Untitled Texas Attorney General Opinion

+- OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

July lo,2001

The Honorable Michael A. Stafford Opinion No. JC-0394

Harris County Attorney

1019 Congress Avenue, 15th Floor Re: Whether Harris County Hospital District may

Houston, Texas 77002- 1700 provide discounted health care to persons residing

in Harris County, without regard to their

immigration or legal status (RQ-034 1-JC)

Dear Mr. Stafford:

The Harris County Hospital District would like to provide free or discounted nonemergency

health care to persons residing within its boundaries, without regard to their immigration or legal

status. Your predecessor asked whether the district may do so consistently with state and federal

law, in particular, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,

8 U.S.C. $0 1601-l 646 (1994 & Supp. V 1999) (“PRWORA”).’ PRWORA prohibits the district

from providing free or discounted nonemergency health care to undocumented aliens, even if they

reside within the district’s boundaries. If the district implements a policy that violates PRWORA,

it is asked what the penalty would be for the violation. PRWORA does not state a penalty for

providing public benefits to undocumented aliens in violation of its requirements, although there

may be sanctions to the district pursuant to conditions attached to federal funding. There may also

be legal consequences pursuant to state law for spending public funds for an unauthorized purpose.

The Harris County Hospital District, created under chapter 281 of the Health and Safety

Code, is required to provide “medical aid and hospital care to indigent and needy persons residing

in the district.” TEX. HEALTH & SAFETY CODE ANN. 9 281.002 (Vernon 2001); see also TEX.

CONST. art. IX, 55 4,9 (hospital districts “shall assume full responsibility for providing medical and

hospital care to needy inhabitants of the county”). The Indigent Health Care and Treatment Act,

chapter 61 of the Health and Safety Code, defines the responsibilities of hospital districts in

providing medical care to indigent residents. See TEX. HEALTH & SAFETY CODE ANN. 5 61.052

(Vernon 2001). If a patient from the county in which the hospital is located or relatives responsible

for his or her support are unable to pay for the patient’s care, the district must treat the patient

without charge. See id. 5 281.071(a) (patient or relatives must pay for care in proportion to their

financial ability to pay); see also id. 5 61.052 (public hospital or hospital district shall provide health

care assistance to eligible residents in service area). If a county, municipality, or public hospital

‘See Letter and Brief from Michael P. Fleming, Harris County Attorney,to HonorableJohn Corqq Texas

Attorney General (Jan. 25,200l) ( on f 11e with Opinion Committee) [hereinafter Request Letter].

The Honorable Michael A. Stafford - Page 2 (JC-0394)

located outside the boundaries of the hospital district is liable for a patient’s care, the hospital district

board must seek reimbursement from that entity as provided by the Indigent Health Care and

Treatment Act. See id. 8 28 1.072; see generally, San Patricia County v. Nueces County Hosp. Disk,

721 S.W.2d 375, 377 (Tex. Civ. App.-Corpus Christi 1968, writ refd n.r.e.) (meaning of

“residence” in hospital district statute).

An individual’s status as an alien does not preclude him or her from being a state or

county resident under state statutes establishing public benefit programs. See Tex. Att’y Gen. Op.

Nos. JM-962 (1988) at 3, 8 (Commission for the Blind may not deny vocational rehabilitation

services to adults on ground that they are undocumented aliens); WW-1274 (1962) at 3 (fact that

child is an alien does not prevent him from being “resident of the State” within statute providing eye

surgery at public cost). In considering an individual’s eligibility for nonemergency health care,

however, the hospital district may not ignore applicable federal law. The federal government has

broad constitutional powers over the admission, naturalization and residence of aliens, while the

states have no such power and cannot add to or remove conditions lawfully imposed by Congress

on the admission, naturalization and residence of aliens in the United States. See generally, Toll v.

Moreno, 458 U.S. 1, 12 (1982). State laws that are inconsistent with federal immigration policy are

preempted by federal law. See DeCanas v. Bica, 424 U.S. 351, 354-55 (1976); Graham v.

Richardson, 403 U.S. 365, 368 (1971) (overturning state restrictions on the provision of welfare

benefits as incompatible with the federal immigration power). Accordingly, the hospital district’s

provision of services to aliens may not be inconsistent with federal immigration law and policy.

PRWORA provides that undocumented or illegal aliens are ineligible for state and local

public assistance, subject to specific exceptions. See 8 U.S.C. 9 1621 (1994 & Supp. V 1999). This

provision preempts contrary state laws and renders illegal the state and local programs that provide

public benefits to illegal aliens contrary to its terms. See Doe v. Wilson, 67 Cal. Rptr.2d 187, 189

(Cal. App. 1997, review denied); see generally DeCanas, 424 U.S. at 354-55 (discussing preemption

of state laws regulating immigration). An undocumented alien is ineligible for health services

provided at public expense by the hospital district, except for those health services specifically

authorized by PRWORA. In deciding whether an indigent resident is eligible for nonemergency

services at public cost, the hospital district must also consider whether the resident is an alien, and

if so, that person’s immigration status. Questions about the eligibility of an alien residing within the

hospital district’s boundaries must be resolved by reference to 8 U.S.C. 8 1621.

PRWORA provides that an alien is ineligible for any state or local public benefit if the alien

is not:

(1) a qualified alien (as defined in section 1641 of this title),

(2) a nonimmigrant under the Immigration and Nationality

Act [8 U.S.C.A. 8 1101 et seq.], or

The Honorable Michael A. Stafford - Page 3 (JC-0394)

(3) an alien who is paroled into the United States under

section 212(d)(5) of such Act [8 U.S.C.A. 8 1182(d)(5)] for less than

one year[ .]

8 U.S.C. 8 162 l(a) (1994 & Supp. V 1999). Undocumented aliens are ineligible for state or local

health benefits “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.” Id. 8 162 1(c)(l)(B). This eligibility restriction does not apply to:

(1) Assistance for health care items and services that are

necessary for the treatment of an emergency medical condition

(as defined in section 1396b(v)(3) of Title 42) of the alien involved

(3) Public health assistance for immunizations with respect to

immunizable diseases and for testing and treatment of symptoms of

communicable diseases whether or not such symptoms are caused by

a communicable disease.

....

Id. 8 1621(b).

Section 1621 (d) authorizes states to provide additional pub lit benefits to undocumented

aliens as follows:

A State may provide that an alien who is not latwmlly present

in the United States is eligible for any State or local public benefit

2An “emergency medical condition” is defined as:

a medical condition (including emergency labor and delivery) manifesting itself by

acute symptoms of sufficient severity (including severe pain) such that the absence

of immediate medical attention could reasonably be expected to result in--

(A) placing the patient’s health in serious jeopardy,

(B) serious impairment to bodily functions, or

(C) serious dysfunction of any bodily organ or part.

42 U.S.C. 5 1396b(v)(3) (1994).

The Honorable Michael A. Stafford - Page 4 (JC-0394)

for which such alien would otherwise be ineligible under subsection

(a) of this section only through the enactment of a State law after

August 22, 1996 which affirmatively provides for such eligibility.

Id. 8 1621(d).

The authority of the Harris County Hospital District to provide nonemergency health care

at public expense to undocumented aliens is limited by 8 U.S.C. 5 162 1. The hospital district may

not provide such care to undocumented aliens unless the Texas Legislature has adopted a law after

August 22, 1996, “which affirmatively provides for [their] eligibility.” Id. We find no statute

applicable to the hospital district that complies with section 1621(d).

The word “af&-matively” has been defined to mean “[b]y way of assertion or express

declaration.” I OXFORD ENGLISH DICTIONARY 2 19 (2d ed. 1989). An enactment that “affirmatively

provides for such eligibility” would expressly state the legislature’s intent that undocumented aliens

are to be eligible for certain public benefits. The legislature adopted two such provisions in 1997.

See Act ofMay 19,1997,75thLeg., R.S., ch. 575’5 23’1997 Tex. Gen. Laws 2012,202O. The Act

amended Family Code section 264.004 to state that the Department of Protective and Regulatory

Services may use state and federal funds to provide child protective services and related benefits to

eligible children and families “without regard to the immigration status of the child or the child’s

family.” TEX.FAM. CODEANN. 8 264.004(c) (Vernon Supp. 2001); see Act of May 19’1997, supra,

§ 23, at 2020. At the same time, the legislature amended section 264.006 of the Family Code to

provide that the commissioners court of a county may provide for services to and support of children

in need of protection and care “without regard to the immigration status of the child or the child’s

family.” TEX. FAM. CODE ANN. 8 264.006 (Vernon Supp. 2001); see Act of May 19’1997, supra,

9 25, at 2020. The language of these Family Code provisions adopted after August 22’1996, makes

clear the legislature’s intent to provide for the eligibility ofundocumented aliens for publicly-funded

child protective services.

The requestor has not cited any statute applicable to the Harris County Hospital District

expressly stating that aliens unlawfully in the county may receive publicly-funded health care from

the district, nor have we identified such a statute. It is suggested that House Bill 1398 of the

Seventy-sixth Texas Legislature, which amended provisions of the Indigent Health Care and

Treatment Act, provides that undocumented aliens may receive public benefits from the Harris

County Hospital District .3 This bill left unchanged the definition of residency and amended and

reenacted provisions on residence and eligibility for health care.4 See Act of May 27, 1999, 76th

Leg., R.S., ch. 1377, $5 1.02-.04, 1.08, 1999 Tex. Gen. Laws 4654,4655-56,4657-58 (amending

3See Brief from Joseph P. Berra, Staff Attorney, Mexican American Legal Defense and Educational Fund

(MALDEF), to Honorable John Comyn, Texas Attorney General, at 5 (Apr. 2,200l) (on file with Opinion Committee).

4See id.

The Honorable Michael A. Stafford - Page 5 (JC-0394)

sections 6 1.004,6 1.0045,6 1.006, and 6 1.028 of the Health and Safety Code). However, House Bill

1398 does not expressly refer to the immigration status of aliens nor does it include any indication

that the legislature intended it to provide that an alien “not lawfully present in the United States”

would be eligible for a state or local public benefit for which the alien was ineligible under

PRWORA. House Bill 1398 does not “affirmatively provide[]” that undocumented aliens will be

eligible for any public benefit under chapter 61 of the Health and Safety Code. The Harris County

Hospital District has no authority to provide publicly-funded health care services to undocumented

aliens aside from the services expressly authorized by section 162 1.

An argument is also made that 8 U.S.C. 5 1621(d) violates the Tenth Amendment of the

United States Constitution.’ The Tenth Amendment provides that “[tlhe powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.” U.S. CONST.amend. X. Pursuant to this amendment, “Congress may

not assume control over the legislative processes of the states by directly compelling them to enact

and enforce a federal regulatory program.” New York v. United States, 505 U.S. 144, 157 (1992);

State v. United States, 106 F.3d 661, 665-66 (5th Cir. 1997); see also City ofNew York v. United

States, 179 F.3d 29’33 (2d Cir. 1999)’ cert. denied 528 U.S. 1115 (2000). Moreover, “Congress

cannot circumvent that prohibition by conscripting the State’s officers directly.” Printz v. United

States, 521 U.S. 898 (1997); City of New York v. United States, 179 F.3d at 33.

Section 162 1(d) authorizes a state to provide that an undocumented alien is eligible for a state

or local public benefit for which the alien is ineligible under PRWORA “only through the enactment

of a State law after August 22, 1996 which affirmatively provides for such eligibility.” 8 U.S.C. 8

1621 (d) (1994 & Supp. V 1999). It has been argued that section 162 1(d) violates the Tenth

Amendment because it invades a central aspect of state sovereignty: “the states’ ability to determine

and establish their own legislative decision makers and decision making process? That is, section

162 1(d) requires a state to express its intent to provide public benefits for undocumented aliens “only

through the enactment of a State law,” rather than through any method the state might choose. See

Doe v. Wilson, No. C-97-2427 (N.D. Cal. Dec. 16, 1997) (order granting defendants’ motion to

dismiss), 1997 WL 811788 (if court found “reenactment clause” unconstitutional, it could grant

relief only by severing provision in its entirety).7

We accord federal statutes a strong presumption of constitutionality. See United States v.

Morrison, 529 U.S. 598,607 (2000). Section 1621 does not compel a state government to enact or

administer any federal regulatory program. Instead, it prohibits state and local entities from allowing

undocumented aliens to participate in all but a few public benefit programs. Section 1621(d) does

‘See id. at 8-9.

61d.at 9.

‘This case was settled when the challenged regulations were withdrawn and California eventually enacted

legislation reauthorizing programs that had extended eligibility to undocumented aliens. See id. at 8.

The Honorable Michael A. Stafford - Page 6 (JC-0394)

not require any action by a state, but if a state wishes to provide more public benefits to

undocumented aliens, this provision authorizes it to do so by adopting legislation. The Tenth

Amendment does not bar Congress from encouraging a state to regulate in a particular way or

holding out incentives to the states as a method of influencing a state’s policy choices. See New

York v. United States, 505 U.S. at 166. The cases of the United States Supreme Court “have

identified a variety of methods, short of outright coercion, by which Congress may urge a State to

adopt a legislative program consistent with federal interests.” Id. Section 1621 (d) enables each state

to make decisions about public benefits for undocumented aliens based on its own circumstances.

This provision does not coerce any state to adopt a legislative program, but instead it offers each

state the option of departing from the federal restrictions on public benefits for aliens, which the state

may accept by enacting a statute that complies with section 1621(d). Thus, section 1621(d) may

encourage states to legislate in a particular area, but it does not require them to do so. In our opinion,

section 162 1(d) does not violate the Tenth Amendment of the United States Constitution.

If the hospital district board chooses to provide routine health care to undocumented aliens

despite PRWORA, your predecessor asked what the penalty is for violating this Act. As the Harris

County brief points out, there are no specific enforcement procedures for violating 8 U.S.C. 8 162 1.’

Nonetheless, there could be consequences under state or federal law to the hospital district and its

officers for spending public funds for a purpose specifically barred by 8 U.S.C. 8 1621. See

generally TEX. HEALTH & SAFETY CODE ANN. $5 281.021(c) (Vernon 2001) (hospital district is

governed by board of hospital managers appointed by Harris County Commissioners Court);

28 1.026 (administrator appointed by the board directs affairs of the district).

If the hospital district chooses to spend public funds to provide services that it lacks authority

to provide and that it is forbidden to provide by PRWORA, it may be accountable for that decision

under various state and federal laws. We will point out legal consequences that may apply to the

Harris County Hospital District, its board members and administrator. Whether the district, its board

members and administrator are subject to legal consequences for a particular unauthorized

expenditure of public funds depends upon all the relevant facts and circumstances and cannot be

determined in an attorney general opinion. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0328 (2000) at

6; JC-0285 at 5, n.2; JC-0020 at 2; DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-291 1

(1940) at 2.

As the Harris County brief points out, the hospital district receives funds from Medicare and

Medicaid and as a condition for receiving these funds, it must comply with applicable federal laws

related to the health and safety of patients. See 42 C.F.R. 4 482.11 (2000).9 The brief also states that

“it is not unusual for state funded grants allocated to the District to include requirements that the

*See Request Letter, supra note 1, at 5.

9See id.

The Honorable Michael A. Stafford - Page 7 (JC-0394)

District comply with all applicable state and federal laws.y’1oIf section 162 1 is an “applicable federal

law” under such grants, the brief indicates that the hospital district’s noncompliance with that statute

could jeopardize the receipt of state or federal funding. 1’

The hospital district may also be subject to consequences under state law for making an

unauthorized expenditure of public funds. The district is subject to accounting and control

procedures prescribed by the commissioners court or by the hospital district board under authority

delegated by the commissioners court. See TEX.HEALTH& SAFETYCODEANN. 5 28 1.049 (Vernon

2001); see also id. 8 28 1.092 (hospital district administrator must prepare an annual report for board,

cornmissioners court, Texas Board of Health and Comptroller showing the district’s operations for

the fiscal year).. Questions about the expenditure could arise in an audit of the district’s financial

records. The district’s budget, prepared by the administrator and approved by the board, is subject

to final approval by the commissioners court. Id. § 28 1.091. The commissioners court could take

into account the board’s unauthorized expenditures when it considers approving the budget. See

Tex. Att’y Gen. Op. No. JM-79 (1983) at 3 (authority of commissioners court to reject hospital

district’s budget). The board could also be subject to a taxpayer’s suit to enjoin future unauthorized

expenditures. See, e.g., Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555-56 (Tex. 2000);

Osborne v. Keith, 177 S.W.2d 198,200 (Tex. 1944).

Finally, the request letter notes that public policy arguments have been made that

undocumented aliens residing within the district’s boundaries should be eligible for nonemergency

health care from the district.** For example, it is suggested that providing such health care would

reduce the costs of emergency health care.13 Arguments in favor of amending section 1621 of title

8 should be addressed to Congress, while arguments for legislative action under section 1621(d)

should be addressed to the Texas Legislature.

“Id.

“Id.

‘2See id.

‘3See id.

The Honorable Michael A. Stafford - Page 8 (JC-0394)

SUMMARY

The Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 provides in 8 U.S.C. 8 1621 that

undocumented aliens are ineligible for state and local public benefits,

with certain exceptions. Under this Act, a state may provide that an

alien not lawfully present in the United States is eligible for any state

or local benefit only through the enactment of a state law after August

22,1996, which affirmatively provides for such eligibility. No Texas

statute adopted before or after August 22, 1996, affirmatively

provides that residents of hospital districts are eligible for public

benefits without regard to immigration status. The Act therefore

prohibits the Harris County Hospital District from providing free or

discounted nonemergency health care to undocumented aliens, even

if they reside within the district’s boundaries.

Y ursvrytrul ,

AJiJOHN

e

CORNYN

CnJ

T

’

Attorney General of Texas

HOWARD G. BALDWIN, JR.

First Assistant Attorney General

NANCY FULLER

Deputy Attorney General - General Counsel

SUSAN D. GUSKY

Chair, Opinion Committee

Susan L. Garrison

Assistant Attorney General, Opinion Committee