The new health-care reform act, Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 201), the Patient Protection and Affordable Care Act, has numerous implications for non-U.S. citizens.
Section 1312(f)(3) of the Act states:
(3) ACCESS LIMITED TO LAWFUL RESIDENTS.–If an individual is not, or is not reasonably expected to be for the entire period for which enrollment is sought, a citizen or national of the United States or an alien lawfully present in the United States, the individual shall not be treated as a qualified individual and may not be covered under a qualified health plan in the individual market that is offered through an Exchange.
Another provision limiting qualification only to U.S. citizens or lawfully present aliens is found in § 1331(e)(1)(B), which addresses individuals eligible for state-established basic health programs for low-income individuals not eligible for Medicaid. The provision states that an eligible individual is, among other things, someone:
whose household income exceeds 133 percent but does not exceed 200 percent of the poverty line for the size of the family involved, or, in the case of an alien lawfully present in the United States, whose income is not greater than 133 percent of the poverty line for the size of the family involved but who is not eligible for the Medicaid program under title XIX of the Social Security Act [FN1] by reason of such alien status.
In § 1401, the Act provides for refundable credits for certain purchasers of a qualified health-care plan by adding a new § 36B to Subpart C of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986. [FN2] With regard to non-U.S. citizens, that new section, in subsection (c), provides:
(B) SPECIAL RULE FOR CERTAIN INDIVIDUALS LAWFULLY PRESENT IN THE UNITED STATES.–If–
(i) a taxpayer has a household income which is not greater than 100 percent of an amount equal to the poverty line for a family of the size involved, and
(ii) the taxpayer is an alien lawfully present in the United States, but is not eligible for the Medicaid program under title XIX of the Social Security Act by reason of such alien status,
the taxpayer shall, for purposes of the credit under this section, be treated as an applicable taxpayer with a household income which is equal to 100 percent of the poverty line for a family of the size involved.
With regard to aliens not lawfully present in the U.S., new § 36B states the following:
(e) RULES FOR INDIVIDUALS NOT LAWFULLY PRESENT.–
(1) IN GENERAL.–If 1 or more individuals for whom a taxpayer is allowed a deduction under section 151 (relating to allowance of deduction for personal exemptions) for the taxable year (including the taxpayer or his spouse) are individuals who are not lawfully present–
(A) the aggregate amount of premiums otherwise taken into account under clauses (i) and (ii) of subsection (b)(2)(A) shall be reduced by the portion (if any) of such premiums which is attributable to such individuals, and
(B) for purposes of applying this section, the determination as to what percentage a taxpayer’s household income bears to the poverty level for a family of the size involved shall be made under one of the following methods:
(i) A method under which–
(I) the taxpayer’s family size is determined by not taking such individuals into account, and
(II) the taxpayer’s household income is equal to the product of the taxpayer’s household income (determined without regard to this subsection) and a fraction–
(aa) the numerator of which is the poverty line for the taxpayer’s family size determined after application of subclause (I), and
(bb) the denominator of which is the poverty line for the taxpayer’s family size determined without regard to subclause (I).
(ii) A comparable method reaching the same result as the method under clause (i).
(2) LAWFULLY PRESENT.–For purposes of this section, an individual shall be treated as lawfully present only if the individual is, and is reasonably expected to be for the entire period of enrollment for which the credit under this section is being claimed, a citizen or national of the United States or an alien lawfully present in the United States.
(3) SECRETARIAL AUTHORITY.–The Secretary of Health and Human Services, in consultation with the Secretary, shall prescribe rules setting forth the methods by which calculations of family size and household income are made for purposes of this subsection. Such rules shall be designed to ensure that the least burden is placed on individuals enrolling in qualified health plans through an Exchange and taxpayers eligible for the credit allowable under this section.
New § 36B is applicable to taxable years ending after December 31, 2013.
Section 1402 of the Act, which addresses a plan issuer’s obligation to reduce the cost of the plan imposed on certain individuals who demonstrate to the government’s satisfaction that the individual or family meet certain low-income criteria, excludes unlawfully present individuals from benefitting from this reduction in cost. In the case of a family in which one or more members are not lawfully present in the U.S., the Act provides calculations for determining whether the remaining family members are eligible for the reduced-cost plan. Section 1402(e) provides:
(e) RULES FOR INDIVIDUALS NOT LAWFULLY PRESENT.–
(1) IN GENERAL.–If an individual who is an eligible insured is not lawfully present–
(A) no cost-sharing reduction under this section shall apply with respect to the individual; and
(B) for purposes of applying this section, the determination as to what percentage a taxpayer’s household income bears to the poverty level for a family of the size involved shall be made under one of the following methods:
(i) A method under which–
(I) the taxpayer’s family size is determined by not taking such individuals into account, and
(II) the taxpayer’s household income is equal to the product of the taxpayer’s household income (determined without regard to this subsection) and a fraction–
(aa) the numerator of which is the poverty line for the taxpayer’s family size determined after application of subclause (I), and
(bb) the denominator of which is the poverty line for the taxpayer’s family size determined without regard to subclause (I).
(ii) A comparable method reaching the same result as the method under clause (i).
(2) LAWFULLY PRESENT.–For purposes of this section, an individual shall be treated as lawfully present only if the individual is, and is reasonably expected to be for the entire period of enrollment for which the cost-sharing reduction under this section is being claimed, a citizen or national of the United States or an alien lawfully present in the United States.
(3) SECRETARIAL AUTHORITY.–The Secretary, in consultation with the Secretary of the Treasury, shall prescribe rules setting forth the methods by which calculations of family size and household income are made for purposes of this subsection. Such rules shall be designed to ensure that the least burden is placed on individuals enrolling in qualified health plans through an Exchange and taxpayers eligible for the credit allowable under this section.
With regard to the procedures for establishing eligibility for exchange participation, premium tax credits and reduced cost-sharing, and individual responsibility exemptions, found in § 1411 of the Act, a declaration of citizenship or immigration status must be made:
(b) INFORMATION REQUIRED TO BE PROVIDED BY APPLICANTS.–
(2) CITIZENSHIP OR IMMIGRATION STATUS.–The following information shall be provided with respect to every enrollee:
(A) In the case of an enrollee whose eligibility is based on an attestation of citizenship of the enrollee, the enrollee’s social security number.
(B) In the case of an individual whose eligibility is based on an attestation of the enrollee’s immigration status, the enrollee’s social security number (if applicable) and such identifying information with respect to the enrollee’s immigration status as the Secretary, after consultation with the Secretary of Homeland Security, determines appropriate.
This information is subject to verification as provided in subsection (c) of the section:
(c) VERIFICATION OF INFORMATION CONTAINED IN RECORDS OF SPECIFIC FEDERAL OFFICIALS
(2) CITIZENSHIP OR IMMIGRATION STATUS.–
(A) COMMISSIONER OF SOCIAL SECURITY.–The Secretary shall submit to the Commissioner of Social Security the following information for a determination as to whether the information provided is consistent with the information in the records of the Commissioner:
(i) The name, date of birth, and social security number of each individual for whom such information was provided under subsection (b)(2).
(ii) The attestation of an individual that the individual is a citizen.
(B) SECRETARY OF HOMELAND SECURITY.–
(i) IN GENERAL.–In the case of an individual–
(I) who attests that the individual is an alien lawfully present in the United States; or
(II) who attests that the individual is a citizen but with respect to whom the Commissioner of Social Security has notified the Secretary under subsection (e)(3) that the attestation is inconsistent with information in the records maintained by the Commissioner;
the Secretary shall submit to the Secretary of Homeland Security the information described in clause (ii) for a determination as to whether the information provided is consistent with the information in the records of the Secretary of Homeland Security.
(ii) INFORMATION.–The information described in clause (ii) is the following:
(I) The name, date of birth, and any identifying information with respect to the individual’s immigration status provided under subsection (b)(2).
(II) The attestation that the individual is an alien lawfully present in the United States or in the case of an individual described in clause (i)(II), the attestation that the individual is a citizen.
The Act, in § 1501, establishes new Chapter 48 to Subtitle D of the Internal Revenue Code of 1986. The new chapter mandates the maintenance of minimal essential coverage. Individuals who are not lawfully present in the U.S. are not considered applicable individuals and cannot obtain plans, and thus the requirement does not apply to them.
[FN1]. Act of Aug. 14, 1935, ch. 531, 49 Stat. 620 (codified as amended at 42 USCA §§ 301 to 1399). For a discussion of the Social Security Act as it pertains to aliens generally, see Allott, Social Security Issues in Immigration Practice, 91-10 Immigration Briefings 1 (Oct. 1991).
[FN2]. Pub. L. No. 99-514, 100 Stat. 2085 (Oct. 22, 1986).
