BILL ANALYSIS �
AB 1018
Page 1
Date of Hearing: April 5, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1018 (Donnelly) - As Amended: March 24, 2011
SUBJECT : PUBLIC EMPLOYEES: RESPONSIBILITY FOR STATE FUNDED
BENEFITS
KEY ISSUE : SHOULD ALL STATE AND LOCAL EMPLOYEES BE REQUIRED TO
VERIFY EACH PERSON WHO REQUESTS ANY UNDEFINED STATE-FUNDED
BENEFIT USING THE FEDERAL "SAVE" DATABASE, DESPITE THE EXISTING
FEDERAL RULES, AND BE PERSONALLY RESPONSIBLE FOR BENEFITS
RECEIVED BY A PERSON WHO IS IN THE STATE ILLEGALLY?
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
This author-sponsored proposal would require that all state,
county, and city employees verify each person who requests
state-funded benefits through the United States Systematic Alien
Verification for Entitlements (SAVE) Program. In addition, the
bill provides that any state, county, or city employee who
knowingly gives out any state-funded benefits to a person who is
in the state illegally shall be held personally responsible and
shall receive disciplinary action in accordance with his or her
employer's established human resources reprimanding guidelines.
According to the author," California cannot afford to handout
benefits to those who are not legally eligible for them at the
expense of California taxpayers who are greatly struggling at
this time." The bill does not define what benefits would be
covered by these obligations, nor does it expressly prohibit the
provision of benefits based on immigration status. Opponents
note that existing federal law restricts immigrants' eligibility
for a broad spectrum of public benefits, and requires use of the
SAVE system to determine eligibility, but exempts other benefits
that this bill appears to cover. Opponents argue that federal
law therefore makes the bill unnecessary with respect to the
benefits it duplicates, and that the bill creates an apparent
conflict with federal law regarding the benefits that federal
law exempts. Extending the mandatory use of SAVE to all state
and locally administered public benefit programs would also be
difficult, costly and would negatively impact public health,
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opponents contend. The bill's provision regarding employee
responsibility is also largely undefined, could give rise to
substantial litigation, and is unnecessary according to
opponents.
SUMMARY : Requires verification of immigration status for all
persons who request state benefits and imposes liability and
discipline for state and local employees.
1)Requires that all state, county, and city employees verify
each person who requests state-funded benefits through the
United States Systematic Alien Verification for Entitlements
(SAVE) Program.
2)Provides that any state, county, or city employee who
knowingly gives out any state-funded benefits to a person who
is in the state illegally shall be held personally responsible
and shall receive disciplinary action in accordance with his
or her employer's established human resources reprimanding
guidelines.
3)Does not appear to prohibit provision of state funded benefits
to persons who are in the state illegally.
EXISTING LAW :
1)Provides pursuant to the federal Immigration Reform and
Control Act of 1986 that specified state and local programs
and overseeing agencies participate in the verification of an
applicant's immigration status through the federal SAVE
database, except when prevented by federal law from doing so.
These include: the California Work Opportunities and
Responsibility to Children (CalWORKs) program, Medi-Cal,
Unemployment Insurance Benefits; Title IV Educational
Assistance Programs (U.S. Department of Education); and
certain Housing Assistance Programs. (8 U.S.C. section 1621;
8 USC section 1611; 42 U.S.C. section 1320b.)
2)Provides, pursuant to the federal Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 that the Attorney
General establish regulations and interim guidance for the
verification of immigration status of persons applying for
"federal public benefits." With certain exceptions, PRWORA
makes non-citizens who are not "qualified aliens" ineligible
for federal public benefits. There are also limitations on
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the eligibility of qualified immigrants for certain benefits,
again with exceptions. With certain exceptions, the PRWORA
defines "federal public benefit" as: any grant, contract,
loan, professional license, or commercial license provided by
an agency of the United States or by appropriated funds of the
United States; and any retirement, welfare, disability, public
or assisted housing, post-secondary education, food
assistance, unemployment benefit, or any other similar benefit
for which payments or assistance are provided to an
individual, household, or family eligibility unit by an agency
of the United States or by appropriated funds of the United
States. (8 USC section 1642; 8 U.S.C. section 1611.)
COMMENTS : The author has provided the Committee with the
following statement regarding the need for this bill, which is
reproduced here in its entirety:
AB 1018 would require that all state agencies use the
Federal SAVE verification program to verify a person's
eligibility before approving that person for any state
funded or dispersed benefit.
As to the nature of the alleged problem, and how the bill would
address it, the author's "fact sheet" adds:
With the State in debt by the billions, California cannot
afford to handout benefits to those who are not legally
eligible for them at the expense of California taxpayers
who are greatly struggling at this time.
California's fiscal crisis calls for a review of the
processes that state departments use to distribute State
funded benefits to ensure accuracy, fairness, and that
fraud is at a minimum.
Background Regarding the Federal SAVE Program. According to the
web site of the U.S. Citizenship and Immigration Services
department, the Systematic Alien Verification for Entitlements
(SAVE) program "is an inter-governmental initiative designed to
aid benefit-granting agencies in determining an applicant's
immigration status, thereby ensuring that only entitled
applicants receive federal, state, or local public benefits and
licenses. The program is an information service for
benefit-granting agencies, institutions, licensing bureaus, and
other governmental entities." (http://www.uscis.gov.)
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Federal Law Currently Requires Verification of Immigration
Status For State and Local Benefits. Existing federal law, the
Immigration Reform and Control Act of 1986, makes certain aliens
ineligible for specified state and local public benefits and
requires use of the federal SAVE database. These benefits are
defined as "any grant, contract, loan, professional license, or
commercial license provided by an agency of a State or local
government or by appropriated funds of a State or local
government; and any retirement, welfare, health, disability,
public or
assisted housing, postsecondary education, food assistance,
unemployment benefit, 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."
However, federal law specifically exempts other state and local
benefits, including:
(1) Assistance for health care items and services that are
necessary for the treatment of an emergency medical
condition of the alien involved and are not related to an
organ transplant procedure;
(2) Short-term, non-cash, in-kind emergency disaster
relief;
(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;
(4) Programs, services, or assistance (such as soup
kitchens, crisis counseling and intervention, and
short-term shelter) specified by the Attorney General, in
the Attorney General's sole and unreviewable discretion
after consultation with appropriate Federal agencies and
departments, which (A) deliver in-kind services at the
community level, including through public or private
nonprofit agencies; (B) do not condition the provision of
assistance, the amount of assistance provided, or the cost
of assistance provided on the individual recipient's income
or resources; and (C) are necessary for the protection of
life or safety.
Also excluded are (1) to any contract, professional license, or
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commercial license for a nonimmigrant whose visa for entry is
related to such employment in the United States, or to a citizen
of a freely associated state, if section 141 of the applicable
compact of free association approved in Public Law 99-239 or
99-658 (or a successor provision) is in effect; (2) with respect
to benefits for an alien who as a work authorized nonimmigrant
or as an alien lawfully admitted for permanent residence under
the Immigration and Nationality Act �8
U.S.C. 1101 et seq.] qualified for such benefits and for whom
the United States under reciprocal treaty agreements is required
to pay benefits, as determined by the Secretary of State, after
consultation with the Attorney General; or (3) to the issuance
of a professional license to, or the renewal of a professional
license by, a foreign national not physically present in the
United States.
Uncertainty and Potential Conflict With Federal Law Regarding
The Benefits To Which This Bill Would Apply. Unlike federal
law, this bill contains no definition of the benefits to which
it applies. Nor is there an existing statutory definition of
the term "state-funded benefit." By common usage, the term
refers to payments the state makes for health, retirement,
welfare, death and other purposes. The term may more generally
apply to include any allowance, advantage or aid the state might
provide, including public health, disaster relief, hospital
emergency rooms and other matters. No doubt for this reason
these types of benefits are specifically excluded from the
federal definition. The term might also encompass public
transportation, roadways, local athletic facilities, sewer and
trash systems, and a host of other activities in which state and
local governments are engaged. The bill is not clear whether
these types of benefits, or others, may be covered.
The uncertainty regarding application of the bill is compounded
by statements from the author regarding the intent of the bill.
While the bill applies to "state-funded" benefits, the author's
"fact sheet" states that the author intends to cover any "state
funded or dispersed benefit." The addition of "state-dispersed"
benefits would appear to cover benefits that are solely funded
by the federal government or private sources.
In response to the Committee's request for clarification, the
author has indicated that the term should be interpreted to
include all benefits other than any "that has been decided by
courts to be unconstitutional to deny to anyone regardless of
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their immigration status." The author notes that this would
exclude K-12 education which has been found to be
constitutionally protected. However, this limitation would not
appear to apply to higher education. A related bill by the
author to restrict immigrant's access to higher education, AB
63, recently failed passage in the Higher Education Committee.
The author has indicated that the one other state benefit that
he intends to exclude is emergency room services, although this
exemption does not appear in the bill.
This inconsistency and lack of definition may create significant
uncertainty and substantial litigation. Without a limiting
definition, the bill would appear to potentially encompass
benefits that are exempted under federal law, as set forth
above. It is not clear why or whether it would be proper for
the state to require verification of benefits for which
immigrants may be lawfully eligible.
This Bill Does Not Appear To Prohibit Provision of State Funded
Benefits, But Would Appear To Make Public Employees Legally
Liable And Subject To Discipline, Regardless of Their Compliance
With the SAVE Verification Requirement. In addition to
requiring verification of immigration status through the SAVE
program, the bill's other provision would make any state,
county, or city employee who "knowingly gives out" any
state-funded benefits to a person who is in the state illegally
"personally responsible," and requires the imposition of
disciplinary action against such a person in accordance with his
or her employer's established human resources reprimanding
guidelines.
This provision notably does not expressly prohibit the dispersal
or receipt of state funded benefits. Rather, it would simply
make the individual employee "personally responsible" for any
such benefits he or she knowingly gave out. Here again, the
bill does not define key terms. It is not clear whether the
term "gives out" applies to any employee involved in the
provision of the benefits, or is limited to those with final
authority to approve. Moreover, it is not clear the amount or
extent of the employee's personal responsibility. Nor does the
bill state to whom the employee would be responsible, how that
responsibility would be enforced, how a complaint would be
brought, or what the penalty would be. Perhaps most
importantly, the bill does not expressly protect employees who
complied with the mandate to verify immigration status using the
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SAVE program. That is, an employee could comply with the
obligation to use the SAVE program but still be liable for
violating the absolute prohibition against giving out benefits
to a person who is in the state illegally. Finally, it must be
noted that this prohibition is not limited to state-funded
benefits for which a person is ineligible. All that is
necessary is that the recipient of the benefit is present in the
state illegally.
ARGUMENTS IN SUPPORT : The Committee received one letter in
support of the bill, from Santa Barbara County Supervisor Steve
Lavagnino:
Given the gravity of our state's deficit, California cannot
afford to give benefits to those who are not legally
eligible for them. As much as we are doing at the county
level, a state review of the processes that departments use
to distribute state funded benefits would ensure accuracy,
fairness, and minimize fraud.
Furthermore, California's counties, which are on the front
line of service delivery for state and federal programs,
cannot afford to distribute benefits without proper
verification. As a county supervisor, I regularly work on
issues related to state mandated programs that place a
financial burden on the county. With AB 1018, the
Legislature has the opportunity to protect taxpayer dollars
in all jurisdictions by simply verifying that an individual
is legally eligible to receive benefits.
ARGUMENTS IN OPPOSITION : Among the letters received in
opposition to the bill, the Western Center on Law and Poverty
writes:
Extending the mandatory use of SAVE to all state and
locally administered public benefit programs would be
difficult, costly and would negatively impact public health
and wellbeing of California's diverse communities.
Additionally, because the SAVE verification process is
already used to verify the qualifying immigration status
for the bulk of state-funded public benefits and many
others are federally exempt from this requirement, this
policy would only result in penalizing immigrants who have
been exempted from SAVE screening. These exemptions to
state and local benefits were made over the past fourteen
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years with legislative oversight.
The SAVE Program's automated and manual verification
processes provide federal, state, and local benefit issuing
agencies and institutions with information which will
assist them in determining an individual's eligibility
under Title IV of PRWORA. California already uses SAVE for
the major benefit programs, where required (Medi-Cal,
CalFresh, CalWORKs, Social Security Income). But it uses
other less costly and less burdensome methods where SAVE is
not federally required. Using SAVE for a greater number of
programs would add transaction, administrative and staffing
costs.
If passed, AB 1018 would expand the use of SAVE into an
undefined list of state funded programs, which could result
in costly and harmful implications with very little impact
on the amount of state funds being spent for services
provided to unqualified immigrants. Immigrants who
participate in certain state-funded programs receive
minimal benefits, and receive these benefits in accordance
with federal and state law. These immigrants include
victims of domestic violence, human trafficking, and
victims of severe crimes. Reducing immigrants' access to
benefits results in decreased crime reporting, creating
more dangerous communities, and jeopardizing the health of
California as a whole.
Federal and state law provide that certain critical
services remain available regardless of an individual's
status - including emergency medical services,
immunizations and treatment of communicable disease
symptoms, child welfare services, domestic violence
services, homeless shelters, regional center services, and
other programs that are necessary to protect life or
safety.
Since AB 1018 lacks the federal SAVE law's due process
protections, eligible applicants would be forced to wait
for critical benefits pending verification and may be
improperly denied those benefits or face lengthy delays due
to errors in the database. When these errors occur there is
a need for a manual check. The kinds of beneficiaries who
regularly experience this include domestic violence
survivors petitioning under VAWA and certain other
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applicants who may not show up in the electronic data base.
In addition to SAVE, the County Welfare Departments (CWDs)
have implemented citizenship and identity verification
required by the federal Deficit Reduction Act of 2005
(DRA). California, with the leadership of the Department
of Health Care Services (DHCS), is one of 14 states that
has implemented this new electronic data match. DHCS
reports securing successful matches for 94% of the citizen
applicants.
AB 1018 introduces added costs and burdens to state
agencies and applicants for critical services; undermines
existing laws intended to protect life or safety; adds
unnecessary penalties that also will be burdensome to
administer, and potentially deprives eligible individuals,
including U.S.-born citizens access to services that they
need in order to survive.
AB 1018, if enacted, would be difficult to implement due to
the non-specific nature of the proposed change in statute
and the breadth of the local departments and state
oversight authority responsible for these benefits. In
addition, SAVE assesses transaction charges for each
inquiry made. Bearing in mind California's $24 billion
deficit, coupled with existing safeguards for assessing
immigrant eligibility, mandatory SAVE implementation for
all public programs is an extra barrier the state cannot
afford.
REGISTERED SUPPORT / OPPOSITION :
Support
Steve Lavagnino, Santa Barbara County Supervisor
Opposition
American Civil Liberties Union
American Federation of State, County and Municipal Employees
(AFSCME)
California Immigrant Policy Center
California Labor Federation
California Public Defenders Association
California School Employees Association
Coalition of California Welfare Rights Organizations
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Laborers' Locals 777 & 792
Mexican American Legal Defense and Educational Fund (MALDEF)
Service Employees International Union (SEIU)
Western Center on Law and Poverty
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334