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July 24, 2001

The Honorable Rick Perry The Honorable John Cornyn Governor, State of Texas Attorney General of Texas State Capitol, Room 2S.1 209 West 14th Street P. O. Box 12428 P.O. Box 12548 Austin, TX 78711 Austin, TX 78711 The Honorable Bill Ratliff The Honorable James E. "Pete" Laney Lieutenant Governor of Texas Speaker of the House President of the Senate State Capitol Room 2W13 P. O. Box 12068 P.O. Box 2910 Austin, TX 78722-2068 Austin, TX 78768-2910

Re: The Texas Attorney General's Opinion No. JC-9034, Non-emergency Health Care for Foreign Nationals in Texas

Dear Governor Perry, Attorney General Cornyn, Lieutenant Governor Ratliff, and Speaker of the House Laney:

This letter is written on behalf of the State Bar of Texas Committee on Laws Relating to Immigration and Nationality. Our committee is a standing committee established in 1982 to study current and proposed laws pertaining to immigration and nationality and to make recommendations for any improvements in such laws. The committee is comprised of private immigration lawyers, an immigration judge, the director of a pro bono asylum project, a representative from the Association of International Educators, the director of an immigration civil rights project, the accredited representatives of non-profit organizations recognized by the Board of Immigration Appeals, six members of federal and state government agencies directly involved with immigration and other public representatives.

The Texas Attorney General's July 12, 2001, opinion brings to light three key concerns: First, that the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) is not workable when it comes to sorting out who is qualified for free or discounted non-emergency health care by the county hospital districts in Texas. Second, the federal government wants Texas taxpayers to foot the bill for the INS's failure to control illegal immigration. Third, until the federal law is changed, the Texas legislature has the power to restore the previous practice of providing basic health care to all Texans, and failure to do so promptly may result in serious problems for qualified aliens and the county hospitals of Texas.

The PRWORA is unworkable when it comes to deciding who is entitled to free or discounted non-emergency medical care from the Texas county hospitals. The Texas Attorney General's opinion characterizes the PRWORA as barring "undocumented aliens" from these benefits, but this is a dangerous and inaccurate oversimplification. The PRWORA provides that "qualified aliens" are exempt from its restrictions on medical benefits by state and local hospitals. The PRWORA goes on to describe more than 10 different categories of what constitutes a qualified alien, most of which are too complex and legalistic for a layperson to fully comprehend, let alone readily identify at the intake department of a county hospital. For example, one category of qualified alien is defined as "an alien whose deportation is being withheld under section 243(h) of such Act [8 U.S.C.A. 1253(h)] (as is effective immediately before the effective date [April 1, 1997] of section 307 of division C of Public Law 104-208) or section 241(b)(3) of such Act [8 U.S.C.A. 1251(b)(3)] (as amended by section 305(a) of division C of Public Law 104-208)." Another category of qualified alien is "an alien who is a Cuban and Haitian entrant (as defined in section 501(e) of the Refugee Education Assistance Act of 1980)". Yet another category deals extensively with aliens who have been battered or subjected to extreme cruelty in the United States by a spouse or parent. This category further instructs the United States Attorney General to develop guidance for determining when a battered spouse or child would qualify for benefits under specific state or local programs, but as of yet no such guidance exists.

Another significant problem with the Texas Attorney General's oversimplification is that the term "undocumented aliens" could lead the hospital administrators to believe that there are certain documents which an alien must possess in order to prove entitlement to the county hospital benefits. In other contexts, such as employment eligibility verification on Form I-9, this is certainly true?the back of the I-9 lists a variety of specific documents which a worker must present in order to establish employment eligibility. However, the term "qualified alien" is considerably more complex, and there is no form and no guidance at all to identify which documents a person might present to establish that she is a qualified alien under the PRWORA. There is no simple parallel which can be drawn between documents that establish employment eligibility and those which provide access to county hospital benefits. A qualified alien is not necessarily a documented alien. Several of the categories of qualified aliens do not have any particular document associated with them. Other categories are subject to interpretation?is a nonimmigrant who remains beyond the authorized period of admission a qualified alien or not? It is incorrect to assume that documented aliens are qualified aliens, and undocumented aliens are not.

What PRWORA leaves us with is an unworkable standard for determining who is in fact qualified for discounted or free non-emergency medical care at county hospitals in Texas. In 1986 when Congress enacted the employment verification requirements of the Immigration Reform and Control Act, it had the foresight to provide a specific list of acceptable documents which would conclusively establish who was authorized to work in the United States. Shortly after the employment verification requirements went into effect, the Government Accounting Office found that employers were overzealous in trying to enforce those requirements, and erroneously rejected many qualified job applicants simply because they were "foreign-looking" or of Hispanic origin. The fear with PRWORA is the same, that the impossibly convoluted definition of a "qualified alien" and lack of guidance to state and local governments will result in hospitals erroneously denying non-emergency care to anyone who is foreign-looking or cannot prove whatever the hospital administrator decides is appropriate "documentation."

The qualified aliens are not the only ones placed in a difficult position by the Texas Attorney General's opinion. The county hospital administrators are clearly left in a very difficult situation, with every decision whether to extend free or discounted non-emergency services placing them at risk of incurring penalties for unauthorized use of public funds on the one hand or legal action on behalf of improperly rejected qualified aliens on the other. Section 61 of the Texas Health and Safety Code provides that any "person" residing within the county hospital district who otherwise meets the requirements is entitled to free or reduced-charge non-emergency medical care. See Tex. Health & Safety Code Ann. 61.002 (Vernon 2001). Since the late 19th century, the Supreme Court has repeatedly held that the term "persons" for the purposes of the due process clause means all persons, regardless of immigration status. Shaughnessy v. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953); Wong Wing v. United States , 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896) , Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886). More recently the Supreme Court has held that all persons residing in Texas are entitled to public education, regardless of immigration status. Plyler v. Doe, 102 S.Ct. 2382, 2391, 457 U.S. 202, 210, 72 L.Ed.2d 786, 794 (1982). Therefore, it seems clear that qualified aliens have a Constitutional right to receive free or discounted non-emergency medical care by the county hospitals in accordance with the Texas Health and Safety Code, and the hospitals must work to ensure that no qualified alien is denied such benefits.

The PRWORA is bad law which simply passes the costs of INS's failure to control immigration to Texas taxpayers. The PRWORA begins with a statement of purpose claiming that the statute is designed to ensure that public benefits do not "constitute an incentive for immigration to the United States." In fact, what the PRWORA does is force states like Texas to choose between paying disproportionately for the federal government's failure to control unlawful immigration or else denying some of its residents access to basic health care. This draconian and mean-spirited "solution" does nothing to actually restrict the flow of immigration nor does it help the INS do its job better. The PRWORA is a step in the wrong direction, and is unworkable and unfair in its approach to basic non-emergency medical care.

The PRWORA poses major difficulties for Texas taxpayers, qualified aliens and the county hospital administrators. Until the federal government revisits the problems created by that legislation, Texas can at least restore the fair and humane practice in place prior to the Texas Attorney General's opinion. The Texas legislature need only specify that the Indigent Health Care and Treatment Act applies to all persons in Texas without regard to immigration status. As the Texas Attorney General points out in his July 12, 2001 opinion, the legislature had a chance to do this back in 1999 when it last amended that Act but failed to explicitly do so. Legislation is needed to address the injustices of the PRWORA.


Paul Parsons, Chairman
State Bar of Texas Committee on Laws
Relating to Immigration and Nationality

[The above is in response to The Texas Attorney General's Opinion No. JC-9034, Non-emergency Health Care for Foreign Nationals in Texas[