Pandemics have a way of testing us. Throughout history, societies have responded to plagues by blaming immigration and minority populations. Such approaches usually make matters worse.
If pandemics reveal anything, it is that our health depends in no small measure on how we treat the most vulnerable among us.
The Covid-19 outbreak is now testing the U.S. Some recent and not-so-recent immigration policies do not put us in a good position to combat it.
On February 24, just one day before the Centers for Disease Control and Prevention warned Americans to prepare for the spread of Covid-19 inside the U.S., the Department of Homeland Security began enforcing its new public charge rule. Under a provision that has been in our immigration laws since 1882, many classes of immigrants are ineligible to receive a visa or permanent residency status if they are found likely to become a public charge. Prior to the new rule, the receipt of non-cash benefits, except for long-term care, did not enter into the public charge determination.
The new rule will change that, defining a public charge as someone who receives Medicaid (and other listed benefits) for 12 out of 36 months, and treating receipt of Medicaid after February 24 as a heavily weighted factor in the determination of whether the individual is likely to be a public charge in the future.
To avoid being identified as a public charge, millions of non-citizens are expected to disenroll from Medicaid. Confusion and fear about the rule may also drive many parents to disenroll their children, even though the use of Medicaid by minors will not count against them.
Thus, just as more people are likely to start needing testing and treatment for a worrisome infectious disease, untold numbers of them may drop their health insurance and avoid health care for fear of being found a public charge. With more people uninsured, hospitals will likely experience drops in revenue, even as they need to purchase new infection control equipment, and cope with a surge of patients in emergency departments and needing intensive care. These totally predictable consequences do not bode well for our ability to mitigate the pandemic.
The public charge rule is not the only way in which our immigration laws and policies may impede an effective response to the pandemic. At least four other mechanisms warrant attention.
First, long before the new public charge rule, non-citizens faced numerous legal hurdles to accessing publicly funded health insurance. A 1996 federal law, for example, makes most undocumented immigrants ineligible for federal Medicaid except to cover emergencies. Undocumented immigrants are also ineligible to purchase insurance or receive subsidies under the Affordable Care Act.
Even lawfully present immigrants face barriers. Although they can purchase insurance on the Affordable Care Act exchanges, most lawfully present non-citizens are not eligible for Medicaid for the first five years of their lawful status.
As of result of these barriers, as well as the fact that non-citizens are disproportionately employed in jobs that don’t provide insurance, non-citizens are far less likely to have health coverage than citizens. Not surprisingly, they are also less likely to have an ordinary source of care. While always troubling for public health purposes, these barriers are likely to be especially dangerous during a pandemic.
Second, fear of immigration enforcement may deter immigrants from seeking health care or working with public health authorities. Under guidelines from Immigration and Customs Enforcement (ICE), health care settings are “sensitive zones” in which enforcement actions should not normally be conducted. Even so, since President Trump took office there have been highly publicized cases of individuals being detained by immigration agents on their way to seeking care. As a result, many undocumented immigrants have forgone medical appointments.
In an epidemic, that can have dire consequences for public health as those who are undiagnosed and untreated are particularly likely to spread the infection.
Equally concerning is the prospect that immigrants, as well as citizens, who are infected with the coronavirus will fear sharing with public health officials the names of undocumented contacts — a key part of containing any epidemic or pandemic. This classic public health tool will be undermined if patients fear that sharing names can lead to immigration enforcement actions.
Third, restrictive immigration policies may exacerbate shortages of health care workers, especially in nursing homes and other long-term care facilities, just when we need more such workers. Since Trump took office, legal immigration to the U.S. has been falling. The new public charge rule will almost certainly add to the decline, as many of its provisions will make it exceptionally difficult for low-wage individuals to receive visas to come to the U.S. That means trouble for nursing homes and other health care institutions that rely heavily on low-wage workers and that may need new workers as some take time off due to infection. About one-quarter of nursing, psychiatric and home health aides are currently immigrants — precisely the people who will likely be denied visas due to the public charge rule.
In addition, many existing workers, citizens and non-citizens alike, rely on Medicaid. Their inability to get the care they need due to their loss of health insurance will heighten the risk for their vulnerable patients.
U.S. border policies create further risk. In the last three years, at least seven children have died in immigration custody, mostly due to the flu. Adding to the risk was the fact the Customs and Border Control officials refused to vaccinate detainees against the flu. Immigrants who have been forced to stay in makeshift camps in Mexico due to the administration’s so-called Remain in Mexico policy are also facing health risks from living in overcrowded conditions without adequate hygiene or health care. Such settings are especially susceptible to outbreaks of contagious diseases.
What can be done? This week I joined more than 700 experts in law, public health, and human rights in writing an open letter to Vice President Mike Pence and other federal, state, and local policymakers outlining guidelines for a fair and effective response to Covid-19. Among our recommendations were that health care facilities must be immigration enforcement-free zones. We also urged the administration to ensure that individuals should not face any immigration consequences related to contact tracing. These policies, we wrote “should be clearly and unequivocally articulated to the public by the federal, state and local governments.”
In addition, the Department of Homeland Security should stay implementation of the public charge rule as a whole — or at least suspend the adverse consequences attached to using Medicaid until after the outbreak passes. There simply is no justification for rushing to implement a rule that may worsen a pandemic.
Fourth, the Department of Homeland Security must work to improve health care in detention facilities and relax the policies that are adding to crowding both north and south of the border. During a pandemic, overcrowding and unsafe conditions not only pose a risk for migrants, but can endanger the health of everyone.
There are precedents for these four steps. After 9/11, the Immigration and Naturalization Service (the predecessor agency to Immigration and Customs Enforcement), announced that it would “exercise discretion in a compassionate way towards families of victims during this time of mourning and readjustment.”
With a pandemic upon us, it doesn’t require compassion to ensure that our immigration policies don’t threaten public health. It just requires common sense.
Wendy E. Parmet, J.D., is professor of law and director of the Center for Health Policy and Law at Northeastern University School of Law and professor of public policy and urban affairs at Northeastern’s School of Public Policy and Urban Affairs.