LORIANNE SAINSBURY-WONG is the litigation
director for Health Law Advocates. NANCY
RYAN is Health Law
Advocates' Parmet Fellow.
The commonwealth's policy of near universal health care coverage
extends to noncitizens who are living lawfully in Massachusetts. In
April 2006, under then-Governor Mitt Romney, Massachusetts became
the first state to implement a near universal requirement for
health care coverage when the Legislature enacted chapter 58, § 45,
of the Acts of 2006, "An Act Providing Access to Affordable,
Quality, Accountable Health Care." A significant feature of this
law was the creation of affordable and comprehensive health
insurance that would be available to qualified low income
individuals who lawfully reside in Massachusetts.1 This
article provides an overview of the payers for health care coverage
that is accorded for the legal immigrant population. Covering legal
immigrants was first accomplished in Massachusetts with the state
acting as sole payer; however, pending federal public benefits law
may provide the necessary, economic support to sustain state health
care reform initiatives.2
The commonwealth's health care reform combines an insurance
requirement to obtain and maintain comprehensive coverage for
nearly all citizens and legal residents aged nineteen and older,
with state subsidies to assist low income residents on a sliding
scale basis.3 Specifically, to assist low income
residents in transitioning from costly emergency room services to
preventive care treatment, the Legislature created the Commonwealth
Care Health Insurance Program (Commonwealth Care).4 This
program essentially filled the gaps of existing public benefit
programs by subsidizing monthly premium costs for residents who
fell outside of Medicaid or MassHealth eligibility criteria and
whose household income did not exceed 300 percent of the Federal
Poverty Level (FPL).5 Before Commonwealth Care, the
poorest of the poor, for example a single adult earning less than
$11,172 or 100 percent FPL,6 was left uninsured unless
the individual had a disability or was otherwise categorically
eligible for Medicaid (MassHealth)7. Similarly, an
individual who had possessed lawful permanent residency to live and
work in the United States but who held such immigration status for
less than five years was also left uninsured. Commonwealth Care
established coverage for these disadvantaged
populations.8 In furtherance of the commonwealth's
policy of near universal coverage and to reduce health and ethnic
disparities, the commonwealth provides subsidies to allow qualified
residents to enroll in Commonwealth Care, the state's unique health
insurance program which benefits low income residents, including
disadvantaged populations who are noncitizens. Under this program,
the costs associated with health care coverage for legal immigrants
are funded entirely by the state and its residents.
Financial ramifications to state fiscs bearing full economic
responsibility for health care reform policies may be unsustainable
without federal support and legislation.9 Beginning in
2006, for example, the commonwealth incurred the costs associated
with state health care benefits for legal residents because it
receives no federal financial reimbursement under the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA).10 When during a state budget crisis the
Legislature terminated coverage only for legal immigrants, the
Massachusetts Supreme Judicial Court determined that these lawful
residents constitute a suspect class who are entitled to the state
constitutional rights of equal protection on the basis of national
origin and alienage. "Aliens, standing by definition outside the
body politic and yet subject to its laws, are a prototypical
example of the discrete and insular minority. In light of their
particularly vulnerable status, it thus remains necessary to
exercise heightened vigilance to ensure that the full panoply of
constitutional protections are afforded to the commonwealth's
resident aliens."11 Because of the decisions in
Finch v. Commonwealth Health Ins. Connector Auth., 459
Mass. 655 (2011) and Finch v. Commonwealth Health Ins.
Connector Auth., 461 Mass. 232 (2012), approximately 40,000
legal immigrants can be restored to full coverage.
In the Finch cases, the categories of the protected
class of legal immigrants can be understood according to the
national origin and alienage considerations of the putative class
representatives: a winner of the Diversity Immigrant Visa program,
also known as the United States Green Card Lottery; a family-based
immigrant visa holder; an applicant for political asylum; and the
beneficiary of an employer sponsored alien worker petition who
adjusted status to green card holder. The terminology used to
describe the putative class of legal immigrants in the
Finch cases is complex and overlaps with other state and
federal definitions.12 Regardless of the state or
federal terminology applied, these legal residents are documented
and can be classified as aliens who are lawfully residing.
The commonwealth requires verification of lawful status from
residents who apply for Commonwealth Care, and it subjects
residents to annual eligibility review
redeterminations.13 As such, the commonwealth coined the
term "Aliens with Special Status," "Special Status Aliens" or
"AWSS" to identify legal immigrants who were ineligible for
federally funded health insurance but eligible for Commonwealth
Care through state funds. Essentially, these individuals are
residing in the United States with the permission and knowledge of
the federal government. In general, these individuals possess
United States legal permanent residency, also known as "green
cards," for less than five years. The commonwealth also included
persons permanently residing in the United States under color of
law (PRUCOLs), pursuant to M.G.L. c. 118H, § 1, as otherwise
eligible for Commonwealth Care. PRUCOLs comprise an alien
classification that was eligible for certain federal public
benefits subject to the same conditions and terms as U.S. citizens
before 1996 but for whom federal public benefits were not available
after PRWORA. Thus, under current federal law, the commonwealth
does not receive federal financial participation for its costs
associated with insuring these legal residents.
The commonwealth's treatment of its legal immigrant population
vis-à-vis public health benefits is consistent with the Patient
Protection and Affordable Care Act of 2010, Pub. L. No. 111-148,
124 Stat. 119 (codified as amended in scattered sections of 42
U.S.C.) (hereinafter "ACA"). No later than January 1, 2014, the ACA
will create new state health insurance exchanges to provide
insurance coverage options for individuals "lawfully
present."14 The ACA does not define the term or
elaborate as to which categories of legal immigrants are lawfully
present and therefore included within the scope of the
ACA15. It identifies that "an individual shall be
treated as lawfully present only if the individual is, and is
reasonably expected to be for the entire period of enrollment…a
citizen or national of the United States or an alien lawfully
present in the United States."16 The ACA defines a
lawfully present individual as a "citizen or national of the United
States or an alien lawfully present in the United
States."17 An alien who is lawfully present may be
eligible for refundable tax credits that provide premium assistance
for insurance coverage under the American Health Benefit Exchange
When formulating the proposed Exchange rules, the Centers for
Medicare & Medicaid Services (CMS) adopted regulatory language
from a provision of the ACA, namely the Pre-Existing Condition
Insurance Plan (PCIP), to define "alien lawfully
present."19 The final interim rule for PCIP identifies
thirteen categories of individuals who are deemed "lawfully
present,"20 which were derived from the definition of
"lawfully present" in the Children's Health Insurance Program
(CHIP).21 According to CMS, the term "lawfully presents"
expands the former PRWORA qualified/nonqualified
distinctions,22 for example, to include individuals with
temporary protected status, asylum applicants, and persons with
approved visa petitions who applied to adjust status. CMS
purposefully sought to "align the [Exchange's] requirements for
lawful presence with that of the State option for Medicaid and
CHIP" because the Exchange will determine eligibility for Medicaid
and CHIP, in addition to permitting qualified individuals to
receive benefits under the Exchange.23 Specifically, to
verify the immigration status of the applicant and to determine if
the applicant is lawfully present, the Exchange "will transmit
information from the applicant's documentation and basic
identifying information to HHS [U.S. Department of Health and Human
Services], which will submit a request to [U.S. Department of
Homeland Security] and return the response to the
Relevant procedures and policies under the proposed federal
rules and the ACA mirror what has been occurring in Massachusetts
for six years. The commonwealth's legislative policy and recent
case law include low income individuals who are lawfully residing
in the United States as eligible for Commonwealth Care. Providing
public health benefits to aliens who are lawfully residing is
consistent with pre-PRWORA immigration and public benefits law. It
is also consistent with the ACA's minimum coverage provision which,
one could argue, is a valid exercise of Congress's powers under the
Commerce Clause, Art. I, Section 8, Cl. 3. Lawful residents who
live in the commonwealth with the permission and knowledge of the
federal government pay taxes, work, hold drivers' licenses, attend
schools, and contribute to the state as citizens do. Many are on
the pathway to U.S. citizenship through naturalization. Lawfully
present individuals should not be treated differently than U.S.
citizens solely on the basis of national origin and immigration
status with respect to eligibility for public health
Under the commonwealth's heath care reform and certain
provisions of the Patient Protection and Affordable Care Act, these
lawfully present individuals are included in health care reform.
Indeed, in 2014 the federal government will change its course of
post-PRWORA denials of financial reimbursement to states with
respect to the allocation of public benefits for low income legal
immigrants. Under the ACA, aliens who are lawfully present will be
subject to the federal health insurance mandate and will be
eligible for premium tax credits and cost sharing subsidies to
purchase insurance on the Exchange. The commonwealth's costs
associated with providing state health care coverage to this
protected class will ultimately be shifted to the federal
government as it implements financial incentives that support
access to health insurance for low income citizens and aliens who
are lawfully present.
1To promote the goals
of chapter 58, the General Court defined a "resident" eligible for
participation in Commonwealth Care to include ". . .
(TIALIC) a person who is not a citizen of the
United States but who is otherwise permanently residing in the
United States under color of law; provided,
however, that the person has not moved into the commonwealth for
the sole purpose of securing health insurance under this chapter .
. ." Mass. Gen. Laws ch. 118H, § 1 (emphasis added).
2This article was
written during the timeframe when the United States Supreme Court
will decide the constitutionality of landmark, federal health care
reform under the Patient Protection and Affordable Care Act of
2010, Pub. L. No. 111-148, 124 Stat. 119 (codified as amended in
scattered sections of 42
Dep't of Health and Human Servs. v. Florida, No.
11-398 (Nov. 14,
A Court decision is anticipated in late June 2012.
Id.; Mass. Gen. Laws ch.
118H, § 5.
4Commonwealth Care is
structured as a premium assistance program whereby low income
residents may be required to pay a portion of the monthly premium
charged by a health plan, with premium assistance payments paid by
the Commonwealth Health Insurance Connector Authority. Mass. Gen.
Laws ch. 118H, §§ 1-6.
5Commonwealth Care was
created distinct from Medicaid (MassHealth), which is defined as a
welfare program pursuant to federal
law. See, Mass. Gen. Laws ch.
118E, §§ 9, 9A.
6Annual Update of the
HHS Poverty Guidelines: Notices, 77 Fed. Reg. 4035 (January 26,
7In order to be
eligible for Commonwealth Care, a resident must not be eligible for
MassHealth. Mass. Gen. Laws ch. 118H, § 3(a).
8In addition to being
in eligible for MassHealth, the resident must meet the Commonwealth
Care eligibility criteria under Mass. Gen. Laws ch. 118H, §
9Brief of Amici Curiae
Health Care For All, Health Law Advocates in Support of Petitioners
at 5, Dept. of Health and HumanServs. v.
Florida, __ S. Ct. __ (2012) (No.
Finch v. Commonwealth
Health Ins. Connector Auth., 459 Mass. 655, 659
(2011) (Finch I).
1, at 655, 674-75
(internal quotations, footnote and citation omitted).
See, Children's Health
Insurance Program Reauthorization Act, Pub. L. No. 111-3. § 214,
123 Stat. 8, 56-57 (2009) (codified as amended in scattered
sections of 42 U.S.C.) (to be "lawfully residing," children and
pregnant women must be "lawfully present" in the U.S. and must meet
the Medicaid state residency
rules); c.f., 8 U.S.C. §
1641(b) (2006) ("qualified alien[s]" are lawful permanent residents
and certain other categories of noncitizens) and 8 U.S.C. § 1612(a)
(2006) (qualified aliens not eligible for Federal funds under the
Personal Responsibility and Reconciliation Act; listing
13956 C.M.R. 3.05(1)
(the Commonwealth's Office of Medicaid conducts operational
screening and eligibility determinations for Commonwealth Care
determining both financial eligibility and residence status); Mass.
Gen. Laws ch. 118H, § 1 (defining resident as ". . . a person who
is not a citizen of the United States but who is otherwise
permanently residing in the United States under color of law . .
14Patient Protection and
Affordable Care Act ("ACA"), Pub. L. 111-148, §§ 1311(b)(1),
1312(f)(3), 124 Stat. 173, 184 (2010).
15The ACA does, however,
expressly exempt "individuals not lawfully present" from
participating in the Exchange. ACA § 1412(d), 124 Stat. 233.
Further, the ACA disallows "federal payments, credits, or
cost-sharing reductions for individuals who are not lawfully
present in the United
16ACA §§ 1401(e)(2),
1402(e)(2), 124 Stat. 218, 223. Proposed Rules, released August 17,
2011 by the Centers for Medicare and Medicaid Services, outline the
eligibility determinations of the Exchange and shed light on the
applicable definition of "alien lawfully present." Patient
Protection and Affordable Care Act: Proposed Rules, 76 Fed. Reg. at
51206 (August 17, 2011) (to be codified at 45 C.F.R. 155.305). The
proposed rules represent the most recent release of information
from the Department of Health and Human Services on Exchange
eligibility. Comments on the proposed rules closed on October 31,
2011. 76 Fed. Reg. at 51202 (August 17, 2011).
17ACA § 1312(f)(3), 124
18ACA §§ 1101(d)(1),
1402(e)(2), 124 Stat. 142, 223.
1976 Fed. Reg. at 51206
(August 17, 2011) (to be codified at 45 C.F.R. 155.305).
Insurance Plan Program: Interim Final Rule 75 Fed. Reg. 45015-45016
(July 30, 2010)(to be codified at 45 C.F.R 152.14).
2175 Fed. Reg.
45015-45016 (July 30, 2010) (to be codified at 45 C.F.R
See, Ctrs. For Medicare
& Medicaid Servs., State Health Official Letter - Medicaid and
CHIP Coverage of "Lawfully Residing" Children and Pregnant
July 1, 2010, SHO #10-006, CHIPRA #17.
2376 Fed. Reg. at 51206
(August 17, 2011) (to be codified at 45 C.F.R. 155.305). To that
end, CMS intends to adjust the eligibility requirements of the
Exchange "to the extent that the Secretary amends the definition
for Medicaid and CHIP in future rulemaking." 76 Fed. Reg. 51206
(August 17, 2011) (to be codified at 45 C.F.R. 155.305).
2476 Fed. Reg. at
51211-51212 (August 17, 2011) (to be codified at 45 C.F.R.
Richardson, 403 U.S. 365, 376
(1971); Finch v. Commonwealth Health Ins.
Connector Auth., 461 Mass. 232, 249
(2012); Finch 1, at