UPDATE: As of October 15, 2019, federal courts have issued national preliminary injunctions blocking the Trump Administration’s changes to the public charge rule from taking effect. 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.

The US Department of Homeland Security (DHS) has finalized significant new restrictions to reduce immigration by creating a preference for wealthy, English-speaking, insured, and educated immigrants and putting up new hurdles for impoverished immigrants and their families.

A final rule (PDF) announced on August 12, 2019, directs DHS to apply new criteria to immigrants’ applications to enter the US or to modify their status to become a legal permanent resident (a “green card” holder). The regulation will be used to determine whether they are likely to become a public charge and should therefore be prevented from extending or modifying their immigration status. Our previous article on the CHCF Blog outlines the details of the original proposal.

Research shows the proposed rule has already caused immigrants to avoid public programs. Release of the final rule is expected to exacerbate this situation. “The complexity of the rule, combined with the current negative climate surrounding immigrants and immigration, will likely have a chilling effect on immigrant access to health care and coverage,” according to a report issued on August 14 by California’s Insure the Uninsured Project (ITUP).

As estimated by KFF (Kaiser Family Foundation), more than 13.5 million Medicaid and Children’s Health Insurance Program enrollees nationwide, including 7.6 million children, live in households with at least one noncitizen or are noncitizens themselves and could be at risk of disenrollment because of the new rule.

If you are an immigrant or serve immigrant communities, the Protecting Immigrant Families campaign has released a series of updated resources to help you understand the rule. The California Department of Social Services has compiled a list of organizations that provide legal consultation and/or education for families impacted by the public charge rule.

Expanding the Definition of Public Charge

Previously, only cash benefits, including Temporary Assistance to Needy Families (TANF) and government-funded long-term care, were considered when determining an immigrant’s public charge status. The new rule expands the definition of public charge to include a wider range of core health and safety-net programs:

• Health benefits: Medicaid for people over age 21 who are not pregnant or postpartum, except Medicaid received for emergency medical services
• Food benefits: Supplemental Nutrition Assistance Program (SNAP), the national program, known in California as CalFresh
• Housing assistance: Section 8 Housing Assistance under the Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, or other subsidized public housing
• Cash assistance: TANF, SSI (federal Supplemental Security Income), and General Assistance, all of which were previously included

The rule redefines “public charge” to mean “an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).” This definition means that an immigrant receiving TANF, Medicaid, and SNAP for one year (3 benefits x 12 months = 36 months) would be considered a public charge.

The 217-page rule further outlines a “totality of circumstances” test and creates a system of weighted factors to determine if an immigrant is likely to become a public charge in the future. “Heavily weighted negative factors” include receiving one or more public benefits for more than 12 months in the aggregate within the last 36 months; being unable to demonstrate current, recent, or likely future employment; and having a medical condition that requires treatment that the individual cannot afford or does not have insurance to cover.

A System of Preferences

“Heavily weighted positive factors” include financial wealth, authority to work or employment with a salary of a certain minimum level, and private insurance that is not subsidized by Affordable Care Act (ACA) subsidies. The weighted system creates a preference for wealthy, English-speaking, insured, and educated immigrants and erects new barriers for immigrants who come from disadvantaged backgrounds.

Exactly how use of ACA premium subsidies to purchase insurance through exchanges will influence public charge determinations is unclear. While ACA subsidies are not considered a benefit under the final rule, they are not excluded from consideration either, and having health insurance without ACA subsidies is listed as a heavily weighted positive factor. How this will be interpreted in the totality of circumstances test remains to be seen.

Excluded Benefits

Within the affected communities, there is widespread misunderstanding about which benefits are and are not included in these definitions and who is subject to a public charge determination. Understanding and clearly communicating these exclusions to the public is essential to reducing unnecessary disenrollment.

The final rule excludes certain public benefits from consideration in public charge determinations:

• Health benefits that are excluded:
  • Medicaid benefits for emergency medical services
  • Medicaid for pregnant women and postpartum women up to 60 days after a baby’s birth
  • Medicaid for immigrants under age 21
  • Medicaid for school-based services and services provided under the Individuals with Disabilities Education Act
  • Children’s Health Insurance Program
  • Medicare Part D Low-Income Subsidy (previously considered but not included in final rule)

• Food benefits that are excluded:
  • Special Supplemental Nutrition Program for Women, Infants, and Children Program (this was included in original drafts and then withdrawn after a tremendous nationwide outcry)

• Other benefits that are excluded:
  • Public benefits received by individuals who are in active military duty or in the Ready Reserve component of the US armed forces, and their spouses and children
  • Public benefits received by certain international adoptees and children acquiring US citizenship
  • Public benefits received by individuals who are asylees, refugees, victims of domestic violence, and in other protected classes of immigration

Benefits Only Count If an Immigrant Is Listed as a Beneficiary

Many families with mixed immigration status are unclear about how the rule affects them as a whole or when benefit use by family members could jeopardize an immigrant’s application to extend his or her stay or to become a legal permanent resident.

The rule clarifies that DHS will only consider public benefits received directly by an immigrant for the immigrant’s own benefit. If one or more members of the immigrant’s household, such as an immigrant’s child or spouse, receives benefits, it will not count against the immigrant unless he or she is listed as a beneficiary. States, counties, and other enrollment entities across California and the nation will have to decipher how to clearly communicate this to families to ensure that benefit applications are filled out accurately so as not to jeopardize future immigration decisions.

The final rule also does not apply to public charge deportability. That falls under the purview of the Department of Justice, and a draft rule related to it is anticipated this year.

When Does the Rule Take Effect? What Is Likely to Happen Next?

The rule is scheduled to take effect at midnight Eastern Time, October 15, 2019. It will only apply to petitions and applications postmarked on or after that date. It cannot be applied retroactively.

We believe a protracted court battle over this rule is inevitable. Lawsuits challenging it have already been filed. Just today in California, two lawsuits were filed in US District Court for the Northern District of California.

California Attorney General Xavier Becerra led a multistate coalition challenging the rule as unlawful. The coalition consists of California, Maine, Oregon, Pennsylvania, and the District of Columbia. In the other lawsuit, nonprofits serving immigrant communities joined with advocates for racial equity, health, children, farmworkers, and working families to argue that the regulation is unconstitutional. The plaintiffs in the case (PDF) are represented by the National Immigration Law Center, Asian Americans Advancing Justice – Los Angeles, the National Health Law Program, and the Western Center on Law and Poverty. It is possible that the rule could be suspended or postponed prior to implementation. If a court determines that it violates underlying statutory law, the rule may be altered or rescinded. For ongoing updates on the litigation, check the Protecting Immigrant Families website.

While the implementation date is therefore cast in doubt, the fear generated by it has already led families to withdraw from core safety-net services for which they remain eligible, and that is likely to continue. It is essential that public and private agencies interacting with immigrant communities clearly communicate to these individuals and families which benefits they can and cannot access, and how receiving those benefits may affect their immigration status or that of the people they love.

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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