Q & A: Tribal TANF
Tribal TANF Program Policy Questions and Answers
Questions And Answers
Q1: Why do the Tribal TANF regulations make a distinction between TANF "assistance" and other benefits or services that a TANF program may provide to needy families?
A1: The TANF statute itself distinguishes between "assistance" and other forms of TANF benefits that Tribes and States may provide to needy families. Work requirements, time limits, and data collection and reporting apply only to families receiving assistance. The legislative history of the TANF statute indicates that Congress meant for the term "assistance" to encompass more than cash payments, but does not provide much specific guidance.
Q2: How do the regulations define assistance?
A2: The regulations define "assistance" to include payments directed at ongoing, basic needs. Non-recurrent, short-term benefits designed to deal with an individual crisis situation rather than ongoing need are excluded. Such short-term benefits cannot be provided for needs that will extend beyond four months. The definition also excludes child care, transportation and support services provided to employed families, Individual Development Account (IDA) benefits, refundable earned income tax credits, work subsidies to employers, and services such as education and training, case management, job search, and counseling. (§ 286.10)
Q3: If a family receives Welfare-to-Work (WtW) cash assistance, does this count against the established time limit on Tribal TANF assistance?
A3: Yes. WtW cash assistance provided for basic needs is defined as "assistance" under the regulations and counts against the time limit on Tribal TANF assistance. (§ 286.130)
Q4: Does a child living with a legal guardian constitute an eligible family for the purpose of assistance?
A4: A child must be living with a parent or adult relative in order to receive "assistance." If Tribal law provides that legal guardians or other individuals stand in loco parentis, then a Tribe could provide that a child living with such a legal guardian or other individual would constitute an eligible family for the purpose of "assistance."
Q5: May a family receive Tribal TANF assistance indefinitely?
A5: While a Tribal Family Assistance Plan may provide specific exceptions due to hardship or domestic violence, definite time limits for receipt of TANF assistance must be established. (§ 286.115)
Q6: What factors may a Tribe consider when proposing time limits for the receipt of Tribal TANF assistance?
A6: As part of its Tribal Family Assistance Plan, a Tribe must propose a time limit for receipt of Tribal TANF assistance that will apply to its service population and provide a rationale for its proposal. The proposal should take into consideration those factors that may impact on the length of time that a TANF family might be expected to need in order to find employment and become self-sufficient. Examples of the information that we would expect to be included to support the Tribe's proposal include, but are not limited to: poverty, unemployment, jobless and job surplus rates; education levels of adults in the service area; availability of and/or accessibility to resources (educational facilities, transportation) to help families become employable and find employment; and employment opportunities on and near the service area.
Q7: Must the same time limit apply throughout a Tribe's TANF service area?
A7: No. To allow for maximum flexibility, we are not requiring that the same time limit apply throughout the Tribal TANF service area. A Tribe has the option to decide that, because economic conditions and the availability and accessibility of services vary, it is appropriate to establish different time limits by geographic area. For example, a Tribe could choose to establish a shorter time limit for a part of the service area that has many employment opportunities than for another part of the service area with high unemployment. (§ 286.115)
Q8: May a Tribal TANF program continue to provide cash assistance to a family when the child(ren) have been temporarily removed from the home?
A8: It is allowable for Tribal TANF programs to continue cash assistance to a family if the child(ren) are temporarily absent from the home; the period of absence can conform to the provisions in section 408 of the Social Security Act or be for a greater or lesser period. The period selected should be reasonable. This policy and supporting rationale needs to be included in the tribe’s approved TANF plan.
Q9: How should settlement funds received by program recipients or applicants be treated for purposes of TANF eligibility?
A9: We suggest that jurisdictions consult with their legal counsel with respect to specific situations that arise. Generally, if income from a settlement or judgment is received by program recipients or applicants and it is not governed by a specific law that indicates how the funds should be treated, or the order for the judgment does not clearly state how the income is to be treated, then the TANF jurisdiction (i.e., State, Tribe, or Territory) has the authority to determine how the funds will be treated for purposes of determining financial eligibility for the TANF program.
Q1: Are all Indian tribes eligible to operate a Tribal TANF program?
A1: No. Only Federally recognized Indian tribes are eligible to submit Tribal Family Assistance Plans and to operate Tribal TANF programs. With respect to the state of Alaska, only the 12 Alaska Native regional nonprofit corporations specified at section 419 of the Act, plus the Metlakatla Indian Community of the Annette Islands Reserve are eligible to operate Tribal TANF programs. In addition, eligible Indian tribes may form consortia to develop and submit a single Tribal Family Assistance Plan. (§ 286.15)
Q1: When a Tribal Family Assistance Plan is approved, how much in Federal TANF funds are available to operate the program?
A1: The approved Tribal TANF program will receive Federal TANF grant funds equal to the Federal share of all expenditures (other than child care expenditures) by the State or States under the Title IV-A programs (AFDC and Emergency Assistance), and Title IV-F program (JOBS) program for fiscal year 1994 for Indian families residing in the service area(s) identified by the tribe in the Tribal Family Assistance Plan.
Q2: If the Tribal TANF program will only serve members of the Tribe, does the Tribal TANF grant amount only reflect Federal expenditures made on behalf of Tribal members rather than "all Indian families"?
A2: No. The statute expressly requires the Tribal TANF grant amount to reflect expenditures for all Indians families residing within the service area designated in the Tribal Family Assistance Plan. This is so even if the Tribe's service population only includes Tribal members. The statute leaves it up to Tribe to specify both the service area and the service population.
Q3: How are "Indian families" defined?
A3: A Tribe must indicate its definition of "Indian family" in its Tribal Family Assistance Plan. Each Tribe may define "Indian family" according to its own criteria. (§ 286.20 (a)(1))
Q4: Are administrative expenditures under the IV-A and IV-F programs reflected in the Tribal TANF grant formula?
A4: Yes. The Tribal TANF grant formula reflects all expenditures, including administrative expenditures. Such administrative expenditures include systems costs.
Q5: What role do States play in the determination of the Tribal Family Assistance Grant amount?
A5: Under the regulations, the Department will request that data be submitted by the affected State or States indicating the total Federal payments, including administrative costs (which includes systems costs) for fiscal year 1994 under the former Aid to Families With Dependent Children, Emergency Assistance and Job Opportunities and Basic Skills Training programs, for all Indian families residing in the geographic service area or areas identified in a Tribe's letter of intent or Tribal Family Assistance Plan. (§ 286.20)
Q6: What if the Tribe disagrees with the data submitted by the State(s)?
A6: If a Tribe disagrees with the data submitted by a State, it must notify the Department of such disagreement and may submit additional relevant information. Relevant information may include, but is not limited to, Census Bureau data, data from the Bureau of Indian Affairs, data from other Federal programs, and Tribal records. (§§ 286.20 and 286.25)
Q7: How is the final determination of the Tribal Family Assistance Grant amount made if there is disagreement between the Tribe and the State(s) on the data to be used?
A7: The statute authorizes the Department to make the final determination as to the amount of a Tribal Family Assistance grant. Under the regulations, the Department will review all additional relevant data submitted by the Tribe, together with the State-submitted data, in order to make a determination as to the amount of the Tribal Family Assistance Grant. The final determination will be made at the earliest possible date after consideration of all relevant data. (§ 286.25)
Q1: What limitations are there for the use of Tribal Family Assistance Grants?
A1: Tribes have broad flexibility in expending Federal TANF funds within statutory limitations. Tribes and States may use Tribal Family Assistance Grants for expenditures that are reasonably calculated to accomplish the purposes of TANF, including, but not limited to the provision to low income households of assistance in meeting home heating and cooling costs; assistance in economic development and job creation activities; the provision of supportive services to assist needy families to prepare for, obtain, and retain employment; the provision of supportive services to prevent of out-of-wedlock pregnancies, and assistance in keeping families together. TANF funds may also be used in any manner that was an authorized use of funds under the State plans for Parts A or F of title IV of the Social Security Act, as such parts were in effect on September 30, 1995. (§286.35)
Q2: May Tribal Family Assistance Grants be used for economic development and job creation?
A2: Yes. Tribal Family Assistance Grant funds may be used for economic development and job creation provided that such expenditures are consistent with section 401 (a) of the Act. TANF grant funds may also be used for supportive services to assist needy families prepare for, obtain and retain employment.
Q3: Are Tribes subject to a cap on administrative expenditures?
A3: Yes. Tribal TANF programs are subject to caps on the amount of Federal TANF funds that may be expended on administrative costs. These caps are negotiated between the Department and the Tribe and are subject to maximum percentages each fiscal year of TANF program operation. Expenditures by Tribal TANF program for information technology and computerization needed for tracking or monitoring the TANF caseload are excluded from the cap on administrative expenditures. (§ 286.50)
Q4: Since State TANF programs are subject to a fixed 15% cap on administrative expenditures, why may Tribal TANF programs negotiate higher caps?
A4: The 15% cap applicable to States is mandated by the statute and does not apply to Tribal TANF programs. The negotiated and graduated administrative cost cap applicable to Tribal programs recognizes that Indian tribes do not have the same resources available to States. Under the regulations, Tribal TANF programs are permitted to claim more administrative costs, especially in the initial operation and administration of a TANF program. (§ 286.50)
Q5: Are indirect costs negotiated with the Bureau of Indian Affairs, or any other Federal agency considered administrative costs?
A5: Yes. The regulations require such indirect costs to be considered administrative costs. (§286.55)
Q6: If a Tribe provides case management services to help potential TANF recipients apply for food stamps, would that activity be considered an administrative cost?
A6: Under the regulation case management, information and referral, and counseling activities constitute program expenditures, rather than administrative costs. (§ 286.5)
Q7: Can Tribal Family Assistance Grant funds be used to fund Individual Development Accounts (IDAs)?
A7: Yes. Provided a Tribe elects to operate an IDA program, it may use Federal TANF funds or Welfare-to-Work (WtW) funds to fund IDAs for individuals who are eligible for TANF assistance. (§ 286.40)
Q8: May Tribal Family Assistance Grant funds be used for the same purposes as Low Income Home Energy Assistance Program (LIHEAP) funds?
A8: Section 404(a) of the Act permits TANF grant funds to be used for the provision of low-income households with assistance in meeting home heating and cooling costs. The purposes of LIHEAP are consistent with such use of TANF grant funds. (§ 286.35)
Q9: May a Tribe use Federal TANF funds for adoption assistance?
A9: A Tribe could use Federal TANF funds to provide benefits and services to needy parents of an adopted child. Benefits provided in this circumstance would trigger applicable TANF rules if they meet the definition of "assistance," e.g., address basic needs, and are provided under the TANF program.
Q10: May Tribal Family Assistance Grant funds be used for the construction or purchase of real property?
A10: Federal Tribal Family Assistance Grant funds may not be used for the construction or purchase of real property. Separate Tribal or State funds may be used for such purposes. Federal funds may never be used for construction or the purchase of real property unless there is express statutory authorization. (§ 286.45)
Q11: May Tribal Family Assistance Grant funds be used to augment funding for other Federal grant programs?
A11: No. Federal grant regulations preclude using Federal TANF funds to augment or supplement other Federal grant programs. TANF funds may, however, be expended in any manner that is reasonably calculated to accomplish the purposes of the TANF program. Provided that expenditures of Federal TANF funds comply with the above restriction, such funds may be used for benefits and services that are also authorized under other Federal grant programs. (§ 286.45)
Q12: May Tribal TANF programs carry forward Tribal Family Assistance Grant funds from one fiscal year to another?
A12: Yes. A Tribe may reserve or “carry over” unspent Tribal Family Assistance Grant funds without fiscal year limitation. Prior to the American Recovery and Reinvestment Act of 2009 (P.L. 111-5), carry-over funds could only be used to provide assistance (the ongoing basic needs payment, and supportive services such as transportation and child care to families not employed). Since P.L. 111-5 Div. B, § 2103 amended section 404(e) of the Social Security Act, Tribes can use carry over funds to provide, without fiscal year limitation, any benefit or service that may be provided under the Tribe’s TANF Program – i.e., not just assistance. See the Final Rule entitled “Temporary Assistance for Needy Families (TANF) Carry-Over Funds” that amended 45 CFR 286.60 (Federal Register, Volume 75, Number 65, Pages 17313 – 17315, Tuesday, April 6, 2010).
Q13: Besides the statute and the regulations, what other limitations are there on the use of Tribal Family Assistance Grant funds?
A13: 45 CFR Part 92 and OMB Circulars A-87 and A-133 govern the use of TANF grant funds. (§ 286.45)
Q14: When is it allowable for TANF jurisdictions to use TANF funds for food service expenses?
A14: 2 CFR Part 225 (OMB Circular A-87) establishes principles and standards for determining costs for Federal awards carried out through grants, cost reimbursement contracts, and other agreements with State and local governments and federally recognized Indian tribal governments (governmental units). Appendix B identifies select items of costs. The analysis applies to States, Territories, and Tribes.
For the purpose of this response, food service expenses include food and other related costs (e.g., gratuity, catering staff, delivery charges, renting tables, etc.).
2 CFR Part 225 requires that costs be necessary and reasonable for proper and efficient performance and administration of Federal awards. In general, in accordance with 2 CFR Part 225, App. A, section C, a cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost. 2 CFR Part 225, App. A, section C outlines further criteria for consideration in determining if a cost is reasonable and necessary.
Reasonable and necessary costs pertaining to TANF-related meetings and conferences, including food service expenses, are allowable. 2 CFR Part 225, App. B, section 27 clarifies that the “the primary purpose of [the conference or meeting must be] the dissemination of technical information” (emphasis added). Further, note that all TANF expenditures, including food service expenditures, must be clearly linked to one or more of the four statutory purposes of TANF. Therefore, costs pertaining to meetings and conference, including food service expenses, are allowable if the primary purpose of the event is the dissemination of technical information related to TANF. ACF considers a topic related to TANF if imparting this information is reasonably calculated to further a purpose of TANF. Examples of topics related to TANF include housing, child welfare, and other issues impacting vulnerable families. The meeting or conference could be a meeting intended to provide technical information to program participants, staff, community partners, or others, so long as it is furthering a TANF purpose.
Examples of allowable uses of TANF funds for food service expenses during a meeting or conference include:
- catered meals during an all-day employment-related training for TANF clients,
- orientation for new TANF clients, and
- catered meals during an annual “TANF Outreach Meeting” for administrators and staff from other TANF programs and other local social service providers.
2 CFR Part 225, App. B, section 14 provides that “costs of entertainment, including amusement, diversion, and social activities and any costs directly associated with such costs (such as tickets to shows or sports events, meals, lodging, rentals, transportation, and gratuities) are unallowable.” Examples of unallowable uses of TANF funds for food service expenses related to entertainment include:
- catered parties (e.g., holiday parties for TANF staff and/or clients),
- lunch provided during a “Family Day” at the fair for TANF clients,
- catered lunches at “Grand Opening” events in the community,
- youth awards dinners, and
- Mother’s Day lunch for TANF clients at a local restaurant.
Please note that the costs of alcoholic beverages are unallowable in all circumstances.
A few TANF jurisdictions have inquired about the allowability of “holiday baskets” which contain turkeys, pumpkin pies, and other items traditionally included in “holiday” meals. “Holiday baskets” are allowable if clearly linked to TANF purpose one and thus only provided to families meeting income and family composition criteria; however, providing “holiday baskets” to the community in general does not meet a purpose of TANF and is thus unallowable.
A few Tribal representatives have also inquired about the use of TANF funds for food service expenses at cultural activities. Tribal TANF programs have the flexibility to establish their own allowable work activities, including, if desired, culturally relevant work activities. For example, many Tribes include traditional subsistence activities such as fishing, hunting, or beadwork as work activities. Food service expenses related to participation in a work activity is linked to TANF purpose one and two; therefore these expenditures are allowable provided that TANF funds are only used to pay for food service expenses for families participating in work activities (i.e., TANF families eligible for TANF assistance according to the financial criteria established by the Tribe). TANF funds cannot be used to provide food to the Tribal community in general at cultural events.
Q15: Are employee morale expenditures, including cash incentives to employees, an allowable use of TANF funds?
A15: First and foremost, the purpose of TANF is to help needy families, along with the other goals specified in Section 401(a) of the Social Security Act, and in looking at any potential expenditure, it is important for the State, Tribe or Territory to be satisfied that the expenditure is reasonably calculated to further the program goals.
However, 2 C.F.R. Part 225, Appendix B, Section 13 provides:
13. Employee morale, health, and welfare costs.
a. The costs of employee information publications, health or first-aid clinics and/or infirmaries, recreational activities, employee counseling services, and any other expenses incurred in accordance with the governmental unit's established practice or custom for the improvement of working conditions, employer-employee relations, employee morale, and employee performance are allowable.
b. Such costs will be equitably apportioned to all activities of the governmental unit. Income generated from any of these activities will be offset against expenses.
This means that TANF expenses incurred in the context of employee morale are allowable if they are consistent with the State, Tribe, or Territory’s established personnel practice and policies governing the administration of TANF and other government programs. For example, if the Tribe has or wants to implement an employee morale/cash incentive based on actual employee performance then TANF funds may be used to pay the incentives for TANF employees up to the percentage of effort they work on the TANF program. Please note that cash incentives that are not in place prior to the performance of the work, not based on actual and documented employee performance, and not available to all Tribal employees (e.g., only available to TANF employees) are not allowable.
Employee morale costs need to be evaluated against the Federal “administrative cost” definition at 45 CFR 263.0(b) for States, DC, and the Territories and 45 CFR 286.5 for the Tribes. It is also important to note that for an employee whose salary and benefits qualify as an “administrative cost”, any employee morale costs attributable to that employee are also subject to the TANF jurisdiction’s administrative cost limit. However, if an employee is providing program services, then the associated salary and benefits (including any employee morale costs) are excluded from the administrative cost limit.
Items prohibited by 2 C.F.R. Part 225 are still unallowable in the context of employee morale; for example, costs of alcoholic beverages and entertainment are unallowable. It is important to distinguish between allowable recreational activities and unallowable entertainment; therefore, at the jurisdiction’s request, we can review any morale-building activities that resemble entertainment on a case-by-case basis.
2 C.F.R. Part 225, Appendix A, Section C requires that all costs be “necessary and reasonable for proper and efficient performance and administration of Federal awards.” The regulatory definition of “reasonable” is:
A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost. The question of reasonableness is particularly important when governmental units or components are predominately federally-funded. In determining reasonableness of a given cost, consideration shall be given to:
a. Whether the cost is of a type generally recognized as ordinary and necessary for the operation of the governmental unit or the performance of the Federal award.
b. The restraints or requirements imposed by such factors as: sound business practices; arm's-length bargaining; Federal, State and other laws and regulations; and, terms and conditions of the Federal award.
c. Market prices for comparable goods or services.
d. Whether the individuals concerned acted with prudence in the circumstances considering their responsibilities to the governmental unit, its employees, the public at large, and the Federal Government.
e. Significant deviations from the established practices of the governmental unit which may unjustifiably increase the Federal award's cost.
In summary, expenses incurred in the context of improving employee morale, including cash incentives to employees, are allowable if they are consistent with all applicable rules and regulations, including the criteria outlined above.
Q1: May Tribal TANF programs just provide cash assistance to needy families?
A1: No. While Tribes and States have broad flexibility in designing appropriate TANF programs and services (including cash assistance), the statute requires that families move from welfare to self-sufficiency through work. Each Tribal TANF program must meet minimum work participation rates that reflect how well it succeeds in engaging adults in work activities. (§§ 286.80 - 286.105)
Q2: What "work activities" satisfy a Tribal TANF program's minimum work participation rate?
A2: Tribes may define for their own programs what activities count as "work activities" within broad limitations of the statute. (§ 286.100)
Q1: § 296.30 of the regulations refers to retrocession. What is retrocession?
Q1: Retrocession refers to the voluntary termination of a TANF program prior to the end of the three-year Tribal TANF grant period. The regulations specify the procedures that must be followed.
Q2: Does the statute provide for retrocession?
A2: No. Section 412 of the Act does not expressly provide for retrocession. By affording Tribes the opportunity to withdraw their agreement to operate the TANF program if they must, the regulations recognize that Tribes voluntarily implement a TANF program for needy families. In providing for retrocession in the regulations, we developed a time frame which we believe ensure that: (1) there is minimal disruption of services to families in need of assistance; (2) a Tribe makes an informed decision in determining whether or not to cease operating the Tribal TANF program; and (3) affected States are provided adequate notice.
Q3: If a Tribal TANF program retrocedes, is it still responsible for any penalties imposed against the program for failing to comply with TANF program requirements?
A3: Yes. A Tribe which retrocedes a Tribal TANF program is responsible for all penalties imposed against the program for actions occurring prior to the effective date of retrocession, as well as with other Federal statutes and regulations applicable to the TANF program and any penalties resulting from audits covering the period before the effective date of retrocession. In addition to penalties, a Tribal TANF program is also responsible for complying with the data collection and reporting requirements and all other program requirements for the period before the retrocession is effective. (§ 286.30)
Q1: What TANF penalties may be imposed on Tribal TANF grantees?
A1: Tribal TANF grantees are subject to four distinct penalties: (1) a penalty of the amount by which a Tribe's grant is used in violation of part IV-A of the Act, (2) a penalty of five percent of the TANF grant as a result of findings which show that the Tribe intended to violate a provision of the Act, (3) a penalty for failure to repay a Federal loan in the amount of the outstanding loan, plus the interest owed on the outstanding amount, and (4) a penalty for failure to satisfy the minimum work participation rates based on the severity of the failure. (§ 286.195)
Q2: Under what circumstances may penalties imposed on Tribal TANF grantees be excused or reduced?
A2: The statute provides that penalties against Tribal TANF grantees (except for failure to repay a Federal loan) may be excused or reduced if it is determined that the Tribe has reasonable cause for failing to comply with requirements that are subject to penalties. (§ 286.225)
Q3: Does the Tribal TANF grantee have an alternative to accepting a penalty and claiming reasonable cause for failure to comply with requirements?
A3: Yes. A Tribal TANF grantee may (1) submit a corrective compliance plan, and/or (2) file an appeal with the Departmental Appeals Board. (§§ 286.230 and 286.240)
Q1: During the course of case review, if a Tribe finds a case that is obviously ineligible (e.g., no child or pregnancy) but received TANF assistance for the report month, should the Tribe complete the review or drop this case?
A1: The Tribe may not just drop the case. It must complete the data collection and reporting for all families that received assistance.
Q1: May a Tribal TANF program provide assistance to child-only families where a child is living with a non-relative caregiver?
A1: ACF has previously stated that “if State law provides that legal guardians or other individuals stand in loco parentis, then a State could provide that a child living with such a legal guardian or other individual would constitute an eligible family both for the purpose of ‘assistance’ and MOE.”
While the definition of family member for Tribal TANF purposes is independent of the definition for the State TANF program, just as is the case for State TANF, this definition could include non-relative guardians to the extent permitted by applicable State law. Even if the State chooses a less expansive definition in its State plan, a Tribe could choose to look to State law when determining whether to provide assistance to a child living with a non-relative guardian.
Furthermore, a Tribe may also choose to go beyond State law. If Tribal law or custom provides for non-relatives to stand in loco parentis, while State law does not, a Tribe may nevertheless provide assistance to children living with such individuals. The Tribe must be able to articulate a process for establishing the law or custom relied upon, and use that law or custom to form the basis for the definition of “family member” in the Tribal Family Assistance Plan.
However, to the extent that this question involves Indian Tribes in Alaska, please note the “Special Rule for Indian Tribes in Alaska” in section 412 (i) of the Social Security Act. Alaska Tribes must operate a program with comparable requirements to the State unless they receive a waiver from the State.
Q2: If the child is in the custody of the foster care agency, may a non-relative stand in loco parentis?
A2: There is nothing in Federal TANF law that would prevent a TANF agency from applying State or Tribal law or Tribal custom to define "family member" as including non-relative guardians regardless of foster care agency custody. A State or Tribal TANF agency should refer to its jurisdiction’s applicable laws or custom regarding in loco parentis status.