Hatch, Camp Demand Details from HHS on Welfare Waiver Scheme

In Letter to Secretary Sebelius, Lawmakers Request Legal Analysis on Agency Decision to Unilaterally Waive Welfare Work Requirements

WASHINGTON - Today, Ranking Member of the Senate Finance Committee Orrin Hatch (R-Utah) and House Ways and Means Committee Chairman Dave Camp (R-Mich.) called on the Department of Health and Human Services (HHS) to provide a legal analysis detailing how the agency determined it had the unilateral authority to waive welfare work requirements.

The letter to HHS Secretary Kathleen Sebelius comes on the heels of a recent Government Accountability Office (GAO) report that found the Informational Memorandum (IM) issued by the Department on July 12 was an actual rule that is subject to congressional review and approval or disapproval under the Congressional Review Act (CRA).  The GAO also concluded that until this year, no Administration, including the Obama Administration, has stated it has the authority to waive welfare work requirements.

“With the stroke of a pen, the Obama Administration unilaterally decided to circumvent Congress and undermine the work-first approach that served as the anchor to the 1996 bipartisan welfare reform law,” said Hatch. “We need to understand how this was determined, who made this decision and why. Presidents Clinton and Bush, and even the Obama Administration themselves, denied having this waiver authority until this past July. What was it, exactly, that changed?”

"The work requirement is explicitly defined in the bipartisan 1996 welfare law agreed to by Congress and President Clinton," said Camp.  "After 16 years of it successfully reducing dependence on a welfare check, the Obama Administration wants to unilaterally change the work requirement – something it does not have the authority to do.  They need to justify their actions to Congress and the American people who strongly believe welfare recipients should be required to work in order to receive benefits.”

In addition to a legal analysis, Hatch and Camp requested all copies of correspondence between theDepartment’s Office of General Counsel (OGC), Counselor for Human Services Policy, and the Deputy Assistant Secretary for Policy at the Administration for Children and Families involving the IM by October 25.

Below is the full text of the letter:

The Honorable Kathleen Sebelius
Secretary
U.S. Department of Health and Human Services
200 Independence Ave., S.W.
Washington, D.C. 20201

Dear Secretary Sebelius:

 On July 12, 2012 the Department of Health and Human Services (“Department”) issued an Information Memorandum (“IM”) regarding the Temporary Assistance for Needy Families (“TANF”) program.  This IM attempts to explain how states can seek “waivers” of work requirements for welfare recipients.  This IM was not in response to any recent change in TANF law, and in our view it critically undermines the work-focus of the bipartisan 1996 welfare reform.

Earlier this month, on September 4, 2012, the Government Accountability Office (“GAO”) determined that this IM constituted a rule for the purposes of the Congressional Review Act (“CRA”), thereby providing Congress with the opportunity to halt the implementation of the policy changes embodied in the IM.  According to their letter designating the IM as a rule for CRA purposes, the GAO requested the views of your Department’s General Counsel, as to whether the July 12 IM was a rule for the purposes of the CRA.  The GAO letter to us summarizes the HHS argument as follows: “the Information Memorandum was issued as a non-binding guidance document and…HHS contends guidance documents do not need to be submitted pursuant to the CRA.”  GAO disagreed with the conclusion reached by HHS and noted that HHS provided, “no support for this position.”

We have a number of questions regarding the development of this IM by the Department, as well as the Department’s apparent determination that the IM was not in fact a rule subject to the CRA.  To address these concerns, we respectfully request that you provide all records related to the following to our offices no later than October 25, 2012:

The Department’s response to the GAO regarding the determination of the IM as a rule applicable to the CRA;
 
All correspondence, including email, between and/or among the Department’s Office of General Counsel (“OGC”) and your Counselor for Human Services Policy and the Deputy Assistant Secretary for Policy at the Administration for Children and Families relating to the determination of the IM as a rule applicable to the CRA; and
 
All correspondence, including email, between and/or among the Department’s Office of General Counsel (“OGC”) and your Counselor for Human Services Policy and the Deputy Assistant Secretary for Policy at the Administration for Children and Families relating to the development of the IM.
Thank you for your prompt attention to this matter.

Sincerely,

HATCH
CAMP

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