Can a Texas county deny indigent health care to someone who does not have a Social Security number?

Texas AG Opinion JM-1021: Can a County Require a Social Security Number for Indigent Health Care?

Plain-English summary

Cameron County wanted to know if it could turn away applicants for indigent health care who did not have a Social Security number. The Attorney General said no. A county cannot deny assistance under the Indigent Health Care and Treatment Act just because someone lacks a Social Security number.

The question had two layers, federal and state, and the answer only needed the state layer. Start with federal law, because that is where the county's uncertainty came from. The Privacy Act of 1974 generally makes it unlawful for a government agency to deny a benefit because a person refuses to disclose a Social Security number. That sounds like it would settle things in the applicant's favor. But a 1976 amendment to the Social Security Act carved out an exception: a state or local government may require a Social Security number when it administers certain kinds of laws, including a "general public assistance" law. The Attorney General concluded an indigent health-care program fits within "general public assistance," so federal law would not actually forbid Texas from asking for a Social Security number. In other words, the federal Privacy Act was not the obstacle the county thought it might be.

The real answer came from Texas's own statute. The Indigent Health Care and Treatment Act requires counties to provide health care to indigent county residents. The rules that carry it out (set by the state Department of Human Resources) require an applicant to provide certain information "including the applicant's social security number, if available." Those two words, "if available," do the work. If a Social Security number is available, you provide it. If you do not have one, it is not available, and you cannot be required to provide something you do not have. So the statute, read plainly, does not make having a Social Security number a condition of getting help.

The county pushed back with a chain-of-logic argument. The Act says its eligibility standards follow the AFDC-Medicaid program, and federal law makes AFDC applicants provide Social Security numbers, so (the argument went) indigent health-care applicants must too. The Attorney General disagreed at every link. First, it is the state department, not counties, that sets the standards. Second, while the department looks to AFDC-Medicaid standards to fill gaps, it cannot use them to adopt rules that contradict a specific provision of the Act, and the "if available" language is exactly such a specific provision. An agency cannot make a rule that conflicts with its statute. Third, counties can write their own eligibility standards only if those standards are less strict than the department's, never more strict. Since the department has no power to require a Social Security number from someone who does not have one, a county certainly cannot impose that stricter requirement.

The opinion recognized what was really driving the question. The county's concern was about providing indigent health care to undocumented residents. The Attorney General addressed that directly: an applicant must show residency in the county, but a residency requirement does not by itself keep an alien from receiving state services. The legislative history of the Act (a floor debate on S.B. 1) showed the Legislature did not intend to exclude illegal aliens who meet the residency and eligibility requirements. So the Social Security number could not be used as a back-door way to screen them out.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Both the state and federal frameworks here have changed. The Indigent Health Care and Treatment Act (article 4438f, V.T.C.S.) was later recodified into the Health and Safety Code, and the state agency structure has been reorganized (the Department of Human Resources/Human Services functions moved into the Health and Human Services system). On the federal side, the AFDC program was later replaced by TANF, and subsequent welfare and immigration statutes changed the rules on immigrant eligibility for public benefits. Anyone dealing with indigent health-care eligibility or Social Security number requirements today should check the current statutes and rules rather than rely on this 1989 reading.

Who this opinion affected (as of 1989)

Counties administering indigent health care: The opinion told them they could not deny assistance to an otherwise-eligible applicant solely because the person lacked a Social Security number, and could not adopt a rule stricter than the state department's on that point.

Applicants without a Social Security number: The opinion protected them. The "if available" rule meant a missing Social Security number was not a ground to refuse help.

Undocumented county residents: The opinion confirmed that a residency requirement did not, by itself, bar an alien from receiving indigent health care, consistent with the Act's legislative history.

Common questions

Can a Texas county require a Social Security number to get indigent health care?
Not as a condition of eligibility for someone who does not have one. The Attorney General concluded that a county may not deny assistance under the Indigent Health Care and Treatment Act because an applicant lacks a Social Security number.

Doesn't federal law forbid asking for a Social Security number?
Generally the Privacy Act of 1974 restricts it, but a 1976 amendment to the Social Security Act lets a state require a Social Security number when administering a "general public assistance" law, which the Attorney General concluded covers an indigent health-care program. So federal law was not the barrier here; Texas law was.

Why doesn't the state statute require a Social Security number?
Because the rules require an applicant to provide the number only "if available." The Attorney General read that phrase to mean a person without a Social Security number is not required to provide one.

Can a county set stricter eligibility rules than the state?
No. A county may adopt its own standards only if they are less strict than the Department of Human Services standards, so it cannot impose a stricter Social Security number requirement.

Background and statutory framework

The Cameron County Attorney asked 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. The Attorney General addressed both the federal-law backdrop and the state statute.

Section 7 of the federal Privacy Act of 1974 makes it unlawful for a federal, state, or local government agency to deny any right, benefit, or privilege because of an individual's refusal to disclose his social security number, with exceptions for disclosures required by federal statute and for certain pre-1975 record systems, and requires an agency requesting a social security number to state whether disclosure is mandatory or voluntary and the authority and uses involved (Public Law 93-579, § 7, reprinted at 5 U.S.C. § 552a note). A 1976 amendment to the Social Security Act, however, added an exception: it is the policy of the United States that a state or political subdivision may, in administering any tax, general public assistance, driver's license, or motor vehicle registration law, use social security account numbers to establish identity and may require an affected individual to furnish his number, and an agency not using the number for identification under a pre-1975 law or regulation may require disclosure solely for administering such laws (42 U.S.C. § 405(c)(2)(C)(i), (iii); see generally Doyle v. Wilson). Although no cases construed the term "general public assistance," the Attorney General concluded an indigent health-care program would come within that category, so the federal Privacy Act would not prohibit a state or political subdivision from requiring an applicant to disclose a social security number.

The Attorney General nonetheless concluded that the Indigent Health Care and Treatment Act does not make assistance contingent on providing a social security number. The Act requires a county to provide health care to indigent residents not served by a hospital district or public hospital (V.T.C.S. art. 4438f, § 2.02), and directs the Department of Human Resources to establish eligibility standards and application, documentation, and verification procedures (id. § 1.06(a)). The department's rules on application and documentation must require each applicant to provide certain information "including the applicant's social security number, if available" (id. § 1.06(c)(2)). The Attorney General read the phrase "if available" to make clear that an applicant who does not have a social security number is not required to provide one to receive assistance. (The request concerned individuals who have no social security number, not those who have one but refuse to provide it.)

The county argued that because the Act indicates the indigent health-care program follows AFDC-Medicaid eligibility standards and procedures, and federal law requires AFDC applicants to provide social security numbers (42 U.S.C. §§ 602(a)(25), 1320b-7), indigent health-care applicants must too. The Attorney General disagreed. The Act requires the department, not counties, to set standards in accordance with department rules relating to the AFDC-Medicaid program (V.T.C.S. art. 4438f, § 1.06(a)), and although the department looks to AFDC-Medicaid standards to fill gaps, it may not rely on them to adopt rules inconsistent with specific provisions of the Act (Bexar County Bail Bond Bd. v. Deckard (administrative agencies may not adopt rules inconsistent with statutory provisions)). Because the Act specifically requires a social security number only "if available," the AFDC-Medicaid references do not permit the department to enact rules denying assistance to an applicant who lacks a social security number. A county may adopt its own eligibility standards and application procedures only if they are less strict than the department's (id. §§ 1.06(h), 2.04(b)); since the department has no authority to require a social security number from an applicant who does not have one, a county may not adopt that stricter requirement.

Finally, the Attorney General addressed the county's underlying concern about providing indigent health care to undocumented aliens residing in Cameron County. An applicant must show residency in the county (id. § 1.03), but a residency requirement does not preclude an alien from receiving state services (Attorney General Opinion JM-962 (1988); see generally St. Joseph's Hosp. & Medical Center v. Maricopa County (undocumented alien may be a county resident for purposes of receiving medical assistance under a state indigent health-care statute)). The legislative history of the Act (a floor debate on S.B. 1, 69th Leg., 1st C.S. (May 29, 1985)) indicated the Legislature did not intend to exclude illegal aliens who met the residency and eligibility requirements.

Citations

Statutory authority:

• Tex. Rev. Civ. Stat. art. 4438f (Indigent Health Care and Treatment Act), § 1.03 (residency factors); § 1.06(a) (department sets eligibility standards and procedures); § 1.06(c)(2) (application information "including the applicant's social security number, if available"); § 1.06(h), § 2.04(b) (county standards must be less strict than the department's); § 2.02 (county duty to serve indigent residents)
• 5 U.S.C. § 552a note (Privacy Act of 1974, § 7; Public Law 93-579)
• 42 U.S.C. § 405(c)(2)(C) (state may require a social security number in administering a general public assistance law)
• 42 U.S.C. §§ 602(a)(25), 1320b-7 (AFDC social security number requirements)

Cases:

• Doyle v. Wilson, 529 F. Supp. 1343 (D. Del. 1982) (Privacy Act and the general public assistance exception)
• Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214 (Tex. Civ. App. - San Antonio 1980, no writ) (agencies may not adopt rules inconsistent with statutory provisions)
• St. Joseph's Hosp. & Medical Center v. Maricopa County, 688 P.2d 986 (Ariz. 1984) (undocumented alien may be a county resident for state indigent-care purposes)

Related opinion:

• Attorney General Opinion JM-962 (1988) (a residency requirement does not preclude an alien from receiving state services)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1021
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1021.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

February 24, 1989

Honorable Benjamin Euresti, Jr.
Cameron County Attorney
Cameron County Courthouse
974 E. Harrison Street
Brownsville, Texas 78520

Opinion No. JM-1021

Re: Whether a county may condition receipt of assistance under the Indigent Health Care Act on an applicant's furnishing 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)(1) 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

(B) the disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating 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 local government 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, § 7 (reprinted at 5 U.S.C. § 552a, note). A 1976 amendment to the Social Security Act, however, made an additional exception to the prohibition set out in section 7(a)(1) 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 did not 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 purpose of administering the laws referred to in clause (i) above.

42 U.S.C. § 405(c)(2)(C)(i) and (iii) (emphasis added). See generally Doyle 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, § 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. § 1.06(c)(2). We think the phrase "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 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 "in accordance with" department rules relating to the AFDC-Medicaid program. V.T.C.S. art. 4438f, § 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 adopt rules that are inconsistent with specific provisions of the Indigent Health Care and Treatment Act. See Bexar County 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, § 1.06(h); see also id. § 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 Treatment Act must show that he is a resident of the county. See id. § 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 generally St. Joseph's Hosp. & Medical Center v. Maricopa County, 688 P.2d 986 (Ariz. 1984) (undocumented alien may be a resident of county for purpose 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).

[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.

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