Sebelius Claims Power to Gut Welfare Reform, Contrary to Law

Matt Cover | July 13, 2012 | 1:24pm EDT
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HHS Secretary Kathleen Sebelius speaks at the release of the HRC’s Healthcare Equality Index 2012. (Photo by Judy Rolfe/HRC)

( – In a bid to expand federal welfare rolls, Health and Human Services Secretary Kathleen Sebelius claimed on Thursday that HHS had the authority to waive the key requirement in President Clinton’s welfare reform law – the requirement that beneficiaries find and maintain a job.

A plain reading of the law, however, does not seem to support this claim.

On Thursday, HHS issued what it called guidance to state welfare agencies, claiming that it could absolve states of the requirement that some welfare recipients work in order to continue receiving benefits.

HHS claimed that its authority to approve innovative state experiments – known as demonstration projects – by issuing waivers of certain welfare requirements empowered it to waive the work requirements as well.

At issue are several sections of the Social Security Act, which governs federal welfare programs.

The waiver authority is found in Section 1115 of the law and grants Sebelius the power to issue waivers to certain welfare requirements so a state may conduct its welfare experiment. State experimentation was another key component of Clinton’s welfare reform.

“The Secretary may waive compliance with any of the requirements of section 2, 402, 454, 1002, 1402, 1602, or 1902, as the case may be, to the extent and for the period he finds necessary to enable such State or States to carry out such project,” the law reads.

In its memo, HHS claimed that a provision of Section 402 – one of the sections Sebelius has the power to waive – granted it power to get rid of work requirements.

Section 402 requires states to submit an administrative plan to the federal government, outlining how it will spend federal welfare funds and how its plan complies with the law – including the work requirement.

“While the TANF work participation requirements are contained in section 407, section 402(a)(1)(A)(iii) requires that the state plan “[e]nsure that parents and caretakers receiving assistance under the program engage in work activities in accordance with section 407.” Thus, HHS has authority to waive compliance with this 402 requirement and authorize a state to test approaches and methods other than those set forth in section 407, including definitions of work activities and engagement,” HHS said in its memo.

In other words, HHS claims that because it can relieve states of the requirement to submit a welfare spending plan to the government. It can also relieve them of the requirement that some welfare recipients must work.

However, federal law does not say this. In fact, it says exactly the opposite of what HHS claims it says.

While the law does empower Sebelius to relieve a state of the burden of providing the government a written plan, it does not empower her to waive the work requirements.

Specifically, the section of the law that governs those waivers clearly states that the waivers do not absolve states of the work requirements.

“[A] waiver granted under section 1115 or otherwise … shall not affect the applicability of section 407 to the State,” the law reads.

Section 407 is the requirement that some welfare recipients work in order to receive benefits.

The move is designed to expand welfare rolls, as HHS made clear in its memo – saying it would only issue waivers to states that planned to expand their welfare rolls.

“The Secretary will not approve a waiver for an initiative that appears substantially likely to reduce access to assistance or employment for needy families,” HHS said.

In practice, the waivers would allegedly relieve states of the requirement that certain percentages of welfare recipients work in order to remain on a state’s welfare rolls, allowing states to essentially cook their books by coming up with new ways to count people as employed who are not actually employed.

HHS lists several things states could do to earn a waiver, including counting those in vocational or other post-secondary education as working, counting people working in welfare-subsidized jobs but who are no longer receiving welfare benefits, and inventing different ways to count the disabled as working.

The proposal was met with opposition from two top congressional Republicans – Rep. Dave Camp (R-Mich.) and Sen. Orrin Hatch (R-Utah.). Camp chairs the House Ways and Means Committee, and Hatch is ranking member of the Senate Finance Committee – the committees that have jurisdiction over welfare.

Hatch and Camp sent a letter to Sebelius on Thursday demanding to know why she thinks she has the legal authority to waive welfare work requirements.

“We request that you provide a detailed explanation of your Department’s legal reasoning behind the guidance released today, as we believe it is deeply flawed and specifically contradicted by TANF (welfare) and related statutory language,” they wrote.

“Simply put, if Congress had intended to allow waivers of TANF work requirements, it would have said so in the statute,” Hatch and Camp said. “Instead, Congress did the exact opposite and explicitly prohibited waivers to section 407 work requirements among other sections of the Social Security Act.”

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