2022 Changes to the Public Charge Inadmissibility Rule and the Implications for Health Care

Introduction

Under longstanding immigration policy, federal officials can deny entry to the U.S. or adjustment to lawful permanent resident (LPR) status (i.e., a “green card”) to someone they determine to be a public charge. On September 9, 2022, the Biden Administration published new public charge inadmissibility regulations.¹ that have largely codified 1999 field guidance governing public charge determinations and these regulations went into effect on December 23, 2022.² The Biden Administration returned to use of this 1999 field guidance in March 2021, when it stopped applying public charge regulations implemented by the Trump Administration in 2019 that had newly considered the use of noncash assistance programs, including Medicaid, in public charge determinations.^3,4 Under the final rule and the 1999 field guidance, the government will not consider use of noncash benefit programs, including Medicaid coverage, except for long-term institutionalization, when making public charge determinations. A primary stated aim of the final public charge rule is to address chilling effects of the 2019 rule that led many immigrant families, including citizen children in these families, to not seek assistance, including health coverage and care, for which they were eligible.^5,6,7

This brief provides an overview of the public charge rule and discusses its potential impacts for health coverage and care of immigrant families.

History of Public Charge Policies

The concept of denying entry to immigrants on the basis of becoming a “public charge” was first introduced into federal legislation as part of the Immigration Act of 1882, which was the first act to regulate immigration at the federal level.⁸ This Act permitted the government to prevent any person “unable to take care of himself or herself without becoming a public charge” from entering the country. A subsequent revised version of the Act allowed the government to deny entry to “paupers or persons likely to become a public charge,” and allowed the deportation of any who did become a public charge within a year. Certain immigrants, including refugees and asylees and other humanitarian immigrants, are exempt from public charge determinations under law.⁹ Immigration officials must consider, at a minimum, an individual’s age, health, family status, assets, resources, and financial status, and education and skills when making a public charge inadmissibility determination. However, federal legislation does not define who should be considered a public charge, leaving substantial discretion to immigration officials to make those determinations.

In 1999, the Department of Justice issued Field Guidance on Deportability and Inadmissibility on Public Charge Grounds. This field guidance defined a public charge as “an alien who has become or is likely to become primarily dependent on the federal government for subsistence as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.“ In response to confusion about whether the use of Medicaid, the Children’s Health Insurance Program (CHIP), and other non-cash programs applied in public charge determinations, the guidance further clarified that immigration officers should not place any weight on the receipt of non-cash public benefits (other than institutionalization) with respect to determinations of admissibility or eligibility for adjustment to LPR status.

In 2019 the Trump Administration issued new regulations that broadened the scope of programs that the federal government would consider in public charge determinations to include previously excluded health, nutrition, and housing programs. The regulations also redefined a public charge as an “alien who receives one or more 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),” and defined public benefits to include federal, state, or local cash benefit programs for income maintenance and certain health, nutrition, and housing programs, including non-emergency Medicaid for non-pregnant adults, the Supplemental Nutrition Assistance Program (SNAP), and several housing programs. It also identified characteristics that would be considered as negative factors and heavily weighted negative factors that increase the likelihood of someone becoming a public charge, including prior receipt of public benefits (for more than 12 months within the prior 36 months) and having income below 125% of the federal poverty level (FPL) ($28,787 for a family of three as of 2022), as well as positive factors and heavily weighted positive factors that decrease the likelihood of someone becoming a public charge.

Impacts of the 2019 Trump Administration Changes

Research suggests that the 2019 Trump Administration changes to public charge policy and other immigration policy changes increased fears among immigrant families about participating in programs and seeking services, including health coverage and care.¹⁰ Although very few people subject to public charge determinations are eligible for the public programs listed in the 2019 rule due to the programs’ restrictions on eligibility for immigrants, the rule had much broader chilling effects on program participation across immigrant families.¹¹ Fears and confusion related to the rule led to individuals forgoing enrollment in or disenrolling themselves and their children from programs. Prior KFF analysis estimated that the rule could lead to disenrollment of between 2.0 to 4.7 million Medicaid and CHIP enrollees who are noncitizens or citizens living in a family with a noncitizen if the rule led to disenrollment rates ranging from 15% to 35%. A 2021 KFF survey of Hispanic adults found that 1 in 4 potentially undocumented Hispanic adults and over 1 in 10 lawful permanent resident Hispanic adults reported that they or a family member did not participate in a government assistance program in the past three years  due to immigration-related fears (Figure 1).¹² Similarly, a KFF survey of Asian community health center patients found that over 50% reported not having enough information about how recent immigration policy changes, including the public charge rule, impact them and their family, and 1 in 4 reported that they or a family member in their household avoided participating in a publicly-funded health, nutrition, or housing program in the past 12 months due to immigration-related fears.¹³

Research also suggests that immigration-related fears have affected willingness to access COVID-19 vaccines. For example, KFF COVID-19 Vaccine Monitor survey data from May 2021 found that almost 4 in 10 unvaccinated Hispanic adults (rising to 58% of those who are potentially undocumented) said they were concerned that they may be required to provide a government-issued identification or Social Security number to get vaccinated and about one third (rising to 63% of the potentially undocumented) were concerned that getting the vaccine would negatively affect their own or a family member’s immigration status.

Overview of the 2022 Final Rule on Public Charge

The Biden Administration reversed the public charge policy changes implemented by the Trump Administration. Following an array of court actions challenging implementation of the 2019 Trump Administration changes to public charge policies, in March 2021, the Biden Administration filed motions asking the Supreme Court to dismiss the federal government’s appeal to maintain the rule and reinstated use of the 1999 field guidance to govern public charge determinations. It subsequently proposed a new public charge rule on February 24, 2022, which would largely codify the 1999 field guidance. The final rule was published on September 9, 2022 and went into effect on December 23, 2022.

A primary purpose of the 2022 public charge rule is to address the chilling effects of the 2019 rule on immigrant families’ participation in public programs, including Medicaid and CHIP. As mentioned in the preamble, “DHS believes that, in contrast to the 2019 Final Rule, this proposed rule would effectuate a more faithful interpretation of the statutory concept of ‘‘likely at any time to become a public charge’’; avoid unnecessary burdens on applicants, adjudicators, and benefits-granting agencies; and mitigate the possibility of widespread ‘‘chilling effects’’ with respect to individuals disenrolling or declining to enroll themselves or family members in public benefits programs for which they are eligible, especially by individuals who are not subject to the public charge ground of inadmissibility.” The preamble also discusses the 2019 rule’s chilling effects on immigrant families during the COVID-19 pandemic, contributing to ‘‘reduce[d] access to vaccines and other medical care, resulting in an increased risk of an outbreak of infectious disease among the general public,’’ which could perpetuate inequities in morbidity and mortality due to the pandemic.

The 2022 public charge rule returned to the 1999 public charge definition of someone who is likely to become primarily dependent on the federal government as demonstrated by the use of cash assistance programs for income maintenance or government-funded institutionalized long-term care, such as mental health or nursing home care (Table 1). Under the final rule, the federal government will only consider cash assistance programs, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families, and state, local, and Tribal cash assistance to pay for basic needs such as rent, food, and utilities. It also will consider “long-term government assistance for institutionalization,” including that provided in a nursing home or mental health institution. Long-term institutionalization at government expense would be the only category of Medicaid-funded services to be considered in public charge determinations. The 2022 rule clarifies that “long-term institutionalization” excludes institutionalization for short periods for rehabilitation and institutionalization that violates federal discrimination laws (such as the Americans with Disabilities Act).¹⁴ The rule also specifies that it excludes receipt of home and community-based services, including those provided through Medicaid. Moreover, to mitigate chilling effects, the 2022 rule clarifies that applying for a public benefit, being approved for benefits in the future, assisting someone else to apply for benefits, or being in a household or family with someone who receives benefits would not constitute receipt of public benefits for consideration of public charge. This represents a change from the 1999 Field Guidance, which allowed for consideration of a noncitizen’s family’s reliance on public cash benefits as the sole means of support for the family.

The rule applies a forward-looking test to public charge determinations, where adjudicators predict whether a person could become a public charge in the future based on present factors including age, family status, income and resources, education, and health status. Under the 2022 rule, the aforementioned statutory minimum factors must be analyzed in their totality, and no single factor, other than the lack of a sufficient Affidavit of Support, when required, would control the decision. Under the 2019 rule, public charge determinations also were based on a totality of circumstances, but the rule further specified that certain factors should we weighted as negative or positive or heavily weighted negative or positive factors in determinations. For example, officials were directed to consider receiving public benefits for more than 12 months in a 36-month period as a heavily weighted negative factor. The 2022 rule eliminates this practice of separately defining each factor and assigning its weight, noting that, “each inadmissibility determination must be individualized and based on the evidence presented in the specific case, and the relative weight of each factor and associated evidence is necessarily determined by the presence or absence of specific facts. Consequently, the designation of some factors as always ‘‘heavily weighted’’ suggested a level of mathematical precision that would be unfounded and inconsistent with the long-standing standard of considering the totality of the individual’s circumstances.” In addition, under the 2022 public charge rule, U.S. Citizenship and Immigration Services officers are required to articulate a reason for every public charge determination.

Implications

The Biden Administration’s changes to public charge policies are intended to reduce fears of accessing programs, but it will likely require sustained community-level efforts to rebuild trust and reduce fears among families. Prior experience suggests that outreach and education from trusted members of the community will be important for helping to alleviate fears and that direct one-on-one assistance will be key for facilitating enrollment of eligible people into programs for which they and their children are eligible, including Medicaid and CHIP.¹⁵ The Biden Administration recently increased funding for Navigators to help eligible individuals enroll in Marketplace, Medicaid, and CHIP coverage with a focus on individuals with limited English proficiency (LEP), communities of color, and rural areas, which may facilitate increased enrollment of eligible individuals in immigrant families.¹⁶ However, broader multilingual outreach efforts focused on helping families understand the changes to the rule will also likely be important.

Even with community level outreach and enrollment efforts, some families may remain fearful and confused about the policy. For example, in earlier research, some families have expressed concerns that rules may change in the future. Moreover, some families may remain confused about the policy. In particular, the continued inclusion of long-term institutional care covered by Medicaid in public charge determinations prevents clear and simple messaging that all Medicaid coverage is excluded from public charge determinations. This consideration of long-term institutional care also disproportionately affects people with disabilities and older adults, who are more likely to use long-term institutionalization services.

Increased enrollment of eligible uninsured immigrants may help to close gaps in health coverage for immigrant families, but many uninsured immigrants remain ineligible for coverage. Overall, noncitizen immigrants are significantly more likely than citizens to be uninsured.¹⁷ In 2020, among the nonelderly population, 26% of lawfully present immigrants and about four in ten (42%) undocumented immigrants were uninsured compared to less than one in ten (8%) citizens. Moreover, among citizen children, those with at least one noncitizen parent were significantly more likely to be uninsured as those with citizen parents (10% vs. 4%). Most (81%) uninsured lawfully present immigrants are eligible for a coverage option under the ACA but are not enrolled, so facilitating enrollment of eligible individuals may help to narrow these coverage gaps. However, other immigrants, including undocumented immigrants, remain ineligible for federal health coverage options, and will continue to face increased challenges accessing health care.