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Ability of Illegal Aliens to Use Their Own Funds to Purchase Health Insurance is Still In Peril as the House Prepares for a Saturday Vote on Health Care Reform
By Micheal E. Hill
Thursday, November 5, 2009 - 8:45 am EST
Capitol Hill sources indicate that, despite winning twice in the last week on the issue in internal battles among Democrat s, the Congressional Hispanic Caucus (CHC) is still facing an uphill struggle in its attempt to prevent the House Democratic Leadership from inserting a provision in the House health care reform bill that would bar illegal immigrants from using their own funds to purchase health insurance. The issue is almost certain to come up late this afternoon in a meeting between President Obama and representatives of the CHC, and it could make for a difficult meeting. Some CHC members are angry with the President, whose Administration sparked the debate on whether illegal aliens should be barred from purchasing health insurance with their own funds. Sources indicate that officials in the Obama Administration, including White House Chief of Staff Rahm Emanuel, continue to aggressively advocate for the provision. Many CHC members fear that enactment of the proposal could well cause millions of illegal aliens and their U.S. citizen or permanent resident family members to lose health insurance that they currently have.
The CHC scored a major victory late on Tuesday, November 3, 2009, when House Speaker Nancy Pelosi (D-CA) withstood pressure from a fellow-member of the Democratic Leadership who wants to bar illegal immigrants from using their own funds to purchase health insurance. However, that victory may turn out to be short-lived. Reports from Capitol Hill indicate that House Democratic Congressional Campaign Committee (DCCC) Chairman Chris Van Hollen (D-MD), who twice now has unsuccessfully pressed the Speaker to insert the controversial idea into the House health care reform bill, continues to press for including it in the bill that the full House of Representatives could vote on as soon as Saturday.
Speaker Pelsoi has twice declined to agree to Representative Van Hollen's pleas. In rejecting them, the Speaker -- for the moment, at least -- has dodged threats from several CHC Members who have warned that they would not support bringing the Health Care reform bill before the full House of Representatives if the Van Hollen proposal is included in it. The House Democratic Leadership's whip count on the vote is so close that, were those threats carried out, the Leadership could well find it impossible to pass the bill that has become the Democratic party's and President Obama's top legislative and political priority.
The decision by the House Democratic Leadership to reject the Van Hollen proposal was made in connection with H.R. 3962, the "Affordable Health Care for America Act of 2009". As introduced in the House, the 1,990 page-long measure includes a number of provisions impacting the ability of both legal and illegal immigrants to access health insurance. The Speaker's Tuesday decision was in response to the question of whether a provision barring illegal immigrants from purchasing certain health insurance products should be added to the measure by including it in a "manager's amendment" to the bill. The manager's amendment was filed with the House Committee on Rules late Tuesday night, November 3, 2009. It (and the bill) is not expected to be voted on until Saturday, November 7, 2009, at the earliest.
At the same time that the House Democratic Leadership rejected Representative Van Hollen's plea that they agree to bar illegal immigrants from purchasing health insurance, the Leadership did agree to include a new provision in the bill that would subject persons seeking coverage in the high risk pools that are established by the bill to a citizenship and immigration status verification procedure.
Speaker Pelosi's decision on Tuesday to leave the Van Hollen proposal out of the "manager's amendment" to the House health care reform bill marked marks the second time in the last week that it has rejected the proposal that illegal immigrants be barred from purchasing health insurance products with their own money. The Leadership initially rejected the proposal at the time that they introduced H.R. 3962 in the House of Representatives. Representative Van Hollen and a small number of moderate Democrats were seeking to convince the Leadership to revisit that decision in the manager's amendment.
The proposal to bar illegal immigrants from purchasing health insurance products with their own funds was initially made by the Obama Administration. Soon after the Administration's endorsement of the proposal, the Senate Finance Committee decided to include it in its version of health care reform legislation. More specifically, the Senate Finance Committee-approved and Obama-endorsed provision would bar illegal immigrants from purchasing health insurance plans that are listed on the health insurance exchanges created pursuant to the Senate Finance Committee's health insurance bill.
Parliamentary Situation
The full House of Representatives will likely take up H.R. 3962 under a procedure that bars all but two floor amendments to the measure. The first will be a "manager's amendment" to the bill that would make a number of changes reflecting compromises that the House Democratic Leadership believes it needs to make in order to win passage of the measure. The second is expected to be a Republcan Substitute for the bill. The procedure also will likely provide Republicans with an opportunity to offer a motion to recommit the bill just prior to the vote on final passage.
Summary of Immigration- and Refugee-Related Provisions
As introduced, H.R. 3962 is a combination of compromises brokered by the House Democratic Leadership and provisions that were contained in bills produced by three House Committees: the House Committee on Ways and Means, House Committee on Energy and Commerce, and House Committee on Education and Labor.
The following summarizes the treatment of noncitizens under the measure --
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Affordability Credits. H.R. 3962 would provide "affordability credits" to persons who are not poor enough to qualify for Medicaid but who cannot afford to purchase health insurance on their own. Legal immigrants would be eligible for affordability tax credits, but under section 347 of the bill, aliens who are not lawfully present and nonimmigrants would not be eligible for such credits. The House bill contains several exceptions to the bar on nonimmigrant eligibility for affordability tax credits. T, U, V and K Visa holders would be eligible for affordability credits, despite the fact that they are nonimmigrants.
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Citizenship and Immigration Status Verification. Section 341(b)(4) of H.R. 3962 would establish a verification regime, based on the regime in the recently enacted Children's Health Insurance Program Reauthorization Act (CHIPRA), for persons who seek to access affordability credits. All persons, including United States citizens, would be required to undergo verification of their citizenship or immigration status.
Under the procedure, a person seeking affordability credits would make a declaration of United States citizenship or of lawful presence. Persons declaring that they are citizens would undergo one verification process. Persons claiming to be lawfully present in the United States would undergo a different process.
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Five-Year Waiting Period for Medicaid and Medicare. H.R. 3962 would maintain current law regarding the eligibility of aliens for Medicaid, Medicare, and the Children's Health Insurance Program (CHIP) unchanged.
Seeds of an Explosion
The House Democratic Leadership has defied both President Barack Obama and the Senate Committee on Finance by declining to bar undocumented aliens from purchasing health insurance in the health insurance exchanges that would be created under the measure. While the bill, as introduced, does not contain a bar on undocumented aliens' access to health insurance exchanges, Hill insiders warn, that the manager's amendment could impose a bar on illegal immigrants' access to the health insurance exchanges.
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.
Representative Joe Wilson (R-SC) interrupted the President during his address, calling him a liar for asserting that his House health care reform plan 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 exchanges, as the Senate bill would do, could render nearly 5 million persons who currently possess health insurance unable to obtain coverage. And overly burdensome verification regimes could render many legal immigrants who have unlawfully present family members in danger of losing coverage for their family members.
Legislative History
H.R. 3962 owes its existence to a predecessor bill, H.R. 3200, which was introduced in the House of Representatives by Representative John Dingell (D-MI) on July 14, 2009. H.R. 3200 was marked up during the Summer by three House Committees. The House Committee on Education and Labor considered H.R. 3200 during three days of markups, approving its version of the measure on July 17, 2009. The House Committee on Energy and Commerce considered H.R. 3200 during four days of markups, approving its version of the bill on July 31, 2009. The House Committee on Ways and Means considered H.R. 3200 during two days of markups, approving its version of the measure on July 17, 2009.
The immigration-related provisions in H.R. 3692 are substantially similar to those in H.R. 3200. However, there is one significant exception. H.R. 3962 contains a verification regime for persons seeking to obtain affordability subsidies. There was no such provision in H.R. 3200.
Views of the Advocacy Community
The pro-immigrant advocacy community would like to see a number of changes to H.R. 3962 in order to make health insurance more accessible to immigrants. However, the community has become resigned to the fact that the bill, itself, will not be amendable on the House floor.
Chief among the pro-immigrant advocacy community's goals is its desire to repeal the five year-long waiting period for legal immigrants to access Medicaid and CHIP, as well as to repeal the sponsor/deeming regime for Medicaid and CHIP that most legal immigrants must adhere to. Given the parliamentary situation that is expected to be in force, the only way to achieve this goal will be to convince the House Democratic Leadership to place the provisions into the manager's amendment.
The immigration restrictionist community is unhappy that the bill does not bar undocumented aliens from purchasing health insurance through the bill's health insurance exchanges, and believe that the verification regime in the bill is not rigorous enough.
Outlook
It was not possible at the time of this writing to predict whether the House Democratic Leadership will include any immigration-related provisions in the rule providing for consideration of H.R. 3962. Moreover, it was not possible at the time of this writing to predict whether the House Democratic Leadership will be able to assemble the 218 votes it will need in order to pass H.R. 3962.
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