Biden Administration Releases Final Rule on Public Charge

After years of seemingly ever-changing rules around public charge, it comes as a relief to see a final rule that is faithful to the statute and supported by extensive policy evidence. The definition of public charge in the final rule is consistent with long established public charge policy and law, unlike the rules under the Trump Administration. (The Trump-era rules were eventually blocked by the courts and rescinded.) This new, final rule will have more staying power because it adheres closely to the statute, longstanding public charge policy, and current practices.

However, the Biden Administration missed an opportunity to make key policy improvements. We, along with many other commenters, suggested that Medicaid be completely excluded from consideration to minimize confusion and uncertainty that could lead otherwise eligible individuals to forgo the receipt of public benefits. We also suggested that any consideration of benefit use be limited to current use of federal benefits. Finally, we suggested improvements to the totality of circumstances test for children. In the end, the Department of Homeland Security (DHS) was not persuaded on these fronts.

The final rule does take an important step by making explicit that some critical benefits will not be considered in a public charge determination, specifically Supplemental Nutrition Assistance Program (SNAP), CHIP, Medicaid (other than for long-term use of institutional services under SSA §1905(a)), housing benefits, and any benefits related to immunizations or testing for communicable diseases.

It also includes some more minor improvements compared to the proposed rule issued earlier this year, namely by providing more specificity with respect to what it means for an individual to receive public benefits. The final rule makes clear that applying for benefits or being approved for future receipt does not constitute “receipt of public benefits.” The rule also clarifies that assisting family members with benefit applications does not count, nor does their benefits use.

The final rule provides more specificity on the definition of “household” and the five statutory factors, but it will take a little more time to digest whether these changes will make it easier to understand the rules and apply them more consistently.

We will update our public charge fact sheet to reflect current law, but in the meantime, here’s a quick summary:

  • Public Charge is defined as likely at any time to become primary dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense (8 CFR 212.21(a)).
  • The benefits that will be considered include: Supplemental Security Income (SSI), cash assistance under the Temporary Assistance for Needy Families (TANF) program, and state/Tribal/local/territorial cash assistance (8 CFR 212.21(b)), plus Medicaid long-term institutionalization (8 CFR 212.21(c)).
  • Some benefits are explicitly excluded from public charge determinations, including: SNAP, CHIP, Medicaid (other than for long-term use of institutional services under SSA §1905(a)), housing benefits, and any benefits related to immunizations or testing for communicable diseases (8 CFR 212.22(a)(3)).
  • Public charge determinations will continue to be made based on the totality of the circumstances, meaning that other than missing an affidavit of support where one is required by statute, no single factor can be the sole criterion for determining whether an applicant is likely to become a public charge.
  • The rule will go into effect around December 23, 2022.

Finalizing a public charge rule that is consistent with the statute and longstanding policy is a hugely important step. But there’s more that needs to be done. Namely, stakeholders need to spread the word that the rules have changed to help undo the harm of the Trump Administration, where confusion and misinformation were intentionally used to deter eligible families from participating in needed government programs. It is critical that families are informed and empowered to make decisions based on accurate information. Eligible individuals should enroll in Medicaid and CHIP.

Kelly Whitener is an Associate Professor of the Practice at the Georgetown University McCourt School of Public Policy’s Center for Children and Families.