National WIC Association

Weekly WIC Policy Update

October 1, 2018

Public Charge Rule Moves Forward
On September 22, the US Department of Homeland Security (DHS) released its long-rumored proposed regulation related to public charge. The proposed rule would significantly expand the public charge test to punish immigrants for accessing a wide range of federal programs, including SNAP, Medicaid, and housing assistance. WIC is not listed in the proposed rule; however, DHS is actively soliciting comment on whether additional programs, such as WIC, should be included in public charge review.

DHS has indicated that it will send this latest draft to be published in the Federal Register shortly. Upon publication, there will be a 60-day comment period during which the public may offer its views on the proposed regulation. Even though WIC is not listed in the proposed rule, it is possible that WIC may be included once again. Therefore, it is imperative that the WIC community speak out during the comment period to ensure WIC is not included in the final rule. In addition, we know that WIC families rely on SNAP and Medicaid to feed their families and obtain healthcare services. Many families also become adjunctively eligible for WIC through their participation in Medicaid and SNAP. Even though WIC is not included in the proposed rule, the possible changes would have a significant impact on the health and nutrition of WIC families.

Here are some additional insights from the proposed rule:

  • The changes are not immediately effective. The proposed regulation would not become legally effective until 60 days after a final rule is issued. A final rule cannot be issued until after a 60-day comment period, which is likely to last until at least December. Therefore, we are not expecting this rule to be finalized until 2019.
  • WIC participation will not impact an immigrant’s legal status. Despite leaked drafts in the spring, the proposed regulation does not include any provision that would penalize an immigrant for accessing WIC benefits – either in a personal capacity or on behalf of a dependent child.
  • DHS is still considering whether additional programs should be included in public charge. Even though WIC is not included in the proposed regulation, DHS is actively soliciting public comment on whether other programs should be considered in public charge determinations. The WIC community must continue to make the argument that WIC should not be included in public charge.
  • SNAP, Medicaid, and housing subsidies are included in the proposal. Although WIC is not included in the proposed regulation, many programs that WIC families access are implicated. Medicaid’s inclusion will particularly prevent pregnant and breastfeeding women from obtaining critical health services throughout pregnancy and the perinatal period. The public charge rule will continue to have a significant negative impact on the health and food security of WIC families. In addition, many families become adjunctively eligible for WIC through their participation in Medicaid and SNAP.
  • The rule does not target benefit use by dependents, as attempted in prior drafts. Prior drafts would have punished an immigrant if their dependents – including US citizen children – accessed a public benefit. That provision has been removed from the September 2018 draft.
  • The rule does not apply to all immigrants, consistent with prior drafts. The public charge rule does not apply to certain groups of immigrants, namely: those applying for citizenship in a naturalization proceeding; undocumented individuals; and certain groups of humanitarian immigrants (refugees, asylees, Violence Against Women Act self-petitioners, Temporary Protected Status, etc.).
  • The rule is not retroactive. Immigration officials will not consider use of benefits that predates the rule’s applicable date. Therefore, those who are accessing affected programs now are not likely to be penalized in a public charge determination for their current use.

Additional Public Charge Resources Available
We know that clinics will be fielding concerns from participants as the comment period opens. Clinics may wish to adapt this template press release to inform members of their community about the proposed rule and reassure participants that WIC continues to welcome all.

NWA has also updated its talking points for agencies and FAQs for clinic staff and participants. These updates reflect the September 2018 draft’s changes, including the removal of WIC from the explicit list of affected programs. A Spanish translation of the FAQ document is forthcoming. We hope that these documents are informative as clinics address the concerns of participants.

The comment period does not begin until publication of the proposed rule in the Federal Register. As DHS is actively soliciting public comment on whether additional programs should be considered, WIC clinics need to speak out to reaffirm that WIC should not be considered in public charge determinations. In the coming weeks, NWA will be releasing template comments and other resources to assist agencies in responding to the public charge rule. These resources will be published on our Immigration Resources webpage and publicized in NWA emails, includingMonday Morning Report. Remember: Regulatory commenting is not lobbying. It is up to the WIC community to highlight the impact that this debate has already had on our clinics and to support our WIC families by engaging in the public comment process.

WIC Funding Included in Continuing Resolution (CR) through December 7
Appropriators were unable to reach an agreement on a spending bill package that would have included funding for WIC in FY 2019 by the September 30 deadline. As a result, WIC will be funded at current levels through December 7. The Agriculture and Food and Drug Administration appropriations bill, which provides funding for WIC, had been included in a “minibus” package with Interior-Environment, Transportation-Housing and Urban Development and Financial Services-General Government funding. This package was ultimately held up by disagreement over the issue of whether to provide pay raises to federal workers, which would have been part of the Financial Services-General Government bill. Appropriators were unable to reach agreement nor separate out the less controversial bills for passage. As a result, Congress chose to extend FY 2018 funding levels with a continuing resolution (CR) until a final agreement can be reached.

Lawmakers will again address WIC funding in December, when a second continuing resolution may be necessary to move past the holidays, unless swift agreement is reached. At stake for WIC is not only the program’s overall budget authority and rescission level, but also funding for set-asides, such as the Breastfeeding Peer Counselor program. The Senate-passed Agriculture-FDA appropriations bill contained a nearly 15 percent increase for the Breastfeeding Peer Counselor program, thanks to an amendment by Senator Bob Casey (D-PA). Please review the NWA analysis of the House committee and Senate committee and floor bills.

Progress on Breastfeeding Support in Federal Aviation Administration Reauthorization Bill
The Senate will consider legislation this week to reauthorize the Federal Aviation Administration, which contains a key breastfeeding support provision championed by Sen. Tammy Duckworth (D-IL). The legislation contains a provision that would require medium and large airport hubs seeking federal funds to maintain lactation areas in each passenger terminal. There is also a requirement for the airports to maintain baby changing tables in at least one men’s restroom and one women’s restroom in each passenger terminal. NWA supports this legislation and has advocated for its passage in coordination with our partners at the United States Breastfeeding Committee.

136 Unaccompanied Children Remain in DHS Custody, While Hundreds are Relocated to Texas Border Camp
According to data released by the Department of Homeland Security (DHS) on Thursday, 136 migrant children remain separated from their parents in DHS custody. This includes three children under the age of five years. The parents of 96 of these children have been deported.

Meanwhile, over the weekend, the New York Times reported that DHS has moved hundreds of migrant children out of foster homes and shelters across the country to a tent camp in West Texas, where they are not receiving schooling and have limited access to legal services.

DHS has also opened a comment period on a proposed rule that would overturn the Flores settlement, which limits the ability of the federal government to detain children. NWA joined with over 230 organizations in a letter organized by the Women’s Refugee Commission to the leadership of the Senate Committee on Homeland Security urging them to oppose any legislation that would expand the scale and length of immigrant family detention or overturn the child protection principles currently governing the treatment of migrant children in custody. NWA will also submit a public comment opposing the proposed rule.

NWA condemns any actions by DHS that would perpetuate the detention of children, the separation of children from caregivers, and the denial of adequate healthcare services, nutrition, education, and access to legal services to migrant children. Specifically, NWA vehemently opposes the relocation of children in DHS custody to tent camps, which has put them at grave medical, developmental, and education risk.

House Done with Votes Until After Midterms
The House has completed its votes until November 13, after the midterm elections. Most members are now in their districts and will be holding constituent events over the coming weeks. This is one of the best times to engage with your member of Congress! Contact the offices of your representative to learn about district visits and events in your area. It is important for members of Congress to understand all that WIC does to improve the quality of life for their constituents because that knowledge will inform their willingness to support, fund, and promote the program in the future.

Note: Attending a constituent event and sharing the broad, positive impacts of WIC in a local community is not lobbying. Lobbying requires that you ask a legislator to take a specific position on a piece of legislation. Remember the simple rule: Bragging beats begging.