California pushes to protect private Medicaid data from ICE

(CN) — California and 19 other states on Thursday asked a federal judge to issue a preliminary injunction to stop the U.S. Department of Health and Human Services from giving Homeland Security and its Immigration and Customs Enforcement agency unfettered access to private information of Medicaid recipients.

U.S. District Judge Vince Chhabria didn’t issue a ruling at the hearing in San Francisco. The Barack Obama appointee, however, indicated that he may issue a preliminary injunction because the unprecedented decision to share Medicaid data on a massive scale appeared to be “arbitrary and capricious” under the Administrative Procedures Act, the federal statute that governs how U.S. agencies change and implement regulations.

“It’s a significant policy change, and there’s no indication that any consideration was given to the potential disruption of the Medicaid program and the effect it would have on the states and Medicaid recipients,” Chhabria said.

Much of the hearing was focused on how to exactly characterize the Centers for Medicare & Medicaid Services’ agreement with ICE and what kind of review this agreement could require. The judge appeared to suggest that, at a minimum, the policy change required “reasoned decision-making” under the Administrative Procedures Act that would take into account the ramifications of ICE gaining unlimited access to the Medicaid database.

“Shouldn’t the agency also be required to consider what type of information it needs?” Chhabria inquired of Michael Gerardi, an attorney with the U.S. Justice Department.

As part of a reasoned decision-making process, the judge suggested, ICE could just be allowed to request the address of anyone in the database who is in the country illegally, rather than getting access to all the information of all Medicaid recipients, including their private medical records.

Gerardi said in response that initially, the agencies had tried a more tailored approach to getting information for immigration enforcement purposes, but this had proved to be unworkable.

California and the other states sued the Trump administration last month, claiming that millions of individuals’ health information was transferred without their consent and in violation of federal law.

“The Trump administration has upended longstanding privacy protections with its decision to illegally share sensitive, personal health data with ICE," California Attorney General Rob Bonta said last month in announcing the lawsuit. “In doing so, it has created a culture of fear that will lead to fewer people seeking vital emergency medical care.”

The Medicaid program provides health insurance to low-income people and is run by the individual states but partially funded by the federal government.

California’s Medi-Cal program provides healthcare coverage for one out of every three Californians, including more than 2 million noncitizens, such as green card holders, refugees and individuals who hold temporary protected status. Because not all noncitizens are eligible for federally funded Medi-Cal services, California uses state-only funds to provide a version of the Medi-Cal program to all eligible state residents, regardless of their immigration status.

In May, the Centers for Medicare & Medicaid Services said it would increase federal oversight to stop states from “misusing” federal Medicaid dollars to cover health care for individuals who are in the country illegally.

Under federal law, the agency said, federal Medicaid funding is generally only available for emergency medical services for noncitizens with unsatisfactory immigration status who would otherwise be Medicaid-eligible. Some states, the agency claimed, had pushed the boundaries, putting taxpayers on the hook for benefits that are not allowed.

At Thursday’s hearing, the judge appeared unpersuaded by the states’ position that the law prohibits Health and Human Services from sharing Medicaid recipients’ data with Homeland Security.

The U.S. Privacy Act and other federal statutes typically have exceptions to data sharing restrictions for law enforcement purposes, Anna Rich, an attorney with the California Department of Justice, acknowledged. But these exceptions only pertain to individualized requests, not to large-scale transfers of data for “fishing expeditions,” she argued.

The statutory exceptions don’t authorize “the kind of broad-scale we’re just going to give you our databases and let you go fishing in them for whatever you want,” Rich told the judge.

Nevertheless, Chhabria seemed skeptical that federal agencies weren’t required to comply with Homeland Security’s requests for data for law enforcement purposes, including immigration enforcement, even if these requests may seem a “terrible idea.”

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