Q & A: Conversion of Child-Only Cases

Conversion of Child-Only Cases

Q1: Some States are under the impression that after a family hits the five-year time limit, the State could declare the children a child-only case and use TANF funds to provide them with assistance. Is this permissible under the final rules?

A1: In the preamble to the final rules (62 FR 17740), we indicated that it would be inconsistent with statutory intent for States to provide federally funded assistance to children in child-only cases when their parents reach the 60-month limit on Federal assistance. In lieu of specific restrictions on how States define their families, we indicated that we would gather information through the reporting system that will enable us to monitor trends and assess whether States' policies might be affecting their achievement of TANF goals. We will report findings in our annual report to Congress. Also, if it appears that States are undermining the statutory provisions and avoiding TANF requirements by converting cases to child-only status, we will consider proposing regulatory or legislative remedies.

Q2: May a Tribal TANF program provide assistance to child-only families where a child is living with a non-relative caregiver?

A2: 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.

Q3: If the child is in the custody of the foster care agency, may a non-relative stand in loco parentis?

A3: 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.