INS-proposed guidelines ease immigrants’ access to government-funded health care, other benefits

A court ruling and the release of long-awaited federal guidelines in late May broaden the availability of publicly funded health care coverage for immigrants.

Guidelines released May 25 by the Immigration and Naturalization Service clarify that receipt of services under Medicaid and the Children’s Health Insurance Program (CHIP) do not make an alien a "public charge" and therefore subject to deportation. The guidelines are particularly relevant for parents who have avoided enrolling eligible children in CHIP for fear it would make other, non-citizen family members a public charge.

"This makes all the difference to immigrant families," says Lourdes Rivera, a staff attorney with the National Health Lawyers’ Program (NHeLP) in Los Angeles. "People were staying away and staying away in droves because they were concerned about how accessing the program for their kids would affect other family members’ immigrant status," she says.

In issuing the guidelines, the Department of Justice said it recognizes and hopes to alleviate the "negative public health consequences generated by the existing confusion" over the application of the public charge exclusion.

"There was outreach and education going on with respect to trying to tell people what we knew," says Ms. Rivera, "but a lot of what we knew was, We’re not sure and here are the risks.’ Now, there’s something definite to tell people."

Specific benefits that may be received without triggering the public charge exclusion, as summarized from the proposed federal rule by NHeLP, are the following:

• Medicaid and other health insurance and health services (including public assistance for immunizations and testing and treatment of symptoms of communicable diseases);

• use of health clinics, prenatal care, etc., other than support for institutionalization for long-term care;


• nutrition programs, including food stamps, the Special Supple mental Nutrition Program for Women, Infants and Children, national school lunch and breakfast programs, and other supplementary and emergency food assistance programs.

Specifics of the guidelines are published in a May 26 INS notice of proposed rulemaking (NPRM). The INS instructed its regional directors on the same day that the definition of "public charge" in the NPRM will be in effect until a final rule is published.

HCFA’s Center for State and Medicaid Operations also has issued guidelines on how the INS notice applies to specific questions regarding Medicaid and CHIP. HCFA says the new guidelines do not alter previous directions regarding nursing home care, which suggest that relying on government funding for long-term institutionalization may make it difficult for someone to secure status as a permanent resident, i.e, obtain a "green card."

The court ruling in New York affects immigrants who are "persons residing under the color of law," or PRUCOLs. A Manhattan judge in late May said state law illegally withheld Medicaid benefits from immigrants who live in the United States with the knowledge or permission of immigration authorities, but who are not officially legal residents and do not face deportation.

Prior to the 1996 enactment of federal welfare reform through the Personal Responsibility and Work Opportunities Reconciliation Act (PRWORA), New York gave state-funded benefits to legal immigrants and PRUCOLs who were not eligible for federally funded Medicaid. After PRWORA, New York amended its law to eliminate state-funded medical assistance for such immigrants except for Medicaid recipients who, as of Aug. 4, 1997, were either in a nursing home or diagnosed with AIDS.

The effect of New York’s law, coupled with federal welfare reform, was to eliminate state-funded medical assistance for PRUCOLs and lawful permanent residents who entered the country after Aug. 22, 1996.

The New York law violates, in addition to equal protection clauses in the state and federal constitutions, a clause in the New York constitution that requires the state government to provide medical care to indigent residents.

Contact Ms. Rivera at (310) 204-6010. More information is available at the National Health Law Pro gram Web site: The notice of proposed rulemaking and the memorandum to INS regional directors are found at HCFA’s guidelines are found at