Alternatives to Police as First Responders: Crisis Response Programs

                                                               EXPLAINER                                                              

By Matthew DeLaus*

October 8, 2020

Summary

For 911 calls about someone in crisis, who should respond? Many cities have decided it should not solely be police. A national poll conducted in June found that 70% of likely voters support a non-police response for 911 calls about mental health crises, and 68% support the creation of non-police emergency response programs.1

In many jurisdictions, police are the first to respond (first responders) to 911 calls about people experiencing issues related to mental health, homelessness, and substance abuse. However, they often do not have adequate training to deal with these calls.2

Programs replacing police with social workers, mental health counselors, and medical staff have been in operation for at least a year in Austin, Texas; Eugene, Oregon; Olympia, Washington; and Edmonton, Canada. Eugene’s program has operated since 1989, and in 2019 responded to 20% (24,000) of all 911 calls, with a police backup request rate of 0.625% (160).3 These programs are focused on providing more appropriate services and

reducing government spending. Other cities have recently begun or approved crisis response programs of their own.4

Potential benefits include budgetary savings, diverting individuals from a higher level of care, and reducing dependence on policing and the criminal justice system to deal with people experiencing crisis. There are also obstacles, as well as many questions about program design and implementation. Some considerations are universal, and some vary based on how each program is structured, as well as its size and scope.

Although the programs vary, takeaways for local governments attempting to implement a crisis response program are to (i) include stakeholders in the program design process,

(ii) aim to build trust within the police department and community, (iii) have a designated place within the 911 and emergency-response processes, (iv) have adequate funding with access to mid-year increases if necessary, (v) have a capable host organization/agency and be appropriately administratively housed, (vi) properly train employees, 911 call-takers, and other first responders, (vii) use past and current call data to inform operations, and (viii) have the ability to transfer or refer clients to other service providers.

Who Operates Crisis-Response Programs?

The organizations that operate crisis- response programs generally do so through a subcontract with the city or police department (with the exception of Edmonton’s program, which is run by a nonprofit).5

Eugene’s CAHOOTS is administered by White Bird Clinic,6 an independent nonprofit which has provided community-based healthcare services (including mobile crisis response) since 1969, and is well known in the Eugene community.7 Workers “are White Bird Clinic employees, contracting with the police department, and the county.”8

Austin’s EMCOT program is administered by the Travis County (which encompasses Austin) Local Behavioral Health Authority,9 called Integral Care, which is a community- based mental-health center that has been providing behavioral health services for over five decades.10 In addition to mobile call- response staff, some mental-health counselors are stationed at Austin’s 911 call center.11 Travis County EMS also oversees the Community Health Paramedics program, which targets frequent users of 911 and provides mobile case management, both medical and non-medical.12 Workers are employed by the Travis County Healthcare District13 through a contract with the city.14

Olympia’s Crisis Response Unit is administered by Recovery Innovations International, which is a mental health services provider from the neighboring county with “14 crisis programs in five states,” although it has no other alternative first response programs.15 The Administrative Services Division of the Olympia Police Department handles the contract, because that division does not include sworn officers.16

Edmonton’s 24/7 Crisis Diversion program is administered by REACH, a “backbone” organization, or “community-based coordinating council” funded by the city.17 Program workers are employed by Boyle Street Community Services and Hope Mission (two local nonprofits that provide similar services in Edmonton), and the call- takers are employed by the Canadian Mental Health Association (211).18

What Kind of Services Do Alternative First Responders Provide?

They are voluntary, meaning people can refuse services and opt for a police or EMS response instead. Because they are mobile, they can engage clients directly without being dispatched, except for Austin’s EMCOT, which is dispatched by 911 or other first responders.19 Currently, 911 calls about a person in crisis are generally responded to either by police officers trained in a forty hour “Crisis Intervention Team” program, or by police officers with no training beyond the police academy.20 Current mobile crisis response programs are run either at the county-level or by a nonprofit organization; workers are not

dispatched after 911 calls, but at the request of law enforcement on scene. The programs are generally underfunded.21 People experiencing issues related to untreated mental illness are sixteen times more likely to die during encounters with police than other civilians.22

Also, programs can either preempt other first responders from responding to a call, or allow other first responders to leave a scene when it is unnecessary for them to stay.23 911 call-takers in Eugene use the same channel to dispatch CAHOOTS and the police department, both of whom use the same radios. If a CAHOOTS worker has a relationship with the person being called about, they can communicate with the officer to either replace them as a responder or co-respond. Additionally, other first responders can call CAHOOTS workers to the scene of a call, and “leave the scene” with CAHOOTS workers. This saves time for those first responders to respond to other calls.

All programs can attend to non-emergency medical issues, although in Austin those are generally dealt with by the Community Health Paramedics.24 Workers in all of the programs also all have the ability to transfer or refer clients to appropriate services or agencies with the client’s consent.25

CAHOOTS and EMCOT workers also teach methods of crisis management and conflict resolution to law enforcement and community members.26

In Eugene, CAHOOTS workers respond to a variety of other non-emergency calls, and

provide services including, but not limited to:

  • conflict resolution and mediation;
  • dispute mediation and resolution between family members, roommates, or clients at group homes or agencies;
  • delivering death notifications;
  • welfare checks;
  • grief and loss counseling;
  • substance use and abuse counseling;
  • providing water bottles, socks, and other basic supplies to people;
  • addressing housing crises;
  • first aid and non-emergency medical care;
  • resource connection and referrals;
  • providing direct funds for essential items;
  • transportation to services, and
  • situations in general that do not involve emergent medical or criminal issues.27

When other first responders notice someone in distress from a call (like someone who called about a home invasion), they can ask that person if they’d like CAHOOTS to come and help them process what they’re feeling.28 At least once, a CAHOOTS worker has de-escalated a situation by standing between an officer and a civilian to prevent the officer from using mace, but it is unclear if that is a common or accepted practice.29 CAHOOTS did not originally have the ability to do most of these things, but as it gained expertise and trust with the department and community, its functions expanded.30

Appendices B and C are tables of available response data for 24/7 and CAHOOTS.

Connecting Clients to Other Service Providers and Programs

Organizations that host crisis-response programs are mostly local organizations that did similar work in their communities before they began administering their respective programs.31 This helps them to connect clients to multiple agencies to provide sustainable support, especially for clients with more complex needs.32 Common partners include healthcare providers, hospitals, homeless shelters, homeless- outreach agencies, mental-health clinics, substance-abuse programs and clinics, and other emergency-services diversion programs. Austin’s EMCOT program works in tandem with Austin’s other nontraditional 911 program, the Community Health Paramedics.33 Olympia’s CRU program was funded by a 2017 public-safety levy approved by voters.34 That levy also paid for a program called Familiar Faces, which targets and assists frequent users of emergency services to better support them with long-term care.35

Program Operations

Point of Access

The CAHOOTS program coordinator said their “biggest struggle” is figuring out how clients can access their services, and said it is the “key thing” for communities implementing a crisis response program.36 The Eugene Chief of Police testified before the Oregon legislature that the most important aspect of the program was its ability to be dispatched by the 911 call center.37

All programs can be called by other social service agencies.38 Only Edmonton’s 24/7 program is not able to be dispatched directly by 911 call centers.39 CAHOOTS and EMCOT did not originally have that  ability,40 while Olympia’s Crisis Response Unit was integrated into the 911 process from its beginning.41 Austin’s original crisis response program, MCOT, is available at a standalone phone number housed at Integral Care’s clinic, while EMCOT is available to 911 dispatchers, EMS, and law enforcement.42 Austin 911 dispatchers are now trained to ask whether the caller needs police, fire, or mental health services.43 In Olympia, some clients have asked for a standalone number because when they call 911 and ask for the CRU, police “intercept” their call.44 In Edmonton, REACH attempts to direct as many 24/7 calls to 211 as possible in order to save 911 callers and dispatchers the time of answering, assessing, and transferring calls; 72% of the program’s 2018 calls were directly to 211 in 2018.45 EMCOT also receives referrals and has staff at hospitals and the county corrections complex to connect individuals who may be unable to overcome barriers to services post- release.46

Call-takers are trained to screen for calls that their crisis-response programs are able to respond to, and assess whether there is a likelihood of violence or danger.47 A copy of the “911 Dispatch Call-Taking Manual” for CAHOOTS response can be found in section VIII of this report.

Dispatch

Except for Edmonton, where 24/7 partners with 211, each city used its preexisting 911

call center to dispatch calls. In Eugene and Olympia, program workers also carry police radios with the ability to divert calls directly from police, initiate their own interactions, or respond to first responders at a scene to provide assistance.48 In Austin, EMCOT workers are stationed at the 911 call center49 with iPads, where they can take calls directly from dispatchers, or from first responders at scenes.50 Appendix F is a diagram of the CAHOOTS’ dispatch process.

Diversion from Higher Level of Care/Police Response

CAHOOTS called for police backup in 150 of their 24,000 responses last year, or a rate of 1 in every 160 responses (0.625%).51 They respond to about 70% of their calls without any other first responders.52 Last year, CAHOOTS responded to roughly 20% of all calls dispatched by 911 for Eugene and the neighboring city of Springfield.53 Appendix C is a table of available response data for CAHOOTS.

98.7% of law enforcement referrals to EMCOT divert from arrest, and 75.1% of EMS referrals divert from emergency- department transfer and admission.54 EMCOT relieves first responders within 10– 15 minutes after arriving at a scene 85–90% of the time.55 Arrests of people with mental illnesses in Austin during the program’s first year reduced by 30 percent.56 Since the program began in 2013, 7,214 clients have been served, with 3,182 dispatches in 2019.57

Travis County’s Community Health Paramedics “served 1,164 individuals in fiscal year 2019.”58 The program is being

expanded, and the county EMS association noted that the city’s recent efforts to decriminalize homelessness have made the program more effective.59 By 2019, the program had “contributed to a 60 percent reduction in emergency calls from its target population.”60

In the first two months of Olympia’s Crisis Response Unit, it responded to about 700 calls.61

Following the previous “MAP” program, after 4 years of Edmonton’s 24/7 program, it had responded to over 6,000 unique clients and 38,000 crisis events.62 In 2019, 25% to 30% of calls were referred to more appropriate services.63 Appendix B is a table of available response data for 24/7.

Staff/Training

Each program operates with mobile two- person teams.64 Programs use vans that are owned by the host organization or the city and filled with supplies.65

EMCOT workers are master’s level clinicians.66 The Community Health Paramedics staff of 15 is divided by the populations they serve (i.e., chronically homeless, elderly, recently incarcerated), and have an average of 15 years of experience.67 Olympia’s CRU is “made up of nurses and behavioral health specialists.”68 24/7 workers must have at least two years of experience in delivering community-based services, experience working with partners and stakeholders, and

a knowledge and understanding of poverty- related issues.69 It is preferred that workers have a degree in social services or a related

field, but candidates who have relevant and related experience are also considered.70

Each CAHOOTS team consists of one medic (a nurse, paramedic, or EMT, who must be state certified with at least an EMT-B certification) and a mental health crisis worker who has substantial training and experience in the mental health field, with a degree preferred but not required.71 Some of the medical staff are current nursing students.72 Many workers are trained to perform both roles.73 Training for CAHOOTS workers lasts “6 months to a year.”74 Due to their training, in 31 years of the program no staff member has ever been in a major traffic collision or suffered a major injury while responding to a call.75 “A non-judgmental and client-centered approach to communication and service delivery is emphasized. Trainees begin as observers, watching trained team members handle a variety of calls. They also attend weekly debrief sessions to promote better client care as well as address issues of boundaries, rescuing, and worker self-care in order to avoid burnout. Workers must also pass an extensive background check.”76 On average, the training is 500 hours in the field and up to twenty hours in the classroom.77 CAHOOTS workers rely on trauma-informed de-escalation and harm reduction techniques.78 The administrative coordinator of the program said there are a “trifecta” of qualities they look for: technical knowledge in the area of medical and behavioral health; a belief in client-centered care; and personal experience in crisis situations.79 The coordinator said those qualities are helpful so workers can “bring the level of empathy and compassion to the work that we expect of our workers, and

that that’s a really tricky mix to sometimes find.”80

Job descriptions for the programs can be found at the following links: CAHOOTS Medics, and Crisis Intervention Workers; CRU; EMCOT, 24/7.

Client Data

All of CAHOOTS’ services are confidential, free, and voluntary.81 CAHOOTS workers  log details of their dispatches, including names and addresses of people they interacted with, their mental health diagnoses (if any), and behavioral patterns.82 Teams utilize these logs when they are dispatched, allowing them to know what works for specific clients based on past interactions.83 24/7 workers record their interactions with clients in an app created by REACH to store client information, so the information can be shared between teams in order to best match the needs of clients.84 The app also automatically generates reports and maps with the aggregate data.85 Before creating the app, REACH conducted an impact assessment to determine potential client privacy issues.86

Populations Served

Most CAHOOTS clients are experiencing homelessness, and just under a third have a severe mental illness.87 CAHOOTS also responds to calls from the University of Oregon Eugene Campus88 and local schools.89 Appendix E is a chart with the most common CAHOOTS call factors. 24/7 mostly assists people who are homeless, but some disorder calls for service are diverted from police dispatch to the teams.90 The City of Edmonton is in the process of analyzing its 911 dispatch data to see how many calls related to mental health, addiction, and homelessness could be diverted to an expanded 24/7 program.91 Of all the people served by EMCOT in 2019, 29% were experiencing homelessness.92

How Programs Got Started

White Bird Clinic, which runs Eugene’s CAHOOTS program, ran a mobile crisis- response program directly through their clinic for years before CAHOOTS began. CAHOOTS has increased from a budget of $288,000 and a staff of 15 in 201093 to a $2.1 million budget94 and a staff of over 40 in 2020.95

The pilot program for Austin’s EMCOT was known as MCOT, and began in 2006 “without engagement from APD or EMS.”96 The program grew in 2012 as a result of DSRIP funding.97 DSRIP is a type of “Medicaid Redesign” which compensates service providers with Medicaid funds to provide services more efficiently.98 In 2013, Integral Care created the EMCOT (Expanded MCOT) program to be available to on-scene first responders.99 Later, EMCOT began to take calls directly from 911 operators, and also has clinicians at the 911 Call Center to respond to calls.100 Unlike other cities’ pilot programs, MCOT still operates as a standalone service.101

Austin’s Community Health Paramedics program was created in 2009 and is a DSRIP program administered by the Travis County EMS.102 The program is currently being expanded with city funding.103

Olympia’s CRU is in its second year and was integrated into the emergency response system from its beginning. For three months before responding to calls on their own, CRU workers co-responded to calls with officers to build trust with officers and the community, and also to make themselves known in the areas they were going to serve.104

MAP, the multiyear prototype for the 24/7 program, was created after a stakeholder assessment and community engagement session and operated without city funding.105 In 2015, the 24/7 program was created after input from 25 community stakeholders at two separate sessions, and 17 agencies were involved in the development of the new plan.106 Edmonton also does 90-day pilots to test potential changes to the program.107 In 2015, the Edmonton City Council asked REACH about options for expansion and REACH noted that “it would not be a simple linear expansion with identical resource requirements or results for” each neighborhood.108

Costs/Savings

CAHOOTS “costs on average $71 an hour.”109 REACH estimates that for “every

$1 invested in the 24/7 Crisis Diversion initiative, there is a social return on investment (SROI) of $1.91 in the form of savings in health care, policing, and legal costs.110 Costs were reduced for ambulance transport, police, and emergency room services.111 For many clients that these programs serve, the cost of an emergency room visit would otherwise fall on the taxpayer, a cost estimated at $1,010 per visit in 2018 by the Federal Medical Expenditure Panel Survey.112 CRU’s $497,000 annual budget covers supplies and salaries for six behavior health specialists, working in three two-person teams from 7 a.m. to 9 p.m. seven days a week.113

Travis County (the county encompassing Austin) contributed $1 million to expand MCOT into EMCOT.114 CRU, with its first annual budget of $497,000, estimated $110,100 in startup costs.115 The original plan for MAP, the predecessor to 24/7, estimated start-up costs of $892,000 for an annual budget of $2,037,530.116

Wages for the programs are: CAHOOTS:

$18 an hour,117 EMCOT: $150,000 annually for clinicians,118 CRU: $50,992.00 to

$63,745.50 annually,119 and 24/7: $20.63 to 24.27 an hour (Canadian dollars).120

Appendix A is a table with each city’s police department and crisis response program budgets, response information for both, as well as estimated savings of the crisis response program.

Police Opinions

All of the police departments viewed their crisis-response programs positively; they generally recognize that the workers are better suited to handle certain call types and that when they do it frees up police to work on other matters.121 However, there is generally a period after programs first begin when officers are hesitant to fully defer to it, but do so after seeing the program operate effectively.122 In Austin, where the program doesn’t operate 24/7, the EMCOT program manager says law enforcement frequently asks when they will have overnight

staffing.123 EMCOT provides training to the police department in an attempt to form stronger bonds between crisis workers and officers.124

Lack of Adequate Funding

Every program (other than Olympia’s Crisis Response Unit, which is in its second year of operation) outgrew the program’s demand at least once.125 Cities tend to expand programs when they are presented with data about cost savings and hear from community members about the effectiveness of the programs.

Considerations for an Albany Crisis-Response Program

Choosing a Host Organization/Agency

Except for Olympia, each crisis-response program built upon or expanded a preexisting initiative. The programs were administered by nonprofit organizations, either directly or through a subcontract.

Subcontracting may show that the program is “collaborative but separate” from law enforcement, as well as allow for funding streams in addition to those available to municipalities or counties. However, public officials will have less control over the program. When looking for the right organization to administer the program, local governments should look for organizations with (i) a longstanding presence in the community, (ii) a history of delivering similar services, (iii) an ability to track performance and measure success, and

  • the ability to store client data safely and follow other statutes and regulations.

CAHOOTS is administered by White Bird Clinic, a Federally Qualified Health Center.126 Albany has one Federally Qualified Health Center, the Whitney M. Young Junior Health Center,127 which currently operates “Whitney on Wheels,” a mobile van unit that provides preventative care such as physicals, chronic-disease management, health and nutritional education, lab tests and screenings, and vaccinations at various partner locations.128 However, for some of the locations, the client must be a member of the partner organization, and the services are only available to clients who are willing to establish Whitney Young Health as their primary care provider.129

EMCOT is administered as part of Texas’ DSRIP (Medicaid redesign) process by Integral Care, one of the members of an Austin DSRIP network.130 In Albany, the Better Health for Northeast New York PPS (Better Health) is the local DSRIP network.131 One of Better Health’s eleven initiatives includes funding crisis stabilization services.132 Within the Better Health network, there are three mobile crisis response programs: the Albany County Department of Mental Health’s Mobile Crisis Team, the Capital District Psychiatric Center’s Crisis Unit, and the Parsons Center’s Capital Region Child and Adolescent Mobile Team.133

Point of Access, Dispatch, Integration with Emergency Response and Service Providers

Crisis-response workers can be dispatched:

  • (i)   directly by 911, (ii) through a separate number, (iii) directly by first responders, or

(iv) some combination of the above. Based

on the experience of the other programs, having all of the above as points of access would help a program be more successful, with 911 access being the most crucial.134 CAHOOTS workers have found it extremely beneficial to share radios with the police.135 It allows officers to call for crisis-response workers once they’ve assessed a situation, and workers can ‘preempt’ police response when appropriate.136

All the programs can refer or transport clients to other social-service providers, some after not being originally able to do so.137 This allows for direct access to long- term and appropriate care. All programs have a process in place for frequent users of their program in order to provide them more comprehensive services, or to refer them to a different provider for a higher level of care.138

Potential Funding Sources

  • The bill would provide a 95% match in Federal Medicaid funds to states to provide “community- based mobile crisis services,” with additional funding for program planning.140
  • ·         Request the state to provide funding
    • Could be similar to California’s C.R.I.S.E.S. (Community Response Initiative to Strengthen Emergency Systems) bill, passed in July 2020.141
    • Or, like Oregon’s Addiction and Mental Health Crisis Services grant, which allowed CAHOOTS to expand services to Springfield142
  • ·         NYS Division of Criminal Justice Services Legislative Member Item
  • ·         Private fundraising (if the program is hosted by a nonprofit organization)143
  • ·         Pay for Success Contracts (Social Impact Bonds)144

Steps to Create a Crisis Response Program

  1. 1.  Survey Local Needs
  2. ·         Convene Organizational Stakeholders
    1. Appendix G is a list of potential local stakeholders
  3. Survey people from target populations
    1. o    Include them in design process
  4. Analyze call data145 to see:
    1. o    what call types the crisis response program may respond to,
    1. the frequency of those call types,
    1. locations where calls most often originate from (by police beat, census tract, etc.), and
    1. what times of day those calls are most common.


  • 2.   Decide on Program Operations, Structure, and Funding
  • Solicit feedback from community and stakeholders on design
  • Decide on metrics to monitor program and measure success
  • Pursue various funding streams
  • 3.   Reallocate Police Funding Towards Program

Here is a detailed Austin City Council hearing about the costs of the then-proposed EMCOT program. Appendix D is a table of police department spending and outcomes for Albany and other municipalities in New York.

  • 4.   Issue Request for Proposals (If Subcontracting)

The Request for Proposals should incorporate the takeaways from the first two steps. A copy of Olympia’s Request for Proposals can be found here, which includes requirements for workers. Job descriptions for the programs can be found at the following links: CAHOOTS Medics, and Crisis Intervention Workers; CRU; EMCOT, 24/7.

  • 5.   Train 911 Call-Takers and First Responders on the Role and Functions of the Crisis- Response Program

All 911 call-takers should be trained to screen for calls that the program will be able to respond to. In Austin, 911 operators are trained to ask whether the caller needs police, fire, or mental health services.146 A copy of the “911 Dispatch Call-Taking Manual” for CAHOOTS response can be found in section VIII of the report here.

Police have policies and procedures on how to interact, and in some cases defer to, the crisis response programs in their cities.147

  • 6.  Start Pilot, Scale Up, Make Changes

Because other programs have suffered due to lapses in funding, local governments should be ready to authorize mid-year funding increases. This also gives governments additional oversight of nonprofit subcontractors. The program should be collecting enough data on an ongoing basis to analyze, and if necessary, modify its operations.

Conclusion

Currently, local governments have a unique opportunity to reimagine public safety and health, and potentially realize significant savings in doing so. These savings can be reallocated to address root causes of crime and poverty, reducing the needs for services over time. As shown, there is not one way to administer a crisis-response program.148 However, constants among these programs examined can inform local governments in their own efforts to start similar initiatives.

Takeaways from these programs are to (i) include stakeholders in the program design process, (ii) aim to build trust within the police department and community, (iii) have a designated place within the 911 and emergency response processes, (iv) have adequate funding with access to mid-year

increases if necessary, (v) have a capable host organization/agency and be appropriately administratively housed, (vi) properly train employees, 911 call-takers, and other first responders, (vii) use past and current call data to inform operations, and

  • have the ability to transfer or refer clients to other service providers.

Appendix A: Comparison of Police and Crisis Response Budgets, and Estimated Savings

Data is for 2019, unless indicated otherwise

 Police BudgetCost Per Response by PoliceAlternative First Responder Program BudgetCost Per ResponseEstimated Annual Savings
Eugene – CAHOOTS149$90,000,000$486.74*$2,100,000$87.50$22,500,000
Austin – EMCOT/MCOT150$434,475,745$736.40$1,800,000**$401.79** 
Edmonton – 24/7 Crisis Diversion151$451,725,000$2,573.24$1,875,000$134.36$3,581,250
Olympia – Crisis Response Unit152$18,353,516*$362.75*$663,888$158.07 

*2018

**2017

Appendix B: Edmonton’s 24/7 Crisis Diversion Program Response and Cost Data

YearTotal ResponsesTotal Cost
2015~3,800153$ 1,116,176154 ($1,000,000 from city)155
20167,943156$1,623,592157
2017~12,000158 
201814,412159 
201913,955 crisis calls46,995 “outreach engagements”160$1,875,000161

Appendix C: Response and Diversion Data for Eugene’s CAHOOTS Program

YearResponses% of 911Cost and OperationsStaff and Operations
2010  $288,0001621 van: 1pm-1am16315 staff164
2011~10 to 16 $566,0002 vans: 1pm-1am;
165calls a day166 3pm-3am
2012  $566,000 
2013~25 to 40 calls a day167 $566,000 
20149,662168 $566,000 
2015 $1.316 million (additional30–12 staff in Spring-
169~11,500170$750,000 state grant to Lanefield, 18 in Eugene172
  County, about $318k goes to3 vans, 1 in
  Springfield [pop. 62,979])Springfield, 2 in
  171Eugene173
201613,000174   
201716,320 in Eugene~17% of all calls in Eugene175Eugene increased spending by $225,000 annually ($1.541 million total)176Expanded to 24-hour everyday service177
201823,000~20% ofTotal budget was ~ $1.63 vans184
 total,178calls inmillion181“more than 40” total
 17,440 inEugene andEugene: increase tostaff185
 Eugene179Springfield~$900,000182 
  180•  Springfield spends 
   $23,416 (rest is grant- 
   funded)183 
201924,000~20% ofSpringfield: $450k-500k 
 total186all calls intotal for 11.5 hours of daily
  Eugene andservice,188 $27,394 from
  Springfieldcity189
  187•  Eugene: still $900,000
2020  $2.1 million total budget190State grant funding ended,Eugene added another van and 11 additional hours of coverage to
   Springfield increased its proportion to $238,274 with the county matching 3-to-1 (overall spending for Springfield increased by about 1.5 times)191support its two other vans during peak service hours.192

Appendix D: Police Spending and Outcomes for Several Cities in New York

CityPopulation# officersOfficer Rate/100 0# Response sResponse Rate/100 0Budget% of Total BudgetCost Per Call
Albany96,4603003.11104,0211078.38$54.3 M29.92$521.69
Schenectady65,2731931541942.36~ 130,0001951991.64$19.7 M19622.75$151.77
New Rochelle78,5571971591982.0248,335199615.29$26.9 M20012.69$556.28
Clarkstown20186,3272021562031.8154,458204630.83$33.1 M20522.43$607.20
Greenburgh90,9892061152071.26Not availNot Avail$20.5 M20816.76Not Avail
Greece95,4992091001.05Not availNot Avail$17.1 M21030.10Not Avail
Amherst126,0822111542121.22Not AvailNot Avail$35.5 M21326.10Not Avail
Ramapo137,4062141202150.87Not AvailNot Avail$43.1 M21635.07Not Avail
Syracuse142,327217438218 / 4672193.08 / 3.28140,000220983.65$49.0 M22121.23$349.72

Appendix E: CAHOOTS Most Common Call Factors222

A screenshot of a cell phone  Description automatically generated

Appendix F: Diagram of CAHOOTS Dispatch Process223

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Appendix G: List of Potential Albany Stakeholders

Crisis Response Programs

911 and First Responders

Housing Service Providers

Mental Health Service Providers and Advocacy Organizations

i.      Provides input to the Department of Mental Health and its Director; helps to create the annual local services plan, outlining Albany mental health services.

  • Albany County Patient Services Coordinating Committee

i.      Albany County Department of Mental Health and Department of Social Services coordinate services “for people identified as frequent users of expensive crisis services across different public agencies,”224 with “196 individuals served since program inception (2005) with total cost savings of

$2,658,476” by late 2020.”225

Other Health and Service Providers

Government Officials

Additional Groups or Types of Individuals to Get Input From

Endnotes

* Matt DeLaus is in his second year of dual studies for the J.D./M.P.A. program at Albany Law School and SUNY Albany’s Rockefeller College of Public Policy. He is an Albany Law School Government Law Center Fellow and intern, a subeditor for the Albany Government Law Review, and a recipient of both an Albany

Law School President’s Scholarship and The Arthur F. Mathews ’62 Endowed Memorial Scholarship. He cannot fully express his gratitude to Ruchi Patel and Professor Ava Ayers for their support in this work.

1 https://tjcinstitute.com/wp-content/uploads/2020/06/20.06_Emergency-First-Responders-2.pdf at 2.

2 In a June interview, Albany Chief of Police Eric Hawkins said “[f]undamentally I don’t have a problem with the basic premise to defund the police, and that is police officers should be doing police work and not social work. Police officers shouldn’t be the point of contact for individuals with mental health issues, substance abuse issues, or unhealthy family structural issues.” https://cbs6albany.com/news/local/activists-call-for-albany-to-defund-the-police-reinvest-into-the- community.

3 See, infra, Diversion from Higher Level of Care/Police Response;” Appendix B (table of Edmonton’s program responses); Appendix C (table of Eugene, Oregon program response).

4 Cities with non-police crisis response programs in operation less than a year include Portland, Oregon, and Denver, Colorado. See https://www.usatoday.com/story/news/nation/2020/06/22/defund-police- what-means-black-lives-matter/3218862001/. Oakland, California, decided to fund a crisis response program, but it is not yet in operation. See https://www.kron4.com/news/bay-area/mobile-response-unit- coming-to-oakland-to-help-with-non-violent-911-calls. Local governments that have decided to fund a crisis response program since George Floyd’s killing include Los Angeles, California (https://www.cnn.com/2020/10/14/us/los-angeles-unarmed-crisis-response-teams-911-calls/index.html); Miami-Dade County, Florida (http://www.miamidade.gov/govaction/legistarfiles/Matters/Y2020/ 201239_Analysis.pdf; http://www.miamidade.gov/govaction/legistarfiles/Matters/Y2020/201239.pdf); Philadelphia, Pennsylvania (https://philadelphia.pa.networkofcare.org/mh/news-article- detail.aspx?id=116033); Rochester, New York (https://www.rochesterfirst.com/news/local-news/watch- live-mayor-warren-to-announce-crisis-intervention-program/); Salt Lake City, Utah; Albuquerque, New Mexico; Hartford, Connecticut; Durham, North Carolina (https://www.prainc.com/wp- content/uploads/2020/08/PoliceReformAcrossUS508.pdf at 2-4); and San Francisco, California (https://www.usatoday.com/story/news/nation/2020/06/22/defund-police-what-means-black-lives- matter/3218862001/). Many others are exploring the possibility. See, e.g., https://www.prainc.com/wp- content/uploads/2020/08/PoliceReformAcrossUS508.pdf.

5 CAHOOTS: https://www.salemreporter.com/posts/1584/you-want-a-resolution-as-much-as-possible-six- hours-with-eugenes-mobile-crisis-intervention-team; EMCOT: https://www.austintexas.gov/edims/document.cfm

?id=343511 (draft agreement between Integral Care and the City of Austin and its police department);

CRU:

http://olympiawa.gov/~/media/Files/AdminServices/RFP_RFQ/Olympia%20Police%20Department%20C risis%20Response%20Team%20RFP_2018.pdf?la=en (Olympia’s request for proposals); and 24/7: https://www.edmonton.ca/

city_government/documents/2016_-_2018_OPERATING_BUDGET.pdf (annual spending of $1 million per year on 24/7 program).

6 Since George Floyd was killed, CAHOOTS has gotten “over 150” requests for information from different cities. https://www.klcc.org/post/national-interest-cahoots-swamps-white-bird-clinics-inbox.

7 See https://www.usnews.com/news/cities/articles/2020-07-06/eugene-oregons-30-year-experiment- with-reimagining-public-safety.

8 https://olis.leg.state.or.us/liz/2015R1/Downloads/CommitteeMeetingDocument/68512 at 7 (presentation by the White Bird Clinic about CAHOOTS to the Oregon state legislature).

9 Texas enabled the creation of Local Behavioral Health Authorities “to provide mental health and chemical dependency services.” Tex. Health & Safety Code Ann. § 533.0356(a) (West).

10 See https://integralcare.org/en/about-us/ (information about Integral Care); https://integralcare.org/wp-content/uploads/2019/03/Local-Behavioral-Health-Authority-faq-011619.pdf (information about Texas’ Local Behavioral Health Authorities).

11 See https://integralcare.org/wp-content/uploads/2020/06/CLEAN-Form-O-CLSP-June-15_2020.pdf at 60.

12 See https://www.kvue.com/article/news/community/what-does-a-community-health-paramedic- do/269-b8504edf-2b69-4d35-aae9-32052bddcaeb.

13 Albany does not have a health-related special district. See https://www.osc.state.ny.us/local- government/data/local-government-entities (New York State Comptroller’s list of local government entities). See also N.Y. Pub. Health Law §§ 390-99 (Unconsolidated Health Districts).

14 See http://www.austintexas.gov/edims/document.cfm?id=245089 (agreement about Community Health Paramedics program between Travis County Healthcare District and City of Austin).

15 See https://www.registerguard.com/news/20181214/local-crisis-unit-in-cahoots-with-more-police- agencies; http://olympiawa.gov/city-services/police-department/Crisis-Response-Peer-Navigator.aspx; https:/

/riinternational.com/about-us/.

16 See, http://olympiawa.gov/~/media/Files/AdminServices/Budget/2020-preliminary-budget.pdf?la=en

at 185.

17 See https://www.edmonton.ca/city_government/documents/PDF/City_of_Edmonton_Operating_Budget

_Overview_2014.pdf at 466 (“Founded in June 2010, REACH is membership driven, led by a Board of Directors with more than 200 members, encompassing 83 organizations and more than 120 citizens.”); See generally Lynda Frost & Susan Stone, Community-Based Collaboration: A Philanthropic Model for Positive Social Change, 1 THE FOUND. REV. 55-68 (2009) (describing benefits of a coordinating organization to guide social impact efforts). See also https://www.edmonton.ca/city_government/documents/OperatingQuestionsByCouncillor.pdf at 197 (“24/7 is aligned with HUoS, Homeless on Public Land, Capital City Clean Up Needle Collection, YEG Ambassadors, and City Centre Paramedic Response Unit, amongst others.”); https://globalnews.ca/news/3583347/edmonton-heat-wave-has-inner-city-agencies-gearing-up-to-help- the-homeless/ (24/7 works with the city during cold and heat emergencies).

18 See https://site.cmg.io/reach/REACH_AnnualReport_Impact2017_Web_May24.pdf; See also

https://www.

boylestreet.org/post/24-7-crisis-diversion-worker (detailing job purpose and responsibilities from Boyle Street Community Services in hiring program workers for 24/7 Crisis Diversion program).

19 See generally https://truthout.org/articles/911-services-that-dispatch-mental-health-counselors-not-cops- gain-traction/. See also https://integralcare.org/wp- content/uploads/2018/04/IntegralCare2017AnnualReport.pdf at 10 (EMCOT works with the Texas Department of Public Safety for responses at the state capitol building).

20 See https://www.albanyny.gov/Libraries/APD/2019_Prospectus.sflb.ashx (as of 2019, the Albany Police Department was “continuing the process of having all [their] patrol officers trained in a 40-hour block of Crisis Intervention Team (CIT) training.”); see also Michael S. Rogers, et al., Effectiveness of Police Crisis intervention Training Programs, 47 J. Am. Acad. Psych. Law 414-421, 414 (2019), http://jaapl.org/content/jaapl/47/4/

414.full.pdf (“Studies generally support that CIT has beneficial officer-level outcomes, such as officer satisfaction and self-perception of a reduction in use of force. CIT also likely leads to prebooking [or post- arrest] diversion from jails to psychiatric facilities. There is little evidence in the peer-reviewed literature, however, that shows CIT’s benefits on objective measures of arrests, officer injury, citizen injury, or use of force.”).

21 See http://www.clmhd.org/img/pdfs/brochure_i5ri3x4o5e.pdf at 3, 8-10 (the Albany County Department of Mental Health 2020 local services plan found that “the level of need” for crisis services “is outweighing the available resources, time and expertise needed.”).

22 https://www.treatmentadvocacycenter.org/storage/documents/overlooked-in-the-undercounted.pdf at

12.

23 See, e.g., http://www.austintexas.gov/sites/default/files/files/Auditor/Audit_Reports/APD_Response_to_Mental_ Health_Related_Incidents September_2018.pdf at 13 (“[a]ccording to APD and Integral Care, EMCOT is useful for mental health calls where an officer’s presence is no longer required or where the officer’s presence may be detrimental to the situation. These incidents are low-risk from a safety perspective, but may be complex from a diagnostic perspective.”).

24 See https://www.kvue.com/article/news/community/what-does-a-community-health-paramedic- do/269-b8504edf-2b69-4d35-aae9-32052bddcaeb.

25 CAHOOTS:

http://www.citinternational.org/resources/Documents/CAHOOTS%20Presentation%202019.pdf at 7 (describing various CAHOOTS services). EMCOT: “Services include mental health support for up to 90 days and care plans to help keep people safe. Clients are also connected to other Integral Care programs and local resources for ongoing care and recovery support.” https://integralcare.org/program/mobile- crisis-outreach-team-mcot/. 24/7: In 2019, Edmonton City Council approved funding “to enhance warm hand-offs for people and referrals of individuals with complex needs to multi-agency services. This pilot involved ethnographic research, which is helping us better understand who the clients are and what specific barriers they face so gaps in services can be directly addressed.” https://reachedmonton.ca/wp- content/uploads/2020/06/2019_REACH_Annual_Report_Single

.pdf. See also https://www.edmonton.ca/city_government/documents/OperatingQuestionsByCouncillor.pdf at 197. CRU: http://olympiawa.gov/city-services/police-department/Crisis-Response-Peer-Navigator.aspx.

26 CAHOOTS: Workers provide training as part of its response to crisis events, as well as upon request. CAHOOTS is able to train individuals in skills to help them manage crises. See https://www.gq.com/story/how-a-911-call-without-police-could-work. Staff also trains the police department for their forty-hour Crisis Intervention Team training. See https://www.communityaccess.org/storage/images/Miscellaneous/Community_Feedback_Forum_2019/ 3_Crisis_Assistance_Helping_Out_on_the_Streets_CAHOOTS_presentation.pdf at 5. EMCOT has “provided training for 1,500 law enforcement officers, EMS, and school resource officers.” https://integralcare.org/en/2019/10/

17/city-of-austin-budget-announcement/.

27 See e.g.,

http://www.citinternational.org/resources/Documents/CAHOOTS%20Presentation%202019.pdf at 7.

28 See https://www.klcc.org/post/cahoots-30-pt-ii-services-expand-other-cities-take-note-its-intervention- model.

29 See https://www.gq.com/story/how-a-911-call-without-police-could-work.

30 See, e.g., https://www.registerguard.com/news/20191020/in-cahoots-how-unlikely-pairing-of-cops-and- hippies-became-national-model; https://www.usnews.com/news/cities/articles/2020-07-06/eugene- oregons-30-year-experiment-with-reimagining-public-safety.

31 See the “Crisis Response Host Organizations” section.

32 See note 24.

33 EMCOT and Community Health Paramedics collaborate to assist the most frequent users of their services. See https://www.kvue.com/article/news/community/what-does-a-community-health-paramedic- do/269-b8504edf-2b69-4d35-aae9-32052bddcaeb. See also https://www.kvue.com/article/news/austin- ems-needs-more-ambulances/269-d486a9ee-9f17-4ebf-8f95-f888cfc9c698 (describing services provided by Community Health Paramedics).

34 See City of Olympia, Crisis Response & Peer Navigators, http://olympiawa.gov/city-services/police- department/public-safety-levy.aspx.

35 http://olympiawa.gov/city-services/police-department/Crisis-Response-Peer-Navigator.aspx.

36 https://www.usnews.com/news/cities/articles/2020-07-06/eugene-oregons-30-year-experiment-with- reimagining-public-safety.

37 See http://oregon.granicus.com/MediaPlayer.php?clip_id=28302, at 20:14–21:00.

38 See e.g., CRU: Olympia’s local buprenorphine clinic called CRU for a person experiencing issues with the detox process, and said afterwards “CRU quickly established rapport and defused the situation.” https://crcoly.org/wp-content/uploads/2019/08/19_CRC_BUPE_Report_July_2019.pdf at 12.

39 REACH conducted a marketing campaign encouraging callers to call 211 instead of 911 for people in crisis. See https:// reachedmonton.ca/initiatives/24-7-crisis-diversion/. In 2018, 72% of the program’s referrals came from 211. See REACH Edmonton, 2018 Annual Report, https://drive.google.com/file/d/1pexrwS33DW3D3EIi7n-mvpQSNO4WlRy8/view. That was up from 36% in 2016. See https://issuu.com/reachedmonton/docs/reach_

annualreport_impact2017_web_m at 4.

40 See CAHOOTS: https://police.uoregon.edu/faq#cahoots (“For safety reasons, CAHOOTS does not respond directly to calls from members of the public.”). EMCOT: https://www.austintexas.gov/edims/document.cfm?id=

302634.

41 See https://www.theolympian.com/news/local/article222749470.html (“CRU . . . will respond to certain 911 calls.”).

42 See https://integralcare.org/wp-content/uploads/2017/07/Mobile-Crisis-Outreach-Team_MCOT.pdf (the standalone MCOT phone line housed in Integral Care). See also https://www.austintexas.gov/edims/ document.cfm?id=302634.

43 See https://www.nytimes.com/2020/06/08/us/what-does-defund-police-mean.html.

44 https://www.themarshallproject.org/2020/07/24/crisisresponders ( “. . . CAHOOTS is considering creating a separate emergency number for people to use if they’re uncomfortable calling 911”).

45 See note 38.

46 See Bailey Douglas Gray, Breaking the Cycle: Evidence-Based Diversion for Homeless Individuals with Mental Illness, University of Austin Master’s Thesis at 64–65 (Aug. 2019), https://repositories.lib.utexas.edu/bitstream/

handle/2152/78603/GRAY-MASTERSREPORT-2019.pdf?sequence=1&isAllowed=y (“This service is available across Travis County which means EMCOT may be requested by EMS, the Travis County Sheriff’s

Office, Lakeway Police, the Department of Public Safety, and Travis County Sheriff’s Office administrators at the Travis County Correctional Complex and Central Booking.”) [hereinafter Gray].

47 See CAHOOTS: https://whitebirdclinic.org/wp-content/uploads/2020/07/CAHOOTS-Media.pdf at 1 (“Dispatchers are trained to recognize non-violent situations with a behavioral health component, and route those calls to CAHOOTS.”); https://www.kgw.com/article/news/investigations/a-new-answer-to- 911-portland-could-soon-send-street-response-teams-instead-of-police/283-a94bb69e-5cf4-4f75-bbc8- 7941370c04f7 (“Operators are trained to ask questions aimed at deciding whether a sending an officer is truly necessary.”). EMCOT: Starting recently, “[a]s long as there’s no weapon present and no sense of ‘imminent death or harm to self or others,’ . . . 911 callers can be transferred from the Austin police to the crisis team. EMCOT is automatically dispatched to” most mental health calls. https://truthout.org/articles/911-services-that-dispatch-mental-health-counselors-not-cops-gain-traction/.

48 CAHOOTS: One worker said “we can hop on the radio and say like, ‘Hey, it doesn’t sound like there’s a crime happening, so we’ll spin around the block and we’ll go check in … and let you know if any patrol is needed for that.’ We’re able to respond to calls that come into dispatch on 911 . . . We can’t get those calls if we’re not plugged into that system the same way.” https://www.usnews.com/news/cities/articles/2020- 07-06/eugene-oregons-30-year-experiment-with-reimagining-public-safety. One officer recalled how officers felt about CAHOOTS when the program began, which was generally “[w]e’ve got these long-haired hippie guys driving around in a van . . . They’re on our police radios. Something’s not right.” https://www.registerguard.com/news/20181214/local-crisis-unit-in-cahoots-with-more-police-agencies.

49 There is a similar program in Broome County, New York, There, 911 calls about someone experiencing a mental health crisis are transferred directly from 911 call-takers to trained mental health counselors. If the situation escalates, the call is transferred back to 911 call-takers to dispatch law enforcement. See https://meetny.webex.com/ recordingservice/sites/meetny/recording/014f7ea5ac10478d9eddd3eefe0c123d (presentation from the CIT coordinator for Broome County about the program); https://nyscit.org/wp- content/uploads/2019/10/Broome-County-911-Diversion.pptx (slides from that presentation).

50 “EMS will soon also employ a tool called Telehealth” and “hire two full-time and one part-time clinician who will be able to answer video calls from paramedics or crisis intervention officers.” https://www.kxan.com/news/local/

austin/city-of-austin-budget-makes-effort-to-focus-on-mental-health-improvements/; “EMCOT team members will be stationed at the 911 Call Center, where mental health calls will be transferred by 911 call takers to EMCOT.” https://integralcare.org/en/2019/10/17/city-of-austin-budget-announcement/. See also https://www.austintexas.gov

/edims/document.cfm?id=326169 at 27 (clinicians can be first responders for calls with little to no danger).

51 See https://www.npr.org/2020/06/10/874339977/cahoots-how-social-workers-and-police-share- responsibilities-in-eugene-oregon.

52 See https://www.wbur.org/hereandnow/2019/03/12/eugene-oregon-mental-health.

53 See https://www.npr.org/2020/06/10/874339977/cahoots-how-social-workers-and-police-share- responsibilities-in-eugene-oregon.

54 See https://www.austintexas.gov/edims/document.cfm?id=302634; see also https://truthout.org/articles/911-services-that-dispatch-mental-health-counselors-not-cops-gain-traction/; Gray, note 47 at 64-65.

55 See https://www.austinchronicle.com/news/2017-12-15/how-austin-handles-mental-health- emergencies/.

56 See https://www.kvue.com/article/news/local/travis-county-program-keeping-people-struggling-with- mental-health-out-of-jail-could-lose-funding/269-581536576.

57 See https://integralcare.org/en/2019/10/17/city-of-austin-budget-announcement/ (7,214 individuals

since 2013); https://truthout.org/articles/911-services-that-dispatch-mental-health-counselors-not-cops- gain-traction/ (dispatched 3,182 times).

58 https://truthout.org/articles/911-services-that-dispatch-mental-health-counselors-not-cops-gain- traction/.

59 See https://www.kvue.com/article/news/austin-ems-needs-more-ambulances/269-d486a9ee-9f17-4ebf- 8f95-f888cfc9c698.

60 Gray, note 47 at 64.

61 See https://mynorthwest.com/1404341/olympia-crisis-response-unit-homeless/.

62 See https://reachedmonton.ca/wp-content/uploads/2020/05/2020-REACH-Business-Plan_FINAL.pdf at 28-29.

63 See https://reachedmonton.ca/wp-content/uploads/2020/05/2019-REACH-Business-Plan-Report- Back_REV.pdf.

64 The CAHOOTS administrator said the following:

“I think one of the primary things is the medic and crisis worker combination is what has allowed us to make such significant impacts in our community. By recognizing that behavioral health has a role in physical health, and physical health has a role in behavioral health, you’re able to really kind of treat the whole patient. And there are a lot of folks out there where maybe they don’t have the upbringing or the background to be able to articulate when they’re not feeling well emotionally, but they will reach out to say, “My stomach hurts” – and so [you’re] having that medic become this way for folks to [really] open up about what they’re experiencing emotionally.”

https://www.usnews.com/news/cities/articles/2020-07-06/eugene-oregons-30-year-experiment-with- reimagining-public-safety.

65 CAHOOTS: The City of Eugene provides funds to the program, “covering its staff and vans.” https://www.salemreporter.com/posts/1584/you-want-a-resolution-as-much-as-possible-six-hours-with- eugenes-mobile-crisis-intervention-team. CRU: Owned by the city. See https://www.theolympian.com/news/local/

article230718039.html. 24/7: Vans are owned by REACH, with one donated by local businesses. See https://edmonton.ctvnews.ca/24-7-crisis-diversion-team-ready-to-roll-thanks-to-donated-ride-1.4455017. CHP workers use EMS ambulances which they return at the end of their shifts. See https://healthiertexassummit.com/wp-content/uploads/2018/10/Advancing-Homeless-Healthcare-with- Community-Health-Paramedics.pdf at 17.

66 Gray, note 47 at 64.

67 See generally https://www.kvue.com/article/news/community/what-does-a-community-health- paramedic-do/269-b8504edf-2b69-4d35-aae9-32052bddcaeb (team specialists “work with seniors” and

with “people who are incarcerated”); https://truthout.org/articles/911-services-that-dispatch-mental- health-counselors-not-cops-gain-traction/ (some CHP workers specialize in homelessness).

68 https://www.theolympian.com/news/local/article222749470.html.

69 See http://old.boylestreet.org/24-7-crisis-diversion-worker-up-to-4-positions-to-be-filled/.

70 See id.

71 See https://whitebirdclinic.org/cahoots/; https://truthout.org/wp-content/uploads/legacy/documents/ starting_a_MCIP.pdf (starting a “Mobile Crisis Intervention Program”); https://www.communityaccess.org/ storage/images/Miscellaneous/Community_Feedback_Forum_2019/3_Crisis_Assistance_Helping_Out_on_ the_Streets_CAHOOTS_presentation.pdf; https://olis.leg.state.or.us/liz/2015R1/Downloads/CommitteeMeetingDocument/

68512 (presentation to Oregon legislature).

72 See https://www.gq.com/story/how-a-911-call-without-police-could-work.

73 Id.

74 https://truthout.org/wp-content/uploads/legacy/documents/starting_a_MCIP.pdf.

75 See https://www.kgw.com/article/news/investigations/a-new-answer-to-911-portland-could-soon-send- street-response-teams-instead-of-police/283-a94bb69e-5cf4-4f75-bbc8-7941370c04f7.

76 https://www.gq.com/story/how-a-911-call-without-police-could-work.

77 See

https://www.communityaccess.org/storage/images/Miscellaneous/Community_Feedback_Forum_2019

/3_Crisis_Assistance_Helping_Out_on_the_Streets_CAHOOTS_presentation.pdf.

78 See https://whitebirdclinic.org/what-is-cahoots/.

79 https://www.eugene-or.gov/DocumentCenter/View/47955/In-Cahoots—How-the-unlikely-pairing-of- cops-and-hippies-became-a-national-model-Register-Guard—Oct-20-2019.

80 Id.

81 See, e.g., https://kval.com/news/local/theres-a-growing-awareness-that-alternatives-to-law- enforcement-are-needed.

82 See https://www.pubadvocate.nyc.gov/reports/improving-new-york-citys-responses-to-individuals-in- mental-health-crisis/ (New York City Public Advocate Jumaane Williams’ report recommending ways to improve New York City’s mental health crisis response, looking at CAHOOTS).

83 See id. In the report, New York City Public Advocate Jumaane Williams said using these logs “is crucial in minimizing unproductive and potentially violent encounters.”

84 “24/7 Crisis Diversion partners Boyle Street Community Services and HOPE Mission agreed to use the 24/7 Edmonton App in 2016 with their front-line staff in the field to record their work and the nature of those encounters with vulnerable people.” https://reachedmonton.ca/wp-content/uploads/2020/05/2020- REACH-Business-Plan_FINAL.pdf. In 2019, “[f]ront line 24/7 Crisis Diversion staff from partners BSCS & HOPE Mission inputted 13,955 non-crisis events into the 24/7 app. This information was shared amongst six teams to align their support to clients.” https://reachedmonton.ca/wp- content/uploads/2020/05/2019-REACH-Business-Plan-Report-Back_REV.pdf at 28. “[T]he largest hurdle to clear was the issue of privacy protection. The involvement of the” Canadian government office of privacy oversight “was vital to getting the app from concept to reality.” https:/

/www.edmonton.ca/city_government/documents/2016_-_2018_OPERATING_BUDGET.pdf at 591.

REACH “[c]ompleted a Privacy Impact Assessment (PIA) with the Office of the Privacy Commissioner.” https://site.cmg.io/

reach/24:7_Edmonton_App_Flyer.pdf.

85 https://youtu.be/BuVP9b15r4g?t=1465 at 24:25.

86 See id.

87 See https://whitebirdclinic.org/wp-content/uploads/2020/07/CAHOOTS-Media.pdf (“More than 60% of our clients are homeless, and 30% live with severe and persistent mental illness (SPMI).”).

88 See https://police.uoregon.edu/faq#cahoots (“The department works hand-in-hand with CAHOOTS on a regular basis, recognizing that police officers are not the appropriate resource to respond to every situation.”).

89 See http://projects.registerguard.com/rg/2017/jun/07/a-safe-place-to-go/.

90 See https://issuu.com/edmontonpolice/docs/2016_q4_app_public at 10.

91 See https://edmontonjournal.com/news/local-news/edmonton-city-council-approves-20-actions-for- police-service-reform-including-11m-budget-cut-over-two-years.

92 See https://truthout.org/articles/911-services-that-dispatch-mental-health-counselors-not-cops-gain- traction/.

93 See Jack Moran, “Second ‘Intervention’ Van Funded, THE REGISTER GUARD (Mar. 4, 2011) (in 2011, contract “doubled” to $566,000) (on file with author).

94 See https://whitebirdclinic.org/wp-content/uploads/2020/07/CAHOOTS-Media.pdf at 1.

95 See https://www.registerguard.com/news/20181214/local-crisis-unit-in-cahoots-with-more-police- agencies.

96 See Gray, note 47 at 64–65.

97 See id.; https://www.austintexas.gov/edims/document.cfm?id=302634 at 2 (“EMCOT was established through Integral Care’s Delivery System Reform Incentive Payments (DSRIP) program through the 1115 Medicaid Transformation Waiver”).

98 See generally https://youtu.be/lBgRH3ITUjU (presentation and panel discussion about New York’s DSRIP program).

99 See Gray, note 47 at 64–65.

100 “EMCOT began integrating their clinicians with APD 911 Call Center on December 16, 2019, to facilitate mental health crisis calls and divert from unnecessary police response.” https://integralcare.org/wp-content/uploads/2020/

06/CLEAN-Form-O-CLSP-June-15_2020.pdf.

101 See Gray, note 47 at 64–65.

102 See https://www.ccc-ids.org/wp-content/uploads/2015/06/RHP07_307459301.2.6_201502.pdf.

103 See https://www.kvue.com/article/news/austin-ems-needs-more-ambulances/269-d486a9ee-9f17- 4ebf-8f95-f888cfc9c698.

104 See https://www.theolympian.com/news/local/article222749470.html.

105 See https://drive.google.com/file/d/1YzfxKSshco-G-UMkrRQUdvHY0R-w4tVa/view at 8.

106 See https://issuu.com/reachedmonton/docs/2015_reach_annual_report at 4.

107 See https://www.edmonton.ca/city_government/documents/APPROVED_2019- 2022_OPERATING_BUDGET

.pdf at 640.

108 https://www.edmonton.ca/city_government/documents/2016- 18%20Operating%20Budget%20Council

%20Questions.pdf at 19.

109 https://www.marketwatch.com/story/long-before-defund-the-police-mental-health-advocates-have- been-redefining-public-safety-2020-06-11.

110 See https://www.edmonton.ca/city_government/documents/APPROVED_2019- 2022_OPERATING_BUDGET

.pdf at 641.

111 See https://whitebirdclinic.org/wp-content/uploads/2020/07/CAHOOTS-Media.pdf at 5.

112 See https://www.meps.ahrq.gov/mepsweb/data_stats/download_data/pufs/h206e/h206edoc.pdf at C- 20.

113 See https://www.theolympian.com/news/local/article230718039.html.

114 See https://www.traviscountytx.gov/images/planning_budget/Docs/adopt_vol1.pdf at 49.

115 See https://www.theolympian.com/news/local/article230718039.html.

116 See https://webdocs.edmonton.ca/siredocs/published_meetings/11/65599.pdf at 14.

117 See https://whitebirdclinic.org/cahoots-crisis-worker.

118 See http://www.austintexas.gov/edims/pio/document.cfm?id=320044 at 47 (“$450,000 for three additional licensed EMCOT clinicians.”); http://www.austintexas.gov/edims/pio/document.cfm?id=320044 at 45 (“$300,000 [c]osts include salary, fringe benefits, and supplies for two licensed Call Center Clinicians.”).

119 See https://jobsearcher.com/j/mental-health-professional-familiar-faces-at-ccsww-in-olympia- washington-rrBVxD.

120 See https://www.boylestreet.org/post/24-7-crisis-diversion-worker.

121 See e.g., CAHOOTS: An officer who began her career after CAHOOTS was created said “I actually have never worked in an environment without CAHOOTS, and I don’t know how it would be possible to do what we do as successfully as we do without them.” https://www.klcc.org/post/cahoots-30-pt-ii-services- expand-other-cities-take-note-its-intervention-model One officer, who declined to give his name because he wasn’t authorized to speak to media, said CAHOOTS is “able to respond to a lot of calls we [the police] maybe shouldn’t respond to,” and that he would ”strongly recommend” a crisis response program. https://www.salemreporter.com/posts/1584/you-want-a-resolution-as-much-as-possible-six-hours-with- eugenes-mobile-crisis-intervention-team. The Eugene chief of police calls the program a “symbiotic relationship.” https://www.cnn.com/2020/07/05/us/cahoots-replace-police-mental-health- trnd/index.html. The chief also testified before the Oregon Legislature’s Joint Committee on Transparent Policing and Use of Force Reform that the program is about “matching the response with what is needed in the community,” and that “all of North America is calling us.” http://oregon.granicus.com/MediaPlayer.php?clip_id=

28302 at 17:00–24:00.

122 One of the CAHOOTS co-founders said at first, they “sort of had to prove [themselves] . . . It took maybe a year or two for the police and the wider community to get the idea of what CAHOOTS was and how they could use us.” https://www.registerguard.com/news/20191020/in-cahoots-how-unlikely-

pairing-of-cops-and-hippies-became-national-model. However, the current CAHOOTS administrator said “[a]t this point, we’ve patiently waited out an entire generation of police officers . . . It’s been that slow of a process.” https://www.cnn.com/2020/07/05/us/

cahoots-replace-police-mental-health-trnd/index.html. CRU: The outreach services coordinator for the police department said for the program to build community trust, it had to prove it is “collaborative but separate” from law enforcement. https://www.themarshallproject.org/2020/07/24/crisisresponders. At the same time, the program has to build trust with the police department, with one CRU worker saying “I think they’re hesitant to let us just show up . . . They’re worried about our safety. But the cops are becoming more aware. We’ve been out here for over a year and none of us have been assaulted.” Id. Other workers say that police are deferring more calls to them and trusting them in a wider range of circumstances. See id.

123 See Gray, note 47 at 64–65.

124 See https://integralcare.org/en/transparencies-3/.

125 CAHOOTS: From 1989 to 2011, the program consisted of one van that did not operate 24/7; the budget has subsequently been increased year over year because of demand for CAHOOTS’ services. See Jack Moran, “Second ‘Intervention’ Van Funded, THE REGISTER GUARD (Mar. 4, 2011) (on file with author). “Based on call volume, demand for CAHOOTS services has increased by over 58% from 2014-2017.” https://www.indybay.org/newsitems/

2020/07/02/18834819.php. EMCOT: The program was expanded from a previous program that was not part of the first response structure. See Gray, note 47. 24/7: In 2014-2015, the previous crisis diversion program only had enough funding to respond to 5% of the disorder calls they could have otherwise responded to. See https://www.edmonton.ca/city_government/documents/2016- 18%20Operating%20Budget%20Council

%20Questions.pdf at 19. “In 2018, the first seven months of delivery of 24/7 Crisis Diversion shows demand at an average of 26% above funded capacity.” https://www.edmonton.ca/city_government/documents/APPROVED_

2019-2022_OPERATING_BUDGET.pdf at 639.

126 “The clinic is a Federally Qualified Health Center.” https://whitebirdclinic.org/wp- content/uploads/2020/07

/CAHOOTS-Media.pdf. For information on Federally Qualified Health Centers, see

https://www.fqhc.org/what-is-an-fqhc.

127 See CMS PUB 45-4 § 4231, 2015 WL 7936143 (Center for Medicare and Medicaid Services Manual, listing Federally Qualified Health Centers).

128 See https://www.wmyhealth.org/services/whitney-wheels/; https://www.wmyhealth.org/services/whitney-wheels/#tabcontainer-1029-757.

129 See id.

130 See Gray, note 47 at 64–65.

131 See https://www.health.ny.gov/health_care/medicaid/redesign/dsrip/pps_map/county/co_albany.htm (although there is also the Alliance for Better Health, it is focused around Schenectady).

132 See http://www.bhnnypps.org/loader.cfm?csModule=security/getfile&pageid=1887 at 53.

133 See http://www.clmhd.org/img/uploads/2020_Mental_Hygiene_Local_Services_Plan_Guidelines.pdf at 9.

134 24/7 workers are dispatched through 211, and the manager of the 24/7 program says it is “crucial” that 211 is used so the “community feels empowered to respond.” https://drive.google.com/file/d/1pexrwS33DW3D3EIi7n-mvpQSNO4WlRy8/view. In order to get

Edmontonians to use 211, REACH ran a marketing campaign. See https:// reachedmonton.ca/initiatives/24-7-crisis-diversion/. REACH is looking into the possibility of workers being dispatched directly by 911. On the other hand, CAHOOTS’ White Bird Clinic is looking at the possibility of the program having a standalone number, in addition to being dispatched directly by 911. See https://www.usnews.com/

news/cities/articles/2020-07-06/eugene-oregons-30-year-experiment-with-reimagining-public-safety. In Olympia, clients wish there was a number other than 911 they could call. See https://www.themarshallproject.org/2020/07/24/

crisisresponders.

135  See note 47.

136  See note 22.

137  See note 24.

138 Id.

139 See https://www.congress.gov/bill/116th-congress/senate-bill/4441/titles?r=21&s=1 (Senate version); https://www.congress.gov/bill/116th-congress/house-bill/7961?s=1&r=4 (House version).

140 See https://www.finance.senate.gov/imo/media/doc/Cahoots_One%20Pager_8.04.20.pdf.; https://www.kdrv.com/

content/news/CAHOOTS-Act-hopes-to-spread-crisis-intervention-model-nationwide-572043351.html.

141 See https://calmatters.org/justice/2020/07/police-mental-crisis-response-california/.

142 See note 52.

143 CAHOOTS: Examples of fundraisers the White Bird Clinic has hosted for CAHOOTS can be found at https://whitebirdclinic.org/category/fundraising/fundraising-2/. 24/7 “has leveraged over $1 million of in-kind contributions from the partner agencies.” https://reachedmonton.ca/wp- content/uploads/2020/05/2020-REACH-Business-Plan_FINAL.pdf at 28.

144 These arrangements are relatively new in the world of social-service financing, and aim to “invest” in programs that address root causes of social issues, thereby reducing long-term spending on social services. See generally https:/ /golab.bsg.ox.ac.uk/the-basics/impact-bonds/; https://youtu.be/nna8Mu-0o1E. The parties consist of (i) a service provider, (ii) one or more third-party financiers, and (iii) a government backer. The parties sign an agreement outlining specific metrics to determine the program’s success, and the service provider uses the financier’s funds. If the program meets the metrics, the government then pays back the financier, with interest. If the program does not meet the metrics, the government does not pay. This arrangement (a) allocates risk for innovative social programs to be placed with third parties, (b) allows government to distribute their payments to the third-party over time for a successful program, instead of the all-at-once funding associated with implementing the program itself, and (c) a properly constructed agreement will produce data for the length of the arrangement, which can then be used when reallocating funding for other programs.

145 A report for the city of Austin analyzing their 911 call data in this manner can be found at http://www.austintexas.gov/edims/pio/document.cfm?id=320044 at 4-25.

146 See https://www.nytimes.com/2020/06/08/us/what-does-defund-police-mean.html.

147 See e.g., CAHOOTS: See Eugene Police Department Policy 311, Non-Criminal Detoxification, https://www.eugene-or.gov/ArchiveCenter/ViewFile/Item/4314; Eugene Police Department Policy 418, Mental Health Crisis Response, https://www.eugene-or.gov/ArchiveCenter/ViewFile/Item/4339; Eugene Police Department Procedure 3.15, Death Notification, https://www.eugene- or.gov/ArchiveCenter/ViewFile/Item/4399.

148 The CAHOOTS administrator said that “CAHOOTS isn’t some cookie-cutter [program] that you can just pick up from Eugene and just kind of plunk down in Houston and expect it to work the same, just bigger.” https://www.

usnews.com/news/cities/articles/2020-07-06/eugene-oregons-30-year-experiment-with-reimagining- public-safety.

149 These numbers were based on the most recently available data, See, https://www.eugene- or.gov/ArchiveCenter/

ViewFile/Item/5910 at 37 (137,087 calls for service, 31,685 officer-initiated); https://www.springfield- or.gov/wp-content/uploads/2019/06/2018.Annual-Report.Final_.pdf at 4 (47,817 calls for service in 2018); https://whitebirdclinic.org/wp-content/uploads/2020/07/CAHOOTS-Media.pdf at 1, 5 (Eugene and Springfield department budgets are $90 million, CAHOOTS budget is $2.1 million, CAHOOTS responded to “over 24,000” calls for service, $8.5 million saved in public safety spending, $14 million saved in emergency medical systems costs).

150 See https://assets.austintexas.gov/budget/19-20/downloads/2020_Approved_Budget.pdf at 338 (police budget pays for officers to be “dispatched to over 330,000 . . . calls and work an additional 260,000 self-initiated calls . . .”); http://www.austintexas.gov/edims/document.cfm?id=303933 at 18–20 (detailing the EMCOT program for the 2017 fiscal year).

151 See https://dashboard.edmonton.ca/dataset/EPS-Dispatch-Call-Volume/nwr3-uqyk (175,547 dispatches between Q4 2018-Q3 2019); https://www.edmonton.ca/city_government/documents/2016_-

_2018_OPERATING_BUDGET.pdf at 596 (annual spending of $1 million per year on 24/7 program); https:/

/www.edmonton.ca/city_government/documents/APPROVED_2019-2022_OPERATING_BUDGET.pdf at 560, 650 ($451,725,000 spent on police in 2019, an additional $875,000 for FY 2019 for 24/7 program); https://

reachedmonton.ca/wp-content/uploads/2020/06/2019_REACH_Annual_Report_Single.pdf at 2 (24/7 program responded to 13,955 events in 2019);, https://reachedmonton.ca/wp- content/uploads/2020/05/2020-REACH-Business-Plan_FINAL.pdf at 2 ($1.91 Social Return on Investment).

152 See http://olympiawa.gov/~/media/Files/AdminServices/AnnualFinancialReport/2018_CAFR_FINAL.pdf?la= en at 127 (50,595 calls for service); http://olympiawa.gov/~/media/Files/AdminServices/Budget/ 2019_Adopted_Budget_Book_web.pdf?la=en at 130 (2018 actual spending); https://olympiawa.opengov.com/ transparency#/19567/accountType=expenses&embed=n&breakdown=14252966-76e1-4781-9193- 52ebee383049&currentYearAmount=cumulative&currentYearPeriod=years&graph=bar&legendSort=alp ha&proration=true&saved_view=null&selection=ADE101C7A384A6F4376651C99F19F8E7&projections= null&projectionType=null&highlighting=null&highlightingVariance=null&year=2019&selectedDataSetIn dex=null&fiscal_start=2019&fiscal_end=latest (2019 budget visualization, $773,888 spent on CRU); https://www.theolympian.com/news/local

/article230718039.html ($110,000 in startup costs); https://www.q13fox.com/news/behavior-health- teams-roam-olympia-offering-help-services (700 responses in first two months).

153 https://issuu.com/reachedmonton/docs/reach_annualreport_impact2017_web_m at 4 (“209% increase in events from year 1 to year 2,” and year 2 total was 7,943).

154 https://issuu.com/reachedmonton/docs/reach_annualreport_impact2017_web_m at 7.

155 This funding began in 2012. See https://www.edmonton.ca/city_government/documents/PDF/ Approved_2012_Operating_Budget-Revised.pdf at 18.

156 https://issuu.com/reachedmonton/docs/reach_annualreport_impact2017_web_m at 2.

157 https://issuu.com/reachedmonton/docs/reach_annualreport_impact2017_web_m at 7.

158 https://issuu.com/reachedmonton/docs/2017_annual_report.

159 https://drive.google.com/file/d/1pexrwS33DW3D3EIi7n-mvpQSNO4WlRy8/view.

160 https://reachedmonton.ca/wp-content/uploads/2020/06/2019_REACH_Annual_Report_Single.pdf at

2.

161 https://www.edmonton.ca/city_government/documents/APPROVED_2019- 2022_OPERATING_BUDGET.pdf at 49 (increased by $875,000).

162 Jack Moran, “Second ‘Intervention’ Van Funded, The Register Guard (Mar. 4, 2011) (in 2011, contract “doubled” to $566,000).

163 Id.

164 https://www.registerguard.com/news/20181214/local-crisis-unit-in-cahoots-with-more-police- agencies.

165 Jack Moran, “Second ‘Intervention’ Van Funded, The Register Guard (Mar. 4, 2011) (in 2011, contract “doubled” to $566,000).

166 https://www.registerguard.com/article/20130424/OPINION/304249895.

167 Id.

168 https://www.eugene-or.gov/DocumentCenter/View/47955/In-Cahoots—How-the-unlikely-pairing-of- cops-and-hippies-became-a-national-model-Register-Guard—Oct-20-2019.

169 https://www.registerguard.com/rg/news/local/32649046-75/cahoots-coming-to-springfield-this- week.html.csp.

170 https://whitebirdclinic.org/wp-content/uploads/2020/07/CAHOOTS-Media.pdf at 3.

171 https://www.registerguard.com/rg/news/local/32649046-75/cahoots-coming-to-springfield-this- week.html.csp.

172 Id.

173 Id.

174 https://whitebirdclinic.org/wp-content/uploads/2020/07/CAHOOTS-Media.pdf at 3.

175 https://www.registerguard.com/news/20181214/local-crisis-unit-in-cahoots-with-more-police- agencies.

176 https://kval.com/news/local/cahoots-starts-24-hour-eugene-service-in-january-2017.

177 Id.

178 https://www.eugene-or.gov/DocumentCenter/View/47955/In-Cahoots—How-the-unlikely-pairing-of- cops-and-hippies-became-a-national-model-Register-Guard—Oct-20-2019.

179 Id.

180 https://www.cbsnews.com/news/mental-health-team-responds-to-emergencies-oregon-alternative-to- police-2019-10-23/.

181 http://www.citinternational.org/resources/Documents/Mental%20Health%20Experts%20as%20First

%20Responders.pdf at 7.

182 https://www.eugene-or.gov/DocumentCenter/View/36289/FY18-Adopted-Budget at 41.

183 https://www.springfield-or.gov/wp-content/uploads/2019/01/FY19BudgetBook_002.pdf at 210.

184 https://www.eugene-or.gov/DocumentCenter/View/36289/FY18-Adopted-Budget at 41.

185 https://www.registerguard.com/news/20181214/local-crisis-unit-in-cahoots-with-more-police- agencies.

186 https://edition.cnn.com/2020/07/05/us/cahoots-replace-police-mental-health-trnd/index.html.

187 Id.

188 https://www.springfield-or.gov/wp-content/uploads/2019/01/FY19BudgetBook_002.pdf at 208.

189 https://www.springfield-or.gov/wp-content/uploads/2019/01/FY19BudgetBook_002.pdf at 210.

190 https://whitebirdclinic.org/wp-content/uploads/2020/07/CAHOOTS-Media.pdf at 1.

191 https://www.springfield-or.gov/wp-content/uploads/2019/07/FY20-Adopted-Budget.pdf at 204, 206.

192 https://www.eugene-or.gov/DocumentCenter/View/47638/FY20-Adopted-Budget at 3; https:/

/www.indybay.org/newsitems/2020/07/02/18834819.php.

193 https://www.census.gov/quickfacts/schenectadycitynewyork.

194 https://www.cityofschenectady.com/302/About-SPD.

195

https://www.cityofschenectady.com/307/History#:~:text=In%20the%20late%201970s%2C%20the,real

%20change%20in%20police%20manpower.

196 http://www.cityofschenectady.com/DocumentCenter/View/2277/2019_Adopted_Budget.

197 https://www.census.gov/quickfacts/newrochellecitynewyork.

198 https://www.newrochelleny.com/DocumentCenter/View/11722/NRPD-Annual-Report-2018.

199 Id.

200 https://www.newrochelleny.com/DocumentCenter/View/11735/2020-Adopted-Budget.

201 Similar to Albany’s enlarged daytime downtown population, two shopping centers in Clarkstown “can double the population on any given weekend.” www.clarkstownpba.org.

202 https://www.census.gov/quickfacts/fact/table/clarkstowntownrocklandcountynewyork/PST045219.

203 https://town.clarkstown.ny.us/town_hall/police_department.

204 http://clarkstown.hosted.civiclive.com/UserFiles/Servers/Server_8892405/File/Police%20Department/ Annual%20Report/2016-Annual-Report-Final.pdf.

205 https://town.clarkstown.ny.us/UserFiles/Servers/Server_8892405/File/Town%20Hall/Departments/ Town%20Clerk/Budget/2020-Adopted-Budget.pdf.

206

https://www.census.gov/quickfacts/fact/table/greenburghtownwestchestercountynewyork/RHI125219.

207 https://greenburghny.com/247/About-the-Department.

208 https://greenburghny.com/DocumentCenter/View/6344/2020-Town-Budget.

209 https://www.census.gov/quickfacts/fact/table/greecetownmonroecountynewyork/PST045219.

210 https://greeceny.gov/files/Final_Adopted_Budget.pdf.

211 https://www.census.gov/quickfacts/fact/table/amhersttowneriecountynewyork/PST045219.

212 http://www.amherst.ny.us/content/departments.php?dept_id=dept_16.

213 http://www.amherst.ny.us/pdf/comptroller/2020_adopted/191107_entire_adopted_budget.pdf.

214 https://www.census.gov/quickfacts/fact/table/ramapotownrocklandcountynewyork/PST045219.

215 http://www.ramapo.org/page/police-31.html.

216

http://www.ramapo.org/uploads/finance/1574797023_2020%20Adopted%20Budget%20Consolidated.pd f.

217 https://www.census.gov/quickfacts/syracusecitynewyork.

218 https://www.syracuse.com/news/2019/11/deal-with-police-union-would-require-new-city-cops-to-live- in-syracuse-for-5-years.html; https://spectrumlocalnews.com/nys/central-ny/news/2020/01/17/35-new- syracuse-police-officers.

219 http://www.syrgov.net/uploadedFiles/Departments/Budget/FY%202019- 2020%20Adopted%20Budget.pdf.

220

http://www.syrgov.net/uploadedFiles/Departments/Budget/Content/Budget_Documents/Adopted%20Bu dget

%202018-2019.pdf.

221 http://www.syrgov.net/uploadedFiles/Departments/Budget/FY%202019- 2020%20Adopted%20Budget.pdf.

222 https://whitebirdclinic.org/wp-content/uploads/2020/07/CAHOOTS-Media.pdf at 3.

223 https://olis.leg.state.or.us/liz/2015R1/Downloads/CommitteeMeetingDocument/68512 at 10.

224 https://www.urban.org/sites/default/files/publication/28626/412089-Strategies-for-Improving-

Homeless-People-s-Access-to-Mainstream-Benefits-and-Services.PDF at 74, 213.

225 2020 Albany County Executive Budget,

https://www.albanycounty.com/home/showdocument?id=12728 at 159.

NYS Enacts Help for Parents Facing Deportation

New state laws amend standby guardianship and general obligations law parental designation statutes

By Gerard Wallace, Esq.[1]

 Parents[2] who are at risk of deportation face difficult decisions regarding the care of their citizen minor children.  If they choose to leave children here in the United States – even temporarily – they must decide how to provide a non-parent with the legal authority for caregiving.[3]

New strategies for parents and children are needed because of the dire circumstances and widespread dragnet of persons at risk of deportations that are sweeping across the country. Federal enforcement agencies, Homeland Security or U. S. Citizenship and Immigration Service (USCIS), are at the center of media and advocate reports on the ramping up of searches, arrests, detentions, and deportations of undocumented residents.

In June of 2018, New York Governor Andrew Cuomo signed into law two new provisions aimed to improve strategies for non-parental care of children by amending New York’s standby guardianship (Chapter Law 79) and parental designation (Chapter 80) laws. This memo will outline the legal and political landscape that has made these laws imminently necessary, as well as two procedures for designating parental authority to non-parents.

Who Is Facing Detention and Deportation?

Statistics from national surveys, administrative data and other sources of information regarding the number of persons who may face detention and deportation vary,[4] but estimates generally place the total population at about 11.1 million, or approximately 3 percent of the U.S. population.[5]

Detention is the practice of incarcerating immigrants while they await a determination of their immigration status or potential deportation. Once detained by Immigration and Customs Enforcement (ICE) and its Enforcement and Removal Operations (ERO), bond is unlikely and deportation likely, because of a recent U. S. Supreme Court decision that permits indefinite detention. A detainee may now be held until either the application proceeding is completed or until removal proceedings have been completed, denying bond hearings to thousands of immigrant applicants and asylum seekers.[6]

In 2016, the United States government detained nearly 360,000 people in a sprawling system of over 200 immigration jails across the country.

In addition to millions of undocumented immigrants, persons who are potentially subject to deportation also include Deferred Action for Childhood Arrivals Program (DACA) and persons with Temporary Protective Status (TPS).

DACA allows individuals who were brought to the United States as children to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit in the U.S. A reported 793,026 people have received DACA initial approval, while 895,574 have received renewals.[7] These figures include 292,070 applications accepted and 273,000 approved in New York State.[8] Many DACA children are now adults who have children who were born in the United States. Plans to phase out DACA were initiated by the Trump Administration on September 5, 2017, allowing Congress six months to pass – a more permanent solution. [9]

The Trump administration has also said that it will terminate Temporary Protected Status for nearly 60,000 Haitians in July 2019, more than 262,000 Salvadorans in September 2019 and 57,000 Hondurans in January 2020.

Citizen Children Who Are Minors

Children who were born in the United States are citizens. They have birthright citizenship pursuant to the 14th Amendment of the U.S. Constitution:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.

Among the millions facing deportation, there are many parents with children who are United States citizens because they were born here, but who have not reached adulthood. Almost six million citizen children under the age of 18 live with a parent or family member who is undocumented.[10]  Additionally, a recent report from the Center for Migration studies estimates that more than 273,000 U.S.-born children have a parent with TPS from these countries.[11]  The number of DACA dreamers with minor citizen children is not known.

Options for Care of Citizen Children

In New York, a variety of custodial arrangements can provide care for children. Most involve court proceedings: state care and custody (foster care) via Family Court Act Article Ten abuse and neglect proceedings, surrenders for adoption (N.Y. Soc. Serv. Law §383), voluntary placement agreements (N.Y. Soc. Serv. Law §384a), or destitute child status (N.Y. Fam Ct. Act 10-C). In addition to state care, there are also private court ordered arrangements: adoption (N.Y. Dom. Rel. Law. §112b, guardianship (N.Y. Surr. Ct. Proc. Act §1700) and N.Y. Fam. Ct. Act §661, legal custody (N.Y. Fam. Ct. Act §651). A few informal custody arrangements do not require court proceedings: parental designation (N.Y. Gen. Oblig. Law §5 1551ff; and “persons in parental relationship” (N.Y. Educ. Law §3212; N.Y. Pub. Health Law §§2504, 2164).[12]

Court proceedings invariably will include scrutiny of the proposed non-parent caregiver and their household.  Investigations may involve criminal record checks, home studies, orders of protections records, domestic violence, sex offender, and child abuse registry checks, and caregiver residential histories.

For persons who may become caregivers of children whose parents are facing deportation, there are fears that such investigations may bring the unwelcome attention of federal immigration authorities.

Risk of ICE Identifying Undocumented Residents Because Of Court Proceedings

This memo does not attempt to describe how ICE may identify person involved in family court proceedings who are subject to deportation. However, it is important to provide some relevant information that illustrates the issues.

It is not uncommon for immigration authorities to obtain family court information by requiring individuals who are applying for immigration benefits or relief from removal to produce their family court records. Individuals are frequently compelled to produce records regardless of the privacy protections afforded by the New York Family Court Act and other state regulations. In other cases, immigration authorities discover family court information automatically through data-sharing agreements between state, local and federal agencies.[13]

Harmful immigration consequences can also be triggered when an Order of Protection is
issued by the Family Court and entered into the New York State Order of Protection Registry (“OP Registry”).[14]

An NYS Office of Court Administration Advisory Council on Immigration Issues in Family Court Memo: “Adverse Consequences to Family Court Dispositions”, examines in detail when family court proceedings may result in federal authorities identifying immigrants who may be subject to detention or deportation. The memo lays out the limited circumstances when information may reach federal authorities. But despite the apparent limitations, families are understandably suspicious and fearful that court proceedings could lead to arrests and detentions.

Standby Guardian and General Obligations Laws Provide “Springing” Powers for Provision of Care

At the end of the 2018 legislative session, New York’s Legislature passed two amendments that Governor Cuomo signed into law at a signing ceremony on June 24th in the Bronx. The two chapter laws amend statutes that provide for the designation of parental powers that may “spring up” upon the arrest, detention or deportation of a parent. The standby guardian written designation is valid for sixty days whereupon the named standby must file a petition for appointment (NY CLS SCPA § 1726(2)(d)(iv)). The parental designation (NYS General Obligations Law §§ 51551-55) does not require court appointment and thus may be of special importance when families wish to avoid the risks of unwanted attention from federal immigration officials.

Standby Guardianship Chapter Law 79 of the Laws of 2018

The Surrogate’s Court Procedure Act (SCPA) provides that a standby guardian can be appointed (NY CLS SCPA § 1726(1)(a)). “Standby guardian” means (i) a person judicially appointed … as standby guardian of the person and/or property of an infant whose authority becomes effective upon the incapacity, administrative separation, or death of the infant’s parent, legal guardian, legal custodian or primary caretaker or upon the consent of the parent, legal guardian, legal custodian or primary caretaker; and (ii) a person designated … as standby guardian whose authority becomes effective upon the death, administrative separation, or incapacity of the infant’s parent, legal guardian, legal custodian or primary caretaker or upon the debilitation and consent of the parent, legal guardian, legal custodian or primary caretaker.

The Chapter Law[15] amends the Surrogate’s Court Procedure Act to expand §1726, allowing designations for a “standby guardian” to include parents facing “administrative separation” i.e., detention or deportation, etc.

Administrative separation is defined as “A parent, legal guardian, legal custodian or primary caretaker’s (I) in connection with a federal immigration matter: arrest, detention, incarceration, removal and/or deportation; or (II) receipt of official communication by federal, state or local authorities regarding immigration enforcement which gives reasonable notice that care and supervision of the child by the parent, legal guardian, legal custodian, or primary caretaker will be interrupted or cannot be provided.”

Originally, this statute was enacted at the height of the AIDS crisis, to facilitate the immediate transfer of guardianship powers when a parent or a guardian can foresee their inability to care due to debilitating illness or death. In 2000, SCPA §1726 was amended to add a legal custodian or certain primary caretakers to designate or seek appoint of a standby guardians. Until June 27, 2018 the statute allowed a written designation of a standby guardian for their child in the event of their 1) incapacity, 2) debilitation and consent, or 3) death.  Designated standby guardians’ powers are valid upon the occurrence of the springing event, but only for sixty days, wherein the standby should seek to petition for guardianship. With the 2018 amendment, parents facing deportation can now complete the statutory designation form and know that if they are detained, their designated standby guardians can immediately care for children and can petition for appointment as their guardian.

Parental Designations Chapter Law 80 of the Laws of New York

The Chapter Law amends NYS General Obligations Law §§ 51551 and 1552 to extend the time period from six months to twelve months that a parent or guardian is permitted to name a caregiver as a person in parental relation, who has limited authority to make most decisions about schooling and medical care for a minor child or an incapacitated person.  Designation for periods beyond one month must be notarized and contain certain information. No court involvement is required for the designations, ensuring privacy for many parents who may be reluctant to bring attention to caregivers and their kin.  By extending the designation period to twelve months, the requirement of notarization becomes less onerous, particularly for parents residing outside the United States. Importantly, the authority may spring up upon a designated event or date.

The state Office of Children and Family Services (OCFS) has published a sample designation form. The form is available at the NYS Kinship Navigator and at OCFS web sites. See OCFS Form 4940 (06/2018).  The form’s section 4(d), pursuant to the statute, allows for the authority to spring up when a designated event happens.

The springing power is an especially useful tool for parents facing potential deportation or immigration detention because, just like the standby guardian springing power, it can be used to arrange care for children that springs up upon a stated condition, i.e. arrest, detention, etc.

In Chapter Law 79, the term “administrative separation” is defined as a suspension of care between parent and child caused by incarceration, removal and/or deportation, in connection with a federal immigration matter.  In drafting designations for parents facing detention/deportation, the springing power can borrow the language of the standby guardian Chapter Law regarding “administrative separation.”

The following language (copied from the standby guardianship amendment) can be inserted in section 4(d) of the designation form to allow a person in parental relationship to be designated in the event of a parent’s administrative separation:

  1. Any authority granted to the person in parental relationship pursuant to this form shall be valid (check appropriate box and initial):

___ d. commencing upon the date I become subject to an administrative separation such that care and supervision of the child(ren) will be interrupted or cannot be provided and continuing until administrative separation has ended or until the date of revocation, whichever occurs first.

Notarization in Other Countries

The standby guardianship designation does not need to be notarized but the parental designation must be notarized by a parent and by the designee for periods greater than thirty days. For parents who have left the country and need to notarize abroad, federal law states that notarizing officers at any United States Embassy or Consulate abroad can provide a service similar to the function of a notary public in the U.S. For information relating to notarial services with respect to specific countries, including office locations, consult the U.S. Department of State’s website.[16] While for periods greater than thirty days, the designee must also notarize, the designee notarization does not have to be concurrent with the parent’s (and designee notarizations could be performed in the United States).

The parent must personally appear at the embassy or consular office and bring the document with him. The office will establish their identity; establish that they understand the nature, language and consequences of the document to be notarized; and must be satisfied the act does not come within the purview of a regulatory basis for refusal. Then they will provide the notarization.

Most notarizing officers may also authenticate documents, which means that the consular seal is placed over the seal of a foreign authority whose seal and signature is on file with the American Embassy. The authentication merely attests to the seal and signature of the issuing foreign authority. Notary and authentication services may be performed for any person regardless of nationality so long as the document in connection with which the service is requested is required for use within the jurisdiction of the United States.

It is also possible to have a document notarized by a local foreign notary (instead of going to the embassy or consular office) and then have the document authenticated by the proper authority in the foreign country for use in the United States.[17] In accordance with 22 CFR, Part 131, the Office of Authentications provides signed certificates of authenticity for a variety of documents to individuals, institutions, and government agencies. Examples of documents that may require authentication for use abroad include: company bylaws, powers of attorney, trademarks, diplomas, treaties, warrants, extraditions, agreements, certificates of good standing, and courier letters.

The U.S. Department of State only issues apostilles for federal documents to use in countries that are members of the 1961 Hague Convention.[18] In countries that are a party, this is a simplified process. An Apostille certificate is attached by the foreign notary regulator, verifying that the notary certificate on the document is authenticated. This means the individual may have the document signed by a local notary, and then contact the country’s notary regulator office to have the Apostille certificate attached.

If a country is a party to the Hague Apostille Convention, the US automatically would accept the local foreign notary as long as an Apostille certificate is attached. Note that Haiti is not a party to the Hague Apostille Convention.

Conclusion

With so many parents facing deportation, immigration attorneys, as well as estate planners and other attorneys who are assisting families with future planning, now have new tools that can assist in keeping children who are citizen in the United States and in the care of persons chosen by their parents or caregivers. Unfortunate as it may be, parents who make the hard choice to leave children here, can do so without the risks of court appearances. It is hoped that circumstances will not always remain so dire but until then, New York’s statutory amendments provide improved strategies for care that should assist many families who are facing deportations of parents or caregivers.

For more information about non-parental care, visit www.nysnavigator.org.

Gerard Wallace, Esq.
Director, NYS Kinship Navigator
Public Service Professor
U. at Albany, School of Social Welfare
gwallace@albany.edu
www.gerardwallace.org
Cell: 845-594-6398

 

Endnotes

[1] Gerard Wallace, Esq., is the Director of the New York State Kinship Navigator and a Public Service Professor at the University at Albany, School of Social Welfare.

[2] While this memo often refers only to parents, it is important to note that the standby guardian statute also permits guardians, legal custodians, and certain “primary caretakers” to petition or designate a standby, and the parental designation, in addition to parents, also permits guardians to designate.

[3] See, Camila DeChalus, More US children could be separated from immigrant parents, Chicago Tribune (July 14, 2018), http://www.chicagotribune.com/sns-tns-bc-immigration-children-20180714-story.html#

[4] Jeffrey S. Passel & D’Vera Cohn, Unauthorized immigrant population stable for half a decade, Pew Research Center – Fact Tank (September 21, 2016). http://www.pewresearch.org/fact-tank/2016/09/21/unauthorized-immigrant-population-stable-for-half-a-decade/

[5] Illegal immigrant population of the United States, Wikipedia, The Free Encyclopedia, (last edited April 8, 2018), https://en.wikipedia.org/wiki/Illegal_immigrant_population_of_the_United_States, citing Pew Research Center. 2017-04-27.  Retrieved 2017-08-22.

[6] In Jennings v. Rodriguez, 138 S. Ct. 830, (Feb. 27, 2018), (Alito, J.) in a 5-3 decision, the US Supreme Court reversed and remanded a Ninth Circuit decision which concluded that detained aliens have the right to periodic bond hearings during the course of their detention. As a result, indefinite detention is allowed for applicants for admission and detainees.

[7] DACA Factsheet, Numbers USA, https://www.numbersusa.com/sites/default/files/public/assets/resources/files/DACA_factsheet.pdf

[8] Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, U.S. Citizenship and Immigration Services, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_performancedata_fy2018_qtr2_plus_may.pdf, Biometrics and Case Status Fiscal Year 2012-2017 (U.S. Department of Homeland Security, 2017).

[9] Michael D. Shear and Julie Hirschfeld Davis, Trump Moves to End DACA and Calls on Congress to Act, The New York Times, Sept. 5, 2017, https://www.nytimes.com/2017/09/05/us/politics/trump-daca-dreamers-immigration.html.

[10] Fact Sheet, U.S. Citizen Children Impacted by Immigration Enforcement, American Immigration Council (May 23, 2018), https://www.americanimmigrationcouncil.org/research/us-citizen-children-impacted-immigration-enforcement

[11] Robert Warren and Donald Kerwin, A Statistical and Demographic Profile of the US Temporary Protected Status Populations from El Salvador, Honduras, and Haiti, Center for Migration Studies, Journal on Migration and Human Security, Volume 5 Number 3 (2017): 577-592, http://cmsny.org/publications/jmhs-tps-elsalvador-honduras-haiti .

[12] Numerous statutes codify procedures and standards regarding various custodial arrangements. Listed here are just a few of the most relevant.

[13] Under the Trump administration’s executive orders, access to family court information can bear special risks because undocumented immigrants who were not previously targeted for immigration enforcement are now priorities whenever they engage in conduct that “constitutes a criminal offense” or is deemed by any individual immigration officer to “pose a risk to public safety.” This wide discretion and broadly worded language suggests that any arrest or other conduct deemed “a risk” may prompt Immigration and Customs Enforcement (“ICE”) to apprehend a noncitizen, regardless of whether the conduct results in criminal prosecution and conviction.

[14] Information from orders of protection are immigration-related triggers for several reasons. A family court finding that an individual has violated an order of protection, even a temporary one, is grounds for deportation. Even if an order is not violated, the existence of a temporary or permanent protective order can be grounds for denying an individual an immigration benefit or relief from removal. An order of protection may also prompt questions about the underlying conduct, and additional requests for family court records.

[15] New York State Senate, Bill S6217, 2017-2018 Legislative Session, Diane J. Savino, sponsor, https://www.nysenate.gov/legislation/bills/2017/s6217/amendment/a

[16] For instance, services provided in the Country of Haiti can be found at: https://ht.usembassy.gov/u-s-citizen-services/local-resources-of-u-s-citizens/notaries- public/.

[17] U.S. Department of State, Bureau of Consular Affairs, Office of Authentications, Travel.State.gov., https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-asst/authentications-and-apostilles/office-of-authentications.html

[18] See: https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-asst/authentications-and-apostilles/Notarial-Authentication-Services-Consular.html.  Countries that are parties to the Hague Apostille Convention can be found here: http://www.internationalapostille.com/hague-apostille-member-countries/.

Municipal IDs: Local Governments and the Power to Create Identity Documents

by Kendra Sena*

Introduction

While the federal government has exclusive authority to govern matters of immigration, state and local governments retain the right to enact laws that protect their residents, including undocumented immigrant residents.  One strategy that a number of local governments across the country have adopted is to issue photo ID cards to their residents—regardless of immigration status.

Local governments generally enjoy broad authority to enact laws aimed at protecting the well-being of their residents.  Cities and counties administer local programs, decide how to run their police forces, and make decisions about education and other services to their residents.  Localities across the country have routinely used their authority to create and issue various identification documents, including employee IDs, parking or local-access permits, and, most recently, resident identification cards known as “municipal IDs.”

Municipal IDs do not take the place of state-issued IDs; they are not, for example, a substitute for a driver’s license or sufficient identification to board a plane.  But in recent years, a number of cities and counties across the country have begun to issue municipal IDs to their residents in an effort to promote safety and integration of all members of the community, including some immigrants for whom state-issued IDs are out of reach.

Municipal IDs allow cardholders to access local services that may otherwise be foreclosed to them.  For example, municipal IDs may be used to cash a check, rent an apartment, or participate in local civic life.  Moreover, the IDs may be used as identity documents when interacting with local law enforcement, a function that has been credited with an increase in civilian reporting of crime and cooperation with law enforcement investigations.[1]

But as more and more localities move to adopt municipal IDs, local governments face difficult decisions:  how to protect themselves from potential challenges from the state or federal government, how to store identifying information of residents who apply for the IDs, how to protect that information from disclosure, and how to administer the program in a way that promotes safety and integration of resident cardholders.

This explainer will outline the various reasons a local government may choose to create a municipal ID and the mechanisms by which such a program may be adopted.  It will then discuss how municipal IDs interact with state and federal law, and some of the privacy and other concerns that have arisen in localities across the country with municipal IDs.

I.  Why do local governments issue municipal IDs?

A wide variety of public and private services require the user to present an ID.  Government-issued IDs are often required to open a bank account or even cash a check,[2] register a child for school, or rent an apartment from a private landlord.  In each of the preceding examples, nothing in the law requires a person to present a government-issued ID—in fact, in the case of registering a child for public school, requiring a photo ID from the parent is illegal, and a number of school districts across the country have been sued for implementing photo ID requirements.[3]  Regardless of the legal basis for such requests, the reality is that people are asked for a photo ID at numerous points of sale and service throughout their daily lives.

But many people face barriers to obtaining IDs from their state governments.  Often state IDs require original birth certificates, social security cards, and other documents that vulnerable populations may not have.  For example, people experiencing homelessness, youth in the foster system, the low-income elderly, people with mental illness and disabilities, formerly incarcerated people, and survivors of domestic violence may not have a stable place to store the documents that state governments require for IDs.  In many states, transgender people are blocked from changing their driver’s license to match their gender identity without a court order, amended birth certificate, or even proof of surgery.[4]

Ineligibility for state-issued ID cards can have harsh consequences for many immigrants, particularly the undocumented.  In New York, as in most states across the country, undocumented immigrants are prohibited from obtaining driver’s licenses and state-issued IDs.[5]  Because many immigrants work in the cash economy and are unable to open bank accounts without government-issued IDs, they become vulnerable to theft.[6]  Lack of IDs may make undocumented immigrants uncomfortable reporting theft and other crimes to local police, making law enforcement less able to address serious crime in their communities.[7]

Local governments may choose to fill this gap by developing a municipal ID program.  Because local governments are free to make their own rules concerning their municipal ID programs, most require applicants to produce less documentation than they would have to produce for a state-issued ID.  Whereas a state-issued ID might require proof of identity in the form of an original birth certificate, U.S. passport, or visa, a locality may choose to accept proof of identity in the form of a student or employee ID, foreign passport, or consular-issued document in order to apply for a municipal ID.  While these efforts aim to make it easier for residents—including undocumented immigrants—to obtain a municipal ID, the IDs are available to all residents, regardless of immigration status.

While municipal IDs may serve a symbolic function—creating a sense of membership in the community and commitment to the integration of all residents into civic life—they do not, on their own, create new rights for undocumented immigrants and other cardholders.  Instead, they facilitate access to municipal and other services for which cardholders are already eligible.[8]  Some IDs are linked directly to those services—the cards serve as library cards or bus passes, for example—while other IDs prove residency in order to access services, like entrance to city facilities or municipal buildings.[9]

Because municipal IDs provide increased access to banking and other financial services, municipal ID programs may stimulate local economies.  Studies show that immigrants are disproportionally “unbanked,” meaning they do not have checking or savings accounts and rely instead on “high-cost fringe providers” like check cashing stores and payday lenders.[10]  Access to a bank account allows consumers to earn interest on their savings and reduces the transaction costs of cashing a check or sending a money order, stimulating local spending and investment.[11]  And at least one city with a municipal ID program attributed a significant reduction in crime and an increase in crime reporting to the widespread use of the cards, particularly in the immigrant community.[12]

II. Which parts of local governments create municipal IDs?

Over two dozen cities and counties in the US have enacted municipal ID laws,[13] including two in New York: New York City began issuing its “IDNYC” in January 2015,[14] and in July 2018, the city of Poughkeepsie passed local legislation to create a municipal ID program.[15]

Most municipal ID programs are adopted by an action of the local legislative body and administered by a local agency.[16]  Though it is likely that mayors and county executives have the power to enact a municipal ID program through an executive order, such an enactment will be vulnerable to a rollback by a succeeding executive.[17]  An act of the local legislature can also codify certain important aspects of the program over which an administering agency may not have authority, such as the requirement that city officials accept the cards for all purposes.[18]

There are a handful of municipal ID programs that operate differently.  For example, the Mercer County, NJ, municipal ID is administered by a local nonprofit, and the Oakland, CA, municipal ID is administered by a private corporation.[19]  A community-based organization in Kingston, NY, issues a community ID without local authority.[20]

III. How do municipal IDs interact with state and federal law?

State laws.   Within any state, state and local governments share responsibility for governing the lives of their residents.  Typically, municipalities have the broadest authority in matters of local interest.  In many states, including New York, this power derives from the principle of “home rule,” an explicit grant of authority from the state to the municipalities to govern themselves.[21] Home rule gives local governments the freedom to experiment with local policy, especially regarding “municipal issues.”  In New York, home rule is enshrined in the state constitution and further enumerated by statute.[22]

Even in home-rule states, however, states may limit local power.  Where an issue involves a matter of “substantial state interest,” the state can preempt the local government’s ability to adopt local laws.[23] In New York, there is no state law that preempts municipal IDs.  In fact, enacting identity documents is one of the many enumerated rights in a state statute governing cities.[24]

Federal laws.  There is no federal law prohibiting a municipality from issuing its own identification cards.  However, a locality that is considering a municipal ID program should be aware of a number of limitations based on federal law.

Preemption.  The federal government has exclusive authority over national immigration law and policy, and no state or locality may enact any law that attempts to regulate immigration. The federal government is said to “occupy the field” of immigration and, as such, attempts by state or local governments to regulate immigration are “field preempted” by federal law.[25]

Despite this broad field preemption, the only court to consider the issue made quick work of a challenge to a municipal ID program on federal preemption grounds.  In 2008, the Immigration Reform Law Institute, a group that advocates for stricter immigration laws, sued the City of San Francisco claiming that its municipal ID program violated federal immigration laws.[26]  The group argued that because the city issued cards to undocumented people, the program encouraged illegal immigration.  The judge upheld the city’s argument that the claim was “purely speculative,” and that because the cards were available to all residents, “immigration status is not considered at all under the Ordinance,” and thus not preempted by federal immigration law. [27]  The case is instructive; it demonstrates that even those programs that allow undocumented immigrants to receive municipal IDs are not preempted by federal immigration law as long as they are made available to all residents, regardless of immigration status.

USA PATRIOT ACT.  The USA PATRIOT Act is a comprehensive law enacted in the wake of 9/11 aimed at strengthening the security of the United States.  Among a great many other provisions, the PATRIOT Act requires financial institutions such as banks and credit unions to verify the identities of those seeking to access financial services.[28]  The law permits each financial institution to determine which documents it will accept for those purposes.  While many banks have implemented a requirement that a customer present a state-issued ID in order to access financial services, there is no federal regulation mandating such a strict requirement.[29]  Thus, financial institutions are free to accept municipal IDs as valid identity documents, and they do not run afoul of federal law when they do so.[30]  In fact, the National Federation of Credit Unions has encouraged its members to accept municipal IDs where available.[31]  Thirteen banks and credit unions in New York accept New York City’s IDNYC.[32]

PRWORA. The federal Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 provides limits on the extension of federal, state, and local benefits to unlawfully present noncitizens.[33]  The statute defines the benefits that it restricts, including certain retirement, welfare, and postsecondary education assistance.[34]  A municipality cannot override this federal law; conflicting state or local laws are said to be “conflict preempted.”[35]  This means that a person issued a municipal ID would still be limited by the PRWORA and other applicable laws; the card cannot extend benefits to otherwise ineligible people.[36]  But because the card itself is not considered a benefit, municipal IDs do not conflict with the law.[37]

REAL ID.  Although federal law allows localities to issue municipal IDs, those IDs are not compliant with the federal REAL ID Act.  This means that while municipal IDs are valid for whatever local use the municipality deems appropriate, the IDs will not be accepted as valid identity documents for federal purposes.

The REAL ID Act sets out certain requirements for identity documents to be accepted for federal purposes, including barring undocumented immigrants from obtaining REAL ID-compliant identification.[38]  But federal law does not prohibit states or localities from issuing IDs that do not comply with REAL ID.  To the contrary, the Act includes a description of the requirements for noncompliant IDs too, anticipating that other state-issued IDs will coexist with REAL ID-compliant identity documents.[39]

Many states, including New York, are rolling out new state-issued licenses that comply with REAL ID but also continuing to issue non-compliant licenses.[40]  Non-REAL ID-compliant state-issued licenses may be used for whatever purpose the state determines (such as driving or registering to vote), but, as with municipal IDs, will not be accepted for federal purposes (such as entry into a federal building, military base, or for domestic or international travel).

The limitations of non-REAL ID-compliant IDs may have serious consequences for undocumented cardholders.  In two separate incidences in 2018, three New York City residents were detained by federal immigration authorities after showing their IDNYC cards to enter military bases in New York.[41] It is therefore imperative that a local government that adopts a municipal ID program makes it clear that the IDs are not to be used for federal identification purposes.

IV. Privacy Concerns

Municipal IDs are made available to all residents of a municipality, not just undocumented immigrants.  However, because undocumented immigrants have a pronounced need for such government-issued IDs, there is some concern that municipal IDs may serve to stigmatize the cardholder or create a registry of undocumented immigrants.[42]  Municipalities that share these concerns have implemented a number of measures to encourage all residents to apply for and carry the card.  For example, an IDNYC card entitles the bearer to free membership to the Metropolitan Museum of Art, the Bronx Zoo, the Museum of Natural History, and other cultural attractions.[43]  In New Haven, CT, the city recruited local businesses to offer discounts to municipal ID holders, encouraging wide participation and stimulating local spending.[44]  Some states have also codified a prohibition on discrimination against people who present non-REAL ID-compliant IDs.[45]

Additionally, almost all municipal ID card programs across the country prohibit the copying or retention of personal documents used to apply for the cards, which for some people includes foreign birth certificates or passports.  Applicants for these IDs need only show their documentation to obtain an ID, rather than provide copies of it for the municipality to keep.

One very prominent exception was New York City, which until recently retained copies of applicants’ personal documents in a city database.  In 2016, two New York State Assembly members filed a Freedom of Information Law (FOIL) request with the city for any scanned information regarding IDNYC.  The city declined the request, stating that the information was subject to various FOIL exemptions, including protections against the disclosure of personal information, information reported in confidence, information that would intrude upon personal privacy, and information that would endanger the subject. The City then amended its protocol so that it would no longer maintain copies of such documents, and announced that it would destroy the personal documents it had collected up to that point.[46]  The Assembly members sued the city to block its plan to destroy the documents, arguing that destroying the records would threaten national security and that the data should be preserved and made accessible under the state’s FOIL law.[47]  The judge in the case held that the Assembly members lacked standing as they had demonstrated no injury; a general grievance on behalf of society was insufficient. [48]  He further held that FOIL allows disclosure of information and a promise of access, but does not mandate retention of these documents.[49]  The court permitted the city to destroy the documents as planned.  But the suit highlighted the risk that municipalities attempting to help noncitizens by issuing them municipal IDs may in fact increase their exposure if personal information is not handled in a way consistent with the program’s goals.

Although municipalities generally do not retain ID-holders’ personal documents, they do typically keep track of cardholders in electronic databases.  No federal law requires municipalities to collect or retain specific information or to grant federal access to municipal databases.  And it does not seem that federal authorities have access to municipal databases through their standard automated networks used for law enforcement purposes.[50] Many municipalities have codified protections against disclosure of identifying information, and clarified which information will be treated as confidential under the federal and state freedom-of-information laws.

For example, the New York City law that created that city’s ID program included language that requires a subpoena or judicial warrant for law enforcement to access the data.[51]  Additionally, the city issued a number of executive orders to heighten the security measures for handling confidential information, including the new provision for refraining from retaining the personal documents of applicants.[52]

In Connecticut, the state’s Freedom of Information Commission denied a request by private citizens to release the names, addresses, and phone numbers of municipal ID card holders, claiming that the program violated federal law by aiding illegal immigration.  The Commission found that the New Haven ID card program does not constitute a local attempt at immigration regulation because card applicants were not asked about their immigration or citizenship status at all.  Citing credible threats of violence against city officials and undocumented immigrants who carry the card, the Commission ruled that New Haven officials could keep secret the identity of cardholders under the public-safety-risk exemption in the freedom of information law.[53]  At present these cases are rare, but they highlight the risks involved if municipalities develop ID programs without a careful eye toward confidentiality.

Conclusion

Federal law serves as a constraint on local governments’ ability to make immigration policy, but also provides some freedom to make decisions that directly affect the daily lives of immigrants within their communities.  Municipal IDs are meant to bring all residents into the civic fold—facilitating access to municipal and other services, stimulating local economies, and creating trust between residents and law enforcement.  While it is clear that municipal governments have an inherent right to create such programs, there are still questions about the degree to which local governments can protect the private information of their residents who apply for the cards.  Local governments must confront difficult questions regarding document storage and privacy, and strike a balance between the vulnerabilities the cards are meant to correct, and the ones they may inadvertently create.

RESOURCES

The Equal Protection Clause generally requires that state and local governments treat citizens and noncitizens equally.  This means that if a locality issues a municipal ID for its citizen residents, it must also make the ID available to its noncitizen residents.  For more on the requirements of Equal Protection, see the Government Law Center’s publication, “Immigrants and Public Benefits: What Must States and Localities Provide? (And When Do They Have a Choice?)” available at: www.albanylaw.edu/GLC/Immigration

For a useful guide to implementing a municipal ID program, including costs, timeline, and model legislation, see:

The Department of Homeland Security has posted answers to a number of frequently asked questions about the REAL ID Act, available at: https://www.dhs.gov/real-id-public-faqs

 

Endnotes

* Kendra Sena is the Senior Staff Attorney at the Government Law Center at Albany Law School.  Research assistance by Olivia Fleming, Brendan Nashelsky, and Michele Monforte.

[1] See Thomas MacMillan, “Elm City ID Card Turns 5,” New Haven Independent (Jul. 23, 2012), https://www.newhavenindependent.org/index.php/archives/entry/id_card_anniversary/.

[2] Federal law requires financial institutions to verify the identities of those seeking to access financial services.  31 C.F.R. § 1020.220.  Each institution sets its own rules for which forms of identification it will accept, and most require a government-issued ID.  See, Anna Paulson et al., “Financial Access for Immigrants: Lessons from Diverse Perspectives” (The Federal Reserve Bank of Chicago & The Brookings Institution, May 2006), https://www.brookings.edu/wp-content/uploads/2016/06/20060504_financialaccess.pdf.

[3] The U.S. Department of Justice has explained that requiring a parent to present a photo ID to enroll a child in school is unconstitutional.  U.S. Dep’t of Justice, Civil Rights Division, “Information on the Rights of All Children to Enroll in School: Questions and Answers for States, School Districts and Parents,” (May 18, 2014), https://www.justice.gov/sites/default/files/crt/legacy/2014/05/08/plylerqa.pdf (stating that “while a district may choose to include a parent’s state-issued identification or driver’s license among the documents that can be used to establish residency, a school district may not require such documentation to establish residency or for other purposes where such a requirement would unlawfully bar a student whose parents are undocumented from enrolling in school”) (emphasis in original).  Still, districts across the country routinely list parent photo ID as required documentation to enroll a child in school.  For a recent example of the many lawsuits against such school districts, see Hannan Adley, “ACLU-NJ Sues 12 School Districts, Alleging Discrimination Against Undocumented Students,” North Jersey (Jul. 26, 2018), https://www.northjersey.com/story/news/2018/07/26/aclu-nj-sues-12-school-districts-alleged-discrimination-against-immigrants/842738002/.

[4] For a state-by-state guide to the rules governing name and gender changes on federal and state IDs, see the National Center for Transgender Equality’s ID Documents Center at: https://transequality.org/documents.

[5] The National Conference of State Legislatures maintains a list of state laws that permit undocumented immigrants to access driver’s licenses.  See, http://www.ncsl.org/research/immigration/states-offering-driver-s-licenses-to-immigrants.aspx.  The New York state legislature declined to vote on such a bill in 2018.  New York State Legislature, Assembly Bill 8680 (S8680) An act to amend the vehicle and traffic law, in relation to authorizing the department of motor vehicles to issue standard drivers’ licenses, 2018 Reg. Sess. (May 10, 2018).

[6] Laura Sullivan, “Police, Banks Help Undocumented Workers Shake ‘Walking ATM’ Label,” Morning Edition, NPR, (Jan. 20, 2014) (describing the high incidence of robbery victimization among immigrants who are more likely to work in the cash economy and less likely to use banks).

[7] Caitlin Gokey & Susan Shah, How to Serve Diverse Communities, in Police Perspectives: Building Trust in a Diverse Nation (U.S. Dep’t of Justice, Office of Cmty. Oriented Policing Servs. & Vera Institute 2016), https://www.vera.org/publications/police-perspectives-guidebook-series-building-trust-in-a-diverse-nation.

[8] Els de Graauw, Municipal ID Cards for Undocumented Immigrants: Local Bureaucratic Membership in a Federal System, 42(3) Politics & Society 309, 314 (2014).

[9] Stella Burch Elias, Immigrant Covering, 58 Wm. & Mary L. Rev. 765, 841 (2017).

[10] National Federation of Community Development Credit Unions, A Toolkit for Credit Unions Serving Immigrants: Best Practices for Providing Access, Lending and Integration Through Partnerships to Underserved Communities, (Dec. 2015), http://www.cdcu.coop/wp-content/uploads/2016/09/A-Toolkit-for-Credit-Unions-Serving-Immigrants.pdf.

[11] For a robust discussion of the effects of banking the unbanked around the world, see, e.g., Asli Demirguc-Kunt et. al., The Global Findex Database 2017: Measuring Financial Inclusion and the Fintech Revolution (World Bank Group 2018), http://documents.worldbank.org/curated/en/332881525873182837/The-Global-Findex-Database-2017-Measuring-Financial-Inclusion-and-the-Fintech-Revolution.

[12] Five years after the implementation of the city’s municipal ID program, the Police Chief of New Haven, CT, the first city to adopt a municipal ID, reported an increase in the crimes reported and a 20% decrease in crime committed over the first two years after implementing the program.  MacMillan, supra note 1.

[13] They include: New Haven, CT, Chicago, IL, Oakland, CA, San Francisco, CA, Johnson County, IA, Mercer County, NJ, among others.

[14] Matt Flegenheimer, “New York City to Formally Start Its Municipal ID Card Program,” N. Y. Times (Jan. 11, 2015), https://www.nytimes.com/2015/01/12/nyregion/new-york-city-to-formally-start-its-municipal-id-card-program.html.

[15] Kathy Welsh, “Poughkeepsie Becomes Second City in NYS with a Municipal ID,” Hudson Valley News Network (Jul. 11, 2018), https://hudsonvalleynewsnetwork.com/2018/07/11/poughkeepsie-becomes-second-city-in-nys-with-a-municipal-id/.

[16] The Center for Popular Democracy, Building Identity (Nov. 2015), https://populardemocracy.org/sites/default/files/Municipal-ID-Report_WEB_Nov2015_0.pdf.

[17] Id.

[18] Id.

[19] Id.

[20] The Worker Justice Center of New York issues a photo ID card to residents and workers in Kingston, NY.  The card was a response to a failed municipal ID initiative. See, http://www.wjcny.org/program/community-engagement.

[21] See Rick Su, Have Cities Abandoned Home Rule? 44 Fordham Urb. L. J. 181 (2017), https://ir.lawnet.fordham.edu/ulj/vol44/iss1/6.

[22] See, N.Y. Const. art. IX, §  2 and N.Y. Municipal Home Rule Law § 10 (McKinney 2011).

[23] For a discussion of recent trends in state preemption, see, National League of Cities, City Rights in an Era of Preemption: A State-by-State Analysis: 2018 Update (Feb. 2018), https://www.nlc.org/resource/city-rights-in-an-era-of-preemption-a-state-by-state-analysis.

[24] N.Y. Gen. City § 20 ¶14, Grant of Specific Powers (McKinney 2011) (stating that every city is empowered to “create, maintain and administer a system or systems for the enumeration, identification and registration, or either, of the inhabitants of the city and visitors thereto, or such classes thereof as may be deemed advisable).

[25] Arizona v. United States, 567 U.S. 387, 401 (2012) (noting that the federal government has occupied the field of alien registration, and that even complementary state regulation is impermissible).

[26] Langfeld et al. v. City and County of San Francisco et al., Super. Ct. S.F. City and County (No. CPF-08-508341) (2008),.

[27] Mem. of P. & A. in Supp. of Resp’t Dem. to Pet. for Peremptory Writ of Mandamus and Compl. for Decl. and Inj. Relief, Langfield et. al., supra note 26, No. 08-508341, (August 29, 2007).

[28] Customer identification programs for banks, savings associations, credit unions, and certain non-Federally regulated banks, 31 C.F.R. § 1020.220.,

[29] Department of the Treasury, Fact Sheet: Results of the Notice of Inquiry on Final Regulations Implementing Customer Identity Verification Requirements under Section 326 of the USA PATRIOT Act (2003), http:// www.treasury.gov/press-center/press-releases/Documents/js7432.doc.

[30] Center for American Progress, Providing Identification to Unauthorized Immigrants: The State and Local Landscape of Identification for Unauthorized Immigrants (Nov. 2016), https://cdn.americanprogress.org/wp-content/uploads/2015/11/23122616/ProvidingIDs1.pdf.

[31] National Federation of Community Development Credit Unions, supra note 10.

[32] https://www1.nyc.gov/site/idnyc/benefits/banks-and-credit-unions.page.

[33] Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193 Stat. 110 Stat. 2105 (August 22, 1996).

[34] Id.  See also, 8 U.S.C § 1621 (enumerating the benefits for which unauthorized immigrants are not eligible).

[35] See, e.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000).

[36] Kate M. Manuel & Michal John Garcia, Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues, (Cong. Research Serv. 20-21 2014), http://www.fas.org/sgp/crs/misc/R43452.pdf.

[37] Building Identity, supra note 17.

[38]  REAL ID Act of 2005 Pub. L. No. 109-13 Stat. 119 Stat. 302 (May 11, 2008).

[39] Id. at § 202(d)(11) (requiring that state-issued IDs that do not comply with REAL ID bear certain markings).

[40] For a list of the several IDs that New York issues, including REAL ID-compliant and non-REAL ID-compliant, see: N.Y. Dept. of Motor Vehicles, Federal REAL ID: What REAL ID Means to You, https://dmv.ny.gov/driver-license/federal-real-id.

[41] Zoe Greenberg, “The IDs Were Meant to Protect Immigrants. Are They a Liability?,” N. Y. Times (Jul. 10, 2018), https://www.nytimes.com/2018/07/10/nyregion/idnyc-fort-drum-silva-barrios.html.

[42] Center for Popular Democracy, Who We Are: Municipal ID cards as a local strategy to promote belonging and shared community identity (Dec. 2013), http://populardemocracy.org/sites/default/files/municipal%20id%20report.pdf.

[43] Cities for Action, Municipal Program ID Program Toolkit (2015), http://www.citiesforaction.us/municipal_id_program_toolkit.

[44] Iván Espinoza-Madrigal, “Municipal ID Cards: Social Inclusion and Economic Benefits,” Huffington Post (Feb. 24, 2014), https://www.huffingtonpost.com/ivan-espinozamadrigal/municipal-id-cards-social_b_4848818.html.

[45] Center for American Progress, supra note 30.

[46] City of New York, Human Resources Administration, “Retention of Copies of Records Provided By New York City Identity Card (IDNYC) Program Applicants to Prove Identity and Residency,” HRA Executive Order No. E-739, (December 7, 2016), https://www1.nyc.gov/site/idnyc/about/legal-library.page.

[47] Liz Robbins, “New York City Should Keep ID Data for Now, Judge Rules,” N. Y. Times (Dec. 21, 2016), https://www.nytimes.com/2016/12/21/nyregion/new-york-city-should-keep-id-data-for-now-judge-rules.html.

[48] Castorina v. De Blasio, 55 N.Y.S.3d 599, 615 (N.Y. Sup. Ct. 2017).

[49] Id.

[50] Federal immigration authorities can use an automated, state-owned network called Nlets to obtain certain information from state driver’s license registries, but municipal databases are not part of that network.  For a robust discussion of Nlets and other information-sharing mechanisms used by federal immigration authorities, see National Immigration Law Center, Untangling the Immigration Enforcement Web (Sept. 2017), https://www.nilc.org/issues/immigration-enforcement/untangling-immigration-enforcement-web/.

[51] Rules of The City Of N.Y., ch. 6, § 6-11(d) (2017).

[52] See, City of New York, Human Resources Administration, “Retention of Copies of Records Provided By New York City Identity Card (IDNYC) Program Applicants to Prove Identity and Residency,” supra note 46; City of New York, Human Resources Administration, “Handling Of Third Party Requests for New York City Identity Card (IDNYC) Applicant and Cardholder Information,” (Dec. 1, 2014); City of New York, Human Resources Administration, “New York City Identity Card (IDNYC) Program Database Security,” (Dec. 1, 2014), https://www1.nyc.gov/site/idnyc/about/legal-library.page.

[53] Patrick Lee, “State agency to come to aid of city ID program,” Yale Daily News (Mar. 6, 2008), https://yaledailynews.com/blog/2008/03/06/state-agency-to-come-to-aid-of-city-id-program/.

Immigrants and Public Benefits:  What Must States And Localities Provide?  (And When Do They Have a Choice?)

by Andy Ayers*

Immigration law is often thought of as a federal issue, and indeed the federal government has exclusive power over who enters the country and on what terms they can remain.  But the day-to-day life of noncitizens is regulated both by the federal government and by its state and local counterparts.

One of the many controversies related to immigration is over immigrants’ access to public benefits.  In 1996, the Welfare Reform Act dramatically limited lawful immigrants’ access to public benefits, causing almost a million noncitizens to lose access to benefits.[1]  But the controversy has continued from that time to today.  Recent proposals by the Trump administration would significantly increase the number of noncitizens (and their children) who become deportable because they use public benefits.[2]

Meanwhile, few people understand exactly what benefits noncitizens can receive.  This Explainer gives an overview of the laws governing state and local governments’ provision of public benefits to noncitizens.  By “public benefits,” we mean not only traditional public benefits like welfare and housing assistance, but all of the affirmative goods that governments offer to the citizens, from professional licenses to Medicaid to education assistance to government contracts and grants.

The Constitution requires states and localities to treat noncitizens just like citizens (with a few exceptions, discussed below).  But federal statutes sometimes require states to treat the two groups differently.  So state and local governments have to navigate a tricky path between the rock of Equal Protection and the hard place of federal preemption.

This Explainer first discusses the requirements of Equal Protection, and then explains how federal statutes sometimes limit the benefits states and localities can give to noncitizens.

I.  When Equal Protection Requires Benefits

In general, the federal government is allowed to treat citizens and noncitizens differently.[3]  But when the law or policy in question comes from the government of a state or locality, noncitizens have a constitutional right to be treated like citizens.[4]

Under a long line of Supreme Court cases, states and localities that distinguish between citizens and noncitizens are subject to “strict scrutiny,” meaning that in order to comply with the Constitution, the law or policy that treats noncitizens differently must “further[] a compelling state interest by the least restrictive means practically available.”[5]  This is the same level of scrutiny that applies to racially discriminatory laws.

Hardly any state law or policy can survive strict scrutiny; in practice, strict scrutiny means the law is virtually certain to be struck down.

So the Constitution treats state discrimination against noncitizens with the same suspicion reserved for racial discrimination.  But in the case of noncitizens, there are some important exceptions—cases in which states are allowed to treat noncitizens differently.

Differential treatment of noncitizens in public employment.  One important exception to the rule that states and localities cannot treat noncitizens differently is known as the “political function” doctrine.  Under this doctrine, state governments are free to limit certain kinds of public employment to citizens, including jobs like public-school teachers and police offers.[6]  The Supreme Court has not applied this exception to local governments, but it seems likely it would extend to them.

Differential treatment of the unlawfully present.  A second exception is for noncitizens who are unlawfully present. While the Supreme Court has never explicitly held that state and localities can deny benefits and services to undocumented people, courts have interpreted this to be an implication of the Court’s decision in Plyler v. Doe.[7]  (This Explainer uses the word “undocumented” and the phrase “unlawfully present” interchangeably.)

Importantly, there are difficult questions about exactly who counts as unlawfully present for these purposes.  Clearly within the category are people who cross the border without permission.  Then there are people who enter the country lawfully but overstay their visas. (Each year, roughly two-thirds of newly unlawfully present noncitizens have overstayed their visas.)[8]

There are other noncitizens who, although lawfully present, commit a crime that makes them deportable, and it is far from clear how this group would be regarded under the Equal Protection Clause.  Still other noncitizens are temporarily without lawful status, but have a right to remain in the country and are simply waiting for their paperwork to be processed. (For example, someone whose fiancé is a U.S. citizen might be between statuses while they wait for their green card to be issued.) It is not clear which of these groups might be denied state or local benefits without triggering strict scrutiny.

Differential treatment of noncitizens in temporary status.  A third possible exception to the rule against treating noncitizens differently should be approached with great caution.  According to some courts, “rational basis” scrutiny—a very forgiving standard of review—applies to state laws that distinguish between citizens and those noncitizens in temporary status.[9]  In other words, states may deny benefits and services to people in temporary status (e.g., people with student visas, temporary work visas, and similar statuses), even though they must not discriminate against noncitizens with permanent status (i.e., green-card holders).

This exception for temporarily present noncitizens has been adopted by two federal appellate courts. But it has been rejected by the Second Circuit, which covers New York, Vermont and Connecticut.[10]  This creates a “circuit split” that will likely be resolved by the U.S. Supreme Court at some point in the future.

The exception for temporarily present noncitizens has also been rejected in the strongest terms by the New York Court of Appeals in Aliessa v. Novello, 96 N.Y.2d 418 (2001).  The Court applied strict scrutiny to state laws that apply differential treatment to lawfully present noncitizens—not just those with green cards, but also temporarily present noncitizens, and even “aliens of whom the INS is aware, but has no plans to deport.”[11]

This latter category—noncitizens who are deportable, but whose deportations are being stayed as a matter of federal prosecutorial discretion—is the most temporary and tenuous of all immigration statuses.  If New York law applies strict scrutiny to these noncitizens, then the only group that can be treated differently from citizens in New York is noncitizens who have no explicit or implicit authorization to remain in the country.

The holding of Aliessa was based not only on the U.S. Constitution but also on the New York State Constitution.[12]  This means that even if the Supreme Court were to allow state discrimination against temporarily present noncitizens temporary visitors, the New York ruling would stand.

Aliessa also held that differential treatment of noncitizens is unconstitutional under a separate provision of the state constitution:  article XVII, § 1, which provides:

“The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine.”

The court held that this provision forbids the state from imposing an “eligibility condition having nothing to do with need.”[13] Interestingly, no subsequent case has analyzed whether the same constitutional prohibition would forbid denying essential benefits to undocumented people.  But it is reasonable to expect a judicial challenge to any state or local policies that deny benefits to undocumented people, because a requirement that denies benefits on grounds of undocumented status would be an “eligibility condition having nothing to do with need.”

In sum, the basic rule governing noncitizens’ benefits is that state and local governments in New York cannot treat noncitizens differently from citizens unless the noncitizens are unlawfully present, or unless the political-function exception applies.

There is, in effect, one final exception to the requirement of equal treatment for noncitizens—an exception so complex it will be analyzed in the three separate sections that form the rest of this Explainer.  Congress can, and does, create laws that require states to treat noncitizens differently, or that purport to give states discretion to treat them differently.  And, on occasion, Congress requires equal treatment.  All of these provisions give rise to constitutional questions that have yet to be definitively resolved.

II.  When Congress Prohibits Benefits

Although the Equal Protection Clause generally requires that state and local governments treat noncitizens equally, several federal statutes demand differential treatment of noncitizens.

Section 1621:  Noncitizens in Certain Marginal Statuses Are Generally Ineligible for Subfederal Benefits.  The most important statute restricting state and local rights to offer benefits and services to noncitizens is 8 U.S.C. § 1621.  This statute limits state and local governments’ right to provide a wide variety of government benefits, contracts, and licenses, including:

any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds.[14]

The statute also applies to “any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit.”[15]

Noncitizens cannot receive any of these benefits or licenses unless their immigration status is specifically listed in § 1621(a).[16]  (There are exceptions for some emergency health-care benefits.[17])

Who is barred from benefits by § 1621?  Undocumented people are not among the groups listed as eligible, so they are ineligible for all of the enumerated benefits.  Section 1621 also denies benefits to people who are not unlawfully present, including people in the following classifications:

  • Temporary Protected Status.[18]
  • Deferred Action for Childhood Arrivals (DACA).[19]
  • Forms of “deferred action” other than DACA. (Although DACA is the highest-profile form of deferred action, deferred action has been granted since the 1970s, when it was referred to as “nonpriority” status.)[20]
  • Deferred Enforced Departure.[21]
  • Citizens of nations party to the Compact of Free Association Agreements (Palau, Micronesia, and the Marshall Islands).[22]

The upshot of § 1621 is that states can offer to noncitizens with green cards, student visas, or other listed statuses all of the benefits listed in § 1621, including things like welfare, Medicaid, professional licenses, government contracts, or unemployment benefits.  But states cannot offer these benefits to noncitizens in Temporary Protected Status, DACA beneficiaries, or undocumented people.

However, there is an important exception under which states can choose to provide benefits to any of the ineligible groups. Under § 1621(d), states can override the ineligibility, and provide benefits, “through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.”

Several states have exercised this prerogative.  For example, California and Florida passed statutes to make DACA recipients eligible for admission to the bar.[23]

Section 1621 seems to allow states to override the ineligibility only if the state legislature acts.  But courts in New York State have held that the judicial branch, too, can exercise that authority.  The theory these courts adopted is that states have a sovereign right to decide which branch of their government makes any given decision.  Thus, although § 1621(d) seems to require a decision by the state legislature, states are free to delegate that decision to another part of their government.[24]

Other cases in New York and elsewhere have followed the precedent set by Vargas.[25] And the New York State Education Department, acting on the same theory, issued regulations admitting noncitizens to professional licensure, invoking the authority embraced by Vargas.[26]

Another important feature of § 1621 is that it does not require state or localities to verify immigration status before offering any of the listed benefits.  Another section, 8 U.S.C. § 1624, authorizes states to confirm eligibility, but does not require it.[27] Thus, while states and localities are in theory barred from offering listed benefits to undocumented people, they are free to ask no questions about immigration status when people apply.

Higher-Education Benefits.  There is one more situation in which states are forbidden to offer benefits to non-citizens:  States cannot offer higher-education benefits to undocumented people unless those benefits are also available to citizens.[28]

Currently, the District of Columbia and twenty states (including New York) allow undocumented students to pay in-state tuition.[29]  Three states (Alabama, Georgia, and South Carolina) bar undocumented students from enrolling in some or all higher-educational institutions.[30]  Many state legislatures have pending bills that would expand or limit in-state tuition for undocumented students.[31]

III. When Congress Gives States a Choice

As we’ve seen, Congress sometimes tries to prohibit states from offering benefits to noncitizens.  There are other statutes in which Congress purports to give states a choice.

Section 1622:  For Most Noncitizens, Congress Purports to Give States Discretion Over Which Benefits to Offer.

What about the noncitizens who are eligible for state and local benefits under § 1621?  This group includes “nonimmigrants” (temporary visa-holders, like people with student visas, work visas, tourist visas, or other short-term visas); certain “parolees” (a very tenuous status that has nothing to do with criminal parole); and “qualified aliens” (a group that includes green-card holders, asylees and refugees, and others).[32]  In short, it includes many of the most common immigration statuses.

Noncitizens in this large group are covered by 8 U.S.C. § 1622, which says that states are “authorized to determine the eligibility for any State public benefits” of anyone with these benefits.[33]

Some courts have interpreted this to mean that the federal government has given states the freedom to decide whether to grant benefits to people in this group.[34]

But other courts, including the New York Court of Appeals, have found that whenever states have a choice, the Equal Protection Clause applies—and requires equal treatment of noncitizens.[35]  Congress may want states to have discretion, but, in the words of the Supreme Court, “Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.”[36]

Cash Assistance.  Congress attempted the same strategy for general cash public assistance.  8 U.S.C. § 1624 provides that states and localities are “authorized to prohibit or otherwise limit or restrict the eligibility of aliens or classes of aliens for programs of general cash public assistance,” as long as the state scheme is not more restrictive than the parallel federal benefits scheme. The same questions arise:  does Congress have the power to authorize behavior by states that would otherwise violate immigrants’ right to equal protection?

IV.  When Congress Requires Benefits

Section 1622(b) requires benefits for Permanent Residents, Refugees, and Asylees After a Certain Amount of Time.  As discussed above, Congress generally wanted states to have the discretion to choose whether to offer benefits to most lawfully present noncitizens.  But, as always, there’s an important exception.

Under § 1622(b), states are required to offer public benefits to legal permanent residents (“LPRs,” i.e., green-card holders), asylees, and refugees after specified periods of time.  For refugees, it’s five years after entry into the U.S.; for asylees, 5 years after the grant of asylum; and for green-card holders, it’s 40 quarters of work.[37]

State are also required to offer benefits to noncitizens in active military service, veterans, and their children.[38]

Does Congress Have the Power to Require Benefits?

Congress’s attempts to require that states offer certain benefits, create a complicated constitutional issue.  First, does Congress have the constitutional power to impose such a requirement?  And, second, if Congress has no power to impose such a requirement, does equal protection require states to offer benefits anyway?

In general, Congress cannot “commandeer” the states—that is, force them to implement a federal regulatory program.  Congress has no power to commandeer states’ executive officials or legislative processes.[39]  “[T]he Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”[40]

This principle might seem to prevent Congress from requiring states to give any particular benefits to noncitizens.  But Congress has traditionally been given great deference in the realm of immigration policy.  And even if Congress can’t constitutionally require benefits, there remains the Equal Protection Clause, which will require benefits in most situations.  The difficult question, again, will be what happens when Congress requires, by statute, the provision of benefits in an area where the Equal Protection Clause would not require them.

In New York State, equal protection clearly requires the provision of benefits for lawfully present aliens; nationally, the issue remains to be definitively resolved.

Conclusion

States and localities have a complicated set of questions to navigate when they make decisions about noncitizens and benefits and services.  Sometimes the Equal Protection Clause requires the provision of benefits; sometimes Congress purports to require their denial.

In other areas, federal statutes appear to give states a choice, or to require the provision of benefits, which creates complicated constitutional questions.  States, localities, and courts are likely to continue to struggle with these issues for years to come.

RESOURCES

This explainer deals with state and local benefits.  For background on the federal public benefits available to noncitizens, see Congressional Research Service, “Noncitizen Eligibility for Federal Public Assistance,” available at https://www.everycrsreport.com/reports/RL33809.html

A useful guide to the various immigration statuses from the American Immigration Council is available here: https://www.americanimmigrationcouncil.org/research/how-united-states-immigration-system-works-fact-sheet

Another useful guide, from the Immigrant Defense Project, is online here: https://www.immigrantdefenseproject.org/wp-content/uploads/IDP-Immigration-Status-101-Guide-FINAL1.pdf

For a very useful guide to state policies on public benefits for noncitizens, see the Pew Charitable Trust’s “Mapping Public Benefits for Immigrants in the States” (2014): http://www.pewtrusts.org/~/media/assets/2014/09/mappingpublicbenefitsforimmigrantsinthestatesfinal.pdf

The New York State Department of Health has a guide explaining which immigration statuses it considers eligible for Medicaid benefits: https://www.health.ny.gov/health_care/medicaid/publications/docs/gis/08ma009att.pdf

The federal government has issued a guide for state or local agencies trying to interpret immigration documents.  It’s part of the “SAVE” (Systematic Alien Verification for Entitlements) system, a resource for agencies that administer benefits: https://save.uscis.gov/web/media/resourcesContents/SAVEGuideCommonlyusedImmigrationDocs.pdf

For information about the limitations of the SAVE system, see: https://www.americanimmigrationcouncil.org/research/systematic-alien-verification-entitlements-save-program-fact-sheet

 

Endnotes

* Andy Ayers is Director of the Government Law Center and an assistant professor at Albany Law School.  Research assistance by Olivia Fleming, Brendan Nashelsky, and Michele Monforte.

[1] On the Welfare Reform Act, see https://www.migrationpolicy.org/article/immigrants-and-welfare-use.

[2] On the proposals to make noncitizens deportable for using public benefits, see https://www.vox.com/2018/2/8/16993172/trump-regulation-immigrants-benefits-public-charge.

[3] The federal power to offer different benefits to citizens and noncitizens was affirmed in Mathews v. Diaz, 426 U.S. 67 (1976).

[4] States’ obligation to treat citizens and noncitizens equally was established in Graham v. Richardson, 403 U.S. 365 (1971).

[5] This definition of strict scrutiny is from Bernal v. Fainter, 467 U.S. 216, 227 (1984).

[6] Cases on the political-function exception to strict scrutiny for state laws excluding immigrants include Cabell v. Chavez-Salido, 454 U.S. 432 (1982) (upholding citizenship requirement for probation officers); Ambach v. Norwick, 441 U.S. 68 (1979) (upholding citizenship requirement for public-school teachers); Foley v. Connelie, 435 U.S. 291 (1978) (upholding citizenship requirement for police officers); and Sugarman v. Dougall, 413 U.S. 634 (1973) (striking down a citizenship requirement for civil-service positions because it was not sufficiently related to sovereign functions of government).

[7] The Supreme Court appeared to suggest that rational-basis scrutiny applies to state laws that excluded undocumented people in Plyler v. Doe, 457 U.S. 202 (1982), although the holding of that case was that states must provide an education to undocumented schoolchildren.  See Dandamudi v. Tisch, 686 F.3d 66, 74 (2d Cir. 2012) (interpreting Plyler to allow differential treatment of unauthorized immigrants).  Full disclosure: the author of this Explainer wrote the brief and presented the oral argument to the Second Circuit in Dandamudi.

[8] For statistics on the number of unauthorized immigrants who overstay their visas, see the Center for Migration Studies, http://cmsny.org/publications/jmhs-visa-overstays-border-wall/.

[9] For decisions applying rational-basis scrutiny to noncitizens with temporary visa, see League of United Latin Am. Citizens (LULAC) v. Bredesen, 500 F.3d 523, 531–34, 536–37 (6th Cir. 2007); LeClerc v. Webb, 419 F.3d 405, 415 (5th Cir. 2005), reh’g en banc denied, 444 F.3d 428 (2006).

[10] The Second Circuit rejected an argument that states can deny benefits to temporarily present noncitizens in Dandamudi v. Tisch, 686 F.3d 66, 74 (2d Cir. 2012).

[11] For the New York Court of Appeals’s explanation of exactly who receives strict scrutiny, see Aliessa v. Novello, 96 N.Y.2d 418 (2001), holding that the state law in question violates the “Equal Protection Clauses of the United States and New York State Constitutions insofar as it denies State Medicaid to otherwise eligible PRUCOLs and lawfully admitted permanent residents based on their status as aliens,” id. at 436, and then compare its definition of “PRUCOL” in footnote 2.

[12] Aliessa makes clear that its holding is based on the New York State Equal Protection Clause.  See 96 N.Y.2d at 436.

[13] For discussion of the right to aid and care of the needy as applied to immigrants, see Aliessa, 96 N.Y.2d at 429.

[14] 8 U.S.C. § 1621(c)(1)(A).

[15] Id. § 1621(c)(1)(B).

[16] The enumerated statuses eligible for benefits under § 1621 are “a qualified alien (as defined in section 431 [8 USCS § 1641])”; “a nonimmigrant under the Immigration and Nationality Act” and “an alien who is paroled into the United States under section 212(d)(5) of such Act [8 USCS § 1182(d)(5)] for less than one year.” By using the term “qualified alien,” which is defined in USC 1641, section 1621(a) confers eligibility on several sub-categories of aliens: legal permanent residents; asylees and refugees; aliens whose deportation is withheld under 8 U.S.C. § 1251(b)(3) [see 8 CFR § 208.16]; aliens granted “conditional entry” under 8 USC § 1153(a)(7) before 1980; and aliens who are “Cuban and Haitian entrants” under 8 USC § 1522 (note); and certain battered aliens.  Also eligible are aliens whose deportation is withheld under § 243(h) of the Immigration and Nationality Act, but this is a small category, because this form of relief has been unavailable since 1997.

[17] Id. § 1621(b).

[18]   On Temporary Protected Status, see  http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status.

[19] On DACA, see http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

[20] See Leon Wildes, The Nonpriority Program of the Immigration and Naturalization Service Goes Public: The Litigative Use of the Freedom of Information Act, 14 SAN DIEGO L. REV. 42 (1976-77); for a more recent history, see Shoba Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L. J. 244 (2010).

[21] http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/deferred-enforced-departure

[22] See info on the Compact of Free Association Agreements here: http://www.uscis.gov/sites/default/files/files/pressrelease/Micronesia_MarshallIslFS.pdf

[23] For statutes making DACA recipients eligible for bar admission, see H.R. 755, § 454.021, 2014 Leg., Reg. Sess. (Fla. 2014); and In re Garcia, 58 Cal. 4th 440 (2014).  See also Wendi Adelson, Lawfully Present Lawyers, 18 Chap. L. Rev. 387, 399 (2015).

[24] Note: the theory adopted in Vargas (that state sovereignty prevents Congress from dictating the use of state legislatures for decisions about immigrants’ benefits) was presented to the Second Department in an amicus brief that was signed by the author of this Explainer.  For an elaboration of the theory and its implications for other areas of law, see Andrew B. Ayers, Federalism and the Right to Decide Who Decides, Villanova L. Rev. (forthcoming 2018).

[25] Courts have followed Vargas by admitting DACA recipients to the bar in New York’s Third Department, Pennsylvania, and New Jersey.  See Matter of Anonymous, 152 A.D.3d 1046 (3d Dep’t 2017); See ACLU Pennsylvania, “Pennsylvania Admits DACA Recipient to the Bar,” available at https://www.aclupa.org/news/2017/12/19/pennsylvania-admits-daca-recipient-bar-; see also Memorandum of Law in Support of Application of Parthiv Patel (Letter to Pa. Bd. of Law Examiners, Feb. 21, 2017), available at https://www.aclupa.org/download_file/view_inline/3179/1106/; See ACLU, DACA Recipient Sworn In As Lawyer By NJ AG (Jan. 24, 2018), https://www.aclu.org/news/daca-recipient-sworn-lawyer-nj-ag.

[26] For New York regulations admitting teachers to licensure under the Vargas authority, see 8 N.Y.C.R.R. § 80-1.3 (for teacher licensure, “pursuant to 8 USC § 1621(d), no otherwise qualified alien shall be precluded from obtaining a professional license under this Title if any individual is not unlawfully present in the United States, including but not limited to applicants granted deferred Action for Childhood Arrivals relief or similar relief from deportation8 NYCRR § 80-1.3”); 8 N.Y.C.R.R. § 59.4 (same language applied to other professions); 2016-10 N.Y. St. Reg. 19 (Mar. 9, 2016; Volume 38, Issue 10) (proposed regulation); 2016-22 N.Y. St. Reg. 23, 25 (final rule and response to comments) (“While the Vargas decision is based on an intrusion on the role of the judiciary over bar admissions in violation of the Supremacy Clause, we believe that the Court’s reasoning applies equally to the adoption of regulations having the force and effect of law by an administrative agency that is part of the executive branch of New York government, another one of the three coequal branches of government under the New York Constitution.”).  http://www.nysed.gov/news/2016/board-regents-permanently-adopts-regulations-allow-daca-recipients-apply-teacher. For more on the process leading to these changes, see Janet M. Calvo, Professional Licensing and Teacher Certification for Non-Citizens: Federalism, Equal Protection and a State’s Socioeconomic Interests, Col. J. Race & Law (forthcoming).

[27] 8 U.S.C. § 1625.

[28] 8 U.S.C. § 1623.

[29] On in-state tuition for undocumented students, see the National Immigration Law Center’s table at https://www.nilc.org/issues/education/eduaccesstoolkit/eduaccesstoolkit2/#maps.  See also the National Conference of State Legislatures’ excellent overview at http://www.ncsl.org/research/education/undocumented-student-tuition-overview.aspx.

[30] For states that bar enrollment to undocumented students, see the National Immigration Law Center’s table at https://www.nilc.org/issues/education/eduaccesstoolkit/eduaccesstoolkit2/#maps.

[31] On pending bills that would expand or limit in-state tuition for undocumented students, see this overview by National Association of Student Personnel Administrators (NASPA):  https://www.naspa.org/rpi/posts/in-state-tuition-for-undocumented-students-2017-state-level-analysis.

[32] 8 U.S.C. § 1621(a); for the definition of “qualified alien,” see 8 U.S.C. § 1641.

[33] 8 U.S.C. § 1622(a).

[34] See, e.g., Korab v. Fink, 797 F.3d 572, 582 (9th Cir. 2014).

[35] The New York Court of Appeals applied strict scrutiny to a denial of benefits in spite of § 1622’s grant of discretion in Aliessa, discussed above.  Note, however, that this interpretation could in theory be overruled by the U.S. Supreme Court, even though the state court has held that the state Equal Protection Clause requires treating noncitizens equally.  Valid federal statutes preempt state constitutional provisions.  If the Supreme Court were to hold that Congress has the power to promulgate a statute that gives states the discretion to treat immigrants differently, that statute would preempt the state constitution.  Thus, the Court could effectively nullify Aliessa by revisiting its statement that “Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.” Graham v. Richardson, 403 U.S. 365, 382 (1971)

[36] Graham v. Richardson, 403 U.S. 365, 382 (1971) (“Although the Federal Government admittedly has broad constitutional power to determine what aliens shall be admitted to the United States, the period they may remain, and the terms and conditions of their naturalization, Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.”).

[37] On benefits for green-card holders, refugees, and asylees after specified periods of time, see 8 U.S.C. § 1622(b).

[38] On benefits for servicemembers, veterans, and their children, see 8 U.S.C. § 1622(b)(3).

[39] On commandeering, see Printz v. United States, 521 U.S. 898, 933 (1997) (executive officials); New York v. United States, 505 U.S. 144, 161-66 (1992) (legislative processes).

[40] New York, 505 U.S. at 162.