[Federal Register Volume 66, Number 10 (Tuesday, January 16, 2001)]
[Notices]
[Pages 3613-3616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1158]
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DEPARTMENT OF JUSTICE
[A.G. Order No. 2353-2001]
Final Specification of Community Programs Necessary for
Protection of Life or Safety Under Welfare Reform Legislation
AGENCY: Department of Justice.
ACTION: Notice of final order.
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SUMMARY: This publication contains the final version of the Attorney
General's Order that is issued pursuant to sections 401 and 411 of the
Personal Responsibility and Work Opportunity Reconciliation Act of
1996. The Order specifies the types of community programs, services, or
assistance for which all aliens remain eligible. This publication also
responds to comments submitted regarding the Order.
DATES: This Notice is effective January 16, 2001.
FOR FURTHER INFORMATION CONTACT: Jessica Rosenbaum, Office of Policy
[[Page 3614]]
Development, Department of Justice, 950 Pennsylvania Avenue, NW.,
Washington, DC 20530, telephone (202) 514-3737 for general information.
For information regarding particular programs, contact the federal
agency that administers the program.
SUPPLEMENTARY INFORMATION: On August 22, 1996, the President signed the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(``Welfare Reform Act'' or ``the Act''). The Act, among other things,
vests in the Attorney General the authority to specify certain types of
community programs, services, or assistance for which all aliens remain
eligible. Pursuant to the Act, the Attorney General issued an Order (AG
Order No. 2049-96) (``the Order'') implementing that authority, and
making a ``provisional specification'' of such programs. The Order was
published on August 30, 1996, at 61 FR 45985.
Under Secs. 401 and 411 of the Act, aliens who are not ``qualified
aliens'' (as defined in Sec. 431 of the Act) are generally ineligible
for federal, state, and local public benefits. However, there are a
number of specified exceptions to those restrictions. Included in the
list of statutory exceptions is a provision authorizing the Attorney
General to identify programs, services, and assistance to which the
Act's limitations on alien eligibility do not apply. Pursuant to
Secs. 401(b)(1)(D) and 411(b)(4), the Attorney General may specify only
those types of programs, services, and assistance that meet all of the
following three criteria: (1) Deliver in-kind services at the community
level, including through public or private non-profit agencies; (2) 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 (3) are necessary for the
protection of life or safety. Any programs that are exempted under this
provision of the Act must meet all three of the foregoing requirements.
A program meeting only one or two of the criteria does not qualify for
exemption under this section of the Act.
Discussion of Comments
On September 15, 1997, the Department published a notice requesting
public comments on the Order (62 FR 48308). The comment period ended on
November 14, 1997. The Department received 48 comments from a variety
of sources including private, non-profit organizations, as well as
city, state, and federal agencies. The Department also received four
comments on the Order in response to the Attorney General's notice of
proposed rule-making: ``Verification of Eligibility for Public
Benefits,'' which was published on August 4, 1998 (63 FR 41662). In
developing this final Order, the Department of Justice also relied on
the input of other appropriate federal agencies and departments. All
comments have been considered in preparing this final Order. Any
significant changes are discussed below.
Many commenters seemed to believe that unless the Attorney General
exempted their program, they would be required to verify citizenship or
immigration status of all applicants. While that is certainly true in
some cases, a service provider should not assume that it must verify
citizenship or immigration status simply because its program or service
is not exempted by this Order. Service providers and other interested
parties should refer to benefit-granting agencies' interpretations of
the term ``federal public benefit'' as used in the Act in order to
determine whether their program is a federal public benefit and
therefore subject to the alienage restrictions of the Act. See, for
example, the Department of Health and Human Services notice of
interpretation of federal public benefit, 63 FR 41658 (Aug. 4, 1998)
(identifying which of their programs provide ``federal public
benefits'' subject to PRWORA's limitations on alien eligibility. HHS
advises that HHS programs not listed in the notice, such as Community
Health Centers, and HHS programs under the Ryan White CARE Act and the
Older Americans Act, do not meet the statutory definition of ``federal
public benefit'' and therefore do not have to verify the citizenship or
immigration status of applicants or recipients under PRWORA.).
In the past, the Department of Justice has deferred to other
benefit-granting agencies' interpretations of whether their programs
fall within certain definitions under the Welfare Reform Act. See,
e.g., Department of Justice, Verification of Eligibility for Public
Benefits, 63 FR 41662, 41664 (1998) (to be codified at 8 CFR pt. 104)
(proposed Aug. 4, 1998) (in establishing proposed regulatory definition
of ``federal public benefit,'' Immigration and Naturalization Service
intends to give ``all appropriate deference to benefit granting
agencies' application of the definition to the programs they
administer''); Department of Justice, 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 61344, 61361 (1997) (directing interested parties with
questions about the applicability of the Act to a benefit program to
consult with the federal agency overseeing the program). Consistent
with that practice, where commenters have raised questions about
whether a particular program is a federal public benefit under the Act,
the Department will grant all appropriate deference to the
determination, if one has been made, by the benefit granting agency as
to whether the program is a federal public benefit. Agencies and
service providers should also note that section 432(d) of the Welfare
Reform Act, which provides that nonprofit charitable organizations are
not required to verify the immigration status of applicants for
Federal, State, or local public benefits, may be applicable to their
programs. For more information about this exemption, see Department of
Justice, Verification of Eligibility for Public Benefits, 63 FR 41662,
41664 (1998) (to be codified at 8 CFR pt. 104) (proposed Aug. 4, 1998).
The majority of commenters emphasized the need for the Attorney
General to exempt their particular services because they believed them
to be necessary for the protection of life or safety. Many of those
commenters, however, did not take account of the legal requirement that
a program or service must satisfy all three prongs of the test set
forth by Congress. Any service that is exempted by the Order not only
must be necessary to protect life or safety and be delivered in-kind at
the community level, but also must not condition the provision, amount,
or cost of services on a client's income. With respect to the last
requirement, in other words, if a state or community service provider
charges fees that vary with the clients' income level, or determines
the clients' eligibility for services based upon their income or
ability to pay, the program at issue does not satisfy prong two of the
test and therefore is not covered by the Order regardless of how
necessary for life or safety the program, service, or assistance may
be.
Twenty comments were received from community services providers,
while the rest were from concerned citizens, members of Congress, and
city, state, and federal agencies. Many comments addressed a variety of
concerns, but more than twenty-eight concerned services provided to
people with HIV/AIDS. The majority of those comments asked the Attorney
General to exempt categorically all programs funded under the Ryan
White CARE Act, Housing Opportunities for People Living with AIDS
(HOPWA) and the McKinney
[[Page 3615]]
Homeless Assistance Act due to the special nature of the AIDS epidemic.
As already indicated, many of those programs may not be ``federal
public benefits'' as determined by relevant benefit-granting agencies,
and therefore an exemption under this Order is unnecessary. While the
Act authorizes exemptions for ``programs, services, or assistance''
that meet the three-pronged test, the Attorney General has no authority
to provide a blanket exemption for all programs authorized by a single
statute. That is because one or more of those programs may fail to meet
all of the requirements imposed by the statute. Agencies and service
providers must assess each program individually to determine whether it
meets the three-pronged test. While many, if not all, HIV/AIDS-related
services are likely to meet the first and third prongs, any state or
federally funded programs that are required as a condition of their
funding to employ sliding scales, or that otherwise limit the access to
services or the amount of such services according to a client's income
or ability to pay would not qualify for exemption under the Attorney
General's Order.
Thirteen comments were received concerning services for the
elderly. The majority of those comments also sought categorical
exemptions for services provided under a variety of statutes. Again,
the Act does not give the Attorney General the authority to exempt
groups of programs. For a program to be covered by the Order, it must
meet all three prongs of the statutory test.
Twenty-three comments addressed the importance of shelter and safe
housing. Those community programs cover a wide range of services from
emergency shelter to lead paint abatement. While many shelter and
housing programs are important to the protection of life or safety,
each program must meet the requirements of the three-pronged test in
order to be exempt under the Order. With respect to the specific issue
of lead paint abatement programs, we note that HUD has determined that
benefits under the Lead Hazard Control program are not federal public
benefits within the meaning of section 401(c) of the Welfare Reform
Act. In accordance with the Department's practice of deferring to the
determinations of benefit granting agencies, we therefore note that
there is no need to conduct any verification procedures with respect to
the immigration status of individuals whose dwellings receive services
under the Lead Hazard Control program. We therefore need not, at this
time, consider whether such benefits should be exempted under section
401(b).
Nine comments emphasized the importance of access to health care in
general. One commenter described health centers that have a sliding
scale of costs for services. Such programs do not qualify for coverage
under the Order as they fail to meet the prong of the Order related to
means testing. However, another commenter explained that their health
centers have a fundamental obligation to serve all patients regardless
of their ability to pay. As stated above, where community-level health
programs serve all eligible clients regardless of their ability to pay
and do not administer any type of sliding scale fee schedule or other
income or resource test, they are covered by the Attorney General's
Order.
Some commenters argued that the administrative burden that would
result from having to verify immigration status would outweigh any
proposed savings that could be derived from denying benefits to
unqualified aliens. It should be understood, however, that the decision
to deny federal, state, and local public benefits to aliens not
qualified to receive them was made by Congress. Title IV of the Act
does provide several exceptions to this blanket denial, including the
programs covered by this Order and an exception from verification for
all non-profit charitable providers. See the Department of Justice,
Proposed Rule, Verification of Eligibility for Public Benefits, 63 FR
41662, 41677 (Aug. 4, 1998). All programs and services covered by the
Order are exempt from any requirement that verification be conducted,
unless service providers are mandated to conduct such verification
pursuant to federal, state, or local law other than the Welfare Reform
Act.
A number of commenters sought clarification as to whether service
providers were obligated to verify a benefit seeker's immigration
status prior to providing services covered by the Order. The services
exempted by the Order are one of several categories of services that
were designated by Congress to remain available to all aliens
regardless of their status as qualified or not qualified for welfare
benefits. Accordingly, service providers are not obligated to verify
immigration status before providing those services unless they are
required to do so by a law other than the Welfare Reform Act.
The remaining comments addressed services to migrant farmers, the
disabled, victims of domestic violence, child care, and mental health
services. While all of those concerns are important to the protection
of life or safety, each program must meet the requirements of the
three-pronged test described above in order to be exempt under the
Order.
Several providers of emergency shelter have expressed the concern
that they may be barred from providing temporary housing to aliens not
qualified for welfare benefits. The final Order, like the original
Order, specifies that ``short term shelter or housing assistance for
the homeless, for victims of domestic violence, or for runaway, abused
or abandoned children'' are deemed to be necessary for the protection
of life or safety. Accordingly, programs and services of that type that
deliver in-kind services at the community level and do not condition
the provision of assistance, or the amount or cost thereof, on the
individual recipient's income or resources are exempt from any
requirement that verification be conducted, unless service providers
are mandated to conduct such verification pursuant to federal, state,
or local law other than the Welfare Reform Act.
Final Specification of Community Programs Necessary for the
Protection of Life or Safety Under the Welfare Reform Act
Preamble
(1) The types of programs, services, and assistance enumerated in
this Order are ones that Congress authorized the Attorney General to
except from limitations on the ban on the availability of federal,
state, or local public benefits imposed by Title IV of the Act.
(2) The Attorney General has fully exercised the power delegated to
her under Secs. 401(b)(1)(D) and 411(b)(4) of the Welfare Reform Act
(codified at 8 U.S.C. 1611(b)(1)(D) and 1621(b)(4)).
(3) Neither states nor other service providers may use the Act as a
basis for prohibiting access of aliens to any programs, services, or
assistance covered by this Order. Unless an alien fails to meet
eligibility requirements provided by applicable law other than the Act,
benefit providers may not restrict the access of any alien to the
services covered by this Order, including, but not limited to,
emergency shelters.
(4) Thus, unless required by some legal authority other than the
Act, benefit providers who satisfy the requirements of this Order are
not required to verify the citizenship, nationality, or immigration
status of applicants seeking benefits.
[[Page 3616]]
(5) If a benefit provider offers a number of services, only some of
which are exempt from verification as a result of this Order, the
benefit provider may conduct verification of the non-exempt programs or
services as specified in the applicable portions of the ``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 61,344 (1997) or may be
required to conduct verification as specified by any subsequent or
superseding regulations.
(6) To the extent that it can be accomplished without undue
administrative hardship, benefit providers should make every effort to
provide information to all prospective benefit seekers about which
benefits they qualify for and which benefits involve citizenship or
immigration verification requirements.
Specification
Therefore, by virtue of the authority vested in me as Attorney
General by law, including Title IV of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996, I hereby specify that:
1. I do not construe the Act to preclude aliens from receiving
police, fire, ambulance, transportation (including paratransit),
sanitation, and other regular, widely available services and, for that
reason, I am not making specifications of such programs, services, or
assistance. It is not the purpose of this Order, however, to define
more specifically the scope of the public benefits that Congress
intended to deny certain aliens either altogether or absent my
specification, and nothing herein should be so construed.
2. The government-funded programs, services, or assistance
specified in this Order are those that: deliver in-kind (non-cash)
services at the community level, including through public or private
non-profit agencies or organizations; do not condition the provision,
amount, or cost of the assistance on the individual recipient's income
or resources, as discussed in paragraph 3, below; and serve purposes of
the type described in paragraph 4, below, for the protection of life or
safety. Specified programs must satisfy all three prongs of this test.
3. The community-based programs, services, or assistance specified
in paragraphs 2 and 4 of this Order are limited to those that provide
in-kind (non-cash) benefits and are open to individuals needing or
desiring to participate without regard to income or resources.
Programs, services, or assistance delivered at the community level,
even if they serve purposes of the type described in paragraph 4 below,
are not within this specification if they condition on the individual
recipient's income or resources:
(a) the provision of assistance;
(b) the amount of assistance provided; or
(c) the cost of the assistance provided on the individual
recipient's income or resources.
4. Included within the specified programs, services, or assistance
determined to be necessary for the protection of life or safety are:
(a) Crisis counseling and intervention programs; services and
assistance relating to child protection, adult protective services,
violence and abuse prevention, victims of domestic violence or other
criminal activity; or treatment of mental illness or substance abuse;
(b) Short-term shelter or housing assistance for the homeless, for
victims of domestic violence, or for runaway, abused, or abandoned
children;
(c) Programs, services, or assistance to help individuals during
periods of heat, cold, or other adverse weather conditions;
(d) Soup kitchens, community food banks, senior nutrition programs
such as meals on wheels, and other such community nutritional services
for persons requiring special assistance;
(e) Medical and public health services (including treatment and
prevention of diseases and injuries) and mental health, disability, or
substance abuse assistance necessary to protect life or safety;
(f) Activities designed to protect the life or safety of workers,
children and youths, or community residents; and
(g) Any other programs, services, or assistance necessary for the
protection of life or safety.
Dated: January 5, 2001.
Janet Reno,
Attorney General.
[FR Doc. 01-1158 Filed 1-12-01; 8:45 am]
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