BILL ANALYSIS Ó 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, AB 1018 Page 2 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 AB 1018 Page 3 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.) AB 1018 Page 4 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 AB 1018 Page 5 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 Ý8 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 AB 1018 Page 6 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 AB 1018 Page 7 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 AB 1018 Page 8 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 AB 1018 Page 9 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 AB 1018 Page 10 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