Updated December 21, 2020
Actions taken so far:
At the state level, Gov. Gretchen Whitmer has issued a number of executive orders and directives in response to the COVID-19 crisis, including eliminating cost-sharing for COVID-19 testing and treatment for Medicaid enrollees. Yet, on October 2, the Michigan Supreme Court ruled that the executive orders the Governor issued in response to the COVID-19 crisis, under the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act of 1945 (EPGA) as authority, had no basis under state law. Following the ruling, the Michigan Department of Health and Human Services (MDHHS) has stepped in to issue a number of Epidemic Orders to fill many gaps in policy left by the ruling. Other issues have continued to be addressed federally (see below). In March, Attorney General Dana Nessel signed on to a letter to the Trump Administration asking them to further clarify whether the use of Medicaid-paid services for COVID-19-related healthcare would be considered in a “public charge” test. In May, MDHHS announced that Emergency Services Only (ESO) Medicaid—available to undocumented immigrants who would be Medicaid-eligible based on income—will cover medically necessary COVID-19 testing and treatment received on or after March 10, 2020 (see below). In early August, MDHHS Services Director Robert Gordon issued an Emergency Order requiring COVID-19 testing for agricultural and food processing employees, which seeks to protect Michigan farmworkers who live in employer-provided migrant housing camps.
At the federal level, most recently, on December 2, 2020, the Ninth Circuit upheld injunctions (orders to cease implementing the rule) in 18 states and Washington D.C., which had filed a lawsuit against the rule. (These states include Michigan in addition to the following: California, Colorado, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Virginia, Washington D.C., and Washington State.) As of writing, it is not clear whether the United States Citizenship and Immigration Services (USCIS) will take action on this decision. The public charge rule can still be enforced in all other states. There have been many litigation-related changes to the status of the public charge rule over the course of the year. For a complete timeline, please see this “Public Charge Timeline” from the Immigrant Legal Resource Center.
USCIS has previously announced that testing and treatment related to COVID-19 will not be considered in a public charge determination for those applying for lawful permanent residence (that is, a “green card”), which remains in effect.
In addition, thanks to the March Families First Coronavirus Response Act (FFCRA), testing for COVID-19 is free and available to all U.S. residents. Unfortunately, diagnostics, evaluation services and treatment are not necessarily covered. Yet, in Michigan, nearly all private health insurance companies have agreed to waive cost-sharing—including copays, deductibles and coinsurance—for COVID-19 testing and treatment. And for Medicaid recipients, the FFCRA requires that states cover testing and treatment for enrollees without cost-sharing as a stipulation for receiving an increased amount of federal Medicaid dollars—an arrangement that will last through the declared public health emergency.
Therefore, Michigan immigrants who are privately insured or who are enrolled in Medicaid—including those who are naturalized citizens (just over half of immigrants in Michigan) and qualify for Medicaid and those who are not currently citizens but are enrolled in Medicaid because they meet both the income eligibility standards and have lived in the country as lawful permanent residents (“green card” holders) for 5 years or more—should not be subject to cost-sharing for COVID-19 testing and treatment. Thirty-nine health centers in Michigan, which are—resource and healthcare hubs in many immigrant communities,—will share more than $2.5 million in emergency funding. As of early April, additional federal legislation has been introduced; if passed, it would expand services and resources to immigrant communities, such as ensuring COVID-19 testing, treatment and access to a vaccine regardless of immigration status. In May, the House of Representatives passed the Health and Economic Recovery Omnibus Emergency Solutions Act (or the HEROES Act) which, if enacted, would provide access to free COVID-19 testing and treatment to uninsured individuals, regardless of immigration status.
Further federal action includes a March announcement by U.S. Immigration and Customs Enforcement (ICE) regarding updated guidance on COVID-19, stating that, “ICE will not carry out enforcement operations at or near health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances,” which is consistent with the agency’s policy on enforcement at “sensitive locations.”
Take up the Immigrant Children’s Health Improvement Act (ICHIA) option to cover eligible pregnant women and children. Federal law prohibits noncitizen lawful permanent residents (LPRs, also known as “green card” holders) who have lived in the U.S. for less than 5 years from enrolling in Medicaid or the Children’s Health Insurance Plan (CHIP). Yet, since 2009, states have had the option through the Children’s Health Insurance Program Reauthorization Act (CHIPRA) to eliminate this 5-year waiting period for LPR pregnant women and children who meet Medicaid and CHIP eligibility requirements. Michigan has waived this requirement for prenatal care, but has stopped there. If Michigan takes up the ICHIA option now, the 6.2% bump in the Federal Matching Assistance Percentage (FMAP) – and any future federal matching increases – can go toward covering these additional groups, as the matching rate is the same for these populations as other non-expansion Medicaid enrollees.
Expand Emergency Services Only (ESO) Medicaid to include COVID-19 testing, evaluation and treatment. UPDATE: On May 11, MDHHS announced that ESO Medicaid will cover medically necessary COVID-19 testing and treatment received on or after March 10, 2020. This includes follow-up services, such as outpatient visits and medications, for individuals who test positive for COVID-19.
In Michigan, ESO Medicaid is available to uninsured residents who would otherwise qualify for Medicaid but do not because of their immigration status (e.g., they have not met the 5-year stipulation or are undocumented). Michigan should define testing, diagnostics and treatment services for suspected COVID-19 as emergency services so that more immigrants can receive necessary healthcare services in our state. Notably, ESO has never been considered as part of a “public charge” determination and it could be a way to get more people in the door for testing and care without fear. A number of states, including New York, Pennsylvania and Washington, have made changes to their Emergency Medicaid policies to include the services related to COVID-19. (See New York and Washington examples.)
Actively engage immigrant communities on the status of U.S. Immigration and Customs Enforcement (ICE) enforcement policies at healthcare facilities, per its updated guidance. The state should engage immigrant communities across Michigan by highlighting these updates, monitoring the experiences of immigrants and direct service providers, and focusing outreach including press or media to ensure all Michiganders seek necessary testing and treatment. Documented drops in coverage and utilization of services at community health centers have been driven by not only concerns about “public charge” but also ICE enforcement actions. It is critical that the trusted entities of our state agencies relay accurate information to affected communities and immigrant residents and encourage testing and treatment of COVID-19.
Why Michigan must act now:
Without additional expansions in both healthcare coverage and treatment services, Michiganders who are immigrants will continue to be left out of the state’s COVID-19 response, leading to reduced testing and treatment within immigrant communities. Inclusive healthcare policy action in Michigan could be potentially life-saving for immigrants in our state.
Michigan must continue to adapt current policies to be inclusive of immigrants in Michigan who are seeking treatment and services. Our disparities are clear: 11.3% of Michigan immigrants are uninsured while only 5% of U.S.-born Michiganders lack health insurance coverage. Among uninsured immigrants in our state, 70.7% are not citizens (i.e., are LPRs or “green card” holders, have other visas, or are undocumented). This is not surprising given the realities for immigrants seeking health coverage on their own (not covered through an employer, for example):
- for “green card” holders, the 5-year waiting period is applicable for those eligible for Medicaid and the ACA Marketplace can be unaffordable for those who are higher-income;
- for undocumented immigrants, only those who are Medicaid-eligible can seek ESO Medicaid services and others must pay for private coverage in full.
Throughout the course of the COVID-19 pandemic, many “green card” holders will lose their jobs and health insurance, driving some to enroll in Medicaid or use ESO services if they are eligible. Yet, there will still be gaps, particularly for undocumented residents with higher incomes who must purchase private health insurance without subsidies or go without it. During this time, we must continue to expand coverage and treatment options given the existing tools and authority we have, while considering new solutions for equitable access to care. Taking action to address long-standing disparities will serve Michiganders now and beyond this public health emergency.