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Letters to the 107th Congress

April 30, 2002

The Honorable William M. Thomas
Committee on Ways and Means
U.S. House of Representatives
1102 Longworth House Office Building
Washington, DC 20515

Dear Mr. Chairman:

We understand the Committee will soon consider legislation to reauthorize the Temporary Assistance for Needy Families (TANF) program and related programs. I am writing on behalf of the American Bar Association to voice the Association's views on this important set of issues.

The reauthorization of the TANF program and related programs this year presents the first opportunity for Congress to comprehensively review progress on the profound changes in those federal assistance programs enacted as part of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996. We commend the Bush Administration and Representatives Wally Herger, Benjamin Cardin and Patsy Mink for their leadership in sponsoring proposals to build upon several years of experience under PRWORA, to set new goals, to fine-tune some provisions, to revisit certain issues and to make needed changes in others. The ABA strongly believes that a number of changes in TANF and related programs should be supported by the Subcommittee and incorporated in reauthorizing legislation to strengthen TANF's commitment to basic fairness and better assure the equal application of its provisions to all. These recommendations are set out below.

Assure Due Process of Law in the Application of TANF Sanctions: Prior to 1996, before a sanction could be imposed for failure to meet work-related requirements, the state was required to offer a "conciliation process," which typically involved informing the parent of what she had failed to do, offering a chance to correct the problem, and offering assistance if needed to come into compliance.

Under current law, a state may terminate all TANF assistance for failure to comply with work-related (or other) requirements; there is no requirement that there be any conciliation process prior to doing so; and (with one limited exception) there is no requirement that the state provide for good cause exceptions. Specifically, the statute states that if an individual "refuses to engage in work," the state must reduce or terminate the family's assistance, "subject to such good cause and other exceptions as the State may establish." 42 U.S.C. 609(7)(e)(1). There is a limited exception: a state may not reduce or terminate assistance to a single parent with a child under age six if the parent is unable to meet work requirements because of the unavailability of child care. 42 U.S.C. 607(e)(2).

When imposing sanctions, there is no requirement that a state provide an opportunity to resolve the problem, offer assistance in addressing the difficulty, or offer an opportunity for the individual to have assistance reinstated by coming into compliance. There is also no requirement that a state provide an opportunity for a hearing when a sanction is imposed, although all states have elected to maintain an administrative hearing process. Current law only states that a State's TANF plan shall include "an explanation of how the State will provide opportunities for recipients who have been adversely affected to be heard in a State." This requirement is insufficient to provide basic fairness.

Some states have made extensive use of sanctions in their TANF implementation efforts. Since the comprehensive overhaul of welfare in PRWORA, opportunities for termination or reduction of benefits are more numerous, as work requirements and eligibility conditions have increased. In particular, financial sanctions for noncompliance with program rules have increased dramatically. Studies show that the families who get sanctioned often face serious employment barriers. The heads of these sanctioned families are also more likely to have limited education and work experience and/or serious health or mental health problems; they are also more likely to have been victims of domestic violence. In addition, advocates and lawyers who represent persons subject to sanctions find that state bureaucrats often do not have up-to-date information, and frequently have incomplete or missing data about individual participation in a variety of required program activities.

Given the present absence of due process protections for sanctioned TANF recipients, the ABA urges the implementation of the following protections that are currently lacking:

  • the provision of clear, understandable notices;

  • the establishment of the principle that a sanction should not be imposed when there is good cause for noncompliance;

  • the assurance that sanctions do not continue (or do not continue for an unreasonable period) after a sanctioned individual comes into compliance;

  • the requirement for all states to include a conciliation process, and to offer assistance to overcome employment barriers and medical difficulties; and

  • provision for follow-up efforts, after states impose sanctions, to attempt to contact the family and offer assistance to help the family enter into compliance.

  • These changes to strengthen the provisions governing administration of TANF sanctions should be supported by the Subcommittee as part of reauthorizing legislation to assure due process and equal application and enforcement of the law.

    Legal Immigrants: In reauthorizing TANF, we support the provisions put forth by Rep. Cardin (H.R.3625) and Rep. Mink (H.R.3113) to restore or extend TANF protections to legal immigrants and remove the present 5-year ban on access that would be continued in the Herger proposal. Lawfully residing immigrants work hard and pay taxes, and should have the same access to government benefits as others. Moreover, immigrant children and U.S. citizen children of immigrant parents should not be denied benefits based on the immigration status of the child or the child's parents.

    Marital Status and "After-born" Children: The ABA believes as a general matter that TANF programs should be funded at a level sufficient to meet the need for the basic essentials of life for those eligible for such assistance regardless. The ABA opposes linking public assistance for needy persons to such requirements as marital status or "after-born" children, which infringe on the right to privacy and the right to travel.

    The ABA opposes revisiting proposals considered by the 104th Congress, but not adopted in final legislation creating TANF, that would have denied the provision of cash assistance on the basis of characteristics of parents, the family's receipt of such assistance at the time of a child's conception or birth or the mother's age or marital status at the time of a child's birth. We support the provision in the Mink bill, H.R.3113, to prohibit states from denying eligibility to so-called "after-born" children by the use of "family caps." We believe this role for states - to deny eligibility based on family size or marital status - is punitive and without proven effectiveness.

    Such "child exclusions" from eligibility for assistance also raise serious constitutional concerns. Such provisions may be regarded under our Constitution as irrationally penalizing poor children for their parent's behavior, violating the most basic principles of fairness.

    We are also concerned that such an approach would result in increased out-of-home placement of poor children, a result that we believe no one would desire, and that such placements would put serious additional strains on the child abuse and neglect system, including the courts.

    The ABA further supports the consensus that is apparent among the principal sponsors of TANF reauthorization proposals to end the existing "illegitimacy bonus" to the states and to replace it with support for programs to strengthen family formation.

    Child Support Enforcement: The ABA supports the consensus among the Herger, Cardin and Mink proposals to increase the pass-through of child support from payments made to states to families receiving assistance. In addition, we support amending current law to extend the availability of enforcement remedies currently only available to IV-D agencies (handled by state and territory child support agencies) to cases brought by private attorneys on behalf of custodial parents and pro se parties. We believe this step would strongly supplement the work of IV-D agencies and permit individual parents more opportunity for needed assistance in pursuing enforcement of child support obligations without the potential problems inherent in other proposals for corporate or private agency representation.

    Child Care: The ABA supports expanding availability of child care and bipartisan efforts to increase funding under Child Care and Development Block Grant (CCDBG) when it is reauthorized this year. The CCDBG should be funded at substantially higher levels in order to enable parents of young children to work. Child care assistance should be excluded from the five-year time limit for TANF assistance and states should be permitted to carry over unspent TANF funds from previous years for child care and for supporting attainment of minimum health and safety standards for CCDBG-funded child care.

    "Super-Waiver"Authority: The ABA has strong concerns about the breadth of the proposed new super-waiver provision contained in Mr. Herger's bill, H.R.4090, to grant authority to the Executive branch - the Secretary of HHS in conjunction with state officials - to waive a wide range of program rules legislated by Congress and to reorder spending priorities dramatically among those programs. We believe this proposal must be narrowed and specifically limited to preclude waiver of important program requirements that have been carefully legislated by past Congresses in the areas of child welfare and child care, among others, and that reasonable limits be made by Congress on the numbers of waivers that may be granted.

    Equitable Access for Native American Children to Federal Foster Care and Adoption Assistance Programs: The ABA supports amendment of Title IV -E of the Social Security Act to provide equitable access for foster care and adoption services for Indian children under tribal court jurisdiction. The current TANF reauthorization process provides an opportunity to correct this problem directly related to TANF programs by allowing direct tribunal administration of the Foster Care and Adoption Assistance Entitlement Program. The ABA believes tribal governments should be able to directly administer the program, and tribal governments should retain the option to enter into tribal-state agreements, in order to correct the preferential treatment of one class of children. Representative Dave Camp is the sponsor of this much-needed reform, as H.R. 2335, the Indian and Alaska Native Foster Care and Adoption Services Amendments of 2001.

    The purpose of the Title IV-E Foster Care and Adoption Assistance Act is to ensure that children receive adequate care when placed in foster care and adoption programs. The act reimburses states for services provided to income-eligible children who are placed in foster care or adoptive homes through state agencies. Services provided by tribes for income-eligible children place by tribal agencies are not eligible for reimbursement unless there is a tribal-state agreement. As a result, thousands of Native American children who meet income eligibility criteria who are placed in foster care by tribal courts do not receive foster care and adoptive services to which all other income-eligible children are entitled, and have little federal support in achieving the permanency they need and deserve.This amendment to current law would require that federal programs provide equitable access to foster care and adoption services for Indian children under tribal court jurisdiction.

    The ABA urges the Committee to use the opportunity provided by the reauthorization process to address these key provisions and thereby achieve a stronger TANF program.


    Robert D. Evans
    Director, Governmental Affairs Office

    cc: Members of the Committee

    107th Congress Letters Home

    Governmental Affairs Office
    740 Fifteenth Street, NW
    Washington, DC 20005
    ph: 202-662-1760
    fx: 202-662-1762

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