Immigrant Eligibility for Public Health Insurance in NYS

Amy E. Lowenstein Senior Health Attorney Empire Justice Center March 28, 2017 © 2017 Empire Justice Center What will we cover?

. Review, Definitions and Concepts • Review income eligibility for Marketplace programs • Citizenship and immigration statuses • Benefits-related immigration classifications . Immigration classifications and eligibility for: • Medicaid • Child Health Plus (CHP) • Essential Plan (EP) and Qualified Health Plans (QHP) with or without advanced premium tax credits (APTC) or cost sharing reductions (CSRs) • Emergency Medicaid 2 • HIV Uninsured Care Programs a.k.a. ADAP (income ≤ 435% FPL) Marketplace Affordability Programs

400%

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250%

200% 223% 223%

150% 155% 154% 138% 138% 100%

50%

0% Childless Parents 19-20 Year Children 1-18 Infants <1 Pregnant Adults Olds Living Women 3 w/Parent MAGI Medicaid Essential Plan CHIP APTC + CSR APTC How do you become a U.S. citizen?

. Birth: born in the U.S., Puerto Rico, the U.S. Virgin Islands, Guam, or Northern Mariana Islands . Acquisition: born abroad but one or both parents are U.S. citizens (automatic, by operation of law). . Derivation: under 18 years old and a permanent resident when the parent with whom living naturalizes (automatic, by operation of law) . Naturalization: apply for citizenship after having been in lawful permanent resident status (LPR) for a minimum of 5 years (3 for spouses of U.S. Citizens (USC)) 4 Who is not a U.S. citizen?

. “Alien”- not a U.S. citizen or national (born in American Samoa) . Aliens are classified as either immigrants or nonimmigrants • Non-immigrants: permission to enter the U.S. for a particular purpose for a specific period of time – not for permanent residence • Immigrants: everyone else who is not a U.S. citizen or national and who does not fall into one of the non-

immigrant categories 5 Nonimmigrant Visa Alphabet (common examples)

. : visitor for . J visa: cultural exchange business or pleasure . K visas (fiancé, spouse, . F and M visas: students child of USC) . H visas: workers . : trafficking victim . O and P: people with . : victim of crime special abilities-artists, . V visa: spouse of LPR scientists, athletes, etc.

6 Defining “Immigrant”

. Immigration and Nationality Act uses a definition of exclusion  everybody who is not a nonimmigrant is an immigrant . “Immigrant” is sometimes used more narrowly by government agencies (e.g. IRS) to refer to someone who has lawful permanent residence, can work without restriction and travel. . NOTE: permanent residence is not entirely permanent. It can be lost if the LPR stays out of the country for longer than 6 months or is convicted of a particularly serious crime. 7 What Are the Benefits Related Categories? . Qualified Aliens: noncitizen eligibility category created by 1996 welfare reform law to list (and limit) classes of noncitizens who are eligible for federal public benefits (including Medicaid) . PRUCOL (permanently residing under color of law): “catch all” category used in New York and some other states to describe those who are not “qualified aliens” but are here with the knowledge and permission or acquiescence of USCIS/ICE . Lawfully Present: noncitizen eligibility classification introduced in 2008 to cover children and pregnant women at state option in CHP/Medicaid. Later ACA 8 adopted as the immigrant eligibility classification for QHPs and EP Who are “qualified aliens”?

. Permanent residents . Granted parole status of (including conditional at least one year residents) . Victims of a severe form . Refugees, asylees, of trafficking granted withholding of . Battered spouses and removal children of USC or LPR . Cuban/Haitian Entrants - petitioning under VAWA Cubans and Haitians who . Lawfully residing armed entered the US with service members and parole status after veterans October of 1980 9 Parole status

. Humanitarian parole allows a person to enter the US who would otherwise not be allowed, due to a compelling humanitarian or public safety emergency • Anyone can apply, but must submit evidence and explanation • No appeal rights • Must leave before expires

10 Coverage for Qualified Aliens

.Medicaid (federal) .Child Health Plus (CHP) .Essential Plan (EP) .Qualified Health Plan with or without • Advance Premium Tax Credits (APTC) • Cost Sharing Reductions (CSRs) .ADAP 11 Qualified Aliens & 5 Year Medicaid Bar . Cannot receive FEDERAL Medicaid in first 5 years in qualifying alien status . Instead get EP 3 or 4 with partial State Medicaid wrap . Applies to: • Lawful Permanent Residents • Paroled for one year or more • Battered spouses and children of USC or LPR petitioning under VAWA . Exceptions: • Children under 21 12 • Pregnant women Lawfully Present

. Noncitizens in a . Approved immigrant visa “qualified alien” status and pending adjustment . Nonimmigrants of status application . . Deferred Action Order of Supervision with EAD . Deferred Enforced . Departure (Liberians) Applicants for the following who have EAD: . TPS status • withholding of removal . Parole of less than 1 year or cancellation . Stay of removal • Asylum • TPS . Applicant for Special 13 Immigrant Juvenile (SIJ) • Registry Coverage for Lawfully Present who are not Qualified Aliens . Federal Medicaid if under 21 or pregnant (some pregnant women need EAD too), or applying for SIJS . State Medicaid if in non-MAGI category . Essential Plan 3 or 4 with partial Medicaid wrap if MAGI adult (not pregnant) . Essential Plan 1 or 2 . QHP with or without APTC and CSR . Child Health Plus

. ADAP 14 Coverage of Non-immigrant Visa Holders . Additionally must demonstrate NYS residency • Have you or your child(ren) applied to adjust your status to become a legal permanent resident? • Do you currently work in New York State? • Does your child(ren) go to school in New York State? • Do you own your own home in New York State? • Do you rent a house or apartment in New York State? . Issues • Non-residents who can answer the questions affirmatively. Residents who cannot answer the 15 questions affirmatively Noncitizens who are PRUCOL-Only . Applicants for an immigration benefit who do not have EAD . “Registry aliens” without a pending permanent residence application . Individual with Deferred Action under DACA . Individual under an Order of Supervision without EAD . Certain immigrants who are not considered “lawfully present” under the Affordable Care Act, but are still eligible for some benefits. 16 Coverage for PRUCOL-Only Immigrants

. PRUCOL-Onlys eligible for: • State Medicaid • Child Health Plus • ADAP . NOT eligible for • QHP, with or without APTC or CSR • Essential Plan 17 Immigrants Without Status

. Entry Without Inspection (EWI): came into U.S. at a place other than a port of entry and without inspection . Visa Overstay: Entered with but stayed after their visa expired . Eligibility for public health insurance: • Child through age 18  CHP • Pregnant  Medicaid • All others  Emergency Medicaid and ADAP . Can pre-certify for Emergency Medicaid through the Marketplace 18 Families with Marketplace- Eligible and Ineligible Members . An ineligible family member (non-applicant) may complete an application on behalf of eligible family members (applicants) . Applicants and non-applicants will be asked for their SSN but will not have to provide one if not eligible for SSN • ITIN (Individual Taxpayer Identification Number) cannot be used in lieu of SSN . Applications may not request the citizenship or immigration status of an individual who is not seeking coverage for him or herself 19 Verification of Status through the “Federal Data Hub”

. Marketplace and Counties match info on immigration documents with data in DHS records – use the SAVE system . Most common documents are: • I-94 Arrival Departure record • Permanent resident card • Employment Authorization card • Visa in a foreign passport • I-797 Notice of Action . The codes on documents are key to understanding applicant’s status 20 . Applicants for Emergency Medicaid only DO NOT have their immigration status verified Notes on the Essential Plan and Immigrants . If Marketplace cannot immediately verify immigration status with federal hub, ALL who are income eligible are put temporarliy in EP 3 or 4 (with Medicaid wrap) . Once status is verified, put in appropriate program • PRUCOL Only  State Medicaid • Qualified Alien not subject to 5 year bar  Federal Medicaid • Lawfully present and not qualified alien  EP 3 or 4 . Many problems with immigration status not verified, documents inappropriately rejected, incorrect 21 determinations Current Immigration Consequences of Using Medicaid & Other Programs . ICE currently does not use information provided to SAVE for civil immigration enforcement (2013 policy) . Currently only a person who uses federal Medicaid to pay for long term institutional care (e.g., nursing home) may be considered a “public charge.” . Receipt of community-based Medicaid, EP, CHP, tax subsidies, or cost sharing reduction are not currently considered in “public charge” determinations. 22 Public Charge Rule

. Immigrant or visa holder who is likely to become, or within first 5 years residing in U.S. becomes “primarily dependent on the government for subsistence” • Exception if show need from causes that arise after entry . Benefits that currently can lead to Public Charge determination: • Medicaid Long Term Institutional Care (e.g., Nursing Home) • Cash Assistance (welfare) • Supplemental Security Income (SSI) . Public Charge determinations look at the totality of the 23 circumstances, not just receipt of one of the benefits Public Charge Rule

. Possible Consequence of Public Charge Determination: denial of entry, denial of or other immigration benefit, removal (in extreme cases) . Who is affected? • Immigrants seeking admission to U.S. • Immigrants & nonimmigrants admitted to U.S. for less than 5 years • Immigrants seeking a green card (adjustment of status) . Who is Exempt (primarily): • Asylees/Refugees • VAWA self petitioners 24 • U & T visa holders • Children with Special Immigrant Juvenile Status Sponsor Liability

. Certain noncitizens apply for an immigrant status or green card have to have a “sponsor.” Sponsor can be a U.S. citizen or an LPR. . Sponsor signs Affidavit of Support  creates liability to federal, state or local agency for immigrant’s receipt of any “means tested benefit.” . Means tested benefits – federally funded Medicaid, CHP, SNAP, family assistance, safety net assistance . Sponsor can be sued for support (NYS has not pursued sponsor liability) 25 DRAFT Public Charge EO: What Could Change? . Public Charge determination – • Receipt of more federal benefits could count towards public charge  benefits for which eligibility or amount based on “income, resources, or financial needs” • Receipt of federal benefits could be the only factor or the strongest factor in a public charge determination . Sponsor Liability – more vigorous enforcement of liability 26 Questions?

For help on immigrant-related health insurance questions, contact Empire Justice Center at (800) 724-0490 ext. 5822 or [email protected]

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