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Senate Finance Committee to Markup Health Care Reform Bill Containing
Yet-to-Be-Specified Immigrant Restrictions
By Micheal E. Hill
September 14, 2009 -- 9:05 am
Senate Committee on Finance Chairman Max Baucus (D-MT) last week announced plans to mark up a health care reform bill that will contain yet-to-be-specified restrictions on the eligibility of noncitizens to participate in and benefit from the bill's provisions. Chairman Baucus is expected to release the text of his bill on or before Wednesday, September 16, 2009, and the Senate Committee on Finance is expected to begin to markup the measure next week. It was not known at the time of this writing what immigration-related provisions will be in the bill. Word of the impending introduction and markup of the Baucus bill comes as the issue of noncitizens' eligibility for benefits and services under the various pending health care reform bills has exploded into public consciousness.
Chairman Baucus has said that his bill will be closely patterned after an 18 page-long "Framework for Comprehensive Health Reform" that he released on Tuesday, September 8, 2009. Since the release of that document, the Chairman has engaged in stepped up negotiations with a bipartisan group of Senate Finance Committee members known as the "Gang of Six." [1] Chairman Baucus hopes that he can win bipartisan support within the Gang of Six for his health care reform proposal and that that support will provide the impetus for a larger bipartisan coalition in the Senate on health care reform.
Treatment of Noncitizens in the Baucus Framework. Chairman Baucus' health care reform Framework addressed the treatment of noncitizens in two ways.
- First, the Framework makes it clear that "illegal immigrants" would not be eligible to "benefit from the health care tax credits" that are provided for in the plan.
- Second, the Framework would require all "legal residents" (as well as all U.S. citizens) "to purchase health insurance or have health coverage from an employer, through a public program (i.e., Medicare, Medicaid, or CHIP), or through some other source that meets the minimum creditable coverage standard."
The Baucus Framework is silent on the question of whether low-income legal immigrants would be eligible under the Baucus plan for federal subsidies for purchasing health insurance. It also does not address the question of whether legal immigrants would continue to have their eligibility for Medicaid and Medicare tied to the length of time that they have been in the United States and the income and resources of their sponsors. And the Framework is silent on the question of whether illegal immigrants would be eligible under the Baucus plan to purchase life insurance from private companies using their own funds.
In the short time since Chairman Baucus released his Framework, however, the issue of immigrant eligibility for benefits under health care reform has exploded into public consciousness. This has prompted Chairman Baucus, his colleagues on the Senate Committee on Finance, his fellow members of the Gang of Six, and the White House staff to become much more specific about both immigrants' and illegal immigrants' eligibility for benefits and services under health care reform legislation. Accordingly, it is anticipated that the Baucus bill will address all of the immigration-related eligibility matters on which the Framework is silent.
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. All of the Democratic health care reform plans that have been produced so far 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 Baucus Framework would require all legal residents to purchase health insurance. By implication, it appears to exempt illegal immigrants from the mandate.
H.R. 3200, the House health care reform bill, would mandate that both legal and illegal immigrants obtain health insurance.
Both the pro-immigrant advocacy and the immigration restrictionist communities have been largely silent on the question of whether legal and illegal immigrants should be covered under the mandate that persons have health insurance coverage. The pro-immigrant advocacy community, however, has expressed concern about what would happen to immigrants if they are under a mandate but who cannot afford to purchase insurance.
- Health Insurance Exchange. All of the Democratic health insurance plans that have been produced so far would establish an entity referred to as a "health insurance exchange", 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. Neither the Baucus Framework nor H.R. 3200 provides enough specificity for analysts to determine whether the health insurance exchange would be operated by the federal government or by a non-federal entity.
The inclusion of a health insurance exchange in health care reform legislation raises a number of questions with respect to noncitizens. First and foremost among them is whether illegal immigrants would be permitted to use their own funds to purchase health insurance products listed in the health insurance exchange.
The Baucus Framework is silent on the question of whether illegal immigrants would be eligible to participate in the health insurance exchange.
H.R. 3200 is silent, as well, on the question. Its silence on the matter has been interpreted as permitting illegal aliens to participate in the exchange so long as they use their own funds to purchase health insurance.
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 have weighed in over the last several days on the matter. In a combative exchange from the podium of the White House briefing room, White House Press Secretary Robert Gibbs said on Thursday, September 10, 2009, that President Obama opposes permitting illegal immigrants to participate in the health insurance exchange. This was the first time that the Administration articulated that position.
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 Subsidies. All of the Democratic health insurance plans that have been produced so far 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.
The inclusion of such a provision in health care reform legislation raises questions of whether legal and illegal immigrants should be eligible for the affordability subsidies or tax credits.
The Baucus framework explicitly makes illegal immigrants ineligible for the federal subsidy, as does H.R. 3200. Both the Baucus Framework and H.R. 3200 are silent, however, on whether and under what circumstances legal immigrants would be eligible for federal affordability subsidies or tax credits.
The pro-immigrant advocacy community is not pushing Congress to make affordability subsidies or tax credits available to illegal immigrants. They do support, however, making those subsidies or credits available to legal immigrants on the same basis as they are available to United States citizens.
The immigration restrictionist community is opposed to providing affordability subsidies or tax credits to both illegal immigrants and legal immigrants.
Moreover, that community insists on a strict citizenship/immigration status verification regime for everyone who receives an affordability subsidy or tax credit to ensure that illegal immigrants do not receive or benefit from federal affordability subsidies or tax credits.
- Access to Medicaid and Medicare. All of the Democratic plans that have been produced so far would maintain and expand the Medicaid and Medicare programs. They also would preserve current aw that generally bars illegal immigrants from participating in the two programs; [2]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.
The Baucus Framework is silent on the question of legal and illegal immigrants' eligibility for the Medicaid and Medicare programs.
The pro-immigrant advocacy community is not pushing to make illegal immigrants eligible for the Medicaid and Medicare programs. However, it is lobbying Congress to ease eligibility criteria under current by permitting legal immigrants to access the two programs without having to first wait five years and without having the income and resources of their sponsors deemed to be theirs, as well.
The immigration restrictionist community opposes easing Medicaid and Medicare eligibility requirements for legal immigrants.
- Public/Nonprofit Insurance Option. All of the Democratic health insurance reform plans that have been produced so far contain an option for consumers to choose a health insurance plan run by the federal government rather than one that is run by private insurance companies.
The Baucus Framework does not contain the option for consumers to choose a federally-run health insurance policy. Instead, it contains an option for consumers to choose a health insurance plan run by a nonprofit cooperative.
The existence of a federally-run health insurance option raises questions with regard to noncitizens. The first is whether illegal immigrants would be eligible to participate in a public plan. The second is whether there should be restrictions on the ability of legal immigrants to participate in the public plan.
- Verification Regime. While all of the Democratic health insurance reform plans would bar illegal immigrants from some aspects of their plans, none of them contain a specific regime for verifying whether a participating individual is lawfully present in the United States.
Both the House Committee on Ways and Means and the House Committee on Energy and Commerce rejected amendments that were offered to H.R. 3200 during their respective markups that sought to impose immigration status verification requirements. In opposing such an amendment in his committee, House Energy and Commerce Committee Chairman Henry Waxman (D-CA) contended that "the people who have been harmed by the existing law have been U.S. citizens, oftentimes from poor, rural areas where they don't have their birth certificate or they don't have their passport."
While the Baucus Framework did not contain any immigration status verification regime, there are strong indications that the Baucus bill will require some sort of Social Security Number/Department of Homeland Security document check.
Seeds of the Explosion. The issue of the eligibility of illegal immigrants for benefits and services under the various health insurance reform bills has exploded into the public consciousness over the last week. While the issue has only come under intense scrutiny in the media over the last week, the seeds of last week's explosion were planted months ago.
Despite protestations to the contrary by the House Democratic Leadership, President Obama, and impartial fact check organizations, immigration restrictionist organizations, led by the Federation for American Immigration Reform (FAIR) and its partners in the conservative media have for months contended that illegal immigrants will benefit from the various Democratically-written health care reform bills. Things came to a head on Thursday, September 10, however, during President Obama's address to a joint meeting of Congress on health care reform. 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.
- Robert Gibbs. White House Press Secretary Robert Gibbs, in response to questions posed to him on Thursday, September 10, 2009, said that "the proposal that the president outlined covers American citizens. I think he was clear for almost everyone that the legislation does not cover -- his plan would not cover illegal immigrants."
Under repeated follow-up questioning, Gibbs went on to say that illegal immigrants "would not be covered under the health care exchange in the proposal" and answered, "that's my impression" when he was specifically asked if, the President's health insurance plan "would expressly prohibit illegal immigrants from buying private insurance on this exchange?"
Gibbs went on to say from the podium that he did not know whether the President's plan would undo current law that requires emergency facilities to provide emergency services under Medicaid for illegal aliens.
Mr. Gibbs expanded on his comments on Sunday, September 13, during an appearance on NBC News' Meet the Press, asserting that illegal immigrants would not be eligible to participate in the health insurance exchange but saying they would remain eligible for emergency care under the Medicaid program.
- Secretary Kathleen Sebelius. In a Sunday, September 13, 2009, appearance on ABC News' This Week, Secretary of Health and Human Services Kathleen Sebelius indicated that illegal immigrants would be ineligible under the President's plan to participate in the health insurance exchange.
- Senator Kent Conrad. Senator Kent Conrad (D-ND), who is a member of the Senate Committee on Finance and one of the "Gang of Six" members, said he and other senators in the group spent time Thursday trying to figure out “how we absolutely assure that those who are here illegally would not get the benefit of any of these initiatives.”
Senator Conrad has said that in order to prevent illegal immigrants from getting federal subsidies to buy health insurance or receiving other federal assistance, the government would require a check of Social Security numbers to determine eligibility. He said that people who are in the country legally but might not have Social Security cards could provide visas or other documentation showing their eligibility.
With regard to permitting illegal aliens to purchase private insurance policies, Senator Conrad said that nothing would keep illegal immigrants from buying private insurance on their own. About that subject, Senator Conrad said, You can’t prevent somebody from buying an insurance policy, but it would not be one that is federally assisted.”
- Senator John Cornyn. Senator John Cornyn (R-TX), who sits on the Senate Committee on Finance and is Ranking Republican on the Senate Judiciary Subcommittee on immigration, Refugees, and Border Security s quoted as saying “We’re going to have a lot of amendments ... I’d say that [the immigration issue] hasn’t been finally resolved.”
- Senator Pat Roberts. Senator Pat Roberts (R-KS) noted that there was language barring illegal immigrants from getting federal assistance already in the various versions of the House bill. But he said that, as written in the House bill, the language is meaningless. “How do you implement? How do you enforce it? We have no means to enforce it,” he said.
- House Minority Leader John Boehner. House Minority Leader John Boehner (R-OH) has asserted that H.R. 3200, the House version of health care reform legislation, does not contain any restrictions on noncitizens participating in and paying for coverage available through its proposed health care exchange, whether the noncitizens are legally or illegally present or in the United States temporarily or permanently. He said that "there were two opportunities, in committee, for House Democrats to make clear that illegal immigrants would not be covered by putting in requirements to show citizenship. Both of those amendments were in fact rejected."
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. ☼
[1] The "Gang of Six" includes Finance Committee Chairman Baucus, Finance Committee Ranking Republican Charles Grassley (R-IA); Democratic Senators Jeff Bingaman (D-NM) and Kent Conrad (D-ND); and Republican Senators Mike Enzi (R-WY), and Olympia Snowe (R-ME).
[2] The one exception to this is that current law does not bar Medicaid funding to treat illegal immigrants in emergency, life-threatening situations
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