Immigrant Access to Health

Coverage
The Exchanges, Medicare, and Medicaid
 Table of Contents
 Immigration Basics

 Affordable Care Act Exchanges (Massachusetts

Health Connector)

 Medicare

 Medicaid/MassHealth

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 Immigration Basics

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 U.S. Immigration Policy
 Immigration law primarily governed by the Immigration Nationality Act (INA)

 Can be divided into two sides of the same coin:

Facilitation of migration flows into Restriction of entry to and removal
the United States of persons from the United States

Permanent Migration Temporary Migration (two

(family and employer- dozen categories of visitors,
sponsored categories, including foreign tourists, Border Enforcement Detention and Deportation
diversity visa, refugee and students, temporary
asylee admissions) workers, and diplomats)

 Relevant enforcement agencies are a part of the Department of Homeland Security and include:

Department of Homeland Security (DHS)

U.S. Citizenship and Immigration Services (USCIS)

Customs and Border Protection (CBP)

Immigration and Customs Enforcement (ICE)

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 Terminology
 The term aliens refers to people who are not U.S. citizens, including
those legally and not legally present

Legal Aliens

Immigrants Nonimmigrants
(Lawful
Permanent (Temporary
Residents) Visitors)

 Refugees/Asylees are not treated as “immigrants” initially

Lawful Permanent
Refugees/Asylees Granted Asylum Residents (after 1
year)

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 Health Insurance Exchanges

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 Health Insurance Exchanges
 ACA required each state to establish an “Exchange”
- Marketplace to purchase a qualified health plan with subsidies available
for individuals with income between 100% - 400% FPL
- Comprehensive coverage

 Federal government operates Exchanges in states that did not

establish own
- State-Based Marketplace (11 states and DC)
- State-based Marketplace with Federal Platform (5 states)
- State-Partnership Marketplace (6 states)
- Federally-facilitated Marketplace (28 states)

 Massachusetts has state-based marketplace called “Massachusetts

Health Connector”

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 Health Connector Enrollment
 Lawfully present immigrants are eligible for Health Connector and
for Exchange subsidies based on income
- 5-year bar does not apply

 Lawfully present immigrants category is BROADER than lawful

permanent residents (LPRs) and include:
- Qualified non-citizens
- Humanitarian status
- Non-immigrant visas
- Legal status conferred by other laws

 Lawfully present immigrants with income <100% FPL who do not

qualify for Medicaid can qualify for Exchange subisdies

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 Medicare

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 Medicare Benefits
 Medicare is a public health insurance program divided into four
parts:

Part A • Institutional services (hospital, SNF, home health, hospice)

(Hospital Insurance) • Available on premium-free basis for fully insured enrollees

• Professional services (physician, hospital outpatient, medical

Part B equipment)
(Medical Insurance) • Available with the payment of a premium

Part C • Part A and B coverage through private insurance carriers

(Medicare Advantage) • Beneficiary must elect to participate

Part D • Coverage of most outpatient, self-administered prescription

(Prescription Drug drugs
• Beneficiary must elect to participate
Coverage)

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 Medicare Eligibility
 Individuals can qualify for Medicare through any of three different
avenues:

End-Stage Renal
Age Disability Disease
• 65 years of age • Disabled within • Diagnosed with
• 40 quarters of definition of Social ESRD
coverage in Security Act • Effective three
Social Security • Receipt of SSDI months after
covered benefits for 24 beginning dialysis
employment months
• Individuals
diagnosed with
Amyotrophic
Lateral
Sclerosis (ALS)
qualify
immediately

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 Medicare and Immigration Status
 Lawful permanent residents (LPRs) may be eligible for Medicare
Parts A & B under ordinary criteria:
- Individual may have requisite age (>65) and work history (40 quarters)
• NOTE: LPR could also qualify for premium “buy-in” Medicare if they have
insufficient work history and do not satisfy other two criteria, but 5-year bar
applies to them in this case
• NOTE: Some nonimmigrants (and refugees/asylees) with work authorization
may count their work history toward the 40 quarters even though they are not
yet LPRs or naturalized U.S. Citizens
- Individual may be receiving SSDI for requisite period (24 months)
- Individual may have ESRD diagnosis

 Unlawfully present (i.e. undocumented) immigrants are ineligible to

qualify for Medicare under any of the eligibility criteria

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 Medicaid

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 Medicaid and CHIP Overview
 Medicaid is a jointly-financed (state and federal government) public
health insurance program for low-income individuals
- Children may qualify separately from their parents through the Children’s
Health Insurance Program (CHIP)

 States must follow federal guidelines and provide comprehensive

coverage, but certain details around coverage and costs may be
different from state to state
- Prescription drug coverage is optional under the statute, but all states
offer it

 Medicaid/CHIP benefits may be provided directly by the state or

through private insurance companies. The vast majority of Medicaid
enrollees obtain coverage through private managed care plans.

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 State Flexibility Regarding Medicaid
 States have broad flexibility in administering their Medicaid
programs, including establishing eligibility criteria for groups beyond
required by federal law

 Can provide coverage for non-covered populations with state-only

funding

 Congress can provide states options for covering some populations

with federal match
- E.g., 2009 CHIP reauthorization permitted coverage of legal immigrant
pregnant women and children without waiting period

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 Medicaid and Immigrants Generally
 Qualified Immigrants are eligible for Medicaid and CHIP if they meet
the state’s eligibility and income criteria
- Lawful Permanent Residents > 5years
- Refugees/Asylees, Cuban/Haitian entrant, Victims of Trafficking, etc.
• NOTE: 5-year bar does not apply to this group

 Lawfully Present Immigrants NOT eligible for Medicaid because of

5-year waiting period (the “Five Year Bar”)
- After 5-years, a category of these Lawfully Present Immigrants become
Qualified Immigrants

 All immigrants—even undocumented immigrants—qualify for

emergency Medicaid (assuming they meet the state’s eligibility
criteria)

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 Massachusetts Medicaid (MassHealth)
 MassHealth = Medicaid + CHIP

 Ambitious managed care model with vertical integration

 Eligibility
- Adults <138% of FPL
- Children <300% of FPL
- Many other eligibility categories with corresponding forms of coverage

MassHealth
CommonHealth CarePlus
Standard

Small Employee
Family
Premium Limited
Assistance
Assistance

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 MassHealth Coverage – Different Types
MassHealth Standard
• Pregnant women, children, young adults, disabled individuals, certain persons with HIV, etc.
• Comprehensive benefit package
CommonHealth
• Disabled adults and children not eligible for MassHealth Standard
• Comprehensive benefit package
CarePlus
• Childless, low-income, able-bodied adults aged 21-64
• Rich benefits – May provide Premium Assistance to help pay for private insurance
Family Assistance
•Children, young adults, certain noncitizens and persons who are HIV positive and ineligible for
MassHealth Standard, CommonHealth, and CarePlus
•Rich benefits – Could provide Premium Assistance to help pay for private insurance
•Does not cover nursing facilities or personal care attendant
Limited
• All immigrants (including undocumented)
• Emergency Services Only

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 MassHealth and Immigration Status
 Robustness of coverage depends on immigration status
- MassHealth will almost always have benefits available for individuals
regardless of their immigration status:

MassHealth Limited
• Coverage - Emergency services for acute & severe medical problems; very
limited chronic conditions (e.g., outpatient dialysis)
• Eligibility – Adults>133% FPL & Kids<150% FPL

Children’s Medical Security Plan

• Coverage - Primary care and preventive services
• Caps Rx ($200/year), DME, dental ($750/year), and mental health visits
(20)
• Eligibility – Uninsured children aged 0-18

Health Safety Net

• Coverage – Pays for care delivered at acute care hospitals and community
health centers (NOT INSURANCE)
• Eligibility – Any Mass resident (even if not a US citizen) <400% FPL

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 SUMMARY

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 Categories of Legal Status
 Lawfully Present Immigrants
- Qualified Immigrants
• Lawful Permanent Residents > 5 years
• Refugees/Asylees, Cuban/Haitian entrant, Victims of Trafficking, etc.
- Qualified Immigrants Time Barred
• Lawful Permanent Residents < 5 years
- Nonqualified Individuals
• Visa Holders/Authorized Employment
• Temporary Protected Status, Parolees, etc.
 Non-qualified PRUCOL (“Persons Residing Under the Color of Law”)
- Non-citizen living in U.S. with knowledge/consent of DHS whose departure won’t
be enforced
- DACA
- Pending application for legal status
- Indefinite stay of deportation or indefinite voluntary departure
- Suspension of deportation

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 Immigrant Status and Health Benefits
Qualified Immigrants Eligible to Receive Same Benefits as
• LPRs with more than 5 years of legal presence U.S. Citizens:
• Refugees, asylees, and individuals granted withholding of removal • Eligible to participate in Health Insurance Exchanges and Receive
(regardless of 5-year waiting period) Subsidies
• Eligible for Medicaid, including Medicaid Expansion
• Eligible for Medicare

Lawfully Present Immigrants Eligible to Receive Some Benefits:

• LPRs with less than 5 years of presence (unless LPR as a result of
refugee/asylum as noted above)
• Non-immigrants (students, work visas, etc.)
• Applicants for Asylum
• CHIPRA Option (lawfully present pregnant women and children)
• Eligible to participate in Health Insurance Exchanges and receive
subsidies
• Some Categories Eligible for Medicare
• NOT Eligible for Medicaid (because of 5-year bar)

Undocumented Immigrants NOT Eligible For Any Benefits

• Individuals not lawfully present • NOT Eligible for the Health Insurance Exchanges
• Youth with Deferred Action for Childhood Arrivals (DACA) • NOT Eligible for Medicaid
• Deferred Enforcement Initiative •Eligible for Medicaid Emergency Services
• NOT Eligible for Medicare

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 Children Ages 0-18

MassHealth Standard
• If lawfully present and income <300% of FPL (no 5 year bar)

MassHealth Common Health

• If disabled and lawfully present and ineligible for MassHealth
Standard
MassHealth Family Assistance
• If PRUCOL status and income <200% FPL

MassHealth Limited
• If undocumented and <150% FPL (infants, 200%)

Health Connector
• If lawfully present and income 300-400% FPL

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 Practice – Case Studies

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 Case Study
 Question: Mesfin is a citizen of Ethiopia. He entered the
United States legally on a B-1 visitors visa at Logan Airport on
January 15, 2018. On July 20, 2018, he applied for asylum in
the United States. He is a childless adult and his income is
80% of the FPL. He lives in Maine, a state that has not
implemented the Medicaid expansion under the ACA. What
health insurance programs is he eligible for?
 Answer:
- Mesfin does not qualify for Medicaid. He is not categorically eligible
(and Maine has not expanded Medicaid), he is not a U.S. citizen, he
is not a qualified immigrant.
- Mesfin may purchase a health plan on the Exchange and qualify for
subsidies. This is true even though, if he were a U.S. citizen, his
income would be too low to purchase a plan on an Exchange; he can
here because Maine has not expanded Medicaid.

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 Case Study
 Question: Juan is a citizen of Guatemala. He entered the United
States without inspection at Eagle Pass, Texas in August, 2018. He is
now living without documentation or work authorization in Revere,
Massachusetts. Juan has undiagnosed high blood pressure and
presents at the East Boston Neighborhood Health Center emergency
unit with “the worst headache of my life” in November, 2018. He is
seen by an emergency physician and given a prescription for Lisinopril
and Tenormin and told to visit a primary care physician or clinic after
Thanksgiving. What is Juan’s financial responsibility?
 Answer:
- MassHealth Limited will pay for the emergency visit. Section 1903(v)(3) of the Social
Security Act authorizes payment for services provided to an alien not legally present in
the U.S. if they are suffering from an “emergency medical condition.” Juan’s
headache meets the definition of an emergency medical condition.
- MassHealth will not pay for the follow-up visit to the clinic or refills of the prescription,
but it may be covered by EBNHC’s HRSA grant.
- Juan does not qualify for Medicaid or the Exchange subsidies.

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 Case Study
 Question: Alicia is a citizen of Honduras. She entered the United States without
inspection at San Diego, California on May 12, 2018. She was detained at the border
and paroled into the United States on May 14. She arrived in Lawrence,
Massachusetts on June 1, 2018 and applied for asylum because she has a well-
founded fear of persecution based on her membership in a particular social group
(fear of gang violence). On October 15, 2018, her asylum application was approved.
Alicia’s children are not with her (although she has applied for them to come to the
U.S. on derivative status). Her income is 90% of the federal poverty level. What
public health insurance programs does she qualify for? What about her children?
 Answer:
- Alicia qualifies for MassHealth under the Medicaid expansion. She does
not qualify for an Exchange subsidy because her income is too low, not
because of her immigration status. If Alicia lived in Maine or another
state that had not expanded Medicaid, she would qualify for an Exchange
subsidy, but not for Medicaid (because she is a childless adult and the
state had not adopted the Medicaid expansion).
- When they arrive, Alicia’s children will qualify for traditional MassHealth,
likely MassHealth Standard, not because of the expansion.

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 Case Study
Question: Park Tae-hyun is a South Korean citizen
attending Boston University and is living in the U.S. on an
F-1 student visa. His income is 110% of the federal
poverty level. BU does not offer health insurance
coverage that constitutes minimum essential coverage.
Can he purchase a health plan on the Exchange? Can he
qualify for MassHealth?
Answer:
- Yes, he can purchase a health plan and qualify for subsidies on
the Exchange.
- No, he cannot qualify for MassHealth. However, if Tae-hyun lived
in a state that had not expanded Medicaid, and even if his income
was under 100% FPL, he could qualify for Exchange subsidies,
even though a U.S. citizen could not.

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 Case Study
 Question: Han Eun-hae defected from North Korea in
2010 and transited through China and Laos before
arriving in the United States as a refugee in 2014. She is
a childless adult and lives in Maine; her income is 80%
of the federal poverty level. Does Eun-Hye qualify for
the Medicaid expansion?
 Answer:
- No, because Maine has not yet implemented the Medicaid
expansion. She also does not qualify for Medicaid because she is
a childless adult. If Eun-hye lived in Massachusetts, she would
qualify because of the Medicaid expansion, but not for
MassHealth Standard.
- Eun-hye would, however, qualify for Exchange subsidies in
Maine. As is the case with the preceding case study, she would
not qualify for Exchange subsidies if she was a U.S. citizen.

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 Case Study
 Yong-lee Kim is a citizen of South Korea. She arrives at Kennedy Airport
on October 1, 2014 and is admitted under the visa waiver program.
 Yong-lee becomes pregnant in December, 2014. She overstays her visa.
In March, 2015, Yong-lee applies for asylum in the US when she is living in
Boston. Her income is 50% of the FPL. Does she qualify for MassHealth?
- Yes. Massachusetts is one of the 29 states that has adopted the CHIPRA
option. Even though Yong-lee does not meet the five-year bar or other
MassHealth eligibility standards, she is lawfully present (as an asylum applicant)
and is a pregnant woman who is otherwise eligible.
- Although Yong-lee’s asylum application is tenuous (to say the least, not to
mention that she applied too late), it is unlikely that MassHealth would assess the
strength of her asylum application when deciding her eligibility. An asylum
applicant can remain in the US, possibly with work authorization, while their
application is pending.
- Yong-lee’s baby, when he or she is born, will be a US citizen and will qualify for
MassHealth.

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 Thank you!

Thomas Barker
Partner, Co-Chair, Healthcare Practice
Foley Hoag LLP
202.261.7310
tbarker@foleyhoag.com

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