41658 Federal Register / Vol. 63, No. 14 /Tuesday, August 4, 1998 / Notices

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.

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 nonexempt ‘‘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.
Federal Register / Vol. 63, No. 14 /Tuesday, August 4, 1998 / Notices 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
41660 Federal Register / Vol. 63, No. 14 /Tuesday, August 4, 1998 / Notices

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 inkind, 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.
Federal Register / Vol. 63, No. 14 /Tuesday, August 4, 1998 / Notices 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. § 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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