The Program Review and Investigations Committee met on Thursday, May 14, 2009, at 10:00 AM, in Room 131 of the Capitol Annex. Representative Reginald Meeks, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator John Schickel, Co-Chair; Representative Reginald Meeks, Co-Chair; Senators Vernie McGaha, R.J. Palmer II, Joey Pendleton, Dan "Malano" Seum, 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; Shelda Hale, Academic Program Consultant for the Title III Program; Kentucky Department of Education. LaDonna Thompson, Commissioner; Brigid Adams, Office of Research and Grants Internal Policy Analyst; Department of Corrections. Secretary J. Michael Brown, Justice and Public Safety Cabinet.
LRC Staff: Greg Hager, Committee Staff Administrator; Rick Graycarek; Colleen Kennedy; Van Knowles; Lora Littleton; Rkia Rhrib; Sarah Spaulding; Katherine Thomas; Cindy Upton; Stella Mountain, Committee Assistant; Program Review and Investigations Committee Staff. Jon Roenker; LRC Staff Economists.
Upon motion made by Representative Rand and seconded by Senator Seum, the minutes of the December 11, 2008 meeting were approved by voice vote, without objection.
Upon motion made by Representative Rand and seconded by Senator Palmer, the minutes of the January 9, 2009 meeting were approved by voice vote, without objection.
Rick Graycarek presented the report Costs of Providing Services to Unauthorized Aliens Can Be Estimated for Some Programs but Overall Cost and Benefits Are Unknown.
Mr. Graycarek said that the study had three objectives: describe the constitutional and legal framework related to immigration and unauthorized aliens; review the literature related to the fiscal impact of unauthorized aliens on state and local government; and estimate, if possible, the net fiscal impact related to state and local government programs accessed by unauthorized aliens in Kentucky.
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 accuracy. 2) Unauthorized aliens can access relatively few public programs. 3) Federal provisions for those programs frequently prohibit asking recipients about their immigration status. 4) Kentucky correctional facilities check inmate immigration status inconsistently. 5) The net fiscal impact of unauthorized aliens in Kentucky cannot be determined with reasonable accuracy.
He said that an exact number of unauthorized aliens living in the U.S. is not known, but as of 2008, there were an estimated 11.4 million to 12.4 million, which represented approximately 4 percent of the total population.
He said there were an estimated 30,000 to 60,000 unauthorized aliens in Kentucky, which represents between 0.7 and 1.4 percent of the state’s population. Kentucky has 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.
Mr. Graycarek said immigration law is a federal prerogative. 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 these federal provisions. Investigating, identifying, and apprehending unauthorized aliens is the responsibility of the Immigration and Customs Enforcement (ICE) agency, which is a part of U.S. Department of Homeland Security.
He noted that staff reviewed 28 fiscal impact studies related to immigration and unauthorized aliens. 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 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 under Medicaid, public health, and correctional facilities.
He said the first program considered was primary and secondary public education. A 1982 U.S. Supreme Court ruling established that children are eligible to attend public 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 may be requested but it cannot be required by schools.
He noted that the documents required to enroll a student in school are established in Kentucky statute and the state does not mandate a specific enrollment form that school districts must use. Some districts’ 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.
LRC staff estimated the number of students in Kentucky schools who may be unauthorized aliens based on data provided by the Kentucky Department of Education. 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. Of these students, 74 percent were in five districts. About a third were in Fayette County, accounting for 2.4 percent of students in the district. To estimate cost, 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 cost of $24.6 million in state and local expenditures that may be attributable to unauthorized alien students. The actual number of students who are unauthorized aliens may be higher or lower than this estimate, and extra costs potentially imposed by unauthorized alien students were not included in the estimate.
He said the second program considered in the report is emergency medical assistance under Medicaid. Unauthorized aliens are not eligible for full Medicaid benefits. Under federal law and state regulation, those who cannot document that they are legal residents, which includes unauthorized aliens, may be eligible for a Medicaid program that pays certain emergency medical costs. They access emergency medical services by going to a hospital, a physician, or a primary care facility. If a person is unable to document their immigration status at the time service is provided, all of his or her costs may be paid by Medicaid for up to 2 consecutive months. The Department for Medicaid Services records this information. Using this data, staff estimated that, in Kentucky, 14,400 claims were filed in Fiscal Year 2007 by recipients who were unable to document their immigration status, and those services imposed a state Medicaid cost of $2.3 million. This does not necessarily mean that all recipients were unauthorized aliens.
He said that the third program reviewed is public health. In Kentucky, 56 local public health departments serve all 120 counties. They provide nonclinical services, such as food inspections and septic inspections, and clinical services, which include prenatal care, immunizations, tuberculosis screening, and well-child pediatrics. Federal provisions for testing, immunizations, and treatment of communicable diseases, prohibit public health departments from asking about immigration status. 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: state prisons and local jails. Correctional facilities are not prohibited from asking inmates about their immigration status. Local correctional facilities 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. Local correctional facilities maintain separate inmate databases. There is no state-level method to access specific information about all the inmates in Kentucky jails.
He said that staff used existing information to estimate 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. LRC staff used information about the five correctional facilities that applied for reimbursement last year as a basis for estimating the number of unauthorized alien inmates statewide. In fiscal year 2008, 985 to 1,545 inmates may have been unauthorized aliens and imposed total costs of $1.7 to $2.8 million.
Reasons correctional facilities gave for not applying for this reimbursement included too few staff and not being aware of the program. Recommendation 6.1 is that the Kentucky Department of Corrections should support local correctional facilities that want to apply for this funding from the federal State Criminal Alien Assistance Program.
Senator Seum asked staff about the term “sanctuary cities” and whether Kentucky has any.
Ms. Colleen Kennedy said her understanding of a true sanctuary city is one that has a written statement of an ordinance or a law that may be in conflict with federal law on immigrants.
Senator Seum asked whether federal immigration law is not enforced in a sanctuary city, and whether there are any penalties, such as losing federal money, for being a sanctuary city.
Mr. Graycarek said he was not aware of that.
Representative Palumbo asked whether it would be accurate to state that no city puts it in statute because the federal government prohibits asking questions regarding immigration status.
Ms. Colleen Kennedy said the sanctuary city issue is more concerned with police officers, not the four areas that staff studied.
Representative Palumbo asked whether the police are allowed to ask anybody if they are an unauthorized alien.
Ms. Colleen Kennedy said that was an unclear area that was not addressed in this study.
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 Seum asked whether there are penalties for school systems or police officers for asking about a person’s immigration status and whether it would be a civil rights issue.
Ms. Colleen Kennedy said illegal presence in the U.S. is a civil violation; the act of crossing the border illegally is a criminal violation.
Senator Smith asked whether correctional facilities are allowed to use their own criteria and methods to determine inmates’ immigration status.
Mr. Graycarek said that is correct. There is no requirement for correctional facilities to check immigration status and once they decide to do so, they establish their own policy.
Senator Smith said it may be wise for legislators to put a uniform policy into place to better screen inmates. He asked why illegal inmates are not turned over to the federal Immigration and Naturalization Service because they are not supposed to be here, have committed a criminal act, and are an expense to the state.
Mr. Graycarek said immigration and customs enforcement officials do not want all of them because of the cost. According to federal officials, it would be unfair to deport unauthorized alien inmates prior to them completing their sentences.
Senator Smith said that this is a tremendous problem that should be addressed by the General Assembly. He asked what actions, if any, are taken to have known illegal alien inmates deported.
Mr. Graycarek said that immigration is a federal issue. State and local governments cannot make the determination whether or not a person is illegal. The correctional facility has to send information about the inmate to a federal agency to have it determine whether or not the inmate actually is an unauthorized alien. Once that has been established, it is up to federal officials to proceed with any type of deportation process against that individual.
Representative Combs asked whether the state can do anything about the situation before the federal agency gets involved in the process.
Ms. Colleen Kennedy said that for the four areas addressed in the study, it is federal law that certain services must be provided. However, there are certain areas that states have some latitude, and some states have a law that all inmates be run through the federal check.
Representative Combs said it needs to be determined how the state could or could not have any control over the situation. She asked whether the court system is allowed to identify unauthorized aliens.
Mr. Graycarek said the report considered both state and local jails and it is up to both entities to decide how and when they request or seek information about those inmates to find out whether or not they are unauthorized aliens.
Senator Smith asked the committee to work on a possible bill for a uniform policy to determine unauthorized alien inmates in the correctional facilities in Kentucky.
Representative Meeks asked whether it is true that there is no centralized database for all correctional institutions in the state.
Mr. Graycarek said that is correct.
Representative Meeks said that would be another area to look at.
Mr. Graycarek added that there is a method to query the individual databases to find out if somebody is incarcerated anywhere in the state but one cannot pull general information from all those separate databases.
Representative Meeks asked what staff findings were regarding Kentucky businesses’ challenges in trying of identify unauthorized aliens.
Mr. Graycarek said staff did not investigate the private sector. Staff looked at state and local government fiscal impacts.
Representative Meeks asked what percentage of the overall inmate population illegal undocumented aliens represent.
Mr. Graycarek said the inmate population is about 37,000, of which an estimated 985 to 1,500 are illegal undocumented aliens. [Note: Based on these numbers, unauthorized aliens are an estimated 2.7 percent to 4.1 percent of inmates in Kentucky.]
Representative Combs asked if there is a state considered to deal with illegal undocumented alien inmates in the best way.
Mr. Graycarek said staff did not look closely at other states, but that there does not seem to be a model state.
Senator Schickel asked what facilities in Kentucky applied for SCAAP funds.
Mr. Graycarek said the five facilities in fiscal year 2008 were Carroll County, Lexington-Fayette, Nelson County, Shelby County, and the state.
Representative Meeks asked Commissioner Thompson of the Department of Corrections to respond to the report.
Commissioner Thompson responded to the recommendation that the department should assist local correctional facilities that want to apply for funding from the federal State Criminal Alien Assistance Program. The department has committed to inform the jailers about the SCAAP funds at the jailers’ conferences in June. Closer to the time of submitting the funding requests, the department will train staff who prepare those requests. Because of local jail staff turnover, the department is also creating computer-based training that can be taken at any time.
Senator Schickel asked how a jail applies for the funds and what the criteria are.
Ms. Adams, who processes the SCAAP funds application for the Department of Corrections, explained that the entire application is done online through the U.S. Bureau of Justice Assistance. The first step is to identify the offenders who are potentially aliens. The only criterion is that they have been housed at least 4 days. That data is submitted, along with data about the facility, for example, the security staff, the number of security staff, the salaries paid to those staff, the number of inmates housed on a daily basis, and the number of inmate days, which is the total of all the inmates housed every day for the entire year.
Senator Schickel asked whether this is an annual process.
Ms. Adams said it was.
Representative Meek asked how much is available nationally through these funds, and how much Kentucky has received in the past.
Commissioner Thompson said there is a cap and the amount that the facilities receive depends on how many facilities apply, so it is different every year. She said the largest amount the Department of Corrections has received in the past three years has been $66,000. She did not know what the local jails received.
Mr. Graycarek said the total appropriation varies by year but nationally it has been about $250 million. The allocations depend on how many correctional facilities apply and how many unauthorized alien inmates they have.
Representative Meeks asked what the barriers were to the application process and whether the process can be made more user-friendly.
Commissioner Thompson said the application process is user-friendly. The concern with the jails is a shortage of staff, staff turnover, and whether it costs more in staff time than the money that they would receive.
Representative Meeks asked whether it would be possible to have a centralized application process in which one office submits applications for all facilities.
Commissioner Thompson said the biggest barrier with that process is identifying the inmates in the 75 different databases.
Ms. Adams added that the application is simple; gathering the data needed for the application is the hard part.
Representative Meeks asked representatives from the Kentucky Department of Education (KDE) to respond to the report.
Ms. Hale said the recommendation given was to identify the information the public schools may legally require or request of first-time enrollees and the department should facilitate and monitor compliance by all Kentucky school districts. The programs mentioned in the response to the committee in December 2008 include Title III, Migrant Education, McKinney-Vento Education for Homeless and others. They are in compliance with this because it is a federal mandate. They are already facilitating and monitoring compliance by the school districts with annual desk audits, site visits, and through program reviews. They are still in discussions with colleagues and in the process of creating a document that explains the federal case laws and the current state laws, which will be shared with KDE personnel and superintendants.
Representative Meeks asked when the department anticipates the document to be completed.
Ms. Hale said their action plan and time-line are not complete yet and the process requires the participation of personnel from different offices. She said the big issue is the variance in the enrollment forms at the district level, and in their training and professional development they address legal requirements for state and federal laws. Once this clarification is completed, it can be shared with personnel.
Representative Meeks asked whether the department expects to have a policy in place by the coming school year for all the data to be collected consistently across the Commonwealth.
Ms. Hale said she thinks it can be done by the start of the school year.
Senator McGaha asked for clarification that it is illegal to ask for a Social Security number for a child of an illegal alien and for a child of a legal resident.
Ms. Kay Kennedy said that is correct. She said she is responsible for collection of student information at the school and district level, and the use of the Social Security number as an identifier cannot be required for enrollment purposes. There are some program areas, like the KEES program, which do require a Social Security number.
Representative Meeks asked in what areas the confusion takes place.
Ms. Kay Kennedy said that the department provides training through data standards and start-of-year training to school districts. This training is uniform and standard across all the districts but turnover in school personnel responsible for enrollment data remains a problem. Training is now also available on the Web.
Representative Meeks asked for clarification on this process having already taken 6 months and the primary issue being the turnover of personnel collecting the data.
Ms. Kay Kennedy said, typically, training is done at the start of school year because that is when they have the biggest influx of new students into the system. With staff turnover during the year, other personnel step in to assume a role that they may not been trained for at the start of the year.
Senator McGaha asked whether the federal law prohibiting Social Security numbers as an identifier is specifically for elementary and secondary education.
Ms. Colleen Kennedy said the Supreme Court Case that mandates that education be provided for primary and secondary school, covers children. Once they leave secondary school and get into higher institutions, that Supreme Court ruling no longer applies.
Senator Seum said he assumes then since a Social Security number may not be used, that a birth certificate is required and not everybody may have one.
Ms. Hale said that federal law requires age and identity but there are other ways of showing identity besides a birth certificate.
Senator Seum asked what other ways could be used to show age and identity.
Ms. Hale gave as examples a page from a family bible and an immunization form with the birth date.
Senator Schickel said that there is a distinction between knowing which students are illegal residents for the purpose of knowing how many there are and how much they cost, and knowing which students are illegal residents for the purpose of denying education, which is not allowed under federal law.
Ms. Hale responded that federal law prohibits identifying the immigration status of students in primary and secondary education. Every student in Kentucky has a unique student identification number that is used to track children in the school system, but schools do not track if students are in the country legally or illegally. If an enrollment form asks for a Social Security number, the form has to state that it is not required in order to comply with the federal law.
Senator Schickel said there should be other ways to determine whether someone was illegal or not for the purpose of identifying who is in the public schools.
Ms. Hale said federal case laws and regulations do not allow schools to identify students’ immigration status.
Senator Schickel said he would be interested in seeing the federal statutes that require this.
Senator Seum asked if the penalties for identifying unauthorized aliens are related to funding.
Ms. Hale said the Office for Civil Rights would be involved.
Senator Smith said federal laws push the Bible out of schools, but they will recognize a page of the Bible as an official document for one’s age. He asked whether that is correct.
Ms. Hale said the federal law clearly states acceptable forms of identification of a student’s age and identity. KDE’s job is to clarify this with districts and schools.
The report Costs of Providing Services to Unauthorized Aliens Can Be Estimated for Some Programs but Overall Cost and Benefits Are Unknown was accepted upon motion by Representative Palumbo and seconded by Senator Smith, without objection by roll call vote.
Representative Meeks acknowledged Secretary J. Michael Brown of the Justice and Public Safety Cabinet and asked him whether he had anything to share with the committee.
Secretary Brown said that he had been in contact with ICE officials at the Chicago regional office about illegal aliens. Under the prior federal administration, ICE officials were not very interested in coming to pick up identified illegal aliens unless they had committed what ICE considered to be a deportable felony, which in many cases is different from the cabinet’s definition of a felony. He said under the current administration, it seems to be even less of an interest than before. He said he would not look for ICE to be particularly interested in coming to get many of the people that are identified as being illegal or unauthorized.
The meeting was adjourned at 11:45 am.