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Squeezing the “Happily Sanctioned Family”

Local Districts Turn Up the Heat

September 1, 2004

Public Assistance recipients who reside in households with dependant children and who fail to comply with work rules are sanctioned for incrementally increasing periods of time:

  • Until they comply for the first offense, 
  • For the longer of three months or until compliance for the second offense, 
  • And for six months or until compliance for the third offense. Social Services Law §342(2) and 12 NYCRR 1300.12(d)(1).

The sanction results in a pro rata reduction to the grant of the sanctioned person’s household. This means that for a family of three with one sanctioned parent, the household would get 2/3 of a public assistance grant for three people.

Some families, after the three month or six month period is over, do not return to the welfare rolls, but continue to get pro rata grants. Although they may not return to the welfare office to comply because of real and multiple barriers to employment, they are frequently subject to disrespect from local social services districts, which label them “happily sanctioned,” because they have no way to compel the sanctioned household member to work. Districts have devised a number of strategies to try to force these families into work compliance status. This article will review some of the recent initiatives by various social services districts to try to force compliance with work rules.

Suing the Custodial Parent for Support in Family Court

In Greene County, the Commissioner recently sued at least one sanctioned parent for the support of children who were in her custody!! Although the children lived with her, the petition that alleged that she failed “to provide fair and reasonable support” according to her “means and earning capacity.” In particular, the petition accused her of “living off of children’s Temporary Assistance grant.” Over the last few years, several local services districts have attempted to sue the sanctioned custodial parent in family court to obtain a support order. In those cases, and in this case, the Greater Upstate Law Project (GULP) was able to get the State Office of Temporary and Disability Assistance (OTDA) to intervene and direct the County to discontinue the action. This is because the practice violates federal and state laws.

As a condition of receiving public assistance, an applicant for public assistance must assign her right to support to the local social services district. Social Services Law 349-b. The local Commissioner then is allowed to sue the absent parent under this assignment to recover the cost of public assistance paid to the family. This assignment does not give the Commissioner the right to sue the assignor. The legislative history of the IV-D statute is clear that IV-D funds are to be used to identify and locate absent parents. See S.Rep.No. 1356, 93rd Cong., 2d Sess, reprinted in 1974 U.S. Code Cong. And Ad. News 8133, 8152. Sections of Title IV-D of the Social Security Act refer to obtaining support from “non-custodial parents.” 42 U.S.C. 651, et. Seq,; 45 C.F.R. 232.40 (reference to absent parent).

There has been little litigation on this issue. A Georgia case, Cloud v. Bowen, which is available on the Benefits Law Database, was settled by a consent order in which the state of Georgia agreed to stop all collection activities against custodial parents. In an entirely unrelated context, the Albany County Family Court stated that the “Child Support Standards Act only applies where there is a “custodial” and a “non-custodial” parent in a case with very different facts (the mother, living with the father and child sued for child support). Benoit v. Benoit  NY LJ 12/15/95, col. 6). However, GULP has two memos from the New York State Department of Social Services (predecessor to the OTDA) which states that pursuit of support from a sanctioned custodial parent is not proper.

“Accountability for Sanctioned Adults”: Sullivan County Uses New Eligibility Requirements to Impose Full Family Sanctions and Files Criminal Charges for Non-Support
Sullivan County has developed a program called Accountability for Sanctioned Adults (ASA) which is a multiple step process resulting in criminal charges if the sanctioned person does not come into compliance with the work rules.

Initially, Sullivan County ceases issuing benefits electronically to families whose durational sanctions have expired. Benefits are provided in a check form after the sanctioned individual meets and cooperates with the ASA team. Even if the household has a zero cash grant due to the entire grant going to rent and utility bills, the sanctioned parent is required to come to the ASA meeting. Failure to show up for two appointments will result in the client’s case being closed. Adults who show up at Sullivan County must provide proof of how they are spending their cash grant, and comply with a job search program. Sullivan County considers this an eligibility requirement and failure to comply results in a discontinuance of benefits rather than a continued sanction. The discontinuance has been upheld in a decision after Fair Hearing #3713007Z (7/15/02). In this hearing, the appellant was a college student but the Administrative Law Judge upheld the sanction, noting that she was “attending college without the agency’s approval.”

This is a variation of the Pathways scheme which was challenged by Heidi Siegfried, then of the Rural Law Center, in Henopp v. Wing, 283 A.D. 2d 986 (Fourth Dept. 2001). Although the Court in Henopp made clear that Food Stamps and Medicaid could not be discontinued to families that had a sanctioned household member that refused to attend a Pathways meeting, the discontinuance of cash benefits to the family was upheld. The petition is available on the Benefits Law Database.

Sullivan County has also referred sanctioned parents to law enforcement for prosecution under New York Penal Law 260.05. Non-support of a child in the second degree is a Class A Misdemeanor punishable by a fine not to exceed $1,000.00 or imprisonment not to exceed one year. A person who has been previously convicted under 260.05 can be charged with non-support of a child in the First Degree which is a Class E Felony punishable by a fine not to exceed $5,000.00 and imprisonment not to exceed four years.

Presenting the Sanctioned Individual With A Job; Refusal Results in Closing A Case for Failure to Utilize an Available Resource

Erie and Onondaga Counties have come up with two variations on a theme which begins with the county arranging for a “job offer” for the sanctioned individual. The failure to take that “job” is construed as a failure to pursue an available resource, and the county then terminates benefits to the entire family when the sanctioned person fails or refuses to take a job.

Erie County’s strategy is to have the sanctioned individual offered a job through Greater Buffalo Works. The “jobs” are funded by the New York’s Work Block Grant, and the person is paid $5.15 an hour. The person reports for work as if it is a job and Greater Buffalo Works counsels the sanctioned person on how to obtain employment, and engages the person in job readiness activities. If the person does not show up for “work”, the household’s case is closed for failure to take advantage of an available resource.

Onondaga County mirrors the Erie County program, but has added in a client interview which obtains data on the sanctioned household. The Onondaga County program refers the person to 35 hours per week of “work” with a rate of pay of $5.15 an hour and treats failure to report as a refusal to accept employment resulting in a case closure for the entire case. Both counties advise the person to arrange their own child care.

The Onondaga County program has identified the demographics and characteristics of sanctioned families. Eighteen percent of the sanctioned families have an SSI recipient in the household, 17% have four or more children, 17% reported “problems” with children, 19% had medical, psychological or drug and alcohol issues, 3.4% admitted to domestic violence, and 3.4% were attending college. Of 20 persons offered employment, 15 out 20 reported for work and the 5 who did not show up had their cases closed immediately. Of the remaining 15, 5 were later closed for not showing up, although the agency learned that 2 of those 5 had obtained employment. Six obtained employment through the Onondaga County program and of those six, two lost the employment within a short time.

In addition, Onondaga County has also determined to “fast track” all non-compliant individuals. They have adopted a one day turn around time on sending conciliation notices and on conciliation decisions with sanctions issued within 30 days.

The Governor’s proposed budget includes an amendment to Social Services Law 342 which would impose full family sanctions upon all recipients at the close of the durational sanction period. See February 2004, Legal Services Journal, “The Governor’s Welfare Proposals: Full Family Sanctions, Grant Cuts and Reductions in the Earned Income Disregard, p. 1. Whether that provision passes will be known in the near future. In the meantime, advocates should be on the alert for increasing activity against families that contain sanctioned individuals. 

 





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