Medicaid and Aid to Families With Dependent Children; Certain Provisions of the National Voter Registration Act of 1993

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Health Care Financing Administration

42 CFR Part 431

Administration for Children and Families

45 CFR Part 205

RIN 0970-AB32

Medicaid and Aid to Families With Dependent Children; Certain

Provisions of the National Voter Registration Act of 1993

AGENCIES: Administration for Children and Families (ACF), and Health

Care Financing Administration (HCFA), HHS.

ACTION: Final rule.

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SUMMARY: These final rules would remove certain regulatory restrictions

that conflict with implementation of the National Voter Registration

Act of 1993 (NVRA), Pub. L. 103-31. The NVRA provisions will make it

easier for individuals to vote in elections for Federal office.

EFFECTIVE DATE: November 13, 1996.

FOR FURTHER INFORMATION CONTACT: AFDC: Mr. Mack A. Storrs, ACF/OFA 5th

floor, 370 L'Enfant Promenade SW., Washington, DC 20447, telephone

(202) 401-9289.

Medicaid: Mr. Marinos T. Svolos, 7500 Security Boulevard,

Baltimore, Maryland, 21244-1850, telephone (410) 786-4582.

SUPPLEMENTARY INFORMATION:

Background

The NVRA contains three provisions which will make it easier for

individuals to register to vote in elections for Federal office. These

include: (1) The simultaneous application for or renewal of drivers

licenses and voter registration (the motor voter part of the bill); (2)

the adoption and use of a ``mail'' application form for voter

registration;

[[Page 58141]]

and (3) the designation of State voter registration agencies, including

among others all offices in a state that provide ``public assistance''

and ``State-funded programs primarily engaged in providing services to

persons with disabilities.''

As defined in the conference report, dated February 2, 1993, the

term ``public assistance agencies'' includes ``* * * those State

agencies in each State that administer or provide services under the

Food Stamp, Medicaid, the Women, Infants and Children (WIC) and the Aid

to Families with Dependent Children (AFDC) programs'' (H. Rep. No. 103-

66 (1993), p. 19).

According to section 7(a)(4) of the NVRA, public assistance offices

shall: Distribute mail voter registration forms; provide assistance in

forms completion; and provide a service to accept completed forms and

to transmit them to appropriate authorities. These services are to be

available at the time of application, recertification, or renewal or

when a change in address is reported. The NVRA also contains provisions

addressing how applicants and or recipients of public assistance are to

be informed to their right to request or decline this assistance.

Section 7(a)(5) of the NVRA indicates that these offices shall not:

Seek to influence a party preference; display party-affiliated

materials; discourage registration; or imply in any way that the

availability of services or benefits is dependent upon a decision to

register or not to register to vote.

States that have continuously permitted voter registration at

polling places at the time of voting in a general election for Federal

office (since March 11, 1993, or pursuant to State law enacted on or

before that date) or States with no voter registration requirements for

any voter in the State with respect to an election for Federal office

continuously since March 11, 1993, are exempt from NVRA requirements.

State agencies responsible for the administration of the AFDC and

Medicaid programs have already been advised of the availability of

Federal financial participation (FFP) necessary to conduct voter

registration assistance in public assistance offices in accordance with

section 7 of the NVRA. The Administration for Children and Families and

the Health Care Financing Administration will issue further guidance in

program instructions as needed to AFDC and Medicaid agencies regarding

the implementation of these provisions. All relevant Federal agencies

will continue to work closely with each other and with State public

assistance agencies toward the successful implementation of this Act.

Under section 9 of the NVRA the Federal Election Commission (FEC),

in consultation with the chief election officers of the States, is

required to develop a national mail voter registration application form

for elections to Federal office and to submit reports to Congress

assessing the impact of the legislation during the preceding 2-year

period for each odd-numbered year beginning June 30, 1995. The FEC

published a Final Rule related to these provisions in the Federal

Register on June 23, 1994 (59 FR 32311-32325).

The Department regards the NVRA as an integral feature of its goal

to reform the welfare system. Our present initiative encourages States

to change welfare agency culture from one that focuses primarily on

issuing checks and monitoring eligibility to one that provides an array

of services in support of family responsibility and financial

independence. These NVRA provisions promote family responsibility by

empowering the client population to exercise the essential democratic

right to participate in the electoral process.

Notice of Proposed Rulemaking

Current regulatory provisions at 45 CFR 205.50(a)(4) and 42 CFR

431.307(a)(2), (b), and (c) result in barring the distribution of voter

registration materials to AFDC and Medicaid applicants and recipients.

Enactment of the NVRA mandates that State and local public assistance

offices conduct such activities. In order to comply with these

statutory requirements, we proposed amending the aforementioned

regulations to remove the bar from the States subject to the NVRA. An

NPRM was published in the Federal Register on November 22, 1994 (59 FR

60109).

As originally written, the NPRM would continue the bar on

distribution of voter registration materials by State public assistance

and Medicaid agencies in States that are exempt from the NVRA. This

position was questioned by a number of commenters. We agree with the

commenters that exempt States should not be barred from conducting

voter registration activities as provided under the NVRA. We,

therefore, have eliminated language that would prohibit such

discretionary activities by those States. This is discussed in greater

detail in the following section.

We also have made a minor, clarifying change in Secs. 431.307(d)

and 205.50(a) (4)(iv).

Response to Comments

We received six comments on the proposed rules. Four were from

advocacy groups, one was from a State government agency, and one was

from a real estate agency. A discussion of these comments and our

response follows:

Comment: We received four comments indicating that State welfare

offices should be required to use a single form which would allow AFDC

applicants to register to vote at the same time they apply for AFDC.

This single form would ensure that the voter registration is not

overlooked by the worker handling the AFDC/Medicaid application. The

commenters believe that, among other benefits, the combined voter

registration/AFDC/Medicaid application form would lead to a greater

number of people registering to vote than if the forms were separated.

They contend that combining the registration form with the application

for services is the single most effective way to offer registration

services, and that using separate forms for voter registration purposes

results in significantly lower registration rates.

Response: We acknowledge that a single form that combines the AFDC/

Medicaid and voter applications may better facilitate the voter

registration process. Accordingly, we encourage State agencies to adopt

this solution. However, the statute does not mandate that a combined

application/registration form be used.

Consequently, each state has the latitude to use a combined AFDC/

Medicaid/voter registration form or not to use such a form, whichever

is deemed most practical for that particular State.

Accordingly, we have not adopted the commenters' suggestion but

feel that States should seriously consider the merits of utilizing a

single form that combines the AFDC/Medicaid voter registration

applications. When using a combined form, workers must inform clients,

as required by section 7(a)(5) of the NVRA, that their receipt of AFDC/

Medicaid benefits is not dependent upon a decision to register or not

to register to vote.

Comment: Although the Federal Election Commission (FEC) final rule

requires States to submit statistical data on registrations that are

received from agencies in the States, four commenters suggested that

the HHS final rules also provide for some sort of data collection to

help evaluate the implementation of the NVRA. The commenters suggested

that HHS would find it useful to compile some statistics of its own to

[[Page 58142]]

facilitate program improvements and cost efficiency measures.

Response: Under section 9 of the NVRA the FEC is required to submit

reports to Congress to assess the impact of the NVRA each odd-numbered

year beginning June 30, 1995. The FEC final rules describe the

extensive recordkeeping and reporting requirements that must be

maintained by the chief election official of each State. According to

the FEC final rules, among other data, reports must include the

statewide number of registration applications that were received from

all public assistance agencies. While more data might prove useful in

the evaluation of program operations, these final rules do not seek or

require the compilation of additional information. We have not adopted

the commenters' suggestion because additional recordkeeping and

reporting requirements above those already required by the FEC would

negatively impact State welfare agency staff who are providing voter

registration services in conjunction with other caseload priorities.

Comment: The NPRM proposed to continue to apply the bar against

registering voters in States that are exempt from the NVRA.

Specifically, those States that permit voter registration at polling

places (since March 11, 1993 or pursuant to State law enacted on or

before that date) or States with no voter registration for any voter in

the State with respect to an election for Federal office (since March

11, 1993) are exempt from NVRA requirements and are currently

prohibited from conducting voter registration activities at the welfare

office level. Three commenters objected to continuing this bar and

requested that it be stricken from the final rule. These commenters

indicated that no State should be barred from conducting such

registration activities and recommended that States exempt from the

NVRA be allowed the discretion to determine whether they will offer

voter registration by public assistance agencies.

Response: We agree with the recommendation. Neither the NVRA nor

the Social Security Act expressly prohibit an exempt State from

assisting clients to register to vote. Accordingly, we believe that

States exempt from the NVRA should have the discretion to allow their

AFDC/Medicaid population to register to vote so long as the provisions

of section 7(a)(5) of the NVRA are followed. These provisions contain a

number of protections to ensure that the registration process will be

fair and non-partisan. Specifically, offices shall not: Seek to

influence a party preference; display party-affiliated materials;

discourage registration; or imply in any way that the availability of

services or benefits is dependent upon the applicant's or recipient's

decision to register or not to register to vote. The final regulation

has been modified to expressly prohibit the mailing or distribution of

partisan voting information. We added the word ``partisan'' because we

believe it will be helpful to State agencies in implementing their

voter registration activities. We also removed redundant references to

the NVRA.

Comment: One commenter objected to employees' assisting applicants

in the completion of voter registration application forms because this

would impose a burden unrelated to the employees' basic work. The

commenter also questioned the possibility of an employee influencing

the applicant to register for the employee's choice of political

parties.

Response: We do not agree. The statute requires that public

assistance offices make available assistance to AFDC/Medicaid

applicants and recipients in registering them to vote. According to

section 7(a)(4)(A) of the NVRA, public assistance offices shall make

the following services available: ``(i) Distribution of mail voter

registration application forms.* * *; (ii) Assistance to applicants in

completing voter registration application forms, unless the applicant

refuses such assistance;'' and, ``(iii) Acceptance of completed voter

registration application forms for transmittal to the appropriate State

election official.'' Therefore, staff must make available to applicants

the same level of assistance in completing voter registration

application forms as they do in assisting applicants completing AFDC/

Medicaid forms.

Regarding the commenter's concern about an employee's influencing a

client to register for one particular party, the statute provides a

safeguard. Section 7(a)(5) of the NVRA states that an employee who

provides voter registration services shall not ``seek to influence an

applicant's political preference or party registration'' or ``display

any such political preference or party allegiance.'' We are confident

that State welfare agencies have instituted the proper safeguards to

prevent abuse.

Comment: One commmenter was concerned because the HHS regulations

are silent as to the obligation to comply with the Voting Rights

Language Assistance Act of 1992, in particular section 203. This

section enables a community to receive bilingual voting assistance if

more than 10,000 voting age citizens in a jurisdiction belong to a

single language minority with limited English proficiency and the

illiteracy rate of the citizens in the language minority is higher than

the national illiteracy rate. It was also suggested that HHS take a

greater role in support of bilingual voting assistance.

Response: We do not feel that it is necessary for DHHS to regulate

in this area. The regulatory requirements implementing the Language

Assistance Act of 1992 can be found at 28 CFR Part 55. State election

officials and AFDC/Medicaid agency staff should work together to

implement these regulatory requirements.

Executive Order 12866

Executive Order 12866 requires that regulations be reviewed to

ensure that they are consistent with the priorities and principles set

forth in the Executive Order. The Department has determined that this

rule is consistent with these priorities and principles.

Paperwork Reduction Act

These final regulations do not require any information collection

activities, and therefore no approval is necessary under the Paperwork

Reduction Act of 1995.

Regulatory Flexibility Act

The Regulatory Flexibility Act (Pub. L. 96-354) requires the

Federal government to anticipate and reduce the impact of regulations

and paperwork requirements on small businesses. The primary impact of

these proposed rules is on State governments and individuals.

Therefore, we certify that these rules will not have a significant

economic impact on a substantial number of small entities because they

affect benefits to individuals and payments to States. Thus, a

regulatory flexibility analysis is not required.

List of Subjects

45 CFR Part 205

Computer technology, Grant programs--social programs, Privacy,

Public assistance programs, Reporting and recordkeeping requirements,

Wages.

42 CFR Part 431

Aid to families with dependent children, Aliens, Contracts

(agreements)--State plan), Eligibility, Grant-in-Aid Program--health,

Guam, Health facilities, Medicaid, Puerto Rico, Supplemental Security

Income (SSI), Virgin Islands.

(Catalog of Federal Domestic Assistance Programs 13.780, Assistance

Payments-Maintenance Assistance; Program No. 93.778, Medical

Assistance Program)

[[Page 58143]]

Dated: June 6, 1996.

Mary Jo Bane,

Assistant Secretary for Children and Families.

Dated: June 14, 1996.

Bruce C. Vladeck,

Administrator, Health Care Financing Administration.

Approved: July 26, 1996.

Donna E. Shalala,

Secretary, Health and Human Services.

For the reasons explained in the preamble, part 431 of Chapter IV,

Title 42, Code of Federal Regulations, is amended as set forth below:

PART 431--STATE ORGANIZATION AND GENERAL ADMINISTRATION

1. The authority citation for Part 431 continues to read as

follows:

Authority: Sec. 1102 of the Social Security Act (42 U.S.C.

1302).

2. Section 431.307 is amended by revising paragraph (a)(2) and (b)

and by adding a new paragraph (d) to read as follows:

Sec. 431.307 Distribution of information materials.

(a) * * *

(2) Have no political implications except to the extent required to

implement the National Voter Registration Act of 1993 (NVRA) Pub. L.

103-31; for States that are exempt from the requirements of NVRA, voter

registration may be a voluntary activity so long as the provisions of

section 7(a)(5) of NVRA are observed;

* * * * *

(b) The agency must not distribute materials such as ``holiday''

greetings, general public announcements, partisan voting information

and alien registration notices.

* * * * *

(d) Under NVRA, the agency must distribute voter information and

registration materials as specified in NVRA.

For the reasons explained in the preamble, Part 205 of Chapter II,

Title 45, Code of Federal Regulations, is amended as set forth below:

PART 205--GENERAL ADMINISTRATION--PUBLIC ASSISTANCE PROGRAMS

1. The authority citation for Part 205 is revised to read as

follows:

Authority: 42 U.S.C. 602, 603, 606, 607, 1302, 1306(a), and

1320b-7: 42 U.S.C. 1973gg-5.

2. Section 205.50 is amended by revising paragraphs (a)(4),

introductory text, and (a)(4)(i), adding a new paragraph (a)(4)(iv),

and adding paragraph (b) to read as follows:

Sec. 205.50 Safeguarding information for the financial assistance

programs.

(a) * * *

(4) All materials sent or distributed to applicants, recipients, or

medical vendors, including material enclosed in envelopes containing

checks, will be limited to those which are directly related to the

administration of the program and will not have political implications

except to the extent required to implement the National Voter

Registration Act of 1993 (NVRA), Pub. L. 103-31. Under this

requirement:

(i) Specifically excluded from mailing or distribution are

materials such as ``holiday'' greetings, general public announcements,

alien registration notices, and partisan voting information.

* * * * *

(iv) Under NVRA, the agency must distribute voter information and

registration materials as specified in NVRA.

(b) Voluntary voter registration activities. For States that are

exempt from the requirements of NVRA, voter registration may be a

voluntary activity so long as the provisions of section 7(a)(5) of NVRA

are observed.

* * * * *

[FR Doc. 96-28939 Filed 11-12-96; 8:45 am]

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