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DHS issues rule to revise Trump’s ‘public charge’ policy, easing access to health services for immigrants

The Department of Homeland Security on Thursday issued a new rule to revise a Trump administration policy that effectively discouraged non-citizen immigrants from using government-funded health services.

The new rule clarifies that DHS will not classify noncitizens as “public charges” — a classification that could result in them being denied green cards — based on their use of health-related benefits and government services.

“People who qualify for Medicaid, CHIP, and other health programs should receive the care they need without fear of jeopardizing their immigration status,” HHS Secretary Xavier Becerra said in a statement. “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.”

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The 2019 Trump administration rule, which was vacated by a federal court in 2021, 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).” It also broadened the definition of public benefits to include programs such as the Supplemental Nutrition Assistance Program (SNAP), several housing programs, and other health and nutrition programs.

Under the new rule, which takes effect Dec. 23, protected health benefits include the Children’s Health Insurance Program (CHIP) and most Medicaid benefits, except long-term residence in places like nursing homes at government expense. Additionally, DHS said it would not consider SNAP benefits or pandemic assistance, along with several other non-cash benefits provided by other government agencies, as public benefits that would count against non-citizens in green card eligibility.

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“This new final rule by the Biden administration largely codifies the principles that are in the policy guidance from 1999 and that really are grounded in over 140 years of case law, policy, and practice,” said Tanya Broder, a senior staff attorney with the National Immigration Law Center.

There is evidence that the broadening of the 2019 rule created barriers to health care. In a 2019 study, undocumented immigrants who were read the proposed version of the new rule were statistically less likely to say they would apply for such government health services. A 2021 survey from the Kaiser Family Foundation found that 26% of potentially undocumented Hispanic adults said they or a family member had refrained from participating in a government assistance program in the past three years due to immigration-related fears, compared to 3% of adult Hispanic U.S. citizens.

Broder said she is encouraged that the concerns voiced by state and local governments, health care and social service providers, and immigrant groups and individuals have been heard.

“The Trump 2019 rule … discriminated against people disproportionately based on their race, [and] economic status,” she said. “We’re happy to see the Biden rule can address some of those disparities and also clarify that people can use health care, nutrition, housing, and other services for which they are eligible without fearing that it’ll affect their immigration status by making them a public charge.”

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