By Micheal E. Hill
Thursday, October 29, 2009 - 8:55am EDT

[Updated on Octobe 29, 2009 - 10:25 am EDT

Informed sources indicate that the House Democratic Leadership will defy both President Barack Obama and the Senate Committee on Finance by declining to include a provision in the House health care reform bill that would bar undocumented aliens from purchasing health insurance in the health insurance exchanges that would be created under the measure.  Sources warn, however, that the House bill's treatment of undocumented aliens' access to health insurance exchanges could change, depending on public reaction.

The House Democratic Leadership is set to unveil the House bill at 10:00 am today during a rally on the West Front steps of the U.S. Capitol Building.  The full House of Representatives is expected to take up the measure next week. 
 

Treatment of Noncitizens in the Three House Bills
Generally speaking, as approved by the House Committee on Ways and Means, House Committee on Energy and Commerce, and House Committee on Education and Labor, H.R. 3200 would bar both undocumented aliens and most nonimmigrants from receiving health care benefits pursuant to the bill or from having federal funds spent on their behalf under the bill. The three versions of the bill would, however, include nonimmigrants, undocumented aliens, and legal immigrants in the list of persons who would either have to purchase health insurance or face a tax penalty for not having done so.

All three versions of H.R. 3200 would leave current law regarding the eligibility of aliens for Medicaid and the Children's Health Insurance Program (CHIP) unchanged.

During the House Committee on Energy and Commerce markup, Representative Zachary T. Space (D-OH) offered an amendment to provide that nothing in Title VII of Division B of the bill shall change current prohibitions against Federal Medicaid and CHIP payments under titles XIX and XXI of the Social Security Act on behalf of individuals who are not lawfully present in the United States.  The amendment was offered in response to criticisms from Republicans on the Committee that the bill did not contain any explicit language barring undocumented aliens from receiving health care benefits under the measure.  The Committee agreed to the Space Illegal Immigrant CHIP/MEDICAID Amendment by a voice vote.

 
Treatment of Noncitizens in the Senate Bill
It was not known at the time of this writing what the specific immigration provisions will be in the bill that Senate Majority Leader Reid will bring before the full Senate. However, it is anticipated that the bill's immigrant provisions will be closely patterned after the measure that the Senate Committee on Finance approved earlier in October.

The Senate Finance Committee bill would--

• Health Insurance Mandate.  mandate that legal immigrants (along with U.S. citizens) either purchase health insurance or be subject to a tax penalty;    
• Treatment of Illegal Immigrants Under Mandate.  exempt illegal immigrants from the mandate to purchase health insurance;    
• Illegal Immigrants and Health Insurance Exchanges.  bar illegal immigrants from purchasing health insurance in state or federal health insurance exchanges;  
   

• Health Insurance Exchanges and Mixed Families.  permit illegal immigrants to purchase health insurance in the exchanges for their U.S. citizen or LPR children; 

• Legal Immigrants and Affordability Credits.  permit legal immigrants to receive affordability tax credits to help them pay for health insurance without regard to the five-year waiting period under the law for Medicaid and the Children's Health Insurance Program (CHIP);

• Illegal Immigrants and Affordability Credits.  bar illegal immigrants from receiving affordability tax credits to help them purchase health insurance;

• Legal Immigrants with Expiring Immigration Status.  bar legal residents from receiving affordability tax credits to help them purchase health insurance if their legal status will expire within a year;

• Calculation of the Federal Poverty Level.  exempt illegal immigrants from the calculation of the Federal Poverty Level for the purposes of the bill; and

• Citizenship and Immigration Status Verification.  impose an immigration status verification regime on all persons --- citizens and noncitizens, alike -- seeking to purchase health insurance in the bill's health insurance exchanges.
  
  

Key Alienage-Related Health Care Reform Issues 
There are at least six key issues with regard to noncitizens and health care reform that must eventually be addressed: whether they will be covered under the health insurance mandate, whether they will be eligible for federal affordability subsidies or tax credits, what will be their access to the Medicaid program, access to the health insurance exchange, access to the public or nonprofit insurance option, and what regime will be used to verify immigration status.   

The following summarizes some of the major questions on each of those six issues--  

• Health Insurance Mandate.  Both the House and Senate health care reform bills are expected to include a mandate that virtually everyone in the United States obtain health insurance.  Such a provision raises questions, however, about the degree to which various sectors of noncitizens should have to comply with the mandate.  

The Senate bill is expected to require all legal residents to purchase health insurance but it is not expected to require illegal immigrants to do so.

H.R. 3200, the House health care reform bill, would mandate that both legal and illegal immigrants obtain health insurance. It is unclear at the time of this writing whether that provision will be maintained in the bill that the House Democratic Leadership unveils today.  

• Health Insurance Exchange. Both the House and Senate bills are expected to contain provisions establishing entities, referred to as "health insurance exchanges", which private sector insurance companies (as well as any nonprofit health entities that wish to provide health insurance) would use to make their health insurance products available to consumers.  The Senate bill is expected to preclude illegal immigrants from participating in the health insurance exchange.  At the time of this writing, informed sources indicate that the House bill that will be unveiled today will not contain such a bar.

Extrapolating from statistics contained in a Pew Hispanic Center April report, 4.9 million of the approximately 12 million illegal immigrants in the United States currently have health insurance and about 7.1 million do not.  Thus, if illegal immigrants are precluded from spending their own funds to purchase health insurance, nearly 5 million currently insured illegal immigrants could lose their health insurance coverage.

The White House and Department of Health and Human Services weighed in September on the issue, prompting the Senate Finance Committee provision that would bar undocumented aliens from the exchange.  The first indication from the Administration that this was the Administration's position came on September 10, 2009, when White House Press Secretary Robert Gibbs asserted the policy during questioning from reporters.  Immediately after he made his comments from the podium of the White House briefing room, many in the pro-immigrant advocacy community expressed disbelief and a hope that Mr. Gibbs was speaking from an ill-informed perspective on the matter.  However, in a Sunday, September 13, 2009, appearance on NBC News' Meet the Press, Mr. Gibbs made a stronger and less ambiguous assertion that President Obama opposes permitting illegal immigrants to make use of the proposed new health insurance exchanges.  Mr. Gibbs was joined on September 13 by Secretary of Health and Human Services Kathleen Sebelius who, during an appearance on ABC News' This Week confirmed that President Obama opposes allowing illegal immigrants to participate in the exchange.

The pro-immigrant advocacy community is opposed to barring illegal immigrants from using their own funds to purchase private health insurance.  They contend that should such a proposal be enacted into law, this could well be the first time that illegal immigrants would be barred from purchasing a product.  And they assert that this would make all of Americans less healthy and drive up the costs of health care for everyone.  Finally, the pro-immigrant advocacy community contends that in order to bar illegal immigrants from using their own funds to purchase health insurance, the federal government would have to impose an unwieldy, unworkable, and dangerous verification regime on all persons in the United States -- citizens and noncitizens, alike.

The immigration restrictionist community strongly supports barring illegal immigrants from participating in the health insurance exchange.  It also strongly supports a rigorous verification regime to enforce such a bar.

• Affordability Subsidy.  Both the House and Senate bills contain some form of a federal affordability subsidy or tax credit for individuals and families whose income is not so low that they must rely on Medicaid but is too low to afford to purchase health insurance. 

Both bills are expected to make the affordability subsidy and/or tax credits available to legal immigrants without requiring them to endure a waiting period.  They also are expected to bar undocumented aliens from receiving the subsidy or tax credit.

• Access to Medicaid and Medicare.  Both the House and Senate bills are expected to maintain and expand the Medicaid and Medicare programs.  The also would preserve current law that generally bars illegal immigrants from participating in the two programs; [1] bars legal immigrants from participating in the two programs for the first five years after entry; and deems the income and resources of most legal immigrants' sponsors to be available to them for the purposes of determining their eligibility for the two programs.

• Public/Nonprofit Insurance Option.  Both the House and Senate bills are expected to contain an option for some consumers to choose a health insurance plan run by the federal government rather than one that is run by private insurance companies.  It is expected that both bills will permit legal immigrants to participate in public plans without imposing a waiting period.   Both bills are expected to bar undocumented aliens from doing participating in a public plan. 

• Verification Regime.  Both the House and Senate bills will contain a regime for verifying whether a participating individual is lawfully present in the United States.

The Senate bill is expected to include verification of citizenship or immigration status using the SAVE system as the primary verification device, and it is expected to be used for at least three purposes: access to health insurance exchanges, participation in the public option, and access to affordability tax credits or subsidies.

The House bill also is expected to contain a verification regime.  At the time of this writing, it was not anticipated that the verification regime in the House bill would be used to verify immigration status for those participating in the exchange, but it was anticipated that it will be used to verify immigration status for those seeking to receive affordability tax credits or those seeking to participate in the public option.

Seeds of an Explosion
The issue of the eligibility of illegal immigrants for benefits and services under the various health insurance reform bills exploded into the public consciousness during the period immediately following a September 10, 2009, address by President Obama before a joint meeting of Congress.  During the President's address to Congress, Representative Joe Wilson (R-SC) interrupted the President during his address and called him a liar for asserting that his health care reform bill would not provide benefits to illegal aliens.  The firestorm that erupted as a result of Representative Wilson's outburst began a national conversation on the subject of immigrant eligibility for health insurance benefits and services that left pro-immigrant advocates deeply troubled.  Participants in that conversation included White House Press Secretary Robert Gibbs, Senate Finance Committee Chairman Max Baucus (D-MT), and Senator Kent Conrad (D-ND).  And that conversation culminated at week's end with a number of assertions by White House Press Secretary Robert Gibbs, Secretary of Health and Human Services Kathleen Sebelius, Chairman Baucus, and others.

One of the great ironies of this year's health insurance reform debate is that it could well leave immigrants worse off than they are under current law.  Barring illegal immigrants from participating in the proposed health insurance exchange could render nearly 5 million persons who currently possess health insurance unable to obtain coverage.  And verification regimes could render many legal immigrants who have unlawfully present family members in danger of losing coverage for their family members.