Legislative Update: 11/13/2013
Internal Obama administration documents show that the government’s botched rollout of Obamacare includes widespread failure to check applicants’ immigration status. (CBS News, Oct. 31, 2013, ABC News, Nov. 6, 2013) The 175 pages of documents, dated Oct. 1 through Oct. 27, are essentially “war room notes” from the Centers for Medicare and Medicaid Services (CMS) team charged with overseeing the rollout of the new law. (Id.)
As passed by Congress, Obamacare — officially called the Affordable Care Act — bars illegal aliens from participating in the insurance marketplaces set up by the law, called “exchanges.” However, the law still allows all “lawfully present” aliens (including all guest workers, tourists, foreign students, and other aliens in the U.S. on a temporary or permanent visa) to participate in the taxpayer-funded program.
The Affordable Care Act also set up a verification system to determine the immigration status of applicants. While the Act did not expressly require officials to use the Systematic Alien Verification for Entitlements (SAVE) program, U.S. Citizenship and Immigration Services has since announced that health and human services agencies will use the SAVE program to verify the immigration status of non-citizen applicants. (See USCIS Website, Oct. 1, 2012) SAVE has been used for years by federal, state and local governments to determine whether an alien is eligible for federal benefits. (Learn more about the SAVE program here)
But as Americans get a better picture of the rollout of Obamacare, to-date it appears that its verification procedures simply are not working. During the first month of the rollout, the war room notes show that CMS officials found two major problems with the Obamacare website, www.healthcare.gov, that have blocked immigration status checks. First, no applicants who apply through the website and “need to ping” the Department of Homeland Security (DHS) immigration databases are able to do so. (Documents at 72.) According to the war room notes, “Every single person who needs to go to DHS is essentially failing.” (Documents at 73.)
Second, for approximately 30 percent of applicants, the healthcare.gov website is skipping over the proper eligibility “events.” (Documents at 78-79.) That means the website is not taking applicants through the series of questions that determine eligibility, including questions regarding immigration status and income. (Id.) According to the notes, “We have a fairly high percentage of submitted applications that are missing where the income process would be or where the immigration status process would be and those applicants could have got inaccurate responses.” (Id. at 79.) At the same time, though, some applicants “are having many instances of the same event (repeating eligibility 10 times).” (Id.)
According to CMS, it appears that both problems have led to applications failing. Contributing to the problem is the fact that the healthcare.gov website will not let applicants go back in their applications, so if the system has not prompted them to answer required eligibility questions, they cannot go back and complete that part after having filled out the rest of the application. (Id. at 78)
President Obama has promised that most of the problems with the healthcare.gov website will be fixed by November 30. (NBC News, Nov. 7, 2013) Yet, members of the President’s own cabinet are already beginning to doubt whether the website can be fixed by this deadline. (Washington Examiner, Nov. 10, 2013) Meanwhile, the health care exchanges need to average 39,000 enrollees a day to meet the Obama Administration’s goal of enrolling seven million individuals by March 1, 2014. (CBS News, Oct. 31, 2013)
U.S. Gave Illegal Aliens Nearly $29 Million in Prescription Drugs
In violation of federal law, the Department of Health and Human Services (HHS) gave almost $29 million in prescription drug benefits to illegal aliens, according to a report published by the Office of Inspector General. (HHS OIG Report at 4, Oct. 2013) The Centers for Medicare and Medicaid Services (CMS) inappropriately approved $28,990,718 in payments to sponsors that submitted 279,056 records of prescription drugs for 4,139 illegal aliens from 2009 to 2011 under the Medicare Part D program. (Id. at 3)
Current law generally prohibits illegal aliens from receiving federal public benefits, such as prescription drugs under Medicare. (See 8 U.S.C. § 1611; P.L. 104-193) In addition, a 2003 HHS memorandum also explicitly directs that CMS “Make no payments for Medicare services furnished to an alien beneficiary who is not lawfully present in the United States.” (HHS CMS Memorandum at 2, Aug. 2003)
Nonetheless, in spite of this clear prohibition against illegal aliens receiving Medicare Part D drug benefits, CMS does not have a policy in place to prevent payments for illegal aliens under Medicare Part D as it does for Parts A and B of Medicare. (HHS OIG Report at 4, Oct. 2013) Illegal aliens are enrolled in Medicare Part D, and sponsors that contract with CMS submit claims on behalf of illegal aliens because there is no mechanism for sponsors (private prescription drug plans) to check whether a beneficiary is lawfully present.
The Inspector General offered a series of recommendations to CMS. The first recommendation called for CMS to recover the $29 million unlawfully allocated from 2009 to 2011. (HHS OIG Report at 5, Oct. 2013) Second, the Inspector General recommended that CMS implement new controls to prevent enrollment and disenroll illegal aliens from Medicare Part D, as well as for CMS to automatically reject prescription drug event records when it reviews sponsors’ databases for payment determinations. (Id.) Finally, the Inspector General recommended that CMS identify and recover improper payments from 2011 forward. (Id.)
CMS Administrator Marilyn Tavenner agreed with the first two recommendations, but not the third. Tavenner indicated that CMS would reopen payment determinations for 2009 through 2011, codify new regulations, and establish an operational mechanism to relay information to sponsors. (HHS OIG Report at 8, Oct. 2013) However, Tavenner indicated that improper payments made after 2011 could not be recovered until CMS implements changes to its procedures. (Id. at 8)
Senator Tom Coburn (R-OK) criticized the Administration’s response as inadequate. CMS officials “have not given a timeframe for implementing needed corrective actions, nor have they agreed to recoup monies lost during this year and last year for the same reason,” he said in a press release. (Senator Coburn Press Release, Oct. 31, 2013) “Every individual wrongfully awarded benefits, be it the deceased or undocumented, diverts scarce resources away from those who need it most.” (Id.)
The October 2013 Inspector General report focused on only the prescription drug benefit in Medicare Part D used by illegal aliens for the 2009-2011 year period. Last January, the Inspector General also found that Medicare contractors had unlawfully paid $91,620,548 for hospital stays, doctor’s services, and medical equipment for illegal aliens under Parts A and B of Medicare from 2009 to 2011, because CMS did not receive data on lawful presence in a timely manner. (HHS OIG Report, Jan. 2013)
Immigration Reform on Hold Until 2014?
With only 13 legislative days remaining on the House calendar after this week, an increasing number of House Members are saying the lower chamber will wait until 2014 to take up immigration legislation.
Notably, House Majority Whip Kevin McCarthy (R-CA) told amnesty activists protesting at his district office that the House would wait until next year to address immigration reform. Angelica Salas, Chairwoman of the Coalition for Humane Immigrant Rights of Los Angeles who took part in the protest said the Congressman told her that there simply was not enough time to address immigration in 2013. (Associated Press, Nov. 8, 2013)
Salas described her conversation with the third-ranking GOP Congressman in a conference call with reporters on Friday: “What he said was, there’s 13 days left, it’s very hard to do anything in 13 days.” (Id.) McCarthy’s office confirmed his conversation with her, but added that the Majority Whip “supports fixing our broken immigration system.” (Id.)
Additionally, rank-and-file Republicans who support amnesty have been saying that immigration reform is dead until next year. For example, Rep. Mario Diaz-Balart (R-FL), a Member of the now defunct House Gang of Eight, acknowledged that the Congressional calendar seemingly prevents the House from passing immigration legislation before the end of 2013. “I don’t see the math. There are only 16 days, legislative days, for the floor,” Diaz-Balart told the Miami Herald last week. (Miami Herald, Nov. 7, 2013) “Unless someone has some magic potion, I don’t see how there’s time to go through the committee process and through the floor with what could ultimately be six or nine bills.” (Id.)
Similarly, fellow former Gang of Eight Republican Rep. Raul Labrador (R-ID) told reporters that he does not think immigration legislation is “going to happen this session unless we start seeing some more good-faith efforts on the part of the president to negotiate.” (The Spokesman-Review, Nov. 2, 2013) Representative Labrador, who was the first member to walk away from the House Gang of Eight negotiations, now says “it’s not the time” for House Republicans to work with President Obama on immigration because the fight to fund the government and raise the debt ceiling “just exacerbated the lack of trust between the two sides.” (Id.)
Even pro-amnesty House Democrats are beginning to recognize that “comprehensive” immigration reform is unlikely in 2013. “It looks difficult now because of how many days we have left,” pro-amnesty Rep. Henry Cuellar (D-TX) acknowledged in a phone interview on Friday. (The Monitor, Nov. 10, 2013) “The last time I talked to my Republican friends…I think they were telling me they don’t think it’s going to happen,” he said. (Id.)
There is, however, at least one key player still holding out hope for this year: Republican National Committee Chairman Reince Priebus. In an interview with Bloomberg Television’s Al Hunt last week, Priebus argued there is still time for the GOP-led House to pass “comprehensive” immigration reform before the year’s end. “The idea that either a comprehensive approach or a multi-tiered approach is not going to happen by the end of the year, I don’t think that’s necessarily true. I think that it can happen, and I think people like Paul Ryan and others still want something like that to happen,” Priebus said. (See Bloomberg Transcript, Nov. 8, 2013) “It could happen next year…I don’t think there’s any sort of midnight hour here.” (Id.)
Underscoring that at the end of the day GOP leaders are determined to pass some form of comprehensive immigration legislation, Priebus concluded by saying his “gut” feeling is that the House will pass an immigration overhaul before the current Congress ends in 2014, emphasizing that it is only a matter of — when, not whether — House Speaker Boehner brings immigration legislation to the floor, be it this year or the next… Stay tuned to FAIR for details…
Obama, Big Business Huddle at the White House over Immigration
Last week, President Obama invited key business leaders to the White House to push for immigration reform. Among the guests in Obama’s Roosevelt room Tuesday were the CEOs of McDonald’s, Marriott, State Farm, Lockheed Martin, Deloitte, and Motorola. (The Hill, Nov. 5, 2013) The execs met with President Obama and key White House advisers, including Valerie Jarrett and Cecilia Muñoz. (Id.)
Prior to the meeting, President Obama said he planned to discuss how to “continue to amplify this issue” with the goal to “get this done before the end of the year.” (White House Release, Nov. 5, 2013) Referring to Speaker of the House John Boehner (R-OH), Obama said, “we want to make it as easy for him as possible.” (Id.)
At the invitation of the President, Senator John McCain also went to the White House last Thursday. Regarding what issues would be discussed with President Obama at this meeting, Senator McCain said, “I’m going over to the White House this afternoon to meet with him [on] immigration reform and others.” (The Hill, Nov. 7, 2013)
President Obama’s meetings with business execs and Senator McCain came just one week after a failed attempt at meeting with members of the House GOP. President Obama had invited Rep. Michael McCaul (R-TX) and Rep. Sam Johnson (R-TX) to the White House for immigration talks, but both declined. “I saw it as a political trap,” Rep. McCaul, chair of the Homeland Security Committee said. (Politico, Oct. 30, 2013) A third invitee, House Gang of Eight member Rep. Mario Diaz-Balart accepted the invitation, but the White House canceled the meeting and has not rescheduled it. (The Hill, Oct. 28, 2013)
Notably absent from these White House meetings has been the Immigration and Customs Enforcement (ICE) Council, a union of over 7,000 ICE agents, officers, and staff. Chris Crane, president of the ICE Council, wrote in a letter to the Marriott and McDonald’s CEOs who attended the meeting that “Only influential and affluent groups and wealthy individuals like you were given an opportunity to provide real input” on immigration reform. (ICE Council Letter, Nov. 5, 2013) Of the law enforcement officer union’s exclusion from the stakeholders’ meetings, Crane told the CEOs that “you did nothing to assist or support us, but in fact — through your advocacy — put officers and the public at risk.”
Big Labor Rolls Out Amnesty Ad Campaign
Last week, the AFL-CIO announced it was waging a Spanish-language ad campaign pressuring House Republicans to pass amnesty legislation. (USA Today, Nov. 6, 2013)
The union has released two ads. The first juxtaposes quotes from House Republicans who oppose amnesty against emotionally-charged scenes of what are presumably illegal aliens completing patriotic and everyday tasks (such as reciting the pledge of allegiance, joining the military, and walking down the aisle). The next ad again features quotes from House Republicans who oppose amnesty, but this time tells listeners that Republicans have nothing but disdain for illegal aliens and that if “comprehensive immigration reform” does not pass, it is the GOP’s fault. (You can view the ads here.)
The union said it is focused on running the ads in areas that contain large numbers of Latinos, including: Bakersfield, California; Denver, Colorado; Atlanta, Georgia; and Orlando, Florida. (NPR, Nov. 7, 2013) Republicans representing districts in or around those areas include House Majority Whip Kevin McCarthy (R-CA), Rep. David Valadao (R-CA), Rep. Mike Coffman (R-CO), Rep. Paul Broun (R-GA), and Rep. Daniel Webster (R-FL). (Id.)
The AFL-CIO said it is spending more than $1 million on the campaign, with the ads running a minimum of 210 times in each of the markets over the course of two weeks. (Id.) The union is also running an English-language version of the ads in the Washington, D.C. area. (Id.)
“The time for acting on immigration reform is now, and the labor movement has decided to throw down in a big way to make it happen,” said AFL-CIO President Richard Trumka of his organization’s hard-hitting ad campaign. (See AFL-CIO Press Release, Nov. 6, 2013) Trumka vowed not to give up until all illegal aliens — who he refers to as “aspiring Americans” — are given a pathway to citizenship. “Every day, over 1,000 people are deported, while House Republicans refuse to act on immigration reform with a roadmap to citizenship and workers’ rights. We won’t stop until the deportation crisis ends and aspiring Americans have the roadmap to citizenship they deserve.” (Id.)
D.C. Council Approves Driver’s Licenses for Illegal Aliens
Last Tuesday, November 5, the District of Columbia Council approved a bill, B20-0275, to provide driver’s licenses to illegal aliens. The so-called “District of Columbia Drivers Safety Amendment Act of 2013” was introduced in May by Council Chairman Phil Mendelson at the request of Mayor Vincent Gray. The bill creates a two-tiered driver’s license system, meaning that the licenses provided to illegal aliens will be visibly distinct from those of legal residents and citizens. The licenses provided to illegal aliens must contain the phrase “not valid for official federal purposes.”
To obtain this special license under the two-tiered system, applicants must:
- reside in D.C. for longer than six months,
- be ineligible for a Social Security Number,
- possess an individual tax identification number, and
- be unable to provide proof of lawful presence in the United States.
Applicants must also provide proof of identity by submitting a valid, unexpired foreign passport or birth certificate. If the passport or birth certificate is not in English it must include a certified translation. The license is valid for 8 years. Earlier this year, a committee of the D.C. Council approved a version of the bill without the federal purpose distinction. As a result of discussions with the U.S. Department of Homeland Security, the D.C. Council reluctantly amended the bill November 5 to include the distinction to comply with the REAL ID Act of 2005. (Huffington Post, Nov. 5, 2013)
The REAL ID Act of 2005, as recommended by the 9/11 Commission, requires states to meet minimum security standards for issuing driver’s licenses and ID cards in order to enhance national security and reduce fraud. One such requirement includes verifying the lawful immigration status of any applicant. If a state chooses to issue driver’s licenses or ID cards to illegal aliens, the same must include the phrase “not valid for official federal purposes.” Any state driver’s license and ID card system that does not comply with this standard will not be accepted for federal purposes, including boarding commercial airplanes or entering federal buildings.
Despite the fact that they will be eligible to receive D.C. driver’s licenses, illegal alien advocates are unhappy with the distinction. (Examiner, Nov. 5, 2013) Advocates argue that the distinguishing mark will limit the effectiveness of D.C.’s sanctuary policy by singling out illegal aliens. The sanctuary policy, signed in 2011, prohibits police officers from questioning any person about their immigration status or reporting that status to federal authorities. D.C. Council member Mary Cheh suggested that the “federal purpose” distinction be written in the “smallest font” possible on the licenses so as not to call attention to the holder’s unlawful status. (The Washington Post, Nov. 4, 2013)
The bill will go into effect May 2014 pending a 30-day period of Congressional review and publication in the District of Columbia Register.