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Immigration presentation3 final

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Alabama's Immigration Law

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Immigration presentation3 final

  1. 1. Alabama’s 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. 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. 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 Caesar’s” This fits that category, therefore . . . John R. Wible, 2012 All Rights Reserved 3
  4. 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. 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. 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. 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 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, 2012 All Rights Reserved 7
  8. 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. 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. 10. Central Alabama Fair HousingCenter, et al. v. Julie Magee, et al. Depart. of Revenue’s 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. 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 plaintiff’s motion dismissing the case. John R. Wible, 2012 All Rights Reserved 11
  12. 12. Recent Developments German born Manager of Mercedes-Benz plant arrested in Tuscaloosa for having no driver’s license. Case dismissed. Japanese-born employee of Honda plant arrested in North Alabama. Case dismissed, employee had a valid international D/L Governor has apologized to Germany and Japan and stated “we want your business.” No one yet arrested for giving assistance to undocumented person John R. Wible, 2012 All Rights Reserved 12
  13. 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. 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. 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 15
  16. 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. 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. 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. 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. 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. 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. 22. Children’s 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 Federalgovernment•CHIP already has an account with SAVE John R. Wible, 2012 All Rights Reserved 22
  23. 23. John R. Wible, 2012 All Rights Reserved 23
  24. 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 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, 2012 All Rights Reserved 24
  25. 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.__________________________________________________ _______________APPLICANT’S/ LEGAL REPRESENTATIVE’S SIGNATURE DATE______________________________________________ _________________________________If signed by legal representative, Relationship to Patient Health Dept. Employee John R. Wible, 2012 All Rights Reserved 25
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  29. 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. 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. 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 applicant’s citizenship/lawful presence must be determined. John R. Wible, 2012 All Rights Reserved 31
  32. 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. 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. 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
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  36. 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. 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. 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. 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 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, 2012 All Rights Reserved 39
  40. 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 client’s file John R. Wible, 2012 All Rights Reserved 40
  41. 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 41
  42. 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. 43. Acceptable Documentation Not Acceptable DocumentationJohn R. Wible, 2012 All Rights Reserved 43
  44. 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. 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. 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. 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. 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. 49. SAVE The SAVE Program uses electronic and paper records for accessing information to verify an applicant’s immigration status. ADPH is in the process of registering to use SAVE. The process may take 60-90 days. Only designated users may access the SAVE Program. John R. Wible, 2012 All Rights Reserved 49
  50. 50. Nondiscrimination The eligibility of an applicant cannot be based upon an applicant’s race, color, or national origin. Do not single out individuals who look or sound foreign for closer scrutiny or require them to provide more documentation of citizenship or immigration status than what is required. Decisions about U.S. citizenship shall only be based upon documentation provided. John R. Wible, 2012 All Rights Reserved 50
  51. 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. 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. 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. 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. 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. 56. For a Video See:November 15, 2011 “Rock Center with Brian Williams”http://www.bing.com/videos/watch/video/help-not- wanted-alabama-immigration-law-sparks- feud/60bci5h John R. Wible, 2012 All Rights Reserved 56
  57. 57. QUESTIONS OR COMMENTS? John R. Wible, 2012 All Rights Reserved 57

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