BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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 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 








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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