Notice from the Administration for Community Living

 

Notice of Court Order You are hereby advised that a temporary restraining order has been entered in the case of New York et al. v. Trump, No. 25-cv-39-JJM-PAS (D.R.I.), ECF No. 50 (Jan. 31, 2025). You are receiving this Notice pursuant to the Court’s directive that notice of the order be provided “to all Defendants and agencies and their employees, contractors, and grantees by Monday, February 3, 2025, at 9 a.m.”  This case challenges an alleged “pause” of certain Federal financial assistance, related to OMB Memorandum M-25-13, Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs (Jan. 27, 2025) (“OMB Memo”). Although that OMB Memo was rescinded on January 29, 2025, the plaintiffs in the above-referenced case allege that the funding pause directed by the OMB Memo is still in effect, including because of recently issued Executive Orders by the President.  In response, the Court has entered a temporary restraining order prohibiting certain actions by the Defendants in the case, which is effective immediately. All Defendants—including their employees, contractors, and grantees—must immediately comply with the Court’s Order. For complete details and terms of the Court’s Order, please refer to pages 11 and 12 of the Order.  To assist in your compliance, here is a summary of the key terms:       1. Federal agencies cannot pause, freeze, impede, block, cancel, or terminate any awards or obligations on the basis of the OMB Memo, or on the basis of the President’s recently issued Executive Orders.       2. This prohibition applies to all awards or obligations—not just those involving the Plaintiff States in the above-referenced case—and also applies to future assistance (not just current or existing awards or obligations).       3. Agencies may exercise their own authority to pause awards or obligations, provided agencies do so purely based on their own discretion—not as a result of the OMB Memo or the President’s Executive Orders—and provided the pause complies with all notice and procedural requirements in the award, agreement, or other instrument relating to such a pause.            a. On pages 11 and 12 of the Order, the Court prohibits agencies from pausing funding “except on the basis of the applicable authorizing statutes, regulations, and terms.” Thus, agencies remain free to exercise their own discretion under their “authorizing statutes, regulations, and terms,” including any exercise of discretion to pause certain funding. Additionally, agencies remain free to take action pursuant to the terms of the relevant award or obligation, such as in cases of grantee noncompliance.            b. Any exercise of agency discretion, however, cannot be based on the OMB Memo or the President’s Executive Orders, given that the Court has prohibited agencies from “implementing or giving effect to the OMB [Memo] under any other name or title[.]” (Order, pg.12). Additionally, any decision to pause, stop, delay, or otherwise withhold federal financial assistance programs must comply with all notice and procedural requirements in the award, agreement, or other instrument setting forth the terms of the award or obligation.       4. Out of an abundance of caution, all federal agencies (even those not named as defendants in the case) should comply with the above-referenced terms.  As the Court’s Order reflects, the above terms are temporary as litigation in the case is ongoing. At present, however, the Court’s Order is in effect and must be complied with.  If you have any questions about the scope or effect of the Court’s Order, please contact your agency’s Office of General Counsel or your grant officer, as appropriate. Thank you for your attention to this matter.  ACL.gov Advancing independence and inclusion of older adults and people with disabilities This email comes from an unmonitored account. Please do not reply to this email.

The Administration for Community Living News

Department of Homeland Security Finalizes “Public Charge” Immigration Rule

By Alison Barkoff, Acting ACL Administrator and Assistant Secretary for Aging, and Melanie Fontes Rainer, Acting Director of the HHS Office for Civil Rights

 

The Department of Homeland Security (DHS) has finalized a rule defining the criteria it uses when determining whether a person can be denied a visa and/or legal residency because they are likely to become a “public charge.” The final rule comes on the heels of the proposed rule, published February 24, 2022, and is the latest chapter in a long series of regulatory and legal actions surrounding the public charge policy. It includes several provisions that directly affect older immigrants and immigrants with disabilities, their families and caregivers.

For more information and background on the history of the public charge policy, see ACL's March 2022 blog post on the Notice of Proposed Rulemaking and the July 2021 blog post on the history of public charge rulemaking as well as resources from the Department of Homeland Security. 

What’s most important for older immigrants and immigrants with disabilities to know?

Someone may be considered a “public charge” if they are likely to become primarily dependent on the government for subsistence. This is evaluated by looking at prior and current use of certain public benefits as well as other factors such as age, health, and financial resources.

Participation in most public benefits, including ACL’s programs, will notadversely impact a citizenship or residency determination under the new rule. The ONLY public benefits considered in a public charge determination are:

• Long-term institutionalization funded by the government (for example, Medicaid-financed care in a nursing facility). Receiving Medicaid Home and Community-Based Services (HCBS) or other Medicaid health care benefits will not affect a public charge determination.
• Direct cash assistance programs, including Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF).

This is a codification of DHS’ 1999 Field Guidance (the policy that is currently in place). It solidifies DHS’ long-standing position on which public benefits will be considered in a public charge determination and which will not. 

What are the major provisions of the final rule?

DHS received 233 comments on the proposed rule, including many from the aging and disability community. The final rule provides responses to many of those comments, explaining why policy changed or remained the same. The final rule closely mirrors the proposed rule with a few exceptions. The major provisions include:

• Receiving Medicaid Home and Community Based Services (HCBS) will not factor into any public charge determination. Medicaid HCBS, as well as acute care benefits, will not be considered. 
• Long-term institutionalization at government expense will be factored into a public charge determination and while “long-term” is not explicitly defined, the rule includes guardrails. While the rule did not define what constituted “long-term” institutionalization with a hard threshold or day limit, it did specify that short-term residential care for rehabilitation or mental health treatment would not be considered. Long-term institutionalization also does not include imprisonment for conviction of a crime. DHS will collaborate with the Department of Health and Human Services to develop sub-regulatory guidance to help guide DHS agents’ evaluation of past or current institutional stays.
• Evidence may be presented to show unjustified institutionalization in violation of federal law. DHS recognizes that some people are forced to live in institutions due to the unavailability of HCBS and in violation of their rights under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act (as interpreted by the Supreme Court in Olmstead v. L.C.). As a result, an applicant for admission to the United States or an immigration status change may present evidence to show their institutionalization was in violation of federal law, thus mitigating negative weight that may be put on that period of institutionalization during a public charge determination. 
• No single factor alone is determinative of whether someone may be deemed a “public charge.” DHS will perform a “totality of the circumstances test” considering both past and current use of publicly funded institutional care and cash assistance. The test also includes an evaluation of five statutory factors: health, age, family status, assets/resources/financial status, education/skills to determine likelihood of primary dependence on the government for support. No single factor is determinative, however. Thus, past or current institutionalization, receipt of cash benefits, poor health or advanced age alone is not sufficient to render someone a public charge.
• Disability alone is not sufficient for a determination that individual is likely to become a public charge. Disability, as defined in Sec. 504 of the Rehabilitation Act of 1973, cannot be the sole basis for a determination that an that individual is in poor health, is likely to require long-term institutionalization at government expense, or is likely to become a public charge due to any other factor. 
• DHS will consider the medical evaluation performed by a physician when evaluating a non-citizens health: In the proposed rule, DHS did not specify evidence it would consider as a part of the statutory minimum factor evaluation. In the final rule, DHS clarifies it will accept information submitted via forms it is already gathering as a part of the admission, citizenship, or naturalization process. The standard medical report and vaccination record  will be considered as evidence for the health factor. This report captures information on a non-citizens chronic health conditions and/or disabilities and will be used by DHS agents in the “totality of the circumstances” analysis. DHS will work with HHS on guidance to agents to ensure disability competency when evaluating medical conditions or disabilities that appear on the medical report.

What does this mean for immigrant communities moving forward?

Non-citizens should apply for and use the public benefits to which they are entitled, with the understanding that: 

• Long-term institutionalization paid for by Medicaid (or another public source) or cash benefits like SSI or TANF may, but will not necessarily, adversely affect immigration decisions under the public charge rule. 
• Using other services – such as Medicaid HCBS, services provided through ACL’s programs, or the Supplemental Nutrition Assistance Program (SNAP) – will not affect immigration decisions under the public charge rule. 

The final rule will be effective on December 23, 2022, and will be published in the Federal Register on September 9, 2022. 

Read more:

Release from the U.S. Department of Health and Human Services: New Rule Makes Clear that Noncitizens Who Receive Health or Other Benefits to which they are Entitled Will Not Suffer Harmful Immigration 

If you believe that you have been discriminated against because of your race, color, national origin, disability, age, sex, or religion in programs or activities that HHS directly operates or to which HHS provides federal financial assistance, you may file a complaint with HHS at: https://www.hhs.gov/ocr/complaints/index.html.
 

Medicaid Changes When the Public Health Emergency Expires

ACL Fact Sheet: Preparing for Medicaid Changes When the Public Health Emergency Expires

From the Administration for Community Living:

Government agencies have started reviewing policies that were put in place to meet the needs of states, localities, and the public during the height of the COVID-19 pandemic. When the federal declaration of a public health emergency (PHE) expires, many of the flexibilities initiated during the PHE will need to be rolled back. This return to pre-pandemic operations will have far-reaching impacts for older adults and people with disabilities. 

Changes in Medicaid enrollment and eligibility will be particularly important—and potentially confusing or disruptive—for current enrollees. The aging and disability networks can prepare in advance for the coming changes to best meet the needs of people who rely on Medicaid coverage for essential services and supports.

The Families First Coronavirus Response Act (FFRCA) prohibits states accepting extra Medicaid funding from disenrolling anyone from their Medicaid programs (with limited exceptions) during the PHE. While the Biden Administration has not officially said when the PHE will end, it has assured states that they will receive at least 60 days of advance notice. Upon the end of the PHE, states will have 12 months to evaluate the eligibility of virtually everyone in their Medicaid programs to make sure they still qualify for the program. 

ACL has developed a new fact sheet to help grantees prepare for these eventual changes. The fact sheet describes how FFCRA impacts Medicaid and details five things the aging and disability networks should know:

1. Medicaid beneficiaries should make sure their Medicaid agency has their current contact information. They should check their mail and be sure to mail back any Medicaid forms they receive.
2. All renewal forms and notices must be accessible to people with limited English proficiency and people with disabilities.
3. Many people who are no longer eligible for Medicaid will have other coverage options.
4. If someone is disenrolled or their Medicaid coverage changes and they disagree with their state Medicaid agency’s decision, they can appeal.
5. The end of the Public Health Emergency may lead to an increase in utilization of services provided by Older Americans Act programs, Centers for Independent Living, Assistive Technology Act programs, and other ACL grantees.