New Federal TANF Regulations Eviscerate Community Service Activities for Welfare Recipients

August 1, 2006

Author: Saima Akhtar| Susan C. Antos

As required by the Deficit Reduction Act (DRA) of 2005 (Public Law 109-171), the Department of Health and Human Services has promulgated  interim regulations governing the Temporary Assistance to Needy Families (TANF)  program which narrow  the definition of many permissible work activities, and which make a number of other significant changes to the federal regulations governing work programs.  The   regulations, which were promulgated in the Federal Register on June 29, 2006, are effective immediately, and states must comply with these rules by October 1, 2006, or they will be subject to fiscal penalties for Federal Fiscal Year (FFY) 2007.  The regulations are subject to public comment until August 28, 2006. 2

In part, the regulations were a response to a General Accounting Office (GAO) report which was critical of the wide range of activities defined as permissible under the work categories of community service, job search and job readiness, vocational education, and job skills training. 3  The different definitions used by the states made it difficult for the GAO to compare work participation activities across the states. 

The new regulations make clear that unsupervised activities will no longer count as work activities.  In addition to the narrowing of the work activity definitions, the regulations revise the rules about counting the hours of participation.  These rules tighten accountability, but allow states to adopt sick leave, holiday and excused absence policies that will help TANF recipients meet the demands of everyday life.  The regulations also no longer allow states to count unsupervised study time as participation in vocational education.  Only monitored study time can be counted towards the participation rate. States will also have the option to include SSI recipients who are in TANF households in their participation rates on a case by case basis - presumably those who are in programs with a goal of making them employable or those who are participating in trial work activities.

The Center on Budget Priorities and the Center for Law and Social Policy have jointly written a comprehensive analysis of the regulations, which is posted on their web sites.  See http://www.cbpp.org/7-21-06tanf.htm.  This article will not present an overview of the regulations, but will focus on how the new restricted definition of community service will affect local social services districts in New York State.

The Devil is in the Devolution

In most states, the definitions of the activities that constitute a particular category of work are uniform across each state.  In New York State, however, the 58 social services districts each administer their own work programs. Each social services district files a biennial employment plan with the State Office of Temporary and Disability Assistance (OTDA) which defines permissible activities within each category of work activity.  http://www.empirejustice.org/

This article will examine the scope of these variations in one category - community service - as defined by each of the social services districts across the State of New York, and analyze the effect the new definition of community service will have on the activities in each county.

States are required to meet federally defined work participation rates as a condition of receiving money to administer their welfare programs under the Temporary Assistance to Needy Families Block grant.  Failure to meet these rates can result in penalties.  The general rule is that 50% of all single parent families and 90% of all two parent families must be participating.4  These numbers are adjusted downward by a caseload reduction credit.  Before 2006, this credit was based on a formula which compared the Aid to Families with Dependent Children caseload in 1995 with the current caseload.  The DRA tightened the formula by making the comparison with the dramatically reduced caseload in 2005. 5 

Currently, recipients of TANF funded assistance must participate in work activities for at least 30 hours per week (55 hours per week for 2 parent families). 6  As states determine which recipients are counted as work participants, they must follow these rules: recipients must participate in at least 20 hours per week of “core” activities (30 hours per week for two parent families) and the balance of activities can be met with other “non-core” activities. 7    Core activities include unsubsidized employment, subsidized public or private sector employment, on the job training, job search and job readiness, community service, vocational education and providing child care to a person in community service. 8   “Non-core” activities include job skills or education directly related to employment and satisfactory secondary school attendance. 9

Community service has always been defined as a “core” activity, but  the new DRA regulations limit the use of this category  to activities which “serve a useful community purpose,” and to those activities that are supervised on at least a daily basis. 10  This is a dramatic change from the definitions currently used by many counties where community service is a “catch-all” for activities that do not fit into other categories.  In defining community service for their biennial employment plans, many counties state that community service is any activity of benefit to the recipient that was excluded from other categories.  For example, the Ontario County 2006-07 Employment Plan defines community service as “those activities to which a client may be assigned which are not contained in other defined activities.”  The Niagara County 2004-05 Employment Plan defines community services “any employment/education/training type activity not presently mandated at either the State or Federal level designed either in whole or in part to assist the individual in his/her attempt to transition from dependency to self-sufficiency.”

The flexibility previously allowed under the federal regulations permitted an array of diverse activities that were responsive to the wide variation in need and personal circumstances in the lives of public assistance recipients.  These activities included attending job fairs, school conferences, nutrition classes, helping in a church’s food pantry, or taking a driver’s education course, as well as many others.  Under the new, more rigid definition of community service, local social services districts will find it impossible to continue activities that are personal to the recipient, such as drug abuse treatment or caring for a disabled household member. Foster care is likely not to be countable unless the districts create special intensely supervised programs for foster parents which meet HHS approval.

An Analysis of Current Plans

Empire Justice Center has completed a review of the employment plans of all 58 social services districts in New York State with a focus on the definition of community service activities included in their these plans.11  A detailed county-by-county analysis is available in PDF format on our website.  This analysis shows the current activities that each district counts as community service and an analysis of which activities are likely to not be countable under the new regulations.  A second chart shows whether these activities are countable in a category of work other than community service.

Every social services district in New York has defined community service to include activities that fail to fit new work definitions.  Community service activities fall into eleven general categories.  Most of these activities can be reclassified as other types of work activity under the new federal regulations, but because several of these categories do not count as core activities, their use is limited.  For example, alcohol and substance abuse treatment are now classified as job readiness assistance and are limited to six weeks per year, of which only four weeks can be consecutive.12  Several other categories of activity will simply be disallowed. Forty-three of the fifty-eight districts explicitly include alcohol and substance abuse treatment as community service.  Another seven districts presumably allow for alcohol and substance abuse treatment as community service based upon broad language, such as the Tioga County Department of Social Services counting “activities that prepare an individual for work.”

Of the 58 districts, 13 districts, including New York City, Nassau, Monroe and Suffolk, count a foster parent’s parenting time as community service, while 52 districts count individuals who remain in the home caring for a seriously ill or disabled household member in the participation rate.  Twenty-eight of fifty-eight districts explicitly allow for participation in court mandated activities to be counted as community service.  This includes both the  expected programs, like alcohol treatment and community volunteer activities, and also court mandated programs such as like anger management and parenting education.  Additionally, 12 districts include English as a Second Language (ESL) classes among their community service activities. 

The limitations imposed by the new federal regulations as well as more stringent definitions of work in other categories, will harm public assistance recipients who might otherwise benefit from variety of flexible and unique services that had been considered community service under the older, more adaptable definition.  For example, the Rockland County Department of Social Services counts its Next Step program as community service in its 2006-07 Employment Plan.  Next Step is a 25 hour per week program for mothers of children under age 3 that runs for 6 months.  In the Next Step program, mothers spend half their time in employment skills and readiness training and the other half in nursery learning parenting skills and resources. 

Because the New Start curriculum does not meet the requirement of a 20 hour per week core work program, it is unlikely that public assistance will continue to be available to the participants of this program.  To continue participating in this program as it is currently designed, these mothers would have to participate in a “core activity” for 20 hours per week in addition to the 25 hours per week of Next Step activities.  Alternately, the program could be restructured to more closely match the new work categories if funding allows.  The program could be expanded to 30 hours per week: 20 hours per week of employment related time, 10 hours per week of parenting time.  The 20 hours per week of employment time could be structured as a learn-to-work program with many hands-on components.  This portion of the program could then be counted as work experience rather than wholly excluded.  The program could also be extended to a full year program targeted to giving parents in the Next Step program a specific marketable job skill, such as obtaining a certificate to be a teaching assistant.  This program could meet the requirements for a vocational education program.

Of particular concern are public assistance recipients who must participate in court ordered activities, often as a result of probation or parole requirements.  Failure to comply with these activities can result in incarceration.  Many counties have accommodated individuals whose court ordered activities do not fit basic work definitions by classifying their activities as community service.  A public assistance recipient court ordered into a 60-day program intensive outpatient substance abuse treatment program, or requiring an inpatient program following unsuccessful participation in an outpatient program, may be unable to comply with the work requirements under the new work definitions. 

Public assistance recipients involved in ESL classes will have that activity counted as education directly related to employment, rather than community service.  Education directly related to employment, under the new definitions, is a non-core activity; it can only be counted toward work participation once an initial 20 hours of work per week are completed.  This change will prevent participation in a number of districts’ full-time English-language emersion programs.  In New York City and a few other districts, parents may attend school conferences or school counseling for children with barriers as a community service activity.  These critical parenting activities will still be permitted by using an excused absence from the program, if the state opts to include this specific activity in its work verification plan.  Under the new regulations, each state is permitted to define what it considers to be an excused absence and the policy for addressing excused absences as they arise.13  Excused absences are limited to 10 per year, with only 2 days in a given month.14

Caring for a disabled child can no longer count as community service.  However, the new regulation does allow states to exclude participants from the work participation rate if there is medical verification that she or he is needed at home to care for a sick or disabled household member who is not attending school full-time.15  How this will play out in under the new regulations remains to be seen.  Will absences from school because of illness or disability be taken into account when defining “attending full time”?  When children with significant barriers are enrolled in full time programs, how will local districts accommodate recipient parents who need those 6-7 hours per day to shop, do laundry, clean and attend to their own needs?

Separate State-funded Programs May Provide a Solution

One of the conditions of the TANF block grant is that the states meet maintenance of effort (MOE) requirement requiring a yearly expenditure of state funds on the TANF eligible population in the amount of least 80% of the money that was spent in FFY 1994 on the Aid to Families with Dependent Children Program.16  Until the DRA was passed earlier this year, programs funded with MOE dollars were not required to meet the work participation rates described above.  The DRA requires that all MOE funded programs must now meet the federal work participation rates.17

The Article VII budget bill which was recently passed by the legislature and signed by the Governor, included a provision that adds a new subdivision 12 to Social Services Law 159.  This new law allows the Office of Temporary and Disability Assistance to create separate state public assistance programs, funded only with state and local dollars, if they would assist the state in maximizing its participation rate. At the New York Public Welfare Association conference held on July 18, 2006, OTDA announced that it would utilize SSL §159(12) to create a separate state program for two parent families. Although the state will not be able to claim the money spent on assistance to these families to meet its maintenance of effort requirements, it will also not have to meet a 90% work participation rate for these households.  Similarly, OTDA can create a separate state program to preserve the valuable service provided by public assistance recipients who are foster parents. OTDA could also create a separate state program for those on public assistance who must comply with court ordered activities which no longer meet the definition of community service, in order to protect these recipients from facing the choice of facing a sanction for not  participating in a work program or violating the terms of their probation or parole.  As separate state, non-MOE programs, OTDA would be free to define foster parenting or court ordered activities as community service for the purposes of these programs.

In conclusion, the revamping of the definitions of work activities will make it more difficult for New York State to meet its work participation requirements.  All social services districts will be required to rewrite their plans and many vulnerable recipients may be threatened with sanctions for failure to participate if they can no longer participate in activities that allow them to comply with court ordered treatment, the needs of their disabled children or the needs of their foster children. However, with creative planning, OTDA can protect the important services provided by foster parents on public assistance and protect those who must participate in activities as a condition of probation or parole when those activities do not fit the new federal requirements for community service.

Note:  Saima Akhtar is currently a law intern at the Empire Justice Center, and has recently completed six months as a fellow of the Center for Women in Government and Civil Society with Empire Justice Center.  She is pursuing degrees in law and public policy at Albany Law School of Union University and the Rockefeller College of Public Affairs, University at Albany.  She holds dual bachelors degrees in Social Welfare and History of Science from the University of Wisconsin-Madison.

End Notes

2 71 Federal Register 37454-37483, available at http://www.gpoaccess.gov/fr/index.html
3 Welfare Reform:  HHS Should Exercise Oversight to Help Ensure TANF Work Participation is Measured Consistently Across States (GAO-05-821).
4 45 C.F.R. §§261.21,261.23, at 71 FR 37476 (2006).
5 42 U.S.C. §607(b)(3)(A)(ii) (2006).
6 Social Services Law 335-b(1)(d).
7 45 C.F.R. §§261.31(a), 261.32(a) at 71 FR 37477 (2006).
8 45 C.F.R. §§261.31(b), 261.32(b) at 71 FR 37477 (2006).
9 45 C.F.R. §§261.31(c), 261.32(c) at 71 FR 37477 (2006).
10 45 C.F.R. §261.2(h), at 71 FR 37475 (2006).
11 All 2006-2007 local district employment plans which have been approved by the Office of Temporary and Disability Assistance are available in PDF form on the Empire Justice website.
12 45 C.F.R. §261.34 (2006).
13 45 C.F.R. §261.60(b), at 71 FR 37479 (2006).
14 Id.
15 45 C.F.R. §261.2(n)(2)(i), at 71 FR 37476 (2006).
16 42 U.S.C 409(a)(7)(B)(i)(III)
17 42 U.S.C. 611(a)(1).