Undocumented Immigrants Face Curtailed Health Care Services

By Julia M. Hernandez, J.D. Candidate

The Harris County Hospital District (Hospital District), like other districts across Texas, has offered Harris County residents emergency services, immunizations, treatment for communicable diseases, preventive care, and other services, without regard to citizenship status. In January 2001, the Hospital District officials asked the Texas Attorney General to determine whether changes in the federal welfare law created by the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) should affect the Hospital District’s policies in this area. PRWORA’s provisions include section 1621(a) which provides that "Notwithstanding any other provision of law and except as provided in subsections (b) and (d) of this section, an alien . . . is not eligible for any State or local public benefit (as defined in subsection (c) of this section)." This language caused some people concern that the provision would restrict the use of federal funds to provide a wide range of services to undocumented immigrants. Indeed, among the services listed in PRWORA that may not be provided to illegal immigrants are retirement benefits, welfare, health benefits, disability, public or assisted housing, and post-secondary education "or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government." 8 USC 1621(c)(1)(B).

On July 10, 2001, Texas Attorney General, John Cornyn issued his opinion in response to the inquiry made by the Hospital District. Tex. Atty. Gen. Op. JC-0394, 2001 WL 786684 (Tex. A.G.). The Texas Attorney General concluded that federal law limited the use of tax dollars by public clinics and hospitals to specific services in care of illegal immigrants. Public clinics and hospitals may only provide emergency services, immunizations, and treatment of communicable diseases to illegal immigrants, but not preventive services.

The Hospital District contended that public hospitals and clinics in Texas must give medical treatment to indigent and needy persons in their districts under the Texas Health and Safety Code. Tex Health & Safety Code Ann. § 281.002 (Vernon 2001). The Attorney General rejected this assertion, noting that the federal government possesses the power to legislate over the admission, naturalization, and residence of aliens. States may not add to or remove any rights or conditions lawfully enacted by Congress under this power. Moreover, federal law preempts any inconsistent state laws. Cornyn concluded that Texas must adhere to federal regulations.

The Texas Attorney General also considered whether House Bill 1398 of the 76th Texas legislature, which amended parts of the Indigent Health Care and Treatment Act, qualified as state legislation that would allow the circumvention of the federal PRWORA requirements. PRWORA provides that a state may provide a state or local benefit that would otherwise be prohibited under PRWORA only if the state enacts a state law which "affirmatively provides for such eligibility." 8 USC 1621(d). House Bill 1398, conversely, provides for the care of indigent people according to their county of residence and income. House Bill 1398 never makes mention of immigrant status. To determine eligibility, a prospective patient must provide name, address, social security number (if available), proof of poverty status and proof of county of residence. HB 1398 § 61.007(1)-(8). The Attorney General rejected the Texas bill stating that to qualify for the circumvention of PRWORA, state legislation must expressly refer to the "immigration status of aliens" and indicate the legislative intent to make an illegal alien eligible for services for which he or she would be ineligible under the PRWORA. Cornyn accordingly determined that this Texas law did not permit the Hospital District to avoid the impact of the federal PRWORA requirements.

Finally, the Attorney General addressed whether the PRWORA violated the 10th Amendment to the United States Constitution. Under the 10th Amendment, Congress may not control the legislative processes of states by compelling them to enact and enforce a federal program. Cornyn upheld the constitutionality of the PRWORA provisions. First, Cornyn noted that federal laws should be given a strong presumption of constitutionality. Second, the opinion notes that PRWORA gives states a choice about program coverage under the circumvention rules. States may either enact rules under the federal regulations or they may pass their own law to bypass the federal standards. The Attorney General opinion does not focus on the difficulties confronted by states attempting to draft and enact regulations in this area.

While the Attorney General’s opinion is not binding as law, Cornyn has warned the Hospital District of the possible consequences of disobeying federal regulations. Public hospitals and clinics risk losing federal funding. The district could be vulnerable to exclusion from Medicare and Medicaid. TX: Attorney General Claims that Harris County Violates PRWORA in Providing Free Care to Undocumented Immigrants, 20 Newsline 8 (July 31, 2001), at http://www.naph.org/publications/index.cfm?publication_issue_id=2168publication_article_id=450. The stakes of noncompliance, already great, were raised further by Harris County District Attorney Chuck Rosenthal. The District Attorney initiated a criminal investigation of District officials to determine whether they have violated state laws against the misspending of public funds. If the district attorney finds violations, district hospital officials could face jail terms between 5 and 99 years. Id. However, the Hospital District is optimistic that the criminal investigation will not result in criminal charges. Steve Brewer, Hospital District Official Sees No Charges in Probe, Houston Chronicle, Aug. 24, 2001, at 34A.

Notwithstanding the Hospital District’s optimism, the Hospital District is now considering alternative methods of dealing with undocumented immigrants. This could result in thousands of people going without preventive medical treatment. Other jurisdictions within Texas have already changed their policies on treating illegal immigrants. In Montgomery County, for example, hospital officials voted to cut services to more than 400 undocumented immigrants. Jim Yardley, Immigrants’ Medical Care is Focus of Texas Dispute (August 12, 2001), available at http://www.nytimes.com/2001/08/12/national/12CARE.html?todaysheadlines. Similarly, Nueces County cut services to 300 people. Id. San Antonio and Dallas, on the other hand, have decided to continue services to people regardless of citizenship. Id.

The National Association of Public Hospitals and Health Systems helped draft legislation which was introduced by Representative Gene Green, H.R. 2635 on July 25, 2001. The legislation expands the services allowed by PRWORA to include primary and preventive care. TX: Attorney General Claims that Harris County Violates PRWORA in Providing Free Care to Undocumented Immigrants, 20 Newsline 8 (July 31, 2001), at http://www.naph.org/publications/index.cfm?publication_issue_id=2168publication_article_id=450. The passage of this legislation would allow the estimated 700,000 undocumented immigrants in Texas to receive not only emergency care, but preventive and primary care as well. When people have access to preventive and primary care, they will save the state money when they do not need expensive emergency care. On the other hand, if the legislation fails, thousands of indigent illegal immigrants will be left to fend for themselves by racking up doctors’ bills or going without health care until they are faced with an emergency situation. Opponents of providing preventive and primary health care take the stance that providing these services is equivalent to rewarding criminals for breaking the law since these people broke the law by entering the country without proper documentation. Jim Yardley, Immigrants’ Medical Care is Focus of Texas Dispute (August 12, 2001), available at http://www.nytimes.com/2001/08/12/national/12CARE.html?todaysheadlines. This view is supported by the investigation by District Attorney Chuck Rosenthal and the opinion of Attorney General John Cornyn. Clearly, some legislation will be necessary to protect the health of undocumented immigrants.

08/28/01