Comments from Richard Besser, MD, on the Public Charge Ground of Inadmissibility Proposed Rule

The following comments were submitted by Richard Besser, MD, Robert Wood Johnson Foundation (RWJF) President and CEO, on the Public Charge Ground of Inadmissibility proposed rule by the Homeland Security Department.

The Robert Wood Johnson Foundation (RWJF) is the nation’s largest philanthropy dedicated solely to health. In partnership with others, we are working to develop a Culture of Health rooted in equity that provides every individual with a fair and just opportunity to thrive, no matter who they are, where they live, or how much money they have. Structural barriers to health, including racism, powerlessness, and other forms of discrimination greatly limit prospects for good health for all in America.¹ Research has demonstrated multiple pathways by which racism harms health, involving adverse physical, social, and economic exposures, as well as maladaptive coping behaviors and stereotype threats.^2,3,4 A neglected reality in the United States includes the racist historical legacy of U.S. immigration policy. Fear of detention and deportation create a chilling effect whereby immigrants are less likely to use public services and safety nets even if they qualify, and often disenroll because of the punitive nature of U.S. immigration policy. Moreover, the normalization and escalation of racist, anti-immigrant sentiment, racial profiling, racially targeted violence, and detention of Latino(a) residents also leads to health inequities—whereby the social construction of race suggests that some racial groups are inferior to others and should be treated differently, leading to devaluation, disempowerment and differential allocation of power, resources and opportunities.⁵ These patterns reinforce discriminatory beliefs, values and practices that reinforces cultural racism and anti-immigrant rhetoric and public sentiment, enabling harmful immigration policies and enforcement that worsens health and exacerbates inequities.^6,7

Based on input from many of our grantees, we are commenting not only on aspects of the proposed rule changes in the Department of Homeland Security (DHS) policy on Public Charge that we support, but also areas where we would recommend improvements.  

• would decrease or eliminate 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. We especially note that this can support individuals who are not subject to the public charge ground of inadmissibility.
• clarify that an individual will not be considered to have received benefits if they simply apply for benefits for themselves or another, and are approved for future use of benefits for themselves or another. Clarifying that receipt of benefits solely by another does not constitute receipt for the applicant is important.
• offer a clear statement that children’s receipt of benefits, whether through their parents or not, will not count towards their parents’ public charge determination.
  
• includes clear language in the NPRM stating that DHS will consider the totality of the circumstances, and that an applicant’s use of benefits and any statutory factor (other than insufficient affidavit of support required) are not dispositive for determining whether an applicant is likely to become a public charge.
  
• set a standard, which DHS is proposing, that does not exclude people simply because they use government benefits to meet some and not all needs, clarifying that they are not primarily dependent on the government.
  
• establish that including non-cash benefits such as Medicaid, SNAP and housing assistance in the inadmissibility determination would have a chilling effect on critical health care services including vaccination, testing, and treatment of COVID-19; would exacerbate ongoing challenges in vulnerable communities; and would be particularly harmful to children. We applaud the Department for recognizing these impacts and acknowledging the communities most affected by them.
  

While we urge rapid publication and finalization of the rule, we would also like to offer a few recommendations to strengthen the proposal.

The Proposed Rule Adopts a More Reasonable Definition of Public Charge but Will Still Deprive Many of Needed Assistance

While we support many of the rule changes, outlined above, and we urge rapid publication and finalization of the rule, we have some recommendations to improve and strengthen the rule. A Consensus Study Report by The National Academies of Sciences shows that direct cash payments to families, such as those that many states are currently piloting, greatly improve children’s healthy development.⁸ Research also confirms the chilling effect caused by the 2019 public charge^9,10 rule led to the first downturn in Hispanic children’s health coverage in a decade.^11,12 As a foundation committed to advancing the health and well being of all Americans, our focus is on policy that will advance this goal. As such:

• We believe that DHS should define cash assistance as limited exclusively to cash assistance for income maintenance under the two federal cash assistance programs, TANF or SSI, and clarify that all other cash assistance programs, including state, tribal, territorial, or local programs are excluded.
  
  • The receipt of public cash assistance from these non-federal programs should not be considered in determining whether a noncitizen is likely at any time to become primarily dependent on the government for subsistence.
  • We are concerned about the potential effects of this proposal on a state's ability to mitigate social problems, particularly considering the COVID-19 pandemic. And, we are concerned about potential community-wide chilling effects. 
  • While we applaud the exclusion of home and community based services from the public charge inadmissibility, we remain concerned that allowing Medicaid coverage of long-term institutionalization to be considered in a public charge determination causes confusion and perpetuates the chilling effect of 2019.  It also discriminates against people with disabilities and older adults because only people with disabilities and older adults experience long-term institutionalization. If federal long-term institutionalization is considered in a public charge determination, DHS should clarify that state, tribal, territorial, or locally funded institutionalization is excluded.
  • We also recommend that DHS limit consideration to current use, because an individual's past use, particularly children’s past use of benefits, is not an indication of whether they would use benefits in the future. 

Support the Need for Additional Outreach and Education to Socialize the New Policy

How the new policy is implemented at state and local levels will greatly affect its impact on immigrant communities. A robust strategy and resources are needed to ensure the new public charge rule is understood, implemented and disseminated. We believe that the Administration should launch an interagency campaign, including DHS, HHS, USDA, HUD, ED, Treasury, SBA and others, to communicate clear and direct information about the new public charge rule on relevant government websites, and provide co-branded materials to state benefits agencies, immigration attorneys and immigrant serving organizations. The Administration should also provide training for state agencies, outreach partners, and immigrant serving organizations and materials for families that are accessible and multilingual. These could include sample social media posts, graphics, SMS and direct message application language, mailings, government-branded flyers and posters, and sample language for states to include on forms and websites. These materials should be distributed to state agencies and community organizations. This type of surround-sound campaign is critical to ensure that different trusted messengers can validate the same message.

In addition to the interagency education campaign, the Administration should also undertake a broad public relations campaign that includes social media and ethnic media as well as funding for community organizations, similar to the grant program HHS just announced to connect eligible children to Medicaid and the Children’s Health Insurance Program (CHIP), for families to educate people about the final public charge policy. Key messages for the campaign should include that the strict public charge rules introduced by the Trump administration have been replaced by a new policy that only considers limited benefits; families can use health care, food, education, job training, and housing benefits without fear of immigration consequences; and benefits received by children or other family members won’t affect an applicant’s immigration status or applications. It is essential, particularly when talking to parents about their children, that DHS states that no questions will be asked or information sought about the status of anyone in the child’s family, similar to what was done for enrollment into the CHIP. It is also important to elevate the value of health in order to ensure people are not forgoing care for fear of deportation.

Thank you for your consideration of our suggestions for outreach and education and we urge rapid publication and finalization of the rule, incorporating several recommendations to improve on the proposal. RWJF remains committed to advancing a vision and a culture that condemns anti-immigrant rhetoric and policy, and that highlights the immeasurable and multiple historic and current contributions that immigrants make toward our country’s health, well-being, productivity, and prosperity.

References

1. Bailey, Z.D., Krieger, N., Agenor, M., Graves, J., Linos, N. & Bassett, M.T. (2017). Structural racism and health inequities in the USA: evidence and interventions. The Lancet, 389: 1453-1463.

2. Krieger, N. (2014). Discrimination and health inequities. Int. J. Health Serv. 44 643-710.

3. Gee, G.C. & Ford, C.L. (2011). Structural racism and health inequities. Du Bois Rev. 8: 115-132.

4. Hardeman, R.R., Medina, E.M. & Kozhimannil, K.B. (2016). Structural racism and supporting black lives – the role of health professionals. N. Engl J. Med. 375: 2113-2115.

5.  Williams, D.R., Lawrence, J.A., & Davis, B.A. (2019). Racism and health: Evidence and needed research. Annual Review of Public Health, 40(1), 1-21.

6.  Bailey, Z.D. et al. (2017).

7 . Williams, D.R., Lawrence, J.A., & Davis, B.A. (2019). Racism and health: Evidence and needed research. Annual Review of Public Health, 40(1), 1-21

8. National Academies of Sciences, Engineering, and Medicine. 2019. A Roadmap to Reducing Child Poverty. Washington, DC: The National Academies Press.

9.  Bernstein, H., Karpman, M., Gonzalez, D. & Zuckerman, S. (2021, February 1). Fact Sheet: Immigrant Families Continued Avoiding the Safety Net during the COVID-19 Crisis.Urban Institute. https://www.urban.org/research/publication/immigrant-families-continued-avoiding-safety-net-during-covid-19-crisis

10. Bernstein, H., Gonzalez, D., Karpman, M., McTarnaghan,S. & Zuckerman, S. (2019, August 19). Urban Institute. https://www.urban.org/urban-wire/five-ways-public-charge-rule-affecting-immigrants-america

11. Alker, J. & Corcoran, A. (2020 October). Children’s uninsured rate rises by largest annual jump in more than a decade. Georgetown University Health Policy Institute Center for Children and Families https://ccf.georgetown.edu/wp-content/uploads/2020/10/ACS-Uninsured-Kids-2020_10-06-edit-3.pdf

12. Whitener, K., Lopez, S., Roygardner, L. & Snider, M. (2020). Decade of Success for Latino Children’s Health Now in Jeopardy. Georgetown University Health Policy Institute center for Children and Families. https://ccf.georgetown.edu/wp-content/uploads/2020/03/Latino-Childrens-Health-Care-Coverage.pdf

About the Robert Wood Johnson Foundation

For more than 45 years the Robert Wood Johnson Foundation has worked to improve health and health care. We are working alongside others to build a national Culture of Health that provides everyone in America a fair and just opportunity for health and well-being. For more information, visit www.rwjf.org. Follow the Foundation on Twitter at www.rwjf.org/twitter or on Facebook at www.rwjf.org/facebook.

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