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| CHC in Davenport, Iowa |
Over the weekend, I learned third-hand that employees at a network of Federally Qualified Health Centers (FQHCs) in New Jersey had been told by management that the feds had forbidden them to treat undocumented immigrants.
That conclusion may be somewhat premature, but it’s grounded in abrupt and sweeping administrative action. In its latest barbaric assault on immigrants, the Trump administration has issued a series of orders banning access to most of the narrow range of federally funded benefits and programs not already off-limits to the undocumented - or to the many categories of lawfully present immigrants who are not “qualified aliens” (i.e., green card card holders, refugees, asylees and a few other categories*).
On July 10, three federal agencies — HHS, DOL and Education — issued notices (here is HHS’s) cutting off access for most non-green-card-holding immigrants to various benefits and services that had been excepted from a sweeping ban established in 1996. HHS’s list of benefits that will lose excepted status is as follows:
Certified Community Behavioral Health Clinics
Community Mental Health Services Block Grant
Community Services Block Grant (CSBG)
Head Start
Health Center Program
Health Workforce Programs not otherwise previously covered (including grants, loans, scholarships, payments, and loan repayments).
Mental Health and Substance Use Disorder Treatment, Prevention, and Recovery Support Services Programs administered by the Substance Abuse and Mental Health Services Administration
Projects for Assistance in Transition from Homelessness Grant Program
Substance Use Prevention, Treatment, and Recovery Services Block Grant
Title IV-E Educational and Training Voucher Program
Title IV-E Kinship Guardianship Assistance Program
Title IV-E Prevention Services Pro
In response, the National Association of Community Health Centers (NACHC) noted in a statement that “Federal law (42 USC 254b(a)(1)) requires Community Health Centers (CHCs) to accept “all residents of the area served by the center.”
That’s true, and it speaks to a distinction that HHS and DOJ have voided (or attempted to void) between programs that serve individuals who meet certain criteria, such as age or income, and those that are generally targeted to communities. Just how far the administration will go in controlling access to health centers and other programs on the list above remains to be seen. As discussed below, health centers and other benefit providers on the list are not newly required to verify immigration status (yet).
The law that the Trump administration is reinterpreting is a precursor of today’s xenophobic frenzy: the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), a.k.a. the “welfare reform bill” signed by President Clinton. PRWORA defined the kinds of benefits that immigrants who are not “qualified aliens” would be banned from, along with a handful of exceptions. As with so many laws, however, the definitions left wide room for interpretation. In a 1998 notice in effect until this week, the Clinton HHS excepted certain classes of benefits from the immigrant ban, based on interpretation of these two core definitions in PRWORA (8 U.S. Code §1611 (c) (1) ):
Except as provided in paragraph (2), for purposes of this chapter the term “Federal public benefit” [from which all but “qualified aliens” would be excluded, with narrow exceptions] means—
(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.
For (A), the 1998 notice excepted block grants to states, reasoning that given the context in which “grants” appears — with loans, contracts, licenses, etc. — “the term ‘grant’ refers to financial awards to individuals.”
For (B), Clinton’s HHS ruled that benefits “provided to an individual, household, or family eligibility unit” “do not include benefits that are generally targeted to communities or specified sectors of the population.” That is, only benefits “that mandate ineligibility for individuals, households or families that do not meet certain criteria, such as a specified income level or a specified age” are included in the ban.
Note that the law defining community health centers’ mission, cited by NACHC above, neatly jibes with that carve-out, as health centers are specifically “targeted to communities” and charged with serving all residents in their catchment area.
In the July 10 notice (now entered in the federal register), RFK Jr.’s HHS contemptuously swats the Clinton era exceptions aside, asserting, “None of the Notice’s line-drawing about the right type of criteria is grounded in the statutory text.”
That’s probably debatable, and may be challenged in court, but it may also be moot. In a July 11 order, Attorney General Bondi, clothing herself in the “sole and unreviewable discretion” that PRWORA accords the AG to except benefits from the ban, declares that she “has chosen not to except any benefits from PRWORA beyond those excepted by the statute itself.”
The arrogance is breathtaking, as PRWORA plainly envisions that exceptions will be granted, e.g., those that “are necessary for the protection of life or safety.” Bondi waves such criteria away in favor of the administration’s ruling passion:
Although the Attorney General has the authority to except certain benefits from PRWORA, the decision to do so is expressly committed to her sole and unreviewable discretion. See, e.g., 8 U.S.C. 161 l(b)(l)(D). The Attorney General has concluded, in the exercise of that discretion, that the benefits of creating additional exceptions to PRWORA, beyond those set forth in the statute itself**, are outweighed by the risks of creating incentives for unlawful migration by allowing access to such programs to individuals who are not "qualified aliens" as defined by PRWORA.
The provision that Bondi cites above, 8 U.S.C. 161 l(b)(l)(D), is worth reviewing in full, as it appears to be the basis of the most important class of exceptions to the ban established by the 1998 order. Paragraph (D) excepts:
Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified by the Attorney General, in the Attorney General’s sole and unreviewable discretion after consultation with appropriate Federal agencies and departments, which (i) deliver in-kind services at the community level, including through public or private nonprofit agencies; (ii) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient’s income or resources; and (iii) are necessary for the protection of life or safety.
Elaborating on that exception, as noted above, the 1998 notice excepted “benefits that are generally targeted to communities or specified sectors of the population (e.g., people with particular physical conditions, such as a disability or disease; gender; general age groups, such as youth or elderly).
Sound reasonable? The catch is in discretion — of the agency head, and ultimately of the attorney general. And at the current administration’s discretion, the overwhelming, dominant public interest is in keeping undocumented immigrants out. RFK Jr.’s cruel, subservient and illogical rationale (do people cross the border illegally to obtain the few crumbs of benefits available to them?) echoes Bondi’s:
President Trump has similarly issued numerous Presidential actions that reflect the will of the American people that aliens should not burden our public benefits system and that our public benefits system should not serve as a magnet for illegal immigration. This Administration recognizes that it is ‘‘it is national policy that ‘aliens within the Nation’s borders not depend on public resources to meet their needs,’ and that ‘it is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits.’’’ Executive Order 14218, § 1, 90 FR 10581 (quoting PRWORA, alterations omitted).
It is important to note that the HHS notice does not resolve the discrepancy between health centers’ mandate to serve an entire community and their inclusion in the ban on serving immigrants who are not “qualified aliens.” Health centers do not ask for verification of immigration status, and the notice refrains from requiring them to, even as it deems their services a “federal public benefit” subject to the ban. The notice acknowledges:
While verification requirements are related to a practical effectuation of the prohibition set forth in § 1611(a), they are conceptually distinct from a proper definition of ‘‘Federal public benefit.’’ Thus, the Department is not formally revising the aspects of the 1998 Notice that touch on PRWORA’s verification requirements at this time...
Even if PRWORA and related regulatory activity do not mandate an entity to conduct verification of the immigration status of a person applying for benefits, nothing in the statute prohibits such an entity from conducting verification. See 8 U.S.C. 1642. Pending further regulation and/or guidance on the situations in which verification is required, all entities that are part of HHS’s administration of public benefits should pay heed to the clear expressions of national policy described above.
“Pay heed” — and carry on as before? With regard to verification, the 1998 notice asserts, “Programs that are primarily designed to target and provide services to communities should not be burdened with new verification procedures merely because they may include some services that flow more directly to the individual, household or family. It exempts from verification “nonprofit charitable organizations; the provision of emergency medical care and certain other immunizations and treatments; the protection of certain battered aliens, and the provision of in kind, community based services that are not contingent on income or resources and are necessary for the protection of life and safety.”
Verification aside, with the “conceptually distinct” ban in place, the chill on health centers and other health programs may be pervasive for the undocumented — and other immigrants with legal status that renders them vulnerable to ICE’s rampages. In effect, ICE may provide the “verification” and so enforce the ban. Just as HHS and DOJ now blithely wave aside longstanding administrative guidance, ICE and other agencies engaged in immigration enforcement have already waved aside the already-porous constraints on their operations in “sensitive locations,’ including healthcare facilities.
A 2021 review of Health Care Sanctuaries by Medha D. Makhlouf, published in the Yale Journal of Health Care Policy, Law and Ethics, cites an ICE FAQ asserting an intent to “enhance public understanding and trust, and to ensure that people seeking to participate in activities or utilize services provided at any sensitive location are free to do so, without fear or hesitation” — e.g., at “sensitive locations” including not only hospitals but “doctors’ offices, accredited health clinics, and emergent or urgent care facilities.”
Makhlouf emphasizes that ICE and CBP permit themselves (as of 2021) to operate at sensitive locations in a “wide range of circumstances” and asserts that “noncitizens do not trust the sensitive locations policies to protect them from immigration enforcement at health care provider sites.” But that policy, flawed as it was, was swiftly voided in January 2025 by the incoming Trump administration, in a flurry of DHS directives. A current ICE web page about protected areas asserts: “DHS is not issuing rules regarding where immigration laws are permitted to be enforced. Instead, through the Jan. 31, 2025, ICE memorandum, the ICE Director charges Assistant Field Office Directors and Assistant Special Agents in Charge with the responsibility for making case-by-case determinations regarding whether, where and when to conduct an immigration enforcement action in or near a protected area.”
A common thread here is discretion. U.S. law is a skeleton; federal agencies put flesh on the bones. When the agencies are headed by cruel, corrupt thugs subservient to a malevolent would-be dictator, they have broad discretion to work that would-be dictator’s will. They may be challenged, slowed down, even deterred from executing some outrages by public opinion or the courts (or even Congress, if Democrats win control of one or both houses). But they have broad discretion to do deep and lasting damage.
Postscript: Public comments on the HHS notice run 19-1 against the expanded ban. Comments are mostly from doctors and other healthcare and public service workers. Comments can be submitted here.
* Immigrant categories subject to the new restrictions include
Individuals with Temporary Protected Status
Individuals with a nonimmigrant visa (including survivors of trafficking or other serious crimes with T or U visas, persons with a work or student visa and others)
Persons who have applied for T or U visas
Individuals paroled into the United States for periods of less than 1 year
Individuals granted employment authorization
Family Unity beneficiaries
Individuals granted Deferred Enforced Departure or deferred action, including DACA recipients
Immigrants (other than “qualified” immigrants) who have valid work authorization documents
Individuals under the age of 14 with a pending application for adjustment of status, asylum, withholding of removal or for protection under the Convention Against Torture;
Individuals granted withholding of removal under the regulations implementing the Convention Against Torture
Individuals with a pending or approved petition for classification as a Special Immigrant Juvenile.
Undocumented immigrants
Qualified non-citizens — those not subject to PRWORA restrictions — include
Lawful Permanent Residents (LPR/Green Card Holder)
Asylees
Refugees
Cuban/Haitian entrants
Paroled into the U.S. for at least one year
Conditional entrant granted before 1980
Battered non-citizens, spouses, children, or parents
Victims of trafficking and his or her spouse, child, sibling, or parent or individuals with a pending application for a victim of trafficking visa
Granted withholding of deportation
Member of a federally recognized Indian tribe or American Indian born in Canada
Citizens of the Marshall Islands, Micronesia, and Palau who are living in one of the U.S. states or territories (referred to as Compact of Free Association or COFA migrants)
** The text of PRWORA excepts treatment of emergency medical conditions, short-term non-cash disaster relief, immunizations, testing and treatment of communicable disease symptoms, and certain in-kind programs necessary to protect life or safety.
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Photo from Wikimedia Commons
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