Medical Benefits for Non-Citizens

To hear my client "Rick" tell it, you would think that his third arrest for possession of crack was the best thing that had happened to him in years.

His third narcotics conviction, the result of a guilty plea, landed him in a New York State prison.

Rick was not a U.S. citizen. Though his sentence was nearly served, he was apprehensive that on release he would be deported to Barbados, his home country, and would no longer have access to the free HIV treatment he received while in prison. For Rick, release from prison and deportation to Barbados was a death sentence.

An asylum claim was the only relief from deportation that was available to Rick. The government of Barbados provided free HIV treatment to pregnant females, but as a male, none would be available to Rick. We would argue that the government of Barbados thereby persecuted Rick because of an "immutable characteristic" he possessed (his sex, and the fact that he was unable to become pregnant), and that the inevitable result of that persecution would be Rick's death. A unique argument, but Rick's only shot at continued free HIV treatment.

It is amazing that America is willing to provide free medical treatment to people who are not citizens -- and even illegal aliens -- while the home countries of most all of those people will not do so. This occurs while our schools lack adequate money and while many of America's senior citizens scrape to pay for medicine. If you think that the problem is minor, or under control, you should think again. America is in the throes of a historically unprecedented wave of immigration, both legal and illegal, and the costs are mounting.

Medicaid, the program co-funded by the federal government and the governments of participating states, is the main source of money for the medical treatment of uninsured aliens. The Welfare Reform Act of 1996 restricted federal public assistance, including payments made in connection with Medicaid, to be used by citizens and legal immigrants who have already paid into the system for 10 years through payroll taxes. But if you have a medical problem, and are an alien who has not paid taxes, or who is illegal, you will still be treated -- for free.

The Alien Emergency Medical Program, sometimes called Emergency Medicaid or Emergency Medical Assistance, is found in every state that participates in the Medicaid program. It exists because an illegal alien successfully sued the U.S. government for Medicaid coverage, contending that the government's decision to provide Medicaid coverage to citizens and legal aliens, while not also providing it to illegal aliens, violated the Constitution's guarantee of equal protection.

A federal judge in New York City agreed, and the government was compelled to provide Medicaid to illegal aliens. But Congress acted quickly and amended the Medicaid statute to permit payments for illegal aliens only in emergencies. Free medical treatment to illegal aliens through Medicaid survived the 1996 Welfare Reform Act because, at least under the current law, its denial is said to violate the Constitution.

For the fiscally conservative, free medical treatment for illegal aliens in an emergency is better than free medical treatment for illegal aliens for all maladies, all the time. But because America is now deluged with illegal immigrants like it has never been -- eight million by the most recent government estimate -- the cost to taxpayers, even for emergency medical treatment, has skyrocketed.

The Border Counties Coalition, formed by the elected officials of the 24 U.S. counties that border Mexico, recently reported that the year 2000 cost of uncompensated medical services in their 24 counties alone was $832 million. And that is only the uncompensated cost of medical treatment rendered to illegal aliens. It does not include amounts paid to hospitals by the Medicaid program. Sen. Jon Kyl places the total cost of free medical care to illegal immigrants at between $1.5 billion and $2 billion annually.

In the state of Washington, depression is considered a medical emergency, and Washington will pay for an illegal alien's treatment for depression. So is high blood pressure. Even if you have a medical condition whose treatment is monumentally expensive, like cancer, Washington will pay for it. Ohio's program has gone so far as to create a bilingual card that informs its reader that free medical care is available at the state's hospitals, and that the hospitals cannot ask for evidence of legal immigration status.

All of this takes place in the face of a federal statute that makes it a felony to facilitate an illegal alien's remaining in the United States in violation of the law. Americans like to believe that their government is operating in good faith, but when INS Commissioner James Ziglar tells Human Events, "No one likes the idea that people came into the country illegally, but it's not practical or reasonable to think that you're going to be able to round them all up and send them home," we have reason to wonder. Particularly when it costs us at least $1.5 billion every year.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He recently left the New York City law practice he founded in 1997 for the "more normal life" of insurance defense, and is author of The New Immigration Law and Practice, a textbook to be pubished by West Legal Publications in October, 2003.

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