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Longstanding Texas law requires hospital districts to provide medical care to indigent residents. But what about residents who are poor and in the United States illegally? The Texas Legislature passed a law last year during its 78th regular session that I will argue requires — not merely authorizes — hospital districts to provide non-emergency health care to undocumented immigrants. The law that raises the issue is �285.201 of the Texas Health and Safety Code. Section 285.201 opens yet another chapter in the controversy over whether illegal aliens are eligible for local public health benefits in Texas. In an effort to resolve the issue, Sen. Jane Nelson, R-Fort Worth, chairwoman of the Health and Human Services Committee, requested a legal opinion from Texas Attorney General Greg Abbott last month. Here’s some background on the fight over the new law’s meaning, which is being played out in the shadow of intensifying opposition to illegal immigration. To assure the availability of public benefits does not constitute an incentive for immigration, the U.S. Congress, after much heated debate, restricted public benefits for noncitizens in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). Although Texas law does not base eligibility for indigent health care on citizenship or legal entry into the United States, �1621(a) of the PRWORA disqualifies illegal aliens for any state or local public benefit, including health, welfare, disability, public housing and other benefits. The law makes an exception for certain public health benefits, including immunizations, treatment of communicable diseases and emergency care, which is governed by the federal Emergency Treatment and Active Labor Act (EMTALA). A state, however, may exclude itself from the operation of �1621(a) by enacting a law that affirmatively provides for the eligibility of illegal aliens for any covered state or local public benefit. To qualify for an exception from �1621(a), the 76th Legislature in 1999 enacted a law that amended the Texas Indigent Health Care and Treatment Act by defining comprehensive new standards and procedures for determining eligibility for indigent health-care services. Instead of expressly providing for the eligibility of undocumented immigrants, the amendments left unchanged or re-enacted existing Texas law that establishes eligibility without regard to citizenship or legal entry into the United States. Here’s where the battle breaks out. In July 2001, then-Texas Attorney General John Cornyn issued an opinion that the 1999 amendments did not affirmatively establish eligibility for undocumented immigrants, as required by �1621(d) and, therefore, PRWORA prohibited Texas hospital districts from providing free or discounted nonemergency health care to illegal aliens. Harris County Attorney Michael Stafford, who requested the opinion, refuted it, arguing that PRWORA conflicts with longstanding Texas law, usurps the state’s authority to determine how to spend state and local funds for health care under the 10th Amendment, and attempts to allow states to violate the equal protection clause of the 14th Amendment of the U.S. Constitution. Despite numerous legal opinions in opposition to PRWORA and the attorney general’s opinion, several Texas counties stopped providing preventive care for undocumented immigrants, including Montgomery, Tarrant and Nueces counties. Although PRWORA does not define specific enforcement procedures for violating �1621, AG Opinion No. JC-0394 stated that consequences could result under state and federal law for a hospital district and its officers who spend public funds for a purpose barred by PRWORA. Subsequently, the Harris County district attorney initiated a criminal investigation into the Harris County Hospital District’s provision of discounted care to undocumented immigrants. Although the investigation was shelved in December 2001, Sen. Mario Gallegos, D-Houston, and Rep. Rick Noriega, D-Houston, agreed to sponsor a bill that would inarguably comply with �1621(d) of PRWORA. During the drafting process, some large urban counties and hospital districts disagreed as to whether the establishment of eligibility for undocumented immigrants should be mandatory or a local government option. Optional eligibility is inconsistent with Texas law and legal arguments in opposition to Cornyn’s interpretation of PRWORA. Initially Gallegos and Noriega introduced S.B. 309 and H.B. 525 in the 78th Legislature, which would authorize, but not require, hospital districts and public hospitals to provide non-emergency health care to undocumented immigrants. The Senate approved the legislation, but both companion bills died in the House, despite the provision for optional eligibility. Noriega redrafted the legislation as an amendment, using legalistic language echoing the language of PRWORA, and offered it as Floor Amendment 126 during the debate on H.B. 2292, the massive health and human services bill, which passed. The amendment added �285.201 to Chapter 285 of the Texas Health and Safety Code, which defines special provisions relating to hospital districts: “As authorized by 8 U.S.C. �1621(d), this Chapter affirmatively establishes eligibility for a person who would otherwise be ineligible under 8 U.S.C. Section 1621(a), provided that only local funds are utilized for the provision of nonemergency public health benefits. . . . “ When Noriega offered the amendment, he stated, as quoted in the request for the attorney general’s opinion, “This amendment allows local hospital districts to use their local monies, not state dollars, in accordance with federal law.” Interpreting �285.201 So does the amendment require or simply allow hospitals to treat illegal immigrants? Nelson argues in her request for an attorney general’s opinion that, because Noriega used the word “allows” when offering the amendment, it would be inconsistent with legislative intent and financially burdensome to Texas hospital districts to interpret �285.201 as a mandate, instead of an authorization. Noriega’s statement, however, does not refer to the establishment of eligibility but to the type of funds that the statute allows or permits hospital districts to use for the provision of non-emergency public health benefits to illegal aliens. Moreover, the succinct language providing for eligibility in �285.201 ( “this chapter affirmatively establishes eligibility “) does not give the slightest indication that eligibility is optional. Additionally, interpreting �285.201 as an authorization instead of a mandate could be challenged as a violation of the U.S. Constitution. The U.S. Supreme Court has extended the scope of the equal protection clause to provide illegal immigrants with limited protection from state or local laws that arbitrarily deny them benefits. In 1982′s Plyler v. Doe, the court invalidated a Texas law authorizing local school districts to deny enrollment to children not legally admitted into the United States. The court reasoned that education was perhaps the most important of all government benefits; while the state had a valid interest in mitigating the economic effects of an influx of illegal immigrants, there was no evidence that illegal immigrants imposed a significant burden on the state’s economy. Although the court did not clearly articulate whether the rational-basis standard or the intermediate standard of review applied in the case, the majority held that such discrimination was not rational because it did not further a substantial state goal and it deprived innocent children of the means by which they might advance because of individual merit and become self-reliant. Like the state law at issue in Plyler, PRWORA arbitrarily limits eligibility for state and local public benefits for illegal immigrants, including children. No evidence exists that restricting public benefits curbs illegal immigration. In Plyler, the U.S. Supreme Court noted that the dominant incentive for illegal entry into the state of Texas is the availability of employment, not public benefits. More recently, lawyers for the Bexar County Hospital District advised the district in a brief citing a 1997 issue of the Harvard Law Review that Congress would not have authorized the states to decide whether illegal immigrants could receive the bulk of available public benefits if such benefits truly constitute an incentive for immigration to the United States. Finally, interpreting �285.201 as mandatory will not financially burden Texas hospital districts, but it will enable them to spend taxpayer dollars more efficiently. The uninsured seek treatment for nonemergency conditions in emergency rooms because they lack access to primary and preventive care. Under EMTALA, a hospital cannot turn away patients who go to the emergency room seeking emergency treatment. Providing health care to indigent residents of the hospital district, regardless of immigration status, in a more appropriate, less costly clinical setting will reduce utilization of more costly ER and acute-care services and help relieve ER overcrowding. Nancy L. Stone is a Houston attorney and lobbyist who represented the Harris County Hospital District in the 78th Legislature’s regular session.

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