The Voice® Newsletter

June 2012 - Vol. 6, Issue 8

The Voice is the e-mail newsletter of The Special Needs Alliance. This installment was written by Special Needs Alliance member Barbara Isenhour, of the firm of Isenhour Bleck, PLLC in Seattle, Washington. The firm focuses on government benefits for individuals with disabilities and estate planning for families with special needs children. A board member of NAMI Eastside in Redmond, Washington, and Full Life Care in Seattle, Barbara frequently lectures around the state of Washington on issues involving special needs trusts and government benefits for the elderly and disabled.

Citizenship Status and Disability Benefits

A sudden accident or illness that results in permanent disabilities is difficult enough without adding the complication of whether an individual’s citizenship status will eliminate the availability of important income and health care benefits. Every federal benefit program has its own citizenship requirements. This article focuses on two benefit programs that can be critical for a person with disabilities: Supplemental Security Income (SSI) and Medicaid. SSI is a cash benefit and Medicaid pays for medical care and nursing home or other community-based care for eligible individuals with disabilities.

The SSI and Medicaid programs have many eligibility requirements that are not addressed in this article. This article is limited to the federal citizenship requirements for SSI and Medicaid. Keep in mind, however, that some states have elected to be less restrictive in their Medicaid programs than what is provided in the federal law and that families should always consult with a qualified attorney in the state of residence should questions about these issues arise. This article also discusses how receipt of SSI or Medicaid benefits may affect the immigration status of a person with disabilities.

Qualified and Not Qualified Immigrants

For individuals who are not U.S. citizens or U.S. Nationals (persons born in or having ties with American Samoa, Swains Island, and the U.S. Minor Outlying Islands) there are two main categories of immigrants for public benefit purposes:

1. “Qualified Immigrants” include the following individuals:

 

  • Lawful permanent residents (LPRs)
  • Refugees and asylees who have a fear of persecution in their country of origin
  • Cuban and Haitian entrants
  • Individuals granted parole into the U.S. for at least one year
  • Individuals admitted as conditional entrants
  • Individuals granted withholding of deportation or removal by the U.S. Citizenship and Immigration Service (USCIS, formerly INS)
  • Certain victims of spousal or child abuse (“U” status with USCIS) or human trafficking (“T” status with USCIS)

 

The SSI program and state Medicaid agencies usually rely on the Department of Homeland Security (DHS) to verify that an immigrant meets the requirements to be considered a Qualified Immigrant. For victims of abuse and human trafficking, the SSI program will deem individuals eligible while their applications are under consideration with DHS.

2. “Not Qualified Immigrants” encompasses all immigrants not included in the above categories. Most Not Qualified Immigrants are individuals who entered the U.S. without permission or border inspection. Before 1996, this group typically was referred to as undocumented aliens. Not Qualified Immigrants include individuals admitted to the U.S. under various work visas including temporary workers, traders and investors, and religious workers. This category also includes individuals who failed to comply with the terms of a nonimmigrant visa such as a student visa or tourist visa, or individuals who are out of compliance with a previously issued immigrant visa.

Qualified and Not Qualified Immigrants are not terms used by DHS or USCIS to explain a person’s immigration status. These terms are unique to federal government benefit programs providing cash assistance, medical assistance and other benefits to help individuals who are elderly, disabled or low income.

PRUCOL

The SSI program and many state Medicaid programs used to refer to certain immigrants as “permanently residing under color of law” (PRUCOL). PRUCOL refers to immigrants who do not otherwise qualify for public benefits but who intend to reside indefinitely in the U.S. and USCIS knows of their presence in the country but is not taking steps to deport them. The SSI program now uses the terms Qualified Immigrants and Not Qualified Immigrants, but some states provide Medicaid benefits or state funded medical benefits to immigrants who have PRUCOL status even though they are in the Not Qualified Immigrants category.

Eligibility for SSI and Medicaid

The date August 22, 1996, is an important date for government benefit eligibility. That was the effective date of a federal law, generally referred to as “welfare reform.” That law imposed severe restrictions on immigrant eligibility for federal government benefit programs, including food stamps, Aid to Families with Dependent Children ((AFDC) now known as Temporary Assistance to Needy Families (TANF)), SSI and Medicaid. All Qualified and Not Qualified Immigrants are grandfathered into SSI eligibility if they were receiving SSI or had an application pending on August 22, 1996. The same grandfather status applies to Medicaid if the immigrant was automatically receiving Medicaid linked to SSI eligibility on that date.

For immigrants who are not grandfathered into SSI or Medicaid, the following rules apply:

Not Qualified Immigrants are ineligible for most Medicaid programs and SSI except eligible Native Americans and victims of human trafficking. Native Americans born outside the U.S. may qualify for SSI and Medicaid even if they are Not Qualified Immigrants if they were born in Canada or are enrolled members of a federally recognized tribe. Not Qualified Immigrants can qualify for the Emergency Medicaid program and the WIC program discussed below and some state funded medical programs.

Qualified Immigrants are ineligible for SSI and most Medicaid programs unless they fall within one of the following exceptions:

 

  • Individuals who were lawfully residing in the U.S. on August 22, 1996, even though not receiving benefits on that date
  • LPRs who entered the U.S. after August 22, 1996, and wait at least five years after entry before applying; SSI adds an additional requirement that LPRs have social security work credits for 40 quarters of work
  • Refugees, asylees, Cuban and Haitian entrants, immigrants whose deportation or removal are being withheld, and victims of abuse or human trafficking. SSI and a few state Medicaid programs add an additional restriction that these individuals are only eligible for the first 7 years after obtaining this immigration status
  • Veterans and active duty military and their spouses, unmarried surviving spouses and children

 

States have the option to provide Medicaid benefits under a program called Women and Infant Children (WIC) to infants, children under age six, and pregnant women who do not meet the above requirements for qualified immigrants to receive Medicaid. Many state and local Medicaid agencies have state funded programs for immigrants who do not meet the above requirements, but who have PRUCOL status and meet the other asset and income requirements for the state program.

Emergency Medicaid

All states must provide emergency Medicaid benefits to state residents who meet the other eligibility requirements for Medicaid without regard to immigration status. An emergency is defined as a medical condition with acute symptoms that could place the patient’s health in jeopardy, result in serious impairment to bodily functions or serious dysfunction of any bodily organ or part.

Deeming Assets and Income from a Sponsor

When citizens or LPRs petition for a family member to immigrate to the U.S. based on the family relationship, they are often required to complete an affidavit of support (Form I-864), agreeing to sponsor or support the immigrant until the immigrant becomes a citizen or has 40 quarters of work with the Social Security Administration. If an immigrant has a sponsor, the SSI and Medicaid programs will count the assets and income of the sponsor in most cases in determining the immigrant’s financial eligibility for benefits. This is referred to as sponsor deeming. Sponsor deeming ends in most cases with citizenship or accumulating 40 work quarters with Social Security. Immigrants who fit within one of the refugee categories are not required to have a sponsor.

Public Charge and Immigration Status

Not only do immigrants with disabilities need to worry about their eligibility for government benefits, they also need to worry about how receipt of these benefits may affect their ability to become a lawful permanent resident (LPR). Many applicants who seek to enter the U.S. or to apply for status as an LPR must establish that they are not likely to become a public charge. Receipt of non-institutional (community based) Medicaid or food stamps does not meet the definition of a public charge, but receipt of SSI or Medicaid for nursing home care can raise this problem. The concern about being a public charge does not apply to individuals whose immigration is based upon refugee status, abuse, or military/veteran status. There is no public charge issue related to an application for citizenship once the individual has become a permanent resident. So if an individual is already an LPR at the time he or she begins receiving government benefits, it will not affect eligibility for citizenship.

Social Security Disability Income and Medicare

Some immigrants worked and paid into the social security system prior to the onset of their disability. Workers with sufficient work quarters are eligible for Social Security Disability Income or SSDI. Twenty-four months after SSDI benefits begin the immigrant will be eligible for Medicare health insurance.

Immigrants can qualify for SSDI if they have the required work quarters. For benefits based upon work quarters earned after December 31, 2003, the social security number must be valid for work purposes. The SSDI program does not use the terms Qualified Immigrants and Not Qualified Immigrants. Instead the program requires that the immigrant be lawfully present in the U.S. Lawfully present means the immigrant has a valid social security number, has been inspected by DHS and has not violated the terms of admission to the U.S.

An excellent resource for information affecting immigrants is the National Immigration Law Center. Before applying for SSI and Medicaid, immigrants should confirm with an immigration attorney whether these benefits will harm their immigration status. They should also consult with a special needs attorney to confirm which government benefit programs are available to provide cash benefits or medical coverage to an immigrant with disabilities.


About this Newsletter: We hope you find this newsletter useful and informative, but it is not the same as legal counsel. A free newsletter is ultimately worth everything it costs you; you rely on it at your own risk. Good legal advice includes a review of all of the facts of your situation, including many that may at first blush seem to you not to matter. The plan it generates is sensitive to your goals and wishes while taking into account a whole panoply of laws, rules and practices, many not published. That is what The Special Needs Alliance is all about. Contact information for a member in your state may be obtained by calling toll-free (877) 572-8472, or by visiting the Special Needs Alliance online.


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