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Letters to the 107th Congress

September 19, 2002

Honorable Russell D. Feingold
United States Senate
506 Hart Office Building
Washington, DC 20510-4904

Dear Senator Feingold:

I am writing on behalf of the American Bar Association to express our appreciation and to commend you for your leadership in introducing S. 2878, the Fair Treatment and Due Process Protection Act of 2002. The ABA strongly supports this much-needed legislation to provide for basic fairness in the administration of sanctions under the federal Temporary Assistance for Needy Families (TANF) program. We urge the Senate to support S. 2878 when it considers TANF reauthorization legislation on the Senate floor.

The ABA strongly believes that a number of changes in TANF and related programs should be incorporated in reauthorizing legislation to strengthen TANF's commitment to basic fairness and better assure the equal application of its provisions to all. Foremost among these changes are modest steps to assure due process of law in the application of TANF sanctions of the kind provided in S. 2878.

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 permit her 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 provides 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 1996, 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 face language barriers and 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 contained in S. 2878 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 contained in S. 2878 to strengthen the provisions governing administration of TANF sanctions should be supported by the Senate as part of reauthorizing legislation to assure due process and equal application and enforcement of the law. We urge the Senate to support S. 2878.


Robert D. Evans
Director, Governmental Affairs Office

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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