[Federal Register Volume 63, Number 149 (Tuesday, August 4, 1998)]
[Notices]
[Pages 41658-41661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20491]
[[Page 41657]]
_______________________________________________________________________
Part III
Department of Health and Human Services
Department of Justice
_______________________________________________________________________
8 CFR Part 104
Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA): Federal Public Benefit Interpretation; Notice Eligibility for
Public Benefits Verification; Proposed Rule
Federal Register / Vol. 63, No. 14 / Tuesday, August 4, 1998 /
Notices
[[Page 41658]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
Personal Responsibility and Work Opportunity Reconciliation Act
of 1996 (PRWORA); Interpretation of ``Federal Public Benefit''
AGENCY: Office of the Secretary, HHS.
ACTION: Notice with comment period.
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SUMMARY: This notice with comment period interprets the term ``Federal
public benefit'' as used in Title IV of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. 104-193,
and identifies the HHS programs that provide such benefits under this
interpretation. According to section 401 of PRWORA, aliens who are not
``qualified aliens'' are not eligible for any ``Federal public
benefit,'' unless the ``Federal public benefit'' falls within a
specified exception. A ``Federal public benefit'' includes ``any grant,
contract, loan, professional license, or commercial license'' provided
to an individual, and also ``any retirement, welfare, health,
disability, public or assisted housing, postsecondary education, food
assistance, unemployment benefit, or any other similar benefit for
which payments or assistance are provided to an individual, household,
or family eligibility unit.'' Under section 432, providers of a non-
exempt ``Federal public benefit'' must verify that a person applying
for the benefit is a qualified alien and is eligible to receive the
benefit.
The HHS programs that provide ``Federal public benefits'' and are
not otherwise excluded from the definition by the exceptions provided
in section 401(b) are:
Adoption Assistance
Administration on Developmental Disabilities (ADD)--State
Developmental Disabilities Councils (direct services only)
ADD--Special Projects (direct services only)
ADD--University Affiliated Programs (clinical disability assessment
services only)
Adult Programs/Payments to Territories
Agency for Health Care Policy and Research Dissertation Grants
Child Care and Development Fund
Clinical Training Grant for Faculty Development in Alcohol & Drug
Abuse
Foster Care
Health Profession Education and Training Assistance
Independent Living Program
Job Opportunities for Low Income Individuals (JOLI)
Low Income Home Energy Assistance Program (LIHEAP)
Medicare
Medicaid (except assistance for an emergency medical condition)
Mental Health Clinical Training Grants
Native Hawaiian Loan Program
Refugee Cash Assistance
Refugee Medical Assistance
Refugee Preventive Health Services Program
Refugee Social Services Formula Program
Refugee Social Services Discretionary Program
Refugee Targeted Assistance Formula Program
Refugee Targeted Assistance Discretionary Program
Refugee Unaccompanied Minors Program
Refugee Voluntary Agency Matching Grant Program
Repatriation Program
Residential Energy Assistance Challenge Option (REACH)
Social Services Block Grant (SSBG)
State Child Health Insurance Program (CHIP)
Temporary Assistance for Needy Families (TANF)
While all of these programs provide ``Federal public benefits''
this does not mean that all benefits or services provided under these
programs are ``Federal public benefits.'' As discussed in sections II
and III below, some benefits or services under these programs may not
be provided to an ``individual, household, or family eligibility unit''
and, therefore, do not constitute ``Federal public benefits'' as
defined by PRWORA.
DATES: Effective Date: This notice is effective on August 4, 1998.
COMMENT PERIOD: Written comments will be considered if we receive them
at the appropriate address, as provided in the ADDRESSES section below,
no later than 5 p.m. on October 5, 1998.
ADDRESSES: Mail comments (1 original and 3 copies) to the following
address: Division of Economic Support for Families, Office of the
Assistant Secretary for Planning and Evaluation, Department of Health
and Human Services, Room 404E, 200 Independence Ave., SW, Washington,
DC 20201, Attention: Colleen Curtin Rathgeb.
FOR FURTHER INFORMATION CONTACT: Colleen Curtin Rathgeb, (202) 401-
6639.
Copies of comments may be inspected at the above address. Inquiries
regarding how a particular program is affected by this notice should be
submitted to DHHS program staff responsible for managing the program at
either the appropriate Regional Office, or Headquarters in Washington,
D.C. The above contact should be used only to submit general comments
regarding the policy interpretation contained in this notice.
SUPPLEMENTARY INFORMATION:
I. Background
Section 401 of PRWORA provides that an alien who is not a qualified
alien, as defined in section 431 of PRWORA, is not eligible, with
certain specified exceptions, for any ``Federal public benefit.''
PRWORA, as amended by section 501 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L 104-208, and by
sections 5302 and 5571 of the Balanced Budget Act of 1997, Pub. L 105-
33, defines ``qualified alien'' as an alien who, at the time the alien
applies for, receives or attempts to receive a public benefit, is (1)
an alien lawfully admitted for permanent residence under the
Immigration and Nationality Act (the ``Act''); (2) an alien granted
asylum under Section 208 of the Act; (3) a refugee admitted to the
United States under Section 207 of the Act; (4) an alien paroled into
the United States under Section 212(d)(5) of the Act for a period of at
least one year; (5) an alien whose deportation is being withheld under
Section 243(h) of the Act as in effect prior to April 1, 1997, or whose
removal is being withheld under Section 241(b)(3) of the Act; (6) an
alien granted conditional entry under Section 203(a)(7) of the Act as
in effect prior to April 1, 1980; (7) an alien who is a Cuban Haitian
entrant as defined in Section 501(e) of the Refugee Education
Assistance Act of 1980; or (8) an alien who (or whose child or parent)
has been battered or subjected to extreme cruelty in the United States
and otherwise satisfies the requirements of 8 U.S.C. 1641(c).
Section 401(c) of PRWORA defines ``Federal public benefit'' as:
``(A) any grant, contract, loan, professional license or commercial
license provided by an agency of the United States or by appropriated
funds of the United States; and (B) any retirement, welfare, health,
disability, public or assisted housing, postsecondary education, food
assistance, unemployment benefit, or any other similar benefit for
which payments or assistance are provided to an individual, household,
or family eligibility unit by an agency of the United States or by
appropriated funds of the United States.'' Section 432 of PRWORA as
amended by section 504 of IIRIRA and section 5572 of the Balanced
Budget Act of 1997, further requires that certain providers of
``Federal public benefits'' verify the citizenship or immigration
status of an individual applying for a ``Federal public benefit'' for
purposes of establishing eligibility unless the benefit falls within a
specific exemption.
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Although section 401(b) of PRWORA identifies specific types of
benefits and services that are explicitly exempted from these new
requirements, PRWORA does not identify the specific benefits that are
``Federal public benefits,'' and the definition in section 401(c),
standing alone, does not provide sufficient guidance for benefit
providers to make that determination. In order to facilitate compliance
with the verification requirement in Section 432, the Department and
other Federal agencies should interpret the term. (See the Department
of Justice's ``Proposed Rule on Verification of Eligibility for Public
Benefits'' published elsewhere in this issue of the Federal Register
and ``Interim Guidance on Verification of Citizenship, Qualified Alien
Status and Eligibility Under Title IV of the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996'' 62 FR (November 17,
1997) pp. 61344-61416.)
II. Interpretation
``Federal public benefits'' that fall within Part A of the
definition (i.e., ``any grant, contract, loan, professional license, or
commercial license provided by an agency of the United States or by
appropriated funds of the United States'') generally include agreements
or arrangements between Federally funded programs and individuals, such
as research grants, student loans, or patent licenses. For example, the
Native Hawaiian Loan Program and the Repatriation Program are ``Federal
public benefits'' because, as loan programs, they meet the statutory
definition's criteria under Part A. Similarly, the term ``grant'' in
Part A refers to financial awards to individuals; it does not include
so-called ``block grants'' which are provided to states or localities,
since that would give the word an entirely different meaning than the
other terms in that Part. (This interpretation follows the traditional
canon of statutory construction, noscitur a sociis, that provides that
``words grouped in a list should be given related meaning.'' Dole v.
United Steelworkers of America, 494 U.S. 26, 36 (1989) (citing
Massachusetts v. Morash, 490 U.S. 107, 114-15 (1989) (quoting Schreiber
v. Burlington, 472 U.S. 1, 8 (1985).)
If a benefit does not fall within Part A of the definition, it must
be determined whether the benefit is a ``Federal public benefit'' under
Part B: ``any retirement, welfare, health, disability, public or
assisted housing, postsecondary education, food assistance,
unemployment benefit, or any other similar benefit for which payments
or assistance are provided to an individual, household, or family
eligibility unit by an agency of the United States or by appropriated
funds of the United States.''
To qualify as a ``Federal public benefit'' under Part B, a benefit
must satisfy two conditions. First, the benefit must be one of those
enumerated in section 401(c)(1)(B), that is, a ``retirement, welfare,
health, disability, public or assisted housing, postsecondary
education, food assistance, [or] unemployment benefit,'' or be a
``similar benefit.'' Second, a program's benefits or assistance must be
provided to an ``individual, household or family eligibility unit by an
agency of the United States or by appropriated funds of the United
States.''
Although the litany of categories in 401(c)(1)(B) is broad, it is
not comprehensive and clearly excludes certain categories from the
definition. For example, by explicitly identifying ``postsecondary
education'' the statute excludes non-postsecondary education programs,
such as Head Start and elementary and secondary education.
With respect to the second condition, the phrase ``individual,
household, or family eligibility unit'' is particularly ambiguous and
requires clarification. At the outset we interpret the phrase to narrow
the set of benefits that fall within Part B of the definition. This
point is best illustrated by comparing ``Federal public benefits'' in
PRWORA to the term ``Federal benefit'' in IIRIRA. Section 561 of IIRIRA
contained a provision that increased criminal penalties for forging
Federal documents in order to prevent the fraudulent receipt of
``Federal benefits.''
``Federal benefit'' is defined in IIRIRA as: ``(A) the issuance of
any grant, contract, loan, professional license, or commercial license
provided by an agency of the United States or by appropriated funds of
the United States; and (B) any retirement, welfare, Social Security,
health (including treatment of an emergency medical condition in
accordance with section 1903(v) of the Social Security Act (19 USC
1396b(v)), disability, veterans, public housing, education, food
stamps, or unemployment benefit, or any similar benefit for which
payments or assistance are provided by an agency of the United States
or by appropriated funds of the United States.'' IIRIRA's definition of
``Federal benefit'' is nearly the same as PRWORA's definition of
``Federal public benefit'' but with some significant differences.
First, the definition of ``Federal benefit'' contained a more
comprehensive list of benefits than that found in PRWORA's definition
of ``Federal public benefit.'' Second, the ``Federal benefit''
definition did not include the phrase ``individual, household, or
family eligibility unit.'' The term ``Federal public benefit,''
therefore, should be construed more narrowly than ``Federal benefit.''
In addition, the PRWORA Conference Report contains language confirming
the limiting effect of the phrase ``individual, household, or family
eligibility unit.'' In describing the application of the ``Federal
public benefit'' definition to one particular program--Title I, Part A
of the Elementary and Secondary Education Act (ESEA)--the conference
report stated that it was ``[t]he intent of the conferees'' that it
``not be affected by section 401 because the benefit is not provided to
an individual, household, or family eligibility unit.'' [H.R.
Conference Report No. 104-725 at 380 (1996) (emphasis added)]. Given
Congress' assessment that the benefits conferred under the ESEA are not
provided to ``individual, household, or family eligibility units,''
ESEA benefits are not ``federal public benefits.'' In sum, these points
confirm that Congress included the phrase ``individual, household, or
family eligibility unit'' in the definition in order to limit those
benefits that would not be available to non-qualified aliens.
We interpret the phrase ``individual, household, or family
eligibility unit'' to refer to benefits that are (1) provided to an
individual, household, or family, and (2) the individual, household, or
family must, as a condition of receipt, meet specified criteria (e.g.,
a specified income level or residency) in order to be conferred the
benefit, that is, they must be an ``eligibility unit.'' Such benefits
do not include benefits that are generally targeted to communities or
specified sectors of the population (e.g., people with particular
physical conditions, such as a disability or disease; gender; general
age groups, such as youth or elderly). For example, in order for a
program to be determined to provide benefits to ``eligibility units''
the authorizing statute must be interpreted to mandate ineligibility
for individuals, households, or families that do not meet certain
criteria, such as a specified income level or a specified age.
Many HHS programs are targeted to meet the needs of certain
populations such as children or pregnant women. But unless the
authorizing statutes require that the characteristics of these groups
form the basis for denial of services or benefits, these are not
benefits that go to ``eligibility units.'' The authorizing statutes of
these programs identify populations with specific characteristics to
clarify the types of services that should be
[[Page 41660]]
provided; they do not contemplate that providers use variations in
individual characteristics as a basis for determining eligibility, on a
case by case basis. Therefore a benefit targeted to certain populations
based on their characteristics, such as a benefit provided under the
Maternal and Child Health program, which provides health services to
women and children, is not a ``Federal public benefit.''
Some programs may provide a mixture of services, some of which are
provided to ``individual, household, or family eligibility units,'' and
others that are provided to communities or specified sectors of the
population. Programs that are primarily designed to target and provide
services to communities should not be burdened with new verification
procedures merely because they may include some services that flow more
directly to the individual, household or family. Therefore, we have
determined that a preponderance of a program's services must be
provided to individual, household, or family eligibility units in order
to be considered a ``Federal public benefit'' program under this
Notice.
III. HHS Programs
After a review of HHS programs, we have determined that the
following programs provide ``Federal public benefits,'' are not
otherwise excepted from the eligibility restrictions imposed by 401(a)
of PRWORA:
Adoption Assistance
Administration on Developmental Disabilities (ADD)--State
Developmental
Disabilities Councils (direct services only)
ADD--Special Projects (direct services only)
ADD--University Affiliated Programs (clinical disability assessment
services only)
Adult Programs/Payments to Territories
Agency for Health Care Policy and Research Dissertation Grants
Child Care and Development Fund
Clinical Training Grant for Faculty Development in Alcohol & Drug
Abuse
Foster Care
Health Profession Education and Training Assistance
Independent Living Program
Job Opportunities for Low Income Individuals (JOLI)
Low Income Home Energy Assistance Program (LIHEAP)
Medicare
Medicaid (except assistance for an emergency medical condition)
Mental Health Clinical Training Grants
Native Hawaiian Loan Program
Refugee Cash Assistance
Refugee Medical Assistance
Refugee Preventive Health Services Program
Refugee Social Services Formula Program
Refugee Social Services Discretionary Program
Refugee Targeted Assistance Formula Program
Refugee Targeted Assistance Discretionary Program
Refugee Unaccompanied Minors Program
Refugee Voluntary Agency Matching Grant Program
Repatriation Program
Residential Energy Assistance Challenge Option (REACH)
Social Services Block Grant (SSBG)
State Child Health Insurance Program (CHIP)
Temporary Assistance for Needy Families (TANF)
This does not mean, however, that all benefits or services provided
by these programs are ``Federal public benefits'' and require
verification. For example, some states may provide LIHEAP funds for
weatherization of multi-unit buildings. These funds would not be
considered a ``Federal public benefit'' since the eligibility of
individuals, households, or family units is not considered in
determining whether such funds will be used to improve the building.
Other programs that have been determined to provide ``Federal public
benefits'' under this Notice should consult their Federal program
administrators if it is believed that some of the program's services do
not constitute ``Federal public benefits.''
Although SSBG does not have statutorily mandated eligibility
criteria and therefore would not be included in our definition of
``Federal public benefits'' as explained in section III above, its
inclusion in section 402 as a ``federally designated program'' for
which States can determine the eligibility of qualified aliens suggests
that the SSBG program be classified as providing ``Federal public
benefits.'' Otherwise, we would leave open the possibility of a state
denying qualified aliens SSBG benefits or services while maintaining
access to such benefits or services to non-qualified aliens.
Services or benefits that are wholly funded by state or local
governments may be ``state or local public benefit(s)'' as defined in
section 411(c) of PRWORA. However, services or benefits that are wholly
or partially funded with HHS resources must comply with the
interpretation provided in this Notice.
The Department of Justice issued a Notice, dated November 17, 1997,
entitled ``Interim Guidance on Verification of Citizenship, Qualified
Alien Status and Eligibility Under Title IV of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996'', at 62
Fed Reg 61344 (the ``Interim Guidance'') to assist affected providers
in performing the verification procedures necessary to determine which
aliens are ``qualified aliens''. Providers are encouraged to review
that guidance in order to understand the several important exemptions
detailed there. These exemptions include those for: nonprofit
charitable organizations; the provision of emergency medical care and
certain other immunizations and treatments; the protection of certain
battered aliens, and the provision of in-kind, community based services
that are not contingent on income or resources and are necessary for
the protection of life and safety. Further information regarding these
exemptions is included below (section IV).
IV. Exemptions
Congress created specific exemptions to the verification
requirements. Therefore, in addition to the programs identified above,
some HHS programs have eligibility requirements in statute but are
otherwise specifically exempted under the provisions of section 401(b).
Section 401(b)(1)(C), exempts ``public health assistance...for
immunizations with respect to immunizable diseases and for testing and
treatment of symptoms of communicable diseases whether or not such
symptoms are caused by a communicable disease.'' This exemption,
designed to protect public health, excludes some HHS programs from the
definition of ``Federal public benefits.''
Services or assistance specified by the Attorney General that (i)
deliver in-kind services at the community level; (ii) do not condition
the provision of assistance, the amount of assistance provided, or the
cost of assistance provided on the individual recipient's income or
resources; and (iii) are necessary for the protection of life or safety
are also exempted. The Attorney General published general guidance on
August 30th, 1996 regarding which types of services and benefits meet
these criteria at 61 FR 45985. We have reviewed our programs and have
determined that a number of programs meet this criteria.
Section 432(d) of PRWORA (added by Section 508 of IIRIRA) exempts
all providers that are nonprofit charitable organizations from these
verification rules, even if they provide services or benefits funded by
the HHS programs identified in this notice. Refer to the Department of
Justice's Interim Guidance for more information on the applicability of
these exemptions.
V. Comment Period and Effective Date
Although HHS is soliciting public comment on this interpretation,
we believe that it is necessary to apply this interpretation to HHS
programs immediately, prior to receipt and consideration of any
comments.
[[Page 41661]]
PRWORA was enacted in August, 1996, and since that time HHS has
received numerous inquiries regarding the application of the term
``Federal public benefit.'' Additional delay will cause costly,
unnecessary and/or incorrect administrative actions by agencies or
entities that administer our programs. We also believe it is possible
that due to confusion about the application of the term ``Federal
public benefit'' people may have been denied critical benefits and
services for which, under this interpretation, they are eligible.
Without prompt issuance of this interpretation, state and local
governments and other public and private benefit providers will remain
confused over how to implement the requirements of Title IV of PRWORA.
Finally, some states have indicated their intention to define the term
``Federal public benefit'' on their own if Federal guidance is not
forthcoming soon. Independent interpretations by states will only
compound the confusion on this issue since there is no certainty that
each state will arrive at the same definition of the term. In sum,
although we are providing a 60-day period for public comment, this
interpretation is effective immediately.
VI. Economic Impact
The Department has analyzed the costs and benefits of this notice
to determine whether it has a substantial economic effect on the
economy as a whole, on states, or on small entities. The purpose of
this analysis was to identify less burdensome or more beneficial
alternatives and thereby to influence the requirements imposed by the
notice. This interpretation requires verification only for those
activities within programs that have eligibility units defined by
statutory eligibility criteria. Otherwise, a great deal of needless and
costly verification might have been undertaken.
PRWORA creates major economic effects, a large portion of which
results from changes in the law relating to immigrants' eligibility for
Federal benefits. However, these effects are essentially due to other
provisions of PRWORA, such as sections 402, 403 and 421, which alter
the eligibility rules for certain mandatory spending programs and are
largely in effect. This Notice provides clarifying guidance as to which
HHS programs are subject to the existing PRWORA requirements regarding
immigrants' eligibility for ``Federal public benefits,'' thereby
avoiding confusion among administering agencies, grantee agencies,
benefit providers, and the public on the question of which programs
must institute new eligibility and verification procedures. Therefore,
the interpretation does not have an economic impact, and it does not
affect the overall spending levels for any discretionary-funded HHS
program. Nor does this interpretation create burdens or mandates on
states or small entities.
As a result we have determined that this notice is not economically
``significant'' under Executive Order 12866's criterion of an economic
effect of more than $100 million. For the same reason, it is not
classified as a ``major rule'' for purposes of Congressional review
under 5 U.S.C. Sec. 801 et. seq., Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121).
Dated: July 27, 1998.
Donna E. Shalala,
Secretary.
[FR Doc. 98-20491 Filed 8-3-98; 8:45 am]
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