Waiver warfare

Obama administration offers states waivers from education and welfare law, but Republicans raise alarms

of the domestic policy achievements of the past two decades, most would agree the two biggest are the welfare reform law of 1996 and the No Child Left Behind education law of 2001. The first ended guaranteed lifetime cash assistance to needy families and required the poor to work while receiving temporary aid. The education law injected billions of additional federal funds into state education but required states to adopt strict standards for evaluating the performance of their students.

Each program was initially greeted with accolades, but has since shown its defects. The accountability standards of the No Child law, it has turned out, are unrealistic. As for welfare reform, despite states’ success in moving recipients off the rolls and into jobs, many of the poor have struggled to stay employed and to move up the economic ladder.

With Congress paralyzed by partisan disagreements, the Obama administration is trying to remake both programs using executive authority to grant waivers from strict adherence to some provisions of the two laws. The ability of presidents to issues such waivers, to tweak the letter of a law to protect administrative prerogatives or to allow states more flexibility in pursuing a law’s goals, is well established. Still, Obama’s two waivers are prompting a strong backlash from Republicans, who say they undermine Congress’ authority.

The fight over the welfare reform changes became a flashpoint in the presidential race in August when Mitt Romney charged that Obama was all but repealing the strict work requirement of the 1996 welfare law that was passed during the Clinton administration. In a TV ad, Romney said Obama’s proposal would allow individuals to receive welfare without having to work or train for a job, a charge that has been widely debunked.  The Obama administration insists waivers would be granted from the welfare law only to states experimenting with alternative and innovative strategies to boost employment outcomes.

Massachusetts figures to be a major beneficiary of the two Obama waivers. Earlier this year, the state received a waiver of key provisions of the No Child law, allowing Massachusetts, rather  than the federal government, to determine which schools and school districts are failing and where federal funds should be directed. Now the state is seriously considering an offer from the Department of Health and Human Services in Washington to rewrite the welfare program’s work requirements to allow people on cash assistance to attend temporary education and training programs in lieu of work, at least for longer than they can now.

Mitchell Chester, the Massachusetts commissioner of education, says the education waiver is “a very good thing” for Massachusetts.  The education waiver is already allowing the state to better focus its attention and resources on schools that need the most help, rather than accepting the verdict of the federal standard, which says four in five Massachusetts schools are failing.

Stephanie Brown, the assistant commissioner for programs, policy, and external relations at the state Department of Transitional Assistance, says the offer of a welfare waiver is “very exciting” and that state officials are “eager to go through it and compare it to our own program and figure out how it intersects with what we do.”

Advocates say a welfare waiver could help the state expand its existing training program to

help welfare recipients not only find work but also get on permanent career tracks. The limited data that exist about training for welfare recipients indicate that the reform effort has mostly failed to help the poor find good long-term jobs, even as many have moved off the rolls.

And even as Romney and Republican congressional leaders are complaining, Obama points out that many GOP governors across the country have either accepted or inquired about the two waivers. That includes Romney, who asked the Bush administration about the possibility of changes to welfare rules in 2005 while serving as governor. That, Obama says, indicates that there’s consensus—at least among those with responsibility for carrying out the measures—that both laws have deep flaws.

The No Child law’s most serious flaw is the requirement that every child be brought up to grade level in English and math by 2014 and that schools make regular progress toward that goal. It means that 80 percent of Massachusetts schools are deemed to be failing, as are 90 percent of the state’s school districts.

To add insult to injury, states are allowed to define their own proficiency standard, so those states with less rigorous standards than Massachusetts are doing better, at least so far as the No Child rules are concerned.

“The tyranny of the formula is very problematic in Massachusetts,” says Paul Toner, president of the Massachusetts Teachers Association, the state’s largest teachers’ union. “This new system will do a much better job. Schools that need the most help will get the help they need and districts will have flexibility to approach the problem.”

Under its No Child waiver, Massachusetts is using a state-developed system for evaluating schools that grades them on how well their students are progressing, so schools with students who started with very low achievement scores can still succeed.

Under the waiver, each school and district in the state must cut in half the number of students who are not at grade level by 2018. And while No Child rules evaluated teachers based on the degrees and credentials they had earned, Massachusetts now is trying to evaluate them based on the impact they’re having on student achievement.

To Toner’s dismay, the system is still heavily dependent on student testing. Teachers’ unions argue that standardized tests are sometimes a poor evaluator of student success. But both he and Chester reject the charge, from some Republicans in Washington, that the waiver in any way lets school districts off the hook.

“I’m a believer that every school has room to improve and strengthen their programs and reach more students,” says Chester. “But that’s a far different statement than saying most schools are failing.”

Meanwhile, for all of welfare reform’s success, at least in the early years, in moving recipients into paying jobs, little research has been done on how well these workers do in the long term. The evidence that does exist is not encouraging. A 2010 study by researchers at Johns Hopkins, George Washington University, and the University of North Carolina, for example, found that the employment rates of people who stopped receiving cash assistance between 1999 and 2002 dropped from 70 percent in 2001 to 56 percent in 2005, and that was before the high unemployment rates that followed the 2007 recession.

The result is that many more poor families are living with no safety net at all. In the year before the federal law passed, Massachusetts provided cash assistance to 92 percent of needy families. But in 2009 and 2010, in the midst of the economic slowdown, only 45 percent of poor families were receiving aid in the state. And that is a far higher percentage than in many other states.

The welfare waiver aims to help welfare recipients not only find work, but to find stable jobs with greater income potential. In order to win a waiver of the welfare work rules—to allow welfare recipients to attend job training or college courses while receiving cash assistance —states have to commit to a long-term evaluation of their job training programs. States would get some relief from federal paperwork requirements but no additional federal money.

For welfare recipients, the waiver offers the possibility of earning a college-level degree while also receiving benefits. Under current rules, welfare recipients can only receive benefits for one year of college after which they must balance any courses they want to take with a full-time job in order to stay on the rolls.

Job training for welfare recipients has not been a high priority for most states, including Massachusetts. The Bay State only directs $8 million into training, less than 1 percent of its welfare budget. And only half of the state’s training funds go into a two-year-old pre-professional program. Another $3 million is spent helping welfare recipients get their high school diplomas, while the last $1 million goes toward helping the trainees pay for their transportation to training programs and for specialized courses for immigrants who don’t speak English.

The state’s professional training programs are short, only a matter of weeks typically, and aim to help welfare recipients land jobs in fields such as health care, as nurses’ aides and technicians, manufacturing, and the hotel and restaurant industry.

Efforts to evaluate how well the programs work have only just begun. The contractors who provide the training will be judged on how many trainees get jobs at the conclusion of their programs. Contractors with below average records will lose some or all of their funding. But the state, at least for now, isn’t planning any long term study of how the trainees do.

“It’s hard to know whether people going into these programs are more likely to succeed or not,” says Deborah Harris of the Massachusetts Law Reform Institute, a nonprofit legal services organization. “We don’t have the data we need, which is part of what could be achieved through the waiver program.”

Republicans usually champion efforts to wrest control away from Washington and give power back to the states, while Democrats favor a more muscular federal role. The waiver debate reverses those roles, with Obama seeking to return more power to the states and Republicans fighting against that effort.

State officials are now concerned that both waiver

programs might end if Romney beats Obama, or if Republicans gain control of the Senate. After the No Child waivers for Massachusetts and nine other states were announced in February, the top Republican on the Senate committee charged with reauthorizing the No Child

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Law, Sen. Michael Enzi of Wyoming, said the waivers were an “end run around Congress’s constitutional role to legislate.”

After Obama offered the welfare waivers in July, Romney blasted the idea and said the success of welfare reform “rested on the obligation of work” and that the “linkage of work and welfare is essential to prevent welfare from becoming a way of life.”