• ISSUE BRIEF

    Last updated: October 3, 2012

Undocumented Immigrants in the United States: U.S. Health Policy and Access to Care

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Access to health care for undoc­u­mented immi­grants in the U.S. is shaped by sev­eral poli­cies and pro­grams at the fed­eral state and local level. This issue brief pro­vides an overview of key fed­eral and state policies.

Are undoc­u­mented immi­grants eli­gi­ble for pub­lic insur­ance programs?

With the excep­tion of emer­gency med­ical care, undoc­u­mented immi­grants are not eli­gi­ble for fed­er­ally funded pub­lic health insur­ance pro­grams, includ­ing Medicare, Med­ic­aid and the Child Health Insur­ance Pro­gram (CHIP).1Medicare is a social insur­ance pro­gram that pro­vides health insur­ance to peo­ple age 65 and over, as well as peo­ple with per­ma­nent dis­abil­i­ties and end-stage renal dis­ease. Med­ic­aid is a means-tested social wel­fare pro­gram that pro­vides health insur­ance to cer­tain cat­e­gories of poor peo­ple. CHIP, cre­ated in 1997, is a block grant pro­gram to expand cov­er­age to chil­dren in fam­i­lies with incomes that exceed Med­ic­aid eli­gi­bil­ity.2 There is no orga­nized, national pro­gram to pro­vide health care for undoc­u­mented chil­dren. U.S.-born chil­dren in mixed-status fam­i­lies may be eli­gi­ble for Med­ic­aid or CHIP if they qual­ify on the basis of income and age.

Although fed­eral funds may not be used to pro­vide non-emergency health care to undoc­u­mented immi­grants, some states and local gov­ern­ments use their own funds to offer cov­er­age to undoc­u­mented chil­dren.3 For exam­ple, the Healthy Kids pro­gram in San Fran­cisco cov­ers unin­sured chil­dren under the age of 19, includ­ing undoc­u­mented chil­dren.4 Sim­i­larly, the All Kids pro­gram Illi­nois cov­ers all chil­dren under the age of 19 who meet pro­gram income require­ments, regard­less of immi­gra­tion sta­tus.5

PRUCOL (Per­ma­nent Res­i­dence Under Color of Law) is a pub­lic ben­e­fits eli­gi­bil­ity cat­e­gory that refers to indi­vid­u­als who are in the U.S. with the knowl­edge of immi­gra­tion ser­vices and are not likely to be deported.Before the adop­tion of the Per­sonal Respon­si­bil­ity and Work Oppor­tu­nity Rec­on­cil­i­a­tion Act of 1996,6 peo­ple with PRUCOL sta­tus were eli­gi­ble for Med­ic­aid, but PRWORA elim­i­nated their eli­gi­bil­ity with the excep­tion of emer­gency ser­vices. In New York, the State Court of Appeals (Aliessa et al. v. Nov­ello) con­cluded that deny­ing access to Med­ic­aid vio­lated the equal pro­tec­tion clauses of the New York and U.S. con­sti­tu­tions. As a result, New York pro­vides Med­ic­aid to this pop­u­la­tion using state funds only.

In about half of the U.S. states, immi­grant chil­dren under the age of 21 and preg­nant woman who have been granted deferred action on their immi­gra­tion sta­tus are allowed to apply for Med­ic­aid and the CHIP or enroll in their state’s high risk insur­ance pool. An excep­tion to this, how­ever, are the so-called “dream­ers” – the esti­mated 1.7 mil­lion undoc­u­mented teenagers and young adults granted deferred action by the Obama Admin­is­tra­tion on June 15, 2012.7 Pres­i­dent Obama announced that undoc­u­mented immi­grants who were brought to the U.S. before they turned 16 and are younger than 30, have been in the coun­try for at least five con­tin­u­ous years, have no crim­i­nal his­tory, grad­u­ated from a U.S. high school or earned their GED, or hon­or­ably dis­charged from the mil­i­tary will be immune from depor­ta­tion and can apply for a work per­mit that will be good for two years with no lim­its on renewal.On August 28, 2012, the Obama Admin­is­tra­tion announced that the young peo­ple affected by this direc­tive would not meet the def­i­n­i­tion of being “law­fully present”and would there­fore be inel­i­gi­ble for Med­ic­aid, the CHIP and the insur­ance ben­e­fits of the ACA.8

How is emer­gency med­ical care avail­able to undoc­u­mented immigrants?

In 1986 the Con­gress enacted the Emer­gency Med­ical Treat­ment and Active Labor Act (EMTALA) as part of the Con­sol­i­dated Omnibus Bud­get Rec­on­cil­i­a­tion Act of 1985 (COBRA) (Pub. L. 99–272). The law was designed to pro­vide patients with access to emer­gency med­ical care and to pre­vent hos­pi­tals from “dump­ing” unsta­ble patients that could not afford to pay for their care.”9 Under the law, “any patient arriv­ing at an Emer­gency Depart­ment (ED) in a hos­pi­tal that par­tic­i­pates in the Medicare pro­gram must be given an ini­tial screen­ing, and if found to be in need of emer­gency treat­ment (or in active labor), must be treated until sta­ble.”10 The law defines an emer­gency med­ical con­di­tion as a “med­ical con­di­tion man­i­fest­ing itself by acute symp­toms of suf­fi­cient sever­ity such that the absence of imme­di­ate med­ical atten­tion could rea­son­ably be expected to result in – (i) [p]lacing the health of the indi­vid­ual … in seri­ous jeop­ardy; (ii) [s]erious impair­ment to bod­ily func­tions; or (iii) [s]erious dys­func­tion of any bod­ily organ part[.]” It requires hos­pi­tals cov­ered by the law to pro­vide patients with an emer­gency med­ical con­di­tion with “an appro­pri­ate med­ical screen­ing exam­i­na­tion within the capa­bil­ity of the hospital’s emer­gency depart­ment, includ­ing ancil­lary ser­vices rou­tinely avail­able to the emer­gency depart­ment, to deter­mine whether or not an emer­gency med­ical con­di­tion (EMC) exists.” (42 C.F.R 489.24(a)(1)(i)). the med­ical screen­ing exam­i­na­tion “must be con­ducted by an individual(s) who is deter­mined qual­i­fied by hos­pi­tal bylaws or rules and reg­u­la­tions” (42 C.F.R. § 489.24(a)(1)(i)).

Although the law refers specif­i­cally to hos­pi­tals with an ED, the guide­lines from the fed­eral gov­ern­ment have applied EMTALA require­ments to all facil­i­ties that par­tic­i­pate in the Medicare pro­gram and offer emer­gency ser­vices.11 Met, while EMTALA requires cov­ered hos­pi­tals to sta­bi­lize patients with emer­gency med­ical con­di­tions, it does not require these facil­i­ties to pro­vide addi­tional treat­ment. There is a legal dis­pute over whether the sta­bi­liza­tion require­ment in EMTALA con­tin­ues to apply if a patient has been admit­ted to the hos­pi­tal.12 Deci­sions by the Fourth, Ninth and Eleventh Cir­cuit Courts held that hos­pi­tals have no sta­bi­liza­tion duties once patients are admit­ted,13 but the Sixth Cir­cuit held the oppo­site.14

In addi­tion to EMTALA, it is also pos­si­ble for undoc­u­mented immi­grants to qual­ify for Med­ic­aid cov­er­age for emer­gency care. The def­i­n­i­tion of emer­gency care and the scope of ser­vices avail­able through the Med­ic­aid pro­grams vary by state. For exam­ple, in New York State Med­ic­aid for Emer­gency Care may be used to pro­vide chemother­apy and radi­a­tion ther­apy to undoc­u­mented patients with can­cer. In New York State, Cal­i­for­nia, and North Car­olina, it may be used to pro­vide out­pa­tient dial­y­sis to undoc­u­mented patients.15

Do undoc­u­mented immi­grants have access to care through the health care safety net?

To care for the lower income res­i­dents, includ­ing undoc­u­mented immi­grants, the U.S. relies on a patch­work “sys­tem” of safety-net providers, includ­ing pub­lic and not-for-profit hos­pi­tals, fed­er­ally qual­i­fied com­mu­nity health cen­ters (FQHCs), and migrant health cen­ters. Since the Omnibus Bud­get Rec­on­cil­i­a­tion Act of 1981, a hos­pi­tal rec­og­nized as “dis­pro­por­tion­ate share hos­pi­tal” (DSH) with respect to the per­cent­ages of low-income and unin­sured patients it treats receives addi­tional pay­ments from Med­ic­aid to sup­port uncom­pen­sated care. Con­gress also required Medicare to allo­cate DSH funds to hos­pi­tals. The DSH pro­grams fund hos­pi­tal care for unin­sured patients. Together, the Medicare and Med­ic­aid DSH pro­grams pro­vide more than $20 bil­lion to qual­i­fied hos­pi­tals annu­ally, but these pro­grams are sched­uled to be reduced sig­nif­i­cantly under health care reform.16

Fed­er­ally Qual­i­fied Health Cen­ters (FQHCs) and Migrant Health Cen­ters are not-for-profit orga­ni­za­tions17 funded by the fed­eral Health Resources and Ser­vices Admin­is­tra­tion (HRSA). Both offer com­pre­hen­sive pri­mary care to vul­ner­a­ble pop­u­la­tions that include Med­ic­aid patients, unin­sured patients, and patients in under­served urban, sub­ur­ban, and rural areas. They pro­vide care regard­less of abil­ity to pay, insur­ance sta­tus or immi­gra­tion sta­tus. Both are required to have a board of direc­tors with a major­ity (at least 51%) of the mem­bers from the com­mu­nity served by the cen­ter. In addi­tion, both types of health cen­ters are required to use a slid­ing fee scale. The main dif­fer­ence between them is that migrant health cen­ters are only allowed to serve migrant and sea­sonal farm work­ers and their fam­i­lies.*

Fed­eral sup­port for FQHCs increased sig­nif­i­cantly under the George W. Bush admin­is­tra­tion and they have received con­tin­ued sup­port from the Obama admin­is­tra­tion.18 Between 1996 and 2010, direct fed­eral fund­ing for FQHCs increased from $750 mil­lion to $2.2 bil­lion. As of 2010, there were 1,214 FQHCs oper­at­ing more than 8,000 ser­vice sites.19 In addi­tion, there were 159 fed­er­ally funded migrant health cen­ter sites, oper­at­ing more than 700 ser­vice sites.20

How will the Patient Pro­tec­tion and Afford­able Care Act influ­ence access to health care for undoc­u­mented immigrants?

The PPACA does not pro­vide undoc­u­mented immi­grants with eli­gi­bil­ity for pub­lic insur­ance pro­grams. Because undoc­u­mented immi­grants are not regarded as “qual­i­fied indi­vid­u­als” under the law, it also does not allow undoc­u­mented immi­grants to pur­chase health insur­ance through the new state health exchanges even if they are able to do so with their own money.21 Sec­tion 1312 of the Act states, “If an indi­vid­ual is not, or is not rea­son­ably expected to be for the entire period for which enroll­ment is sought, a cit­i­zen or national of the United States or an alien law­fully present in the United States, the indi­vid­ual shall not be treated as a qual­i­fied indi­vid­ual and may not be cov­ered under a qual­i­fied health plan in the indi­vid­ual mar­ket that is offered through an Exchange.”22

Despite these restric­tions, the law does include addi­tional fund­ing for the health care safety-net, includ­ing an $11 bil­lion increase for FQHCs and the law’s expan­sion of the Med­ic­aid pro­gram may pro­vide addi­tional rev­enue to many FQHCs and other safety-net providers. Yet, the PPACA also calls for an $18 bil­lion dol­lar reduc­tion in Med­ic­aid DSH pay­ments and a $22 bil­lion reduc­tion in Medicare DSH pay­ments through 2020. The DSH cuts are based on the assump­tion that hos­pi­tals will not need to pro­vide as much char­ity care once the health reform is imple­mented. Because undoc­u­mented immi­grants will not receive pub­lic or pri­vate insur­ance cov­er­age under health reform, they are likely to rep­re­sent a larger per­cent­age of the nation’s unin­sured pop­u­la­tion. This raises impor­tant ques­tion about future polit­i­cal sup­port for the health care safety-net.23

Ref­er­ences    (↵ returns to text)
  1. 1. Ray­den Llano. “Immi­grants and Bar­ri­ers to Health­care: Com­par­ing Poli­cies in the United States and the United King­dom.” Stam­ford Jour­nal of Pub­lic Health 2011. Avail­able at: http://www.stanford.edu/group/sjph/cgi-bin/sjphsite/2011/06/immigrants-and-barriers-to-healthcare-comparing-policies-in-the-united-states-and-the-united-kingdom/.
  2. 2. Lawrence D. Brown and Michael Sparer. “Poor program’s progress: The unan­tic­i­pated pol­i­tics of Med­ic­aid pol­icy.” Health Affairs 2003; 22(1): 31.
  3. 3. S. Frem­stad and L. Cox, “Cov­er­ing New Amer­i­cans: A Review of Fed­eral and State Poli­cies Related to Immi­grants’ Eli­gi­bil­ity and Access to Pub­licly Funded Health Insur­ance” Kaiser Com­mis­sion on Med­ic­aid and the Unin­sured, Novem­ber, 2004.
  4. 4. Avail­able at: http://www.sfhp.org/visitors/programs/healthy_kids/do_i_qualify.aspx; accessed on Feb­ru­ary 18, 2012.
  5. 5. Avail­able at: http://www.allkids.com/hfs8269.html; accessed on Feb­ru­ary 18, 2012.
  6. 6. 62 Fed. Reg. 61344, Novem­ber 17, 1997.
  7. 7. National Immi­gra­tion Law Cen­ter. “FREQUENTLY ASKED QUESTIONS: Exclu­sion of Peo­ple Granted “Deferred Action for Child­hood Arrivals” from Afford­able Health Care,” Wash­ing­ton DC: National Immi­gra­tion Law Cen­ter, Sep­tem­ber 20, 2012 Avail­able at: http://www.nilc.org/FAQdeferredactionyouth.html.
  8. 8. Robert Pear, “Lim­its Placed on Immi­grants in Health Law,” New York Times, Sep­tem­ber 18, 2012; A1.
  9. 9. Joseph Zibulewsky. “The Emer­gency Med­ical Treat­ment and Active Labor Act (EMTALA): what it is and what it means for physi­cians.” Proc Bayl Univ Med Cent 2001 Octo­ber; 14(4): 339–346.
  10. 10. 42 U.S.C. § 1395dd
  11. 11. Zibulewsky: 342.
  12. 12. Edward C. Liu. EMTALA: Access to Emer­gency Med­ical Care. CRS Report for Con­gress, July 2010.
  13. 13. Bryan v. Rec­tors & Vis­i­tors of the Univ. of Vir­ginia, 95 F.3d 349, 352 (4th Cir. 1996), Bryant v. Adven­tist Health Sys., 289 F.3d 1162, 1168–1169 (9th Cir. 2002), Harry v. Marchant, 291 F.3d 767 (11th Cir. 2002).
  14. 14. Thorn­ton v. South­west Detroit Hosp., 895 F.2d 1131, 1135 (6th Cir. 1990).
  15. 15. Nina Bern­stein, “For Ille­gal Res­i­dent, Line is Drawn at Trans­plant,” New York Times Decem­ber 21, 2011: A1.
  16. 16. Michael K. Gus­mano and Frank Thomp­son. 2012. “The Safety Net At The Cross­roads? Whither Med­ic­aid DSH,” Chap­ter 7 in The Health Care Safety-Net and Uni­ver­sal Cov­er­age. Edited by Mark Hall and Sara Rosen­baum. Rut­gers Uni­ver­sity Press, forth­com­ing.
  17. 17. Some of the migrant health cen­ters are oper­ated by state and local health depart­ments.
  18. * Accord­ing to the Health Resources and Ser­vices Admin­is­tra­tion, “Prin­ci­pal employ­ment for both migrant and sea­sonal work­ers must be in agri­cul­ture (ht;://bphc.hrsa.gov/about/specialpopulations/; accessed on March 15, 2012)
  19. 18. Aaron Katz, Lau­rie E. Fel­land, Ian Hill, Lucy B. Stark. “A Long and Wind­ing Road: Fed­er­ally Qual­i­fied Health Cen­ters, Com­mu­nity Vari­a­tion and Prospects Under Reform.” HSC Research Brief No. 21, Novem­ber 2011.
  20. 19. http://www.statehealthfacts.org/profileind.jsp?ind=424&cat=8&rgn=1; accessed on Feb­ru­ary 19, 2012.
  21. 20. http://www.ncfh.org/?sid=37; accessed on Feb­ru­ary 19, 2012.
  22. 21. Tim­o­thy Stoltz­fus Jost. Health Insur­ance Exchanges and the Afford­able Care Act: Eight Dif­fi­cult Issues. The Com­mon­wealth Fund, Sep­tem­ber 2010.
  23. 22. § 1312 (f) (3).
  24. 23. Mark A. Hall. “Rethink­ing Safety-Net Access for the Unin­sured.” NEJM 364;1: 7–9.

Suggested citation

Michael K. Gusmano, "Undocumented Immigrants in the United States: U.S. Health Policy and Access to Care," Undocumented Patients web site (Garrison, NY: The Hastings Center), last updated: October 3, 2012. Available at http://www.undocumentedpatients.org/issuebrief/health-policy-and-access-to-care/