THE ATTORNEY GENERAL.
OF TEXAS
February 24, 1989
Honorable Benjamin Euresti, Jr. Opinion No. JM-1021
Cameron County Attorney
Cameron County Courthouse Re: Whether a county may
974 E. Harrison Street condition receipt of
Brownsville, Texas 78520 assistance under the
Indigent Health Care Act
on an applicant's furn-
ishing a social security
number (RQ-1539)
Dear Mr. Euresti:
You ask whether a county may deny assistance under the
Indigent Health Care and Treatment Act, article 4438f,
V.T.C.S..,if an applicant does not have a social security
number.
It has been suggested that federal law would not permit
a political subdivision to deny health-care benefits because
of an applicant's failure to provide a social security
number. Section 7 of the federal Privacy Act of 1974
provides:
(a)(l) It shall be unlawful for any
Federal, State or.local government agency to
deny to any individual any right, benefit, or
privilege provided by law because of such
individual's refusal to disclose his social
security account number.
(2) the provisions of paragraph (1) of
this subsection shall not apply with respect
to --
(A) any disclosure which is required
by Federal statute, or
(8) the disclosure of a social
security number to any Federal, State,
or local agency maintaining a system of
records in existence and operating
p. 5267
Honorable Benjamin Euresti, Jr. - Page 2 (JM-1021)
before January 1, 1975, if such
disclosure was required under statute
or regulation adopted prior to such
date to verify the identity of an
individual.
(b) Any Federal, State, or locai govern-
ment agency which requests an individual to
disclose his social security account number
shall inform that individual whether that
disclosure is mandatory 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 (reprinted at 5 U.S.C. 5 552a, note).
A 1976 amendment to the Social Security Act, however, made
an additional exception to the prohibition set out in
section 7(a)(l) of the federal Privacy Act:
(i) It is the policy of the United States
that any State (or political subdivision
thereof) may, in the administration of 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 (or political subdivision thereof)
or any agency thereof having 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, motor
vehicle registration law which dizrnot use
the social security account number for
identification under a law or regulation
adopted before January 1, 1975, may require
an individual to,disclose his or her social
security number to such agency solely for the
Honorable Benjamin Euresti, Jr. - Page 3 (JM-1021)
purpose of administering the laws referred to
in clause (i) above.
42 U.S.C. 5 405(c)(2)(C)(i) and (iii)(emphasis added). 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 Privacy Act would not prohibit a state or political
subdivision from requiring an applicant to disclose his
social security number.
We do not, however, interpret the Indigent Health Care
and Treatment Act as making assistance contingent on the
provision of a social security number. That act requires a
county to provide health care to indigent residents of the
county who 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 Department of 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 application and 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 applicant who does not have a
social security number is not required to provide one in
order to receive assistance under the Indigent Health Care
and Treatment Act.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-Medicaid program." YOU
then argue that because federal law requires applicants for
AFDC to provide social security numbers, see 42 U.S.C.
§§ 602(a)(25); 1320b-7, applicants for assistance under the
1. Your letter indicates that you are concerned about
individuals who have no social security number rather than
individuals who have a social security number but refuse to
provide it. Therefore, we consider the meaning of the
phrase "if available" only in the context of individuals who
do not have social security numbers.
P. 5269
Honorable Benjamin Euresti, Jr. - Page 4 (JM-1021)
Indigent Health Care and Treatment Act must be required to
provide social security numbers.
We disagree with your argument. We note first that the
act requires the Department of Human Services -- not
counties -- to set eligibility standards and application
procedures %n accordance with" department rules relating to
the AFDC-Medicaid program. V.T.C.S. art. 4438f, 5 1.06(a).
In any event, although the Department of Human Services is
to look to AFDC-Medicaid standards to fill the gaps in the
Indigent Health Care and Treatment Act, it may not rely on
those standards to .adoptrules that are inconsistent with
specific provisions of the Indigent Health Care and
Treatment Act. 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 Treatment Act specifically provides that an
applicant must provide a social security number if it is
available. Therefore, the provisions in the Indigent Health
Care and Treatment Act that refer to AFDC-Medicaid standards
do not permit the Department of Human Services to enact
rules that would deny assistance under the Indigent Health
Care and Treatment Act to an applicant who does not have a
social security number.
A county may adopt its own eligibility .standards and
application procedures, 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
requirement would 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 indigent health care to illegal or undocumented aliens
who are residents of Cameron County. Any person who seeks
county assistance under the Indigent Health Care and Treat-
ment 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 Indigent Health Care and
Treatment Act). A residency requirement does 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)
(undocumented alien may be a resident of county for purpose
p. 5270
Honorable Benjamin Euresti, Jr. - Page 5 (JM-1021)
of receiving medical assistance under state indigent health
care statute). A tape of a floor discussion of the Indigent
Health Care and Treatment Act indicates that the legislature
did not intend illegal aliens to be excluded from coverage
under the act if they met 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 county may not deny assistance under
the Indigent Health Care and Treatment Act,
article 4438f, V.T.C.S., because an applicant
does not have a social security number.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
Pa 5271