NCAI

September 7, 1999

Comments on Proposed Rule for the Financial Assistance and Social Service Programs 25 CFR Part 20

NCAI Resolution VAN-99-010, passed in Vancouver B.C., strongly encourages the Bureau of Indian Affairs to take immediate action to establish a Negotiated Rule-Making Committee to develop revisions to the 25 CFR Part 20 regulations (see attachment). The NCAI Welfare Reform Task Force and guests also met in Vancouver, B.C. on July 20, 1999 to draft comments to the Bureau of Indian Affairs' (Bureau) current proposed rule on 25 CFR Part 20, regulations addressing Financial Assistance and Social Service Program. These comments are the result of that meeting:

Supplemental Information (Page 24296):

• In the sixth bullet, strike "reduced funding level authorizations and." Public Law 104-193 (PRWORA) does not reduce funding level authorizations for the Bureau's Welfare Assistance Program.
 
• In the sixth bullet, insert "or tribal" after "equal to the level of State." Tribes that operate Tribal TANF programs should have the option of providing GA benefits equivalent to their tribal TANF benefits.
 
• In the last bullet, strike the reference to the Indian Child Protection and Family Violence Prevention Act and to the Adoption and Safe Families Act. Neither of these statutes mention the Bureau's Child Welfare Program. The last bullet point should begin with the existing phrase "The regulations need revision to incorporate and consolidate..."

Regulatory Flexibility Act (Page 24296):

In this statement, the Department of the Interior (Department) certifies that: "The rule affects a number of Indian Communities throughout the nation, but the impact is not negative because the financial assistance programs have been in operation for many years and this regulation does not increase cases and expenditures over prior year totals because it is dependent upon the extent of need." This is simply not true. In particular because of changes to eligibility criteria which liberalize eligibility for Oklahoma tribes and Alaska Native Villages, the potential for caseload increases and skyrocketing expenditures is very real.

The eligibility for Oklahoma Indians and Alaska Natives has been changed from requiring a 1/4 blood quantum to simply requiring the recipient to be a member of the tribe because of the Bureau's liability under guaranteeing equal opportunity for all Indians and Alaska Natives to participate in the Welfare Assistance Program. While the Bureau must protect itself from suit and we welcome the opportunity to serve more of our tribal members, we contend that changing this eligibility criteria does have a negative impact on tribal communities. Because of the Congressional cap on Welfare Assistance funds, it is unlikely that the Bureau will be able to secure a supplemental appropriation to meet the increased need of Oklahoma tribes and Alaska Native Villages for Welfare Assistance funds. Hence, it is likely that the Bureau budget will have to be shifted, diverting funds from other tribes and other programs to meet the increased need. Undeniably, this will have a dramatic impact on tribal operations and the administration of tribal programs.

Additionally, because of the lack of tribal administrative funding, the new requirements proposed in these regulations may be almost impossible for tribes to meet. While we concur that ideal program policy may require many of these provisions, in the case of tribes who are receiving no new money to implement these changes, these are unrealistic and essentially set tribes up to fail. Tribes cannot hire staff to perform all of the case management requirements set forth in this regulation, particularly as per § 20.318. There are also no funds available to train staff to perform new functions. Moreover, the Individual Self-sufficiency Plan (ISP) required by the Bureau in §§ 20.301 and 20.318 duplicates the requirements of other programs, including: Welfare-to-Work, Temporary Assistance for Needy Families, and Workforce Investment Act. Requiring tribal and Bureau social services staff to develop ISPs is a duplication of services provided. Obviously, new administrative requirements and additional administrative costs will have a large economic impact on tribes.

Given the Department's false certification that this rule would not have a significant economic effect on a substantial number of small entities, we feel that this rule was cleared through the Office of Management and Budget (OMB) under false pretenses. The regulations should be withdrawn; OMB should conduct a review of this provision to determine the exact impact that it would have on tribal budgets. No further actions should be taken until this review is completed. NCAI will work with the Department/Bureau to insure that analyses are performed to determine the impact of these changes, including new administrative requirements, and to request the necessary Congressional appropriations.

§ 20.100 Definitions (Pages 24298- 24300):

• Number the definitions listed in this part so as to easily refer to specific definitions in subsequent sections.
 
• "Bureau Standard of Assistance": This should be established by Bureau policy, not addressed in regulations. Bureau policy should clarify that in the absence of a tribal redesign program, the Bureau can set payment standards for their own programs. It should also state that the "Bureau Standard of Assistance for General Assistance is the state or tribal TANF rate in the service area where the client lives."
  
• Change the definition of "child" to indicate that a child refers to a person under the age of 18 unless they are still in school. Add a reference to the provision that children and students are exempted from employment as indicated in section 20.315.
 
• Add to definition of "essential need:" "Essential Need" means shelter, food, clothing and utilities, as included in the standard of assistance in the state , "the tribal TANF rate in which the eligible applicant resides, or as defined by the tribe."
 
• Change the definition of "Individual Self-sufficiency Plan" to read: "The Individual Self-sufficiency plan is a plan designed to meet the client's goal of self-sufficiency through specific subsidized action steps which are incorporated within the case plan, and whose design and objective is full time, permanent and unsubsidized employment." This plan, jointly developed by the General Assistance recipient and the social services worker, should be a matter addressed by BIA policy and not in regulation form.
 
• Add to the definition of "need:" "...Bureau Standard of Assistance for the state or the tribal TANF service area in which the applicant or recipient resides."
 
• For the definition of "recurring income," delete the language "or in-kind payment." This should not be considered in recurring income.
 
• Change definition of "Special needs." Rather than referring to one portion of the child welfare program, this category can be expanded to include diversionary payments, similar to those available to potential TANF recipients. This benefit would serve to divert individuals from the GA program and lower GA caseloads. Thus, the "special needs" category should be changed to "Special Financial Assistance Awards, for which an applicant or client may be eligible in extenuating non-medical circumstances which require financial assistance when no other resources are available. Eligibility is not restricted to a one-time annual financial assistance payment, but rather should be subject to funding availability. Payment rates of Special Financial Assistance Awards will be based on tribal policy. "
 
• Delete from definition of "Subsidized Guardianship" the language "not to exceed two years."
 
• Change the definition of TWEP to read: "Tribal Work Experience Program (TWEP) means a program operated by Tribal Contract/Grant or Self Governance annual funding agreement which provides eligible participants with work experience and training to acquire skills and knowledge necessary to qualify, access and retain employment."
  
• Add a definition of "Public Law 102-477." It should read, "Public Law 102-477 is a federal statute entitled the 'Indian Employment, Training and Related Services Demonstration Act of 1992,' which allows tribal governments to integrate employment, training and related services in order to improve the effectiveness of those services, reduce joblessness in Indian communities, and serve tribally determined goals consistent with the policy of self-determination."
  
• Add a definition of "Tribal Welfare Reform." It should read: "Tribal Welfare Reform, distinct from the national policy on welfare reform, is a whole set of actions a tribe decides to take to be able to support it's public assistance recipients move toward self-sufficiency."

§ 20.102 (Page 24300): Over 85 percent of Bureau Social Services programs are contracted/compacted by tribes. It makes sense to give tribes increased flexibility over how they choose to operate their social services programs. In response to the question posed at § 20.102 regarding the Bureau's policy in providing financial assistance and social services under this part, the Bureau should adopt a policy that states that tribes should be able to use Bureau funds as gap-filling money, funds that can be used to create a safety net and support services for recipients. The Bureau should not adopt language prohibiting "supplementing" or "supplanting" other resources; rather Bureau funds should be one funding stream of a multitude of funds that tribes can draw from to create a seamless service delivery system.

Tribes need a whole social services package-- a support system. Tribes should be provided the opportunity to redesign their social services program in ways to integrate Bureau social services funds with other available resources. Limiting a tribe's right to redesign their social services program by allowing them only to redesign the General Assistance program is in violation of P.L. 93-638. If a tribe opts to redesign their social services program and program funds are base transferred to the tribe's Tribal Priority Allocation (TPA), this provision can neutralize budgetary/financial concerns about rising tribal budgets and capped Bureau funding. The Bureau should adopt a policy that allows tribes to use Bureau resources in tandem with other resources in order to strengthen programs and services to Indian children and families.

§ 20.200 (Page 24300): Strike the current answer. Add: "The Bureau will support the ability of tribes to coordinate across program lines to ensure that all funds will be maximized to meet the participant's needs."

§ 20.201 (Pages 24300- 24301): Add "Tribes having a near reservation designation" to (b) as a category those for whom the Assistant Secretary may designate a service area. Because tribes with a near reservation designated area do have authority to provide services in that area, it is crucial that the Bureau recognize these areas in the regulations.

A time limit for the Assistant Secretary's consideration of tribal service area designations should be set. The Assistant Secretary should be allowed 90 days to approve or deny a tribal request to designate a service area. If the Assistant Secretary does not respond within the allotted 90 days, the service area will be approved by default and published in the Federal Register as cited in (e).

As a related policy matter, in setting forth regulations on the process and criteria to designate service areas, the Bureau must lift its April 1996 moratorium on designating near reservation areas and service areas.

§§ 20.203-211 (Page 24301):The Tribal Redesign Policy outlined in sections 203 through 211 is the key to dealing with many other issues within the regulations. The Bureau needs to flexibly offer the option of social services program redesign to tribes. Basically, tribes should have the option of redesigning all programs under 25 CFR Part 20. This redesign plan should be subject to approval through the normal channels based on a tribes status as a compacting or contracting tribe. These plans should be approved unless something in plan is inconsistent with federal law, in which case the plan may be denied, and the tribe may appeal the denial. All tribes should be offered the option to base transfer their Welfare Assistance funds into TPA. The Bureau should consult and negotiate with tribes about the formula through which tribes may base transfer funds. The general philosophy of redesign plans is for the Bureau to support tribal self-determination and allow tribes the flexibility redesign their service delivery system to improve services to their service population.

§ 20.301 (Page 24301): Delete the language: "The goal of the General Assistance program is to increase self-sufficiency." Consistent with the ISP definition, "The goal of the General Assistance program is to support the client's goal of self-sufficiency through specific subsidized action steps which are incorporated within the case plan, and whose design are and objective are full-time, permanent and unsubsidized employment."

§ 20.302 (Page 24301): Strike the end of the sentence "and follow TANF regulations." Including this provision essentially means that tribes can not assist tribal members who have been sanctioned from TANF. This language implies that tribal members who are ineligible for TANF are also ineligible for GA. Due to a multitude of comments from tribes, the Bureau already struck this exact provision from an earlier draft of these regulations.

§ 20.303 (d) (Page 24301): As this currently reads, tribes could have to deny a tribal member GA simply because they are already receiving a federal entitlement (i.e. Food Stamps). It is not the intent of the regulations to prohibit a recipient from receiving GA while they are receiving other non-cash forms of assistance. Change "entitlement" to "cash assistance:" "Not to receive TANF, Supplemental Security Income (SSI), or benefits from other state or Federal cash assistance programs."

§ 20.303 (e) (Page 24301): ISP/Employment strategy development for each recipient is burdensome for tribes, who receive very little administrative money to administer GA. In recognition of this, add "whenever possible" to the beginning of this provision.

§ 20.305 (a) (Page 24302): A tribe should not have to conduct a home visit to redetermination program eligibility. In some cases, because of the remoteness of the recipient's residence, the distance to a recipient's educational or training program, and in other cases because of the caseworker's caseload, a home visit may not be possible. After the words "home visit," add "whenever possible.

§ 20.306 (a) (Page 24302): Add to: "Under Public Law 104-193, the Bureau must use the same TANF payment standard (and any associated rateable reduction) that exists in the State or Tribal TANF service area where the applicant or recipient resides. The Bureau or tribe may use the higher of the two payment standards if there is a difference. This payment standard..."

§ 20.306 (b) (Page 24302): Add language, "If the state or tribe does not have a standard..."

§ 20.308 (Page 24302): Strike "or any in-kind payment earned in the form of wages." "Earned income is cash, salaries, commissions, or profit from activities of an employee or self-employed individual." In-kind income is not considered when determining Tribal TANF income and resource standards and should not be included in eligibility determinations for the General Assistance program.

§20.309 (e) (Page 24302): Consistent with the definition of earned income, strike (e) "in-kind contributions." In-kind contributions are not considered when determining Tribal TANF and should not be included in eligibility determinations for the General Assistance program.

§ 20.311(a) (4) (Page 24302): Add language, "Work related expenses will be determined by the State or Tribal TANF work related deduction standard, whichever is greater..."

§ 20.312 (d) (Page 24302): Clarify that vehicles are a disregarded resource.

§ 20.313 (b) (1) (Pages 24302-24303): Add language, "The shelter amount must not exceed the amount for shelter in the State or Tribal TANF standard..."

§ 20.313 (b) (2) (Pages 24302-24303): Add language, "If the State or Tribal TANF plan does not specify an amount for shelter, the social services worker must calculate the amount as 25 percent of the total State or Tribal TANF payment..."

§ 20.315 (chart) (Page 24303):

• Column 1 (c): Delete reference to Public Law 100-297 as it is not inclusive enough to allow participation in some tribal training programs. In lieu of current provision, substitute: "a person enrolled in an educational or training service, as consistent with their ISP."
  
• Column 1, add a new provision: "One custodial parent from each household with a child under the age of 1 year is exempt from work search and/or employment."
 
• Column 2, item 7: Delete "there is a minimum commuting time of one hour each way." Add "there is a lack of dependable transportation in accordance to a tribally determined standard."
 
• Column 3, add a new provision to clarify that: "Recipients will remain eligible for GA when temporarily away from the tribe's service area for educational purposes consistent with the ISP."
 
• Column 3, add a new provision: "The participant/recipient lacks a drivers license and public transportation is not available."

§ 20.316 (a) (Page 24303): Delete "evidence of monthly efforts to obtain employment." The provision will now to read: "If you are covered by the employment policy in §20.314, you must seek employment in accordance with your ISP." This change will make §20.316 consistent with § 20.319.

§ 20.318 (Page 24303): As a matter of using positive terminology, change all references from "social service worker" to "family advocate."

§ 20.318 (b) (Page 24303): Add "Identify barriers to self-sufficiency."

§ 20.318 (c) (Page 24303): Strike (c). Add new language, "Assist the client/participant with the development of the ISP."

§ 20.318 (d) (Page 24303): Add language, "Identify available resources for the client to utilize in meeting ISP goals."

§ 20.319 (Page 24303): Strike the first sentence. Add, "The General Assistance client/participant has these responsibilities."

§ 20.319 (a) (Page 24303): Change to read, "Collaborate with the social services worker in the development of the ISP." Signing the ISP should be a matter of Bureau policy, not a regulation.

§ 20.319 (b) (Page 24303): Delete the adjective "successfully," it is ambiguous.

§ 20.319 (c) (Page 24303): Change to read, "Attend and complete treatment and counseling services..." Attendance and completion should be construed as successful.

§ 20.322 (b) (Page 24304): To clarify language, change "Where there are multiple family units in one household" to "Where there are more than one household within a dwelling."

§ 20.325 (a) (Page 24304): Clarify that life insurance and prepaid burial insurance are to be considered as income/resources available to the applicant.

§ 20.325 (b) (Page 24304): Change language to state that "Requests and applications for Burial Assistance must be submitted within 30 days after the issuance of a death certificate."

§ 20.328 (1) (Page 24304): Requesting a tribal resolution in the midst of a disaster may be unrealistic. Change the provision to read: "A tribal resolution or declaration requesting disaster assistance."

§ 20.328 (2) (Page 24304): As sovereign governments, tribes should be able to develop their own disaster declaration. In the event that tribes declare their own disaster, copies of the tribal disaster declaration will be sent to the appropriate county, state, and Presidential offices.

§ 20.329 (Page 24304): Due to the aforementioned base transfer option, a provision should be added here to establish a disaster assistance contingency fund.

§ 20.500 (e) (Page 24305): This requirement to develop partnerships with state and local governments to increase accessibility to IV-E funding is a violation of tribal self-determination. Firstly, the Bureau cannot mandate that tribes work with states. Secondly, the assumption made by this provision is that if tribes want such a partnership with their state, the state will work with them. This provision should be deleted.

§ 20.503 (Page 24305): Delete from this provision "for a period not to exceed two years for each child involved."

§ 20.504 (b) (Page 24305): Delete this provision. Subsidized guardianship should not be an option only for those children currently in foster care. All children should be eligible for resources that allow them the opportunity to be placed in economically stable homes without being previously placed in foster care.

For more information, please contact the National Congress of American Indians at 202-466-7767.

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