HHS Reinterprets Statute Governing ‘Federal Public Benefit’ Eligibility

The U.S. Department of Health and Human Services (HHS) issued a Federal Register notice last month to reinterpret the term “federal public benefit” as used in Title IV of the Personal Responsibility and Work Opportunity Act of 1996 (PRWORA).¹ This notice revises the agency’s Clinton-era interpretation of the term, which allowed many aliens in the country illegally to access some HHS programs and benefits, despite PRWORA’s restrictions.²

Specifically, section 401 of PRWORA, 8 U.S.C. 1611(a), states that 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 § 1611(a) is subject to certain narrow exceptions explicitly set forth in § 1611(b) that largely are not relevant for this discussion.

Qualified Aliens

Under federal law, an alien is a “qualified alien” for the purpose of federal public benefit eligibility if they are a(n):

• Lawful permanent resident;
• Asylee;
• Refugee;
• Paroled into the United States for at least one year (not including short-term humanitarian parole);
• Admitted under INA § 203(a)(7) (a pre-1980 refugee category that is now obsolete);
• Alien with approved or pending VAWA petition (self-petitions, cancellation/suspension cases), if there is a connection between the abuse and the need for benefits;
• Victim of trafficking, if qualified under the Trafficking Victims Protections Act; or
• Recipient of withholding of removal under INA § 241(b)(3) or the Convention Against Torture.

In contrast, non-qualified aliens include most nonimmigrant visa holders, temporary protected status recipients, Deferred Action for Childhood Arrivals (DACA) recipients, aliens in the United States illegally, or aliens who have been paroled into the United States for less than one year.

Federal Public Benefits

The statutory text 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”. (This definition is also subject to certain narrow exceptions at section 1611(c)(2) that largely do not come into play in this discussion.)

HHS’s Revised Interpretation

Last month’s Federal Register notice explains that the 1998 interpretation of the law erred in four important ways to allow benefits to be granted to non-qualified aliens. First, it limited the interpretation of “grant” to financial awards to individuals, but excluded consideration of block grants provided to states and localities.

Second, the 1998 interpretation convolutedly interpreted § 1611(c)(1)(B)’s reference to “eligibility unit” to exclude benefits provided to individuals, households, or families. The 1998 interpretation performed a feat of intellectual gymnastics to conclude that 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.”³ This interpretation allowed HHS to provide benefits to recipients who were not qualified aliens, so long as the eligibility criterion didn’t expressly require them to be.

The notice went on to state that, “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” vs. “individual, household, or family eligibility units”.⁴ This test underscores that the 1998 notice misinterpreted the statute.

Third, the 1998 interpretation disregarded the statute’s catch-all phrase “other similar benefit”. The notice explicitly listed the Head Start program, a program that provides services to young children (birth to age five) and their families to promote early learning and development, health, and well-being, because one element of the list of “federal public benefits” in § 1611(c)(1)(B) included “postsecondary education”. This application misapplies a canon of statutory interpretation to conclude that only postsecondary education benefits are included and fails to explain why other educational or welfare benefits do not fall under the “other similar benefit” category.

Finally, the 1998 interpretation incorrectly asserts that the “exemption[s]” in § 1611(b)(1) “exclude[] some HHS programs from the definition of `Federal public benefits’”. While it is true that § 1611(b)(1) excludes certain HHS programs from the ambit of § 1611(a) — for example restricting eligibility from non-qualified aliens — it is false that those programs are excluded from the definition of “federal public benefit”. HHS explained:

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 … .” 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 § 1611(a) is a separate question conceptually. [Emphasis added.]

As a result, for nearly three decades, HHS has operated with an improperly narrow interpretation of “federal public benefit”.

What HHS Programs Are Federal Public Benefits Under This Interpretation?

HHS identified at least 44 programs that it administers that will now be considered “federal public benefits” under 8 U.S.C. § 1611, noting that this is not an exhaustive list. These programs include:

• Adoption Assistance;
• Administration on Developmental Disabilities (ADD) – States 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 (LIPHEAP);
• Medicare;
• Medicaid (except assistance for an emergency 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 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);
• Title X Family Planning Program;
• Head Start;
• Title IV-E Educational and Training Voucher Program;
• Community Services Block Grant (CSBG);
• Health Center Program;
• Substance Use Prevention, Treatment, and Recovery Services Block Grant;
• Community Mental Health Services Block Grant;
• Projects for Assistance in Transition from Homelessness Grant Program;
• Certified Community Behavioral Health Clinics;
• Mental health and Substance Use Disorder Treatment, Prevention, and Recovery Support Services Programs and Substance Use and Mental Health Services Administration;
• Title IV-E Prevention Services Program;
• Title IV-E Kingship Guardianship Assistance Program; and
• Health Workforce Programs not otherwise covered by the above (including grants, loans, scholarships, payments and loan repayments).

The programs in bold were not included in HHS’s 1998 interpretation notice, although that notice disclaimed that even for those that were included, it “does not mean … that all benefits or services provided by these programs are ‘federal public benefits’ and require verification”.

HHS stated that it “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.”

The agency only presented “a partial benefit-cost analysis of the notice” because of “uncertainty in the baseline share of program beneficiaries who are U.S. citizens and qualified aliens”. HHS anticipates that the revision will “result in improved services and access for U.S. citizens and qualified aliens”. A comprehensive economic analysis of the revision is pending.

End Notes

¹ Public Law 104-193, 8 U.S.C. § 1611

² Congress included a statement of national policy when enacting PRWORA in 1996, declaring that, “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.

³ 63 FR at 41659.

⁴ Id.