Introduction
In many countries around the world, healthcare is a constitutional right.[1] Healthcare is critical to a country’s economy because countries progress when they have healthy, working residents.[2] The United States does not have universal health insurance coverage.[3] The majority of residents in the U.S. are insured through employer-sponsored health insurance programs.[4] Unauthorized immigrants face significant barriers when attempting to access the U.S. healthcare system. Generally, only noncitizens and immigrants who are lawfully present in the U.S. may qualify for government or employer-sponsored health insurance programs.[5] This blog will examine the methods of health insurance available to noncitizens and then take a closer look at how noncitizens access healthcare in the U.S. This paper argues that all foreign-born workers, regardless of their immigration status, should be included in national and state health insurance programs.
Throughout this blog, the term “foreign-born workers” will be used to include immigrants and nonimmigrants. Immigrants are potential citizens who come to the U.S. to take up lawful permanent residence.[6] Nonimmigrants are noncitizens who typically enter the U.S. for a temporary stay and for a specific purpose.[7] Unauthorized immigrants are potential citizens who either entered the U.S. without inspection, or legally entered the U.S. but overstayed a valid nonimmigrant visa.[8] The primary focus of this blog will be on unauthorized immigrants.
Current State of Health Insurance for Noncitizens in the U.S.
The United States has no single national system of health insurance coverage for the general population.[9] Instead, the U.S. healthcare system includes a range of public and private, for-profit and nonprofit insurers and healthcare providers.[10] The federal government provides funding for national programs, including Medicare, Medicaid, Children’s Health Insurance Program (CHIP), and the Affordable Care Act (ACA).[11] Federal health insurance programs are a primary source of coverage for low-income households without access to employer-sponsored insurance.[12]
Noncitizens, however, are prevented from enrolling in many federal health insurance programs, including ACA and Medicaid.[13] At its inception, Medicaid provided coverage to all eligible people without regard to citizenship or immigration status.[14] In 1986, Congress codified the exclusion of certain noncitizens from Medicaid, with an exception for emergency Medicaid services.[15] It is estimated that of 10.5 million unauthorized immigrants in the U.S., about 45% to 71% are uninsured.[16] Foreign-born workers are “more likely to be uninsured because they have more limited access to private coverage due to working in jobs that are less likely to provide health benefits, and they face eligibility restrictions for federally-funded coverage options.”[17] Further, foreign-born workers who are eligible for coverage face enrollment barriers including fear, confusion about eligibility rules, and language and literacy challenges.[18] Enrollment to health insurance is a preventable barrier that should be removed for foreign-born workers.
One important factor of foreign-born workers’ insurance rates is the location in which the noncitizens live. Some states have implemented programs to expand coverage of noncitizens through Medicaid and CHIP, with a focus on low-income people, children, and pregnant people.[19] Noncitizens in states with expansive coverage policies are more likely to be insured by both private and state-funded programs.[20] All state and federal programs must be expanded for greater coverage of noncitizens, including unauthorized immigrants.
Some industries, including agriculture, private household employment, and landscaping, may be more likely to pay its workforce in cash and taxes are not reported by the employer.[21] When foreign-born workers are paid in cash, regardless of their immigration status, there is actually an incentive to report and pay that federal income and other payroll taxes. One characteristic of attaining lawful permanent residence and eventually U.S. citizenship is good moral character, which includes one’s criminal history.[22] Paying taxes as required by law is a strong method of proving good moral character if an unauthorized immigrant intends to pursue lawful residence.[23] If any foreign-born worker or unauthorized immigrant pays federal taxes, they should be permitted to access federal health insurance programs.
Employment-sponsored insurance (ESI) is health insurance that is subsidized by the federal government through the federal tax exclusions on payroll and income tax.[24] Despite high rates of employment of noncitizens, ESI programs are often not available.[25] About 70% of noncitizens in the U.S. are employed and self-sufficient.[26] However, almost three-fourths of unauthorized immigrants are employed in low-wage jobs and industries that are less likely to offer employer-sponsored coverage.[27] Qualifying noncitizens who work for employers that offer ESI are eligible to enroll in the program on the same terms as U.S. citizens.[28] According to the ACA, qualifying noncitizen groups include Deferred Action for Childhood Arrivals (DACA) recipients and lawful permanent residents.[29] ESI is not accessible to unauthorized immigrants, inadmissible immigrants, or deportable immigrants.[30] The ACA codified that unauthorized immigrants were ineligible for private health insurance programs.[31] ESI qualifying groups should include all noncitizens, and be extended to unauthorized immigrants. All foreign-born workers should be eligible to opt in to a private health insurance policy if their employer offers it. The barrier established by the ACA to enroll in private health insurance should be removed for all unauthorized immigrants.
Importance of Accessible Healthcare Services
Access to good health and well-being is a human right.[32] Good health practices lower the rate of epidemics and diseases, and increase rates of preventive care.[33] Health promotion is the “process of empowering people to increase control over their health and its determinants through health literacy efforts and multisectoral action to increase healthy behaviors.”[34] Health education typically targets both behavioral risks and mental health for the community-at-large and specific populations that may be at-risk.[35] The primary purposes of improved health education of at-risk populations, including noncitizens, are disease prevention and health promotion.[36] This may include vaccination, nutritional supplementation, mental health services, dental hygiene education, or population-based screening for preventable diseases.[37]
Understanding the health care needs of the immigrant population in the U.S. is increasingly important because of their growing proportion to society.[38] The Healthy Immigrant Effect suggests that immigrants tend to exhibit better health overall than domestic-born populations.[39] This research has also “attributed the observed health advantage among immigrants to their resilience, suggesting that newcomers…have the motivation and determination to succeed”.[40] However, the countries that many immigrants are traveling from puts them at risk for both chronic conditions and mental health illnesses.[41] Providing public health benefits to both adult and child immigrants can improve their health and opportunity, and that of others, later in life.
While federal law excludes nonqualified noncitizens from many federal health insurance programs, the individuals may still be able to receive public health benefits.[42] Some healthcare settings provide care to individuals regardless of their ability to pay or their citizenship status, including emergency departments, public health centers, and free clinics.[43] Hospitals that seek to maintain a federal tax-exempt status must meet a community benefit standard by “providing charity care or engaging in other health promotion activities.”[44] Health centers are federally funded outpatient facilities and must be located in medically underserved areas and provide care to all regardless of their ability to pay.[45] Free clinics are nonprofit facilities that provide care at free or reduced rates.[46] Noncitizens may be served at any health center or free clinic; this public health service acts as a safeguard to both noncitizens’ health and ethical social norms.[47] Because they are subsidized by the government, foreign-born workers without insurance may accrue high costs to society when they receive emergency healthcare.[48] Further, public health clinics are federally funded and may be a more common source of healthcare for foreign-born workers due to their location and low cost.[49]
Noncitizens’ Use of Healthcare in the U.S.
Unauthorized immigrants utilize health care services in the U.S. significantly less than natural-born or naturalized citizens.[50] Health deservingness is the ethical and moral assessment of a group’s entitlement of social and economic benefits.[51] U.S. taxpayers’ dollars already contribute to the funding of emergency centers and public health clinics.[52] Uninsured foreign-born workers utilize these taxpayer-funded services in order to survive.[53] Noncitizens are less likely to visit an emergency department (8.7%) compared to U.S. citizens (14.7%).[54] The primary health care costs for unauthorized immigrants visiting emergency departments (over 80%) is associated with childbirth.[55] Since the U.S. healthcare system already accounts for much of the healthcare costs of noncitizens, federal and state legislatures should codify noncitizens’ access to insurance benefit programs.
Despite the availability of various healthcare programs, noncitizens may still face barriers to healthcare access, including immigration enforcement fears, the public charge rule, cost of services, lack of transportation, and lack of sick leave or unpredictable work schedules that interferes with medical appointments.[56] Some noncitizens may be hesitant to seek medical care because they fear being arrested at a healthcare center.[57] Immigration and Customs Enforcement (ICE), however, has a “long-standing policy of not taking enforcement action at certain sensitive locations”, including medical treatment and healthcare facilities.[58]
Noncitizens may also fear that they will be deemed inadmissible or deportable under the Immigration and Nationality Act (INA) on grounds that they are a public charge.[59] From 2019 to 2021, the definition of public charge included anyone who received public benefits, which included many noncitizens.[60] Although this definition was adjusted under the Biden Administration, the effects of the rule have led many noncitizens to fear public benefits, including Medicaid, ACA, and CHIP.[61] Due to these fears and barriers, noncitizens, particularly unauthorized immigrants, are less likely to receive preventive healthcare and less likely to have a regular source of care other than emergency care.[62]
Remedies
The health and wellbeing of noncitizens provides many benefits to U.S. citizens and society. By promoting health and healthcare education, foreign-born workers will be a more productive workforce, and therefore better able to contribute to society and their local economies.[63] Foreign-born workers are employed in a wide range of essential industries and services in the U.S., including agriculture, hospitality, and construction services.[64] Foreign-born workers help fill critical gaps in the U.S. economy.[65] Foreign-born workers are more likely to participate in the labor force and they have been a powerful contributor to the continued recovery of the U.S. economy in a post-pandemic recession.[66] When foreign-born workers are healthy and working, the U.S. economy thrives and it creates more opportunities for all workers. The health of all noncitizens is better for the national public health in addition to improving the U.S. economy.[67]
The exclusionary nature of the U.S. healthcare system has implications which restricts access of most noncitizens. To make the healthcare system more accessible to noncitizens, federal and state insurance programs must be amended. Noncitizens, whether they enter the U.S. with or without permission, should be permitted to pay into Medicare and Medicaid and have the option to purchase private or employer-sponsored insurance. Further, government agencies and employers should provide clarity to dispel noncitizens’ fears of removal by simply accessing necessary healthcare.
The overwhelming majority of noncitizens are employed in essential industries.[68] Foreign-born workers should have the opportunity to contribute to employment-sponsored insurance programs. When this is not available, foreign-born workers and their immediate relatives should be able to receive benefits from government health insurance programs regardless of their immigration status. The U.S. should be rewarding, not punishing, residents who contribute to its economy and society.
[1] Hiroaki Matsuura, Exploring the Association Between the Constitutional Right to Health and Reproductive Health Outcomes in 157 Countries, 27(1) Sex Reprod. Health Matters 168, 169 (2019).
[2] Madeline M. Culbreth, Comment: Public Charge Grounds for Inadmissibility: Impact on Noncitizen Health Insurance Coverage, 25 Rich. Pub. Int. L. Rev. 131, 134.
[3] Roosa Tikkanen et al., International Health Care System Profiles: United States, The Commonwealth Fund 1 (June 5, 2020), https://www.commonwealthfund.org/international-health-policy-center/countries/united-states [https://perma.cc/ZV5P-EZBD].
[4] Id.
[5] Coverage for Lawfully Present Immigrants, Note to Health Coverage for Immigrants, HealthCare.gov, https://www.healthcare.gov/immigrants/coverage/ [https://perma.cc/QS9V-MWNE].
[6] T. Alexander Alienikoff et al, Immigration and Citizenship: Process and Policy 105 (9th ed. 2021).
[7] Id.
[8] Id; see also, Requirements for Admission, 8 C.F.R. § 214.1 (2023).
[9] Tikkanen, supra note 3 at 1.
[10] Id.
[11] Coverage for Lawfully Present Immigrants, supra note 5.
[12] Id.
[13] Louise Norris, How Immigrants Can Obtain Health Coverage, HealthInsurance.org (Apr. 30, 2023), https://www.healthinsurance.org/obamacare/how-immigrants-are-getting-health-coverage/ [https://perma.cc/QW47-WC77].
[14] See, e.g., Lewis v. Gross, 663 F. Supp. 1164, 1181-82 (E.D.N.Y. 1986).
[15] See Medha D. Makhlouf, Article: Laboratories of Exclusion: Medicaid, Federalism & Immigrants, 95 N.Y.U.L. Rev. 1680, 1701.
[16] Samantha Artiga and Maria Diaz, Health Coverage and Care of Undocumented Immigrants, KFF 3 (Jul. 15, 2019) https://www.kff.org/racial-equity-and-health-policy/issue-brief/health-coverage-and-care-of-undocumented-immigrants/ (finding that 45% of unauthorized immigrants are uninsured); Randy Capps et al., A Demographic, Socioeconomic, and Health Coverage Profile of Unauthorized Immigrants in the United States, 5 Migration Pol’y Inst. 1, 7 (May 2013) (finding that 71% of unauthorized immigrants are uninsured); see also Elaine Kamarck and Christine Stenglein, How Many Undocumented Immigrants Are in the United States and Who Are They?, Brookings Inst. (Nov. 12, 2019), https://www.brookings.edu/articles/how-many-undocumented-immigrants-are-in-the-united-states-and-who-are-they/ [https://perma.cc/TD5R-X5U2]. There is a large discrepancy in data because unauthorized immigrants are typically unwilling to disclose their residency status to data collectors.
[17] Kaiser Family Found., Key Facts on Health Coverage of Immigrants (Sept. 17, 2023), https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-health-coverage-of-immigrants/#endnote_link_597741-3 [https://perma.cc/UP79-HF7M].
[18] Id.; see also Deb Gordon, Health Insurance Confusion Continues To Plague Americans, New Data Show, Forbes (Feb. 8, 2021), https://www.forbes.com/sites/debgordon/2021/02/08/health-insurance-confusion-continues-to-plague-americans-new-data-show/?sh=4f30d6eb4667 [https://perma.cc/2AVG-8JEC] (describing that “about 56% of US citizens report feeling ‘completely lost’ in trying to understand health insurance” and the feeling is more common for people without insurance (64%)).
[19] Drishti Pillai et al., Health and Health Care Experiences of Immigrants: The 2023 KFF/LA Times Survey of Immigrants, KFF (Sept 17, 2023), https://www.kff.org/racial-equity-and-health-policy/issue-brief/health-and-health-care-experiences-of-immigrants-the-2023-kff-la-times-survey-of-immigrants/ [https://perma.cc/TXH3-9WL4] (listing California, Colorado, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, Rhode Island, and Washington as states with expansive coverage of noncitizens).
[20] Id.
[21] Jeffrey S. Passel and D’Vera Cohn, Size of U.S. Unauthorized Immigrant Workforce Stable After the Great Recession, Pew Research Center 11 (Nov. 2016).
[22] Immigration and Nationality Act of 2022 § 316(a), 8 U.S.C. § 1427 (2023).
[23] Shaftel Law, When Tax Issues Affect One’s Ability to Naturalize (Become a U.S. Citizen), Shaftel Law (Mar. 2021), https://www.lawshaftel.com/immigration-law-tips/when-tax-issues-affect-ones-ability-to-naturalize-become-a-u-s-citizen/ [https://perma.cc/MRU7-WXX9].
[24] Makhlouf, supra note 15 at 1700.
[25] Kaiser Family Found., supra note 17.
[26] Id.
[27] Id.
[28] Makhlouf, supra note 15 at 1721.
[29] Id.
[30] Id.
[31] Undocumented Immigrants in the United States: Use of Health Care, The Hastings Center,
https://undocumented.thehastingscenter.org/issuebrief/health-care-use/ [https://perma.cc/3QTL-JP5B]; see also, Patient Protection and Affordable Care Act (ACA), 124 Stat. 119 (2010).
[32] UN Universal Declaration of Human Rights (UDHR) art. 25; see also, UN Department of Economic and Social Affairs, Sustainable Development Goals, Goal 3: Good Health and Well-Being.
[33] Id.
[34] World Health Organization (WHO), Health promotion and disease prevention through population-based interventions, including action to address social determinants and health inequity, https://www.emro.who.int/about-who/public-health-functions/health-promotion-disease-prevention.html [https://perma.cc/KV32-RJ7A].
[35] Id.
[36] Id.
[37] Id.
[38] Lydie A. Lebrun and Lisa C. Dubay, Access to Primary and Preventive Care among Foreign-Born Adults in Canada and the United States, 45(6) Health Serv. Rsch. 1693, 1693 (Dec. 2010).
[39] Sarah Elshahat et al., Understanding the Healthy Immigrant Effect in the Context of Mental Health Challenges: A Systematic Critical Review, 24(6) J. Immigr. Minor Health 1564, 1565 (Nov. 2021).
[40] Id.
[41] Fabricio J. Alarcon, The Migrant Crisis and Access to Health Care, 8(4) Del. J. Public Health 20, 22 (finding “[c]hronic conditions like diabetes, high blood pressure, heart disease, and malnutrition are prevalent among migrants. In addition, their current situation puts them at higher risk of mental health illnesses, such as depression, anxiety, post-traumatic stress disorder and substance abuse.”).
[42] Abigail F. Kolker and Elayne J. Heisler, Immigrants’ Access to Health Care, Cong. Rsch. Serv. 18 (Dec. 21, 2022).
[43] Id. at 19; Patrick Glen, Health Care and the Illegal Immigrant, 23 Health Matrix 197, 229 (2013) (discussing EMTALA and its underlying ethical principle that every person should receive medical treatment when it is necessary).
[44] Kolker and Heisler, supra note 42 at 20.
[45] Id.
[46] Id.
[47] Makhlouf, supra note 15 at 1773.
[48] Kolker and Heisler, supra note 42 at 20.
[49] Makhlouf, supra note 15 at 1725-26.
[50] Hastings Center, supra note 28 (over 80% of health care costs for unauthorized immigrants are for childbirth).
[51] Anna Bianchi et al., Are the Undocumented Deserving? Health Workers’ Views of
Immigrants in Alabama, 30(2) J. Health Care Poor Underserved 820, 821(Aug. 2019).
[52] Makhlouf, supra note 15 at 1690.
[53] Id.
[54] Wassim Tarraf et al., Emergency Department Services Use among Immigrant and Non-Immigrant Groups in the United States, 16(4) J. Immigr. Minor Health 595, 612 (Aug 2014).
[55] Hastings Center, supra note 31.
[56] Kolker and Heisler, supra note 39 at 23-24.
[57] Id. at 23 (In addition to general fears about healthcare, unauthorized immigrants often have specific fears regarding their immigration status when seeking medical care).
[58] Id. at 24
[59] Culbreth, supra note 2 at 135.
[60] Id. at 133.
[61] Id. at 144.
[62] Id. at 149.
[63] Healthy Communities Mean a Better Economy, BlueCross BlueShield (Jan. 12, 2017), https://www.bcbs.com/the-health-of-america/articles/healthy-communities-mean-better-economy [https://perma.cc/MS26-DJUA].
[64] Arloc Sherman et al., Immigrants Contribute Greatly to U.S. Economy, Despite Administration’s “Public Charge” Rule Rationale, Ctr on Budget and Pol’y Priorities (Aug. 15, 2019), https://www.cbpp.org/research/immigrants-contribute-greatly-to-us-economy-despite-administrations-public-charge-rule [https://perma.cc/UN6D-DS6T].
[65] Id.
[66] Senator Martin Heinrich, The Contributions of Immigrants are Essential to U.S. Economic Growth and Competitiveness, Joint Econ. Comm. Democrats, https://www.jec.senate.gov/public/index.cfm/democrats/2022/12/the-contributions-of-immigrants-are-essential-to-u-s-economic-growth-and-competitiveness [https://perma.cc/3TYN-S68J].
[67] Sherman, supra note 64.
[68] Sherman, supra note 64.
