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[Federal Register: January 16, 2001 (Volume 66, Number 10)]
[Notices]               
[Page 3613-3616]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ja01-82]                         

=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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]
BILLING CODE 4410-19-P

			   


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