HHS Issues Guidance on the Five-Year Bar in Medicaid and SCHIP

IMMIGRANTS & PUBLIC BENEFITS

Health Care

HHS ISSUES GUIDANCE ON THE FIVE-YEAR BAR IN MEDICAID AND SCHIP
Immigrants' Rights Update, Vol. 16, No. 6, October 21, 2002

The U.S. Department of Health and Human Services's (HHS's) Centers for Medicare and Medicaid Services (CMS) has published a "question and answer" guidance document, confirming the agency's interpretation of the five-year bar on federal Medicaid and the State Children's Health Insurance Program (SCHIP). The five-year bar applies to most "qualified" immigrants who enter the United States on or after Aug. 22, 1996, the date that the federal welfare law passed. Consistent with previous guidance issued by HHS and other federal agencies, the CMS clarified that persons who physically entered the U.S. prior to Aug. 22, 1996, and remained continuously present in the U.S. until they secured "qualified" immigrant status are not subject to the five-year bar. This rule applies equally to persons who were in the country without documents prior to Aug. 22, 1996.

Citing the U.S. Dept. of Justice's "Interim Guidance" on verification (see below), the CMS explained that a single absence of more than 30 days or aggregate absences of more than 90 days interrupt continuous presence. Once the immigrant obtains qualified immigrant status, there is no requirement that he or she remain continuously present.

The CMS listed the exemptions from the five-year bar for refugees, asylees, Cuban and Haitian entrants, Amerasian immigrants, persons granted withholding of deportation, victims of trafficking, veterans and active duty military personnel and their spouses and children, as well as certain Native Americans. The agency also confirmed that the five-year bar does not apply to emergency Medicaid services.

If the five-year bar applies, the clock begins to run on the date that the person obtained qualified immigrant status. Many states, however, provide medical coverage to some or all qualified immigrants who are subject to the federal five-year bar. See the National Immigration Law Center's Guide to Immigrant Eligibility for Federal Programs (4th ed. 2002) for descriptions of these state-funded programs (see www.nilc.org/pubs/Guide_promo.htm for ordering information).

The CMS guidance, "Questions and Answers on the Application of the Five-Year Bar," was released on Sept. 11, 2002, and is available at www.cms.gov/immigrants. HHS previously clarified these rules in the context of the Temporary Assistance for Needy Families (TANF) program. See "TANF Program Policy Questions," available at www.acf.dhhs.gov/programs/ofa/polquest/. And the Social Security Administration, in its Program Operations Manual System (POMS), illustrates the rule as it applies to the Supplemental Security Income (SSI) program (see SI 00502.135 B.1). These federal agency interpretations follow the attorney general's "Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996," (62 Fed. Reg. 61,344, 61,414-15 (Nov. 17, 1997)).

Although most of these federal documents have existed for several years, state agencies commonly fail to ensure that immigrants who were in the country prior to Aug. 22, 1996, but had not yet obtained qualified status have access to these federal services.