HHS Issues Final Regulations Granting SCHIP to Fetuses

IMMIGRANTS & PUBLIC BENEFITS

Health Care

HHS ISSUES FINAL REGULATIONS GRANTING SCHIP TO FETUSES
Immigrants' Rights Update, Vol. 16, No. 6, October 21, 2002

The U.S. Dept. of Health and Human Services (HHS) has published final regulations granting states the option of providing health insurance coverage to fetuses through the State Children's Health Insurance Program (SCHIP). The regulations achieve this end by amending the definition of a low-income child eligible for SCHIP to include "the period from conception to birth." The rule extends eligibility to fetuses without regard to the immigration status of their mothers. By doing so, it provides a potential source of prenatal care coverage for women who are not "qualified" immigrants (including undocumented women) and those who are subject to the five-year bar on federal Medicaid and SCHIP.

HHS stated that the intent of the rule is to expand the availability of prenatal care, but many health and women's rights groups are concerned that this is an effort to advance the Bush administration's anti-abortion position by establishing a legal precedent for recognizing the fetus as a person. These groups may challenge the new regulation in court, arguing that Congress limited SCHIP benefits to "children" and fetuses are not children.

Whatever the outcome of any such litigation, there is no legal basis for distinguishing among fetuses based on immigration status. As the preamble to the final rule points out, SCHIP eligibility is determined by the immigration status of the child, not the child's parents, and a fetus does not have any immigration status. The preamble also clarifies that neither the fetus nor the pregnant woman can be required to provide a Social Security number.

The impact this regulation will have depends on whether states decide to take the option of providing this coverage with federal funds. Many states with large immigrant populations already provide prenatal care to some or all low-income women who are ineligible for federally funded care. States choosing to secure federal reimbursement for these services should ensure that women receive or continue to receive comprehensive care, during and following a pregnancy.

The regulations and accompanying preamble leave unresolved a number of questions regarding the scope of coverage and practical questions about how the regulation will be implemented. For example, HHS allows states to determine whether a fetus meets the residency requirements for the state program, which could present a barrier to migrant workers and others who have difficulty proving their residency. The regulation also leaves it to the states to determine whether and to what extent a woman may receive care for conditions not directly related to the pregnancy, such as broken bones or an illness. However, the rule notes that there must be some connection between the woman's health care need and the well-being of the child.

The administration's public support for prenatal and preventive care strengthens the case for passage of the Immigrant Children's Health Improvement Act (ICHIA), which would provide states with the option of covering lawfully present pregnant women and children, regardless of their date of entry into the United States. Under current law, immigrants—including many pregnant women and children who entered the country on or after Aug. 22, 1996—are barred for five years from securing federally funded SCHIP or Medicaid. The passage of the bill would ensure not only that lawfully present women receive comprehensive care during and immediately following their pregnancy but also that lawfully present children receive coverage.

67 Fed. Reg. 61,955-74 (Oct. 2, 2002).