Alabama’s Immigration Law Impacts on Health Care John R. Wible General Counsel (retired) Alabama Department of Public Health January, 2012 1 John R. Wible, 2012 All Rights Reserved
Transcript
1. Alabamas Immigration Law Impacts on Health Care John R.
Wible General Counsel (retired)Alabama Department of Public Health
January, 2012 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. 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 Caesars This fits that
category, therefore . . . John R. Wible, 2012 All Rights Reserved
3
4. 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 John R. Wible,
2012 All Rights Reserved 4
5. 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 John R. Wible, 2012 All Rights Reserved 5
6. LitigationSoon after the legislation was signed intolaw, the
U.S. Department of Justice and acoalition of individuals and
private interestgroups filed lawsuits which are pending. Status of
Federal Litigation Status of State Litigation John R. Wible, 2012
All Rights Reserved 6
7. Hispanic Coalition of Ala. et al. v. Governor, et al.
October 14, the 11th Circuit appeals court approved the U.S.
Justice Departments request to temporarily block parts of Alabamas
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 didnt 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 7
8. United States v. AlabamaOn 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 drivers license,
license plate or nondriver identification card. John R. Wible, 2012
All Rights Reserved 8
9. 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 John R. Wible, 2012 All Rights
Reserved 9
10. Central Alabama Fair HousingCenter, et al. v. Julie Magee,
et al. Depart. of Revenues policy stemmed from a provision of HB 56
that criminalized business transactions with the state by
undocumented immigrants. In December, the Ct. enjoined enforcement
of reg. requiring any person who attempts to pay fee to prove
citizenship/lawful immigration status Neither is it illegal to
apply for such There might be application here to S/T permits &
ETC. John R. Wible, 2012 All Rights Reserved 10
11. 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 Styled Doe v. Bentley, Case No. CV-2011-882
(Montgomery County Circuit Court). 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 plaintiffs motion
dismissing the case. John R. Wible, 2012 All Rights Reserved
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12. Recent Developments German born Manager of Mercedes-Benz
plant arrested in Tuscaloosa for having no drivers 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 12
13. General Effects on Public Health"I dont 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 13
14. 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 14
15. Sections of the Act ImpactingHealth Care Section 7: Public
Benefits Section 9: Contracts Section 29: Birth Certificates
Section 15: E-verification of Employees(effective 4/1/12) Section
30: Business Transactions John R. Wible, 2012 All Rights Reserved
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16. IMMEDIATE IMPACT ON ADPH Health Services
Licensing/permitting programs Environmental EMS Radiation Health
Care Facilities Issuance of Birth Certificates John R. Wible, 2012
All Rights Reserved 16
17. 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 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 17
18. Exempt Programs/ServicesAct 2011-535 expressly exempts the
followingprograms/services from citizenship/lawful
presenceverification 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 18
19. Excluded Federal Benefit ProgramsThe following
services/programs are federalpublic benefits and excluded from
thecitizenship/lawful presence verificationrequirements by federal
law/rules/guidance: Family planning ABCCEDP Tobacco CessationHere,
there is a direct conflict between Stateand Federal law. John R.
Wible, 2012 All Rights Reserved 19
20. Medicaid Programs Verification of U.S. Citizenship and
lawfulpresence of aliens participating in thefollowing programs is
also NOT required as theAlabama Medicaid Agency
determineseligibility to receive the services: Patient First Plan
First EPSDT Dental (Medicaid clients) Home Health
(Medicaid/Medicare clients). John R. Wible, 2012 All Rights
Reserved 20
21. 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 21
22. Childrens Health Insurance Program (CHIP)CHIP is already
required to verifycitizenship or lawful presence of aliens butis
authorized by Act 2011-535 to utilizeother means approved by the
FederalgovernmentCHIP already has an account with SAVE John R.
Wible, 2012 All Rights Reserved 22
23. John R. Wible, 2012 All Rights Reserved 23
24. 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 governments
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. John R. Wible, 2012 All
Rights Reserved 24
25. ALABAMA DEPARTMENT OF PUBLIC HEALTH DECLARATION OF
CITIZENSHIP AND LAWFUL PRESENCE OF AN ALIEN FOR PUBLIC BENEFITS AND
LICENSING/PERMITTING PROGRAMSTitle 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 certainaliens 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 localbenefits. Every U.S. Citizen applying for a state or
local public benefit must sign a declaration of Citizenship, and
thelawful 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 theapplicant 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 notexempt or excluded from
citizenship/lawful presence verification requirements.
Medicaid/Medicare clients are notrequired 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
soleproprietorship, but does not include other business entities
such as corporations. SECTION 1 --- APPLICANT INFORMATIONNAME:
___________________________________________________________________________________________(Print
or Type) (Last) (First) (M.I.)DATE OF BIRTH:
______________________________________________________________________________
SECTION II --- U.S. CITIZENSHIP OR NATIONAL STATUSAre you a citizen
or national of the United States (check one) ___ Yes ___ NoIf you
answered YES: (1) Provide an original or legible copy of document
from attached List A or other document thatdemonstrates 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 STATUSAre you an alien lawfully present in the
United States? ___ Yes ___ NoIf you answered Yes: (1) Provide an
original or legible copy of the front and back (if any) of a
document from attachedList B or other document that demonstrates
lawful presence in the United States. (2) Complete Section IV.
Informationfrom 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 -- DECLARATIONI declare under penalty of perjury under
the laws of the State of Alabama that the answers and evidence I
provided are trueand correct to the best of my
knowledge.__________________________________________________
_______________APPLICANTS/ LEGAL REPRESENTATIVES SIGNATURE
DATE______________________________________________
_________________________________If signed by legal representative,
Relationship to Patient Health Dept. Employee John R. Wible, 2012
All Rights Reserved 25
26. John R. Wible, 2012 All Rights Reserved 26
27. John R. Wible, 2012 All Rights Reserved 27
28. John R. Wible, 2012 All Rights Reserved 28
29. 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 John R. Wible, 2012 All Rights
Reserved 29
30. 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 or other
potential permitee is not subject to SAVing John R. Wible, 2012 All
Rights Reserved 30
31. 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 applicants citizenship/lawful presence must be
determined. John R. Wible, 2012 All Rights Reserved 31
32. 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 32
33. 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 John R. Wible, 2012 All
Rights Reserved 33
34. 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. John R. Wible,
2012 All Rights Reserved 34
35. John R. Wible, 2012 All Rights Reserved 35
36. The Declaration Form When implemented, form Must be
submitted when initially presenting for health 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 36
37. The Declaration Form Full name and date of birth are
important for verification through SAVE. Type of document
supporting citizenship must be stated on the form John R. Wible,
2012 All Rights Reserved 37
38. The Declaration 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.
John R. Wible, 2012 All Rights Reserved 38
39. 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 drivers license is acceptable. A
valid drivers license from another state may not be. A legible copy
of a document indicating U.S. citizenship is acceptable. John R.
Wible, 2012 All Rights Reserved 39
40. 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
clients file John R. Wible, 2012 All Rights Reserved 40
41. 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
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42. Alien Declaration/Verification A legible copy of
documentation containing a photograph of the bearer is acceptable
John R. Wible, 2012 All Rights Reserved 42
43. Acceptable Documentation Not Acceptable DocumentationJohn
R. Wible, 2012 All Rights Reserved 43
44. Alien Declaration/Verification 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 name of the applicant, date
of birth, and alien registration number on the document may be
communicated to the designated SAVE user John R. Wible, 2012 All
Rights Reserved 44
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 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
John R. Wible, 2012 All Rights Reserved 46
47. 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 47
48. SAVE SAVE is an inter-governmental initiative designed to
aid benefit- granting agencies in determining an applicants
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 applicants 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. John R. Wible, 2012 All
Rights Reserved 48
49. SAVE The SAVE Program uses electronic and paper records for
accessing information to verify an applicants 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 49
50. Nondiscrimination The eligibility of an applicant cannot be
based upon an applicants 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 50
51. 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. John R. Wible, 2012 All Rights Reserved
51
52. 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 We have had a few requests for these John R. Wible,
2012 All Rights Reserved 52
53. 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
HB 56 excludes emergency treatment John R. Wible, 2012 All Rights
Reserved 53
54. 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 54
55. 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 55
56. For a Video See:November 15, 2011 Rock Center with Brian
Williamshttp://www.bing.com/videos/watch/video/help-not-
wanted-alabama-immigration-law-sparks- feud/60bci5h John R. Wible,
2012 All Rights Reserved 56
57. QUESTIONS OR COMMENTS? John R. Wible, 2012 All Rights
Reserved 57