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By Richard Connelly
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"You just can't implement it. It's virtually impossible," says Dr. Robert Jimenez, chairman of the Bexar County hospital district board.
Jimenez recalls anxious deliberations with Guest and others about how to respond. Ultimately, officials in the San Antonio system decided to continue to deliver services to all county residents who sought them until they received further clarification from the federal government. Those guidelines never came.
"The thing was virtually ignored by everyone, including the feds," Jimenez says.
Public hospital systems in cities with large immigrant populations such as New York, Los Angeles and Miami appeared to take a wait-and-see position like San Antonio. Only Tarrant County and San Diego County cut off subsidized nonemergency care to immigrants, says Hillier, Harris County's director of legislative relations.
Both the county attorney's office and the current hospital district administration declined to provide information to the Press about what they knew about the law, and their response to it. However, it would appear that someone fell asleep at the wheel. Finder, who has served on the hospital district board since 1995, says he was ignorant of the much ballyhooed welfare act until sometime around the board's deliberations last December.
"It was a very arcane provision that I knew nothing about, and I'm a lawyer," he says. "So I imagine the laypeople on the board knew nothing about it."
Thus, Attorney General Cornyn's opinion, rendered July 10, exploded like a firecracker in the hand of an unsuspecting child.
The federal law prohibits the district from providing "free or discounted nonemergency health care to undocumented aliens, even if they reside within the district's boundaries," the attorney general stated unequivocally. The only way to circumvent the law is for the state to enact legislation making undocumented immigrants eligible for publicly funded nonemergency health care, something Texas has not done since the federal law went into effect in August 1996, Cornyn said.
Cornyn noted that federal funding for programs like Medicaid and Medicare are contingent upon compliance with the law. He also spoke ominously of possible legal consequences to the district and its officers for using public money for unauthorized expenditures.
The opinion sent officials reeling. John Guest fumed that the policy "sucked." County Attorney Michael Stafford preached caution. After taking time to collect themselves, hospital district brass, on the county attorney's recommendation, agreed to continue providing free and discounted nonemergency care to the undocumented, while they huddled to find a long-term solution.
Not everybody seemed so eager to preserve the status quo. County Commissioner Steve Radack, a longtime opponent of taxpayer-subsidized health care to the undocumented, contacted District Attorney Chuck Rosenthal's office to find out if he and the other commissioners could face criminal charges.
Radack's nervous query was the first anyone in the D.A.'s office had heard of Cornyn's opinion, Rosenthal says. They told the commissioner they would look into it. Within days Rosenthal concluded that indeed it might be a crime to use public money to provide free or discounted nonemergency care to undocumented immigrants. Misapplication of fiduciary property is a felony under state law, one that carries up to 99 years in prison.
"The statute says if you misapply money and spend money in violation of some law then somebody could be guilty under those circumstances," Rosenthal says.
In late July, Rosenthal told the Chronicle he would not launch a formal investigation unless someone filed a complaint with his office. After the article appeared, the complaints came pouring in. Marc Levin, vice chairman of the Young Conservatives of Texas and a law student at the University of Texas, was among those who "decided to take him up on his offer."
"This question of whether to provide fee [sic] health care for all Mexican citizens is critical because unlimited free American health care, which is far superior to the health services available in most parts of Mexico, surely encourages the ongoing flood of illegal immigration into Texas," he wrote in a July 30 complaint, later filed with the district attorneys of Dallas, El Paso and Bexar counties. "In short, Texas could become Mexico's nursing home."
After the irrepressible Levin filed his complaint, he dashed off a press release alerting the Texas media of the group's action. That same day Rosenthal began an investigation, becoming the only district attorney in Texas to turn the issue into a criminal matter.
Harris County's Hillier says, "Other parts of the country are watching us very closely now."
"I don't have a political agenda I understand that when I run for office I step into politics, but I've got to be probably the most apolitical person you've ever met," Chuck Rosenthal says.
In his first year in office, the district attorney has shown a knack for picking unpopular fights. Many reacted with shock to his decision to seek the death penalty for Andrea Yates. The investigation of the hospital district has raised eyebrows and generated ink in publications like The New York Times.
Rosenthal seems acutely aware that he is walking a lonely road. He bristles at the suggestion that he is acting out of any considerations other than upholding the law. Yes, he says, of the hundreds of complaints that his office receives, he has discretion to choose which he will investigate. But if he spots a possible violation, his only course is to go after it.
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