Interim Final SCHIP Regulations Issued; Two New Provisions May Jeopardize Immigrants' Access

IMMIGRANTS & PUBLIC BENEFITS

Health Care

INTERIM FINAL SCHIP REGULATIONS ISSUED; TWO NEW PROVISIONS MAY JEOPARDIZE IMMIGRANTS' ACCESS
Immigrants' Rights Update, Vol. 15, No. 5, Aug. 31, 2001

The new regulations for the State Children's Health Insurance Program (SCHIP) add two amendments which advocates believe will impede immigrant families' access to the program. One of the new provisions is based on an interpretation of the federal Privacy Act that could also threaten immigrants' ability to receive other public benefits and services. Issued on June 25, 2001, by the Centers for Medicare and Medicaid Services (CMS) (formerly the Health Care Financing Administration), the interim final regulations amend and supersede final regulations issued in January 2001, which were placed "on hold" by the incoming Bush administration.

The two amendments in the regulations that threaten immigrant children's and families' access to SCHIP and other benefit programs relate to Social Security numbers (SSNs) and language reporting. The first authorizes states to require applicants for SCHIP to provide SSNs. The second amendment deletes a requirement that states report on SCHIP recipients' primary language.

The interim final regulations also incorporate Medicaid rules that require agencies to assist applicants who do not yet have SSNs and prohibit agencies from delaying or denying benefits to otherwise eligible applicants whose SSN applications are pending. This is a positive clarification, but it does not compensate for the negative impact the other provisions will have on immigrant participation in SCHIP.

Requiring SSNs on SCHIP applications is likely to deter applications from immigrant families, who often fear that an application for benefits will trigger reporting to the Immigration and Naturalization Service or adversely affect family members' immigration status. The requirement imposes another kind of barrier for some qualified battered immigrants and Cuban/Haitian entrants who cannot obtain regular SSNs. These individuals also face long delays in securing nonwork SSNs.

The CMS's justification for letting states require SSNs departs from a longstanding interpretation of law embodied in the prior final regulations. With limited exceptions, courts have held that requiring SSNs on applications for benefits violates the Privacy Act, which prohibits federal, state, or local governments from requiring an SSN as a condition of eligibility for any program. The CMS's novel interpretation of the Privacy Act is based on one of the exceptions, which permits states to require SSNs in "general public assistance" programs. Despite numerous legal precedents confining the exception to state and county cash assistance programs, the CMS has announced its legal interpretation that SCHIP qualifies for the general public assistance exception. The CMS's interpretation may make the exception applicable to numerous programs long considered protected by the Privacy Act, threatening immigrants' access to many essential services.

Deleting the primary language reporting requirement also has an adverse effect on immigrant families. Persons with limited English proficiency often encounter difficulty learning about programs, completing applications, and obtaining services. Benefits agencies are required to provide meaningful access for limited English-proficient persons, but their compliance cannot be measured and monitored without data. The interim final regulations encourage states to collect their own data about the languages spoken by program enrollees. Such encouragement is not sufficient because it fails to establish minimum standards and limits advocates' ability to compare states to one another.

The interim final regulations took effect on Aug. 24, 2001. In states where the implementation of the new regulations requires contract changes, the state will not be required to comply until the next contract cycle. Immigrants' rights, health, and children's advocates from around the country worked collaboratively in developing and submitting comments to the CMS on the interim final regulations. Additional comments are needed, specifically "real life" accounts of the difficulties immigrants have had in obtaining SSNs and the effect of requests for SSNs in deterring immigrant participation in benefit programs. Send stories to Health Care Financing Administration, Dept. of Health and Human Services, Attn. HCFA-2006-IFC, P.O. Box 8016, Baltimore, MD 21244-1850. Please send a copy to NILC, 3435 Wilshire Blvd, Suite 2850, Los Angeles, CA 90010, Attn. Gabrielle Lessard.

Advocates should also make efforts to monitor how their states are promoting access for persons with limited English proficiency and encourage their states to collect and make available data on recipients' primary language.

66 Fed. Reg. 33,810-22 (June 25, 2001).