Proclamation On Health Insurance Requirements: The Administration’s Latest Attack On Immigration

Biologics Are Not Natural Monopolies

In what appears to be another effort to curb immigration in the United States, the White House has issued a proclamation titled, “Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System,” which will deny immigration visas for those who lack health insurance or the ability to pay for medical costs. This proclamation, released late in the night of Friday October 4, states that individuals seeking an immigrant visa must prove that they will obtain health insurance coverage within 30 days of entry in the United States or be able to pay for ‘reasonably foreseeable medical costs.’  

As this is a presidential proclamation, expected to be challenged in the courts, it has not been voted on by Congress or opened for public comment. Its standing is based on an unprecedented expansion of presidential authority under Section 212(f) of the Immigration and Nationality Act, the same provision used to justify the “travel ban.” 

The proclamation goes into effect on November 3, 2019. As written, it will not apply to asylum seekers, refugees, unaccompanied children, children of US citizens, those entering on temporary visas (including H1-B), international students and scholars, visitors for business, tourists, L-1 intracompany transferees, and those who were issued visas prior to the effective date. However, it will be applied to those currently seeking immigrant visas from abroad, including spouses and parents of US citizens and the immediate family members of lawfully permanent residents, representing a striking departure from current and long-standing US immigration policy.  

Among the acceptable health insurance plans are employee-sponsored plans, short-term limited duration health policies, family member’s plans, catastrophic plans, visitor health plans, unsubsidized individual market health plans, Medicare, and TRICARE. Notably, Medicaid and federally subsidized Affordable Care Act (ACA) Marketplace plans are missing from the list of acceptable insurance plans. Currently, potentially legal and documented immigrants are able to use ACA subsidies to aid in coverage affordability, but under the proclamation, lower-income immigrants are effectively placed in a deadlock since subsidized coverage does not meet the insurance requirements needed to enter the United States. 

Alternatively, the proclamation allows entry of immigrants who have the “financial resources for reasonably foreseeable medical costs,” yet it fails to define the threshold needed to meet this requirement. The arbitrary, subjective, and unclear language of this proclamation gives significant power to consular officers to make offhand decisions regarding the immigrant’s level of wealth and health insurance coverage. 

Family-based immigration accounts for two-thirds of all immigrant visa issuances and is the process in which US citizens and lawful permanent residents can sponsor certain family members for a permanent residence visa. Employment-based immigration often offers health insurance benefits, but issuances of family-based visas will likely be thwarted based on this proclamation. Unless the sponsoring US citizen can offer coverage through their health plan or the immigrant can demonstrate the ability to purchase insurance independently, they will not qualify under the new requirements. Others likely to be impacted are successful applicants from the Diversity Visa Lottery, the majority of whom are from African countries. These changes will make it more difficult for lower-income documented immigrants to enter the United States, reserving immigration for only the wealthy few.   

Requiring health insurance also effectively creates a mandate for coverage for immigrants. A mandate approach to health insurance coverage, which has proven highly unpopular with the US public, is notable as the current administration and the then-Republican controlled Congress eliminated the individual mandate tax penalty from the ACA.  

Insurance Rates, Immigration, And Narratives 

Justification for the proclamation is largely predicated on the concept that documented immigrants are three times as likely as US citizens to lack health insurance, thereby “saddling” our health care system with increased uncompensated care costs and overcrowding in emergency departments, and exacerbating the burden to US taxpayers. Yet, the evidence does not support this narrative. Among the uninsured, 75 percent are US citizens and 45 percent cite the high cost of coverage as their primary barrier. As of 2017, 57 percent of US documented immigrants had private health insurance as compared with 69 percent of US-born citizens. Additionally, 30 percent of documented immigrants had public health insurance compared with 36 percent of US-born citizens. Some people hold both private and public coverage, so the groups overlap and, in the case of US-born citizens, sum to greater than 100 percent. 

Although undocumented immigrants experience a much lower insurance rate (8 percent) as compared to citizens, this proclamation conflates data regarding the insurance rates of undocumented and documented immigrants. Additionally, immigrants contribute significantly to social diversity and economic growth. Immigrants make the gross domestic product of the United States larger by 11 percent, or roughly $2.2 trillion in 2018, annually. Thus, the narrative regarding health insurance and immigrants advanced by the proclamation, portraying documented immigrants as a burden to US taxpayers and the country’s health care systems, is false.  

Additionally, recent US census data revealed a decrease in the number of insured individuals among Americans between 2017 and 2018, representing the first increase in national uninsured rates since the implementation of the ACA. This change is attributed largely to the repeal of the ACA’s individual mandate penalty; increasing insurance premiums in some markets; declining rates of enrollment in Medicaid, a program not available to undocumented immigrants (the work requirements adopted by various states have contributed to Medicaid enrollment challenges); and decreased enrollment of low-income children, most of whom are US citizens, in the Children’s Health Insurance Program (CHIP). While this trajectory in coverage rates is concerning, it is largely indicative of recent federal and state policy changes impacting US citizens and will not be improved by the proclamation. 

Connection To The Public Charge Rule

This recent proclamation is another step in a series of health-related public programs intended to limit the financial burdens associated with allowing immigrants into the US. Most notably, this includes a redefinition of the term “public charge” for those applying for permanent residency status. Under the new rule, scheduled to go into effect on October 15, 2019, but currently judicially blocked, most applicants for permanent residency will have the use of any number of public benefits—including Medicaid, government housing, and the Supplemental Nutrition Assistance Program (SNAP)—count toward being determined as a public charge, or an individual likely to become dependent on the government for subsistence; this will count against them in their residency status applications.  

This rule is particularly harmful to children and low-income families. One out of four children in the United States live with immigrant parents. Initial evidence already reflects a reduction in vital public health and preventive services by immigrant families, 90 percent of whose children are US citizens, due to fear and misinformation regarding changes to immigration policies. Estimates are that two million children legally eligible for CHIP could be disenrolled from the program due to this precarious climate.  

In tandem with the public charge rule, the president’s recent proclamation will likely only increase the culture of fear and misinformation among current immigrants, especially those of lower income, those hoping to bring their family members to the US, and those planning to apply for entry. This fear further complicates an arduous, lengthy, and often costly process for immigrating to the US due to country quotas, categorical preferences, and administrative backlogs. In 2018, the administrative processing wait time for governmental approval for an immigrant took more than one-and-a-half years; however, the additional wait times under immigration quotas for a green card took an average of four years and 10 months.  

The Wrong Approach To Uncompensated Health Care Costs 

Legal challenges to the proclamation are expected, but regardless of their result, the language and sentiment underlying these recent changes are dangerous and false. They reflect and normalize an emerging narrative regarding the negative impact of immigrants and immigration on our health care system and larger society. The proclamation states that the new rules encourage and enable self-sufficiency for new immigrants and reflect a shift in policy away from a family-based immigration system toward one based on merit. In reality, the proclamation complicates an already stressed immigration process and will have the net effect of separating families and discouraging those seeking a documented pathway for better opportunities in the United States.  

Better, more inclusive policies to address the problem of uncompensated health care costs include reducing overtreatment, overpayment, and other forms of waste; increasing access to affordable and comprehensive health care; and moving toward a value-based health care system. Increasing barriers in our immigration system will not reduce health care costs; instead, it will only create a new layer of challenges. The United States is a country built by immigrants, many of whom originated from humble beginnings and created families and communities here. The president’s proclamation and the shift in policy it represents contradicts this long and proud history.

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