Q & A: Drug Convictions

Drug Convictions

Q1: Among states which have chosen to opt out of the TANF ban for convicted drug offenders, have any States done this administratively - - via a governor's Executive Order or State regulation?

A1: We are unaware of any State that has opted out of the TANF ban for individuals convicted of felony drug offenses based solely on an administrative action such as an Executive Order from a governor or a State regulation. We remind you that the statute requires a legislative act and not an administrative act. The State legislature must enact a specific law that eliminates the prohibition. Section 21 USC 862a(d)(1)(A) provides: “A State may, by specific reference in a law enacted after August 22, 1996, exempt any or all individuals domiciled in the State from the application of subsection (a) of this section.” Subsection (a) describes the ban for individuals with felony drug offenses. In addition, section 21 USC 862a(d)(1)(B) declares: “A State may, by law enacted after August 22, 1996, limit the period for which subsection (a) of this section shall apply to any or all individuals domiciled in the State.”

Q2: Can an individual with a felony drug conviction (as described at 21 USC 862a) be provided with TANF nonassistance services?

A2: Yes.

The statutory provisions at 21 USC 862a provide that an individual convicted of a drug-related felony is ineligible for TANF assistance, unless the State opts out of the requirement or limits the period of prohibition through enactment of state legislation.

The term “assistance” is defined in 45 CFR 260.31 and includes “cash, payments, vouchers, and other forms of benefits designed to meet a family's ongoing basic needs (i.e., for food, clothing, shelter, utilities, household goods, personal care items, and general incidental expenses),” as well as, in certain cases, “supportive services such as transportation and child care provided to families who are not employed.” 

Since the prohibition only references “assistance,” a state may use TANF funds to provide non-assistance services (i.e allowable benefits or services that are outside the definition of assistance) to individuals convicted of drug felonies.  Examples of nonassistance benefits include services such as counseling, case management, job retention, job advancement, other employment-related services that do not provide basic income support, education and training, and work subsidies.  Also included are nonrecurrent, short-term benefits that:  are designed to deal with a specific crisis situation or episode of need, (2) are not intended to meet recurrent or ongoing needs, and (3) will not extend beyond four months.  (Posted: 3/22/2013)