TANF-ACF-IM-2023-01 (To inform tribes administering Tribal TANF programs under a 477 plan of the Pandemic Emergency Assistance Fund reallotment)

Publication Date: June 12, 2023

Current as of: June 21, 2023

TO:

Tribes and tribal consortia that are approved to integrate Temporary Assistance for Needy Families (TANF) in a P.L. 102-477 plan.

SUBJECT:

The Pandemic Emergency Assistance Fund

REFERENCES:

The American Rescue Plan Act, Public Law 117-2; section 403(c) of the Social Security Act Public Law 102-477, as amended, 25 U.S.C. §§ 3401-3417

PURPOSE:

To inform tribes administering Tribal TANF programs under a 477 plan of the Pandemic Emergency Assistance Fund reallotment.

BACKGROUND:

On March 11, 2021, the President signed the American Rescue Plan Act of 2021, now known as Public Law 117-2, into law establishing the Pandemic Emergency Assistance Fund (PEAF) in section 403(c) of the Social Security Act. 42 U.S.C. § 603(c). PEAF provided $1 billion in funding to states, tribes, and five U.S. territories to assist families impacted by the Coronavirus Disease 2019 by providing non-recurrent, short term benefits. PEAF provided states and tribes until September 30, 2022, to spend an initial allotment of funds. 42 U.S.C. § 603(c)(6)(D)(i). Any unused funds were to be reallotted among the states or tribes that had used all their funds. 42 U.S.C. § 603(c)(4)(B).

In the Spring of 2021, the Administration for Children and Families (ACF) consulted with tribes. The Office of Family Assistance (OFA) subsequently issued a program instruction (TANF-ACF-PI-2021-04) informing tribes that PEAF would be transferred to the Bureau of Indian Affairs (“BIA”) for tribes who were approved to integrate TANF under Pub. L. 102-477, as amended, 25 U.S.C §§ 3401-3417 (“477”). The program instruction retained the PEAF statutory requirement for grantees to report PEAF expenditures as a prerequisite to requesting reallotted funds.

OFA issued a program instruction (TANF-ACF-PI-2021-05 (PDF)) in June 2021 that provided reporting guidance, followed by a program instruction (TANF-ACF-PI-2021-08) in October 2021 that provided a financial reporting form (ACF-196P) that could be used by all states, territories, and tribes for reporting PEAF expenditures. The program instruction issued in October 2021 provided instructions about when and how often the financial reports had to be submitted and provided 477 tribes the option of reporting expenditure data in their 477 narrative reports.

In accordance with the PEAF statutory requirements, ACF began the process of collecting unspent funds from recipients for reallotment based on expenditure reports submitted after the quarter ending September 30, 2022. ACF recovered unspent PEAF balances awarded to territories and directly funded tribes and added these balances to the pool for reallotment. However, in conjunction with the BIA, ACF determined that its previous instructions to 477 tribes regarding reporting expenditures and reallotments was incorrect. The 477 statute at 25 U.S.C. § 3413(a)(2) prohibits agencies from requiring tribes to maintain separate records or trace any service or activity to the program for which the funds were initially authorized and transferred. Therefore, ACF should never have requested financial reports from tribes who integrated PEAF into their 477 plan nor issued guidance stating that 477 tribes would participate in the reallotment process.

On May 31, 2023, ACF issued a final PEAF award to eligible territories and directly funded tribes using the unspent PEAF funds collected from territories and directly funded tribes.

POLICY:

Tribes who integrated PEAF into their 477 plans are not subject to the collection of unspent funds and reallotment provisions of PEAF at 42 U.S.C. §§ 603(c)(4)(B), (6)(D). These requirements are incompatible with the provision of the 477 statute at 25 U.S.C. § 3413(a)(2), which prohibits agencies from requiring tribes to trace their funding to any particular source. This prohibition on tracing funds applies “notwithstanding any other provision of law,” including conflicting PEAF statutory requirements. Because ACF is prohibited from requiring reports regarding the use of 477 tribes’ funds, ACF cannot use that information to determine which 477 tribes had unspent funds that would have otherwise been returned for the PEAF reallotment nor can it use that information to track which tribes spent all their funds and might otherwise be eligible to receive reallotted funds. These limitations have led ACF to implement the reallotment provisions only for directly funded tribes; 477 tribes do not have to return unspent funds and have not received reallotments.