New Mexico Administrative Code
Title 8 - SOCIAL SERVICES
Chapter 200 - MEDICAID ELIGIBILITY - GENERAL RECIPIENT POLICIES
Part 410 - GENERAL RECIPIENT REQUIREMENTS
Section 8.200.410.11 - CITIZENSHIP
Universal Citation: 8 NM Admin Code 8.200.410.11
Current through Register Vol. 35, No. 18, September 24, 2024
To be eligible for medicaid, an individual must be a citizen of the United States; United States national or a non-citizen who meets the requirements set forth in either Subsection A or B of 8.200.410.11 NMAC.
A. Non-citizens who entered the United States prior to August 22, 1996: Non-citizens who entered the United States prior to August 22, 1996, will not be subject to the five-year bar for purposes of medicaid eligibility. These classes of non-citizens are as follows.
(1) Qualified non-citizens who entered the
United States prior to August 22, 1996 and obtained their qualified
non-citizens status prior to that date, are eligible for medicaid without the
five-year waiting period.
(2)
Non-citizens who entered the United States prior to August 22, 1996, and
remained continuously present in the United States until the date they obtained
qualified non-citizen status on or after August 22, 1996; any single absence
from the United States of more than 30 days, or a total aggregate of absences
of more than 90 days, is considered to interrupt "continuous
presence".
(3) Lawful Permanent
Residents (LPRs) are qualified non-citizens per
8 USC
1641.
(4) A non-qualified non-citizen who was
permanently residing in the United States under color of law (PRUCOL) on or
before August 22, 1996, does not lose medicaid eligibility provided all other
factors of eligibility continue to be met. These non-citizens are
"grandfathered". For these individuals, non-citizen eligibility may continue to
be based on the PRUCOL standard. An individual eligible under the PRUCOL
standard retains his or her grandfathering rights even if benefits
terminate.
B. Qualified non-citizens who entered the United States on or after August 22, 1996:
(1) Qualified non-citizens
who entered the United States on or after August 22, 1996, are barred from
medicaid eligibility for a period of five years, other than emergency services
(under Category 085), unless meeting an exception below. LPRs who adjust from a
status exempt from the five-year bar are not subject to the five-year bar. The
five-year bar begins on the date the non-citizen obtained qualified status. The
following classes of qualified non-citizens are exempt from the five-year bar:
(a) a non-citizen admitted to the United
States as a refugee under Section 207 of the Immigration and Nationality
Act;
(b) a non-citizen granted
asylum under Section 208 of the Immigration and Nationality Act;
(c) a non-citizen whose deportation is
withheld under Section 243(h) of the Immigration and Nationality Act;
(d) a non-citizen who is lawfully residing in
the state and who is a veteran with an honorable discharge not on account of
non-citizen status; is on active duty other than on active duty for training,
in the armed forces of the United States; or the spouse or unmarried dependent
child under the age of 18 of such veteran or active duty non-citizen;
(e) a non-citizen who was granted status as a
Cuban and Haitian entrant, as defined in Section 501(e) of the Refugee
Education Assistance Act of 1980;
(f) a non-citizen granted Amerasian immigrant
status as defined under Section 584 of the Foreign Operations, Export Financing
and Related Programs Appropriations Act, 1988;
(g) victims of a severe form of trafficking,
in accordance with Paragraph (1) of Subsection B of Section 107 of the
Trafficking Victims Protection Act of 2000,
P.L.
106-386;
(h) members of a federally recognized Indian
tribe, as defined in 25
U.S.C. 450b(e);
(i) American Indians born in Canada to whom
Section 289 of the Immigration and Nationality Act applies;
(j) Afghan and Iraqi special immigrants under
Section 8120 of
Pub. L.
111-118 of the Department of Defense
Appropriations Act, 2010;
(k)
non-citizens receiving SSI; and
(l)
battered non-citizens who meet the conditions set forth in Section 431(c) of
the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) as
added by Section 501 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996,
P.L.
104-208 (IIRIRA), and amended by Section 5571 of
the Balanced Budget Act of 1997,
P.L.
105-33 (BBA), and Section 1508 of the Violence
Against Women Act of 200,
P.L.
106-386; Section 431(c) of PRWORA, as amended, is
codified at 8 USC
1641(c). HSD covers battered
non-citizens with state general funds until the five-year bar is
met.
(2) Qualified
non-citizen: A "qualified non-citizen ", for purposes of this regulation, is a
non-citizen, who at the time the non-citizen applies for, receives, or attempts
to receive a federal public benefit, is:
(a) a
non-citizen who is lawfully admitted for permanent residence under the
Immigration and Nationality Act;
(b) a non-citizen who is granted asylum under
Section 208 of such act; or
(c) a
refugee who is admitted to the United States under Section 207 of the act;
or
(d) an Amerasian who is admitted
to the United States under Section 207 of the act; or
(e) a non-citizen who is paroled into the
United States under Section 212(d)(5) of such act for a period of at least one
year; or
(f) a non-citizen whose
deportation is being withheld under Section 243(h) of such act or under Section
241(b)(3); or
(g) a non-citizen who
is granted conditional entry pursuant to 203(a)(7) or such act as in effect
prior to April 1, 1980; or
(h) a
non-citizen who is a Cuban or Haitian entrant (as defined in Section 501(e) of
the Refugee Education Assistance Act of 1980); or
(i) certain battered women and non-citizen
children of battered parents (only those who have begun the process of becoming
a lawful permanent resident under the Violence Against Women Act); or
(j) victims of a severe form of trafficking
and their spouses, children, siblings, or parents; or
(k) members of a federally recognized Indian
tribe, as defined in 25
U.S.C. 450b(e); or
(l) American Indians born in Canada to whom
Section 289 of the Immigration and Nationality Act applies; or
(m) Afghan and Iraqi special immigrants under
Section 8120 of
Pub. L.
111-118 of the Department of Defense
Appropriations Act, 2010.
C. Lawfully present: New Mexico medicaid covers certain individuals who are lawfully residing in the United States. An individual is lawfully residing in the United States if they are lawfully present and otherwise meet the eligibility requirements, such as state residency and income requirements, in the state plan. The following individuals are lawfully present and are exempt from the five-year bar:
(1) Children under age 21 and pregnant
individuals under Section 214 of the Children's Health Insurance Program
Reauthorization Act of 2009 (CHIPRA 214 option). A child or pregnant individual
is considered lawfully present if they are:
(a) a qualified non-citizen as defined in
Section 431 of PRWORA (8 USC
Section 1641);
(b) a non-citizen in nonimmigrant status who
has not violated the terms of the status under which they were admitted or to
which they have changed after admission as defined under
8 USC
1101(a)(15);
(c) a non-citizen who has been paroled into
the United States pursuant to Section 212(d)(5) of the Immigration and
Nationality Act (8 U.S.C.
Section 1182(d)(5)) for less
than one year, except for a non-citizen paroled for prosecution, for deferred
inspection or pending removal proceedings;
(d) a non-citizen who belongs to one of the
following classes:
(i) non-citizen currently
in temporary resident status pursuant to Section 210 or 245A of the Immigration
and Nationality Act (8 U.S.C.
Section 1160 or
1255a, respectively);
(ii) non-citizens granted temporary protected
status (TPS) pursuant to Section 244 of the Immigration and Nationality Act
(8 U.S.C. Section
1254a), and pending applicants for TPS who
have been granted employment authorization;
(iii) non-citizens who have been granted
employment authorization under
8 CFR
274a.12(c)(9), (10), (16), (18), (20), (22), or
(24);
(iv) family unity beneficiaries pursuant to
Section 301 of
Pub. L.
101-649, as amended including individuals who are
granted benefits under Section 1504 of the Legal Immigration and Family Equity
(LIFE) Act amendments of 2000;
(v)
non-citizens currently under deferred enforced departure (DED) pursuant to a
decision made by the president;
(vi) non-citizens currently in deferred
action status except those with deferred action under "deferred action for
childhood arrivals" who are not considered lawfully present.
(vii) non-citizens who have pending or
approved visa petitions and who have a pending application for adjustment of
status;
(e) a non-citizen
with pending applicants for asylum under Section 208(a) of the INA
(8 U.S.C. Section
1158) or for withholding of removal under
Section 241(b)(3) of the INA (8 U.S.C. Section 1231) or under the
convention against torture who has been granted employment authorization, or is
an applicant under the age of 14;
(f) children who have pending or approved
applications for special immigrant juvenile status as described in Section
101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. Section
1101(a)(27)(J));
or
(g) victims of
trafficking.
(2)
Effective December 27, 2020, per section 208 of the Consolidated Appropriations
Act, 2021 individuals who are considered compact of free association migrants
(COFA) are also referred to as compact citizens. COFA is an agreement between
the United States and the three Pacific Island sovereign states of federated
states of Micronesia, the republic of the Marshall Islands, and the republic of
Palau known as freely associated states.
D. The income and resources of a non-citizen sponsor, of any individual applying for medicaid, are deemed available to the applicant, when an affidavit of support is executed pursuant to Section 213 of the Immigration and Nationality Act, on or after August 22, 1996. This counting of non-citizen sponsor income and resources is effective until the sponsored non-citizen achieves citizenship.
E. The state assures that it provides limited medicaid services for treatment of an emergency medical condition, not related to an organ transplant procedure, as defined in 1903(v)(3) of the social security act and 8.285.400 NMAC and implemented at 42 CFR 440.255, to the following individuals who meet all medicaid eligibility requirements, except documentation of citizenship or satisfactory immigration status or present an SSN.
(a) qualified non-citizens subject to the
five-year waiting period described in
8 USC
1613; or
(b) non-qualified non-citizens, unless
covered as a lawfully residing child or pregnant individual by the state under
the option in accordance with 1903(v)(4) and implemented at
42 CFR
435.406(b).
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