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SJC orders state to cover legal immigrants

By Chelsea Conaboy and Martin Finucane
Globe Staff / January 6, 2012
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Massachusetts lawmakers must quickly come up with about $150 million to provide health insurance to tens of thousands of legal immigrants, after the state’s highest court ruled yesterday that they were illegally excluded from subsidized coverage available to other residents.

The Supreme Judicial Court said a 2009 law that cut legal immigrants from the insurance program “violates their rights to equal protection under the Massachusetts Constitution.”

State officials promised to take fast action on the court decision, which could affect up to 37,400 immigrants who have had legal status for less than five years. Finding the money will be difficult during “what is already a very challenging budget,” said Jay Gonzalez, state secretary of Administration and Finance.

“However, we respect the Court’s decision,” he said. “We will work expeditiously to identify the resources required and the operational steps that need to be taken to integrate all eligible, legal immigrants into the Commonwealth Care program” -- a subsidized insurance program created in 2006 under the state law that required most residents to have health coverage.

The court, in a unanimous decision written by Justice Robert Cordy, recognized the financial burden but said money could not factor in the ruling.

“If the plaintiffs’ right to equal protection of the laws has been violated … then it is our duty to say so,” the opinion said.

At the height of the recession, the Legislature in 2009 cut about 26,000 legal immigrants from Commonwealth Care to save $130 million. It created a separate health care plan called the Commonwealth Care Bridge Program, which restricted the hospitals and doctors people could use, came with more expensive premiums, and did not cover certain services, such as vision, hospice, and skilled nursing care. It was open only to people who were previously enrolled in Commonwealth Care, so new legal immigrants were not eligible even for this scaled back coverage.

Dr. Barbara Ogur, a primary care physician for Cambridge Health Alliance, said the 2009 change came as a shock to her immigrant patients, many of whom went without health care altogether in the years since. The Cambridge hospital system and Boston Medical Center, which play a major role in caring for immigrants in the Boston area, were not included in the Bridge program’s provider network, she said.

“It was just a tragedy,” she said. Many of those affected “were young and healthy and could maybe make it without it showing up on anybody’s radar screen. But it certainly showed up for us.”

Yesterday, there were about 13,400 people enrolled in the Bridge program, which costs about $35 million a year. Another 24,000 were on a waiting list, said Glen Shor, executive director of the agency that runs the both the Bridge program and Commonwealth Care.

The high court first ruled in May that the law likely violated immigrants’ constitutional rights, but it left the door open for the state to explain itself. The attorney general’s office then argued that the 2009 change was made not as a budget-cutting measure but to further federal immigration law. Federally-funded health programs have a five-year waiting period for legal immigrants, and the change aligned Massachusetts with that policy, the state had argued.

The court shot down that reasoning yesterday.

“The court has made a clear and bold statement that immigrants are entitled to equal protection under the law and that health care reform in Massachusetts is alive and well,” said Matt Selig, executive director of Health Law Advocates, a Boston public interest firm that filed the lawsuit on behalf of immigrants.

Immigrants affected by the cuts lauded the court’s decision. Among them was the family of Samuel Goncalves of Saugus.

Goncalves, originally from Brazil, learned in the spring of 2010 that he would be removed from his subsidized health plan. When he applied for the Bridge program, he was told that he could no longer see the team of doctors at Massachusetts General Hospital who had removed cancerous portions of his lungs and had been treating him since.

It took several months to fight that decision and gain permission to stay with the providers who knew his health history. When he returned to them for a checkup, his cancer had returned, this time in his liver, said his father, Reverend Juarez Goncalves. Samuel Goncalves died in October at age 23.

It wasn’t that Goncalves did not get the care he needed, but he and others in his family were constantly fighting to get his treatments covered by the Bridge insurance plan, his brother, Guilherme Goncalves, 27, said.

“The disease itself is really tough, never mind having to deal with those types of problems, too,” he said.

As with anyone applying to the Commonwealth Care program, immigrants affected by the court’s decision must meet income eligibility guidelines and have no access to employer-sponsored health insurance.

The program covers the full cost of insurance for those who make up to 150 percent of the federal poverty level, or about $33,500 for a family of four. It pays a portion of premiums for those who make up to twice that amount.

Lawmakers said it was too soon to tell how they will find additional funding for Commonwealth Care, which was budgeted this year at about $822 million.

“It’s a big ticket item, but the bottom line is that the court has ruled,” said Senator Stephen M. Brewer, chairman of the Senate Ways and Means Committee.

Advocates for immigrants said they will be watching to make sure the state acts quickly.

“The court was clear that the state is now violating the Massachusetts constitution by doing this,” said Laura Rotolo, staff attorney at the American Civil Liberties Union of Massachusetts, which filed a brief in the case. “Even though it might take a little bit of time and it will require some reworking of funds ... it needs to fixed right away.”

Chelsea Conaboy can be reached at cconaboy@boston.com. Follow her on Twitter @cconaboy.

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