New rule causes concern over legal immigrants’ use of Medicaid and certain other public benefits

En Español

Patient groups representing millions of Americans with serious health conditions voiced strong concern about a U.S. Department of Homeland Security final rule released on August 12, 2019. The new rule directs DHS to broadly expand the “public charge” evaluation – which aims to determine whether an individual is likely to become dependent on the government for subsistence – to encompass critical safety net programs including Medicaid. Under the new rule, a legal immigrant’s use of these benefits can be counted as a negative factor when they apply for permanent U.S. residency, or seek to enter/re-enter the country.

The patient groups expressed concern that this policy will not only penalize immigrants for using public benefits for which they legally qualify, but it will also likely have a chilling effect for immigrant communities across all public programs, resulting in fewer people seeking out the support services they and their U.S. citizen family members need and for which they qualify. Recent studies show that as many as one in seven adults in immigrant families are already forgoing public benefits for which they or their children are eligible, including Medicaid and Children’s Health Insurance Program, out of concern about the rule. Penalizing and stigmatizing use of these programs could seriously jeopardize the health and well-being of legal immigrants and their U.S. citizen children, spouses, and relatives.
HFA urges community members who are concerned about the public charge rule to keep the following in mind:

• The public charge rule does not go into effect until October 15, 2019.

  • Numerous lawsuits have already been filed to block implementation of the rule.
  • Even if implemented, the rule will apply only to applications submitted on or after October 15th.
  • Even if implemented, the new rule will NOT count food, medical, and/or housing benefits used BEFORE October 15^th.

• Not everyone is subject to the rule.

  • Many people are exempt from the rule: green card holders, asylees, etc.
  • Not all benefits count as negative factors: CHIP, WIC, school lunches, state and locally funded programs are not counted. The use of Medicaid benefits will not count against children under 21 or against pregnant women.
  • Benefits used by family members will not be counted against an individual applicant.

• Every situation is different. You may want to consult with an immigration attorney if you have questions about your own case. There are resources that can help you make the best choices for your family.

Quick Hits:

• The federal government, unfortunately, has apparently reversed its decision limiting the use of accumulator adjusters. Earlier this year, CMS had indicated that health plans in 2020 would only be allowed to exclude manufacturer copay assistance for a brand name drug when a generic alternative to the brand name drug is available. But in FAQs issued on August 26^th, CMS announced that it has discovered a conflict between its April rule and existing IRS regulations governing high deductible health plans. As a result, CMS says, it will now allow apparently all plans (not just high deductible plans) to exclude the value of copay assistance for brand name drugs in 2020, whether or not a generic alternative exists. Patient groups expressed their disappointment with the FAQ and are seeking clarification from CMS. This is a developing story .
• A more welcome development on accumulator adjusters comes from Illinois, where on August 27^thGovernor J.B. Pritzker signed into law a bill regulating pharmacy benefits managers (H.B. 465). Among other things, the new law will require Illinois insurers to apply copay assistance toward patients’ deductibles and out-of-pocket maximums. Illinois becomes the fourth state to enact legislation that protects patients by ensuring that all payments made for their prescription drugs count toward their deductibles and out-of-pocket maximums.
• On August 20, 2019, the U.S. Centers for Medicare and Medicaid Services (CMS) approved a Section 1332 reinsurance application submitted by the state of Delaware. Delaware will establish a $27 million fund to help reimburse insurers for covering certain high-cost enrollees. The program will begin in 2020, and Delaware expects that, thanks to reinsurance funding, insurers may end up reducing premiums by up to 20% in the state’s individual health insurance market. CMS approved a similar Section 1332 application submitted by Montana on August 16^, and an application submitted by Rhode Island on August 26. Currently 12 states have reinsurance programs in effect for 2020; they vary by size, design, and funding mechanism.
• CMS on August 16^th officially rejected Utah’s request to receive enhanced federal funding for a partial expansion of its Medicaid program. CMS also denied Utah’s request to cap enrollment in its expanded Medicaid program. CMS reiterated that enhanced federal funding is available only to states that fully expand their Medicaid programs, meeting standards set forth in the Affordable Care Act. By a separate letter, however, CMS said that it was still considering Utah’s request to cap overall spending on its Medicaid program. As previously noted, HFA and other patient advocacy groups oppose proposals to cap Medicaid funding in the manner proposed.
• On August 13, HFA and 121 other patient advocacy groups submitted comments opposing an Administration proposal to weaken ACA-related nondiscrimination rules. The patient groups expressed deep concern that the rollback of protections would create more room for insurers to discriminate via benefit design against people with serious health care conditions such as bleeding disorders.