California moves toward extending Obamacare to illegal immigrants

Most Americans say they're happy with Obamacare
Most Americans say they're happy with Obamacare

During a 2009 address to a joint session of Congress, President Barack Obama told the country that his plans for health care reform would not extend to people who are in the country illegally.

"You lie!" South Carolina Republican Rep. Joe Wilson notoriously shouted. Obama replied, "That's not true."

But only two years after the largest coverage provisions in the Affordable Care Act took effect, the country's most populous state has passed a bill that, in fact, seeks to extend Obamacare to people regardless of their immigration status.

The bill, now before California Gov. Jerry Brown, aims to allow people who are in the country illegally to buy private health insurance on the state's exchange. Its author, Democratic state Sen. Ricardo Lara estimates that 390,000 such immigrants could receive health insurance, but officials who operate the exchange place that number closer to 50,000.

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The legislation is being considered not only at a time when presidential candidates are campaigning in the Golden State but as those running have made health care and illegal immigration central platforms in their bids for the Oval Office, finding that their views on the topics have ignited voters' passions. To critics of the law, the bill signals another broken promise of Obamacare.

Obamacare explicitly bars people in the country illegally from its provisions, but a loophole called the "innovation waiver" allows for states to change portions of the law, as long as they make coverage available to more people and as long as the federal government doesn't have to pick up the tab, among other requirements. The bill, which would require that a request for a waiver be filed, first must be approved by the state legislature and the governor before the waiver can be considered by the federal government.

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Though the California bill does not come with federal subsidies that make health insurance more affordable to low- and middle-income people, critics fear it's heading that way.

"This is a two-step process: Open the door to the exchanges, but when no one can afford to buy insurance you come back and add the subsidies," says Ira Mehlman, a spokesman for the Federation for American Immigration Reform. "This is the first step in another misrepresentation of the Affordable Care Act. It was sold to the American people on the fact that you wouldn't have to subsidize health care for illegal immigrants."

Jesse Melgar, a spokesman for Lara's office, reiterated that the bill did not provide for federal subsidies and says the question of whether the state would pay for them would be part of an ongoing conversation. He stressed that the focus was on passing the waiver and says the bill would give families with mixed immigration status – for instance, those in which adult children are U.S. citizens but their parents aren't – the ability to sign up for the same plan, potentially making it easier for them to get care.

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But it is unclear exactly to what extent people would want to buy plans without subsidies. Nothing prevents people who are in the country illegally from buying health insurance directly from brokers, and the plans offered on the exchange have similar prices to those sold off the exchange.

Mehlman, whose D.C.-based nonprofit calls for strict immigration control, says it is exactly this tension that will lead to subsidies eventually being added, given that the plans are unlikely to be affordable. He thinks that more states would likely follow suit.

Brown has not indicated whether he will sign the bill, and a spokeswoman says they do not comment on pending legislation. Brown has 12 days to veto or sign the measure, and if he does nothing it will become law.

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California has been moving in the direction of permitting more benefits to people regardless of immigration status. Last year, Medi-Cal, the state's program for low-income residents that is known as Medicaid in most states, opened health care coverage to all low-income children, despite immigration status. An estimated 170,000 children will become eligible at a cost of $40 million to the state this year and $132 million each subsequent year.

Groups who oppose illegal immigration have said they would consider filing a lawsuit against the state or the administration.

"This is the United States, and our legislators should be writing bills for U.S. citizens and not for people who are in the country illegally," says Robin Hvidston, executive director for We the People Rising, a group that opposes illegal immigration. "It sends the message to the world, 'Come to California illegally, you will have bills written for you.' It acts as a magnet for the world to have people illegally in the state."

Tim Jost, professor of Washington and Lee University School of Law, says a lawsuit is possible but unlikely to achieve its objectives.

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"With the Affordable Care Act, people sue about absolutely everything," he says. "Most cases have been dismissed for lack of standing." Because the lawsuit would be political and not legal, Jost added, it would be difficult to show that people had been injured because of the law, and a lawsuit would likely be dismissed.

If Brown signs the waiver bill, members of the Department of Health and Human Services and the Department of Treasury will have up to 225 days to make a decision about whether to approve it. The timeline means all of this could happen before Obama leave office.

It's unclear what the administration would do. Obama has tried through executive action to protect roughly 4 million people in the country illegally from deportation, but that move is being considered by the Supreme Court. On the other hand, as of June 30, 2015, his administration discontinued subsidies and cut off health insurance coverage for 423,000 people who, after multiple outreach efforts from federal health officials, did not provide proof of their citizenship or immigration status, according to the Centers for Medicare and Medicaid Services.

The government already funds some health care for immigrants who are in the U.S. illegally. Under the Emergency Medical Treatment and Active Labor Act, for instance, hospitals are reimbursed when they provide emergency and maternity care for low-income people who need it, regardless of immigration status. Immigrants in the country illegally also can receive medical care through government-funded community health clinics.

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