THE ATTORNEY GENERAL. OF TEXAS

February 24, 1989

Honorable Benjamin Euresti,Jr. Opinion No. JM-1021 Cameron CountyAttorney Cameron County Courthouse 974 E. Harrison Street Brownsville,Texas 78520 Re: Whether a county may condition receipt of assistance under the IndigentHealth Care Act
on an applicant's furnishinga social security number (RQ-1539)

Dear Mr. Euresti:

You ask whether a countymay deny assistanceunder the IndigentHealth Care and Treatment Act, article V.T.C.S..,if an 4438f, applicantdoes not have a social number. security

It has been suggested that federal lawwould not permit
a political subdivision to deny health-carebenefits because of an applicant's failure to provide a social number. Section security 7 of the federal provides: Privacy Act of 1974

(a)(l)It shall be unlawful for any Federal, State or.local government agency to deny to any individualany right,benefit, or privilegeprovided by law because of such individual'srefusal to disclosehis social security account number.
(2)the provisions of paragraph (1) of this subsection shall not apply with respect to -- (A)any disclosurewhich is required by Federal statute, or
(8)the disclosure of a social securitynumber to any Federal, State,
or local agencymaintaining a system of records in existence and operating

p. 5267Honorable Benjamin Euresti,Jr. - Page 2 (JM-1021)

before January 1, 1975, if such disclosurewas requiredunder statute
or regulation adopted prior to such date to verify the identity of an individual.
(b)Any Federal, State, or locai government agencywhich requests an individual to disclose his social security account number shall inform that individual whether that disclosure ismandatory or voluntary,by what statutory or other authority such number is solicited, and what uses will be made of it.

Public Law 93-579, 5 7 (reprintedat 5 U.S.C. 5 552a, note). A 1976 amendment to the Social SecurityAct, however, made
an additional exception to the prohibition set out in section 7(a)(l) of the federal PrivacyAct:

(i) It is the policy of the United States that any State (or political subdivision thereof)may, in the administrationof any tax, general public assistance, driver's license, or motor vehicle registration law within its jurisdiction, utilize the social security account numbers issued by the Secretary for the purpose of establishing the identification of individuals affected by such law, and may require any individual who is or appears to be so affected to furnish to such State (orpolitical subdivision thereof)
or any agency thereofhaving administrative responsibility for the law involved, the social security account number (or numbers, if he has more than one such number) issued to him by the Secretary.

. . . . (iii)For purposes of clause (i)of this subparagraph, an agency of a State (or political subdivision thereof) charged with the administration of any general public assistance, driver's license, vehicle registration lawwhich dizrnot motor use the social security account number for identification under a law or regulation adoptedbefore January 1, 1975, may require
an individualto,disclose his or her social security number to such agency solely for theHonorable Benjamin Euresti,Jr. - Page 3 (JM-1021)

purpose of administeringthe laws referred to in clause (i)above.

42 U.S.C. 5 405(c)(2)(C)(i)and (iii)(emphasisadded). See generallv Dovle v. Wilson, 529 F.Supp. 1343 (D.Del. 1982). Although we find no cases that construe the term "general public assistance,"we think that an indigent health-care program would come within that category. Therefore, the federal PrivacyAct would not prohibit a state or political subdivision from requiring an applicant to disclose his social securitynumber.

We do not, however, interpretthe IndigentHealth Care and Treatment Act as making assistance contingent on the provision of a social securitynumber. That act requires a county to providehealth care to indigentresidents of the countywho are not residents of the area a hospital district
or public hospital has an obligation to serve. V.T.C.S. art. 4438f, 8 2.02. The Departmentof Human Resources is required to establish eligibility standards and application, documentation,and verification,procedures for counties to
use in determining eligibility under the act. Id. § 1.06(a). The rules of the Department of Human Resources relating to the applicationand documentation procedures must require each applicant to provide certain information including "the applicant's social security number, if available." Id. 5 1.06(c)(2). We think the phrase II if available"makes clear that an applicantwho does not have a social security number is not required to provide one in order to receive assistance under the IndigentHealth Care and TreatmentAct.1

You suggest, however,. that a county must condition assistance on the receipt of a social security number because the act "indicat[es] that the Indigent Health Care program is to follow standards and procedures used to determine eligibility in the AFDC-Medicaidprogram." YOU then argue that because federal law requires applicants for AFDC to provide social securitynumbers, see 42 U.S.C. §§ 602(a)(25); 1320b-7,applicants for assistanceunder the

1. Your letter indicatesthat you are concerned about individualswho have no social securitynumber rather than individualswho have a social securitynumber but refuse to provide it. Therefore, we consider the meaning of the phrase "if available" only in the context of individualswho do not have social securitynumbers.

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Indigent Health Care and Treatment Act must be required to provide social security numbers.

We disagreewith your argument. We note first that the act requires the Department of Human Services -- not counties -- to set eligibility standards and application procedures %n accordancewith" department rules relating to the AFDC-Medicaidprogram. V.T.C.S. art. 4438f, 5 1.06(a). In any event, although the Departmentof Human Services is to look to AFDC-Medicaid standards to fill the gaps in the IndigentHealth Care and Treatment Act, itmay not rely on those standards to .adoptrules that are inconsistent with specific provisions of the Indigent Health Care and TreatmentAct. See Bexar Countv Bail Bond Bd. v. Deckard, 604 S.W.2d 214, 216 (Tex.Civ.App. - San Antonio 1980, no writ) (administrative agencies may not. adopt rules inconsistent with statutory provisions). The Indigent Health Care and TreatmentAct specificallyprovides that an applicantmust provide a social securitynumber if it is available. Therefore, the provisions in the IndigentHealth Care and TreatmentAct that refer to AFDC-Medicaid standards do not permit the Department of Human Services to enact rules that would deny assistanceunder the Indigent Health Care and TreatmentAct to an applicantwho does not have a social security number.

A county may adopt its own eligibility .standards and applicationprocedures,but only if the county's standards and procedures are less strict than those of the Department of Human Services. V.T.C.S. art. 4438f, 5 1.06(h); see also id. 5 2.04(b). Because the Department of Human Services has
no authority to promulgate a rule requiring applicants who do not have a social security number to provide one, a county may not adopt such a requirement, since such a requirementwould be stricter than Department of Human Services standards.
Although you ask about social security numbers, your letter indicates that you are concerned about the provision of indigenthealth care to illegal or undocumented aliens who are residents of Cameron County. Any person who seeks county assistanceunder the IndigentHealth Care and Treatment Act must show that he is a resident of the county. &g id. 5 1.03 (setting out factors to be considered in determining residency under the IndigentHealth Care and TreatmentAct). A residency requirementdoes not preclude
an alien from receiving state services. Attorney General Opinion JM-962 (1988). See aenerallv St. Joseoh's H&D. and Medical Center v. Maricooa County, 688 P.2d 986 (Ariz. 1984) (undocumentedalien may be a resident of county for purpose

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of receivingmedical assistanceunder state indigent health
care statute). A tape of a floordiscussion of the Indigent Health Care and TreatmentAct indicatesthat the legislature did not intend illegal aliens to be excluded from coverage under the act if theymet the residency and eligibility requirements. Debate on S.B. 1 on Floor of the House 69th Leg., 1st C.S. (May 29, 1985) (tape recording available through House Hearing Reporter).

SUMMARY

A countymay not deny assistance under the IndigentHealth Care and Treatment Act, article 4438f,V.T.C.S.,because an applicant does not have a social securitynumber.

JIM MATTOX Attorney General of Texas

MARY KELLER FirstAssistant Attorney General

LOU MCCREARY ExecutiveAssistantAttorney General

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General

RICK GILPIN Chairman, Opinion Committee
Preparedby Sarah Woelk AssistantAttorney General

Pa 5271