HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Wednesday, September 5, 2012

ACA and Legal Immigrants

Since passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PROWRA), immigrants entering the US legally have been for the most part ineligible for state Medicaid, at least for their first five years of lawful permanent residency.   One of Congress's arguments for excluding legal immigrants from "welfare" was that Medicaid attracted people to the US--but that if they were on notice that it would not be available, they would not form reasonable expectations of coverage.  Only the spectre of 40,000 nursing home residents on Medicaid in Miami-Dade County being turned into the streets kept Congress from applying the exclusion to non-citizens in the country before the enactment of PROWRA.  In enacting PROWRA, Congress appears to have forgotten that there is an important sense in which we all have interests in our fellow residents' access to health care: decreasing risks of transmission of contagious disease.

The Affordable Care Act will bring some changes.  It makes legal immigrants eligible for subsidies for coverage they purchase and makes them subject to the requirement to maintain minimum coverage.  Legal immigrants will, however, remain ineligible for federal Medicaid dollars for the first five years of lawful permanent residency.  Illegal immigrants are specifically excluded from the individual mandate, are barred from purchasing insurance through state exchanges, and are not eligible for any ACA supports. (For a useful summary, see the Congressional Research Service, Treatment of Noncitizens under the Patient Protection and Affordable Care Act, http://www.ciab.com/WorkArea/DownloadAsset.aspx?id=2189)

Enter Massachusetts.  As part of its 2006 health reform, Massachusetts had extended its premium subsidies for low and moderate income residents to legal immigrants.  But when the 2009 budget shortfall hit, the legislature eliminated Commonwealth Care coverage for legal immigrants ineligible for federal benefits under PROWRA.  (For this group, Massachusetts had borne the full cost of any subsidies under its federal Medicaid waiver for Commonwealth Care).  Advocates for immigrants challenged the exclusion under the state constitution.  In January, 2012, the Massachusetts Supreme Judicial Court held that the exclusion was discrimination on the basis of alienage or national origin and could not survive strict scrutiny. Finch v. Commonwealth Health Ins.Connector Auth., 461 Mass 232 (2012). An account by two of the counsel for plaintiffs in the case, Lorianne Sainsbury-Wong and Wendy Parmet, went up on ssrn in August, http://ssrn.com/abstract=2117815, and is decidedly worth reading.

I've run a search on this blog for discussions of the Finch case, or for more general discussions of the circumstances of immigrants under ACA.  I apologize to readers and my fellow bloggers if I've missed a prior discussion--but I couldn't find one and thought this issue was worth keeping before readers' minds in any event. States considering expanding Medicaid eligibility under ACA will surely face revenue pressures--and may, like the 2009 Massachusetts legislature, curb any impulses of inclusion towards their non-citizen residents. Without advocates such as Sainsbury-Wong and Parmet, their colleagues, and students at Northeastern University Law School, legal immigrants outside of Massachusetts may simply be left out in the (contagious) cold.

[LPF

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