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Letters to the 107th Congress

June 18, 2002

The Honorable Max S. Baucus
Committee on Finance
United States Senate
219 Dirksen Office Building
Washington, DC 20515

Dear Mr. Chairman:

We understand that the Committee on Finance may soon consider legislation to reauthorize the Temporary Assistance for Needy Families (TANF) program and related programs. The Committee will have before it several bills and proposals, including H.R.4737, the bill passed by the House on May 16, 2002; S.2052, introduced by Senator Rockefeller; S.2524, introduced by Senators Bayh, Carper and others; and additional proposals in the form of consensus provisions or principles. I am writing on behalf of the American Bar Association to urge the Committee's adoption of certain key provisions to strengthen TANF's commitment to basic fairness and better assure the equal application of its provisions to all before reporting its bill for action by the full Senate. These provisions are set out below.

Assure Due Process of Law in the Application of TANF Sanctions: The ABA urges the Committee to amend the proposed reauthorization legislation to require constitutional protections in the administration of welfare programs, particularly notice and an opportunity to be heard, before the imposition of financial sanctions against families for noncompliance with program requirements. The House-passed bill did not address this issue. Both the Rockefeller bill, S.2052, and the "Tripartisan Consensus Provisions" would similarly require the Department of Health and Human Services to promulgate best-practice standards regarding the most appropriate procedures for imposing sanctions. The ABA believes that current law is inadequate and that any best-practice standards will ultimately require satisfying established constitutional requirements for minimum due process by requiring notice and an opportunity to be heard. We urge the Committee to amend the law to require this now.

Under the 1996-enacted 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, which typically involves 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. 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 single 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 require 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 administrative or appeal process." There are no requirements as to what this process must include, such as the opportunity to present evidence, be represented, or have the matter decided by a neutral arbiter. 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 physical 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 the individual's participation in a variety of required program activities. H.R.4737 and several Senate proposals would significantly increase work requirements and mandate increased full-family sanctions without addressing the need to administer sanctions with procedures that assure basic fairness.

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 as part of reauthorizing legislation to assure due process and equal application and enforcement of the law.

Legal Immigrants: In reauthorizing TANF, the ABA strongly supports what we believe to be a consensus position in the Senate to support amendment of current law to restore and extend TANF protections to legal immigrants and remove the present 5-year ban on access that would be continued in H.R.4737. Lawfully residing immigrants who work hard and pay taxes 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. The ABA also supports an amendment expected to be offered by Senator Graham to restore Medicaid and SCHIP benefits to lawfully present immigrant children and pregnant women. This amendment would give states additional flexibility by restoring the option of covering lawfully present children and pregnant women who are currently subject to the 1996-enacted five-year ban. We agree with the broad range of organizations supporting this amendment that from economic, health and legal perspectives, this amendment to restore health care eligibility should be adopted.

Child Support Enforcement: The ABA supports the consensus among the various Senate 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 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 afford 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 the Child Care and Development Block Grant (CCDBG) program 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" and Child Welfare Waiver Authority: The ABA has strong concerns about the breadth of the proposed new super-waiver provision contained in the House-passed bill, H.R.4737, to grant authority to 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, and that reasonable limits be made by Congress on shifting funds and on the numbers of waivers that may be granted. We are also opposed to the Child Welfare waiver provisions in H.R.4737, which are similarly undefined and without apparent limit.

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. Currently, Indian children under tribal court jurisdiction are not afforded the same rights as children under state court jurisdiction. 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 placed 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.It would allow tribal governments to directly administer the grants under the federal Foster Care and Adoption Assistance Program, and would permit tribal governments the option to enter into tribal-state agreements, in order to correct the preferential treatment of one class of children over another. These provisions are contained in S.550, the Indian and Alaska Native Foster Care and Adoption Services Amendments of 2001.

The ABA urges the members of the Committee to support amendments on 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

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