AUGUSTA, Maine — The group representing the state’s more than 490 municipalities likely will urge Maine’s cities and towns not to comply with a new directive from the Department of Health and Human Services that would change eligibility requirements for General Assistance.
Geoff Herman, director of state and federal relations at the Maine Municipal Association, said that the state department’s posture has put municipalities in “a difficult situation.”
“The DHHS action is outside the scope of its authority,” he said. “It has no authority to do this.”
That’s because the change — which prohibits state money from being used to provide assistance to illegal immigrants — has been made outside the rulemaking process outlined in the Administrative Procedures Act. That process includes putting the proposed change out for public comment and having it approved by Maine Attorney General Janet Mills.
The directive states that General Assistance awarded to undocumented immigrants, refugees or asylum seekers will not be reimbursed by the state, which normally pays 50 to 90 percent of the assistance.
“If municipalities choose to offer assistance to illegal, undocumented immigrants, they will do so without state funding support,” wrote DHHS Commissioner Mary Mayhew in a news release Thursday.
A rule change with a similar goal was run through the rulemaking process earlier this year and thwarted by Mills, who found it unconstitutional. That rule would have prevented state money from being spent on a wider array of immigrants, including some who are in the country legally.
When that rule change proposal failed, DHHS submitted a revised rule change which limited the prohibition of state expenditures to undocumented immigrants who are neither asylum seekers nor refugees. Mills rejected that as well, and Mayhew opted to proceed anyway.
Mills, a Democrat, has said that DHHS overreached its authority and the new eligibility requirements also are likely unconstitutional.
“This is being done entirely on the back of an envelope. It’s just crazy,” Herman said. “This isn’t an issue, in my mind, of whether illegal immigrants — whatever that means — get or don’t get public assistance. The issue is how we make decisions, how we establish rules. It’s not done in this cavalier way, with simply a notice from a state agency.”
On Wednesday, DHHS issued a news release indicating that the department would be sending notices to all municipalities in the state alerting them of the rule change and that enforcement of the new rule would begin shortly thereafter.
Herman said the Maine Municipal Association is still reviewing its options, but that the group likely will urge cities and towns not to comply with the new rule. However, that would mean being prepared to fight the state when it tries to withhold its reimbursement for aid to the newly ineligible applicants.
A DHHS spokesman on Thursday contended that the department was not required to put the proposal through the rulemaking process because it is simply enforcing federal law, which says any state may provide benefits to illegal immigrants by enacting its own law. Maine has no such law.
“Federal law is very clear when it comes to undocumented, illegal immigrants and we are enforcing federal law,” said DHHS spokesman John Martins in an email. “There is no rule to change pertaining to illegal, undocumented immigrants.”
But that explanation isn’t passing muster for one legal expert, who said Maine already establishes eligibility requirements, and immigration status is not one of them.
“It’s totally absurd,” said American Civil Liberties Union of Maine legal director Zachary Heiden on Thursday. “The General Assistance program is governed by statute and regulation. If you want to change the law, with regard to who’s eligible, which [DHHS] apparently wants to do, you have to either change the statute or change the rule. They haven’t done that.”
“They’ve simply announced they want cities and towns to do something different. That’s not legal,” he said.
Meanwhile, some municipalities already are opting to ignore DHHS’ new enforcement scheme, while others are treading lightly.
In Bangor, City Manager Cathy Conlow said the Queen City will ignore the new directive from DHHS.
“Our primary concern is that the attorney general is saying the proposed change is not legal, and the city doesn’t want to be liable beyond the cost of providing the service,” she said. “We are going to stay with the status quo, until it’s determined to be legal.”
Ellsworth City Manager Michelle Beal said Thursday that she had not yet seen any correspondence from the state and was unsure how her city would proceed.
“I’ve been with the city 20 years and I’ve never been put in this situation,” she said. “We’ll have to review all the information that comes to us, including from MMA, and go from there. I’ll definitely be making some phone calls.”
Heiden and Herman both predicted DHHS’ changed eligibility requirements will ultimately end up in court.
Gov. Paul LePage said he would not shy away from a court challenge.
“Anybody can sue, anybody at any time,” LePage said to the Sun Journal in Lewiston when asked Thursday if he was concerned he would face legal battle over the change. “The important thing is, ‘What’s the verdict?'”
Sun Journal State Politics Editor Scott Thistle contributed to this report. Follow Mario Moretto on Twitter at @riocarmine.