New America Media, News Report, Valeria Fernández, Posted: Nov 22, 2010

PHOENIX -- One year after it became law, a measure created to fight alleged fraud committed by undocumented immigrants applying for public benefits, is hurting those who actually qualify for the services.

HB 2008 went into effect on Nov. 24, 2009, requiring state agencies, cities and government employees in Arizona to report to immigration authorities anyone they considered to be in the country illegally. Under the law, government workers could face up to four months in jail if they fail to report someone.

Unlike SB 1070, another controversial law aimed at making undocumented immigrants subject to incarceration, there was no public debate on HB 2008. It was approved quietly as part of budget negotiations by conservative Republicans including Rep. Senator Russell Pearce, and signed by Gov. Jan Brewer.

Advocates argue its implementation has affected U.S. citizen-children of both undocumented and legal immigrants, and created a chilling effect on families to obtain essential healthcare services they qualify for.

Valle del Sol, a non-profit organization that provides prevention services and case management to Latinos, filed a discrimination complaint with the Office of Civil Rights (OCR) at the U.S. Department of Health and Human Services (DHHS) against the main agencies enforcing this law.

The complaint, which was submitted in August, details anecdotal cases of immigrant parents being intimidated by state workers. Immigrants claim they were asked about their immigration status when they tried to apply for a service. In one instance, a mother said she was asked for a U.S-issued ID when applying for healthcare for her developmentally delayed 15-month-old child. She claims that she was not told that she could use her foreign consular ID instead. When she saw a report on a local Spanish TV station that said immigrants could now be deported if they applied for benefits, she never returned to the government office, unaware for six months that her child had been approved for health insurance.

“These children are born in this country. Therefore they are entitled to the benefits, regardless of their parents’ status,” said Luz Sarmina-Gutiérrez, president and CEO of Valle del Sol.

The American Civil Liberties Union (ACLU), which has been monitoring the law over the past year, is concerned that children of undocumented immigrants are already on unequal footing when it comes to obtaining health insurance. In 2007, nearly half of the children born to unauthorized immigrants had no health insurance.

The Office of Civil Rights at DHHS can’t comment on open cases, according Rachel Seeger the federal agency spokesperson. When the agency discovers a violation of civil rights it tries to resolve it through a voluntary agreement, but if that’s not the case it could ask the Department of Justice to take action.

The Department of Economic Security and the Arizona Health Care Cost Containment System (AHCCCS), two of the main state agencies that administer public benefits in the state, are the subject of the complaint. AHCCCS handles the state Medicaid program that covers health insurance. It also handles coverage for emergency medical services, which must be provided under federal law to anyone who needs it, regardless of their immigration status.

“If you can’t provide documentation, you are only eligible for emergency services. If we discover during that process that you are here illegally, we have a requirement to make a report (to ICE),” said Jennifer Carusetta, chief legislative liaison for AHCCCS.

Carusetta said her department was aware of the investigation but hadn’t been contacted by the Office of Civil Rights. She said the Arizona Health Care Cost Containment System had conducted its own investigation and were confident that they are in compliance with state and federal law.

According to an Arizona Attorney General legal opinion, a caseworker can report an undocumented parent if they find out about their status in a casual conversation. This interpretation of the law, however, is currently being challenged in the civil rights complaint.

“They are not immigration specialists, so we don’t want them making guesses about people,” said attorney Ellen Sue Katz, litigation director at the William E. Morris Institute for Justice that helped drafted the complaint. One of their arguments is that people have the right to contest accusations that they’re in the country illegally, and they have a right to confidentiality.

Since it went into effect one year ago, the Department of Economic Security has reported 1,000 people they thought were in the country illegally to U.S. Immigration and Customs Enforcements (ICE). Another 503 people were reported by AHCCCS. Seventy percent of the reports made by the Department of Economic Security were during the first few months after the law went into effect.

“We think by and large these are parents that are applying for benefits for their children and/or emergency AHCCCS,” said Katz. “What this has done is not putting out any fraud. All it’s doing is deterring people who have a right to apply for services, and it was mismanaged by DES (the Department of Economic Security) and AHCCCS (Arizona Health Care Cost Containment System) to allow deterrence to happen,” said Katz.

Arizona’s Department of Economic Security couldn’t specify how the reports had originated. Steve Meissner, a spokesperson for DES, said the agency is not concerned about the way their employees have been handling the reports and stated that they don’t ask people if they are in the country illegally as part of their application process.

But some say that when the law was first enforced, state employees were confused and scared.

“I think the policies weren’t clear,” said Tim Schmaltz, a coordinator of the Protecting Arizona Family Coalition, a non-profit that does budget advocacy work for state and human services. Many people, he said, were afraid of being criminally charged for failure to report people.

Ruben Reyes, a volunteer with Catholic Charities, has seen firsthand problems with the new law. Several months ago, he met a grandmother who came to the United States to take care of her U.S. citizen-grandchildren after their mother was deported. She was turned down every time she tried to apply for healthcare coverage or food assistance for the children. They struggled to get by without a breadwinner, and eventually had to go back to Mexico.

Supporters of the new law say it was created to cut down on healthcare fraud by undocumented immigrants. But Arizona government statistics show that fraud committed by immigrants is rare, and point to more instances of U.S. citizens trying to cheat the healthcare system.

According to a quarterly report by the Joint Budget Legislative Committee, AHCCCS and DES verified the immigration status of 25,821 individuals between Jan. 1 and June 30, 2010 and found no instances of the use of fraudulent documents.

HB 2008 didn’t change the requirements for someone to get public benefits. AHCCCS already had a system in place to check eligibility for full medical insurance coverage, which only includes U.S. citizenship and those who have been legal permanent residents for at least five years. Undocumented immigrants qualify FOR few programs, including nutritional assistance in the Women, Infants and Children (WIC) program, immunizations and emergency healthcare.

ICE wouldn’t respond to inquiries about whether or not it has detained people based on the reports filed by DES, and directed New America Media to file a Freedom of Information Act (FOIA). The FOIA has been pending for two and a half months.

More than the number of people being reported to immigration authorities, what worries groups like Valle del Sol and the Arizona Family Coalition is the significant drop in those who receiving basic benefits like nutrition or emergency services coverage.

Currently, 45,000 people in Arizona are enrolled in emergency AHCCCS, which allows hospitals to receive reimbursements in the event that they go to the Emergency Room. That’s a drop of 43 percent in participants since November of last year.

Among those who no longer have these services are immigrants like Maria, who asked that her last name not be used. Maria, who lives in a trailer park in Phoenix, said she would rather not have emergency insurance than step into a government office. She said she got scared when she was asked a lot of questions when she was applying for her children’s insurance, but eventually was able to get it.

The number of infants enrolled in Women, Infants and Children, a nutritional service program, dropped from 46,327 children in October 2009 to 44,312 during the same month this year.

Both AHCCCS and DES said they wouldn’t speculate to the reasons for the drop. Other programs, like food stamps, have seen a 15 percent increase in participants from fiscal year 2009, which ended in June 30, 2010. Despite the increase during the first few months of 2010, however, that program also saw a significant drop in applicants from an average of 10,000 per month to 1,334 in January and only 195 in February.

“There is no bill in the country that is similar to HB 2008,” said Jon Blazer, an attorney with the National Immigration Law Center, a think-tank that has been monitoring the Arizona law.

What makes HB 2008 unique is that it conflicts with the federal government’s reporting requirements, said Blazer. Federal regulations don’t require the reporting of people to immigration authorities when they apply on behalf of their U.S.-citizen children or for emergency medical care for themselves.

Arizona has gone beyond what the federal government allows, said Blazer, by putting government employees between a rock and a hard place.

“When state workers are already facing pressures in their job, threatening to punish these workers for helping people who are eligible and need services hurts the workers as well as all of us,” he said.