On August 10, 2024, Texas Governor Greg Abbott issued a significant Executive Order directing the Texas Health and Human Services Commission (HHSC) to begin collecting and reporting data on healthcare costs incurred by undocumented immigrants in the state's public hospitals. This move marks a new chapter in the ongoing debate over immigration policy and its financial implications for state and local governments. At Saluja Law, we recognize the legal complexities and potential ramifications of this order, especially as they pertain to immigration law and public health policy.

Understanding the Executive Order

Governor Abbott's Executive Order tasks the HHSC with several key responsibilities:

1. Data Collection from Hospitals: Hospitals across Texas, particularly those providing inpatient and emergency care, are now required to track the costs of medical services provided to undocumented immigrants. This process is set to begin by November 1, 2024.

2. Quarterly and Annual Reporting: Hospitals must submit their data to HHSC on a quarterly basis, with the first reports due by March 1, 2025. Annually, beginning January 1, 2026, the HHSC will compile this data and present it to the Governor, Lieutenant Governor, and the Speaker of the House, outlining the total costs of care provided to undocumented immigrants in the preceding year.

3. Patient Notification: Importantly, hospitals must inform patients that their immigration status information, as reported, will not affect the care they receive—a stipulation rooted in federal law.

The Broader Implications

Governor Abbott's order is positioned as a direct response to what he describes as the "reckless open border policies" of the Biden-Harris Administration. The Governor argues that Texas has been forced to bear the financial burden of these policies, particularly in the realm of public healthcare, and that the federal government should be held accountable for reimbursing the state.

This Executive Order raises several important legal questions and concerns:

• Federal vs. State Jurisdiction: Health care is traditionally a state-regulated domain, but immigration is a federal responsibility. Governor Abbott's order touches on both, potentially setting the stage for legal challenges over whether a state can impose additional reporting requirements on healthcare providers that could impact federal immigration policies.

• Implications for Undocumented Immigrants: The order may have a chilling effect on undocumented individuals seeking necessary medical care, despite the assurances that their care will not be affected. Fear of being reported, even if the data is not supposed to impact care, could deter individuals from seeking treatment, which could have public health consequences.

• Reimbursement from the Federal Government: The order suggests that Texas intends to seek reimbursement from the federal government for the costs incurred by treating undocumented immigrants. However, the mechanisms for such reimbursement are unclear, and there is no existing federal program that directly compensates states for these specific expenses. Any attempt to recover these costs could lead to lengthy legal battles or require new federal legislation.

Legal Challenges on the Horizon

It is likely that this Executive Order will face scrutiny and potential legal challenges. Questions about its constitutionality, its alignment with federal laws like the Emergency Medical Treatment and Labor Act (EMTALA), and the ethical implications for healthcare providers are already beginning to surface. Moreover, the order could be challenged on the grounds that it may lead to discriminatory practices, despite the clear directive that patient care should not be affected by their responses to immigration status questions.

At Saluja Law, we will continue to monitor the developments surrounding this Executive Order, particularly as they pertain to immigration law, healthcare law, and the rights of individuals. As this situation evolves, we will provide updates and insights into the potential legal ramifications and how they might impact both healthcare providers and undocumented immigrants in Texas.

Conclusion

Governor Abbott's Executive Order represents a significant development in the intersection of state healthcare policy and federal immigration law. While its stated goal is to alleviate the financial burden on Texas, the broader legal and ethical implications will likely be the subject of ongoing debate and litigation. Saluja Law remains committed to providing our clients with timely and informed analysis as these issues unfold.