This week, CMS announced that it was tightening the criteria under which people who want to buy health plans in the ACA marketplace outside of the annual Open Season for enrollment can obtain so-called Special Enrollment Periods. SEPs are granted when special circumstances create a need to buy or change insurance plans -- for example, job loss, marriage or childbirth. The tightening is in response to insurers' complaints that SEPs are too easy to obtain and people are gaming the system,
CMS has eliminated several causes for granting SEPs. Two pertain specifically to immigrants:
- Lawfully present non-citizens that were affected by a system error in determination of their advance payments of the premium tax credit
- Lawfully present non-citizens with incomes below 100% FPL who experienced certain processing delays
Why were these SEPs created in the first place? And why are they now deemed obsolete or counterproductive?
In most cases, people with incomes below 100% of the Federal Poverty Level (FPL) are ineligible for tax credits in the ACA marketplace. They're supposed to be eligible for Medicaid, but in states that refused the Medicaid expansion after the Supreme Court rendered in voluntary, they get no help at all. There's an exception, though, for legally present non-citizens who are subject to a federal 5-year bar on Medicaid eligibility, or to even longer waiting periods for Medicaid imposed by some states. Non-citizens in this category are eligible for tax credits in the marketplace even if their incomes are below 100% FPL. They probably account for most of the 3% of marketplace enrollees with incomes below 100% FPL (though some may be citizens paying full price, perhaps with the help of a relative).
The eliminated SEPs pertaining to non-citizens caught my eye because for non-citizens, obtaining tax credits for marketplace plans can be a tortuous and confusing process. Looking back on the rocky first open season (Oct. 2013 - April 2014), Kate Kozeniewski, then a navigation coordinator with Philadelphia-based Resources for Human Development (RHD), told me:
the exchanges were inconsistent at best in recognizing this special eligibility – and according to Kozeniewski, most hotline support staff didn’t know about it. “You usually have to go to a supervisor on the hotline to get these applications through. The first person you talk to – they say no.”In other words, many legally present immigrants may have gotten the wrong idea that they were ineligible for tax credits. If they learned otherwise outside of open season, they should be able to get a SEP. I've been told, though, that the system's ability to deal with these applicants has improved, and they should no longer be getting false messages from the exchange indicating that they're ineligible -- though they may need to persist in a process that starts in open season but may extend beyond it.
I spoke to Shelby Gonzales, a policy analyst at the Center for Budget Policy and Priorities and a Certified Application Counselor (CAC) helping health insurance applicants as a volunteer. Gonzales told me that after the rockiest first months of the first open season in fall 2013, when there were myriad problems for all applicants, the system would always recognize tax credit eligibility for Medicaid-barred immigrants with incomes under 100% FPL -- if the system could verify their immigration status based on information submitted in the application. The problem would arise if the system could not instantly verify immigration status, and the applicant was required to submit more documents.
According to Gonzales, until a system fix was implemented, applicants whose immigration status needed further verification and who were determined ineligible for Medicaid based on factors other than being time-barred would receive a notice stating that they were eligible to buy plans in the marketplace but were not eligible for tax credits. Now the notice says, you may qualify for tax credits but we need proof of your immigration status.
If the system determines that a person meets all other Medicaid eligibility factors (aside from being time-barred or not), and the system can't verify immigration status instantly, then it sends the application to Medicaid for further processing. The ultimate determination that the applicant is not eligible for Medicaid can be time-consuming. If it takes, say, 45 days, the applicant will then get a notice saying "you may be eligible for tax credits in the marketplace" -- and still more information may be required. If that process is initiated during open season, and the applicant persists, a special enrollment period will be granted. If, however, the person gives up, and then for whatever reason seeks insurance outside of open enrollment, a SEP will no longer be granted. If you came into the shop before closing time you won't be thrown out, but you can't get in the door after closing.
Gonzales added that as a Spanish-speaking CAC, she had a lot of non-citizen applicants routed to her, and "everyone' I've helped get enrolled got correct eligibility notices." The takeaway may be that the system is functional for those who access skilled assistance. But it's very challenging for many to navigate on their own.