By Muzaffar Chishti and Claire Bergeron
Migration Policy Institute
October 15, 2009
As Congress enters the final stages of crafting a national health-care reform bill, immigration issues have emerged as one of the more contentious elements.
In particular, the debate has focused on three immigration issues: the extent to which legal immigrants should be eligible to participate in government-subsidized programs, whether unauthorized immigrants should receive any health insurance coverage, and what kinds of verification mechanisms should be implemented to ensure that those who are not eligible to participate in government-run insurance programs are excluded.
The United States is home to an estimated 12 million lawful permanent residents (LPRs) and 12 million unauthorized immigrants. Determining which immigrants will be covered under health-care reform is expected to affect the scope of reform, as well as the US health-care system itself.
The sensitivity around immigration became publicly apparent in early September, when Representative Joe Wilson (R-SC) interrupted President Barack Obama's speech on health care before a joint session of Congress.
Wilson protested the president's assertion that unauthorized immigrants would not be covered under his health-care plan. Although Wilson's outburst was widely criticized, the incident placed a sharp spotlight on the issue of immigration as part of the larger national health-care debate.
In contrast to Wilson's and the public's concern about unauthorized immigrants, congressional debate has focused on how the proposed health-care reform bills would treat LPRs. According to a recent report from the Migration Policy Institute (MPI), an estimated 4.2 million lawful permanent residents currently lack health insurance. Congress has not yet resolved the issue of how many of these immigrants may be eligible to participate in any new programs.
Five congressional committees have now approved health-care reform bills. Though the bills vary, each would expand federally funded Medicaid coverage to insure greater numbers of individuals, and would provide tax credits and government subsidies to residents earning below a certain percentage of the federal poverty level. Medicaid is only available to low-income individuals and families who meet eligibility requirements.
The bills would also create government-run "exchanges," through which individuals and small businesses could compare and shop for health insurance plans.
Central to the debate over health-care reform and LPRs is whether Congress, as part of a health-care reform bill, will eliminate their current five-year waiting period for access to Medicaid.
The 1996 Personal Responsibility and Work Opportunity Act (commonly known as welfare reform) barred LPRs from being eligible for Medicaid and other government welfare programs for the first five years of their permanent-resident status. Congress eased this restriction somewhat in January 2009, allowing states to decide whether to offer Medicaid and Children's Health Insurance Program coverage to pregnant women and to children who have been lawful permanent residents for less than five years.
Though the final versions of the health-care reform bills have not yet been determined, all of the current bills would maintain the five-year waiting period for Medicaid. Some members of Congress have also proposed applying the waiting period to government-sponsored tax credits and subsidies intended to offset the cost of purchasing health insurance. They argue that maintaining the waiting periods will help curtail the costs of these programs
Immigrant advocates have criticized the five-year bar, both on grounds of fairness and on cost-effectiveness. They note that because recent LPRs are working and paying taxes, they should be allowed to participate in government-subsidized plans in the same manner as long-term legal residents and US citizens.
Advocates also argue that upholding the waiting period will leave many vulnerable, low-income LPRs without insurance, and thus place an increased financial burden on hospital emergency rooms, which are required by law to provide medical treatment, regardless of whether a patient has insurance.
Earlier this month, a coalition of national, state, and local organizations, including the American Academy of Pediatrics, the American Hospital Association, and the US Conference of Mayors, wrote a letter to President Obama, asking that any health-care reform bill eliminate the five-year waiting requirement for LPRs.
Although the debate over LPRs remains unsettled, Congress has roundly rejected covering unauthorized immigrants. None of the bills currently pending would allow unauthorized immigrants to participate in an expanded Medicaid program or receive government subsidies or tax credits in exchange for purchasing insurance.
But lawmakers are divided on whether unauthorized immigrants should be allowed to purchase health insurance with their own money through government-run exchanges. A bill introduced by House Democrats, as well as a bill that passed the Senate Health, Education, Labor and Pensions Committee, would permit unauthorized immigrants to shop for insurance plans through the exchange.
In contrast, a recent bill passed by the Senate Finance Committee, and the White House's proposed health-care reform plan, would bar unauthorized immigrants from using the government-run marketplace.
Proponents of these plans have argued that allowing unauthorized immigrants to participate in government-run health insurance programs would raise costs and could encourage higher levels of unauthorized immigration.
Presumably, even if they were barred from purchasing insurance through the exchanges, some unauthorized immigrants might still continue to receive health insurance through their employers. Also, many unauthorized immigrants would benefit from provisions that require or encourage some employers to provide health insurance to their employees. Unauthorized immigrants would also be able to purchase private health insurance on their own.
Also contentious is the debate over how to verify eligibility. Most of the current bills require that the eligibility of those enrolled in government-subsidized health insurance programs be verified.
Critics, however, have argued that verification systems are expensive and burdensome. They note that requiring US citizens and LPRs to present documentary evidence of their status and eligibility could lead to some citizens and eligible LPRS being denied health insurance. Reports have suggested that when the government introduced document checks for Medicaid applicants in 2005, thousands of US citizens faced delays in their Medicaid coverage because of an inability to produce required eligibility documents.
The cost-effectiveness of a verification program is also unclear, given that most studies show little to no evidence of Medicaid fraud among unauthorized immigrants.
Immigrant advocates have generally argued that denying government-subsidized health insurance to unauthorized immigrants — as with limiting LPR participation in certain insurance programs — would only increase overall health-care costs.
Because immigrants, both LPRs and the unauthorized, tend to be young and relatively healthy, advocates say that including them in a reformed health-care system is economically advantageous, as they would help distribute costs across a broader group of people, potentially lowering insurance premiums.
Excluding unauthorized immigrants and some LPRs from government-run insurance plans would disproportionately impact states with large immigrant populations. The recent MPI report found that in California, New York, Texas, and Florida, costs could increase substantially for hospital emergency rooms, community health centers, and public health facilities — the few places where uninsured immigrants would be able to receive medical treatment.
ICE to Place Detained Immigrants Based on Their Security Risk
As part of ongoing detention reform and in response to concerns about immigration detention conditions, US Immigration and Customs Enforcement (ICE) plans to assess detained immigrants based on their security risk so they can be placed in appropriate facilities. The agency also plans to move away from using more costly prisons by converting hotels and nursing homes into detention space, according to ICE Assistant Secretary John Morton and Homeland Security Secretary Janet Napolitano.
Nonviolent and noncriminal aliens, including asylum seekers, will be placed in less restrictive settings.
In addition, ICE will ask Congress to expand its alternatives-to-detention program, which includes electronic monitoring and supervised release. The changes are part of ICE's new plan to overhaul the current detention model and create a new "civil" detention system. Morton announced the plan in August.
The decision to house nonviolent immigrants in separate facilities is one of a series of recommendations from Dr. Dora Schriro, former director of ICE's Office of Detention Policy and Planning. Schriro's recent report on ICE detention conditions also recommends that ICE place new detention facilities near consulates, pro bono attorneys, and facilities offering 24-hour emergency medical care.
ICE's system of immigrant detention has grown substantially in the past decade, from roughly 7,500 beds for detained immigrants in 1995 to the current 30,000-bed system. In fiscal year 2008, ICE supervised 378,582 immigrants who were either detained in ICE custody or placed in the alternatives-to-detention program.
In recent years, ICE's detention system has come under strong criticism from immigrant advocates and the media for failure to provide adequate medical care and sufficient access to telephones, mail, and legal representation. The agency has also been criticized for using state and local jails to detain immigration-law violators, despite the fact that many detainees have no criminal convictions.
Immigrant advocates and immigration attorneys have generally praised the Napolitano-Morton announcement. But they have also stressed that further reform of the current immigration detention system is still needed, calling on the government to create legally enforceable detention standards and reduce the number of immigrants held in detention.
Policy Beat in Brief
Drop in Foreign-Born Population. The number of foreign-born individuals living in the United States declined for the first time in almost four decades, according to 2008 data from the US Census Bureau. There were approximately 37.97 million foreign born residents in the United States in 2008, a decline of roughly 99,000 people since 2007. Experts have generally cited the rise in unemployment and the global economic recession as reasons for the decline.
DHS Task Force Recommendation on 287(g). The Department of Homeland Security (DHS) should limit the scope of its 287(g) immigration enforcement program to focus on identifying unauthorized immigrants already detained in state and local jails, according to the agency's Southwest Border Task Force. The 287(g) program allows state and local law enforcement agencies to enter into agreements with Immigration and Customs Enforcement (ICE) that allow local agents to enforce certain aspects of immigration law. The task force also recommended that Customs and Border Protection receive more funding to hire officers to staff points of entry, rather than to patrol the border between points of entry.
Immigration Detention Settlement. ICE will no longer hold immigrants detained at the B-18 detention facility in Los Angeles for more than 12 hours, under the terms of a settlement agreement with the plaintiffs in Castellano v. Napolitano. In April, the National Immigration Law Center, along with the American Civil Liberties Union (ACLU) of Southern California and the law firm Paul Hastings, filed suit against the government on behalf of immigrants detained at B-18, claiming that immigrants detained in the temporary holding facility were held for weeks at a time in crowded, unsanitary conditions.
Presidential Determination on Refugee Numbers. The United States will admit up to 80,000 refugees in fiscal year (FY) 2010, the same number as in FY 2009. According to the presidential determination, which President Barack Obama has signed, 15,500 refugees will be admitted from Africa (up from 12,000 in 2009), 17,000 from East Asia (down from 19,000), 2,500 from Europe and Central Asia (unchanged), 5,000 from Latin America and the Caribbean (up from 4,500), and 35,000 from the Near East and South Asia (down from 37,000). The unallocated reserve of 5,000 is unchanged from 2009. A recent report issued by the Department of State found that the United States admitted approximately 75,000 refugees during FY 2009.
Growth in Military Program for Foreign Born. More than 400 foreign-born residents, 69 percent of whom have at least a bachelor's degree, have enlisted in the US armed forces through a special Department of Defense pilot program, according to a recent report in the Los Angeles Times. Through the Military Accessions Vital to the National Interest Program, which the government implemented in February 2009, asylees, refugees, and nonimmigrant-visa holders with needed language skills or medical training may join the US armed forces. Previously, only US citizens and lawful permanent residents were eligible to enlist. The pilot program was designed to recruit up to 1,000 people and last up to 12 months.
Ineffective-Assistance Case before Supreme Court. The Supreme Court heard lively arguments in a case that turns on whether a criminal defense attorney's
incorrect advice on immigration matters constitutes "ineffective assistance of counsel." In Padilla v. Kentucky, petitioner Jose Padilla claims that the conduct of his criminal defense attorney amounted to ineffective assistance of counsel when the attorney told Padilla, a lawful permanent resident, that accepting a guilty plea for a drug trafficking charge would not affect his immigration status. Because the offense counted as an "aggravated felony" under the Immigration and Nationality Act, Padilla was ordered deported.
E-Verify Extension. Congress passed a resolution extending the federal E-Verify program for one month, until October 31, 2009, while the House and Senate debate provisions of a larger spending bill for DHS. E-Verify is an online system administered by DHS that enables US employers to check whether new employees are authorized to work in the United States by entering their biographic information into a government internet database. Without the extension, the program would have ended September 30.
State and Local Policy Beat in Brief
Firings at LA Company following Immigration Audit. The Los Angeles-based clothing manufacturer American Apparel plans to fire 1,800 of its employees — about a quarter of its workforce — because an ICE audit of company records found evidence that unauthorized workers were employed. In July, after Homeland Security Secretary Janet Napolitano said her agency would target US companies employing unauthorized immigrants, ICE audited more than 600 companies suspected of immigration violations, including American Apparel.
North Carolina Community Colleges and Unauthorized Immigrant Students. North Carolina's State Board of Community Colleges voted in favor of admitting students who are unauthorized immigrants, provided they graduated from US high schools and do not displace US citizens or legal residents. The new policy will also require unauthorized students to pay out-of-state tuition rates, roughly $7,700 each school year. The new rule will take effect in spring 2010.
Police Departments in Massachusetts and 287(g). The police departments in Framingham and Barnstable, Massachusetts, are no longer participating in ICE's controversial 287(g) immigration enforcement program. In Framingham, a suburb of Boston, the town police chief withdrew from the program because of concerns that 287(g) would undermine cooperation between the police and immigrant communities. The police chief of Barnstable, on Cape Cod, indicated that the federal government had terminated the town's 287(g) program soon after it began.
Nebraska E-Verify Law. A Nebraska law requiring all state agencies, public employers, and state contractors to use the federal E-Verify program to confirm the work eligibility of new hires took effect October 1, 2009. E-Verify, an internet-based program run by US Citizenship and Immigration Services, allows employers to check whether new employees are authorized to work in the United States by entering their names and other biographic information into an online database. More than 148,000 employers are currently enrolled in the E-Verify program.