BIDDEFORD — Maine communities are getting mixed messages from two state agencies on how to deal with illegal immigrants applying for general assistance.

On June, the Maine Department of Health & Human Services issued a notice of new guidance regarding people who are not lawfully present in the U.S. Citing a federal law from 1996, the guidance states that those who are not in the country lawfully should be denied GA benefits.

Depending on how much the municipality spends on general assistance, the state reimburses a certain percentage of the cost, but if a municipality provides benefits to those in the country unlawfully, the state will not provide reimbursement, it the DHHS notice states.

To ensure only eligible people receive benefits, under the new guidance, GA administrators will be required to determine whether a person is a U.S. citizen or whether or not they are in the country legally.

Following the DHHS guidance would cut costs to the state’s taxpayers, and especially property taxpayers, who foot much of the general assistance bill, said Biddeford’s Health and Human Services Director Vicky Edgerly, in a December interview concerning a similar proposal.

Earlier this week, Edgerly said she doesn’t believe that the city currently provides assistance to anyone who is unlawfully present in the U.S.

Portland, however, does provide benefits to about 1,000 people who are not legally in the country, said DHHS spokesman John Martins during a telephone interview Friday. This costs the state about $1 million per year, he said.

In December, Portland’s Director of Health and Human Services Doug Gardner said he believes ending GA benefits to illegal immigrants would increase homelessness.

“This is a relatively large group of households,” he said. If they are denied general assistance, “the need of this group doesn’t go away.”

The purpose of the guidance, said Martins, is to “prioritize the limited resources” available to the state. The priority, he said is to “dedicate (resources) to those people who are legally here.”

The Maine Municipal Association pointed out a number of problems with the new guidelines: “This DHHS notification has put municipalities in a box with no easy way out,” stated MMA Executive Director Christopher Lockwood, in a memo dated June 17. “On one hand, a state agency has issued a notification of a policy change; on the other hand, the Attorney General has issued a memorandum on a similar and closely related proposal questioning DHHS’ authority to promulgate rules regarding eligibility standards as well as the constitutionality of such a policy. The Attorney General has also criticized the lack of adherence to statutory procedural requirements for agency rulemaking.”

If a community denies GA benefits, following the state notice, it could be challenged by the applicant and low-income advocates, said Lockwood, but if it pays benefits to a person not lawfully in the country, “DHHS is likely to dock its reimbursement accordingly.”

The MMA is especially concerned that the DHHS did not follow legal and regulatory standards allowing for public notice and comment, as well as legal review, before formal enactment, said Lockwood. 

Attorney General Janet Mills sent a letter to the Maine Municipal Association on June 17, which took issue with a number of points of the DHHS guidance regarding general assistance. Some issues she identified as being problematic include: not defining “individuals who are ”˜not lawfully present in the U.S.’”; that there is no citation of statutory authority other than the federal statute, which hasn’t been enforced in Maine for the 16 years it’s been in effect; and that the new requirements weren’t adopted through the rulemaking process.

Responding to the last point, Martins said, “No rule is required to implement federal law.”

According to Mills, the guidance is “remarkably similar” to proposed substantive rule, which went through a public hearing process, and with which her office found three significant legal issues. The major difference between that rule and the new guidance is that it would be up to GA administrators to determine who is unlawfully present in the U.S., which she said would a “daunting task.”

This responsibility, stated Mills, “arguably imposes a mandate on towns that is not funded by the state and not passed by a two-thirds vote of the Maine Legislature.”

“I fully understand the catch-22 the guidance puts the municipalities in,” she wrote, adding that her office would likely advise DHHS that when performing audits as referred to in its guidance that will begin in October, “that they should not threaten to penalize municipalities for noncompliance with the memo.”

Martins said that DHHS plans to follow the federal law and the new GA guidance.

— Staff Writer Dina Mendros can be contacted at 282-1535, ext. 324 or [email protected]

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