Montana
Doing Montana Justice

The Impact of INS Public Charge Determinations on Immigrant Access to Health Care

Claudia Schlosberg, National Health Law Program
Dinah Wiley, National Immigration Law Center
May 22, 1998

I. Summary

Throughout the country, advocacy groups and healthcare providers are reporting that immigrants are medically "on the run," too afraid to obtain health care, even when they legally are entitled to it. Prompted by these reports, the National Health Law Program and the National Immigration Law Center joined with a number of state and local advocacy organizations to document what is happening and why. To do so, the organizations circulated a short questionaire to provider and advocacy organizations in April, 1998. The resulting stories, gleaned from interviews and the questionaires, paint a chilling and grim picture with serious public health consequences -- high risk pregnant women too fearful to see a doctor for prenatal care, parents too fearful to have their children immunized or treated by a doctor, and many individuals too fearful to seek medical treatment for potentially serious illnesses and injuries.

Fueling this fear are recent changes in welfare and immigration law, policy and practice. This memorandum looks at one particular concern -- fear of INS "public charge" determinations.(1)

Under U.S. immigration law, if the government determines that the immigrant is likely to become a public charge, the government can exclude a person from entering the United States as an immigrant, or deny their application to adjust their status to permanent residency. The law requires INS officials and consular officers to resolve public charge concerns by making a prospective determination taking into consideration the immigrant's total circumstances including age, health, family status, assets, resources, financial status, education and skills. Under much more narrow circumstances, public charge determinations can result in deportation.

Although there has been no official change in public charge policy, in the past two years, INS and State Department officials have been making or have threatened to make public charge determinations based solely on past or current receipt by the immigrant or by the immigrant's family members of non-cash public assistance including Medicaid and other means-tested health care and nutritional support benefits. In violation of Medicaid law and policy, the State Department also initiated a program to identify past Medicaid recipients at the border and to deny them entry until past benefits were fully repaid, separating parents from their children and delaying immigrants and their family sponsors for months abroad, while sponsoring families and friends frantically pooled their resources to pay thousands of dollars to remedy their "public charge" problem. INS and State Department personnel also let it be known that receipt of Medicaid or other non-cash health or nutritional support benefits will adversely affect an immigrant's efforts to adjust his or her status or to obtain citizenship. At the request of the White House and HHS, both the State Department and INS issued memoranda in December, 1997 intended to curtail these illegal practices. However, immigrants are still being told that the receipt of any public health or nutritional benefit will adversely affect their immigration status.

As the following stories demonstrate, immigrants' fears of public charge determinations are having devastating, widespread impact on the ability and willingness of immigrants to access public health and health care services.(2) Clinics throughout the country report that they are seeing fewer pregnant women and that children are not getting preventive care or treatment when they are sick. Hospitals are reporting that they are unable to obtain Medicaid reimbursement for emergency services provided to immigrants because immigrants are too afraid to complete and submit application forms. Eligible children are not being enrolled in Medicaid.

While immigrants and their children are the immediate victims, the "public charge" barrier increases public health risks to all residents throughout the country, immigrant and citizen alike. Bruce M. Bullen, Medicaid Commissioner for the Commonwealth of Massachusetts has called the inclusion of Medicaid benefits in the "public charge" determination "a direct threat to the public health of the larger community." The impact on the public's health is already being felt. Since December, 1997, for example, public health officials in Westchester County, New York, have been battling the nation's largest outbreak of rubella that has now spread to New York City, causing officials there to issue an alert. The epidemic has been spreading through the Hispanic community among immigrants who have not been vaccinated against the disease. Public health officials acknowledge that one of the problems in fighting the epidemic is that many in the

Hispanic community are afraid of the health department because they equate it with the Immigration and Naturalization Service.

Immigrants' avoidance of health care, fueled by public charge fears, also will undermine efforts to reduce the number of uninsured legal immigrant children -- a major policy goal of the Clinton Administration. A recent GAO study reported that nearly one-third of Medicaid eligible children who are uninsured live in immigrant families. Other studies, such as a December 1997 survey of California Medicaid eligibility workers, found overwhelmingly that fear of INS was the number one reason why immigrants who are eligible for Medicaid benefits fail to apply.

A number of steps must be taken to stop immigrants and their children from being driven out of the health care system:

(1) There must be an unambiguous policy that takes receipt of Medicaid and all other health care and related services out of the public charge equation. Action is needed to clarify INS and State Department policy to exclude Medicaid and all other health and related benefits from the public charge determination.

(2) At the same time, public authorities, including federal and state Medicaid authorities, public health agencies and the private sector must expand public education and outreach campaigns to immigrant communities to allay fears and encourage the use of all available public health services.

(3) The administration must review other policies and rules affecting immigrant access to health care to ensure that the public's health is not put in jeopardy by immigrant enforcement concerns.
 

II. Immigrant Stories -- Fear Prevents Them From Obtaining Needed Health Care for Themselves and Their Children

The following are examples of nearly 30 stories listed in Appendix A. Together, they illustrate a growing nationwide crisis: immigrants and their families increasingly are afraid to interact with public and private agencies that provide vital health and health-related services. For example:

  • A citizen child did not receive any medical care for six ear infections.

  • In Yakima County, Washington, a citizen child of a permanent resident father and a mother who has applied for a visa did not receive any medical care for the six ear infections he had in 1997. The parents had no money to pay for medical care, and they were afraid that if they applied for assistance for the child, the mother would never be allowed to get an immigrant visa.
     
  • A child can't access medical treatment for his seizures.

  • A citizen child in Boston, Massachusetts had to be rushed to the hospital by ambulance because the child went into convulsions. Subsequently, it was determined the child needed on-going treatment. The child's mother, however, refused to fill out a Medicaid application on behalf of her child because she feared that she would not be permitted to adjust her immigration status if her child received Medicaid. Without Medicaid, the hospital will not be paid for the care it provided, and the child is unable to access medical treatment for his on-going health condition.
  • She is 40 and has developed pregnancy diabetes which requires special care.

  • In East Los Angeles, California a forty-year-old pregnant woman, married to a U.S. citizen, has decided not to apply for Medicaid benefits to get pre-natal care even though she is eligible. She believes that if she receives Medicaid her application for adjustment for permanent residency will be denied, and she could be separated from her family. She has developed pregnancy diabetes. Without care and appropriate monitoring, the clinic where she was receiving care feels that both mother and child are at risk of major medical complications.
     
  • Fewer women are participating in Georgia's State Perinatal Case Management Program.

  • In Decatur County, Georgia, a county with an estimated 10,000 farmworkers and their families, only four pregnant women are enrolled in the state's Perinatal Case Management Program and the county WIC program has only two active remaining Hispanic clients.
     
  • INS told him that getting Medicaid would mean he could not adjust his immigration status.

  • In Oakland, California, a 65-year-old refugee from Vietnam asked his health provider to withdraw him from Medicaid. He states that he was informed by an INS official that his application for adjustment of status would not be considered if he continued to receive Medicaid benefits.
     
  • She is still very sick but can't afford to have more tests done.

  • In Illinois, a legal permanent resident mother of three citizen children went to the emergency room with strange heart palpitations and was given a battery of tests, for which she was billed thousands of dollars. She can't pay the bills and when she was advised to apply for Medicaid, she said she couldn't do that because she has applied for citizenship and at the naturalization workshop the applicants were told not to apply for public benefits. The immigrant is still very sick and needs more tests done but she can't afford them. Her daughter has had to stay home from school many days to care for her.
  • He stitched his own hand rather than go to the hospital emergency room after he cut himself badly on his job.

  • In Sonoma County, California, a farm worker waiting to hear about his INS application to adjust his status to permanent resident, cut his hand badly on the job. He was so afraid of jeopardizing his pending application that he refused to get medical care. Instead, he used peroxide and stitched his hand himself, risking infection and permanent damage.
  • He was brought to the hospital after he collapsed.

  • A man in Massachusetts is a diabetic and needs medical attention. He has refused any medical care offered to him because he does not want to jeopardize his chance to get permanent residency. He was brought to the hospital by ambulance only after he collapsed with a serious urine infection.

III. Receipt of Medicaid and Other Public Health Benefits Should Not Be Considered in Making a Public Charge Determination

A. Policy Considerations

The inclusion of Medicaid and other public health and nutrition programs in the public charge equation has created a major barrier to immigrant access to health care throughout the United States. While all age groups are affected including the elderly, of particular concern to the nation is the impact on pregnant women and children. As the stories demonstrate, pregnant women are afraid to seek pre-natal care, even when they are eligible to receive it. Failure to get appropriate pre-natal care is a major reason for premature delivery, low birth weight and multiple complications for mother and newborn including serious birth defects that bear high human and financial costs. Children, including thousands of citizen children of immigrant parents, are also being affected. Although recognizing the importance of preventive health care and treatment, parents are simply not willing to bear the risk of separation and deportation that has become associated with receipt of heath care.

The impact on children is particularly troubling in light of the Clinton Administration's public campaign to reach out and insure uninsured children, especially those who are eligible for Medicaid or the Children's Health Insurance Program (CHIP) but who are not enrolled. A recent General Accounting Office (GAO) report states that, of nearly 3.4 million uninsured children in the United States, nine out of 10 were U.S. born, but over one-third lived in immigrant families. The GAO concludes that "uninsured children who are eligible for Medicaid are more likely to be in working families, Hispanic and either U.S. born to foreign-born parents or foreign born."(3) The President's FY '99 budget seeks over $900 million to expand health insurance access to children, including expanding access to immigrant children, and funding outreach in schools and child care sites. However, unless Medicaid and other public health and nutrition programs are removed from consideration in the public charge determination, the Administration's policy to target outreach to immigrant communities and ethnic minorities will be undermined.

While immigrants and their children are the immediate victims, the public charge barrier increases public health risks to all, immigrant and citizen alike. According to Bruce Bullen, Medicaid Commissioner for Massachusetts and currently Chair of the National Association of Medicaid Directors, "[i]ncluding Medicaid benefits in the "public charge" determination is one of the most significant barriers to immigrants' access to health care."(4)

As Commissioner Bullen notes, however, the barriers faced by immigrants to accessing health care are not only a concern for individual immigrants, they are also "a direct threat to the public health of the larger community." Reports from New York State, where public health officials are battling the nation's largest outbreak of rubella, are a wake up call that must be heeded. The epidemic has been spreading through the Hispanic community among immigrants who have not been vaccinated against the disease. Public health officials acknowledge that one of the problems in fighting the epidemic is that many in the Hispanic community are afraid of the health department because they equate it with the Immigration and Naturalization Service.

The public charge barrier also increases the financial constraints of safety-net providers such as Federally Qualified Health Centers and public hospitals that rely on sufficient Medicaid reimbursement for their economic survival. Hospitals are already reporting that immigrants are too afraid to apply for Medicaid even after they have received treatment. Hospitals and safety-net providers that serve immigrant communities thus face an increase in uncompensated care cases, placing additional burdens on an already overburdened and underfunded safety-net.

Finally, it must be noted that receipt of publicly-funded health or nutritional support services, by itself, is not dispositive of a recipient's ability to be self-supporting or to support family members. Many programs provide services to families whose incomes are well above 125 percent of the federal poverty line. For example, some state Medicaid programs cover children in families with incomes as high as 300 percent of the poverty level. Many states have programs that allow applicants to "spend down" their income by offsetting their medical expenses. Of an estimated 37 million people who receive Medicaid funded services, half are children, and a majority of children eligible for Medicaid live in families where their parents (or parent) work but do not have sufficient income to purchase private health insurance. According to a recent study by the Agency for Health Policy Research, nearly 53 percent of children on Medicaid live in a household where one or both parents are employed.(5) With the advent of the TANF program and the extension of transitional Medicaid, increasingly adult, non-disabled recipients of Medicaid are employed or are working toward self-sufficiency.

B. Legal Considerations

1. The law of public charge

"Public charge" is a term that the Immigration and Naturalization Service (INS) and the Department of State use to describe immigrants who have become or will become dependent on public benefits. The Immigration and Nationality Act (INA) states that an intending immigrant is inadmissible if he or she is "likely" to become a public charge.(6) The test is a prospective one that looks to the future.

The public charge test is applied by the State Department to individuals seeking entry to the United States, by the INS to individuals seeking permanent residence in the United States and to permanent residents who travel outside the U.S. for more than six months or who have otherwise made a meaningful departure. Under narrow circumstances the INS can also deport, or "remove," legal immigrants who become public charges, although this rarely occurs. Under standards established by case law, a permanent resident can be removed only if he or she (1) became a public charge within five years after entry, (2) received benefits based on factors that existed before entry, (3) received benefits that created a legal debt, and (4) was asked to repay the debt but refused.

The INS and the State Department historically have applied slightly different standards in determining who is likely to become a public charge. The State Department applied a poverty guideline income test, which changed slightly in 1996 when Congress required 125 percent of the poverty guideline.(7) In considering the relevance of public benefits received, the State Department has instructed consuls that, only receipt of cash assistance raises public charge concerns. Assistance is outside the scope of the public charge exclusion when it is "a program that is essentially supplementary in nature, in the sense of providing training, services, food, etc. to augment the standard of living, rather than to undertake directly the support of the recipients."(8)

When the INS makes a public charge determination, it is supposed to examine the "totality of the immigrant's circumstances" in each case. As a general rule, the past receipt of welfare benefits does not, by itself, establish that an applicant is likely to become a public charge in the future.(9) INS also distinguishes between programs providing financial support to the needy and "essentially supplementary" benefits directed to the general welfare of the public as a whole.(10)

The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) codified the requirement of looking at the "totality of an immigrant's circumstances" when making public charge determinations. These factors include the immigrant's age, health, family status, assets, resources, financial status, education and skills.(11) For immigrants being sponsored by family members, the IIRIRA also requires an annual income threshold of 125 percent of the federal poverty line, to be demonstrated in a binding affidavit of support submitted on behalf of the immigrant by his or her sponsor. When executing an affidavit of support (INS form I-864), sponsors must list any "federal means-tested public benefits" received by them or members of their household, and agree to reimburse the government if the immigrant becomes dependent upon such benefits.(12) These are the only recent statutory changes in the law of public charge.

2. Misapplication of the law

The law of public charge does not authorize either the State Department or the INS to condition adjustment of immigration status, issuance of a visa, or re-entry from a visit abroad on reimbursement of the costs of past public benefits lawfully received. Yet, this is exactly what the INS and State Department began doing several years ago. The Department of State implemented a formal system, called the Public Charge Lookout System (PCLS). The PCLS connected consular offices with information regarding intending immigrants' past receipt of state or federal public benefits.(13) Using the PCLS system, consular offices began regularly demanding that an intending immigrant repay in full the amount of past benefits received by family members in the U.S., while INS officers began refusing re-entry to permanent residents returning from visits abroad until they repaid past benefits received or withdrew from enrollment in programs such as Medicaid or WIC. Even immigration judges have ordered individuals to repay Medicaid benefits to which they were legally entitled, with the implicit threat of adverse rulings in their cases if they were unable to comply.

The PCLS system was recently terminated, but news of these practices spread widely through immigrant communities and continues to have a devastating impact on immigrants' access to public health services. A December 1997 survey of Medi-Cal (California Medicaid) eligibility workers showed that overwhelmingly, the fear of INS was the number one reason why immigrants and their children failed to apply for Medicaid. The Director of a Headstart program in Florida cited the fear of public charge as the primary reason why parents do not enroll their eligible children in the Medicaid program. Immigrants' fear of public charge was also cited by the GAO in a recent report as a factor contributing to the low Medicaid enrollment rates of immigrant children. According to the GAO, nearly one-third of Medicaid-eligible children who are uninsured live in immigrant families.(14)

3. Clarification of the law

In December 1997, at the request of the White House and the Department of Health and Human Services (HHS), both the State Department and INS issued memoranda acknowledging that the forced repayment of public benefits, properly received, is illegal. The State Department instructed consular offices that "[u]nder no circumstances should an officer instruct or request an applicant to repay previously received benefits. This is a matter the applicant should address directly to the state."(15) In its policy memorandum, the INS stated as a general rule, "an alien is not required to repay public benefits received in the past in order to avoid being found inadmissible as a public charge .... [t]he Service does not have the authority to request as part of the inspections process that aliens (lawful permanent residents or other aliens) repay public benefits."(16) The INS went on to say that repayment of public benefits is relevant to a public charge inadmissibility determination only if at the time of application for admission, the alien has an outstanding debt based on receipt of a public benefit. The test, as outlined in case law, requires that there be: (1) a legal obligation to repay the debt; (2) a demand for repayment by the benefit-granting authority; and (3) a failure to pay by the alien.(17)

The Health Care Financing Administration (HCFA) of HHS has characterized the forced repayment of Medicaid benefits as a "serious" problem. In a letter to State Medicaid Directors, the Director of HCFA's Center for Medicaid and State Operations Sally Richardson informed states that the "[t]he Medicaid program has no authority to collect repayments of benefits from current or former beneficiaries except in cases where those benefits were fraudulently received or an overpayment has occurred." Richardson noted that "State Medicaid agencies are not authorized to provide information about the receipt of benefits or the dollar amount of these benefits to the INS, the State Department or immigration judges unless the information will assist the State in collecting outstanding debts. Even if the individual requests documentation of the amount of benefits received, this information is not to be released because the disclosure is not directly connected to the administration of the Medicaid State plan."(18) The Social Security Act, in § 1902(a)(7), requires states to safeguard information regarding applicants for Medicaid benefits and prohibits disclosure of that information to an outside entity unless it is directly connected to the administration of the State Plan.

Subsequently, the State Department and to a lesser degree, the INS, issued additional guidance on what kinds of benefits can be considered when making a public charge determination. The State Department issued a public charge update to inform consuls that "reliance on emergency health and supplemental nutrition programs does not constitute public charge." The directive notes that under the welfare law, these programs remain available to all immigrants regardless of immigration status and "are supplemental (i.e. not subsistence) non-cash benefits that promote the public good." The directive specifically identified the WIC program (Women, Infants and Children) as a public nutrition program that provides food supplements to ensure positive, healthy birth outcomes, specifying that "such programs should not be considered when making public charge determinations."(19) The directive did not, however, clarify the scope of exempt "emergency health" programs and made no reference at all to Medicaid or emergency Medicaid. At least one INS District has ruled that the use of a state's uncompensated care pool is not reason for determining that a prospective immigrant is likely to become a public charge. The District office concluded that "[g]iven the state's aggressive public health posture, it would be imprudent to deny lawful permanent resident status to those applicants who have used the pool to obtain health care."(20)

While these directives are welcome, there is still a great deal of confusion regarding what is the appropriate criteria for making a public charge determination. The State Department and the INS guidances, issued to date, are not equivalent and remain ambiguous or silent on several key issues. Neither the State Department nor the INS has addressed the receipt of past, present or future Medicaid benefits, while only the State Department has addressed receipt of WIC and emergency health program benefits. Moreover, reports from the field document that the WIC policy and emergency health program benefits policy are not being enforced. The practice of compelling or threatening to compel repayment of Medicaid and other public benefits is continuing. Lack of clarity and lack of enforcement has meant that immigrants remain afraid to access Medicaid and other vital public health and nutrition programs for which they remain eligible. For example:

  • The INS told her to cancel public benefits or face deportation.

  • On January 12, 1998, during an interview for adjustment of status in Los Angeles, the INS officer asked Teresa, "Are you receiving WIC or Medicaid?" He said: "If you don't cancel WIC and Medicaid we will deport you to Mexico." She said she received only WIC. The officer told her she had to stop receiving government assistance.
  • The INS officer asked him to bring in a letter stating the benefits he receives.

  • At his citizenship interview at INS at Laguna Niguel on February 26, 1998, Mr. A, the interviewing officer, asked Luis to bring back a letter with a statement of benefits received. The family only participates in WIC. The WIC program gave Luis information regarding WIC being exempt as a public benefit, which Luis was instructed to take to his next interview.
  • The lawyer said many of his clients had been asked to repay benefits.

  • On February 11, 1998, Maria had her interview at the Immigration Service Center (Processing Center). She had been told by the lawyer (at Immigration Center) that she would be asked about repayment of benefits received in the past and that it included WIC. The lawyer said that he handles many cases in court where the INS District Counsels request repayment of benefits. He said that many of his clients had been asked to repay benefits in order to continue their process, otherwise the benefit could make one a public charge.

IV. Conclusion

The December 1997 directives from the State Department, INS, and the Health Care Financing Administration helped to clarify that past receipt of Medicaid and other public health and nutrition benefits are not to be considered in a public charge determination. However, the policy is not being followed or enforced. Moreover, current or future receipt of Medicaid and other public health and nutrition benefits intended to promote healthy families and communities, continues to be used against immigrant families, even when they are legally entitled to receive these benefits.

The chilling effect of public charge fears on access to health care will cost society much more money in the use of emergency care, in the spread of untreated infections and communicable diseases, and in the treatment of prolonged, aggravated and even lifelong conditions that early medical intervention could have prevented or ameliorated. It also places additional financial strains on already strained safety-net providers. Absent an unambiguous policy that removes Medicaid and other public health and related programs from the public charge equation, and a public education campaign targeted to immigrant communities, immigrants will continue to fear contact with public health authorities and providers. While the immediate victims are the immigrants themselves and their children, ultimately, this failed policy threatens to undermine the public's health and safety and even the President's own initiatives to reach out to uninsured children and ethnic minorities.

A number of steps must be taken to stop immigrants and their children from being driven out of the health care system:

(1) There must be an unambiguous policy that takes receipt of Medicaid and all other health care and related services out of the public charge equation. Action is needed to clarify INS and State Department policy to exclude Medicaid and all other health and related benefits from the public charge determination.

(2) At the same time, public authorities, including federal and state Medicaid authorities, public health agencies and the private sector must expand public education and outreach campaigns to immigrant communities to allay fears and encourage the use of all available public health services.

(3) The administration must review other policies and rules affecting immigrant access to health care to ensure that the public's health is not put in jeopardy by immigrant enforcement concerns.

APPENDIX A
IMMIGRANT STORIES -- FEAR PREVENTS THEM FROM OBTAINING NEEDED HEALTH CARE FOR THEMSELVES AND THEIR CHILDREN

The following stories were reported to the National Health Law Program and the National Immigration Law Center from advocates and health providers throughout the country. They illustrate a growing nationwide crisis: immigrants and their families increasingly are afraid to interact with public and private agencies that provide needed health care services. A major concern of immigrants is fear of public charge determinations and the real and perceived impact on their immigration status.

Children:
 

  • A citizen child did not receive any medical care for six ear infections.

  • In Yakima County, Washington, a citizen child of permanent resident father and a mother who has applied for a visa did not receive any medical care for the six ear infections he had in 1997. The parents had no money to pay for medical care, and they were afraid that if they applied for assistance for the child, the mother would never be allowed to get an immigrant visa.
  • The child had outgrown her prosthesis.

  • A ten year old child from Italy, who was born with half a leg and half an arm, had outgrown her prosthesis and needed medical care immediately. The mother of the child, a naturalized citizen, refused available assistance because she was afraid it would jeopardize her children's citizenship and her husband's chances of becoming a permanent resident.
     
  • She fears that if her children get health care the INS will deport her and the children will be returned to their abusive father.

  • A woman who is a permanent resident recently moved to Massachusetts with her four citizen children after fleeing an abusive husband in California with the help of her church. Although she is aware that her children need health care and food, her husband took all of her identification, and she fears that if she applies for public benefits for her children that INS will deport her and the children will have to return to their father.
     
  • A child can't access medical treatment for his seizures.

  • A citizen child in Boston, Massachusetts had to be rushed to the hospital by ambulance because the child went into convulsions. Subsequently, it was determined the child needed on-going treatment. The child's mother, however, refused to fill out a Medicaid application on behalf of her child because she feared that she would not be permitted to adjust her immigration status if her child received Medicaid. Without Medicaid, the hospital will not be paid for the care it provided, and the child is unable to access medical treatment for his on-going health condition.
     
  • Her citizen children do not have medical assistance because she does not want to jeopardize her ability to become a permanent resident..

  • A mother in Douglas County, Washington has work authorization, based on a family-unity visa. Her citizen children do not have medical coupons because the Spokane INS office told her at the initial interview that they would not approve her work authorization unless she waived her right to receive medical benefits. The Okanogan DSHS office reportedly gave her a waiver to sign. She does not want to pursue this issue, because she does not want to do anything that might jeopardize her ability to become a permanent resident.
  • The INS told them not to apply for benefits, and they'd rather be safe than sorry.

  • In Mattawa, Washington, social service agencies report there is great fear in the Spanish-speaking community. People in the community will not participate in any medical benefits programs. Newly legalized residents say that the INS told them not to apply for any benefits, and the new residents would rather be safe than sorry. One client canceled her WIC benefits, because she was afraid it would affect her immigration status.
     
  • The wife of a United States citizen has not been allowed to rejoin her family because her child received cancer treatments from a special program for severely ill children.

  • A U.S. citizen and his Haitian-born wife have a child who developed cancer. The child was accepted for treatment in a special program for severely ill and disabled children in Florida that, at the time, had no alienage requirement. The child received extensive treatment. The mother returned to Haiti briefly but was prevented from reentering the U.S. to rejoin her family. The family has been told that before the mother will be permitted to re-enter the U.S., they must repay the value of the benefits received from the program that provided cancer treatment to their child.
  • He is afraid to get Medicaid for his children.

  • A man, who is a permanent resident from El Salvador, lives in Massachusetts with his wife and two of his children. A third child remains in El Salvador. Although he works full time, he has no health insurance. He was advised to apply for Medicaid for his children so that they could receive medical check-ups and be treated for illnesses, but he has refused. He wants to reunite his family, and he is afraid that if he applies for Medicaid for his children, the State Department will reject his affidavit of support submitted in sponsorship of his third child's immigration.
Pregnant Women:
 
  • She is 40 and has developed pregnancy diabetes which requires special care.

  • In East Los Angeles, a forty-year-old pregnant woman, married to a U.S. citizen, refuses to apply for Medicaid benefits to get pre-natal care even though she is eligible, because she fears she may be separated from her family if her application for permanent residence is denied. She has developed pregnancy diabetes. Without care and appropriate monitoring, the clinic where she was receiving care feels that both mother and child are at risk of major medical complications.
     
  • She is 17 and pregnant but her working husband has no health insurance.

  • In Los Angeles, a clinic is struggling to convince a 17 year old, who is married and six months pregnant, to continue in pre-natal care. The woman is applying for permanent residence. Although her husband is working, he has no health insurance, and they cannot afford to pay for medical care themselves. The young woman is afraid that receiving pre-natal care under Medicaid will jeopardize her immigration application. 
  • Immigration attorneys are advising their clients not to accept any public benefits.

  • A pregnant 19-year-old, being seen at a Los Angeles County medical center, will not apply for Medicaid due to the advice of her attorney. According to her attorney, in order for her to remain legally in this country, she cannot accept any public benefits, including Medicaid. As a result, she is experiencing financial hardship because she has little money left over after paying for services. Unfortunately, with little money, she is unable to buy sufficient groceries that will keep her and the baby healthy and nutritionally fit.
  • Only 16 years old and pregnant, her conditions could be easily managed with pre-natal care.

  • In California, a 16 year old came to a health clinic in early April with a positive pregnancy test requesting pre-natal care. Due to her low income status, she was asked to apply for Medicaid, but she refused. She stated that she did not want to jeopardize her immigration status.
  • She plans to deliver the baby at home.

  • A Massachusetts woman is six months pregnant and will not go to a doctor for pre-natal care. She says a friend can deliver the baby at home. She does not want any help, and can't be convinced otherwise, because she believes that if she gets pre-natal care, INS will not approve her pending application to adjust her immigration status. She has a friend who had to leave the country because she had a baby on Medicaid. When her friend went for her interview with INS, she was told that she had to repay the state for delivery of the child. Her friend didn't have the money and had to go back to Brazil.
     
  • Pregnant, she has refused to apply for Medicaid.

  • A pregnant woman in Modesta, California refused to apply for Medicaid because her friends told her she may have to pay the government back whatever money it paid for her care at the clinic and at the hospital. She stated that one friend had to pay back around $10,000 before he could receive his permanent residency status.
  • They are afraid to continue receiving Medicaid for which they are lawfully eligible.

  • In Merced County, California, a clinic reports that two pregnant women who are legal permanent residents have left their pre-natal care program because they are afraid to continue receiving Medicaid benefits for which they are lawfully eligible.
  • One of her patients is being deported for receiving prenatal care.

  • In Yakima County, Washington, one patient is being deported for receiving prenatal care. At the patient's INS interview to renew or apply for lawful permanent residency, the hearing officer determined that the patient was a burden on society because she had received prenatal care close to the time of the interview. The patient had not received any other benefits, not even medical coupons for her citizen children.
     
  • Fewer women are participating in Georgia's Perinatal Case Management Program.

  • In Decatur County, Georgia, a county with an estimated 10,000 farmworkers and their families, only four pregnant woman are enrolled in the state's Perinatal Case Management Program and the county WIC program has only two active remaining Hispanic clients.
     
  • She is afraid to get prenatal care.

  • In Yakima County, Washington, a pregnant woman who has a one-year work permit based on a family-unity visa is too afraid to get prenatal care because she thinks it will affect her ability to become a legal permanent resident.
     
  • A fifteen year old girl received no health care for herself or baby until the baby was two months old.

  • In Toppenish in Yakima County, Washington, a 15-year old girl delivered her baby at home and did not receive any health care for either herself or the baby until the baby was two months old. The girl's sponsor believed that receiving prenatal care or other health benefits would jeopardize the girl's ability to become a legal permanent resident.
 

Elderly and Disabled:
 

  • The elderly are being scared into dropping Medicaid coverage.

  • In Oakland, California, a 65-year-old refugee from Vietnam asked his health provider to withdraw him from Medicaid. He states that he was informed by an INS official that his application for adjustment of immigration status would not be considered if he continued to receive Medicaid benefits.
     
  • She would like to apply for Medicaid because of her medical problems but is afraid to do so.

  • A 51-year old Korean immigrant with a conditional green card who lives in L.A. County with her husband can no longer work because she is very ill. She would like to apply for Medicaid because of her medical problems, but she is afraid to do so. She believes that getting Medicaid right now will jeopardize her ability to remove the condition from her green card. She is currently not seeking medical attention.
  • He needs surgery but is afraid to apply for emergency Medicaid because he is applying to become a U.S. citizen.

  • A legal permanent resident who lives in Grant County, Washington State, has two hernias and needs surgery. He is unable to work. He is afraid to apply for emergency Medicaid and financial assistance because he believes it will jeopardize his application to be a U.S. citizen.
     
  • She is still very sick but can't afford to have more tests done.

  • In Illinois, a legal permanent resident mother of three citizen children went to the emergency room with strange heart palpitations and was given a battery of tests, for which she was billed thousands of dollars. She can't pay the bills and when she was advised to apply for Medicaid,she said she couldn't do that because she has applied for citizenship and at the naturalization workshop, the applicants were told not to apply for public benefits. The immigrant is still very sick and needs more tests done but she can't afford them. Her daughter has had to stay home from school many days to care for her.
  • Her medical problems make it difficult for her to work.

  • An Argentinian woman in Western Massachusetts is married to a U.S. citizen who has a serious substance abuse problem and forced her to leave the house. She has since experienced medical problems that make it difficult for her to work consistently, although she does have a part time job. However, she refuses to apply for Medicaid or Food Stamps because she is afraid that it will affect her pending application for permanent residence.
  • He believed he would be deported for receiving benefits because he was unable to work.

  • A permanent resident living in Yakima County, Washington had an auto accident, and suffered injuries that temporarily disabled him. He did not have health insurance, and he was afraid to apply for any benefit program for medical care because he believed that his employment visa would be revoked and that he would be deported if he was receiving benefits because he was temporarily unable to work.

Medical Emergencies:
 

  • He stitched his own hand rather than go to the hospital emergency room after he cut himself badly on his job.

  • In Sonoma County, California, a farm worker waiting to hear about his INS application to adjust his status to permanent resident, cut his hand badly on the job. He was so afraid of jeopardizing his pending application that he refused to go to the hospital or clinic to get medical care. Instead, he used peroxide and stitched his hand himself, risking infection and permanent damage.
     
  • She used a needle and thread to close her wound rather then go to a hospital

  • A woman in Sonoma County, working for a winery, also resorted to closing her own wound with a needle and thread, rather than seek treatment in a hospital or health clinic for fear that INS would demand repayment and separate her from her children.
  • She needs surgery, but doesn't want to jeopardize her visa.

  • A woman in Walla Walla County, Washington has gall stones and needs surgery. She is suffering great pain, to the extent that she is often nauseated. The right side of her body aches, and the pain extends to the center of her back. She does not want to apply for emergency Medicaid because she is afraid that the INS will deny her visa application if she received even emergency Medicaid. She would rather try to work out another payment plan at great sacrifice than risk jeopardizing her immigrant visa. She currently has work authorization based on her husband's petition for a family-unity visa.
     
  • He was brought to the hospital after he collapsed.

  • A man in Massachusetts is a diabetic and needs medical attention. He has refused any medical care offered to him because he does not want to jeopardize his chance to get permanent residency. He was brought to the hospital by ambulance only after he collapsed with a serious urine infection.
APPENDIX B
ORGANIZATIONS THAT ASSISTED IN THE PREPARATION OF THIS REPORT
Center on Budget and Policy Priorities
Columbia Legal Services (Washington State)*
Illinois Coalition for Immigrant and Refugee Protection*
Florida Legal Services
Massachusetts Immigrant and Refugee Coalition*
Massachusetts Law Reform Institute
National Council of La Raza
New York Immigration Coalition*

*These organizations worked with local affiliates and agencies to assist in the preparation of this report.

1. Verification and reporting requirements also were identified as a significant barrier to immigrant healthcare. Stories gleaned from the interviews and questionaires showed that children eligible for Medicaid, including many citizen children, are not being enrolled in Medicaid because their parents fear that INS will be informed, and they will be deported, while pregnant woman are disenrolling from prenatal health care programs. Immigrants of all ages are also afraid to seek treatment for serious and life-threatening injuries and illnesses or to apply for emergency Medicaid after emergency health care has been provided. Consequently, hospitals are reporting an increase in uncompensated care cases.

Another barrier to access is a lack of culturally and linguistically accessible health care services. About thirty-two million people in the United States, 13.8 percent of the population, speak a language other than English at home. Yet, despite laws that require recipients of federal funds to provide appropriate language access to health care services, most health providers have little, if any, capacity to communicate effectively with people with limited English proficiency. For an in-depth analysis of cultural and language access issues, see Ensuring Linguistic Access in Health Care Settings: Legal Rights and Responsibilities, National Health Law Program for the Henry J. Kaiser Family Foundation, January 1998, available from the Kaiser Family Foundation, 1-800-656-4533.

2. While this memorandum specifically addresses the impact of public charge determinations on access to Medicaid and other health-related programs, reports from the field also document that public charge determinations are being made based on the receipt of other non-cash, supplementary programs, such as food stamps and the earned income tax credit. These programs essentially help augment the standard of living for low-income families and often are critical to helping families attain economic independence. They too should be excluded from consideration when public charge determinations are made.

3. Medicaid: Demographics of Nonenrolled Children Suggest State Outreach Strategies, (GAO/HEHS-98-93, March 20, 1998).

4. Letter from Bruce Bullen to Chris Jennings, April 23, 1998.

5. Weigers ME, Weinick RM, Cohen JW, Children's Health 1996, Rockville (MD): Agency for Health Policy and research: 1998. MEPS Chartbook No. 1, AHCPR Pub. No. 98-0008 at 13.

6. INA § 212(a)(4); 8 U.S.C. § 1182(a)(4); 22 CFR §§ 40.7(a)(15) and 40.41.

7. INA § 213A(a)(1)(B); 8 USC § 1183a(a)(1)(b).

8. Foreign Affairs Manual § 40.41, Notes N9.

9. Matter of Peres, 15 I & N Dec. 136 (BIA 1974).

10. Matter of Harutunium, 14 I&N Dec. 583,589 (BIA 1974).

11. INA § 212(a)(4)(B), 8 USC § 1182(a)(4).

12. INA § 213A(a)(1)(B); 8 USC § 1183a(a)(1)(b).

13. See Department of State Cable No 97-State-196108 (May 22, 1997).

14. Medicaid: Demographics of Nonenrolled Children Suggest State Outreach Strategies, (GAO/HEHS -98-93, March 20, 1998).

15. Department of State Cable No. 97- State-228462 (Dec, 6, 1997), discussed in 74 Interpreter Releases 1889 (Dec. 15, 1997).

16. Memorandum from Paul W. Virtue, INS Executive Associate Commissioner for Programs (Dec. 16, 1997).

17. Id.

18. Letter from Sally Richardson to State Medicaid Directors, December 17, 1997.

19. Department of State Telegram to all Diplomatic and Consular Posts regarding Public Charge Update: Health and Supplemental Nutrition Programs not a Public Charge.

20. Letter from Steven J. Farqunarson, District Director, INS, to Thomas R. Barber, Director Health Access Programs, Burlington, Massachusetts, April 21, 1997.

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