HHS and USDA Issue Policy Guidance(1) on Immigration Status and Social Security Number Inquiries During Benefit Application Process

November 1, 2000

Author: Barbara Weiner

On September 21, 2000, the United States Departments of Health and Human Services (HHS) and Agriculture (USDA) issued an important Policy Guidance ("the Guidance") to state officials. The Guidance clarifies the proper scope of the inquiry into the immigration status and Social Security numbers of household members when an application for benefits under various federal means-tested benefit programs is made. The specific programs that are the focus of the Guidance include Medicaid, the State Children Health Insurance Program (SCHIP), Temporary Assistance to Needy Families (TANF) and the Food Stamp Program.

The Guidance grows out of a concern that citizen children and other eligible persons who live in immigrant families are being deterred from applying for benefits because the states’ benefits application forms press for immigration status and Social Security number information about other family members who are not eligible, and not applying, for benefits. A substantial number of families are forgoing benefits for which some of their members are eligible rather than run the risk of the benefits-granting agency submitting information about ineligible family members to the Immigration and Naturalization Service (INS).

The Guidance makes it clear that, to the degree that eligible family members are being denied equal access to benefits because of the unnecessarily chilling effect of the application process, state agencies may be in violation of the rights of such individuals not to be discriminated against on the basis of national origin, rights guaranteed under Title VI of the Civil Rights Act of 1964.

Only the Immigration Status of the Applicant is Relevant

Under federal law, applicants for benefits under the Medicaid (except emergency Medicaid), SCHIP(2), TANF(3), and Food Stamp programs must establish that they are U.S. citizens or have qualified immigrant status. However, applicants should not be required to provide information about the citizenship status of non-applicant family or household members, nor should they be denied benefits because of the failure of non-applicant family members to provide such information.

This rule is easiest to apply in the Medicaid and SCHIP programs because, if benefits are being sought only for the child, it is the child who is the applicant. Though the parent may be required to furnish certain financial information in order to determine the eligibility of the child for program benefits, where the parent is not the applicant, information about the parent’s immigration status is clearly irrelevant. However, under TANF and Food Stamp program rules, an application for benefits must generally be filed on a family or household basis. Under these circumstances the determination of who is the "applicant" from whom immigration information may be required is a bit more complicated.

Food Stamp Program Applications

With respect to the Food Stamp Program, the Policy Guidance notes that long standing policy requires that when a member of an applicant household does not disclose immigrant information, that member must be determined to be ineligible for benefits. The agency cannot deny benefits to members of the household who do verify their citizenship or eligible immigrant status simply because some members fail to do so. (See 7 CFR § 273.4(d).)

Using this as a starting point, the Guidance provides state agencies the option to permit individual household members to declare, early on in the application process, that they are not applying for Food Stamps. States are encouraged to adopt this option and to advise households at the beginning of the application process that: 1) only individuals who disclose their citizenship or verify satisfactory immigration status will receive benefits if otherwise eligible, and 2) that non-applicant household members are still required to answer income and resource questions that affect the eligibility of remaining applicant household members for benefits.

The TANF Application Process

The Guidance notes that states are provided with considerable flexibility when it comes to the administration of the TANF program. States may choose to implement policies that provide for the mandatory exclusion of family members who are ineligible for benefits early in the application process. For example, household members who are non-qualified immigrants, or who are qualified immigrants but barred from receiving TANF benefits by PRWORA, could be designated as non-applicants from the very beginning. As non-applicants, these family members would not be required to disclose citizenship or immigration status.

The Guidance cautions that, though states have wide discretion over how the TANF application process is administered, they must ensure that their application forms and policies do not deter family members who are citizens or have qualified immigration status from applying for benefits.

Application Inquiries Regarding Social Security Numbers

States must comply with the Privacy Act when seeking disclosure of an individual’s Social Security Number (SSN). An individual’s refusal to provide an SSN cannot result in the denial of rights, privileges or benefits unless disclosure is required by federal statute. Here again, while the benefit programs under discussion all require the disclosure of an applicant’s SSN in order for the applicant to be provided with benefits, it is only the applicant’s SSN that can be required, not the SSN of a non-applying family member. The failure of a non-applying family member to provide an SSN cannot be used to delay or deny benefits to eligible family members who do provide their SSNs.

The Guidance notes that while states may request that non-applicant household members voluntarily provide their SSN, the Privacy Act requires that they inform individuals that the disclosure is voluntary and to what use the information will be put. In the public benefits context, the request for SSN disclosure will generally be to verify the income of ineligible household members whose income must be counted to determine the financial eligibility for benefits of the applicant household members.

The Guidance reassures states that they will not be considered out of compliance with the Income and Eligibility Verification System in the Medicaid and TANF programs if they do not obtain the SSNs of non-applicant household members. States may ask non-applicant household members whose income and resources are used to determine the eligibility of applying household members to voluntarily disclose their SSNs. However, states that do so must make it clear that disclosure is voluntary and that the information will only be used to verify income and for other purposes related to program administration.

Using Joint Applications

The Guidance reassures states that they may continue to use joint applications for Medicaid, SCHIP, TANF, Food Stamps and other benefits, such as the state’s general assistance program. However, it cautions states that questions about the citizenship, immigration status or SSN of non-applicants must not result in eligible persons losing access to assistance. Hopefully the flexibility provided by the Guidance to states to designate household members as non-applicants early in the application process will reduce the chilling effect that intrusive and unnecessary immigration questions in the application process have had to date. Other recommendations made by the Guidance include:

1. States should delete requests in the application that require individuals to provide citizenship, immigration status and/SSNs for "every member of the household" and replace them with requests that are directed to the relevant applicant for benefits. 
2. Even asking non-applicants to disclose such information without stating that the information is not required raises Title VI concerns if the effect is to deter eligible applicants who are protected against discrimination by Title VI from applying for benefits. 
3. States should clarify the use to which personal information is put, for example by saying that "We only use social security numbers to help us verify you income. We will not share social security numbers with the INS." 
4. For programs that require application on a household basis, states should provide information about how eligibility is affected, and how the application will be processed, if any member of the household fails to provide information about citizenship, immigration status or an SSN. 
5. In joint applications, states should clearly inform applicants which inquiries, or portions of inquiries, applicants are and are not required to answer for each benefit program. The Guidance includes a sample notice that states may use to accomplish this purpose. 
6. In the information provided to applicants about how the application for Medicaid, Food Stamps and TANF will be processed, states should emphasize, among other points that: a.) with the exception of emergency Medicaid, benefits will not be provided to individuals who do not disclose their immigration status; and b.) the state will not attempt to determine, via the INS, the immigration status of non-applicant household members who do not provide their immigration status.

Next Steps

Though the Policy Guidance is an important first step in insuring that eligible members of immigrant families are not deterred from applying for benefits because application forms ask unnecessary and risky questions about the immigration status of individuals that are not applying for benefits, it is only a first step. Experience has shown that such information must reach the front line workers in local districts, some of whom have been discouraging immigrant families from pursuing applications by threatening to report to INS members of the household who cannot provide verification of their immigration status. The employees of local districts must be reminded that Title VI of the Civil Rights Act protects citizens and qualified immigrants from being denied access to benefits to which they may be entitled by virtue of a process that, implicitly or explicitly, discourages their application for such benefits.

Though the education of public benefits workers is ultimately the most important aspect of assuring the access to benefits of all eligible members of immigrant families, a second and important step has also recently been taken by federal agencies. A recently published Notice in the Federal Register from several federal agencies, including INS, clarifies what the PRWORA reporting requirement means in the context of public benefits administration. By strictly and narrowing defining the circumstances under which reporting to INS is required, the Notice should provide some reassurance to immigrant families applying for public benefits.
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(1) The Guidance is posted at http://www.hhs.gov/ocr/civilrights/resources/specialtopics/origin/policyguidanceregardinginquiriesintocitizenshipimmigrationstatus.html
(2) In New York, the state health insurance program for children, Child Health Plus, does not require any immigrant information about the child on whose behalf the application is submitted.
(3) New York's TANF program is called Family Assistance (FA).