AG Mark Herring: “Trump Administration’s response is discouraging immigrants from accessing critical healthcare and testing for fear of repercussions”

RICHMOND (March 20, 2020) – Attorney General Mark R. Herring has joined a coalition of 17 attorneys general in calling on the Trump Administration to delay the implementation of its public charge rule as the COVID-19 outbreak spreads across the nation. Under the Trump Administration’s new public charge rule an immigrant who is legally in the country could have their legal status revoked, or even be deported, if he or she utilizes certain forms of assistance, including medical care.

Attorney General Herring and his colleagues assert that, while the COVID-19 public health crisis continues, the Trump Administration refuses to confirm that accessing health coverage will not impair lawful immigrants’ ability to stay in the country.

“In order to prevent the spread of COVID-19 it is critical that everyone, regardless of their immigration status, has access to proper testing and medical care,” said Attorney General Herring. “Every day this situation becomes more serious but the Trump Administration refuses to assure the immigrant community that they are safe to acquire the medical assistance that they need without any repercussions. I will continue to stand with my colleagues to protect the health of Virginians and Americans by fighting the implementation of this rule.”

Federal law allows many lawful immigrants to apply for public benefits, such as health care, if they have been in the country for at least five years. The new rule creates a “bait-and-switch” ― if immigrants use the public assistance to which they are legally entitled, they could jeopardize their chances of later renewing their visa or becoming permanent residents.

Attorney General Herring and Washington Attorney General Bob Ferguson are also co-leading a multistate coalition challenging this rule. The coalition won an injunction in federal district court but an appeals court declined to stay the rule while the case is pending.

Today’s letter to Acting Homeland Security Secretary Chad Wolf and U.S. Citizenship & Immigration Services (USCIS) senior official Ken Cuccinelli, follows a March 6 letter Attorney General Herring and his colleagues sent to the same officials calling for the rule’s suspension. Though neither official responded to the initial letter, USCIS posted an “alert” on March 13 that said the government would not consider any form of testing or care related to COVID-19 in immigrants’ public charge assessment, “even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).”

However, the letter points out that the alert contains confusing and internally contradictory statements about the impact using Medicaid will have on non-citizens.

“If DHS is attempting to ensure noncitizens in our communities remain enrolled in Medicaid so they can use Medicaid services should they have symptoms of COVID-19, the Alert fails to achieve this,” the attorneys general’s letter states. “And likewise, if DHS is attempting to ensure that noncitizens seek testing and treatment for COVID-19 without fear of public charge consequences, the Alert also utterly fails to achieve this.”

“The Alert fails to recognize that in order to receive adequate health services, our residents need adequate health insurance benefits,” the letter continues. “To achieve DHS’s stated goal of encouraging noncitizens to seek testing and treatment for COVID-19, noncitizens must be encouraged to enroll or remain enrolled in health insurance programs, including Medicaid, and they must be assured that such enrollment during this dire national health emergency will not be considered in any future public charge determination.”

The conflicting statements could cause immigrants to forgo medical treatment that could be critical to protecting our communities from the spread of the virus, the attorneys general write.

“Given the grave danger facing our nation’s health and economy, it is imperative that DHS not chill immigrants from enrolling in Medicaid or using Medicaid benefits for any purpose until the COVID-19 crisis is over. Under the Alert, however, noncitizens who remain enrolled in Medicaid continue to risk their green cards and visas. As DHS previously conceded, this will prompt immigrants to disenroll from Medicaid and lead to an ‘increased prevalence of communicable diseases,’ as the nation is now experiencing at a horrifying rate.

“To protect the residents of our states and the rest of the country, we ask that DHS immediately announce that the Rule is stayed pending successful containment of COVID-19. Short of that, however, it is imperative that DHS at least make clear that enrollment in Medicaid and the use of Medicaid benefits for any reason will not be considered in the public charge assessment. Given that these benefits were not considered in the public charge assessment for many years prior to DHS’s recent change of policy, it is inexplicably harmful for the agency to begin counting them now, during the outbreak of a lethal global pandemic.”

Joining Attorney General Herring in sending the letter are the attorneys general of California, Connecticut, Delaware, Hawaii, Iowa, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New Jersey, New York, Oregon, Pennsylvania, Vermont, Washington, and Washington, D.C.