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.

The Trump Administration’s New Public Charge Rule: Implications For Health Care & Public Health [from Health Affairs Blog]

The Trump Administration’s New Public Charge Rule: Implications For Health Care & Public Health [from Health Affairs Blog]

By Wendy E. Parmet

Although recent discussions about the Trump Administration’s immigration policies have focused on the treatment of undocumented migrants and asylum-seekers at the border and in detention, the Administration has also sought to curtail legal immigration and make conditions more onerous for non-citizens who are lawfully present. The most recent example of these restrictive efforts is the long-anticipated public charge rule, which was published in the Federal Register by the Department of Homeland Security (DHS) on August 14. Unless halted by litigation, the rule will take effect on October 15, creating punishing new challenges for immigrant patients and their health care providers.

The proposed rule purports to implement a longstanding provision of the Immigration and Nationalization Act (INA) that requires most immigrants (excluding refugees, asylees, and certain other groups granted special humanitarian status), to show that they are “not likely to become a public charge,” in order to gain entry into the United States or attain permanent resident status once they are here. Under a guidance issued by the Clinton Administration in 1999, the receipt of non-cash benefits, except to support institutional or long-term care, does not render one a “public charge.” As a result, non-citizens who are eligible for Medicaid or other public benefits (it is worth noting that federal law already restricts many non-citizens from receiving most federal benefits) have had no cause to worry that the receipt of such benefits would undermine their chances of obtaining permanent resident status.

Since President Trump’s inauguration, his Administration has sought to override the 1999 guidance. In January 2017,  a draft executive order that would have required DHS to revise the definition of public charge was leaked and widely circulated. That draft was never signed, but in January 2018, the State Department revised the manual used by consular offices for issuing visas to include in the definition of public charge the use of non-cash health benefits, including Medicaid and the Children’s Health Insurance Program (CHIP). That change alone has led to a significant decline in the number of visas issued. 

Then in October 2018, DHS published proposed public charge regulations. Under the sweeping proposal, the definition of public charge was expanded to include receipt of certain non-cash federally-funded benefits, including Medicaid, the Supplemental Nutrition Assistance Program (food stamps), Medicare Part D subsidies, and federal housing subsidies. The complex regulations would also have required DHS to consider past use of such benefits, as well as cash assistance, and an immigrants’ health and health insurance status, in determining whether an immigrant was likely to become a public charge by using such benefits in the future.

Over 260,000 individuals and institutions filed comments responding to the proposed rule. The vast majority opposed it. Many warned that the rule would lead millions of immigrants to drop their own health care coverage, as well as coverage for their children. Commenters also cited numerous studies predicting that the proposal would lead to more uncompensated care, increased financial hardship for safety-net providers, and a decline in public health.

[Read more]
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This post was originally published on the Health Affairs Blog on August 13, 2019. We have posted an excerpt. Visit the Health Affairs blog to read the full post.

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