SJC: Watered down health program for legal immigrants violates equal protection

By Kyle Cheney / State House News Service
Thursday, January 5, 2012 - Added 54 minutes ago

A move by the state Legislature to strip tens of thousands of legal immigrants from a taxpayer-subsidized state-run insurance program in 2009 violated their constitutional rights, the Supreme Judicial Court ruled today.

“The discrimination against legal immigrants ... violates their rights to equal protection under the Massachusetts Constitution,” Justice Robert Cordy wrote for the court in a unanimous ruling. “We recognize that our decision will impose a significant financial burden on the Commonwealth ... If the plaintiffs’ right to equal protection of the laws has been violated by the enactment of [the law], then it is our duty to say so.”

An estimated 30,000 legal immigrants in Massachusetts were stripped of their health care coverage in 2009, as lawmakers sought to balance the state budget during a sharp economic downturn. Those immigrants – designated by the federal government as “aliens with special status” because they’ve been permanent legal residents for fewer than five years – had previously received coverage through Commonwealth Care, a state-run insurance exchange that offers completely or heavily subsidized insurance to low-income residents.

Gov. Deval Patrick opposed removing immigrants from coverage but eventually worked with lawmakers to craft a whittled down health care program at a budget of $40 million, less than a third of what full coverage was expected to cost. That program, managed by CeltiCare Health Plan, includes basic levels of coverage but eliminated certain services and charges sharply higher co-pays for others. Currently about 14,000 immigrants are enrolled in the program, down from a peak of just over 26,000 last year.

The program, known as the Commonwealth Care Bridge Program, unfairly discriminates against legal immigrants, the court ruled.

“Fiscal considerations alone cannot justify a State’s invidious discrimination against aliens,” Cordy wrote, arguing that lawmakers had presented limited other justification for their action.

The SJC returned the case to a single justice of the court with an order to enter partial judgment in favor of the plaintiff, Dorothy Ann Finch, who brought the suit along with several other residents and is backed by immigrant advocates, civil liberties groups and health care consumer groups.

Although lawyers for the state argued that the policy was also meant to further national immigration policies that discourage illegal immigration and promote "self-sufficiency among aliens," the court ruled that those arguments are "at best, equivocal."

"The appropriation arose directly out of an unforeseen revenue shortfall in the wake of the 2008 financial crisis. The proponents of [the program] repeatedly invoked fiscal concerns, while failing to articulate any interest whatsoever in national immigration policy," Cordy wrote.

Proponents of restoring access to Commonwealth Care for legal immigrants hailed the ruling.

“This is a major victory for legal immigrants in the commonwealth, no question about it. It vindicates their constitutional right to equal protection,” said Matt Selig, executive director of Health Law Advocates. “Our expectation is the legislature will provide the funding to enable them to enroll in Commonwealth Care.”

Selig noted that the ruling would impact more than those residents who remain enrolled in the Bridge Program. Rather, tens of thousands of additional immigrants who had been barred from Commonwealth Care and the Bridge Program – forced to accept limited emergency coverage in the state’s Health care Safety Net – could be allowed back into Commonwealth Care. He estimated that as many as 40,000 immigrants could be eligible for the program as a result of the ruling.

The case was filed directly with the SJC, and the court heard arguments in October. The case was argued on behalf of the immigrants by Wendy Parmet, a Northeastern University School of Law professor. Other lawyers on behalf of the immigrants included Lorianne Sainsbury-Wong of Health Law Advocates and John Cushman of Stern, Shapiro, Weissberg & Garin. Attorneys Carl Valvo and James Katz represented the Massachusetts Health Connector, which administers Commonwealth Care. Assistant Attorney General Kenneth Salinger represented the commonwealth.

Aliens with special status were initially able to take advantage of the Commonwealth Care program established under the 2006 health care reform law signed by Gov. Mitt Romney, but in the face of a budget crunch they were targeted by lawmakers because the federal government refuses to reimburse states for their health care coverage. The issue may become moot in 2014, when the federal Affordable Care Act will provide subsidies for legal immigrant coverage.

Lawmakers were still digesting the ruling Thursday afternoon and said they would react once its implications became clear. The second leg of the two-year session kicked off Wednesday after a seven-week recess but the State House was largely void of legislators on Thursday.

Officials in the Executive Office of Health and Human Services were also not immediately available for comment. Officials from the Massachusetts Immigrant and Refugee Advocacy Coalition, which fought to restore Commonwealth Care access for all legal immigrants, were not immediately available for comment. MIRA joined the Massachusetts Law Reform Institute in filing a friend-of-the-court brief in the case, and the American Civil Liberties Union filed a separate brief.