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Empire Justice Center's Comments on New York's TANF State Plan 2012 - 14

October 19, 2011


Thank you for the invitation to participate in this TANF plan forum.  My name is Susan Antos.  I am a staff attorney with the Empire Justice Center.  Empire Justice is a statewide backup, training and support center focused on civil legal services and areas of poverty law.  We undertake research and policy analysis and act as an informational clearinghouse.  Our attorneys work on issues related to public benefits (cash assistance, child care, food stamps and child support issues), health and Medicaid, Supplemental Security Income (SSI) and Social Security Disability (SSD) benefits, public and subsidized housing, as well as in other issue areas affecting low income individuals.  We have offices in Rochester, Albany, White Plains and on Long Island. 

A number of our advocates have many years of experience and expertise concerning the TANF program, particularly with regard to TANF implementation in  New York State.  We appreciate this opportunity to comment on the State’s draft TANF plan.  In addition, in our testimony, we accept your invitation to more generally offer our “ideas, suggestions and comments on welfare reform in New York.”

We urge OTDA to take leadership on a number of changes which will improve the lives of low income families in New York State and, where necessary, engage the legislature and the governor to adopt the following changes.

  • Change the work exemption rule to maximize child care funding for working families;
  • Ensure full statewide implementation of the Family Violence Option;
  • Improve opportunities for public assistance recipients to participate in education and training, including post-secondary education;
  • Adjust the public assistance gross income eligibility test to reflect poverty;
  • Equalize the automobile resource test so that it does not discriminate against individuals with disabilities.


As is all too well-known, New York State has recently suffered dramatic reductions in funding for subsidized child care, and anticipates further and deep cuts in the upcoming budget as a result of the elimination of the TANF Contingency and Emergency Contingency Funds. [1]   Last year, as a result of the loss of funding from the American Recovery and Reinvestment Act, New York lost $42 million dollars in child care funding that had been invested in child care for the two preceding fiscal years.  The cuts made in this year’s budget have reduced the total funds available for child care assistance from over $847 million in 2010-2011 to $804.3 million for 2011-2012 due to the loss of ARRA funds. The chart below illustrates the total impact of the loss of ARRA funds.

Because New York State law guarantees child care assistance to families on public assistance who participate in work activities, [2] the entire impact of this funding cut is falling upon those low-income working families who are not on public assistance. Without a child care subsidy, working families may be forced to either sacrifice the quality of care their children receive or leave the work force altogether because the cost of child care will exceed any benefits they gain from being employed. 

Since public assistance recipients with children who are assigned to work activities are guaranteed funding for child care, virtually all of the state’s drastic cuts must be absorbed by the subsidies for child care for employed parents. 

In response to this hopefully temporary crisis, we urge you to support legislation (S.5586/A.8101 and S.5335) that will save millions of dollars in child care subsidies for these employed parents.  The proposed legislation would exempt the parents of very young children from the welfare work requirements, thereby freeing up funds that can be utilized to preserve child care for already employed parents.

We know that there is resistance to the notion of even temporarily postponing the work requirements for parents receiving public assistance.  We understand that concern, but would respond with a few simple points:

  • With less funding, the question is not whether fewer parents will have access to child care, but only how the cuts will be allocated.  This proposal would make the provision of child care for parents who are currently employed the highest priority.  Most of the parents receiving these subsidies earn very modest incomes, and struggle to make ends meet.  The loss of support for child care means that they can no longer remain employed, that they will have to use most of their earnings just to meet child care costs, or that they will have to pursue less than appropriate sources of care for their children.  It might also mean the need to resort – or return – to public assistance. 
  • The proposed legislation is temporary, designed to address a recession-driven crisis.
  • The proposed work exemption would not affect the right of parents receiving welfare to request and secure child care if they are employed or engaged in other activities to improve their employability. 
  • Most people who turn to public assistance receive benefits for relatively short periods of time.  One of the main reasons they leave the welfare rolls is for employment.  And one of the factors that may make that departure from public assistance viable is the availability of a child care subsidy.  Continued massive reductions in those subsidies may well foreclose that path off of welfare and out of poverty.

Across the country, more than half of the states exempt parents with children under the age of 12 months from the work rules. [3] California, Vermont and Washington provide exemptions for up to two years of age. California’s two year work exemption for new parents receiving public assistance has saved the state $376.8 million annually as a result of the subsequent decreased demand on child care funds.  Nearly half of these savings were from administrative costs averted due to a decrease in funds necessary to run and maintain many of the work programs. [4] Accordingly, if New York were to assume similar savings in administrative costs, we estimate the state could generate an additional $12 million in savings.

The enactment of legislation to provide this work rules exemption will enable thousands of parents to retain the child care that makes their employment a viable choice.  We hope you will support it.

Ensure full statewide implementation of the Family Violence Option

In 1998 the federal Government Accounting Office reported that between 15% and 56% of welfare recipients are, or have been, victims of domestic violence. [5] Since that date, multiple studies have been published with similar findings indicating similar or even higher rates of abuse. [6] The Family Violence Option allows states flexibility in applying TANF rules to victims of domestic violence and allows states to waive such program requirements as work participation, paternity establishment and child support cooperation, time limits, drug/alcohol screening and treatment, alien deeming, residency, and other requirements as necessary if compliance with these requirements places clients at risk for further domestic violence or makes it more difficult for them to escape the abuse.  Recognizing this concern, New York lawmakers elected to provide our citizens with these crucial protections and quickly began implementation of the Family Violence Option (FVO) in 1998.  Despite law, regulations, and 12 years of appropriate administrative policies and directives from OTDA, implementation of the Family Violence Option remains very uneven and inconsistent throughout the state, at least as portrayed in Office of Temporary and Disability Assistance’s Statistical Report On the Operations of New York State Temporary Assistance Programs for the past decade.  Based on those annual statistical reports, some communities in our state have literally failed to implement this law and provide no or few Family Violence Option-related protections to domestic violence victims and their children year after year.  In light of this documented and ongoing problem, OTDA must fulfill its administrative responsibility to make sure that this critical legal protection is adequately implemented in all local social services districts.

New York employs universal screening of domestic violence and notification of Family Violence Option waiver assistance for all Temporary Assistance applicants and recipients.  It would be expected that use of LDSS-4583, “Domestic Violence Screening Form,” and an adequate explanation of its purpose and the provisions of the Domestic Violence Option, would provide ample opportunity to identify and serve domestic violence victims at rates somewhat consistent with research indicators.  However, since 2000 less than 2% of Temporary Assistance applicants/recipients statewide indicate domestic violence each year--far below expectation.  Based on OTDA’s most recent 2009 statistical report, 33 counties reported fewer than 30 persons and 23 counties reported fewer than 10 persons who indicated domestic violence-related dangers at screening.  In this same report, eight counties [7] reported no persons indicating danger, including three counties, Genesee, Herkimer and Montgomery, which received more than 1000 Temporary Assistance applications during the period.

Why are victims and their families not identified?  The obvious discrepancy between the number of domestic violence victims in our communities and the number of TA recipients/applicants indicating domestic violence is startling and raises numerous concerns about the screening and identification process currently employed.  If victims are not indicating domestic violence during the screening process in these communities, clearly the screening process is inadequate.

Domestic Violence Liaisons (DVLs) are responsible for conducting waiver assessments, providing emergency safety planning, informing participants and other social services programs about waiver decisions, and developing service plans in collaboration with the victim.  Public assistance applicants or recipients who identify as victims of domestic violence are to be immediately referred to the DVL to assess whether compliance with welfare program requirements would be unsafe.  The DVL assesses the applicant/recipient to determine if she is “credible” and whether a waiver is needed.  While there are statutes and policy guidelines to help document abuse and assist with credibility determinations, the ultimate decision about whether a person’s claims or fears are “credible” lies within the DVL’s discretion.

Approximately 58% of the individuals indicating that they had domestic violence concerns had their claims deemed “credible” by Domestic Violence Liaisons statewide since 2000.  Here, too, there are enormous county-by-county variations in credibility assessments within this average.  For example, in Saratoga County from July 2000 through June 2009, 227 persons indicated domestic violence concerns at screening.  Of those, a mere 10 persons (approximately 4%) have ever been found to be credible by that community’s DVL.  Similarly, in Fulton County between 2000 and 2009, 391 persons indicated domestic violence and, of those, only 7 (1.8%) were ever found to be credible.  In contrast, between 2000 and 2009 in Columbia County, 204 persons indicated domestic violence concerns and 171 (nearly 84%) were found to be credible.  During this same time period in Westchester, 1018 persons indicated domestic violence concerns and 864 (nearly 85%) were found to be credible. While these examples are indeed extreme, they are representative of the wide variation county to county. It is not possible that there are regional pockets of dishonest applicants in these counties with extremely low credibility rates and pockets of “true victims” in others.  Therefore, the problems clearly lie with the local district, their respective processes, and misuse of DVL discretion.  If legitimate victims are unable to clear even the basic credibility hurdle, they are improperly and illegally denied eligibility for FVO-specific protections that are specifically intended to enhance safety and security for themselves and their families.

Unfortunately, the credibility finding is not the sole barrier that must be overcome by domestic violence victims.  They must also obtain a waiver of programmatic requirements that place them in danger and have this waiver remain in effect for no less than four months. Although the DVL may find a person’s domestic violence claims credible, they also have discretion to grant or not grant FVO waivers.  OTDA statistics from 2001-2009 report that as few as 8 and as many as 13 counties annually failed to issue a single new waiver during an entire year.  There is large county variation here as well.  For example, OTDA’s 2009 report found that in Chemung County 15 persons were assessed as credible, but only a single person was granted a new waiver during that year; in Schoharie County, only 1 of 14 persons assessed credible was granted a new waiver; and in Oneida County, only 18 of 77 persons assessed credible were granted a new waiver.

Alternatively, a significant number of counties report granting waivers to virtually all persons found credible both in 2009 and historically.  These variations are very disturbing and, again, demonstrate profound problems with DVL discretion in the waiver assessment process and/or a data reporting problem.

When a waiver is granted, the DVL also determines the type of the waiver or waivers the victim will need and how long the waiver will last.  By statute, waivers must be granted for a minimum of four months, [8] but are renewable every six months and should last as long as necessary.  Statistically, the average duration of active waivers has been from 4-5 months since 2000.  However, here too is there evidence of county variation. For example in OTDA's 2009 statistics for counties outside of New York City,  21 counties’ waivers lasted 5 months or longer, 20 counties lasted 4 months, and 17 counties’ waivers lasted 0-3 months.  Again, as law dictates a minimum 4 month waiver, the counties with waivers lasting under 4 months violate this statute.  These numbers may also indicate further abuse of DVL discretion.

Overall, when a comparison between counties is undertaken, there exist major concerns as to whether the Family Violence Option legal protections are, in fact, available to victims of domestic violence in a significant number of areas in New York.  Despite OTDA’s efforts over the past decade-plus, the data indicate that a lot more needs to be done to protect victims of domestic violence receiving TA in a significant number of social services districts.  The Empire Justice Center strongly recommends that OTDA undertake the necessary remedial action now.  We stand ready to assist OTDA, as the agency deems helpful, to make this important legal protection available throughout all of New York.  

Access to education and training

The prolonged recession has demonstrated ever more clearly that people with inadequate education and skills cannot hope to compete for decent jobs in the New York economy. [9] The dramatic need for education and training is nowhere more pronounced than in the population of public assistance recipients.  In New York, there has been some progress in encouraging local districts to permit clients to engage in educational activity.  Perhaps most notable was the adoption of regulations that required districts to allow or require recipients to participate in education if they lacked basic literacy or a high school diploma.  Unfortunately, access to these activities is still too often denied to people desperately in need of enhanced educational opportunities. [10]

We therefore once more urge OTDA to support legislation that will enhance public assistance recipient access to education and training activities (A.2471/S.2323).  This bill would add participation in four-year college programs to the list of countable educational activities.  This provision tracks changes in federal regulation adopted by the Bush administration.  There is no factor comparable to a college degree in virtually guaranteeing employment, decent wages and a long-term departure from public assistance.  It is our understanding that OTDA has supported this modification; we hope that this will be the session in which it is adopted.
The proposed legislation provides that, to the extent possible, local districts must assign work activities that reflect the individual’s preferences, such as a request to participate in education or training.  This provision is already the law – too often disregarded – for households with children; the bill would expand it to all households.  It is unfortunate that such a provision is even necessary, but we are aware that it generated substantial opposition.  The primary concern, it appears, is that such a rule would impinge upon district discretion.  In fact, if applied properly, districts would be called upon to exercise broad discretion in evaluating the individual’s stated preferences and in determining whether that preference is appropriate and feasible.  In addition, the bill as revised includes a requirement that, if engaged in education, the individual must maintain satisfactory academic progress, as defined by federal law.
It is regrettable that New York policy, as reflected in the state’s TANF plan, does not include a four-year college option and that respect for client preferences is not applicable across the board.  We sincerely hope that – with OTDA’s support – this will change in the coming legislative session.

Abolish The 185% Cap On Earnings

When New York State passed its welfare reform initiative in 1997, working families on public assistance were promised that they could earn their way to the poverty level with the state’s enhanced earnings disregards.  Social Services Law §131-a(8)(a)(iii).  At that time, 185% of the standard of need was closer to the poverty level than it is today.  The poverty level is adjusted upward every year, and as a result, the poverty level is significantly higher than 185% of the standard of need in every county.  Recipients become ineligible for assistance at 185% of their district’s standard of need before they ever reach the poverty level.

When the Office of Temporary and Disability Assistance (OTDA) increased the shelter allowance effective November 1, 2003, the agency stated that

…far more recipients now work while on assistance than worked in the past.  Because of generous earning disregards and the State and Federal EITC, such recipients have greater amounts of disposable income available today than have been provided in the past through welfare grant levels.

Earnings disregards are an important piece of the income package that recipients are expected to use to pay their rent, and recipients should be able to work their way up to the poverty level as promised by Social Services Law §131-a(8)(a)(iii).  As the attached chart indicates, even with the 2010 grant increase, in no county of the state is a public assistance household of three with wages allowed to reach the poverty level.  In fact, the 185% cap results in most families losing public assistance eligibility when they are $300 - 400 under the poverty level.

In these tough economic times, this is an economic stimulus package that will reach the neediest working families. Repealing Social Services Law §131(a) (10) will help assure the success of families leaving welfare, allowing them to earn their way to poverty, before losing cash assistance.

Exempt automobiles from the resource limit

Persons who apply for public assistance (Family Assistance and Safety Net Assistance) are not eligible for benefits if they have resources in excess of amounts set forth in Social Services Law §131-n.  This law restricts eligibility to those with vehicles with a fair market value of not more than $4650, unless the individual needs the vehicle to work or look for work.  In that case, the person is allowed to have a vehicle with a fair market value which does not exceed $9300.

We urge New York State to exempt automobiles altogether when determining eligibility for public assistance. This would permit low income families to own reliable cars, and would make the public assistance rule consistent with the federal food stamp and Supplemental Security Income programs which allow a recipient to own one automobile of any value and maintain eligibility for food stamps or Supplemental Security Income (SSI), 02 ADM 6, dated August 8, 2002 (the food stamps rule); 20 CFR §416.1218 (SSI).

Particularly in rural areas, individuals need their automobiles to get to medical appointments and engage in other activities such as shopping.  It makes no sense to require disabled individuals to give up their automobiles while they are temporarily on public assistance and waiting for their Social Security Disability or Supplemental Security Income applications to be processed since they can retain their automobiles once they are approved for SSD or SSI.

New York’s current automobile resource level of $4650 is extremely outdated.  The food stamp program set the automobile resource limit at $4500 in 1977, and now permits states to exempt one vehicle per adult per household.  Currently 32 states exempt at least one automobile altogether, regardless of value, when determining public assistance eligibility. [11] 
Raising the vehicle resource rule would also remove the inherent illegal discrimination against individuals with disabilities in the current law. A rule permitting only those who work or who are looking for work to have a vehicle exceeding the $4650 fair market value creates an eligibility standard that is different for persons with disabilities and violates the Americans with Disabilities Act (ADA). 42 USC §12132.  Persons on public assistance, who are disabled and unable to work, are “qualified individuals with a disability” under the ADA.  Local Social Services districts and the Office of Temporary and Disability Assistance are “public entities” as defined under this statute.   The ADA plainly prohibits public entities from excluding the disabled from participating in or benefitting from a public program, activity or service “solely by reasons of disability.” Additionally, the ADA regulations promulgated by the U.S. Department of Justice place an affirmative obligation on DSS to prevent this type of disability discrimination.


If implemented, the forgoing recommendations will improve the ability of low income New Yorkers to become self-sufficient and help assure their safety.  It would be our pleasure to work with you in any way we can, to help these recommendations become policy and law in New York State.

End Notes:
 [1] L.Schott and L. Pavetti, Center on Budget and Policy Priorities, Federal TANF Funding Shrinking While Need Remains High (Dec.10, 2010).
 [2] N.Y. Soc. Serv. Law §410-w (1) (a)-(e) (McKinney 2010).
 [3] Alaska, California, Connecticut, Delaware, D.C., Georgia, Illinois, Kentucky, Louisiana, Maine, Maryland, Mississippi, Missouri, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Pennsylvania, Rhode Island, Texas, Vermont, Virginia, Washington, West Virginia. See Administration for Children and Families, Temporary Assistance for Needy Families (TANF): Eighth Annual Report to Congress: Specific Provisions of State Programs. 
 [4] S5535-2011 Memo (May 9, 2011), available at
 [5] GAO, Domestic Violence: Prevalence and Implications for Employment Among Welfare Recipients, GAO/HEHS-99-12 (Washington, D.C.: November 1998). 
 [6] GAO, State Approaches to Screening for Domestic Violence Could Benefit from HHS Guidance, GAO-05-701 (Washington, D.C.: August 2005) (On page 7, this document highlights several published studies).  See also Judy L. Postmus, Battered and On Welfare: The Experiences of Women With the Family Violence Option, Journal of Sociology and Social Welfare, June 2004.  Ms. Postmus’s research discussed studies demonstrating that 20-32% of recipients report current domestic violence and between 55-65% experienced recent or past incidents.
 [7] OTDA’s 2009 Statistical Report on the Operations of NYS Temporary Assistance Programs reported  Yates, Seneca, Putnam, Montgomery, Madison, Herkimer, Hamilton and Genesee counties had 0 persons indicating current danger.   
 [8] SSL § 349(a)(6).
 [9] One table of nationwide statistics suffices to bring home the point. 

Unemployment rate in 2010 (Percent) Education Attained Median Weekly Earnings in 2010 (Dollars)
1.9% Doctoral Degree $1,550
2.4 Professional Degree 1,610
4.0 Master's Degree 1,272
5.4 Bachelor's Degree 1,038
7.0  Associate's Degree
9.2 Some College, No Degree 712
10.3 High School Graduate
14.9 Less than a High School Diploma 444
8.2 All Workers 782

Data are 2010 annual averages for persons age 25 and over. Earnings are for full-time wage and salary workers.
Source: Bureau of Labor Statistics, Current Population Survey.   
 [10] See, for example, Lazar Treschan, Brooke Richie-Babbage and Santa Soriano-Vazquez,  “Missed Opportunity: How New York Can Do A Better Job of Connecting Youth on Public Assistance to Education and Jobs,”  Community Service Society and Resilience Advocacy Project, June 2011.
 [11] The Urban Institute, Welfare Rules Database,

For more information, please contact:

Susan C. Antos

Empire Justice Center
119 Washington Avenue
Albany, NY  12210 

(518) 462-6831
(518) 935-2852

Amy Schwartz-Wallace

Empire Justice Center
Telesca Center for Justice
One West Main Street, Suite 200
Rochester, NY  14614 

(585) 454-4060
(585) 454-2518

Don Friedman

Empire Justice Center
at the Public Advocacy Center
Touro Law School
225 Eastview Drive-Room 222
Central Islip, NY  11722

(631) 650-2316
(631) 348-3571