We’ve Got You Covered: Pathways to Healthcare for Immigrant New Yorkers

1. We’ve Got You Covered: Pathways to Healthcare for Immigrant New Yorkers

2. Healthcare Access • Approximately 250,000 New Yorkers are undocumented and uninsured • Reliance on emergency care and Emergency Medicaid

3. Immigration Statuses • Citizen (USC) • Lawful Permanent Resident (LPR/green card holder) • Nonimmigrant • Undocumented: visa overstay, entered without inspection (EWI)

4. Forms of Immigration Relief • Alien Relative Petition: Do you have a USC parent, child, spouse, brother or sister? Do you have an LPR parent, spouse, or child? • U- and T-nonimmigrant status: Have you ever been the victim of a crime? Human trafficking? • DACA: Did you come to the USA before the age of 16 and have resided here since? • Deferred action: Are you receiving life-saving treatment for a serious illness that you would not be able to access in your home country? • Temporary Protective Status: Are you from Nepal? Yemen? Syria? • Asylum: Do you fear returning to your home country for a non-health- related reason?

5. Classifications: Benefits Laws • Qualified Aliens • Lawfully Present • P.R.U.C.O.L.: Permanently Residing Under the Color of Law **Note: These terms have no meaning for immigration purposes.

6. Qualified Aliens • Permanent Resident, including conditional resident • Refugee, asylee, withholding grantee • Cuban & Haitian Parolee • Paroled for at least 1 year • T visa holder • VAWA Self-Petitioner

7. Lawfully Present • Valid nonimmigrant visa holder • Deferred action (*excluding DACA grantee) • Deferred enforced departure • TPS • Parole of less than 1 year • Stay of removal grantee • SIJS applicants

8. Lawfully Present • Approved immigrant visa and pending adjustment of status • Order of Supervision with EAD • Applicants for the following who have EAD: • Withholding or cancellation, • Asylum, • TPS, • Registry

9. Welfare Reform • Professional Responsibility and Work Opportunity Act of 1996 (PRWORA) & N.Y. Welfare Reform Act of 1997 42 U.S.C. §601, et seq. • Block grant cash assistance program • Mandatory work requirements • Excluded immigrants from federal means-tested benefits (ex: Medicaid, Food Stamps, SSI) for five years from entry as a “qualified alien” 42 U.S.C. §1631(a) and (c)(2)(A)

10. Pre-Welfare Reform • Legal Permanent Residents were on par with U.S. Citizens and eligible for Medicaid • Undocumented Immigrants only eligible for Emergency Medicaid and prenatal care

11. Medicaid in New York immediately after PRWORA • Continued coverage for LPRs entered before Aug. 22, 1996 • “Qualified aliens” after the five year bar • Refugees covered • PRUCOL before Aug. 4, 1997 and • Residents of residential health facilities • Those diagnosed with AIDS • Emergency Medicaid coverage remains

12. Aliessa v. Novello, 96 N.Y.2d 418 (2001) • N.Y.’s Medicaid exclusion violates: • Article XVII of the N.Y. State Constitution provides that: The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature from time to time may determine. • Equal Protection Clauses of U.S. and N.Y. Constitution under strict scrutiny

13. Aliessa v. Novello • Plaintiffs: “qualified aliens” and PRUCOL “non-qualified aliens” • “care for the needy is not a matter of ‘legislative grace’, it is a constitutional mandate” at 428 • “impose[s] on plaintiffs an overly burdensome eligibility condition having nothing to do with need” at 429. • No compelling interest in denying State Medicaid to otherwise eligible immigrants based on their status as aliens.

14. P.R.U.C.O.L. A federal immigration agency must: • Have knowledge of the person’s presence and • Permission or acquiescence of the agency • Agency must not contemplate person’s removal 18 N.Y.C.R.R. § 360-3.2(j)(1)(ii).

15. “Knowledge” • Applicants for immigration benefit without Employment Authorization Document (EAD) • Applicants for, and individuals with, Deferred Action for Childhood Arrivals (DACA) • Deferred action based on individual circumstance* 08 OHIP/INF-4.

16. Hypo I: Clara • Clara was diagnosed with ESRD at age 17, which was within weeks of when she first arrived from Guatemala without papers. Clara’s parents, also undocumented, feared her return to their home country where Clara would not receive the dialysis that her life depends on. • Can Clara become PRUCOL?

19. “Permission or Acquiescence” • Grant: PRUCOL • No response within 6 months of mailing: PRUCOL • Denial/“not granting”: PRUCOL, in practice* • Explicit language in deferred action denial letters supports PRUCOL

21. Other Medicaid Eligibility Criteria • Residency • Financial eligibility: income and household size • Federal Poverty Guidelines

22. Hypo II: Mohamed • An undocumented, 43 year old, Ghanaian national, Mohamed, was diagnosed with liver cancer on June 29. Through his USC sister, Mohamed filed an I-130 application on August 21. At what point does Mohamed become PRUCOL?

23. Healthcare Options • Qualified Aliens: Medicaid, Essential Plan, Child Health Plus • Lawfully Present: QHP, EP, CHP • PRUCOL only: Medicaid • Undocumented immigrants, not PRUCOL eligible: Emergency Medicaid, HHC Hospitals/Options, Charity Care, other • Undocumented and under age 19: CHP • If pregnant, Medicaid for Pregnant Women

24. Essential Plan Impact • YES EP: • Qualified Aliens in the 5 year bar timeframe • Lawfully Present immigrants, except those receiving long term care • NO EP: • PRUCOL-only until become lawfully present • Including: deferred action and other immigration benefit applicants, individuals with only the first portion of the family petition process completed • DACA applicants and recipients All receive the same benefits as Medicaid – still use Medicaid card for those services.

25. Health Options for Undocumented • Emergency Medicaid: "Emergency Medical Condition" is defined as a medical condition that manifests itself by acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to result in • Placing the patient's health in serious jeopardy; • Serious impairment to bodily function; or • Serious dysfunction of any bodily organ or part • Health and Hospitals Corporation Options Program: http://www.nyc.gov/html/hhc/html/patients/ForPatients-Paying-Options.shtml • Community Health Centers with sliding fee scales (available in handout)

26. Impact of Medicaid – more PRWORA • Public Charge: Regular Medicaid and CHP do not count unless institutional long-term care; only relevant if adjusting status (8 U.S.C. §1182(a)(4)) • Sponsor Deeming: New York does not enforce deeming; only relevant for family petition (but also no deeming where a person could not support, 8 U.S.C. §1631(e)) • Sponsor Liability: New York State does not enforce sponsor liability (04-ADM-7 at p.4)

27. Overview of the Process Medicaid = Better access to healthcare

28. Questions? Nicholas Klein Manager, Immigration Program nicholask@camba.org; 718.940.6311 Sarika Saxena Staff Attorney, Health Justice Program ssaxena@nylpi.org; 212.453.5853 Laura Redman Director, Health Justice Program lredman@nylpi.org; 212.336.9305