The Borders of the U.S. Health Care System

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Scholars explore regulatory reforms to expand noncitizens’ access to health care.

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Noncitizens comprise 13.5 percent of the total U.S. population, but they are not treated equally when it comes to health care.

Legislative history reveals that noncitizens have long been subjected to unequal health care access. Under the Immigration and Nationality Act, federal authorities may exclude or deport noncitizens if they are likely to become reliant on government benefits—or become a public charge. The U.S. Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act in 1996, restricting noncitizens from receiving public benefits through Medicare or Medicaid except for medical emergencies.

To reduce legal immigration into the United States, the Trump Administration diminished humanitarian protections for noncitizens and increased enforcement at the U.S.-Mexico border. These polices provoked controversy, but it was not until the COVID-19 pandemic that health care access for noncitizens gained serious attention. The pandemic disproportionately impacted immigrant populations, exposing flaws in legal protections at the federal and state levels.

The Biden Administration has not only reversed many Trump-era rules that restricted noncitizens’ rights, but also introduced new legislation and regulations to promote health care for noncitizens. The HEAL for Immigrant Families Act, for instance, would remove the five-year waiting period for lawfully present immigrants to access Medicaid and the Children’s Health Insurance Program. More recently, the U.S. Department of Homeland Security issued a final rule clarifying that noncitizens who receive health care or other benefits to which they are entitled will not suffer negative immigration consequences, such as inadmissibility to the United States due to being a “public charge.”

States have also taken initiative to extend health care coverage to noncitizens. In December, Washington joined the ranks of seven other states when the Biden Administration approved its request to forego requirements set by the Affordable Care Act and expand health insurance access for all residents regardless of immigration status.

Yet damaging inequalities still persist today. Noncitizens are not only more likely to get sick, they are also less likely to gain access to care compared to citizens. Even when noncitizens have legal access to medical care, they will often forego it due to fear of repercussions. Although some states have extended coverage to undocumented immigrants, most have not.

In this week’s Saturday Seminar, scholars explore barriers that noncitizens face in accessing health care and consider regulatory reforms at both the federal and state level that could improve their access to care.

  • In a report issued by the Congressional Research Service, Abigail F. Kolker and Elayne J. Heisler of the Congressional Research Service evaluate the eligibility criteria for immigrant populations for federal health care coverage programs, including Medicare and Medicaid. Kolker and Heisler explain that the Personal Responsibility and Work Opportunity Reconciliation Act established blanket immigrant eligibility requirements for most federal public benefits, restricting noncitizens’ access to federal health care programs. Immigrant eligibility for health care programs remains inconsistent across programs, however, due to the Act’s interactions with the laws, regulations, and guidance documents that govern each individual program, contend Kolker and Heisler. Immigrant eligibility for coverage not only varies by program, elaborate Kolker and Heisler, but also by immigration status category.
  • In reforming the immigration system, Congress must recognize the interrelation between health policies and the immigration system, argue Medha D. Makhlouf of Penn State Dickinson Law and Patrick J. Glen of Georgetown University Law Center in an article published in the Saint Louis University Journal of Health Law & Policy. Deportation laws deter immigrants from enrolling in federal health care benefit programs, and eligibility restrictions for such benefits further exacerbate health inequities, contend Makhlouf and Glen. Thus, any efforts at regulatory reform designed to give immigrants certain rights to enroll in federal public benefits will be insufficient, argue Makhlouf and Glen, if not also paired with efforts to remove the negative immigration consequences for attempting to access such programs.
  • Immigration status should be regarded as protected health information (PHI), argues Scott J. Schweikart of the American Medical Association in an article published in the AMA Journal of Ethics. Health care professionals struggle to navigate the complex legal framework governing whether they are required to report a patients’ immigration status to government authorities. Since the Health Insurance Portability and Accountability Act (HIPAA) aims to secure the privacy of health information to promote health care quality and public health, Schweikart contends that immigration status should constitute PHI because it can directly impact health outcomes. If a patient’s immigration status were protected by HIPAA, explains Schweikart, then it could not be released for purposes other than payment, treatment, or hospital operations. Even under the HIPAA exceptions, concludes Schweikart, physicians would be prohibited from reporting immigration status to federal officials.
  • In an article published in the North Carolina Journal of Law and Technology, Asees Bhasin, a policy fellow at Boston University, argues that the growing accessibility of telehealth services still fails to reach noncitizen communities. Bhasin identifies four primary hurdles that noncitizen communities face when trying to access telehealth access: affordability and health care coverage, privacy and surveillance concerns, technological skills, and language barriers. To mitigate these discrepancies in telehealth availability, Bhasin recommends extending the Affordable Care Act to apply to undocumented noncitizens. In addition, Bhasin urges lawmakers to increase funding for community health care organizations that provide direct services to noncitizens. According to Bhasin, lawmakers should also prioritize digital equity and language interpretation programs to improve telehealth accessibility.
  • In an article published in the New York University Law Review, Medha D. Makhlouf of Penn State Dickinson Law argues for centralized policymaking to address noncitizen access to health coverage. Although Medicaid provides health coverage for low-income households, contends Makhlouf, its federalism structure gives states discretion to determine noncitizen eligibility. According to Makhlouf, this structure breeds both geographic variability in noncitizens’ access to affordable health coverage and exclusionary policies. Federal reforms to Medicaid would promote transparency, uniformity, and equity in noncitizen eligibility, concludes
  • In a paper issued by the Public Health Law Watch, Wendy E. Parmet of Northeastern University School of Law discusses how antagonistic policies toward noncitizens exacerbate public health issues. Parmet contends that immigration status constitutes a social determinant of health because it creates structural barriers to both accessing health care and employment opportunities. As an example, Parmet points to restrictive policies during COVID-19 that prevented noncitizens from qualifying for certain pandemic relief programs. Until regulators enact comprehensive reform of the existing immigration system, Parmet cautions that noncitizens will continue to suffer disproportionately from public health crises.

The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.