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Empire Justice Center Testimony on New York State's TANF Plan: 2009 - 2011

November 14, 2008


Prepared by:

Susan C. Antos

Presented by:

Susan C. Antos 

Good morning. 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. We currently have staff attorneys specializing in 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.

Our testimony will focus upon a few key areas in which we would urge OTDA and, if necessary, the legislature and the governor, to adopt an array of changes. These areas are the public assistance gross income eligibility test, the resource test as applied to automobiles, the implementation of the Family Violence Option and the education and training rules.

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). However, because the Social Services Law ˜131-a(10) makes families with incomes over 185% of the standard of need ineligible for assistance, working families become ineligible for assistance before they ever earn up to the poverty level.

In 1997, New York’s welfare reform law introduced a generous earnings disregard designed to allow families to earn up to the poverty level. 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, 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 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.

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.

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.1 Since that date, multiple studies have been published with similar findings indicating similar or even higher rates of abuse.2 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 10 years of comprehensive administrative policies and directives from both OTDA and OCFS, implementation of the Family Violence Option remains uneven and inconsistent throughout the state. 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, the Office of Temporary and Disability Assistance must address this challenge.

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 careful interviewing of applicants and those recertifying would provide ample opportunity to identify and serve domestic violence victims at rates somewhat consistent with research indicators. Further, because of New York State’s unique funding structure for domestic violence residential programs, it would be expected that Family Violence Option waiver percentages might be higher than those in other states. In New York, licensed residential domestic violence services rely primarily on funding from the local social services districts to pay for residents’ per diem stays. As a result, all domestic violence program residents are required to apply for Temporary Assistance and, if deemed eligible, the appropriate social services district covers the costs of the resident’s shelter stay.3 The majority of domestic violence shelter residents are determined eligible to have their per diems either fully or partially compensated. Despite these factors, since 2000 less than 2% of Temporary Assistance applicants/recipients indicate domestic violence each year-far below expectation. Of these few who actually raise domestic violence and abuse concerns, nearly half of this limited group are deemed “not credible” by Domestic Violence Liaisons throughout the state.4 It is to this even smaller subset of “credible victims” are Family Violence Option related services offered.

In every county, domestic violence victims who flee their abusers and seek shelter services should be indicating domestic violence in their applications for assistance-even if the assistance is very temporary and intended only to reimburse the domestic violence program for the sheltering per diem. While occupancy rates and shelter stays may vary from county to county, all counties with residential domestic violence services can claim at least one occupant during the course of a year and most claim far, far more.5 In fact, in some communities, existing shelters are unable to serve some victims and their children because of insufficient vacancies.6 However, based on OTDA’s 2007 statistical report, 36 counties outside of New York City reported fewer than 30 persons who indicated domestic violence-related dangers at screening. In this same report, 8 counties7 reported no persons indicating danger. 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 this screening process, clearly the screening process is inadequate. The Office of Temporary and Disability Assistance must outline some method of flushing out serious and ongoing screening and notification issues in the local districts.

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.

As noted above, an average of 57.9% of those individuals had their concerns and claims deemed “credible” by Domestic Violence Liaisons statewide since 2000. There are enormous county-by-county variations in credibility assessments within this average.

For example, in Saratoga County from July 2000 through June 2007, 208 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 2007, 271 persons person indicated domestic violence and, of those, only 6 people (2.2%) were ever found to be credible. In Orleans County, the domestic violence shelter services are not contracted out to the local domestic violence shelter and are, instead, maintained in-house by the local district. As a result, in that county, the DVL is also the local domestic violence service provider. In Orleans County, of the mere 87 persons who indicated domestic violence from 2000- 2007, only 21 persons (23.5%) were found to be credible. In contrast, between 2000 and 2007 in Columbia County, 155 persons indicated domestic violence concerns and 133 (over 86%) were found to be credible. During this same time period in Westchester, 724 persons indicated domestic violence concerns between 2000 and 2007 and 597 (82.4%) were found to be credible. While these examples are indeed extreme, they are representative of the wide variation county to county. It 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 abuse 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. As expected, there is county variation here as well. For example, OTDA’s 2007 Report found that in Chemung County 31 persons were assessed as credible, but only 3 were granted new waivers during that year (approximately 3%) were granted new waivers during that year.

Even more disturbing-the OTDA statistics from 2001-2007 report that as few as 8 and as many as 13 counties annually failed to issue a single new waiver during the entire year. Alternatively, Dutchess County reported 76 persons were found credible and 71 (over 94%) were granted new waivers during the year. These numbers are astounding and demonstrate clear and profound problems with DVL discretion in the waiver assessment process.

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 months8, 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 2007 statistics outside of New York City, 16 counties waivers lasted 5 months or longer, 26 counties lasted 4 months, and 15 counties waivers lasted 3-0 months. Again, as law dictates a minimum 4 month waiver, the counties with waivers lasting under 4 months violate this statute. Again, these numbers indicate further abuse of DVL discretion.

Pursuant to OTDA policy9, a DVL may also grant both full FVO waivers and partial waivers. Full waivers completely relieve the public assistance applicant or recipient of fulfilling any part of the programmatic requirement that has been waived.

Partial waivers (most often seen in child support and paternity establishment requirements, as well as employment requirements) waive some, but not all, of the programmatic requirements. Other than via policy directive, there does not appear to be any statutory or regulatory authority for partial waivers. These modified waivers are an invention introduced several years ago. To date, there has been no data to suggest that these partial waivers protect victims and their families any better than full waivers.

Additionally, we have not seen any data from OTDA tracking instances where partial waivers were granted in lieu of full waivers or no waivers, or in what types of cases. Given the broad discretion already given to DVLs and the instances of abuse outlined above, we encourage the TANF State Plan outline a methodology for tracking and studying these waivers to determine their function, usefulness, and effectiveness.

Access to education and training

We would like to take this opportunity to renew our strong support for legislation that will enhance public assistance recipient access to education and training activities.  As you know, a bill crafted to advance this objective was introduced in both houses of the Legislature this past session (A.11297/S8416), and garnered considerable support, although it did not ultimately come to a vote. A significant factor was OTDA’s opposition.

The bill has three fairly simple elements:

  1. The bill would require that districts count towards a recipient's work obligations hours spent in unsupervised homework to the extent permissible under the final Federal TANF rule. We appreciate that OTDA has already authorized districts to do this, but for two reasons we urge your support for this legislation. First, making this a statutory provision would make it less subject to changing administrations and political tides. Second, it is hard to conceive of a reason why the state should not adopt a uniform statewide policy of counting of these hours. The failure to count these hours will at best impede, and more likely render impossible a recipient’s capacity to pursue critical educational activities. The counting of these hours also assists the district in meeting its participation rate obligations.
  2. As authorized in the final TANF rule, the bill would add participation in four-year college programs to the list of countable educational activities. OTDA has supported legislation to this effect, so we have a meeting of the minds on this issue. On the other hand, we are aware that this provision has generated some opposition, generally premised on the notion that allowing access to college for public assistance recipients would give them an unfair advantage over other lower-income families for which college is perhaps not seen as an option. Our response is simply that, to the extent that this concern may be valid, the answer is not to punish the public assistance families, but rather to take action to ensure broader college access for all New Yorkers.
  3. Finally, the proposed legislation would provide that a local district cannot unreasonably deny a recipient’s request to participate in education or training activities.  We recognize that this provision generated perhaps the strongest opposition on the part of OTDA; we believe that this opposition is not warranted. This is not the place to address OTDA’s concerns in detail. But we will note that, in its memorandum of opposition, OTDA pointed repeatedly to the ways in which the bill deprives local districts of needed discretion to make individualized assessments and assignments. In fact, too many districts currently make assignments without regard for or without a meaningful effort to ascertain the individual's needs, employment history, disabilities, education and skill deficits, or preferences. The modest requirement that they not unreasonably deny a recipient the right to participate in education and training would mean that they now must make just such an individualized evaluation and determination. It is inconceivable that the State would protect the districts' discretion to unreasonably deny access to education and training. This is all the more remarkable in view of (a) OTDA’s increasing recognition that education and skill deficits tend to be inadequately considered when districts make work assignments, and (b) overwhelming research revealing that many former welfare recipients have been struggling in the labor market and unable to earn decent wages, largely as a result of their education and skill deficits.

We sincerely hope that OTDA will become a partner in the effort to expand access to education and training, and in turn, to improve the prospects that people leaving the welfare rolls may also exit from poverty.

Clarify provisions on immigrant eligibility for Family Assistance

Section B(i) of the draft TANF plan addresses immigrant eligibility for Family Assistance. We are concerned that the provisions of this section are misleading and difficult to comprehend. The implication that immigrants in the first six, humanitarian based, categories are ineligible for benefits five years after their entry into status is misleading since, at the end of the five years, they would continue to be eligible as "qualified aliens" (assuming they have not exhausted the general 5 year TANF limits).  Thus we urge that the phrase "for the first five years from the date the person entered...." be eliminated.

Although the seventh category is largely correct, it is nearly incomprehensible and, practically speaking, unnecessary, given the fact that all Lawful Permanent Residents (LPRs) who have been in a qualified status for at least five years are eligible for benefits, including LPRs with 40 qualifying quarters. This is so regardless of whether they have received any means-tested benefits during that period.

Thank you for this opportunity to testify. We at Empire Justice Center have worked closely with OTDA staff on issues of mutual concern and of importance to the people we all serve. We look forward to continuing to do so in the challenging years ahead.

For further information, contact:
Susan Antos, (185% rule)
Amy Schwartz, (Family Violence Option)
Don Friedman, (education and training)
Barbara Weiner, (immigration and food stamps) 


Supporting Documents:

Welfare Recipients and Earnings

NYS TANF Plan Family Violence Option Attachment