NEW-ACF-PI-2005-02 (Certain Requirements That Apply to Tribal TANF and NEW Programs and Funds Included in Public Law 102-477 Projects) (also released as TANF-ACF-PI-2005-08)

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Publication Date: November 2, 2005
Current as of:

TO:    INDIAN TRIBES, ALASKA NATIVE ORGANIZATIONS, AND TRIBAL CONSORTIA THAT INCLUDE THEIR TRIBAL TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TRIBAL TANF) AND/OR NATIVE EMPLOYMENT WORKS (NEW) PROGRAMS IN PROJECTS UNDER PUBLIC LAW 102-477

SUBJECT:    Certain requirements that apply to Tribal TANF and NEW programs and funds included in Public Law 102-477 projects

REFERENCES:   Title IV-A of the Social Security Act, as amended; 45 CFR Part 286 (the Tribal TANF regulations); 45 CFR Part 287 (the NEW program regulations); TANF-ACF-PI-01-02 (dated January 2, 2001); 45 CFR Part 92 (Uniform Administrative Requirements for Grants and Cooperative Agreements to State, Local, and Tribal Governments); OMB Circular A-87 (Cost Principles for State, Local and Indian Tribal Governments); Single Audit Act of 1984 (Public Law 98-502, as amended); OMB Circular A-133 (Audits of States, Local Governments, and Non-Profit Organizations); Public Law 102-477 (the Indian Employment, Training and Related Services Demonstration Act of 1992, as amended); Public Law 93-638 (the Indian Self-Determination and Education Assistance Act, as amended)

PURPOSE:   To provide guidance on certain statutory, regulatory, and other requirements that apply to Tribal TANF and NEW programs and funds that are included in demonstration projects under Public Law 102-477.

BACKGROUND:   Questions have been raised about whether standard Department of Health and Human Services (HHS) financial rules governing drawdown of funds and potential use of funds to meet matching requirements are replaced or superceded by provisions of Public Law 93-638 for Tribal TANF and NEW programs and funds that are included in projects under Public Law 102-477. This program instruction reconfirms that "638 rules" do not apply to Tribal TANF and NEW programs and funds included in 102-477 projects, and statutory and regulatory requirements applicable to the Tribal TANF and NEW programs continue to apply to these programs when they are included in 102-477 projects, unless HHS officially waives these requirements.

INSTRUCTION:   This program instruction confirms certain requirements that apply to Tribal Temporary Assistance for Needy Families (Tribal TANF) and Native Employment Works (NEW) programs and funds included in projects under Public Law 102-477, the Indian Employment, Training and Related Services Demonstration Act of 1992.

This program instruction addresses:

  • Statutory and regulatory requirements that apply to Tribal TANF and NEW programs and funds;
  • Drawdown of Tribal TANF and NEW funds; and
  • Potential use of Tribal TANF and NEW funds to meet matching requirements for other federal programs.

Section 14(a)(1) of Public Law 102-477 states, "Program funds shall be administered in such a manner as to allow for a determination that funds from specific programs (or an amount equal to the amount attracted from each program) are spent on allowable activities authorized under such program."

Grantees that include their Tribal TANF and/or NEW programs in projects under Public Law 102-477 must administer the funds from these programs (or an equal amount) consistent with the statutory requirements, regulations, policies, and procedures applicable to these programs, unless HHS/Administration for Children and Families (ACF) grants a waiver of a requirement (or waivers of requirements), consistent with section 7 of Public Law 102-477. Section 7 states,

Plan Review. Upon receipt of the plan from a tribal government, the Secretary of the Interior shall consult with the Secretary of each Federal agency providing funds to be used to implement the plan, and with the tribal government submitting the plan. The parties so consulting shall identify any waivers of statutory requirements or of Federal agency regulations, policies, or procedures necessary to enable the tribal government to implement its plan. Notwithstanding any other provision of law, the Secretary of the affected agency shall have the authority to waive any statutory requirement, regulation, policy, or procedure promulgated by that agency that has been so identified by such tribal government or agency, unless the Secretary of the affected agency determines that such a waiver is inconsistent with the purposes of this Act or those provisions of the statute from which the program involved derives its authority which are specifically applicable to Indian programs.

Statutory and regulatory requirements that apply to Tribal TANF and NEW funds that are included in 102-477 projects

Statutory provisions applicable to the Tribal TANF program include certain provisions in title IV-A of the Social Security Act, as amended, including section 412(a)(1), which authorizes this program. The Single Audit Act (Public Law 98-502) and the Single Audit Act Amendments of 1996 (Public Law 104-156) apply to the Tribal TANF program. Regulatory provisions applicable to the Tribal TANF program include 45 CFR Part 286 (the Tribal TANF regulations) and 45 CFR Part 92 (HHS's Uniform Administrative Requirements for Grants and Cooperative Agreements to State, Local, and Tribal Governments). OMB Circulars A-87 (Cost Principles for State, Local and Indian Tribal Governments) and A-133 (Audits of States, Local Governments, and Non-Profit Organizations) apply to the Tribal TANF program. In addition, certain other federal statutes and regulations apply, including applicable federal appropriations law and HHS regulations. Tribal TANF grant terms and conditions specify applicable requirements.

Statutory provisions applicable to the NEW program include certain provisions in title IV-A of the Social Security Act, as amended, including section 412(a)(2), which authorizes this program. The Single Audit Act and the Single Audit Act Amendments of 1996 apply to the NEW program. Regulatory provisions applicable to the NEW program include 45 CFR Part 287 (the NEW program regulations) and 45 CFR Part 92. OMB Circulars A-87 and A-133 apply to the NEW program. In addition, certain other federal statutes and regulations apply, including applicable federal appropriations law and HHS regulations. NEW grant terms and conditions specify applicable requirements.

These statutory requirements and regulations, and applicable policies and procedures, continue to apply to the Tribal TANF and NEW programs when these programs are included in projects under Public Law 102-477, unless HHS/ACF officially waives them consistent with section 7 of Public Law 102-477. To help assure accountability, HHS has not waived any of these requirements, except certain financial reporting requirements for Tribal TANF programs.

The self-determination provisions of title I of Public Law 93-638, the Indian Self-Determination and Education Assistance Act, and the self-governance provisions of title IV (and title V) of Public Law 93-638, do not apply to Tribal TANF and NEW funds. (See the decision in Navajo Nation v. Dept. of Health and Human Services, 325 F. 3d 1133 (9 th Cir. 2003), which concludes that TANF is not a federal program subject to contracting under title I.) Tribal TANF and NEW funds are not "638 funds," and they do not "become 638 funds" when they are included in 102-477 projects.

Requirements for drawdown of Tribal TANF and NEW funds that have been transferred to the Department of the Interior for award as part of a grantee's 102-477 project

Consistent with applicable cash management requirements, once Tribal TANF and NEW funds are awarded to grantees, the grantees must minimize the time elapsing between the drawdown of these funds and the disbursement/expenditure of these funds by the grantee or subgrantee. Grantees must draw down Tribal TANF and NEW funds only as needed for expenditure, as close as possible to the time the funds will be expended. Although grantees are allowed to draw down funds slightly in advance of actual expenditure, they must draw down funds only to meet actual, immediate needs for cash. For example, grantees may draw down funds to a bank account approximately one to three days before actual expenditure. However, grantees must not draw down Tribal TANF and NEW funds in their entirety upon award and/or deposit them in accounts for expenditure week(s) or month(s) in the future.

For the Tribal TANF and NEW programs, 45 CFR Part 92 requires grantees to minimize the time elapsing between the transfer of funds from the U.S. Treasury and disbursement by grantees and subgrantees, and to make drawdowns as close as possible to the time of making disbursements. 45 CFR 92.20(b)(7) states,

Cash management. Procedures for minimizing the time elapsing between the transfer of funds from the U.S Treasury and disbursement by grantees and subgrantees must be followed whenever advance payment procedures are used. Grantees must establish reasonable procedures to ensure the receipt of reports on subgrantees' cash balances and cash disbursements in sufficient time to enable them to prepare complete and accurate cash transactions reports to the awarding agency. When advances are made by letter-of-credit or electronic transfer of funds methods, the grantee must make drawdowns as close as possible to the time of making disbursements. Grantees must monitor cash drawdowns by their subgrantees to assure that they conform substantially to the same standards of timing and amount as apply to advances to the grantees.

HHS/ACF has not waived the drawdown requirements in 45 CFR Part 92 for grantees that include their Tribal TANF and/or NEW programs/funds in 102-477 projects.

The subject of TANF program instruction TANF-ACF-PI-01-02, dated January 2, 2001, is drawdown of federal TANF funds for states, tribes, and subgrantees. That PI says that Tribal TANF programs "are covered by 45 CFR Part 92." That PI repeats the requirements of 45 CFR 92.20(b)(7) and states, "These rules apply to all Tribes operating a Tribal TANF program under Section 412 of Title IV-A of the Social Security Act, including those administered through the Department of Interior, Bureau of Indian Affairs (BIA) 102-477 consolidated grant program."

Potential use of Tribal TANF and NEW funds as matching funds for other federal programs

Tribal TANF and NEW funds cannot be used as matching funds, to meet matching or cost sharing requirements for other federal programs, whether or not the Tribal TANF or NEW funds are included in projects under Public Law 102-477.

For the Tribal TANF and NEW programs, 45 CFR 92.24, OMB Circular A-87, and federal appropriations law prohibit the use of these federal grants to meet matching or cost sharing requirements for other federal grants.

45 CFR 92.24(b)(1) provides, " Costs borne by other Federal grant agreements. Except as provided by Federal statute, a cost sharing or matching requirement may not be met by costs borne by another Federal grant.."

OMB Circular A-87, Attachment A (General Principles for Determining Allowable Costs), provides,

C.  Basic Guidelines

1. Factors affecting allowability of costs. To be allowable under Federal awards, costs must meet the following general criteria:
.

h. Not be included as a cost or used to meet cost sharing or matching requirements of any other Federal award in either the current or a prior period, except as specifically provided by Federal law or regulation..

HHS/ACF has not waived these provisions which prohibit use of TANF and NEW funds to meet cost sharing or matching requirements of other federal awards.

Under title I ("Self-Determination Contracts") of Public Law 93-638, the Indian Self-Determination and Education Assistance Act, section 106(j) states, "Notwithstanding any other provision of law, a tribal organization may use funds provided under a self-determination contract to meet matching or cost participation requirements under other Federal and non-federal programs." This provision does not apply to Tribal TANF and NEW funds - whether or not these funds are included in 102-477 projects, and whether or not these 102-477 projects include Interior Department funds contracted under title I of Public Law 93-638.

INQUIRIES:    Inquiries should be directed to grantees' federal program contacts.

                    /s/                                                                                                        /s/

                    Curtis L. Coy                                                                                     Sidonie Squier
                    Deputy Assistant Secretary for Administration                                  Director
                    and Chief Financial Officer                                                                Office of Family Assistance 
                    Administration for Children and Families