Lawyers Journal

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 (Exchange).¹⁸

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 Exchange."²⁴

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 benefits.²⁵

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.

Lorianne Sainsbury-Wong is the litigation director for Health Law Advocates. Nancy Ryan is Health Law Advocates' Parmet Fellow.

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 U.S.C.). See,  Dep't of Health and Human Servs. v. Florida, No. 11-398 (Nov. 14, 2011), available at www.supremecourt.gov/docket/PPAACA.aspx. A Court decision is anticipated in late June 2012.

³ 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, 2012).

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, § 3(a).

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. 11-398).

¹⁰ Finch v. Commonwealth Health Ins. Connector Auth., 459 Mass. 655, 659 (2011) (Finch I).

¹¹ Finch 1, at 655, 674-75 (internal quotations, footnote and citation omitted).

¹² 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 exceptions).

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 States." Id.

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 Stat. 184.

 

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).

 

²⁰Pre-Existing Condition 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 152.14).

 

²² See, Ctrs. For Medicare & Medicaid Servs., State Health Official Letter - Medicaid and CHIP Coverage of "Lawfully Residing" Children and Pregnant Women, 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. 155.315).

 

²⁵ Graham v. Richardson, 403 U.S. 365, 376 (1971); Finch v. Commonwealth Health Ins. Connector Auth., 461 Mass. 232, 249 (2012); Finch 1, at 675.