Monday, November 2, 2009 - 7:00 am EST

The full House of Representatives this week is scheduled to take up legislation that would reform the nation's health insurance industry. Included in the measure are a number of provisions impacting the ability of both legal and illegal immigrants to access health insurance. While the bill that was introduced resolved a number of issues relating to immigrants' access to health insurance, three highly controversial immigration-related questions that were resolved in the introduced-version of bill could be reopened prior to the final vote in the House on the measure. 

This week's House floor action will occur in connection with H.R. 3962, the "Affordable Health Care for America Act of 2009". Members will likely engage in skirmishes relating to the bill as soon as Monday, October 2, 2009. However, the full House of Representatives will not likely begin formal consideration of the bill until Thursday, November 5, 2009, or later. The House is not expected to cast a final vote on the measure until Friday, November 6, 2009, or later.

The House Democratic Leadership unveiled H.R. 3962 during a Thursday, October 29, 2009, mid-morning rally on the West Front steps of the U.S. Capitol Building. Representative John Dingell (D-MI), the Dean of the House, introduced the 1,990 page-long measure.

• Health Insurance Mandate.  H.R. 3962 would require all residents (with the exception of some nonimmigrants) to maintain health insurance plans and subject those who do not adhere to the mandate to tax penalties.  Even undocumented aliens would be subject to the mandate under H.R. 3962.

• 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.
  
•  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.

• Health Insurance Exchanges.  H.R. 3962 would permit all immigrants to participate in the state health insurance exchanges created by the bill, including those not lawfully present.

• 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.

• Reaffirmation of Bar on Providing Medicaid or CHIP Benefits to Illegal Immigrants.  Section 1787 of H.R. 3962 would provide that nothing in Title VII 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 question of whether illegal immigrants should be barred from purchasing health insurance policies (as introduced, H.R. 3962 would not bar such transactions);

• the question of whether current law barring most legal immigrants from accessing Medicaid and other health programs for five years after entry should be repealed (as introduced, H.R. 3962 would not repeal such laws); and

• the robustness of the immigration status verification regime in the bill (as introduced, H.R. 3962's immigration status verification regime applies only to affordability subsidies and is modeled after the recently enacted regime that is found in CHIPRA).

Insiders expect the manager's amendment will be unveiled on either Monday, November 2, 2009, or Tuesday, November 3.


Treatment of Noncitizens in the Senate Bill
Even while the House is preparing to vote on its version of health care reform legislation, Senate Majority Leader Harry Reid (D-NV) is struggling to assemble a bill on the Senate side of the Capitol Building that will attract the 60 votes he needs to pass the Senate version of the measure.

It was not known at the time of this writing what the specific immigration provisions will be in the bill that 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 in mid-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.

• 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.
   

• HELLER IMMIGRATION STATUS VERIFICATION AMENDMENT.--Representative Dean Heller (R-NV) offered an amendment to H.R. 3200 that would have required an individual, before he is able to enroll in the public health insurance plan, to have his eligibility verified under the Income Eligibility Verification System and the Systemic Alien Verification System programs under the Social Security Administration. The approval would be the responsibility of the health insurance provider offering the public plan through the Health Insurance Exchange. The amendment also would have required enrollees to satisfy the same eligibility requirements before receiving an affordability credit.

 The Committee rejected the Heller amendment by a vote of 15-26.

• DEAL IMMIGRATION STATUS VERIFICATION AMENDMENT.—Representative Nathan Deal (R-GA) offered an amendment that would have required that the SAVE system be used to verify the immigration status of applicants for Medicaid benefits.[5]

• ESHOO COMPACT MIGRANTS MEDICAID ELIGIBILITY AMENDMENT.—Representative Anna G. Eshoo (D-CA) offered an amendment that would make migrants to the United States from Compact of Free Association Nations (including Micronesia, the Marshall Islands, and Palau) immediately eligible for Medicaid.[7]

• SPACE ILLEGAL IMMIGRANT CHIP/MEDICAID AMENDMENT.---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.[8]

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 manager's amendment to 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.