Montana Administrative Register Notice 24-13-313 No. 8   04/22/2016    
Prev Next




In the matter of the adoption of NEW RULES I through III, related to workforce development activities for Montana HELP Act participants







TO: All Concerned Persons


          1. On January 22, 2016, the Department of Labor and Industry published MAR Notice No. 24-13-313 regarding a public hearing on the proposed adoption of the above-stated rules on page 105 of the 2016 Montana Administrative Register, Issue No. 2.


          2. The department has thoroughly considered the comments and testimony of the public. The following is a summary of the public comments and the department's responses to those comments:


Comment 1: The Legislative Services Division noticed that in the statement of reasonable necessity, there was an apparent typographical error in the citation to the Montana HELP Act.

Response 1: The commenter is correct; there was a typographical error. The correct citation to the session law for the Montana HELP Act is Chapter 368, Laws of 2015. The Montana HELP Act was introduced as Senate Bill 405. The statutory citations for the AUTH and IMP cites for NEW RULES I through III are correct.


Comment 2: A commenter stated that NEW RULE II(1)(b) should be amended to remove the requirement that referrals be made to Workforce Innovation and Opportunity Act (WIOA) partners, and should allow a referral to any suitable program that might assist a HELP Act participant.

Response 2: The department's intention with the rule was to explain that HELP Act participants could be referred to WIOA partners and qualified providers, not to limit referrals solely to WIOA partners. The department has amended the rule to clarify that referrals may be made to any program or provider that appears suitable for the participant to consider.


Comment 3: A commenter generally stated that the department's proposed rules were not what members of the Legislature were led to believe would be put into place as part of the Montana HELP Act.

Response_3: The department believes, based on conversations with the prime sponsor of the Montana HELP Act, Senator Buttrey, that the proposed rules are consistent with the intent of the bill sponsor.


Comment 4: A commenter stated that NEW RULE II(3) provides too long an interval between accessing reportable activities. The commenter suggested that the interval be shorted to one week, bi-weekly, or even monthly.

Response 4: As noted in the statement of reasonable necessity, using a 90-day access cycle is consistent with existing workforce service systems, including monitoring software and systems already being used by Job Service offices for purposes of federal reporting under the Wagner-Peyser Act. The department estimates that it would cost approximately $3,500 to modify its existing software to track and report on activities both on a 90-day cycle as well as on a more frequent basis. 


Comment 5: The same commenter asked what outcomes the department expects from quarterly reporting.

Response_5: The department does not expect a particular outcome based on reporting. To the extent that the question was intended to ask why a 90-day tracking cycle was chosen for monitoring workforce development activities of participants, the department is using the business processes and systems that already exist for the Job Service programs. The 90-day reporting cycle provides a minimum standard based on current systems tracking; participants can and will be encouraged to access services at more frequent intervals than the minimum depending on their unique service needs and employment plan.  Please also see Response 4.


Comment 6: The same commenter stated that the rules should prioritize activities or services that an individual participant should (or must) undertake or receive.

Response_6: The prioritization of particular services and activities is made on an individualized basis following the participant's initial evaluation. The department believes that because the Montana HELP Act requires an individual evaluation as the initial step in receiving workforce services, the Act contemplates that a "one size fits all" list of priorities is not an effective or efficient use of services, or particularly helpful to the participant. The department's Job Service staff will counsel and encourage participants in selecting the most effective services and activities for each individual participant. 


The department's rules provide only for a baseline of the required level of activities, not an optimal level of active participation. The department will consider whether it is an efficient use of resources to create written rules that define what it considers to be an optimal level of activities or services to access, based upon a matrix of the participant's particular education, training, experience, and interests, as well as the likely barriers to employment. The department expects that while such rules are theoretically possible to write, such rules would likely be quite complex and bureaucratic in nature.


The department notes that the Montana HELP Act does not grant the department the ability to require that participants undertake any particular activity or use particular services in a specified order. The department concludes that rules that purport to require a participant to engage in activities or receive services in a particular order would exceed the department's statutory authority.


Comment 7: The same commenter stated that the department should look at the state unemployment insurance program's weekly job search requirements as a reasonable model for workforce activities under the Montana HELP Act.

Response_7: The department respectfully disagrees with the commenter's suggestion. The department notes that Montana HELP Act participants are not necessarily totally unemployed. Montana HELP Act participants may be employed 40 or more hours per week, hold multiple jobs, or be a full-time student, yet still have a family income of less than 138% of the federal poverty rate for Montana. The department concludes that it is not reasonable to expect a person who is employed or who is a student to conduct job searches with the same frequency as a person who is experiencing total unemployment.


Comment 8:   The same commenter stated that based on initial reports of participant activities, the Montana HELP Act will not be successful.

Response 8: The department agrees that approximately 45 days into the full implementation of the Montana HELP Act, the expected benefits of the new legislation have not been fully realized. The department expects that as time goes on, participants will be able to use the services, education, and training made available under the legislation to achieve the goals of the Montana HELP Act by increasing the economic self-sufficiency of participants.


Comment 9: The same commenter stated that the rules are not a serious attempt to address workforce development issues and assist Montana HELP Act participants to transition out of "poverty and welfare," and that the rules only provide the department and the Governor "an excuse to hold another press conference and issue talking points."

Response 9: The department acknowledges that the commenter, as a member of the 2015 Legislature, generally opposed the passage of the Montana HELP Act. The department recognizes the sincerity of the views expressed by the commenter, but respectfully disagrees with the conclusions drawn by the commenter.


Comment 10: A commenter questioned what the department meant when it stated that services could be provided "remotely," and suggested that the rules explain how services or assistance could be provided remotely.

Response_10: In NEW RULE I(6), the department contrasts services and assistance delivered in person at a local Job Service office with services that are delivered "remotely." In this context, the department believes that a significant percentage of participants will obtain at least some of the available services "on-line," via the Internet. Each Job Service local office makes computers with Internet access available to the public, for performing job search and other workforce activities. While there are 23 local Job Service offices located across Montana, the department recognizes that even a local office might be located 100 miles or more from a participant's residence. In those instances, services or assistance could potentially be delivered via some other commonly available and generally used technology or method, including the U.S. Mail, telephone, or fax.


Comment 11: A commenter expressed concerns that an individual's freedom to choose services that might be of help in finding appropriate job openings was being compromised by the proposed rules.

Response 11: Engaging in workforce development activities is not required of any Montana HELP Act participant. Montana HELP Act participants can choose whether to make use of workforce development services and activities while enrolled in the Montana HELP Plan. Engaging in workforce development activities is one option that can help qualify a participant for a waiver of paying an insurance premium under the Montana HELP Plan. The department notes that a wide variety of workforce development services and activities are available to the general public, not just Montana HELP Act participants.


Comment 12: A commenter questioned whether a participant that is "medically fragile" would be exempt from the rules.

Response 12: As noted above, no Montana HELP Act participant is required to engage in workforce development services and activities. However, if an individual chooses to use the participant's engagement in workforce development services and activities as one of the ways to qualify for a premium waiver, the department does not contemplate that a participant's health status is a basis for excusing the statutory standard of being an active participant. While the Department of Public Health and Human Services might consider whether special circumstances (such as being "medically fragile") would be a reason not to disqualify a participant from a waiver, the Department of Labor and Industry does not believe that it has the statutory authority to provide for such a waiver.


Comment 13: A commenter asked whether it, as a social services provider, could perform an initial assessment of a participant, instead of the assessment being performed by the department.

Response 13: No. The department does not presently contemplate that third-party entities will be authorized to make the initial assessment of a participant's occupational skills and abilities, or to analyze the participant's probable barriers to employment. The department believes that it already has well-trained and qualified employees located in each Job Service office to perform the assessments. However, the department will look at the data on use and access patterns by Montana HELP Act participants to determine whether additional or supplemental service locations are needed. The department recognizes that potentially it might be cost-effective to contract with qualified third parties to provide assessment services in areas that are not adequately served by a Job Service office.


Comment 14: The same commenter stated that it believes it is a qualified trainer under the WIOA, and asked if it could provide workforce training and assistance to a participant.

Response 14: Yes. As noted in Response 2, the department will continue to make referrals to other service providers as appropriate for the needs of participants.


Comment 15: The same commenter asked whether participants could use computers located in the offices of the commenter to access services and engage in reportable activities.

Response 15: Yes.  Such activities will automatically be logged by the department's computer system when the participant signs onto the Montana Works computer system (jobs@mt.gov) using the participant's log-in credentials. The participant does not have to separately track and report participation to the department. However, if a participant does not regularly or frequently engage in workforce development activities, the department believes it would be prudent for the participant (or someone assisting the participant) to informally monitor the use of services to avoid inadvertently losing "active participant" status.


3. The department has adopted the following rules as proposed: NEW RULE I (24.13.101) and NEW RULE III (24.13.109).


4. The department has adopted the following rule as proposed, but with changes from the original proposal, new matter underlined, deleted matter interlined:


          NEW RULE II (24.13.105) WORKFORCE DEVELOPMENT ACTIVITIES FOR HELP ACT PARTICIPANTS (1) and (1)(a) remain as proposed.

          (b) Participants may also be eligible for referral to WIOA partners, and qualified training providers, and any other suitable program or service provider.

          (2) through (6) remain as proposed.


          AUTH: 39-12-107, 53-5-1318, MCA

          IMP:     39-12-101, 39-12-103, MCA




/s/ MARK CADWALLADER          /s/ PAM BUCY  

Mark Cadwallader                        Pam Bucy, Commissioner

Alternate Rule Reviewer              DEPARTMENT OF LABOR AND INDUSTRY




Certified to the Secretary of State April 11, 2016.


Home  |   Search  |   About Us  |   Contact Us  |   Help  |   Disclaimer  |   Privacy & Security