UPDATE: On Saturday, November 2, 2019, US District Judge Michael Simon in Portland, Oregon, issued a temporary restraining order blocking the Trump administration from requiring immigrants to prove they will obtain health insurance within a month of arrival or that they can pay out of pocket for “reasonably foreseeable medical costs.” The restraining order, which will last 28 days, came the day before the rule was to take effect under a Trump proclamation. 

On Friday, October 4, 2019, President Trump issued a proclamation to suspend entry of immigrants into the United States if they cannot prove that they will obtain unsubsidized health insurance coverage within 30 days of entering, or that they have the financial means to pay for any foreseeable health care costs. The proclamation is not yet in effect, and we anticipate legal challenges.

The White House’s stated rationale for the change is to ensure that immigrants do not burden the health care system financially, to protect the availability of health care benefits for American citizens by not crowding emergency departments, to safeguard taxpayer dollars that are otherwise spent on uncompensated care or Medicaid, and to promote self-sufficiency. As stated, this policy is part of the president’s broader immigration plan to “modernize” the “outdated immigration laws and move to a merit-based system.” In effect, this proclamation increases the income level required of immigrants to enter the country, even though Congress has not authorized this change to US immigration policy.

What do the changes mean for those who want to immigrate?

The proclamation would require immigrants seeking to enter the US (such as family members of US citizens or those being sponsored by a US employer) to demonstrate that they will be covered. According to the Migration Policy Institute, a nonpartisan think tank, the policy could exclude two-thirds of future immigrants from coming to the US — primarily family members of US citizens who would have difficulty proving they can get health insurance within 30 days.

The types of insurance that would satisfy the requirement include employer-sponsored plans, unsubsidized health plans purchased through the Affordable Care Act (ACA) marketplaces, short-term health plans that are effective for at least 364 days or the duration of the planned stay, catastrophic plans, a family member’s plan, TRICARE, Medicare, and visitor health insurance that provides “adequate” coverage for at least 364 days or the duration of the planned stay. Among the insurance types that are excluded are subsidized plans offered under the ACA marketplaces or Medicaid for immigrants over the age of 18.

It is important to note that some short-term plans do not provide dependable coverage. By steering immigrants to these weaker, less-regulated plans rather than allowing them to comply by purchasing comprehensive subsidized plans through ACA marketplaces, this new policy would exacerbate the challenge of underinsurance, create confusion for immigrant enrollees, and undermine the ACA’s consumer protection regime.

Who is affected?

The change applies only to immigrants seeking to enter the US. It does not apply to immigrants already in the US who are changing or adjusting their immigration status. However, many groups are exempt from the new policy, including the children of American citizens as well as select groups entering the US for humanitarian reasons. It does not apply to temporary entrants, such as foreign students and visitors.

How will the policy be rolled out?

The rules are scheduled to take effect on November 3, 2019, but the proclamation will almost certainly be challenged in court. Congress has primary authority over American immigration policy, though existing laws delegate part of this power to the president. The White House has advanced this proclamation under the president’s authority to bar entry to classes of immigrants whose presence is deemed to be “detrimental to the interests of the United States.” This is similar to the approach taken when the president placed a ban on entry from immigrants entering the US from predominantly Muslim countries.

In this case, to justify the exclusion of this group of people, the president is asserting that uninsured immigrants erode the capacity of the nation’s health care system to provide care to US citizens. Legal challenges will question the validity of this rationale and whether current law permits this policy. As with the ban on immigrants from Muslim countries, if the courts find that the president’s rationale is merely a pretext for animus toward the affected population, the new rule will be struck down.

The specific procedures to be used to implement the proclamation have not yet been created. Within six months of the policy implementation, the proclamation requires the departments of State, Homeland Security, and Health and Human Services to submit reports outlining whether it is still needed, whether it should be changed, and whether they have recommendations for further protecting the “integrity” of the American health care system.

This proclamation is the administration’s most recent action directed at health care for immigrants. The public charge rule, finalized over the summer and originally scheduled to take effect October 15, 2019, has already diminished immigrants’ access to Medicaid and other health-related services, including food assistance and housing. National research shows that fear and confusion relating to the public charge policy is causing immigrants to steer clear of safety-net programs for which they are eligible.

Ten lawsuits have been filed across five federal courts seeking to block or delay implementation of the public charge rule. Coupled with this new proclamation, these policies will diminish immigrant communities’ access to health care and other essential services.

PUBLIC CHARGE RULE UPDATE: As of October 15, 2019, federal courts have issued national preliminary injunctions blocking implementation of the Trump Administration’s changes to the public charge rule. This means immigrant families should continue to access the health care, nutrition, and housing services they need and for which they are legally eligible. CHCF will provide further updates as they become available. For more information, readers can also refer to the Protecting Immigrant Families Campaign, National Immigrant Law Center, and the California Immigrant Policy Center.

Billy Wynne

Billy Wynne is founder and CEO of the Wynne Health Group, a Washington-based consulting and advocacy practice serving clients throughout the health care sector. A graduate of Dartmouth College and the University of Virginia School of Law, Billy previously served as health policy counsel to the US Senate Finance Committee.

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