Could Connecticut require Social Security numbers for LIHEAP income checks despite the federal Privacy Act?

Plain-English summary

In 2007, Connecticut’s social services commissioner asked whether the federal Privacy Act barred the state from making a Social Security number a condition of LIHEAP energy assistance. Attorney General Richard Blumenthal concluded federal LIHEAP law allowed the department to require the number for income verification, although it did not require the department to exercise that option.

The opinion drew a specific distinction: the department could not require community action agencies to collect Social Security numbers to verify citizenship or immigration status, but it could require the numbers to check income and prevent fraud. Whether to adopt that income-verification requirement was left to the department as a policy decision.

Currency note

This opinion was issued in 2007. 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.

Energy assistance applicants at the time

The opinion said an SSN requirement for income checks was legally available to the department. It did not say the department had to impose one.

Community action agencies at the time

The AG said these agencies could be directed to collect SSNs for income verification if the department chose that policy. The opinion rejected using SSNs to verify immigration or citizenship status for LIHEAP.

Social services officials at the time

The AG concluded that LIHEAP’s specific income-verification authorization prevailed over the Privacy Act’s general ban on denying benefits for refusing to provide an SSN. He said the department could delay its policy decision while seeking further guidance.

Common questions

Q: Did the Privacy Act prevent Connecticut from requesting SSNs for LIHEAP income checks?
A: The 2007 AG opinion said no. It read LIHEAP as specifically allowing the state to require them for income verification.

Q: Did the AG order Connecticut to require SSNs from every LIHEAP applicant?
A: No. He said the department could require them but did not have to.

Q: Could the SSN request be used to check citizenship status?
A: The opinion said the department could not require community action agencies to collect SSNs for that purpose.

Background and statutory framework

The opinion discussed Section 7 of the federal Privacy Act, referenced at 5 U.S.C. 552a, and LIHEAP’s state income-verification authority under 42 U.S.C. 8624(j). It also cited 42 U.S.C. 1320b-7(a)(1), (2), the linked Social Security Act rule requiring numbers in a separate benefits context. The AG treated LIHEAP’s specific authorization as controlling.

Citations and references

Statutes cited in the opinion: 42 U.S.C. 8624(j); 42 U.S.C. 1320b-7(a)(1), (2); 5 U.S.C. 552a.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2007-formal-opinions/honorable-michael-p-starkowski-commissioner-department-of-social-services-formal-opinion-2007021-att

Original opinion text

Honorable Michael P. Starkowski, Commissioner, Department of Social Services, Formal Opinion 2007-021, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

September 28, 2007

The Honorable Michael P. Starkowski

Commissioner

Department of Social Services

25 Sigourney St.

Hartford, CT 06106

Dear Commissioner Starkowski:

I appreciated your September 25, 2007 letter raising additional questions about the Department's responsibilities under the federal Low Income House Energy Assistance Program (LIHEAP). As I stated in my opinion, federal law prohibits the Department from requiring Community Action Agencies (CAAs) to verify citizenship or immigration status. The Department, therefore, cannot require CAAs to collect Social Security numbers (SSNs) as a means of verifying whether an individual is a qualified alien entitled to receive federal LIHEAP benefits.

As I mentioned in my opinion, the Department has authority to require CAAs to obtain SSNs from individuals seeking LIHEAP benefits as a measure to prevent fraud or abuse. According to the information your department provided to me, a request for SSNs is included on the standard application form and the Department has been using SSNs for many years to prevent fraud. You now ask whether the Federal Privacy Act of 1974 prevents the Department from requiring SSNs as a prerequisite to receiving federal LIHEAP benefits.

Under Section 7 of the Privacy Act, "It shall be unlawful for any Federal, State or local governmental agency to deny an individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his Social Security account number." Section 7(a)(1), Pub.L. 93-579, 5 U.S.C. 552a, note.1 This federal restriction does not apply when "disclosure" is "required by federal statute." Section 7(a)(2)(a) of Pub.L. 93-93-579.

The LIHEAP statute, enacted in 1981 subsequent to the Privacy Act, restricts benefits to applicants -- notwithstanding their citizenship or immigration status -- within specified income levels and specifically gives states the option of requiring SSNs for income verification purposes. 42 U.S.C. 8624(a)(2). Under LIHEAP the states have the option of requiring SSNs as a condition of eligibility, but do not have to do so. 42 U.S.C. 8624(j), entitled "State verification of income eligibility; policies and procedures applicable," provides that "the State may apply procedures and policies consistent with procedures and policies used by the State agency administering programs under part A of title IV of the Social Security Act (42 U.S.C.A. 601 et seq.)" (emphasis added). According to Part A of title IV of the Social Security Act "the State shall require, as a condition of eligibility for benefits" the receipt of an applicant's social security account number to verify an applicant's reported income against other information sources such as the Internal Revenue Service. 42 U.S.C. 1320b-7(a)(1), (2). The specific statutory authorization to obtain SSNs contained in LIHEAP, referencing provisions of the Social Security Act, takes precedence over the general language set forth in the Privacy Act of 1974. Busic v. U.S., 446 U.S. 398, 406 (1980); U.S. v. LaPorta, 46 F.3d 152, 156 (2d Cir. 1995).

LIHEAP, therefore, specifically gives DSS the option of requiring CAAs to obtain applicants' Social Security numbers to verify income. Social Security numbers used in this manner provide a means for preventing fraud.2 Although federal law allows the Department to require Social Security numbers, the decision whether to do so is the Department's to make. You need not require Social Security numbers, but may do so if you choose.

Whether social security numbers should be required is a public policy decision, not a legal issue. Obviously, you have authority to delay this decision -- apply a form of moratorium -- while you seek guidance from state legislators as well as possibly the federal Department of Health and Human Services, the federal agency with overall responsibility for the LIHEAP program.

Very truly yours,

RICHARD BLUMENTHAL

1 Section 7 of the Privacy Act is not codified in the United States Code, but may be found in a note to the statutory annotations to 5 U.S.C. 552a.

2 LIHEAP obligates the state to ensure the program is administered properly and the state’s duties include fighting fraud within the program. 42 U.S.C. 8624(a)(10)(d)(e). The state can be penalized if it does not do so: “The State shall repay the United States amounts found not to have been expended in accordance with this subchapter or the Secretary may offset such amounts against any other amount to which the State is or may become entitled under this subchapter.” 42 U.S.C. 8624(g).