{"id":3136,"date":"2020-08-24T21:03:23","date_gmt":"2020-08-24T21:03:23","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=3136"},"modified":"2020-08-24T21:03:23","modified_gmt":"2020-08-24T21:03:23","slug":"the-public-charge-and-the-pandemic-what-happens-when-the-dust-settles","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2020\/08\/24\/the-public-charge-and-the-pandemic-what-happens-when-the-dust-settles\/","title":{"rendered":"The Public Charge and the Pandemic: What Happens When the Dust Settles?"},"content":{"rendered":"

(Source<\/a>)<\/p>\nOn July 29th, the Southern District of New York<\/a> (\u201cSouthern District\u201d) enjoined the Department of Homeland Security (\u201cDHS\u201d) from enforcing, applying, or implementing the Trump Administration\u2019s new public charge rule<\/a> from taking effect during the COVID-19 national health emergency. Responding to the injunction, the U.S. Citizenship and Immigration Services (\u201cUSCIS\u201d) stated that the 1999 public charge guidance<\/a> will control the admissibility of immigrants<\/a> on public charge grounds until the national health emergency ends.\n\nThe concept of the public charge has been a part of the American immigration system<\/a> since the late 1800s. It takes its origins from \u201cpoor laws<\/a>,\u201d which were designed to exclude foreign immigrants who would require public assistance. The modern understanding of what constitutes a public charge was formalized in 1999<\/a> to include immigrants who are \u201cprimarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.\u201d Traditionally<\/a>, this meant that immigrants could not take advantage of monetizable programs, such as welfare.\n\nHowever, in 2019 the Trump Administration revised the public charge rule<\/a> and expanded the rule\u2019s impact by barring programs permitted by the 1999 guidance. This lowered the public charge rule\u2019s threshold by imposing a \u201ctotality of the circumstances<\/a>\u201d test combined with \u201cheavily weighted factors<\/a>.\u201d Taken together, these factors create a steep presumption of inadmissibility against immigrants. While the DHS contends<\/a> that \u201ca heavily weighted negative factor can be outweighed by a heavily weighted positive factor or some combination of positive factors in the totality of the circumstances, some commentators go as far to say the Trump Administration\u2019s guidance creates a per se rule against admission.<\/a> Given that courts have blocked the rule from taking effect for a substantial period of time, it is difficult to know how this standard will function in practice.\n\nThe new public charge rule posed a threat to public health prior to the pandemic. The Administration\u2019s perceived animus towards immigrants\u2019 status forced many immigrants to withdraw from healthcare coverage for fear of implicating the rule\u2014whether the immigrant needed to withdraw or not<\/a>. For example, under the Trump Administration\u2019s rule, a public charge is a foreign national who receives one or more public benefits\u2014like Medicaid\u2014for more than 12 months in the aggregate within a 36-month period<\/a>. However, the USCIS\u2019s return to the 1999 public charge guidance<\/a> removes the barrier to accessing affordable healthcare because Medicaid is not considered for public charge purposes under 64 Fed. Reg. 101, 28, 693<\/a>.\n\nWhile the delayed enforcement of the rule represents a small win for immigrants, immigrants’ health remains in a precarious imbalance. In formulating its decision, the Southern District noted<\/a> that the President declared a state of national emergency. Despite the Trump Administration\u2019s declaration, the Administration has fought vigorously to impose its new public charge rule, with the dispute rising all the way to the Supreme Court<\/a> this last year. Thus, if President Trump ended the national emergency tomorrow, all immigrants that remain on Medicaid for a total of 12 months in the next 36 months could be deemed inadmissible.\n\nEven if the Administration were to keep the national emergency declaration in place, it is possible that a vaccine could put an end to the pandemic<\/a> before the year\u2019s end. Wide-spread disbursement of an effective vaccine could put a swift end to the pandemic and allow the DHS to reinstitute the new public charge rule. Under such a scenario, immigrants may lack access to affordable healthcare coverage, and, in turn, these people may fear that accepting a vaccine implicates their status.\n\nDenying or discouraging an immigrant\u2019s access to either a vaccine or treatment for COVID-19 represents a dangerous policy move. Currently, there are more than 13.5 million legally-present immigrants in the U.S.<\/a> who utilize Medicaid or the Affordable Care Act\u2019s healthcare exchanges\u2014representing a sizable portion of the U.S. population that could soon be without coverage. Assuming immigrants avoid vaccination or treatment for fear of implicating the public charge rule, \u201cherd immunity\u201d against COVID-19 would be difficult to achieve (if it is even possible). A population achieves herd immunity<\/a> when enough of the population is immune to a disease such that spread of the disease becomes unlikely. For instance, the Mayo Clinic estimates that 94% of the population<\/a> must be immune to measles to achieve herd immunity. For COVID-19, the percentage of people that would need immunity is disputed, but the Mayo Clinic states it would have to be at least 70% of the U.S. population<\/a>. Thus, by denying immigrants access to healthcare coverage\u2014either explicitly or constructively\u2014the spread of COVID-19 remains unchecked, which places everyone at risk.\n\nHowever, there exist additional protections beyond the Southern District\u2019s injunction that may protect immigrants from the new public charge rule\u2019s bite in the COVID-19 era. First and foremost, the DHS stated<\/a> that vaccinations are not considered public benefits for purposes of the public charge rule. Thus, if the federal government (or individual state governments) imposed a vaccination program, then immigrants could enroll in the program without worrying about implicating the public charge rule.\n\nThe rule\u2019s vaccination carveout necessarily provides a mechanism to slow\u2014and hopefully stop\u2014the spread of COVID-19. However, even functionally eradicated diseases can still impact low-income immigrant communities<\/a>, which leaves low-income immigrants at risk of contracting the disease without healthcare coverage after society returns to \u201cnormal.\u201d Lack of access<\/a> to affordable healthcare coverage deprives immigrants of the needed treatment to recover from COVID-19. However, the rule currently provides another carve out for \u201cemergency conditions<\/a>.\u201d The threshold for an emergency medical condition is not clearly defined. 42 U.S.C. \u00a7 1396b(v)(3)<\/a> defines an emergency condition as one that \u201ccan be reasonably expected to place the patient\u2019s health in serious jeopardy, cause serious impairment to bodily functions, or cause serious dysfunction.\u201d\n\nCertainly, common sense would dictate that a condition that shuts down one\u2019s respiratory function meets the emergency medical condition threshold. However, this might not be the case. In Nichols v. Estabrook<\/em><\/a>, an emergency-room physician examined a baby and diagnosed the baby with the flu. The emergency-room physician then told the parents<\/a> to take the baby to another hospital 15 minutes away, where a pediatrician would be waiting. The baby died shortly after arriving to the second hospital and the parents sued for damages<\/a>. In evaluating the Emergency Medical Treatment and Active Labor Act\u2019s<\/a> (\u201cEMTALA\u201d) legislative history, the court stated<\/a> that Congress passed EMTALA \u201cto provide some assurance that patients with emergency medical conditions will be examined and treated regardless of their financial resources.\u201d\n\nThough the court did not discuss whether the flu constituted an emergency medical condition, the court did find<\/a> that the emergency room physician did not violate the standards of conduct. One could argue that allowing the emergency room physician to turn the sick baby away the court created a higher standard for what constitutes an emergency medical condition. This is concerning given that hospitals are turning away patients<\/a> with COVID-19 to prioritize the sickest patients.\n\nHowever, despite the unclear outcome stated in Nichols<\/em>, at least one court<\/a> has defined an emergency medical condition as one where the \u201cpatient\u2019s physical well-being would likely be put in jeopardy or serious physical impairment or dysfunction would result.\u201d Given COVID-19\u2019s ability to cause respiratory distress, it would likely meet the criteria.\n\nWhile emergency medical condition lacks a clearly established standard, it appears that immigrants will have some layer of protection when the Southern District lifts the new rule\u2019s injunction. Though the aforementioned carveouts do not necessarily afford monetary certainty to low-income immigrants, the carveouts offer some level of certainty that treatment for COVID-19 will not otherwise render and immigrant inadmissible on public charge grounds.\n\n \n\n\"Kingsburyheadshot\"<\/a>About the Author: Andrew is a J.D. candidate for the class of 2021 at Cornell Law School. He graduated from Arizona State University in 2018. Andrew is a Managing Editor for the LII Supreme Court Bulletin, an Articles Editor for the Cornell Journal of Law and Public Policy, and an Associate for Cornell Law Review. Andrew is also a member of Cornell\u2019s Entrepreneurship Clinic, where he advises Cornell students and local entrepreneurs on different aspects of their business. He also serves as a Fund Manager for Big Red Venture, a student-ran venture capital fund.\n\nSuggested Citation: Andrew Kingsbury, The Public Charge and the Pandemic: What Happens When the Dust Settles?, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Aug. 24, 2020), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/the-public-charge-and-the-pandemic-what-happens-when-the-dust-settles\/<\/a>.","protected":false},"excerpt":{"rendered":"

(Source) On July 29th, the Southern District of New York (\u201cSouthern District\u201d) enjoined the Department of Homeland Security (\u201cDHS\u201d) from enforcing, applying, or implementing the Trump Administration\u2019s new public charge rule from taking effect during the COVID-19 national health emergency. Responding to the injunction, the U.S. Citizenship and Immigration Services (\u201cUSCIS\u201d) stated that the 1999…<\/p>\n","protected":false},"author":1,"featured_media":3139,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,15,16,17,18,19,21,25,27,28],"tags":[411,811,879,1258],"class_list":["post-3136","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-authors","category-blog-news","category-certified-review","category-feature","category-feature-img","category-spotters","category-policycontributor-blogs","category-recent-stories","category-student-blogs","tag-covid-19","tag-immigration","tag-jlpp","tag-public-charge-rule"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3136","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3136"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3136\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/3139"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3136"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=3136"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=3136"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}