Public Health Law

US DHS Proposed Regulations Chill Programs that Address Social Determinants

Last Saturday the US Department of Homeland Security Secretary Kirstjen Nielsen proposed new rules that (when adopted) will consider a much wider range of public benefits when they evaluate applications for an immigration change of status or extension of stay request.  

DHS already uses information about whether applicants for legal permanent residency receive Temporary Assistance for Needy Families and Supplemental Security Income (SSI) when they evaluate applications.  After these new rules are adopted, they’ll also consider whether applicants receive Medicaid (AHCCCS), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (food stamps), and Section 8 Housing program.  Once adopted, applicants that receive any of these benefits will be far less likely to be approved for a status change or stay extension.  I didn’t see any exemptions for children- so presumably benefits used by any noncitizen family member including kids would count.

Here are some take-aways from the draft: 

  • This is an issue of legal immigration- unauthorized migrants are largely ineligible for public assistance;

  • The use of public benefits by citizen children would not be considered a public charge;

  • This does not directly impact green card holders (the public charge test is not applied to green card holders applying for citizenship);

  • The proposed rule is not retroactive – meaning the public benefits received before the rule is final will not be counted as a public charge; and 

  • The proposed rules would not apply to refugees because existing statute prevents DHS from using the criteria for refugees.

A few months ago, DHS issued a discussion draft of the rule change that would have also included programs like Women Infant and Children (WIC) program, school lunch programs, subsidized marketplace health insurance and even participation in the Vaccines for Children program.

Even though the new draft doesn’t include vaccinations (VFC), WIC and marketplace insurance- many families will believe that the regulations do include these benefits and will elect not to use these important safety net benefits- as doing so will risk their immigration status.  As a result, families will have a more difficult time improving the health status of their families.  

The proposed new rules are 447 pages long- but a key place to look are pages 94-100 (that’s where the outline the new list of benefits that they intend to include).  The official proposal will be published in the Federal Register in a few weeks.  Once it’s officially published, the public will be able to comment on the proposed rule for 60 days.  The official version in the Federal Register will contain information about how to submit comments. I’ll keep my eye out for that.

History of Considering Public Benefits

The term “public charge” as it relates to admitting immigrants has a long history in immigration law, appearing at least as far back as the Immigration Act of 1882.  In the 1800s and early 1900s “public charge: was the most common ground for refusing admission at U.S. 

In 1999, the INS (DHS didn’t exist yet) issued Rules to "address the public’s concerns about immigrant fears of accepting public benefits for which they remained eligible, specifically medical care, children's immunizations, basic nutrition and treatment of medical conditions that may jeopardize public health.” Here's that final Rule from 1999, which didn't include Medicaid our housing benefits in the public charge definition.

ADHS Threatens to Revoke SW Key Shelter Licenses

Results Bring into Question Arizona’s Regulatory Oversight Statutes

Some of the kids that have been separated from their parents by the federal government have been and are being cared for at places run by an organization named Southwest Key. There are 13 such facilities in AZ.  SW Key is contracted by the federal government to provide these services and the facilities are licensed by the ADHS. They’re classified as Child Behavioral Health Facilities. 

Here’s the public health policy rub- even though they’re licensed by the ADHS, the Agency doesn’t conduct routine unannounced inspections at these facilities because they’re accredited by the Council on Accreditation, and Arizona law says that when a facility like this is accredited by “an appropriate independent body”, the ADHS shall accept the accreditation in lieu of a routine agency inspection. Specifically, ARS 36-424 (B) states that: “The (ADHS) director shall accept proof that a health care institution is an accredited health care institution in lieu of all compliance inspections required by this chapter if the director receives a copy of the institution's accreditation report for the licensure period”.

The ADHS still has an obligation to investigate complaints at these facilities because ARS 36-424 (C) says that: “On a determination by the director that there is reasonable cause to believe a health care institution is not adhering to the licensing requirements of this chapter… (the ADHS) may enter on and into the premises…  (to) determine the state of compliance with this chapter, the rules adopted pursuant to this chapter and local fire ordinances or rules.”

A few weeks ago, the ADHS did some on site investigations of the facilities (under the ARS 36-424 (C) provision) and presented SW Key with a list of deficiencies to correct (including better documentation of employee background checks).  SW Key’s response appears to have been wholly inadequate.  In a strongly worded letter, the ADHS let all 13 licensees know that the Department is beginning license revocation procedures. 

SW Key will likely now take their deficiencies seriously (including the requirement to document background checks) and avoid revocation…  but this incident demonstrates (to me) that the statutory framework that allows applicants to submit 3rd party accreditation documents instead of being subjected to an unannounced inspection by the regulatory agency (ADHS) provides inadequate protection when vulnerable children are involved.

Perhaps there will be a bipartisan plan next legislative session to update the regulatory framework for facilities that provide services to vulnerable kids.

You can view the status of these facilities at www.azcarecheck.com and search for the words Southwest Key.  You’d be able to see the results of any complaint investigations or enforcement actions against these facilities- but not the backup accreditation documents from the Council on Accreditation.

Health Insurance for People w Pre-existing Conditions in Jeopardy Again

A main driver for passing and implementing the Affordable Care Act was to ensure that people with pre-existing health conditions could buy health insurance.  Prior to the ACA- people with pre-existing medical conditions like diabetes faced real challenges getting health insurance.

Indeed, one of the most consistently popular parts of the ACA are the provisions that help people get  coverage regardless of health status.  The ACA prevents health insurance companies from denying someone a policy because they have a preexisting condition (called the “guaranteed issue” requirement), refusing to cover services that people need to treat a pre-existing condition (called “preexisting condition exclusions”), or charging a higher premium based on a person’s health status (called the “community rating” provision).   

You can think of pre-existing conditions exclusions, guarantee issue, and community rating as the three legs of the ACA stool.  Despite these largely popular provisions, there are people that want to knock over the stool.  Back in February, 20 states (including Arizona) filed a lawsuit in Texas federal court seeking to invalidate the 3 legs of the stool: preexisting condition exclusions, community rating, and guaranteed issue.

This most recent legal attack argues that the removal of the individual mandate penalty by the most recent federal tax cut legislation makes the ACA unconstitutional (the US Supreme Court upheld the ACA several years ago, in part, because the tax penalty provision provided a statutory hook for the ACA to rest on).  The lawsuit argues that because the mandate is an essential feature of the ACA, the rest of the law must be struck down too.  If the lawsuit eventually succeeds these central provisions of the ACA would go away and an estimated 17 million people could become uninsured again.

During the Obama Administration, the federal government defended the ACA from lawsuits like these.  Those days are over.  A couple of months ago, the U.S. Department of Justice announced that they agree with the plaintiff States that the ACA’s individual mandate is unconstitutional. The administration urged the court to strike down the law’s guaranteed issue, preexisting condition exclusion, and community rating provisions.

Prior to the ACA, standards to protect people with preexisting conditions were primarily determined at the state level.  Most states including AZ had very limited protections. Before the ACA, many insurers maintained lists of up to 400 different conditions that disqualified applicants from insurance or resulted in higher premiums.  35% of people who tried to buy insurance on their own were either turned down by an insurer, charged a higher premium, or had a benefit excluded from coverage because of their preexisting health problem.

If the Federal courts (ultimately the US Supreme Court probably) rule in favor of the plaintiffs, States could still play as a regulator of insurance, as they could enact and enforce their own laws to protect residents from discrimination due to preexisting conditions.  In fact, several states already have their own laws to incorporate some or all of the ACA’s protections (Arizona does not). 

Oral arguments have been scheduled for next week in the Texas lawsuit. Arguments are scheduled to take place next Monday before Judge Reed O’Connor.  Whatever the Federal TX Court rules, the result will likely be appealed to the UA Appellate Court and eventually probably the US Supreme Court.

Center for Public Health Law & Policy

 

The Center for Public Health Law and Policy  is the cornerstone of the Sandra Day O’Connor College of Law’s nationally-ranked health law program. The Center brings together students, leading scholars, practitioners, and policymakers to address critical issues in law, ethics, policy, and the public’s health. The Center explores a wide range of issues, including national health care reform, communicable disease control, human subject research protection, emergency legal preparedness, obesity and injury prevention, health information privacy, and vaccination law and policy.

The Center for Public Health Law and Policy is also the home to the Western Region Office of the national Network for Public Health Law, funded in part by the Robert Wood Johnson Foundation. Led by Professor James G. Hodge, Jr., the Western Region Office provides technical assistance and other vital resources to public health practitioners, officials, attorneys, and advocates across 11 Western states and nationally. Since its inception in September of 2010, the Western Region Office has fulfilled nearly 3000 requests nationally, over 1000 of which directly aided requesters in the office’s home state of Arizona.

This fall the Network for Public Health Law is organizing the 2018 Public Health Law Conference, to be held October 4-6, in Phoenix, AZ. For more information, please visit: https://www.networkforphl.org/2018_conference/phlc18.