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December 10, 2018

Submitted via

Samantha Deshommes, 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: Inadmissibility on Public Charge Grounds

The Center for Medicare Advocacy (Center) writes in response to the Department of Homeland Security’s (DHS, or the Department) Notice of Proposed Rulemaking (NPRM or proposed rule) to express our strong opposition to the changes regarding "public charge,” published in the Federal Register on October 10, 2018.

The Center’s mission is to advance access to comprehensive Medicare coverage and quality health care for older people and people with disabilities by providing exceptional legal analysis, education, and advocacy. Established in 1986, we are a national nonprofit, nonpartisan law organization that provides education, advocacy and legal assistance to help older people and people with disabilities obtain access to Medicare and quality health care. Our staff of attorneys, advocates, nurses, and technical experts have unique expertise in dealing with underserved and vulnerable populations. Our work includes: representing thousands of individuals in appeals of Medicare denials; responding to approximately 7000 telephone and email inquiries each year; producing a wide array of electronic and hard copy educational materials; advocating in administrative, judicial, and legislative forums; pursuing Medicare coverage for individuals and for dually eligible beneficiaries (individuals who are eligible for both Medicare and Medicaid); and providing legal training and support nationwide as well as for Connecticut's state health insurance and assistance (SHIP) program, known in Connecticut as CHOICES. We draw upon this experience in providing these comments.

General Comments

The proposed rule would cause serious harm to older immigrants and their families, localities, states, and health care providers and facilities, and DHS provides no justification for why changes are needed.  We urge that the rule be withdrawn in its entirety, and that long-standing principles guiding immigration policy remain in effect. Simply put, this proposed rule would create hardships for certain immigrants seeking permanent residency (green cards) in the U.S. This “public charge” proposed rule would also place additional barriers in the way of immigrants seeking to enter the country. Currently, in keeping with longstanding immigration policy, to be considered a “public charge” one must be likely to become primarily dependent on the government to meet basic needs. As it now stands, receiving government-issued financial assistance benefits such as TANF and SSI, or long-term care benefits through Medicaid, may cause someone to be deemed a public charge and therefore denied a green card or visa. This proposed rule – if finalized – will greatly expand the scope of benefits that will be considered in the public charge test. Benefits such as the low-income subsidy (“Extra Help”) for Medicare’s Part D drug benefit, Supplemental Nutrition Assistance (SNAP), non-emergency Medicaid, and Section 8 and other forms of housing assistance would be counted. Older adults and their families rely these programs on to stay healthy and independent in their communities for as long as possible.

The proposed regulation prioritizes wealth over all other factors. It not only puts individuals who rely on these programs at risk, it would also adversely affects families who have been waiting years to be reunited. The Center for Medicare Advocacy is proud to be one of the thousands of organizations that signed on to a statement in opposition to the proposed public charge rule.

The proposed rule would have adverse effects on the health and well-being of older people.


Medicare is a lifeline for 60 million older adults and individuals with disabilities.  This includes immigrant seniors who have worked for many years in the U.S. and earned this benefit. Medicare provides coverage for, among other things, hospital and doctors visits, and prescription drugs.  Medicare has grown into the popular community program it is today because it provides families with peace of mind. Without Medicare, many families would be unable to afford health care, doctor visits, or obtain their necessary prescription drugs. Yet many Medicare beneficiaries must rely on other programs to help them afford out-of-pocket costs.

Financial Challenges of Medicare Beneficiaries

Medicare beneficiaries, by and large, are not wealthy. As noted by the Kaiser Family Foundation (KFF), “[w]hile a small share of the Medicare population lives on relatively high incomes, most are of modest means, with half of people on Medicare living on less than $26,200 and one quarter living on less than $15,250 in 2016.  The typical beneficiary has some savings and home equity, but the range of asset values among beneficiaries is wide and varies greatly across demographic characteristics.”[1] Some of this demographic variation among Medicare beneficiaries is stark: “Median per capita income was substantially higher for white beneficiaries ($30,050) than for black beneficiaries ($17,350) or Hispanic beneficiaries ($13,650).”[2]

Among the many Medicare beneficiaries who have modest incomes, there is a significant percentage of older adults living in poverty.  Also noted by KFF,

The U.S. Census Bureau reports two different measures of poverty: the official poverty measure and the Supplemental Poverty Measure (SPM). In 2017, the threshold for poverty under the official measure was $11,756 for an individual age 65 or older. Unlike the official measure, the SPM poverty thresholds vary by geographic area and homeownership status, and the SPM reflects financial resources and liabilities, including taxes, the value of in-kind benefits (e.g., food stamps), and out-of-pocket medical spending.[3]

Accordingly, “[u]nder the official poverty measure, 4.7 million adults ages 65 and older lived in poverty in 2017 (9.2%), but that number increases to 7.2 million (14.1%) based on the Supplemental Poverty Measure.”[4]  Poverty also varies by demographics: “The poverty rate among people ages 65 and older increases with age and is higher for women, blacks and Hispanics, and people in relatively poor health, under both the official poverty measure and the SPM.”[5]

As beloved as the Medicare program is to many of its beneficiaries, it is neither free nor comprehensive, and has premiums, cost-sharing requirements and gaps in what is covered.  As noted by KFF, these expenses and uncovered services, “combined with relatively low incomes among the Medicare population, can result in beneficiaries devoting a substantial share of their total household spending to health care costs.”[6] 

In 2016, health expenses accounted for 14 percent of Medicare household spending which is, on average, more than double that of non-Medicare households (6%).[7]  The burden of health expenses is not shared proportionately across income ranges: according to KFF, “[n]ear-poor and middle-income Medicare households spent a larger share of their total household spending on health-related expenses than both lower- and higher-income Medicare households in 2016.”[8]

The outlook for Medicare beneficiaries’ income and assets is not projected to improve greatly in the future.  According to KFF,

Looking to the future, the income, assets and home equity values of Medicare beneficiaries overall are projected to be somewhat greater in 2035 than in 2016 after adjusting for inflation; yet, similar to what has been seen over the past six years, much of the growth is projected to be realized among those with relatively high incomes and assets.[9] 

In short, Medicare beneficiaries, on the whole, have limited resources, and health care-related expenses take a significant toll on their income and assets.  In order to make Medicare more affordable, many people turn to programs that can help them meet some of these expenses.  Unfortunately, as discussed below, this DHS proposal targets some of these very programs.

Medicare-Related Programs Affected by Proposed Rule

The following section discusses the essential Medicare-related programs that would be considered in making a public charge determination under this proposal: 

  • Part D prescription drug Low-Income Subsidy (LIS);
  • Medicare Savings Programs (MSPs) that provide assistance with premiums and cost-sharing for qualifying individuals (called “partial dual eligibles”); and
  • Medicaid – as it relates to individuals who are fully dually eligible for Medicare and Medicaid.

Part D Low-Income Subsidy

Medicare Part D is a program through which Medicare beneficiaries can obtain coverage for prescription drugs.  The Part D Low Income Subsidy ("LIS"), also known as "Extra Help," is administered by the Social Security Administration (SSA) and helps qualified individuals pay their Part D expenses, including monthly premiums, co-pays and co-insurance.[10]  More than 12 million Part D enrollees (29%, or almost 1 in 3) receive the Part D LIS.[11]

Some people automatically qualify for the LIS and do not have to apply for the program, regardless of their income or asset levels. This "deemed" group includes:

  • Full dual eligibles (people on Medicare and full Medicaid);
  • Partial duals (people on a Medicare Savings Program: QMB, SLMB and QI – discussed further below); and
  • Supplemental Security Income (SSI) recipients who have Medicare but not Medicaid.

Other individuals (the "undeemed") may qualify if their income and assets are within LIS program limits.

There are also "full subsidies" and "partial subsidies." A full subsidy means the monthly Part D premium is paid in full if the individual enrolls in a "benchmark" plan. A benchmark plan is a PDP that offers basic (rather than enhanced) coverage and has a premium below the monthly regional benchmark threshold.  A partial subsidy means the individual’s premium obligation will be calculated on a sliding scale. Both full and partial subsidies offer cost-sharing assistance for the part D deductible, low co-pays for drugs, coverage during the coverage gap (or “Donut Hole” which will be fully phased out by 2020), and reduced co-pays for drugs during the catastrophic coverage phase.

Many people would not be able to afford their prescription drugs without access to the LIS.  Deterring individuals from seeking assistance through the LIS – by virtue of its inclusion in making a public charge determination – will create an added and needless barrier to care for such individuals.

Medicare & Medicaid – Overview of Dual Eligibles

In addition to assistance through the Part D LIS, qualifying individuals can obtain additional coverage through the Medicaid program, including the Medicare Savings Programs (MSPs), which provide assistance with Medicare premiums and cost-sharing.

Medicaid is a federal and state-run program that provides health coverage for low-income individuals.  According to the Kaiser Family Foundation, in 2016, Medicaid:  

was a source of supplemental coverage for more than 1 in 5 (22%, or 7.0 million) traditional Medicare beneficiaries with low incomes and modest assets […] (not including 3.5 million beneficiaries who were enrolled in both Medicare Advantage and Medicaid). For these beneficiaries, sometimes called dual eligible beneficiaries because they are eligible for both Medicare and Medicaid, Medicaid typically covers the Medicare Part B premium and may also pay a portion of Medicare deductibles and other cost-sharing requirements. The majority of dually eligible beneficiaries are eligible for full Medicaid benefits, including long-term services and supports. Compared to all traditional Medicare beneficiaries in 2016, a significantly larger share of traditional Medicare beneficiaries with Medicaid had low incomes, reported their health status as fair or poor, were under age 65 and qualified for Medicare due to a disability, and were black (18%) or Hispanic (15%).[12]

Premiums & Cost-Sharing Assistance – Medicare Savings Programs (MSPs)

Medicare Savings Programs (MSPs) help low income individuals to pay for their Medicare Part A and/or Part B co-pays and deductibles.[13] The MSPs – the Qualified Medicare Beneficiary program (QMB), Specified Low-Income Medicare Beneficiary program (SLMB), and Qualified Individual program (QI) – all are administered by state Medicaid agencies and are funded jointly by states and the federal government. Participants in these programs are sometimes called "partial dual eligibles." Individuals who qualify for a Medicare Savings Program automatically qualify for the Part D LIS. To qualify an individual must be eligible for Medicare and must meet certain income guidelines which change annually. The income guidelines, which are based on the Federal Poverty Level, change annually.

Participation in MSPs is already low.  Many people who would otherwise qualify are not enrolling in these programs.  According to the Medicaid and CHIP Payment and Access Commission (MACPAC), among those eligible, participation rates are 53 percent for the QMB program, 32 percent for the SLMB program, and 15 percent for the QI program.[14] Including MSP enrollment in public charge determinations will simply depress these numbers further, leading to many people foregoing needed assistance with their Medicare premiums and cost-sharing. 

Medicaid – Additional Coverage

For individuals dually eligible for Medicare and Medicaid, the latter is also a vital source of coverage of services that are otherwise unavailable through Medicare. Medicaid is critical for long-term services and supports. Without access to Medicaid home and community-based services, fewer older adults will be able to age with dignity, at home with their families and in their communities. Medicaid is also the key to access to oral health care, transportation, and other services Medicare does not cover and older adults could otherwise not afford. The Kaiser Family Foundation released a report, Medicaid’s Role for Medicare Beneficiaries[15], which details the crucial role Medicaid plays for the over 10 million Medicare beneficiaries who also receive Medicaid, including the following:

  • Medicare beneficiaries who receive Medicaid have low incomes and few assets, and are typically poorer than other Medicare beneficiaries.
  • Over 60% of Medicare beneficiaries who receive Medicaid need help with daily self-care activities, such as eating, bathing, or dressing, which are important for independent living.
  • Nearly 6 in 10 Medicare beneficiaries who receive Medicaid have a cognitive or mental impairment, such as dementia, which can create the need for supports to live safely at home.

As discussed in the next section, a “chilling effect” resulting from this DHS proposal is already leading people to forego needed health care and other assistance.  Including these programs – the Part D LIS, Medicare Savings Programs, and coverage through Medicaid – in making public charge determinations will almost certainly lead to people foregoing such assistance, resulting in the inability to afford necessary prescription drugs and other health care.  It is axiomatic to say that when people cannot afford basic health care, they often go without needed services until the need for care is more acute and costly.[16]  Finalizing this proposed rule would have clearly negative human and programmatic impacts, and should therefore be withdrawn.

The widespread “chilling effect” that causes families to withdraw from benefits due to fear is already evident as a result of rumors of the rule. 

Community providers have already reported changes in health care use, including decreased participation in Medicaid and other programs due to community fears stemming from the leaked draft regulations.  Likewise, fear has already been driving immigrant families–who are eligible to receive benefits for themselves or their family members–to forgo vital health and nutrition assistance, jeopardizing the health of families and communities alike.  

Historical evidence from the 1996 PRWORA policy changes, which is cited in the NPRM itself, demonstrates that public information alone cannot prevent these damaging consequences, because of the complexity of immigration policies (greatly increased by this proposed rule), among other reasons.  Even among groups of immigrants who were explicitly excluded from the 1996 eligibility changes, and U.S citizen children in mixed status families, participation dropped dramatically.[17]

The proposed rule would have a devastating impact on our nation’s long-term care workforce.

The single factor most critical to high quality of care and quality of life for nursing home residents is the staff who provide residents with care. In a sobering new report, Raise the Floor: Quality Nursing Home Care Depends on Quality Jobs,[18] the Paraprofessional Healthcare Institute (PHI)[19] describes the growing care crisis in nursing facilities.  Fewer people are available and willing to take direct care positions while a rapidly aging population needs care. Nurse aides earn “near-poverty wages.”[20]  Nationwide, the median wage is $11.51 per hour, an annual salary of $19,000.[21]  Half of direct care workers earn even less.  Nearly 20% of workers live in households below the federal poverty line.[22]  More than a third of them (38%) rely on various public benefits, including public assistance, Medicaid, food stamps, and cash assistance.[23]  Adjusted for inflation, workers’ wages “have decreased by 7 percent over the last decade.”[24]  Since most of the nurse aides are female (91%) and non-white (53%), gender and race contribute to the marginalized nature of the direct care workforce.[25]  Workers also suffer high rates of injury, “three-and-a half times the national average for all other occupations and musculoskeletal injuries . . .  nearly six times the national average.”[26]  

This rule, if finalized, would exacerbate these conditions if direct care workers are afraid to access assistance programs, and their own health and well-being will be compromised. Furthermore, if care workers need to use these programs to supplement their low-wage work, they may be prevented from coming to the U.S. in the first place. Without access to health care, nutritious food and housing, many care workers may be unable to afford to remain in the U.S. The ripple effect would be a shortage in direct care workers, leaving many older Americans and people with disabilities without access to the caregiving they need and without access to the services critical to live and participate in the community. The fear of applying for or using the health care 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. 

As attorneys and advocates for people who need long-term care services, the Center for Medicare Advocacy strongly supports the movement to improve direct care workers’ lives instead of worsening their conditions, as this proposed rule would do. 

The rule contains provisions that would harm the health and well-being of people with disabilities.

Federal law, including Section 504 of the Rehabilitation Act,[27] prohibits discrimination on the basis of disability by federal agencies.  Yet the proposed public charge rule will 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.

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.

Almost one-third of adults under age 65 enrolled in Medicaid have a disability, compared with about 12 percent of adults in the general population.[28] Many of these individuals are eligible for Medicaid, and unable to obtain private insurance, precisely because of their disability. Because many critical disability services are only available through Medicaid, the proposed rule would prevent many people with disabilities from getting needed services that allow them to manage their medical conditions and participate in the workforce.

Overall, people with disabilities in the U.S. live in poverty at a rate twice as high as people without disabilities.[29]  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.[30]  The proposed rule would use a legacy of social and economic disadvantage as the basis for further discrimination and exclusion.

The rule also makes other major changes, such as introducing an unprecedented income test and weighing negatively many factors that have never been relevant and that will make it more difficult for seniors to pass.

The proposed rule details how being a senior or a child, having a large family, or having a treatable medical condition could be held against immigrants seeking a permanent legal status. Because this rule targets family-based immigration as well as low and moderate wage workers, it will also have a disproportionate impact on seniors of color. All of these changes amount to a sea change in American policy towards immigration, counting wealth and income as the primary indicators of a person’s future contribution. The proposed rule affects the health and well-being of immigrants and citizens alike by stigmatizing public benefits use, impeding access to supplemental services that raise individuals’ and families’ standard of living and improve overall population health in the U.S., and uprooting a system of benefits administration that supports these functions. Despite recognizing the probability that such negative effects will materialize, DHS wrongly ignores the fact that family members and communities surrounding non-citizens will stop using public benefits, even though they are not directly targeted by the proposed rule.

The proposed rule would cause major harm to older immigrants and their families and communities.  

The number of seniors in the United States who are immigrants is growing. Between 1990 and 2010, the number of immigrants age 65 and older grew from 2.7 million to nearly 5 million. This is due to aging of the immigrant population who arrived during the 1980s and 90s as well as the rise in naturalized citizens who sponsor their parents to immigrate to the U.S. The number of parents of U.S. citizens who have been admitted as legal permanent residents nearly tripled between 1994 and 2017 and now account for almost 15% of all admissions and almost 30% of family-based admissions. Women made up about 56 percent of immigrants aged 60 and older in 2016.[31]

Over 1.1 million noncitizens age 62 and older live in households with low incomes,[32] meaning that public benefits programs likely play an important role in meeting their basic needs. Health care is particularly important for older adults, and older women tend to have more health issues and health-related costs than men. 

This proposal would increase poverty, hunger, ill health and unstable housing by discouraging enrollment in programs that improve health, food security, nutrition, and economic security, with profound consequences for seniors and their families’ well-being and long-term success. Under the proposal, many U.S. citizens would no longer be able to welcome their own parents into the country, even after they signed a commitment to support them.

Having health insurance is especially important for older adults because they have greater health care needs. Without ongoing coverage and the assistance they need to afford their prescription drugs and other care and services, seniors are likely to develop more serious health care conditions, driving up the cost of care and creating a new uncompensated care burden on health care providers.


For the reasons detailed in the comments above, the Department should immediately withdraw its proposal, and dedicate its efforts to advancing policies that support—rather than undermine—immigrant older adults and their families in the future. If we want our communities to thrive, everyone in those communities must be able to stay together and get the care, services and support they need to remain healthy and productive. For over 30 years, the Center for Medicare Advocacy has worked to expand fair access to quality health care for our nation’s most at-risk people. We believe that access to quality health coverage is a human right – not a privilege reserved for the protected and powerful. As such, we must oppose this harmful proposal.

Thank you for the opportunity to submit comments on this proposed rulemaking. Please do not hesitate to contact David Lipschutz, Senior Policy Attorney at or 202-293-5760, for further information.


[1] Kaiser Family Foundation, “Income and Assets of Medicare Beneficiaries, 2016-2035” (April 2017):
[2] Id.
[3]Kaiser Family Foundation, “How Many Seniors Live in Poverty?” (November 2018):
[4] Id.
[5] Id.
[6]Kaiser Family Foundation, “The Financial Burden of Health Care Spending: Larger for Medicare Households than for Non-Medicare Households” (March 2018):
[7] Id.
[8] Id.
[9] Kaiser Family Foundation, “Income and Assets of Medicare Beneficiaries, 2016-2035” (April 2017):
[10] For more information about Medicare Part D, see, e.g., the Center for Medicare Advocacy’s website at:
[11] Kaiser Family Foundation, Medicare Part D in 2018: The Latest on Enrollment, Premiums, and Cost Sharing (May 17, 2018), available at
[12] Kaiser Family Foundation, “Sources of Supplemental Coverage Among Medicare Beneficiaries in 2016” (November 2018), available at:
[13] For more information, see, e.g., the Center for Medicare Advocacy website at:
[14] Medicaid and CHIP Payment and Access Commission (MACPAC) “Medicare Savings Programs: New Estimates Continue to Show Many Eligible Individuals Not Enrolled” (August 2017)
[15] Kaiser Family Foundation, “Medicaid’s Role for Medicare Beneficiaries” (February 2017), available at:  
[16] See, e.g., letter from National Association of Insurance Commissioners (NAIC) to then-Secretary of Health & Human Services Kathleen Sebelius, concerning the Affordable Care Act’s request to study potentially adding cost-sharing to Medigap supplemental insurance policies (December 2012), available at:  The letter references that many studies “caution that added cost sharing would result in delayed treatments that could increase Medicare program costs later (e.g., increased expenditures for emergency room visits and hospitalizations) and result in adverse health outcomes for vulnerable populations (i.e., elderly, chronically ill and low-income).”  
[17] Neeraj Kaushal and Robert Kaestner, “Welfare Reform and Health Insurance of Immigrants,” Health Services Research, 40(3), (June 2005),
[18] PHI, “Raise the Floor: Quality Nursing Home Care Depends on Quality Jobs” (April 2016) [hereafter Raise the Floor],
[19] PHI’s mission is promoting quality care through quality jobs.
[20] Raise the Floor, 6.
[21] Id. 7.
[22] Id. 7.
[23] Id. 8.
[24] Id. 3.
[25] Id. 13.
[26] Id. 20.
[27] 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).
[28] See, e.g., Nationwide Adult Medicaid CAHPS, “Health Care Experiences of Adults with Disabilities Enrolled in Medicaid Only: Findings from a 2014-2015 Nationwide Survey of Medicaid Beneficiaries” (2016):
[29] 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
[30]  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
[31] Nat’l Women’s Law Ctr. calculations based on Migration Policy Institute, “Age-Sex Pyramids of U.S. Immigrant and Native-Born Populations, 1970-Present” at:
[32] Manatt Phelps & Philips LLP, “Public Charge Proposed Rule: Potentially Chilled Population Data Dashboard” (2018), at:

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