Immigration Status, Public Benefits & Access to Care

Noncitizens make up about 7% percent of the US population. It’s not surprising that they’re more likely to be low-income and uninsured than citizens- in part because of opportunity limitations. In fact, 71% of undocumented adult noncitizens are uninsured.  By and large, many of them rely on Federally Qualified Health Centers for their primary care and other healthcare- in part because FQHCs have sliding fee scale service fees and serve immigrants regardless of their immigration status.

Medicaid generally limits eligibility for immigrants to qualified immigrants with refugee status or veterans and people lawfully present in the US for 5 years or more.  State Medicaid programs can elect to provide coverage to legally present immigrants before the 5-year waiting period ends (Arizona does not).

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (often referred to as PRWORA or welfare reform) is the federal law that created Medicaid’s “qualified immigrant” standard.

Other federal safety net programs like Temporary Assistance for Needy Families and the Supplemental Nutrition Assistance Program (food stamps) also apply the five-year waiting period for legally present immigrants.

States can get matching funds from CMS when they choose to provide Medicaid coverage to legally present immigrants who are children or pregnant women before the end of the 5-year waiting period.  33 states have elected to cover lawfully residing immigrant children, and 25 states cover legally present pregnant women (Arizona does not).

The Affordable Care Act made it possible for the legally present immigrants who are ineligible for Medicaid (due to being in the five-year waiting period) to qualify for commercial coverage and subsidies on the Federal health insurance marketplace.

Immigrants eligible for Medicaid or employer-sponsored insurance face several coverage and service barriers.  As I mentioned above, immigration officials consider the likelihood of individuals and families becoming a “public charge,” which can result in denied admission to the US or status as a lawful permanent resident.

Fear that using safety net services will mean that they’ll be considered a public charge contributes to some families of mixed immigration status avoiding use of services like TANF, Medicaid, SNAP etc.  Some eligible immigrants avoid services because they think family members will become involved in immigration enforcement actions.

Research findings by the Kaiser Family Foundation found that changes in healthcare use and decreased participation in Medicaid and the Children’s Health Insurance Program because of this immigration policy.

Anyway, it’s a complicated system but I hope this makes it a little clearer

US DHS Proposed Regulations Chill Programs that Address Social Determinants

Last Saturday the US Department of Homeland Security Secretary Kirstjen Nielsen proposed new rules that (when adopted) will consider a much wider range of public benefits when they evaluate applications for an immigration change of status or extension of stay request.  

DHS already uses information about whether applicants for legal permanent residency receive Temporary Assistance for Needy Families and Supplemental Security Income (SSI) when they evaluate applications.  After these new rules are adopted, they’ll also consider whether applicants receive Medicaid (AHCCCS), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (food stamps), and Section 8 Housing program.  Once adopted, applicants that receive any of these benefits will be far less likely to be approved for a status change or stay extension.  I didn’t see any exemptions for children- so presumably benefits used by any noncitizen family member including kids would count.

Here are some take-aways from the draft: 

  • This is an issue of legal immigration- unauthorized migrants are largely ineligible for public assistance;

  • The use of public benefits by citizen children would not be considered a public charge;

  • This does not directly impact green card holders (the public charge test is not applied to green card holders applying for citizenship);

  • The proposed rule is not retroactive – meaning the public benefits received before the rule is final will not be counted as a public charge; and 

  • The proposed rules would not apply to refugees because existing statute prevents DHS from using the criteria for refugees.

A few months ago, DHS issued a discussion draft of the rule change that would have also included programs like Women Infant and Children (WIC) program, school lunch programs, subsidized marketplace health insurance and even participation in the Vaccines for Children program.

Even though the new draft doesn’t include vaccinations (VFC), WIC and marketplace insurance- many families will believe that the regulations do include these benefits and will elect not to use these important safety net benefits- as doing so will risk their immigration status.  As a result, families will have a more difficult time improving the health status of their families.  

The proposed new rules are 447 pages long- but a key place to look are pages 94-100 (that’s where the outline the new list of benefits that they intend to include).  The official proposal will be published in the Federal Register in a few weeks.  Once it’s officially published, the public will be able to comment on the proposed rule for 60 days.  The official version in the Federal Register will contain information about how to submit comments. I’ll keep my eye out for that.

History of Considering Public Benefits

The term “public charge” as it relates to admitting immigrants has a long history in immigration law, appearing at least as far back as the Immigration Act of 1882.  In the 1800s and early 1900s “public charge: was the most common ground for refusing admission at U.S. 

In 1999, the INS (DHS didn’t exist yet) issued Rules to “address the public’s concerns about immigrant fears of accepting public benefits for which they remained eligible, specifically medical care, children’s immunizations, basic nutrition and treatment of medical conditions that may jeopardize public health.” Here’s that final Rule from 1999, which didn’t include Medicaid our housing benefits in the public charge definition.

ADHS Threatens to Revoke SW Key Shelter Licenses

Results Bring into Question Arizona’s Regulatory Oversight Statutes

Some of the kids that have been separated from their parents by the federal government have been and are being cared for at places run by an organization named Southwest Key. There are 13 such facilities in AZ.  SW Key is contracted by the federal government to provide these services and the facilities are licensed by the ADHS. They’re classified as Child Behavioral Health Facilities. 

Here’s the public health policy rub- even though they’re licensed by the ADHS, the Agency doesn’t conduct routine unannounced inspections at these facilities because they’re accredited by the Council on Accreditation, and Arizona law says that when a facility like this is accredited by “an appropriate independent body”, the ADHS shall accept the accreditation in lieu of a routine agency inspection. Specifically, ARS 36-424 (B) states that: “The (ADHS) director shall accept proof that a health care institution is an accredited health care institution in lieu of all compliance inspections required by this chapter if the director receives a copy of the institution’s accreditation report for the licensure period”.

The ADHS still has an obligation to investigate complaints at these facilities because ARS 36-424 (C) says that: “On a determination by the director that there is reasonable cause to believe a health care institution is not adhering to the licensing requirements of this chapter… (the ADHS) may enter on and into the premises…  (to) determine the state of compliance with this chapter, the rules adopted pursuant to this chapter and local fire ordinances or rules.”

A few weeks ago, the ADHS did some on site investigations of the facilities (under the ARS 36-424 (C) provision) and presented SW Key with a list of deficiencies to correct (including better documentation of employee background checks).  SW Key’s response appears to have been wholly inadequate.  In a strongly worded letter, the ADHS let all 13 licensees know that the Department is beginning license revocation procedures. 

SW Key will likely now take their deficiencies seriously (including the requirement to document background checks) and avoid revocation…  but this incident demonstrates (to me) that the statutory framework that allows applicants to submit 3rd party accreditation documents instead of being subjected to an unannounced inspection by the regulatory agency (ADHS) provides inadequate protection when vulnerable children are involved.

Perhaps there will be a bipartisan plan next legislative session to update the regulatory framework for facilities that provide services to vulnerable kids.

You can view the status of these facilities at www.azcarecheck.com and search for the words Southwest Key.  You’d be able to see the results of any complaint investigations or enforcement actions against these facilities- but not the backup accreditation documents from the Council on Accreditation.

Kids Care Included in the AHCCCS Budget Request

Good news.  AHCCCS’ 2020 budget request includes a general fund request of $7.9 million for KidsCare. The request was made under the assumption that the KidsCare trigger law will be amended this coming legislative session, preventing a freeze to CHIP enrollment.

There’s a trigger in state law that automatically freezes the Arizona KidsCare program if FMAP (the federal contribution) drops below 100%.  Under current federal law, the match rate is scheduled to go down to about 90% (9 federal dollars for every state dollar) on October 1, 2019.  So, if the current law isn’t changed during this next legislative session then we’ll likely have an enrollment freeze of the Kids Care program again this time next year.

The fact that AHCCCS included the $7.9M in state matching funds in the budget is encouraging, but the budget request isn’t enough to solve the problem- the legislature would need to change the statute and appropriate the funds to prevent an enrollment freeze.

Kids Care is run by AHCCCS and currently covers about 30,500 kids with a pretty good set of benefits and reasonable premiums.  It’s only available for kids in families that don’t qualify for regular Medicaid and who live in a family that makes under 200% of poverty.

Kids Care & ACA Advocacy

Election season is upon us and KidsCare and healthcare generally are key issues we want candidates for state office to weigh in on.  The Children’s Action Alliance has a helpful election’s page up and running now!  On it you can link to it to point the communities your organization serves to where they can contact candidates, see where candidates stand on issues, and register to vote. CAA is also launching a digital ads campaign around the key questions for candidates today.

Here’s is a fact sheet from Families USA explaining what’s at stake for people with pre-existing conditions in Arizona. The issue is a bit complicated to understand, but here goes for anyone that’s interested. Currently, there is a lawsuit, Texas v Azar, making its way through the courts that challenges the ACA as unconstitutional. 

Arizona Attorney General Mark Brnovich has signed Arizona on as a plaintiff state. If the lawsuit is successful, the protections for people with pre-existing conditions, along with other parts of the ACA, will be repealed.  

We don’t know the timetable on a final court decision, but we do know that, if the lawsuit is successful, Arizona’s law is set up so that these protections will essentially be repealed simultaneously in state statute.

FDA Steps Up Tobacco Control (A Bit)

Last week the FDA Commissioner called out the manufacturers of electronic cigarettes for their clear efforts to market to teenagers and put them on notice that additional regulations could be on the way.  You probably heard about this in the media this week.  When I went to the FDA website to get the details, I discovered that the media had overstated FDA’s intervention commitments.

Apparently, the FDA is at least considering removing certain flavored e-cigarettes from the market and shortening the time to market review for most cigarettes now being sold.  At a press conference last week, he acknowledged that his agency has failed to recognize the extent of the problem.  Here’s a direct quote from him.  

The quote did strike me as unusual from a member of this administration for its candor:  “We didn’t predict what I now believe is an epidemic of e-cigarette use among teenagers, and today we can see that this epidemic of addiction was emerging when we first announced our plan last summer. Hindsight, and the data now available to us, reveal these trends. And the impact is clearly apparent to the FDA.”

The FDA  issued more than 1,300 warning letters and civil money penalty complaints to retailers who illegally sold JUUL and other e-cigarette products to minors during a nationwide.  Last week’s action also included a request to 5 e-cigarette manufacturers to put forward plans to immediately and substantially reverse these trends toward marketing to teens or face a potential decision “to reconsider extending the compliance dates for submission of premarket applications”.

At least it’s a start.

Senate Passes Budget Including Health Agencies

Yesterday the US Senate passed the FY19 Defense and Labor, Health and Human Services and Education appropriations bill.  It would provide funding for health agencies for FFY19.  The bill contains a continuing resolution through December 7, 2018 in case the House doesn’t take action on the bill in short order. Here’s a summary:

CDC: $7.9B which is an increase of $126 million from FY18. The bill creates a $50M infectious disease rapid response fund (but the funds only become available for use in the event of a public health emergency). The bill includes $10M to continue efforts to track children and families affected by the Zika virus and $5M to address infectious diseases related to the opioid crisis. 

HRSA: $6.8B, a $107M increase from FY18. This funding includes a $26M increase for the Title V Maternal and Child Health block grant and a $12M increase for the Healthy Start program. 

SAMHSA: $5.7B, which is a $584M increase from FY18.  Sadly, the legislation maintains a prohibition on federal funds for the purchase of syringes or sterile needles but allows communities with rapid increases in cases of HIV and hepatitis to access federal funds for other stuff like substance use counseling and treatment referrals. The bill also includes $1.5B for the state opioid response grants.

The bill doesn’t include the bad policy riders that were in previous versions that would have eliminated funding for important reproductive health services (Title X).

You can read the bill’s text here, the committee report here, and a summary here.

Leveraging State Policy to Reduce Maternal Mortality

The US has the highest maternal mortality rate of any developed country.  Sadly, it’s getting worse each year.  About 800 American women die and 65,000 almost die during pregnancy or childbirth.

Black women die from pregnancy-related causes at three to four times the rate of white women, even after controlling for social determinants. Women in rural areas also have higher maternal mortality rates than urban women.  Here’s a super-interesting story that highlights some of the issues in an easy to read way.

Fortunately, there are public health policy leverage points that can make a difference: state health departments and Medicaid agencies.

Medicaid finances over half of all births each year in 25 states including Arizona.   All states provide Medicaid coverage for women with incomes up to 133% of poverty during pregnancy and for 60 days after delivery.  But- the scope of services covered and coverage after delivery vary between states.  As a result, some women lose coverage or Medicaid eligibility after that 60-day period (mostly in states without Medicaid expansion).

In states (like AZ, which expanded Medicaid), women have more opportunities to achieve better preconception health because they’re more likely to be able to access contraception and plan their pregnancies, receive primary care services to manage chronic conditions prior to and between pregnancies, and access prenatal and perinatal care once pregnant.

Evidence-based policy making is the key.  29 states including Arizona, have committees that review maternal deaths and make public policy recommendations.  Back in 2011, Arizona passed, and Governor Brewer signed a bill that amended our child fatality review statutes by adding reviews of maternal deaths. This change charged our existing Child Fatality State Teams to review maternal deaths (called the Maternal Mortality Review Subcommittee) and make policy recommendations. The primary goal for the Team is to identify preventive factors and make recommendations for systems change.  

One of the best parts of these review boards is that it is not just public health, but it’s other agencies and community docs and corrections and academics all coming together to review these deaths.  Here are some of the recommendations from the most recent report:

  • All pregnant women must have access to prenatal care;

  • Promote public awareness of the importance of healthy behaviors and women’s overall health prior to pregnancy;

  • Women should always wear proper restraints when riding in cars;

  • Encourage maternal care professionals, organizations, and health facilities to update their standards of practice and care to include all recommended guidelines for the prevention of medical complications;

  • Maternal health-care systems require strengthened, prepared, and educated communities to improve deliveries in health facilities, particularly in rural areas;

  • Increase and streamline access to behavioral health services statewide, including training and education for advanced practice nurses in behavioral health services.

  • Support and implement community suicide prevention and awareness programs, such as Mental Health First Aid;

  • Health care providers should screen frequently for perinatal depression and domestic violence;

  • Institute and follow recommended California Maternal Quality Care Collaborative guidelines (www.cmqcc.org) for the timely transfer and transport to a higher-level care facility for any complications using regional transport services; and 

  • Educate providers on the availability of maternal postpartum resources such as home visiting programs.

  • Some states have gone further.  For example, the South Carolina’s Medicaid agency formed the South Carolina Birth Outcomes Initiative to advance reductions in early elective deliveries; incentivize Screening Brief Intervention and Referral to Treatment; promote long-acting reversible contraception; and support vaginal births. 

One outcome of the SC initiative was to reimburse for long-acting birth control (LARC) devices provided in a hospital setting. 

Fortunately, Arizona has also included LARC reimbursement in a hospital setting post-partum.  This is an important policy intervention because LARC provides women with a long-acting and reversible option, so they can better plan future pregnancies – improving opportunities for preconception health, which is a key to improving health outcomes.

US Senate Proposes Opioid Crisis Response Act

Last week the US Senate released the Opioid Crisis Response Act of 2018, a bipartisan package to address the opioid epidemic. The Act authorizes funding to expand prevention, research, treatment, and recovery programs- but even if it passes as-is, it would still need to go through the actual appropriations process.

The Senate is expected to vote on the Bill soon without the opportunity for amendments and it’s expected to be approved on a broad bipartisan basis (much like the Arizona Opioid Epidemic Act was). But, after that, it’s unclear whether the House will vote on this version or the Bill or move to conference the Opioid Crisis Response Act with the recently House-approved “SUPPORT for Patients and Communities Act (H.R.6)”.  Here’s a summary of what’s in the bill as it sits today:

Medicaid 

  • Clarifies flexibilities around Medicaid’s “Institutions for Mental Disease” (IMD) exclusion where in some cases managed care plans may provide alternative services in lieu of other services that are not permitted under the state plan. 

  • Modifies IMD exclusion for pregnant and postpartum women to address a subset of the prohibition on Medicaid from paying for otherwise coverable services for certain adults while in institutions for mental disease. 

  • Codifies regulations permitting managed care plans to cover treatment in an IMD facility for a certain number of days in a month in lieu of other types of services.

  • Clarifies states’ ability under Medicaid to provide care for infants with neonatal abstinence syndrome (NAS) in residential pediatric recovery centers.

  • Directs CMS to issue guidance to states on options for providing services via telehealth that address substance use disorders under Medicaid.

  • Directs CMS to issue guidance on states’ options for treating and managing pain through non-opioid pain treatment and management options.

  • Clarifies states’ ability to access and share data from prescription drug monitoring program databases consistent with the parameters established in state law.

  • Directs HHS to provide technical assistance to states to develop and coordinate housing-related supports and services under Medicaid, either through state plans or waivers, and care coordination services for Medicaid enrollees with substance use disorders. 

Prevention

  • Authorizes CDC’s work to combat the opioid crisis through the collection, analysis, and dissemination of data, including through grants for states, localities, and tribes.

  • Authorizes funding through CDC from FY19 – FY24 for states to improve their prescription drug monitoring programs and implement other evidence-based strategies.

  • Authorizes funding from FY19 – FY21 for CDC to support states’ efforts to collect and report data on adverse childhood experiences through existing public health surveys.

  • Authorizes a HHS grant program through 2026 to allow states to develop, maintain, or improve prescription drug monitoring programs and improve their with other states and with other health information technology.

  • Authorizes data collection and analysis through 2023 on neonatal abstinence syndrome or other outcomes related to prenatal substance abuse and misuse, including prenatal opioid abuse and misuse. 

  • Creates an interagency task force to make recommendations regarding best practices to identify, prevent, and mitigate the effects of trauma on infants, children, youth, and their families.

 

Treatment and Recovery

  • Allows physicians who have recently graduated in good standing from medical schools to prescribe medication-assisted treatment (MAT).

  • Authorizes a grant program from FY19-FY23 to support development of curriculum that will help healthcare practitioners obtain a waiver to prescribe MAT.

  • Codifies the ability of qualified physicians to prescribe MAT for up to 275 patients if the practitioner meets certain requirements. 

  • Authorizes a grant program from FY19 – FY23 through SAMHSA for entities to establish or operate comprehensive opioid recovery centers that serve as a resource for the community.

  • Requires HHS to issue best practices for emergency treatment of known or suspected drug overdose, use of recovery coaches after a non-fatal overdose, coordination and continuation of care, and treatment after an overdose and provision of overdose reversal medication as appropriate.

  • Requires HHS to provide technical assistance to hospitals and other acute care settings on alternatives to opioids for pain management and authorizes a grant program to support hospitals and other acute care settings that manage pain with alternatives to opioids. 

Some of these policy measures were also recommended in the ADHS’ set of federal policy recommendations in their 2017 report.  Sadly, nothing in here directs HHS to drop its policy of not funding syringe access but all in all this Senate bill looks like it’s pretty good public health policy.  Nice to see.

Call to Action: Labor HHS Education Bill Cuts to Family Planning

Call to Action: Labor-HHS-Education Appropriations Bill

For the first time in more than 20 years, Congress is on track to pass a Labor-HHS-Education spending bill before the end of the fiscal year. Last week, the House agreed to move to conference with the Senate to work out the differences between each chamber’s version of the  bill. The bills contains a number of bad funding cuts.

The House version eliminates funding for the Title X family planning program and the HHS Teen Pregnancy Prevention Program. I can’t tell whether the Senate version does the same or not.  The House bill also cuts all funding for the CDC’s Climate and Health program and once again fails to fund CDC research into firearm morbidity and mortality prevention. The bill also weakens the Affordable Care Act by blocking funds for implementing the law. 

Congress only has a few legislative days left to finalize the Labor-HHS-Education spending bill before the end of the fiscal year. If they don’t pass something they’ll probably pass a continuing resolution to keep key public health agencies operating (actually- not a bad outcome honestly). 

Now is the time to Speak for Public Health! You can use this link to Contact your members of Congress and ask them to support robust funding for key public health agencies and programs, and urge them to reject any controversial policy riders that would threaten public health.

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