Dana Walsh Sivak, Esq.
It is a common misconception that an individual residing in a long term health care facility can only obtain institutional Medicaid coverage if he or she is a citizen, or lawful permanent resident, of the United States. On the contrary, nursing home residents are eligible for institutional Medicaid benefits if they qualify for PRUCOL status – whether or not they are residing legally in the United States.[i]
What is PRUCOL?
PRUCOL is an acronym which describes persons "Permanently Residing Under the Color of Law"[ii]. These are individuals residing in the United States without a documented legal status, but are still entitled to certain public benefits because they are residing in the U.S. with the "knowledge" and "acquiesce" of the United States government – in that they are continuously residing in the United States with the knowledge of the federal immigration authorities, but are not presently subject to deportation proceedings or otherwise awaiting deportation.[iii] As long as all other Medicaid eligibility criteria are met (such as financial and medical), such persons are entitled to Medicaid benefits (with some exceptions)[iv].
While PRUCOL is not a true federal immigration category recognized by the United States federal immigration authorities, local social services districts utilize this classification to determine whether this category of individuals may qualify for institutional Medicaid benefits. It is not necessary to fully resolve a resident's legal immigration status in order to render the person eligible for institutional Medicaid benefits. Rather, a resident will be eligible for full institutional Medicaid benefits as long as the resident's PRUCOL status is considered "pending" – regardless of how long it takes the federal immigration authority to make a final determination as to the resident's legal status.[v]
Establishing a Resident's PRUCOL status
There are two methods which local social services districts accept as proof of an individual's PRUCOL status: the "application" method, which allows for immediate "PRUCOL pending" status, and the "correspondence" method, which involves a waiting period of up to six (6) months before PRUCOL or "PRUCOL pending" status is conferred.[vi]
When utilizing the "application method”, a formal application is filed pursuant to section 245 of the Immigration and Nationality Act (8 U.S.C. §1255) with the United States Citizenship & Immigration Services division ("USCIS") of the U.S. Department of Homeland Security. At the outset, biographical information is gathered. There are various types of applications available for filing, depending upon the resident's country of origin and reason for immigrating to the United States. Certain countries of origin qualify immigrants to apply for Temporary Protected Status or Refugee Status, for example, while others require the filing of a generic "Application to Adjust Status and/or Register Lawful Permanent Resident Status". The resident is considered "PRUCOL-pending" immediately upon the immigration agency's receipt of the application.[vii]
When utilizing the "correspondence method”, a written request is submitted to the Immigration & Customs Enforcement division ("ICE") of the U.S. Department of Homeland Security, requesting that the individual residing illegally in the US be permitted to stay within the United States, usually based on humanitarian grounds. Upon submitting a written request to ICE, it is necessary to wait a period of six (6) months from the date of the initial submission, and before the individual is deemed to have PRUCOL status.[viii]
Potential Pitfalls of PRUCOL Admissions to Long Term Health Care Facilities
Medicaid guidelines create a clear pathway to securing coverage for individuals who meet the PRUCOL criteria. However, it is only possible to apply for the types of immigration application(s) required to establish PRUCOL status with the consent and cooperation of the skilled nursing facility resident. In the event that a resident refuses to cooperate (such as due to fear of deportation), the nursing home cannot unilaterally proceed with the PRUCOL process.
Further, if it is revealed during the application process that there are aspects of the resident's criminal background or immigration history that would preclude him or her from being permitted legal residence in the United States (for example, where a deportation order has previously been issued for the individual and not rescinded, or where the individual was convicted of a crime in the United States or in his or her country of origin), he or she will be ineligible for PRUCOL status.
Other issues which may complicate efforts to secure PRUCOL status, and make achieving PRUCOL status less likely, include, but are not limited to, instances where an individual is incapacitated and/or cognitively impaired such that he or she cannot consent to an application being filed and/or cannot recall key details regarding his or her personal or immigration background; where an individual does not have sufficient photographic identification in order to complete the biometrics interview phase, which typically follows the initial application; or where an individual has no personal documentation to provide in support of an application[ix], which can prevent the applicant from submitting a complete response to subsequent Request(s) for Evidence issued by USCIS or ICE, and can result in a denial of the application or written request. This holds true whether one is pursuing the “correspondence method” or the “application method” of establishing PRUCOL status.
PRUCOL cases are each inherently different, such that a "one size fits all" approach does not work. Rather, we can best serve our clients by becoming aware of a PRUCOL issue as early on in the process as possible, and provide individualized support in the face of these issues.
If possible, before a client is admitted to a long term health care facility, review the personal documentation in order to evaluate whether he or she may already qualify as PRUCOL, or whether he or she is likely to qualify as PRUCOL through the methods described above[x]. If the individual is already a resident of a health care facility and a Medicaid application has been denied because of a PRUCOL issue, a Fair Hearing will most likely be required to secure benefits. Extensive knowledge of the Medicaid program guidelines as they pertain to PRUCOL individuals is required to argue against the often erroneous denial of benefits determinations reached by the department of social services. Additionally, it is important to remain informed of policy changes which can impact the federal immigration authorities’ treatment of these applications and requests. As with other immigration issues, this highly regulated subject area should not be treated lightly.
[i] See, Aliessa v. Novello, 96 N.Y.2d 418 (2001).
[ii] 20 CFR §§ 416.1618, 416.1619; 42 CFR § 435.408.
[iii] See generally, Polen, Salvaging a Safety Net: Modifying the Bar to Supplemental Security Income for Legal Aliens, 76 Wash U LQ 1455, 1455 n 3 .
[iv] See, State of N.Y. Dep’t of Health, Information Letter 08 OHIP/INF-4, Clarification of PRUCOL Status for Purposes of Medicaid Eligibility (2008), https://www.health.ny.gov/health_care/medicaid/publications/docs/inf/08inf-4.pdf; see also, State of N.Y. Dep’t of Health, Information Letter 07 OHIP INF-2, Clarification of PRUCOL Status for Purposes of Medicaid Eligibility (2007), https://www.health.ny.gov/health_care/medicaid/publications/docs/inf/07inf-2.pdf; and State of N.Y. Dep’t of Health, Administrative Directive 04 OMM/ADM-7, Citizenship and Alien Status Requirements for the Medicaid Program (2004), https://www.health.ny.gov/health_care/medicaid/publications/docs/adm/04adm-7.pdf.
[vii] 08 OHIP/INF-4, page 4.
[viii] 08 OHIP/INF-4, pages 4-8.
[ix] 04 OMM/ADM-7.
[x] However, a nursing home may not deny admission to a prospective resident on the basis of one’s undocumented immigration status in the U.S.