45 C.F.R. Subpart D—Accountability and Penalties
Title 45 - Public Welfare
(a) Tribes will be subject to fiscal penalties and requirements as follows: (1) If we determine that a Tribe misused its Tribal Family Assistance Grant funds, including providing assistance beyond the Tribe's negotiated time limit under §286.115, we will reduce the TFAG for the following fiscal year by the amount so used; (2) If we determine that a Tribe intentionally misused its TFAG for an unallowable purpose, the TFAG for the following fiscal year will be reduced by an additional five percent; (3) If we determine that a Tribe failed to meet the minimum work participation rate(s) established for the Tribe, the TFAG for the following fiscal year will be reduced. The amount of the reduction will depend on whether the Tribe was under a penalty for this reason in the preceding year. If not, the penalty reduction will be a maximum of five percent. If a penalty was imposed on the Tribe in the preceding year, the penalty reduction will be increased by an additional 2 percent, up to a maximum of 21 percent. In determining the penalty amount, we will take into consideration the severity of the failure and whether the reasons for the failure were increases in the unemployment rate in the TFAG service area and changes in TFAG caseload size during the fiscal year in question; and (4) If a Tribe fails to repay a Federal loan provided under section 406 of the Act, we will reduce the TFAG for the following fiscal year by an amount equal to the outstanding loan amount plus interest. (b) In calculating the amount of the penalty, we will add together all applicable penalty percentages, and the total is applied to the amount of the TFAG that would have been payable if no penalties were assessed against the Tribe. As a final step, we will subtract other (non-percentage) penalty amounts. (c) When imposing the penalties in paragraph (a) of this section, we will not reduce an affected Tribe's grant by more than 25 percent. If the 25 percent limit prevents the recovery of the full penalty imposed on a Tribe during a fiscal year, we will apply the remaining amount of the penalty to the TFAG payable for the immediately succeeding fiscal year. (1) If we reduce the TFAG payable to a Tribe for a fiscal year because of penalties that have been imposed, the Tribe must expend additional Tribal funds to replace any such reduction. The Tribe must document compliance with this provision on its TANF expenditure report. (2) We will impose a penalty of not more than 2 percent of the amount of the TFAG on a Tribe that fails to expend additional Tribal funds to replace amounts deducted from the TFAG due to penalties. We will apply this penalty to the TFAG payable for the next succeeding fiscal year, and this penalty cannot be excused (see §286.235). (d) If a Tribe retrocedes the program, the Tribe will be liable for any penalties incurred for the period the program was in operation. (a) We will use the single audit or Federal review or audit to determine if a Tribe should be penalized for misusing Tribal Family Assistance Grant funds under §286.195(a)(1) or intentionally misusing Tribal Family Assistance Grant funds under §286.195(a)(2). (b) If a Tribe uses the TFAG in violation of the provisions of the Act, the provisions of 45 CFR part 92, OMB Circulars A–87 and A–133, or any Federal statutes and regulations applicable to the TANF program, we will consider the funds to have been misused. (c) The Tribe must show, to our satisfaction, that it used the funds for purposes that a reasonable person would consider to be within the purposes of the TANF program (as specified at §286.35) and the provisions listed in §286.45. (d) We will consider the TFAG to have been intentionally misused under the following conditions: (1) There is supporting documentation, such as Federal guidance or policy instructions, indicating that TANF funds could not be used for that purpose; or (2) After notification that we have determined such use to be improper, the Tribe continues to use the funds in the same or similarly improper manner. (e) If the single audit determines that a Tribe misused Federal funds in applying the negotiated time limit provisions under §286.115, the amount of the penalty for misuse will be limited to five percent of the TFAG amount. (1) This penalty shall be in addition to the reduction specified under §286.195(a)(1). (2) [Reserved] (a) We will use the Tribal TANF Data Reports required under §286.255 to determine if we will assess the penalty under §286.195(a)(3) for failure to meet the minimum participation rate(s) established for the Tribe. (b) Each Tribal TANF Grantee's quarterly reports (the TANF Data Report and the Tribal TANF Financial Report) must be complete and accurate and filed by the due date. The accuracy of the reports are subject to validation by us. (1) For a disaggregated data report, “a complete and accurate report” means that: (i) The reported data accurately reflect information available to the Tribal TANF grantee in case records, financial records, and automated data systems; (ii) The data are free from computational errors and are internally consistent (e.g., items that should add to totals do so); (iii) The Tribal TANF grantee reports data for all required elements (i.e., no data are missing); (iv) The Tribal TANF grantee provides data on all families; or (v) If the Tribal TANF grantee opts to use sampling, the Tribal TANF grantee reports data on all families selected in a sample that meets the specification and procedures in the TANF Sampling Manual (except for families listed in error); and (vi) Where estimates are necessary (e.g., some types of assistance may require cost estimates), the Tribal TANF grantee uses reasonable methods to develop these estimates. (2) For an aggregated data report, “a complete and accurate report” means that: (i) The reported data accurately reflect information available to the Tribal TANF grantee in case records, financial records, and automated data systems; (ii) The data are free from computational errors and are internally consistent (e.g., items that should add to totals do so); (iii) The Tribal TANF grantee reports data on all applicable elements; and (iv) Monthly totals are unduplicated counts for all families (e.g., the number of families and the number of out-of-wedlock births are unduplicated counts). (3) For the Tribal TANF Financial Report, a “complete and accurate report” means that: (i) The reported data accurately reflect information available to the Tribal TANF grantee in case records, financial records, and automated data systems; (ii) The data are free from computational errors and are internally consistent (e.g., items that should add to totals do so); (iii) The Tribal TANF grantee reports data on all applicable elements; and (iv) All expenditures have been made in accordance with 45 CFR part 92 and all relevant OMB circulars. (4) We will review the data filed in the quarterly reports to determine if they meet these standards. In addition, we will use audits and reviews to verify the accuracy of the data filed by the Tribal TANF grantee. (c) Tribal TANF grantees must maintain records to adequately support any report, in accordance with 45 CFR part 92 and all relevant OMB circulars. (d) If we find reports so significantly incomplete or inaccurate that we seriously question whether the Tribe has met its participation rate, we may apply the penalty under §286.195(a)(3). (a) If a Tribe fails to repay the amount of principal and interest due at any point under a loan agreement: (1) The entire outstanding loan balance, plus all accumulated interest, becomes due and payable immediately; and (2) We will reduce the TFAG payable for the immediately succeeding fiscal year quarter by the outstanding loan amount plus interest. (b) Neither the reasonable cause provisions at §286.225 nor the corrective compliance plan provisions at §286.230 apply when a Tribe fails to repay a Federal loan. (a) A Tribe may be subject to penalties, as described in §286.195(a)(1), §286.195(a)(2) and §286.195(a)(4), for conduct occurring on and after the first day of implementation of the Tribe's TANF program. (b) A Tribe may be subject to penalties, as described in §286.195(a)(3), for conduct occurring on and after the date that is six months after the Tribe begins operating the TANF program. (c) We will not apply the regulations retroactively. We will judge Tribal actions that occurred prior to the effective date of these rules and expenditures of funds received prior to the effective date only against a reasonable interpretation of the statutory provisions in title IV-A of the Act. (1) To the extent that a Tribe's failure to meet the requirements of the penalty provisions is attributable to the absence of Federal rules or guidance, Tribes may qualify for reasonable cause, as discussed in §286.225. (2) [Reserved] (a) If we determine that a Tribe is subject to a penalty, we will notify the Tribe in writing. This notice will: (1) Specify what penalty provision(s) are in issue; (2) Specify the amount of the penalty; (3) Specify the reason for our determination; (4) Explain how and when the Tribe may submit a reasonable cause justification under §286.225 and/or a corrective compliance plan under §286.230(d) for those penalties for which reasonable cause and/or corrective compliance plan apply; and (5) Invite the Tribe to present its arguments if it believes that the data or method we used were in error or were insufficient, or that the Tribe's actions, in the absence of Federal regulations, were based on a reasonable interpretation of the statute. (b) Within 60 days of receipt of our written notification, the Tribe may submit a written response to us that: (1) Demonstrates that our determination is incorrect because our data or the method we used in determining the penalty was in error or was insufficient, or that the Tribe acted prior to June 19, 2000, on a reasonable interpretation of the statute; (2) Demonstrates that the Tribe had reasonable cause for failing to meet the requirement(s); and/or (3) Provides a corrective compliance plan as discussed in §286.230. (c) If we find that the Tribe was correct and that a penalty was improperly determined, or find that a Tribe had reasonable cause for failing to meet a requirement, we will not impose the related penalty and so notify the Tribe in writing within two weeks of such a determination. (d) If we determine that the Tribe has not demonstrated that our original determination was incorrect or that it had reasonable cause, we will notify the Tribe of our decision in writing. (e) If we request additional information from a Tribe, it must provide the information within thirty days of the date of our request. (a) We will not impose a penalty against a Tribe if it is determined that the Tribe had reasonable cause for failure to meet the requirements listed at §286.195(a)(1), §286.195(a)(2), or §286.195(a)(3). The general factors a Tribe may use to claim reasonable cause include, but are not limited to, the following: (1) Natural disasters, extreme weather conditions, and other calamities (e.g., hurricanes, earthquakes, fire, and economic disasters) whose disruptive impact was so significant that the Tribe failed to meet a requirement. (2) Formally issued Federal guidance which provided incorrect information resulting in the Tribe's failure or prior to the effective date of these regulations, guidance that was issued after a Tribe implemented the requirements of the Act based on a different, but reasonable, interpretation of the Act. (3) Isolated, non-recurring problems of minimal impact that are not indicative of a systemic problem. (4) Significant increases in the unemployment rate in the TFAG service area and changes in the TFAG caseload size during the fiscal year being reported. (b) We will grant reasonable cause to a Tribe that: (1) Clearly demonstrates that its failure to submit complete, accurate, and timely data, as required at §286.245, for one or both of the first two quarters of FY 2000, is attributable, in significant part, to its need to divert critical system resources to Year 2000 compliance activities; and (2) Submits complete and accurate data for the first two quarters of FY 2000 by November 15, 2000. (c) In addition to the reasonable cause criteria specified above, a Tribe may also submit a request for a reasonable cause exemption from the requirement to meet its work participation requirements in the following situation: (1) We will consider that a Tribe has reasonable cause if it demonstrates that its failure to meet its work participation rate(s) is attributable to its provisions with regard to domestic violence as follows: (i) To demonstrate reasonable cause, a Tribe must provide evidence that it achieved the applicable work rates, except with respect to any individuals receiving good cause waivers of work requirements (i.e., when cases with good cause waivers are removed from the calculation in §286.85); and (ii) A Tribe must grant good cause waivers in domestic violence cases appropriately, in accordance with the policies in the Tribe's approved Tribal Family Assistance Plan. (2) [Reserved] (d) In determining reasonable cause, we will consider the efforts the Tribe made to meet the requirements, as well as the duration and severity of the circumstances that led to the Tribe's failure to achieve the requirement. (e) The burden of proof rests with the Tribe to fully explain the circumstances and events that constitute reasonable cause for its failure to meet a requirement. (1) The Tribe must provide us with sufficient relevant information and documentation to substantiate its claim of reasonable cause. (2) [Reserved] (a) To avoid the imposition of a penalty under §286.195(a)(1), §286.195(a)(2), or §286.195(a)(3), under the following circumstances a Tribe must enter into a corrective compliance plan to correct the violation: (1) If a Tribe does not claim reasonable cause for failing to meet a requirement; or (2) If we found that a Tribe did not have reasonable cause. (b) A Tribe that does not claim reasonable cause will have 60 days from receipt of the notice described in §286.220(a) to submit its corrective compliance plan to us. (c) A Tribe that does not demonstrate reasonable cause will have 60 days from receipt of the second notice described in §286.220(d) to submit its corrective compliance plan to us. (d) In its corrective compliance plan the Tribe must outline: (1) Why it failed to meet the requirements; (2) How it will correct the violation in a timely manner; and (3) What actions, outcomes and time line it will use to ensure future compliance. (e) During the 60-day period beginning with the date we receive the corrective compliance plan, we may, if necessary, consult with the Tribe on modifications to the plan. (f) A corrective compliance plan is deemed to be accepted if we take no action to accept or reject the plan during the 60-day period that begins when the plan is received. (g) Once a corrective compliance plan is accepted or deemed accepted, we may request reports from the Tribe or take other actions to confirm that the Tribe is carrying out the corrective actions specified in the plan. (1) We will not impose a penalty against a Tribe with respect to any violation covered by that plan if the Tribe corrects the violation within the time frame agreed to in the plan. (2) We must assess some or all of the penalty if the Tribe fails to correct the violation pursuant to its corrective compliance plan. (a) The penalties that cannot be excused are: (1) The penalty for failure to repay a Federal loan issued under section 406. (2) The penalty for failure to replace any reduction in the TFAG resulting from other penalties that have been imposed. (b) [Reserved] (a) We will formally notify the Tribe of a potential reduction to the Tribe's TFAG within five days after we determine that a Tribe is subject to a penalty and inform the Tribe of its right to appeal to the Departmental Appeals Board (the Board) established in the Department of Health and Human Services. Such notification will include the factual and legal basis for taking the penalty in sufficient detail for the Tribe to be able to respond in an appeal. (b) Within 60 days of the date it receives notice of the penalty, the Tribe may file an appeal of the action, in whole or in part, to the Board. (c) The Tribe must include all briefs and supporting documentation when it files its appeal. A copy of the appeal and any supplemental filings must be sent to the Office of General Counsel, Children, Families and Aging Division, Room 411–D, 200 Independence Avenue, SW, Washington, DC 20201. (d) ACF must file its reply brief and supporting documentation within 45 days after receipt of the Tribe's submission under paragraph (c) of this section. (e) The Tribe's appeal to the Board must follow the provisions of this section and those at §§16.2, 16.9, 16.10, and 16.13 through 16.22 of this title to the extent they are consistent with this section. (f) The Board will consider an appeal filed by a Tribe on the basis of the documentation and briefs submitted, along with any additional information the Board may require to support a final decision. Such information may include a hearing if the Board determines that it is necessary. In deciding whether to uphold an adverse action or any portion of such action, the Board will conduct a thorough review of the issues. (g) The filing date shall be the date materials are received by the Board in a form acceptable to it. (h) A Tribe may obtain judicial review of a final decision by the Board by filing an action within 90 days after the date of such decision with the district court of the United States in the judicial district where the Tribe or TFAG service area is located. (1) The district court will review the final decision of the Board on the record established in the administrative proceeding, in accordance with the standards of review prescribed by 5 U.S.C. 706(2). The court's review will be based on the documents and supporting data submitted to the Board. (2) [Reserved] (i) No reduction to the Tribe's TFAG will occur until a final disposition of the matter has been made.
Title 45: Public Welfare
PART 286—TRIBAL TANF PROVISIONS
Subpart D—Accountability and Penalties
§ 286.195 What penalties will apply to Tribes?
§ 286.200 How will we determine if Tribal Family Assistance Grant funds were misused or intentionally misused?
§ 286.205 How will we determine if a Tribe fails to meet the minimum work participation rate(s)?
§ 286.210 What is the penalty for a Tribe's failure to repay a Federal loan?
§ 286.215 When are the TANF penalty provisions applicable?
§ 286.220 What happens if a Tribe fails to meet TANF requirements?
§ 286.225 How may a Tribe establish reasonable cause for failing to meet a requirement that is subject to application of a penalty?
§ 286.230 What if a Tribe does not have reasonable cause for failing to meet a requirement?
§ 286.235 What penalties cannot be excused?
§ 286.240 How can a Tribe appeal our decision to take a penalty?
