The New Health Dialogue

We're bracing for the inevitable jokes: heard about the new jobs bill for lawyers? Health care reform.

Whether it's state governments’ attempt to preemptively block a federal individual mandate to purchase insurance, the creation of health courts to address medical malpractice woes, or legal immigrants in Massachusetts suing over coverage -- lawyers don’t need to worry about where their next meal is coming from.

We were struck, though, by the Massachusetts class action lawsuit challenging a state law that prohibits certain legal immigrants from accessing health insurance coverage available to citizens of the Commonwealth. Struck by the irony, that is, of how the one state in the union that has attempted to provide  coverage for everyone is getting sued by a group that is not covered. What a contrast to the states like Virginia  that are prepared to fight against having anyone force insurance coverage on their citizens through a mandate.

The Attempt At Universal Health Care. You will recall that Republican Gov. Mitt Romney signed the Massachusetts health care reform bill into law in April 2006. It requires nearly every resident of Massachusetts to obtain health insurance coverage and provides free health care for residents earning less than 150% of the federal poverty level (FPL), and partially subsidized health care for those earning up to 300% of the FPL through the Commonwealth Care program.

The Problem. In 2009, Massachusetts -- like so many states -- faced a massive budget shortfall. The fix? Cutting roughly 30,000 legal, taxpaying immigrants out of the state subsidized Commonwealth Care program. What is upsetting is that these are people who were already getting benefits -- and they were taken away. So imagine having surgery scheduled and suddenly being told that you were not covered.

Some Solution. That is exactly what happened on July 21, 2009 -- against Democratic Gov. Deval Patrick's objections -- when state legislators passed an appropriations bill that carves out legal immigrants from participating in Commonwealth Care. The offending section, which says that people who cannot receive federal public assistance under federal welfare reform may not receive insurance coverage through the Connector. (The welfare reform law required legal residents to be in the U.S. for five years or become citizens before being eligible for federal assistance. Immigrants in Massachusetts who have been legal for more than five years can still be covered.)

The Lawsuit. So a non-profit law firm in Massachusetts filed a class action on behalf of 26,000 people who lost their existing health coverage, and, to date, another 8,000 uninsured who are seeking coverage. These 34,000 people remain subject to the Massachusetts mandate to purchase insurance, unless their income is at or below 150% of FPL. They just can't access it the way other people can. Nice.

Likelihood of Success. The likelihood of success of the lawsuit is unclear. The basis for the lawsuit is discrimination against a particular class of people. The plaintiffs are asking the state’s highest court to strike down the law as a violation of the Equal Protection Clause of the Massachusetts and federal constitutions. The complaint alleges one violation of the Massachusetts Equal Protection Clause and one violation of the U.S. Constitution.

Claim Alleging A Violation of Massachusetts Constitution. The charge of the Massachusetts constitutional violation may have legs because other classes of people who are not eligible to receive federal assistance were NOT terminated or excluded from Commonwealth Care.

Claim Alleging A Violation of U.S. Constitution. It seems less likely that the federal constitutional violation will be successful because of Mathews v. Diaz, a 1976 U.S. Supreme Court case, upholding the denial of legal residents’ enrollment in the Medicare Part B supplemental program. In Diaz, Justice Stevens wrote that legal aliens were not necessarily entitled to all of the advantages of citizenship, and  "the fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all aliens." He went on to say that “Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.”

The message for citizens awaiting coverage under federal reform seems clear: if you have not lived here long, get a lawyer if you want to even try to “share in the bounty” created by your tax payments.