Granting Status to Illegals May Get Them Better Health Plans Than Citizens, at Taxpayer Expense
- The news comes on the heels of revelations that HHS has yet to determine the citizenship status of 1,295,571 Obamacare exchange enrollees.
By the Obamacare Truth Squad, July 8, 2014
Executive Summary:
- Non-citizens granted any sort of legal status by a congressional immigration deal or Executive fiat would immediately become eligible under Obamacare’s Basic Health Program (BHP) provisions for taxpayer-subsidized, Obamacare-compliant private health insurance plans, with better benefits and lower premiums than U.S. citizens.
- Such persons could also receive “cost-sharing” subsidies under Obamacare.
- The Senate comprehensive immigration reform bill, S.744 passed earlier this year, purports but fails to prevent persons newly granted “legal status” from receiving Obamacare subsidies.
- An HHS final rule issued in March extended Basic Health Program benefits to aliens lawfully present in the country from 0-200 percent of the official Federal Poverty Line (FPL) when the statute explicitly states that no lawfully present aliens above 133 percent of FPL are eligible.
- The statute clearly limits who is eligible for the BHP, but HHS’ rule opens the door to others being deemed eligible, contrary to the law, and without congressional approval.
Background
Obamacare §1331 creates the “Basic Health Program,” an optional program that states may adopt to make subsidized care available, separate from the Obamacare exchanges. More generous than Medicaid, the program provides federal subsidies to the state equal to 95 percent of the subsidy the enrolled individuals would have gotten on an exchange.
HHS Issues New “Final” Rule
In a little-noticed rule-making dated March 12th, 2014, President Obama’s Health and Human Services issued the final Basic Health Program rule that would make heavily subsidized Obamacare immediately available to millions of aliens currently not lawfully present in the United States, if future legislative reforms or executive actions grant those aliens what Obamacare terms “legal status.”
It’s not clear what Obamacare meant by “legal status,” but it could reasonably be argued that any work permit, temporary visa, waiver, amnesty, or virtually any other pretext might suffice.
Illegal Changes
The Basic Health Program offers heavy taxpayer subsidies to citizens and legal non-citizens. The Obamacare law permits BHP subsidies for U.S. citizens with incomes from 133 percent to 200 percent of FPL, and legal aliens with incomes from 0 to 133 percent of FPL. But, HHS’ final rule broadens those subsidies to legal aliens with incomes from 0 to 200 percent of FPL.
Specifically, the PPACA itself specifies enrollment for aliens “lawfully present” shall be limited to:
“…in the case of an alien lawfully present in the United States, whose income is not greater than 133 percent of the poverty line…” —PPACA, §1331(e) (42 U.S.C. 18051(e)(1)(B))
But HHS’ final rule extends those payments to “aliens lawfully present” with incomes that are greater than 133 percent of FPL:
“whose household income is between zero and 200 percent of the FPL” —42 CFR 600.305
Thus, the HHS rule illegally makes federal taxpayer-paid subsidies available to legal (and newly legalized) non-citizens with incomes from 133 to 200 percent of FPL, people who are ineligible according to the law (PPACA § 1331(e)).
The HHS rule also transmutes the PPACA’s directive that “only people who meet these requirements” will be eligible for the BHP into “people who meet these requirements are eligible.” This slippery substitution opens the possibility that HHS may deem additional people eligible at some future date, even if they don’t meet the law’s requirements.
Generous Subsidies, At Taxpayer Expense
Under the BHP, the subsidies for non-citizens amount to 95 percent of what citizens would receive on an exchange. However, the BHP offers an additional sweetener: the plans must charge premiums that are less than the 2nd lowest silver plan, but must offer Obamacare’s platinum-level “cost-sharing” subsidies (or gold-level, depending on the alien’s income). As a result, the holders of these policies will have much lower out-of-pocket costs than citizens with exchange plans. Moreover, in many instances citizens will be forced onto Medicaid, whereas aliens with comparable incomes will receive deluxe private insurance at taxpayer expense.
BHP is a state program that must be instituted by each state. However, states like California will no doubt be eager to do so, because they will then be able to shift the medical costs of their (currently) illegal populations onto the rest of the country.
Senate Bill S.744 Does Not Stop This
Does S.744, the comprehensive amnesty bill passed by the Senate, prevent currently illegal aliens who obtain lawful status from receiving BHP benefits? No. S.744′s language blocks insurance premium tax credits paid via the IRS. But that isn’t how BHP’s subsidies are paid. Under the Basic Health Program, Obamacare pays subsidies from HHS directly to the states (42 USC §18051(d)), which then pay premium assistance (IRC §36B) and cost-sharing subsidies (PPACA §1402) directly to insurers, thus avoiding the IRS payment mechanism altogether.
Conclusions
- Non-citizens granted any sort of “legal status” by an immigration deal or Executive Order would immediately become eligible for taxpayer subsidized, Obamacare-compliant private insurance plans. If they get a green card, work permit, etc., their newly granted status would entitle them to the Basic Health Program with better benefits and lower premiums than the Obamacare plans of the U.S. citizens who would be paying for these non-citizens’ subsidies.
- The altered phraseology regarding BHP eligibility requirements creates ambiguity where the statute has none.
- In some instances, Americans are condemned to mandatory Medicaid, while similarly situated non-citizens are treated to deluxe BHP private insurance, at citizens’ expense. Also, under the BHP, aliens with newly-granted status would receive better cost-sharing benefits than American citizens on Obamacare’s exchanges.
- HHS’ final BHP rule violates the plain, unambiguous, and specific requirements of the statute by illegally making BHP subsidies flow to non-citizens with incomes over 133 percent of FPL.
A Final Observation
Finally, Rep. Joe Wilson (R-SC), widely criticized in 2009, appears vindicated:
PRES. OBAMA: “There are also those who claim that our reform efforts would insure illegal immigrants. This, too, is false. The reforms — the reforms I’m proposing would not apply to those who are here illegally.”
Rep. JOE WILSON “You lie!”
—Remarks by the President to a Joint Session of Congress, 9/9/2009
Although Obamacare would not, strictly speaking, be offered to illegal aliens, it will in fact ultimately be offered to the exact same people Rep. Wilson said it would, the very people the President promised would not get Obamacare.
Joe Wilson was right.
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The Law vs. HHS’ Final Rule, side-by-side
The Truth Squad has highlighted some of the differences we found.
How many can you find?
