1. Alabamas 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

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 or employees John R. Wible, 2011 All Rights Reserved 2

3. 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, 2011 All Rights Reserved 3

4. 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, 2011 All Rights Reserved 4

5. 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, 2011 All Rights Reserved 5

6. 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, 2011 All Rights Reserved 6

7. 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, 2011 All Rights Reserved 7

8. 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, 2011 All Rights Reserved 8

9. Central Alabama Fair HousingCenter, et al. v. Julie Magee, et al. The Department of Revenues policy stemmed from a provision of Alabamas HB 56 that criminalized business transactions with the state by undocumented immigrants. Pending before the court John R. Wible, 2011 All Rights Reserved 9

10. 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 plaintiffs motion dismissing the case. John R. Wible, 2011 All Rights Reserved 10

11. 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 No one yet arrested for giving assistance to undocumented person John R. Wible, 2011 All Rights Reserved 11

12. 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 wont get adequate prenatal care John R. Wible, 2011 All Rights Reserved 12

13. 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 John R. Wible, 2011 All Rights Reserved 13

14. Sections of the Act ImpactingHealth Care Section 7: Public Benefits(effective immediately) Section 30: Business Transactions(effective immediately) Section 29: Birth Certificates(effective immediately) Section 9: Contracts(effective 1/1/12) Section 15: E-verification of Employees(effective 4/1/12) John R. Wible, 2011 All Rights Reserved 14

15. IMMEDIATE IMPACT ON ADPH Health Services Licensing/permitting programs Environmental EMS Radiation Health Care Facilities Issuance of Birth Certificates John R. Wible, 2011 All Rights Reserved 15

16. 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. John R. Wible, 2011 All Rights Reserved 16

17. 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, 2011 All Rights Reserved 17

18. 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, 2011 All Rights Reserved 18

19. 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, 2011 All Rights Reserved 19

20. 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, 2011 All Rights Reserved 20

21. Childrens Health Insurance Program (CHIP)CHIP is also required to verify U.S.citizenship or lawful presence of aliensbut is authorized by Act 2011-535 toutilize other means approved by theFederal government. John R. Wible, 2011 All Rights Reserved 21

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23. 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, 2011 All Rights Reserved 23

24. 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, 2011 All Rights Reserved 24

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28. 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. John R. Wible, 2011 All Rights Reserved 28

29. 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. John R. Wible, 2011 All Rights Reserved 29

30. 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 applicants citizenship/lawful presence must be determined. John R. Wible, 2011 All Rights Reserved 30

31. 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, 2011 All Rights Reserved 31

32. 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, 2011 All Rights Reserved 32

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34. 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. John R. Wible, 2011 All Rights Reserved 34

35. 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, 2011 All Rights Reserved 35

36. 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, 2011 All Rights Reserved 36

37. 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, 2011 All Rights Reserved 37

38. 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, 2011 All Rights Reserved 38

39. 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, 2011 All Rights Reserved 39

40. Alien Declaration/Verification A legible copy of documentation containing a photograph of the bearer is acceptable John R. Wible, 2011 All Rights Reserved 40

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42. 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, 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 John R. Wible, 2011 All Rights Reserved 42

43. 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, 2011 All Rights Reserved 43

44. 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, 2011 All Rights Reserved 44

45. 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, 2011 All Rights Reserved 45

46. 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, 2011 All Rights Reserved 46

47. 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, 2011 All Rights Reserved 47

48. 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, 2011 All Rights Reserved 48

49. 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, 2011 All Rights Reserved 49

50. 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 John R. Wible, 2011 All Rights Reserved 50

51. 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 John R. Wible, 2011 All Rights Reserved 51

52. 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, 2011 All Rights Reserved 52

53. 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? John R. Wible, 2011 All Rights Reserved 53