NCAI
Indian Amendments Package to Pub. L. 104-193
NCAI
Indian Amendments Package to Pub. L. 104-193
"Personal Responsibility and Work Opportunity Reconciliation Act of 1996"
This 18 page amendments package is provided as an initial response by tribal leaders to amend the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Some of these amendments were made part of the DHHS Secretary's technical amendments package that was enacted as part of the Balanced Budget Act of 1997. Questions or clarification of any of the following materials should be addressed to NCAI at (202) 466-7767.
AMENDMENT #1 - Supplemental Funds for Tribal TANF Programs - Providing to tribes the total funding used by the states to provide services to Indian families who will now be served by a tribal program, not just the federal share.
Proposed Amendment: Below are two options for federal contribution of what would be the state share for tribal TANF programs.
(Two) OPTIONS TO PROVIDE SUPPLEMENTAL FUNDS TO TRIBAL TANF PROGRAMS TO REPLACE THE LOSS OF STATE FUNDS
Option 1 - Secretary to pay tribes with approved TANF plans both the federal share, and what would have been the state share, of TANF funds (an entitlement).
Title I of P.L. 104-193, Section 412 (a) (1) (B) is amended to read:
"(a) GRANTS FOR INDIAN TRIBES.-
(1) TRIBAL ASSISTANCE GRANT.-
(A) IN GENERAL.- For each of fiscal years 1997, 1998, 1999, 2000, 2001, and 2002, the Secretary shall pay to each Indian tribe that has an approved tribal family assistance plan a tribal family assistance grant for the fiscal year in an amount equal to the amount determined under subparagraph (B), and shall reduce the grant payable to any state in which lies the service area or areas of the Indian tribe by that portion of the amount so determined that is attributable to federal expenditures by the state.
(B) AMOUNT DETERMINED.-
(I) IN GENERAL.- The amount determined under this subparagraph is an amount equal to
the total amount of the Federal payments to a state or states under Section 403 (as
in effect during such fiscal year) for fiscal year 1994 attributable to expenditures
(other than child care expenditures) and the amount of state expenditures (other
than child care) as required in Section 409 (B) by the State or States
under parts A and F (as so in effect) for fiscal year 1994 for Indian families
residing in the service area or areas identified by the Indian tribe pursuant to
Subsection (b) (1) (C) of this Section."
Explanation: Nationally, Indian tribes have unemployment and poverty rates far in excess of the national average. Under P.L. 104-193, a tribe which opts to administer a TANF program is not guaranteed of receiving any state supplemental funds. Most tribes are not in a financial situation to provide supplemental TANF funds, especially in light of the fact that they have a service population which is disproportionately in need of TANF services.
If a tribe does not operate TANF, the state must provide TANF services to Indian people in tribal areas. The amendment would require the federal government to provide to tribes with approved TANF plans the amount of state funding (except for child care funds) which would be spent in the tribal areas. Child care funds are not included, because tribes under P.L. 104-193 are now receiving child care funds directly.
Option 2 - Separate federal authorization for funding to make up for the lack of state TANF funds for tribal TANF programs.
Section 412. Add:
"(I). FUNDS FOR TRIBAL TANF PROGRAMS.
In addition to the funds provided under (a) (1) of this Section, there shall be appropriated $160 million annually for payments to tribes with approved TANF programs. The Secretary shall report to Congress of distribution of such funds, and the anticipated need for such funds as tribes assume administration of the TANF program. Funding not utilized in any fiscal year shall revert to the Treasury."
Explanation: This provides authority for an appropriation equal to 1% of the $16 billion currently provided to states for TANF to make up to the expected loss of state funds for tribes which administer the TANF program. Also, see explanation above.
AMENDMENT #2 - Support proposed DHHS Amendment regarding tribal access to loans. (see below)
4. AVAILABILITY OF TANF LOANS TO INDIAN TRIBES
Problem: Sec. 412 (f) (1) of the Social Security Act, which specifies that Indian tribes are subject to the penalty under Sec. 409 (a) (6) for failure to repay a loan under Sec. 406, indicates Congress' intent that the tribes be eligible for these loans. However, Sec. 406 speaks only in terms of loan-eligible states. The following amendment to Sec. 406 would provide explicitly for Indian tribes' eligibility for loans:
Proposed Amendment:
( ) AVAILABILITY OF FEDERAL LOANS TO INDIAN TRIBES. -- Section 406 (a) is amended by adding after paragraph (2) the following:
"(3) ELIGIBILITY OF INDIAN TRIBES. -- For purposes of this Section--
(A) the term 'loan eligibility state' includes an Indian tribe receiving a family assistance grant under Section 412 (a); and
(B) the reference in Subsection (C) to Section 403 (a) shall be considered, in the case of an Indian tribe, to be a reference to Section 412 (a)."
Additional Explanation to Loan Program Amendment: This provision would make tribes which operate a TANF program eligible for the federal welfare program loans. A specific use of the loan program for states is to meet their needs if Indian people move from tribal service areas to state service areas. There is significant mobility in the Indian population, and tribes would just as likely need loan funds to meet emergency needs for Indian people moving into their service areas.
The section of the law concerning the tribal TANF programs states in Section 412 (d) that nothing in that section shall preclude an Indian tribe from seeking emergency assistance from any federal loan program or emergency fund. Apparently DHHS does not think this provision is clear with regard to tribal eligibility for the Section 406 loan program.
AMENDMENT #3 - Make tribes eligible for the Contingency Fund, for bonuses based on a reduction in the rate of out-of-wedlock births, and for funding for establishment of data systems and other programs necessary for child support enforcement and TANF programs.
Title I, at the end of Section 412, add:
"(I) TRIBAL DEVELOPMENT FUNDS-
(1) ESTABLISHMENT. There is hereby established in the Treasury of the United States a fund which shall be known as the "Tribal Development Fund" (in this section referred to as the "Fund").
(2) DEPOSITS INTO THE FUND. Out of any money in the Treasury of the United States not otherwise appropriated, there are appropriated for fiscal years 1997, 1998, 1999, 2000, and 2001 such sums as are necessary for payment into the Fund in a total amount not to exceed $150,000,000.
(3) GRANTS. The Secretary shall make grants to tribes, taking into account tribal financial resources, unemployment, poverty data, the reduction in out-of-wedlock births, and tribal plans for child support enforcement.
Explanation: The Act provides for a $2 billion contingency fund for state welfare programs but not for tribal programs. It also provides bonuses for states, but not tribes, who reduce the rate of out-of-wedlock births. It also provides $400 million to states, but not to tribes, for data systems needed for child support enforcement programs. This amendment would provide the same array of opportunities to tribal governments as is provided to state governments.
AMENDMENT #4 - Support the Secretary's amendments on disregard of time limits in certain tribal areas. (see below)
8. TIME LIMIT ON BENEFITS: DISREGARD OF CERTAIN ASSISTANCE TO RESERVATION RESIDENTS.
Problem: In recognition of high jobless rates and lack of employment opportunities in Indian country, Sec. 408 (a) (7) (D) of the Social Security Act provides for disregard, in determining the 60-month time limit on TANF assistance to a family, of assistance to residents of Indian reservations where specified conditions are met. The current statute presents various difficulties:
(1) It requires reliance on data that may not be available. Neither the Interior Department's Bureau of Indian Affairs (BIA) nor any other federal agency collects monthly data on the population or labor force status of persons in reservation areas or in Alaska Native villages.
(2) It does not apply to TANF programs operated by tribes, but only to state programs.
(3) Its narrow reference to "Indian reservation" excludes important areas within the standard definition of Indian country (e.g., former reservation areas in Oklahoma).
(4) Its 1,000-person population threshold would have the clearly unintended effect of making the disregard inapplicable to residents of most Alaska Native villages, as well as a large majority of Indian reservation areas, notably many small reservations in remote areas where unemployment is particularly severe.
Proposed Amendment: (This is the DHHS - program amendment)
( ) TIME LIMIT ON BENEFITS: DISREGARD OF CERTAIN ASSISTANCE TO RESERVATION RESIDENTS.--Section 408 (a) (7) (D) is amended to read as follows:
"(D) DISREGARD OF MONTHS OF ASSISTANCE RECEIVED BY ADULTS WHILE LIVING ON TRIBAL LAND IN INDIAN COUNTRY, OR IN ALASKA NATIVE VILLAGES, WITH 50 PERCENT UNEMPLOYMENT.--
"(i) DISREGARD REQUIREMENT.-- In determining the number of months for which an adult has received assistance under the state or tribal program under this part, the state or tribe shall disregard any month during which the adult lived on an Indian reservation, in Indian country occupied by a tribe, or in an Alaska native village, if the most reliable federal data available with respect to such month (or a period including such month) indicate that at least 50 percent of the Indian adults living on such Indian reservation, in Indian country occupied by such tribe, or in such village, were not employed.
"(ii) DEFINITION.-- For purposes of this subparagraph, 'Indian country' has the meaning given such term in Section 1151 of Title 18 of the United States Code."
AMENDMENT #5 - Tribal Determination of BIA/GA Program Payment Levels - Providing tribes the right to determine the appropriate level of payment under the Bureau of Indian Affairs General Assistance program.
Explanation: Under the Act, Bureau of Indian Affairs General Assistance (GA) payments are tied to the level of payments made by the state in its Temporary Assistance for Needy Families (TANF) Block Grant. But, TANF, unlike its predecessor AFDC, is not an assistance program at all. A state could, for instance, emphasize using TANF for job training and transportation, and provide little funding in the form of cash assistance.
It is likely that state TANF programs will result in decreased benefits, in part because states are required to provide only 75% of the supplemental funds they previously contributed and also because states are authorized to transfer up to 30% of their TANF funds to other programs. The situation will vary from state to state, so there is no definitive answer to the question of how TANF will affect the BIA General Assistance program. It is likely that the new welfare reform law will, at least in some states, place increased pressure on the BIA General Assistance program.
The BIA/GA and the TANF (former AFDC) programs serve different constituencies:
-- TANF is for families with dependent children.
-- BIA General Assistance is for persons who DO NOT qualify for AFDC -- so the BIA/GA program is more likely to serve older people without dependent children.
The fact that the budgetary line-item for the GA program is (as of FY 1996) in the BIA Tribal Priority Allocation budget category appears inconsistent with the Act's requirement that GA payments be tied to the level of payments in the state's TANF program. Also, there is a question as to whether the welfare reform statute's requirement that GA payments be tied to the state payment levels will apply to the BIA-administered GA programs only, or whether it will apply to both BIA and tribally-administered GA programs. The Act states that BIA General Assistance payments shall be made--
"(1) after April 29, 1985, and before October 1, 1995, on the basis of Aid to Families with Dependent Children (AFDC) standards of need; and
"(2) on and after October 1, 1995, on the basis of standards of need established under the state program funded under part A of Title IV of the Social Security Act, except that where a state ratably reduced its AFDC or state program payments, the Bureau shall reduce General Assistance payments in such state by the same percentage as the state has reduced the AFDC or state program payment."
Proposed Amendment: Strike the above provision, Title I, Section 110 (k), in P. L.104-193.
AMENDMENT #6 - Child Support Enforcement Amendment - Cooperative Agreements with States. Support proposed DHHS amendment (below):
Sec. 375: CSE for Indian Tribes:
1. COOPERATIVE AGREEMENTS WITH STATES.
Problems: Sec. 454 (33) of the Social Security Act, as added by Sec. 375 (a) of PRWORA, requires several minor amendments to permit implementation.
This provision as drafted sets threshold conditions for tribal participation in a cooperative agreement that represents burdensome and unnecessary barriers. This provision requires a tribal court system to have the authority to establish paternity, establish, modify and enforce support orders, and have child support guidelines established by the tribe or tribal organization. Some tribes may have the authority to accomplish some, but not all, of these functions, and may be willing to use state procedures and guidelines. Amendments made by paragraphs (1) and (2) below would permit tribal participation in cooperative agreements without requiring them to provide all services listed and to adopt tribal guidelines.
This provision also requires amendments (made by paragraph (3) and (4) below) to conform terminology to that is used in title IV-D generally.
Proposed Amendment:
( ) COOPERATIVE AGREEMENTS BY INDIAN TRIBES AND STATES FOR CSE.-- Section 454 (33), as added by Section 375 (a) (3) of PRWORA, is amended--
(1) by striking "and enforce support orders, and" and inserting "or enforce support orders, or";
(2) by striking "guidelines established by such tribe or organization" and inserting "guidelines established or adopted by such tribe or organization";
(3) by striking "funding collected' and inserting "collections"; and
(4) by striking "such funding" and inserting "such collections".
AMENDMENT #7 - Child Support Enforcement Amendment #2 - Direct Funding to Tribes.
Title III, Section 375 (b) is amended to read:
"(b) The Secretary shall make direct payments to an Indian tribe or tribal organization which has an approved child support enforcement plan under this Section. The Secretary shall, in partnership with tribes and tribal organizations and others with expertise in the child support enforcement field in determining guidelines for provision of direct funding to tribes.
Explanation: Under the Act, a tribe would have to undertake every single activity required of a state child support enforcement plan in order to receive direct funding to administer their own plan. It is clear from the statements of the Congressional sponsors of the tribal child support enforcement provision that they intended for DHHS to provide flexibility in approving tribal programs. The amendment would remove the word "title" which implies that tribal programs -- in order to receive direct DHHS funding - must comply with all state requirements and substitutes the word "Section".
The amendment would also require the Secretary to work with tribes and others in determining guidelines for direct funding to tribes under the child support enforcement program. Under the Act, the Secretary is directed to consider -- in making a determination of whether a tribe may administer its own child support enforcement program -- whether a state is providing services to eligible Indian recipients will have the unintended effect of discouraging tribes from working toward development of their own programs.
AMENDMENT #8 - Section 402. ELIGIBLE STATES; STATE PLAN - Section 402(a)(4) of the Social Security Act is amended --
( ) by adding the words "and tribal", after the word "local".
Explanation: This amendment will provide tribes with equal assurance, currently granted to local governments and private organizations, that they:
(A) have been consulted regarding the plan and design of welfare services in the state so that services are provided in a manner appropriate to local populations; and
(B) have had at least 45 days to submit comments on the plan and the design of such services.
AMENDMENT #9 - Support Proposed DHHS Amendment Regarding State Option of Tribal Exclusion. (see below)
5. STATE OPTION TO EXCLUDE INDIVIDUALS SUBJECT TO TRIBAL WORK PROGRAMS FROM STATE PARTICIPATION RATES.
Problem: Sec. 407(b)(4) of the Social Security Act gives states the option whether to include, in their work participation rate calculations, individuals receiving assistance under a Tribal TANF plan under Sec. 412(a)(1). States do not have the same flexibility to exclude from their participation rate calculations individuals who are in the state TANF program but are served by a tribal work program under Sec. 412(a)(2).
Under Sec. 412(a)(2), tribes that had JOBS programs in 1994 and 1995 remain eligible for grants for tribal work programs, regardless of whether they operate a TANF program. These tribal work programs are subject to neither the old JOBS rules, nor the new TANF work rules. Because individuals served by tribal work programs may not be participating in work activities at the same rate as those in state programs, and because states will face special obstacles in engaging tribal members in state work programs, it would be reasonable to give states the option to exclude them from the state participation rate calculation.
This amendment would not affect work requirements applicable to individuals.
Proposed amendment:
( ) STATE OPTION TO EXCLUDE INDIVIDUALS SUBJECT TO TRIBAL WORK PROGRAMS FROM STATE
PARTICIPATION RATES.-- Section 407(b)(4) of the Social Security Act is amended --
( ) in the caption, by inserting "OR WORK PROGRAM" after "FAMILY ASSISTANCE PLAN"; and
(2) by adding "or work program" before "approved under Section 412".
AMENDMENT #10 - Reporting Requirements for Tribal TANF Programs.
Section 412. DIRECT FUNDING AND ADMINISTRATION BY INDIAN TRIBES - Section 412(g) of the Social Security Act is amended to read:
"(g) DATA COLLECTION AND REPORTING.-- Section 411 shall apply to an Indian tribe with an approved tribal family assistance plan except insofar as the Secretary finds such requirements inappropriate to the tribe's circumstances."
Explanation: State governments have operated large cash assistance programs for decades. The federal government has provided financial assistance at a 90% federal share level to assist states to develop sophisticated computerized reporting systems for their programs.
There has been no similar support for the development of tribal Management Information Systems (MIS).
The requirements of Section 411 pose challenges to state MIS systems, even in view of the federal support they have long received. These requirements are virtually impossible for any tribe to meet without the diversion of substantial amounts of the tribe's limited TANF allocation to the creation of a new and very complex MIS capability.
The proposed amendment would enable the Secretary to modify the Section 411 requirements on a case-by-case basis to adapt them to tribal capabilities.
The proposed amendment has no budgetary impact.
AMENDMENT #11 - Tribal Inclusion in the Secretary's Research, Evaluations, and
National Studies of TANF Programs.
Section 413. RESEARCH, EVALUATIONS, AND NATIONAL STUDIES - Include tribes in more activities.
Section 414. STUDY BY THE CENSUS BUREAU - Include tribes in the Census Bureau's data collection activities.
Proposed Amendment:
Explanation: This amendment will mandate that the Secretary conduct research on tribal TANF programs as well as state TANF programs, including information on potential benefits, effects, and costs of operating different TANF programs. These studies will also include information regarding the development of time limits relating to eligibility for assistance as well as effects that these programs may have on welfare dependency, illegitimacy, teen pregnancy, employment rates, child well-being, and any other area the Secretary deems appropriate.
AMENDMENT #12 - Tribal Retrocession.
Section 412. DIRECT FUNDING AND ADMINISTRATION BY INDIAN TRIBES - Section 412 of the Social Security Act is amended by adding:
"(I) TRIBAL RETROCESSION. A tribe administering a tribal assistance plan under this section may, by notifying the Secretary and the state not less than 90 days prior to the beginning of the new fiscal year, choose not to implement that plan for such identified fiscal year."
Explanation: This amendment will allow a tribe to retrocede a tribal family
assistance grant to the Secretary in the event that preconditions identified in the tribal
assistance plan do not exist. Upon notice of retrocession to the Secretary, the Secretary
shall withhold amounts otherwise due the tribe under this section and pay such amounts to
the appropriate state upon terms and conditions contained in this part.
AMENDMENT #13 - Amend Title I, Section 402 (a) (5) of the Report, as follows:
CERTIFICATION THAT THE STATE WILL PROVIDE INDIANS WITH EQUITABLE ACCESS TO ASSISTANCE-A
certification by the chief executive office of the state that, during the fiscal year, the
state will provide each member of an Indian tribe who is domiciled in the state and is not
eligible for assistance under a tribal family assistance plan approved under Section 412
with equitable access to assistance under the state program funded
under this part attributable to funds provided by the Federal government.
Explanation: As currently written, the state is required to provide equitable access to people who are members of Indian tribes (as defined in the Indian Self-Determination Act) whose tribe does not administer a TANF program to services attributable to federal funds. Indian people are citizens of states, and should be eligible for TANF services which are funded through the required state match or other state funds. As a practical matter, states would have a difficult time determining which TANF services are funded through federal verses state funds, as the funds will be co-mingled.
The term "access" with regard to services would be dropped as it is vague and unenforceable. Rather, the state is required to provide equitable services.
AMENDMENT #14 - Amend Title I, Section 410, by adding:
" (d) TRIBAL APPEALS.--The Secretary shall establish an appeals process for tribes and tribal organizations of adverse actions under this part which is comparable to that provided for states."
Explanation: This amendment will provide tribal governments an appeals process similar to that provided to state governments under this section.
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