Program Review and Investigations Committee




<MeetMDY1> December 11, 2008


The<MeetNo2> Program Review and Investigations Committee met on<Day> Thursday,<MeetMDY2> December 11, 2008, at<MeetTime> 10:00 AM, in<Room> Room 131 of the Capitol Annex. In the absence of the House and Senate co-chairs and it being the Senate co-chair’s turn to preside, Senator McGaha presided over the meeting.  He called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senators Charlie Borders, Vernie McGaha, R.J. Palmer II, Joey Pendleton, and Brandon Smith; Representatives Dwight D. Butler, Leslie Combs, Rick G. Nelson, Ruth Ann Palumbo, Rick Rand, Arnold Simpson, and Ken Upchurch.


Guests:  Kay Kennedy, Director of the Division of District Operations, Office of District Support Services; Greg Finkbonner, Branch Manager of Humanities, Division of Curriculum Development, Office of Teaching and Learning; Shelda Hale, Academic Program Consultant for Title III Program; Kentucky Department of Education. LaDonna Thompson, Commissioner; Mary Thompson, Office of Research and Grants; Department of Corrections.    


LRC Staff:  Greg Hager, Committee Staff Administrator; Rick Graycarek; Christopher Hall; Colleen Kennedy; Van Knowles; Jean Ann Myatt; Stella Mountain, Committee Assistant; Program Review and Investigations Committee staff.  Jon Roenker, LRC Staff Economist.


Upon motion made by Senator Pendleton and seconded by Senator Palmer, the minutes of the November 13, 2008 meeting were approved by voice vote, without objection.


Representative Palumbo introduced Kerby Neill, a guest in the audience.


Senator McGaha asked Rick Graycarek to present the report Costs of Providing Services to Unauthorized Aliens Can Be Estimated for Some Programs but Overall Costs and Benefits Are Unknown. Senator McGaha noted that Colleen Kennedy and Jon Roenker also worked on the report.


 Mr. Graycarek said that the study had three objectives: describe the legal and constitutional framework related to unauthorized aliens; review the literature on the fiscal impact of unauthorized aliens; and estimate, if possible, the net fiscal impact related to state and local government programs accessed by unauthorized aliens in Kentucky.


He said immigration law is a federal prerogative, and immigration policies are established by the federal government.  For example, the federal government and federal laws determine who can enter the United States, the legal rights of immigrants, and the process by which immigrants can become U.S. citizens.  State and local governments can affect public policy related to immigration only if there is no conflict with the U.S. Constitution or federal laws.  Enforcement of immigration laws is done primarily by the Immigration and Customs Enforcement (ICE) agency, which investigates, identifies and apprehends unauthorized aliens.


He said that unauthorized aliens typically do not want to be identified, so it is impossible to develop a precise figure for how many unauthorized aliens live in the U.S.  As of 2008, there are an estimated 11.4 million to 12.4 million unauthorized aliens in the U.S., which represents approximately 4 percent of the total population. At least since 2000, the trend has been an increase in the number of unauthorized aliens each year. The exception was a possible decrease from 2007 to 2008.


He said there were an estimated 30,000 to 60,000 unauthorized aliens in Kentucky as of 2005. Kentucky had a similar number of unauthorized aliens as the neighboring states of Missouri and Indiana.  Compared to most states, however, the estimated population of authorized aliens in Kentucky is small.


He said the study has five major conclusions. 1) Unauthorized aliens generally do not want to be identified, so the number of unauthorized aliens cannot be determined with reasonable accuracy.  2) Unauthorized aliens can access relatively few government programs.  3) For three of the four public programs examined for this study, service providers may be prohibited from checking or inquiring about a person’s immigration status.  4) Kentucky correctional facilities check immigration status inconsistently.  5) The net fiscal impact of unauthorized aliens in Kentucky cannot be determined with reasonable accuracy. 


He noted that the report makes two recommendations but they do not involve changing the legal requirements for what information should be collected when services are provided or whether unauthorized aliens should receive certain services. Such decisions would be policy judgments of the General Assembly.


He noted that staff reviewed 28 studies conducted by governmental and nongovernmental agencies at the state and national level. None of the studies considered the full sum of the costs and benefits related to all programs accessed by unauthorized aliens. By necessity, the studies generally focused on the short-term costs of providing services to unauthorized aliens for a limited number of programs. He said the Program Review study took a similar approach by examining four programs: primary and secondary public education, emergency medical assistance, public health, and correctional facilities. 


Before going into details, he summarized the direct short-term costs for the programs. Staff estimated that the annual short-term costs for providing services for unauthorized aliens were approximately $25 million for primary and secondary education, up to $2.3 million for emergency medical assistance, $300,000 for state correctional facilities, and $1.4 to $2.5 million for local jails. Costs for public health could not be estimated due to lack of appropriate data.


He said the first program considered was primary and secondary education. A 1982 U.S. Supreme Court ruling established that children are eligible to attend school regardless of their immigration status or the immigration status of their parents.  An effect of the ruling is that only minimal information can be required to enroll a student in school.  Immigration status cannot be requested. A Social Security number can be requested but cannot be required by schools.


He noted that the documents required to enroll a student in school are established in Kentucky statute: a certified copy of the birth certificate or other reliable proof of age and identity, an immunization certificate, a school medical examination form, and an eye examination form.  The state does not mandate a specific enrollment form that school districts must use. Districts have developed their own enrollment forms, which vary in style and the types of required information. Some forms require a Social Security number, which is contrary to federal case law. Some enrollment forms say that a birth certificate is required but fail to note that other documents may also be acceptable.


Recommendation 3.1 is that the Kentucky Department of Education should identify the information public schools may legally require or request of first-time enrollees.  The department should facilitate and monitor compliance by all Kentucky school districts.


As noted, the immigration status of students in Kentucky schools is unknown. Staff estimated the number of students in Kentucky schools who may be unauthorized aliens based on student-level data provided by the Kentucky Department of Education. LRC staff identified 2,534 students who were not U.S. citizens, who were born in a foreign country, and who did not have Social Security numbers. Approximately 0.4 percent of students statewide met these criteria. The percentages varied by district with a high of 2.7 percent in Shelby County.  To estimate spending, staff multiplied the number of students in each district who may be unauthorized aliens by the district’s average per-pupil expenditure. This resulted in a statewide estimated total of $24.6 million in state and local expenditures that may be attributable to unauthorized alien students.  Due to limitations of the research methods, the actual number of students who are unauthorized aliens may be higher or lower than this estimate.


He said the second program considered in the report is emergency medical assistance. Unauthorized aliens are not eligible for full Medicaid benefits, but under federal law and state regulation, they may be eligible for a Medicaid program that pays certain emergency medical costs.  Federal law defines an emergency medical condition as an acute symptom that could seriously jeopardize a person’s health or bodily functions. Unauthorized aliens access emergency medical assistance by going to a hospital or primary care facility or visiting a physician. Eligible unauthorized aliens may receive benefits for up to 2 consecutive months.


The number of enrollees in the emergency medical assistance program includes, but is not limited to, unauthorized aliens. Participants in the emergency medical assistance program do not provide their immigration status, so the Department for Medicaid Services does not know the actual number of unauthorized aliens who are accessing services.  Since 2001, the number of enrollees in the program and the costs related to providing emergency medical assistance have steadily increased.  Approximately 70 percent of these expenditures are for inpatient hospital care. 


He said that the third program reviewed is public health.  After providing a brief overview of public health services in Kentucky, he noted that the report focused on clinical services, which include prenatal care, immunizations, tuberculosis screening, and well-child pediatrics.  In general, it appears that public health departments are not able to inquire about a patient’s immigration status based on federal policy or law, and/or state policy.  Public health departments must follow policies established by their funding sources. Public health departments collect information related to provision of services, but that information was insufficient for LRC staff to estimate with reasonable accuracy the number or costs of recipients who may be unauthorized aliens. 


He said the final program considered was correctional facilities, which include state prisons and local jails.  In contrast to the three program areas previously considered, correctional facilities are not prohibited from asking inmates about their immigration status.  Local jails in particular use different criteria to identify suspected unauthorized alien inmates and use different methods to check inmates’ immigration status. Even if they go through this process of checking an inmate’s immigration status, they may not document whether or not an inmate actually is an unauthorized alien.  They would only document it, if, for example, federal authorities placed a detainer on an inmate.  A detainer means that the local jail must hold the inmate for up to 48 hours after the scheduled release in order to allow federal authorities to take custody of the inmate.  Local correctional facilities maintain separate inmate databases. There is no state-level method to access specific information about all the inmates in Kentucky jails.  Due to these limitations, the actual number of inmates in Kentucky jails who are unauthorized aliens is unknown.   


He said that some existing information helps in estimating the number and costs of unauthorized alien inmates. The federal government operates the State Criminal Alien Assistance Program (SCAAP), which reimburses correctional facilities for a portion of their salary costs related to housing unauthorized alien inmates.  In fiscal year 2008, only five Kentucky facilities applied for reimbursement, one of them being the State Department for Corrections.  LRC staff used information about these five correctional facilities as a basis for estimating the number of unauthorized alien inmates statewide.


He said that based on the information provided to the federal government, there were 635 unauthorized alien inmates in the five facilities that received SCAAP funding in FY 2008. The facilities received federal reimbursements totaling $162,000. LRC staff estimated that the total annual cost of housing those inmates was $1 million. LRC staff estimated the number of unauthorized alien inmates separately for Louisville and for all other correctional facilities in Kentucky that did not receive SCAAP funding.  In FY 2008, 985 to 1,545 inmates may have been unauthorized aliens and imposed total costs of $1.7 to $2.8 million. Staff also estimated that potential federal reimbursements would have been $148,000 to $385,000 for facilities that did not apply for SCAAP funding.


Recommendation 6.1 is that the Kentucky Department of Corrections should support local correctional facilities that want to apply for funding from the federal State Criminal Alien Assistance Program.


Mr. Graycarek summarized the presentation by saying that compared to most states Kentucky has relatively few unauthorized aliens.  For three of four programs that were considered in this study, federal and state provisions generally prohibit asking a person about immigration status before service is provided. Staff were not able to estimate a net fiscal impact: the sum of all costs and benefits. Staff were able to estimate costs for three program areas. 


Representative Rand asked what sort of credentials an authorized alien would have.


Mr. Graycarek said that there are dozens of different types of visas that the U.S. grants, so a number of different documents could be provided.


Regarding federal reimbursement for corrections, Senator McGaha noted that the report said that many local jails said they did not have sufficient manpower or time to go through the process.  He asked what the process is to apply.


Mr. Graycarek said that staff asked some correctional facilities that apply how long it takes to complete the process. They did not provide specific answers but indicated the amount of time to complete the application process depends on the skills of a facility’s database manager. Correctional facilities that apply for the program must review information on all their inmates throughout the year and identify on some basis who they suspect may be unauthorized aliens.


Senator McGaha asked whether this is an annual program.


Mr. Graycarek replied that it is an annual reimbursement program, and that in 2008 the total federal government appropriation for it was approximately $250 million.


Representative Palumbo asked for clarification of a figure in the report which indicated that the number of unauthorized aliens nationally decreased from 2007 to 2008.


Mr. Graycarek replied that the numbers for 2007 and 2008 were estimates and the margins of error were large enough that it is possible that there was no actual decrease.   If there was an actual decrease, it could be related to the economic downturn in the U.S.


Senator McGaha asked that officials from the Department of Education respond.


Mr. Finkbonner said that they had reviewed the report and the recommendation directed to the department.


Ms. Hale read the following response:  “KDE is having discussions about creating a document that combines the federal case laws and Kentucky law regarding information schools may/may not require for enrollment.  Some examples of ‘other reliable proof’ would be included in order to assist schools with compliance.  This document will be considered a ‘clarification’ provided to superintendents in the usual ways, so it can be distributed to schools for all staff that complete the forms.  It will also be shared with KDE personnel in appropriate offices to distribute in the field since several federal programs work with populations related to the issues identified by the LRC study, which include Migrant Education, Title III, McKinney-Vento Education for Homeless and others.”


Senator McGaha asked Commissioner Thompson of the Department of Corrections to respond to the report.


Commissioner Thompson responded to the recommendation that the department should support local correctional facilities that want to apply for funding from the federal State Criminal Alien Assistance Program. She said that it is routine for the department to assist the jailers and provide training for staff. She said training relevant to the recommendation would be provided at jailers’ conferences, which occur once to twice per year. She said the department would be willing to provide training for the staff who complete and submit the paperwork for the grant. The department would provide training using a computer-based module, and could put together a training program that jail staff could access at any time. 


Regarding the jail databases, she said that state inmates in county jails are included in the department’s numbers. Having separate county jail databases is a barrier, but all the local jails use a system developed by Appriss. With Appriss’s system, a local jail can query the name of an inmate, where the inmate is held, and when the inmate leaves jail. It may be possible for local jails to use information from Appriss to help with identifying inmates as part of the application process for federal reimbursement for housing inmates who may be unauthorized aliens.


Senator McGaha asked for clarification as to whether state inmates are automatically processed by the Department of Corrections and at what point the department becomes responsible for them.


Commissioner Thompson responded that state inmates are processed by the department and that state custody begins when they are sentenced.


Senator McGaha asked whether the department relays information to local jails when the state receives federal reimbursement for housing an inmate.  The local jail could have housed the inmate for months.


Commissioner Thompson said that she did not know whether such information is provided but that she would find out.


Senator McGaha said that he appreciated what she had said about training.  If local facilities are made aware and if they choose not to apply for funding, that is their choice.


Senator McGaha said that in the absence of the regular co-chairs, voting to approve the report and to select additional study topics would be deferred. He said that further suggestions for study topics were welcome.


The meeting was adjourned at 11:10 am.