Twenty Years After
Welfare Reform:
Reflections and
Recommendations from
Those Who Were There
perspective of the Obama administration
in jobs and the safety net, contributes to
years since Congress passed the Personal
and its recommendations for improving
an increasing number of truly destitute
Responsibility and Work Opportunity
TANF. Kate Kahan and Steve Savner point
families. To try to understand what
Reconciliation Act of 1996, better known
out the major structural changes that must
happened and offer some lessons, I focus
as “welfare reform.” The Act emphasized
happen before women, particularly women
on the trajectory after the law was passed.
moving from “welfare to work” and
of color, can have equal footing in the work
replaced the guaranteed cash assistance
world. Gina Mannix and Marc Cohan
of the Aid to Families with Dependent
remind us not to give up on litigation as a
Children (AFDC) program with a block
tool for economic justice. And Elizabeth
grant, called Temporary Assistance for
Lower-Basch, Jim Weill, and Liz Schott
Needy Families (TANF), to states.
spell out specific recommendations for the
EDITOR’S NOTE:
This month marks 20
1
To mark this anniversary and the very real
impact the law has had on our client population, we have gathered brief reflections
from 15 welfare-law experts who were
engaged in the debates and implementation of welfare reform at the time. The
20-year mark is a good time to consider
what we have learned, where we are now,
and—most important—where we want to
go from here and how we can get there.
Olivia Golden, Anne Erickson, and Debo-
advocacy community as we move forward.
The Important Role
of Administrative and
State-Based Advocacy
OLIVIA GOLDEN
Executive Director
Center for Law and Social Policy
(CLASP)
1200 18th St. NW Suite 200
Washington, DC 20036
202.906.8000
[email protected]
rah Harris describe the immediate effects
of welfare reform: its implementation in the
Twenty years ago I was responsible
Clinton administration, the advocacy that
for writing the federal regulations that
took place in the states to curb the law’s
implemented TANF in its first decade.
potential harm to our clients, and its effect
Shortly after the welfare law was passed
on poverty lawyers. John Bouman, Cindy
I was appointed acting assistant secre-
Mann, Wendy Pollack, and Margaret
tary of the U.S. Department of Health
Stapleton highlight unique pieces of the
and Human Services and confirmed as
law regarding immigrants, health care,
assistant secretary a few months later.
domestic violence, and low-income fathers
Here I reflect on the path from then to now,
of color. Mark Greenberg shares the
when TANF largely fails to support poor
1 For a detailed look at the immediate effect of the law, see
the special Clearinghouse Review issue, Personal Responsibility
and Work Opportunity Reconciliation Act of 1996, 30
Clearinghouse Review (Jan.–Feb. 1997).
AUGUST 2016
families through either cash or work and
In my new role as assistant secretary I
hoped to develop federal regulations that
would maximize the statute’s positive
opportunities and avoid damage to children
and families from its restrictive provisions.
The potential positives included an increase
in resources above the amount that states
would have gotten under the previous AFDC
program and greater authority for states to
spend that money on workforce development and child care for low-income families
(among them, low-income working families,
largely left out of AFDC). The potentially
damaging new provisions included time
limits on receiving assistance, restrictions
on counting education and training toward
participation requirements, and the end
of the federal requirement to serve all
eligible families. Because of the enacting
Congress’ hostility to the federal role in
overseeing welfare programs, the statute
specifically limited our authority to regulate.
We knew that the block grant’s structural
problems and the troubling debate around
its passage would make maximizing the
positives and minimizing the negatives
difficult to build and sustain, but striking
such a balance was the best option and
one we undertook with real hope.
reaches a sharply diminishing share of poor
National legal aid and policy advocates with
children. Such failure, with other changes
many years’ experience in shaping welfare
C L EARI N G H O U S E A RT IC L E
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
TANF is now in tatters. It helps less than one in five poor children, with extremely low benefit
levels and few meaningful work activities.
policies and in rulemaking gave extremely
For state advocates, the new resources in
training activities, and child care—to other
helpful input; they drew on their deep
TANF and the opportunities opened up by
purposes.7 After states put resources into
knowledge of the statute, program opera-
the regulations offered some leverage to
other budget items when the program was
tions, and policy context to make powerful
influence state policy and budget decisions
flush, they often chose not to pull them
and feasible suggestions. One key insight—
and led to some early wins. Reports by the
back as need grew and total dollars shrank;
ultimately reflected in the regulations—was
Urban Institute in the first decade found
instead they held off benefit increases, cut
that, according to the best reading of
little evidence of a “race to the bottom” in
cash assistance caseloads, and shrank
the statute, many of the most restrictive
state policy.4 Some states certainly chose
work programs and child care transfers.
provisions, such as the time limit and
damaging policies, and caseloads fell. But
participation rules, applied only to families
states also enacted policies—such as the
served with federal funds, not those served
earned-income disregard—that were helpful
by state maintenance-of-effort funding.2
to families; removed provisions that limited
This aspect of the regulation allowed states
access by two-parent families; maintained
to use so-called separate state programs
(and, in some cases, raised) benefit levels;
to work more flexibly with families who
and expanded child care assistance.
needed extra time or help or who were
engaged in education and training. Advocates similarly helped us think through the
treatment of services for a broader range of
low-income families. For example, the final
rules allowed only the refundable portion
of state tax credits for low-income families
to count as state maintenance-of-effort
spending; this structure encouraged the
creation of state earned income tax credits
(EITCs) but did not allow states to use
scarce TANF dollars for broad-based tax
reductions. And the regulations implemented the statute’s “high performance bonus”
by recognizing states for positive steps
such as expanding child care and helping
participants keep jobs and move up.3
2 See Elizabeth Lower-Basch, Center for Law and Social
Policy, Guide to Use of Funds (March 1, 2011) (“To receive
TANF funds, states must meet a maintenance of effort
(MOE) requirement under which they continue to spend
on programs benefiting needy families a specified share
of the funds that they spent prior to welfare reform on the
programs that TANF replaced.”).
3 See Liz Schott et al., Center on Budget and Policy
Priorities, How States Use Federal and State Funds Under
the TANF Block Grant (Oct. 15, 2015) (“Through 2004, states
could receive additional federal TANF funds for strong
performance in meeting the objectives of TANF.”).
AUGUST 2016
TANF is now in tatters. It helps less than
one in five poor children, with extremely
low benefit levels and few meaningful
work activities.8 Despite our hopes
when we wrote the regulation, the sharp
decline in funding and the devastation
of TANF’s role arose from the original
But results became much grimmer
block grant design—and should drive us
thereafter. First, from the perspective
to fight hard against block grants even
of Congress, the regulations were not
when they offer new money up front.
restrictive enough. Nine years after TANF, in
Yet effective state advocacy did make a
the Deficit Reduction Act of 2005, Con-
difference.9 It improved the lives of millions
gress changed the statute to override key
of low-income people, for example
portions of the regulations, including the
through increased child care funding
flexibility in using state maintenance-of-ef-
and state EITCs. And some of the good
fort resources and the high performance
choices that states made when money was
bonus.5 Under pressure to meet required
available—at the start of the block grant
work-participation rates, many states
and again under the American Recovery
adopted increasingly harsh policies.
and Reinvestment Act—led to policy
Second, even more damaging, no resources
innovations, such as novel job training and
were ever added to TANF except the tempo-
subsidized employment strategies, that
rary boost through the American Recovery
can guide advocacy. As we aim for urgently
and Reinvestment Act of 2009.6 Total
needed reform, both the failures and the
resources have declined by 33 percent
successes can help chart the course.
due to inflation, and states have redirected
resources from all of TANF’s key compo-
■
nents—cash assistance, employment and
4 See, e.g., my Assessing the New Federalism—Eight Years
Later (April 22, 2005).
7 Elizabeth Lower-Basch, Center for Law and Social Policy,
TANF Block Grant 4 (Aug. 2015).
5 Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120
Stat. 4.
8 Child Trends Databank, Child Recipients of Welfare
(AFDC/TANF) (Dec. 2015).
6 American Recovery and Reinvestment Act of 2009, Pub.
L. No. 111-5, 123 Stat. 115.
9 See, e.g., Anne Erickson, Trying to Manage the Confusion,
Corral the Chaos, infra.
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
Trying to Manage the Confusion,
Corral the Chaos
ANNE ERICKSON
President and CEO
Empire Justice Center
educating and galvanizing advocates at
umbrella group, the Council of Churches, to
the local level and working with our state
educate the lawmakers and their staff. Jan-
lawmakers as they began to tackle the
uary, February, March—every Tuesday morn-
needed implementation at the state level.
ing at 8:00 the Council of Churches hosted
Here in New York we needed to act fast;
a briefing in the legislative office building.
119 Washington Ave.
Gov. George Pataki was already crafting
Albany, NY 12210
his own take on these changes, developing
518.462.6831
the required state plan, and insisting that
[email protected]
harsh provisions were required by the new
federal law and that the legislature should
When Pres. Bill Clinton signed off on
welfare reform in the summer of 1996, the
reform signaled not just the “end of welfare
just adopt the “implementing” plan. But
we had some time; it was August, and the
legislature was not due back until January.
We briefed the legislators and staff on the
time limits and reminded them that even
though they could not use federal funds
past the time limit, they could certainly
use state funds. We briefed them on the
teen-parent rules, learnfare, workfare, and
the block-grant construct. We reminded
them that the New York Constitution
as we know it” but a seismic shift in state
We immediately held a round of train-
and federal responsibilities in meeting
required the state to provide “aid, care,
ing—all-day sessions that laid out all
and support” to the needy and told them
the needs of our nation’s poor.10 Welfare
reform wiped out federal entitlements—
AFDC, the Job Opportunity and Basic
Skills Training programs, and Emergency
Assistance repealed in the stroke of that
one signature. Welfare reform eliminated
As we in the states reeled from the news and analysis coming
from our colleagues in Washington, D.C., we quickly realized the
critical role we would need to play.
the floor of federal protections and allowed
unprecedented design control over our
the major provisions of the federal law
country’s safety net to devolve to the
that they would need to find a way to
and noted what was allowed, what was
states. Ushering in a massive new block
give that assistance.12 We said that, yes,
required, what was optional, and just how
the state was allowed to be harsh and
grant, TANF, welfare reform completely up-
significant and far-reaching the state’s
mean-spirited but was not required to be.
ended the federal-state fiscal relationship.
actions would be. We trained legal aid staff,
We pointed out where the federal changes
antihunger advocates, faith groups, child
allowed the state to be more flexible in its
care providers, and welfare advocates. Off
approach to those in need. We noted that
across the state we went forming, rallying,
if a person was entitled to federally funded
and educating local advocacy networks.
assistance, then the state was entitled to
Welfare reform was massive, confusing,
and frightening. It imposed time limits
on federal benefits, prohibited states
from using federal funds to help certain
federal payment in providing that assis-
teen parents, and established new
By January the rhetoric was heated,
work rules and new definitions of work
and the governor was demanding ac-
activities. It aimed some of its harshest
tion. He called out the Democrats who
Worried that the Assembly leadership was
provisions at legal immigrants and barred
controlled the Assembly as being soft
caving into the rhetoric, we worked quietly
them from receiving Supplemental
on welfare fraud, coddling those who
for weeks with a small group of progressive
Security Income and food stamps.
refuse to work, and being unwilling to
legislators to draft a comprehensive bill
adopt what their darling President Clinton
that would take the best of the federal law
had so famously signed into law.
and soften the worst of it. We met after
11
As we in the states reeled from the news
and analysis coming from our colleagues
in Washington, D.C., we quickly realized
the critical role we would need to play in
10 Jason DeParle, From Pledge to Plan: The Campaign to
End Welfare—A Special Report; The Clinton Welfare Bill: A
Long, Stormy Journey, New York Times (July 15, 1994).
11 See John Bouman, Immigrant Eligibility, infra.
AUGUST 2016
We kept the local advocacy networks active
and called on the legislature not to abandon its most vulnerable constituents. We
organized letters and postcards. We worked
at a panicked pace with the progressive
tance. That got the legislators’ attention.
hours and on weekends and pulled one
last all-nighter over pizza and the keyboard.
Those progressive members introduced
the bill just before the more conservative
forces working with the speaker of the
12 N.Y. Const. art. XVII, § 1.
C L EARI N G H O U S E A RT IC L E
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
Assembly could get their bill in and set
the Assembly Democrats’ starting line
too far to the right. This strategy was not
without risk: the progressive member
who took the lead was stripped of his
committee chairmanship and was forced
to move to an office in a dark corner of
the legislative office building where he
had no conference room or copier.
A core and committed group of legislators felt empowered because they were
informed. Advocates around the state
were active from start to finish. The final
bill was not what we wanted, but we
ended in a much better place than we
would have been if we had not begun
in a well-informed, progressive place.
Ending Welfare Lawyers as
We Knew Them
DEBORAH HARRIS
Besides ending welfare as we knew it, welfare reform ended
welfare law as we knew it.
Sparer, the welfare law pioneer, I read King
about how the rules were being applied
v. Smith, striking down AFDC “man in the
and a huge pool of cases from which to
house” rules, and Goldberg v. Kelly, estab-
choose for systemic advocacy. The National
lishing the constitutional right to notice and
Welfare Rights Organization was dissolved
a pretermination hearing in welfare cases.
in 1975, but state and local welfare rights
13
organizations continued to guide legal
We also read cases that went the
“wrong” way: Dandridge v. Williams, flatly
rejecting an equal protection challenge
aid advocacy and sometimes served as
organizational plaintiffs in litigation.
to Maryland’s maximum family benefit
Welfare advocacy was satisfying. We were
of $250 a month regardless of family
fighting the government, not individual land-
size, and Rosado v. Wyman, confirming
lords, employers, or other people in poverty.
states’ broad discretion under the AFDC
An injunction or declaratory judgment
statute to cut welfare benefit levels.
changed the rule or practice for thousands
14
Despite the failure to establish a constitutional or federal statutory right to
basic subsistence, welfare lawyers in the
mid-1970s still saw lots of opportunities.
of people. Getting relief in individual cases
was also satisfying; we got to tell the person sitting in our office that she would get
her benefits, and we felt that our legal training had made a small, positive difference.
Staff Attorney
By that time most states had welfare
Massachusetts Law Reform
manuals or regulations that laid out the
Federal statutory changes in the 1980s
Institute
rules and were available to advocates and
made succeeding in a court challenge
sometimes to the public. In Philadelphia,
tougher, but welfare advocates plugged
where I was practicing, we could usually
away. Westlaw reports 4,159 state and
[email protected]
persuade a local welfare office to comply
federal cases that mention AFDC in the
with the rules through informal advocacy,
17 years from 1979 through 1996.15
I started work as a legal services lawyer
and, if not, thanks to Goldberg, we could
40 Court St. Suite 800
Boston, MA 02108
617.357.0700 ext. 313
in 1976, twenty years before “welfare
reform.” For the first two years, I was
assigned to family law. Then I switched
to public benefits with a subspecialty in
family law. “Public benefits” included AFDC
and general assistance, social security
and Supplemental Security Income,
Medicaid, and unemployment insurance.
I worked in all of these areas as well as
family law, and sometimes I plunged into
subjects about which I knew even less.
The heyday of welfare litigation was already
past when I became a public benefits
lawyer. In a law school class taught by Ed
AUGUST 2016
go to a fair hearing. Federal or state court
was also an option—dicier than in an earlier
era but still offering a reasonable chance
of success. We had a number of legal
handles: Had the welfare office correctly
applied the state rule? Did the state rule
comply with the governing state statute
Welfare reform ended welfare as we knew
it and fulfilled Bill Clinton’s 1992 campaign
promise.16 Welfare reform also ended
welfare lawyers as we knew them. In the
17 years from 1998 through 2015 Westlaw
reports only 1,824 cases that mention
TANF or AFDC, less than half as many as in
and the federal AFDC statute? Did the rules
and the statute comply with the state and
federal constitutions? Because legal aid
lawyers and paralegals saw hundreds of
cases a year, we had a lot of information
13 Goldberg v. Kelly, 397 U.S. 254 (1970); King v. Smith,
392 U.S. 309 (1968).
14 Dandridge v. Williams, 397 U.S. 471 (1970); Rosado v.
Wyman, 397 U.S. 397 (1970).
15 The search also included terms to capture “Aid to
[Families with] Dependent Children” and “Temporary
Assistance for Needy Families.” The search did not exclude
cases that mention AFDC or TANF but did not challenge a
welfare rule or policy and therefore overstates the number
of cases that actually litigated a welfare issue. Because my
pre- and post-welfare-law searches were overinclusive in the
same way, the comparison between the two periods may
nevertheless be informative. I ran the searches on June 5,
2016.
16 See DeParle, supra note 10.
C L EARI N G H O U S E A RT IC L E
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
the earlier 17-year period.17 In 2015 only 52
reported cases mention TANF or AFDC compared with 215 in 1996, the year before
welfare reform went into effect (see fig. 1).
More analysis is needed to determine
if welfare litigation actually declined as
dramatically as the number of reported
cases that refer to AFDC or TANF. I would
not be surprised if welfare litigation did
drop steeply. Welfare cash assistance
caseloads plummeted—from 4.7 million
in 1995 to 1.6 million in 2014.18 The drop
in the number of AFDC and TANF cases
reported in Westlaw is roughly consistent
with the caseload decline (see fig. 2).
With fewer families receiving cash assistance, fewer are likely connecting with
an advocate, and advocates who see
fewer cases are likely identifying fewer
litigation issues. Legal aid programs
may have shifted increasingly strained
resources elsewhere because they see
fewer welfare cases. To compare legal aid
representation before and after federal
welfare reform, I searched for cases
where the law firm name contained the
word “legal.” This, of course, leaves out
many legal aid programs, including my
own.19 Still only 173 (10 percent) of the
post-welfare-reform cases that mention
AFDC or TANF had “legal” in the firm name,
17 For this comparison, I omitted 1997, before welfare
reform was fully effective. This count does not include cases
that used the state’s post-welfare-reform name for its welfare
program if the case did not use any of my search terms
for TANF or AFDC. Further analysis is needed to determine
whether inclusion of the state names for the programs would
change the general conclusion.
18 Ife Floyd et al., Center on Budget and Policy Priorities,
TANF Continues to Weaken as a Safety Net fig.2 (Oct. 27,
2015).
19 The count may be distorted if many legal services
programs eliminated the word “legal” from their names after
1996.
AUGUST 2016
C L EARI N G H O U S E A RT IC L E
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
improvements, such as the elimination of
the welfare family cap rules in California,
Illinois, and Minnesota.22 Other legislative and administrative advocacy stops
proposed cuts. Although “welfare reform”
ended welfare lawyers as we knew them,
a role for welfare advocacy continues.
Immigrant Eligibility
JOHN BOUMAN
President
Sargent Shriver National Center
on Poverty Law
50 E. Washington St. Suite 500
Chicago, IL 60602
312.368.2671
[email protected]
compared with 1,259 (43 percent) of the
Welfare recipients have disappeared into
pre-welfare-reform cases (see fig. 3).20
even more crushing poverty.21 The federal
If welfare lawyers, particularly legal aid lawyers, no longer litigate welfare cases to the
extent we once did, the drop in the caseload and overburdened legal aid programs
are only part of the explanation. Another
part is that, besides ending welfare as we
knew it, welfare reform ended welfare law
as we knew it. The federal statute no longer
requires participating states to grant benefits to families who meet federal eligibility
conditions. Indeed, the federal statute now
says only who is not eligible, not who is eligible. For the most part, the federal statute
and regulations no longer offer grounds for
challenging state welfare rules and policies.
welfare law that developed between 1935
and 1996 is gone. Welfare litigation
appears to have dropped dramatically. However, a huge need remains for advocates
to make sure that families in desperate poverty at least get what they are eligible for
under state policies and rules. In addition
to making a difference for individual families, legal representation in these individual
cases can form the knowledge base for
systemic advocacy to improve state welfare
programs and block cuts in benefits and
eligibility. Legal challenges may be viable
under state statutes and regulations, federal statutes such as the Americans with
Disabilities Act, or state or federal constitutions. In general, however, systemic welfare
advocacy now is more likely to occur in
20 Some of the most important post-welfare-reform
welfare litigation was brought by non–legal aid programs,
including civil rights firms and the American Civil Liberties
Union (see, e.g., Lebron v. Secretary of Florida Department of
Children and Families, 772 F.3d 1352 (11th Cir. 2014) (Florida
statute requiring TANF applicant to submit to suspicionless
drug testing as condition of eligibility violated his Fourth
Amendment right to be free from unreasonable searches)).
AUGUST 2016
state legislatures and state bureaucracies
than in the courts. Some legislative and ad-
I am not an expert in immigration law
and never have been. But, like many of
us who specialized in public benefits and
more general poverty law, I realized I had
to pay closer attention to at least some
of the issues affecting noncitizens when
the Personal Responsibility and Work
Opportunity Reconciliation Act cleared
Congress and was signed into law in 1996.
The Act was the beginning of an attack on
legal immigrants, in addition to the continuing antipathy to undocumented immigrants,
who had never been eligible for most
forms of federally funded public assistance
anyway. The Act resulted from the perfect
storm of hostile immigration ideology and
budget hawk ideology. The Act blocked
many legally present people from eligibility
for most federally supported forms of public
assistance—Supplemental Security Income,
food stamps, and TANF—to the tune of
over $23 billion in budget cuts (about 44
ministrative advocacy makes major positive
21 See Kathryn J. Edin & H. Luke Shaefer, $2.00 a Day: Living
on Almost Nothing in America (2015); Floyd et al., supra note 18.
22 See, e.g., Jim Miller, California Budget Deal Builds
Reserve, Changes Welfare Rule, Sacramento Bee (June 9,
2016).
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
percent of the total of the cuts in that
citizens. Ham-fisted anti-immigrant policy
already receiving either social security or
aggressive budget-cutting legislation).23
can backfire. This tension continues.
Supplemental Security Income benefits.27 A
The new restrictions on eligibility for legally
Take, for example, the Deficit Reduction Act
present noncitizens were complex and
of 2005. It introduced the requirement that,
confusing.24 The implementing agencies
to prove eligibility for Medicaid, everyone,
adopted internally inconsistent or incorrect
including citizens and people already
For the moment, the states are left to
rules and made mistakes in applying
receiving benefits, had to produce original
decide whether to offer state-funded
the rules, especially for “mixed status”
proof of citizenship or legal status. While
benefits programs or to elect the option for
households; even eligible noncitizens
this requirement could be expected to
a state-federal match. Some states have
would be denied eligibility or blocked by
dampen applications for benefits among
been taking action ever since the welfare
endless and confusing demands for forms
immigrants (because any increase in
law was enacted. In Illinois, for example,
of proof. Applicants had to get expert help.
hassle and official hostility has that kind of
we have a state-funded income-support
deterrent effect), the greater impact turned
program for aged, blind, or disabled
out to be on citizens, especially vulnerable
refugees whose citizenship applications
ones. Legally present immigrants generally
are taking longer than the allowed seven
have possession of the documents allowing
years under federal law for Supplemental
them to be in the country. But millions of
Security Income eligibility; child care
Congress immediately began to soften
somewhat the rules for particularly sympathetic immigrant groups, such as elderly or
disabled refugees seeking legal status and
26
few months later, Congress passed a “clarification” that it had not intended the new
requirement to apply to foster children.28
subsidy programs are implemented through
The Act resulted from the perfect storm of hostile immigration
ideology and budget hawk ideology.
charitable nonprofit organizations, and the
law exempts those nonprofit organizations
from being required to look into citizenship;
pregnant noncitizens are eligible for health
citizenship.25 This was an early manifestation of the ambiguity of the politics around
immigration. On the one hand, some
politicians like to play to anti-immigrant
sentiment among some Americans. On the
other hand, compelling immigrant stories
prompt support from many Americans,
including many in the growing communities
of naturalized and second-generation
23 Unless otherwise indicated, all information about
the federal legislation cutting and then partially restoring
immigrant eligibility comes from Tanya Broder et al., National
Immigration Law Center, Overview of Immigrant Eligibility for
Federal Programs (Dec. 2015).
24 E.g., the Act introduced the concept of “qualified”
noncitizens, but not all qualified noncitizens were made
eligible for benefits, and not all nonqualified noncitizens
were always ineligible (id.). By 1996 I had over 20 years
of public benefits practice, but I repeatedly had to relearn
the immigrant-eligibility rules each time I was called
upon to revisit them. Only the experts with high-volume
daily engagement with noncitizen families had the rules
memorized. And, like the proverbial handful of acknowledged
experts in the world monetary system (a clerk in the English
Exchequer, a gnome in a Swiss bank, and a University of
Chicago professor), they did not always agree with one
another.
25 Id.
AUGUST 2016
care coverage, as a means of extending
Medicaid recipients have no access to
emergency coverage to the citizen-child-to-
their original birth records: many African
be; all children—including the documented
Americans were not allowed to be born in
children ineligible for federally funded cov-
hospitals or receive official birth records
erage as well as the undocumented—are eli-
in parts of the country in the early 20th cen-
gible for Medicaid (or look-alike) coverage.29
tury; many seniors live in nursing facilities
and have no memory or contact with
anyone familiar with their birth circumstances; homeless people, people with mental
illness, victims of disasters, foster children,
and many other groups out of touch with
their original birth records emerged among
the millions threatened by this ham-fisted
approach. Recognizing a potential disaster
and prodded by a nationwide class action
lawsuit, the Bush administration adopted
rules that effectively grandfathered into
continuing Medicaid eligibility all of the
eight million elderly and disabled people
26 Satisfactory Documentary Evidence of Citizenship or
Nationality by Individual Declaring to Be Citizen or National of
United States, 42 U.S.C. § 1396b(x) (2014).
Even amid the ongoing national immigration
debate, Illinois just passed with substantial bipartisan support two measures
extending public benefits eligibility to
subgroups of noncitizens ineligible for
federally assisted benefits. One was an
extension of the health care coverage for
noncitizen children; the other was new
eligibility for state-funded cash, food,
and medical assistance for trafficking
survivors applying for T visas, other serious
crime survivors applying for U visas, and
27 Bell v. Leavitt, No. 06-C-3520 (N.D. Ill. 2006).
28 See 42 U.S.C. § 1396b(x)(2)(C).
29 See, e.g., Aid to the Aged, Blind or Disabled, 305 Ill.
Comp. Stat. 5/3-1–3-14 (2016).
C L EARI N G H O U S E A RT IC L E
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
applicants for asylum. Some states are
rethinking the ham-fisted approach.
The law that replaced the AFDC program with the TANF block
grant had a silver lining for low-income parents—the delinking
of Medicaid eligibility from welfare.
We have learned not to put all our eggs
in the national basket and just spectate
during federal gridlock. In many states,
even unlikely ones, we may make
progress on eligibility for key benefits,
regardless of immigration status.
A Milestone in Health
Care Coverage
CINDY MANN
Partner
Manatt, Phelps & Phillips, LLP
1050 Connecticut Ave. NW
Washington, DC 20036
202.585.6572
[email protected]
The delinking provision made two signif-
of the federal poverty level), meet the AFDC
icant changes in Medicaid law.33 First,
nonfinancial eligibility rules (largely limiting
it required states to cover parents in
eligibility to single-parent families with
Medicaid at least at the eligibility levels
children), and get through the welfare-appli-
that had been in place for AFDC.34 Second,
cation process, which was no easy feat.31
it set those welfare levels as the floor, not
Eligibility for Medicaid for children and
the ceiling, giving states the option to raise
pregnant women had been delinked from
eligibility above AFDC levels. The floor was
welfare in the 1980s, but the ties between
a critical protection for very poor women,
Medicaid and welfare for parents meant
but the option allowed states to extend
that 41 percent of poor parents (i.e., with in-
Medicaid to a broader group of low-income
comes of less than 100 percent of the fed-
working parents. Seventeen states and
eral poverty level) were uninsured in 1997.32
Washington, D.C., had expanded coverage
Welfare reform did not start out as a bill
that would help low-income parents get
The law that replaced the AFDC program
with the TANF block grant had a silver
lining for low-income parents—the delinking
of Medicaid eligibility from welfare. Not
only did that change protect the women
who would no longer qualify for welfare
under TANF rules from losing health care
coverage, but also the change helped
transform Medicaid from its origins as
a welfare adjunct to the nation’s largest
health insurance program. That transformation was completed under the Patient
Protection and Affordable Care Act, which
led to millions of low-income adults gaining
coverage and record-low uninsured rates.
dian eligibility level in 1996 was 45 percent
30
Let us step back to 1996. At that time Medicaid eligibility for parents was generally
The Affordable Care Act took the next big
welfare reform would have resulted in
leap. To close the coverage gap for low-in-
millions of parents losing coverage. By
come parents as well as other nonelderly
ending the entitlement to cash assistance,
adults, the Act extended Medicaid eligibility
imposing new requirements for people to
to 133 percent of the federal poverty lev-
receive TANF, and authorizing use of TANF
el.36 Adults who have incomes above that
funds for purposes other than income
level and do not have affordable coverage
support, the law resulted in large drops
through work can buy insurance through
in the rates of people qualifying for cash
the exchanges and receive premium tax
assistance. Without a fundamental change
credits and cost-sharing subsidies to defray
in Medicaid law, the adults losing TANF
the cost. A new coverage paradigm was es-
(or not qualifying for TANF in the future)
tablished with Medicaid at the foundation.
would have lost health care coverage
as well. To avoid this harm, the bill was
amended, at the end of the heated welfare
debate, to delink Medicaid eligibility for
parents from eligibility for welfare.
they were pregnant, disabled, or elderly).
poor enough to qualify for welfare (the me-
31 See Andy Schneider et al., Kaiser Commission on
Medicaid and the Uninsured, Medicaid Eligibility for Families
and Children 18 (Sept. 1998).
30 See Peter Sullivan, Uninsured Rate Hits Record Low
Under ObamaCare, The Hill (May 17, 2016).
32 See Sara Rosenbaum & Genevieve M. Kenney, The
Search for a National Child Health Coverage Policy, 33 Health
Affairs 2125 (Dec. 2014).
AUGUST 2016
poverty level by the end of 2010.35 health care. In fact, as originally drafted,
limited to those who received AFDC (unless
To qualify for Medicaid, a person had to be
to parents up to at least the federal
33 Assuring Coverage for Certain Low-Income Families, 42
U.S.C. § 1396u-1.
34 The law generally directed states to maintain eligibility
levels at July 1996 levels but included an option to lower
eligibility to the AFDC levels in the state on May 1, 1988 (see
id. § 1396u-1(b)(2)(A)).
35 Martha Heberlein et al., Kaiser Commission on
Medicaid and the Uninsured, Holding Steady, Looking Ahead:
Annual Findings of a 50-State Survey of Eligibility Rules,
Enrollment and Renewal Procedures, and Cost Sharing
Practices in Medicaid and CHIP, 2010–2011, at 3 (Jan. 2011).
36 The law made other sweeping changes in Medicaid,
including eliminating the asset test, abandoning the old
AFDC income-counting rules and aligning them with those
used to determine premium tax credits, and simplifying
enrollment and renewal processes.
C L EARI N G H O U S E A RT IC L E
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
The U.S. Supreme Court intervened, how-
The numbers were startling—between 50
ance with such requirements would make it
ever, and the Medicaid expansion became
percent and 80 percent of women receiv-
more difficult for individuals receiving assis-
optional for states.37 Today 31 states and
ing AFDC were past or current domestic
tance under this part to escape domestic
Washington, D.C., have expanded Medic-
violence survivors. Welfare reform was
violence or unfairly penalize such individ-
42
aid.38 Enrollment jumped by 35 percent
in the expansion states.39 This enrollment
boost helped drive down nationwide
uninsured rates for nonelderly adults to 13
percent.40 The nonexpansion states still live
Women’s advocates were particularly concerned about the impact
on domestic violence survivors. Thus was born the Family
Violence Option as part of TANF.
by the welfare-law rules, with the median
eligibility level for parents stuck at 44 percent of the federal poverty level in 2016.41
The welfare law opened the door,
and the Affordable Care Act, with its
enhanced federal match for Medicaid
expansion, welcomed states to end
the coverage gap for poor adults. We
need all states to take that step.
on the horizon with its mandatory work
uals who are or have been victimized by
requirements, child exclusion policies, and
such violence, or individuals who are at risk
time limits on receiving assistance, among
of further domestic violence.”44 In spite of
other new federal and state require-
advocates’ efforts, the Family Violence Op-
ments. Antipoverty advocates shared a
tion is optional for the states, but all states
widespread concern that these policies
have adopted some form of the option.45
would harm current and future applicants
and recipients, especially if the policies
were not implemented in a constructive
and thoughtful way, with the expertise
The Unfulfilled Promise of the
Family Violence Option
WENDY POLLACK
Director, Women’s Law and
Policy Project
Sargent Shriver National Center
and resources necessary to ensure that
applicants and recipients were offered a
supportive and effective way to transition
from welfare to work based on individual
needs. Instead welfare reform seemed
to offer mostly a “race to the bottom,”
on Poverty Law
with caseload reduction as the priority.
50 E. Washington St. Suite 500
Women’s advocates were particularly
Chicago, IL 60602
312.368.3303
[email protected]
concerned about the impact on domestic
violence survivors. Thus was born the
Family Violence Option as part of TANF.43
The Family Violence Option contains three
key provisions for states to implement: (1)
37 See National Federation of Independent Business v.
Sebelius, 132 S. Ct. 2566 (2012).
38 Henry J. Kaiser Family Foundation, Current Status of
State Medicaid Expansion Decisions (July 7, 2016).
39 Centers for Medicare and Medicaid Services, Medicaid
& CHIP: February 2016 Monthly Applications, Eligibility
Determinations and Enrollment Report 3 (April 29, 2016).
40 Robin A. Cohen & Michael E. Martinez, National Center
for Health Statistics, Health Insurance Coverage: Early
Release of Estimates from the National Health Interview
Survey, January–March 2015, at 1 (Aug. 2015).
41 Rachel Garfield & Anthony Damico, Kaiser Commission
on Medicaid and the Uninsured, The Coverage Gap:
Uninsured Poor Adults in States that Do Not Expand
Medicaid—an Update 1 (Jan. 21, 2016).
AUGUST 2016
screen applicants for domestic violence
while maintaining confidentiality, (2) make
referrals to counseling and support services, and (3) grant good-cause waivers of
TANF requirements “in cases where compli42 See my Twice Victimized—Domestic Violence and Welfare
“Reform,” 30 Clearinghouse Review 329 (Special Issue 1996).
43 See Optional Certification of Standards and Procedures
to Ensure that the State Will Screen for and Identify Domestic
Abuse, 42 U.S.C. § 602(a)(7); Subpart B—What Special
Provisions Apply to Victims of Domestic Violence?, 45 C.F.R.
§§ 260.50–260.59 (2016).
The number of families receiving AFDC or
TANF has been on a steady decline (except
for a slight rise during the recession that
began in 2008) from its historic high in
1994 of 5.1 million families to 1.7 million
families as of December 2013.46 However,
the percentage of TANF recipients that
report domestic violence victimization
has not diminished.47 Thus the need for
the Family Violence Option remains. But
44 42 U.S.C. § 602(a)(7)(A)(iii). Domestic violence survivors
and others who are battered or subject to extreme cruelty
may also be exempted from TANF requirements under the
hardship exception (see Battered or Subject to Extreme
Cruelty Defined, id. § 608(a)(7)(C)(iii); see also Wendy
Pollack & Martha F. Davis, The Family Violence Option of the
Personal Responsibility and Work Opportunity Reconciliation
Act of 1996: Interpretation and Implementation, 30
Clearinghouse Review 1079, 1082 (March–April 1997)).
45 U.S. Department of Health and Human Services,
Temporary Assistance for Needy Families Program (TANF):
Eleventh Report to Congress 100–101 (n.d.). While most
states claim to engage in universal screening, waivers
are generally limited to work activities, the time limit, and
cooperation with child support enforcement (see Legal
Momentum, Family Violence Option: State by State Summary
(July 2004)).
46 Gene Falk, Congressional Research Service, Temporary
Assistance for Needy Families (TANF): Size and Characteristics
of the Cash Assistance Caseload 4 (Jan. 29, 2016).
47 Memorandum from Susan Golonka, Acting Director,
Office of Family Assistance, U.S. Department of Health and
Human Services, to State, Territory, and Tribal Agencies
Administering TANF: Domestic Violence Awareness Month:
Opportunities and TANF Resources for Prevention and Action
(Oct. 20, 2014).
C L EARI N G H O U S E A RT IC L E
9
TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
no national information or data have
ascertained if and how the Family Violence
Option is being implemented, including how
many applicants and recipients are being
screened, referred to support services
and counseling, or granted waivers from
TANF requirements. The studies that
do exist present a dismal picture.48
For the Family Violence Option to be
effective, at minimum, domestic violence
survivors must understand that they gain
some benefit from disclosing that they
have been abused. The culture of the TANF
agency must be one of understanding,
flexibility, and support, with survivors’
safety being paramount. Protocols and
procedures must be clear and consistently
followed. Referrals must be appropriate
and resources sufficient to address the
violence and its consequences. And, most
important, applicants and recipients must
be informed that there is such an option.
A Voice for Low-Income
Fathers of Color
MARGARET STAPLETON
Director, Community Justice
Sargent Shriver National Center
We submitted testimony during the
congressional hearings on welfare reform.49
Looking back, I remain confident that we
had good ideas and the right tone. We
said that the fathers were big fans of the
on Poverty Law
parenting their children’s mothers were
50 E. Washington St. Suite 500
doing—a “remarkably good job given the
Chicago, IL 60602
312.368.3327
[email protected]
When welfare reform was coming down the
pike in the mid-1990s, we tried to get the
fathers of low-income children onto Congress’ radar. We had been involved in advocacy for low-income minority fathers for
many years, mainly through our work with
the Paternal Involvement Project, a Chicago
foundation-supported initiative for which
we did policy advocacy. At every opportunity
we talked about the importance of these fathers in their children’s lives and about the
fathers’ needs for assistance so that they
difficulties they face because of their
poverty”—and we said that the fathers
played equally important roles in the lives
of both their sons and their daughters.50
The bulk of our recommendations focused
on two broad issues: access to benefits
and services and improvements in the
child support enforcement system.
Regarding access to benefits and services, we recommended that welfare
reform give low-income, noncustodial
fathers of children on welfare access to
the welfare-to-work programs and some
of the services available to the mothers
We know that, for the most part, this
relay of information is not happening and
that domestic violence survivors do not
dare apply for TANF assistance, let alone
disclose the abuse. The risks are simply
too high and the benefits too low. Their
reluctance to apply does not mean that
survivors do not need the assistance; their
reluctance simply means that domestic
violence survivors are making the best
choice for themselves and their children.
The Family Violence Option was intended
to prevent this no-win situation that only
makes domestic violence survivors and
their families poor and keeps them poor.
We know what works. Let us make it right.
48 See, e.g., Timothy Casey et al., Legal Momentum &
National Resource Center on Domestic Violence, Not Enough:
What TANF Offers Family Violence Victims (March 2010);
Cecelia Friedman Levin & Kathy Zeisel, National Law Center
on Homelessness and Poverty, Shortchanging Survivors: The
Family Violence Option for TANF Benefits (Dec. 2009); Taryn
Lindhorst & Julianna D. Padgett, Disjunctures for Women and
Frontline Workers: Implementation of the Family Violence
Option, 79 Social Service Review 405 (Sept. 2005).
AUGUST 2016
We talked about the importance of these fathers in their
children’s lives and about the fathers’ needs for assistance so that
they could be effective nurturers and providers.
could be effective nurturers and providers.
We have continued to be advocates for this
group in the decades after welfare reform.
On this anniversary I look back at what we
said to Congress in 1995 and look around
at the state of low-income minority fathers
now. I will not talk here about the horrific
treatment—which worsened during these
same years—of men of color by our criminal
justice system. Examining the unwise
on welfare and pay a monthly stipend to
fathers who participate in those programs.
We also recommended that Congress
extend Medicaid to these fathers.
Our recommendations regarding child
support were more specific because the
Paternal Involvement Project fathers had
had a lot of experience with the child
support program. (There was and is a lot
of truth to the statements that the child
welfare and public benefits policies for men
in conjunction with racially tinged overincarceration should be done but in a longer
and more scholarly piece than this one.
49 Contract with America—Welfare Reform: Hearing Before
the Subcomm. on Human Resources of the H. Comm. on
Ways and Means, 104th Cong. 1270–76 (1995) (statement
of David Pate, Executive Director, Paternal Involvement
Demonstration Project).
50 Id. at 1273.
C L EARI N G H O U S E A RT IC L E
10
TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
support system and the criminal justice
April 2016, reflects a broadening of insight
proposal were enacted by Congress, the
system are among the very few government
into the state and needs of low-income
child-support program would be freed up
programs that touch low-income men.)
children and both of their parents.51 The
to be a much more family-friendly program
Regarding child support, we recommended
office’s commissioner, Vicki Turetsky (many
by, for example, passing through much
welfare advocates’ colleague before she
more of the child support collected for
joined the Obama administration and
TANF families to those families, allowing
a smart, strong voice for families in the
retroactive adjustment of child-support
administration), described this insight in
obligations, requiring states to review and
her introduction to the strategic plan:
adjust child-support debt owed to the state
• that the federal child-support program
fund mediation, counseling, and
parent education in addition to its too
narrowly focused support establishment and enforcement activities,
• that welfare reform assist men in
parentage establishment and modifications of child support orders
and clarify that state child-support
programs serve both parents, and
• that welfare reform require states
The national plan also recognizes that
we are in the people business. Modern
families, the low-wage labor market, and
customer expectations have changed
in the last 40 years. The plan focuses
on a range of evidence-based and
and discourage accumulation of unpaid
child-support debt during incarceration,
limiting interest charged on child-support
arrears, and even allowing and eventually
requiring all states to include parenting-time
opportunities in child-support orders.
locally-tested strategies to collect more
Much needs to be done, and policymakers
support payments by strengthening both
need to learn about the reality of low-in-
the ability and willingness to pay support.
come fathers’ lives. They could learn a
The fact is that family self-sufficiency
great deal from two recent books: Doing
depends on regular payment of child
the Best I Can: Fatherhood in the Inner
support, and regular payment depends
City and Failing Our Fathers: Confronting
That is what we recommended.
on a steady job. Further, children need
the Crisis of Economically Vulnerable
Where are we now?
more than money from their parents—
Nonresident Fathers.54 Both books give
they need parents who love them and
much-needed insight into the real worlds
cooperate with each other to care for
of low-income men and propose practical
them. The national plan identifies strate-
solutions to the challenges they face.
to pass through more of the child
support collected for AFDC families
to those families and disregard the
amount passed through in setting the
families’ cash assistance amount.
Of course, the biggest improvement is the
Medicaid expansion to all low-income adults
under the Patient Protection and Affordable
Care Act. In those states that have expanded their Medicaid programs, Medicaid
coverage is life-saving, life-altering, and
life-improving for all newly covered adults,
including low-income fathers of color.
Regarding fathers accessing benefits and
services from the welfare menu available to
custodial mothers, we have gotten almost
nowhere; this is not all that surprising
because mothers have not thrived under
the states’ implementation of TANF either.
Progress in the child-support program has
been much more encouraging. The federal
Office of Child Support Enforcement’s
National Child Support Enforcement
Strategic Plan for 2015–2019, released in
AUGUST 2016
gies used by states, tribes and counties
to enforce and facilitate payment without
undermining family relationships so that
more families can do better economically and more children can thrive.
52
Commissioner Turetsky’s statement
reflects the inch-by-inch progress that
has been made over the last 20 years in
our collective thinking about low-income
men and their crucial roles in their families. The federal fiscal year 2017 budget
proposal gives more insight into where child
Administration Proposals Would
Strengthen TANF’s Effectiveness
MARK GREENBERG
Acting Assistant Secretary
Administration of Children and
Families, U.S. Department of
Health and Human Services
330 C St. SW
Washington, DC 20201
202.401..1822
[email protected]
support could be heading.53 If the budget
51 See Office of Child Support Enforcement, National Child
Support Strategic Plan for 2015–2019 (n.d.).
52 Id.
53 See Office of Child Support Enforcement, FY 2017
Budget and Child Support (March 16, 2016).
54 Kathryn Edin & Timothy J. Nelson, Doing the Best I Can:
Fatherhood in the Inner City (2013); Ronald B. Mincy et al., Failing
Our Fathers: Confronting the Crisis of Economically Vulnerable
Nonresident Fathers (2015).
C L EARI N G H O U S E A RT IC L E
11
TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
The 20th anniversary of TANF offers an
We were encouraged that this resulted
ness of programs to families in need. And
opportunity to look at TANF’s strengths
in the largest expansion of subsidized
we have revamped TANF financial reporting
and weaknesses and to consider how
employment in the United States since
to give much more information about
to improve the program’s effectiveness
the 1970s and that some states expanded
how block grant funds are being used.
in helping families in need and helping
provisions of assistance.55 But basic TANF
parents find and succeed in employment.
cash assistance remained far less respon-
TANF had its strongest effects in increasing
employment among single parents and
contributing to child-poverty reduction in
the first years after the law was enacted.
This progress essentially ended in 2000.
Accordingly more needs to be done to
make TANF more effective in both raising
sive to the growing need than did other
safety net programs, including the Supplemental Nutrition Assistance Program. And
the progress in providing subsidized jobs
was not sustained for the most part after
funding under the Act ended, although we
continue to emphasize to states that it
remains an allowable use of TANF funds.
The next administration and the next Congress will face a set
of key issues about how to respond to concerns that have been
raised about TANF’s performance and effectiveness.
We have also urged Congress to act to
strengthen TANF. Our budget proposal for
the 2017 fiscal year asks Congress to
• increase the TANF block grant by
$8 billion over five years—the first
increase in basic block grant funding
since the program was created;
• limit states’ use of federal TANF and
state maintenance-of-effort spending
to families with income at or below 200
percent of the federal poverty level
in order to ensure that expenditures
are more effectively targeted;
• add “reducing child poverty”
as a new purpose of TANF;
employment and reducing child poverty.
Throughout the administration, we have
While the TANF block grant structure has
focused on building a research agenda
allowed important flexibility, less than half
and strengthening technical assistance
of TANF funds are now being spent on the
for states to improve the effectiveness of
core activities of basic income assistance
their programs in connecting families with
to poor families, work activities, and child
employment and being more responsive
care in nearly half the states. The share of
to families in need. This includes research
structure focused on helping
eligible families receiving assistance has
initiatives relating to career pathways,
families get and keep jobs;
dropped from 79 percent in the mid-1990s
sectoral employment strategies in health
to 32 percent in 2012. Thus we need to
care, subsidized and transitional employ-
ensure that use of TANF funds is more
ment, more effective job-search strategies,
clearly focused on reaching needy families
coordination with other parts of the
and supporting the core activities for
workforce system, the potential applicability
which the block grant was established.
of behavioral economics research, exploring
Early in the Obama administration, with the
enactment of the American Reinvestment
and Recovery Act, states had access to
additional TANF funds for ongoing and shortterm assistance to struggling families and
to support subsidized jobs programs. We
strongly encouraged states to use the funds
to assist families in need and develop or expand programs of subsidized employment.
AUGUST 2016
how to strengthen executive functioning and
self-regulation skills, and two-generation
strategies. We have initiated a Systems
to Family Stability Policy Academy to work
• require that more than half of
TANF funds be used for the core
benefits and services of assistance,
employment, and child care;
• develop a better accountability
• allocate $2 billion over five years for a
new TANF economic response fund that
would operate more effectively than
the current contingency fund; and
• repurpose the current TANF contingency fund so that its funding
is used for key initiatives such as
subsidized employment and two-generation demonstration projects.56
intensively with a set of jurisdictions that
We do not yet know if Congress will
are seeking to improve the effectiveness
legislate on TANF in the remainder of
of their TANF programs and the responsive-
this year. If not, the next administration
55 See Mary Farrell et al., U.S. Department of Health and
Human Services, Subsidizing Employment Opportunities for LowIncome Families: A Review of State Employment Programs Created
Through the TANF Emergency Fund (Dec. 2011).
and the next Congress will face a set
56 U.S. Office of Management and Budget, The President’s
Budget for Fiscal Year 2017 (n.d.).
C L EARI N G H O U S E A RT IC L E
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
of key issues about how to respond to
concerns that have been raised about
TANF’s performance and effectiveness. We
hope that this administration’s research,
technical assistance, policy guidance,
and budget proposals will contribute to
the discussion of how to move forward.
Changing Structures to Yield a
Decent Income for All
KATE KAHAN
Legislative Director
202.339.9317
[email protected]
We cannot ignore that the labor market continues to be rife with
discrimination against women and particularly women of color.
through waivers of various federal AFDC
we must tackle the disparities that have
requirements to allow for state-run “exper-
been built over generations by structural
iments.” The goal of these changes was to
racism and sexism.60 One aspect of this
force women receiving aid into the labor
work should involve significant new public
market. Modest improvements were made
investment, particularly at the federal
in access to some work supports, such as
level, in people and communities with
child care, but little was done to alter the
high levels of poverty and unemployment
fundamentally inhospitable labor market
to create good jobs for residents and to
that poor single mothers confronted.
repair their communities.61 We also need
The myth of the irresponsible mother on
welfare focused on blaming poor women,
particularly poor women of color, for
poverty rather than focusing on broader,
STEVE SAVNER
systemic economic causes.57 This myth
to enact the full complement of solutions,
including paid leave, earned sick days, fair
scheduling, and access to quality, affordable child care and adequate transportation, to support women and families.
paved the way for the TANF block grant in
As we take steps to build an economy that
1996, which has drastically limited, and
delivers good jobs for all who need them,
for many eliminated altogether, access
we must explore new cash aid strategies
Washington, DC 20009
to cash assistance and has increased
that are broad-based and nonstigmatizing
202.339.9312
deep poverty across the nation.58
and that supplement wages for those who
Director of Public Policy
Center for Community Change
1536 U St. NW
[email protected]
The Great Recession reminded us that
poverty results from multiple, complex
have jobs and supply an adequate income
for those who are not in the labor market.
AFDC and its state precursors were
factors and that solutions need to be
Our country is not on track to ensure that
developed for women, typically widows
robust enough to tackle the problem.
people’s basic needs are met, much less to
and children, when women were largely
We cannot ignore that the labor market
ensure that people have enough to thrive;
excluded from the paid labor market. AFDC
continues to be rife with discrimination
to put our country on such track is our
required that cash aid should be offered
against women and particularly women of
mission. To change course and achieve the
to all eligible families, but it never provided
color.59 The result is that we have neither
broadly shared goal of a decent income
benefits sufficient to escape poverty.
programs that give aid to those who need it
for all, we need to build the power and
nor a labor market that offers living wages
capacity of low-income people, especially
and necessary benefits for single mothers.
low-income people of color, to change their
In the 1960s and 1970s, as more women
broke through barriers to enter the labor
market, single mothers’ efforts to achieve
To begin to fix the failure of our labor
financial security were hindered by occu-
market and the need for support for low-in-
pational segregation, lower wages, limited
come families and working-age people,
opportunity for advancement, and the absence of labor standards and supports that
are critical for single mothers in particular.
During the years leading up to welfare reform in 1996, work requirements within the
AFDC program were stiffened particularly
AUGUST 2016
57 See Mimi Abramovitz, Welfare Reform in the United
States: Gender, Race and Class Matter, 26 Critical Social
Policy 336 (2006); Lucy A Williams, Race, Rat Bites and Unfit
Mothers: How Media Discourse Informs Welfare Legislation
Debate, 22 Fordham Urban Law Journal 1159 (1995).
communities and public policies for the
better. This can be achieved only by making
a fundamental commitment to racial and
gender justice and giving voice to and
expanding the power of the most marginalized communities in the United States.
58 See Center on Budget and Policy Priorities, Chart Book:
TANF at 19 (March 29, 2016).
60 See, e.g., john a. powell, Understanding Structural
Racialization, 47 Clearinghouse Review 146 (Sept.–Oct. 2013).
59 See Milia Fisher, Center for American Progress, Women
of Color and the Gender Wage Gap (April 14, 2015).
61 See Dorian T. Warren et al., Unlocking Opportunities in
the Poorest Communities: A Policy Brief (Feb. 2016).
C L EARI N G H O U S E A RT IC L E
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
Room for Advocacy in Promoting
Economic Justice
GINA MANNIX
Deputy Director
[email protected]
in a child’s life and the enduring harms
secure the rights of low-wage workers has
of growing up in poverty.65 The number of
done more than work at the margins. For
households living on less than $2 in cash
example, our organization’s litigation has
income per person per day has skyrock-
protected access to the Supplemental
eted, with single-mother households and
Nutrition Assistance Program—the major
racial minorities especially vulnerable.
remaining near-universal income-support
66
program—and other critical supports such
The 1996 welfare reform emphasized work,
as Medicaid and child care for tens of thou-
but the labor market has failed dismally
sands across the country.69 In some cases
to produce adequate jobs at decent
MARC COHAN
wages. The massive loss of decent jobs,
Executive Director
stagnant wages, the growth of contingent
National Center for Law and
part-time work, enduring gender and
Economic Justice
275 7th Ave. Suite 1506
New York, NY 10001
212.633.6967
[email protected]
we secured protections for TANF applicants
and recipients. Our policy advocacy has
protected TANF access for people with
disabilities. Through litigation we have used
racial discrimination, and wage theft
the TANF work requirement as a sword by
make rising out of poverty extraordinarily
extending the protection of civil rights and
difficult for families.67 TANF is ineffective
workers’ rights laws to workfare workers to
in helping parents secure work when work
ensure that these workers are treated with
is available and in protecting their families
TANF was a momentous step backward
fairness and dignity. We have supported
when work is unavailable or impossible.68
and partnered with low-income community
for national policy on child poverty.
We offer these reflections as veteran
antipoverty lawyers with the National
Center for Law and Economic Justice;
Welfare reform emphasized work, but the labor market has failed
dismally to produce adequate jobs at decent wages.
under our former name, Center on Social
Welfare Policy and Law, our organization
was instrumental in supporting the
welfare rights movement in the 1960s
and achieving historic U.S. Supreme Court
victories expanding access to AFDC.62
TANF has failed as a safety net program for
families. Less than 25 percent of families
in poverty receive assistance. Benefit
levels are further below the poverty level
now than in 1996.63 Disturbing evidence
points to persistent racism embedded
in TANF policies and administration.64
Childhood extreme poverty has grown to
Remedying these problems will require
groups seeking a voice in shaping the
significant structural changes. Building the
public policies that affect their lives. Most
public and political will to establish a 21st
recently we have joined with low-wage work-
century social safety net for children and
ers organizing for fair pay, safe working con-
an economy that offers decent jobs is a
ditions, and freedom from discrimination.70
daunting long-term national challenge that
is likely out of reach in today’s environment.
The last two decades have seen much
needless pain and a focus on punishing
Nonetheless, work has been and can
the poor. Yet we remain hopeful that,
be done to protect children and families
as the national conversation on income
and to promote economic justice for
inequality continues, we will find real
families. Ground-breaking advocacy to
opportunities down the road to restore a
protect access to public benefits and
fundamental safety net and a new wave
of creative advocates to help shape it.
the importance of adequate income early
65 Edin & Shaefer, supra note 21; Arloc Sherman et al.,
Boosting Low-Income Children’s Opportunities to Succeed
Through Direct Income Support, 16 Academic Pediatrics 590
(April 2016).
62 See Martha F. Davis, Brutal Need: Lawyers and the Welfare
Rights Movement 1960–1973 (1993).
66 See H. Luke Shaefer & Kathryn Edin, The Rise of Extreme
Poverty in the United States, Pathways (Summer 2014).
63 Center on Budget and Policy Priorities, Chart Book: TANF
at 19, supra note 58.
67 See Peter Edelman, So Rich, So Poor: Why It’s So Hard to
End Poverty in America (2012).
69 See Marc Cohan & Mary R. Mannix, National Center for
Law and Economic Justice’s SNAP Application Delay Litigation
Project, 46 Clearinghouse Review 208 (Sept.–Oct. 2012).
64 See Mary R. Mannix & Henry Freedman, TANF and
Racial Justice, 47 Clearinghouse Review 221 (Sept.–Oct. 2013).
68 See Kate Kahan & Steve Savner, Changing Structures
to Yield a Decent Income for All, supra.
70 See generally www.nclej.org for highlights of our
advocacy on these points.
shocking levels while new evidence shows
AUGUST 2016
■
C L EARI N G H O U S E A RT IC L E
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
How to Fix TANF
ELIZABETH LOWER-BASCH
Director, Income and Work
Supports
Center for Law and Social Policy
1200 18th St. NW Suite 200
Washington, DC 20036
202.906.8013
[email protected]
Twenty years after TANF was created,
it is failing in both of its key missions:
serving as a safety net for the poorest
families with children and supplying these
families with work-related activities that
will allow them to escape poverty. Fixing
TANF to achieve those goals requires
a comprehensive bill that (1) creates a
national floor while retaining state flexibility
to do better, (2) reforms the performance
measures to get the incentives right, and
(3) expands federal funding, which has
lost one-third of its value due to inflation.
Creating a Floor. States have flexibility
under TANF to set benefit levels, sanctions,
and time limits (see table 1). When the 60month federal time limit was established
with much controversy, no one imagined
that a state would adopt a 12-month
lifetime limit on benefits, as Arizona did.71
The number of families receiving cash
assistance plummeted in the wake of
welfare reform and stayed comparatively
low even in the face of the Great Recession. While 4.4 million families received
assistance in an average month of 1996,
just 1.6 million families, 38 percent of
whom were in California, received assistance in 2015.72 Moreover, the families that
71 See my Cash Assistance 2 (May 2015).
72 Id. at 2–3; U.S. Department of Health and Human
Services, TANF and SSP: Average Monthly Number of
Families (June 16, 2016).
AUGUST 2016
Sources: U.S. Census Bureau, American FactFinder (n.d.); U.S. Department of Health and Human Services, Characteristics and
Financial Circumstances of TANF Recipients, Fiscal Year 2014 (March 25, 2016); Urban Institute, Welfare Rules Database (n.d.).
do receive assistance remain deeply poor
and training such as vocational education
due to starkly inadequate benefit levels.
or satisfactory school attendance.74
One useful step toward correcting states’
The work participation rate has become
uneven spending of their TANF funds
increasingly problematic; as our economy
would be to require that states spend
has evolved over the last 20 years, good
at least a minimum share of TANF and
jobs now require a postsecondary creden-
related state funds on core activities,
tial, and many people without a high school
including cash assistance and supports
diploma or equivalent—particularly young
for those receiving cash. Because even
people—find obtaining any type of steady
this would leave sharp disparities among
employment to be impossible. The work
states, policymakers should also consider
participation rate should be improved to
a federal floor for benefits and time limits
simplify tracking and give states credit for
and should ensure, such as by making the
engaging people in education and training
child tax credit fully refundable, that the
as well as activities, such as mental health
neediest families benefit from programs
services, needed by many participants.
that do not depend on state choices.
The law also needs reform to make
Performance Measures. The “work
measures correspond to the stated goals
participation rate,” which has been the
of TANF. The caseload-reduction credit,
primary performance measure for TANF,
which rewards states for cutting caseloads
does not give states an incentive to
by any means, should be replaced by
operate effective programs, particularly
an employment credit. Data should be
for the most disadvantaged workers with
collected on outcome measures, such as
children.73 Many states’ TANF programs
indicators of the well-being of poor children
claim credit for people already employed
and families, that reflect the safety net
and offer little else, with 22 percent of
and employment goals of TANF. These
all recipients counted toward the work
indicators should cover both families
participation rate in unsubsidized employ-
receiving help through TANF and those
ment and 6 percent in job search, while
left out—otherwise states can exclude
only 5 percent participated in education
families with impunity and concentrate
73 See my Work Participation Rate (June 2016).
74 U.S. Department of Health and Human Services, Work
Participation Rates—Fiscal Year 2013 (Jan. 12, 2016).
C L EARI N G H O U S E A RT IC L E
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
Ideas such as equitable funding, regular cost-of-living increases,
and a federal floor on benefits would put us on the road to fixing
TANF’s flaws.
The change in 1996 from AFDC to TANF
was just one particularly harmful shift
in a decades-long series of changes
in wages, workplace benefits, and
public income supports—a series
that has inflicted great hardship.
their resources on just a few. States should
caseloads to rise in the face of constrained
be accountable for the choices that they
state spending, the fund had expired well
make and that affect the ease or difficulty
before the need for assistance ended.
bottom two quintiles of the population
Next Steps. A serious conversation about
though the nation’s real gross domestic
of needy families’ access to benefits.
Funding. Since TANF was created, the
fixing TANF is long overdue. The House
real value of the basic TANF block grant
Ways and Means Committee last year
has declined 33 percent due to inflation.75
shared a TANF reauthorization discussion
Moreover, those states that historically
draft that opened the door to revising
paid the lowest benefits and had the lowest
the work participation rate but did not
caseloads got the least money under the
move forward with it. President Obama’s
formula for the block grant. Varying rates
2017 budget proposal includes proposals
of growth have only made the disparities
to increase TANF funding, create a new
worse: based on 2013–2014 data, Florida
contingency fund, and require more funds
now receives $448 per poor child, while
to be spent on core TANF activities.79 Build-
78
New York receives $2,160 per poor child.
ing on these excellent steps and adding
TANF needs additional funding, distrib-
more ambitious ideas such as equitable
uted on the basis of the number of poor
funding, regular cost-of-living increases,
children rather than of historical spending
and a federal floor on benefits would put
patterns, and a strengthened requirement
us on the road to fixing TANF’s flaws.80
76
for states to commit their own funds.
downturns. During the Great Recession,
the number of families receiving assistance
actually fell in nearly half the states.
77
TANF overall was far less responsive
to need than other programs, such as
the Supplemental Nutrition Assistance
Program. While the emergency fund
established in 2009 was powerful in
encouraging states to develop subsidized
employment programs and allowing
75 See my TANF Block Grant, supra note 7, at 4.
76 For the data that gave us these figures, see U.S.
Department of Health and Human Services, TANF Financial
Data—FY 2014 (July 7, 2015); U.S. Department of Health and
Human Services, TANF Financial Data—FY 2013 (July 1, 2014).
77 Randi Hall, Center for Law and Social Policy, TANF 101:
TANF in the Great Recession 5–6 (July 2015).
AUGUST 2016
in 2014 was below 1995 levels, even
product had grown 61 percent.81 For the
bottom quintile, 2014 average income
was 9 percent below the 1995 level.82
The nation is appropriately concerned
about the increase in inequality driven by
growth in incomes at the top. Incomes
at the bottom have declined significantly
in absolute terms, with harsh impact on
families and communities. The causes
include the decades-long erosion of
wages and benefits for the bottom,
coupled with a decline in a range of
government cash income supports.
Participation in TANF has collapsed, and
benefits for those who still manage to participate have been eroded, because of the
TANF also needs a new contingency fund
that automatically responds to economic
The average household income for the
Stopping the Contagion of the
TANF Disease
JIM WEILL
President
Food Research and Action
Center
1200 18th St. NW Suite 400
Washington, DC 20036
202.986.2200
[email protected]
elimination of entitlements, the switch to almost complete state discretion, time limits,
and other changes. TANF is not all that has
shrunk. By the end of 2014 the share of unemployed Americans who received unemployment insurance benefits had dropped
to its lowest point in decades.83 Workers’
compensation coverage has shrunk.84
State general assistance programs have all
81 See Federal Reserve Bank of St. Louis, Real Gross
Domestic Product (June 28, 2016).
78 U.S. House of Representatives Ways and Means Committee,
114th Congress, Discussion Draft on Improving Opportunity in
America Welfare Reauthorization Act of 2015 (July 10, 2015).
82 See Carmen DeNavas-Walt & Bernadette D. Proctor, U.S.
Census Bureau, Income and Poverty in the United States:
2014, at 39–44 (Sept. 2015).
79 See U.S. Office of Management and Budget, supra note
56; see also Mark Greenberg, Administration Proposals
Would Strengthen TANF’s Effectiveness, supra.
83 Rick McHugh & Will Kimball, Economic Policy Institute,
How Low Can We Go? State Unemployment Insurance
Programs Exclude Record Numbers of Jobless Workers
(March 9, 2015).
80 For additional data and sources, see Center for Law
and Social Policy, TANF 101: Policy Briefs on Temporary
Assistance for Needy Families (May 29, 2015).
84 National Academy of Social Insurance, Overall Trends in
Workers’ Compensation Benefits and Employer Costs (n.d.).
C L EARI N G H O U S E A RT IC L E
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
but disappeared.85 And the 1996 welfare
Second, public-sector jobs and job creation
ployers and Congress meeting the needs of
law bequeathed us not only TANF but also
initiatives must be rebuilt—both to meet
struggling Americans far more effectively.
harsh exclusions of documented immi-
urgent national needs in the 21st century
grants from the Supplemental Nutrition
and to boost underemployed populations.
Assistance Program (SNAP), Supplemental
Security Income, and Medicaid along with
other benefits cuts and eligibility cutoffs.
86
Third, the nation needs a system of adequate public income supports for those who
are unemployed or are unable to work or
At the same time that the safety net was
cannot find work. That system must fit the
shredded, the nation largely failed to build
21st century workforce and family needs.
adequate new supports for a changing
workforce. The damage to struggling
Americans has been profound. It has been
ameliorated by the expansion of public
health care coverage, the broadened reach
and deepened benefits of the earned
income tax credit (EITC) and the child tax
credit, the growth in Social Security Disability Insurance, and the growth of federal
nutrition programs, especially SNAP and
school meals.87 These mitigations, however,
have been uneven in their impact (e.g.,
only a little more than half of the states
have expanded Medicaid under the Patient
Protection and Affordable Care Act). And
overall the offsets—while important in their
magnitude—fall short of equaling the losses
and are under constant political attack.
What does this mean going forward?
Fourth, we must keep the TANF disease
Center on Budget and Policy
Priorities
820 1st St. NE Suite 510
202.408.1080
to disaster when they propose to end
entitlements, authorize arbitrary state
disqualifications in programs, tee up
federal dollars for major budget diversions
by the states, and turn SNAP, school
meals, housing programs, and other
key supports over to the states. Those
programs are lifting millions of people
out of poverty and going far to support
food security, to give health security and
access, and to meet other crucial needs.
As I wrote a decade ago, “only the federal
government has the capacity to confront”
the “toxic mix of economic stagnation
for the bottom half, persistent poverty,
declining opportunity, and growing ecohowever, mean that such federal role can
jobs as a source of adequate family
be sustained and improved only if the
support. When the private sector re-
government’s share of the burden is man-
sumes its role of adequately supporting
ageable. The growing overload on federal
working people, the public role will be
programs driven by the weakening of wages
more effective and sustainable.
and benefits in the private job market
keeps threatening to push the federal com-
AUGUST 2016
Senior Fellow
safety net. Lawmakers propose a path
rates, wages, and benefits to restore
87 See Center on Budget and Policy Priorities, Chart
Book: Social Security Disability Insurance (Oct. 20, 2015);
Gene Falk, Congressional Research Service, Low-Income
Assistance Programs: Trends in Federal Spending 9 (May 7,
2014) (tax credits); Cindy Mann, A Milestone in Health Care
Coverage, supra.
LIZ SCHOTT
Washington, DC 20002
nomic insecurity….”88 The nation’s politics,
86 See John Bouman, Immigrant Eligibility, supra.
The TANF Challenge—Holding
States Accountable
from infecting what remains of the national
First, we must boost employment
85 Liz Schott & Misha Hill, State General Assistance
Programs Are Weakening Despite Increased Need (July 9,
2015).
■
mitment past the breaking point—politically,
if not fiscally. A future of opportunity and
economic security will depend on both em-
[email protected]
TANF often is touted as a welfare-reform
success, one that should now extend to
other benefit programs. TANF caseload
decline is one basis for the claims. The
number of families receiving cash aid
has dropped steeply under TANF, but
this is not success when the number
of poor and deeply poor families has
grown.89 Boosters also seek to extend
TANF work requirements to other programs, but advocates know that these
more often serve to sanction families
or restrict access to training programs
than to offer economic opportunity.
The creation and the design of the TANF
block grant, along with state actions, are
key contributors to unhelpful work requirements and the deep erosion of a cash
safety net. Changes in federal law could
drive some improvements. Ultimately, however, with or without federal law changes,
holding states accountable for improved
TANF programs is going to be a state-level
battle, led by state and local advocates,
low-income families, and their allies.
I see three key action areas for improving
88 The Federal Government—the Indispensable Player in
Redressing Poverty, 40 Clearinghouse Review 19, 22 (May–June
2006).
state accountability under TANF.
89 See Center on Budget and Policy Priorities, Chart Book:
TANF at 19, supra note 58.
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TWENTY YEARS AFTER WELFARE REFORM: REFLECTIONS AND RECOMMENDATIONS FROM THOSE WHO WERE THERE
Accessing Adequate Cash Assistance.
Congress should add an employment and
TANF’s race to the bottom has been one
earnings outcome measure to replace or
of not only caseload decline but also
add to the work participation rate. And,
ever-shorter time limits and ever-declining
if the work rate is retained, it should be
value of benefits. There are no federal
modified so that states could have more
accountability standards for states to
space to do a better job with their work
provide a safety net. One such measure
and training programs. There is bipartisan
could be the ratio of families on TANF
support for congressional proposals to
to families in poverty by state: For every
make these TANF improvements. Here,
100 families with children in poverty,
too, whether or not Congress acts, a state
state TANF programs served only 23
could choose to improve its work programs
in 2014, down from 68 in 1996. This
and track outcomes for families, and
TANF-to-poverty ratio varies across states
advocates can push their state to do so.
90
and in 12 states is less than 10.
91
Targeting Funding to Core Welfare
Congress should hold states accountable
Reform Purposes. Only half of state and
for serving poor or deeply poor families by
federal TANF funds go to cash assistance,
using a measure such as the TANF-to-pov-
child care, and work and training activi-
erty ratio. However, in the absence of con-
ties; in some states much less than half
gressional action, state advocates could
goes to these core areas.93 States have
push for tracking and reporting on access
increasingly used TANF as a slush fund to
in their states or can simply use the existing
fill state budget holes or to enable tax cuts,
data to expose a state’s track record.
literally taking food from the mouths of poor
Improving Employment and Earnings
Outcomes. Despite 20 years of claimed
success of welfare reform, we do not
have good information about how well
states are doing in preparing parents for
and connecting them to jobs. The main
work performance measure under TANF
children. Congress should limit spending
flexibility. But here, too, with or without
federal law changes, state-level advocacy
will be necessary to bring these funds back
to the core welfare-reform purposes. New
detailed state spending data coming out
soon can help highlight state actions here.
is the work participation rate; it looks
The story of the last two decades of
at the extent of engagement of current
TANF is foremost a state-by-state story;
recipients in specified activities, not at the
so, too, will be the story of its future.
employment rates or earnings of parents
who leave TANF.92 In fact, a state can get
as much credit for cutting a family off for
any reason as for helping the family leave
welfare for work. While a few states track
employment or earnings outcomes, no
standard requires that TANF programs
lead to successful work outcomes.
90 Floyd et al., supra note 18.
91 Id.
92 See Lower-Basch, Work Participation Rate, supra note
73.
AUGUST 2016
93 Schott et al., supra note 3.
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