June 20, 2018
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Lawmakers want to change welfare, but are the changes constitutional?

By Kevin Miller, BDN Staff

AUGUSTA, Maine — Fixing welfare is easy enough to talk about on the campaign trail.

But when it comes to actually revamping the social service programs created to help those in need, reform efforts often run up against federal restrictions, constitutional prohibitions and, in some cases, the fact that reality is different than political perception.

On Monday, a legislative committee will take up a number of bills dealing with welfare, MaineCare and other social services. Although a perennial issue, welfare reform efforts gained momentum with the election last November of Gov. Paul LePage and a new Republican majority in the Legislature.

LePage has pushed forward with his reform agenda by incorporating changes into his two-year, $6.1 billion budget now in the hands of the Legislature’s budget-writing committee. But lawmakers have introduced their own proposals, some more contentious than others.

A few of the measures on Monday’s agenda in the Health and Human Services Committee are repeats from previous years that critics hope will suffer a similar fate.

Among the most controversial are two bills that deal with residency requirements for anyone seeking food stamps, benefits through the Temporary Assistance for Needy Families program, or TANF, as well as benefits through MaineCare, the state’s Medicaid program.

LD 1294, sponsored by Rep. Stacey Guerin, R-Glenburn, would require those seeking assistance to show documentation proving they have been a resident of Maine for at least 90 days.

The title of LD 193, sponsored by Rep. Richard Cebra, R-Naples, suggests that the measure also would require a 90-day residency period. But the text of the bill states that the Department of Health and Human Services cannot offer TANF, food stamps or MaineCare to anyone who was not a legal resident of Maine and the U.S.

The intent of Cebra’s bill appears consistent with an executive order that LePage signed on his first day in office.

Opponents insist that a 90-day screen — or any “durational residency requirement” for TANF or MaineCare — is unconstitutional, however.

In an October 2010 letter to former DHHS Commissioner Brenda Harvey, former Attorney General Janet Mills said it is “well settled law” that states cannot impose minimum residency periods when it comes to TANF or Medicaid.

“Of course, a state may require proof that a person is a bona fide resident, and a state may require proof of residency for other programs that do not provide the basic necessities of life, e.g., university tuition,” Mills wrote. “For TANF, Medicaid/MaineCare and any other programs providing basic necessities, however, a state may not discriminate against recent arrivals.”

Chris Hastedt, a policy analyst with Maine Equal Justice Partners, a nonprofit that advocates on behalf of low-income Mainers, said the data do not support anecdotes that low-income people are flocking to Maine because of the state’s welfare programs.

DHHS statistics from 2006 to 2008 show that more than three times as many people receiving public assistance moved away from Maine as relocated to the state. Hastedt also pointed out that Maine’s maximum TANF benefit of $485 a month for a family of three is the lowest in New England and hasn’t changed in a decade.

“Frankly, if you look at the TANF levels, there is very little reason to believe that people would move here,” Hastedt said.

As part of his budget proposal, LePage is targeting longtime welfare recipients. But that group represents a relatively small percentage of total recipients, although they often attract attention from politicians and advocates for reform.

LePage has proposed a five-year lifetime limitation on TANF benefits. Maine is one of only six states that allow some TANF recipients to continue receiving benefits after five years.

According to DHHS statistics from before the recession, 71 percent of TANF recipients received benefits for less than one year and 85 percent received assistance for less than two years.

Barbara Van Burgel, who oversees public assistance at DHHS, said those averages have increased somewhat in recent years because of the recession. But federal law requires that less than 20 percent of TANF recipients stay on welfare for more than five years.

Tarren Bragdon, CEO of the Maine Heritage Policy Center, a conservative think tank heavily involved in the debate over welfare reform, said the five-year limitation and similar approaches are preferable to residency requirements.

A five-year limitation provides accountability both to DHHS and to people who benefit from the program by ensuring that people do not get trapped in the welfare system, Bragdon said.

“Focusing on residency requirements, I think, misses the true problem of Maine’s welfare system, which is it isn’t moving people from welfare to work,” Bragdon said.

Other social services-related bills pending before the Health and Human Services Committee on Monday would:

  1. Lengthen the ineligibility period for general assistance for people who either drop out of other assistance programs, commit fraud or break other program rules.
  2. Create statewide standards for municipally administered general assistance programs in order to address discrepancies between towns.
  3. Require random drug testing for MaineCare recipients, which some courts have ruled as unconstitutional.

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