[Federal Register Volume 90, Number 132 (Monday, July 14, 2025)]
[Notices]
[Pages 31232-31239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-13118]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
0991-ZA57
Personal Responsibility and Work Opportunity Reconciliation Act
of 1996 (PRWORA); Interpretation of ``Federal Public Benefit''
AGENCY: Office of the Secretary, HHS.
ACTION: Notice; 30-day comment period.
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SUMMARY: This notice sets forth the interpretation that the U.S.
Department of Health and Human Services (HHS) uses for the term
``Federal public benefit'' as used in Title IV of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA), Public Law 104-193, 8 U.S.C. 1611. In doing so, this notice
revises the interpretation of the term set forth in a prior notice, 63
FR 41658 (Aug. 4, 1998) (``the 1998 HHS PRWORA Notice'' or ``1998
Notice''). This notice also describes and preliminarily identifies the
HHS programs that provide ``Federal public benefits'' within the scope
of PRWORA, including HHS programs that were not listed in the 1998 HHS
PRWORA Notice.
DATES: To be assured consideration, comments must be received no later
[[Page 31233]]
than 11:59 p.m. Eastern Time (ET) on August 13, 2025. HHS will not
reply individually to responders but will consider all comments
submitted by the deadline.
ADDRESSES: Docket: You may examine the notice docket at regulations.gov
under Docket ID. AHRQ-2025-0002. The docket contains this notice, the
Regulatory Impact Analysis, and all comments received to date. To
submit a response, click the ``Comment'' button inside Docket: AHRQ-
2025-0002 and follow all instructions.
FOR FURTHER INFORMATION CONTACT: Sean R. Keveney, Acting General
Counsel, Office of the General Counsel, HHS. 200 Independence Avenue
SW, Washington, DC 20201. 202-690-7741.
SUPPLEMENTARY INFORMATION:
I. Background
According to Section 401 of PRWORA, 8 U.S.C. 1611(a), aliens who
are not ``qualified aliens'' are not eligible for any ``Federal public
benefit'' as defined in 8 U.S.C. 1611(c). The prohibition set forth in
Sec. 1611(a) is subject to certain narrow exceptions explicitly set
forth in Sec. 1611(b).
The statutory text, Sec. 1611(c), 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.'' 8 U.S.C. 1611(c)(1).
This definition, too, is subject to certain narrow exceptions. See id.
(c)(2) (setting forth certain narrow exceptions to the definition of
``Federal public benefit'').
In addition, under Section 432 of PRWORA, as amended, to the extent
required by law, providers of a nonexempt ``Federal public benefit''
must verify that a person applying for the benefit is a qualified alien
and is eligible to receive the benefit. 8 U.S.C. 1642.
II. Interpretation
The statutory language is clear: if an HHS program falls into
either Sec. 1611(c)(1)(A) or (c)(1)(B), such benefits are not
available to aliens, unless (i) that alien is a qualified alien, or
(ii) some other exception applies to the HHS program, either under
Sec. 1611(b) or via the definitional limits on ``Federal public
benefit'' set forth in subparagraph (c)(2). Thus, the task is simple:
construe the plain language of Sec. 1611(c)(1)(A) and (c)(1)(B). Those
provisions state that ``Federal public benefit'' means:
(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.
If HHS ``provide[s]'' the (i) ``grant, contract, loan, professional
license, or commercial license,'' or if the ``grant, contract, loan,
professional license, or commercial license'' is ``provided by''
``appropriated funds of the United States,'' then it is a ``Federal
public benefit.'' Similarly, if HHS ``provide[s]'' the ``retirement,
welfare, health, disability, public or assisted housing, postsecondary
education, food assistance, unemployment benefit, or any other similar
benefit,'' or such ``benefit'' is ``provided by'' ``appropriated funds
of the United States,'' then such benefit is a ``Federal public
benefit,'' as long as the benefit is ``provided to'' one of three types
of recipients: (i) ``an individual,'' (ii) a ``household,'' or (iii) a
``family eligibility unit.''
The 1998 HHS PRWORA Notice artificially and impermissibly
constrains these statutory definitions, and the scope of PRWORA's
effect, in at least four main ways. First, it reads a limitation into
Sec. 1611(c)(1)(A) that ``grant'' refers to financial awards to
individuals and thus does not include block grants to States and
localities. That limitation does not appear in the statutory text. As
explained further below, the limitation rests on the 1998 Notice's
incorrect assertion that such limitation is required by the canon of
noscitur a sociis. See 63 FR at 41659.
Second, the 1998 Notice convolutedly and incorrectly interprets
Sec. 1611(c)(1)(B)'s reference to ``eligibility unit'' to mean that
subparagraph (c)(1)(B) does not actually reach benefits provided to
individuals, households, or families. Rather, it erroneously reasons
that ``the individual, household, or family must, as a condition of
receipt, meet specified criteria'' beyond the fact that a given benefit
is ``targeted to communities or specified sectors of the population.''
63 FR at 41659. As explained further below, this interpretation rests
on an overreading of the phrase ``eligibility unit'' and arbitrary
line-drawing about what is and is not an adequate ``eligibility''
criterion. Relatedly, to deal with the consequences of this arbitrary
line-drawing, the 1998 Notice created another test--unmoored from the
statutory language--that asked whether ``a preponderance of a program's
services'' was ``provided to communities or specified sectors of the
population'' versus ``individual, household, or family eligibility
units.'' Id. This test underscores that the 1998 Notice misinterpreted
the statute.
Third, the 1998 Notice advances an erroneously narrow
interpretation of the elements of the list in Sec. 1611(c)(1)(B)
without due regard for the catch-all phrase ``other similar benefit.''
For example, it declares that Head Start program would not be a
``Federal public benefit'' because one element of the list is
``postsecondary education.'' 63 FR at 41659. As explained further
below, this aspect of the 1998 Notice rests on a misapplication of
canons of statutory interpretation.
Fourth, the 1998 Notice incorrectly asserts that the
``exemption[s]'' in Sec. 1611(b)(1) ``excludes some HHS programs from
the definition of `Federal public benefits.''' As detailed below, this
aspect of the 1998 Notice is erroneous in certain respects.
1. ``Any Grant''
Section 1611(c)(1)(A) reaches ``any grant, contract, loan,
professional license, or commercial license'' provided by HHS. HHS
administers a multitude of grant programs, including those in which the
grants go to institutions (such as research grants) and those in which
the grants go to States (such as Title X services grants). Sometimes
the activity supported by the grant is carried out by the
``recipient''; sometimes the recipient uses an award to provide health
professional training support for individuals; and sometimes the
recipient acts as a ``pass-through entity'' ``that provides a subaward
to a subrecipient to carry out part of a Federal program,'' 45 CFR 75.2
(definitions for HHS's uniform grants regulation), under which the
obligations and requirements on the recipient flow down to the
subrecipient, Id. Sec. 75.372.
PRWORA says ``any grant'' (emphasis added). ``Read naturally, the
word `any' has an expansive meaning, that is, one or some
indiscriminately of whatever kind.'' Ali v. Fed. Bureau of Prisons, 552
U.S. 214, 219 (2008) (cleaned up). The statutory text does not
distinguish between grants ``to individuals'' and
[[Page 31234]]
grants ``provided to states or localities.'' Contra 63 FR at 41659. And
so, HHS must apply the plain meaning of the statutory text. E.g., Pub.
Serv. Elec. & Gas Co. v. F.E.R.C., 989 F.3d 10, 19 (D.C. Cir. 2021)
(``[A] regulation can never trump the plain meaning of a statute.'')
(quotes omitted).
The 1998 Notice relied on the canon of noscitur a sociis--``words
grouped in a list should be given related meaning,'' 63 FR at 41659
(quotes omitted)--in order to exclude ``so-called `block grants' . . .
provided to states or localities'' from the sweep of subparagraph
(c)(1)(A). But clearly the ``related meaning'' that ties together the
elements of the list are that they are forms of a benefit that agencies
(here, HHS) provide to the public. Obviously, the elements of the list
will not match in every respect. A ``license'' will differ from a
``loan'' in some respects, and a ``grant'' will differ from all the
other elements of the list in certain respects, too. In short, the 1998
Notice takes the canon of noscitur a sociis too far; it should be used
``to avoid ascribing to one word a meaning so broad that it is
inconsistent with its accompanying words.'' See Gustafson v. Alloyd
Co., Inc., 513 U.S. 561, 575 (1995) (emphasis added). No inconsistency
arises from relying on the plain meaning of the term ``any grant,''
including grants to individuals as well as grants to non-individuals.
Even on its own terms, the 1998 Notice's reasoning fails: HHS does
enter into ``contract[s]'' with non-individuals, including States.
Indeed, the reasoning of the 1998 Notice is incoherent when it
comes to ``grant[s]'' in the context of HHS-administered benefit
programs. Contrary to the 1998 Notice, ``grants'' are not ``generally''
``agreements between Federally funded programs and individuals.'' 63 FR
at 41659. The one example cited in the notice, ``research grants,''
does not fit the bill: those funds may eventually be given to a lab
staffed with a group of individuals, but in most cases the grant
recipient or subrecipient is an institution. It would be an error not
to consider a grant to be a Federal public benefit because the initial
recipient is a governmental or private entity. Indeed, that is rarely
true for grants in the first place.
The conclusion that ``any grant'' means ``any grant'' is reinforced
by the structure of the statute. While subparagraph (c)(1)(B) provides
a definition of ``Federal public benefit'' that is tied to the nature
of the recipient (``individual, household, or family eligibility
unit''), subparagraph (c)(1)(A) does not include similar language.
Especially because these are neighboring provisions, the omission has
to be assumed to be intentional. Russello v. United States, 464 U.S.
16, 23 (1983) (``[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.''). Thus, the 1998 Notice
reads a limitation into subparagraph (c)(1)(A) that Congress
intentionally left out.
2. ``Eligibility Unit''
Section 1611(c)(1)(B) clearly prohibits aliens (who are not
qualified aliens) from accessing a wide array of HHS-provided benefits
``for which payments or assistance are provided to an individual,
household, or family eligibility unit[.]'' The question is the meaning
and function of ``eligibility unit'' in this provision.
To start, ``eligibility unit'' does not modify all items of the
list. Rather, the term ``family eligibility unit'' is used in parallel
to ``household'' elsewhere in the statute. See 8 U.S.C. 1631 (f)(1),
(2) (discussing instances in which an abuser ``resid[es] in the same
household as the alien'' and then stating that benefits are not
available ``for an alien during any period in which the individual
responsible for such battery or cruelty resides in the same household
or family eligibility unit as the individual''); see 8 U.S.C. 1641(c)
(similar). This leads to a straightforward reading of the statute:
benefits are subject to PRWORA if they go to an individual, a
household, or a ``family eligibility unit.''
Even just looking to the phrase ``eligibility unit'' itself, in the
benefits context, ``family eligibility unit'' just means the ``unit''
by which ``eligibility'' is assessed. Cf. Mitchell v. Lipscomb, 851
F.2d 734 (4th Cir. 1988) (discussing ``filing unit'' in context of
Medicaid eligibility determination). Subparagraph (c)(1)(B) does not
otherwise dictate what criteria must enter into the ``eligibility''
assessment in order for the ``payments or assistance'' to be within the
definition of ``Federal public benefit.'' Under a plain-meaning
approach, ``eligibility'' simply means ``the quality or state of being
eligible: fitness or suitability to be chosen, selected, or allowed to
do something.'' \1\ Depending on the program, eligibility can turn on
the income level or age of the relevant ``unit.'' See 63 FR at 41659.
But it can also turn on the fact that the ``unit'' has a ``particular
physical condition[ ]'' or is a certain ``gender.'' Contra id.
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\1\ Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/eligibility. (Accessed 15 Apr.
2025). This is also consistent with HHS regulations: e.g. CFR
431.804 ``Eligibility means meeting the State's categorical and
financial criteria for receipt of benefits under the Medicaid or
CHIP programs.'' See also: 2 CFR 200.203, ``The statutory,
regulatory or other eligibility factors or considerations that
determine the applicant's qualification for Federal awards under the
program (e.g., type of non-Federal entity).''
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Thus, the Department believes the proper interpretation of
subparagraph (c)(1)(B) is as follows: the listed benefits, including
``other similar benefit[s],'' are ``Federal public benefit[s]'' as long
as they are provided on either a per-individual, per-household, or per-
``family eligibility unit'' basis.
The 1998 Notice gave greater significance to ``eligibility unit''
than that text can bear. The notice interpreted subparagraph (c)(1)(B)
to include only ``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[.]'' 63 FR at 41659 (emphasis added). As to the second
criterion, the 1998 Notice added: ``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.'' Id.
The first flaw of the 1998 Notice is that it assumes that
``eligibility unit'' modifies ``individual'' and ``household.'' It is
not clear whether the phrase ``eligibility unit'' applies to all three
items in the list (``individual,'' ``household,'' and ``family'') or to
just ``family.'' At a minimum, it strains the English language to
conceive of an ``individual[ ]eligibility unit.'' That notion would
commonly be expressed as ``eligible individual,'' but Congress did not
say ``eligible individual'' in subparagraph (c)(1)(B). As explained
above, recognizing that ``family eligibility unit'' is a discrete
phrase (parallel to ``individual'' and ``household'') avoids having to
resolve the textual question of the difference between ``individual''
and ``individual eligibility unit.'' The Department is unaware of any
statute or HHS program that uses the term ``individual eligibility
unit'' in this sense. The Department seeks comment on the application
of ``eligibility unit'' in other federal programs at HHS or similar
contexts. In the interpretation that the Department now sets forth, the
question is largely
[[Page 31235]]
academic as to whether ``eligibility unit'' applies to ``individual''
and ``household.'' But under the 1998 Notice's approach, the question
becomes much more important, because ``eligibility unit'' bears
significant weight in the analysis. Yet, the 1998 Notice elides this
question, simply assuming without explanation that ``eligibility unit''
applies across the list despite its likely inapplicability to the term
``individual.''
Even if the phrase does apply to all three items, it is not clear
whether the word ``eligibility'' supplies any significant constraint in
this context. Of course, the Department is mindful of the canon against
superfluity. See Microsoft v. i4i Ltd, 564 U.S. 91, 106 (2011). But as
explained above, in the context of benefit programs, a reference to
``eligibility unit'' can simply mean the categorization of discrete
end-recipients of the ``payments or assistance''--that is, the statute
recognizes that some benefits are allocated on an individual basis,
some on a household basis, and some on a family basis, and
``eligibility'' is assessed vis-[agrave]-vis those ``unit[s].'' The
statute does not otherwise place special weight on the word
``eligib[le].'' See also Dep't of Justice, ``Verification of
Eligibility for Public Benefits,'' 63 FR 41662, 41664-65 (``if an
agency provides an unemployment benefit to an individual using
federally appropriated funds, the definition is satisfied''; no
discussion of ``eligibility unit'' or additional ``eligibility''
criteria). This understanding makes particular sense in the PRWORA
context. One purpose of PRWORA is to limit aliens' access to public
benefits, and if the end-recipient of the benefit is something larger
than a household or family (for example, the multi-unit buildings
referenced in the 1998 Notice, 63 FR at 41660), it makes little sense
to talk about an assessment of immigration status.
In addition, the 1998 Notice's approach is unmoored from the
statutory text and invites arbitrary application. Assume for the sake
of discussion that ``eligibility unit'' modifies the entire list. And
assume further that the term ``eligibility'' means a ``Federal public
benefit'' must employ some sort of criteria that excludes certain
individuals, household, or families, but not others. The 1998 Notice
goes further: those criteria must be in ``the authorizing statute'' of
the benefit program and those criteria must be of some special type. It
is not enough if the entire benefit program is structured ``to meet the
needs of certain populations''; rather, the criteria must be such that
``providers use variations in individual characteristics as a basis for
determining eligibility, on a case-by-case basis.'' 63 FR at 41659-60.
None of the Notice's line-drawing about the right type of criteria
is grounded in the statutory text. That is enough to reject it. And the
1998 Notice's own example demonstrates the fallacy of its reasoning.
The Notice points to a grant for ``children or pregnant women.'' Id.
Obviously, a man is not an eligible individual for a grant program that
provides benefits to pregnant women. Put another way, ``as a condition
of receipt'' of the benefit, he must ``meet specified criteria,'' and
he fails to do so. Id. at 41659. So, the situation would seem to meet
the test articulated by the 1998 Notice. But the notice convolutedly
reasons that the ``Maternal and Child Health program'' is not a Federal
public benefit because this criterion (being a pregnant woman, not a
man) is somehow different from other criteria (``such as a specified
income level or a specified age'').
The 1998 Notice also points to the definition of ``Federal
benefit'' in Section 561 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA). 63 FR at 41659. The
caption of that section is ``Increased maximum criminal penalties for
forging or counterfeiting seal of a federal department or agency to
facilitate benefit fraud by an unlawful alien.'' That is, the entire
statutory provision, 18 U.S.C. 506, is about criminal liability for a
person who commits certain acts of forgery (or related acts). In
defining ``Federal benefit'' in that context, there is no need to refer
to ``eligibility unit''--the statute contemplates a person committing a
criminal act to ``facilitate[e] an alien's application for, or receipt
of, a Federal benefit.'' 18 U.S.C. 506(b). Any inference that might be
drawn for supporting a narrow interpretation of PRWORA is insufficient
to overcome the plain meaning of the text of 8 U.S.C. 1611, especially
in light of the explicit purpose of PRWORA set forth in Sec. 1601.
By eliminating this arbitrary line-drawing around what constitutes
an appropriate ``eligibility'' criterion, HHS's new interpretation will
no longer raise a question about what to do with programs that, as the
1998 Notice describes, ``provide a mixture of services, some of which
are provided to . . . communities or specified sectors of the
population.'' 63 FR at 41660. That question was a consequence of the
1998 Notice's convoluted approach to subparagraph (c)(1)(B), in which
certain eligibility criteria (such as income limits) counted, but
others did not (such as geographic limits). And it led to yet more
analysis that was far removed from the statutory text. See id.
(creating a ``preponderance'' test to determine whether an HHS program
is a ``Federal public benefit''). Now, if an HHS program provides a
benefit that falls within the categories set forth in the first half of
subparagraph (c)(1)(B), and it does so on a per-individual, per-
household, or per-family basis, it will be a ``Federal public
benefit.'' That is true whether the ``eligibility'' of the relevant
``unit'' turns on being part of a specific ``communit[y],'' part of a
``specified sector of the population,'' having a ``specified income
level,'' being a ``specified age,'' etc. See 63 FR at 41659-60.
Further, the 1998 Notice imposes a requirement that the limits on
eligibility to individuals, household, or family be in the statutory
text. There is no statutory basis for requiring that the description of
eligibility be in statute. At least one court has found the 1998 Notice
misinterprets the statute. ``HHS's reasoning is not persuasive . . .
Not only did HHS fail to explain why a benefit program's status should
turn on whether Congress explicitly laid out the eligibility criteria
in the statutory text, but HHS's approach would result in a large
number of benefit programs falling outside PRWORA's reach, which would
run counter to Congress's intent in enacting PRWORA.'' Poder in Action
v. City of Phoenix, 481 F. Supp. 3d 962, 974 (D. Ariz. 2020). That
court found that the program at issue in that case (the Coronavirus
Relief Fund) was likely a ``Federal public benefit'' because it
``provide[d] benefits on a household basis.'' Id. at 974.
The straightforward reasoning applied by that court, supported by
the plain meaning of the statutory text, is consistent with the
approach the HHS will take in determining whether an HHS program is a
``Federal public benefit'' and applying the prohibition in Sec.
1611(a).
3. ``Any Other Similar Benefit''
Subparagraph (c)(1)(B) lists a wide range of benefits that fall
within the definition of ``Federal public benefit,'' and supplements
those specific examples with a catch-all phrase: ``any other similar
benefit.'' HHS programs may provide an ``other similar benefit'' even
if they do not directly fall within the enumerated, specific items of
the list. Indeed, that is the point of a catch-all phrase. Republic of
Iraq v. Beaty, 556 U.S. 848, 860 (2009) (``[T]he whole value of a
generally phrased residual clause, like the one used in the second
proviso, is that it serves as a catchall for matters not specifically
contemplated--known unknowns[.]''); Cf. Uriostegui v.
[[Page 31236]]
Ala. Crime Victims Compensation Comm'n, 2010 WL 11613802, at *15 (N.D.
Ala. Nov. 16, 2010) (rejecting attempts to distinguish crime victim
compensation program from the other benefits listed in (c)(1)(B): ``The
categories of benefits listed in Sec. 1611(c)(1)(B) are quite broad in
their variety[.]''), report and recommendation adopted, 2011 WL
13285298 (N.D. Ala. Jan. 12, 2011).
The 1998 Notice acknowledged that ``the litany of categories in
401(c)(1)(B) is broad.'' But the notice only engaged with this
statutory language apophatically, providing a single example of what is
not included in the specific terms, while ignoring the catch-all
phrase. See 63 FR at 41659. It is true that an HHS program that deals
with non-postsecondary education (such as Head Start) would not fall
within the statutory term ``postsecondary education . . . benefit.''
Id. But such program would fall within the statutory term if it is
``similar'' to another ``benefit'' explicitly listed in the statutory
text. At the very least, the 1998 Notice wholly fails to explain why a
program like Head Start would not fall within the term ``other similar
benefit.'' HHS believes Head Start is similar to a welfare benefit and
will explain further below.
The Department announces that it will interpret the phrase ``any
other similar benefit'' in line with plain meaning: any other benefit
that is ``alike in substance or essentials'' to or that ``[has]
characteristics in common'' \2\ with ``retirement, welfare, health,
disability, public or assisted housing, postsecondary education, food
assistance, [or] unemployment benefit[s].'' 8 U.S.C. 1611(c)(1)(B). See
also United States v. Raynor, 302 U.S. 540, 547 (1938) (``Similarity is
not identity, but resemblance between different things.''). This
approach is fully consistent with the canon of ejusdem generis: ``Where
general words follow specific words in a statutory enumeration, the
general words are usually construed to embrace'' ``objects similar in
nature to those objects enumerated by the preceding specific words.''
Yates v. United States, 574 U.S. 528, 545 (2015) (alterations omitted,
emphasis added).
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\2\ Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/similar. (Accessed 13 Apr. 2025).
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The application of this interpretation to specific HHS programs is
informed by PRWORA's statement of purpose, which emphasizes that
Congress intended to reach a broad range of benefit programs in order
to ensure that ``aliens within the Nation's borders not depend on
public resources to meet their needs, but rather rely on their own
capabilities and the resources of their families, their sponsors, and
private organizations'' and to ensure that ``the availability of public
benefits not constitute an incentive for immigration to the United
States.'' 8 U.S.C. 1601(2). HHS's interpretation of subparagraph
(c)(1)(B) will also be informed by the recognition that Congress
enacted this provision to apply across the multifarious operations of
the federal government--that is, HHS will not overread into the fact
that Congress provided certain examples to underscore the breadth of
subparagraph (c)(1)(B) in order to improperly exclude programs that
properly fall within the plain meaning of subparagraph (c)(1)(B).
Based on this interpretation, the Department believes that Head
Start is a ``similar benefit'' to a welfare benefit. While the term
``welfare'' is not defined in PRWORA, it can be given a fair reading in
its plain meaning and agency usage. The broad sweep of ``welfare''
described in the preamble in section 400 of PRWORA, (8 U.S.C. 1601)
supports a broad reading of ``welfare'' and any ``similar benefit'', as
do other laws enacted around the same time. The Welfare Indicators Act
of 1994 (Pub. L. 103-432) directs the HHS Secretary to publish an
annual report on welfare dependency. The law states it should ``include
analysis of families and individuals receiving assistance under means-
tested benefit programs, including the program of aid to families with
dependent children under part A of title IV of the Social Security Act
(42 U.S.C. 601 et seq.), the food stamp program under the Food Stamp
Act of 1977 (7 U.S.C. 2011 et seq.), and the Supplemental Security
Income program under title XVI of the Social Security Act (42 U.S.C.
1381 et seq.), or as general assistance under programs administered by
State and local governments.'' \3\ The purpose of this report is to
address questions concerning the extent to which American families
depend on income from welfare programs. The Administration for Children
and Families also defines ``welfare'' specifically in the context of
services that help children: ``Child welfare is a continuum of services
designed to ensure that children are safe and that families have the
necessary support to care for their children successfully.'' \4\ The
Head Start Program is, at minimum, a similar program to the
aforementioned welfare programs, which also provide means-tested
assistance to families and individuals.
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\3\ 42 U.S. Code Sec. 1314a.
\4\ ``Child Welfare,'' Administration for Children and Families,
accessed on July 7, 2025, https://acf.gov/acf_issues/child_welfare.
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While Head Start provides for school readiness, it also provides
low-income children and their families with ``health, educational,
nutritional, and social and other services, that are determined based
on family needs assessment, to be necessary.'' \5\ Further, it may
serve as child care for parents of young children. These benefits
provided by the Head Start program are ``similar'' to ``welfare''
benefits.
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\5\ 42 U.S.C. 9831. See also 42 U.S.C. 9833.
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To the extent HHS has issued regulatory statements or guidance that
suggest the Head Start program is not a ``Federal public benefit''
under subparagraph (c)(1)(B), those statements cannot stand in light of
the plain meaning of PRWORA. This principle, of course, applies beyond
the determination of whether the Head Start program is a ``Federal
public benefit''; it applies to the evaluation of any other program
``provided by'' by the Department or administered by the Department
``by appropriated funds of the United States.'' 8 U.S.C. 1611(c)(1)(A),
(B).
4. Exemptions
Section IV of the 1998 Notice, entitled ``Exemptions,'' asserts
that Sec. 1611(b)(1) ``excludes some HHS programs from the definition
of `Federal public benefits.' '' 63 FR at 41660.
While it is true that Sec. 1611(b)(1) excludes certain HHS
programs from the ambit of Sec. 1611(a), it is false that those
programs are excluded from the definition of ``Federal public
benefit.'' In fact, the statute clearly says the opposite. Paragraph
(b)(1) says ``Subsection (a) shall not apply with respect to the
following Federal public benefits . . . '' (emphasis added). Thus,
``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,'' 8 U.S.C. 1611(b)(1)(C), very much is a
``Federal public benefit.'' Contra 63 FR at 41660. Whether it is
subject to Sec. 1611(a) is a separate question conceptually.
III. HHS Programs
Having set forth the correct interpretation of the definition of
``Federal public benefit,'' HHS has determined that the list of HHS
programs set forth in the 1998 HHS
[[Page 31237]]
PRWORA Notice is incomplete and needs to be updated.
The 1998 Notice, 63 FR at 41660, identified the following HHS
programs as providing ``Federal public benefit[s]'' and were not
``otherwise excepted'' from Sec. 1611(a): (1) Adoption Assistance; (2)
Administration on Developmental Disabilities (ADD)--State Developmental
Disabilities Councils (direct services only); (3) ADD--Special Projects
(direct services only); (4) ADD--University Affiliated Programs
(clinical disability assessment services only); (5) Adult Programs/
Payments to Territories; (6) Agency for Health Care Policy and Research
Dissertation Grants; (7) Child Care and Development Fund; (8) Clinical
Training Grant for Faculty Development in Alcohol & Drug Abuse; (9)
Foster Care; (10) Health Profession Education and Training Assistance;
(11) Independent Living Program; (12) Job Opportunities for Low Income
Individuals (JOLI); (13) Low Income Home Energy Assistance Program
(LIHEAP); (14) Medicare; (15) Medicaid (except assistance for an
emergency medical condition); (16) Mental Health Clinical Training
Grants; (17) Native Hawaiian Loan Program; (18) Refugee Cash
Assistance; (19) Refugee Medical Assistance; (20) Refugee Preventive
Health Services Program; (21) Refugee Social Services Formula Program;
(22) Refugee Social Services Discretionary Program; (23) Refugee
Targeted Assistance Formula Program; (24) Refugee Targeted Assistance
Discretionary Program; (25) Refugee Unaccompanied Minors Program; (26)
Refugee Voluntary Agency Matching Grant Program; (27) Repatriation
Program; (28) Residential Energy Assistance Challenge Option (REACH);
(29) Social Services Block Grant (SSBG); (30) State Child Health
Insurance Program (CHIP); (31) Temporary Assistance for Needy Families
(TANF).
Based on the interpretation of PRWORA set forth above, and based on
intervening developments since the promulgation of the 1998 Notice, HHS
now identifies the following additional HHS programs as providing
``Federal public benefit[s]'': (32) Title X Family Planning Program;
(33) Head Start; (34) Title IV-E Educational and Training Voucher
Program; (35) Community Services Block Grant (CSBG); (36) Health Center
Program; (37) Substance Use Prevention, Treatment, and Recovery
Services Block Grant; (38) Community Mental Health Services Block
Grant; (39) Projects for Assistance in Transition from Homelessness
Grant Program; (40) Certified Community Behavioral Health Clinics; (41)
Mental Health and Substance Use Disorder Treatment, Prevention, and
Recovery Support Services Programs administered by the Substance Abuse
and Mental Health Services Administration not otherwise covered under
(37)-(40), above; (42) Title IV-E Prevention Services Program; (43)
Title IV-E Kinship Guardianship Assistance Program; (44) Health
Workforce Programs not otherwise covered under ``(10) Health Profession
Education and Training Assistance'', as described above (including
grants, loans, scholarships, payments, and loan repayments).\6\
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\6\ Some programs have citizenship or immigration requirements
independent of, or more extensive than, PRWORA. For example, The
National Health Service Corps (NHSC) programs require beneficiaries
to be U.S. citizens or nationals of the United States. See 42 U.S.C.
254l(b)(2) (requiring NHSC scholars to be ``be eligible for, or
hold, an appointment as a commissioned officer in the Regular or
Reserve Corps of the Service or be eligible for selection for
civilian service in the Corps.'' Also see 42 CFR 62.3(a)(3)-(4) The
same requirements apply to the NHSC Loan Repayment Program. See 42
U.S.C. 254l-1(b)(2); 42 CFR 62.24(a)(2). In general, under 5 CFR
7.3(a), civilian employees of the United States appointed through
the competitive process are required to be a ``citizen or national
of the United States,'' and Comm. Corps officers are required to be
U.S. citizens under 42 U.S.C. 204(a)(2) (``All commissioned officers
shall be citizens of the United States . . . .'').
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To be clear, the above list is not exhaustive. Any programs not
listed in this notice or established after the date of this notice may
still fall under the definition of Federal public benefit. Any
additional programs determined to be Federal public benefits will be
announced in program specific guidance.
IV. Verification
The 1998 Notice, at various points, touched on the immigration-
status verification requirements that PRWORA, as amended, attached to
HHS programs. While verification requirements are related to a
practical effectuation of the prohibition set forth in Sec. 1611(a),
they are conceptually distinct from a proper definition of ``Federal
public benefit.'' Thus, the Department is not formally revising the
aspects of the 1998 Notice that touch on PROWRA's verification
requirements at this time.
However, the Department notes important considerations for
stakeholders to keep in mind. The American people, acting through their
elected representatives in Congress and the President that they have
elected to lead the Executive Branch, has made it clear that it is the
policy of this country that persons' access to public benefits should
turn on those persons' immigration status. In enacting PRWORA,
``Congress ma[de] the following statements concerning national policy
with respect to welfare and immigration'': ``It continues to be the
immigration policy of the United States'' that ``aliens within the
Nation's borders not depend on public resources to meet their needs,
but rather rely on their own capabilities and the resources of their
families, their sponsors, and private organizations,'' and that ``the
availability of public benefits not constitute an incentive for
immigration to the United States.'' 8 U.S.C. 1601.
President Trump has similarly issued numerous Presidential actions
that reflect the will of the American people that aliens should not
burden our public benefits system and that our public benefits system
should not serve as a magnet for illegal immigration. This
Administration recognizes that it is ``it is national policy that
`aliens within the Nation's borders not depend on public resources to
meet their needs,' and that `it is a compelling government interest to
remove the incentive for illegal immigration provided by the
availability of public benefits.''' Executive Order 14218, Sec. 1, 90
FR 10581 (quoting PRWORA, alterations omitted). Thus, President Trump
has emphasized that his Administration ``will uphold the rule of law,
defend against the waste of hard-earned taxpayer resources, and protect
benefits for American citizens in need, including individuals with
disabilities and veterans.'' Id. As President Trump has ordered, ``The
American people deserve a Federal Government that puts their interests
first and a Government that understands its sacred obligation to
prioritize the safety, security, and financial and economic well-being
of Americans.'' Executive Order 14159, Sec. 1, 90 FR 8443.
Even if PRWORA and related regulatory activity do not mandate an
entity to conduct verification of the immigration status of a person
applying for benefits, nothing in the statute prohibits such an entity
from conducting verification. See 8 U.S.C. 1642. Pending further
regulation and/or guidance on the situations in which verification is
required, all entities that are part of HHS's administration of public
benefits should pay heed to the clear expressions of national policy
described above.
V. Change in Position
To be clear, the Department hereby explicitly ``display[s]
awareness that it is changing position.'' F.C.C. v. Fox Television
Stations, 556 U.S. 502, 515 (2009) (emphasis omitted). As explained
above, the change in position from the 1998 Notice is necessary because
the 1998 Notice incorrectly interprets
[[Page 31238]]
PRWORA's plain meaning of the statute's text in multiple ways. The
Department's new position is consistent with the plain meaning of the
statute's text.
Some may argue that there are reliance interests that are affected
by the Department's change in position. Some may argue that the
Department's new position will negatively impact public health. However
strong these hypothetical policy arguments may be, the Department has
no power to override Congress's will, expressed in the clear statutory
text of PROWRA. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400
(2024) (``In the business of statutory interpretation, if [an agency's
interpretation of a statute] is not the best, it is not
permissible.''). The Department anticipates that numerous unqualified
aliens will no longer receive benefits under Federally funded programs
due to this notice. This is a necessary result of the Department's
obligation to comply with the law. It is also necessary to remedy the
corresponding harm of the denial of limited benefits to those U.S.
citizens and qualified aliens who otherwise would receive benefits to
which they are entitled, but for them being provided to unqualified
aliens. In addition, HHS is concerned that the provision of Federal
public benefits to unqualified aliens incentivizes increased illegal
immigration, compounding the problem over time, of unqualified aliens
increasingly unlawfully drawing down and crowding out benefits reserved
for U.S. citizens and qualified aliens.
V. Comment Period and Effective Date
Although HHS is soliciting public comment on this interpretation,
it is necessary to apply this interpretation to HHS programs
immediately, prior to receipt and consideration of any comments. Any
delay would be contrary to the public interest and fail to address the
ongoing emergency at the Southern Border of the United States.
During the prior administration, the numbers of illegal aliens who
entered the United States reached dangerous levels, threatened the
safety and wellbeing of the American people, and strained Federal and
State resources.\7\ On January 20, 2025, President Trump declared a
national emergency at the Southern Border of the United States.
Additional delay to correct the deficiencies of the 1998 Notice would
fail to remove incentives to illegal immigration that are exacerbating
the invasion at the Southern Border.
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\7\ ``Crisis by Design,'' A Comprehensive Look at the Biden-
Harris Administration's Unprecedented Border Crisis, House Committee
on Homeland Security Majority Report, September 18, 2024,
homeland.house.gov/wp-content/uploads/2024/09/September-2024-Border-Report.pdf.
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Additional delay will also cause unnecessary or incorrect
administrative actions by agencies or entities that administer our
programs, resulting ultimately in the denial of critical benefits and
services to U.S. citizens and qualified aliens who, according to the
interpretation in this notice, are otherwise eligible. In sum, although
we are providing a 30-day period for public comment, as indicated at
the beginning of this notice, this interpretation is effective
immediately. Post-promulgation notice-and-comment and immediate
effectiveness are consistent with the Administrative Procedure Act,
pursuant to 5 U.S.C. 553(b)(A) and (d)(2).
VI. Economic Impact
1. Introduction
We have examined the impacts of the notice under Executive Order
12866, Executive Order 13563, Executive Order 14192, the Regulatory
Flexibility Act (5 U.S.C. 601-612), the Congressional Review Act/Small
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801,
Pub. L. 104-121), and the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4).
Executive Orders 12866 and 13563 direct us to assess all benefits
and costs of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits.
Regulatory actions are ``economically significant'' under section
3(f)(1) Executive Order 12866 if they ``have an annual effect on the
economy of $100 million or more; or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities.'' Executive Order 14192 requires that any
new incremental costs associated with significant new regulations
``shall, to the extent permitted by law, be offset by the elimination
of existing costs associated with at least ten prior regulations.''
This notice addresses alien eligibility for public benefits, and thus
is expressly exempt from the requirements of Executive Order 14192 as a
regulatory action related to an immigration-related function of the
United States. The analysis indicates, and the Office of Information
and Regulatory Affairs (OIRA) has determined, that this notice is an
economically significant regulatory action under section 3(f)(1)
Executive Order 12866.
Because this notice may result in an annual effect on the economy
of $100 million or more or meet other criteria specified in the
Congressional Review Act/Small Business Regulatory Enforcement Fairness
Act of 1996, OIRA has determined that this notice falls within the
scope of 5 U.S.C. 804(2).
The Regulatory Flexibility Act requires Agencies to analyze
regulatory options that would minimize any significant impact of a rule
on small entities. Because the incremental costs of verification are
about 0.1% of the average annual expenditures per enrollee, we certify
that the notice will not have a significant economic impact on a
substantial number of small entities. This analysis, as well as other
sections in this document and the notice, serves as the Final
Regulatory Flexibility Analysis, as required under the Regulatory
Flexibility Act.
The Unfunded Mandates Reform Act of 1995 (UMRA) generally requires
that each agency conduct a cost-benefit analysis; identify and consider
a reasonable number of regulatory alternatives; and select the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule before promulgating any proposed or
final rule that includes a Federal mandate that may result in
expenditures of more than $100 million (adjusted for inflation) in at
least one year by State, local, and tribal governments, in the
aggregate, or by the private sector. Each agency issuing a rule with
relevant effects over that threshold must also seek input from State,
local, and tribal governments. The current threshold after adjustment
for inflation using the Implicit Price Deflator for the Gross Domestic
Product is $187 million, reported in 2024 dollars. UMRA only applies in
situations where an agency engages in notice-and-comment rulemaking. It
does not apply to this notice.
A. Overview of Economic Impacts
This notice updates and corrects our interpretation of the term
``Federal public benefit.'' We anticipate that the notice will lead to
a reduction in improper expenditures of taxpayer resources on Federal
public benefits for unqualified aliens and a corresponding increase in
benefits for U.S. citizens and qualified aliens. We present a partial
benefit-cost analysis of the notice--for some effects, focusing on the
impacts of one program as an illustrative case of the full potential
economic impacts. For the Head Start program, we report a primary
estimate of $374 million in annual effects representing incremental
expenditures on U.S. citizens and
[[Page 31239]]
qualified aliens. We report a full range of estimated expenditure
effects between $184 million and $1,881 million, capturing uncertainty
in the baseline share of program beneficiaries who are U.S. citizens
and qualified aliens. We anticipate that these expenditure effects will
result in improved services and access for U.S. citizens and qualified
aliens. For these effects to occur, we estimate corresponding annual
costs of $21 million in the opportunity cost of time spent by
individuals seeking benefits to document eligibility and time spent by
individuals reviewing program eligibility, and additional transition
costs for the Head Start program associated with revising standard
operating procedures. A broader scope of analysis would report
additional expenditure effects and costs associated with other programs
covered by the notice. In a supplementary analysis, we estimate a range
of potential upfront transition costs associated with revising standard
operating procedures (not limited to Head Start) between $115 million
to $175 million. We request comment on our estimates of benefits,
costs, and transfers of this notice. We have developed a Final Economic
Analysis of Impacts that assesses the impacts of this notice. The full
final analysis of economic impacts is available in the docket at
regulations.gov under Docket ID. AHRQ-2025-0002.
Robert F. Kennedy, Jr.,
Secretary, Department of Health and Human Services.
[FR Doc. 2025-13118 Filed 7-10-25; 4:15 pm]
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