Amicus Curiae Brief — Department of Homeland Security, et al., Applicants v. New York, et al.

Supreme Court briefJan 22, 2020

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No. 19-A785

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In The

Supreme Court of the United States

-----------------------------------------------------------------UNITED STATES DEPARTMENT

OF HOMELAND SECURITY, et al.,

Applicants,

STATE OF NEW YORK, et al.,

Respondents.

-----------------------------------------------------------------UNITED STATES DEPARTMENT

OF HOMELAND SECURITY, et al.,

Applicants,

MAKE THE ROAD NEW YORK, et al.,

Respondents.

-----------------------------------------------------------------On Application For A Stay Of The Injunctions

Issued By The United States District Court

For The Southern District Of New York

-----------------------------------------------------------------MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE AND BRIEF OF AMICI CURIAE

THE AMERICAN ACADEMY OF PEDIATRICS,

THE AMERICAN MEDICAL ASSOCIATION,

THE AMERICAN COLLEGE OF PHYSICIANS,

AND THE AMERICAN COLLEGE OF

OBSTETRICIANS AND GYNECOLOGISTS

IN SUPPORT OF RESPONDENTS

-----------------------------------------------------------------MAUREEN ALGER

Counsel of Record

SUSAN M. KRUMPLITSCH

COOLEY LLP

3175 Hanover Street

Palo Alto, CA 94304-1130

(650) 843-5000 (telephone)

malger@cooley.com

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

MOTION FOR LEAVE TO FILE

BRIEF OF AMICI CURIAE

The District Court of the Southern District of New

York properly enjoined the United States Department

of Homeland Security’s (“DHS”) enforcement of Inadmissibility on Public Charge Grounds, 84 Fed. Reg.

41292-01 (Aug. 14, 2019) (the “Regulation”). DHS appealed, seeking a stay of the district court’s injunction,

and the Second Circuit Court of Appeals properly denied the Government’s request. DHS now asks this

Court stay the district court’s injunction, which would

effectively allow DHS to begin enforcing the Regulation.

DHS filed its request for an emergency stay of the

district court’s decision on January 13, 2020. On January 19, 2020 Amici timely notified the parties of its intention to submit its amicus brief in support of

Respondents. All parties provided their consent. Pursuant to Supreme Court Rule 37.2(b), Amici therefore

respectfully move this Court for leave to file the attached amicus brief.

DHS’s enforcement of the Regulation will have a

disastrous impact on the health and well-being of the

immigrant population here in the United States. Vulnerable populations within this community, including

children, pregnant and postpartum women, and individuals with disabilities and chronic health conditions,

will fare the worst. The Regulation targets key health

and nutrition programs that are vital to the well-being

of children, pregnant and postpartum women and

individuals with disabilities. While the Regulation purports to evaluate the “totality of the circumstances”

when evaluating whether any individual will become a

public charge, the application of this test is so vague

that it will result in discriminatory decision making—

with these vulnerable populations bearing the brunt of

the harm.

The American Academy of Pediatrics (“AAP”), the

American Medical Association (“AMA”), the American

College of Physicians (“ACP”), and the American College of Obstetricians and Gynecologists (“ACOG”) (collectively, “Amici”) are leading medical organizations

whose members collectively care for these communities. Amici therefore are uniquely positioned to explain

and describe the harms that this Regulation will cause.

Lawfully present immigrants and their families will

likely forgo health and nutritional benefits to avoid

negatively impacting their immigration status. These

benefits include health and nutrition assistance to

which these individuals are legally entitled such as access to appropriate medical care, nutritious food, and

supportive medical services. Vulnerable populations

will bear the brunt of this, as they represent those most

in need of such benefits.

Amici therefore respectfully request leave to file

the attached amicus brief to inform the Court of the

negative impact that the Regulation will have on the

health and well-being of vulnerable populations within

the immigrant community.

January 21, 2020

Respectfully submitted,

MAUREEN ALGER

Counsel of Record

SUSAN M. KRUMPLITSCH

COOLEY LLP

3175 Hanover Street

Palo Alto, CA 94304-1130

(650) 843-5000 (telephone)

malger@cooley.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ........................................

TABLE OF AUTHORITIES ...................................

iii

INTEREST OF AMICI CURIAE ...........................

SUMMARY OF ARGUMENT ................................

ARGUMENT ...........................................................

The Regulation Targets Key Health And Nutrition Programs And Allows For Discriminatory Decision Making...............................

A. Utilization Of Essential Health And Nutrition Programs Are Targeted By The

Regulation..............................................

B. The Totality Of Circumstances Test Is

So Vague It Will Result In Discriminatory Decision Making ............................

II. Citizen And Non-Citizen Children Will Be

Harmed By The Regulation ......................... 11

A. The Totality Of Circumstances Test Will

Disproportionally Impact Non-Citizen

Children ................................................. 11

B. Children’s Health Will Be Harmed By

The Public Charge Regulation .............. 13

III.

The Regulation Will Be A Barrier To Health

Care For Pregnant And Postpartum Women ............................................................... 19

A. The Totality Of Circumstances Test Will

Disproportionally Impact Pregnant And

Postpartum Women ............................... 19

TABLE OF CONTENTS—Continued

Page

B. Pregnant And Postpartum Women Will Be

Directly Harmed By The Regulation .... 20

IV.

The Regulation Will Particularly Harm Individuals With Disabilities And Chronic Health

Conditions .................................................... 24

A. The Totality Of Circumstances Test Will

Disproportionally Impact Individuals With

Disabilities ............................................. 24

B. Individuals With Disabilities Will Suffer Negative Consequences To Their

Health And Well-Being.......................... 25

CONCLUSION .......................................................

iii

TABLE OF AUTHORITIES

Page

STATUTES AND REGULATIONS

8 U.S.C.

§ 1182(a)(4)(A) ...........................................................4

8 CFR

§ 212.21......................................................................6

§ 212.21(a) (2019) ......................................................4

§ 212.21(a)(5)(iv) .....................................................13

§ 212.21(b) .................................................................7

§ 212.21(d)(2) ...........................................................12

§ 212.22(a) ........................................................... 9, 11

§ 212.22(b) .................................................................9

§ 212.22(b)(1) ...........................................................12

§ 212.22(b)(2) ..................................................... 12, 19

§ 212.22(b)(2)(i) .......................................................10

§ 212.22(b)(2)(ii) ......................................................10

§ 212.22(b)(3) ...........................................................12

§ 212.22(b)(5) ...........................................................12

§ 212.22(c).............................................................. 5, 9

§ 212.22(c)(1) ................................................. 5, 20, 22

§ 212.22(c)(1)(iii) .....................................................13

§ 212.22(c)(1)(iii)(B) ................................................19

§ 213.1(b) .................................................................19

42 CFR

§ 34 et seq. ...............................................................11

§ 489.24 (1986) ..........................................................8

§ 212(a)(4) .....................................................................4

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Adam Searing & Donna Cohen Ross, Medicaid

Expansion Fills Gaps in Maternal Health

Coverage Leading to Healthier Mothers and

Babies, Georgetown Univ. Health Policy Inst.

(May 2019), https://ccf.georgetown.edu/wp-content/

uploads/2019/05/Maternal-Health-3a.pdf ..............15

Am. College of Obstetricians and Gynecologists,

Committee Opinion: Optimizing Postpartum

Care (May 2018), https://www.acog.org/-/media/

Committee-Opinions/Committee-on-ObstetricPractice/co736.pdf?dmc=1&ts=20191223T21

32352470 .................................................................24

Amy Houtrow et al., Prescribing Physical, Occupational, and Speech Therapy Services for Children with Disabilities, 143 Pediatrics e20190285

(2019) .......................................................................27

Anthony Lake, Early Childhood Development –

Global Action Is Overdue, 378 Lancet 1277

(2011) .......................................................................18

Brigitte Gavin & Marci McCoy-Roth, Review of

Studies Regarding the Medicaid Buy-In Program,

Boston Univ., Sargent College, Center for Psychiatric Rehabilitation (2011), http://www.bu.edu/

drrk/research-syntheses/psychiatric-disabilities/

medicaid-buy-in/......................................................26

Center on Budget & Policy Priorities, Medicaid

Works for People with Disabilities (Aug. 29,

2017), https://www.cbpp.org/research/health/

medicaid-works-for-people-with-disabilities ..........26

TABLE OF AUTHORITIES—Continued

Page

Children’s HealthWatch, Report Card on Food

Security & Immigration: Helping Our Youngest First-Generation Americans to Thrive (Feb.

2018), http://childrenshealthwatch.org/wp-content/

uploads/Report-Card-on-Food-Insecurity-andImmigration-Helping-Our-Youngest-FirstGeneration-Americans-to-Thrive.pdf ............... 16, 17

Chloe N. East, The Effect of Food Stamps on

Children’s Health: Evidence from Immigrants’

Changing Eligibility, Journal of Human Resources (Sept. 2018), http://www.chloeneast.com/

uploads/8/9/9/7/8997263/east_fskids_r_r.pdf..........17

Cong. Research Serv., Who Pays For Long-Term

Services and Supports? (Aug. 22, 2018) .................25

Department of Health and Human Services,

Centers for Medicare and Medicaid Services,

Updates to the §1915(c) Waiver Instructions

and Technical Guide Regarding Employment

and Employment Related Services (Sept. 16, 2011),

https://downloads.cms.gov/cmsgov/archiveddownloads/CMCSBulletins/downloads/CIB-916-11.pdf ..................................................................26

Edward R. Berchick & Laryssa Mykyta, Children’s

Public Health Insurance Coverage Lower Than

in 2017, United States Census Bur. (Sept. 2019),

https://www.census.gov/library/stories/2019/09/

uninsured-rate-for-children-in-2018.html ..................8

TABLE OF AUTHORITIES—Continued

Page

Emily E. Petersen et al., Vital Signs: PregnancyRelated Deaths, United States, 2011–2015,

and Strategies for Prevention, 13 States, 2013–

2017, 68 MMWR Morbidity & Mortality Weekly

Rep. 423 (May 10, 2019) .................................... 21, 22

Felicia L. Trachtenberg et al., Risk Factor Changes

for Sudden Infant Death Syndrome After Initiation of Back-To-Sleep Campaign, 129 Pediatrics 630 (2012) ......................................................22

Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg.

28689-01 (May 26, 1999) ...........................................4

Glenn Flores et al., The Health and Healthcare

Impact of Providing Insurance Coverage to Uninsured Children: A Prospective Observational

Study, 17 BMC Public Health 553 (2017) ..............16

Hamutal Bernstein et al., One in Seven Adults

in Immigrant Families Reported Avoiding

Public Benefit Programs in 2018, Urban Inst.

(May 2019), https://www.urban.org/sites/default/

files/publication/100270/one_in_seven_adults_

in_immigrant_families_reported_avoiding_publi_

2.pdf .........................................................................14

Inadmissiblity on Public Charge Grounds, 84

Fed. Reg. 41292-01 (Aug. 14, 2019) ................. passim

Institute of Medicine, Preterm Birth: Causes, Consequences and Prevention (Richard E. Behrman

& Adrienne Stith Butler eds., 2007) .......................23

vii

TABLE OF AUTHORITIES—Continued

Page

Jonas J. Swartz et al., Expanding Prenatal Care

to Unauthorized Immigrant Women and the

Effect on Infant Health, 130 Obstetrics & Gynecology 938 (2017) .................................................20

Julie L. Hudson & Asako S. Moriya, Medicaid

Expansion for Adults Had Measurable ‘Welcome Mat’ Effects On Their Children, 36 Health

Affairs 1643 (2017) ..................................................15

Karina Wagnerman et al., Medicaid Is A Smart

Investment in Children, Georgetown Univ. Health

Policy Inst. (March 2017), https://ccf.georgetown.

edu/wpcontent/uploads/2017/03/MedicaidSmart

Investment.pdf ........................................................16

Leah Zallman et al., Implications of Changing

Public Charge Immigration Rules for Children Who Need Medical Care, 173 JAMA Pediatrics E4-E5 (July 1, 2019) ...................... 12, 15, 18

Lena O’Rourke, Trump’s Public Charge Proposal

Is Hurting Immigrant Families Now, Protecting Immigrant Families (Apr. 2019), https://www.

chn.org/wp-content/uploads/2019/04/Protecting

ImmigrantFamilies.pdf ..................................... 13, 14

Lisa Clemens et al., How Well Is CHIP Addressing Oral Health Care Needs and Access for

Children?, 15 Academic Pediatrics 13 Suppl.

(2015) .......................................................................16

viii

TABLE OF AUTHORITIES—Continued

Page

Medicaid and CHIP Payment and Access Comm’n,

Promoting Continuity of Medicaid Coverage

among Adults under Age 65 (Mar. 2014), https://

www.macpac.gov/publication/ch-2-promotingcontinuity-of-medicaid-coverage-among-adultsunder-age-65/...........................................................26

Megan M. Shellinger et al., Improved Outcomes

for Hispanic Women with Gestational Diabetes

Using the Centering Pregnancy Group Prenatal Care Model, 21 Maternal & Child Health

Journal 297 (2016) ..................................................21

Michael Karpman & Genevieve M. Kenney,

Health Insurance Coverage for Children and

Parents: Changes Between 2013 and 2017, Urban Inst. (Sept. 7, 2017), http://hrms.urban.org/

quicktakes/health-insurance-coveragechildren

parents-march-2017.html .......................................15

Nationwide Adult Medicaid CAHPS, Health Care

Experiences of Adults with Disabilities Enrolled in Medicaid Only: Findings from a

2014-2015 Nationwide Survey of Medicaid

Beneficiaries (2016), https://www.medicaid.gov/

medicaid/quality-of-care/downloads/performancemeasurement/namcahpsdisabilitybrief.pdf ...........27

Patrice L. Engle et al., Strategies for Reducing

Inequalities and Improving Developmental Outcomes for Young Children in Low-income and

Middle-income Countries, 378 Lancet 1339

(2011) .......................................................................18

TABLE OF AUTHORITIES—Continued

Page

Peter J. Morgane et al., Effects of Prenatal Protein Malnutrition on the Hippocampal Formation, 26 Neuroscience and Biobehavioral

Rev. 471 (2002) ........................................................17

Rebecca B. Russell et al., Cost of Hospitalization

for Preterm and Low Birth Weight Infants in

the United States, 120 Pediatrics E1 (2007)...........23

Sarah E. Cusick & Michael K. Georgieff, The

Role of Nutrition in Brain Development: The

Golden Opportunity of the “First 1000 Days,”

175 Journal of Pediatrics 16 (2016) .................. 17, 18

Sarah Partridge et al., Inadequate Prenatal Care

Utilization and Risks of Infant Mortality and

Poor Birth Outcome: A Retrospective Analysis

of 28,729,765 U.S. Deliveries over 8 Years, 29

Am. Journal of Perinatology 787 (2012) .................21

Social Security Admin., Continued Medicaid Eligibility (§ 1619(B)), https://www.ssa.gov/disability

research/wi/1619b.htm............................................26

Steven Carlson et al., SNAP Provides Needed

Food Assistance to Millions of People with Disabilities, Center for Budget and Policy Priorities (2017), https://www.cbpp.org/research/foodassistance/snap-provides-needed-food-assistanceto-millions-of-people-with .......................................27

Susan P. Walker et al., Child Development: Risk

Factors for Adverse Outcomes in Developing

Countries, 369 Lancet 145 (2007) ...........................18

TABLE OF AUTHORITIES—Continued

Page

Susan P. Walker et al., Inequality in Early Childhood: Risk and Protective Factors for Early

Child Development, 378 Lancet 1325 (2011) .........18

Zhou J. Yu et al., Associations Among Dental

Insurance, Dental Visits, and Unmet Needs of

US Children, 148 Journal Am. Dental Assoc.

92 (2017) ..................................................................16

INTEREST OF AMICI CURIAE1

The American Academy of Pediatrics (“AAP”), the

American Medical Association (“AMA”), the American

College of Physicians (“ACP”), and the American College of Obstetricians and Gynecologists (“ACOG”) (collectively, “Amici”) are leading medical organizations

whose members collectively provide medical care to

the most vulnerable groups of people in society, including children, pregnant and postpartum women, and

persons who are disabled or those who suffer from

chronic illnesses.

The AAP is a non-profit professional membership

organization of 67,000 primary care pediatricians, pediatric medical subspecialists, and pediatric surgical

specialists dedicated to the health and well-being of infants, children, adolescents, and young adults. AAP believes that the future prosperity and well-being of the

United States depends on the health and vitality of all

of its children, without exception. Access to health care,

nutrition, and housing assistance programs ensures

that children grow up healthy and strong. AAP is uniquely

positioned to understand the impact of the Administration’s public charge regulation on the health of

vulnerable populations, including children.

Pursuant to Rule 37.6, Amici affirm that no counsel for a

party authored this brief in whole or in part and that no person

other than amici and their counsel made a monetary contribution

to the preparation or submission of this brief. The parties have

consented to the filing of this brief.

The AMA is the largest professional association

of physicians, residents and medical students in the

United States. Additionally, through state and specialty medical societies and other physician groups

seated in its House of Delegates, substantially all U.S.

physicians, residents and medical students are represented in the AMA’s policy making process. AMA members practice in every state and in every medical

specialty. The AMA was founded in 1847 to promote

the art and science of medicine and the betterment of

public health, and these remain its core purposes. The

AMA is exceptionally well-suited to appreciate the impact of the Regulation on the health of vulnerable populations.

The ACP is the largest medical specialty organization and the second-largest physician group in the

United States. ACP members include 159,000 internal

medicine physicians (internists), related subspecialists, and medical students. Internal medicine physicians are specialists who apply scientific knowledge

and clinical expertise to the diagnosis, treatment, and

compassionate care of adults across the spectrum from

health to complex illness.

The ACOG is the nation’s leading group of physicians providing health care for women. With more than

60,000 members—representing more than 90% of all

obstetrician–gynecologists in the United States—

ACOG advocates for quality health care for women,

maintains the highest standards of clinical practice

and continuing education of its members, promotes

patient education, and increases awareness among its

members and the public of the changing issues facing

women’s health care. ACOG is committed to ensuring

access to the full spectrum of evidence-based quality

reproductive health care for all women. ACOG believes

that access to essential health care services, such as

preventative care and prenatal and postpartum care,

as well as stable housing and nutrition are vital to

maintaining overall health and well-being for women,

children, and families. ACOG members care for women

of all socioeconomic backgrounds, including low-income

immigrant women and adolescents who use Medicaid

to access essential health care, as well as housing and

nutrition assistance programs.

Amici oppose Applicants’ application for a stay of

the injunctions issued by the United States District

Court for the Southern District of New York. Amici respectfully submit this brief to inform the Court of the

severe negative impact of the Administration’s public

charge regulation on the health and well-being of vulnerable populations, including children, pregnant and

postpartum women, and individuals with disabilities

and chronic health conditions.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

The United States Department of Homeland Security (“DHS”) has drastically overhauled decades of

precedent and Congressional intent by promulgating Inadmissiblity on Public Charge Grounds, 84 Fed.

Reg. 41292-01 (Aug. 14, 2019) (the “Regulation”). The

Regulation dramatically alters the factors considered

by immigration officials in evaluating whether a noncitizen seeking to immigrate or adjust their immigration status will become a “public charge.”2 Prior to

this Regulation, public charge referred to an individual

who was likely to become primarily dependent on

the government for subsistence, such as someone who

received cash assistance for income maintenance or

was institutionalized in a government-funded longterm care facility.3 Use of benefits such as health services or nutrition assistance were not considered in the

public charge determination.

The Regulation now interprets the public charge

designation to apply to an immigrant “who receives

one or more public benefits, . . . for more than 12

months in the aggregate within any 36-month period

(such that, for instance, receipt of two benefits in

one month counts as two months.).”4 The definition of

“public benefits” has also been enlarged to include

health, nutrition, and housing programs such as nonemergency Medicaid for non-pregnant adults and Supplemental Nutritional Assistance Program (“SNAP”).

Under Section 212(a)(4) of the Immigration and Nationality Act, an individual seeking admission to the United States

or seeking to adjust status is inadmissible if the individual is

likely at any time to become a public charge. See 8 U.S.C.

§ 1182(a)(4)(A).

Field Guidance on Deportability and Inadmissibility on Public

Charge Grounds, 64 Fed. Reg. 28689-01 (May 26, 1999).

8 CFR § 212.21(a) (2019).

Application of the Regulation’s totality of circumstances test will have a disparate impact on children,

pregnant women, and persons suffering from disabilities and chronic health conditions. The Regulation now

categorizes the receipt of public benefits, including

health or nutrition assistance, as a “heavily weighted”

negative factor.5 Receipt of such public benefits “weigh[s]

heavily in favor of a finding that an alien is likely at

any time in the future to become a public charge,”6 amplifying the impact of the Regulation on vulnerable

populations. The presence of a “heavily weighted” negative factor—such as receipt of health or nutrition assistance—will very likely tip the scales of the totality

of circumstances test in favor of a determination that

the individual is or will become a public charge.

Though DHS claims the Regulation is intended

to promote self-sufficiency, there is no evidence that

chilling the use of health and nutrition benefits will

increase the income, employment, or educational status of immigrants. Amici submit this brief to describe

the deleterious impact this Regulation will have on

the health of vulnerable populations. These sweeping

changes will ultimately result in far greater costs to

the public’s health than any purported benefit offered

by DHS.

------------------------------------------------------------------

8 CFR § 212.22(c).

8 CFR § 212.22(c)(1).

ARGUMENT

The Regulation Targets Key Health And Nutrition Programs And Allows For Discriminatory Decision Making.

The Regulation upends decades of settled policy

with regard to the public charge determination. Historically, an immigrant could be deemed inadmissible

if an immigration official concluded that the immigrant

was likely to become a public charge—interpreted to

mean primarily dependent on public assistance. The Regulation now much more broadly defines “public charge”

to include anyone who has received or is likely to receive a wide range of public benefits. The programs

targeted by the Regulation include medical benefits

such as Medicaid, nutrition benefits such as SNAP, and

housing assistance—all of which may be integral to

keep immigrants and their family members healthy,

fed, and sheltered.7 The Regulation employs a totality

of circumstances test which is so all-encompassing

that vulnerable populations such as children, pregnant

women and individuals with disabilities are uniquely

at risk for discrimination simply because of their age

or health status. Moreover, use of these health and nutrition benefits is counted as a “heavily weighted” negative factor, almost certainly resulting in the finding

that the individual is likely at any time in the future

to become a public charge.

8 CFR § 212.21.

A. Utilization Of Essential Health And Nutrition Programs Are Targeted By The

Regulation.

The Regulation expands the definition of “[p]ublic

benefit” to include non-cash benefit programs such

as SNAP, Medicaid, and Section 8 housing benefits,8

which have been key to upward mobility for generations

of immigrants. This expansion of the public benefit definition will affect many immigrant families, especially

those with low to moderate incomes. The Regulation

gives immigration officers broad discretion to make

a public charge determination based on whether an

immigrant may utilize, at some point in the future,

Medicaid, SNAP, or housing benefits. Certain groups of

immigrants, such as parolees or those subject to withholding of removal, would be penalized for utilizing

Medicaid if they ever sought to adjust their immigration status through a family member. Immigrants with

health conditions that require “extensive treatment”

who receive health coverage through state-funded programs would be penalized if they cannot demonstrate

an ability to purchase private insurance.

Equally significant, the Regulation’s chilling effect will impact many additional families. The Regulation has already resulted in widespread confusion and

fear throughout the immigrant community, causing

many to forgo assistance for which they are legally entitled under federal or state law, such as accessing

8 CFR § 212.21(b).

emergency care in hospitals9 or children’s health insurance coverage.10 There was an increase in the child uninsurance rate from 5% in 2017 to 5.5% in 2018 which

is largely because of a decline in children’s Medicaid

and the Children’s Health Insurance Program (CHIP)

coverage rates.11 Rates of decline were highest for Hispanic children.12 This puts parents and children at risk

for poorer health outcomes, additional economic hardship, and long-term consequences.

B. The Totality Of Circumstances Test Is So

Vague It Will Result In Discriminatory

Decision Making.

The Regulation is likely to be applied by immigration officers in an inconsistent and discriminatory

manner. The Regulation states that the public charge

determination “must be based on the totality of the

alien’s circumstances by weighing all factors that are

The Emergency Medical Treatment & Labor Act ensures

public access to emergency medical services regardless of ability

to pay. 42 CFR § 489.24 (1986).

Edward R. Berchick & Laryssa Mykyta, Children’s Public

Health Insurance Coverage Lower Than in 2017, United States

Census Bur. (Sept. 2019), https://www.census.gov/library/stories/

2019/09/uninsured-rate-for-children-in-2018.html (reporting that

Hispanic children were more likely to be uninsured than children

from other races and non-Hispanic origin groups. Between 2017

and 2018, the uninsured rate increased 1.0 percentage point for

Hispanic children and 0.5 percentage points for non-Hispanic

Whites).

Id.

relevant to whether the alien is more likely than not

. . . to receive one or more public benefits. . . .”13 While

the Regulation states that the determination is based

on a totality of circumstances, the immigration officer

is instructed to consider a set of minimum factors (age,

health, family status, education and skills, and financial status), heavily weighted negative factors (e.g., employment status, receipt of public benefits, diagnosis of

an extensive medical condition without adequate private insurance), and heavily weighted positive factors

(household income of at least 250% of the federal poverty guidelines, employment with an income of at least

250% of federal poverty guidelines, and private health

insurance).14 There is no guidance provided on how to

balance the competing factors, especially when some

factors have more impact than others.

Most significantly, the application of each of these

factors will have a disparate impact on vulnerable populations. The inclusion of “health” as a factor in this

analysis will likely result in discrimination against

persons with a wide variety of health conditions. The

Regulation states:

DHS will consider whether the alien’s health

makes the alien more likely than not to become a public charge at any time in the future,

including whether the alien has been diagnosed with a medical condition that is likely

to require extensive medical treatment or institutionalization or that will interfere with

8 CFR § 212.22(a) (emphasis added).

8 CFR § 212.22(b), (c).

the alien’s ability to provide and care for himself or herself, to attend school, or to work

upon admission or adjustment of status.15

This vague definition of “medical condition” is overbroad and unworkable. There is no guidance provided

as to what “extensive medical treatment” consists of, or

what type of medical condition would rise to the level

of “interfer[ing]” with work or school. This could include anything from a condition necessitating the use

of expensive medical equipment such as a power wheelchair to a child’s learning disability that requires an

Individualized Education Plan.

Further, the immigration official may rely on evidence that includes, but is not limited to, (i) an immigration medical examination, or if the immigration

officer finds the report to be incomplete, (ii) evidence of

such a medical condition.16 There is no explicit requirement of the type or quality of such “evidence,” including whether the evidence must be documented by a

medical professional. The immigration officer is not limited to these two categories of evidence. The Regulation

provides no restrictions on what the immigration officer

can consider when evaluating an immigrant’s health.

This provision has the potential of allowing an immigration official to act as an unqualified medical expert,

with no oversight.17

8 CFR § 212.22(b)(2)(i).

8 CFR § 212.22(b)(2)(ii).

Not only is it manifestly unjust for an immigration officer,

with no medical training, to make a determination about the

The Regulation expands the definition of public

benefit and relies on an ambiguous “totality of circumstances” test to evaluate whether an immigrant is or

will become a public charge.18 The application of this

Regulation will have a negative impact on the health

of immigrants and their families and an even more

severe effect on vulnerable populations, including children, pregnant women, and individuals with disabilities.

II.

Citizen And Non-Citizen Children Will Be

Harmed By The Regulation.

The Regulation will have a devastating impact on

children in this country—increasing the likelihood

that immigrant children will be designated a public

charge and reducing access to health and nutrition

benefits for all children, including U.S. citizens.

A. The Totality Of Circumstances Test Will

Disproportionally Impact Non-Citizen

Children.

Immigrant children are plainly disadvantaged

by the Regulation’s “totality of circumstances” test—

the child’s age will count against them as a negative

health status of an immigrant, such a scenario contravenes 42

CFR § 34 et seq. (setting forth the requirements for medical examinations of aliens).

8 CFR § 212.22(a).

factor.19 A child will also be penalized by the “education

and skills” factor, as it is unlikely the child could

demonstrate “adequate education and skills to either

obtain or maintain lawful employment.”20 Additional

negative factors are related to larger family size (implicated if the child has siblings) or if the child resides

in a single parent household.21 If the child has a medical condition that requires “extensive medical treatment” or “interfere[s]” with the child’s ability to attend

school, this will count as an additional negative factor.22 One study reported that 4.8 million children in

need of medical attention live in households with at

least one noncitizen adult and are insured by Medicaid

or CHIP.23 This includes a significant number of children with at least one potentially life-threatening

condition or illness, including asthma, influenza, diabetes, epilepsy, or cancer.24 Children who live with such

medical conditions and who reside in households that

8 CFR § 212.22(b)(1) (“When considering an alien’s age,

DHS will consider whether the alien’s age makes the alien more

likely than not to become a public charge at any time in the future, such as by impacting the alien’s ability to work, including

whether the alien is between the age of 18 and the minimum

‘early retirement age’ for Social Security. . . .”).

8 CFR § 212.22(b)(5).

8 CFR § 212.21(d)(2); 8 CFR § 212.22(b)(3).

8 CFR § 212.22(b)(2).

Leah Zallman et al., Implications of Changing Public Charge

Immigration Rules for Children Who Need Medical Care, 173

JAMA Pediatrics E4-E5 (July 1, 2019) (defining “in need of medical attention” in the study as “children with a current or recent

medical diagnosis, disability, and/or need for specific therapy”).

Id.

cannot afford private health insurance, would be penalized with a heavily weighted negative factor under

§212.22(c)(1)(iii).

The Regulation does exempt from the public benefits definition the receipt of Medicaid benefits by immigrants under the age of 21.25 But a child under the

age of 18, unemployed, and living in a single parent

household already has three negative factors weighing

against them. If that child also suffers from a disability

that requires “extensive medical treatment,” such as

severe asthma, this would be a fourth negative factor. The totality of circumstances test will make it

uniquely difficult for children, particularly those with

health challenges or those in lower income households,

to avoid being labeled a public charge.

B. Children’s Health Will Be Harmed By The

Public Charge Regulation.

The impact of the Regulation on the health and

well-being of all children in immigrant families cannot

be understated. Many such families rely on government

programs for preventive, rehabilitative, habilitative,

and emergency health needs as well as supplemental

nutrition. This Regulation will cause, or already has

caused, families to disenroll from these programs.26

8 CFR § 212.21(a)(5)(iv).

Lena O’Rourke, Trump’s Public Charge Proposal Is Hurting

Immigrant Families Now, Protecting Immigrant Families (Apr.

2019), https://www.chn.org/wp-content/uploads/2019/04/Protecting

ImmigrantFamilies.pdf.

The Regulation will have a chilling effect on the

utilization of programs specifically identified, such as

SNAP and Medicaid. The fear and confusion over what

is covered by the Regulation will also result in a chilling

effect on programs that are not explicitly called out,

such as CHIP, the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), and

state-funded Medicaid programs.

This chilling effect is real, measurable, and exacerbated by the final Regulation. After the Regulation

was published, but before it was even finalized, many

immigrant families began avoiding government healthcare programs and regular doctor’s appointments.27 A

study reported that one-seventh of all adults in immigrant families reported avoiding non-cash public benefits over the past year because of fear that their legal

immigration status would be harmed.28 Low-income

members of immigrant families reported even higher

rates of avoidance.29 Of this group that avoided benefits, 46% avoided nutrition benefits (SNAP), 42% avoided

medical benefits (Medicaid and CHIP), and 33% avoided

public housing subsidies.30 This chilling effect was measurable even before the final Regulation was published,

Id.

Hamutal Bernstein et al., One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in

2018, Urban Inst. (May 2019), https://www.urban.org/sites/default/

files/publication/100270/one_in_seven_adults_in_immigrant_families_

reported_avoiding_publi_2.pdf.

Id.

and it is expected that the rates of avoidance will be

markedly higher once it is enforced.

Children will lose health coverage—whether due

to chilling affects or their households being directly

targeted by this Regulation—to potentially disastrous

effects.31 A study found that disenrollment of children

in need of medical care would likely contribute to child

deaths and future disability.32 Foregoing regular treatment for such children will likely lead to increased

health care costs and disastrous outcomes.33 For these

vulnerable children, the loss of health coverage would

be catastrophic.

Whether or not a parent has health care coverage

profoundly affects the health and well-being of their

children. Parents with coverage are more likely to have

children enrolled in coverage, and parents who lose

coverage are more likely to allow their children’s coverage to lapse.34 The benefits to providing insurance coverage to children are wide ranging, including improving

Michael Karpman & Genevieve M. Kenney, Health Insurance Coverage for Children and Parents: Changes Between 2013

and 2017, Urban Inst. (Sept. 7, 2017), http://hrms.urban.org/quick

takes/health-insurance-coveragechildrenparents-march-2017.html.

Leah Zallman et al., infra.

Id.

Adam Searing & Donna Cohen Ross, Medicaid Expansion

Fills Gaps in Maternal Health Coverage Leading to Healthier

Mothers and Babies, Georgetown Univ. Health Policy Inst.

(May 2019), https://ccf.georgetown.edu/wp-content/uploads/2019/05/

Maternal-Health-3a.pdf; Julie L. Hudson & Asako S. Moriya,

Medicaid Expansion for Adults Had Measurable ‘Welcome Mat’

Effects On Their Children, 36 Health Affairs 1643 (2017).

children’s access to health and dental care, improving

parental satisfaction, and saving money.35 Increased

access to health insurance such as Medicaid in early

childhood leads to long-term health improvements

such as a decline in prevalence of high blood pressure,

reduced adult hospitalizations, reduction in self-reported

rates of disability, and reduced mortality in teenage

and adult years.36 Access to health insurance during

childhood also increases the likelihood of graduating

from high school and attending college, as well as

achieving a higher earning potential.37

Access to nutritious food is also fundamental to

the healthy development of all children. SNAP is the

largest federal nutrition program that helps recipients

buy healthy food. Children in immigrant families that

receive SNAP benefits are more likely to be in good or

excellent health, be food secure, and reside in stable

housing.38 These families have more resources to afford

Lisa Clemens et al., How Well Is CHIP Addressing Oral

Health Care Needs and Access for Children?, 15 Academic Pediatrics 13 Suppl. (2015); Zhou J. Yu et al., Associations Among Dental Insurance, Dental Visits, and Unmet Needs of US Children,

148 Journal Am. Dental Assoc. 92 (2017); Glenn Flores et al., The

Health and Healthcare Impact of Providing Insurance Coverage

to Uninsured Children: A Prospective Observational Study, 17

BMC Public Health 553 (2017).

Karina Wagnerman et al., Medicaid Is A Smart Investment

in Children, Georgetown Univ. Health Policy Inst. (March 2017),

https://ccf.georgetown.edu/wpcontent/uploads/2017/03/Medicaid

SmartInvestment.pdf.

Id.

Children’s HealthWatch, Report Card on Food Security &

Immigration: Helping Our Youngest First-Generation Americans

medical care and prescription medications, compared

to families who do not participate in SNAP.39 Significantly, an additional year of SNAP eligibility for young

children with immigrant parents is associated with

significant health benefits in later childhood and adolescence.40

These results are not surprising: nutrition is one

of the greatest environmental influences on fetal and

infant development.41 A healthy balance of essential

nutrients during a child’s formative periods is imperative for normal brain development.42 Neuroscientists

describe such formative periods as “critical periods”

and “sensitive periods” to emphasize the vulnerability

of a child’s developing brain.43 Nutrient deficiencies can

have irreversible long-term consequences such as stunting

sensori-motor, cognitive-language, and social-emotional

to Thrive (Feb. 2018), http://childrenshealthwatch.org/wp-content/

uploads/Report-Card-on-Food-Insecurity-and-Immigration-HelpingOur-Youngest-First-Generation-Americans-to-Thrive.pdf.

Id.

Chloe N. East, The Effect of Food Stamps on Children’s

Health: Evidence from Immigrants’ Changing Eligibility, Journal

of Human Resources (Sept. 2018), http://www.chloeneast.com/uploads/

8/9/9/7/8997263/east_fskids_r_r.pdf.

Peter J. Morgane et al., Effects of Prenatal Protein Malnutrition on the Hippocampal Formation, 26 Neuroscience and Biobehavioral Rev. 471 (2002).

Sarah E. Cusick & Michael K. Georgieff, The Role of Nutrition in Brain Development: The Golden Opportunity of the

“First 1000 Days,” 175 Journal of Pediatrics 16 (2016).

Id.

functions.44 Such failures to optimize brain development early in life have substantial and long-lasting

ramifications. Studies have shown that children who do

not meet certain developmental milestones are less

likely to remain and succeed in school, less likely to

earn higher incomes as adults, and less likely to provide adequate nutrition and educational opportunities

to their own children.45

Disincentivizing the use of SNAP or other public

food security benefits by immigrant families will result

in enduring damage to the health and development of

all children in such families.46 Such damage will be

compounded over time as affected children have higher

likelihoods of falling short of their full developmental

potential, lower achievement in school, and having less

professional career satisfaction.47 Access to medical

care and adequate nutrition allows early identification

of issues before they become more difficult and costly

to treat. The Regulation will restrict access to health

Id.; see also Susan P. Walker et al., Child Development:

Risk Factors for Adverse Outcomes in Developing Countries, 369

Lancet 145 (2007).

Anthony Lake, Early Childhood Development – Global Action Is Overdue, 378 Lancet 1277 (2011); Patrice L. Engle et al.,

Strategies for Reducing Inequalities and Improving Developmental Outcomes for Young Children in Low-income and Middleincome Countries, 378 Lancet 1339 (2011); Susan P. Walker et al.,

Inequality in Early Childhood: Risk and Protective Factors for

Early Child Development, 378 Lancet 1325 (2011).

Leah Zallman et al., infra.

Leah Zallman et al., at E5.

and nutrition programs and directly result in irreparable health risks to children.

III. The Regulation Will Be A Barrier To Health

Care For Pregnant And Postpartum Women.

In addition to its effect on children, the Regulation

will negatively impact the ability of pregnant and postpartum women to obtain or maintain legal immigration status and will have a tragic effect on their health.

A. The Totality Of Circumstances Test Will

Disproportionally Impact Pregnant And

Postpartum Women.

Under the totality of circumstances test, women

may be penalized for being pregnant or for having

given birth. The Regulation explicitly mandates that a

heavily-weighted negative factor is the immigrant’s

“health,” including diagnosis of a medical condition requiring extensive medical treatment or interfering with

care, school, or work.”48 If the individual does not have

private health insurance, this is an additional heavily

weighted negative factor.49 If an individual has one or

more heavily weighted negative factors, “DHS generally will not favorably exercise discretion to allow submission of a public charge [surety] bond.”50

8 CFR § 212.22(b)(2).

8 CFR § 212.22(c)(1)(iii)(B).

8 CFR § 213.1(b).

A woman who is pregnant or has recently given

birth—especially a woman who has suffered serious

pregnancy-related complications—who is also unable

to afford private insurance to cover her birth or postpartum care will be penalized. Moreover, while the

Regulation exempts receipt of Medicaid benefits for

women who are pregnant and for 60 days postpartum

as a factor in the public charge determination, Medicaid-eligible immigrants who utilize the program after

the 60-day postpartum period, including immigrants

who become eligible for coverage after meeting the

“five year bar” would be given a “heavily weighted negative factor.”51 In many cases, this will include pregnant and postpartum women.

B. Pregnant And Postpartum Women Will

Be Directly Harmed By The Regulation.

As with other vulnerable populations, the Regulation will reduce the use of social safety net programs

by women who have recently experienced pregnancy.

These barriers to accessing prenatal and postnatal

care will have a drastic impact on the health of these

women, their babies, and other family members. Regular prenatal care is proven to help prevent and detect

serious pregnancy complications in mothers, including

hypertension, infection, and anemia.52 Not surprisingly,

8 CFR § 212.22(c)(1).

Jonas J. Swartz et al., Expanding Prenatal Care to Unauthorized Immigrant Women and the Effect on Infant Health, 130

Obstetrics & Gynecology 938 (2017).

lack of adequate prenatal care contributes to higher

rates of maternal mortality.53

Lack of prenatal care can have serious implications for children, affecting their birth and early health

outcomes.54 Prenatal care is associated with decreased

incidence of low birth weight and newborn death.55 For

example, researchers studying the expansion of the

Emergency Medicaid Plus program in Oregon, which

resulted in expanding access to prenatal care, found

“a significant decrease in both the probability of extremely low birth weight infants and infant death with

access to prenatal care.”56 The decrease in infant mortality associated with expanded access to prenatal care

was so great that it measured “greater than the 30year reduction in infant mortality from Sudden Infant

Death Syndrome (SIDS) associated with the ‘Back to

Sleep’ campaign.”57

Emily E. Petersen et al., Vital Signs: Pregnancy-Related

Deaths, United States, 2011–2015, and Strategies for Prevention,

13 States, 2013–2017, 68 MMWR Morbidity & Mortality Weekly

Rep. 423 (May 10, 2019); see also Sarah Partridge et al., Inadequate Prenatal Care Utilization and Risks of Infant Mortality and

Poor Birth Outcome: A Retrospective Analysis of 28,729,765 U.S.

Deliveries over 8 Years, 29 Am. Journal of Perinatology 787 (2012).

Megan M. Shellinger et al., Improved Outcomes for Hispanic Women with Gestational Diabetes Using the Centering Pregnancy Group Prenatal Care Model, 21 Maternal & Child Health

Journal 297 (2016).

Id.

Id. The “Back to Sleep” campaign was created to encourage

parents to put their infants to sleep on their backs in order to reduce

the rate of SIDS. Following the initiation of the “Back to Sleep”

The United States has the highest rate of maternal deaths in the developed world and one of the highest rates of infant mortality.58 These rates are even

higher in low-income communities and among women

of color.59 The CDC has identified contributing factors

to maternal mortality and strategies to prevent future

pregnancy-related deaths. These factors include community factors (e.g., unstable housing, access to clinical

care, and limited access to transportation) and system

factors (e.g., inadequate receipt of care and case coordination or management).60

Strategies to address community factors include

“increasing availability and use of group prenatal care,

prioritizing pregnant and postpartum women for temporary housing programs, improving availability of transportation services covered by Medicaid, improving access

to healthy foods, and promoting healthy eating habits

and weight management strategies.”61 Strategies to

address system factors include “extend[ing] expanded

Medicaid coverage eligibility for pregnant women to include one year of postpartum care.”62 Thus, even if immigrant women are not penalized for using Medicaid

campaign in 1994, the number of infants dying from SIDS decreased by almost 50%. See Felicia L. Trachtenberg et al., Risk

Factor Changes for Sudden Infant Death Syndrome After Initiation of Back-To-Sleep Campaign, 129 Pediatrics 630 (2012).

Emily E. Petersen et al., infra.

Id.

Id. at 428, Table 3.

Id.

during their pregnancy and immediately after birth,

they will be penalized for accessing these types of medical safety-net programs that are demonstrated to reduce maternal mortality.

Moreover, DHS trivializes the immense cost of inadequate prenatal care to society. Inadequate prenatal

care is associated with an increased risk of preterm

births. The medical costs for a preterm baby are much

greater than for a healthy newborn.63 Specifically, the

economic burden associated with preterm birth in

the United States was at least $26.2 billion annually,

or $51,600 per infant born preterm.64 To put it in perspective, the average preterm/low birth weight hospitalization cost $15,100 with a 12.9 day length of stay,

whereas, an uncomplicated newborn hospitalization

cost $600 with a 1.9 day stay.65

Postpartum care is equally crucial to the health

and well-being of mothers, newborns, and families.

For example, foregoing postpartum care could result in

women enduring postpartum depression without proper

medical, social, and psychological care or skipping doctor’s visits that address infant feeding, nutrition, and

Institute of Medicine, Preterm Birth: Causes, Consequences

and Prevention (Richard E. Behrman & Adrienne Stith Butler

eds., 2007).

Id.

Rebecca B. Russell et al., Cost of Hospitalization for Preterm and Low Birth Weight Infants in the United States, 120 Pediatrics E1 (2007).

physical activity.66 Other postpartum health issues, such

as chronic disease management, could also remain unaddressed.67

The Regulation is highly likely to irreparably damage the health and well-being of immigrant pregnant

and postpartum women, and the health and cognitive

development of millions of infants and young children.

IV. The Regulation Will Particularly Harm Individuals With Disabilities And Chronic Health

Conditions.

The Regulation will directly harm the health of

immigrants with disabilities, creating a strong incentive for these individuals to avoid accessing necessary

health and other non-cash benefit programs and making it harder to successfully apply for a visa or permanent legal status.

A. The Totality Of Circumstances Test Will

Disproportionally Impact Individuals With

Disabilities.

Receipt of non-cash public benefits including Medicaid, inadequate private insurance, and a diagnosis

with a medical condition that “will require extensive

medical treatment” or “interfere with the individual’s

Am. College of Obstetricians and Gynecologists, Committee Opinion: Optimizing Postpartum Care (May 2018), https://

www.acog.org/-/media/Committee-Opinions/Committee-on-ObstetricPractice/co736.pdf ?dmc=1&ts=20191223T2132352470.

Id.

ability to support himself or herself ” are all heavily

weighted negative factors in the public charge determination.68 As a result, this Regulation will have a devastating impact on the ability of immigrants with

disabilities and chronic health conditions to obtain, adjust, or maintain legal residency in the United States.

B. Individuals With Disabilities Will Suffer

Negative Consequences To Their Health

And Well-Being.

The Regulation acts as a significant roadblock

for immigrants with disabilities and their families to

become and remain self-sufficient. Public benefit

programs, including Medicaid, are essential to facilitate educational and employment opportunities for

people with disabilities and chronic conditions. Medicaid covers primary care, preventative care, medical

treatment, and supportive services for people with disabilities.69 For many, Medicaid is the only source for

critical community living supports such as personal

care services, nursing services, respite, intensive mental health services and employment supports.

There is a strong link between Medicaid and the

ability of individuals with disabilities to live independently. Medicaid is critical to help ensure that

8 CFR § 212.22(c)(1).

Cong. Research Serv., Who Pays For Long-Term Services

and Supports? (Aug. 22, 2018), https://fas.org/sgp/crs/misc/IF10343.pdf.

individuals with disabilities can attend school and

work.70 For example, more than 150,000 individuals

with disabilities participate in Medicaid buy-in programs, which provide Medicaid coverage for those

who participate in the labor force.71 Medicaid buy-in

participants earn more, work more, contribute more

in taxes, and rely less on food stamps than people with

disabilities who are not enrolled.72 For individuals

with intellectual or developmental disabilities, Medicaid provides supportive services to facilitate employment.73 The role of Medicaid in supporting individuals

with disabilities so that they can remain productive

members of their community cannot be understated.

Center on Budget & Policy Priorities, Medicaid Works for

People with Disabilities (Aug. 29, 2017), https://www.cbpp.org/

research/health/medicaid-works-for-people-with-disabilities.

Brigitte Gavin & Marci McCoy-Roth, Review of Studies

Regarding the Medicaid Buy-In Program, Boston Univ., Sargent

College, Center for Psychiatric Rehabilitation (2011), http://www.bu.

edu/drrk/research-syntheses/psychiatric-disabilities/medicaid-buyin/); Social Security Admin., Continued Medicaid Eligibility (§ 1619(B)),

https://www.ssa.gov/disabilityresearch/wi/1619b.htm; Medicaid and

CHIP Payment and Access Comm’n, Promoting Continuity of

Medicaid Coverage among Adults under Age 65 (Mar. 2014),

https://www.macpac.gov/publication/ch-2-promoting-continuity-ofmedicaid-coverage-among-adults-under-age-65/.

Brigitte Gavin & Marci McCoy-Roth, infra.

Department of Health and Human Services, Centers for

Medicare and Medicaid Services, Updates to the §1915(c) Waiver

Instructions and Technical Guide Regarding Employment and

Employment Related Services (Sept. 16, 2011), https://downloads.

cms.gov/cmsgov/archived-downloads/CMCSBulletins/downloads/

CIB-9-16-11.pdf (discussing the use of waiver supports to increase

employment opportunities for individuals with disabilities).

The number of individuals who will be irreparably

harmed by the Regulation is significant and includes

both children and adults. Rates of children diagnosed

with a disability have increased, including children

with neurodevelopmental conditions.74 Health conditions correlated with childhood disabilities range from

autism spectrum disorder to cerebral palsy to juvenile

idiopathic arthritis.75 Habilitation and rehabilitation

therapies are crucial to help children with disabilities

attain developmentally appropriate functional skills

and provide adaptive strategies to lessen impacts of

functional deficits.76 These therapies play a significant

role in improving the health and well-being of children

with disabilities.77

Approximately one-third of working-age adults

enrolled in Medicaid have a disability.78 In 2015 people

with disabilities made up 26% of SNAP participants.79

Blocking or disincentivizing access to medical and

Amy Houtrow et al., Prescribing Physical, Occupational,

and Speech Therapy Services for Children with Disabilities, 143

Pediatrics e20190285 (2019).

Id.

See, e.g., Nationwide Adult Medicaid CAHPS, Health Care Experiences of Adults with Disabilities Enrolled in Medicaid Only: Findings from a 2014-2015 Nationwide Survey of Medicaid Beneficiaries

(2016), https://www.medicaid.gov/medicaid/quality-of-care/downloads/

performance-measurement/namcahpsdisabilitybrief.pdf.

Steven Carlson et al., SNAP Provides Needed Food Assistance to Millions of People with Disabilities, Center for Budget and

Policy Priorities (2017), https://www.cbpp.org/research/food-assistance/

snap-provides-needed-food-assistance-to-millions-of-people-with.

nutrition benefits will result in worse medical outcomes and food insecurity for this already vulnerable

population.

------------------------------------------------------------------

CONCLUSION

The Regulation dramatically increases the likelihood that lawfully present immigrants and their families will forgo health and nutrition benefits to avoid

negatively impacting their immigration status. The

health and well-being of vulnerable children, pregnant

and postpartum women, and individuals with disabilities will be most severely threatened. On behalf of

their patients, members, and the communities they

serve, Amici urge this Court to reject the Government’s

application for a stay of the injunctions issued by the

United States District Court for the Southern District

of New York.

January 21, 2020

Respectfully submitted,

MAUREEN ALGER

Counsel of Record

SUSAN M. KRUMPLITSCH

COOLEY LLP

3175 Hanover Street

Palo Alto, CA 94304-1130

(650) 843-5000 (telephone)

malger@cooley.com

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.