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CWLA's Comments Submitted to HHS on Proposed TANF Regulations
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CWLA's comments focus on issues surrounding the well-being of children, especially on the effect the proposed rule would have on the ability of kin caregivers to care for abused and neglected children. The comments also address the proposed rule on domestic violence waivers and the creation of separate state programs.
The proposed rule clearly states that the purpose of the TANF program is to provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives (62 Federal Register at 62181, Section 270.20). The Administration's ongoing Adoption 2002 initiative documents a commitment to help relatives care for children when necessary.
The proposed rule would make it harder for states to have TANF child-only grants. The preamble of the proposed rule spells out a concern that states will create child-only cases to circumvent work and time limit requirements, and to avoid associated penalties (Preamble, 62 Federal Register at 62130). The proposed rule requires that states must report child-only cases and explain why they do not include an adult (62 Federal Register, at 62195, Section 274.1). If the U.S. Department of Health and Human Services (HHS) finds that a state has excluded child-only families to avoid the five-year time limits, they will add child-only cases back into the caseload to calculate whether the state is liable for violating five-year time limits restrictions (62 Federal Register at 62195, Section 274.1). HHS can also add child-only cases back into the equation to calculate work participation rates and assessing penalties if HHS finds that the state had created child-only cases for the purpose of avoiding a penalty for work participation (62 Federal Register at 62185, Sections 271.22(b)(2) and 271.24(b)(2)).
CWLA is concerned that making it more difficult for states to have child-only grants will have the unintended consequence of making it more difficult for grandparents and other kin caregivers to continue to care for the children living with them. As a result, more children may have to be shuttled from home to home with other relatives or placed into foster care. The monthly average number of children receiving AFDC child-only grants in 1995 was 5,351.
In the last fifteen years, there has been a rapid increase in the number of children entering out-of-home care. Poverty, substance abuse, HIV infection, and homelessness have brought increasing numbers of children into the child welfare system who are in need of care outside their homes. At the end of 1996, an estimated 502,000 children lived in out-of-home care. Much of the growth in out-of-home care has been in formal kinship care.
Not all kinship caregivers, however, receive financial assistance from TANF or from Title IV-E federal foster care subsidies. Some kinship care arrangements are made between parents and the caregiver and the child is not in the custody of the state. These arrangements require that the caregiver assume responsibility for the child. Most of these caregivers are grandmothers who are in need of some financial and medical assistance for the children. The TANF child-only grants have helped these caregiver relatives to keep children with family rather than place them in foster care.
If TANF child-only grants become increasingly difficult to secure, these kin caregivers may not be able to adequately meet the child's basic needs. When this happens, the likelihood of the child entering the child welfare system increases. Flexibility in the use of child-only grants would help families remain intact and avoid the unnecessary placement of children in foster care. The placement of children in foster care would not only be inappropriate for the family as a whole, but more costly to the government. An average federal foster care expenditure for one child in out-of-home care costs $509.77 per month. An average monthly TANF child-only grant is $207.
CWLA urges you to delete the regulatory provisions that require special explanations about why states have excluded relatives in child-only cases. Child-only TANF cases are an important way of providing kinship care to children who cannot remain with their parents, but who can be placed with relatives. Burdensome justification provisions may discourage states from using this important tool.
In the area of domestic violence waivers under the Family Violence Option (FVO) in the 1996 law, the proposed rule is more restrictive about exemptions available to families subject to domestic violence than the statute allows. Under the law, waivers are available "so long as needed" to exempt families from work requirements, time limits, or other provisions of the law. HHS has defined temporary waivers to mean waivers that last for only six months (62 Federal Register, at 62182, Section 270.30). The proposed rule appears to put time limits on these exemptions and make it more difficult for families to get a waiver of time limits based on domestic violence. In addition, the proposed rule incorrectly provides that families can only get a waiver of time limits if they are suffering from domestic violence at the time they reach the time limit (rather than stopping the time-limit clock for an appropriate period following the time when the family is granted a waiver).
The FVO is a very important provision for the many children and families affected by violence. Various studies indicate that approximately 3.3 to 10 million children annually witness their parent's violence. Studies also show that between 50 and 70 percent of batterers also abuse their children. Child abuse is 15 times more likely to occur in households where domestic violence is present.
We recommend that HHS change the regulatory definition to clarify that waivers are available as long as needed. We also recommend that states be allowed to "stop the time clock" for families and give them a "good cause" domestic violence waiver at the time they are at risk of violence, not just at the time they approach the five-year time limit.
The proposed rule also includes a provision that would discourage states from creating separate state programs with maintenance of effort dollars. The proposed rule rightly recognizes that states may establish separate programs (such as a kinship care program, a refundable state Earned Income Credit or a child support assurance program) not subject to TANF restrictions such as time limits or work requirements. We applaud this recognition.
The rule further provides that if states fail to meet the time-limit restrictions or work participation rate requirements, they can avoid or minimize a federal penalty by demonstrating that they had reasonable cause for their failure, or by entering into a corrective compliance agreement with HHS. Unfortunately, in an effort to protect work requirements and federal child support collections, the proposed rule discourages states from creating separate state programs by denying states either of these avenues if HHS finds "a significant pattern of diversion of families to a separate State program that achieves the effect of avoiding the work participation rates" (62 Federal Register, Sections 271.51(a), 272.5(c), 272.6(i)(2)(i)). States can attempt to prove that "this pattern was actually the result of State policies and objectives that were entirely unrelated to the goal of diversion, but [HHS] would make the final judgment as to what constitutes a significant pattern of diversion" (62 Federal Register, at 62130, Preamble).
Because HHS imposes on states the burden of showing that they created separate programs for other acceptable reasons, states will be deterred from establishing separate programs even though they are wholly legitimate. We recommend that HHS base its calculation of whether states meet work and time-limit requirements on their TANF programs without regard to separate state programs. The agency should eliminate the separate state program "effects" test from regulations governing whether states can avoid or minimize work and time-limit penalties through reasonable cause exceptions or corrective compliance activities.
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