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  • This presentation is: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, agents, servants, or employeesIn fact, how much did you pay for this? That’s how much it is worth
  • Unless you are a Native American, IE. a descendant of an American Indian tribe, you are an immigrant. America is a nation of immigrants. Bill Murray’s character famously stated in the movie, “Stripes,” We're all very different people. We're not Watusi. We're not Spartans. We're Americans, with a capital 'A', huh? You know what that means? Do ya? That means that our forefathers were kicked out of every decent country in the world. We are the wretched refuse. We're the underdog. We're mutts! . . . But there's no animal that's more faithful, that's more loyal, more loveable than the mutt.America was once known as the “great melting pot.” Now, it’s more accurate to state that we’re the “Great Salad Bowl.”
  • Each period brought distinct national groups, races and ethnicities to the United States.  Colonial Period. During the seventeenth century, approximately 175,000 Englishmen migrated to Colonial America. Over half of all European immigrants to Colonial America during the 17th and 18th centuries arrived as indentured servants.The mid-nineteenth century saw mainly an influx from northern Europe; the early twentieth-century mainly from Southern and Eastern Europe; post-1965 mostly from Latin America and Asia.The peak year of European immigration was in 1907, when 1,285,349 persons entered the country, most through Ellis Island processing center. By 1910, 13.5 million immigrants were living in the United States.Immigration patterns of the 1930s were dominated by the Great Depression, which hit the U.S. hard and lasted over ten years, not really ending until the outbreak of World War II. In the final prosperous year before the Great Crash, 1929, there were 279,678 immigrants recorded. This dropped dramatically to the point where in 1933, only 23,068 came to the U.S. In the early 1930s, more people emigrated from the United States than immigrated to it.Persons Obtaining Legal Permanent Resident Status in the United States of AmericaPost 1965. The Immigration and Nationality Act of 1965, also known as the Hart-Cellar Act, abolished the system of national-origin quotas. By equalizing immigration policies, the act resulted in new immigration from non-European nations, which changed the ethnic make-up of the United States. While European immigrants accounted for nearly 60% of the total foreign population in 1970, they accounted for only 15% in 2000. Immigration doubled between 1965 and 1970, and again between 1970 and 1990. In 1990, President George H. W. Bush (Bush 43) signed the Immigration Act of 1990,which increased legal immigration to the United States by 40%.
  • A 1790 Act limited naturalization to "free white persons"; it was expanded to include African Americans in the 1860s and Asians in the 1950s.The Chinese Exclusion Act was passed in 1882 to stop the immigration of Chinese people, known as “Coolies”.In 1921, the Congress passed the Emergency Quota Act, also known as the Emergency Immigration Act of 1921, the Immigration Restriction Act of 1921, the Per Centum Law, and the Johnson Quota Act. It was followed by the Immigration Act of 1924. The 1924 Act was aimed at further restricting the Southern and Eastern Europeans, especially Jews, Italians, and Slavs, and Asians (principally Chinese).Immigration Act of 1924, or Johnson–Reed Act, including the National Origins Act, and Asian Exclusion Act. It is likely that the Anglo-American stereotypes of these various ethnicities were set in our collective consciousness during this period.During the early 1930s, the U.S. government sponsored a Mexican Repatriation program which was intended to encourage people to voluntarily move to Mexico, but thousands were deported against their will. Altogether about 400,000 Mexicans were repatriatedThus presently, we see history repeating itself.Interestingly enough, most of the European refugees fleeing the Nazis during World War II were barred from coming to the United States.In the post-war era, 1952, the INS was created. In this, the heart of the McCarthy “Red Scare” xenophobic period, the Justice Department launched Operation Wetback, under which 1,075,168 Mexicans were deported in 1954.The Immigration and Nationality Act of 1965, also known as the Hart-Cellar Act, abolished the system of national-origin quotas.the Immigration Act of 1990 increased legal immigration to the United States by 40%.
  • “States have no power to pass immigration laws because it’s an attribute of foreign affairs. Just as states can’t have their own foreign policies or enter into treaties, they can’t have their own immigration laws either.”Karl Manheim, Director of the Program for Law & Technology at the California Institute of Technology and Loyola Law School.The federal power to regulate immigration derives from the “Naturalization Clause.” Fourteenth Amendment, Section 1, sentence 1.S. Section 1 states:“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. . . “
  • Arizona’s SB 1070, as amended by HB 2162 does among other things:1. Requires law enforcement, in making a lawful stop, detention, or arrest for another law, to make a reasonable attempt to determine the person's immigration status where reasonable suspicion exists that the person is not lawfully present in the country;2. Creates a new misdemeanor offense for the willful failure to complete or carry an immigrant registration document under certain circumstances;3. authorizes a peace officer involved in enforcement related to human smuggling to lawfully stop anyone in a motor vehicle on reasonable suspicion that the person is violating a civil traffic law;The Act is on appeal to the US Supreme Court. This is very important to Alabama.
  • 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.Sponsor, Rep. Scott Beason wore a wire in the “statehouse corruption” case and ran unsuccessfully unsuccessfully for Congress.
  • 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.
  • Many believe this is not a good lawMany believe it addresses serious issuesA very wise man once said, “render, therefore unto Caesar that which is Caesar’s. . .” Matthew 22:21This fits that category, therefore . . .
  • 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 standingOn March 8, 2012, the Eleventh Circuit issued an order additionally enjoining the State from enforcing Sections 27 and 30 of the Act during the appeal.  Again, this is an injunction pending appeal, rather than a final decision on the merits.  The Court announced at oral argument that it will not issue a final decision until after the U.S. Supreme Court renders its decision in a pending Arizona case.United States v. Alabama, (Cir. 11, Docket No. 11-14535-CC, March 8, 2012,) consolidated with Hispanic Coalition of Alabama, et al. v. Governor, et al. (supra,) and Parsley v. Bentley, et al. (supra.)
  • Thus, as it stands until the United States Supreme Court rules on the Arizona case, the following sections of HB 56 are temporarily enjoined: 10, 27, 28, and 30. These sections deal, respectively with:Need to carry ID;Inability to make contracts;School requirements; andState permits.There are also less important state court actions pending. See paper.
  • 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 Care and Social WorkSection 7: Public Benefits (effective immediately)Section 30: Business Transactions (effective immediately)Section 29: Birth Certificates (effective immediately)Section 9: Contracts (effective)Section 15: E-verification of Employees (effective 4/1/12)
  • 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 and social 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 Cancer Detection Tobacco CessationHere, there is a direct conflict between State and Federal law.
  • Exempt Programs/ServicesVerification of U.S. Citizenship and lawful presence of aliens participating in the following programs is also NOT required as the Alabama Medicaid Agency determines eligibility to receive the services: Patient First Plan First EPSDT Dental (Medicaid clients) Home Health (Medicaid/Medicare clients).
  • Programs that do not received federal assistance are not subject to the Act and may offer services without “carding” or verifying.However, after April 1, they must E-verify their employees
  • 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.
  • Means of Verifying U.S. Citizenship or Lawful Presence of an AlienMust 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 on enjoined and appeal 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. Enjoined and on appeal awaiting S. Ct.
  • Licensing and Permitting ProgramsAct 2011-535 only impacts the licensing and permitting of individualsIt does not impact the licensing or permitting of business entities, other than sole proprietorshipsThus, partnership or Inc. Restaurant, licensed day care or other potential permitee is not subject to the “SAVing” requirement.Enjoined and on appeal.
  • 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.
  • Beginning in April, 2012, all employers, including state agencies must E-verify all new hiresThe next section deal with how to do that.This section is not before the court and is OK
  • 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.Of course. We would not want anyone to do that would we?
  • 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.
  • 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. Though this is subject to changing by the legislature. May include both other state’s D/Ls and international D/Ls. 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. citizenMaintain 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.
  • As stated above, the driver’s license portion is being amended, but presently, see pictures.
  • 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/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.
  • SAVESAVE 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.”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.
  • 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. God forbid, we’d want to engage in any invidious discrimination o the basis of national origin!
  • 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.
  • Hospital obligationsAll 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 providersHB 56 excludes “emergency treatment,” but not follow up after the emergency is stabilized or if subsequent conditions are found.
  • 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, misdemeanor
  • See “Alabama’s Immigration Law, Impacts of Health and Social Care” a download on Slideshare 7See several presentations & documents also: http://www.slideshare.net/jwible Blog: http://www.johnwible.blogspot.com Also on Facebook
  • Immigration.social.workers

    1. 1. "Making a Case for Social Justice - Opening the Door of Access and Opportunity for Everyone" Alabama’s Immigration Law Impacts on Health and Social Care By John R. Wible General Counsel (retired) Alabama Department of Public Health John R. Wible, 2012 All Rights Reserved 1
    2. 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. We Are All Immigrants! Were all very different people Were not Watusi Were not Spartans Were Americans with a Capital “A” USA is the “Great Salad Bowl” John R. Wible, 2012 All Rights Reserved 3
    4. 4. Inmigración History 101Historically, American immigration history can be viewed in four periods: the colonial period, the mid-nineteenth century, the turn of the twentieth Ellis Island century, and Post-1965. John R. Wible, 2012 All Rights Reserved 4
    5. 5. Inmigración Laws Act of 1790 Chinese Exclusion Act 1882 Acts of the 1920s Mexican Deportation Acts of 1930s Immigration and Nationality Act of 1952 “Operation Wetback” Immigration and Nationality Act of 1965 Act of 1990 John R. Wible, 2012 All Rights Reserved 5
    6. 6. A Strictly Federal Power“States have no power to pass immigration laws because it’s an attribute of foreign affairs. Just as states can’t have their own foreign policies or enter into treaties, they can’t have their own immigration laws either.” -Karl Manheim, Program for Law & Technology, Cal Tech and Loyola Law School. John R. Wible, 2012 All Rights Reserved 6
    7. 7. The Arizona Law on Appeal Arizona Sheriff Joe Arpaio The “Support Our Law Enforcement and Safe Neighborhoods Act”  Police to check nationality of “reasonably suspicious” person in traffic or other arrest  Requires everyone to carry citizenship docs  Police to stop any reasonably suspicious vehicle to check for human smuggling  On appeal to U.S. Supreme Court John R. Wible, 2012 All Rights Reserved 7
    8. 8. The Alabama Law• The Beason-Hammond “Alabama Taxpayer and Citizen Protection Act,” HB 56, (Act 2011-535) was signed into law on June 9, 2011.• Purpose: To discourage illegal immigration, according to Section 2 of the text and statements by the sponsor*• Sponsor, Rep. Scott Beason wore a wire in the “statehouse corruption” case and ran unsuccessfully for Congress. John R. Wible, 2012 All Rights Reserved 8
    9. 9. The Act Dec & Def Declares “unlawfully present” aliens to be ineligible to receive public benefits or to obtain licenses/permits from state or local agencies. Requires employers to verify citizenship/lawful presence of its employees. Makes it illegal to enter into a contract with an unlawfully present alien. Proclaims it Illegal to assist such persons John R. Wible, 2012 All Rights Reserved 9
    10. 10. Attitude Many believe this is not a good law Many believe it addresses serious issues A very wise man once said, “render, therefore unto Caesar that which is Caesar’s” * This fits that category, therefore . . . * Matthew 22:21 John R. Wible, 2012 All Rights Reserved 10
    11. 11. 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 11
    12. 12. 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 12
    13. 13. 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 13
    14. 14. U.S. v. Alabama (cont.) The court refused to halt a provision that would require police in Alabama to do immigration status checks under certain circumstances. Did not deal with section 13 “giving assistance” to undocumented persons (lower court denied injunction as moot for want of standing On Appeal, enjoined §§ 27 and 30 Awaiting S. Ct. decision in Arizona case. John R. Wible, 2012 All Rights Reserved 14
    15. 15. Enjoined Sections 10 Need to carry ID 27 Inability to make contracts 28 School reporting requirements 30 Inability to obtain state permitsThere are also less important state court actions pending. See paper. John R. Wible, 2012 All Rights Reserved 15
    16. 16. Recent Developments German born Manager of Mercedes-Benz plant arrested in Tuscaloosa for having no driver’s license. Case dismissed. Japanese-born employee of Honda plant arrested in North Alabama. Case dismissed, employee had a valid international D/L Governor has apologized to Germany and Japan and stated “we want your business.” No one yet arrested for giving assistance to undocumented person John R. Wible, 2012 All Rights Reserved 16
    17. 17. 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 17
    18. 18. More Detrimental Effects Citizen children and those in lawful status may not get adequate health care Water may be less safe Restaurants may be unable to get permits and food may be less safe Public health costs may increase The people of Alabama may suffer negative health consequences John R. Wible, 2012 All Rights Reserved 18
    19. 19. Sections of the Act ImpactingHealth Care & Social Work Section 7: Public Benefits Section 9: Contracts Section 15: E-verification of Employees (effective 4/1/12) Section 29: Birth Certificates Section 30: Business Transactions w/State John R. Wible, 2012 All Rights Reserved 19
    20. 20. Health Care & Social Services An alien not legally present in the U.S. is not entitled to receive certain public benefits. An alien is a person who is not a U.S. citizen or national. The term “public benefits” includes certain healthcare services Many services/programs are excluded or exempt from the citizenship/lawful presence verification requirements pursuant to state or federal law/rules/guidance. John R. Wible, 2012 All Rights Reserved 20
    21. 21. 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 21
    22. 22. Excluded Federal Benefit ProgramsThe following services/programs are federalpublic benefits and excluded from thecitizenship/lawful presence verificationrequirements by federal law/rules/guidance: Family planning Cancer Detection Tobacco CessationHere, there is a direct conflict between Stateand Federal law. John R. Wible, 2012 All Rights Reserved 22
    23. 23. 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 23
    24. 24. Private Providers Programs that do not received federal assistance are not subject to the Act and may offer services without “carding” or verifying. However, after April 1, they must E-verify their employees John R. Wible, 2012 All Rights Reserved 24
    25. 25. Verification of U.S. citizenship and lawful presence IS REQUIRED for: Non-Medicaid dental services Private pay or indigent Home Health services Prostate screenings Non-Medicaid covered services provided to walk-in clients. Example: blood pressure check; administration of patient carried medication prescribed by outside provider. John R. Wible, 2012 All Rights Reserved 25
    26. 26. 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 26
    27. 27. John R. Wible, 2012 All Rights Reserved 27
    28. 28. Means of Verifying U.S. Citizen- ship or Lawful Presence Completion of a declaration form by client/applicant. Provision of documents demonstrating U.S. citizenship. Provision of documents demonstrating lawful presence of an alien AND verification of lawful presence through the federal government’s Systematic Alien Verification for Entitlements (SAVE) Program. John R. Wible, 2012 All Rights Reserved 28
    29. 29. Means of Verifying Citizenship or Lawful Presence of an Alien Must rely on documents provided by client/applicant and determinations made by SAVE. Determinations of U.S. citizenship cannot be made based upon race, color, or national origin. “Imagine” a Green Card John R. Wible, 2012 All Rights Reserved 29
    30. 30. 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 30
    31. 31. John R. Wible, 2012 All Rights Reserved 31
    32. 32. John R. Wible, 2012 All Rights Reserved 32
    33. 33. Licensing and Permitting Programs Alien not lawfully present in U.S. may not enter into “business transaction” with the state. Every “person” entering into a business transaction shall be required to demonstrate U.S. citizenship or lawful presence in the U.S. A “business transaction” includes licenses/ permits issued to individuals by ADPH However, AG Opinion 2011-01 – enforce only when “SAVEd” and ADPH is still “lost” Enjoined and on appeal awaiting S. Ct. John R. Wible, 2012 All Rights Reserved 33
    34. 34. Licensing and Permitting Programs Act 2011-535 only impacts the licensing and permitting of individuals It does not impact the licensing or permitting of business entities, other than sole proprietorships Thus, partnership or Inc. Restaurant, licensed day care or other potential permitee not = “SAVing” Enjoined and on appeal. John R. Wible, 2012 All Rights Reserved 34
    35. 35. Licensing and Permitting Programs For purposes of implementing Act 2011-535, an applicant for a license/permit is the individual to whom a permit/license is issued, not necessarily the person signing or submitting the application. Thus, agents do not need to be “SAVEd” The applicant’s citizenship/lawful presence must be determined. John R. Wible, 2012 All Rights Reserved 35
    36. 36. How to determine if an applicant is a business entity other than sole proprietorship? Check the application for the name of the business to which the permit/license is issued - Inc., LLC, and LLP indicate types of business entities other than sole proprietorships. Require applicant to provide the legal name of the business on the application and the type of business entity. John R. Wible, 2012 All Rights Reserved 36
    37. 37. Section 15 Employment Verify Beginning in April, 2012, all employers, including state agencies must E-verify all new hires. The next section deal with how to do that This section is not before the court and is OK John R. Wible, 2012 All Rights Reserved 37
    38. 38. Means of Verifying U.S. Citizenship or Lawful Presence of an Alien Completion of a declaration form by client/applicant. Provision of documents demonstrating U.S. citizenship. Provision of documents demonstrating lawful presence of an alien AND verification of lawful presence through the SAVE Program. Must rely on documents provided by client/applicant and determinations made by SAVE. John R. Wible, 2012 All Rights Reserved 38
    39. 39. Means of Verifying U.S. Citizenship or Lawful Presence of an AlienDeterminations of U.S. citizenship/lawful presence cannot be made based upon race, color, or national origin.* Duh, of course! John R. Wible, 2012 All Rights Reserved 39
    40. 40. The Declaration Form When implemented, form Must be submitted when initially presenting for services & applying for or renewing permits or licenses. Ensure that all sections are completed. The application process is incomplete without a properly completed declaration form. Do not issue license or provide service if incomplete. Again, this is subject to SAVE implementation John R. Wible, 2012 All Rights Reserved 40
    41. 41. U.S. Citizen Declaration/Verification• If applicant declares to be U.S. citizen, he/she must present a document demonstrating such from List A.• A valid Alabama driver’s license is acceptable. A valid driver’s license from another state may not be •Legislation may change this• A legible copy of a document indicating U.S. citizenship is acceptable. John R. Wible, 2012 All Rights Reserved 41
    42. 42. U.S. Citizen Declaration/Verification If the form is properly completed and acceptable documentation provided, services may be provided or permit issued to the U.S. citizen. Maintain the declaration form and a copy of the document presented in the client’s file John R. Wible, 2012 All Rights Reserved 42
    43. 43. Alien Declaration/Verification If applicant declares to be a lawfully present alien, he/she must present a document demonstrating such. Federal law requires non-citizens 18 years or older to have immigration documentation in their possession at all times. Acceptable forms of documentation are found in List B and include green cards. John R. Wible, 2012 All Rights Reserved 43
    44. 44. Acceptable Documentation Not Acceptable DocumentationJohn 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 for any reason the verification through SAVE is delayed or is inconclusive, the alien is eligible to receive health services or other public benefits in the interim period if the alien signs the declaration indicating that he or she is an alien lawfully present in the U.S John R. Wible, 2012 All Rights Reserved 46
    47. 47. SAVE The SAVE Program uses electronic and paper records for accessing information to verify an applicant’s immigration status. ADPH is in the process of registering to use SAVE. The process may take 60-90 days. Only designated users may access the SAVE Program. John R. Wible, 2012 All Rights Reserved 47
    48. 48. Nondiscrimination The eligibility of an applicant cannot be based upon an applicant’s race, color, or national origin. Do not single out individuals who look or sound foreign for closer scrutiny or require them to provide more documentation of citizenship or immigration status than what is required. Decisions about U.S. citizenship shall only be based upon documentation provided. John R. Wible, 2012 All Rights Reserved 48
    49. 49. Conflict with EMTALA Duties under EMTALA  Emergency screening examination  EMC until the condition is resolved or stabilized and the patient is able to provide self-care following discharge, or if unable, can receive needed continual care  Must transfer if unable to care for the pt. John R. Wible, 2012 All Rights Reserved 49
    50. 50. Conflict with EMTALA Emergency exception – hospital may not turn away any person regardless of nationality or immigration status if such person needs emergency care May not discharge such person until stable, though law enforcement may be used to keep them secure Also applies to hospital-based clinics/services (EMS) EMTALA does not apply to other H/C providers HB 56 excludes “emergency treatment” John R. Wible, 2012 All Rights Reserved 50
    51. 51. HIPAA Consequences Covered Entity may, but is not required to disclose under HIPAA w/o pt. consent if required by law to:  Follow court order or comply with subpoena  Locate a fugitive or suspect  Alert LE of a crime taking place on premises (I.E. violating Alabama Immigration Law) HIPAA, itself does not require disclosure,  permissive only Disclose only “minimum necessary” PHI John R. Wible, 2012 All Rights Reserved 51
    52. 52. Required Reporters State employees, only, are required reporters Required reporters have a legal duty to inform the authorities of violations of the law.  13A-10-2, Code of Alabama 1975, misdemeanor This does not apply to private citizens John R. Wible, 2012 All Rights Reserved 52
    53. 53. For A Copy of Presentation and a Paper►See “Alabama’s Immigration Law Impacts on Health and Social Care”►See several presentations & documents also: http://www.slideshare.net/jwible►Blog: http://www.johnwible.blogspot.com►Also on Facebook JRW, 2012 53
    54. 54. For a Video See:November 15, 2011 “Rock Center with Brian Williams”http://www.bing.com/videos/watch/video/help-not- wanted-alabama-immigration-law-sparks- feud/60bci5h John R. Wible, 2012 All Rights Reserved 54
    55. 55. QUESTIONS OR COMMENTS? John R. Wible, 2012 All Rights Reserved 55

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