New Executive Order Could Restrict Medicaid Coverage for Non-U.S. Citizens Seeking Immigration Benefits

We have written in the past about the link between Medicaid and immigration.  Last October, we described a proposed rule issued by the Department of Homeland Security that would strengthen the “public charge” grounds for inadmissibility to the United States.  If this proposed rule is finalized, many non-U.S. citizens seeking immigration benefits (such as a visa, adjustment in status or naturalization) could see those benefits denied if they utilized public benefits such as Medicaid.

Last week, President Trump signed a new Executive Order that will likely take an additional step to curtail the use of public benefits by immigrants – in this case, immigrants on whose behalf a sponsor is petitioning for permanent residence (i.e., a green card).  Although the Executive Order itself does not contain any new legally enforceable requirements, it does direct members of the President’s cabinet to more aggressively enforce a 1990s-era law that, in the President’s view, is not sufficiently enforced.

Those of us here at the Medicaid and the Law blog have an interest in the intersection between Medicaid and immigration law and we thought we would take the time to break down the new Executive Order and explain what it is all about and what it might mean going forward.

The new Executive Order has its genesis in a law signed by President Clinton in 1996 called the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA, and try to say that three times fast).  Section 423 of PRWORA added a new section 213A to the Immigration and Nationality Act that was designed to ensure that an immigrant does not become a “public charge” – in other words, making sure that the immigrant does not utilize a “means-tested public benefits program.”  That term includes, among other benefits, non-emergency Medicaid benefits.

The 1996 law enforced this requirement in many ways, including by requiring the “sponsor” of an immigrant to file an affidavit of support with immigration officials.  This affidavit of support must attest that, if the putative immigrant does not have a minimum level of income, the sponsor must guarantee that he or she will hold the federal and state governments harmless from the costs incurred by the immigrant in utilizing most public benefits.  So, for example, if an immigrant needs surgery to correct a hernia, and the cost of that surgery is $15,000, Medicaid cannot pay for it and if Medicaid does erroneously make a payment, the sponsor must pay Medicaid back the $15,000.

Under the 1996 law, this affidavit of support must be in the form of a legally binding contract that binds the sponsor and that is legally enforceable against the sponsor by the immigrant, the federal government, and any state which provides a mean-tested public benefit to the immigrant.

According to President Trump, the agencies responsible for enforcing section 213A “are not adequately enforcing these requirements.”  He went on to say that these agencies “have insufficient procedures and guidance” for implementing the 1996 law.

Hence, his new Executive Order.  Under the terms of the Order, the Departments of Health and Human Services and Agriculture (the Agriculture Department administers the supplemental nutrition program) are required, within 90 days after the enactment of the Executive Order, to establish and update procedures to enforce the law and guidance to all entities responsible for enforcing the affidavits of support.  Moreover, this guidance must include, among other things, procedures for notifying the Attorney General of a sponsor’s non-payment and the ability of the Attorney General to bring a civil action against a sponsor.  The relevant agencies are also required to inform the states of their obligations under the 1996 law.

It remains to be seen how these agencies will respond, but at the very least, we expect that CMS will be issuing additional guidance to state Medicaid agencies and to the public about how it interprets and how it will enforce the repayment requirements.  And, we are also awaiting the issuance of the final public charge rule, which also affects the use of Medicaid by immigrants.  As we have long said, there is an important link between Medicaid and immigration law.

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