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AILA Doc. No. 04081667 | Dated August 16, 2004
August 16, 2004Jim Bossenmeyer, CMS
Dear Mr. Bossenmeyer:
The American Immigration Lawyers Association (AILA) is a voluntary bar association of more than 8,600 attorneys and law professors practicing and teaching in the field of immigration and nationality law. While our concern with the Department's proposed implementation approach relates to healthcare rather than our traditional arena of immigration issues, AILA is nonetheless well-situated to provide input on the impact of the Department's approach on healthcare issues, due to our knowledge of the immigrant community. Our member attorneys represent tens of thousands of individuals in various stages of the immigration process, as well as the family members, employers and others who comprise the community in which immigrants live and work in the U.S.
The sections of your implementation document on which we intend to comment include:Alien
We also wish to comment on the process by which public comment was sought on this program.
It should be noted that the reference to "Mexican citizens permitted to enter the United States for not more than 72 hours under the authority of a biometric machine readable border crossing identification card…" is no longer meaningful. On August 13, 2004, the Department of Homeland Security, Bureau of Customs and Border Protection, published an interim rule extending the 72 hours to 30 days (69 Fed.Reg. 50051). While we realize that the 72 hour reference is statutory, you should be aware of this change.
Documentation of Citizenship Status
Nothing in section 1011 of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 requires the individual patient-based documentation approach being adopted in this document. Indeed, separate legislation that would have required the agency to question individual patients' immigration status was roundly defeated in Congress. It is inappropriate for the agency to impose that requirement now by administrative fiat.
The purpose of the instant legislation was to provide federal reimbursement for costs associated with emergency treatment of certain classes of immigrants, including parolees, certain Mexican visitors and undocumented individuals. It was NOT to discourage such immigrants from seeking treatment. Yet, that will be the result of the administrative proposal.
We cannot over-emphasize the fear in the immigrant community-both documented and undocumented-of the "immigration authorities." The fear by undocumented immigrants is clearly one of removal. Similar fear exists in many documented immigrants. They fear introducing government authorities into their community, out of concern for those whose status may not be as clean as theirs. Also, as the result of administrative actions in the past three years, even the documented fear their own detention and removal, as they have watched people who believed themselves to be present legally be detained, brought under removal proceedings and, in some cases, actually removed. There is no trust of government in this community-only fear.
So, when a healthcare provider begins questioning patients over their immigration status-no matter at what stage of the treatment-word will spread rapidly in the community. The result will be that immigrants will not seek emergency care. This will have a direct impact on the people intended to benefit from this legislation of discouraging them from obtaining treatment. It also will have a detrimental impact on the public health overall, as immigrants will avoid treatment for viruses and other communicable diseases, and will limit the ability of public health officials to effectively monitor the spread of disease.
What is most notable in the document setting forth this plan is the failure to offer any protections against disclosure to immigration authorities. The impact of this proposal could be diminished considerably, if records were maintained in a way that does not correlate identifying information to immigration information, and if assurances could be given to the patient that the immigration information will not be shared with other government officials.
In any event, an alternative to this proposal is essential. The "proxy" approach put forth by the National Association of Public Hospitals and Health Systems is one viable alternative. One version of that approach would look at the ratio of emergency Medicaid to full-scope Medicaid patients served by a provider and apply that ratio to the providers' overall uncompensated care costs.
Another approach would involve sampling. Taking information from a percentage of patients, not associating that information with the names of the patients from whom it is taken, and providing the patients with assurances that they will not be identified to authorities, would promote the ends meant to be achieved here without the disastrous consequences that the proposed approach would entail.
Proposed Information Collection Instrument for Documenting Citizenship
This purported "Information Collection Instrument" is very odd, in that it does not appear to fulfill any purpose except to frighten the patient and potentially serve as an enforcement tool. It seems to be trying to ask if the person is documented or not by suggesting a couple of legal statuses that they could hold. But the list is far from exhaustive: there are numerous other statuses, such as asylee, Temporary Protected Status, applicant for adjustment of status, etc., that are lawful or provide the color of law. Yet, they are not included. The term, "other qualified alien,"as included in question 2 , may be meant to cover these other circumstances, but does not provide sufficient direction to anyone attempting to comply with the term. Indeed, this instrument exemplifies the impracticality of the approach that the Department proposes to take. We would strongly encourage the Department to consider another approach to this issue, as suggested herein.
Like many other organizations involved with the immigrant community, AILA only learned about this document last week. We suspect that there are other affected communities who still have no idea that this radical proposal has been put forth. Indeed, when we first got wind of it, we scoured the Federal Register to find it, to no avail. Clearly, HHS is not conducting an appropriate notice and comment period.
The document indicates that the statute provides no authorization for rulemaking. While we do not have time, given today's deadline for comments and that we heard about this proposal only a couple of days ago, to research the Administrative Procedures Act ("APA") sufficiently, we would suggest that HHS do so. The APA may not only authorize but require rulemaking for such a substantive rule.
In any event, the Paperwork Reduction Act requires appropriate publication of the information collection instrument. While HHS indicates in this document its intent to eventually provide notification of the instrument, it makes clear that it will do so in a largely peremptory manner, with little opportunity for meaningful comment. Thus, this document, floated only to a select few, appears to be the only meaningful opportunity that will be offered for comment on the instrument. We urge you to publish both this rule and the instrument, and seek comment on both, in a meaningful way.
American Immigration Lawyers Association
Cite as AILA Doc. No. 04081667.