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