The Beason-Hammon Alabama Taxpayer and Citizen Protection Act (the “Act”) was signed into law by Governor Bentley on June 9, 2011. Much of the Act affects health care providers in their capacity as employers, but the Act also includes provisions that affect the delivery of health care. This Alert focuses on those provisions.

The Act generally requires state agencies and political subdivisions to verify the lawful immigration status of persons applying for public benefits. This verification requirement will likely apply to health care institutions that are associated with state universities, providers operated directly by the state, and providers that are operated by local health care authorities. Private health care providers will not be subject to the verification requirement.  

Public benefits would include federal and state funded health care programs, such as Medicare, Medicaid, the Children’s Health Insurance Program, and others. For these programs, the Act requires the applicant for benefits to sign a declaration the he or she is a United States citizen. To verify the applicant’s declaration, providers generally must use the Systematic Alien Verification for Entitlements (“SAVE”) program that is operated by the United States Department of Homeland Security. Verification for the Alabama Children’s Health Insurance Program may also be performed through any alternative means provided by federal law.  

Verification of lawful immigration status occurs when a person “applies for” public benefits. It is not yet clear what constitutes “applying for” benefits. A narrow interpretation would suggest that verification must occur only when a patient makes an initial application for Medicare, Medicaid, etc. A broader interpretation would suggest that verification must occur each time a patient uses a public benefit program. The narrower interpretation seems to be the more reasonable one in light of the fact that patients who have been approved as Medicare or Medicaid recipients often access their benefits without signing any additional paperwork that could be construed as an application. This construction also appears to be supported by the provision stating that if verification through the SAVE program is inconclusive, the applicant may be eligible for benefits in the interim upon signing a declaration that he or she is an alien lawfully present in the U.S. The reference to a signed declaration is singular. It does not imply repeated declarations as benefits are accessed. Perhaps additional guidance on the question will result from the rule-making process.  

Exceptions to the verification requirement for some public benefit programs are contained in the Act. The exceptions include emergency medical treatment, short term non-cash emergency relief, immunizations, testing and treatment of communicable diseases, prenatal care, child and adult protective services, and the Children’s Health Insurance Program. For these, the Act does not require verification of lawful immigration status.  

The Act’s exception for emergency medical treatment, along with the supremacy of EMTALA over state law, provides some comfort to hospitals that they can meet their EMTALA obligations without violating the Act. Once a patient is stabilized, however, it would appear that the hospital would then be required to verify the immigration status of the patient if the patient makes an “application” for public benefits.  

The Act makes it unlawful for anyone to perform certain acts that could constitute assistance for aliens who are in the United States unlawfully. The Act prohibits any person from concealing, harboring, or shielding an alien from detection - or conspiring to do any of these things – if the person knows or recklessly disregards the fact that the alien’s presence in the United States is not lawful. Similarly, the Act prohibits encouragement or inducement of aliens to come or remain in the United States unlawfully as well as transportation or conspiracy to transport aliens in furtherance of their unlawful presence in the U.S. Under the Act, a person acts “knowingly” if the person is either aware of the facts or is reasonably aware that the conduct in question is likely to cause a particular result.  

The Act provides an exception to these requirements for first responders and protective services providers. The exception would clearly apply to transportation by ambulance in an emergency situation and, as noted above, the patient may be stabilized without regard to immigration status. Past that point, the analysis becomes murkier. Even if the patient is not deemed to be making an application for public benefits, health care providers would be prohibited from harboring or transporting (etc.) the patient if the provider knows or recklessly disregards the fact that the alien’s presence in the United States is not lawful. How a provider might come to know or suspect that the patient is not in the U.S. lawfully is a facts and circumstances-specific analysis for which no further guidance is yet available.  

Contracts with aliens who are in the United States unlawfully are generally unenforceable under the Act if the party has direct or constructive knowledge of the alien’s unlawful immigration status and if the contract requires the alien to remain unlawfully in the United States for more than 24 hours. Contracts for medical services, however, are exempt from this provision and are enforceable regardless of the patient’s immigration status.  

The Act prohibits an alien, unlawfully in the U.S., from entering into a business transaction with the state or a political subdivision of the state. A “business transaction” is defined as “any transaction between a person and the state or a political subdivision of the state, including, but not limited to, applying for or renewing a motor vehicle license plate, applying for or renewing a driver’s license or nondriver identification card, or applying for or renewing a business license.” There is no de minimus exception. Fortunately for health care providers, however, this prohibition on business transactions applies to the alien, not to the person or entity engaging in a transaction with the alien.

The effective date for the sections listed above is the first day of the third month following the passage and approval of the Act by the Governor; or its otherwise becoming law. Governor Bentley signed the Act into law on June 9, 2011. Accordingly, these provisions become effective on September 1, 2011.