means the Administration for Children and Families;
Act means the Social Security Act, unless we specify otherwise;
Alaska Native organization means an Alaska Native village, or regional or village corporation, as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq. ), that is eligible to operate a Federal program under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450);
Consortium means a group of Tribes working together for the same identified purpose and receiving combined NEW funding for that purpose.
Department means the Department of Health and Human Services;
Division of Tribal Services (DTS) means the unit in the Office of Community Services within the Department's Administration for Children and Families that has as its primary responsibility the administration of the Tribal family assistance program, called the Tribal Temporary Assistance for Needy Families (TANF) program, and the Tribal work program, called the Native Employment Works (NEW) program, as authorized by section 412(a);
Eligible Indian tribe means an Indian tribe, a consortium of Indian tribes, or an Alaska Native organization that operated a Tribal Job Opportunities and Basic Skills Training (JOBS) program in fiscal year 1995 under section 482(i) of the Act, as in effect during that fiscal year;
Fiscal year means the 12-month period beginning on October 1 of the preceding calendar year and ending on September 30;
FY means fiscal year;
Indian, Indian tribe, and Tribal organization —The terms Indian, Indian tribe, and Tribal organization have the meaning given such terms by section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b);
Native Employment Works Program means the Tribal work program under section 412(a)(2) of the Act;
NEW means the Native Employment Works Program;
Program Year means, for the NEW Program, the 12-month period beginning on July 1 of the calendar year and ending on June 30;
PRWORA means the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193;
Public Law 102-477 refers to the Indian Employment, Training and Related Services Demonstration Act of 1992, whose purpose is to provide for the integration of employment, training and related services to improve the effectiveness of those services;
Secretary means the Secretary of the Department of Health and Human Services;
State means, except as otherwise specifically provided, the 50 States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, and American Samoa;
TANF means the Temporary Assistance for Needy Families Program;
Temporary Assistance for Needy Families Program means a family assistance grant program operated either by a Tribe under section 412(a)(1) of the Act or by a State under section 403 of the Act;
Tribal TANF program means a Tribal program subject to the requirements of section 412 of the Act which is funded by TANF funds on behalf of eligible families;
We (and any other first person plural pronouns) refers to The Secretary of Health and Human Services, or any of the following individuals or organizations acting in an official capacity on the Secretary's behalf: The Assistant Secretary for Children and Families, the Regional Administrators for Children and Families, the Department of Health and Human Services, and the Administration for Children and Families.
§ 287.15   Which Tribes are eligible to apply for NEW Program grants?
To be considered for a NEW Program grant, a Tribe must be an “eligible Indian tribe.” An eligible Indian tribe is an Indian tribe or Alaska Native organization that operated a Job Opportunities and Basic Skills Training (JOBS) program in FY 1995.
§ 287.20   May a Public Law 102-477 Tribe operate a NEW Program?
Yes, if the Tribe is an “eligible Indian tribe.”
§ 287.25   May Tribes form a consortium to operate a NEW Program?
(a) Yes, as long as each Tribe forming the consortium is an “eligible Indian tribe.”
(b) To apply for and conduct a NEW Program, the consortium must submit a plan to ACF.
(c) The plan must include a copy of a resolution from each Tribe indicating its membership in the consortium and authorizing the consortium to act on its behalf in regard to administering a NEW Program. If an Alaska Native organization forms a consortium, submission of the required resolution from the governing board of the organization is sufficient to satisfy this requirement.
§ 287.30   If an eligible consortium breaks up, what happens to the NEW Program grant?
(a) If a consortium should break up or any Tribe withdraws from a consortium, it will be necessary to allocate unobligated funds and future grants among the Tribes that were members of the consortium, if each individual Tribe obtains ACF approval to continue to operate a NEW Program.
(b) Each withdrawing Tribe must submit to ACF a copy of the Tribal resolution that confirms the Tribe's decision to withdraw from the consortium and indicates whether the Tribe elects to continue its participation in the program.
(c) The allocation can be accomplished by any method that is recommended and agreed to by the leaders of those Tribes.
(d) If no recommendation is made by the Tribal leaders or no agreement is reached, the Secretary will determine the allocation of funds based on the best available data.
§ 287.35   What grant amounts are available under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) for the NEW Program?
Each Tribe shall receive a grant in an amount equal to the amount received by the Tribe in FY 1994 under section 482(i) of the Act (as in effect during FY 1994).
§ 287.40   Are there any matching funds requirements with the NEW Program?
No, Tribal grantees are not required to match NEW Federal funds.
§ 287.45   How can NEW Program funds be used?
(a) NEW grants are for making work activities available to such population as the Tribe specifies.
(b) NEW funds may be used for work activities as defined by the Tribal grantee.
(c) Work activities may include supportive services necessary for assisting NEW Program participants in preparing for, obtaining, and/or retaining employment.
§ 287.50   What are the funding periods for NEW Program grants?
NEW Program funds are for operation of the NEW Program for a 12-month period from July 1 through June 30.
§ 287.55   What time frames and guidelines apply regarding the obligation and liquidation periods for NEW Program funds?
(a) NEW Program funds provided for a FY are for use during the period July 1 through June 30 and must be obligated no later than June 30. Carry forward of an unobligated balance of NEW funds is not permitted. A NEW fund balance that is unobligated as of June 30 will be returned to the Federal government through the issuance of a negative grant award. Unobligated funds are to be reported on the SF-269A that Tribes must submit within 30 days after the funding period, i.e., no later than July 30. This report is called the interim financial report.
(b) A Tribe must liquidate all obligations incurred under the NEW Program grant awards not later than one year after the end of the obligation period, i.e., no later than June 30 of the following FY. An unliquidated balance at the close of the liquidation period will be returned to the Federal government through the issuance of a negative grant award. Unliquidated obligations are to be reported on the SF-269A that Tribes must submit within 90 days after the liquidation period, i.e., by September 28. This report is called the final financial report.
§ 287.60   Are there additional financial reporting and auditing requirements?
(a) The reporting of expenditures are generally subject to the requirements of 45 CFR 75.341.
(b) NEW Program funds and activities are subject to the audit requirement of the Single Audit Act of 1984 (45 CFR part 75, subpart F).
(c) A NEW Program grantee must comply with all laws, regulations, and Departmental policies that govern submission of financial reports by recipients of Federal grants.
(d) Improper expenditure claims under this program are subject to disallowance.
(e) If a grantee disagrees with the Agency's decision to disallow funds, the grantee may follow the appeal procedures at 45 CFR part 16.
§ 287.65   What OMB circulars apply to the NEW Program?
NEW Programs are subject to the following OMB circulars where applicable: A-87 “Cost Principles for State, Local, and Indian Tribal Governments,” A-122 “Cost Principles for Non-Profit Organizations,” and A-133 “Audits of States and Local Governments.”
§ 287.70   What are the plan requirements for the NEW Program?
(a) To apply for and conduct a NEW Program, a Tribe must submit a plan to ACF.
(b) The plan must identify the agency responsible for administering the NEW Program and include a description of the following:
(1) Population to be served;
(2) Service area;
(3) Client services;
(4) Work activities to be provided;
(5) Supportive and job retention services to be provided;
(6) Anticipated program outcomes, and the measures the Tribe will use to determine them; and
(7) Coordination activities conducted and expected to be conducted with other programs and agencies.
(c) The plan must also describe how the Tribe will deliver work activities and services.
(d) The format is left to the discretion of each NEW grantee.
§ 287.75   When does the plan become effective?
NEW plans, which are three-year plans, become effective when approved by the Secretary. The plans are usually operative the beginning of a NEW Program year, July 1.
§ 287.80   What is the process for plan review and approval?
(a) A Tribe must submit its plan to the ACF Regional Office, with a copy sent to the Division of Tribal Services, Office of Community Services, Administration for Children and Families, Attention: Native Employment Works Team.
(b) To receive funding by the beginning of the NEW Program year (July 1), a Tribe must submit its plan by the established due date.
(c) ACF will complete its review of the plan within 45 days of receipt.
(d) After the plan review has occurred, if the plan is approvable, ACF will approve the plan, certifying that the plan meets all necessary requirements. If the plan is not approvable, the Regional Office will notify the Tribe regarding additional action needed for plan approval.
§ 287.85   How is a NEW plan amended?
(a) If a Tribe makes substantial changes in its NEW Program plan or operations, it must submit an amendment for the changed section(s) of the plan to the appropriate ACF Regional Office for review and approval, with a copy sent to the Division of Tribal Services, Office of Community Services, Administration of Children and Families, Attention: Native Employment Works Team. The review will verify consistency with section 412(a)(2) of the Act.
(b) A substantial change is a change in the agency administering the NEW Program, a change in the designated service area and/or population, a change in work activities provided or a change in performance standards.
(c) A substantial change in plan content or operations must be submitted to us no later than 45 days prior to the proposed implementation date.
(d) ACF will complete the review of the amended plan within 45 days of receipt.
(e) An amended plan becomes effective when it is approved by the Secretary.
§ 287.90   Are Tribes required to complete any certifications?
Yes. A Tribe must include in its NEW Program plan the following four certifications and any additional certifications that the Secretary prescribes in the planning guidance: Certification Regarding Debarment, Suspension, and Other Responsibility Matters—Primary Covered Transactions; Certification Regarding Drug Free Workplace Requirements for Grantees Other Than Individuals; Certification Regarding Tobacco Smoke, and Assurances—Non-Construction Programs.
§ 287.95   May a Tribe operate both a NEW Program and a Tribal TANF program?
Yes. However, the Tribe must adhere to statutory and regulatory requirements of the individual programs.
§ 287.100   Must a Tribe that operates both NEW and Tribal TANF programs submit two separate plans?
Yes. Separate plans are needed to reflect different program and plan requirements as specified in the statute and in plan guidance documents issued by the Secretary for each program.
§ 287.105   What provisions of the Social Security Act govern the NEW Program?
NEW Programs are subject only to those requirements at section 412(a)(2) of the Act, as amended by PRWORA, titled “Grants for Indian Tribes that Received JOBS Funds.”
§ 287.110   Who is eligible to receive assistance or services under a Tribe's NEW Program?
(a) A Tribe must specify in its NEW Program plan the population and service area to be served. In cases where a Tribe designates a service area for its NEW Program that is different from its Bureau of Indian Affairs (BIA) service area, an explanation must be provided.
(b) A Tribe must include eligibility criteria in its plan and establish internal operating procedures that clearly specify the criteria to be used to establish an individual's eligibility for NEW services. The eligibility criteria must be equitable.
§ 287.115   When a NEW grantee serves TANF recipients, what coordination should take place with the Tribal or State TANF agency?
The Tribe should coordinate with the Tribal or State TANF agency on:
(a) Eligibility criteria for TANF recipients to receive NEW Program services;
(b) Exchange of case file information;
(c) Changes in client status that result in a loss of cash assistance, food stamps, Medicaid or other medical coverage;
(d) Identification of work activities that may meet Tribal or State work participation requirements;
(e) Resources available from the Tribal or State TANF agency to ensure efficient delivery of benefits to the designated service population;
(f) Policy for exclusions from the TANF program (e.g., criteria for exemptions and sanctions);
(g) Termination of TANF assistance when time limits become effective;
(h) Use of contracts in delivery of TANF services;
(i) Prevention of duplication of services to assure the maximum level of services is available to participants;
(j) Procedures to ensure that costs of other program services for which welfare recipients are eligible are not shifted to the NEW Program; and
(k) Reporting data for TANF quarterly and annual reports.
§ 287.120   What work activities may be provided under the NEW Program?
(a) The Tribe will determine what work activities are to be provided.
(b) Examples of allowable activities include, but are not limited to: Educational activities, alternative education, post secondary education, job readiness activity, job search, job skills training, training and employment activities, job development and placement, on-the-job training (OJT), employer work incentives related to OJT, community work experience, innovative approaches with the private sector, pre/post employment services, job retention services, unsubsidized employment, subsidized public or private sector employment, community service programs, entrepreneurial training, management training, job creation activities, economic development leading to job creation, and traditional subsistence activities.
§ 287.125   What supportive and job retention services may be provided under the NEW Program?
The NEW Program grantee may provide, pay for or reimburse expenses for supportive services, including but not limited to transportation, child care, traditional or cultural work related services, and other work or family sufficiency related expenses that the Tribe determines are necessary to enable a client to participate in the program.
§ 287.130   Can NEW Program activities include job market assessments, job creation and economic development activities?
(a) A Tribe may conduct job market assessments within its NEW Program. These might include the following:
(1) Consultation with the Tribe's economic development staff or leadership that oversees the economic and employment planning for the Tribe;
(2) Consultation with any local employment and training program, Workforce Development Boards, One-Stop Centers, or planning agencies that have undertaken economic and employment studies for the area in which the Tribe resides;
(3) Communication with any training, research, or educational agencies that have produced economic development plans for the area that may or may not include the Tribe; and
(4) Coordination with any State or local governmental agency pursuing economic development options for the area.
(b) The Tribe's NEW Program may engage in activities and provide services to create jobs and economic opportunities for its participants. These services should be congruous with any available local job market assessments and may include the following:
(1) Tribal Employment Rights Office (TERO) services;
(2) Job creation projects and services;
(3) Self-employment;
(4) Self-initiated training that leads a client to improved job opportunities and employment;
(5) Economic development projects that lead to jobs, improved employment opportunities, or self-sufficiency of program participants;
(6) Surveys to collect information regarding client characteristics; and
(7) Any other development and job creation activities that enable Tribal members to increase their economic independence and reduce their need for benefit assistance and supportive services.
§ 287.135   Are bonuses, rewards and stipends allowed for participants in the NEW Program?
Bonuses, stipends, and performance awards are allowed. However, such allowances may be counted as income in determining eligibility for some TANF or other need-based programs.
§ 287.140   With whom should the Tribe coordinate in the operation of its work activities and services?
The administration of work activities and services provided under the NEW Program must ensure that appropriate coordination and cooperation is maintained with the following entities operating in the same service areas as the Tribe's NEW Program:
(a) State, local and Tribal TANF agencies, and agencies operating employment and training programs;
(b) Any other agency whose programs impact the service population of the NEW Program, including employment, training, placement, education, child care, and social programs.
§ 287.145   What measures will be used to determine NEW Program outcomes?
Each grantee must develop its own performance standards and measures to ensure accountability for its program results. A Tribe's program plan must identify planned program outcomes and the measures the Tribe will use to determine them. ACF will compare planned outcomes against outcomes reported in the Tribe's annual reports.
§ 287.150   Are there data collection requirements for Tribes that operate a NEW Program?
(a) Yes, the Tribal agency or organization responsible for operation of a NEW Program must collect data and submit reports as specified by the Secretary.
(b) A NEW Program grantee must establish and maintain efficient and effective record-keeping systems to provide accurate and timely information regarding its service population.
(c) Required reports will provide Tribes, the Secretary, Congress, and other interested parties with information to assess the success of the NEW Program in meeting its goals. Also, the reports will provide the Secretary with information for monitoring program and financial operations.
§ 287.155   What reports must a grantee file with the Department about its NEW Program operations?
(a) Each eligible Tribe must submit an annual report that provides a summary of program operations.
(b) The Secretary has developed an annual operations report (OMB clearance number 0970-0174). The report specifies the data elements on which grantees must report, including elements that provide information regarding the number and characteristics of those served by the NEW Program. This report is in addition to any financial reports required by law, regulations, or Departmental policies.
(c) The report form and instructions are distributed through ACF's program instruction system.
(d) The program operations report will be due September 28th, 90 days after the close of the NEW Program year.
§ 287.160   What reports must a grantee file regarding financial operations?
(a) Grantees will use SF-269A to make an annual financial report of expenditures for program activities and services.
(b) Two annual financial reports will be due to the appropriate Regional Office. The interim SF-269A is due no later than July 30, i.e., 30 days after the end of the obligation period. The final SF-269A is due 90 days after the end of the liquidation period.
§ 287.165   What are the data collection and reporting requirements for Public Law 102-477 Tribes that consolidate a NEW Program with other programs?
(a) Currently, there is a single reporting system for all programs operated by a Tribe under Public Law 102-477. This system includes a program report, consisting of a narrative report, a statistical form, and a financial report.
(1) The program report is required annually and submitted to BIA, as the lead Federal agency and shared with DHHS and DOL.
(2) The financial report is submitted on a SF-269A to BIA.
(b) Information regarding program and financial operations of a NEW Program administered by a Public Law 102-477 Tribe will be captured through the existing Public Law 102-477 reporting system.
§ 287.170   What are the data collection and reporting requirements for a Tribe that operates both the NEW Program and a Tribal TANF program?
Tribes operating both NEW and Tribal TANF programs must adhere to the separate reporting requirements for each program. NEW Program reporting requirements are specified in §§ 287.150-287.170.