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LIHEAP IM 1998-25 on Interpretation of "Federal Public Benefits" Under the Welfare Reform Law

Special Topics

Published: August 6, 1998
Audience:
Low Income Home Energy Assistance Program (LIHEAP)
Category:
Guidance, Policies, Procedures, Information Memorandums (IM)

TO: LOW INCOME HOME ENERGY ASSISTANCE PROGRAM (LIHEAP) GRANTEES AND OTHER INTERESTED PARTIES

SUBJECT: Guidance on the Interpretation of "Federal Public Benefits" Under the Welfare Reform Law

RELATED
REFERENCES: Low Income Home Energy Assistance Act, Title XXVI of the Omnibus Budget Reconciliation Act of 1981, Public Law 97-35, as amended; the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Public Law 104-193, signed into law on August 22, 1996; Federal Register notice dated August 26, 1997 (62 FR 45256)providing guidance on the definition of Federal Means-Tested Public Benefits" under PRWORA for HHS programs; Federal Register notice dated August 4, 1998 (63 FR 41657) providing guidance on the definition of "Federal Public Benefits" under PRWORA for HHS programs; Federal Register notice dated August 4, 1998 (63 FR 41662) from the Department of Justice issuing a "Proposed Rule on Verification of Eligibility for Public Benefits" under PRWORA; and Federal Register notice dated November 17, 1997 (62 FR 61344) from the Department of Justice issuing "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".

PURPOSE: To advise LIHEAP grantees about decisions made on the definition of "Federal Public Benefits" for non-qualified aliens under the 1996 welfare reform law for HHS programs.

BACKGROUND: The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Public Law 104-193, was signed into law by the President on August 22, 1996.  PRWORA, popularly known as the welfare reform law, established the Temporary Assistance to Needy Families (TANF) program to replace the Assistance to Families With Dependent Children (AFDC) program.  PRWORA restricts theaccess of certain categories of immigrants to specified Federal benefits, including some benefits administered by the Department of Health and Human Services (HHS).

Section 403 of PRWORA bars most qualified aliens who enter the U.S. on or after enactment (August 22, 1996) from eligibility for "Federal means-tested public benefits" for five years beginning on the date the individual entered the United States with a qualified alien status.  As defined in a Federal Register notice dated August 26, 1997 (62 FR 45256), HHS interpreted "Federal means-tested public benefits" to include only those benefits provided under Federal means-tested, mandatory spending programs.  The following HHS programs meet this definition: Medicaid, and Temporary Assistance for Needy Families (TANF) Block Grant - the successor to the AFDC program.  Therefore, no other HHS programs are "Federal means-tested public benefits" for purposes of PRWORA, and all qualified aliens, regardless of when they entered the U.S., continue to be eligible to receive assistance and services under the Low Income Home Energy Assistance Program (LIHEAP) if they meet other program requirements.

"Qualified aliens" are defined in section 431 of PRWORA and cover the larger groups of legal immigrants: (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 or 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).
We are now issuing guidance on the eligibility of non-qualified aliens for "Federal public benefits".

CONTENT: Section 401 of PRWORA prohibits non-qualified aliens from receiving any "Federal public benefits".  On August 4, 1998, HHS published a notice in the Federal Register (63 FR 41657) identifying 31 HHS programs that provide Federal public benefits, and which therefore non-qualified aliens may not receive.  With a number of important exceptions discussed below, grantees under these programs are required to verify immigration and citizenship status of applicants in order to ensure that non-qualified aliens do not receive the programs' benefits and services. Also in the Federal Register dated August 4, 1998 (63 FR 41662), the Department of Justice published a "Proposed Rule on Verification of Eligibility for Public Benefits".

The Low Income Home Energy Assistance Program (LIHEAP) has been determined to be a Federal public benefit as defined in title IV of PRWORA, and thus is one of the programs listed in the HHS notice.

Accordingly, LIHEAP grantees are required to implement the verification requirements, in order to ensure that non-qualified aliens do not receive LIHEAP benefits.  There are some exceptions to the verification requirements, however, as noted below.
Agencies providing Federal public benefits must be in full compliance with the verification requirements within 2 years of publication of a Justice final rule.  Until a final rule is published, verification of alien status may be carried out using the Justice Department's proposed final rule or 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, which Justice published earlier in the Federal Register at 62 FR 61344 on November 17, 1997.  A copy of Justice's proposed rule and the Interim Guidance may be obtained from the Federal Register website at  www.gpo.gov.

EXCEPTIONS TO VERIFICATION REQUIREMENTS

Under section 432(d) of PRWORA (as amended by section 508 of the Illegal Immigration and Immigrant Responsibility Act of 1996, Public Law 104-208), providers who are nonprofit charitable organizations are not required to determine, verify, or otherwise require proof of eligibility of any applicant for benefits even if they are providers of Federal public benefits as identified in the Federal Register notice.
Providers should also be aware of important exemptions to the verification requirements established by PRWORA and clarified by the Department of Justice in its Interim Guidance (62 FR 61344, November 17, 1997) and in the Proposed  Rule (63 FR 41662, August 4, 1998). These exemptions include those for:  the provision of in-kind, community based services which are necessary for the protection of life and safety; the provision of emergency medical care and certain other immunizations and treatments; and the protection of battered alien spouses, battered alien children, the alien parents of battered children, and alien children of battered parents who fit certain criteria.
LIHEAP has been determined to be a Federal public benefit as defined in title IV of PRWORA and, therefore, LIHEAP grantees are required to implement the new verification requirements promulgated by the Department of Justice.  However, not all services provided under LIHEAP are considered Federal public benefits because some services provided with LIHEAP funds are not provided to individual, household, or family eligibility units, and therefore do not constitute Federal public benefits that are subject to verification requirements. Accordingly, we encourage LIHEAP grantees to review and understand these important exemptions.

For example, the guidance means that a LIHEAP grantee would not need to verify eligibility or deny benefits to non-qualified aliens who wish to use a cooling center set up to provide relief to  citizens suffering during hot weather, if the grantee does not verify income for users of the cooling center.  In addition, many LIHEAP grantees use rules of the Department of Energy's Low Income Weatherization Assistance Program in administering their LIHEAP funds spent on weatherization.  Under the DOE rules, a multi-unit building may be weatherized if residents in 2/3 of the units are eligible for assistance (1/2 in the case of a 4-unit building). While determinations would need to be made to ensure that 2/3 of the units meet the criteria for assistance, a non-qualified alien could be the recipient of weatherization assistance as part of the up to 1/3 of the building's households that are not eligible.

REQUEST FOR COMMENTS

The HHS interpretation of Federal public benefits published in the Federal Register is a notice that is effective on August 4, 1998, the date of publication.  However, HHS would like to receive any comments you may have on it, and may revise the interpretation based on comments. Comments must be submitted no later than 5:00 p.m. on October 5, 1998, and should be sent 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 Avenue, S.W., Washington, DC  20201, Colleen Curtin Rathgeb.

Inquiries about the HHS interpretation may be directed to Colleen Curtin Rathgeb at 202/401-6639.

The Department of Justice published a Proposed Rule on Verification of Eligibility for Public Benefits in the Federal Register on August 4, 1998 (63 FR 41662), and has also provided a 60-day comment period, which ends on October 5, 1998.  Comments on the Proposed Rule should be sent directly to the address indicated in the Proposed Rule.

ATTACHMENT: Federal Register notice dated August 4, 1998 (63 FR 41657)  providing guidance on the definition of "Federal Public Benefits" under PRWORA for HHS programs.

INQUIRIES TO:    Janet M. Fox, Director
                            Division of Energy Assistance
                            Office of Community Services, ACF, HHS
                            370 L'Enfant Promenade, S.W.
                            Washington, D.C.  20447
                            Telephone:  (202) 401-9351
                             Fax:  (202) 401-5718




                                   _____________/s______________
                                   Janet M. Fox
                                   Director
                                   Division of Energy Assistance
                                   Office of Community Services