December 31, 1997 By Blake Harris
Mark Greenberg, of the Center for Law and Social Policy, called a little-known section in the new law -- Section 417 -- a "hornet's nest of new issues," which, while directly related to HHS, may ultimately have consequences for the whole federal establishment.
Section 417 states: "No officer or employee of the federal government may regulate the conduct of states under this part or enforce any provision of the part, except to the extent expressly provided in this part."
The sweeping wording of Section 417 suggests, according to Greenberg, that it could even apply to federal courts, restricting their power to intervene unless specifically allowed. This could dramatically change the process by which federal law is interpreted by creating a power outside the reach of the federal judiciary.
The trend of limiting the role of federal regulatory direction, along with new approaches to re-inventing government called for in the Government Performance and Review Act, is changing the way that federal agencies think about what their responsibilities are in terms of negotiative rule-making, performance monitoring and goals setting. "What federal agencies are being called upon to do is be more of a facilitator, persuader, provider of technical assistance -- almost a clearinghouse role -- rather than simply adopt a compliance monitoring role, and that is a major change," said Demetra Nightingale, director of the Welfare and Training Research Program at the Urban Institute.
"I think some people look at it as a constraint against what the federal agencies can accomplish," she added. "But I think as much, it is an opportunity if the agencies can begin thinking in a more progressive way about what their potential leveraging roles can be.
"The agencies I deal with -- the Labor Dept. and HHS -- while they may not be fully aware of the shift, are definitely operating in a different way in terms of being able to provide useful information, integrating this toward continuous improvement, and allowing as much state and local flexibility as possible. So the shift is happening. But whether the federal agencies could articulate that it is happening, I think, is less likely."
Filling The Vacuum
Not all states, said Nightingale, have moved as quickly as they might in jumping into the new role that has been thrust upon them. "What we are hearing from the field on welfare reform, on some of the workforce issues, and now with the welfare-to-work $3 billion money, is that many states still want the same kind of direction as before. Some of the mentality persists of 'just tell us what the regulations are, tell us what we have to do, and we'll do it.'
"Certainly there are some states that are moving forward and have been moving forward, and are more progressive. But the majority of states, I think, are still in the traditional mode of waiting for the feds to tell them what to do. So there may be a little bit of frustration when the federal regulations are not as directive as state and local people have gotten used to.
"And then, similarly, there may be frustration among those who are more in the know and think that the regulations are still too restrictive. So I think we are still going through an adjustment process where some people are thinking the feds are being too directive when they should not be directive at all anymore, and there are others who are sitting back and saying, 'where's our direction?'"
One of the things happening at the national level, said Nightingale, although no one really articulates it, is a clear attempt to remove some of the barriers to coordination -- whether it is through more waivers, like through the Labor Dept. now, or through the food stamp program.
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