In May of 2019, President Trump signed the “Memorandum of Enforcing Legal Responsibilities of Sponsors of Aliens” regarding the determination of eligibility for certain sponsored immigrants who seek coverage under Medicaid programs (Medi-Cal) and the Children’s Health Insurance Program (CHIP). The focus of the memorandum is to make sure the states, who administer the Medicaid benefits, are accurately complying with federal law to deem a sponsor’s income when determining the eligibility of a Lawful Permanent Resident for Medicaid programs and to notify the sponsors that under certain situations they may be responsible for the cost of those benefits. FAQ of the Memorandum.
In August of 2019, The Department of Health and Human Services issued a letter (SHO # 19-004) to State Health Officials notifying them they had to develop certain income methodologies for deeming income and notification for the potential repayment responsibility on the part of the sponsor of the Lawful Permanent Resident. A cynical assessment is that this request for heighten scrutiny is just another means of scaring Lawful Permanent Residents and their sponsors from participating in Medicaid benefits they are entitled to. It also dovetails with the rules regarding being declared a Public Charge for receiving Medicaid benefits potentially eliminating the ability to apply for U.S. citizenship.
The irony is that the Center for Medicare and Medicaid Services (CMS), that is under the Department of Health and Human Services, does not have the authority to unilaterally impose new income methodologies or repayment notification because of the state level administration of these Medicaid programs. CMS is letting the states develop their own methodologies within the guidelines of certain laws and regulations. The downside is that the states administer these Medicaid programs. This allows states who are hostile to Lawful Permanent Residents, or immigrants in general, to impose very exacting income reporting requirements in an effort to deny Medicaid benefits or go after sponsors for repayment.
It is rather ridiculous that programs so important to a person’s life, like health care coverage, can have rules and regulations that vary from state to state, as if, somehow the human condition is different depending on what state you live in.
California Department of Health Care Services, who administers California’s Medicaid program known as Medi-Cal, will have received this letter. It is unclear if California will need to adopt any new procedures or if applying for health insurance through Covered California will be impact. Below are highlights of the guidance in the CMS letter that you can download in full at the end of the post.
Eligibility of Lawful Permanent Resident for Medicaid Benefits
Methodologies for Determining Sponsor Deeming
Section 8 U.S.C. § 1631 does not specify what methodology states should use in determining sponsors’ income and resources for purposes of the sponsor deeming requirements, and states have flexibility to determine a reasonable methodology for doing so. Below we describe several approaches CMS believes are reasonable. States may choose from the methodologies described or present an alternative methodology for CMS approval. A number of the options described are not mutually exclusive, and states may elect to combine two or more options. Note that any reference in the discussion below to a sponsor’s income or resources also includes the income or resources of any household member of the sponsor who signed a Form I-864A Contract.
Immigrants sponsored by a spouse or parent
Many immigrants are sponsored by a parent or spouse such that the sponsor’s income and/or resources would be counted in determining the sponsored immigrant’s eligibility independent of the sponsor deeming provision. In such circumstances, we believe states may comply with the sponsor deeming requirements by determining eligibility for the sponsored immigrant by following the methodologies described in the Medicaid and CHIP statutes and regulations, and the applicable state plan.
In other words, the normal methodologies for determining the household income would apply.
Deem all gross or countable income and resources
“Income” and “resources” for purposes of the sponsor deeming statute could reasonably include all of a sponsor’s gross income and/or resources, or all of a sponsor’s income and resources that are otherwise countable under the financial eligibility methodologies applied to Medicaid or CHIP applicants and beneficiaries (countable income and resources).
Account for needs of the sponsor and/or sponsor’s dependents
In determining the amount of a sponsor’s income available for the sponsored immigrant, states may account for the sponsors’ needs or the needs of sponsors’ dependents. MAGI methodologies generally account for the needs of other family members by including them in the household size of the Medicaid applicant. Under SSI methodologies, a deduction (called an “allocation”) is made from the income of a spouse or parent of an SSI applicant for each of their dependents in determining how much of the spouse’s or parent’s income to deem available to the SSI applicant.
Apply income and/or resource disregards adopted under the state plan
States may apply income and/or resource disregards approved under section 1902(r)(2) of the Act to the sponsor’s income and/or resources to the extent that such disregards would be applied if the sponsor him or herself were applying for coverage.
Repayment from Sponsors for Lawful Permanent Resident Medicaid benefits
Repayment from Sponsors
Section 213A of the INA, 8 U.S.C § 1183a, authorizes states to recover the costs of means-tested public benefits, including Medicaid or CHIP, provided to sponsored immigrants from sponsors who have signed a Form I-864 Affidavit of Support, or a Form I-864A Contract in support of a Form I-864 Affidavit of Support, during the time period that the Form I-864 Affidavit of Support is in effect. Title 8 CFR § 213a.4(a)(1) provide that states have the discretion to seek the repayment from the sponsor.
In pursuing reimbursement of benefits from an immigrant’s sponsor, states must follow the process set out by DHS regulations at 8 CFR § 213a.4. When requesting reimbursement from a sponsor,12 the state agency must arrange for a written request for reimbursement to be provided to the sponsor through personal service.13 The request for reimbursement must contain specific information, including an itemized statement supporting the claim for reimbursement. If there is no response to the reimbursement request within 45 days of the date of service indicating a willingness to commence repayment, the state agency may file a lawsuit against the sponsor to enforce the sponsor’s support obligation. More detail on the recovery procedures is available in DHS’ regulations at 8 CFR § 213a.
The requirement to repay cost of Medicaid and CHIP benefits pertains only to a sponsor who has signed a Form I-864 Affidavit of Support or a Form I-864A Contract. The state agency may not seek repayment from the sponsored immigrant.
Does not pertain to sponsored immigrant children, pregnant women, emergency medical care, LPR has accrued 40 qualifying work quarters, or has become a naturalized citizen.
Pursuant to 8 U.S.C. § 1183a, sponsors are liable for the cost of the Medicaid or CHIP benefits that a sponsored immigrant receives even if the state agency granted an exemption from the requirement to deem the sponsor’s income and/or resources to the sponsored immigrant on the basis that the immigrant is indigent or a victim of battery or extreme cruelty. The state may seek repayment from the sponsor in these circumstances.
HHS tracking sponsor liability
Data Collection and Reporting Related to Sponsor Liability
Section 5 of the Presidential Memorandum provides that the Departments of State, Homeland Security, Agriculture, Health and Human Services, and the Social Security Administration coordinate to establish and maintain records regarding each sponsor’s reimbursement obligations and status, as appropriate and consistent with law. We are working with our federal partners to develop a coordinated process for states to share information relating to sponsor liability to the extent permitted under applicable laws, including the INA, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and titles XIX and XXI of the Act. We will provide additional information and guidance on this process as soon as it is available.
Collection and Verification of Information Necessary to Conduct Eligibility Determinations.
Identification of Sponsored Immigrants/Verification through SAVE and SSA
States administering federal means-tested public benefits can verify whether a sponsored immigrant is subject to the sponsor deeming and repayment provisions by using DHS’s Systematic Alien Verification for Entitlements (SAVE) program, either through the Federal Data Services Hub Verify Lawful Presence v37 service or through a direct connection with the web-based Graphic User Interface (GUI).
Obtaining and Verifying Sponsor’s Income and Resource Information
States will need to be able to collect information about sponsor income and resources, as appropriate, in order to make accurate Medicaid and CHIP determinations. Immigrants subject to the sponsor deeming requirements are responsible for obtaining the cooperation of the sponsor in providing information needed about the sponsor’s income and resources, as well as any needed documentation. States will use their current verification policy and procedures, including obtaining verification from electronic sources whenever possible, to verify sponsor income and resources. If either the sponsored immigrant or the sponsor fails to cooperate in providing information or documentation necessary to determine eligibility, the sponsored immigrant’s eligibility must be denied or terminated.
The reasonable opportunity period (ROP) described in section 1137(d) of the Act and 42 CFR § 435.956(b) of the regulations, during which otherwise-eligible immigrants can receive benefits pending verification of their immigration status, does not apply in the case of sponsored immigrants pending verification of sponsor income and/or resources. The requirement to furnish benefits during an ROP only applies to non-citizens who otherwise meet the eligibility criteria for coverage under the state plan, including income and resource requirements, as applicable, pending verification of immigration status. If verification of sponsor income or resources is pending, the state will be unable to determine whether the individual meets the income/and or resources criteria for Medicaid or CHIP.