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On September 22, HHS and USDA issued policy guidance to state health and welfare officials that clarifies when states may or may not request information about immigration status and Social Security Numbers (SSNs) on applications for Food Stamps, Temporary Assistance for Needy Families, Medicaid, and the State Children's Health Insurance Program. Currently, many state applications include questions about immigration status and SSN for each member of a food stamp household. (1) The guidance suggests that states modify applications to include more specific requests directed only to applicants for benefits. (2)

Who is Affected by this Policy Guidance?

U.S. citizen children, other eligible citizens, and eligible legal immigrants who live in households that include other ineligible immigrants but who may be deterred from applying for benefits because they are concerned about disclosing the immigration status and SSNs of family members who are not seeking assistance.

What Should States Do to Comply with the Guidance?

• Adopt the option to revise joint application forms to allow household members who are not seeking benefits to be designated as "non-applicants" early in the eligibility process. (3) This approach eliminates the need to make broad inquiries about immigration status or SSNs, yet allows states to obtain other information from "non-applicant" household members -- like income, resources, striker status, and intentional program violations -- that is necessary to make eligibility determinations. Where a state decides not to adopt the option, it must still ensure that application forms promote the enrollment of eligible families and eliminate the potential for discriminatory impact on eligible applicants based on national origin. (4)
• Advise household members at the beginning of the application process 1) that only those who disclose their citizenship or establish satisfactory immigration status and SSN will receive benefits (if otherwise eligible); but 2) that information on income, resources, striker status, and intentional program violations of "non-applicant" household members affecting the eligibility of the "applicant" household members is still required. (5)
• Provide notice that questions about the immigration status or SSN of "non-applicants" are voluntary and not mandatory.
• Provide information about how eligibility is affected and how the application will be processed if any member of the household unit does not provide information regarding immigration status or SSN. (6)
• Give clear information about the use and confidentiality of immigration status and SSNs collected through the eligibility process; this should address the fears of immigrant families.

What is the Legal Background for this Policy Guidance?

• Title VI of the Civil Rights Act of 1964: title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color and national origin by recipients of federally funded programs. If a state's application requirements and processes have the effect of deterring eligible applicants and recipients who live in immigrant families from enjoying equal participation in and access to the benefit programs based on their national origin, states may be violating Title VI. For example, asking a non-applicant to disclose his or her immigration status or SSN without stating clearly that the information is not required, raises concerns under Title VI if the effect is to deter otherwise eligible applicants who are protected against discrimination by Title VI.
• The Privacy Act of 1974, § 7(a): the Privacy Act, as a general rule, prohibits states from denying program benefits to applicants who do not disclose their SSNs if the disclosure is not required by federal statute. Also, food stamp laws and federal policies prohibit states from denying benefits to an applicant because of the failure of another household member to disclose his or her SSN. Under the Privacy Act, any time a state agency requests that an individual disclose his or her SSN, that agency "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."

What Funds Exist to Help States Revise their Applications?

States can be reimbursed for these costs as an allowable administrative expense under existing Food Stamp rules.

What Other Methods of Verifying Income May States Use in Place of a Social Security Number?

Pay stubs, a letter from an employer that specifies the employees income and employer's tax identification number, and a caseworker's call to an employer are acceptable methods of verifying income.

May States Continue to use Application Forms that Combine Applications for Different Benefit Programs?

Yes. Some states have consolidated their application forms and use joint application for Medicaid, SCHIP, TANF, Food Stamps and other benefits. Joint applications can sometimes help increase program participation by ensuring that applicants receive all benefits to which they are entitled, not just benefits for which they had originally intended to apply. States should improve their joint applications by clarifying the flexibility they have under TANF and Food Stamp programs to limit questions about immigration status and SSNs to applicants. Under Medicaid and SCHIP, states must require disclosure of immigration status or SSNs only of the person or persons for whom Medicaid or SCHIP benefits are being sought. (7)

Have any States Made Plans to Implement these Changes?
Yes. Georgia recently reached a voluntary compliance agreement with the U.S. Department of Health and Human Services. A copy can be obtained by contacting sschwartz@frac.org.

Is there a Sample Notice for States to Give to Applicants to Accompany their Joint Applications While they are Revising them?

Yes. HHS & USDA have drafted a sample notice that states can use. It can serve as a template for states to use as a guideline in creating their own notice according to state-specific policies. States should write notices at an appropriate literacy level, convey the information in as simple a way as possible, and translate them into foreign languages as necessary.

How Can Advocates Work to Implement this Policy?

• Monitor state and local applications for public benefits programs.
• Propose food stamp application modifications to your state or regional food stamp directors.
• Encourage states to train intake caseworkers and other staff responsible for processing applications and making eligibility determinations about this guidance.
• Educate prospective applicants of their rights regarding immigration status and SSN.

Please contact Sonya Schwartz, NAPIL Equal Justice Fellow, with any questions at sschwartz@frac.org or (202) 986-2200 x 3025.

Notes:

(1) A household is generally an individual or a group of individuals who live together and purchase and prepare meals together.

(2) Applicants are people who will actually be receiving assistance as a member of the family or household.

(3) Under long-standing policy, when a household member does not disclose his or her citizenship or establish satisfactory immigration status or does not provide or apply for a SSN, the state agency determines that household member ineligible for benefits. However, the state agency cannot deny benefits to eligible citizen or immigrant household members simply because other household members fail to disclose their citizenship or establish satisfactory immigration status.

(4) The preamble to FNS's final rules implementing the PRWORA includes an extensive discussion about implementation of this new policy guidance. See 65 Fed. Reg. 70147 (November 21, 2000).

(5) State agencies consider the income and resources of all "non-applicant" household members when determining the household's eligibility and benefit level.

(6) For example, a state should inform people that benefits cannot be denied to eligible people based on a household member's choice not to disclose immigration status or SSN, but that the amount of benefits may be affected. A state should also inform applicants that it may not delay, deny or discontinue assistance pending the issuance of their SSNs. State and local agencies also must assist applicants to apply for SSNs.

(7) For example, if a parent applies for benefits under a separate child healthy program on behalf of his or her child, the immigration status or SSN of the parent (or other household members) is irrelevant to the child's eligibility, and the state may not require that parents disclose this information.