SSR 68-38: Sections 1836 and 1837.—Hospital and Supplementary Medical Insurance Benefits—Eligibility of Certain Cuban Refugees
Where, under the provisions of P.L. 89-732 the Attorney General, upon application by a Cuban refugee, adjusts the status of such alien to that of alien lawfully admitted for permanent residence and records a date of such admission retroactively, held for purposes of determining when such alien met the lawful admission requirement under section 103(a)(4) of P.L. 89-97 for establishing entitlement to hospital insurance benefits under Part A of title XVIII of the Social Security Act, the retroactive date of admission recorded by the Attorney General governs; in determining when such alien met the lawful admission requirement under section 1836(2)(A) of the Social Security Act for establishing eligibility for enrollment for supplementary medical insurance benefits under Part B of title XVIII of the Social Security Act, the date the Attorney General adjusted such alien's status governs
Public Law 89-732 (80 Stat. 1161), enacted November 2, 1966, added a provision to the Immigration and Nationality Act whereby the Attorney General may adjust the status of certain Cuban refugees to that of aliens lawfully admitted for permanent residence in the United States. Under the provisions of P.L. 89-732, as pertinent here, an alien's status may be so adjusted if he is a native or citizen of Cuba, has been physically present in the United States for at least 2 years, and makes application for this adjustment. If such alien was admitted as a refugee into the United States after January 1, 1959, and applies for adjustment of his status, the record of his admission for permanent residence will show a date 30 months prior to the date of the application or the date of his last arrival into the United States for permanent residence before November 1, 1966, and makes application to have his date of lawful admission adjusted, the Attorney General shall record admission for permanent residence as of the date the alien originally arrived in the United States or May 1964, whichever is later.
Section 103(a) of Public Law 89-97 (the Social Security Amendments of 1965 (79 Stat. 286)) provides, as pertinent here, that a person age 65 or over who cannot meet the requirements of section 226 of the Act for entitlement to hospital insurance benefits under Part A of title XVIII because he is neither entitled to monthly benefits under section 202 of the Act nor a qualified railroad retirement beneficiary, may nevertheless become entitled to hospital insurance benefits, if, (among other requirements) he files an application and;
(4) is a resident of the United States (as defined in section 210(i) of the Social Security Act), and is (A) a citizen of the United States or (B) an alien lawfully admitted for permanent residence who has resided in the United States (as so defined) continuously during the 5 years immediately preceding the month in which he files application under this section, ***.
An application for hospital insurance benefits under section 103(a) may be effective retroactively for as many as 12 months before the month in which such application is filed. There is no provision for retroactively of an application for supplementary medical insurance benefits.
Section 1836 of the Act provides that a person age 65 or over may enroll in the supplementary medical insurance program under Part B of title XVIII if he:
(2)(A) is a resident of the United States, and is either (i) a citizen or (ii) an alien lawfully admitted for permanent residence who has resided in the United States continuously during the 5 years immediately preceding the month in which he applies for enrollment * * *, or (B) is entitled to hospital insurance benefits * * *.
The question to be resolved is whether the retroactive date of lawful admission under P.L. 89-732 may be used for purposes of determining an uninsured alien's date of entitlement to hospital insurance benefits and for determining his enrollment period for supplementary medical insurance benefits.
The phrase "lawfully admitted for permanent residence," as found in section 103(a)(4) of P.L. 89-97 and section 1836(2)(A) of title XVIII, is a term of art adopted from the Immigration and Nationality Act, in section 101(a)(20) of which it is defined (8 U.S.C. 1101(a)(20)). Accordingly, the phrase has the same meaning in title XVIII as it does in the Immigration and Nationality Act. The Administration, in its determinations of the Attorney General and his delegates as to the fact of lawful admission, since only that official is authorized by statute to make such determinations.
Accordingly, there is no question as to the retroactive lawful admission status of the Cuban refugees for purposes of hospital insurance coverage under part A of title XVIII. The retroactive admission date, as determined by the Attorney General under P.L. 89-732, is controlling as to when the alien met the statutory requirement of lawful admission, so that if the alien meets all of the other requirements of coverage (including the filing of an application) he may be entitled to retroactive part A coverage for up to 12 months.
With respect to part B coverage, however, the question is more complex. If we were to treat the Attorney General's retroactive admission date as controlling for purposes of establishing the date of eligibility to enroll under part B, the effect would be to delay rather than expedite the possibility of part B coverage for Cuban refugees who were the beneficiaries of P.L. 89-732.
Under part B, an individual has a limited period in which to enroll. If he fails to enroll in his initial enrollment period (a 7-month period that is based upon the date he first becomes eligible to enroll) he may have to wait until the following year to enroll and his coverage will be delayed accordingly. In addition, he may be required to pay an additional premium because of his late enrollment.
Thus, a rigid application of the retroactive provisions of P.L. 89-732 is part B of title XVIII would have the effect of denying the beneficiaries of that statute the opportunity to obtain prompt part B coverage by imputing to them a fictitious failure to enroll in the initial enrollment period as determined retroactively. Such an interpretation would be contrary to the purposes of P.L. 89-732 and part B of title XVIII of the Social Security Act, both of which were intended to offer opportunities for coverage rather than obstacles to the parties affected by the legislation.
Accordingly, it is held that where the Attorney General, under P.L. 89-732, adjusts the status of a Cuban refugee to that of an alien lawfully admitted for permanent residence and records a retroactive date of lawful admission, such retroactive date is controlling in determining when the alien met the lawful-admission requirement of section 103(a)(4) of P.L. 89-97 for purposes of entitlement to hospital insurance benefits. It is further held that in determining when such alien met the lawful-admission requirement of section 1836(2)(A) of the Act for purposes of establishing his enrollment period for supplementary medial insurance benefits, the determinative date for lawful admission is not the retroactive recorded date of admission but the date on which the Attorney General actually adjusts the alien's status.