The Public Health Law Watch initiative identifies potential legislative and regulatory changes that have an impact to harm public health but have yet to break into the mainstream conversation, identifies ways to engage on these issues, and provides legal analysis and commentary.

New Dangers For Immigrants and the Health Care System [from Health Affairs Blog]

New Dangers For Immigrants and the Health Care System [from Health Affairs Blog]

PHLW's Wendy E. Parmet and Elisabeth J. Ryan co-authored an article posted on the Health Affairs Blog about the potential changes to the definition of "public charge" and how that will negatively impact health care and the health care system. 


New Dangers For Immigrants And The Health Care System

By Wendy E. Parmet and Elisabeth Ryan

The Trump administration’s crackdown on immigrants may soon create new perils for the health care system if a set of proposed regulations by the Department of Homeland Security (DHS), leaked last month to the Washington Post, are promulgated. The regulations would dramatically expand the definition of “public charge,” a criteria used in immigration law to determine both admissibility to and deportability from the United States. As a result, many immigrants, including many low wage health care workers, may be deterred from using publicly-funded health care benefits to which they and their dependents, including their citizen children, are legally entitled.

The Immigration and Nationalization Act requires most non-nationals (other than refugees, asylees, and certain other protected classes) who seek a visa to show that they are not likely to become a “public charge,” that is, someone dependent on public benefits. Once they are in the United States, most immigrants must make a similar showing if they seek a change in status, for example, if they apply for a green card. In limited circumstances, even green card holders may be deported for becoming a public charge.

An Expanded Definition Of ‘Public Charge’

Under long-standing policy, the use of publicly funded health care benefits (other than long term care) did not render an immigrant a public charge. In January however, the State Department issued a revised Foreign Affairs Manual, used by the consular offices in reviewing visa requests, which expanded the definition of public charge to include consideration of health benefits. The proposed DHS regulations would apply that approach within the United States, treating the use of Medicaid, the Children’s Health Insurance Program (CHIP), the Affordable Care Act (ACA) subsidies, and even benefits wholly funded by the states—but not Medicare—as a factor in determining whether an immigrant had been or would become a public charge. An immigrant could also be found to be a public charge if his or her dependents, including citizen children, used Medicaid or CHIP.

The implications of this potential change for patient care are significant. Non-citizen immigrants are already far less likely than citizens to have health insuranceIn part, this is due to the fact that undocumented immigrants are ineligible to participate in the ACA’s exchanges or to receive federally funded health insurance (except for emergency Medicaid). Current law also denies most lawfully present immigrants from receiving Medicaid or CHIP for the first five years they have that status. With less access to insurance, it’s not surprising that immigrants are less likely than citizens to have a usual source of care, or preventive services.

Since the Trump administration took office, there have been widespread anecdotal reports that many immigrants have stopped showing up for their medical appointments. Undoubtedly some of this is due to the general climate of fear created by enhanced enforcement actions, which is especially frightening to those who are undocumented, as well as their families. But advocates also believe that a draft leaked in February 2017 of a proposed executive order expanding the definition of public charge led many immigrants to stay away from the health care system. In response, advocates and providers have tried to reassure immigrants that they should continue getting needed care.

Potential Consequences

If enacted, the proposed regulations will undermine that message, causing more immigrants to forgo needed care, meaning that easily treatable health conditions will go untreated until they become worse, and pregnant women will lack prenatal care. In addition, with immigrants afraid to access coverage for which they are eligible, hospitals and other safety net providers will be forced to bear more unreimbursed costs. The regulations may also create troubling new tensions between immigrant patients and their providers. For example, consider the possible predicament of a legal immigrant who gives birth to a child who needs neo-natal intensive care. By virtue of her birth, the child would be an American citizen and eligible for Medicaid, even if the mother was not eligible, as a result of her immigration status. Today, the hospital would likely work with the mother to enroll the child in Medicaid, so that the hospital could be paid for the child’s treatment. But with the new regulations in place, the mother might fear that enrolling her child in Medicaid would adversely affect her ability to get a green card and stay in the United States with her child. As a result, the mother’s interest and the hospital’s would be in conflict. Situations like this will likely arise every day, as patients fear enrolling in insurance to which they are entitled.

The regulations may also cause problems for many health care workers. While immigrants make up about 8 percent of the overall American workforce, they constitute 16 percent of the health care work force. Most non-citizen physicians and registered nurses receive health insurance through work, and will not be significantly affected by the proposed regulations. However, 22 percent of low skilled jobs in the health care sector, including nursing home workers and personal attendants, are filled by immigrants, many of whom lack access to employer-provided insurance.

For example, 25 percent of the home health aide workforce is non-United States born and one-third of home health aides rely on publicly-funded programs, including Medicaid and the ACA’s premium tax credits for insurance. If they avoid such programs for fear of becoming a public charge, they are likely to be uninsured, and unable to receive necessary care. That is likely to affect their ability to stay healthy and be productive workers. Making matters worse, the expanded definition of public charge will likely make it harder for low-skilled immigrants, including those who would otherwise work in the health care sector, to enter or stay in the country.  

The Administration defends the proposed regulations on the theory that they will advance self-sufficiency among immigrants. Self-sufficiency is an articulated goal in our immigration laws. But immigration law also establishes that many classes of immigrants are qualified for and entitled to federally-funded health benefits. So do many of our health laws, including the ACA and the laws authorizing CHIP. These laws reflect the realization that self-sufficiency with respect to health care is unrealistic. When it comes to health care, very few people are truly self-sufficient. Almost everyone needs insurance, and even the forms of insurance that the regulations favor depend upon public’s support. For example, employer-provided insurance receives preferential tax treatment, and Medicare is financed in part from general tax funds. And all but the very wealthy can find themselves relying on Medicaid or other public programs if a serious accident or disability befalls them.

Not only is self-sufficiency in health care unrealistic, it makes for bad health policy. The proposed regulations may be aimed primarily at keeping out unskilled workers, but by deterring taxpaying immigrants from accessing necessary care, they will spread costs throughout the health care system, add to health-related work losses, and harm the health of children and families.

There are still many steps before some version of the proposed regulations become law. The proposal is currently before the Office of Management and Budget, which could demand changes. It would then need to be published in the Federal Register for public comment. Should that happen, it is imperative that those who care about patients and the health care system weigh in, lest the Administration’s war against immigrants becomes a war against the American health care system.

It's Time for Uncomfortable Solutions to the Opioid Epidemic [from The Fix]

It's Time for Uncomfortable Solutions to the Opioid Epidemic [from The Fix]

Q&A: Holding Drugmakers Accountable for Opioid Crisis

Q&A: Holding Drugmakers Accountable for Opioid Crisis