From: Subject: CW Policy Database - Policy Questions &; Answers Date: Wed, 23 Jun 2010 16:32:27 -0400 MIME-Version: 1.0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.acf.hhs.gov/j2ee/programs/cb/laws_policies/laws/cwpm/policy_dsp_pf.jsp?citID=45 X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.5931 CW Policy Database - Policy Questions &; = Answers

Child = Welfare Policy=20 Manual

June 23,=20 2010

8.4B  TITLE = IV-E,=20 General Title IV-E Requirements, Aliens/Immigrants

1. Question: Section = 403 (a) of=20 the Personal Responsibility and Work Opportunity Reconciliation Act = (PRWORA) (PL=20 104-193) sets a five year residency requirement for qualified aliens who = enter=20 the United States on or after August 22, 1996 and who make application = for=20 Federal means- tested programs. Section 403(c)(2)(F) of PRWORA lists = those=20 programs that are exempted from section 403(a) to include titles IV-B = and IV-E,=20 under certain circumstances; however, title XIX is not on the list of = programs=20 exempted from section 403(a) of PRWORA. Title IV-E eligible children are = categorically eligible for Medicaid. Must qualified alien children who = are=20 eligible for title IV-E meet the five year residency requirement to be = eligible=20 for title XIX?

Answer: = No. All=20 qualified alien children who are eligible for title IV-E retain their=20 categorical eligibility for Medicaid under title XIX, regardless of how = long=20 they have been in the United States. Section 402(a)(3) of the Social = Security=20 Act (as amended by PRWORA) requires States to certify, in their = Temporary=20 Assistance for Needy Families Plans, that "... the State will operate a = foster=20 care and adoption assistance program under the State plan approved under = part E,=20 and that the State will take such actions as are necessary to ensure = that=20 children receiving assistance under such part are eligible for medical=20 assistance under the State plan under title XIX."

The statute makes no distinction between children who are citizens = and=20 children who are qualified aliens. Thus, the law requires all title IV-E = eligible children to receive medical coverage under title = XIX.

  • Source/Date: ACYF-CB-PIQ-99-01 (1/14/99)=20
  • Legal and Related References: Social Security Act - Titles = IV-E and=20 XIX; The Personal Responsibility and Work Opportunity Reconciliation = Act of=20 1996 (PL 104-193)
2. Question: Are unaccompanied minor refugee children = eligible for=20 title IV-E payments for foster care?

Answer: = In order to=20 be eligible for foster care payments under title IV-E any child must = meet the=20 requirements of section 406(a) or of section 407 of the Social Security = Act (the=20 Act) (as such sections were in effect on July 16, 1996) except for his = removal=20 from the home of a relative (specified in section 406(a)), in addition = to=20 meeting the other requirements found in section 472(a) of the Act. If a = State is=20 able to document that the child meets the requirements found in the Act, = the=20 unaccompanied minor refugee child is eligible for title IV-E payment, = provided=20 he/she is a qualified alien.=20

One of the major problems, however, is that because the child is=20 unaccompanied, documentation is not ordinarily available to substantiate = the=20 child's age, financial need, and deprivation of parental support or care = by=20 reason of death of a parent, continued absence of the parent from the = home, or=20 physical or mental incapacity of a parent (45 CFR 233.90(c)).=20

In addition, the child must meet the requirements of section 472 (a)( = of the=20 Act. These requirements include, for example, the existence of a = voluntary=20 placement agreement entered into by the child's parent or legal guardian = or a=20 judicial determination that continuation of the child in his home would = be=20 contrary to his welfare. Another requirement is that the child either = received=20 aid under section 402 of the Act (as in effect on July 16, 1996) in the = month in=20 which the agreement or judicial determination was made, or would have = received=20 aid in or for that month if an application had been made and the child = had been=20 living with a specified relative within six months prior to the month in = which=20 the agreement was made or the judicial proceeding was initiated.=20

Therefore, although the unaccompanied minor refugee child may clearly = be in=20 need of foster care upon his arrival in this country, he must also meet = the=20 eligibility requirements of title IV-E (section 472(a)) if Federal = financial=20 participation is claimed by the State. If it can be documented that he = meets the=20 requirements, then he would be eligible for title IV-E payments.=20

The circumstances of a refugee child who comes into the country with = his=20 family are different from the unaccompanied child in that the first = child is=20 "living with" his family. Assuming the degree of kinship is that cited = in=20 section 406(a) of the Act, this accompanied child could later become = eligible=20 for title IV-E foster care payments, if all criteria in section 472(a) = are met=20 and the documentation of age, need and deprivation can be reviewed in = relation=20 to the home (in the U.S.) from which he is removed.

  • Source/Date: ACYF-CB-PIQ-83-07 (10/24/83); = ACYF-CB-PIQ-99-01=20 (1/14/99)=20
  • Legal and Related References: Social Security Act - = sections 406=20 (a), 407 (as in effect on July 16, 1996) and 472; 45 CFR 233.90=20
3.=20 Question: = It is our=20 understanding that qualified aliens, regardless of whether they entered = the=20 United States before or after the date of enactment of the Personal=20 Responsibility and Work Opportunity Reconciliation Act (PRWORA), August = 22,=20 1996, are eligible for Federal foster care maintenance and adoption = assistance=20 payments. Is this a correct interpretation?

Answer: = Not=20 entirely. If the child is a qualified alien who is placed with a = qualified alien=20 or United States citizen, the date the child entered the United States = is=20 irrelevant. However, if the child is a qualified alien who entered the = United=20 States on or after August 22, 1996 and is placed with an unqualified = alien, the=20 child would be subject to the five-year residency requirement for = Federal=20 means-tested public benefits at section 403(a) of PRWORA unless the = child is in=20 one of the excepted groups identified at section 403(b). As a general = matter, we=20 do not expect these situations to arise very often. In the event such = situations=20 do arise, State or local funds may be used to support these = children.

  • Source/Date: ACYF-CB-PIQ-99-01 (1/14/99)=20
  • Legal and Related References: Social Security Act- sections = 472(a)(4) and 473(a)(2)(B); The Personal Responsibility and Work = Opportunity=20 Reconciliation Act of 1996 (PL 104-193)
4. Question: Does = the welfare=20 reform legislation concerning benefits for immigrants/aliens have any = impact on=20 title IV-E eligibility for legal aliens, persons permanently residing = under=20 color of law (PRUCOL), etc.?

Answer: = Yes. Alien=20 children must be qualified aliens in order to be eligible for Federal = foster=20 care maintenance and adoption assistance payments and independent living = services. Not all legal aliens or aliens with PRUCOL status necessarily = meet the=20 criteria for qualified alien status.

  • Source/Date: ACYF-CB-PIQ-99-01 (1/14/99)=20
  • Legal and Related References: Social Security Act- section=20 472(a)(4)and 473(a)(2)(B); The Personal Responsibility and Work = Opportunity=20 Reconciliation Act of 1996 (PL 104-193)
5. Question: Does = title IV of=20 the Personal Responsibility and Work Opportunity Reconciliation Act = (PRWORA)=20 supersede the provision in section 472(a) of the Social Security Act = (the Act)=20 which affords title IV-E eligibility to certain alien children who would = be=20 otherwise eligible for title IV-E but for their disqualification for the = Aid to=20 Families with Dependent Children (AFDC) program due to their alien=20 status?

Answer: = Yes. States=20 must follow the rule in PRWORA section 401(a) that: "(n)otwithstanding = any other=20 provision of law ... an alien who is not a qualified alien ... is not = eligible=20 for any Federal public benefit..."

  • Source/Date: ACYF-CB-PIQ-99-01 (1/14/99)=20
  • Legal and Related References: Social Security Act - section = 472=20 (a); tThe Personal Responsibility and Work Opportunity Reconciliation = Act of=20 1996 (PL 104-193)
6. Question: Section 108 (d) of the Personal = Responsibility and Work=20 Opportunity Reconciliation Act (PRWORA) (as amended by the Balanced = Budget Act=20 of 1997, P.L. 105-33) links eligibility for Federal foster care and = adoption=20 assistance to the Aid to Families with Dependent Children (AFDC) program = as it=20 was in effect on July 16, 1996. Section 401(a) of PRWORA limits Federal = public=20 benefits to "qualified aliens." The term "qualified alien" was not = defined or in=20 use on July 16, 1996. How are States to apply these two = provisions?

Answer: = Alien=20 children must be eligible for AFDC under a State's July 16, 1996 plan = and must=20 also meet the PRWORA definition of "qualified alien" to be eligible for = Federal=20 foster care maintenance or adoption assistance (except that children = receiving=20 adoption assistance pursuant to agreements signed before August 22, 1996 = may=20 continue to receive such assistance).

  • Source/Date: ACYF-CB-PIQ-99-01 (1/14/99)=20
  • Legal and Related References: Social Security Act - Title = IV-E; The=20 Personal Responsibility and Work Opportunity Reconciliation Act of = 1996 (PL=20 104-193)
7. Question: Can an unqualified alien become the foster or = adoptive=20 parent of a title IV-E eligible child?

Answer: = Yes.=20 However, the unqualified alien foster or adoptive parent of a child who = entered=20 the United States on or after 8/22/96 would be eligible to receive title = IV-E=20 payments on behalf of the child only if the child is a United States = citizen, is=20 in one of the excepted groups at section 403(b) the Personal = Responsibility and=20 Work Opportunity Reconciliation Act (PRWORA), or has lived in the United = States=20 as a qualified alien for five years.=20

This interpretation is consistent with section 401(a) of PRWORA, = which=20 requires aliens to be qualified in order to receive Federal public = benefits.=20 Foster and adoptive parents are not recipients of Federal foster care = and=20 adoption assistance payments; rather, foster care and adoption = assistance=20 payments are made on the child's behalf to meet his or her = needs.

  • Source/Date: ACYF-CB-PIQ-99-01 (1/14/99)=20
  • Legal and Related References: The Personal Responsibility = and Work=20 Opportunity Reconciliation Act of 1996 (PL 104-193) =
8. Question: Both = sections=20 401(c)(1)(A) and 411(c)(1)(A) of the Personal Responsibility and Work=20 Opportunity Reconciliation Act (PRWORA) (PL 104-193) define Federal, = State, and=20 local public benefits to include professional or commercial licenses. Is = a=20 foster care or adoptive home license/approval considered a Federal, = State, or=20 local public benefit?

Answer: = No. Foster=20 care and adoptive home licenses/approvals are not considered a Federal, = State or=20 local public benefit under sections 401(c)(1)(A) and 411(c)(1)(A) of = PRWORA=20 because they are not professional or commercial licenses.

  • Source/Date: ACYF-CB-PIQ-99-01 (1/14/99)=20
  • Legal and Related References: The Personal Responsibility = and Work=20 Opportunity Reconciliation Act of 1996 (PL 104-193) =
9. Question: Are = States required=20 to verify the citizenship or immigration status of individuals receiving = services or payments under title IV-E?

Answer: = States are=20 required to verify the citizenship or immigration status of all children = receiving Federal foster care maintenance payments, adoption assistance=20 payments, or independent living services.=20

States are not required to verify the citizenship or alien status of = foster=20 or adoptive parents, with one exception. States must verify the = citizenship or=20 immigrant status of potential foster or adoptive parents when placing a=20 qualified alien child who entered the United States on or after 8/22/96 = and has=20 been in the United States as a qualified alien for less than five years. = In=20 order to be exempt from the five year residency requirement imposed at = section=20 403 of the Personal Responsibility and Work Opportunity Reconciliation = Act, a=20 qualified alien child must be placed with a citizen or a qualified = alien; hence,=20 citizenship/alien status of prospective foster or adoptive parents must = be=20 verified in such circumstances.

  • Source/Date: ACYF-CB-PIQ-99-01 (1/14/99)=20
  • Legal and Related References: Social Security Act - Title = IV-E; The=20 Personal Responsibility and Work Opportunity Reconciliation Act of = 1996 (PL=20 104-193)
10. Question: Can you explain section 472(a)(4) of the = Social=20 Security Act (the Act) and how it applies to Aid to Families with = Dependent=20 Children (AFDC) eligibility under title IV-E?

Answer: = Section=20 472(a)(4) of the Act is no longer applicable to the title IV-E program. = This=20 provision essentially "deemed" certain alien children who were = "temporary" legal=20 residents as eligible for AFDC, thereby granting them access to the = title IV-E=20 program if other eligibility requirements were met. This provision was = made=20 obsolete by title IV of the Personal Responsibility and Work Opportunity = Reconciliation Act (PRWORA) of 1996 (Public Law 104-193). Under PRWORA, = a child=20 must be a qualified alien or a citizen in order to receive title IV-E = foster=20 care maintenance or adoption assistance payments. (See Child Welfare = Policy=20 Manual section 8.4B Q&A5 and 6).

  • Source/Date: 12/31/07=20
  • Legal and Related References: Social Security Act =96 = section=20 472(a)(4), Personal Responsibility and Work Opportunity Reconciliation = Act of=20 1996 (Public Law 104-193) =96 section 401(a), Child Welfare Policy = Manual=20 section 8.4B Q&A5 and 6=20