HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, May 27, 2014

Guest Blogger Professor John Jacobi: Ensuring Successful ACA Follow-Through Part 3: Undocumented Immigrants

John jacobiAn article on the front page of Memorial Day’s New York Times highlights an emerging health access concern for undocumented persons.  Hospitals – one of the few points of entry for undocumented persons to health care – are erecting barriers to care for the poor, on the grounds that the poor should be encouraged to take advantage of the programs and subsidies of the ACA.  That advice is hollow for the undocumented, shut out as they are from the ACA’s benefits.

The politics of immigration at the national level drove the exclusion of undocumented persons from coverage under the ACA.  As Bradford Gray and Ewout van Ginneken have noted, the United States is not the only country to restrict public funding for undocumented persons.  The reasons for European restrictions sound familiar: concerns that available health care is a “magnet” for immigration, and belief that adding new users will strain the health system’s capacity.  But they also point to familiar counterarguments: the human rights-based concern for the wellbeing of undocumented men, women, and children, and the pragmatic concern for sound public health measures. 

In my first guest post I noted that there are many important tasks that can improve ACA implementation, and that can be accomplished by states and private actors, and without a change in federal law.  Improvement of health care access for undocumented persons may be a peculiarly non-federal issue for the foreseeable future.

As the UCLA Center for Health Policy Research described in detail, undocumented persons are excluded from most of the coverage available in the ACA.  The ACA left in place most exclusions from Medicaid and CHIP (except for emergency care), and excluded the undocumented from premium subsides for private coverage.  The mean-spirited topper is the prohibition against undocumented persons purchasing on an exchange – even at full price.

The anti-immigrant arguments for these policies are familiar.  Gray and van Ginneken point to countervailing humanitarian concerns:

According to this argument, society should treat the poor or those who are vulnerable for a variety of reasons (e.g., age, fear, war trauma, language barriers), particularly when workers in many immigrant households do soci­ety’s dirty work.

They add public health concerns:  to protect society from illness and our health care system from avoidable costs, we should cover “services such as vaccination and prenatal care, as well as to provide treatment for communicable diseases.”

The US health system has taken some baby steps in this regard.  As the Kaiser Family Foundation describes, states are permitted to waive the five-year exclusion from Medicaid/CHIP for children and pregnant women who are lawful immigrants, and to provide prenatal care for undocumented women by extending CHIP to the unborn child.  As of about a year ago, 25 states have adopted the former option, and 15 states the latter.

What more can be done to extend health care to undocumented persons without changes in federal immigration law or the ACA?  Two important things:

      • KFF reports that 15 states use state funds to provide full health coverage for documented immigrants subject to the five-year exclusion, and that 8 states have used state funds to pay for limited-service programs for persons regardless of immigration status.  Whether these programs are seen as humanitarian measures or as a “pay me now or pay me later” exercise in pragmatism, they are programs that can be replicated and expanded, where the will and the state or private funding is available.
      • Both Gray and van Ginneken, and the UCLA Center for Health Policy Research, point out an alternative route that seems particularly salient in light of the Times article on emerging barriers to hospital care.  It will be essential to increase direct funding to safety net providers – community health centers and safety net hospitals in particular.  As the Times article makes clear, hospitals are losing DSH funding as the ACA kicks in, and will therefore have fewer dollars to support programs for people shut out of the insurance systems.  Such direct funding will permit safety net providers to offer programs for the poor regardless of immigration status – while prudently and carefully encouraging those who are eligible for Medicaid or subsidized exchange coverage to gain insurance coverage.  The efforts need not be large, and they can be implemented with private funds and volunteer labor, as a Philadelphia clinic profiled in the New York Times demonstrates

It is unlikely that immigration or federal health policy will change in the near future.  State-level and private actors can, however, piece together appropriate medical services for undocumented persons in the meantime, assuring compassionate service, protecting the public health, and removing a fiscal strain from safety net providers.

- Professor John Jacobi

[cross-posted to Health Reform Watch ]

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