Q1: May States have a transition period after the end of their waivers?
A: Neither the statute nor the regulations allow for a transition period. However, ยง260.72(c) allows a State to make changes in its waiver project that have the effect of bringing it closer in line with the TANF requirements. If a State is concerned about its ability to make a smooth transition, it should consider whether it could make use of this provision to ease the transition.
Q2: With respect to certifying waiver inconsistencies, does a State only have to do so for inconsistencies that relate to work (participation and sanctions) and time limits? Do States that are continuing their 24-month Transitional Medicaid waivers have to do anything about that in the certification?
A: For the purpose of the waiver certification, a State need address only those inconsistencies that relate to requirements for work participation under section 407 and time-limited assistance under section 408(a)(7) of the Act. The certification does not need to address other waiver policies such as 24-month Transitional Medicaid. However, States should check with the Health Care Financing Administration regarding any additional requirements for continuing waivers related to Medicaid eligibility.
Q3: Have any States submitted their waiver inconsistencies and is it possible to get copies of them?
A: We have received most, if not all, of the certifications of waiver inconsistencies to be submitted in accordance with the TANF regulations.
In addition, for the 1997 and 1998 reporting periods, States seeking adjustments to their work participation rates based on waiver inconsistencies submitted information describing which policies were applicable and how they affected the participation rates. In fact, waiver inconsistency claims for FYs 1997 through 1999 are not governed by regulation, but by reasonable interpretations of the statute, because these periods precede the effective date of the rules.
Any documents received on the subject of certifying waiver inconsistencies are considered public documents, and we will make them available by request.
Q4: If a State waiver allows one parent to be exempt from work requirements, may the family be removed from the two-parent participation rate?
A: Yes. In this circumstance, a State could claim that inclusion of that family in the two-parent rate would constitute a waiver inconsistency under subpart C of part 260; that is, under its waiver, it expects only one parent to work, and it could not continue to provide the waiver exemptions without seriously risking a two-parent penalty.
Q5: Interim Final Rules: Does DRA 2005
contain provisions that permit DHHS to waive certain statutory requirements
such as the work participation rates?
A: There are no waiver provisions under the TANF section of
DRA 2005. By “waiver” we mean explicit statutory language that permits
the Secretary of HHS or his designee to allow a TANF grantee to delay implementation
or to ignore a TANF provision contained in the statute.
A related question is whether or not an existing waiver can be extended under
DRA 2005. The answer to this question is also no. Waivers previously approved
under the former AFDC program (which were granted under section 1115 of the
Social Security Act) cannot be extended beyond the original project period because
there is no provision in law that would allow us to take such action.
Regarding implementation deadlines for DRA-mandated requirements, the preamble
to the interim final rule is unambiguous (see FR/Vol. 71, No. 125/Thursday,
June 29, 2006, page 37455, first column, last full paragraph). To quote:
Note: There may be confusion over the meaning of the term “waiver”. This term has a definitive meaning to us - - i.e., it denotes a specific statutory provision which allows for requirements to be disregarded for a limited period or indefinitely. We recognize that not all parties interpret this term in the same manner. For example, we have heard the terms “waiver” and “reasonable cause exception” used interchangeably. The preamble discussion under “Section 262.6 What happens if a State does not demonstrate reasonable cause?” may have added to the confusion (see Federal Register/Vol. 71, No. 125/Thursday, June 29, 2006, page 37470, second column, last full paragraph). The paragraph reads as follows:“… With one exception, States must comply with these requirements by October 1, 2006, or be subject to potential penalties during FY 2007. The exception relates to the new penalty created by the Deficit Reduction Act of 2005 for States that fail to establish and maintain procedures to verify reported work participation data. While States are required by the statute and this rule at §261.63 to submit a Work Verification Plan by September 30, 2006, we will hold States accountable for failure to maintain adequate internal controls and work verification procedures only for conduct that occurs after October 1, 2007.”
This paragraph asks for comments addressing a specific circumstance - - a State fails to meet the work participation rates because of State legislative inaction and the State has a rationale as to why this situation merits relief from the penalty due to a reasonable cause exception. The paragraph envisions neither the grant of a broad “waiver” from the work participation rates nor the elimination a penalty determination for failure to meet the work participation requirements. The paragraph merely solicits comments on appropriate procedures for this narrow, one-time circumstance.“We recognize that this interim final rule imposes new requirements on States which, in some States, will require legislative action. We invite States that believe that it will be impossible to meet the work participation rates without State legislative action to submit comments explaining why it will be impossible to meet the required rates and how we should use the reasonable cause exception to provide relief from the work participation penalty.”
