State Officials Fear Final Public Charge Rule Could Deter Health Coverage Enrollment

The Department of Homeland Security (DHS) recently finalized a rule that significantly changes immigration policies related to “public charge” determinations. Under long-established US immigration policies, individuals who are deemed likely to become a “public charge” and require extensive government support can be denied an adjustment of their immigration status (e.g., issued a green card) or entry into the country.

State officials across the country who administer health coverage programs are concerned about the rule’s chilling effect – that it will deter many immigrants from applying for coverage or even dropping out of programs they are eligible for because they fear their participation could impact their immigration status, even when it may not.

The Department of Homeland Security’s final rule defining “public charge” applies to most people seeking admission or adjustment of status (e.g., a green card). Notably, it does not apply to:

  • Refugees and asylum-seeking;
  • Survivors of trafficking;
  • Special immigrant juveniles;
  • Other specified groups; and
  • People who already have green cards, with narrow exceptions.

Source: Greenberg, M. Public Charge presentation, Aug. 21, 2019

As originally proposed by DHS, the final rule significantly expands the list of non-cash public benefit programs that DHS can consider in its public charge determinations, including those providing health care coverage, food, and housing assistance that address many of the social determinants of health. Specifically, public charge determination processes will now consider immigrants’ use of:

  • Most forms of Medicaid;
  • The Supplemental Nutrition Assistance Program (SNAP); and
  • Several federal housing assistance programs.

The proposed rule had included the Medicare low-income subsidy program that provides assistance to pay for the prescription Part D coverage program, but the final rule excluded it. DHS also requested public comments on whether to include the Children’s Health Insurance Program (CHIP) on the list of benefits for public charge determinations, but the final rule also excluded CHIP. Additionally, the final rule excluded the following from determining whether an immigrant met the public charge definition:

  • Medicaid use by children and youth under age 21 and pregnant women up to 60 days postpartum;
  • Emergency Medicaid; and
  • Medicaid services provided through the Individuals with Disabilities Education Act (IDEA) and schools.

The rule stipulates that individuals can be considered a public charge if they are “more likely than not” to receive any of the identified public benefits for more than 12 months over a 36-month period, and it does not distinguish by benefit type. Receipt of two types of benefits in one month is considered as two months of benefit usage. As a result, families that receive support from more than one program would reach the threshold sooner.

The policies laid out in the rule are complicated and allow for DHS agent discretion, which  further challenges state officials who want to provide accurate information to residents about whether accessing public health coverage will ultimately cost them citizenship. The rule identifies “heavily weighted” negative and positive factors to guide DHS agents’ consideration in determining an immigrant’s likelihood of being or becoming a public charge.

An example of heavily weighted negative factor is the receipt of Medicaid coverage for more than 12 months during a 36-month period. A heavily weighted positive factor is employment that provides household income of at least 250 percent of the federal poverty level. The rule requires that DHS consider the totality of the immigrant’s circumstances, and the rule’s preamble notes, “depending on the alien’s specific circumstances, a heavily weighted negative factor can be outweighed by a positive heavily weighted factor,” but the rule is not prescriptive about how that will be determined, resulting in some ambiguity.

The rule’s “totality of circumstances” test includes benefit usage, but also takes into account an individual’s age, health, financial status, and education level. For example, having a medical condition that could require significant treatment or institutional care, or not having the financial capability to cover these care costs, is considered a heavily weighted negative factor.

Although tax credits provided through health insurance marketplace are not listed explicitly on the benefit programs to be considered in public charge determinations, they are a factor that is taken into account. Specifically, while private health insurance coverage is considered a heavily weighted positive factor, an individual who receives subsidized marketplace coverage would not receive the same favorable weighting.

Some state officials told the National Academy for State Health Policy (NASHP) there was already evidence of a chilling effect from the proposed rule. According to a 2018 Urban Institute survey of nonelderly adults who are foreign-born or live with one or more foreign-born family members, approximately 14 percent reported they did not participate in a noncash program because they feared it would jeopardize their future green card status. Now that the public charge rule is final, many state officials expect that more immigrants – regardless whether they are directly impacted by the rule or not – will drop coverage because of this chilling effect. For example, the final rule excludes consideration of children’s enrollment in Medicaid in public charge determinations, but their foreign-born parents may not choose to enroll them for fear it may affect their pursuit of a green card.

The rule’s “totality of circumstances” test and the allowance that DHS agents will weigh different circumstances in determining whether an individual is or will become a public charge creates a challenge in messaging how applying for public health coverage could impact an immigrants future status. State officials representing Medicaid, CHIP, and state-based marketplaces acknowledge they are not immigration experts and are reluctant to encourage individuals to retain or apply for public coverage given the implication it could have on their citizenship status.

Officials in some states are engaging community-based immigration organizations to provide immigrants with individualized guidance and advice about whether to apply for public coverage. While this strategy will be helpful, states anticipate there may be many individuals whose fear will keep them from seeking assistance. State officials are concerned about the anticipated coverage lapses and expect there will be increased costs for safety net care, which at this time is hard to estimate.

Although lawsuits against the rule have been filed by nearly 20 states as well as two California counties and several advocacy groups to delay its implementation, as of early September the rule appears poised to go into effect Oct. 15, 2019.