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The Health Impact Of The Proposed Public Charge Rules [from Health Affairs Blog]

by Wendy E. Parmet, Matthews Distinguished University Professor of Law and Faculty Director, Center for Health Policy and Law at Northeastern University School of Law; Professor of Public Policy and Urban Affairs, Northeastern University School of Public Policy and Urban Affairs 

This post was originally published on the Health Affairs blog (Sept. 27, 2018).

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On September 22, the Trump Administration announced it would soon publish in the Federal Register proposed new regulations defining when lawfully present immigrants should be considered a “public charge.” Although the draft regulations posted by the Department of Homeland Security (DHS) were not as far-sweeping as a version that was leaked last winter, if promulgated they would still have a dramatic impact on public health and the health care system.

For over a century, the Immigration and Nationalization Act has required most immigrants (not including refugees, asylees and certain other exempt groups) who seek to enter the United States, and most non-citizens within the United States who want to obtain permanent residency status, to show that they are “not likely to become a public charge.” The Act does not define “public charge,” but under a 1999 guidance, the term has only been applied to non-citizens who rely on cash benefits for most of their income, or to those who require public assistance for long-term care or institutionalization. The receipt of non-cash benefits, including publicly-funded health insurance, does not make one a public charge.

The Administration’s proposed regulations would end those exemptions and redefine “public charge” as including non-citizens who receive an amount greater than 15 % of the Federal Poverty Level (for a household of one) of certain listed monetizable benefits, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), the Supplemental Nutrition Assistance Program (SNAP) and federal housing support. In addition, except in limited circumstances, a non-citizen could be considered a public charge for receiving Medicaid or premium and cost-sharing subsidies under Medicare Part D for 12 out of 36 months. Immigrants who use these benefits for fewer months could also be found to be a public charge if they also receive monetizable benefits. The proposal posted by DHS also seeks comments as to whether participation in the Children’s Health Insurance Program (CHIP) could also cause a non-citizen to be found to be a “public charge.”

The draft regulations explain that the public charge determination is one that is future-oriented. The key question is whether the individual, looking at the totality of circumstances, is likely to use any of the covered benefits in the specified amounts in the future. However, use of any of the listed benefits within 36 months of filing for an adjustment of status (though not reaching back before the regulations go into effect) will be treated as heavily weighted negative factors in determining whether an individual is likely to become a public charge by using such benefits in the future.  As a result, an immigrant who was on Medicaid for several years as a child may find that that coverage is held against her if she seeks a green card once she becomes of age, even though her circumstances may have changed dramatically. DHS also proposes to consider whether an immigrant has “private insurance or the financial resources to pay for reasonably foreseeable medical costs related to a medical condition that is likely to require extensive medical treatment or institutionalization “ or will interfere with the immigrant’s ability to care for him or herself or work or attend school.

Negative Health Impacts

If promulgated these changes will almost certainly harm the health of immigrants and their families. Most obviously, the changes will create a significant disincentive for immigrants to enroll in publicly-funded health insurance programs. In its comments, DHS estimates that 2.5 % of the eligible population of immigrants and their family members who are otherwise eligible for Medicaid or Medicare Part D subsidies will either dis-enroll or forego participation in the programs. In reality, many more immigrants, including many who are not actually subject to the public charge requirement because they  have an exempt status, are likely to avoid coverage due to fear of negative immigration consequences. Even before the proposed regulations were posted by DHS, many immigrants chose not to enroll either themselves or their children in public programs because of fear of possible adverse immigration consequences.

The emphasis that DHS seeks to place on immigrants’ medical condition is likely to exacerbate the problem, creating a type of “pre-existing condition” bar for non-citizens. Under the proposal, the absence of private health insurance alongside the existence of a serious medical condition makes an individual more likely to be found to be a public charge. Hence immigrants, especially those without private health insurance, will have a strong incentive to avoid medical examinations and tests, even when offered free of charge, lest a potential health problem be discovered. As a result, treatable medical conditions will remain undiagnosed and untreated until they become emergencies. Ironically, the proposed regulations deal with that by not considering the receipt of so-called emergency Medicaid, which pays for emergency care, in determining whether an individual is a public charge. The regulations thus create a strong incentive for non-citizens to wait until their health problems become emergent.

The impact of the proposed regulations on health, however, extends far beyond the negative consequences that will follow from patients losing their health insurance or avoiding medical care. The inclusion of SNAP and housing subsidies in the list of benefits that can render one a public charge means that many immigrants will avoid critical programs that can improve the social determinants of health. Importantly, the loss of these benefits will inevitably extend beyond non-citizen immigrants to their entire family, including their citizen children. After all, a child will lose access to housing if her immigrant mother avoids housing support.

The proposal’s ripple effects will undoubtedly extend even wider. As DHS notes in its comments, the regulations may increase the financial woes of health care providers who serve immigrant communities, as their patients avoid public insurance and even, potentially, primary care. This financial hardship could well cause some providers to cut back on vital services for their entire community, not simply the non-citizens.

The False Promise Of Universal Self-Sufficiency

Indeed, what is perhaps the most striking about the proposed regulations is the fact DHS recognizes their potential harmful impact. In its comments, the department states that its proposal may lead to:

  • Worse health outcomes, including increased prevalence of obesity and malnutrition, especially for pregnant or breastfeeding women, infants, or children, and reduced prescription adherence;

  • Increased use of emergency rooms and emergent care as a method of primary health care due to delayed treatment;

  • Increased prevalence of communicable diseases, including among members of the U.S. citizen population who are not vaccinated;

  • Increases in uncompensated care in which a treatment or service is not paid for by an insurer or patient; and

  • Increased rates of poverty and housing instability; and

  • Reduced productivity and educational attainment.

Despite acknowledging these drawbacks, DHS claims that the regulations are, nevertheless, necessary to ensure “self-sufficiency” among immigrants. Yet, when it comes to health, the goal of complete self-sufficiency is unrealistic and quixotic. Look across the life span, and it’s easy to recognize that none of us is self-sufficient during our childhood, and few of us will be in the future if we live long enough. And that does not consider the fact that our health is significantly affected by social and environmental factors outside of our control. None of us can be self-sufficient in the face of a widespread epidemic, an environmental catastrophe, or even a motor vehicle accident caused by others. That is just as true for non-citizen immigrants as everyone else. As DHS notes, almost 20 % of American citizens rely on the programs affected.  The demand that immigrants achieve self-sufficiency is implausible. It is also cruelly demeaning to all Americans who rely on the programs that are targeted.

Fortunately, it isn’t too late to prevent the alarming prospects that DHS cites from coming to pass. Once the Regulations are published in the Federal Register, the public will have 60 days to comment. During this period, health care providers, health policy experts, and the public health community will have an opportunity to weigh in. The nation’s health may depend upon their doing so.  

Wendy Parmet