In early September, the U.S. Department of Homeland Security issued a final rule about immigration status eligibilty of some noncitizens receiving certain government funded benefits. The rule details when an immigrant’s use or potential use of government funded benefits could cause them to be considered a “public charge” meaning “dependent on the government for subsistence.” Someone determined to be, or likely to be, a public charge can be denied entry into the U.S. or have their application to become a permanent resident (green card holder) denied.
In the health care context, the final rule makes clear that the only type of Medicaid service that could cause someone to be considered a public charge is long term institutional care, such as long-term care in a nursing facility or mental health institution. Short term rehabilitation stays and receipt of home and community-based services are not to be considered in a public charge determination. Children's Health Insurance Program (CHIP) services are not, and never have been, implicated in public charge determinations.
The rule largely codifies federal government guidance from 1999 on public charge determinations, which was briefly superseded by a 2019 Trump Administration rule that substantially expanded the types of government benefits, including most Medicaid benefits for adults, that could be used in a public charge determination. In addition to expanding the types of benefits that could subject an immigrant to a public charge determination, the 2019 rule created tremendous confusion and fear about using any government benefits – even benefits that were not part of a public charge determination – and even among people, such as refugees, who are not subject to a public charge determination regardless of the benefits they use. The Trump era rule was suspended in March 2021 and the 1999 guidance has been used since. This final rule officially unravels the Trump Administration’s public charge rule and hopefully will reassure immigrants that they can access and use the benefits to which they are entitled.
Many immigrants always have been and continue to be exempt from public charge determinations. These include lawful permanent residents applying for citizenship; and asylees, refugees, domestic violence survivors and others in similar immigration categories.
Per U.S. Health and Human Services Secretary Xavier Becerra, “People who qualify for Medicaid, CHIP, and other health programs should receive the care they need without fear of jeopardizing their immigration status. As we have experienced with COVID, it’s in the interest of all Americans when we utilize the health care and other services at our disposal to improve public health for everyone.”