Attorney General's Opinion
Attorney General, Richard Blumenthal
September 25, 2007
Honorable Michael Starkowski
Department of Social Services
25 Sigourney Street
Hartford, CT 06106
Dear Commissioner Starkowski:
In response to questions raised by the Auditors of Public Accounts related to a whistleblower complaint, you have asked my opinion on two related questions concerning the Department of Social Services’ (the Department or
First, you inquire whether federal law allows
Second, you ask if the head of a household is an “undocumented non-citizen” but there are vulnerable eligible individuals in the household, may the state provide LIHEAP benefits to the entire household without restriction?
LIHEAP is a purely federal program whose administration by the state is subject to and directed by the laws and regulations of Congress and federal agencies. Federal funding for the federal energy assistance program passes through
According to federal law, non-qualified or illegal non-citizens are not entitled to energy assistance benefits. Paradoxically, however, federal law prohibits states from requiring Community Action Agencies to verify or require proof of citizenship or alienage status of individuls that apply for federal assistance. In effect, Congress has created a "do not ask, do not tell," energy assistance program. While the CAAs cannot falsify information for applicants, or knowingly accept false information, there is no duty under federal law that they verify applicants' citizenship or immigration status when providing federal benefits.
These apparent legal anomalies have no explicit or authoritative explanation.
For the reasons that are more fully set forth below, we respond to your questions are as follows:
· According to federal law, neither
· CAAs may not falsify information on LIHEAP applications, nor may they knowingly accept false information, but federal law does not require - and in fact expressly exempts - non-profit charitable organizations, such as the CAAs administering LIHEAP programs, from verifying the citizenship/immigration status of those who are provided federal energy assistance benefits. States cannot impose this duty on the CAAs.
· As a means to prevent fraud, not for determining citizenship or immigration status,
· Federal law gives the Department the discretion to develop policies to provide federal energy assistance benefits to households that either
· The Department must issue regulations and include in its state plan the policies it develops for providing federal energy assistance benefits to households that contain United States citizens or qualified aliens and non-qualified or illegal aliens.
Your questions require a review of the federal statutory provisions applicable to both the LIHEAP block grant program and to the limitations on the provision of “federal public benefits” to individuals who are not “qualified aliens” that were adopted by the Personal Responsibility and Work Opportunity Act of 1996, (“PRWORA”), Pub. L. 104-193, 110 Stat. 2105, codified at 8 U.S.C. § 1601 et. seq., as amended by the Omnibus Appropriations Act, 1997, Pub. L. 104-208.2
By Subchapter II, of Chapter 94, of Title 42, United States Code, 42 U.S.C. 8621 et. seq., Congress has authorized the Secretary of the Department of Health and Human Services to make block grants available to the states, within available appropriations, for the purpose of assisting low income households in meeting their energy needs. 8 U.S.C. § 8621. The states have considerable discretion in designing their block grant energy assistance programs, and are required to submit an annual “state plan” that describes the eligibility requirements and the benefit levels to be used by the state for the heating season. 42 U.S.C. § 8624. To ensure that heating assistance funds are targeted for low income individuals, the LIHEAP statute provides that payments under the state plan may be made only with respect to “households” that (1) either receive public assistance benefits under enumerated programs, including Temporary Assistance to Needy Families, Supplemental Security Income, and Food Stamps, or (2) to households with total “household income” that is lower than either 150% of the poverty level or below 60% of median income in the state. 8 U.S.C. 8624(b)(2). The term “household” is defined as “any individual or groups of individuals who are living together as one economic unit for whom residential energy is customarily purchased in common or who make undesignated payments for energy in the form of rent.” 42 U.S.C. 8622(5).
The state may either administer the LIHEAP program itself, or “pass through” the LIHEAP block grant funds to “local administrative agencies” charged with administering the program in accordance with the state’s annual “state plan.” 42 U.S.C. § 8624 ( a) and (b). If a state elects to pass through the funds to a local administrative agency, the states are required to give “special consideration” to “any local public or private nonprofit agency which was receiving Federal funds under any low-income energy assistance or weatherization program under the Equal Opportunity Act of 1964”, such as Community Action Agencies.
In 45 C.F.R. 96.50(e), a regulation that generally applies to all Health and Human Services block grant programs, including LIHEAP, Health and Human Services advises that the states have primary responsibility for interpreting the governing statutory provisions for block grant programs. Specifically, 45 C.F.R. 96.50(e) provides that:
The Department recognizes that under the block grant programs the States are primarily responsible for interpreting the governing statutory provisions. As a result, various states may reach different interpretations of the same statutory authority for the block grant programs. In resolving any issue raised by a complaint or a Federal audit the Department will defer to a State’s interpretation of its assurances and of the provisions of the block grant statutes unless the interpretation is clearly erroneous.
The LIHEAP federal statutory provisions do not contain any terms that condition eligibility for energy assistance benefits on citizenship/alienage status.
The federal Secretary of Health and Human Services has promulgated regulations implementing the LIHEAP block grant program at 45 C.F.R. 96.80 et. seq. These regulations do not further define the composition of a “household” for eligibility or benefit level purposes, or condition eligibility on the consideration of citizenship/alienage status.
The ability of aliens to receive federal “public benefits” is determined by the provisions of PRWORA, and depends upon whether the alien is a “qualified alien,” and on whether the alien is applying for federal means-tested public benefits, federal public benefits, or state or local public benefits.
The term “qualified alien” is defined in 8 U.S.C. § 1641(b) as an alien who is lawfully admitted for permanent residence into the <st2:country-region>
The term “federal public benefit” is defined by 8 U.S.C. § 1611(c)(1) as any grant made by an agency of the United States or by appropriated funds of the United States where the grants are made “to an individual, household, or family eligibility unit … .” LIHEAP grants are made to eligible households utilizing federal LIHEAP block grant funds. The Department of Health and Human Services specifically identifies LIHEAP benefits as “federal public benefits” in a notice published in the Federal Register on
As a result of PRWORA, aliens who are not "qualified aliens" are not eligible for federal LIHEAP benefits.
To ensure that non-qualified aliens do not receive “federal public benefits,” state agencies that administer “federal public benefit programs” are required to determine, and to verify, the individual’s citizenship/alienage status before granting eligibility. 8 U.S.C. § 1642 (a) and (b).3 However, an exception to the requirement of state determination and verification of citizenship/alienage status applies when a federal benefit program is administered by a non-profit charitable organization. 8 U.S.C. § 1642(d). Specifically, 8 U.S.C. § 1642(d) provides as follows:
No verification requirement for nonprofit charitable organizations. Subject to subsection (a) of this section, a nonprofit charitable organization, in providing any Federal public benefit (as defined in section 1611(c) of this title) or any State or local public benefit (as defined in section 1621(c) of this title), is not required under the chapter to determine, verify, or otherwise require proof of eligibility of any applicant for such benefits. (emphasis added)
The exception which provides that non-profit, charitable organizations are not required to determine alienage status was added by Section 508 of the Omnibus Appropriation Act, 1997 Pub. L. 104-208, adopted shortly after PRWORA. The legislative history to Pub. L. 104-208 does not reveal the Congressional intent behind 8 U.S.C. § 1642(d).
The Department of Justice initially provided guidance on the statutory exemption from verification requirements for nonprofit charitable organizations in Interim Guidance that was published in the Federal Register on
D. Exemption for Nonprofit Charitable Organizations. Subject to such verification regulations as the Attorney General may subsequently adopt and the limitations set forth immediately below, a “nonprofit charitable organization” providing a federal, state or local public benefit covered by the Act is not required under Title IV of the Act to determine, verify, or otherwise require proof of an applicant’s eligibility for such benefits based on the applicant’s status as a U.S. citizen, U.S. non-citizen national or qualified alien. Thus, a nonprofit charitable organization is not required by the Act to seek an applicant’s confirmation that he or she is a qualified alien, or to have a separate entity verify the applicant’s status before providing benefits. To be eligible for this exemption, an organization must be both “nonprofit” and “charitable.” For purposes of this Guidance, an organization is “nonprofit” if it is organized and operated for purposes other than making gains or profits for the organization, its member or its shareholders, and is precluded from distributing any gains or profits to its members or shareholders. An organization is “charitable” if it is organized and operated for charitable purposes. The term “charitable” should be interpreted in its generally accepted legal sense as developed by judicial decisions. It includes organizations dedicated to relief of the poor and distressed or the underprivileged, as well as religiously-affiliated organizations and educational organizations … .
A nonprofit charitable organization that chooses not to verify cannot be penalized …
However, if your organization chooses to verify, even though it is a nonprofit charitable organization that is not required to do so under the Act, you should comply with the procedures set forth in this Guidance and provide benefits only to those whom you verify to be U.S. citizens, U.S. non-citizen nationals or qualified aliens.
The Department of Justice subsequently published proposed rules to implement citizenship verification requirements and the statutory exemption for verification applicable to non profit charitable organizations.4 It did so by proposing a rule that provides that “a benefit granting agency providing a Federal public benefit … shall verify that an applicant in the United states is a national of the United States or eligible qualified alien …,” proposed regulation 8 C.F.R. § 104.2, and by excluding nonprofit charitable organizations from the definition of a “benefit granting agency.”5 63 Fed. Reg. 41662 (August 4, 1998). In a comment explaining the proposed rule, the Department of Justice advises that the exception applies whenever a nonprofit charitable organization determines eligibility for benefits. Id. The comment further advises it is the opinion of the Attorney General that, … state and local governments may not impose any verification requirements upon nonprofit charitable organizations pursuant to Title IV of PRWORA for Federal, state, or local public benefits.” Id.
The Department of Health and Human Services, Division of Energy Assistance, Office of Community Services, issued an Information Memorandum in which it acknowledges that the “normal” verification requirements that would apply when a state administers the LIHEAP program directly do not apply when a nonprofit charitable organization administers the program on behalf of a state. Specifically, in LIHEAP-IM-98-25 (August 6, 1998), Health and Human Services advises state grantees that they generally “are required to implement the verification requirements, in order to ensure that non-qualified aliens do not receive LIHEAP benefits,” but acknowledges that “there are some exceptions to the verification requirements,” including that “providers who are nonprofit charitable organizations are not required to determine, verify, or otherwise require proof of eligibility of any applicant even if they are providers of Federal public benefits as identified in the Federal Register Notice.”
Implementation of LIHEAP in Connecticut
The Department of Social Services is authorized to administer the LIHEAP block grant programs in Connecticut by Conn. Gen. Stat. §§ 17b-2(2) and 16a-41a. It is required to submit its proposed LIHEAP annual state plan to the legislative committees of cognizance by August 1 of each year, and the proposed state plan is required to describe criteria for determining eligibility and the amount of assistance to be provided. Conn. Gen. Stat. § 16a-41a(a).6 The state's plan is submitted to Health and Human Services after state legislative review.
The Department of Social Services administers the LIHEAP block grant energy assistance program in accordance with its annual state plan, state regulations codified at Reg. Ct. Ag. § 16a-41(b)-1, the terms of its contracts with the CAAs, and the informal guidance it provides to the CAAs in a document entitled “Connecticut Energy Assistance Program (CEAP), Desk Guide for Certification of Eligibility.”
The most recent LIHEAP Annual State Plan for 2006/2007 provides that
The Allocation Plan does not address an applicant’s citizenship/alienage status, and does not describe any citizenship/alienage verification efforts to be undertaken by
The state regulations governing the program were promulgated by the former Department of Human Resources in 1992. They predate PRWORA, and do not contain any provisions applicable to citizenship/qualified alien status as a condition of eligibility. In some respects, the Department’s regulations are out of date and are no longer followed to the extent that they are inconsistent with the Department’s current Annual State Plan. The regulations, however, recognize the role of the CAAs in administering the program on behalf of the Department. See, Reg. Ct. Ags. § 16a-41(b)-10, which describes the role of “service provider agencies,” i.e., the CAAs, in determining eligibility for assistance.8
The Department delegates the administrative responsibility to administer the LIHEAP program to the CAAs in a series of annual grant contracts which provide that the Department “passes through” LIHEAP block grant funds to the CAAs, that the CAAs “accept and process all applications,” authorize vendors to deliver fuel, and issue payments to vendors on behalf of eligible households. The contracts further provide for the CAAs to comply with federal regulations specified by Health and Human Services in 45 C.F.R. Part 969 and with state regulatory requirements, and to utilize the provided standard application form in determining eligibility.
Finally, the CEAP Desk Guide provides informal guidance to the CAAs on the administration of the program, including a copy of the standard application form that the CAAs are required to utilize in determining eligibility. The standard application form requires the household to disclose information that is pertinent to determining eligibility under the terms of the Department’s annual LIHEAP state plan, including requiring information related to the identity of household members, household income, assets, and heating costs. It does not require the household to disclose the citizenship/alienage status of the household members.
The standard application form asks for the social security numbers of each member of a household.
Consistent with federal law exempting non profit charitable organizations from determining citizenship/alienage status when providing federal benefits,11 none of the foregoing state sources of authority formally describe any citizenship/alienage determination or verification requirements, or describe the impact of an individual’s non-qualified alienage status upon the household’s eligibility for assistance.
I. The CAAs Are Not Required to Determine Citizenship/Alienage Status as a Result of the Exception Provided by 8 U.S.C. § 1642(d)
According to federal law, the CAAs are not required to determine citizenship/alienage status in processing applications for LIHEAP benefits as a result of the exception to alien determination/verification requirements provided by 8 U.S.C. § 1642(d). The statutory exception applies if three conditions are satisfied: 1) eligibility is determined by an organization; 2) that is “non-profit”; and 3) “charitable”. 8 U.S.C. § 1642(d), as interpreted by the Justice Department’s Interim Guidance and by the Justice Department’s Proposed Rule.
CAAs determine eligibility and pay LIHEAP benefits to households.
The conclusion that CAAs are exempt from being required to determine, and to verify, citizenship/alienage status is consistent with the interpretation adopted by states throughout the country. The Department of Justice interprets 8 U.S.C. 1642(d) as barring the states from requiring their contracted CAAs to determine or to verify citizenship/alienage status, Comments, Department of Justice, Proposed Rules, 63 Fed. Reg. 41662 (August 4, 1998), supra, and we are not aware of any adverse action by federal audit findings against any state that did not require CAAs to determine and to verify citizenship/alienage status prior to granting LIHEAP benefits.
To the extent that a
II. The Department has the Discretion Under Federal Law to Develop Policies that Provide LIHEAP Benefits to Households that Contain United States Citizens or Qualified Aliens, Notwithstanding the Presence of a Non-Qualified or Illegal Alien
You ask whether the Department may provide assistance to the “entire household,” notwithstanding the presence of a non-qualified alien. You have informed this office that the Department has an “unwritten policy,” which is not specifically described in its LIHEAP annual state plan or in any other document, to exclude the non-qualified alien from the “household” but to allow the remaining eligible members of the household to receive reduced benefits, provided that there is at least one adult in the household who is eligible for, and can apply for, assistance in his/her own name, subject to the requirement that the income and assets of the non-qualified alien are “deemed to” the remaining household members.12 You also ask whether the Department may grant assistance to a household that does not contain any eligible adults. For example, the Department wants to know whether it can amend its annual LIHEAP state plan to lawfully authorize the CAAs to grant assistance to a household that contains only an adult mother (who is known by the
The eligibility unit of assistance for LIHEAP purposes is the “household,” but PRWORA only disqualifies non-qualified individuals from assistance. The federal government has not provided any guidance on how to address the situation where a household has United States citizens or qualified aliens and undocumented non-qualified aliens. The absence of federal guidance may appear to reflect the difficult choices that must be made when faced with the conflicting policy objectives of not providing benefits to illegal aliens versus not allowing native-born children or legal aliens to suffer due to the lack of funds for home heating purposes.
Although a non-qualified alien may be part of an "economic unit" that is a “household” for LIHEAP purposes, Congress has only prohibited through PRWORA assistance to the non-qualified alien. There is no reason to infer that for the purposes of LIHEAP Congress intended to deny assistance to eligible citizens or qualified aliens. The federal LIHEAP statute does not expressly require that all individuals or every individual living together as an economic unit must be included in the “household" receiving benefits. Nor do the LIHEAP statutes state that an entire household is disqualified if one member is a non-qualified alien. In fact, LIHEAP does not discuss citizenship/alienage at all. Any inference that PRWORA requires disqualification of an entire household under LIHEAP is unwarranted because PRWORA only disqualifies individual non-qualified aliens.13 On the other hand, Congress clearly intended that “federal public benefits” could not be provided to non-qualified aliens. 42 U.S.C. §1611, as adopted by PRWORA. Therefore, it would be contrary to federal law to provide benefits to a non-qualified alien in a household receiving LIHEAP benefits.
Because federal law gives the states the authority to interpret how federal benefit laws will be implemented, as long as that interpretation is not "clearly erroneous" (45 C.F.R. 96.50(e)), this office concludes that
Additionally, because the unit of assistance in LIHEAP is the “household,” and there is no statutory provision in LIHEAP that requires that an adult be the "applicant," the Department has the discretion to develop policies for households where only children are eligible for federal energy assistance benefits.
The policies the Department develops for households containing United State citizens or qualified aliens and undocumented or non-qualified aliens must be set forth in state regulations and must be included in the Department's LIHEAP annual state plan.
The states have the primary responsibility for interpreting the block grant statutes, including LIHEAP, and the state’s interpretations may be rejected for federal audit purposes only if they are “clearly erroneous.” 45 C.F.R. 96.50(e). We are aware of no situation in which the federal government has interpreted this provision inconsistently with this opinion.
We trust this opinion answers your questions.
Very truly yours,
1 Your request for an opinion concerns the ability of “undocumented non-citizens” to receive LIHEAP benefits. We understand your use of the term “undocumented non-citizens” refers to aliens who are in this country illegally. The appropriate federal statutory terminology, however, is “qualified” or “non-qualified aliens.” Non-qualified aliens include individuals who are in this country illegally and individuals who are here legally but temporarily, on student or tourist visas.
2 In 2004, I provided a formal opinion to Kevin Sullivan, former President Pro Tempore, Connecticut State Senate, on another aspect of PRWORA that required certain qualified aliens to be denied federal means-tested public assistance benefits (including state-administered federal means-tested benefits such as Medicaid) for a period of time after their entry into the country, and which “authorized” the states to discriminate against qualified aliens by denying them state or local public benefits as a result of their alienage status. We advised that the state’s implementation of federal restrictions on the ability of aliens to obtain federal means-tested public assistance benefits was likely to be upheld under rational basis review because federal Congressional (as opposed to state) limitations on aliens are not “suspect” given Congress’ plenary authority over immigration. 2004 Opinion of the Attorney General, citing Matthews v. Diaz, 426 U.S. 67 (1976). By contrast, we advised that the state’s discretionary adoption of limitations on the ability of qualified aliens to receive exclusively state public assistance benefits was likely to be struck down on strict scrutiny equal protection grounds, notwithstanding the Congressional authorization to discriminate. 2004 Opinion, citing Graham v. Richardson, 402 U.S. 365 (1971) and Barannikova v. Greenwich, 229 Conn. 664 (1994).
By contrast, no significant equal protection issues are presented by your current questions. Illegal aliens have never been held to be a “suspect class” for purposes of equal protection analysis. Plyler v. Doe, 457 <st2:country-region>
3 8 U.S.C. § 1642 (a) requires the United States Attorney General to promulgate regulations requiring the verification of citizenship status for persons applying for “federal public benefits,” and § 1642(b) requires “a state that administers a program that provides a Federal public benefit shall have in effect a verification system that complies with the regulations.”
4 The proposed rule has never been finalized, but remains the best available federal interpretation of the Federal exception to verification requirements.
5 Proposed rule 8 C.F.R. 104.1 defines “benefit granting agency” as meaning “any Federal, state, or local government agency, or its contractor, agency, grantee, or designee (other than a nonprofit charitable organization), that provides the eligibility of applicants for any public benefit.” 63 Fed. Reg. 41662 (
6 That state statute acknowledges the role of the CAAs in administering LIHEAP by requiring the Department to report the number of households assisted annually for each “community action agency geographic area. ”
8 The Department should either amend its regulations to make them consistent with its current State Plan, or the Department should propose amendments to state law authorizing it to administer the LIHEAP program in accordance with its Annual State Plan, giving the content of its State Plan the force of regulation insofar as the State Plan describes rights and responsibilities of individuals.
9 Alienage verification requirements are not in 45 C.F.R. Part 96, which implements LIHEAP.
10 Some non-qualified aliens, such as individuals with a temporary work permit, may have social security numbers.
11 As noted supra,
12 For example,