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Posted on August 21, 2019 at 11:11 AM

Last week, the Department of Homeland Security  announced the final public charge rule, which revises the interpretation of “public charge” in the Immigration and Nationality Act. Under the Final Rule, DHS may find applicants ineligible for a visa for admission to the U.S. or a green card granting legal permanent resident status if it determines that, at any time, they could receive qualifying public benefits and thus are “likely to become a public charge.”

 In comparison with previous interpretations of public charge, which included the receipt of federal, local, and state cash assistance (including Supplemental Security Income, Temporary Assistance to Needy Families, and Medicaid for long term care), this rule expands the list of public benefits that may be considered nonemergency Medicaid (for  adults over age 21 who are not pregnant); Supplemental Nutrition Assistance Program (SNAP, also known as food stamps); and/or Section 8 and other housing subsidies. Twenty states and the District of Columbia, led by California and Washington, and advocacy groups led by the National Immigration Law Center filed lawsuits throughout last week against President Donald Trump and DHS, seeking the rule to be permanently enjoined as an unconstitutional violation of the Equal Protection Clause of the Fifth Amendment and an arbitrary and capricious violation of the Administrative Procedure Act §706(2)(A).

 The final rule will negatively impact the health of millions of immigrants and citizens, including children. Many of the U.S. resident immigrants directly affected by this rule (green card applicants) are already uninsured because of eligibility restrictions and waiting periods, fear, and other barriers to enrollment. Yet some, who are low-income and work in jobs that do not provide health insurance, will forego their eligible enrollment in Medicaid as a result of this rule.

The rule’s chilling effect on health care and public benefits use will spill over beyond those directly affected. Studies and experience suggest the rule will lead immigrants to forgo enrollment for themselves and their children because of fear that use of services will result in application denials, deportations, and family separations. A recent study led by Leah Zallman projected that 8.3 million children who are U.S. citizens could lose benefits from Medicaid, the Children’s Health Insurance Program (CHIP), and SNAP because a parent is seeking a green card or fears deportation.  A May 2019 Urban Institute study found that 13.7% of all adults in immigrant families and 20.7% of low-income immigrant adults avoided enrolling in Medicaid or CHIP, SNAP, or housing subsidies for fear that they would be disqualified from obtaining a green card.  Twenty-four percent of the people who avoided benefits because of green card concerns were individuals whose entire families had legal statuses (either permanent residency, 14.7%, or naturalized citizenship, 9.3%) not affected by the public charge rule.  An analysis by George Washington University estimated that chilling effects on green card applicants, green card holders, naturalized citizens, U.S.-born children, could total 2.6 million people.

The final rule reflects some DHS policy revisions in response to public comments concerning the chilling effects on health.  For example, exemptions from the definition of public charge include enrollment in CHIP, Medicaid for people under 21, Medicaid for pregnant people, and the subsidy to help income-eligible people pay for drug costs under Medicare Part D.

Losing access to health care, food assistance, or other public benefits could seriously harm people’s health. Zallman’s team found that 5.5 million of children at risk of disenrollment have serious illnesses, such as asthma, epilepsy, and cancer. The specialty and intensive care needs for these and other serious and chronic medical conditions are not sufficiently met without health care coverage. The Emergency Medical Treatment and Labor Act requires that emergency care be provided when needed, but does not ensure further care for chronic illnesses. Losing access to health care also reduces access to primary, preventive, and prenatal care and enhances stress and stigmatization.

Public health is also harmed when safety net hospitals, community health centers, and health care workers must bear uncompensated costs to cover the care of immigrants who are eligible for public insurance but fear the immigration consequences of enrollment. The George Washington University study estimates that the reduction in Medicaid eligible patients could result in a loss of up to $625 million in Medicaid revenue for health centers and the positions of 6,075 health center medical staff.

Moreover, immigrants comprise a critical portion of the health care work force. One in six health care workers in the U.S. is foreign-born. States with larger immigrant populations rely even more on foreign-born workers for the public’s health care. California has  5 of the 20 metro areas that are home to 60% of all of America’s unauthorized immigrants. One in three of the state’s health care workers is an immigrant. Care for America’s aging and disabled population relies on immigrants. More than a quarter of direct care workers and 30% of nursing home housekeeping and maintenance workers are immigrants. Immigrants fill a disproportionate share of health and direct care jobs to their representation in the population, which have a current and projected shortage based on the needs of America’s aging population. A reduction of availability of legal immigrant workers in these jobs due to green card denials under public charge would impact the health of the American public.

The rule’s exclusion of immigrants on the basis of health is a eugenic policy. It echoes arguments promoted by the eugenics movement of the early twentieth century to restrict immigration – and adopted by immigration rule makers, including the Surgeon General and senior officers in the Public Health Service– about “inferior stocks of humans.” The definition of public charge in 1917 included “all idiots, imbeciles, feebleminded persons, epileptics, insane persons” to explicitly exclude classes of immigrants on the basis of physical and mental disease and race.  The purpose of the Immigration Restriction Act of 1924  was to halt the immigration of “dysgenic” Italians and Eastern European Jews and migration from Asian countries. The eugenic intent and effect of these policies were repealed by the Immigration and Nationality Act of 1965.

The Trump Administration’s final rule reinstates eugenically motivated policymaking. The rule’s effects, DHS’s stated purpose, and public officials’ comments underscores the administration’s intention to define and exclude specific classes of people they deem as “unhealthy” additions to the nation’s population. The stated aim of the final rule is to ensure “self-sufficiency” of immigrants, noting that “self-reliance, industriousness, and perseverance     . . .  have defined generations of hardworking immigrants seeking opportunity in the United States.” It effectively bars immigrants with disabilities or chronic health conditions from applying for a visa or green card. DHS directs immigration officers to consider a diagnosis of a medical condition that is likely to require extensive medical treatment, in a person without private health insurance, to weigh heavily in favor of finding that the immigrant is likely to become a public charge.  In response to public comments about discrimination against people with chronic illnesses and disabilities, DHS maintained its decision to consider pre-existing disabilities and medical conditions toward public charge, citing precedent from the 1910s to show such considerations have been “part of public charge determinations historically.” And DHS’s  expanded list of public benefits under its interpretation of public charge only further discriminates against people with chronic conditions and disabilities who are disproportionately more likely to be low-income and need to utilize health-related services.

This is devastating and shameful policymaking.  It is not only morally abhorrent, and it will have tangible effects on millions of people’s health if it is not successfully enjoined by the courts.

Rachel Zacharias is a second-year law student at the University of Pennsylvania and a former research assistant and project manager at The Hastings Center. She recently served as a legal intern working in issues of legal access to health care, immigration, and family law at LegalHealth, a medical legal partnership at the New York Legal Assistance Group.

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