Updated 4/5/2014 2 p.m.

The U.S. 9th Circuit Court of Appeals on Tuesday issued a ruling that will likely have a dramatic impact on Micronesians living in Hawaii.

The appellate court determined that the state is not required to fund Medicaid for migrants from island nations in Micronesia including the Republic of Palau, the Republic of the Marshall Islands and the Federated States of Micronesia.

While the Compact of Free Association between the three nations and the United States allows citizens of those countries to live and work freely in the U.S., the federal government ended health care funding for the migrants as part of 1996 welfare reform.

The Micronesian population living in Hawaii — referred to as “nonimmigrant aliens” in the 9th Circuit’s ruling — consists of at least 10,000 people and is increasing, largely as a result of the lack of economic opportunity and health care on their home islands. Many are flocking to homeless shelters and struggling to make ends meet here.

Migration has been partly fueled by a need for health care services. Many residents of the islands suffer from cancer, diabetes and reproductive abnormalities that have been linked to the medical effects of U.S. nuclear testing in the region. Between 1946 and 1958, the U.S. conducted 67 nuclear weapons tests in the Marshall Islands, the equivalent of detonating 1.6 Hiroshima bombs each day for 12 years.

But, beginning during the Lingle administration and continuing through to the Abercrombie administration, state officials have argued that it is the federal government’s responsibility to pay for health services for Micronesians. Hawaii’s congressional delegation has pushed for just that, but the federal legislation has not passed.

The state “will review and analyze the decision and its programs to determine how best to proceed,” according to a joint statement from the Hawaii departments of the Attorney General, Human Services and Health that was issued after the ruling.

Paul Alston, a Honolulu attorney representing plaintiffs Tony Korab, Tojio Clanton and Keben Enoch, addressed the potential impact of the court decision.

“The reality is that if the state’s policy is allowed to go into effect, it will unleash a public-health disaster in Hawaii,” said Alston. “As with any population of people, there are residents from COFA countries that need dialysis, that need chemotherapy, that need vision-saving or life-saving treatment, and none of those things is possible or available under the state’s alternative health program. These people are going to die or go to emergency rooms to get care for medical conditions that are treatable.”

Alston said the plaintiffs “intend to pursue this further in the legal system and won’t rest until the last appeal is exhausted, and that includes asking for review in the U.S Supreme Court, which is what one of the judges essentially invited.”

Korab v. McManaman alleged that the state’s Basic Health Hawaii, a medical program with fewer benefits for COFA migrants residing in Hawaii, violated the Equal Protection Clause of the 14th Amendment “because it provided them with less health coverage than what Hawaii provided to citizens and qualified aliens who were eligible for federal reimbursements through Medicaid,” according to the ruling.

The 9th Circuit’s action effectively nullifies a preliminary injunction from the U.S. District Court in Honolulu that forced the state to restore some health benefits for the migrants. According to U.S. Rep. Colleen Hanabusa’s office, Hawaii spends more than $100 million annually for housing, education and health care for COFA migrants but is only reimbursed $11 million by the federal government. The analysis doesn’t take into account the amount of taxes that COFA migrants contribute to the state.

Judge Margaret McKeown wrote the 9th Circuit’s opinion, with concurrence by Judge Jay S. Bybee. The third member of the panel, Hawaii’s Richard R. Clifton, dissented.

The panel determined that Hawaii has “no constitutional obligation to fill the gap left” by Congress’s withdrawal of federal funding. In her opinion, McKeown wrote, “This case presents yet another challenge to the complex area of state-funded benefits for aliens. In enacting comprehensive welfare reform in 1996, Congress rendered various groups of aliens ineligible for federal benefits and also restricted states’ ability to use their own funds to provide benefits to certain aliens.”

Clifton, in his dissent, wrote that the state “discriminated against aliens from three Micronesian nations who were lawfully present in this country.” But the state “could provide to them the same benefits it provides to citizens. It had, in fact, provided the same benefits to COFA Residents for 14 years, until budgetary woes motivated the state to try to save money, by exercising an option given to it by Congress.”


The state’s argument for its case is listed below. Advocates for providing health care to the COFA migrants, however, argue that the issue isn’t about immigrants rights or welfare for the needy.

In a legal brief field (reproduced below) by the National Association for the Advancement of Colored People of Honolulu, the Japanese American Citizens League of Honolulu and the Kokua Kalihi Valley Comprehensive Family Services, the groups argued that the case “is about repairing the persisting damage of injustice uniquely suffered” by residents of the island nations, and that Hawaii has a moral as well as legal responsibility to provide medical care.

If the state does decide to cut benefits again, it could be devastating for residents with severe illnesses like cancer and diabetes who rely on chemotherapy, dialysis or other medical services to survive.

One of the plaintiffs, Keben Enoch from the Marshall Islands, had been living in Hawaii for nearly 16 years when the state cut his health insurance in December 2009. When he reapplied in June 2010, he was denied because he was not a U.S. citizen.

The next month, as explained in his court declaration (see below), he went to the emergency room at Queen Emma Hospital for stomach pain and was told that he might have cancer. When he went back for a follow-up visit, he was refused tests because he lacked insurance.

“The doctor told me that he was not sure whether, or when, I would be able to have more tests or get treatment,” Enoch wrote in his court declaration.

For him and others like him, the future is again uncertain.

Contact Chad Blair via email at cblair@civilbeat.com or follow him on Twitter at @chadblairCB.

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