BY Amanda F. Hobbs, Esq. and Michael Alexander, Esq., Brown & Fortunato, P.C.
On August 8, 2024, Governor Greg Abbott signed an executive order dictating that most Texas hospitals must collect data regarding the immigration status of patients and report it to the Texas Health and Human Services Commission (HHSC). This action follows the imposition of a similar requirement in Florida. In light of this recent change, it is important to know what obligations your hospital may have and how to limit the impact of these new requirements on patient care. Additionally, it is worth reviewing the early data from Florida to get an idea of what may be in store for Texas.
The order requires that hospitals both collect and report information. In collecting data, hospitals must ask each patient during the intake process whether they are (1) a citizen or an alien lawfully present in the United States; or (2) an alien not lawfully present in the United States. When collecting this information, Hospitals must inform the patient that their response to this question will not affect their care. Hospitals then must report this data, as well as associated cost data, on a cumulative, quarterly basis beginning on March 1, 2025. The information that a hospital must report includes both the number of and costs associated with both 
categories of patients for all emergency department visits and inpatient discharges.[1]
From a practical perspective, a few important considerations include how staff should respond to questions from patients, how this question should be incorporated, and how to train staff. Due to the complexity of the United States’ immigration system, the phrase “not lawfully present” is surprisingly fraught. To avoid complicating the intake process, staff should be counseled to abstain from providing clarification regarding this phrase and to accept the patient’s answer, even if that answer is “I don’t know” or “I refuse to say.” Staff should also be made aware that refusal to answer is an acceptable response.
Questions may also arise as to when this information should be collected. Guidance from HHSC reflects that hospitals are to collect information from the patient as part of the intake process. As many patients arrive at the hospital in a state of incapacity, staff should be trained to note a lack of response due to incapacity where appropriate and additionally should be trained not to solicit information from friends or family members of patients, except where such persons are legal custodians of the patient.
Finally, the order reflects that all patients should be informed that their response to the immigration question will not affect their care. It should therefore go without saying that the response to the question should not actually affect the quality or timeliness of the care the patient requires. Further, staff should always be trained to provide care in a manner that is not discriminatory, and to escalate and report incidences of discrimination appropriately.
Texas goes into its first reporting period with the advantage of the data accumulated pursuant to the similar Florida law. Florida found that <1% of patients were not lawfully present, and an additional 7-8% of patients provided no response. Florida extrapolated the cost of care provided to undocumented immigrants at $556 million by multiplying the percentage of those who responded as undocumented (0.82% averaged) by the cost of annual hospital operating expenses. Because this estimation does not account for the set costs of overhead or consider any offsets from patient payments, insurance payments, or taxes paid by undocumented immigrants, critics of the policy, such as the Florida Policy Institute, suggest that the estimation provided in the legislative report is not representative of the actual cost to taxpayers of uncompensated care provided to undocumented immigrants. The Florida Legislative Report further reflects that high levels of uncompensated care are more likely to be found in rural counties with lower percentages of undocumented immigrants, highlighting the known financial strain on rural hospitals caused by uninsured patients.
While Governor Abbott’s executive order is similar to the Florida law, Texas’s requirements differ in one important way – HHSC’s form also requests the actual cost data, broken down by Medicaid/CHIP patients and non-Medicaid/CHIP patients. While the stated purpose of the executive order was to accumulate data regarding the costs to Texas taxpayers of the health care provided to undocumented patients so that reimbursement could be sought from the federal government, the HHSC form seeks overall cost information for non-Medicaid/CHIP patients, without revenue offsets for patients with private insurance or who pay out of pocket, leaving it susceptible to criticisms similar to the Florida law. However, the accounting of Medicaid/CHIP costs should provide data from which the approximately 30% paid by the State of Texas toward Medicaid and CHIP programs could be derived. These programs are available to undocumented immigrants under very limited circumstances – primarily for emergency stabilization. We can anticipate a better understanding of how this data will be used in January of 2026, after HHSC provides its first annual report to the Governor.
As Texas hospitals gear up to complete their first round of reporting, it is important for hospitals to be aware of all aspects of operationalizing this executive order. Further, for those curious about what these reports might show, Florida provides a preview as to how similar data has been packaged. However, the Texas data promises to provide different and unique view into the healthcare utilization of undocumented patients.
[1] The form required may be found on the HHSC website at https://pfd.hhs.texas.gov/sites/default/files/documents/hospital-svcs/exec-ordr-ga-46-form.pdf, and instructions regarding reporting requirements may be found at https://pfd.hhs.texas.gov/hospitals-clinic-services#ExecutiveOrderGA46ReportingFormAvailableforCollectionofonHospitalCostsRelatedtoImmigrationStatus.