REVISION - Guidance on the Interpretation of "Federal Public Benefits" Under the Welfare Reform Law
THIS CONTAINS INFORMATION ISSUED BY THE U.S. ADMINISTRATION FOR CHILDREN AND
FAMILIES IN LIHEAP INFORMATION MEMORANDUM TRANSMITTAL NO. LIHEAP-IM-99-10,
DATED 6/15/99
TO: LOW INCOME HOME ENERGY ASSISTANCE PROGRAM (LIHEAP)
GRANTEES AND OTHER INTERESTED PARTIES
SUBJECT: REVISION - 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 41658) 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; 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"; LIHEAP Information
Memorandum 97-25, dated 8/28/97; and LIHEAP
Information Memorandum 98-25, dated August 6,
1998.
PURPOSE: TO AMEND ADVICE given to LIHEAP grantees about
the definition of "Federal Public Benefits"
for non-qualified aliens under the 1996 welfare
reform law for HHS programs, as it applies to use
of LIHEAP funds for weatherization of multi-unit
buildings.
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. In addition, PRWORA
restricts the access of certain categories of
immigrants to specified Federal benefits,
including some benefits administered by the
Department of Health and Human Services (HHS).
On August 26, 1997, HHS published a notice in the
Federal Register (62 FR 45256) providing guidance
on the definition of "Federal Means-Tested Public
Benefits" (applicable to benefits for "qualified
aliens") under PRWORA for HHS programs. On August
4, 1998, HHS published a notice in the Federal
Register (63 FR 41658) entitled "Personal
Responsibility and Work Opportunity Reconciliation
Act of 1996 (PRWORA); Interpretation of 'Federal
Public Benefit'", providing guidance on the
definition of "Federal Public Benefits"
(applicable to benefits for "non-qualified
aliens"). (See LIHEAP Information Memoranda 97-
25, dated 8/28/97 and LIHEAP Information
Memorandum 98-25, dated 8/6/98, respectively,
for more information.)
CONTENT: We have received inquiries about the treatment
of LIHEAP funds used for weatherization
of multi-unit buildings pursuant to the HHS notice
published in the Federal Register on August 4,
1998 (63 FR 41658), and LIHEAP Information
Memorandum 98-25, dated August 6, 1998.
The HHS Federal Register notice identified 31
programs that provide Federal public benefits, and
LIHEAP is one of those programs. As noted in the
HHS Federal Register notice, not all of the
benefits or services provided by these programs
are Federal public benefits. The use of LIHEAP
funds to weatherize multi-unit buildings was given
as an example of a benefit that is not a Federal
public benefit, and, therefore, providers would
not be required to verify the alienage and
citizenship of residents. The reasoning given in
the HHS Federal Register notice was incorrect for
why this benefit is not a Federal public benefit,
but the conclusion is correct: LIHEAP funds used
to weatherize multi-unit buildings are not Federal
public benefits, and providers should not verify
alien and citizen eligibility.
To be considered a Federal public benefit, the HHS
Federal Register notice stated that the benefit
must meet a two-part test. First, it must be
provided to an individual, household or family
eligibility unit; and second, the individual,
household or family must, as a condition of
receipt, meet specified criteria, such as income
or residency in order to receive the benefit. The
HHS Federal Register notice stated that the use of
LIHEAP funds to weatherize multi-unit buildings
was not a Federal public benefit because the
eligibility of individuals is not considered in
determining whether such funds will be used to
improve the building, which is the second part of
the test. In fact, LIHEAP grantees are allowed to
use Department of Energy rules applicable to the
DOE Low Income Weatherization Assistance Program
(LIWAP) for their LIHEAP funds spent on
weatherization. Under one of those rules, 2/3 of
the residents of a multi-unit building must meet
income eligibility criteria in order for the
building to be weatherized with DOE or LIHEAP
funds. Accordingly, LIHEAP Information Memorandum
98-25, dated 8/6/98, clarified that determinations
would need to be made to ensure that 2/3 of the
units meet the citizenship and alienage criteria
for assistance. This has caused some confusion.
It has now been determined that weatherization of
multi-unit buildings is not a Federal public
benefit because it does not meet the first part of
the test, that is, it is not a benefit provided to
an individual, household or family eligibility
unit. Weatherization of a multi-unit building is
a benefit conferred on a community of people, much
in the same way as benefits provided under Title
I, Part A of the Elementary and Secondary
Education Act (ESEA) are benefits conferred on a
student body at a school. Under Title I of ESEA,
funds are provided directly to a school system
which then uses those funds to improve services
that are provided by the individual schools to
individual students. The eligibility of a school
to receive this benefit is based in part on the
income eligibility of a portion of students
attending the school. The Conference Report to
PRWORA specifically stated that it was the intent
of the conferees that Title I of ESEA not be
considered a Federal public benefit "because the
benefit is not provided to an individual,
household, or family eligibility unit." (H.Rept.
No. 104-725 at page 380 (1996)).
We believe this same reasoning should be applied
to the use of LIHEAP funds for the weatherization
of multi-unit buildings.
Based on the above analysis, we are withdrawing
that portion of our LIHEAP Information Memorandum
98-25 that states that residents in 2/3 of the
units must be qualified aliens before the building
could be weatherized. As stated above, providers
do not need to verify alienage or citizenship of
any of the building residents, since LIHEAP funds
for weatherization of a multi-unit building are
not considered Federal public benefits.
This guidance, however, does not apply to single
family dwelling units. Weatherization services
performed on or provided to single-family dwelling
units are considered to be Federal public
benefits, because they are provided to an
individual, household or family eligibility unit.
Therefore, weatherization services performed on or
provided to a single-family dwelling unit are
subject to the alien verification requirements.
IMPLEMENTATION OF ALIEN VERIFICATION REQUIREMENTS
We would also like to remind you that agencies
providing Federal public benefits must be
in full compliance with the alien verification
requirements within 2 years of publication of a
Justice Department final rule. Until a final rule
is published, verification of alien status may be
carried out using the Justice Department's
proposed rule issued on 8/4/98 (63 FR 41662), in
conjunction with 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; but verification is
not required by Federal rules at this time. A
copy of Justice's proposed rule and the Interim
Guidance may be obtained from the Federal Register
website at "www.access.gpo.gov/nara".
In addition to questions about the application of
the "Federal Public Benefits" definition to the
weatherization of multi-unit buildings, HHS
received several other comments on its August 4,
1998 Federal Register notice as it relates to
LIHEAP and several of the other HHS programs. We
are reviewing these comments and considering
whether changes to the proposed rule should be
made. We anticipate publicly addressing comments
on the Notice shortly.
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
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