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Alabama’s Immigration Law  Impacts on Health Care          John R. Wible     General Counsel (retired)Alabama Department o...
Acknowledgement/Caveat Based upon analysis of Greg Locklier,  Assistant General Counsel, ADPH Mr. Locklier is not respon...
Introduction The Beason-Hammond Alabama  Taxpayer and Citizen Protection  Act, HB 56, (Act 2011-535) was  signed into law...
The Act Declares “unlawfully present” aliens to be  ineligible to receive public benefits or to obtain  licenses/permits ...
LitigationSoon after the legislation was signed intolaw, the U.S. Department of Justice and acoalition of individuals and ...
Hispanic Coalition of Ala. et al. v. Governor, et al. October 14, the 11th Circuit appeals court approved the U.S.  Justi...
United States v. AlabamaOn appeal, 11th Circuit Court of Appeals holds: Enjoined Sections 10 and 28, which permit law enf...
U.S. v. Alabama (cont.) The court refused to halt a provision that would  require police in Alabama to do immigration sta...
Central Alabama Fair HousingCenter, et al. v. Julie Magee, et al. The Department of Revenue’s policy stemmed from a  prov...
State Litigation The Attorney General reports as of November 4, 2011 In late July, 2011, five individuals filed suit aga...
Recent Developments German born Manager of Mercedes-Benz plant  arrested in Tuscaloosa for having no driver’s license.  C...
General Effects on Public Health "I dont want to spread fear, but any time people are afraid to get medical care there ar...
More Detrimental Effects Citizen children and those in lawful  status may not get adequate health care Water may be less...
Sections of the Act ImpactingHealth Care Section 7: Public Benefits(effective immediately) Section 30: Business Transact...
IMMEDIATE IMPACT ON ADPH     Health Services     Licensing/permitting programs      •    Environmental      •    EMS    ...
Health Care Services An alien not legally present in the U.S. is not  entitled to receive certain public benefits. An al...
Exempt Programs/ServicesAct 2011-535 expressly exempts the followingprograms/services from citizenship/lawful presenceveri...
Excluded Federal Benefit ProgramsThe following services/programs are federalpublic benefits and excluded from thecitizensh...
Medicaid Programs Verification of U.S. Citizenship and lawfulpresence of aliens participating in thefollowing programs is ...
Verification of U.S. citizenship      and lawful presence IS           REQUIRED for: Non-Medicaid dental services Privat...
Children’s Health Insurance      Program (CHIP)CHIP is also required to verify U.S.citizenship or lawful presence of alien...
John R. Wible, 2011 All Rights Reserved   22
Means of Verifying U.S.            Citizenship or     Lawful Presence of an Alien   Completion of a declaration form by c...
ALABAMA DEPARTMENT OF PUBLIC HEALTH                 DECLARATION OF CITIZENSHIP AND LAWFUL PRESENCE OF AN              ALIE...
John R. Wible, 2011 All Rights Reserved   25
John R. Wible, 2011 All Rights Reserved   26
John R. Wible, 2011 All Rights Reserved   27
Licensing and Permitting Programs     An alien not lawfully present in the U.S. may      not enter into a “business trans...
Licensing and Permitting             Programs Act 2011-535 only impacts the licensing  and permitting of individuals.• It...
Licensing and Permitting                Programs For purposes of implementing Act 2011-  535, an applicant for a license/...
How to determine if an applicant is a business   entity other than sole proprietorship? Check the application for the nam...
Means of Verifying U.S. Citizenship or        Lawful Presence of an Alien Completion of a declaration form by client/appl...
John R. Wible, 2011 All Rights Reserved   33
The Declaration Form Must be submitted when initially presenting for  health services and applying for or renewing  permi...
The Declaration Form Full name and date of birth are  important for verification through  SAVE. Type of document support...
The Declaration Form Applicant must sign and date form. A parent or legal guardian may sign  the form on behalf of the m...
U.S. Citizen Declaration/Verification   If applicant declares to be U.S. citizen,    he/she must present a document    de...
U.S. Citizen Declaration/Verification      If the form is properly completed and       acceptable documentation provided,...
Alien Declaration/Verification If applicant declares to be a lawfully present  alien, he/she must present a document  dem...
Alien Declaration/Verification A legible copy of documentation  containing a photograph of the bearer  is acceptable     ...
John R. Wible, 2011 All Rights Reserved   41
Alien Declaration/Verification Most non-citizen registration documents may be  photocopied. Any INS document that cannot ...
Alien Declaration/Verification If the applicant declares to be a lawfully  present alien and provides supporting  documen...
Alien Declaration/Verification   If an applicant presents an expired    document or is unable to present any    immigrati...
Alien Declaration/Verification If for any reason the verification through  SAVE is delayed or is inconclusive, the alien ...
SAVE SAVE is an inter-governmental initiative designed to aid benefit-  granting agencies in determining an applicants im...
SAVE The SAVE Program uses electronic and  paper records for accessing information to  verify an applicant’s immigration ...
Nondiscrimination The eligibility of an applicant  cannot be based upon an applicant’s race,  color, or national origin....
Nondiscrimination The verification of the lawful presence  of an alien shall only be made by the  U.S. Government through...
Birth Certificates/Voter      Registration  •ADPH must provide a certified copy of a birth  certificate free of charge for...
Conflict with EMTALA Duties under EMTALA    Emergency screening examination    EMC until the condition is resolved or s...
HIPAA Consequences Covered Entity may, but is not required to disclose under HIPAA w/o pt. consent if required by law to:...
Required Reporters State employees, only, are required reporters Required reporters have a legal duty to inform the  aut...
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  • Based upon analysis of Greg Locklier, Assistant General Counsel, Alabama Department of Public Health to whom I m indebted. However, 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 adviceNo representation is made that this presentation represents the opinion of the Alabama Department of Public Health, it officers or employees
  • Section 2. The State of Alabama finds that illegal immigration is causing economic hardship and lawlessness in this state and that illegal immigration is encouraged when public agencies within this state provide public benefits without verifying immigration status. Because the costs incurred by school districts for the public elementary and secondary education of children who are aliens not lawfully present in the United States can adversely affect the availability of public education resources to students who are United States citizens or are aliens lawfully present in the United States, the State of Alabama determines that there is a compelling need for the State Board of Education to accurately measure and assess the population of students who are aliens not lawfully present in the United States, in order to forecast and plan for any impact that the presence such population may have on publicly funded education in this state. The State of Alabama further finds that certain practices currently allowed in this state impede and obstruct the enforcement of federal immigration law, undermine the security of our borders, and impermissibly restrict the privileges and immunities of the citizens of Alabama. Therefore, the people of the State of Alabama declare that it is a compelling public interest to discourage illegal immigration by requiring all agencies within this state to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws. The State of Alabama also finds that other measures are necessary to ensure the integrity of various governmental programs and services.
  • ALIEN. Any person who is not a citizen or national of the United States, as described in 8 U.S.C. § 1101, et seq., and any amendments thereto .  If you read 8 USC § 1101, it basically defines an alien as anyone who is not legally in the country who is not already a US citizen.(10) LAWFUL PRESENCE or LAWFULLY PRESENT. A person shall be regarded as an alien unlawfully present in the United States only if the person’s unlawful immigration status has been verified by the federal government pursuant to 8 U.S.C. § 1373(c ). No officer of this state or any political subdivision of this state shall attempt to independently make a final determination of an alien’s immigration status. An alien possessing self-identification in any of the following forms is entitled to the presumption that he or she is an alien lawfully present in the United States :a. A valid, unexpired Alabama driver’s license.b. A valid, unexpired Alabama nondriver identification card.c. A valid tribal enrollment card or other form of tribal identification bearing a photograph or other biometric identifier.d. Any valid United States federal or state government issued identification document bearing a photograph or other biometric identifier, if issued by an entity that requires proof of lawful presence in the United States before issuance.e. A foreign passport with an unexpired United States Visa and a corresponding stamp or notation by the United States Department of Homeland Security indicating the bearer’s admission to the United States.f. A foreign passport issued by a visa waiver country with the corresponding entry stamp and unexpired duration of stay annotation or an I-94W form by the United States Department of Homeland Security indicating the bearer’s admission to the United States. This is a confusing and feeble attempt to pretend that the person is presumed to be legal unless he has been “E-verified” not to be here legally. The bill does not make it clear how a person is brought under suspicion as being an alien. Profiling will probably happen here. My friend, Mrs. Sitz, who has been a naturalized citizen for probably 30 years but is very Mexican looking will immediately under suspicion whereas Candyce Dekruyff (A recently naturalized Canadian citizen) will not be merely because she looks like “an American.” (All be it with a funny accent, “eh?)(14) STATE-FUNDED ENTITY. Any governmental entity of the state or a political subdivision thereof or any other entity that receives any state monies . Any entity that receives any state grants will be subject to the law.
  • 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
  • On August 1, 2011 two additional lawsuits were filed in the Northern District of Alabama.  The United States sued the State of Alabama and Governor Bentley, alleging that various provisions of Act No. 2011-535 are preempted by federal law. United States v. Alabama, Case No. 2:11-cv-02746-SLB (N.D. Ala., pending). A group of Church Leaders sued Governor Bentley, Attorney General Strange, and a district attorney.  Parsley v. Bentley, Case No. 5:11-cv-02736-SLB (N.D. Ala., pending).  The plaintiffs are: the Bishop of the Episcopal Church in the Diocese of Alabama; the Bishop of the North Alabama Conference of the United Methodist Church; the Roman Catholic Archbishop of Mobile; the Roman Catholic Bishop of Birmingham; the Benedictine Sisters of Cullman, Alabama, Inc.; and, the Benedictine Society of Alabama. The Church Leaders focus on Sections 13 and 27 of the Act, which they allege violate their federal constitutional rights with respect to religion. 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.
  • First, Judge Blackburn issued a preliminary injunction of Section 8 of HB56, as preempted by federal immigration law.  HB56 §8 provides:An alien who is not lawfully present in the United States shall not be permitted to enroll in or attend any public postsecondary education institution in this state. An alien attending any public postsecondary institution in this state must either possess lawful permanent residence or an appropriate nonimmigrant visa under 8 U.S.C. § 1101, et seq. For the purposes of this section, a public postsecondary education institution officer may seek federal verification of an alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c). A public postsecondary education institution officer or official shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States. Except as otherwise provided by law, an alien who is not lawfully present in the United States shall not be eligible for any postsecondary education benefit, including, but not limited to, scholarships, grants, or financial aid.The judge found that Congressional intent was contrary and clear, and thus the state law was preempted.  Only Congress, the judge stated, may "classify aliens" including for postsecondary education.Second, the judge issued a preliminary injunction of the last sentences of Sections 10(e), 11(e), and 13(h) based on the Compulsory Process Clause of the Sixth Amendment.  These sentences provide that "A court of this state shall consider only the federal government’s verification in determining whether an alien is lawfully present in the United States."   The judge found that to the extent Sections 10(e), 11(e), and 13(h) of H.B. 56 are interpreted as allowing a defendant to be convicted based on a certificate of nonexistent record (CNR) without testimony from the clerk or officer preparing the report, these sections violate the Confrontation Clause, but because there is no evidence this has occurred, the Confrontation Clause argument does not merit a preliminary injunction.  As to the Compulsory Process Clause challenge, however,  Judge Blackburn ruled that by "limiting evidence admissible in a state-court proceeding to “only” the federal government verification of lawful presence, Sections 10(e), 11(e), and 13(h) deny every person accused of violating Sections 10, 11 or 13 of H.B. 56 the constitutionally-protected right to present a defense. By denying accused individuals the opportunity to prove lawful presence, Alabama has denied all individuals charged under these sections with their right to compulsory process."Third,  the judge issued a preliminary injunction of Sections 11 (f) and (g) based on the First Amendment.  These provision provide:(f) It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.(g) It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.The judge found that these provision were not content neutral because they applied to a particular subject matter of expression - - - solicitation of employment - - - rather than to particular conduct, such as blocking traffic.  Yet the judge also analyzed the provisions under the commercial speech doctrine Alabama advocated, finding them failing to satisfy that lower standard.OutcomeThe Eleventh Circuit granted the plaintiffs' request for an injunction of 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 the plaintiffs' request as to 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.The Eleventh Circuit's opinion contains little discussion of its reasoning, concluding, without elaboration, that the plaintiffs satisfied the four requirements for an injunction with regard to Sections 10 and 28. The court noted that its ruling does not bind the three-judge Eleventh Circuit panel that will hear a full appeal of the district court's ruling following briefing and oral argument
  • 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 standingOral Hearing set in late February, early March, 2012
  • As part of a harsh anti-immigrant law, the Alabama Department of Revenue required people who owned or maintained mobile homes in the state to prove their lawful immigration status before they could pay annual fees for an identification decal required for all mobile homes under state law. The Southern Poverty Law Center and its allies filed a federal class-action lawsuit challenging the immigration check as a violation of the Fair Housing Act that threatened to leave families across the state homeless. 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. By adopting this policy, local officials had to determine the immigration status of every person paying these fees – even though these officials had not been trained for this task and could potentially deny decals to individuals with lawful status. Failure to pay the mobile home fees resulted in fines and was considered a criminal misdemeanor. Individuals who attempted to renew their decals but were unable to prove their immigration status risked being charged with a felony because they would be considered an undocumented immigrant attempting to engage in a “business transaction” with the state. This practice threatened immigrant families – regardless of their immigration status – with eviction. Mobile home parks often required homeowners to have a current decal or face eviction from the park. Mobile home owners unable to obtain a decal could not move the home to a new location because it was illegal to transport a mobile home on public roads without a moving permit, which could only be obtained through a “business transaction” with the state where immigration status would be checked.The lawsuit charged that this provision of the state’s anti-immigrant law was unconstitutional, violated the Fair Housing Act and usurped the federal government’s authority to enforce immigration law.
  • The Attorney General reports as of November 4, 2011In 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. 
  • 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
  • Here are the 10 most destructive public-health consequences under Alabama’s H.B. 56:1. Children won’t get immunization program that protects all residents against diseases such as chicken pox, measles, polio, and even the flu. Health workers in Alabama report that people are afraid to come to their clinics for flu shots. If parents are afraid to get flu shots for themselves or t required immunizations. A key safeguard of public health is a robust their children, even though the law technically says that lawful status is not required for immunizations, our whole society is put at risk.2. Communicable diseases will spread. Another bedrock of public health is accessible screening and treatment programs for communicable diseases. Tuberculosis and hepatitis are contagious diseases that are detected only through vigorous testing and cured only through consistent treatment. Alabama public-health officials warned the state years ago that if undocumented residents of Alabama were afraid of the immigration consequences of going to a health clinic, there would be increased risk of “severe health problems and the spread of infections.”3. Mothers won’t get adequate prenatal care. It is common knowledge that healthy mothers are more likely to give birth to healthy babies. The Alabama law does not require lawful status for prenatal care, but undocumented mothers who are afraid to go to health clinics for fear of being asked for “papers please” won’t get the care they need. The head of the Alabama Department of Public Health, Don Williamson, warned in testimony in 2007 that there had already been a sharp increase in low-birthweight babies and infant deaths among the Hispanic population in the state and that fewer than half of Hispanic mothers had received prenatal care. Williamson urged that the state avoid establishing “restrictions for programs that serve pregnant women, infants and children.” Babies born to mothers who have not received good prenatal care will require additional medical care and will be a challenge to the public-health services in the state. As Dr. Williamson noted in his testimony, lack of access to maternal and infant preventative care can result in medical problems becoming “serious and more expensive.”
  • 5. U.S. citizen children and those in lawful status won’t get adequate health care. Citizen children of parents who are afraid to go to clinics, or whose parents aren’t sure if they are barred by the “business transaction” provision of the law, won’t get the health care they need and deserve. “Waiting rooms that once were full at some county health clinics just a few weeks ago now have empty seats because Hispanic patients stopped showing up,” reports Dr. Jim McVay of the Alabama Department of Public Health. Citizen kids will suffer lifetime consequences that follow from not getting adequate health care when they are young.6. Water will be less safe. Clean water is a fundamental requirement for a healthy society. Serious public-health risks such as E. coli infections and even cholera can spread through contaminated water. If residents of Alabama can’t get public water and sewer service, and can’t even get permits to repair or install safe septic tanks, they will be forced to use potentially unsafe water, which could expose them to health risks and then others they come in contact with. Broken septic systems also can contaminate the public water supply. Everyone will be exposed to unnecessary health risks and dangers.7. Restaurants will be unable to get health permits. The Alabama Department of Public Health is now requiring proof of citizenship for health permits for restaurants. While many restaurant owners who can’t meet this requirement will shut down, others may simply try to operate underground without health permits, at least until overworked health inspectors locate and stop them. The risk to public health will only increase under these conditions.8. Food supplies will be less safe. Safe food is a fundamental requirement for a healthy society. Outbreaks of E. coli in the food supply have already alarmed the public in recent months. If residents of Alabama are unable to obtain septic permits, the resulting contaminated water will run off into farms and fields, and the food supply will be less safe. Public risk of food-borne disease will increase.9. Public health costs will increase. Alabama’s new immigration law may temporarily reduce the cost of providing medical care to undocumented residents, but it will greatly increase the overall cost of medical care for all residents of Alabama who will be exposed to increased risk and disease as the result of the shortsighted policies listed above. The more people delay primary care, for example, the greater the likelihood that they will require more expensive emergency care down the road.10. Bottom line: All of the people of Alabama will suffer negative health consequences. The 4.8 million people of Alabama will suffer unnecessary and increased public health risks as the result of a law intended to punish and drive out 2.5 percent of the population. Such high risk for such alleged benefit does a terrible disservice to all of the people of Alabama.
  • Sections of the Act Impacting Health CareSection 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)
  • IMMEDIATE IMPACT ON ADPH Health Services Licensing/permitting programs Environmental EMS Radiation Health Care Facilities Issuance of Birth Certificates
  • 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/ServicesAct 2011-535 expressly exempts the following programs/services from citizenship/lawful presence verification requirements: WIC Immunizations In kind disaster relief Communicable diseasePre-natal care Emergency medical treatment Child or adult protective services
  • Excluded Federal Benefit ProgramsThe 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 CessationHere, there is a direct conflict between State and Federal law.
  • Exempt Programs/ServicesAct 2011-535 expressly exempts the following programs/services from citizenship/lawful presence verification requirements: WIC Immunizations In kind disaster relief Communicable diseasePre-natal care Emergency medical treatment Child or adult protective services
  • Verification of U.S. citizenship and lawful presence IS REQUIRED for: Non-Medicaid dental servicesPrivate pay or indigent Home Health servicesProstate screeningsNon-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 AlienCompletion 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.
  • 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 ProgramsAct 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 ProgramsFor 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 AlienCompletion 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 FormMust 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.
  • The Declaration FormFull name and date of birth are important for verification through SAVE. Type of document supporting citizenship must be stated on the form
  • The Declaration FormApplicant 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/VerificationIf 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.
  • Alien Declaration/VerificationA legible copy of documentation containing a photograph of the bearer is acceptable.
  • Alien Declaration/VerificationMost 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.
  • Alien Declaration/VerificationIf 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.
  • 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.
  • Alien Declaration/VerificationIf 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 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.”
  • SAVEThe 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.
  • NondiscriminationThe 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.
  • NondiscriminationThe verification of the lawful presence of an alien shall only be made by the U.S. Government through the use of its SAVE Program.
  • ADPH must provide a certified copy of a birth certificate free of charge for the purpose of registering to vote in this stateA 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.
  • Hospital obligationsHospitals have three obligations under EMTALA:Individuals requesting emergency care, or those for whom a representative has made a request if the patient is unable, must receive a medical screening examination to determine whether an emergency medical condition (EMC) exists. The participating hospital cannot delay examination and treatment to inquire about methods of payment or insurance coverage, or a patient's citizenship or legal status. The hospital may only start the process of payment inquiry and billing once they have stabilized the patient to a degree that the process will not interfere with or otherwise compromise patient care.The emergency room (or other better equipped units within the hospital) must treat an individual with an 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. Inpatient care provided must be at an equal level for all patients, regardless of ability to pay. Hospitals may not discharge a patient prior to stabilization if the patient's insurance is canceled or otherwise discontinues payment during course of stay.If the hospital does not have the capability to treat the condition, the hospital must make an "appropriate" transfer of the patient to another hospital with such capability. This includes a long-term care or rehabilitation facilities for patients unable to provide self-care. Hospitals with specialized capabilities must accept such transfers and may not discharge a patient until the condition is resolved and the patient is able to provide self-care or is transferred to another facility.All patients have EMTALA rights equally, regardless of age, race, religion, nationality, ethnicity, residence, citizenship, or legal status. If patient's status is found to be illegal, hospitals may not discharge a patient prior to completion of care, though law enforcement and hospital security may take necessary action to prevent a patient from escaping or harming others. Treatment may only be delayed as needed to prevent patients from harming themselves or others.Also applies to hospital-based clinics/services (EMS)EMTALA does not apply to other H/C providers
  • Law Enforcement Purposes. Covered entities may disclose protected health information to law enforcement officials for law enforcement purposes under the following six circumstances, and subject to specified conditions: (1) as required by law (including court orders, court-ordered warrants, subpoenas) and administrative requests; (2) to identify or locate a suspect, fugitive, material witness, or missing person; (3) in response to a law enforcement official’s request for information about a victim or suspected victim of a crime; (4) to alert law enforcement of a person’s death, if the covered entity suspects that criminal activity caused the death; (5) when a covered entity believes that protected health information is evidence of a crime that occurred on its premises; and (6) by a covered health care provider in a medical emergency not occurring on its premises, when necessary to inform law enforcement about the commission and nature of a crime, the location of the crime or crime victims, and the perpetrator of the crime.HIPAA, itself does not require disclosure,permissive onlyDisclose only “minimum necessary” PHI
  • State employees only, are required reporters.Required reporters have a legal duty to inform the authorities of violations of the law.This does not apply to private citizens13A-10-2, Code of Alabama 1975, misdemeanorQUESTIONS OR COMMENTS?
  • Transcript of "Immigration presentation2 final"

    1. 1. 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
    2. 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. 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. 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. 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. 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 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 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. 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. 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. 9. Central Alabama Fair HousingCenter, 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 John R. Wible, 2011 All Rights Reserved 9
    10. 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 plaintiff’s motion dismissing the case. John R. Wible, 2011 All Rights Reserved 10
    11. 11. 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 John R. Wible, 2011 All Rights Reserved 11
    12. 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 won’t get adequate prenatal care John R. Wible, 2011 All Rights Reserved 12
    13. 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. 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. 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. 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. 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. 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. 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. 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. 21. Children’s 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
    22. 22. John R. Wible, 2011 All Rights Reserved 22
    23. 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 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. John R. Wible, 2011 All Rights Reserved 23
    24. 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.__________________________________________________ _______________APPLICANT’S/ LEGAL REPRESENTATIVE’S SIGNATURE DATE______________________________________________ _________________________________If signed by legal representative, Relationship to Patient Health Dept. Employee John R. Wible, 2011 All Rights Reserved 24
    25. 25. John R. Wible, 2011 All Rights Reserved 25
    26. 26. John R. Wible, 2011 All Rights Reserved 26
    27. 27. John R. Wible, 2011 All Rights Reserved 27
    28. 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. 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. 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 applicant’s citizenship/lawful presence must be determined. John R. Wible, 2011 All Rights Reserved 30
    31. 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. 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
    33. 33. John R. Wible, 2011 All Rights Reserved 33
    34. 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. 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. 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. 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 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. John R. Wible, 2011 All Rights Reserved 37
    38. 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 client’s file John R. Wible, 2011 All Rights Reserved 38
    39. 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. 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
    41. 41. John R. Wible, 2011 All Rights Reserved 41
    42. 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. 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. 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. 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. 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. 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, 2011 All Rights Reserved 47
    48. 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, 2011 All Rights Reserved 48
    49. 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. 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. 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. 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. 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
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