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Washington DC Update 9/15/22
Legislative Updates
Both chambers are back in session this week, and there are just 3 weeks left to avert a government shutdown. A temporary spending bill to keep the government funded until mid-December is still expected this week.
 
Mental Health
Early reports show that many people are using the new 988 hotline for mental health, with 360,000 people calling the line and 100,000 texting or chatting since it began in July. You might already know that Senator Bennet (D-CO) and Cornyn (R-TX) teamed up to write an issue brief on “re-imagining mental health care.” This week, Senator Bennet sent a letter to the Biden administration urging that CMS update guidance on Medicaid funding for school-based mental health care. So far, the only bill introduced is the bi-partisan Mental Health Reform Reauthorization Act of 2022 sponsored by Senators Murphy (D- CT), Tina Smith (D-MN), and Cassidy (R-LA) in May. It has been referred to the Senate HELP Committee. IAs we come off the August recess, it looks like a mental health bill is still a possibility before the end of the year.
From the Administration
DHS: Final Rule - Public Charge
The final rule will be effective on December 23, 2022, and was published in the Federal Register on September 9, 2022. 

From the HHS press release on the new final rule
The U.S. Department of Homeland Security (DHS) issued a final rule applicable to noncitizens who receive or wish to apply for benefits provided by the U.S. Department of Health and Human Services (HHS) and States that support low-income families and adults. The rule, which details how DHS will interpret the “public charge” ground of inadmissibility, will help ensure that noncitizens can access health-related benefits and other supplemental government services to which they are entitled by law, without triggering harmful immigration consequences. By codifying in regulation the “totality of the circumstances” approach that is authorized by statute and which has long been utilized by DHS, the rule makes it clear that individual factors, such as a person’s disability or use of benefits alone will not lead to a public charge determination.

The final rule applies to noncitizens requesting admission to the U.S. or applying for lawful permanent residence (a “green card”) from within the U.S. When assessing whether a noncitizen is “likely to become primarily dependent on the government for subsistence,” DHS will not penalize individuals who choose to access the vast majority of health-related benefits and other supplemental government services available to them, including most Medicaid benefits (except for long-term institutionalization – such as residing in nursing home – at government expense) and the Children’s Health Insurance Program (CHIP). DHS will also not consider non-cash benefits provided by other government agencies including food and nutrition assistance such as the Supplemental Nutrition Assistance Program (SNAP); disaster assistance received under the Stafford Act; pandemic assistance; benefits received via a tax credit or deduction; and government pensions or other earned benefits. Receipt of cash-based benefits, such as Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and other similar programs, will not automatically exclude an individual from admission or green card eligibility, and will instead be considered in a “totality of the circumstances” analysis.

From ACL press release - highlighting the impacts for the disability community
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.


From the National Immigration Law Center (NILC)
NILC developed several materials to support communication about the regulation with families, journalists, policymakers, and the public. The toolkit includes:

An explainer video toolkit to help reduce misinformation. Film a video in your language of preference that can be shared through social media:

A fact sheet on the new regulation:

A set of simple community engagement videos that clarify which members of immigrant families are exempt from public charge:

Additional resources:
 
 
HHS: Social Media and Wellness
As part of the Biden-⁠Harris Administration’s Strategy to Address the National Mental Health Crisis, the U.S. Department of Health and Human Services (HHS), through the Substance Abuse and Mental Health Services Administration (SAMHSA), awarded $2 million in funding Thursday to the American Academy of Pediatrics to establish a National Center of Excellence on Social Media and Mental Wellness.

The purpose of the Center is to develop and disseminate information, guidance, and training on the impact—including risks and benefits—that social media use has on children and young people, especially the risks to their mental health. It will also examine clinical and social interventions that can be used to prevent and mitigate the risks.

As stated in the U.S. Surgeon General’s advisory on protecting youth mental health, there is a wide range of causes for the national mental health crisis but there is mounting evidence that social media is harmful to many kids’ and teens’ mental health, well-being, and development. Social media platforms are privately owned and are driven by algorithms to maximize user engagement for profit. Therefore, they can and do expose young people to content that may not be appropriate; can promote unhealthy social comparisons; can exacerbate social isolation, anxiety, self-doubt, and depression; and can enable harassment, stalking and cyber bullying.

The Center will focus on three priorities:
  • Education and resources around the risks and benefits of social media use for children and youth;
  • Culturally and linguistically appropriate technical assistance focusing on active learning, consultation, and support on how to best assist children and youth when interfacing with the digital world in a way that enhances their mental health while reducing harm; and
  • Best practices and research updates.

NOTE: Family Voices will serve as advisors and subject matter experts for this project.


HHS: Funding for Children’s Mental Health
The U.S. Department of Health and Human Services (HHS), through the Substance Abuse and Mental Health Services Administration (SAMHSA), announced that it awarded $40.22 million in youth mental health grants throughout the month of August. This includes $5.3 million from American Rescue Plan (ARP) funding to address pandemic-related stressors that have increased mental health conditions among younger Americans. HHS also announced $47.6 million in new grant funding opportunities developed from the Bipartisan Safer Communities Act.

The grants awarded in August and the grant opportunities announced this week are part of HHS’ latest effort to answer President Biden’s State of the Union call to address the nation’s mental health crisis. The press release includes more about the grant recipients.

This latest source of federal children’s mental health funding is in addition to the funding provided on June 25, the Bipartisan Safer Communities Act implements changes to the mental health care system, school safety programs and gun safety laws, and provides $800 million in funding to SAMHSA. $47.6 million of that funding will provide new grant opportunities for school-based mental health programs:
  1. $37.6 million for Project Advancing Wellness and Resiliency in Education (AWARE) to develop a sustainable infrastructure for school-based mental health programs and services that promote the healthy social and emotional development of school-aged youth and prevent youth violence in school settings
  2. $10 million for the Resiliency in Communities after Stress and Trauma (ReCAST) grant program, which promotes resilience in high-risk youth and families and equity in communities that have recently faced civil unrest, community violence, and/or collective trauma through evidence-based, violence prevention, and community youth engagement programs, as well as linkages to trauma-informed behavioral health services.

This latest round of funding is also intended to support key actions announced on August 18, 2022 by HHS to strengthen and expand access to high-quality, comprehensive health care for children across the country, as well as bolster the July 29th joint action by Secretary Becerra and U.S. Department of Education (ED) Secretary Miguel Cardona through a letter sent to governors calling on them to invest more in mental health services for students. This letter followed a joint HHS-ED effort launched on March 24th to expand school-based health services, ensuring children have access to the health services and supports to build resilience and promote wellbeing.


ACL: Monkeypox Resources
ACL is working with federal partners and stakeholders to help stop the spread of monkeypox and support people of all ages and abilities affected by the monkeypox outbreak. On their resource page, ACL is compiling:
  • Information and resources on the virus;
  • How it affects older adults, people with disabilities, and residents and staff of congregate settings; and
  • What you can do to protect yourself.

Examples of the materials include:

What we know about monkeypox (Updated Sep. 7, 2022)
The monkeypox virus can cause a painful, sometimes debilitating rash that looks like blisters or pimples. It may be mistaken for chickenpox, shingles, or herpes. It is often accompanied by flu-like symptoms including fever, chills, headache, muscle aches, and exhaustion.

Monkeypox symptoms usually start within 3 weeks of exposure to the virus and typically last 2-4 weeks. The initial outbreak has been concentrated among men who have sex with men, however anyone can contract monkeypox.

How do you catch monkeypox?
  • Skin-to-skin contact. Most often, monkeypox is spread through intimate contact. However, holding someone with monkeypox or dressing, transferring, or bathing also could transmit the virus.
  • Clothing or linens that have been used by someone with monkeypox and have not been disinfected can spread the virus.
  • Exposure to respiratory secretions during prolonged face-to-face contact.

A person with monkeypox can spread it to others from the time symptoms start until the rash has fully healed and a fresh layer of skin has formed. 

Are older adults and people with disabilities at greater risk?
People in congregate settings like nursing homes, group homes, and assisted living facilities may be at increased risk of contracting and spreading monkeypox due to the close, prolonged contact residents have with each other and staff.

CDC stresses that there is no cause for alarm, but staff and residents should remain vigilant. For more information, see CDC’s special guidance for residents and staff of Congregate Living Settings.

In addition, people who are immunocompromised or have a history of eczema, as well as people who are pregnant or breastfeeding, may be more likely to get seriously ill from a monkeypox infection.
 

ICYMI: Directive COVID-19 Vaccine Availability
Updated COVID-19 shots are expected to protect against the currently circulating Omicron variant, with our nation likely on a path where the majority of Americans without significant health risks can be protected against serious illness, hospitalization, and death by getting an annual shot.

In response to the Centers for Disease Control and Prevention’s (CDC’s) recommendation of an updated COVID-19 shot, U.S. Department of Health and Human Services Secretary Xavier Becerra issued statement after signing a directive to ensure the vaccine is widely available. CDC’s recommendation followed the Food and Drug Administration’s (FDA’s) authorization.
Policy Related Materials of Interest
NHELP Bounty of Resources: ACA Section 1557
The National Health Law Program (NHELP) helped craft Section 1557 as part of their work on the Affordable Care Act and they have continued to work to effectively implement and enforce it since it was enacted. It is a crucial provision that prohibits discrimination in health programs and activities receiving federal financial assistance, health programs and activities administered by federal agencies, and ACA health insurance marketplaces and issuers that participate. 
 
The Biden-Harris Administration has proposed changes that would strengthen Section 1557 protections and is accepting public comments through October 3, 2022. Personal experiences can help support the Biden-Harris Administration’s proposed changes to the Section 1557 regulations. 
 
NHELP has created an easy form as a comment “portal” for individuals to submit their stories.
 
NHELP also created sample social media posts, an array of graphics, and a few videos to help engage people in the comment process. NHELP has indicated- and requested- that these be shared widely!
 
NHELP Blog: Provides an introduction and topline overview of the ways Section 1557 impacts various individuals, especially those who live at the intersection of multiple identities.
 
NHELP Issue brief: In courts and through regulatory action, the Biden-Harris administration is vigorously working to address health equity. This includes strengthening the Affordable Care Act’s (ACA) nondiscrimination requirements. On August 4, 2022, the Administration released a proposed rule that would reinstate key provisions of the ACA’s nondiscrimination requirements repealed by the prior administration. The proposed rule, issued by the Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR), also includes new provisions responding to recent legal and policy developments. This issue brief provides background on § 1557, the Biden-Harris Administration’s 2022 Notice of Proposed Rulemaking (2022 Proposed Rule), and what you can do to support these important legal protections.
NHELP is hosting a webinar on Section 1557. This webinar offers health advocates an introduction to federal protections against discrimination in health care under Section 1557. This webinar will provide information about the Trump Administration’s prior changes to Section 1557 regulations and an overview of the Biden Administration’s new proposed regulations. Health advocates can learn how the proposed rule addresses: 
  • Section 1557’s applicability, including to insurers and programs;
  • Protections for people with disabilities and chronic conditions, pregnant people and people capable of pregnancy, women, LGBTQI+ people, non-English speakers, communities of color, and immigrants;
  • Health care refusals; and
  • Data collection.
 
September 15, 2022 2pm EST. Register HERE.
 

CHIR Blog: Research on Public Health Emergency
Georgetown Center on Health Insurance Reforms (CHIR) has a great blog that gives a digestible summary of three research articles (by HHS Office of the Assistant Secretary for Planning and Evaluation (ASPE), Health Affairs and Brookings Institute) related to the unwinding of the public health emergency.


Manatt webinar: What will midterm elections mean for health care?
Manatt will examine how the midterm elections will shape health care policies and priorities in the years to come—and how you can prepare for what’s next. The session will do a deep dive into potential results and the implications for the health care system. Key topics that will be covered include:
  • Possible federal election outcomes and the potential impact on how health policy will advance over the next two years
  • An analysis of state election results and how they could impact health policy and state priorities
  • A review of judiciary impact, including which legal questions are at stake and where courts could prove decisive on state and federal reform initiatives
  • Key health policy issues and themes that could evolve based on the election outcomes

Wednesday, September 28 1:00 – 2:00 p.m. ET. Click here to register free

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Family Voices is a national organization and grassroots network of families and friends of children and youth with special health care needs and disabilities that promotes partnership with families--including those of cultural, linguistic and geographic diversity--in order to improve healthcare services and policies for children.