Manatt on Health: Medicaid Edition - Proposed Public Charge Regulation Could Have Significant Coverage Impact

by Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

The Department of Homeland Security (DHS) has released a long-anticipated proposed rule that would dramatically change the extent to which the use of public benefits—including Medicaid and the Medicare low-income drug subsidy—can impact certain immigrants’ legal status. Federal law already restricts immigrants' access to benefits, and this rule impacts immigrants legally in the country who are accessing benefits they are eligible to receive under the law. Immigrants seeking admission to the United States, extension of stay, change of status or adjustment of their status to become a lawful permanent resident (LPR, or green card holder) can be denied if they are found by DHS likely to become a “public charge,” or dependent on the government for financial support.

The structure of the rule gives DHS substantial discretion to assess whether someone is likely to become a public charge; that discretion, coupled with the complexity of the rule, is likely to generate confusion about who is impacted and what benefits are included, deterring immigrants from using needed benefits—including benefits that are not implicated by the rule. Family members of immigrants who are citizens may also be deterred from seeking or maintaining benefits. According to a newly released Manatt Health analysis, nationwide, 22.2 million noncitizens and a total of 41.1 million noncitizens and their family members currently living in the United States (12.7% of the total United States population) could potentially be impacted as a result of the proposed changes in public charge policy. Of citizen family members, more than half (10.7 million) are citizen children living in families with one or more noncitizen family members. While the rule is styled as an immigration regulation, its impact will ripple across the healthcare industry, states and localities.

This Manatt on Health: Medicaid Edition provides an overview of key changes in DHS’s “Inadmissibility on Public Charge Grounds” proposed rule and explores likely implications of the rule, were it to be finalized. Manatt Health also analyzed the rule for a Robert Wood Johnson Foundation State Health & Value Strategies webinar.

Key Proposed Changes

Under the Immigration and Nationality Act (INA), applicants for temporary or permanent visas, admission or adjustment of status to an LPR may be denied if they are determined likely to become a public charge.1 In 1999, DHS issued “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds” (Field Guidance) to define “public charge.”2 The Field Guidance defines a public charge as an immigrant who “has become or is likely to become primarily dependent on the government for subsistence.” If finalized, the proposed rule would, for the first time, codify in regulations a definition of “public charge” and significantly broaden the policy reflected in the statute and long-standing subregulatory guidance.

New Groups of Immigrants Subject to Public Charge. Consistent with the statute, the proposed regulation would impact individuals who are seeking to legally enter the United States or who are already in the country legally and are seeking to adjust their status to become an LPR (i.e., changing from a visa to a green card). The proposed rule also would expand the public charge determination to a new group of immigrants: individuals seeking an extension of stay or a change of status (e.g., extending a current visa or changing visa types such as from a student visa to an employment visa).

New Definition of “Public Charge.” Long-standing guidance directed that individuals may be considered likely to become a public charge if they are “primarily dependent” on public benefits. The proposed rule would change the definition of a public charge to an immigrant “who receives one or more public benefit.”3 The use of benefits is one factor among several used to make a public charge determination. The determination framework is described in more detail below.

New Public Benefits Included in Public Charge Determination. The proposed rule expands the scope of public benefits considered in a public charge determination to include an array of health, nutrition and housing benefits.4 For the first time, public charge determinations would consider coverage provided through Medicaid (other than benefits provided to treat an emergency medical condition, Medicaid benefits provided under the Individuals with Disabilities Education Act (IDEA), school-based Medicaid benefits and benefits provided to certain children of United States citizens whose citizenship status is pending).5 The Medicare Part D low-income subsidy (LIS) also is included in the proposed “public benefit” definition.6

The proposed rule does not include Marketplace subsidies or the Children’s Health Insurance Program (CHIP) as public benefits, although DHS seeks comment on whether CHIP should be included in the final rule. DHS notes that it is considering including CHIP because federal expenditures for CHIP are significant and, like Medicaid, it provides for basic living needs, and reliance on CHIP could indicate lack of self-sufficiency. Even if CHIP is not included, some states use CHIP funding to finance the cost of Medicaid children and some pregnant women. It is unclear how the proposal would treat individuals who use Medicaid in such states.

New Tests for Public Charge. The rule proposes a complex approach to assessing whether someone is a public charge; the approach is appropriately derived from statutory factors that have long guided public charge determinations, but it would vest DHS officials with a significant degree of discretion in administering the rules.7 The proposed rule maintains a long-standing “totality of the circumstances” analysis that considers a variety of factors—including age, health and financial status—when making a public charge determination, but it assigns significant negative weight to the use of public benefits in the assessment of whether or not an immigrant is likely to become a public charge. It also proposes to consider as negative elements in this analysis circumstances such as earnings under 125% of the Federal Poverty Level (FPL), having a health condition that affects the ability to work or care for oneself, a lack of credit history and having a large family.

Potential Impact

The Chilling Effect on Legal Immigrants and Their Families. As proposed, the new “public charge” definition would impact the immigration status and prospects of millions of immigrants who are eligible to use certain health and human services benefits that would now be considered when the government makes public charge determinations. The new definition of “public benefits,” the complexity of the proposed rule’s structure and the discretionary nature in which it can be applied will create a chilling effect, deterring noncitizens and their citizen family members’ use of public benefits, programs and services. Using data from the American Community Survey, Manatt Health estimates that this “potentially chilled population” could comprise as many as 22.2 million noncitizens and a total of 41.1 million noncitizens and their family members.

It will be difficult for individuals to determine whether and when they are at risk of hitting the monetary and durational thresholds for use of benefits outlined in the rule. The reality is that low-income working immigrants who utilize benefits enumerated in the rule will quickly meet the established thresholds and will fear doing so. Immigrants also are likely to experience confusion about which benefits will be considered as part of a public charge determination. Participation in Medicaid, CHIP and other health and human services benefits programs is likely to decline, leading to lost productivity, adverse health effects, increased medical expenses due to delayed healthcare, and even reduced productivity and educational attainment. Noncitizens and their families may be chilled whether or not they are eligible or seeking to adjust status because the rule is likely to generate confusion and fear of immigration consequences associated with use of any of public benefits, programs or services.

Healthcare Provider Impacts. As legal immigrants and their families forgo healthcare benefits for fear of jeopardizing their immigration status, healthcare providers will see a commensurate increase in uncompensated care. Safety net providers, including hospitals and community health centers, are likely to feel the effects most acutely. Overall, this policy shift could cause costs to rise for providers, particularly in states and communities with high numbers of lawfully present immigrants, as people affected by the change avoid preventive healthcare services or chronic care management. Although Marketplace subsidies are not included in the rule, immigrants could drop Marketplace coverage too as a result of the chilling effect, adding to uncompensated care volumes and potentially impacting the Marketplace risk pool in ways that could drive up costs for other consumers. DHS also points to other potential impacts in its analysis of the rule, including reduced revenues for pharmacies that provide prescriptions to participants in the Medicare Part D LIS program and for companies that manufacture medical supplies or pharmaceuticals.

Healthcare Workforce Implications. As proposed, DHS’s rule would disproportionately affect low-paid workers already in the country or seeking to enter. Nursing home and home health aides, for example, are often paid low wages and have few employer-provided benefits, both of which are factors that could be viewed negatively in a public charge determination. Making it more difficult for workers like these to enter or stay in the country could impact our healthcare system as well.

Potential Impacts on States and Localities. States and localities will bear the costs related to increases in uncompensated care and are also likely to face added costs for social services as some families increasingly depend on emergency food banks, shelters and other safety net resources rather than federally funded public programs. In addition to the loss of state Medicaid revenues, DHS also notes that grocery retailers participating in the Supplemental Nutrition Assistance Program (SNAP) and landlords participating in federally funded housing programs also could experience reduced revenues.

States and localities also could face costs associated with implementing the rules, including costs to notify program applicants about the consequences of using benefits and to update systems to better track benefit use and, potentially, share that information with DHS. State efforts over the past five years to streamline eligibility and enrollment processes for Medicaid and Marketplace tax credits (as required under the Affordable Care Act and implementing regulations) and to coordinate eligibility and enrollment across multiple benefit programs for seamless and continuous access to public benefits could now be problematic for immigrants seeking to minimize use of public benefits if they are enrolled in coverage that could count against them. States may incur costs related to reworking their Medicaid, human services and/or Marketplace IT systems and processes.

These and other issues will be important for DHS to consider as it assesses public comments and seeks to finalize the rule. The DHS proposed rule was published in the Federal Register on October 10; comments on the notice of proposed rulemaking (NPRM) are due no later than December 10.8

1. Immigration and Nationality Act (INA), 8 U.S.C. § 1182.

2. “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds” (Field Guidance), 64 Fed. Reg. 28689 (May 26, 1999).

3. Proposed 8 C.F.R. § 212.21(a).

4. Proposed 8 C.F.R. § 212.21(b).

5. Proposed 8 C.F.R. § 212.21(b)(2)(i).

6. Proposed 8 C.F.R. § 212.21(b)(2)(iii).

7. In addition to the factors, the rule also proposes that public charge analyses should consider the immigration status that the immigrant is seeking and the expected period of admission as it relates to the ability to support him- or herself throughout their stay (e.g., adjustment of status or temporary, nonimmigrant admission), as well as the sufficiency of any required affidavits of support.

8. Department of Homeland Security, “Inadmissibility on Public Charge Grounds,” 83 Fed. Reg. 51114 (October 10, 2018), available at


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Manatt, Phelps & Phillips, LLP | Attorney Advertising

Written by:

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.