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Immigrant Eligibility for Medicaid & other Public Benefits - Public Charge Changes BLOCKED July 29, 2020

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Posted: 06 Mar, 2009
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Updated: 30 Sep, 2020
by Amanda Gallipeau (Empire Justice Center)

Updated Immigrant Eligibility for Public Benefits in NYS Chart - 

by Empire Justice Center & NY Immigration Coalition - updated to include Public Charge 

Click HERE for chart

Public Charge - September 22 Ruling:

On September 11, the Second Circuit granted the Department of Justice’s motion to stay, pending appeal, the public charge injunction that had been in place during the COVID pandemic.  (Previously, on July 29, the Southern District of NY enjoined the public charge rule from taking effect during the COVID-19 emergency.  On August 11, the Second Circuit limited that injunction to states in the Second Circuit:  NY, CT, and VT.)  While there is a possibility that a panel of the Second Circuit will decide the appeal differently than the panel that decided to stay the injunction, USCIS announced that it will apply the new Public Charge rule to all applications and petitions postmarked (or submitted electronically) on or after February 24, 2020.

On July 29th, the United States District Court for the Southern District of New York (SDNY) issued  two preliminary injunctions blocking the Public Charge rule -

On August 4th, the United States Court of Appeals for the Second Circuit affirmed the earlier preliminary injunction issued in October 2019, blocking the DHS Public Charge rule in Make the Road NY et al. v. Cuccinelli and State of New York et al. v. US Dept. of Homeland Security. That injunction had been lifted by the U.S. Supreme Court on Jan. 27, 2020, allowing the public charge rule to go into effect on February 24, 2020, while the litigation proceeded.  Howover, the Second Circuit's decision limits the scope of the injunction to the Second Circuit, which includes New York, Connecticut, and Vermont, and affirms that the plaintiffs challenging the rule are likely to succeed on the merits of their claims.  

 For a status of all of the litigation and links to the briefs and orders click here.  

The  original injunction, now lifted by the Supreme Court, was granted by a court order in New York, reported  in  the New York Times, in a case brought by New York City, the States of  New York, Connecticut and Vermont, as well as in a related suit brought by the non-profit organizations Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, and Catholic Legal Immigration Network, Inc.   

 The  changes that went into effect on Feb. 24, 2020 but now are BARRED NATIONWIDE affected  new requests to  adjust status (requests for a green card) made after February 24, 2020 --   change the definition for deciding whether an immigrant  who receives Medicaid, SNAP, or other government benefits is considered a "public charge" -- which can result in denial of Lawful Permanent Resident status (green card),  denial of an extension of a non-immigrant visa,  deny a change  of non-immigrant status (e.g., from a student visa to an employment visa), or deny admission to the U.S. 

 Please see these fact sheets and web sites of State, local an national organizations for more information about these rules:


A few take aways - but see more in the fact sheets and websites above: 

  • Certain immigrants --such as refugees, asylees, survivors of domestic violence, Temporary Protected Status (TPS), and other protected groups --are not subject to public charge determinations and are not  affected by this proposed rule.  Public charge is also not a consideration when lawful permanent residents (green card holders) apply to become U.S. citizens.   See  NYS DOH Letter.

  • Before, only receipt of cash assistance (public assistance and SSI) and Medicaid for nursing home care were considered in determining who is likely to become a "public charge."   The  rule will now also include these new benefits, but only when received after the day the changes go into effect, which cannot be before Jan. 27, 2020

    • Supplemental Nutrition Assistance Program (SNAP);

    • Housing assistance, such as public housing or Section 8 

    • Medicaid (federally funded Medicaid only is considered for public charge, not State-funded Medicaid).

      •  exceptions for pregnant women  and

      • emergency Medicaid for undocumented immigrants -   The rule will not consider treatment of an emergency medical condition as constituting a public charge. 

      • Medicaid in NYS -  Because federal Medicaid has very restrictive eligibility for immigrants, many  immigrants who are not Lawful Permanent Residents but who reside in NYS with the knowledge and acquiescence of the government are considered PRUCOL and are eligible for state-funded health insurance - whether Medicaid or  the Essential Plan   See this article.   

        • The Essential Plan does not cover long-term care.   Seniors and people with disabilities who are PRUCOL and who need long-term care receive State-funded Medicaid instead.   Neither the Essential Plan or State Medicaid will count as being a Public Charge.

        • While  receipt of STATE-funded Medicaid alone will not be counted in the public charge determination, people age 60+ or who are disabled may still be denied based on the totality of their circumstances.  Under the new rules, having a serious health condition and no private insurance or means for support weighs heavily against an applicant.    See  New York State of Health Medicaid and Public Charge QAs (8/16/19).  

  • Medicaid, SNAP and other  benefits received by an immigrant's family members will not be considered (though since many people won't know that, there will be a chilling effect deterring many family members from receiving crucial health, income, housing and food assistance). 

  • The rule will not be retroactive. This means that benefits -- other than cash assistance or long-term care at government expense -- that are used before the rule is final and effective (whenever that is, will not be considered in the public charge determination.

  • The rules are having a "chilling effect" on people - making them afraid to access medical care with Medicaid.  But there are many exceptions to the rules.  You should consult an immigration expert to see how the rules affect you and your family. 

FOR HELP: 

Monday-Friday, from 9:00 a.m. to 8:00 p.m.   Saturday-Sunday, 9:00 a.m. to 5:00 p.m.

  • Medical providers can call : NYLAG’s LegalHealth hotline: 212.659.6188

  • Legal Services NYC intake line at 917-661-4500

  • New York Immigration Coalition  state-wide list of legal resources, https://www.nyic.org/providers/

*************************************************************************************

New York's Exchange Portal: A Gateway to Coverage for Immigrants, published 9/14/15, by Empire Justice Center reviews current rules on eligibility and describes how immigrants can access health care through NYSof Health portal, including for emergency care for those who are undocumented and not PRUCOL.   

The Community, Migrant & Homeless Health Center Handbook on an Immigrant Eligibility for Publicly Funded Health Care Benefits written by Empire Justice Center's senior staff attorney Barbara Weiner, in collaboration with CHCANYS (the Community Health Care Association of New York State) and the Immigrant Eligibility Coverage Workgroup, is available here. (LINK WILL BE UPDATED)

Click here for an interactive Marketplace eligibility questionnaire, designed to help enrollment assistors and consumers better assess their potential eligibility for Marketplace coverage based on immigration status, age and income. This questionnaire is not an official assessment of eligibility. To receive an official determination of eligibility contact the New York State of Health Marketplace at http://www.nystateofhealth.ny.gov or 1-855-355-5777

  • This tool was created jointly by the Children's Defense Fund - New York, the Empire Justice Center, and the Community Service Society through their work in the Health Care for All New York coalition.

Note - please see 2013 updates re PRUCOL status for people applying for or granted DACA status in this article.

Attached files
item NYS Dept. of Health 10-18-19 Letter to Local Commr's re Public Charge.pdf (696 kb) Download

Also read
item Medicaid for Immigrants who are Not Permanent Residents (Do Not have "Green Cards")-- PRUCOL and Temporary Non-Immigrant Eligibility
item Emergency Medicaid in New York State - Limited Medicaid Coverage for Undocumented Immigrants
item The Language Access Resource Center - Empire Justice Center
item Temporary Protected Status (TPS) and Public Health Insurance
item Empire Justice Center Reports on Immigrant Access to Health Care in NY's Health Insurance Exchange
item Know Your Rights: NYLAG Webinars on Medicare and Medicaid -

Also listed in
folder Medicaid -> Immigrant Access

External links
http://www.wnylc.com/health/client/images/icons/article_out.svg https://protectingimmigrantfamilies.org/
http://www.wnylc.com/health/client/images/icons/article_out.svg http://www.chcanys.org/clientuploads/__2019/HCS/NYSOH_Public_Charge_Assistor_QAs_Final_081619_.pdf
http://www.wnylc.com/health/client/images/icons/article_out.svg https://www.newamericans.ny.gov/Hotline/hotline.html
http://www.wnylc.com/health/client/images/icons/article_out.svg https://www.clasp.org/publications/fact-sheet/impact-trumps-public-charge-rule-select-states
http://www.wnylc.com/health/client/images/icons/article_out.svg https://www.legalaidnyc.org/notice/public-charge/

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