Texas AG Issues Opinion That County Hospitals Not Allowed to Serve "Not Qualified" Immigrants

IMMIGRANTS & PUBLIC BENEFITS

Health Care

TEXAS AG ISSUES OPINION THAT COUNTY HOSPITALS NOT ALLOWED TO SERVE "NOT QUALIFIED" IMMIGRANTS
Immigrants' Rights Update, Vol. 15, No. 5, Aug. 31, 2001

An opinion by the state's attorney general has generated concern among Texas public hospitals providing primary and preventive medical services to undocumented persons. In the July 10, 2001, opinion, Attorney General John Cornyn concluded that the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) precluded the Harris County hospital district from providing the medical services to undocumented persons unless the state's legislature explicitly authorized them. The PROWRA provision at issue required state legislatures to act, after Aug. 22, 1996, to affirm their intention to provide certain public benefits to "not qualified" immigrants.

Legal scholars have determined that the provision violates the Tenth Amendment to the U.S. Constitution, which reserves the power of self-governance to the states. Nonetheless, attorneys analyzing the situation in Texas have found that the legislature has complied with the PRWORA's requirements by affirming eligibility for medical services to unqualified immigrants. In 1997 the state amended relevant sections of a statute requiring county hospital districts to provide medical and hospital care for all indigent and needy persons residing in their districts.

Cornyn issued the opinion in response to a request from the Harris County attorney, who apparently made the request at the urging of a hospital district commissioner.

A state attorney general's opinion simply constitutes that attorney's advice to a public entity and is not binding on that client or any other party. The Harris County hospital district, like the majority of other Texas hospital districts, is continuing to serve residents of its area without regard to their immigration status. However, at least two other Texas county hospitals have stopped serving undocumented persons because of the attorney general's opinion. In addition, the opinion has inspired the Young Conservatives of Texas to charge that several of the state's county hospitals have misappropriated public funds in violation of state criminal statutes.

Although the issue has not come up in other states, Texas Democratic Congressman Gene Green has introduced a bill, H.R. 2635, which would clarify that state and local governments can provide primary and preventive care to not qualified immigrants without passing a new state law. The bill is currently with the House subcommittee on health.