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Issue Alert - 06-04-06

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Date:

Apr 11, 2006

Program Area:

Medicaid (MA) and Maternity Outpatient Medical Services (MOMS)

Issue Summary:

Many non-citizens are being denied or terminated from Medicaid and MOMS based on lack of residency, due to illegal policy and/or policy interpretations

Persons Affected:

Non-citizens seeking Emergency Services Only Medicaid or prenatal coverage through the Maternity Outpatient Medical Services (MOMS) program

For More Information:

Center for Civil Justice
320 S. Washington, 2nd Floor
Saginaw, MI 48607
Phone: (989) 755-3120, (800)724-7441
Fax: (989) 755-3558
E-mail: info@ccj-mi.org

Michigan Poverty Law Program
611 Church Street, Suite 4A
Ann Arbor, MI 48104-3000
Phone: (734) 998-6100
Fax: (734) 998-9125


Background

MEDICAID FOR IMMIGRANTS

U.S. Citizens and some qualified non-citizens or aliens who meet certain immigration status requirements receive the full package of Medicaid benefits if they meet the other financial and non-financial criteria for Medicaid.

Other non-citizens, who do not meet the immigration status requirements for full Medicaid coverage, are eligible for Medicaid coverage of emergency services only (ESO). ESO coverage includes active labor and delivery for pregnant women, but not pre-natal care. See generally Department of Human Services (DHS) Program Eligibility Manual (PEM) Item 225. DHS's Program Policy Bulletins and Manuals are available online at http://www.mfia.state.mi.us/olmweb/ex/htm or by using the "Quick Link" at www.mplp.org.

Non-citizens cannot be denied Medicaid because they fail or refuse to provide verification of their immigration status, but they will be limited to ESO Medicaid. PEM 225 p. 15-16.

Many groups of non-citizens who are in the U.S. legally, including Permanent Resident Aliens who entered the U.S. after August 22, 1996 and have not lived in the U.S. for at least 5 years do not meet the immigration status requirements.

Non-citizens must meet all of the other Medicaid eligibility requirements, including Michigan residence, in order to qualify for full coverage or ESO Medicaid. See PEM 225 p. 1 & 2.

RESIDENCY FOR MEDICAID
An individual must be a Michigan resident in order to qualify for Michigan's Medicaid program. Under federal Medicaid law, residency cannot be conditioned on an intent to remain in Michigan permanently. The Medicaid statute prohibits the state from imposing "any residency requirement which excludes any individual who resides in the State, regardless of whether or not the residence is maintained permanently or at a fixed address." 42 U.S.C. 1396a(b)(2). (emphasis added).

Under both federal and state law, residency may be established by either based on intent to stay, or based on entrance to the state with a job commitment or looking for work.
The federal Medicaid regulation, 42 C.F.R. 435.403(i)(1), defines residence based on the state where the individual is "Living with the intention to remain there permanently or for an indefinite period... or (ii) Living and which the individual entered with a job commitment or seeking employment (whether or not currently employed)" (emphasis added).

Under the Social Welfare Act, M.C.L.A. 400.32(2) a person is a resident of Michigan if he or she is
living in this state voluntarily with the intention of making his or her home in this state and not for a temporary purpose and ... is not receiving assistance from another state. ...
For purposes of medical assistance, a resident of this state also includes a person and the dependents of a person who, at the time of application, is living in this state, is not receiving assistance from another state, and entered the state with a job commitment or seeking employment in this state.
(emphasis added).

MATERNITY OUTPATIENT MEDICAL SERVICES (MOMS) FOR WOMEN NOT OTHERWISE ELIGIBLE FOR MEDICAID
The Maternity Outpatient Medical Services (MOMS) program provides coverage for outpatient prenatal care, as well as labor and delivery, for certain pregnant women who do not qualify for Medicaid. MOMS is funded with federal SCHIP funds. Teenagers can qualify for MOMS with no income eligibility test. This allows teens to receive prenatal care without having to disclose their parent's income. Women who qualify for ESO Medicaid can qualify for MOMS automatically.

The DHS and Department of Community Health (DCH) policies describing MOMS eligibility and coverage differ. For example, the DHS policy describes MOMS as providing "prenatal and postpartum outpatient pregnancy-related services to women who are pregnant or recently pregnant and who are not eligible for Medicaid", PEM 657 p. 1, while DCH policy states "Individuals determined eligible for MOMS meet all eligibility criteria for Medicaid." Health Care Eligibility Policy (HCEP) Manual Chapter III, Section 3, p. 1. (Issued with beneficiary Eligibility Bulletin HCEP 05-03 in June 1, 2005 (available online at http://www.michigan.gov/mdch, click on "Medicaid Policy Bulletins").

Initial eligibility for MOMS is determined by Public Health Departments and Federally Qualified Health Centers, which give Guarantee of Payment letters to pregnant women who appear to be eligible. Women who are not receiving ESO Medicaid and are not teens must pursue Medicaid eligibility. DCH makes the final determination of eligibility for MOMS/SCHIP or Medicaid for women who have submitted a MOMS application.

SCHIP funding for prenatal care for non-citizens who do not have "acceptable status" is based on a federal regulation issued in 2002, which defines a "child" to include a fetus from conception to birth, which is then interpreted to allow prenatal care based on the fiction that the care is for the fetus, which has no citizenship until it is born. 42 C.F.R. 457.10.

RESIDENCY FOR SCHIP-FUNDED PRENATAL CARE
Under the federal SCHIP regulations, the states may not preclude a child from being considered a state resident if the child is physically located in the state and is not institutionalized or a ward of the state. 42 C.F.R. 457.320(d).

DHS POLICY ON MICHIGAN RESIDENCE
Prior to October 2004, DHS policy on residence stated that a person is a resident of Michigan "if he:
• lives in Michigan, except for a temporary absence, and he intends to remain in Michigan permanently or indefinitely; or
• entered the state with a job commitment or to seek employment."
PEM 220 (January 1, 2004)

In October 2004, the DHS policy was changed to make it more difficult, if not impossible, for some non-citizens to establish residency. The new policy -- and the application of the policy by some caseworkers, department analysts, and ALJs -- has resulted in numerous problems for non-citizens, which are discussed in more detail below.

What's Happening?

The current DHS Residence policy (PEM 220) adds additional criteria to both the "intent to stay" test and the "entered with a job or seeking work" test for residency. These additional criteria, and the manner in which they are being applied, violate state and federal law.

For the "intent to stay" test, the policy states that applicants whose official immigration documents indicate "a temporary or time-limited period" to their stay in the U.S. cannot establish residence under the "intent to stay" test unless they can show that they are taking "official steps" with the immigration authorities to apply for lawful permanent resident status in the U.S.. By requiring that non-citizens apply for permanent resident status, the policy violates the federal prohibition against denying Medicaid because an individual does not maintain permanent residence in Michigan.

DHS has compounded the problem by interpreting the policy to deny residency even when the non-citizen has in fact stayed beyond the period authorized by their visa, thus clearly showing their intent to remain indefinitely or permanently notwithstanding their lack of legal authorization from the U.S. Citizenship and Immigration Service (USCIS). DHS has taken the position that individuals who have overstayed their visas are not undocumented, and thus are not entitled to claim residency to the same extent as individuals who do not have legal authorization when they initially enter the U.S.. (DHS policy requires that caseworkers accept the individual's expression of intent to stay, unless their statements "are inconsistent or conflict with known facts." PEM 220 p.5. Being an undocumented or illegal immigrant is not considered a fact that conflicts with intent to stay.)

Some non-citizens enter the U.S. with temporary or time limited visas, but intend to stay here indefinitely or permanently- either illegally or by applying for a change in their immigration status when they are able to do so. The fact that these individuals have not taken official steps to remain in the U.S. is not necessarily an indication of lack of intent to stay, but may simply reflect that they are not yet in a position to take the official steps. (For example, non-citizens can only enter the lottery for permanent resident status in October, November, and December. Non-citizens who are not eligible for the lottery because of their country of origin may need to wait until they have obtained employment that would qualify them for permanent resident status or until a relative is a citizen or a permanent resident alien before they can take steps to apply for permanent resident status themselves.)

DHS policy ordinarily requires that the caseworker, "Before determining eligibility, give the client a reasonable opportunity to resolve any discrepancy between his statements and information from another source." PAM 130 p.4. By refusing to allow non-citizens to resolve any discrepancy between their statement of intent to stay in Michigan and their immigration documents, DHS may be violating Title VI of the Civil Rights Act, which prohibits discrimination on the basis of national origin.

For the "job commitment/seeking work" test of residency, policy requires the individual to show that, "He or a member of his MA fiscal group has entered the state of Michigan for employment purposes and

• has a job commitment, or
• is seeking employment."
PEM 220 p.2 (emphasis added).

Thus, although both state and federal law provide that the person is a resident if he or she is looking for work or has a job commitment at the time of entry to Michigan, the policy adds an additional and unlawful requirement that employment be the purpose for entering the state. Furthermore, the policy is not clear that the relevant time for evaluating whether the person has a job commitment or is seeking work is when the person entered Michigan, not necessarily when they are applying for Medicaid.

As a result of the unlawful policy, non-citizens who have entered Michigan with a job commitment or looking for work are being denied ESO Medicaid if they cannot verify that their sole or primary purpose for coming to Michigan was for employment. This policy has been particularly harmful to graduate students (and their families) who have jobs as teaching or research assistants but have entered Michigan both to go to school and to work. DCH and DHS have taken the position that non-citizens who have visas to enter the U.S. for a purpose other than work cannot establish Michigan residence based on entry with a job commitment or looking for work, even if the person's visa allows employment, notwithstanding DHS policy that states the fact that a person has a job commitment or is seeking employment may be verified by "An official BCIS [now known as USCIS] document that does not indicate that the person is prohibited from working." PEM 220 p. 7.

DHS policy also states that an immigration document that "indicates a status that does not permit the client to work... is verification that the person did not enter Michigan for purposes of employment." PEM 220 p.5. Again, there is no indication that the non-citizen has an "opportunity to resolve any discrepancy between his statements and information from another source" as ordinarily is required by PAM 130 p.4.

Although it appears that DCH policy on residency does not include the restrictions that were added to the DHS residency policy in October 2004, non-citizens who are denied Medicaid based on DHS residency policy are automatically denied MOMS.

What Should Advocates Do?

Advise non-citizens who do not have permanent resident alien status that they should not provide immigration documents when applying for Medicaid or MOMS without first consulting an attorney. (See "How to find legal help" below.)

Encourage individuals who are denied, or terminated from, Medicaid or MOMS based on lack of residency to seek legal help.

Legal advocates who cannot assist certain non-citizens because of funding restrictions may contact the Center for Civil Justice for possible referral assistance.

What Should Clients Do?

Do not submit immigration documents with your application for Medicaid or MOMS without first consulting an attorney, unless you have papers showing that you are a permanent resident alien.

Seek legal advice if you are denied medical coverage for Emergency Services or Prenatal Care (Medicaid or MOMS) because of your immigration status or lack of residency.

Finding Help

Most legal aid and legal services offices handle these types of cases, and they do not charge a fee.

You can locate various sources of legal and related services, including the free legal aid office that serves your county, at MichiganLegalAid.org.

You can also look in the yellow pages under "attorneys" or call the toll-free lawyer referral number, (800) 968-0738.