December 10, 2018
Chief, Regulatory Coordination Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
20 Massachusetts Avenue NW
Washington, DC 20529-2140
RE: DHS Docket No. USCIS-2010-0012, RIN 1615-AA22, Comments in Response to Proposed Rulemaking on Inadmissibility on Public Charge Grounds
Dear Ms. Deshommes:
The Texas Council for Developmental Disabilities (TCDD) is established by state and federal law and is governed by 27 board members, appointed by the Governor, 60% of whom are individuals with developmental disabilities or family members of individuals with disabilities. TCDD’s purpose in law is to encourage policy change so that people with disabilities have opportunities to be fully included in their communities and exercise control over their own lives. TCDD has a significant interest in state and federal agency rulemaking because each new rule, amendment, or repeal has the potential to affect the manner in which individuals with disabilities access and receive needed services, supports, and protections.
TCDD appreciates this opportunity to share its views on this potential policy change in public charge determinations. I write to express the Council’s strong opposition to the U.S. Department of Homeland Security’s proposed rule on public charge determinations. The proposed rule would cause major harm to people with disabilities and their families and communities; it’s unfair, discriminatory and bad policy for this country.
Federal law, including Section 504 of the Rehabilitation Act 1, prohibits discrimination on the basis of disability by federal agencies. Yet the proposed public charge rule will most assuredly discriminate against people with disabilities. Many people with disabilities will be screened out as likely to become a “public charge” under the proposed rule. While the preamble asserts that “the mere presence of a medical condition would not render an individual inadmissible” the reality, as discussed in detail below, is that the proposed rule would effectively exclude people with disabilities simply because they have a disability based on the proposed factors and how they are weighed.
Current law establishes the minimum factors DHS should consider in public charge determination: age; health; family status; assets, resources, and financial status; and education and skills. The proposed rule goes beyond the legislative framework and sets strict new standards, evidence DHS looks at when considering the factors, and specifies how these factors are weighed. The rule greatly expands the category of people who will be inadmissible as a “public charge” by considerably broadening the types of benefits included in the public charge test and dramatically lowering the threshold for being considered reliant on those benefits. The rule also significantly increases the consideration of an individual’s health and the negative impact that having a chronic health condition or disability has on being determined a public charge. These and other provisions in the proposed rule are based on an unreasonable new interpretation of what it means to be a “public charge” and will directly hurt and exclude people with disabilities. The proposed rule reflects a harmful, outdated and inaccurate prejudice that people with disabilities are not contributors to society – a perspective that Congress has explicitly rejected in multiple statutes, including the Americans with Disabilities Act.
Factors in the Proposed Rule That Will Particularly Harm People with Disabilities
Under the proposed rule, DHS will consider whether a person’s health makes them more or less likely to become a public charge, including whether they have been “diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with their ability to provide for and care for themselves, to attend school, or to work.” § 212.22(b)(2).
Whether someone’s health is considered likely to make them a public charge will be decided by DHS predicting outcomes of what a person can and will do based on their diagnosis and other information submitted to DHS, such as an attestation from their treating physician regarding whether a medical condition impacts the ability to work or go to school. The health factor with the proposed standards and related evidence explicitly singles out people with disabilities and chronic health conditions and perpetuates the false assumption that a medical diagnosis is solely determinative of an individual’s current abilities and future prospects
While health has always been a factor in the public charge test, the proposed rule codifies and unduly weights the specific standard for evaluating an individual’s health. The new standard includes any medical condition likely to require extensive medical treatment or institutionalization or that will interfere with a person’s ability to provide and care for him- or herself, to attend school, or to work. This category will include most people with disabilities – including people with intellectual and developmental disabilities, psychiatric disabilities, or physical disabilities who need personal care services. Thus, most people with disabilities will have this factor weigh against them in the public charge determination. In the reverse, the preamble states that absence of a diagnosis of such a condition would be a positive factor. Again, virtually no people with disabilities will be able to meet this positive factor. Moreover, the harmful impact of this new health standard is intensified against people with disabilities when combined with a person’s ability to pay for their health care costs (which is an element in the assets factor) and with the ability to pay for medical costs or have them covered under private insurance (which is a “heavily weighed negative factor”), both described below. In sum, this new interpretation of the health factor, particularly when combined with the other components related to health in the proposed rule, will in effect exclude people simply because they have a disability.
Assets, Resources, and Financial Status
In the definition of “public benefit” in proposed § 212.21(b) that is a key part of the assets, resources and financial status factor, the proposed rule dramatically expands the programs and benefits that will be considered in deciding who is a public charge. Many of the programs and benefits included in the new rule are ones that people with disabilities and their families often use, including Medicaid-funded community services. The proposed rule uses a much lower standard than the current rule’s “primarily dependent” on benefits standard. In addition, the complicated and confusing application of the multi-faceted formula in the public benefit definition will encourage more individuals and families to opt out of benefits they need and are eligible for out of fear.
Medicaid, as a part of the assets, resources, and financial status factor
People with disabilities will be particularly impacted by the broad inclusion of Medicaid-funded services as part of the public charge consideration. Medicaid is the largest insurer for long-term services and supports, mental health care and substance use disorder treatment in this country, filling the gaps left by other insurance plans that are not required to cover many of these services. Most home and community based services are not available through private insurance, and few people have the resources to pay for these costs out of pocket. The proposed rule would consider Medicaid-funded community services in the public charge (the current public charge rule only includes Medicaid-funded institutional long-term care).
Again, Medicaid is the only source for critical community living supports (like personal care services, nursing services, respite, intensive mental health services and employment supports) for people with disabilities; these community services aren’t generally available under private insurance. Many people with disabilities rely on Medicaid to live, work, attend school and participate in their communities.
Other benefits, as a part of the assets, resources, and financial status factor
People with disabilities will also be disproportionally impacted by the inclusion of other programs, including housing and food assistance, in the public charge test. Accessible, affordable housing is critical to helping many people with disabilities live in the community. Having a disability can raise expenses and make it harder for people with disabilities and their caregivers to work, which can strain other necessary items like having enough food. Moreover, almost one in three Medicare beneficiaries enrolled in Part D prescription drug coverage get “Extra Help” with their premiums and copays through the low-income subsidy. This benefit is only available to immigrant seniors who have worked for many years in the U.S. and earned coverage under Medicare. Overall, these are widespread programs that help keep people housed, fed and receiving needed health care – programs that serve as investments in social and individual well-being and future productivity. Immigrants and their families should not be punished for using, or even applying for, a relatively small amount of support from these benefits.
The “assets, resources, and financial status” factor also specifically looks at whether a person’s family can cover any likely medical costs of a person with a disability or health condition. § 212.22(b)(4)(B). In addition, it separately looks at whether a person with a disability or health condition has private health insurance or resources that would cover all medical costs related to the health condition or disability. § 212.22(b)(4)(I). Because private insurance does not cover many disability services and people on Medicaid must limit their financial resources to remain eligible, this factor would count against many people with disabilities.
Overall, people with disabilities in the U.S. live in poverty at a rate twice as high as people without disabilities.2 For this reason the gross income element of this factor is likely to have a disproportionately negative impact on people with disabilities and their families. People with disabilities in the U.S. are also more “asset poor,” in part due to economic disparities related to the higher costs associated with living with a disability, including costs for assistive technology, and the need for and expense of accessible housing and transportation.3 The proposed rule would use a legacy of social and economic disadvantage as the basis for further discrimination and exclusion.
Education and skills
Education and employment are areas where many people with disabilities often face significant disadvantages based on their disability. The rule acknowledges that working people with disabilities contribute significantly to the U.S. economy. This is an important reality. However, unemployment rates for people with disabilities in this country are still drastically higher than those for people without disabilities,4 and the disparity is even more dramatic internationally.5 Similarly, many people with disabilities around the world have been denied access to equal educational opportunities, putting them at a disadvantage with respect to this factor. In the U.S., disparities in education and educational barriers for people with a disability have been ongoing for generations, resulting in lower rates of high school completion.6 Great disparities also exist when comparing the attainment of higher degrees.7 In addition, some people with disabilities need supports to be able to work or attend school that are typically only available under Medicaid, which would be counted against them under the “assets, resources and financial status” factor discussed above. Thus, many people with disabilities will also be negatively impacted by the “education and skills” factor.
The evidence considered in the education and skills factor also includes a person’s proficiency in English. This factor adversely affects immigrants of color, and may also adversely impact the deaf community and people with hearing or speech disabilities, people who primarily communicate through assistive devices, people with less access to formal education and others.
The family status factor, along with the assets, resources, and financial status factor, could mean that a person’s disability would impact the public charge determination for other family members. Immigrants would be penalized for providing support for other individuals, such as a sibling with a disability.
The Heavily Weighed Factors Will Discriminate Against People with Disabilities
The proposed rule includes additional factors that weigh heavily toward a finding that an individual is likely to become a public charge. Several of these heavily weighed negative factors will apply to many people with disabilities, including that the person has a “medical condition that is likely to require extensive medical treatment or institutionalization” or will impact their ability to care for himself, attend school or work; that the person does not have private insurance or the resources to pay for medical costs related to their condition; or that the person received public benefits (including Medicaid). § 212.22(c)(1). This means that many people with disabilities are likely to be seen as a public charge and excluded. These heavily weighed negative factors amplify the impact these circumstances could have. And even though the proposed rule states that a person’s disability will not be the only basis for a public charge inadmissibility finding, the factors and heavily weighed negative factors make it clear it will be very difficult, if not impossible, for a person with a significant disability to avoid being considered a public charge. For example, a person with a disability who would need Medicaid funded community services (which are unavailable through private insurance) would be saddled with two heavily weighed negative factors.
The rule only proposes one heavily weighed positive factor – that the household has or will make at least 250% of the Federal Poverty Guidelines. § 212.22(c)(2). This means that low- and middle-income families will not have the benefit of a heavily weighed positive factor as part of their calculation to offset any negative factors. 8 Fewer people with disabilities and their families will have the benefit of this factor weighing in favor of their admissibility determination than for people without a disability.9
Finally, the proposed rule alsso allows for public charge bonds, which can overcome some negative factors in the totality of circumstances test. Some people who are initially refused based on public charge may be offered the opportunity to post a public charge bond so that they could still be admissible. Even where it’s offered, the minimum amount of a bond is $10,000, which means it would be beyond the means of most families. An even greater barrier, however, is that the proposed rule also says that, based on the agency’s discretion, the option of a public bond is unlikely to apply if a person has even one of the heavily weighed negative factors. § 213.1(b). For example, a person found to be a public charge based on their disability and the need to use Medicaid for services not covered by private insurance would probably be ineligible for the bond. This is another way that the proposed rule discriminates against people with disabilities.
The Proposed Rule is Bad for Public Health
The proposed rule also discourages the use of important public programs and benefits. Families may decide not to use critical public services they are eligible for out of fear of harming their immigration status. The proposed rule even identifies a number of possible bad outcomes. People may be less able to take their medications as prescribed. They will put off medical care, resulting in more emergency room visits, and increased disease in the U.S. This also leads to more uncompensated care, which strains the health care system. Overall, the rule would increase poverty and housing instability, reduce productivity and educational attainment, and drive up health care costs. The rule compounds obstacles faced by people with disabilities and their families, for example, health conditions may be made worse by a lack of food or a low-quality diet.10
The Proposed Rule Will Limit Independence and Community Integration
In addition, the proposed rule would have indirect effects on people with disabilities, as it could further shrink the number of available home care and other direct support workers – many of whom are immigrants who often rely on publicly-funded programs due to low wages – leading to a loss of independence and community integration for people with disabilities.11 An estimated one million immigrants work in direct care, making up a quarter of the direct care workforce.12 Nearly half of immigrant direct support workers live at or below 200% of the federal poverty level, and more than 40% rely on programs such as SNAP and Medicaid.13 With the changes in the proposed public charge rule, potential direct service workers could be prevented from coming to the U.S. in the first place, and without access to health care, nutritious food and housing, many direct support workers may be unable to afford to remain in the U.S. The fear of applying for or using the healthcare services for which they are eligible means that direct support workers will also forego the services, medications, and vaccinations that help them stay consistently healthy and reliable as critical employees. The ripple effect would exacerbate the existing shortage of direct support workers, leaving people with disabilities without access to the services critical to live and participate in the community.
The Proposed Changes are Unnecessary
Current immigration policy provides sufficient protection for the nation’s interests. There are already time limits and eligibility limits on public benefits, as the preamble notes.
The Department’s proposals are a drastic change from current policy. The proposed rule is discriminatory and inconsistent with fundamental American principles, including equal opportunity. It’s an unwelcome throwback to the historical isolation, fear, segregation and exclusion of people with disabilities.
The Council greatly appreciates your attention to these comments. Please do not hesitate to contact me with any questions about the remarks, or for additional information.
Scott M. Daigle
Public Policy Director
Texas Council for Developmental Disabilities
1. Section 504 of the Rehabilitation Act prohibits disability‐based discrimination in any program or activity of a federal executive branch agency, including DHS. 29 U.S.C. § 794(a).
2. Poverty among people with disabilities was at 20.9% in 2016, compared with 13.1% for people without disabilities that same year. The poverty percentage gap, or the difference between the percentages of those with without disabilities, has been between 7.4 and 8.3 percentage points over the 8 years from 2009 to 2016. L. Kraus et al., “2017 Disability Statistics Annual Report,” 2 (2018) at https://disabilitycompendium.org/sites/default/files/user-uploads/2017_AnnualReport_2017_FINAL.pdf.
3. Katherine McDonald et al., “Poverty Among Adults with Disabilities: Barriers to Promoting Asset Accumulation in Individual Development Accounts” (2010). Public Health, Food Studies, and Nutrition. at https://surface.syr.edu/nsd/.
4. See, e.g., U.S. Dep’t of Labor’s Bureau of Labor Statistics, “Persons with a Disability: Labor Force Characteristics ‐ 2017,” at: https://www.bls.gov/news.release/pdf/disabl.pdf
5. World Health Organization & The World Bank, “World Report on Disability” 235 ‐ 237 (2011) at http://www.who.int/disabilities/world_report/2011/report.pdf
6. American Psychological Association, “Disability & Socioeconomic Status,” at https://www.apa.org/pi/ses/resources/publications/disability.aspx
7. According to the 2015 Census, about 15.1 percent of the population age 25 and over with a disability have obtained a bachelor’s degree or higher, while 33 percent of individuals in the same age category with no disability have attained the same educational status (U.S. Census Bureau, 2015).
8. Kelly Whitener, “Administration Moves Forward with Proposed Public Charge Regulation; Comments Due in December” (Oct. 5, 2018) at https://ccf.georgetown.edu/2018/10/05/administration-moves-forward-with-proposed-public-charge-regulation-comments-due-in-december/
9. Results from the American Community Survey (Americans With Disabilities Act Participatory Action Research, 2016) reveal significant disparities in the median incomes for those with and without disabilities, suggesting that “many more people with disabilities and their families live in poverty than people without disabilities and their families, and may struggle to meet basic needs,” at http://centerondisability.org/ada_parc/utils/indicators.php?id=38
10. Steve Carlson et al., “SNAP Provides Needed Food Assistance to Millions of People with Disabilities” (Sept. 12, 2017) at: https://www.cbpp.org/research/food-assistance/snap-provides-needed-food-assistance-to-millions-of-people-with; and see, National Commission on Hunger, “Freedom from Hunger: An Achievable Goal for the United States of America,” (2015) at: http://www.aei.org/wp-content/uploads/2016/01/Hunger_Commission_Final_Report.pdf. (Research shows that food insecurity has negative effects on health and diet quality, and these effects may be greater for people with disabilities.)
11. Wendy Parmet & Elisabeth Ryan, “New Dangers For Immigrants And The Health Care System,” (April 20, 2018) at https://www.healthaffairs.org/do/10.1377/hblog20180419.892713/full/
12. Robert Espinoza, PHI, Immigrants and the Direct Care Workforce (June 20, 2017), at https://phinational.org/resource/immigrants-and-the-direct-care-workforce/