Health Care for All?

by Namita Agarwal

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) foreclosed federally funded health coverage to immigrants who do not fall within one of the small number of “qualified alien” categories enumerated in that law.  However, Massachusetts has chosen to provide health coverage to a range of immigrants ineligible for federally funded assistance.¹  In response to PRWORA, Massachusetts preserved eligibility for health coverage at the state’s expense for individuals who are “permanently residing under color of law” (PRUCOL), such as a spouse or child of a U.S. citizen whose application for adjustment of status is pending with U.S. Citizenship and Immigration Services.²

After Massachusetts’ response to PRWORA in 1996, another notable change to healthcare reform came in 2006 as the 2006 Massachusetts legislation established Commonwealth Care, which provides subsidized insurance for low-income adults who lack employer-subsidized insurance and who are ineligible for MassHealth.³  However, Commonwealth Care fails to offer a solution for immigrants who are undocumented or not “permanently residing under the color of the law” (PRUCOL).

In addition to health care restrictions for illegal immigrants in Massachusetts, the state has also implemented restrictions for legal immigrants through recent budget changes.  In 2009, Massachusetts eliminated health care coverage for approximately 31,000 legal immigrants in response to a growing deficit.⁴  The affected immigrants are permanent residents who have had green cards for less than five years covered under Commonwealth Care.⁵  Under the new plan, the 31,000 legal immigrants will no longer receive dental, hospice or skilled-care coverage.  This budgetary change was deemed an “accomplishment” by the Patrick administration after the state legislature cut most of the $130 million it had previously allotted immigrants.⁶

In response to critics of the abovementioned changes, the Patrick administration announced its plans for the $40 million allocated to coverage for 31,000 immigrants who lost eligibility for Commonwealth Care as of September 1, 2009 through a “Bridge” program.⁷  According to the Patrick Administration, CeltiCare, a new managed care organization (MCO), will provide coverage to all 31,000 immigrants impacted by the cuts through a health plan with a benefit package similar to Commonwealth Care.  The major differences between Commonwealth Care and the new plan are the following: (1) No vision, dental, hospice or skilled nursing services; (2) Increased co-pays for some services; and (3) No choice of MCO as all 31,000 individuals will be enrolled in CeltiCare.⁸

Although the Governor has proposed various programs such as CeltiCare in response to the budgetary changes of 2009, it is nevertheless fundamentally wrong to separate a population based on immigration status.  Internationally, Article 25 of the Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including . . . medical care.” On a national level, although our federal and state constitutions do not expressly include a right to health care, they do give Congress the authority to create such rights.  Further, the Declaration of Independence’s statement that all people are guaranteed a right to “life, liberty and the pursuit of happiness” provides some guidance into the matter.  Additionally, Articles I and X of the Massachusetts Declaration of Rights suggest that “All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”  Regardless of this implied right to health as determined by international, national, and state standards, proponents of M.G.L. c. 118H, Section 31(a) argue that the right to health does not mean that individuals should be guaranteed enough money to pay their health care providers for medical services.

In response to the highly controversial budgetary cut, Health Law Advocates (HLA), a non-profit organization, has filed suit asking the State’s highest court to strike down the law as a violation of the Equal Protection Clause of the Massachusetts and federal constitutions.⁹  Defenders of the new law suggest that the real problem is a federal government that refuses to fund health care for immigrants.  Also argued is that the legal immigrants who lost health benefits in 2009 as a result of M.G.L. c. 118H, Section 31(a) had been ineligible for federal health care subsidies since 1996 with the enactment of PRWORA.  However, it remains that Commonwealth Care is a Massachusetts program designed to be available to lower-income residents with no other access to health insurance.  Further, there should be no reasonable basis for which to exclude an entire group of tax-paying citizens from accessing (what many argue is) a universal human right.

Namita Agarwal is AyerHoffman’s Health Law & Policy Contributor.  Ms. Agarwal is currently a J.D. candidate at Northeastern University School of Law where she concentrates her studies on domestic and international health care, welfare, and immigration law.