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Straight Talk for Seniors®: What Proposed Changes to the “Public Charge” Rule Could Mean for Senior Immigrants and Their Families

In October, the Department of Homeland Security (DHS) proposed several changes to the definition and determination of “public charge” both for immigrants wanting to legally enter the United States and those lawfully here who are seeking to remain or adjust their residency status. DHS accepted comments on the proposed changes until Dec. 10, 2018. We took a look at how older adult immigrants and their families would be affected by these changes.

You can read NCOA’s comment on the proposed change here.

What is the “public charge” rule?

Currently, when a legal immigrant applies to enter the U.S. or to extend or adjust their status, DHS reviews their application to determine if they are likely to become primarily dependent on government benefit programs – or a “public charge.” To make this determination, the government considers the person’s receipt of cash income assistance (such as Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF)) or institutional long-term care.

How would it change?

The proposed rule would expand the definition to include benefit programs where the monetary value of the benefit(s) is at least 15% of federal poverty level (FPL) ($1,815.60/annually for a single person), or if non-monetary, would be needed for at least one year. DHS would look for use of:

  • Medicare Part D Prescription Drug Low-Income Subsidy (also known as Extra Help)
  • Non-Institutional Medicaid (including home and community-based services (HCBS) and Medicare Savings Programs (MSPs))
  • Supplemental Nutrition Assistance Program (SNAP)
  • Housing assistance programs

As part of the public charge determination, the government would also consider:

  • Age: If the person is older than 61, this will be a negative factor.
  • Health: If the person’s health interferes with their ability to work or go to school, this will be a negative factor. Their ability to pay extensive medical bills will also be considered.
  • Family status: Larger and extended family households will be a negative factor because they tend to have a higher rate of benefit usage.
  • Assets, resources, and financial status: If a person has an income above 250% of FPL ($30,350/annually for a single person), that will be a positive factor. An income below 125% of FPL ($15,175/annually for a single person) will be a negative factor, depending on the corresponding assets and resources.
  • Skills and education: Lack of English language proficiency will be a negative factor.

These factors and the receipt of benefits would be considered in their totality. The weight of various factors will depend on the case. For example, a person’s age in relation to their employability would be a consideration and could weigh heavily against older adults. Additionally, even if someone has never received public assistance through these programs, a public charge determination allows for judgment based on a potential for future need.

If this proposed rule is finalized as written, DHS will not consider any public benefits received before the date of enactment for public charge determinations.

How could this affect older adults?

To achieve economic security and age well, older adults often utilize one or more of the benefit programs DHS is seeking to add to the public charge evaluation.

  • 1 in 3 Medicare beneficiaries with Part D coverage (12 million) rely on Extra Help to afford their premiums and high out-of-pocket prescription costs.
  • 1 in 5 Medicare beneficiaries (11.7 million) rely on Medicaid to afford their monthly Part B Medicare premiums or cost-sharing.
  • Nearly 12 million older adults and people with disabilities are enrolled in both Medicare and Medicaid. Beyond assistance with out-of-pocket costs, this population utilizes Medicaid for long-term care, which includes home and community-based services, as well as other services not covered by Medicare.
  • Nearly 4.5 million households with at least one person aged 60 and older receives SNAP.

The rule is likely to also increase confusion and fear among all legal immigrant families, resulting in a chilling effect, where older adults stop seeking benefit programs they need for fear of how receiving them may affect their families.

Impact on those who care for older adults

Caregivers also would be affected. Immigrants are of vital importance for older adults and their families relying on paid caregivers for long-term care needs, such as nursing and home care aides. Immigrants make up 25% of the direct care workforce. From 2006 to 2016, the number of immigrants providing direct care services grew 52%. However, these workers have a median annual income of $20,200, and as a result more than 40% receive some type of public benefit. For this reason, the proposed changes to the public charge rule could force workers to risk their chance to stay in the U.S. if they choose to continue their direct care work with older adults.

Read the full proposed rule, “Inadmissibility on Public Charge Grounds” in the Federal Register or submit comments here or read NCOA’s comments to the proposed rule.

Review our fact sheet, Older Adults & Public Benefits: Impact of Proposed Changes to the “Public Charge” Rule.


About Samantha Zenlea

Samantha Zenlea is the Senior Regulatory Policy Specialist at NCOA. She leads efforts to analyze and comment on regulatory and administrative rules from the Centers for Medicare and Medicaid Services and contributes to advocacy for issues in Medicare, Medicaid, access to benefits, and health promotion and disease prevention. Prior to joining NCOA, Zenlea worked as a Senior Research Analyst at NORC at the University of Chicago, focusing on Medicare, Medicaid, and health information technology for federal clients. She also worked at the Centers for Medicare and Medicaid Services in the Office of Financial Management. Zenlea holds an M.P.H from the University of Michigan, as well as a B.A. and B.S from the University of Maryland.