Second Comments for Possible Sign-On; Same Deadline of 2:30 pm EST Monday

IMMIGRANTS & PUBLIC BENEFITS

E-Mail Benefits Update

SECOND COMMENTS FOR POSSIBLE SIGN-ON; SAME DEADLINE OF 2:30 PM EST MONDAY
No. 98-18, October 1, 1998

This is the second sign-on we have sent out today—the first summarized comments to the Immigration and Naturalization Service (INS) proposed rule on Verification of Eligibility.

This e-mail contains NILC's comments on the Department of Health and Human Services (HHS) notice interpreting "federal public benefit." Comments are due to HHS by close of business Monday, October 5th. (Both the INS proposed rule on verification and the HHS notice interpreting "federal public benefit" were published on August 4, 1998 with a 60-day comment period ending October 5).

If you would like to sign on to these HHS comments, please contact Concepcion Romero of the National Council of La Raza by 2:30 p.m. Monday, Eastern time. Be sure to tell her whether you are signing on to INS comments or to the HHS comments, or to both comments.

Concepcion can be reached at: (202) 776-1782.
Her fax number is: (202) 776-1792
E-mail: cromero@nclr.org

She needs your name, title, organization, phone, fax, address, and a statement that your organization would like to sign on to the NILC HHS federal public benefit comments.

NILC'S Comments on the Department of Health and Human Services Notice Interpreting "Federal Public Benefit"

October 5, 1998

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

Re: Notice of Interpretation of "Federal Public Benefit"

Dear Ms. Rathgeb:

The following are our comments provided in response to the notice with comment period, published in the Federal Register on August 4, 1998. These comments are submitted on behalf of the organizations listed at the end of this letter.

We commend the Department for acting quickly to clarify the definition of federal public benefit as applied to HHS programs. It is obvious that much thought has been devoted to parsing the difficult wording of the definition of "federal public benefit" contained in section 401(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). The result is probably the best and most accurate explanation of the meaning of "federal public benefit" in PRWORA that we have seen to date.

Nevertheless, we are disappointed that certain programs that do not appear to provide benefits that fall within the definition as explained by the Notice are nevertheless included in the list of federal public benefits. We are also concerned about how the Department will proceed with certain programs that are on the list to ensure that:

(1) Only applicants who will themselves receive assistance will be required to verify their status; and

(2) No verification is imposed on assistance and activities provided by the listed programs that do not fall within the definition of federal public benefit.

Our specific comments are as follows:

A. The Low Income Home Energy Assistance Program (LIHEAP) should not be designated a federal public benefit because it does not meet the PRWORA statutory definition.

To meet the definition of a "federal public benefit" under section 401(c)(1) of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, assistance must either fall within subparagraph (A), "any grant, contract, loan, professional license, or commercial license ..." or within subparagraph (B), "any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit ...." The Low Income Home Energy Assistance Program (LIHEAP) does not fall within either subparagraph of section 401(c)(1), and so should not be designated a federal public benefit.

LIHEAP pays the utility bills of indigent individuals to enable them to maintain home heating in the winter and cooling in the summer. It is not a grant, contract, loan or license under part (A) of the definition. It also does not provide any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, or unemployment benefit. Nor is it similar to any of those benefits.

It should be noted that "welfare," as used in PRWORA, is apparently intended to refer only to cash assistance to indigent persons. Congress cannot have intended that term to include noncash assistance or it would not have felt it necessary to list some of the other items in the subparagraph. Energy assistance is no more similar to "welfare," than are public or assisted housing, health, or food assistance.

B. Only the immigration status of the child should be relevant to eligibility for benefits under the Child Care and Development Fund/Child Care Development Block Grant (CCDF/CCDBG).

HHS should make clear in its operating instructions that it is the immigration status of the child, not of his or her parents, that governs eligibility for CCDF child care. PRWORA's immigrant restrictions apply only to "applicants" for federal public benefits, defined in the INS Verification of Eligibility for Public Benefits proposed rule as "any individual applying to receive or to continue to receive a public benefit . . . The applicant to be verified is the individual who will receive the public benefit should the application be granted. A person applying for a public benefit on behalf of another . . . is not an applicant unless that person is seeking a public benefit for himself or herself." 63 Fed. Reg. 41662, 41676 (August 4, 1998).

Under the regulations governing CCDF, only children are eligible for child care services. See 45 CFR §§ 98.20, 98.50(b)(1). The entire thrust of the CCDF program is to provide quality care and developmental services for the children, not adults, as evidenced by the requirements for child care quality control, health and safety, and licensing.

The issue of whether a child or his or her parents are the recipient of child care services was addressed in Ruiz v. Blum, 549 F. Supp. 871 (S.D.N.Y. 1982). In Ruiz, a citizen child won access to Title XX-funded day care services, which had been denied by the city and state of New York because of the undocumented immigration status of the child's mother. In ordering the access to day care benefits of citizen and permanent resident children, the District Court reasoned that "the child is the primary beneficiary of day care benefits ...." even though the child's parents obviously also receive some utility from the care received. Id. at 877. The Court said, "denial of the service based solely on his mother's status is an impermissible condition that is inconsistent with an underlying purpose of Title XX of the Act that eligible children receive day care services ...." Id.

The same reasoning applies to CCDF-funded benefits where, as in the program at issue in Ruiz, "a consistent and unmistakable theme reflected by the regulations is that the day care program must be designed to meet the needs of the child." Ruiz v. Blum at 876. The CCDF goals and purposes emphasize "child care programs and policies," that "increase the availability, affordability, and quality of child care services." 42 CFR § 98.1.

Perhaps the best way to understand that the child is the recipient of CCDF assistance is to consider what would happen to children who were denied child care assistance because of their parent's immigration status. Experience tells us that the parents of such children would be forced to work, regardless of the availability of child care, leaving their children with unlicensed supervision, or even worse, with no supervision at all.

Because the child is the recipient CCDF funded assistance, HHS should clarify that only the child's immigration status is relevant to eligibility.

C. HHS operating instructions should make clear that CCDF/CCDBG programs targeted to communities do not constitute "federal public benefits."

Although the majority of CCDF/CCDBG services are provided to family eligibility units in the form of child care subsidies, significant CCDF programs are targeted not to families but to communities, and HHS must take care in its operating instructions to exclude these programs from the definition of "federal public benefits." These include the money used for administrative activities such as public education, and state capacity development activities to improve the quality of child care, which include resource and referral services. With regard to the latter, the proposed TANF rule specifically excludes child care information, referral and counseling services from the TANF definition of assistance to which time limits apply.

D. HHS should clarify that the majority of the Title XX/Social Services Block Grant (SSBG) programs are not federal public benefits.

The notice includes the Title XX/Social Services Block Grant (SSBG) on the list of federal public benefits. In explaining the definition of federal public benefit, HHS clarifies that a benefit falls within the term when it is provided to an "individual, household, or family eligibility unit."

Conversely, a benefit is not a federal public benefit when it is "generally targeted to communities" or "targeted to certain populations based on their characteristics."

Applying this distinction to SSBG, the majority of Title XX benefits are provided to communities, not to individuals, households, or family eligibility units and therefore are not federal public benefits. Often, Title XX funds are combined with many other funding sources to provide a benefit, to the extent that frequently the Title XX recipient, and even the benefit provider, is unaware of the source of funds.

HHS's operating procedures should recognize the practical difficulties that this presents to benefit granting agencies attempting to provide assistance, often on limited budgets. At some point in the chain of grants and regrants, any assistance provided by Title XX must lose its character of being provided to an individual, family, or household eligibility unit. In the operating instructions, HHS should caution agencies that many benefits or services under the SSBG do not constitute "federal public benefits."

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