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Advocates: Easing Public Charge Medicaid Chill Will Take A While

April 27, 2021

More than a month after a court order vacating the Trump-era public charge rule went into effect, stakeholders are pleased with the federal government’s efforts to get the word out about the policy change, but they say meaningfully reducing Medicaid chill will be a heavy lift, especially considering recent attempts by some states to get courts to revive the Trump-era rule.

The Trump administration updated the public charge rule to deny green cards to immigrants based on their likely use of public benefits including Medicaid. Though the policy didn’t actually apply to most people, it stopped many immigrants and their families from enrolling in Medicaid out of fear of the rule’s effects.

Opponents of the policy sued immediately after the rule was enacted in 2019. In mid-March, a move by the Biden administration at the appellate level effectively allowed an earlier circuit court ruling that vacated the Trump-era rule to go into effect. The United States now follows the 1999 interim guidance on public charge, which doesn’t include Medicaid.

The Department of Homeland Security’s United States Citizenship and Immigration Services sent a letter to its interagency partners on April 12 to inform them the Trump-era rule no longer applies and to ask for their help in getting the word out to the public.

When asked about its response to the letter, CMS did not offer Inside Health Policy specifics but said it is committed to working with states and stakeholders to ensure immigrants and others who are eligible for CMS programs have access to healthcare, according to a CMS spokesperson.

The USCIS letter doesn’t include any timelines or specific goals for these communications. But Shelby Gonzales, vice president for immigration policy at the Center on Budget and Policy Priorities, said she’s not worried about attaching time frames to government action -- she’s happy to see agencies wanting to act.

HHS has done outreach for the current special enrollment period in English and Spanish, Gonzales said. The Health Resources and Service Administration has also put out factsheets affirming that everyone can get a COVID-19 vaccine free of charge and without having to disclose their immigration status.

“That was a very clear message, so I'm pleased with what's happening so far,” Gonzales said.

But “what a mammoth task the government has ahead of it,” she added.

Kim Howell, vice president of growth at ConsejoSano, said not much seems to have changed yet in terms of Medicaid enrollment despite the Trump-era public charge rule not being in effect.

“I think we're all kind of in alignment in the industry that this isn't just a magic wand that's going to make the problem go away,” she said.

Howell’s team focuses on building trust with people they serve and making sure they’re giving out accurate information.

Similarly, Gonzales thinks the federal government should lean on its connections to organizations that already have those relationships to get the word out. For example, CMS could call on state Medicaid agencies, navigators, brokers, agents and providers to inform eligible people that it’s safe for them to sign up for Medicaid.

Data lags might make it difficult to measure the actual impact of removing the Trump-era rule any time soon. In the meantime, talking with providers about what they’re seeing on the ground is crucial, Gonzales said -- she hopes HHS will take advantage of that strategy.

Though it’s too soon to determine the Medicaid effects of reversing the Trump-era public charge rule, Howell said some public health emergency flexibilities have helped expand use of the health care system. Allowing patients to use a cross section or coffee shop as their address for COVID-19 testing has opened doors for undocumented people who don’t want to formally identify themselves. And interoperability rules have given patients more control over their data and should be continued after the PHE, Howell said.

But concerns remain about the impact of recent attempts by some states to intervene in public charge cases and get the Trump-era rule revived. Several states have tried in the last month to get involved in cases at the circuit court level, saying the Biden administration skirted procedural rules in leveraging the Seventh Circuit’s decision to vacate the rule nationwide.

The Supreme Court on Monday (April 26) denied a motion by Texas to intervene in a public charge case, and lower courts have similarly denied the states’ motions to intervene.

But Howell said these intervention attempts can feel like a step backwards.

“It meets the expectations and validates the fears that these populations already have because they're saying, oh, you know, this rule changed but nothing's really gonna change for us,” she said.

Gonzales is concerned these actions will make immigration attorneys feel like the public charge matter isn’t yet resolved. If their clients ask about enrolling in public benefit programs, an attorney might say that “safe is better than not safe,” she said.

Allen Orr, president-elect of the American Immigration Lawyers Association, said there are two parts to a lawyer’s thinking on this. There’s the “social worker” side, who says a client should take their chances enrolling in public benefits in a serious health situation, for example, and deal with the consequences later. There’s also the lawyer side, saying it’s unclear how serious those repercussions might be.

But Orr said his primary worry is how the message that the Trump public charge rule is no longer in effect will reach immigrants and their families who don’t have access to a lawyer, or even the internet.

“There's an understanding that the immigration change may be coming, but people just don't know what that is ... They don't want a demerit for doing something that they might not have a right to do,” he said.

Despite the slow pace of progress, Howell is optimistic that the work communities and agencies are putting in will benefit immigrant health down the line.

“As much as there is to be concerned about still and as much work as there still is to do, I think there's also quite a few signals out there that we should be excited and happy about what's to come,” she said. -- Maya Goldman (mgoldman@iwpnews.com)