We have written recently about the interrelationship between the Medicaid program and U.S. immigration law. Our post generated a lot of interest and now there’s a new development to report.
On October 10, 2018, the Department of Homeland Security (DHS) published a proposed regulation in the Federal Register that, if finalized, may have an effect on individuals seeking admission to the United States, or a change or adjustment in status, if they have accessed many public benefits, including health care services through the Medicaid program. This post highlights some of the provisions of that regulation. Those readers who provide health care access counseling to non-US citizens should be aware of these potential changes.
An Immigration Primer – Inadmissibility to the United States
The Immigration and Nationality Act (from now on in this post, we will refer to this law as “the Act” or “the INA”) contains a series of bars of admissibility to the United States. This means that an individual seeking a visa to visit the United States from a consulate overseas, or an individual already here who is applying for their green card, can be denied the immigration benefit they seek if they are inadmissible.
As an example, an individual who has a communicable disease or who has engaged in criminal or terrorist activity is inadmissible to the United States under various provisions of section 212(a) of the Act. Another such ground of inadmissibility is the likelihood that the individual will become a “public charge.” INA section 212(a)(4). And that exclusion is the subject of the proposed regulation and today’s post.
The Concept of a “Public Charge” Exclusion from Admissibility
So what exactly is a public charge?
The concept of “public charge” has been a feature of America’s immigration laws for well over 100 years. And as far back as 1952, the Congress identified several problems with implementing that concept, including how to determine who is likely to become a public charge. The Congress noted that the term had been defined in different ways by administrative officers, the Immigration Court, and the federal court system. As recently as 1996, Congress tried to provide further substance to the term. The regulation issued on October 10 is the latest attempt by the government to give clarity to the term “public charge.”
What the Proposed Rule Is Trying to Do
The new proposed rule, if it is finalized, will apply to two categories of aliens. First, it applies to an alien who is applying for admission to the United States. This could include, for example, an individual who is applying for a B2 visitor’s visa at a U.S. Embassy overseas to visit the United States. Or, it could apply to a student coming to study in the United States on an F1 visa. Second, it applies to an alien who is applying for adjustment of status to lawful permanent resident – in other words, a person who is applying for their green card.
Under the proposed rule, DHS will take into account the receipt of many public benefits in order to determine whether an individual seeking admission to the United States, or to adjust status, is likely to become a public charge and is therefore inadmissible.
It is important to note that, even if the proposed rule is ultimately adopted, the receipt of public benefits will not act as a complete bar to admission to the United States or adjustment of status. Rather, according to DHS, “each determination would be made in the totality of the circumstances based on consideration of the relevant factors.” As a practical matter, these determinations will be made by officials who work for the United States Citizenship and Immigration Services (USCIS), a branch of DHS.
An analysis of each of the public benefits identified by DHS is beyond this blog post. We thought that the most useful analysis we can provide for the readers of this blog are the health care programs that have been called out for special consideration.
As we noted in our post last month, non-U.S. citizens can qualify for public health benefits such as Medicare and Medicaid in certain circumstances, and the proposed rule does not change that. What it does do is to provide guidance to immigration officials that if an alien has received those benefits (a fact that will be determined by requiring an alien to state on their application, under penalty of perjury, whether they have received public benefits), the immigration official adjudicating the claim can take the receipt of those benefits into account in deciding whether to grant the benefit being sought. Multiple news articles have suggested, however, that the mere announcement of this proposed rule has discouraged some aliens from seeking public health benefits, even those to which they are clearly entitled.
Exclusions From the Policy
One final point before we turn to public health benefits. Congress (and, in some cases, DHS) has exempted several classes of individuals seeking admission to the United States or adjustment of status from the public charge ground of inadmissibility. For example, refugees and asylees at the time of admission to the United States and adjustment of status to lawful permanent resident are not subject to the public charge ground for exclusion. The same is true for aliens applying for Temporary Protected Status (TPS), victims of trafficking (T Visa), an applicant who is a victim of criminal activity (U Visa), and a self-petitioner under the Violence Against Women’s Act. All of these classes of aliens are vulnerable populations of immigrants and nonimmigrants. Congress has expected that they may require government protection and support. Therefore, many of the provisions in the proposed rule will not apply to these individuals – an important consideration for health care access workers counseling them.
Finally, let’s turn to the subject of our blog.
Under the proposed rule, public benefits are divided into two categories: monetizable public benefits and non-monetizable public benefits. Medicaid, under the proposed rule, is treated as a non-monetizable public benefit. That effectively means that you can’t put a price tag on it. Under the proposed rule, if an individual has received Medicaid benefits for than 12 cumulative months during a 36-month period, such individuals, according to DHS, “are not self-sufficient and so would be considered public charges under this rule.”
Two Medicaid services would be exempt from the policy under the proposed rule. First, medical assistance for the treatment of an “emergency medical condition” would not count toward the non-monetizable public benefit 12-month period. DHS relies on longstanding CMS regulations for a definition of this term.
An “emergency medical condition” is defined under these regulations as “a medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.” Social Security Act § 1903(v), 42 C.F.R. § 440.255(c). See also Social Security Act § 1867(e)(1). Under the proposed rule, if a state determines that the relevant payment meets this definition, receipt of Medicaid in this circumstance is not treated as receipt of a public benefit.
But in many respects, an observation made by DHS in its commentary on the rule may make its implementation hard to apply for USCIS officers. DHS notes that, since the enactment of the emergency Medicaid provision, courts have expanded the concept of what constitutes an emergency medical condition, whereas Congress intended for the provision to be “narrowly construed.”
Thus, according to DHS, to qualify for the exclusion, “conditions must be of an emergency nature.” Along these same lines, treatment for mental health disorders “was intended to be limited to circumstances in which the alien’s condition is such that he is a danger to himself or to others and has therefore been judged incompetent by a court of competent jurisdiction.” DHS clearly seems to be implying that if a medical condition is not a very limited, “true” emergency, receipt of Medicaid in that circumstance could be disqualifying.
Yet after all of this discussion, DHS goes on to simply state that “DHS will not consider treatment for emergency medical conditions funded by Medicaid in the context of a public charge determination.” Absent further clarification of this issue in the final rule, DHS seems to have given little meaningful direction to USCIS adjudicators.
Second, DHS also proposes to exclude Medicaid services that are provided to foreign-born children of U.S. citizen parents. In addition, medical assistance provided to foreign-born children who have been adopted by U.S. citizens or who are coming to the United States to be adopted by U.S. citizens would also not count as a public benefit for such individuals.
By contrast, DHS would consider institutionalization for long-term care, paid for at any level of government, as a non-monetizable public benefit. The proposed rule lists several inpatient services such as hospital services, Intermediate Care Facilities for People with Intellectual Disability, Nursing Facilities, and services in an institution for mental disease (IMD) for individuals under the age of 21 or 65 years of age or older. Nevertheless, according to DHS, the receipt of these services, in the case of a child or a person who is severely disabled, is not per se a basis to result in a public charge finding. Rather, USCIS adjudicators will evaluate “the totality of the circumstances” in making a public charge determination – possibly creating more confusion in the actual implementation of the rule.
Finally, DHS also examined the Medicare program in the proposed rule. Although we typically have not addressed Medicare in this blog, we thought it was worth mentioning here. In general, DHS notes that it does not consider receipt of Medicare as a public benefit, with one exception. The exception applies to Medicare Part D – the voluntary prescription drug benefit.
Under Medicare Part D, low-income individuals can qualify for subsidies that help pay Part D premiums and cost sharing. Application for these benefits are made either with the Social Security Administration or state Medicaid agencies. Because the Part D low-income subsidy can “impose substantial costs on multiple levels of government and generally indicates a lack of ability to be self-sufficient in satisfying a basic living need,” DHS would treat receipt of this subsidy as a public benefit.
As we noted at the outset of our post, this rule has only been released in proposed form. DHS is soliciting comments for 60 days, and the comment period will close December 10. Interested parties will have ample opportunity to submit comments on the proposed rule at www.regulations.gov and following the directions for submitting comments. In submitting comments, the commenter would identify the regulation by DHS docket number USCIS-2010-0012.
After the comment period closes, DHS will review the comments and decide whether revisions to the proposal are warranted, or whether the rule should proceed at all. If the rule is finalized in anywhere near to its proposed form, individuals who counsel immigrants about their health insurance options will need to monitor the final provisions carefully and implement new policies and procedures for these patients.
 The term “alien” under US immigration law refers not to someone who has arrived here from outer space, but rather, to a person who is not a US citizen. INA § 101(a)(3).
 This policy reflects a relatively unsophisticated understanding of the IMD exclusion under Medicaid. As we have written before, Medicaid does cover some services provided in an IMD to individuals between the ages of 21 and 65 under various forms of waivers or via managed care.