[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.

[[Page 41659]]

    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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