Health Care for Immigrants and Their Families

1
Health Care for Immigrants and Their Families

• Gabrielle Lessard, J.D.
• National Immigration Law Center
• Sept. 12, 2003

2
Immigrants in Our Communities

• Slightly more than 10.4 of the U.S. population
  is foreign born
• 39.5 of foreign born persons residing in the
  U.S. emigrated during the 1990s
• 28 states had more than 100,000 foreign born
  residents in 1996

3
Settlement Patterns are Changing
Immigration Categories Major Destinations (70 of
Immigrants ) (6) Traditional States (gt250K in
1920) (8) New Growth States (1990-99gt50) (19) Oth
er States (18)
4
Immigrant Families

• 1 out of every 5 children in the U.S. has at
  least one immigrant parent
• 85 of immigrant families are mixed status
  families
• 37 of all children of immigrants live in
  families that worry about or encounter
  difficulties affording food, compared with 27 of
  children of citizens.

5
More Immigrants Are Poor

• Percent of Population below poverty level (In
  Percent)

Source Current Population Survey, March 2000,
PGP-3
6
Access to Medical Care

• Children of immigrant parents are more likely to
  be uninsured and less likely to have a regular
  source of medical care

Source Urban Institute - 2001
7
Barriers to Health Insurance

• Immigrants are less likely than citizens to have
  job-based health insurance
• Eligibility rules and other barriers inhibit
  immigrant families access to public programs

8
Eligibility
9
1996 Welfare Law

• The Personal Responsibility and Work Opportunity
  Reconciliation Act (PRWORA) Imposed
• Distinctions between qualified and not
  qualified immigrants
• A five-year ban on federally funded TANF,
  Medicaid and SCHIP for most qualified immigrants
  who entered the U.S. on or after 8/22/96
• Harsh deeming rules and potential sponsor
  liability for immigrants whose sponsors sign
  enforceable affidavits of support (INS Form
  I-864)
• State options to provide or deny certain benefits
  to qualified immigrants

10
Federal Eligibility Rules

• Qualified Immigrants 
• Lawful Permanent Resident (LPR) 
• Refugee, Asylee, Granted Withholding of
  Deportation/Removal
• Conditional entrant 
• Paroled into U.S. for at least 1 Year
• Cuban/Haitian Entrant
• Battered Spouses and Children under VAWA
• Victims of Trafficking (not qualified but they
  can get benefits)
• Not-Qualified Immigrants 
• All others, even if lawfully present or PRUCOL
•  

11
Five Year Bar

• Qualified immigrants who entered the country on
  or after August 22, 1996 do not qualify for
  Medicaid or SCHIP until they have been in
  qualified status for five years
• Does not apply to Emergency Medicaid
• Exceptions
• Veterans and their spouses/dependants
• Persons fleeing persecution includes
• Refugees, Asylees, Persons granted withholding
  deportation/removal,
• Victims of Trafficking
• Cuban/Haitians entrants, Amerasian immigrants

12
Five Year Bar continued

• Entry before August 22, 1996
• No requirement for status at time of entry
• Must be qualified at time of application
• Continuous physical presence required
• No single absence of more than 30 days
• 90 days aggregate
• Entry on or after August 22, 1996
• Must be in Qualified status for five years
• (unless in a mandatory coverage group)

13
State Replacement Programs

• Almost half of all states use their own funds to
  cover not qualified immigrants and/or
  immigrants subject to the five-year bar
• Programs can provide a safety net for low-income
  immigrants ineligible for federally-supported
  programs
• Vulnerable to state budget shortfalls

14
Programs Without Immigration Status Restrictions

• Emergency Medicaid and other emergency medical
  services
• Immunizations, testing and treatment for symptoms
  of communicable diseases (outside of the Medicaid
  program)
• Short-term non-cash disaster relief
• Certain housing assistance if receiving on
  8/22/96
• WIC (state option), School Lunch, School
  Breakfast, Summer Food Service Program and Child
  and Adult Care Food Program
• Programs delivered at the community level, that
  do not condition assistance on income or
  resources and are necessary to protect life or
  safety

15
Programs Without Immigration Status Restrictions
Prenatal Care

• New rule from HHS gives states an option to
  provide SCHIP during period from conception to
  birth
• Coverage is available without regard to mothers
  immigration status
• Postpartum care is covered only where services
  are bundled
• Unanswered questions include states ability to
  impose residency requirements and to determine to
  what extent a woman may receive care for
  conditions not directly related to the pregnancy.
  

16
Access Barriers
17
Sponsored Immigrants

• Sponsors assist many immigrants in becoming LPRs
• Sponsors sign an affidavit of support as
  evidence that an immigrant will not become a
  public charge
• Effective December 19, 1997, persons sponsoring
  relatives must sign an enforceable affidavit of
  support

18
Enforceable Affidavit I-864

• Never used before December 19, 1997
• Only used by
• Immigrants who apply for a green card through a
  family member
• Immigrants who apply for a green card through an
  employer if the employer is a relative or if
  relatives owns 5 of the business

19
Sponsors Obligations I-864

• Must show that they earn enough income to support
  a household that includes the immigrant at 125
  FPL
• Sponsors may need to repay means-tested benefits
  (including federal non-emergency Medicaid and
  SCHIP) used by the sponsored immigrant as an LPR
  Sponsor Liability
• Effective until the sponsored immigrant has
  credit for 40 quarters of work in the US or
  becomes a citizen

20
Sponsored Immigrants and Public Benefits

• Sponsor Deeming
• A sponsors income may be counted as available
  to the immigrant when he/she applies for
  Full-scope Medicaid or SCHIP
• New affidavit of support only
• No deeming for Emergency Medicaid, or
  immunizations or testing and treatment of
  communicable diseases (outside of Medicaid)
• Exceptions
• Domestic Violence
• Hungry or Homeless
• Reporting may be required

21
Sponsored Immigrants and Benefits

• Sponsor Liability
• Sponsors who execute the enforceable affidavit
  of support, I-864, may be required to repay
  benefits used by the sponsored immigrant
• Emergency Medicaid, or immunizations, testing and
  treatment of communicable diseases (outside of
  Medicaid) are excluded
• Questions about limits of liability
• States are not required to pursue sponsors

22
Public Charge

• An immigrant who has become or who is likely to
  become primarily dependent on the government for
  subsistence, as demonstrated by either the
  receipt of public cash assistance for income
  maintenance or institutionalization for long-term
  care at government expense.

Source INS and DOJ Public Charge Guidance,
Issued May, 1999
23
How is the Public Charge Test Applied?

• Public Charge is totality of the circumstances
  test that looks to the future
• Factors that must be considered
• Age
• Health
• Job/Job Skills/Education
• Income/Assets
• Family to support
• Affidavit of Support

24
What are the Consequences of a Public Charge
Determination?

• Denial of application for lawful permanent
  residence (LPR)
• Denial of entry into the U.S. for LPR who has
  traveled abroad for more than 180 days
• In rare cases, removal (deportation) of LPR

25
When is Public Charge an Issue?

• Most common situations
• Persons applying to become lawful permanent
  residents (LPRs or green card holders)
• Adjustment application within the United States
• Visa application at U.S. Consulate abroad
• Lawful Permanent Residents
• LPRs who have been out of the U.S. for more than
  6 months
• Rarely, LPRs may face deportation (removal) if
  they meet an extremely narrow test.

26
When is Public Charge Irrelevant?

• Public Charge questions are IRRELEVANT for
• Applicants for Naturalization (citizenship)
• Exception fraud in obtaining benefits or LPR
  status
• Refugees, persons granted asylum or withholding
  of deportation/removal
• Amerasian immigrants
• Cubans applying for adjustment of status under
  the Cuban Adjustment Act
• Cubans and Nicaraguans applying for adjustment of
  status under the Nicaraguan Adjustment and
  Central American relief Act (NACARA)

27
When is Public Charge Irrelevant?

• Public Charge questions are IRRELEVANT for
• Haitians applying for adjustment of status under
  the Haitian Refugee Immigration Fairness Act
• Registry applicants (residing continuously in the
  U.S. since January 1, 1972)
• Lautenberg parolees
• Certain Indo-Chinese, Polish and Hungarian
  parolees applying for adjustment of status
• Special immigrant juveniles

28
Domestic Violence Survivors

• Persons who file a self-petition for an
  immigrant visa under the Violence Against Women
  Act are subject to the public charge test at the
  time of their green card interview.
• However, they can use all benefits, including
  cash assistance, without affecting the public
  charge decision.

29
Which Benefits Are Considered in Making the
Determination?

• Cash received for income maintenance
• TANF
• Supplemental Security Income (SSI)
• Long term care in nursing home or mental health
  institution
• Institutionalization for short periods of
  rehabilitation does not constitute primary
  dependence. State Department Cable, May 25,
  1999 on pg. 2

30
Which Benefits Are Not Considered ?

• Current, past or future use of non-cash benefits
• Special Purpose cash benefits
• Cash benefits that are earned (including Social
  Security)
• Non-cash benefits include
• Medicaid (except long-term care)
• State Childrens Health Insurance Program (SCHIP)
• Food Stamps
• WIC
• School Lunch

31
Which Benefits Are Not Considered ?

• Non cash benefits include
• Other health insurance and health services
  including
• Immunizations
• Emergency medical services
• Testing treatment of communicable diseases
• Use of health clinic
• Short-term rehabilitation services
• Educational assistance
• Head Start
• Elementary secondary education
• Higher education

32
Special Purpose Cash Benefits

• Payments for purposes other than income support,
  including
• Housing benefits
• One-time diversion payments under TANF
• Child care services
• Energy assistance, i.e., LIHEAP
• Emergency disaster relief
• Foster care and adoption assistance

33
Caveats -- Public Charge

• Discretionary Remedies
• Immigrants applying for suspension of
  deportation, cancellation of removal and other
  discretionary remedies are not subject to
  public charge determinations. Nevertheless, some
  immigration judges consider their receipt of
  benefits to be a factor in deciding whether to
  approve their applications.

34
Caveats -- Public Charge

• HIV Waivers
• Persons with HIV who are applying to adjust to
  lawful permanent residence status must also
  overcome the communicable disease ground of
  admissibility. They can apply for a waiver of
  these grounds if they overcome a three-part test.
  Use or potential use of government-funded health
  care (such as Medicaid and Refugee Medical
  Assistance) may be weighted in this test.
  Exception refugees with HIV can use these
  benefits without affecting their chances of
  getting an HIV waiver.

35
Special Issues

• Current use of cash welfare by applicant
• Can be outweighed by other factors
• Use of cash by family members
• Only relevant if sole support
• Past use of cash welfare by applicant
• Amount and time passed are factors
• Sponsoring family members
• Use of benefits is not a factor so long as income
  test is met
• Repayment
• INS should not suggest or require repayment of
  benefits as a condition of admission or
  adjustment

36
Verification Requirements

• Public agencies must verify immigration status
  for specified federal public benefit programs
  that are not exempt from immigrant restrictions.
• Agencies should determine eligibility based on
  all other factors before verifying immigration
  status
• Benefits should be paid pending the results of
  verification
• Non-profit charitable organizations are not
  required to determine, verify or otherwise ask
  for proof of an immigrants status
• Agencies may not require SSN or immigration
  status from non-applicant household members or
  parents applying for their children. Parents
  will need to demonstrate proof of income.

37
Reporting Requirments

• Under federal law, immigrants who apply for TANF,
  SSI, Food Stamps or Housing Assistance, and who
  are unlawfully in the U.S., may be reported to
  the BICE.
• Reporting requirement only applies to applicants
  and not to family members who are not seeking
  benefits for themselves.
• There are NO reporting requirements for Medicaid,
  SCHIP or any other programs not listed above.
• State can only know that someone is unlawfully
  in the U.S. if there is an INS determination of
  unlawful presence, such as an order of
  deportation (Just suspecting someone is
  undocumented is not enough).

38
Barriers to Quality Care

• Language Barriers
• communicating symptoms and medical history
• Granting informed consent
• Understanding treatment instructions
• Cultural Issues
• Nonverbal interaction
• Family decision making/dynamics
• Understanding of disease and treatment

39
Access Barriers

• Poorer Outcomes
• delayed or incorrect diagnosis
• noncompliance with treatment plan
• Higher Costs
• more time/tests/visits required for diagnosis
• patients return with same condition
• Liability Risk
• more patient dissatisfaction

40
Culturally Appropriate Care

• Standards for Culturally and Linguistically
  Appropriate Services (CLAS) - HHS Office of
  Minority Health
• 65 Fed. Reg. 80865-80879 (December 22, 2000).
• Guide health care organizations and providers to
  promote equal access to quality health care for
  diverse populations
• Diverse and culturally competent staff
• Organizational competence
• Data collection and performance evaluation
• Consumer and Community input
• Interpretation/translation

41
Language Access

•  Title VI of the Civil Rights Act of 1964
• Prohibits discrimination on the basis of race,
  color or national origin in programs and
  activities receiving federal financial assistance
•  Executive Order 13166
• 65 Fed. Reg. 50,121 (August 16, 2000)
• Clarifies Title VI obligations
• Agencies providing federal financial assistance
  must provide guidance for recipients of federal
  funds
• All federal agencies must prepare plans to
  improve LEP individuals access to their
  federally conducted programs and activities  

42
PENDING FEDERAL LEGISLATION

• Immigrant Childrens Health Improvement Act (HR
  1689, S 845)
• (ICHIA)
•  
• A state option to provide Medicaid and the State
  Childrens Health Improvement Program (SCHIP) to
  lawfully residing pregnant women and children
  regardless of when they entered the U.S.  
• In states choosing this option, eliminates
  deeming and sponsor liability for health
  benefits used by these immigrants.
• The Congressional Budget Office estimated that
  this legislation would provide coverage for about
  155,000 children and 60,000 pregnant women per
  year.
• Included in Senate passed Medicare bill (S.1)

43
PENDING FEDERAL LEGISLATION (TANF)

• HR 4 passed by the House on February 13, 2003.
  The bill includes no immigrant restorations.
• House and Senate extended the current TANF
  program until September 30, 2003. The welfare
  law was scheduled to expire June 30th, 2003.
• Senate Finance Committee MAY take up TANF
  reauthorization Wednesday, July 30, 2003. The
  proposal put forward by Senate Finance Committee
  Chairman includes no immigrant restorations.
• Priorities include
• ICHIA
• Restoration of TANF benefits (gives states the
  option of using federal TANF funds to provide
  both cash and services to lawfully present
  immigrants in their first 5-years in the
  country).
• Repeal section 411 and allow states the
  flexibility of using the state dollars to best
  serve the states population.