Current through Reg. 49, No. 38; September 20, 2024
(a)
Purpose. The purpose of this section is to provide uniform Department guidance
on Section 401(a) of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1986 (PRWORA), which provides that an alien who is not a
Qualified Alien is not eligible for any federal or state public
benefit.
(b) Definitions. The words
and terms in this chapter shall have the meanings described in this subsection
unless the context clearly indicates otherwise. Capitalized words used herein
have the meaning assigned in the specific Chapters and Rules of this title that
govern the program under which program eligibility is seeking to be determined,
or assigned by federal or state law.
(1)
Nonprofit Charitable Organization--An entity that is organized and operated for
purposes other than making gains or profits for the organization, its members
or its shareholders, and is precluded from distributing any gains or profits to
its members or shareholders; and is organized and operated for charitable
purposes.
(2) Public
Organization--An entity that is a Unit of Government or an organization
established by a Unit of Government.
(3) Qualified Alien--A person that is not a
U.S. Citizen or a U.S. National and is described at
8 U.S.C. §
1641(b) or (c).
(4) State--The State of Texas or the
Department, as indicated by context.
(5) Subrecipient--An entity that receives
federal or state funds passed through the Department. The definition does apply
to a vendor having been procured by the Department to determine eligibility for
federal or state funds and as otherwise reflected in the Contract.
(6) Systematic Alien Verification for
Entitlements (SAVE)--Automated intergovernmental database that allows
authorized users to verify the immigration status of program
applicants.
(c)
Applicability for Federal Funds.
(1) The
determination of whether a federal program, or activity type under a federal
program, is a federal public benefit for purposes of PRWORA is made by the
federal agency with administration of a program or activity, not by the
Department. Only in cases in which the federal agency has given clear
interpretation that it requires PRWORA to be applicable to a program or
activity will this rule be applied by the Department.
(2) The requirements of this section are
applicable to Subrecipients of federal funds passed through the Department for
which the federal program has made a determination that the activity performed
by the Subrecipient requires compliance with PRWORA. However, certain
exemptions under PRWORA may exist on a case specific, or activity specific
basis as further described in this rule.
(d) Applicability for State Funds. The
Department has determined that State Housing Trust Funds that are provided to a
Subrecipient that is a Public Organization or acting on behalf of a Public
Organization to be distributed directly to individuals, are a state public
benefit.
(e) No Applicable
Exemptions under PRWORA. If no exemptions under PRWORA are applicable to the
Subrecipient or to the activity type, as further detailed in this section, then
the Subrecipient must verify U.S. Citizen, U.S. National, or Qualified Alien
status ("legal status") using SAVE and evaluate eligibility using the rules for
the applicable program under this title.
(f) Exemptions Under PRWORA.
(1) In accordance with
8 U.S.C. §
1642(d), a Subrecipient that
is a Nonprofit Charitable Organization receiving funds from the Department for
which the federal program or activity requirement is that a household be
verified for eligibility status, is not required to verify that an individual
is a U.S. Citizen, U.S. National, or Qualified Alien.
(2) For activities in the Low Income Home
Energy Assistance Program, Low Income Household Water and Wastewater Program,
and the Department of Energy Weatherization Program performed by a Nonprofit
Charitable Organization (identified as a Private Nonprofit Organization in the
Subrecipient's Contract with the Department), where the Department must ensure
that an individual is a U.S. Citizen, U.S. National, or Qualified Alien, a
Subrecipient must ensure compliance with the verification requirement through
electing to proceed under subparagraph (A), (B), or (C) of this paragraph.
Subrecipients will submit in writing to the Director of Community Affairs or
his/her designee no later than six months prior to the beginning of a Contract
Term its election under one of the subparagraphs in this subsection. For
existing Subrecipients, an election made under this subsection does not need to
be restated annually, but will continue from the election made in the prior
year unless the Subrecipient notifies the Department otherwise in writing
before the deadline. For new Subrecipients, if the election must be made with
the Application or if there is no Application before Contract execution. If the
existing Subrecipient does not notify the Department of the election in writing
by the deadline but refuses to abide by its election the Subrecipient will not
be eligible to perform as a Subrecipient in the program as further provided for
in paragraph (3) of this subsection. Failure by the Subrecipient to select an
option by the deadline is good cause for nonrenewal or termination of a
Contract.
(A) Subject to affirmation by U.S.
Health and Human Services, the Subrecipient may voluntarily elect to request
from the household and transmit to the Department, or a party contracted by the
Department, sufficient information or documentation so that the Department is
able to ensure an individual is a U.S. Citizen, U.S. National, or Qualified
Alien.
(i) The Nonprofit Charitable
Organization must provide and maintain a sufficient method of electronic
transmittal system that allows for such information to be provided to the
Department or its contractor, and ensures the secure safekeeping of such paper
and/or electronic files, and receipt of subsequent response back from the
Department or its contracted party.
(ii) Upon receipt of the results of the
verification performed by the Department, or its contracted party, the
Nonprofit Charitable Organization must utilize those results in determining
household eligibility, benefits, income, or other programmatic designations as
required by applicable federal program guidance or as determined by other
program rules under this title.
(B) The Subrecipient may voluntarily elect to
perform verifications through the SAVE system, as authorized through the
Department's access to such system.
(C) The Subrecipient may voluntarily elect to
procure an eligible qualified organization to perform such verifications on
their behalf, subject to Department approval.
(i) The Nonprofit Charitable Organization
and/or its procured provider must maintain sufficient evidence and
documentation that verification has taken place so that such verification can
be confirmed by the Department, and must ensure the secure safekeeping of such
paper and/or electronic files.
(ii)
Upon receipt of the results of the verification performed by the procured
provider, the Nonprofit Charitable Organization must utilize those results in
determining household eligibility, benefits, income, or other programmatic
designations as required by applicable federal program guidance or as
determined by other program rules under this title.
(3) Other
activities that do not require verification by Public Organizations or
Nonprofit Charitable Organizations are described in the August 5, 2016, HUD,
HHS, and DOJ Joint Letter Regarding Immigrant Access to Housing and
Services.
(g) The
Department may further describe a Subrecipient's responsibilities under PRWORA,
including but not limited to use of the SAVE system, in its Contract with the
Subrecipient. Nothing in this rule shall be construed to be a waiver,
ratification, or acceptance of noncompliant administration of a program prior
to the rule becoming effective.
(h)
A Subrecipient must establish that an individual is a U.S. Citizen, U.S.
National, or Qualified Alien using the documents deemed acceptable by the
Department, and which have been published on the Department's website. This
information may be updated by the Department from time to time, and highly
encourages Subrecipients or other concerned parties to contact the Department
if revisions are suggested.
