Public Charge

Update: October 12, 2020

Join us today in a disability community call-in day to oppose the nomination of Judge Amy Coney Barrett to the Supreme Court to fill the seat left open by the passing of Justice Ruth Bader Ginsburg. The confirmation hearings for Judge Barrett begin today, so now’s the time to make our voices heard!

Judge Barrett’s record raises significant concerns for the disability community, especially concerning the Affordable Care Act (ACA) and the public charge rule. CPR has, along with other disability advocacy organizations, filed amicus briefs in both California v. Texas, the case in the Supreme Court challenging the ACA, defending the ACA and in multiple cases opposing the public charge rule.

For more information on today’s call in day, including how to call your Senators and a call-in script, check out the Facebook event here. You can also email your Senators directly here.

Overview of the Public Charge Rule

On August 12, 2019, the Department of Homeland Security (DHS) announced that it had finalized the “public charge” rule. The final public charge rule, like the proposed rule, will be devastating to — and explicitly discriminates against — people with disabilities and their families who are seeking to enter the U.S. or applying for a green card. CPR issued this statement condemning the new public charge rule.

The public charge rule is unfair and harmful to people with disabilities and their families who are seeking to enter the U.S. or applying for a green card. The rule expressly discriminates against people with disabilities and chronic health conditions. This rule also means that an individual could be denied admission or have their application for lawful permanent residency denied because they used (or even might use in the future) a wide range of government programs, including Medicaid, housing assistance, or food assistance. Because Medicaid provides critical services that help people with disabilities live in the community and that are not generally available through private insurance, this rule will especially harm people with disabilities and their families. It not only could prevent them from entering the US or becoming permanent residents, but will discourage eligible families from using critical public services for fear of harming their immigration status. 

The rule was scheduled to go into effect on October 15, 2019, but twenty one states, led by CaliforniaWashington, and New York, filed cases against the Trump Administration to block the new rule and were initially successful in delaying implementation of the rule. However, the Supreme Court, in a pair of 5-4 decisions (which you can read here and here), decided to allow the rule to go into effect while the lawsuits make their way through the courts, and the Administration then announced the rule would go into effect on February 24, 2020. For more on the rule’s implementation, you can read our alert here. In April, the Court decided not to modify or lift its stay in light of the COVID-19 pandemic, but did state that lower courts could consider the issue.

On March 16, 2020, the US Citizenship and Immigration Services (USCIS) announced that in response to the coronavirus pandemic it “will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19” in making public charge determinations, “even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).” However, on July 29, 2020, a federal district court in New York found that announcement was insufficient to ensure the rule would not cause harm during the pandemic and issued a temporary injunction against the rule, preventing it from being implemented, applied, or enforced nationwide while the national public health emergency declared by the Trump Administration is ongoing.

The Center for Public Representation, American Civil Liberties Union, and sixteen other national disability advocacy groups represented by the global law firm Latham & Watkins filed amicus briefs in support of the litigation. The advocacy groups – representing tens of thousands of people with disabilities and their families across the country – claim that the new public charge rule will prevent people with disabilities from entering this country or becoming legal residents in violation of federal disability law. Read our full press release here and learn more about the lawsuits here.

A fact sheet reviewing the basics of the rule and its impact on people with disabilities is available here. A more in-depth explanation of the rule and the lawsuits challenging it can be found here. Learn more about the final rule at the Protecting Immigrant Families Coalition website, and keep checking back here for updates.   

Litigation Highlights

August 13, 2019: First lawsuit filed against the public charge rule in federal district court in the Northern District of California. Eight more lawsuits followed throughout August and September across the country.

September 9, 2019: The Center for Public Representation, American Civil Liberties Union, and sixteen other national disability advocacy groups represented by the global law firm Latham & Watkins filed an amicus brief in support of litigation in federal district court in Washington state to stop the U.S. Department of Homeland Security (DHS) from implementing its new public charge rule and later filed amicus briefs in support of litigation in federal district courts in New York (in two separate cases, here and here), California, and Illinois.

October 11, 2019: Federal courts in New York, Washington state, and California issued preliminary injunctions to stop the public charge rule. The injunctions issued in New York (which can be read here and here) and Washington state were nationwide injunctions. Those courts also found that the rule was likely to discriminate against people with disabilities. The preliminary injunction issued by a federal court in California prevented the rule from going into effect only in the plaintiff states.

October 14, 2019: Federal courts in Illinois and Maryland issued preliminary injunctions. The court in Maryland issued a nationwide injunction and the court in Illinois also issued a preliminary injunction, only applying in Illinois. Our full statement on all of the preliminary injunctions can be found here.

October 30, 2019: The Department of Justice filed notices of appeal in eight of the nine cases challenging the Department of Homeland Security’s public charge rule (a decision in the Baltimore case has been deferred in light of the injunctions issued in other cases).

November 25, 2019: CPR, the ACLU, and 17 other disability advocacy organizations represented by Latham & Watkins filed an amicus brief opposing the Department of Homeland Security’s (DHS) motion to stay the preliminary injunction issued by a federal district court in New York in October.

December 5, 2019: The Ninth Circuit Court of Appeals granted a stay of the nationwide injunction issued by a federal district court in Washington state.

December 9, 2019: The Fourth Circuit Court of Appeals granted a stay of the nationwide injunction issued by a federal district court in Maryland in October.

January 8, 2020: The Second Circuit Court of Appeals denied a stay of the nationwide injunction of the public charge rule issued by a federal court in New York in October, meaning that despite the stays granted in the Fourth and Ninth Circuits in December, the nationwide injunction against the rule remains intact.

January 13, 2020: DHS appealed to the U.S. Supreme Court asking the Court to grant the stay of injunction that the Second Circuit Court of Appeals denied.

January 23, 2020: CPR, the ACLU, and 17 other disability advocacy organizations represented by Latham & Watkins filed an amicus brief in the Ninth Circuit Court of Appeals opposing DHS’ appeal seeking to overturn the preliminary injunction issued by a federal district court in California in October, applying to plaintiff states. The coalition filed later filed amicus briefs in the SeventhNinth, and Second Circuit Court of Appeals opposing DHS’ efforts to overturn preliminary injunctions issued by federal district courts in IllinoisWashington, and New York respectively, the latter two of which were nationwide injunctions.

January 27, 2020: The US Supreme Court issued a decision staying the one remaining nationwide preliminary injunction issued by a federal district court in New York in October. That decision meant that the rule was allowed to go into effect nationwide while litigation is ongoing, except in Illinois, where a statewide injunction remained in effect.

February 21, 2020: The US Supreme Court issued a stay of the remaining statewide injunction in Illinois as well, meaning the rule will now be allowed to go into effect in every state, across the country. The Administration had announced in January that the rule would be implemented on February 24, 2020.

April 24, 2020: The US Supreme Court decided not to modify or lift its stay in light of the COVID-19 pandemic, but did state that lower courts could consider the issue.

June 10, 2020:  The Seventh Circuit Court of Appeals affirmed the preliminary injunction issued by the Northern District of Illinois finding the public charge rule in inconsistent with law, including Section 504 of the Rehabilitation Act (citing the amicus brief filed by CPR and other advocates). 

July 29, 2020: The US District Court for the Southern District of New York issued a temporary injunction against the rule, preventing it from being implemented, applied, or enforced nationwide while the national public health emergency declared by the Trump Administration is ongoing. 

August 3, 2020: The U.S. District Court for the Northern District of California issued an order on the motion to dismiss the case led by the State of California, granting it in part, denying it in part, and deferring ruling in part. The court granted the motion to dismiss with regards to the Section 504 claim.

August 4, 2020: The Second Circuit Court of Appeals upheld the original preliminary injunction issued by the U.S. District Court for the Southern District of New York in October but modified it to only apply to the plaintiff states of New York, Connecticut, and Vermont. This decision does not modify the COVID-19-related nationwide temporary injunction issued by the Southern District of New York on July 29.

Resources and Media on the Final Public Charge Rule

Resources

Public Charge Update: What Advocates Need to Know Now, Protecting Immigrant Families (Feb. 2020)

Documenting through Service Provider Accounts Harm Caused by the Department of Homeland Security’s Public Charge Rule, National Immigration Law Center (Feb. 2020)

Public Charge Analysis and FAQs, Protecting Immigrant Families (Feb. 2020)

Key Takeaways on the Final Immigration Public Charge Rule, Justice in Aging (Jan. 2020)

Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 2019)

Public Charge:  A Threat to Immigrant Families, Protecting Immigrant Families (Aug. 2019)

Let’s Talk About Public Charge , Protecting Immigrant Families (Aug. 2019)

Public Charge:  Getting the Help You Need, Protecting Immigrant Families (Aug. 2019)

Public Charge Webinar, Protecting Immigrant Families (Aug. 2019)

Final “Public Charge” Rule Discriminates against Lawfully Present Immigrants and Visa Applicants, Harming Health Families USA (Aug. 2019)

Immigrant Health Under Attack: Trump’s Public Charge Rule Webinar, Families USA (Aug. 2019)

Trump’s Rule Attacking Disabled and Low-Income Migrants Has Violent History, Truthout (Aug. 2019)

Media

Disability rights groups join challenge to ‘public charge’ rule (The Hill, 9/11/19)

Trump’s New Green Card Policy Disproportionally Affects Immigrants With Disabilities (Forbes, 8/13/19)

Pediatricians speak out: A ‘public charge rule’ is dangerous for children (The Hill, 9/1/19)

Trump administration’s ‘public charge’ rule has chilling effect on benefits for immigrants’ children (LA Times, 9/3/19)

Trump Is Now Going to Make Life Hell for Immigrants With Disabilities (Vice, 8/16/19)

Trump officials move to deny greencards, path to citizenship for poor immigrants (Washington Post, 8/12/19)

Trump Policy  Favors Wealthier Immigrants for Green Cards (New York Times, 8/12/19)

Trump to deny green cards to immigrants receiving public benefits (Politico, 8/12/19)

Comments and Information on the Proposed Public Charge Rule

Comments Submitted on the Proposed Public Charge Rule

CPR Comments

NHeLP Comments

National Disability Rights Network Comments

Consortium for Citizens with Disabilities Comments

ACLU Comments

Access Living Comments on Proposed Changes to the Public Charge Rule

Justice In Aging Comments

Disability Rights Education and Defense Fund (DREDF) Comments

Autistic Self-Advocacy Network (ASAN) Comments

National Council on Aging Comments

Kaiser Permanente Comments

Community Catalyst Comments

Center for American Progress Comments

Media and Resources on the Proposed Public Charge Rule

How the Proposed Public Charge Rule Will Hurt People with Disabilities, CPR, The Arc, Autistic Self Advocacy Network (Nov. 2018)

Explainer: Impact of the Public Charge Rule Change on People with Disabilities, The Arc, Autistic Self Advocacy Network, CPR (Nov. 2018)

Proposed Changes to “Public Charge” Policies for Immigrants: Implications for Health Coverage, Kaiser Family Foundation

America’s Leading Health Plans Oppose Public Charge, Protecting Immigrant Families

Trump’s Public Charge: Poor, Disabled Immigrants Need Not Apply, Disability Rights Education and Defense Fund (DREDF)

Proposed Changes to Public Charge: Quick Analysis, Fact Sheet from Protecting Immigrant Families

Resources List from Protecting Immigrant Families

The Health Impact of the Proposed Public Charge Rules, Health Affairs (9/29/18)

DHS’ Proposed Rule: What May Change With Public Charge?, NHeLP (9/27/18)

Trump Targets Health of Immigrant Families In Seeking Change of Longstanding Immigration Law, NHeLP (9/24/18)

Public Charge: A Threat to the Health & Well-being of Older Adults in Immigrant Families Justice in Aging Fact Sheet (9/14/18)

Estimated Impacts of the Proposed Public Charge Rule on Immigrants and Medicaid, Kaiser Family Foundation (10/11/18)

A New Threat to Immigrants’ Health – The Public Charge Rule, New England Journal of Medicine (8/1/18)

Statements Opposing the Proposed Public Charge Rule

Center for Public Representation

National Council on Independent Living

The Arc

Autistic Self Advocacy Network

Center for American Progress

Consortium for Citizens with Disabilities (CCD)

Center on Budget and Policy Priorities

Jewish Federations of North America (JFNA)

American Association of People with Disabilities (AAPD)

U.S. Conference of Mayors

Coalition on Human Needs

Background

The “public charge” test is not new in federal immigration law. It is designed to identify people who may depend on government benefits as their main source of support. If the government determines someone is likely to become a “public charge,” the government can deny admission to the U.S. or refuse an application for lawful permanent residency.  However, under current law only a very narrow set of programs are considered in determining a “public charge” – cash assistance (such as Supplemental Security Income (SSI) or Temporary Assistance for Needy Families (TANF)) and government funded institutional care (like Medicaid-funded nursing homes). 

The rule was published in the federal register and was officially open for public comment (a required step toward making this a binding federal regulation) through December 10, 2018.  Over 260,000 comments were submitted opposing the rule.

The final public charge rule will be devastating to people with disabilities.  It  greatly expands the benefits that count in the “public charge” test.  It would include many programs that help people meet basic needs, such as Medicaid, food assistance, housing assistance and comparable state and local programs.  Many people with disabilities and their families rely on these programs, especially Medicaid.  The rule also greatly expands how health — including disability — is considered.  Having a disability or chronic health condition is counted as a negative factor.  If a person does not have private insurance that would cover all the medical costs of a disability or chronic condition, that counts as a “heavily weighted” negative factor.  Because many important community services are only available through Medicaid and not covered by private insurance, this factor will also count against most people with disabilities.  

Data Resources on the Impact of the Public Charge Rule
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