NYS DOH Clarifies "PRUCOL" Status for the Establishing of Medicaid Eligibility

October 1, 2008

Author: Barbara Weiner

To establish Medicaid eligibility, an immigrant must provide evidence that he or she is either a "qualified alien" as defined in federal law (8 U.S.C.§ 1641) or is "permanently residing under color of law," commonly referred to as "PRUCOL".  The term is meant to include non-citizens who, although not lawful permanent residents ("green card" holders), are considered to be in the country for an indefinite period either with the permission of the Department of Homeland Security (DHS) or with its acquiescence.  Generally, the acquiescence of DHS can be assumed when an application for an immigration benefit (such as an application for permanent resident status) has been filed with the United States Citizenship and Immigration Service (USCIS) and is pending before it.

Historically, the determination of what constitutes PRUCOL was specific to the particular federal benefit program and varied between programs.  These distinctions have carried over to the New York's definition of PRUCOL in its benefit programs.  Thus the Office of Temporary and Disability Assistance (OTDA) has a substantially narrower definition of what constitutes PRUCOL in the context of eligibility for the Safety Net program than does the Department of Health (DOH) in the context of Medicaid.  Essentially, each agency has carried over and refined the federal AFDC and Medicaid program rules in use in the 1980's and 1990's.  With respect to the federal programs, the federal welfare reform legislation of 1996 eliminated the PRUCOL category entirely as an eligibility classification for federal public benefits.

The answer to the question of who is to be considered PRUCOL is relatively straightforward in both the Safety Net and the Medicaid program when USCIS has actually given permission to someone to remain in the country for an indefinite period, for example a grant of deferred action.  It is a more difficult question when an individual has made his or her presence known to USCIS, generally by filing a request to be allowed to stay in the country under one or another category, but has not yet received a response from USCIS to the request.  It is this question that a recently issued GIS, 08 OHIP/INF-4, is meant to answer.  The GIS is available at http:onlineresources.wnylc.net/pb/docs/08inf-4.pdf.

However, in contrast with OTDA, it is and has been for some time, DOH policy that any formal application or petition that is filed with USCIS for an immigration benefit that is pending before the agency also confers PRUCOL eligibility while the application is pending.  This would include such applications as for asylum, for cancellation of removal, for permanent resident status or for a U visa (available to victims of crime who cooperate with law enforcement).  To establish Medicaid eligibility under these circumstance, an applicant for Medicaid would have to provide evidence that the application was submitted to USCIS either through an acknowledgement by USCIS of its receipt or, if such acknowledgement was not yet available, through proof of mailing, such as a return receipt.

The GIS reiterates this long standing policy of DOH but also answers another question that had long been troublesome. This question revolves around how DOH will treat applications to USCIS for discretionary relief for which there is no formal application process, for example, requests for deferred action or for voluntary departure.  These requests are made simply by letter to USCIS or Immigration and Customs Enforcement (ICE) and generally must put forward a strong case for humanitarian consideration, for example, evidence that the person is severely ill and basically would suffer great harm if not permitted to remain in the US for some indefinite period.

With this GIS, DOH sets out its policy for conferring Medicaid eligibility on someone who has filed such a request for discretionary relief with USCIS or ICE to which the agencies have not responded after a period of time.  In order to establish PRUCOL status under these circumstances, the applicant for Medicaid must show:

• Proof that a request for discretionary relief was made to USCIS or ICE and a summary of the pertinent facts upon which the request was based (in most cases this will be evidence of the severe medical condition or extremely exigent circumstances of the applicant).
• That at least six months have passed since the request was made, during which time there has either been no response to the request for humanitarian relief or USCIS/ICE has referred the request to another agency, which also has not responded within the six month period, or ICE or USCIS has responded and the response can reasonably be "interpreted as indicating the agency does not contemplate enforcing the alien's departure at this time." (08 OHIP/INF-4, page 7)
• That during the six month period that the request has been pending, at least one or more attempts were made to contact USCIS or ICE to inquire about the status of the request.

A request to USCIS or ICE for discretionary relief based solely on humanitarian grounds is obviously a measure to be taken in only the most extreme circumstances, where the condition of the non-citizen is so serious that a move to deport him or her would result in extreme harm or even death  The request will call the attention of USCIS or ICE to the individual's presence in the U.S. and lack of legal status and could put the person at risk of being deported unless the circumstances are so dire that ICE or USCIS is not likely to initiate deportation.  Such a request should be made only with the assistance of an experienced immigration attorney.