Immigration presentation2 final

Alabama’s Immigration Law
Impacts on Health Care

John R. Wible
General Counsel (retired)
Alabama Department of Public Health

November, 2011
John R. Wible, 2011 All Rights Reserved 1

Acknowledgement/Caveat
 Based upon analysis of Greg Locklier,
Assistant General Counsel, ADPH
 Mr. Locklier is not responsible for my additions and
they do not necessarily represent his opinion
 Caveat: the author has elaborated and updated
 The author is not your lawyer, therefore this may not
be relied upon as legal advice
 No representation is made that this presentation
represents the opinion of the Alabama Department of
Public Health, its OGC, officers or employees

Introduction

 The Beason-Hammond Alabama
Taxpayer and Citizen Protection
Act, HB 56, (Act 2011-535) was
signed into law on June 9, 2011.
• Purpose: To discourage illegal
immigration.*
*According to Section 2 of the text
and statements by the sponsor

The Act
 Declares “unlawfully present” aliens to be
ineligible to receive public benefits or to obtain
licenses/permits from state or local agencies.
 Requires employers to verify citizenship/lawful
presence of its employees.
 Makes it illegal to enter into a contract with an
unlawfully present alien.
 Proclaims it Illegal to assist such persons


Litigation
Soon after the legislation was signed into
law, the U.S. Department of Justice and a
coalition of individuals and private interest
groups filed lawsuits which are pending.

 Status of Federal Litigation

 Status of State Litigation


Hispanic Coalition of Ala.
et al. v. Governor, et al.
 October 14, the 11th Circuit appeals court approved the U.S.
Justice Department's request to temporarily block parts of
Alabama’s law pending the outcome of an appeal. Among them:
 Requirement that public schools determine the immigration status
of their students.
 But they did have to report back to the state information about
which students didn't have birth certificates or other documents
showing that they are here legally.
 The court is blocking enforcement a provision that makes it a
crime not to have documents proving you are in the country
legally. In other words, everybody had to have their papers on
them or they could be subjected to a misdemeanor charge.

United States v. Alabama
On appeal, 11th Circuit Court of Appeals holds:
 Enjoined Sections 10 and 28, which permit law enforcement
to charge immigrants, unable to demonstrate lawful presence
in the United States, with a misdemeanor and require
schools to check new students' immigration status.
 However, the court denied injunction on Sections 12, 18, 27
and 30, provisions that:
 Allow police to check immigration status during traffic
stops, based on reasonable suspicion.
 Bar Alabama courts from enforcing contracts involving an
illegal immigrant party.
 Make it a felony for an illegal immigrant to apply for a driver's
license, license plate or nondriver identification card.


U.S. v. Alabama (cont.)
 The court refused to halt a provision that would
require police in Alabama to do immigration status
checks under certain circumstances.
 Did not deal with section 13 “giving assistance” to
undocumented persons (lower court denied injunction
as moot for want of standing
 Oral Hearing set in late February, early March, 2012


Central Alabama Fair Housing
Center, et al. v. Julie Magee, et al.
 The Department of Revenue’s policy stemmed from a
provision of Alabama’s HB 56 that criminalized
“business transactions” with the state by
undocumented immigrants.
 Pending before the court


State Litigation
 The Attorney General reports as of November 4, 2011
 In late July, 2011, five individuals filed suit against Governor Bentley and
Attorney General Strange in Montgomery County Circuit Court. The
case, which was assigned to the Honorable Johnny Hardwick, was
styled Doe v. Bentley, Case No. CV-2011-882 (Montgomery County
Circuit Court).
 According to the Complaint, two of the plaintiffs were illegal aliens,
two were citizens originally from Mexico, and one was a citizen married
to an illegal alien. The plaintiffs filed a motion for a preliminary
injunction early on, and then withdrew it. They also amended their
Complaint twice, asserting federal and state claims. Hearings were
held.
 On November 3, 2011, the plaintiffs moved to voluntarily dismiss their
suit. The next day, on November 4, 2011, the Court granted the
plaintiff’s motion dismissing the case.

Recent Developments
 German born Manager of Mercedes-Benz plant
arrested in Tuscaloosa for having no driver’s license.
Case dismissed.
 Japanese-born employee of Honda plant arrested in
North Alabama. Case dismissed, employee had a valid
international D/L
 No one yet arrested for giving assistance to
undocumented person


General Effects on Public Health
 "I don't want to spread fear, but any time people
are afraid to get medical care there are potential
complications.”
— Dr. Jim McVay, ADPH
 Children may not get required immunizations.
 Communicable diseases may spread
 Mothers won’t get adequate prenatal care


More Detrimental Effects
 Citizen children and those in lawful
status may not get adequate health care
 Water may be less safe
 Restaurants may be unable to get
permits and food may be less safe
 Public health costs will increase
 The people of Alabama will suffer
negative health consequences

Sections of the Act Impacting
Health Care
 Section 7: Public Benefits
(effective immediately)
 Section 30: Business Transactions
 Section 29: Birth Certificates
 Section 9: Contracts
(effective 1/1/12)
 Section 15: E-verification of Employees
(effective 4/1/12)

IMMEDIATE IMPACT ON ADPH
 Health Services

 Licensing/permitting programs
• Environmental
• EMS
• Radiation
• Health Care Facilities

 Issuance of Birth Certificates

Health Care Services
 An alien not legally present in the U.S. is not
entitled to receive certain public benefits.
 An alien is a person who is not a U.S. citizen or
national.
 The term “public benefits” includes certain
healthcare services, but many
services/programs are excluded or exempt
from the citizenship/lawful presence
verification requirements pursuant to state or
federal law/rules/guidance.

Exempt Programs/Services
Act 2011-535 expressly exempts the following
programs/services from citizenship/lawful presence
verification requirements:
 WIC
 Immunizations
 In kind disaster relief
 Communicable disease
 Pre-natal care
 Emergency medical treatment
 Child or adult protective services

Excluded Federal Benefit Programs
The following services/programs are federal
public benefits and excluded from the
citizenship/lawful presence verification
requirements by federal law/rules/guidance:
 Family planning
 ABCCEDP
 Tobacco Cessation
Here, there is a direct conflict between State
and Federal law.

Medicaid Programs
Verification of U.S. Citizenship and lawful
presence of aliens participating in the
following programs is also NOT required as the
Alabama Medicaid Agency determines
eligibility to receive the services:
 Patient First
 Plan First
 EPSDT
 Dental (Medicaid clients)
 Home Health (Medicaid/Medicare clients).


Verification of U.S. citizenship
and lawful presence IS
REQUIRED for:
 Non-Medicaid dental services

 Private pay or indigent Home Health services

 Prostate screenings

 Non-Medicaid covered services provided to walk-in
clients. Example: blood pressure check; administration
of patient carried medication prescribed by outside
provider.

Children’s Health Insurance
Program (CHIP)
CHIP is also required to verify U.S.
citizenship or lawful presence of aliens
but is authorized by Act 2011-535 to
utilize other means approved by the
Federal government.


Means of Verifying U.S.
Citizenship or
Lawful Presence of an Alien
 Completion of a declaration form by client/applicant.
 Provision of documents demonstrating U.S. citizenship.
 Provision of documents demonstrating lawful presence of
an alien AND verification of lawful presence through the
federal government’s Systematic Alien Verification for
Entitlements (SAVE) Program.
 Must rely on documents provided by client/applicant and
determinations made by SAVE. Determinations of U.S.
citizenship cannot be made based upon race, color, or
national origin.

ALABAMA DEPARTMENT OF PUBLIC HEALTH
DECLARATION OF CITIZENSHIP AND LAWFUL PRESENCE OF AN
ALIEN FOR PUBLIC BENEFITS AND LICENSING/PERMITTING PROGRAMS

Title IV of the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
8 U.S.C. § 1621, provides that, with certain exceptions, only United States citizens, United States non -citizen nationals,
non-exempt “qualified aliens” (and sometimes only particular categories of qualified aliens), nonimmigrants, and certain
aliens paroled into the United States are eligible to receive covered state or local public benefits.

With certain exceptions, Alabama Act 2011-535 prohibits aliens unlawfully present in the U.S. from receiving state or local
benefits. Every U.S. Citizen applying for a state or local public benefit must sign a declaration of Citizenship, and the
lawful presence of an alien in the U.S. must be verified by the Federal Government.

Act 2011-535 also requires every individual applying for a permit or license to demonstrate his/her U.S. citizenship or if the
applicant is an alien, he/she must demonstrate his/her lawful presence in the United States.

Directions: This form must be completed and submitted by applicants for health care benefits/services that are not
exempt or excluded from citizenship/lawful presence verification requirements. Medicaid/Medicare clients are not
required to complete this form as eligibility to receive services has already been determined by Medicaid/Medicare.
This form must also be completed by individuals applying for licenses or permits. An individual includes a sole
proprietorship, but does not include other business entities such as corporations.

SECTION 1 --- APPLICANT INFORMATION

NAME: ___________________________________________________________________________________________
(Print or Type) (Last) (First) (M.I.)

DATE OF BIRTH: ______________________________________________________________________________

SECTION II --- U.S. CITIZENSHIP OR NATIONAL STATUS

Are you a citizen or national of the United States (check one) ___ Yes ___ No

If you answered YES: (1) Provide an original or legible copy of document from attached List A or other document that
demonstrates U.S. citizenship or nationality and (2) Complete Section IV.
If you answered No: Complete Sections III and IV.
Name of document provided: __________________________________________________________________

SECTION III – ALIEN STATUS

Are you an alien lawfully present in the United States? ___ Yes ___ No

If you answered Yes: (1) Provide an original or legible copy of the front and back (if any) of a document from attached
List B or other document that demonstrates lawful presence in the United States. (2) Complete Section IV. Information
from the documentation provided will be used to verify lawful presence through the United States Government.
If you answered No: Complete Section IV.
Name of document provided: _________________________________________________________________.

SECTION IV -- DECLARATION

I declare under penalty of perjury under the laws of the State of Alabama that the answers and evidence I provided are true
and correct to the best of my knowledge.

__________________________________________________ _______________
APPLICANT’S/ LEGAL REPRESENTATIVE’S SIGNATURE DATE

______________________________________________ _________________________________
If signed by legal representative, Relationship to Patient Health Dept. Employee


Licensing and Permitting Programs
 An alien not lawfully present in the U.S. may
not enter into a “business transaction” with
the state.
 Every “person” entering into a business
transaction shall be required to demonstrate
U.S. citizenship or lawful presence in the U.S.
 A “business transaction” includes
licenses/permits issued to individuals by
ADPH.

Licensing and Permitting
Programs
 Act 2011-535 only impacts the licensing
and permitting of individuals.
• It does not impact the licensing or
permitting of business entities, other than
sole proprietorships.


Licensing and Permitting
Programs
 For purposes of implementing Act 2011-
535, an applicant for a license/permit is the
individual to whom a permit/license is
issued, not necessarily the person signing or
submitting the application.
 The applicant’s citizenship/lawful presence
must be determined.


How to determine if an applicant is a business
entity other than sole proprietorship?

 Check the application for the name of the
business to which the permit/license is issued
- Inc., LLC, and LLP indicate types of business
entities other than sole proprietorships.
 Require applicant to provide the legal name
of the business on the application and the
type of business entity.


Means of Verifying U.S. Citizenship or
Lawful Presence of an Alien
 Completion of a declaration form by client/applicant.
 Provision of documents demonstrating U.S. citizenship.
 Provision of documents demonstrating lawful presence of
an alien AND verification of lawful presence through the
SAVE Program.
 Must rely on documents provided by client/applicant and
determinations made by SAVE.
 Determinations of U.S. citizenship/lawful presence
cannot be made based upon race, color, or national
origin.


The Declaration Form
 Must be submitted when initially presenting for
health services and applying for or renewing
permits or licenses.

 Ensure that all sections are completed.

 The application process is incomplete without a
properly completed declaration form. Do not issue
license or provide service if incomplete.



 Full name and date of birth are
important for verification through
SAVE.

 Type of document supporting
citizenship must be stated on the form

 Applicant must sign and date form.

 A parent or legal guardian may sign
the form on behalf of the minor
receiving services.
 Employee receiving the form must
also sign it.


U.S. Citizen Declaration/Verification
 If applicant declares to be U.S. citizen,
he/she must present a document
demonstrating such from List A.
 A valid Alabama driver’s license is
acceptable. A valid driver’s license from
another state may not be.
 A legible copy of a document indicating
U.S. citizenship is acceptable.


U.S. Citizen Declaration/Verification
 If the form is properly completed and
acceptable documentation provided,
services may be provided or permit
issued to the U.S. citizen.
 Maintain the declaration form and a copy
of the document presented in the client’s
file


Alien Declaration/Verification
 If applicant declares to be a lawfully present
alien, he/she must present a document
demonstrating such.
 Federal law requires non-citizens 18 years
or older to have immigration
documentation in their possession at all
times.
 Acceptable forms of documentation are
found in List B and include green cards.


 A legible copy of documentation
containing a photograph of the bearer
is acceptable


 Most non-citizen registration documents may be
photocopied. Any INS document that cannot be
photocopied will have a warning printed on the
document. Do not photocopy an INS document
with a warning not to copy
 Information from the document including, but not
necessarily limited to, the full name of the
applicant, the date of birth, and the alien
registration number on the document may be
communicated to the designated SAVE user


 If the applicant declares to be a lawfully
present alien and provides supporting
documentation from List B, provide
information from the document to the
designated SAVE user for your office to verify
lawful presence through SAVE
 The SAVE response is generally instantaneous


 If an applicant presents an expired
document or is unable to present any
immigration documentation evidencing
his/her immigration status, no services
should be provided until the necessary
documentation is provided


 If for any reason the verification through
SAVE is delayed or is inconclusive, the alien
is eligible to receive health services or
other public benefits in the interim period
if the alien signs the declaration indicating
that he or she is an alien lawfully present in
the U.S


SAVE
 SAVE is an inter-governmental initiative designed to aid benefit-
granting agencies in determining an applicant's immigration
status, and thereby ensure that only entitled applicants receive
federal, state, or local public benefits and licenses.
 The Program is an information service for benefit-issuing
agencies, institutions, licensing bureaus, and other governmental
entities.
 It is important to note that:
 The SAVE Program does not make determinations on any
applicant's eligibility for a specific benefit or license.
 The SAVE Program does not verify status for employment. To
verify the status of a new employee, go to: "E-Verify
Employment Verification Program.”


SAVE
 The SAVE Program uses electronic and
paper records for accessing information to
verify an applicant’s immigration status.
 ADPH is in the process of registering to use
SAVE.
 The process may take 60-90 days.
 Only designated users may access the SAVE
Program.


Nondiscrimination
 The eligibility of an applicant
cannot be based upon an applicant’s race,
color, or national origin.
 Do not single out individuals who look or
sound foreign for closer scrutiny or require
them to provide more documentation of
citizenship or immigration status than what
is required.
 Decisions about U.S. citizenship shall only be
based upon documentation provided.


Nondiscrimination

 The verification of the lawful presence
of an alien shall only be made by the
U.S. Government through the use of its
SAVE Program.


Birth Certificates/Voter
Registration

•ADPH must provide a certified copy of a birth
certificate free of charge for the purpose of
registering to vote in this state
•A sworn affidavit is required stating that the
person plans to vote in this state and does not
possess documents that constitute evidence of
U.S. citizenship


Conflict with EMTALA
 Duties under EMTALA
 Emergency screening examination
 EMC until the condition is resolved or stabilized and the
patient is able to provide self-care following discharge, or if
unable, can receive needed continual care
 Must transfer if unable to care for the pt.
 Emergency exception – hospital may not turn away any
person regardless of nationality or immigration status if
such person needs emergency care
 May not discharge such person until stable, though law
enforcement may be used to keep them secure
 Also applies to hospital-based clinics/services (EMS)
 EMTALA does not apply to other H/C providers


HIPAA Consequences
 Covered Entity may, but is not required to
disclose under HIPAA w/o pt. consent if required by
law to:
 Follow court order or comply with subpoena
 Locate a fugitive or suspect
 Alert LE of a crime taking place on premises (I.E.
violating Alabama Immigration Law)
 HIPAA, itself does not require disclosure,
 permissive only
 Disclose only “minimum necessary” PHI

Required Reporters

 State employees, only, are required reporters
 Required reporters have a legal duty to inform the
authorities of violations of the law.
 13A-10-2, Code of Alabama 1975, misdemeanor
 This does not apply to private citizens
QUESTIONS OR COMMENTS?


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