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Despite revisiting of controversial Trump policy . . .

Advocates Worried Effects Of Public Charge Rule Will Be Hard To Shake

February 03, 2021

Progressive advocates and health experts say President Joe Biden’s newly signed order directing federal agencies to revisit the Trump administration’s controversial public charge rule is a good first step to increasing Medicaid enrollment, but it will take a formal reversal of the rule and community outreach to undo the chilling effects of the policy. Ongoing litigation also likely won’t go away unless the rule is formally revoked, they say.

The executive order signed late Tuesday (Feb. 2) calls for the State Department, Department of Justice and Department of Homeland Security to revisit the Trump-era public charge rule, which denies green cards to immigrants based on their use of public benefits like Medicaid.

The review should evaluate the current effects of the policy, identify appropriate actions to manage concerns about it and recommend steps agencies can take to communicate current policies and propose changes to reduce fear among impacted communities, according to the executive order.

But Andrea Kovach, senior attorney at the Shriver Center for Poverty Law, which represented plaintiffs in a lawsuit against the rule, said the administration will need to go beyond the executive order to actually curb the effects of the Trump-era public charge rule.

“I think that it can only be really helpful if the Biden administration states their intent to start to roll back and eliminate the rule, and that they take a strong stance that their administration is welcoming of immigrants," Kovach said.

The public charge rule has stopped many immigrants from getting Medicaid, Children’s Health Insurance Program and even Affordable Care Act coverage out of fear their enrollment would be counted against them in a future public charge assessment.

“The confusion and the fear has had very real impacts on people's ability to feel safe to go access care,” said Priscilla Huang, a senior attorney at the National Health Law Program.

A 2019 report from the Kaiser Family Foundation estimated 2 million to 4.7 million people could disenroll from Medicaid and CHIP under the policy. The report also found the policy could also lessen new enrollments and decrease provider revenue. An analysis from the Urban Institute published Monday (Feb. 1) found that in 2020, nearly one in seven adults in immigrant families avoided enrolling in government benefit programs including Medicaid out of concern for future green card applications.

While immigration and Medicaid advocates hope Biden’s order will start to reverse those chilling effects, they agree more steps are needed.

Like Kovack, Kelly Whitener, associate professor of the practice at the Georgetown Center for Children and Families, said while the Biden administration’s action on the public charge rule represents a change in tone from the previous administration, it’s not a sweeping fix.

“We know that the chilling effect that we worried about is real, and it's happening,” she said. “Certainly reversing the policy will help, and kind of change, and rhetoric, will help, but I think it's going to take a long time to rebuild trust."

Center on Budget and Policy Priorities Director of Immigration Policy Shelby Gonzales said she hopes the agencies will begin modifying the rule quickly, as secure access to health care is even more important during the COVID-19 pandemic.

“With the review ordered by President Biden and likely reversal, immigrants won't have to choose between access to health care assistance and staying with their families,” said Abner Mason, CEO of Medicare and Medicaid health plan member outreach startup ConsejoSano.

In the meantime before the rule is formally revoked, Gonzales would like to see the administration give additional reassurance that it agrees the policy is harmful. She also wants CMS to urge states to review their enrollment applications and make sure there aren’t unnecessary barriers for immigrants, like questions that ask for immigration status when it’s not relevant.

Huang suggested the administration might build trust by sending notices about the change on official letterheads and in native languages to immigrant families. Governors can also air statements about changes to the rule on local and ethnic media, she said.

Kovach said providing funding to community-based organizations that work directly with immigrants will also be important.

“I think that it's going to take this Herculean effort by community-based organizations and trusted partners to get the word out to different immigrant communities in the format that they actually access,” Kovach said.

But even if the administration revokes the Trump-era public charge rule and engages in community outreach, quantifying how many immigrants and immigrant families may enroll in Medicaid and CHIP as a result of the expected policy change will be difficult, said Dulce Gonzalez, a research analyst at the Urban Institute. It’s hard to untangle the effects of the rule on Medicaid enrollment with the effects of other Trump-era immigration policies, she said.

The effect of the executive order on ongoing litigation about the public charge rule is also unclear, Whitener said.

The public charge rule prompted several lawsuits when it was enacted in 2019. Additional litigation arose last spring, when three states and New York City argued the rule could create negative public health impacts if immigrants decide not to get tested or treated for COVID-19 out of fear of being deemed a public charge. The Trump administration argued the rule should stay in place, but in July a court banned implementation of the rule during the pandemic.

“If the public charge rule is rescinded through the normal rulemaking process, then there arguably would no longer be a case or controversy for courts to consider,” Whitener said. “But I think this starting place of the executive order probably won't have a big impact on the litigation, it would come more once the regulatory changes are happening.”

The advocates hope to see the administration and lawmakers take more action to insure immigrants going forward. Huang said extending ACA marketplace tax credits and cost-sharing reductions for Deferred Action for Childhood Arrivals recipients would be a good next step for the administration to take on improving immigrant health care.

Whitener would like to see Congress pass legislation ensuring the right to coverage for Dreamers and direction from the administration on how states can extend coverage to undocumented groups.

“It's really overdue for Congress to take a bigger picture look at access to coverage for everyone and take meaningful steps to bringing everybody into the system,” Whitener said. -- Maya Goldman (mgoldman@iwpnews.com)