HHS Proposes Rule Making Fetuses Eligible for SCHIP

IMMIGRANTS & PUBLIC BENEFITS

Health Care

HHS PROPOSES RULE MAKING FETUSES ELIGIBLE FOR SCHIP
Immigrants' Rights Update, Web Edition, May 10, 2002

On March 5, 2002, the U.S. Dept. of Health and Human Services (HHS) published a proposed rule that would make fetuses eligible for the State Children's Health Insurance Program (SCHIP). Titled "Eligibility for Prenatal Care for Unborn Children, the proposed rules would make fetuses eligible for SCHIP from the date of their conception. The proposed change promises to provide federally funded prenatal care for immigrants and other low-income women who are not eligible for Medicaid.

The proposed regulations implement this change by modifying the definition of a child eligible for SCHIP. Under the current regulations a child is defined as "an individual under the age of 19." 42 CFR § 457.10. The proposed rules would amend the definition by adding the words "including the period from conception to birth." The rules would also require states to screen pregnant women for Medicaid eligibility before enrolling their fetuses in SCHIP.

However, only citizens and certain "qualified" immigrants are eligible to receive SCHIP. The proposed regulations do not explain how these requirements would be applied to a fetus. A fetus is neither a citizen nor an immigrant. A child born in the United States is a U.S. citizen, but the child must be born to acquire that status. The background section of the Federal Register notice states "[i]t is anticipated that the children covered by this regulation will become eligible for the SCHIP program after birth." This language can be read to suggest that all fetuses whose mothers apply for SCHIP will be presumed to be future citizens. In any case, there is no rational basis in law for HHS to treat fetuses differently based on the immigration status of their mothers-to-be. If any fetus carried by an income-eligible mother is regarded as meeting the immigration status or citizenship requirements of SCHIP, all fetuses should be.

The proposed regulations also fail to address the pregnant woman's rights as a medical patient. The background section states that '[p]renatal care involves monitoring the health of both the mother and the unborn child," and that "[t]his regulatory clarification is intended to benefit both the unborn children and their mothers." However, the proposed rules do not themselves address the woman's right to receive medical services that are not for the direct benefit of the fetus, to make choices for her own health in situations where her best interest conflicts with that of the fetus, and to make informed decisions about the healthcare services her fetus will receive.

The Bush administration has recognized the critical importance of providing prenatal care to all pregnant women. However, legislation that provides prenatal coverage to all low-income women would represent a more straightforward, and less controversial, way of achieving that important goal. Currently, no such legislation is pending, but there are several proposals that would move coverage in that direction. The Federal Responsibility for Immigrant Health Act (S. 2449) would provide federal matching funds for prenatal care to immigrants who are eligible for emergency Medicaid. This includes "not qualified" immigrants and qualified immigrants subject to the five-year bar.

The Immigrant Children's Health Improvement Act (ICHIA) would give states the option of providing SCHIP and Medicaid to immigrant pregnant women and children who are lawfully present. The Temporary Assistance for Needy Families (TANF) reauthorization bill introduced by Sen. John D. Rockefeller (D-WV), S. 2052, incorporates ICHIA, as does the proposal by Sens. Thomas Carper (D-DE) and Evan Bayh (D-IN), The Work and Family Act. The Carper/Bayh proposal has yet to be introduced in the Senate.

67 Fed. Reg. 9,936 (March 5, 2002).