Immigration.social.workers

1. "Making a Case for Social Justice - Opening the Door of Access and Opportunity for Everyone" Alabama’s Immigration Law Impacts on Health and Social Care By John R. Wible General Counsel (retired) Alabama Department of Public Health John R. Wible, 2012 All Rights Reserved 1

2. 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, agents or employees John R. Wible, 2012 All Rights Reserved 2

3. We Are All Immigrants!  We're all very different people  We're not Watusi  We're not Spartans  We're Americans with a Capital “A”  USA is the “Great Salad Bowl” John R. Wible, 2012 All Rights Reserved 3

4. Inmigración History 101 Historically, American immigration history can be viewed in four periods:  the colonial period,  the mid-nineteenth century,  the turn of the twentieth Ellis Island century, and  Post-1965. John R. Wible, 2012 All Rights Reserved 4

5. Inmigración Laws  Act of 1790  Chinese Exclusion Act 1882  Acts of the 1920s  Mexican Deportation Acts of 1930s  Immigration and Nationality Act of 1952  “Operation Wetback”  Immigration and Nationality Act of 1965  Act of 1990 John R. Wible, 2012 All Rights Reserved 5

6. A Strictly Federal Power “States have no power to pass immigration laws because it’s an attribute of foreign affairs. Just as states can’t have their own foreign policies or enter into treaties, they can’t have their own immigration laws either.” -Karl Manheim, Program for Law & Technology, Cal Tech and Loyola Law School. John R. Wible, 2012 All Rights Reserved 6

7. The Arizona Law on Appeal Arizona Sheriff Joe Arpaio The “Support Our Law Enforcement and Safe Neighborhoods Act”  Police to check nationality of “reasonably suspicious” person in traffic or other arrest  Requires everyone to carry citizenship docs  Police to stop any reasonably suspicious vehicle to check for human smuggling  On appeal to U.S. Supreme Court John R. Wible, 2012 All Rights Reserved 7

8. The Alabama Law • 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* • Sponsor, Rep. Scott Beason wore a wire in the “statehouse corruption” case and ran unsuccessfully for Congress. John R. Wible, 2012 All Rights Reserved 8

9. The Act Dec & Def  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 John R. Wible, 2012 All Rights Reserved 9

10. Attitude  Many believe this is not a good law  Many believe it addresses serious issues  A very wise man once said, “render, therefore unto Caesar that which is Caesar’s” *  This fits that category, therefore . . . * Matthew 22:21 John R. Wible, 2012 All Rights Reserved 10

11. 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 John R. Wible, 2012 All Rights Reserved 11

12. 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. John R. Wible, 2012 All Rights Reserved 12

13. 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. John R. Wible, 2012 All Rights Reserved 13

14. 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  On Appeal, enjoined §§ 27 and 30  Awaiting S. Ct. decision in Arizona case. John R. Wible, 2012 All Rights Reserved 14

15. Enjoined Sections  10 Need to carry ID  27 Inability to make contracts  28 School reporting requirements  30 Inability to obtain state permits There are also less important state court actions pending. See paper. John R. Wible, 2012 All Rights Reserved 15

16. 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  Governor has apologized to Germany and Japan and stated “we want your business.”  No one yet arrested for giving assistance to undocumented person John R. Wible, 2012 All Rights Reserved 16

17. 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 may not get adequate prenatal care John R. Wible, 2012 All Rights Reserved 17

18. 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 may increase  The people of Alabama may suffer negative health consequences John R. Wible, 2012 All Rights Reserved 18

19. Sections of the Act Impacting Health Care & Social Work  Section 7: Public Benefits  Section 9: Contracts  Section 15: E-verification of Employees (effective 4/1/12)  Section 29: Birth Certificates  Section 30: Business Transactions w/State John R. Wible, 2012 All Rights Reserved 19

20. Health Care & Social 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  Many services/programs are excluded or exempt from the citizenship/lawful presence verification requirements pursuant to state or federal law/rules/guidance. John R. Wible, 2012 All Rights Reserved 20

21. 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 John R. Wible, 2012 All Rights Reserved 21

22. 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  Cancer Detection  Tobacco Cessation Here, there is a direct conflict between State and Federal law. John R. Wible, 2012 All Rights Reserved 22

23. 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). John R. Wible, 2012 All Rights Reserved 23

24. Private Providers  Programs that do not received federal assistance are not subject to the Act and may offer services without “carding” or verifying.  However, after April 1, they must E-verify their employees John R. Wible, 2012 All Rights Reserved 24

25. 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. John R. Wible, 2012 All Rights Reserved 25

26. Children’s Health Insurance Program (CHIP) •CHIP is already required to verify citizenship or lawful presence of aliens but is authorized by Act 2011-535 to utilize other means approved by the Federal government •CHIP already has an account with SAVE John R. Wible, 2012 All Rights Reserved 26

28. Means of Verifying U.S. Citizen- ship or Lawful Presence  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. John R. Wible, 2012 All Rights Reserved 28

29. Means of Verifying Citizenship or Lawful Presence of an Alien  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. “Imagine” a Green Card John R. Wible, 2012 All Rights Reserved 29

30. 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 John R. Wible, 2012 All Rights Reserved 30

33. Licensing and Permitting Programs  Alien not lawfully present in U.S. may not enter into “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  However, AG Opinion 2011-01 – enforce only when “SAVEd” and ADPH is still “lost”  Enjoined and on appeal awaiting S. Ct. John R. Wible, 2012 All Rights Reserved 33

34. 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  Thus, partnership or Inc. Restaurant, licensed day care or other potential permitee not = “SAVing”  Enjoined and on appeal. John R. Wible, 2012 All Rights Reserved 34

35. 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.  Thus, agents do not need to be “SAVEd”  The applicant’s citizenship/lawful presence must be determined. John R. Wible, 2012 All Rights Reserved 35

36. 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. John R. Wible, 2012 All Rights Reserved 36

37. Section 15 Employment Verify  Beginning in April, 2012, all employers, including state agencies must E-verify all new hires.  The next section deal with how to do that  This section is not before the court and is OK John R. Wible, 2012 All Rights Reserved 37

38. 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. John R. Wible, 2012 All Rights Reserved 38

39. Means of Verifying U.S. Citizenship or Lawful Presence of an Alien Determinations of U.S. citizenship/lawful presence cannot be made based upon race, color, or national origin. * Duh, of course! John R. Wible, 2012 All Rights Reserved 39

40. The Declaration Form  When implemented, form Must be submitted when initially presenting for services & 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.  Again, this is subject to SAVE implementation John R. Wible, 2012 All Rights Reserved 40

41. 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 •Legislation may change this • A legible copy of a document indicating U.S. citizenship is acceptable. John R. Wible, 2012 All Rights Reserved 41

42. 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 John R. Wible, 2012 All Rights Reserved 42

43. 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. John R. Wible, 2012 All Rights Reserved 43

45. Alien Declaration/Verification  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 John R. Wible, 2012 All Rights Reserved 45

46. Alien Declaration/Verification  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 John R. Wible, 2012 All Rights Reserved 46

47. 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. John R. Wible, 2012 All Rights Reserved 47

48. 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. John R. Wible, 2012 All Rights Reserved 48

49. 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. John R. Wible, 2012 All Rights Reserved 49

50. Conflict with EMTALA  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  HB 56 excludes “emergency treatment” John R. Wible, 2012 All Rights Reserved 50

51. 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 John R. Wible, 2012 All Rights Reserved 51

52. 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 John R. Wible, 2012 All Rights Reserved 52

53. For A Copy of Presentation and a Paper ►See “Alabama’s Immigration Law Impacts on Health and Social Care” ►See several presentations & documents also: http://www.slideshare.net/jwible ►Blog: http://www.johnwible.blogspot.com ►Also on Facebook JRW, 2012 53

54. For a Video See: November 15, 2011 “Rock Center with Brian Williams” http://www.bing.com/videos/watch/video/help-not- wanted-alabama-immigration-law-sparks- feud/60bci5h John R. Wible, 2012 All Rights Reserved 54

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