Legal Counsel: A Health Care Partner For Immigrant Communities

Photographs by Montinique Monroe

Maria Jacobo was clear: “We don’t want to have a problem with immigration.” This was her explanation for her decision in 2019 to disenroll her young adult twin daughters from Supplemental Security Income (SSI) and Medicaid. Her twins had been born prematurely with complex health issues and would need care into adulthood. But when they turned eighteen and their SSI benefits ran out, she explained to the clinician at People’s Community Clinic, in Austin, Texas, that she didn’t want to reapply, even if it meant that her daughters couldn’t get care. Jacobo and her husband emigrated from Mexico in the mid-1980s, and although they had lawful status, they were still concerned about the rumors of retaliation for relying on public benefits.

“We mainly heard from the news and the TV. We never dared to start submitting an application,” Jacobo said, referring to her learning of proposed changes to the public charge rule, which had the potential to penalize people seeking visas or permanent legal status if they relied on any sort of public benefit. The proposal had received a lot of media attention while Jacobo was in the process of applying for a green card, and she didn’t want her daughters’ reliance on government benefits to be cause for denial. She had never applied for Medicaid on her own; after her daughters were born, it was a social worker at the hospital—knowing that their complex medical needs would require professional attention—who facilitated their application. Later a financial counselor at People’s had helped Jacobo with their reenrollment. Jacobo didn’t fully understand the benefits or her daughters’ eligibility and feared that a misstep could result in a denied permanent residency or—worse—deportation.

At People’s, Jacobo was connected with Keegan Warren-Clem and Kassi Gonzalez, both lawyers at the clinic’s Medical-Legal Partnership, which Warren-Clem founded in 2013. The lawyers confirmed that having Jacobo’s daughters reenroll in SSI and Medicaid could not be used against either her or them. But if her daughters did drop their SSI and Medicaid coverage, it would be disastrous for their health care: Jacobo would have to pay for any care out of pocket and forgo care with specialists.

Warren-Clem and Gonzalez were some of the first people Jacobo spoke to in detail about her immigration status concerns. “I didn’t want to address the matter with anyone,” said Jacobo. But she’d come to trust the team at People’s, and after talking with the lawyers and clinicians, she made the decision to reenroll her daughters in the programs.

Around this time Louis Appel, chief medical officer and director of pediatrics at People’s Community Clinic, noticed an increase in no-shows and canceled appointments. When he’d meet with parents of newborns, he was surprised to find out that they were not enrolled in the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Still more patients declined to reenroll in Medicaid. “In my twenty years of working in pediatrics, I had never seen anything like it,” he said. “We were hearing from families that they were scared to apply and scared to leave their homes, even to come to appointments.”

“A lot of people were not wanting to apply,” said Dania Cabrera, the lead financial counselor at People’s, who meets with families to determine their eligibility for public assistance, including Medicaid. “They were not even in the process of applying for immigration. They would say, ‘It is going to affect us in the long run if we were to have immigration reform.’” And many patients had immigration attorneys who advised against accepting benefits such as Medicaid, even for children, out of concern that doing so could make them less desirable candidates when they were applying for legal status.

‘More Than A Century Later’

The history of the federal public charge rule dates back to the nineteenth century, when language relating to being a public charge was included as part of the Immigration Act of 1882. It stemmed from the idea that a person should not be admitted to the nation or be eligible for a change of immigration status if they were a “public charge”—that is to say, a burden on the state, drawing on public benefits—or if they were found likely to be a future public charge, said Wendy Parmet, a professor of law, public policy, and urban affairs at Northeastern University, in Boston, Massachusetts, who has written extensively on the topic. More than a century later, in 1999, the Clinton administration issued guidance explicitly excluding Medicaid from the rule after reports surfaced that people were beginning to avoid enrolling in the program out of fear that the rule would adversely affect their immigration status.

Under President Donald Trump, the executive branch attempted to define a “public charge” as any person who had used public benefits for more than twelve months over the course of three years or who might be likely to do so. The new rule widely expanded which benefits would be considered, including Medicaid, the Supplemental Nutrition Assistance Program (SNAP), and government housing. The specified period was also a change, as no time had previously been specified.

The explicit inclusion of Medicaid in the proposed rule change was first hinted at by an executive memo, leaked in early 2017, laying out the administration’s aggressive approach in broad terms. A formal proposed rule change followed in September 2018, which is when the details of the new definition of a public charge began to appear in the media.¹ The rule change was finalized a year later, in August 2019, but its adoption was first blocked on October 11, 2019, by federal district courts in New York,² California,³ and Washington State,⁴ and the rule didn’t go into effect until February 2020. Within weeks of its implementation, the COVID-19 pandemic took hold, and further guidance was issued, specifying that the rule would not to apply to people who relied on Medicaid to treat COVID-19 or to those who lost their jobs because of the pandemic.

‘Chilling Effect’

Even though the rule change was only in effect for a relatively short time, talk of the shift altered how people thought about the relationship between public benefits and their immigration status. “A lot of our patients were undocumented,” Appel said. They weren’t even eligible for benefits in the first place. “But at the same time,” he cautioned, “the whole notion…of services and supports being associated with barriers to attaining some sort of legal status just had a chilling effect generally.”

These chilling effects were expressly acknowledged when the rule was finalized. The Department of Homeland Security projected savings of $1.46 billion in the cost analysis it was required to conduct for such a rule change.⁵ The analysis stated that many would likely “choose to disenroll from or forego enrollment in a public benefits program,”^5(p3) including those who might otherwise be eligible. In the Austin region, the chilling effects were exacerbated by an increase in Immigration and Customs Enforcement (ICE) raids, traffic stops, and deportations⁶—including one traffic stop at a local middle school.

The rule change had a noticeable effect on health care use: Clinicians at People’s Center for Women’s Health and Prenatal Care saw that many patients were delaying prenatal care until late in the third trimester or avoiding it altogether. They also observed an increase in families paying out of pocket for health care and in US citizen children disenrolling from SNAP and declining food and cash assistance from community-based organizations. More broadly, experts estimate that fears surrounding the public charge rule change resulted in 260,000 children being removed or disenrolled from Medicaid.¹

The clinicians at People’s began sharing stories with one another of patients delaying or forgoing care because of fears of the public charge rule. Feba Thomas, People’s director of adult medicine, recalled a patient with colon cancer who delayed care because he didn’t want to apply for benefits: “While he delayed, the cancer grew.”

Appel recalled an example of a young child with asthma who had been receiving inhaled corticosteroids for which the family could not afford an expensive prescription refill—yet the family declined to reenroll in Medicaid.

Celia Neveal, director of the Center for Adolescent Health at People’s, wanted to refer a child to an endocrinologist for an evaluation for a serious disorder, but the child’s family had also declined to reapply for Medicaid. The child’s mother ended up paying out of pocket for magnetic resonance imaging and some other tests and ultimately saw an endocrinologist, “almost too late to do anything,” Neveal said.

Patients with HIV who were worried about their immigration status were skipping treatment, declining medication, and missing appointments, added Wesley Hartman, a staff attorney with Texas Legal Services Center who is based at the Kind Clinic, which provides free sexual health services in Austin. Many of the skipped treatments would have been paid for by Ryan White and 340B funds, federal HIV treatment programs that weren’t included in the public charge rule anyway, Hartman explained.

Fears of public charge also contributed to a rise in children children with anxiety and depression, according to the clinicians at People’s, because of the prospect of their parents being deported. “All of that has long-term health implications that likely will show up later in life as increased risks for diabetes, hypertension,” Appel said.

The chilling effect of public charge continued as the COVID-19 pandemic took hold.

The chilling effect of public charge continued as the COVID-19 pandemic took hold. Staff members told of patients avoiding COVID-19 testing and treatment and declining benefits from the Pandemic Electronic Benefit Transfer program, which was designed to replace free and reduced-price school breakfasts and lunches when schools closed last March.

“We had a lot of clients who were close to being evicted,” Gonzalez noted, yet they wouldn’t accept rental or mortgage assistance from government programs or even community assistance—which would have been well outside the scope of the public charge rule. People were fearful that receiving any assistance at all could hurt their immigration status or lead to deportation. “It demonstrates how confused people [were] throughout [the public charge controversy] and the pandemic as well,” Gonzalez said.

The proposed changes to the public charge rule exacerbated an already precarious situation. A primarily Hispanic and low-income population was already stressed by the pandemic—and experienced greater COVID-19 morbidity and mortality than the general population.”^7,8 Having more restrictions added to the public charge rule “on top of this has not been good for their health,” Thomas said. “People were coming out of the hospital and worried about ‘public charge’ and if they could access public resources. It’s been terrible to watch.”

‘Good, Solid Information’

As soon as the leaked executive memo came out in 2017, Warren-Clem of the Medical-Legal Partnership at People’s knew that the ongoing news coverage about the public charge rule was going to be a problem for the patients at People’s Community Clinic. She began pulling together a response for both clinicians and patients. The clinic’s staff needed to know which benefits were included in the proposed rule change and whom it would affect. Warren-Clem then set out to make sure every single clinic staff member knew about the rule, how to respond to patients, and especially how to communicate about it.

This proactive approach was particularly crucial, as many patients didn’t explicitly articulate “public charge” as a concern. When Neveal would ask a patient why they had not applied for Medicaid, “They say, ‘No, I can’t do that right now,’ or, ‘That makes me nervous,’ ” she said. Further probing, Neveal explained, would bring to the surface a mix of confusion, fear, and insidious rumors spread by neighbors and friends. “They aren’t lawyers. They didn’t know or fully understand.”

Warren-Clem organized an all-hands staff meeting in May 2018, provided email updates to patients and providers, and hosted town halls with patients. After the pandemic shut down in-person activities, she moved to Facebook Live events. The patient email newsletter went out in English and in Spanish, posters went up, flowcharts were created to assess eligibility, and two-page fact sheets were created for providers to hand out to patients. Warren-Clem’s four-person legal team was available at all hours, should a question come up or a consultation be needed. They offered seminars to the community to learn more about the rule change, and every staff member and volunteer at People’s was empowered to speak on the topic to patients or to refer a concerned patient to a member of Warren-Clem’s team.

Because the rule change was confusing and seemed in flux, Warren-Clem and her team were constantly updating the information for clinicians. This relieved the clinicians of having to do their own deep legal research. “I wasn’t going into the Federal Register to look at the published rules,” Appel said. “It was really helpful just to have good, solid information and guidance.”

People’s had already made a conscious choice to not ask patients about their immigration status as part of routine screening for social needs, unless it was relevant. The direct line of questioning was too stark for their patients, and the clinic did not want to enter details into an electronic health record that could be used against patients later. But it also meant that clinicians such as Neveal did not always know whether their patients were Medicaid eligible and had to communicate that they would still see them regardless of their immigration status. “It’s exhausting for the physicians to have to be aware of this,” Neveal said.

Ironically, the public charge rule as promulgated under the Trump administration had little practical application in Texas. Texas provides few benefits to people without legal status, so the proportion of the People’s patient population that would have been legally barred from benefits under the changes to the public charge rule was “nearly zero,” according to Warren-Clem.

The effect of the public charge rule change was very different in a state such as California, which gives benefits, including health care, to certain people without legal status. The more generous a state is to noncitizen residents, the more likely the state is to have populations that fell under the public charge rule changes. Even as finalized, the rule change applied to a very narrow population: According to the Migration Policy Institute, an estimated 167,000 people and possibly fewer—less than 1 percent of the 22.1 million noncitizens residing in the US—would have been determined ineligible for a green card because of their current use of a listed benefit.⁹

But even armed with information and with lawyers at their disposal, many patients were still too concerned about the punitive measures, as they perceived them, to keep their benefits. Cabrera recalled trying to give patients the facts and still receiving refusals to sign up for Medicaid: “We would offer the chance to speak to a lawyer. Or we would route them to a seminar. We kept telling them, ‘Once you have Medicaid, it is easier to be able to afford health care.’”

‘A Deep Responsibility’

What struck Warren-Clem and her Medical-Legal Partnership team—and was echoed by the clinicians—was the unique role that a community health center such as People’s Community Clinic plays in correcting misinformation that may confuse and intimidate its patient population, especially in ways that may affect its members’ health.

Having earned the trust of the community, the staff members of People’s felt a deep responsibility to communicate accurate, vetted information.

“We’ve seen how misinformation can be weaponized, especially in communities where it is increasingly difficult to ascertain what is real versus what is not,” said Pritesh Gandhi, who served as the associate chief medical officer at People’s before being appointed by President Joe Biden as the chief medical officer at the Department of Homeland Security. People’s had been designed to deliver services that address the social determinants of health, so it had always been willing to have staff members address issues surrounding housing, poverty, education, and benefits. And having earned the trust of the community, the staff members of People’s felt a deep responsibility to communicate accurate, vetted information.

Warren-Clem and her team have provided a lot of training within the community; this continued when issues arose around the public charge rule. “We did lunch-and-learns with advocates from community organizations,” Warren-Clem said. “Training the trainers—we worked with the folks that are working with families around their food and security needs.” As word of their training offerings spread, they were invited to do more.

It struck Warren-Clem that her patients themselves did not get a voice in the federal rule-making process. With her legal team at People’s, Warren-Clem wrote a public comment to the rule change on behalf of their patients, and Regina Rogoff, the People’s CEO, submitted it through the system designed to receive public comment.¹⁰ Although the individual comment might not have altered the rule language, Warren-Clem believes that it may have informed the subsequent court battles by showing how the public charge rule affected a vulnerable patient population. “We enabled the litigation that led to the injunction,” she said. “We are lifting up voices that would not be able to participate in the process and effect in the downstream process.”

Despite the clinicwide commitment, Neveal said, the staff still struggled to reach patients. “We were all advocating and trying to be in the same place,” she said. “But we also need to be sensitive to our patients and what they might be experiencing and hearing.”

“We didn’t blame the people who don’t reapply [for benefits],” Rogoff said. “At that moment in time…[the Trump administration] could shift gears at any moment. People were trying to be cautious, and people were weighing the risk to their families.”

‘From Patients To Policy’

People’s Community Clinic began as People’s Free Clinic with a team of volunteers in the basement of a church at the University of Texas in the mid-1970s. They had a progressive-minded approach to care. “It was modeled after the Our Bodies, Ourselves health education,” said Rogoff, referring to a book first published in 1970 and the subsequent women-led nonprofit organization that was focused on empowering patients with evidence-based information about women’s health and sexuality. Later, People’s would be one of the first clinics to offer anonymous HIV testing and was an early adopter of a team-based approach to health care delivery, building bridges across professional silos including physician assistants, nurse practitioners, and other clinical staff engaging with social workers, nutritionists, health educators, and community health workers.

But the clinic was limited in how much it could grow as a purely charitable organization, and in 2010 it began the process to become a federally qualified health center, which would allow it to access federal grants, reduce pharmaceutical costs, and receive enhanced Medicaid payments. People’s received the designation in 2012 while continuing to build on its wide donor base. Donors included the St. David’s Foundation in Austin, with whose support the clinic raised sufficient funds to move into a new, $16 million facility in the St. John neighborhood of Austin in 2016.

Federally qualified health centers, by definition,¹¹ provide additional services outside the realm of traditional health care, which can include legal and case management services. Rogoff sought funding to bring on an attorney, but board members were hesitant. “They did not understand why I was raising money for a lawyer,” she said.

Warren-Clem began working for People’s after, on her own, she obtained an Equal Justice Works fellowship, which provided funding for her to work there as an attorney (Gonzalez now has this same fellowship). When the fellowship ended, Rogoff approached the board again and was able to secure funding for Warren-Clem to stay on permanently. Now there is a team of four full-time lawyers and a paralegal, and Rogoff can’t imagine the clinic without the legal team on site.

Warren-Clem believes that the approach to integrated health care is fully replicable. “We cannot do this work by operating solely at the individual level; rather, [medical-legal partnership] is at its most impactful when midstream individualized care is paired with upstream focus on population health,” she explained. “We call this going from patients to policy.”

“It all goes back to our mission,” Rogoff said. “It’s about the dignity and respect we have for our patients. And then we work on the systems of care and see what we can put in place to work efficiently. I’m not saying it’s easy, or that you don’t have to keep improving. But if you know what you are trying to do, you are more likely to do it.”

Because it receives additional private funding, the People’s Medical-Legal Partnership has the capability and authority to delve into immigration issues, unlike other medical-legal partnerships that rely on funding from the Legal Services Corporation, a nonprofit organization that provides legal aid for low-income Americans but specifically bars handling legal services for people who are not documented. (There are some exceptions with regard to violence and physical harm.) Legal Services Corporation clients are also subject to an asset and income restriction. “With independent funding streams, we don’t have those restrictions,” Rogoff said. There are no limits on the legal work that Warren-Clem and her team can do, provided it is for the patients and families at People’s.

‘Bring People Back’

In November 2020 the United States District Court for the Northern District of Illinois vacated the public charge rule change promulgated by the Trump administration, and the Department of Homeland Security under President Biden returned to using the 1999 interim field guidance in March 2021.¹² Even without the prospect of more stringent enforcement by the Department of Homeland Security, though, fears still persist for many patients, exacerbated by the pandemic.

“It is harder to tell people that [the expanded public charge rule] is over,” Rogoff commented. She said, quoting a version of the platitude: “‘A lie gets halfway around the world before the truth gets its shoes on.’ It is our responsibility to do what we can to help people readjust and get people back into the building.”

To bring people back to the clinic, one of the big lures is the COVID-19 vaccine, which People’s administers on site.

To bring people back to the clinic, one of the big lures is the COVID-19 vaccine, which People’s administers on site. Today the clinic’s atrium is decorated with colorful backdrops encouraging people in both English and Spanish to share their postvaccine photos on social media. “Our patients are excited that we are offering the vaccine here because they feel safe coming here,” Rogoff said. “They didn’t feel as safe going to other places in the community.”

Many of the communication and messaging tactics developed around the public charge rule change are now effective in encouraging patients to get the vaccine. Staff members are prepared to answer questions and combat misinformation on both the safety of the vaccine and how inoculation will affect their immigration status (it won’t, in any way).

“You can’t ignore their concerns,” Rogoff said of the patients who remain hesitant. “But we do try and help our patients who are still resistant.”

Rogoff believes that the change in presidential administrations and the toning down of anti-immigration rhetoric has also eased the minds of some of the clinic’s patients. “Immigrants are savvy people,” she said. “They understand there is a change in the immigration policy under the new administration.”

Even with the rule change vacated—and even with changes in immigration policy under the Biden administration—health care delivery for a vulnerable population in a state with a comparatively threadbare social safety net is daunting. Integrated health care delivery models such as the one at People’s, which combine health care, social services, financial support, and legal services, can be far more effective for the overall health of the populations they serve and may be better suited to handling obstacles stemming from fear and misinformation. And it will be up to Warren-Clem and her Medical-Legal Partnership team to work with clinicians to actively combat misinformation and come up with new strategies as problems arise.

She is ready for the challenge: “This is how we take care of our patients.”

NOTES

• 1 Barofsky J , Vargas A , Rodriguez D , Barrows A . Spreading fear: the announcement of the public charge rule reduced enrollment in child safety-net programs. Health Aff (Millwood). 2020;39(10):1752–
  61. Go to the article, Google Scholar
• 2 United States District Court, Southern District of New York. State of New York et al. v. United States Department of Homeland Security et al., Order granting plaintiff’s motion for a preliminary injunction. 19 Civ. 78777 (GBD) [Internet]. New York (NY): The Court; 2019 Oct 11 [cited 2021 Jun 15]. Available from: https://www.uscis.gov/sites/default/files/document/memos/New_York_v._DHS_19-cv-07777_SDNY_PI.PDF Google Scholar
• 3 United States District Court, Northern District of California. City and County of San Francisco et al. v. U.S. Citizenship and Immigration Services et al., Preliminary injunction, Case No. 19-cv-04717-PJH, Case No. 19-cv-04975-PJH, Case No. 19-cv-04980-PJH [Internet]. San Francisco (CA): The Court; 2019 Oct 11 [cited 2021 Jun 15]. Available from: https://www.uscis.gov/sites/default/files/document/memos/NDCA_Injunction.pdf Google Scholar
• 4 United States District Court, Eastern District of Washington. State of Washington et al. v. United States Department of Homeland Security, et al., No: 4:19-CV-5210-RMP, Order granting plaintiff states’ motion for Section 705 stay and preliminary injunction [Internet]. Spokane (WA): The Court; 2019 Oct 11 [cited 2021 Jun 15]. Available from: https://www.uscis.gov/sites/default/files/document/memos/Washington_v._DHS_injunction.pdf Google Scholar
• 5 Regulations.gov. Regulatory impact analysis: inadmissibility on public charge grounds, final rule (8 CFR Parts 103, 212, 213, 214, 214 and 248) [Internet]. Washington (DC): Regulations.gov; 2019 Aug. Table 17. Total estimated annual reduction in transfer payments paid by the federal government due to disenrollment or foregone enrollment in public benefits programs; [cited 2021 Jun 1]. Available for download from: https://www.regulations.gov/document/USCIS-2010-0012-63741 Google Scholar
• 6 Mulder B , Walsh SC . Bastrop traffic operation leads to multiple deportations. Austin Statesman [serial on the Internet]. 2018 Jun 28 [last updated 2018 Sep 25; cited 2021 Jun 1]. Available from: https://www.statesman.com/NEWS/20180628/Bastrop-traffic-operation-leads-to-multiple-deportations Google Scholar
• 7 Kelly C , Parker WF , Pollack HA . Low-income COVID-19 patients die needlessly because they are stuck in the wrong hospitals—while the right hospitals too often shut them out. Health Affairs Blog [blog on the internet]. 2021 Apr 2 [cited 2021 Jun 1]. Available from: https://www.healthaffairs.org/do/10.1377/hblog20210401.95800/full/ Google Scholar
• 8 Centers for Disease Control and Prevention. Risk for COVID-19 infection, hospitalization, and death by race/ethnicity [Internet]. Atlanta (GA): CDC; [last updated 2021 May 26; cited 2021 Jun 1]. Available from: https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html Google Scholar
• 9 Capps R , Gelatt J , Greenberg M . The public-charge rule: broad impacts, but few will be denied green cards based on actual benefits use [Internet]. Washington (DC): Migration Policy Institute; 2020 Mar [cited 2021 Jun 1]. Available from: https://www.migrationpolicy.org/news/public-charge-denial-green-cards-benefits-use Google Scholar
• 10 Regulations.gov. Comment submitted by Regina Rogoff, People’s Community Clinic [Internet]. Washington (DC): Regulations.gov; 2018 Dec 6 [last updated 2019 Feb 5; cited 2021 Jun 1]. Available for download from: https://www.regulations.gov/comment/USCIS-2010-0012-36076 Google Scholar
• 11 FQHC.org. What is an FQHC? [home page on the Internet]. Gainesville (FL): FQHC.org; [cited 2021 Jun 1] Available from: https://www.fqhc.org/what-is-an-fqhc Google Scholar
• 12 Department of Homeland Security. Inadmissibility on public charge grounds; implementation of vacatur. Federal Register [serial on the Internet]. 2021 Mar 15 [cited 2021 Jun 15]. Available from: https://www.federalregister.gov/documents/2021/03/15/2021-05357/inadmissibility-on-public-charge-grounds-implementation-of-vacatur Google Scholar