Major Developments in NCLEJ Litigation Since 2002
This article appeared in the April 2002 Welfare News.
Welfare Law Center and Morris Institute for Justice Win Comprehensive Improvements in Arizona TANF Sanction Policies
Introduction:Under the terms of a settlement approved by the federal court on January 15, 2002, the Arizona Department of Economic Security (DES) has agreed to sweeping revisions in its TANF sanction policies that are aimed at avoiding unfair sanctions and promoting participation in TANF work programs.
The settlement in Olea v. Clayton was negotiated by the Morris Institute for Justice and the Welfare Law Center. Plaintiffs'attorneys are Marc Cohan and Gina Mannix of the Welfare Law Center. and Tom Berning of the Morris Institute. Eddie Sissons, Executive Director of the Morris Institute, also actively participated in the negotiations. Advocates and policy makers in other states who share similar concerns about assuring fair TANF sanction practices may find these policies to be useful models.
The policies focus on identifying participants' barriers to compliance, referring those with barriers to available services, protecting those with barriers or other good cause reasons from sanctions, and allowing participants to cure failures to participate. The DES has also agreed to significant improvements in notices for participants, staff training on the new policies, and monitoring. The monitoring is noteworthy because it will break out sanction data according to a number of factors, including the participant's race. Although the case did not involve a claim of race discrimination, early sanction data from Arizona raised concerns about whether African-Americans were more likely to leave TANF because of a sanction than for other reasons. Beyond Arizona, advocates and community groups have expressed concerns about the experience of racial minorities under TANF generally and the lack of adequate data on this issue. Using monitoring achieved through litigation to examine how important policies affect different groups may help identify unintended consequences so that appropriate solutions can be adopted.
Background:
As part of its welfare reform efforts, Arizona, like other states, concentrated on increasing low-income individuals' participation in work-related activities and enforced these stricter participation requirements with tough sanctions. Under Arizona law, the penalty for non-compliance increases with each instance of non-compliance without good cause. The first non-compliance results in a 25% grant reduction; the second in a 50% reduction; and the third results in termination of the family's entire TANF grant. State law leaves it to the welfare agency to set good cause standards.
As welfare reform unfolded, advocates became concerned that large numbers of families were sanctioned and that many moved quickly to the full family sanction. Agency policies and practices made it difficult for families to come into compliance and defined good cause narrowly. Arizona law does not provide for exemptions from work activities and only recognizes temporary deferrals in limited situations. Many advocates were concerned that sanctions were imposed on families with child care problems, transportation difficulties, or other barriers that prevented the parent's participation in work activities and posed obstacles to obtaining and maintaining employment. Sanctioned families experienced great hardship when their grants were reduced or terminated and also lost the chance to have their barriers addressed.
A DES study of welfare leavers during the first quarter of 1998 confirmed that sanctions were a key element of welfare administration. Administrative data indicated that sanctioning was a major reason for case closure, and that the adults in families who left welfare because of a sanction differed from other leavers on a variety of measures. For example, they were less likely to have completed high school, more likely to have received welfare longer, had less income from reported quarterly wages, were more likely to say they were worse off after leaving welfare, and more likely to be African-American or Hispanic. The results underscored concerns that families with significant barriers to employment were being sanctioned.
In 1999 the Arizona Justice Institute (AJI) filed a federal law suit challenging the Arizona TANF sanction system as arbitrary and a violation of due process. After the lawsuit was filed, the state agency began discussions with a working group of advocates and community organizations in an effort to resolve issues raised by the lawsuit, and substantial progress was made. In the spring of 2000, following the untimely death of Bill Morris, plaintiffs' attorney, the AJI asked the Welfare Law Center to join the case. The Welfare Law Center and the AJI, newly renamed the William E. Morris Institute for Justice, then began intensive direct negotiations with the defendant which resulted in the settlement. Representatives of the state agency brought to the negotiations a strong commitment to working toward a system that identifies the barriers families face, attempts to address them so that families can engage in activities that will lead to employment, and protects families from unfair sanctions.
The Settlement. The DES agreed to issue the new policies negotiated with the plaintiffs, engage in rulemaking to make appropriate regulatory changes, adopt improved notices related to the sanction process, conduct staff training, and engage in monitoring to determine whether the new policies are properly implemented and how the new policies affect families. Highlights of the settlement are discussed below.
1. Revision to Jobs policies: An extensive negotiation process involving line-by-line review of the Manual for the Jobs Program (Arizona's TANF work program) led to revisions that re-orient the Jobs Program from one focused on sanctions to one that seeks to identify and address individuals' barriers. Numerous changes were made and due process protections were strengthened. Some of the major new elements include the following.
Identification of barriers and referral to available services. Barriers are broadly defined as circumstances that, if not addressed, may prevent or delay a person's participation in Jobs. They include any one or combination of the following: temporary physical or mental conditions (including behavioral health issues) or physical or mental disability of the participant or family member for whom the participant is primary caregiver; lack of transportation or child care, having limited English proficiency; a threat of domestic violence toward the participant, her family member, or the caretaker's children, if the threat interferes with the participant's ability to participate; being illiterate, having insufficient education or not possessing vocational skills; or an ongoing family crisis that interferes with the ability to participate.
Barriers may be identified at any time – for example, during a person's initial contact with the Jobs Program, when non-compliance occurs, or at any other point – and may be identified by the case manager or by the participant. Generally when a barrier is identified, the case manager considers whether the barrier can be addressed by revising the participant's Employment Plan or providing services. When services are needed, the case manager refers the participant to available service providers. During the time when a participant is working with a service provider to address the identified barrier, she is not subject to sanction. Once the barrier has been addressed she is expected to participate in Jobs. If the participant decides not to work with the service provider, she must participate with the Jobs program. If services are not available, the case manager grants the individual good cause for not participating and continues to try to identify available service providers. While the settlement does not guarantee that particular services will be available, it recognizes that individuals cannot be sanctioned if necessary services are not available.
Attention to the needs of those with disabilities and those with limited English proficiency. The case did not directly raise issues related to how the agency serves those with disabilities or those with limited English proficiency. Nonetheless, the revised policies include various changes that emphasize the need to accommodate those with disabilities and those with a child with a disability and to identify the primary language of the participant and provide translation services. The revised notices alert participants to potential rights under the Americans with Disabilities Act. Spanish version notices are available.
Improvements in the sanction process. The entire sanction process has been revised to assure that the process is focused on giving the participant the chance to comply or to establish good cause and on identifying barriers and providing service referrals to address those barriers. Key changes are described below.
Good cause definition is expanded. Under the expanded definition, good cause for failure to comply includes the following: barriers for which services are not available; a participant's illness; the participant was required to care for an ill or disabled family member; the participant or her dependent child had an appointment that could not be rescheduled, such as a court-ordered appearance, mental or dental appointments, incarceration, employment interviews or similar appointments; the participant had a family emergency, such as loss of her residence, death of an immediate family member, or other emergencies; temporary lack of transportation with no reasonable alternative; inclement weather prevented participation; child care for a child under age 13 was unavailable, unaffordable or unsuitable; child care for a child over age 13 who requires adult supervision due to disability, because the child would harm herself or others if left alone, or because the child is under court-ordered probation requiring her to remain at home or under house arrest; the participant could not perform the work activity due to various circumstances including unsafe work conditions, physical demands of the job, lack of aptitude, skills, or knowledge for the position, among other circumstances; the participant is a victim of domestic violence and the current situation threatens her safety or causes an immediate threat in the participant's perception; the Jobs program has failed to provide the services identified in the Employment Plan; departmental error.
One of the key improvements in the definition is the recognition of good cause based on the need for adult supervision of a child over 13. When the case manager, using the Prudent Person concept, finds that there is a need for child care, she is to assist in finding adequate child care. If the participant agrees to participate, the case manager assigns activities around the child care needs. If the participant does not agree to participate, the case manager pends the case and considers in 30 days whether the child care need continues or whether services have become available. No sanction is imposed. If the participant reasonably believed there was a child care need but the case manager finds it did not exist or does not continue, she is not to sanction but to assign activities consistent with the Employment Plan. A sanction can be imposed only if, after a fair and reasonable assessment, the case manager finds that a child care issues does not exist and the participant did not reasonably believe it to exist.
The process for determining good cause has been improved. If the case manager thinks a person has failed to comply and determines that services were provided, she sends the participant a notice with such information as the date and place of non-compliance, the consequences of non-compliance, examples of good cause circumstances, how the participant can show good cause, and how to ask for help getting verification. The case manager must help the participant get verification if requested or if the participant is having difficulty getting it. Verification can include the participant's signed statement if other verification is not available. After the case manager makes a good cause determination, the case manager sends the participant a notice that good cause has or has not been found. If good cause is not established, the case manager obtains supervisory approval to impose a sanction after appropriate advance notice to the client.
Supervisory approval required for sanctions. The case manager must obtain supervisory approval before initiating a sanction and must document the case record with information to support the determination. The purpose of this review is to make sure that the caseworker has taken appropriate steps and that the participant has had a chance to show good cause and has received any requested help in getting verification. If the supervisor does not approve the sanction, she returns the case to the case manager for appropriate action.
The sanction process allows participants to come into compliance by indicating willingness to comply. When a supervisor has approved a sanction, the case manager initiates the sanction by sending advance notice to the participant. The improved adverse action notices provide specific information about the date and location of the alleged non-compliance without good cause, the nature of the non-compliance using standard phrases, and how the participant can stop the sanction. (Of course, notices also include hearing rights.)
Participants can, of course, challenge the proposed sanction in a fair hearing. A major feature of the new policies allows a participant to avoid a sanction by contacting the case manager during the 10-day advance notice period and indicating a willingness to comply. If the participant indicates willingness to comply, the sanction will not be imposed and the case manager will take appropriate action to engage the person in Jobs and will revise the Employment Plan, if necessary. If the participant contacts the case manager during this period and identifies barriers to participation, the sanction is not imposed. The case manager either revises the Employment Plan to deal with the barriers, refers the individual to available services, or if services are not available, grants good cause.
If the participant indicates willingness to comply after the sanction has been imposed, benefits are restored after the one-month sanction. If barriers are identified, the case manager refers the participants for services. If the client does not respond to the adverse action notice or contact the case manager after the sanction is imposed, the case manager will initiate the next level of sanction. The participant may still claim good cause, identify barriers and be referred for available services, avoid the next level sanction by indicating willingness to comply during the advance notice period, or request a fair hearing.
Before imposing a third level sanction – grant termination – the case manager must try to contact the participant to determine if good cause exists, by telephone, notice, checking with other subdivisions of the department to see if they have had contact with the participant, or any other reasonable method.
Improved Notices and Due Process Procedures. Improvements have been made in both the adverse action notices used to impose a sanction and in the general notices used in the Jobs program to schedule appointments, request good cause information, announce a good cause decision, make a service referral, and confirm the participant's intent to cooperate with Jobs. New notices were developed for some stages of the Jobs process. While plaintiffs did not achieve all they sought, the overall goal was to give participants clear and simple information about how to comply with program requirements, identify barriers, seek agency assistance, and exercise hearing rights. In terms of due process procedures, the policies and notices make clear that in a system where sanctions can increase in consecutive months, notice and hearing rights apply to each sanction.
2. Performance and Outcome Monitoring. DES agreed to a two-part monitoring program. Under the performance monitoring system DES will engage in quarterly random sampling of cases in which Jobs sanction notices were issued for the quarter preceding the selection date and audit the samples to determine whether the case was properly handled. During the first year 400 cases will be audited. DES will provide the results of the quarterly audits to plaintiffs' counsel. After the first year the parties will review the monitoring to determine whether changes are warranted.
The outcome monitoring system requires the DES to provide quarterly reports with a range of data on outcomes relating to good cause, referrals for services and subsequent outcomes for the participant (such as cooperated, sanctioned, deferred, left the program for employment), number of cases in which a sanction notice was issued, number of cases in which the participant did not respond to a sanction notice, the number of cases in which there was compliance.
A significant component of the monitoring requires that sanctions be broken down by local office, race of the participant, family size, and the sanction level (25%, 50%, 100% of the grant.). As described above, this data will lead to a better understanding of the consequences of sanctions policies and practices on different groups. Counsel for plaintiffs in other litigation involving TANF and related programs may also want to consider seeking similar data in any monitoring achieved through the litigation.
Gina Mannix
