ncaidoclogs.jpg (4136 bytes)

National Congress
of American Indians

November 20, 1998

 

The Honorable Donna Shalala
Secretary U.S. Department of Health and Human Services
200 Independence Avenue, Southwest
Washington, D.C. 20201

Re: Submission of Comments on the Proposed Rule for
the Tribal Temporary Assistance for Needy Families /
Native Employment Works Programs
 

Dear Secretary Shalala:

We acknowledge the efforts of the U.S. Department of Health and Human Services (DHHS) in completing the NPRM on the tribal Temporary Assistance for Needy Families / Native Employment Works (TANF/NEW) programs. We believe, however, that a much greater level of direct consultation and government-to-government negotiations between tribes and the DHHS must be achieved as part of the promulgation process. Therefore, pursuant to NCAI Resolution MRB-98-057, NCAI requests that further promulgation of a final rule on the tribal TANF/NEW programs be suspended until such additional consultation/negotiation is completed.

The lack of consultation and direct negotiations with tribes to date over welfare reform can be seen in many parts of the proposed rule itself. For if the proper level of consultation/negotiation between the DHHS and the tribes had occurred, such paternalistic language and inferences used throughout the NPRM would never have reached Federal Register publication.

Over the past few weeks numerous national and regional Indian organizations, including NCAI, have hosted annual meetings where issues surrounding tribal welfare reform were of top priority. In conjunction, fiscal year studies and reports on tribal welfare reform have been completed by a number of national and regional Indian organizations.

With this information, a better sense of the welfare reform needs throughout Indian country have been identified, and collectively, the level of focus and understanding of

welfare reform's application in tribal communities has risen. Such increased knowledge and understanding, along with an ever-increasing need for tribes to implement tribal family assistance programs within their communities, warrants that tribal governments be offered more opportunities to negotiate directly with agency officials in determining the federal regulatory process over the tribal TANF program.

The level of commitment you have shown toward ensuring that a true government-to-government relationship continues to progress among the DHHS and tribes is commendable. However, the level of compliance among the various DHHS agencies to ensure your commitment is sustained has not occurred at a level satisfactory to tribal governments. States have also neglected to comply with your requests to improve state consultation processes with tribes over TANF program and service delivery. We ask that you again reiterate your position on improved government-to-government relations and capacity building among the various levels of government associated with welfare reform. We would also ask that the DHHS help to immediately facilitate consultation/negotiation sessions between federal agencies, states, and tribes over welfare reform and related issues.

The future of welfare reform must help to improve the quality of life for all American Indian and Alaska Native people. Moreover, the precedent that the DHHS now sets over promulgation of this final rule can serves as a model throughout the federal government. We ask that you continue to strengthen your commitment to foster appropriate sovereign government relations between your Department and all tribal governments throughout Indian country. By doing so, the socio-economic conditions in Indian communities will be more formidably addressed as we enter into the next millennium.

On behalf of the National Congress of American Indians (NCAI), I wish to submit to you comments on the Notice of Proposed Rulemaking (NPRM) for the tribal Temporary Assistance for Needy Families program. These comments were developed through the collective efforts of individual Indian tribes, inter-tribal organizations, regional and national Indian organizations and the newly established NCAI National Welfare Reform Task Force, which consists of tribal representatives from all federally recognized areas of Indian country.

In regards to the Native Employment Works program, NCAI concurs with the Native American Employment and Training Council in its comments on the proposed rule to Part 287 of Title 45 of the Code of Federal Regulations, submitted by the Indian and Native American Employment and Training Coalition.

Thank you for the consideration of our requests and I look forward to your favorable response. Should you have additional questions, please do not hesitate to contact me, or JoAnn K. Chase, NCAI Executive Director at (202) 466-7767.

Sincerely,
W. Ron Allen,
President
 

Attachment
 
 

cc.- Kevin Thurm, Deputy Secretary, U.S. Department of Health and Human Services
Olivia Golden, Assistant Secretary, Administration for Children and Families, DHHS
Donald Sykes, Director, Office of Community Services, ACF/DHHS
John Bushman, Director, Division of Tribal Services, OCS/ACF/DHHS
Delegates and Alternate Delegates, NCAI National Welfare Reform Task Force
 
 

* * * * *
 
 
 
 

COMMENTS ON THE PROPOSED RULE FOR THE
TRIBAL TEMPORARY ASSISTANCE FOR NEEDY FAMILIES / NATIVE EMPLOYMENT WORKS PROGRAMS






The following are acronyms used in this set of comments:

ACF - Administration for Children and Families

DHHS - Department of Health and Human Services

IDSA - Indian Self-Determination and Education
Assistance Act(1)

NEW - "Native Employment Works" Programs

PRWORA - Personal Responsibility and Work
Opportunity Reconciliation Act of 1996(2)

TFAP - Tribal Family Assistance Program

TANF - Tribal "Temporary Assistance for Needy Families" Plans
(Note: The regulations and this document use the acronyms TFAP and TANF interchangeably)

TFAG - Tribal Family Assistance Grant

Secretary - Secretary of the Department of Health and Human Services

---------------------------

§286.5 -- Definition of "Administrative Cost". The first sentence of the administrative cost definition under §286.5 must be amended to allow for the combining of program funding sources under a single cost pool for the purposes of determining administrative costs associated with direct program operations. Such a provision would streamline accounting functions by allowing the tribe to negotiate one administrative cost rate for multiple funding sources, eliminate repetitive accountability and reporting requirements over administrative cost.

Recommendation #1. Strike the period at the end of the first sentence that describes Administrative Costs in §286.5, insert a "comma", then add the following: "which includes TFAG funding and State funding as one program for purposes of determining Administrative costs."
 

The definition goes on to itemize "examples" of administrative costs in a detailed list of 11 items. Such example lists have a way of becoming "cast in stone" as the full extent of costs that will qualify under a definition, and often lead to disqualification of costs that a grant officer may believe does not fit squarely within one of the listed "examples".

Recommendation #2. If this list of examples remains part of this definition, ACF must add a cautionary note that the list is to be used for guidance only, that it does not constitute a finite itemization of all costs that will qualify for administrative cost designation and that the definition include the consideration of TFAG and any State funding match/grant as a single program fundunder the first two sentences of the definition.
 

We also believe clarification is needed on the question of how the cost of performing eligibility determinations should be treated. The Preamble (at 39372) suggests that "eligibility determinations and verifications" are among the activities that "are essentially administrative in nature", and that "such activities can be treated as administrative costs." But the list of examples in the definition of "administrative cost" in §286.5 does not mention eligibility determination activities.

Recommendation #3. We believe that eligibility determination activities should be treated as program costs, as they are so closely intertwined with meeting the goals and objectives of the program. We agree with the observations of the American Public Welfare Association on this issue (filed in response to the proposed regulations for state TANF programs), and urge that eligibility determination and verification activities not be categorized as administrative costs. Administrative costs should be treated under this Rule similar toISDA indirect costs, not as a capped rate, which could be argued as contrary to current Federal law(3). Under existing OMB circulars and federal statutes, determination of indirect costs must be rationally tied to accurate and realistic costs incurred by the tribe that may be rationally characterized as administrative or indirect in nature. This is a more logical approach to determining administrative and indirect cost rates for tribal programs, rather than establishing a random cost cap that would be both under inclusive for tribes with cost structures higher than the cap and over inclusive for tribes with cost structures lower that the cap.
 

§286.5 -- Definition of Assistance/Short-Term Assistance. The regulations provide a suggested description of "one-time, short-term" assistance, as being no more than once in any 12 month period, to meet needs that do not extend beyond a 90-day period.

Recommendation. Delete the description of short-term assistance. There is no statutory reason why the regulations should define short-term assistance. Let tribes determine what they consider short-term assistance. There could be many reasons why a person may need emergency assistance more than once during a 12-month period, one of which could be cyclical employment as in the fishing and construction industries.
 

§286.15 -- Determination of Tribal Family Assistance Grant (TFAG). This section contains the term Indian Family without any clarification as to how the term will be defined. With such controversy surrounding the rights of tribal governments to determine for themselves what constitutes an Indian family for purposes of membership into a tribe and receipt of services from that tribe, compliance with the guidance from tribal governments during their 1996 address of attempted anti-Indian amendments to the Indian Child Welfare Act(4) warrants the following revision to this section.

Recommendation #1. Amend §286.15(a) by inserting the word "geographic" before the term Service Area, then adding the following new sentence after the period: "For purposes of this section, Indian family means a family for whom the signatory applicant seeking benefits is a member, or is eligible for membership in an Indian tribe, pursuant to tribal law".
 

The regulations note that the amount of TFAG which a tribe receives is the federal payments to the state for FY 1994 under the former AFDC, JOBS, and Emergency Assistance programs, and it includes state administrative expenditures for providing services from those programs for Indian families residing in the service area identified in the tribe's TANF plan.

Often not mentioned in the description of the tribal TFAG's is the fact that it includes not only funding attributable to direct family assistance, but also a portion of the funding spent by the state on administration of those programs in 1994. Due to economies of scale between FY1994 and current year cost projections, the tribe operating a TANF program will not receive anything approaching the needed administrative monies as part of its TFAG. It is, nevertheless, helpful to know how much of the TFAG is attributable to state administrative expenditures.

Recommendation #2. The regulations should require that the information provided to DHHS and to tribes by states regarding the TFAG calculation break out the administrative portion of it and the method by which it was calculated.

Recommendation #3. The regulations mention requesting data from states regarding Indian families served in 1994 in the tribe's identified TANF service area. If the tribe includes non-Indians in its service population, then the state must provide the data necessary to include benefits provided to those persons in the TFAG.
 

§286.15(a)(1) and(2) of the regulations provide only 21 days for the states to submit data requested by DHHS in order to determine the TFAG, 21 days for a tribe to submit relevant information to DHHS if the state does not submit the requested data, and 21 days after state submission of data for the tribe to resolve any disagreements it may have with the state data.
 

Recommendation #4. The 21-day time frame is too short for tribes, and we recommend flexibility for an extension of time up to 90 days, at the tribe's request.

It is apparent from the experience thus far with the welfare reform act, that state data is not always readily available in the form necessary to provide accurate information according to the tribe's TANF service area and population. For instance, states may not have kept tribally specific data broken down by tribe. Perhaps it was kept by county, and the information on tribal affiliation of recipients may not have been recorded. For most tribes, many of whom have small administrative staffs, the 3-week limitation on evaluating state data and providing alternate data in many cases will not be sufficient.
 

§286.20 -- Resolution of disagreements over State-submitted data for the TFAG. The tribe is required to submit to DHHS within 21 days any disagreement with the state data for determination of TFAG.

Recommendation #1. This 21-day time frame is also too short for tribes. We recommend that an optional 90-day tribal extension be provided, at the tribe's request.
 

Section 286.20(b) is currently marked "(Reserved)" in the proposed regulation. We consider the intent of a provision (b) to further define the next step in the appeal process if a tribe disagrees with state-submitted data used to determine the amount of a TFAG. We also consider such a appeal process one that must be based on the tribally specific federal appellate process as defined under 25 C.F.R. Part 900, which by its very terms in Part 900.2, applies to the DHHS.

Recommendation #2. Under §286.20(b), strike (Reserved), then include the following: "If a Tribe disagrees with a final decision under (a) of this Part, the tribe may elect to appeal the decision under procedures contained in 25 C.F.R. Part 900, Subpart L , or directly seek judicial review of the decision in federal district court having jurisdiction over the matter. An election to seek an administrative appeal shall not be considered a waiver of the tribes right to seek judicial review upon completion of the administrative appeal."
 

§286.25 -- Retrocession of a TFAG and Return of a Retroceded TANF Program to a Tribe. ACF wisely includes a regulation to set out the procedure for retrocession of a tribal TANF program, however, the regulations at §286.25(a) would require that retrocession can take effect only on September 30 of any given year.

We see no reason why retrocession cannot occur at any time as long as there has been an adequate transition period. We believe the notice to DHHS 90 days in advance of the intent to retrocede is adequate. To require a tribe to keep operating a program for up to 6 months after it wants the retrocession to become effective could result in a program diminished by lack of resources or staff, an increased chance of tribal penalties and the possibility of negative fiscal impacts occurring to other tribal programs in a tribe's effort to meet the programmatic responsibilities under its tribal TANF plan. Moreover, if unforseen circumstances require an expeditious retrocession of a tribal TANF plan to the State, tribes should be allowed an emergency waiver from the 90-day notice, if necessary. If this is not made available, the persons who would suffer would be the children and families served under the tribal plan who need TANF assistance.

Recommendation #1. Strike the requirement (the last sentence of §286.25(a) that retrocession can take effect only on September 30 of any given year.
 

The Preamble (at 39371) states that DHHS intends to provide 90 days advance notice to a state regarding the effective date of tribal termination of operation of the TANF program.

Recommendation #2. Require the tribe to provide 90 days advance notice to both DHHS and the state of its intent to terminate operation of the TANF program. We see no reason why the state, which will be responsible for taking over provision of TANF services to persons formerly served by the tribal program, should have less notice than DHHS.
 

In subsection (d) of §286.25, ACF places two conditions on the return of a TANF program to a tribe that has previously retroceded its program: (1) "the reasons for retrocession are no longer applicable"; and (2) "all outstanding funds and penalty amounts are repaid." These conditions are unfair, unwise, and exceed the Secretary's authority under the statute.

Section 412(b)(1) sets out the six requirements for a Tribal Family Assistance Plan, and (b)(2) requires the Secretary to approve a Plan submitted in accordance with (b)(1). The statute does not impose any additional conditions for tribal reassumption of a previously retroceded program beyond the (b)(1) requirements; thus, it is beyond the scope of the Secretary's authority to impose such additional conditions.

The condition that the tribe demonstrate that "the reasons for the retrocession are no longer applicable" goes to the question of the tribe's motivation for deciding to renew its TANF program operation. The reason for its decision to retrocede may be totally unrelated to its decision to renew direct TANF operations. Even if they are related in some way, the statute does not authorize the Secretary to inquire into the reasons for a tribe's desire to receive a TFAG; it merely requires the tribe to submit a plan which satisfies §412(b)(1).

This condition seems to presume that a "problem" existed that motivated the tribe to retrocede. This is not necessarily the case. Any number of circumstances may lead a tribe to retrocede, for example, reduction or elimination of state matching funds; turnover in personnel who administered the retroceded program; inability of a tribal administration to develop the capabilities the tribe believes are needed to effectively operate a program; etc. None of these is a required element of an initial tribal family assistance plan, and the Secretary has no authority to require a tribe to demonstrate that these circumstances have been corrected or changed in order to resume direct TANF operations.

The condition that "all outstanding funds and penalty amounts were repaid" is equally objectionable. In essence, this would impose a harsh and unauthorized penalty on a tribe in a renewal context that the Secretary has no statutory authority to impose in a continuing program context -- the total denial of the right to operate a program. Involuntary removal of a TANF program from a tribe is not even a proposed regulatory sanction for failure to pay a monetary penalty or for other actions that give rise to imposition of penalties.

Furthermore, if a tribe retroceded a program and the Secretary waits until a renewal request comes in to collect prior penalties or to require return of unobligated funds, the Secretary is derelict in performing her responsibilities. The Act and the proposed regulations establish the penalty parameters; those parameters are solely monetary.

Recommendation #3. ACF should not (and has no authority to) establish a more excessive penalty for one category of tribes -- those who seek to reassume a previously retroceded program.
 

§286.40 -- 20% Limit on Tribal Administrative Costs. This regulation would prohibit a tribe from expending more than 20% of its TFAG on administrative costs. A monetary penalty would be imposed if a tribal TANF operator expended TFAG funds in excess of this cap. This cap is objectionable and should be eliminated.

Section 412 places no limit on the percentage of TANF funds that may be expended on tribal administrative costs, and ACF cites no authority in law for its proposal to impose such as cap through regulations. We believe Congress was silent on this question for very good reasons: tribal circumstances vary so widely that identifying a uniform cap that would be appropriate and workable is virtually impossible. Additionally, placing an arbitrary cap on these costs would have a variety of unintended consequences. Since Congress has not itself imposed a limit on tribal administrative costs nor given the Secretary authority to establish one, Sec. 286.40 is without statutory foundation and should be withdrawn.

ACF reports that in consultation meetings, many tribes urged that no cap be imposed on administrative costs. Nonetheless, ACF, with little or no substantive study of the issue, proposes to set a 20% limit on these costs. ACF offers two explanations for its action: (i) it notes that the statute places a 15% cap on state administrative costs; and (ii) ACF believes it is "necessary to ensure that most of a tribal TANF grant would be available to carry out the primary objective of the TANF statute." We respond to each of the reasons.

Because the statute places a 15% cap on state administrative costs, ACF apparently believes some limit should be placed on tribal administrative costs, and that the state limit should be the starting place for measuring an appropriate tribal cap. This approach incorrectly presumes that state and tribal TANF operations are comparable, and that an arbitrary additional 5% tribal allowance will effectively account for the vastly greater level of program operation experience, existing infrastructure and economies of scale enjoyed by the states. ACF's discussion on preliminary determinations of tribal administrative cost caps reveals no study of tribal administrative cost experience with other federally-funded programs, nor any evaluation of the amount of administrative costs tribes are likely to incur for prudent operation TANF programs.

The more informed approach would be to examine the administrative cost needs of various tribes, rather than to simply adjust the state cap to fit ACF's impression of what a tribal program limit should be. In fact, tribal administrative cost needs will vary widely, depending upon the tribe's size; the number and demographics of TANF eligible families in its service population; its isolation; its ability to recruit, train and retain the workforce needed to operate the TANF program; and its anticipated start up costs. A "one size fits all" administrative costs cap -- especially one measured on the states' limit -- cannot account for these differences.

By asserting that its proposed cap is needed to assure that most of the TANF funds are used to provide assistance to needy families, ACF seems to be saying that without an ACF-imposed limit, tribes would inappropriately divert TFAG funds to administrative rather than program costs. This is a wholly unfounded and inaccurate assumption. In fact, this cap could prove to be counter-productive if tribes are forced to restrict or eliminate necessary administrative activities to comply with the ACF-imposed limit.

An arbitrary 20% limit will also have a chilling effect on tribal assumption of TANF programs -- especially with regard to smaller tribes and tribes in isolated areas whose members are dispersed over wide distances.

Recommendation #1. We recommend that §286.40 be replaced with a regulation that provides greater flexibility in establishing a tribe's administrative cost level. Several options should be made available, such as: (1) allow a tribe to establish an administrative cost rate directly with the Secretary (as it may do with minimum work participation requirements, time limits, and penalties against individuals), based on a proposal from the tribe which identifies actual cost elements and amounts; or (2) allow a tribe to use an indirect/administrative cost rate it has negotiated with agencies such as the Indian Health Service or the Bureau of Indian Affairs for other federally-funded programs.

Recommendation #2. Tribally negotiated administrative cost rates for tribal TANF plan administrative functions should be held harmless in overall administrative cost allocations regardless of cost cap implementation.

Recommendation #3. In addition, the regulations should provide a tribe with greater administrative cost flexibility, as provided in the tribal TANF plan, to cover projected start-up costs of TANF operations, enabling tribes to cover far higher start-up costs, including personnel recruitment, training and equipment, associated with a new TANF plan operations at the tribal level.
 

§286.45 -- Costs Subject to the Administrative Cost Limit on TFAG Funds. Establishing restrictive administrative costs limitations on tribes when the priority to develop TFAP's and transition welfare caseloads into those TFAP's is immediate, violates Congress' intent to provide tribes the necessary opportunities to successfully implement their own programs.

Recommendation. The regulations should clarify that eligibility determinations are counted as program costs, not administrative costs. This is an integral part of case management. See discussion on §286.5 on the definition of "assistance".
 

§286.50 -- Obligation of Tribal TANF Funds in the Fiscal Year in Which Appropriated. This section provides that tribes must obligate their TFAG funds within the fiscal year in which awarded, and must return any unobligated funds to the federal government. By comparison, states have unlimited authority to carry-over unobligated TANF funds from one fiscal year to another.

We believe that a one-year "life" limitation on tribal funds is unduly restrictive and will hamper tribes in achieving the objectives of the TANF program. Since the amount of a TFAG is essentially pre-set for five years based upon expenditures calculated from 1994 data, the likelihood of fluctuations in need during the five-year period is high. This circumstance puts tribes at a distinct disadvantage in the management of and advance planning for their TANF program operations. Indeed, the inability to carry-over unobligated funds presents a major disincentive to tribes to exercise their rights under §412 to operate TANF programs. We doubt that Congress intended to create such a disincentive.

In the preamble to the proposed regulations, ACF explains that since §412 is silent on the question whether tribes may carry-over TFAG funds, ACF has determined that carry-over authority does not exist. While it is true that §412 does not expressly state that tribes may carry-over unobligated TFAG funds, other language in the section provides a basis for the Secretary to authorize at least limited carry-over authority for tribal programs. Section 412(e) states that "[n]othing in this section shall be construed to limit the ability of the Secretary to maintain program funding accountability consistent with the requirements of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.)."(5)

By this reference, Congress gives the Secretary authority to follow funding provisions of the Indian Self-Determination Act (ISDA) which she believes will advance the objective of tribal program funding accountability. One of the key funding provisions of the original ISDA enacted in 1975, was the authorization in §8 for tribes to carry-over into the succeeding fiscal year unobligated or unexpended funds appropriated pursuant to the Act of Nov. 2, 1921 (popularly know as the "Snyder Act", 25 USC §13). (Section 8 of the ISDA is codified at 25 USC §13a.) The Snyder Act is a broad, permanent authorization of appropriations for the "benefit, care and assistance of the Indians throughout the United States for 'general support' and other enumerated purposes." 25 USC §13. Funds appropriated through Synder Act authorization form the core funding for programs operated by tribes under the ISDA.

Now, however, even this two-year limitation on the "life" of ISDA funds has been extended by Congress. Through annual appropriations acts, Congress now declares ISDA funds to be "no-year" monies that are "available until expended." See, e.g., FY 1998 Interior and Related Agencies Appropriations Act.(6) This demonstrates Congress' recognition that tribes need maximum carry-over flexibility when operating federally-funded programs for the benefit of their members, and that sound accountability mechanisms are in place.

Recommendation. It is clear that a Tribal Family Assistance Grant is intended for the "benefit, care and assistance of the Indians", and for the "general support" of Indian people who qualify for a tribal TANF program. Thus, the Secretary, through the authority of §412(e) should, at a minimum, allow tribal TANF programs to carry-over unobligated TFAG funds into the succeeding fiscal year. Additionally, we would urge the Secretary to seek a technical amendment to §412 to expressly provide tribes with the same authority granted to states in §404(e) to reserve grant funds paid in any fiscal year for the purpose of providing TANF assistance should be carried over in succeeding years as "no-year" money without fiscal year limitations.
 

§286.65 -- What must Be Included in the Tribal Family Assistance Plan? The regulations rightfully do not attempt to condition approval of a Tribal Family Assistance Plan to a tribe having its own child support enforcement plan or a cooperative agreement with a state for child support enforcement. The PRWORA does not require it. Indeed, it would be outrageous if it did, as tribes have had no direct access to the Title IV-D Child Support Enforcement entitlement funds which states annually receive. Title IV-D is funded at about approximately $2 billion annually, and it has over the years provided the primary source of funding for the establishment and administration of state child support enforcement programs.

Relatively few tribes have been able to enter into child support enforcement agreements with states due to jurisdictional and regulatory barriers. The PRWORA does authorize direct funding to tribes for child support enforcement, but regulations for this program have not been drafted and establishment of these programs is probably several years away. PRWORA also specifically provides for tribal-state child support enforcement agreements.

The Preamble (at 39375) asks for comments on whether a tribe which is administering a Title IV-D child support enforcement program or has a cooperative agreement with the state on child support enforcement, should be required as part of its TANF plan to mandate cooperation with child support enforcement efforts.

Recommendation. We recommend that this decision be left to the tribe as PRWORA does not require the tribe to be operating, directly or cooperatively, such a program as a condition of administering a TANF program. Obviously, any tribe which undertakes the complex administration of a child support enforcement program -- either directly or through a cooperative agreement -- believes that this is an important endeavor.
 

§ 286.70 -- Minimum Work Requirements in a TFAG Plan. The regulations, consistent with the law, allow tribes to individually establish work participation requirements which differ from those required by statute of states. However, the regulations at 286.70(b)(5) would also require a tribe to justify why its minimum work requirements differ from the states.

Recommendation #1. In §286.70(b), strike the in the first sentence, the word must, and insert the word "may"; then strike § 86.70(b)(5). While a tribe should provide background on how it determined its minimum work participation requirements, there is no statutory reason to compel a tribe to justify any requirements which differ with the state standards for minimum work participation rates, minimum number of hours per week in work activities, and allowable work activities. State-established standards should not be considered the norm.
 

In recognition of the geographic isolation of many Indian communities, the regulations, at §286.70(b)(2)(i) allow a tribe to count a "reasonable" amount of travel time to and from a work site toward required work hours.

Recommendation #2. Retain the language in §286.70(b)(2)(i) which allows a reasonable amount of transportation time to be counted toward work requirements.
 

§286.75 -- Other Additional Information in a TFAG.

The regulation wisely allows tribes to propose adjusted minimum work participation requirements annually. Given the very high unemployment and poverty rates in Indian country and the fact that tribes are just beginning to develop the systems necessary to carry out the purposes of PRWORA, it is reasonable to let tribes make adjustments in their minimum work participation requirements based on experience with the program and on economic conditions.

Recommendation. Retain Section 286.75.
 

§286.80 -- Calculation of Work Participation Rate.  Since tribes are allowed to individually establish, with DHHS approval, their own work participation requirements, the regulations dealing with calculation of such rates seems reasonable. The provision in §286.80(2)(ii) which provides that families with children under age one are excluded from the calculation if the tribal plan also exempts such families from the work requirements seems obvious. If the DHHS-approved plan exempts such families (or other families) then of course they are not part of the work participation rate calculation.

The provision in §286.80(2)(i) provides that individuals who were sanctioned by the tribe for noncompliance are not part of the work participation rate calculation if the sanction is for not more than 3 out of a 12 month period seems reasonable. If persons who are sanctioned by tribes for long-term periods are not included in the tribe's work participation rate, then the real picture is skewed. This is a complicated subject, however, and should be reviewed as we gain more information about persons who are subject to long-term tribal sanctions for non-compliance.

Recommendation. Retain Section 286.80, but remain open to ongoing review of 286.80(2)(1) based on tribal experience.
 

§286.90 and 286.95 -- Required Hours of Work for Particular Categories of People. These sections concern hours per week which certain categories of persons must work to count in the tribe's calculation of the work participation rates. In Section 286.90, adults or minor head of household would have to meet the work hours criteria in the tribe's TFAG plan. But in Section 286.95, single custodial parents or caretaker relatives with a child under age six would be required to work 20 hours per week. A parent in a two-parent family could share the required number of hours of work.

Recommendation. The regulations should allow the approved tribal plan to determine the required hours of work for the categories of people in §286.95, just as it does in §286.90.
 

§286.100 -- Possible Limitations on Vocational Education and Job Search/Job Readiness Activities. The regulation, consistent with the statute, does not impose on tribes the 12-month limit on enrollment in a vocational education program which is imposed by statute on state TANF programs.

With regard to time spent by a TANF recipient in job search/readiness activities, the regulations would allow 6 weeks unless the tribe's unemployment level is 50% higher than the national average, in which case the limit would be 12 weeks. Most importantly, the regulation at §286.100(c) would impose no time limit on job search/job readiness activities for a TANF recipient if the job search/job readiness effort was ancillary to another effort(s) being made by the TANF recipient to become employed.

Recommendation. Retain §286.100 and include a grandfather clause which provides previously approved tribal TANF plans a compliance waiver option over time limitations on vocational education and job search/job readiness activities.
 

§286.105 -- Nondisplacement of Workers by TANF Recipients. The regulation would apply to tribes the statutory requirement applied to states regarding nondisplacement of employees by TANF recipients. It would also require a tribe to have in place a grievance procedure for violations of the displacement rule. Finally, it states that the regulation does not preempt or supercede tribal laws providing greater protection for employees from displacement. While the regulation seems reasonable on the surface, PRWORA does not apply the nondisplacement rule to tribal programs.

Recommendation. Strike §296.105. Tribes would still have the option of including a displacement rule in their plans.
 

§286.110 -- Information on Time-limits in a Tribal Family Assistance Plan. The regulation details information which must be included in a Tribal Family Assistance Plan regarding time limits on assistance.

The description in the Preamble (at 39379) of this section is troubling. It states that if a tribe proposes to use the 60-month time limit on benefits which the statute requires of states, the TFAP does not need to justify this time limit. However, if a tribe proposes to use a longer time limit on benefits than 60 months, then it must justify that limit.

Recommendation #1. Change the Preamble so that it does not require justification by the tribe for any difference in their time limit on benefits that may differ from the state's. While a tribe should provide background on how it determined its time limit on benefits, there is no statutory reason to compel a tribe to justify any requirements which differ with the state standards for the limit on benefits. State-established standards should not be considered the norm.
 

The Preamble (at 39379-80) states that §408(a)(7) of PRWORA -- which provides that time limits do not apply to a household where only minor children are receiving benefits -- will apply to tribes. This is repeated in the Appendix (at 39411). The regulations, however, do not make this clear.

Recommendation #2. Include clear language in the regulations, at §286.110 or another appropriate place, which states that the clock does not tick on benefit time limits when only minor children in the family are receiving TANF benefits (no adult or minor who is deemed head of the household is receiving benefits).
 

§286.115 -- Exceptions to Time-limits for Benefits. The regulation allows a number of reasons why a tribe can exempt families from established time-limits on benefits, including for reasons of hardship as defined by the tribe. This a good rule except that, as in the proposed tribal regulations for time limits and work participation requirements, the tribe would be required under §286.115(b)(1) to justify why they may want to exceed the statutory hardship exemption limit of 20% of caseload applicable to states. Congress clearly intended tribes to have the option for different time lines, benefits, and work activities than states, and so they should not have to justify all parts of their plan which differ with states. The state-established standards should not be considered the norm.

Recommendation. Amend §286.115 by inserting a "period" after the word Tribe in §286.115(a); then strike the remaining Section.
 

§286.120 -- Receipt of TANF Benefits Under a State or Other Tribal TANF Program Counting Towards a Tribe's TANF Program Time Limit. Tribes seeking to implement a TANF program are faced with enormous client data tracking responsibilities. Development/obtainment of data collection methodologies are time consuming, expensive and very necessary to comply with current level reporting requirements associated with TANF/NEW programs. Although states have had sixty years to develop federally-subsidized client tracking systems, many lack the accuracy and efficiency to be of real use to tribes.

Mandating that tribes count prior months of TANF assistance received outside of their own programs is unrealistic in light of what information is currently being made available from most state and tribal TANF programs.

Recommendation. Strike the "period" at the end of the Section, insert a "comma", then add the following: "where information was not made available, or where compliance is not required under an approved tribal TANF plan."
 

§286.125 and §286.135 -- Information Regarding Penalties Against Individuals; Exemptions for Lack of Child Care. Section 286.125 lists issues DHHS wants addressed in the tribal plan regarding penalties against individuals who violated tribal work requirements and time limits. The statute requires tribes to include such penalties in their plan (§412(c) of PRWORA). These questions are the same as those which must be addressed by states.

Section 285.135, however, appears to answer one of the questions in §286.125, in stating that a custodial parent cannot be penalized for refusing to work if that person has a child under age 6 and cannot find child care.
 

§286.140 -- Application Timeframe and Procedures for Submitting a Tribal Family Assistance Plan. The regulation establishes time frames for tribal submission of letters of intent to file a Tribal Family Assistance plan, for submission of the formal plan, for notification to the state, for implementation of the tribal plan, and for a tribal appeal of disapproval of its plan. It also requires in §286.140(f) that a tribe which intends to place its TANF funds in the consolidated program authorized in Public Law 102-477 (Indian Employment, Training, and Related Services Demonstration Act), must first submit and have approved a free-standing TANF plan.

Recommendation. Strike §286.140(f) which requires an initial free-standing Tribal Family Assistance Plan for Pub. L. 102-477 tribes. A major purpose of Pub. L. 102-477 is to allow tribes the opportunity to have an integrated approach to providing these services. Tribes are required to provide only one integrated plan annually. There is no reason that such annual plans cannot also include those items required by the regulations for Tribal Family Assistance Plans.
 

§286.145 -- Amending Tribal Family Assistance Plans. The proposed rule is too restrictive and must be more flexible in its application if a tribe chooses to amend its TANF plan. More clarification surrounding the decision making process is required and a change in the guidance regulations to be followed by the Departmental Appeals Board is in order.

Recommendation #1. Strike the "period" at the end of §286.145(c), insert a "semicolon", then add the following: "if no decision is made within 14 days of the plan's receipt, such plan shall be deemed acceptable."

Recommendation #2. Amend §286.145(d), by inserting the term "retroactively" after the word are, strike the remaining section after the term effective, then add the following: "the first day of the operating quarter submitted, unless the tribal plan states otherwise."

Recommendation #3. Amend §286.145(e), by striking 45 C.F.R. part 16, where applicable, then inserting in its place: "25 C.F.R. part 900, where applicable, or a tribe may seek adjudication through standard due process of law".
 

§286.170 through §286.215 -- Penalties/Reasonable Cause Exceptions/Corrective Compliance Plans. The regulations prescribe penalties for tribes as required by the PRWORA, however, determining penalties under the proposed rule are much more severe than what was first proposed by the DHHS under the tribal TANF/NEW regulatory guidance document developed as a precursor to the NPRM. For example, under the guidance document, penalty rates were considered a negotiable issue between the penalized tribe and the DHHS, not a predetermined percentage penalty or even a one-to-one dollar reduction in a tribe's TANF operating grant.

Moreover, imposing penalties on tribal funds is contrary to existing federal law for two reasons. First, the regulations suggest that the federal government will be able to look at all tribal assets in satisfying assessed penalties. This violates the general principle that tribal assets are inalienable absent tribal consent.(7) Second, the federal government has a trust obligation with respect to Indian tribes.(8) This is unique given the fact that the federal government has no general trust obligation with regard to the several states. Consequently, the federal government's relationship with states and tribes must differ to reflect this unique trust status.

If the more severe penalty rates proposed in the NPRM are adopted, tribes have two additional avenues of opportunity for avoidance of penalties even though they may be out of compliance.

1.    Penalties will not imposed when reasonable cause for noncompliance can be shown.

2.    When reasonable cause cannot be shown, but a tribe enters into a corrective compliance plan with the Secretary, the penalties can still be waived.

The regulations propose to not impose any penalties on actions in a tribal plan for the first six months of its operation. Once penalties are imposed, however, the regulations would require the tribe to repay from tribal funds the amount of the TFAG penalty. The Preamble (at 39383) notes that this requirement was made so that families who need TANF services will not be harmed by reduced funding due to penalties.

Tribes are subject to penalties under PRWORA §409(a)(1) - misuse of funds, §409(a)(3) - failure to meet minimum participation rates, and §409(a)(6) - failure to repay a loan obtained under PRWORA.

The primary method by which DHHS would determine if there is misuse of funds is the Single Audit Act. The Preamble (at 39384) notes that the audit conducted pursuant to the Single Audit Act does not prohibit DHHS or other federal agencies from utilizing other audits and reviews.

The regulations would allow stiffer penalties for intentional misuse of funds, as opposed to non-intentional misuse of funds.
While payment of TFAG benefits past the time limits in the tribe's TANF plan would be treated as misuse of funds, DHHS proposes that the maximum penalty in this case would be limited to 5 percent -- rather than a penalty equal to the exact amount of funds which were misused.

The penalty for failure to comply with work participation rates is set by statute. It also allows the penalty to be reduced based on extenuating circumstances. The penalty is 5% for the first year of noncompliance. Section 286.170(a)(3) notes that DHHS will take into account, when assessing a penalty, "the severity of the failure and whether the reasons for the failure were increases in the unemployment rate in the TFAG service area and changes in the TFAG caseload size during the fiscal year in question".

Recommendation #1. Retain the last sentence of §286.170(a)(3) concerning DHHS taking into account increases in the unemployment rate in the tribe's service area and caseload size.
 

Regarding grace periods for the application of work participation penalties, the regulations provide that penalties will not be applied retroactively to a tribe. They further provide that tribes will not be penalized for failure to meet work participation requirements during the first six months of operation of the TFAG program (§286.190).

Recommendation #2. Provide tribes a 12-month grace period under §286.190(b). It is noted in the Preamble (at 39391) that §116(a)(2) of PRWORA delays for six months the implementation of penalties on states for failure to meet work participation requirements, in order to give states lead time to implement their plans. If states need a six month period, then surely tribes who do not have experience in administering the former AFDC program, who have less resources than states, and who have extremely high unemployment rates should be afforded a one-year period.
 

Sections 286.170(c)(1), 286.170 (d) and 286.185(a)(2), regarding repayment of penalties, provides that tribes must reimburse the TFAG with its own funds to make up for a reduction in the TFAG due to penalties -- failure to do so will result in an additional 2% penalty. Furthermore, tribes are left responsible for penalties associated with tribal TANF programs that have been retroceded.

Recommendation #3. Strike §286.170(c)-(d) and §286.185(a)(2). The requirement to repay penalties is imposed on states only in §409(12) of PRWORA. Congress was specific in applying only some of the PRWORA penalty provisions to tribes, and did not apply this one.
 

Regarding the establishment of reasonable cause for failing to meet TANF requirements, found at §286.200, the regulations list a number of matters which can be considered as reasonable causes for a tribe to be out of compliance with their TFAG plan, and therefore not suffer a penalty. Items listed are described as not inclusive -- natural disasters, formerly issued federal guidance which was incorrect, or isolated non-recurring problems. A tribe may also submit a request for a reasonable cause exception for failure to meet the work participation requirements in the tribal plan if the failure to meet the requirement was because they excused TANF recipients who are the victims of domestic violence from work requirements.

Recommendation #4. Retain the statement in §286.200 that the listing of matters that can considered good cause for failure to meet requirements is a non-inclusive list. It is not possible to anticipate all circumstances which may arise to prevent a tribe from full compliance.

Recommendation #5. Add to §286.200 the provision found in §286.170(a)(3) that DHHS will take into account increases in the unemployment rate and changes in caseload size in determining whether tribes should be subject to the penalty provisions.
 

Further clarification regarding imposition of penalties is also required in the proposed rule.

Recommendation #6. The regulations should clarify that DHHS does not reduce a tribe's TFAG due to a penalty until any appeals are completed. Administration of the TANF program is a financially very difficult task for tribes, and they should not face the prospect of losing TFAG funds unless and until any appeal processes are exhausted.
 

The Preamble question (at 39386) whether a time limit should be placed on a tribe's corrective compliance plan, and suggests six months. This would be a period of time within which the tribe would have to have meet the requirements of the corrective compliance plan. The regulations at §286.205(g)(1) provide that the Secretary will not impose a penalty against a tribe with respect to any violation covered by the corrective compliance plan if the tribe corrects the violation within the time frame agreed to in the plan.

Recommendation #7. Retain §286.205(g)(1) which allows the tribe and the Secretary to agree on a time frame for corrective compliance plans on a case by case basis. For some violations, e.g, a non-allowable use of TANF funds, a tribe should not need six months to come into compliance. For other, more complex problems, six months or more may be necessary.
 

§286.230 -- Submission of Quarterly Reports. Section 286.230(b)(2) defines the areas for which aggregate date must be collected and submitted, and that one of these definitions, out-of-wedlock births, is considered offensive to tribes who, by and large, consider no birth of a child within a tribal community "illegitimate." It is the determination of tribes that the marital status of household adults is the information necessary to determine family assistance eligibility, not the marital legitimacy status of the child.

Recommendation. Amend §286.230(b)(2), by striking out-of-wedlock births, then inserting in its place: "marital status of household adults".
 

§286.235 -- Sampling and Electronic Filing. Section 286.135(b) defines the term "scientifically acceptable sampling method" as one which may exclude other scientifically supportable sampling methodologies proposed by tribes for use in data sampling activities under TFAP's.

Recommendation. Amend §286.235(b), by striking the period, then adding the following: "or any other scientifically supportable sampling method proposed by the tribe and approved for use has been included in the tribal TANF plan."
 

§286.240 -- Quarterly Report/Six Month Delay. The regulations provide that a tribe must have its quarterly reports to DHHS within 45 days of the end of the previous quarter. They also provide, consistent with the statutory provision for states, that a tribe need not collect and report on data for the first six months of the operation of its TFAP.

While DHHS has made available to tribes a format for data collection, this is not the same as a client tracking system which tribes will need in order to implement their TFAP.

Recommendation #1. Change §286.240(b) to provide a 12 month period from the data of implementation of a tribe's TFAP before data collection and reporting must begin. If states, which have experience with operating the former AFDC program, which have more technology resources, and more staff resources than do tribes, feel they need a six month grace period before data collection and reporting begins, then it is reasonable to allow a 12 month grace period for tribes.
 

The regulation also fails to recognize state and tribal holidays as legitimate "one business day" waivers from compliance with the 45-day quarterly report submission requirement.

Recommendation #2. Amend §286.240(a), by adding after the term national holiday, the following: "state holiday, or tribal holiday".
 

§286.250 -- Annual Financial Report Information. This regulation proposes to mandate tribes to submit repetitive information on client activities associated with program service eligibility/non-eligibility. Such client tracking information required under §286.150(a)(2-4) is already collected by tribes operating TFAP's for use in other program functions.

Recommendation. Amend §286.250(a)(1), by inserting a "period" after the term assistance, then strike the remaining provisions under §286.250(a)(2, 3 & 4).
 

Appendix D -- Sampling. Appendix D contains sampling specifications to allow tribes to meet the data collection and reporting requirements by submitting the disaggregated case file data based on the use of scientifically acceptable sampling method approved by the Secretary. Tribes may also submit all data on all cases monthly rather than on a sample of cases.

Recommendation. Sampling sizes must be lessened if more tribes are to exercise this option. Unless the sampling size can be lessened, only the Navajo Nation will be able to utilize the use of sampling. Appendix D requires an annual sample size for families receiving assistance of 3,000 in number, of which 600 must be newly approved applicants. Of the 2400 families that have received ongoing assistance, approximately 25% of them must be two-parent TANF families.
 

Tribal Enrollment Identifier. In the Preamble (at 39390), DHHS asks whether it should, as suggested by a small number of tribes, include a tribal enrollment identifier in the required tribal data collection. The issue of a tribal enrollment identifier raises fundamental rights of privacy toward tribal enrollment information which is protected from involuntary disclosure by federal law.(9)

Recommendation. We do not recommend requiring a tribal enrollment identifier as a part of the collection of data. Unlike a social security number, a tribal enrollment number is not a consistent form of information. Tribes have widely varying processes for membership. Some persons are recognized as members of tribes but are not enrolled. Some persons are eligible for enrollment, but not enrolled. Some tribes open their rolls for membership only at specified times. It would not seem to serve a useful purpose to request this information.
 

Publication of Reporting Forms. The Preamble (at 39388) indicates that ACF may change the reporting forms in the Appendices based on public comments, but that ACF will not republish them as part of the final rule.

Recommendation. While we prefer that the reporting forms be published as part of the final rule, but if they are not, we recommend that ACF include, as part of the final published rule, clear instructions on where a tribe may obtain copies of up-to-date reporting forms at any time. Since responsibilities for data collection and reporting may be a key factor for some tribes in deciding whether to take over operation of a TANF program, this information must be readily and easily accessible. We suggest that the name of the office, address, telephone number, fax number and e-mail address of the appropriate office where these forms can be obtained be stated in the published rules.
 

Required Data. The PRWORA imposes significant data collection and reporting requirements on tribal and state TANF programs, and the regulations reflect this fact. The proposed tribal data collection regulations track those proposed for the states, except for categories which are specific to state circumstances. We are aware that states, whose proposed TANF regulations were published November 20, 1997, have strongly objected to aspects of their proposed data collection regulations.

Recommendation. We realize the value of data collection and reporting, but it must not overwhelm the service aspect of tribal and state TANF programs. Along with the several states, we support streamlining of the reporting requirements, including combining categories when possible. We believe the regulations in a number of instances went beyond the statutory requirements -- for example, the statute requires information on whether TANF recipients are receiving Medicaid or housing assistance. But the regulations require data and reports on types and amounts of such assistance rather than just whether such assistance is being provided. Another example is unearned income -- the statute requires collection of information on unearned income, but the regulations would require detailed information on each type of unearned income for a TANF recipient, rather than an aggregate figure.
 

Finally, we express our concern over the regulation's requiring ongoing collection of tribal data from state-administered federal programs. Tribal TANF programs must collect monthly data and file quarterly and annual reports which includes some types of program information which may be difficult for tribes to obtain and track on a client basis. In most cases, tribes do not administer the Food Stamp or Medicaid programs -- these are administered by the state. But a tribe must track and report whether the persons in their TANF program are receiving these state-administered services and in what amounts. In the cases of housing and child care services, these are programs which are most often administered by tribal governments, and so that information should be readily available to the tribal TANF program.

We do not have the answer to the problem of tribes needing to continually receive information about state-administered federal services to tribal TANF applicants and recipients. We note that in the regulations a tribe is able to utilize the previous month's information if it had not been able to acquire current-month information from the state.

We ask ACF to monitor how the information sharing and coordination is working between state and tribal TANF programs, and perhaps consider if the state should be required (if the tribe requests it) to submit information to ACF on receipt by tribal TANF recipients of assistance from state-administered federal programs.
 

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

1. 25 U.S.C. §450 et seq., (1975, as amended).

2. Pub. L. 104-193, 110 Stat. 2105 (1996, as amended).

3. See, Ramah Navajo School Bd., Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 102 S. Ct. 3394, 73 L. Ed.2d 1174 (1982).

4. 25 U.S.C. §§1901-1963 (1978).

See also, NCAI Resolution #TLS-96-007A (Tulsa, OK 1996) (which sets forth guidance over addressing tribal government rights as they apply to tribal membership certification).

5. Note that §412(e)'s reference to the Indian Self-Determination Act is broader than the fiscal accountability requirement set out in § 412(b)(1)(F). That latter provision refers only to §5(f)(1) of the ISDA which requires tribes to submit a single-agency audit report pursuant to the Single Audit Act (31 U.S.C. Ch. 75).

6. Act of November 14, 1997, Pub. L. 105-83, 111 Stat. 1543, 1555 which states: Provided further, That funds made available to tribes and tribal organizations through contracts, compact agreements, or grants obligated during fiscal years 1998 and 1999, as authorized by the Indian Self-Determination Act of 1975, or grants authorized by the Indian Education Amendments of 1988 (25 U.S.C. 2001 and 2008A) shall remain available until expended by the contractor or grantee."

7. See generally, The Indian Reorganization Act, 25 U.S.C. §§461-479 (1934).

8. Seminole Tribe of Florida v. Florida et al., 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996).

9. Freedom of Information Act, 5 U.S.C. §552 (1966, as amended).
 
 

* * * * *