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Issue Alert - 11-10-01 Family Independence Program (FIP)

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Date:

Oct 10, 2011

Program Area:

Family Independence Program (FIP)

Issue Summary:

New DHS Time Limit Policy Stops FIP to Families and Conflicts with State Law

Persons Affected:

All FIP recipients except those in “child-only” cases and families where the only adult is exempt from employment and training requirements based on disability lasting more than 90 days

For More Information:

Center for Civil Justice 320 S. Washington, 2nd Floor Saginaw, MI 48607 (989) 755-3120, (800)724-7441 Fax: (989) 755-3558 E-mail: info@ccj-mi.org or Michigan Poverty Law Program 611 Church Street, Suite 4A Ann Arbor, MI 48104-3000 (734) 998-6100 (734) 998-9125 Fax


Background

60 MONTH LIMIT ON USE OF TANF

In general, federal law prohibits Michigan from using Temporary Assistance to Needy Families (TANF) funds to pay for a FIP grant to a family that includes an adult who has received TANF-funded cash assistance for 60 months or more. 42 U.S.C. 608(a)(7)(A).  However, the state can provide TANF for more than 60 months to up to 20% of its average monthly TANF caseload under hardship exemptions defined by the state.  42 U.S.C. 608(a)(7).   Child-only grants are not affected by the 60 month limit on use of TANF funds.

FEDERAL CLOCK-STOPPERS

Federal law excludes from the 60 month count any months that the individual received cash assistance as a minor child who was not a head of household or married to a head of household, as well as any months the individual was living in certain “Indian Country” or a Native Alaskan village with unemployment over 50%.  42 USC 608(a)(7)(B) and (D). 

 

MICHIGAN’s 60 MONTH CLOCK and EXEMPTIONS

The Department of Human Services (DHS) began using TANF funds for all or part of the FIP program in October 1996, thus starting the 60-month “clock” on the use of TANF funds for certain FIP cases.  From October 1996 until October 2011, DHS used the 20% hardship exception to continue using federal TANF funds for families who meet Michigan FIP eligibility requirements but contain an adult who has received 60 months of TANF-funded FIP. 

NO FEDERAL TIME LIMIT ON ELIGIBILITY AND USE OF STATE FUNDS

The federal TANF law explicitly states the restriction on the use of TANF funds does not restrict the state’s ability to use state funds to provide FIP to needy families that include an adult who has received TANF-funded assistance for more than 60 months.  42 U.S.C. 608(a)(7)(F).  Therefore, the federal limit on use of TANF funds is not a limit on FIP eligibility. Instead, it is a limit on the funding stream that may be used to pay for FIP assistance for certain families.

PAST STATE 48 MONTH TIME LIMIT ON FIP:  October 1, 2007 –September 30, 2011

All FIP cases are governed by the FIP requirements of the Social Welfare Act, regardless of the funding sources used to pay for the FIP.  See generally M.C.L.A. 400.57 et seq.  Since October 1, 2007, the Social Welfare Act has contained a 48-month lifetime limit on payment of FIP to an individualMonths before October 2007 do not count toward the 48 month time limit.  The 48 month time limit applies without regard to the funding source of the individual’s FIP. 

The Social Welfare Act contains certain exemptions or “clock stoppers” that toll the 48 month limit.  From October 1, 2007 through September 30, 2011, months in which FIP is paid to an individual do not count toward the 48 month limit if

          (a) the individual was exempted from participation in the employment and training activities known as “Work First” or “Jobs Education Training (JET)”; 

          (b) the individual was working and meeting the requirements of his or her family self-sufficiency plan;

          (c) the individual was living in a county with unemployment at least 25% higher than the statewide average; or

          (d) the individual had certain FIP eligibility requirements waived because of domestic violence.

M.C.L.A. 400.57p as enacted by 2007 Pub Act 9 and implemented by BAM 102, rescinded October 1, 2011.

CURRENT STATE 48 MONTH TIME LIMIT ON FIP:  Effective October 1, 2011

The Michigan legislature recently re-visited the question of time limits for FIP, in part because the time limit and extensions in M.C.L.A. 400.57r, and the “clockstoppers” or exemptions in M.C.L.A. 400.57p, were scheduled to sunset on September 30, 2011.   In 2011 Pub. Act 131, the legislature re-enacted the 48 month time limit with the October 1, 2007 start date for the 48 month “clock”.  It eliminated any extensions to the 48 month limit.  And it narrowed the “clockstoppers” or months that are exempt from being counted toward the 48 months.  

Beginning October 1, 2011, the only months that do not count toward the individual’s 48 month limit are months in which the individual is exempt from JET because of age, disability lasting 90 days or more, receipt of SSI or Social Security disability benefits, or domestic violence.  Amendment to M.C.L.A. 400.57p and 400.57f effective October 1, 2011;  2011 Pub. Act 131.  Beginning October 1, 2011, the Department   has the discretion to not count toward the 48 month limit the months in which the individual is exempt from participation in JET because he or she is needed in the home to care for a disabled spouse or child.  Amendment to M.C.L.A. 400.57p and 400.57f effective October 1, 2011.  2011 Pub. Act 131.

What's Happening?

DHS has issued policy in the Bridges Eligibility Manual (BEM 234) implementing time limits on FIP eligibility for families with an adult on the grant.  The policy originally posted on October 1, 2011 has been revised and replaced with a newer version posted on October 7, 2011.  Although the policy bulletin (PPB 2011-18) issued with the new policy on October 7 indicates that only a citation to federal law was changed, there were substantive changes as well.

This Issue Alert summarizes the policy posted on October 7, 2011, which is available online at http://www.mfia.state.mi.us/olmweb/ex/bem/234.pdf  or can be accessed via the link to DHS policies at mplp.org.

OVERVIEW:

DHS is implementing BOTH a 60-month limit on eligibility for TANF-funded assistance AND a 48 month time limit on eligibility for FIP, although the legislature has only authorized the 48 month time limit.  As DHS says in BEM 234, p.1, the 60 month limit is being imposed “[n]otwithstanding” the 48 month time limit and clockstoppers enacted by the legislature.

Many more families will be affected by the 60 month limit than will be affected by the 48 month limit, because the 60 month clock began running 11 years before the 48 month clock started, and because the clockstoppers and extensions for the 60-month limit are more limited.

Under BEM 234, Bridges will count up the months that each adult receiving FIP in the group has accumulated toward both their 60 month limit (“federal counter”) and their 48 month limit (“state counter”).  If the counter shows that either adult in the home has received FIP for more than 48 OR 60 months, the entire group will be ineligible for FIP. 

Some months in which FIP is NOT received will count toward the limits.  For the 48 month limit, months in which the family’s FIP is closed as a penalty for noncompliance with their family self-sufficiency plan (including noncompliance with work participation programs) will count toward the time limit.  MCLA 400.57g(4).  BEM 234 also says months in which an individual is sanctioned for “FAST noncompliance” will be counted, but it is not clear what that means. (FAST is the Family Automated Screening Tool that recipients must complete.)  In addition, BEM 234 says months in which a family receives cash assistance from another state will count toward the 48 month limit.

It appears DHS intends to count toward both the 48 and 60 month limits any months in which a recipient received or receives a $10 per month payment under MCLA 400.57s (called EFIP or Extended FIP in BEM).  CCJ is seeking clarification from DHS on this. 

If a FIP group includes a non-parent caretaker relative that has reached a time limit, it appears the child(ren) can continue receiving FIP as a child-only case.  However, it is not clear whether DHS will automatically continue FIP to the child(ren) as an “ineligible grantee” case or whether a new application must be filed.  

If a 2-parent FIP case is closed because one, but not both, of the parents has reached a time limit under BEM 234, and the family reports the time-limited parent has left the home, DHS will not approve FIP for the remaining family members until the FEE (Front End Eligibility) fraud investigator does a home visit to verify the time-limited parent is not in the home.

If a family’s FIP terminates based on the 60 month time limit policy (which only applies to TANF-funded FIP cases) and the family re-applies as a group that is eligible for state-funded FIP, BEM 234 indicates the family will not be eligible for state-funded FIP, even if they have not reached their 48 month limit. 

However, it appears that if a parent who has reached the time limit begins to receive SSI and thus is no longer eligible for FIP, the children can re-apply for FIP as a child(ren)-only case.

THE 60 MONTH LIMIT:

The clock for the 60 month limit began to run on October 1, 1996.  Any months the adult received TANF-funded cash assistance, including months of receipt of TANF-funded cash benefits in other states, count toward the limit.

The only months that do NOT count toward the 60 months are:

1.   MONTHS THE FAMILY’S FIP IS STATE FUNDED, which include months in which the only child in the household was age 19 and completing high school (no longer eligible effective October 1, 2011), or where the FIP group includes

(a)         2 parents

(b)         A parent or caretaker exempt from work participation due to disability lasting more than 90 days

(c)         Parent(s) whose children are all in foster care who are receiving FIP in anticipation of the child(ren)’s return to their care

(d)        A caregiver who is not related to the child who was placed with the caregiver by children services

2.   MONTHS IN WHICH THE INDIVIDUAL WAS A MINOR CHILD WHO WAS NOT A HEAD OF HOUSEHOLD

THE 48 MONTH LIMIT:

The clock for the 48 month time limit began to run on October 1, 2007.  Months before that date do not count.  The limit applies regardless of the source of funding for the FIP.  BEM 234 states that the limit applies to cash assistance received in other states, although the state statute says it applies to payment of “family independence program assistance”.  MCLA 400.57r.

The only months that do not count toward a family’s 48-month time limit are months in which the individual is deferred from the work participation program (formerly called JET or Work First) based on one of the following:

1.   Domestic violence,

2.   Age 65 or older,

3.   Disability lasting 90 days or more,

4.   Caring for a child or spouse with disabilities.

Although the original version of BEM 234 applied different clockstoppers to months between 10/1/2007 and 9/30/11, than to months beginning October 1, 2011, the current version of BEM 234 appears to apply the same exemptions before and after October 1, 2011. 

What Should Advocates Do?

1.    Educate clients and community organizations about the new time limit policy

2.    Be aware that individuals’ deferrals from work participation programs (including  JET or Work First) may not always be coded correctly in Bridges and that Bridges may not always calculate countable months correctly.  In cases where there appear to be an error,  clients should request a hearing and seek legal assistance.

3.    Provide information to CCJ about families that are being harmed by time limits, especially those that included a child with serious disabilities or families where the parent was working and complying with work participation program requirements.  Please call CCJ at the number at the top of this form, to find out how to communicate information to CCJ.

Help clients request and present information at administrative hearings when appropriate.

What Should Clients Do?

1.       Seek legal advice if you are told you have – or are about to -- reached a time limit on FIP.

2.       Carefully consider whether you want to keep your cash assistance case open if your FIP grant is small, particularly if you have “used up” many of the months that count toward your 48 or 60 month limit unless you are among the few groups who are exempt from time limits.  Seek legal advice if necessary.

Read your notices carefully.  If your FIP is ending, you have the right to request a hearing.  If DHS receives your hearing request within the deadline given in your notice, you will continue to receive FIP at your current level (but if you lose, will owe DHS any assistance you were not entitled to).   Seek legal advice if you request a hearing.

Finding Help

Most legal aid and legal services offices handle these types of cases, and they do not charge a fee. You can locate various sources of legal and related services, including the free legal aid office that serves your county, at MichiganLegalAid.org. You can also look in the yellow pages under "attorneys" or call the toll-free lawyer referral number, (800) 968-0738.