Proposed Rule2023-08635
Clarifying Eligibility for a Qualified Health Plan Through an Exchange, Advance Payments of the Premium Tax Credit, Cost-Sharing Reductions, a Basic Health Program, and for Some Medicaid and Children's Health Insurance Programs
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 26, 2023
Issuing agencies
Health and Human Services DepartmentCenters for Medicare & Medicaid Services
Abstract
This proposed rule would make several clarifications and update the definitions currently used to determine whether a consumer is eligible to enroll in a Qualified Health Plan (QHP) through an Exchange; a Basic Health Program (BHP), in States that elect to operate a BHP; and for some State Medicaid and Children's Health Insurance Programs (CHIPs).
Full Text
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<title>Federal Register, Volume 88 Issue 80 (Wednesday, April 26, 2023)</title>
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[Federal Register Volume 88, Number 80 (Wednesday, April 26, 2023)]
[Proposed Rules]
[Pages 25313-25335]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08635]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 435, 457, and 600
Office of the Secretary
45 CFR Parts 152 and 155
[CMS-9894-P]
RIN 0938-AV23
Clarifying Eligibility for a Qualified Health Plan Through an
Exchange, Advance Payments of the Premium Tax Credit, Cost-Sharing
Reductions, a Basic Health Program, and for Some Medicaid and
Children's Health Insurance Programs
AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of
Health and Human Services (HHS).
ACTION: Proposed rule.
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SUMMARY: This proposed rule would make several clarifications and
update the definitions currently used to determine whether a consumer
is eligible to enroll in a Qualified Health Plan (QHP) through an
Exchange; a Basic Health Program (BHP), in States that elect to operate
a BHP; and for some State Medicaid and Children's Health Insurance
Programs (CHIPs).
DATES: To be assured consideration, comments must be received at one of
the addresses provided below, by June 23, 2023.
ADDRESSES: In commenting, please refer to file code CMS-9894-P.
Comments, including mass comment submissions, must be submitted in
one of the following three ways (please choose only one of the ways
listed):
1. Electronically. You may submit electronic comments on this
regulation to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the ``Submit a
comment'' instructions.
2. By regular mail. You may mail written comments to the following
address ONLY: Centers for Medicare & Medicaid Services, Department of
Health and Human Services, Attention: CMS-9894-P, P.O. Box 8016,
Baltimore, MD 21244-8016.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address ONLY: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: CMS-9894-P, Mail
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT:
Morgan Gruenewald, (301) 492-5141, or Anna Lorsbach, (301) 492-
4424, for matters related to Exchanges.
Sarah Lichtman Spector, (410) 786-3031, or Annie Hollis, (410) 786-
7095, for matters related to Medicaid, CHIP, and BHP.
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. We post all comments
received before the close of the comment period on the following
website as soon as possible after they have been received: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the search instructions on that website to
view public comments. CMS will not post on <a href="http://Regulations.gov">Regulations.gov</a> public
comments that make threats to individuals or institutions or suggest
that the individual will take actions to harm the individual. CMS
continues to encourage individuals not to submit duplicative comments.
We will post acceptable comments from multiple unique commenters even
if the content is identical or nearly identical to other comments.
I. Background
The Patient Protection and Affordable Care Act (ACA) \1\ generally
\2\ requires that in order to enroll in a Qualified Health Plan (QHP)
through an Exchange, an individual must be either a citizen or national
of the United States or be ``lawfully present'' in the United
States.\3\ The ACA also generally requires that individuals be
``lawfully present'' in order to be eligible for insurance
affordability programs such as premium tax credits (PTC),\4\ advance
payments of the premium tax credit (APTC),\5\ and cost-sharing
reductions (CSRs); \6\ additionally, enrollees in a Basic Health
Program (BHP) are required to meet the same citizenship and immigration
requirements as QHP enrollees.\7\ Further, the ACA required that
individuals be ``lawfully present'' in order to qualify for the Pre-
Existing Condition Insurance Plan Program (PCIP), which expired in
2014.\8\ The ACA does not define ``lawfully present'' beyond specifying
that an individual is only considered lawfully present if they are
reasonably expected to be lawfully present for the period of their
enrollment.\9\ The ACA also requires the Centers for Medicare &
Medicaid Services (CMS) to verify that Exchange applicants are lawfully
present in the United States.\10\
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\1\ The Patient Protection and Affordable Care Act (Pub. L. 111-
148) was enacted on March 23, 2010. The Healthcare and Education
Reconciliation Act of 2010 (Pub. L. 111-152), which amended and
revised several provisions of the Patient Protection and Affordable
Care Act, was enacted on March 30, 2010. In this rulemaking, the two
statutes are referred to collectively as the ``Patient Protection
and Affordable Care Act'', ``Affordable Care Act'', or ``ACA.''.
\2\ States may pursue a waiver under section 1332 of the
Affordable Care Act (ACA) that could waive the ``lawfully present''
framework in section 1312(f)(3) of the ACA. See 42 U.S.C.
18052(a)(2)(B). There is currently one State (Washington) with an
approved section 1332 waiver that includes a waiver of the
``lawfully present'' framework to the extent necessary to permit all
State residents, regardless of immigration status, to enroll in a
QHP and Qualified Dental Plan (QDP) through the State's Exchange, as
well as to apply for State subsidies to defray the costs of
enrolling in such coverage. Consumers who are eligible for Exchange
coverage under the waiver remain ineligible for PTC. For more
information on this State's section 1332 waiver, see <a href="https://www.cms.gov/cciio/programs-and-initiatives/state-innovation-waivers/section_1332_state_innovation_waivers-">https://www.cms.gov/cciio/programs-and-initiatives/state-innovation-waivers/section_1332_state_innovation_waivers-</a>.
\3\ 42 U.S.C. 18032(f)(3).
\4\ 26 U.S.C. 36B(e)(2).
\5\ 42 U.S.C. 18082(d).
\6\ 42 U.S.C. 18071(e).
\7\ 42 U.S.C. 18051(e).
\8\ 42 U.S.C. 18001(d)(1).
\9\ 42 U.S.C. 18032(f)(3), 42 U.S.C. 18071(e)(2).
\10\ 42 U.S.C. 18081(c)(2)(B).
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As such, consistent with its statutory authority under the ACA and
in order to facilitate the operation of its programs, CMS issued
regulations in 2010 to define ``lawfully present'' for the purposes of
determining eligibility for PCIP (75 FR 45013); in 2012 for purposes of
determining eligibility to enroll in a QHP through an Exchange by
cross-referencing the existing PCIP definition (77 FR 18309); and in
2014 to cross-reference the existing definition for purposes of
determining eligibility to enroll in a BHP (79 FR 14111). In this
proposed rule, we propose to amend these three regulations in order to
update the definition of ``lawfully present'' at 45 CFR 152.2, which is
used to determine whether a consumer is eligible to enroll in a QHP
through an Exchange and for a BHP. Exchange regulations apply this
definition to the eligibility standards for APTC and CSRs by requiring
an applicant to be eligible to enroll in a QHP to be eligible for
[[Page 25314]]
APTC and CSRs.\11\ Accordingly, in this proposed rule, when we refer to
the regulatory definition of ``lawfully present'' used to determine
whether a consumer is eligible to enroll in a QHP through an Exchange,
we also are referring to the regulatory definition used to determine
whether a consumer is eligible for APTC and CSRs.
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\11\ 45 CFR 155.305(f)(1)(ii)(A) and (g)(1)(i)(A).
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We propose a similar definition of ``lawfully present'' applicable
to eligibility for Medicaid and Children's Health Insurance Program
(CHIP) in States that elect to cover ``lawfully residing'' pregnant
individuals and children under section 214 of the Children's Health
Insurance Program Reauthorization Act of 2009 (CHIPRA) (hereinafter
``CHIPRA 214 option''), now codified at section 1903(v)(4) of the
Social Security Act (the Act) for Medicaid and section 2107(e)(1)(O) of
the Act for CHIP. In July 2010, CMS interpreted ``lawfully residing''
to mean individuals who are ``lawfully present'' in the United States
and who are residents of the State in which they are applying under the
State's Medicaid or CHIP residency rules.\12\ The definitions of
``lawfully present'' and ``lawfully residing'' used for Medicaid and
CHIP are currently set forth in a 2010 State Health Official (SHO)
letter (SHO #10-006) and further clarified in a 2012 SHO letter (SHO
#12-002).\13\
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\12\ Centers for Medicare & Medicaid Services. (2010). SHO #10-
006: Medicaid and CHIP Coverage of ``Lawfully Residing'' Children
and Pregnant Women. <a href="https://downloads.cms.gov/cmsgov/archived-downloads/smdl/downloads/sho10006.pdf">https://downloads.cms.gov/cmsgov/archived-downloads/smdl/downloads/sho10006.pdf</a>.
\13\ Centers for Medicare & Medicaid Services. State Health
Official letter (SHO) #12-002: Individuals with Deferred Action for
Childhood Arrivals (issued August 28, 2012). Available at <a href="https://www.medicaid.gov/federal-policy-guidance/downloads/sho-12-002.pdf">https://www.medicaid.gov/federal-policy-guidance/downloads/sho-12-002.pdf</a>.
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We propose several modifications to the definition of ``lawfully
present'' currently articulated at 45 CFR 152.2 and described in the
SHO letters for Medicaid and CHIP. First, we propose to remove an
exception that excludes Deferred Action for Childhood Arrivals (DACA)
recipients from the definitions of ``lawfully present'' used to
determine eligibility to enroll in a QHP through an Exchange, a BHP, or
Medicaid and CHIP under the CHIPRA 214 option. If this proposal is
finalized, DACA recipients would be considered lawfully present for
purposes of eligibility for these insurance affordability programs \14\
based on a grant of deferred action, just like other similarly situated
noncitizens who are granted deferred action. We also propose to
incorporate additional technical changes into the proposed ``lawfully
present'' definition at 45 CFR 152.2, as well as to the proposed
``lawfully present'' definition at 42 CFR 435.4.
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\14\ See 45 CFR 155.300(a) and 42 CFR 435.4.
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These proposed definitions are solely for the purposes of
determining eligibility for specific Department of Health and Human
Services (HHS) health programs and are not intended to define lawful
presence for purposes of any other law or program. We also note that
this proposed rule would not provide any noncitizen relief or
protection from removal, or convey any immigration status or other
authority for a noncitizen to remain in the United States under
existing immigration laws or to become eligible for any immigration
benefit available under the U.S. Department of Homeland Security
(DHS)'s or Department of Justice's purview.
II. Provisions of the Proposed Regulations
A. Proposed Effective Date
CMS's target effective date for this rule is November 1, 2023, to
ensure the provisions are effective during the Open Enrollment Period
for individual market Exchanges, the next of which will begin on
November 1, 2023. We are considering this target date because Open
Enrollment is an important opportunity for consumers to shop for and
enroll in insurance coverage, and implementation of these changes would
be most effective during a period when there are many outreach and
enrollment activities occurring from CMS, State Exchanges, Navigator
and assister groups, and other interested parties. We note that, if
this rule is finalized as proposed, DACA recipients would qualify for
the Special Enrollment Period at 45 CFR 155.420(d)(3) for individuals
who become newly eligible for enrollment in a QHP through an Exchange
due to newly meeting the requirement at 45 CFR 155.305(a)(1) that an
enrollee be lawfully present. However, we still believe that proposing
to align this rule's effective date with the individual market Exchange
Open Enrollment Period would reduce barriers to enrollment for
consumers due to the previously mentioned outreach and enrollment
activities occurring during this time and the longer period of time
individuals have to enroll in a QHP through an Exchange during the
individual market Exchange Open Enrollment Period compared with a
Special Enrollment Period. Further, even though the individual market
Exchange Open Enrollment Period is, among the programs addressed in
this proposed rule, currently only applicable to Exchanges, we believe
that it is important to align effective dates across Exchanges, BHP,
Medicaid and CHIP in order to promote consistency, and because
eligibility for these programs is typically evaluated through a single
application.\15\
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\15\ Pursuant to 42 CFR 600.320(d), a State operating a BHP must
either offer open enrollment periods pursuant Exchange regulations
at 45 CFR 155.410 or follow Medicaid's continuous enrollment
process. The two States that currently operate a BHP, New York and
Minnesota, follow Medicaid's continuous enrollment process.
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We seek comment on the feasibility of this target effective date
and whether to consider a different target effective date when we
finalize this proposed rule. CMS is committed to working with State
agencies and providing technical assistance regarding implementation of
these proposed changes, if finalized. At the same time, CMS understands
that State Medicaid and CHIP agencies are experiencing a significant
increase in workload following the end of the Medicaid continuous
enrollment condition established under section 6008(b)(3) of the
Families First Coronavirus Response Act, as amended by section 5131 of
the Consolidated Appropriations Act, 2023, and we seek comment about
the impact of this workload or any other operational barriers to
implementation for State Exchanges, and State Medicaid, CHIP, and BHP
agencies. While CMS believes that there are advantages to implementing
these provisions, if finalized, on the proposed November 1, 2023 target
effective date, CMS will consider the comments received on this issue
as we evaluate the feasibility of a November 1, 2023 effective date or
different effective dates, if this proposal is finalized.
B. Pre-Existing Condition Insurance Plan Program (45 CFR 152.2)
We propose to remove the definition of ``lawfully present''
currently at 45 CFR 152.2 and insert the proposed definition of
``lawfully present'' at 45 CFR 155.20. The regulations at 45 CFR 152.2
apply to the PCIP program, which ended in 2014. Further, we are
proposing to update BHP regulations at 42 CFR 600.5 that currently
cross-reference 45 CFR 152.2 to instead cross-reference the definition
proposed in this rule at 45 CFR 155.20. While we do not expect the
definition at 45 CFR 152.2 to be used for any current CMS programs, we
are proposing to modify the regulation at 45 CFR 152.2 to cross-
reference Exchange regulations at 45 CFR 155.20 to help ensure
alignment of definitions for other programs. We seek comment on
whether, alternatively, we
[[Page 25315]]
should strike the definition of ``lawfully present'' currently at 45
CFR 152.2 instead of replacing it with a cross-reference to 45 CFR
155.20.
C. Exchange Establishment Standards and Other Related Standards Under
the ACA (45 CFR 155.20)
1. DACA Recipients
The ACA generally requires that in order to enroll in a QHP through
an Exchange, an individual must be a ``citizen or national of the
United States or an alien lawfully present in the United States.'' \16\
While individuals who are not eligible to enroll in a QHP are also not
eligible for APTC, PTC, or CSRs to lower the cost of a QHP, the ACA
specifies that individuals who are not lawfully present are also not
eligible for such insurance affordability programs.\17\ The ACA does
not offer a definition of ``lawfully present.'' \18\
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\16\ 42 U.S.C. 18032(f)(3).
\17\ 26 U.S.C. 36B(e)(2), 42 U.S.C. 18082(d), 42 U.S.C.
18071(e).
\18\ 42 U.S.C. 18001(d)(1).
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In a recent rulemaking, DHS referred to its definition of ``lawful
presence'' in 8 CFR 1.3, reiterating that it is a ``specialized term of
art'' that does not confer lawful status or authorization to remain in
the United States, but instead describes noncitizens who are eligible
for certain benefits as set forth in 8 U.S.C. 1611(b)(2) (Deferred
Action for Childhood Arrivals, final rule, 87 FR 53152 (August 30,
2022) (``DHS DACA Final Rule'')). DHS also stated that HHS and ``other
agencies whose statutes independently link eligibility for benefits to
lawful presence may have the authority to construe such language for
purposes of those statutory provisions'' (87 FR 53152). We discuss this
authority in further detail later in this section.
CMS first established a regulatory definition of ``lawfully
present'' for purposes of the PCIP program in 2010 (75 FR 45013). In
that 2010 rulemaking, CMS adopted the definition of ``lawfully
present'' already established for Medicaid and CHIP eligibility for
children and pregnant individuals under the CHIPRA 214 option
articulated in SHO #10-006 (hereinafter ``2010 SHO'') to have the
maximum alignment possible across CMS programs establishing eligibility
for lawfully present individuals. The definition of ``lawfully
present'' articulated in the 2010 SHO was also informed by DHS
regulations codified at 8 CFR 1.3(a) defining ``lawfully present'' for
the purpose of eligibility for certain Social Security benefits, with
some revisions necessary for updating or clarifying purposes, or as
otherwise deemed appropriate for the Medicaid and CHIP programs
consistent with the Act.
In March 2012, CMS issued regulations regarding eligibility to
enroll in a QHP through an Exchange that cross-referenced the
definition of ``lawfully present'' set forth in the 2010 PCIP
regulations (77 FR 18309). As the DACA policy had not yet been
established, the definitions of ``lawfully present'' set forth in the
2010 SHO, the 2010 PCIP regulations, and the 2012 QHP regulations did
not explicitly reference DACA recipients. However, these definitions
specify that individuals granted deferred action are considered
lawfully present for purposes of eligibility to enroll in a QHP through
an Exchange, a BHP, or Medicaid and CHIP under the CHIPRA 214 option.
In June 2012, DHS issued the memorandum ``Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States as
Children,'' establishing the DACA policy.\19\ DHS explained in this
memorandum that DACA is a form of deferred action, and the removal
forbearance afforded to a DACA recipient is identical for immigration
purposes to the forbearance afforded to any individual who is granted
deferred action in other exercises of enforcement discretion. DHS
provided that the DACA policy was ``necessary to ensure that [its]
enforcement resources are not expended on these low priority cases.''
\20\ DHS did not address DACA recipients' ability to access insurance
affordability programs through an Exchange, a BHP, and Medicaid or CHIP
under the CHIPRA 214 option.
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\19\ United States Department of Homeland Security. (2012)
Exercising Prosecutorial Discretion with Respect to Individuals Who
Came to the United States as Children. <a href="https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf">https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf</a>.
\20\ United States Department of Homeland Security. (2012)
Exercising Prosecutorial Discretion with Respect to Individuals Who
Came to the United States as Children. <a href="https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf">https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf</a>.
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In August 2012, CMS amended its regulatory definition of ``lawfully
present'' at 45 CFR 152.2, used for both PCIP and Exchange purposes, to
add an exception stating that an individual granted deferred action
under DHS' DACA policy was not considered lawfully present (77 FR
52614), thereby treating DACA recipients differently from other
deferred action recipients for purposes of these benefits programs. CMS
also issued the 2012 SHO excluding DACA recipients from the definition
of ``lawfully residing'' for purposes of Medicaid or CHIP eligibility
under the CHIPRA 214 option. In 2014, CMS issued regulations
establishing the framework governing a BHP, which also adopted the
definition of ``lawfully present'' at 45 CFR 152.2, thereby aligning
the definition of ``lawfully present'' for a BHP with Exchanges,
Medicaid and CHIP. As a result, DACA recipients, unlike all other
deferred action recipients, are not currently eligible to enroll in a
QHP through an Exchange, or for APTC or CSRs in connection with
enrollment in a QHP through an Exchange, nor are they eligible to
enroll in a BHP or for Medicaid or CHIP under the CHIPRA 214 option
because they are not considered lawfully present for purposes of these
programs. In both the August 2012 rulemaking and the 2012 SHO that
excluded DACA recipients from CMS definitions of ``lawfully present,''
CMS reasoned that, because the rationale that DHS offered for adopting
the DACA policy did not pertain to eligibility for insurance
affordability programs, these benefits should not be extended as a
result of DHS deferring action under DACA.
HHS has now reconsidered its position, and is proposing to change
its interpretation of the statutory phrase ``lawfully present'' to
treat DACA recipients the same as other deferred action recipients as
described in current regulations in paragraph (4)(iv) of the definition
at 45 CFR 152.2. Under the proposed rule, DACA recipients would be
considered lawfully present to the same extent as other deferred action
recipients for purposes of the ACA at 42 U.S.C. 18032(f)(3) for the
Exchange, and 42 U.S.C. 18051(e) for a BHP. To align the eligibility
standards across insurance affordability programs for noncitizens
considered ``lawfully present,'' we are also proposing to establish
rules in the Medicaid and CHIP programs to recognize that DACA
recipients are ``lawfully residing'' in the United States, just like
other deferred action recipients, for purposes of the CHIPRA 214
option, as discussed in section II.D.1. of this proposed rule.
Since HHS first interpreted ``lawfully present'' to exclude DACA
recipients in 2012, new information regarding DACA recipients' access
to health insurance coverage has emerged. While a 2021 survey of DACA
recipients found that DACA may facilitate access to health insurance
through employer-based plans, 34 percent of DACA recipient respondents
reported that they were not
[[Page 25316]]
covered by health insurance.\21\ Individuals without health insurance
are less likely to receive preventative or routine health screenings,
and may delay necessary medical care, incurring high costs and
debts.\22\ The 2021 survey of DACA recipients also found that 47
percent of respondents attested to having experienced a delay in
medical care due to their immigration status and 67 percent of
respondents said that they or a family member were unable to pay
medical bills or expenses.\23\ The COVID-19 public health emergency has
also highlighted the need for this population to have access to high
quality, affordable health coverage. According to a demographic
estimate by the Center for Migration Studies, over 200,000 DACA
recipients served as essential workers during the COVID-19 public
health emergency.\24\ This figure encompasses 43,500 DACA recipients
who worked in health care and social assistance occupations, including
10,300 in hospitals and 2,000 in nursing care facilities.\25\ During
the height of the pandemic, essential workers were disproportionately
likely to contract COVID-19.<SUP>26 27</SUP> These factors emphasize
how increasing access to health insurance would improve the health and
well-being of many DACA recipients currently without coverage. In
addition to improving health outcomes, these individuals could be even
more productive and better economic contributors to their communities
and society at large with improved access to health care. A 2016 study
found that a worker with health insurance is estimated to miss 77
percent fewer workdays than an uninsured worker.\28\
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\21\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care. <a href="https://www.nilc.org/wp-content/uploads/2022/06/NILC_DACA-Report_060122.pdf">https://www.nilc.org/wp-content/uploads/2022/06/NILC_DACA-Report_060122.pdf</a>.
\22\ Kaiser Family Foundation. Key Facts About the Uninsured
Population. <a href="https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/">https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/</a>.
\23\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care. <a href="https://www.nilc.org/wp-content/uploads/2022/06/NILC_DACA-Report_060122.pdf">https://www.nilc.org/wp-content/uploads/2022/06/NILC_DACA-Report_060122.pdf</a>.
\24\ Center for Migration Studies. DACA Recipients are Essential
Workers and Part of the Front-line Response to the COVID-19
Pandemic, as Supreme Court Decision Looms, <a href="https://cmsny.org/daca-essential-workers-covid/">https://cmsny.org/daca-essential-workers-covid/</a>.
\25\ Center for Migration Studies. DACA Recipients are Essential
Workers and Part of the Front-line Response to the COVID-19
Pandemic, as Supreme Court Decision Looms, <a href="https://cmsny.org/daca-essential-workers-covid/">https://cmsny.org/daca-essential-workers-covid/</a>.
\26\ Nguyen, L.H., Drew, D.A., Graham, M.S., Joshi, A.D., Guo,
C.-G., Ma, W., Mehta, R.S., Warner, E.T., Sikavi, D.R., Lo, C.-H.,
Kwon, S., Song, M., Mucci, L.A., Stampfer, M.J., Willett, W.C.,
Eliassen, A.H., Hart, J.E., Chavarro, J.E., Rich-Edwards, J.W., . .
. Zhang, F. (2020). Risk of COVID-19 among front-line health-care
workers and the general community: A prospective cohort study. The
Lancet Public Health, 5(9). <a href="https://doi.org/10.1016/S2468-2667">https://doi.org/10.1016/S2468-2667</a>(20)30164-X.
\27\ Barrett, E.S., Horton, D.B., Roy, J., Gennaro, M.L.,
Brooks, A., Tischfield, J., Greenberg, P., Andrews, T., Jagpal, S.,
Reilly, N., Carson, J.L., Blaser, M.J., & Panettieri, R.A. (2020).
Prevalence of SARS-COV-2 infection in previously undiagnosed health
care workers in New Jersey, at the onset of the U.S. covid-19
pandemic. BMC Infectious Diseases, 20(1). <a href="https://doi.org/10.1186/s12879-020-05587-2">https://doi.org/10.1186/s12879-020-05587-2</a>.
\28\ Dizioli, Allan and Pinheiro, Roberto. (2016). Health
Insurance as a Productive Factor. Labour Economics. <a href="https://doi.org/10.1016/j.labeco.2016.03.002">https://doi.org/10.1016/j.labeco.2016.03.002</a>.
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By including DACA recipients in the definition of ``lawfully
present,'' this proposed rule is aligned with the goals of the ACA--
specifically, to lower the number of people who are uninsured in the
United States and make affordable health insurance available to more
people. Further, DACA recipients represent a pool of relatively young,
healthy adults; at an average age of 29 per U.S. Citizenship and
Immigration Services (USCIS) data, they are younger than the general
Exchange population.\29\ As such, there may be a slight effect on the
Exchange or BHP risk pools as a result of this proposed change,
discussed further in the Regulatory Impact Analysis in section VI.C. of
this proposed rule.
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\29\ Key Facts on Individuals Eligible for the Deferred Action
for Childhood Arrivals (DACA) Program. Kaiser Family Foundation.
February 1, 2018. <a href="https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-individuals-eligible-for-the-deferred-action-for-childhood-arrivals-daca-program/">https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-individuals-eligible-for-the-deferred-action-for-childhood-arrivals-daca-program/</a>.
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In previously excluding DACA recipients from the definition of
``lawfully present,'' CMS had posited that the broadly accepted
conventions of lawful presence should be set aside if the program or
status in question was not established with the explicit objective of
expanding access to health insurance affordability programs. However,
given the broad aims of the ACA to increase access to health coverage,
we now assess that this rationale for excluding certain noncitizen
groups from such coverage was not only not statutorily mandated, it
failed to best effectuate congressional intent in the ACA.
Additionally, HHS previously reasoned that considering DACA recipients
eligible for insurance affordability programs was inconsistent with the
limited relief that the DACA policy was intended to afford. However, on
further review and consideration, it is clear that the DACA policy was
intended to provide recipients with the stability and assurance that
would allow them to obtain education and lawful employment, and
integrate as productive members of society. Extending health benefits
to these individuals is consistent with those fundamental goals of
DACA. It is also evident that there was no statutory mandate to
distinguish between recipients of deferred action under the DACA policy
and other deferred action recipients.
The proposed change to no longer exclude DACA recipients from CMS
definitions of ``lawfully present'' aligns with both the longstanding
DHS definition of lawful presence under 8 CFR 1.3 and DHS's explanation
of this definition in the DHS DACA Final Rule. In a January 20, 2021
memorandum, ``Preserving and Fortifying Deferred Action for Childhood
Arrivals,'' the President directed the Secretary of Homeland Security
and the Attorney General to take appropriate steps consistent with
applicable law to act to preserve and fortify DACA.\30\
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\30\ The White House. (2021). Preserving and Fortifying Deferred
Action for Childhood Arrivals (DACA). <a href="https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01769.pdf">https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01769.pdf</a>.
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Following the issuance of this memorandum, DHS issued a proposed
rule, ``Deferred Action for Childhood Arrivals,'' on September 28, 2021
(86 FR 53736), and the DHS DACA Final Rule on August 30, 2022, with an
effective date of October 31, 2022.\31\ Among other things, the DHS
DACA Final Rule reiterated USCIS' longstanding policy that a noncitizen
who has been granted deferred action is deemed ``lawfully present''--a
specialized term of art that Congress has used in multiple statutes--
for example, for purposes of 8 U.S.C. 1611(b)(2). The DHS DACA Final
Rule also reiterated that DACA recipients do not accrue ``unlawful
presence'' for purposes of 8 U.S.C. 1182(a)(9).
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\31\ Current court orders prohibit DHS from administering the
DACA policy. But a partial stay permits DHS to continue processing
DACA renewals and related applications for employment authorization
documents. See USCIS, DACA Litigation Information and Frequently
Asked Questions (Nov. 3, 2022).
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We are aware that DHS received public comments about ``HHS'
exclusion of DACA recipients from participation in Medicaid, the
Children's Health Insurance Program (CHIP), and the ACA health
insurance marketplace.'' (87 FR 53152). In response, DHS noted that it
did not have the authority to make changes to the definitions of
``lawfully present'' used to determine eligibility for insurance
affordability programs and affirmed that such authority rests with HHS
(87 FR 53152). While review of the DHS DACA Final Rule in part prompted
HHS to revisit its own interpretation of ``lawfully present,'' the
changes proposed in this rule reflect a desire to align with
longstanding DHS policy
[[Page 25317]]
predating the DHS DACA Final Rule, under which deferred action
recipients have been considered ``lawfully present'' for purposes of
certain Social Security benefits under 8 CFR 1.3.
In light of DHS's clarifications, HHS sees no persuasive reasons to
treat DACA recipients differently from other noncitizens who have been
granted deferred action. Accordingly, HHS proposes to amend our
regulations at 42 CFR 600.5 and 45 CFR 152.2 and 155.20, and establish
regulations at 42 CFR 435.4 and 457.320, so that DACA recipients would
be considered lawfully present for purposes of eligibility for health
insurance coverage through an Exchange, a BHP, and for eligibility
under the CHIPRA 214 option in Medicaid and CHIP, just like other
individuals granted deferred action. Specifically, we are proposing to
amend QHP regulations at 45 CFR 155.20 to remove the current cross-
reference to 45 CFR 152.2 and to instead add a definition of ``lawfully
present'' for purposes of determining eligibility to enroll in a QHP
through an Exchange. In section II.B. of this rule, we propose to
remove the definition of ``lawfully present'' currently in the PCIP
regulations at 45 CFR 152.2 and add a cross reference to 45 CFR 155.20
to ensure alignment across programs. In the definition proposed at 45
CFR 155.20, we propose to remove the existing exception in 45 CFR 152.2
that excludes DACA recipients from the definition of ``lawfully
present,'' and clarify that references to noncitizens who are granted
deferred action who are lawfully present for purposes of this provision
include DACA recipients. Under this proposed change, we estimate that
approximately 129,000 DACA recipients would enroll in a QHP through an
Exchange, a BHP, or Medicaid or CHIP under the CHIPRA 214 option.
Proposed changes to Medicaid and CHIP under the CHIPRA 214 option and
BHP are included under sections II.D. and II.E. of this proposed rule.
2. Other Proposed Changes to the ``Lawfully Present'' Definition
In addition to including DACA recipients in the definition of
``lawfully present'' for the purposes of eligibility for health
insurance coverage through an Exchange, a BHP, and for eligibility
under the CHIPRA 214 option in Medicaid and CHIP, CMS is proposing
several other clarifications and technical adjustments to the
definition proposed at 45 CFR 155.20, as compared to the definition
currently at 45 CFR 152.2.
First, in paragraph (1) of the proposed definition of ``lawfully
present'' at 45 CFR 155.20, we propose some revisions as compared to
paragraph (1) of the definition currently at 45 CFR 152.2. In the
current regulations at 45 CFR 152.2, paragraph (1) provides that
qualified aliens, as defined in the Personal Responsibility and Work
Opportunity Act (PRWORA) at 8 U.S.C. 1641, are lawfully present.
Throughout the proposed definition at 45 CFR 155.20, we propose a
nomenclature change to use the term ``noncitizen'' instead of ``alien''
when appropriate to align with more modern terminology. Additionally,
in paragraph (1) of the proposed definition at 45 CFR 155.20, we
propose to cite the definition of ``qualified noncitizen'' at 42 CFR
435.4, rather than the definition of ``qualified alien'' in PRWORA. The
definition of ``qualified noncitizen'' currently at 42 CFR 435.4
includes the term ``qualified alien'' as defined at 8 U.S.C. 1641(b)
and (c). We note that for purposes of Exchange coverage and APTC
eligibility, citizens of the Freely Associated States (FAS) living in
the United States under the Compacts of Free Association (COFA),
commonly referred to as COFA migrants, are not considered qualified
noncitizens because the statutory provision at 8 U.S.C.1641(b)(8)
making such individuals qualified noncitizens only applies to Medicaid.
Similarly, for purposes of BHP eligibility, COFA migrants are not
considered qualified noncitizens by cross-referencing the BHP
definition of ``lawfully present'' at 42 CFR 600.5 to 45 CFR 155.20.
Please see section II.D.3. of this proposed rule, where we discuss this
further and we seek comment on whether to provide a more detailed
definition of ``qualified noncitizen'' at 42 CFR 435.4. Pending such
comments, and to ensure alignment across CMS programs, we propose that
the Exchange regulations at 45 CFR 155.20 define ``qualified
noncitizen'' by including a citation to the Medicaid regulations at 42
CFR 435.4, rather than to PRWORA.
Further, in the current definition of ``lawfully present'' at 45
CFR 152.2, CMS included in paragraph (2), a noncitizen in a
nonimmigrant status who has not violated the terms of the status under
which they were admitted or the status to which they have changed since
their admission. In this rule, we propose in paragraph (2) of 45 CFR
155.20, modifying this language such that a noncitizen in a valid
nonimmigrant status would be deemed lawfully present. Determining
whether an individual has violated the terms of their status is a
responsibility of DHS, not CMS. Accordingly, this proposed change would
ensure coverage of noncitizens in a nonimmigrant status that has not
expired, so long as DHS has not determined those noncitizens have
violated their status.
Exchanges would continue to submit requests to verify an
applicant's nonimmigrant status through a data match with DHS via the
Federal data services hub using DHS' Systematic Alien Verification for
Entitlements (SAVE) system. If SAVE indicates that the applicant has no
eligible immigration status, the applicant would not be eligible for
coverage. As such, this modification will simplify the eligibility
verification process, so that a nonimmigrant's immigration status can
be verified solely using the existing SAVE process, and reduce the
number of individuals for whom an Exchange or State agency may need to
request additional information. We also believe this change will
promote simplicity, consistency in program administration, and program
integrity given the reliance on a Federal trusted data source, while
eliminating the agency's responsibility to understand and evaluate the
minute complexities of the various immigration statuses and
regulations.
We also propose a minor technical change in paragraph (4) of the
proposed definition of ``lawfully present'' at 45 CFR 155.20, as
compared to the definition of ``lawfully present'' currently in
paragraph (4)(i) at 45 CFR 152.2, to refer to individuals who are
``granted,'' rather than ``currently in'' temporary resident status, as
this language more accurately refers to how this status is conferred.
We similarly propose a minor technical change in paragraph (5) of the
proposed definition of ``lawfully present'' at 45 CFR 155.20, as
compared to the definition of ``lawfully present'' currently in
paragraph (4)(ii) at 45 CFR 152.2, to refer to individuals who are
``granted,'' rather than ``currently under'' Temporary Protected Status
(TPS), as this language more accurately refers to how DHS confers this
temporary status upon individuals.
Paragraph (4)(iii) of the current definition at 45 CFR 152.2
provides that noncitizens who have been granted employment
authorization under 8 CFR 274a.12(c)(9), (10), (16), (18), (20), (22),
or (24) are considered lawfully present. In paragraph (6) of the
proposed definition of ``lawfully present'' at 45 CFR 155.20, we
propose to cross reference 8 CFR 274a.12(c) in its entirety in order to
simplify the regulatory definition and verification process. We are
proposing this modification to the regulatory text to include all
noncitizens who have been granted an Employment Authorization
[[Page 25318]]
Document (EAD) under 8 CFR 274a.12(c), as USCIS has authorized these
noncitizens to accept employment in the United States. USCIS may grant
noncitizens employment authorization under this regulatory provision
based on the noncitizen's underlying immigration status or relief
granted, an application for such status or other immigration relief, or
other basis. Almost all noncitizens granted an EAD under 8 CFR
274a.12(c) are already considered lawfully present under existing
regulations, either at in paragraph (4)(iii) of the defintion at 45 CFR
152.2 or within 45 CFR 152.2 more broadly. This modification would add
only two minor categories to the proposed definition: noncitizens
granted employment authorization under 8 CFR 274a.12(c)(35) and (36).
Individuals covered under 8 CFR 274a.12(c)(35) and (36) are noncitizens
with certain approved employment-based immigrant visa petitions who are
transitioning from an employment-based nonimmigrant status to lawful
permanent resident (LPR) status, and their spouses and children, for
whom immigrant visa numbers are not yet available. These EAD categories
act as a ``bridge'' to allow these noncitizens to maintain work
authorization after their nonimmigrant status expires while they await
an immigrant visa to become available. Because these individuals were
previously eligible for insurance programs by virtue of their
nonimmigrant status, the proposed rule would simply allow their
eligibility to continue until they are eligible to apply to adjust to
LPR status.
This change to consider ``lawfully present'' all individuals with
an EAD granted under 8 CFR 274a.12(c) is beneficial because Exchanges
can usually verify that an individual has been granted an EAD under 8
CFR 274a.12(c) in real time through SAVE, at the initial step of the
verification process. Thus, the proposed revision to the definition
would help to streamline and expedite verification of status for
individuals who have been granted an EAD under this regulatory
provision.
Further, to reduce duplication and confusion, we propose to remove
the clause currently in paragraph (4)(ii) of the defintion in 45 CFR
152.2, referring to ``pending applicants for TPS who have been granted
employment authorization,'' as these individuals would be covered under
proposed paragraph (6) of the definition of ``lawfully present'' at 45
CFR 155.20.
We propose a minor technical modification to the citation in
paragraph (7) of the definition of ``lawfully present'' to more
accurately describe Family Unity beneficiaries. Family Unity
beneficiaries are individuals who entered the United States and have
been continuously residing in the United States since May 1988, and who
have a family relationship (spouse or child) to a noncitizen with
``legalized status.'' \32\ The current definition of ``lawfully
present'' at 45 CFR 152.2 includes Family Unity beneficiaries eligible
under section 301 of the Immigration Act of 1990 (Pub. L. 101-649,
enacted November 29, 1990), as amended. However, DHS also considers as
Family Unity beneficiaries individuals who are granted benefits under
section 1504 of the Legal Immigration and Family Equity (LIFE) Act
Amendments of 2000 (enacted by reference in Pub. L. 106-554, enacted
December 21, 2000), referred to hereinafter as the LIFE Act Amendments.
In this rule, we propose to amend the definition to include individuals
who are granted benefits under section 1504 of the LIFE Act Amendments
for consistency with DHS's policy to consider such individuals Family
Unity beneficiaries.
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\32\ See USCIS Form I-817 (Application for Family Unity
Benefits) and Instructions available at <a href="https://www.uscis.gov/sites/default/files/document/forms/i-817.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-817.pdf</a>. <a href="https://www.uscis.gov/sites/default/files/document/forms/i-817instr.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-817instr.pdf</a>.
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As discussed previously, in paragraph (9) of the proposed
definition of ``lawfully present'' at 45 CFR 155.20, we propose an
additional clause clarifying that all recipients of deferred action,
including DACA recipients, are lawfully present for purposes of 45 CFR
part 155, which concerns eligibility to enroll in a QHP through an
Exchange, and by cross-reference at 42 CFR 600.5, eligibility for a
BHP.
In paragraph (10) of the proposed definition of ``lawfully
present'' at 45 CFR 155.20, we propose to clarify that individuals with
a pending application for adjustment of status are not required to have
an approved immigrant visa petition in order to be considered lawfully
present. We propose this change because in some circumstances, DHS does
not require a noncitizen to have an approved immigrant visa petition to
apply for adjustment of status. For example, USCIS allows noncitizens
in some employment-based categories, as well as immediate relatives of
U.S. citizens, to concurrently file a visa petition with an application
for adjustment of status. Further, there are some scenarios where
individuals need not have an approved visa petition at all, such as
individuals applying for adjustment of status under the Cuban
Adjustment Act. In addition, the DHS SAVE verification system generally
does not currently return information to requestors on the status of
underlying immigrant visa petitions associated with the adjustment of
status response. This proposed modification would simplify verification
for these noncitizens, reduce the burden on States and individual
applicants, and align with current DHS procedures.
Paragraph (5) of the current definition of ``lawfully present''
pertains to applicants for asylum, withholding of removal, or relief
under the Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (hereinafter ``Convention Against
Torture''). In this rule, we are proposing to move this text to
paragraph (12) of the definition of ``lawfully present'' at 45 CFR
155.20, and remove the portion of the text pertaining to noncitizens
age 14 and older who have been granted employment authorization, as
these individuals are noncitizens granted employment authorization
under 8 CFR 274a.12(c)(8), and as such, are included in paragraph (6)
of our proposed definition of ``lawfully present'' at 45 CFR 155.20.
This proposed change is intended to reduce duplication and will not
have a substantive impact on the definition of ``lawfully present.''
We further propose to remove the requirement in the current
definition that individuals under age 14 who have filed an application
for asylum, withholding of removal, or relief under the Convention
Against Torture have had their application pending for 180 days to be
deemed lawfully present. We originally included this 180-day waiting
period for children under 14 in our definition of ``lawfully present''
to align with the statutory waiting period before applicants for asylum
and other related forms of protection can be granted an EAD. We now
propose to change this so that children under 14 are considered
lawfully present without linking their eligibility to the 180-day
waiting period for an EAD. We note that children under age 14 are
generally are not permitted to work in the United States under the Fair
Labor Standards Act,\33\ and as such, the EAD waiting period has no
direct nexus to their eligibility for coverage. Under the proposed
rule, Exchanges and States would continue to verify that a child has
the relevant pending application or is listed as a dependent on a
parent's \34\ pending application for asylum or related protection
using DHS's SAVE system. This proposed modification captures the same
population of children that were previously covered as lawfully
present, without respect to
[[Page 25319]]
how long their applications have been pending.
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\33\ See 29 CFR 570.2.
\34\ See 8 U.S.C. 1101(b)(2) (definition of ``parent'').
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In paragraph (13) of the proposed definition of ``lawfully
present'' at 45 CFR 155.20, we propose to include individuals with an
approved petition for Special Immigrant Juvenile (SIJ) classification.
The definition currently at paragraph (7) of 45 CFR 152.2 refers
imprecisely to noncitizens with a ``pending application for [SIJ]
status'' and therefore unintentionally excludes from the definition of
``lawfully present,'' children whose petitions for SIJ classification
have been approved but who cannot yet apply for adjustment of status
due to lack of an available visa number.\35\ Due to high demand for
visas in this category, for many applicants it can take several years
for a visa number to become available. SIJs are an extremely vulnerable
population and as such, we propose to close this unintentional gap so
that all children with an approved petition for SIJ classification are
deemed lawfully present.
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\35\ Moreover, SIJ classification is not itself a status and
should not be described as such in the regulation. The current
regulatory reference to a ``pending application for SIJ status'' has
been construed to encompass noncitizens with a pending SIJ petition.
It is not limited to noncitizens with a pending application for
adjustment of status based on an approved SIJ petition. Therefore,
the proposed regulatory change does not modify the current practice
of determining lawful presence for noncitizens in the SIJ process
based on a pending petition, rather than (as with other categories
of noncitizens seeking (LPR) status) based on a pending application.
Rather, the modification we propose in this rule clarifies the
language so that both pending and approved SIJ petitions convey
lawful presence for the purposes of eligibility for health insurance
coverage through an Exchange, a BHP, and for eligibility under the
CHIPRA 214 option in Medicaid and CHIP, whether or not an individual
with an approved SIJ petition has an adjustment application pending.
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In May 2022, USCIS began considering granting deferred action to
noncitizens with approved petitions for SIJ classification but who are
unable to apply for adjustment of status solely due to unavailable
immigrant visa numbers. Accordingly, based on the proposed changes at
45 CFR 155.20, SIJs could be considered ``lawfully present'' under
three possible categories, as applicable: paragraph (9) deferred
action; paragraph (10) a pending adjustment of status application; or
paragraph (13) a pending or approved SIJ petition. While paragraph (9)
would cover individuals with approved SIJ petitions who cannot apply
for adjustment of status, there may be a small number of SIJs with
approved petitions whose request for deferred action has not yet been
decided, for whom DHS has declined to defer action, or who were not
considered for deferred action. The proposed modification to paragraph
(13) of the definition of ``lawfully present'' at 45 CFR 155.20 would
capture individuals who have established eligibility for SIJ
classification but do not qualify under paragraph (9) or (10) of the
proposed definition of ``lawfully present'' at 45 CFR 155.20, and
eliminate an unintentional gap in the definition.
We also propose a nomenclature change to the definitions currently
at 45 CFR 152.2 to use the term ``noncitizen,'' rather than ``alien''
in the definition proposed at 45 CFR 155.20 to align with more modern
terminology.
3. Severability
We propose to add a new section at 45 CFR 155.30 addressing the
severability of the provisions proposed in this rule. In the event that
any portion of a final rule is declared invalid, CMS intends that the
various provisions of the definition of ``lawfully present'' be
severable, and that the changes we are proposing with respect to the
definitions of ``lawfully present'' in 45 CFR 155.20 would continue
even if some of the proposed changes to any individual category are
found invalid. The severability of these provisions is discussed in
detail in section III. of this proposed rule.
D. Eligibility in States, the District of Columbia, the Northern
Mariana Islands, and American Samoa and Children's Health Insurance
Programs (CHIPs) (42 CFR 435.4 and 457.320(c))
1. Lawfully Residing and Lawfully Present Definitions
Section 214 of CHIPRA is currently codified at sections
1903(v)(4)(A) and 2107(e)(1)(O) of the Act to allow States and
territories an option to provide Medicaid and CHIP benefits to children
under age 21 (under age 19 for CHIP) and pregnant individuals who are
``lawfully residing'' in the United States, without a 5-year waiting
period, provided that they meet all other eligibility requirements in
the State (for example, income). When States elect to cover pregnant
individuals and children under the CHIPRA 214 option, this coverage
includes the 60-day postpartum period or, at State option, the 12-month
postpartum period (including for adolescents who become pregnant),\36\
when they are lawfully residing and meet all other eligibility
requirements in the State. While the Medicaid and CHIP statutes do not
define ``lawfully residing'', we have previously recognized that this
term is broader than the definition of ``qualified noncitizen'',
discussed in section II.D.3. of this proposed rule.
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\36\ 42 U.S.C. 1396a(e)(16); 42 U.S.C. 1397gg(e)(1)(J). See SHO
#21-0007, ``Improving Maternal Health and Extending Postpartum
Coverage in Medicaid and the Children's Health Insurance Program
(CHIP)'' (issued Dec 7, 2021), available at <a href="https://www.medicaid.gov/federal-policy-guidance/downloads/sho21007.pdf">https://www.medicaid.gov/federal-policy-guidance/downloads/sho21007.pdf</a>. See
also Sec. 2, Division FF, Title V, Subtitle D, Sec. 5113 of the
Consolidated Appropriations Act, 2023 (Pub. L. 117-328) (removing
the 5-year limitation on the State option to extend postpartum
coverage to 12-months).
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As discussed previously in this rule, on July 1, 2010, CMS issued
the 2010 SHO letter providing guidance for State Medicaid and CHIP
agencies to implement section 214 of CHIPRA. In the 2010 SHO letter,
CMS interpreted ``lawfully residing'' to mean individuals who are
``lawfully present'' in the United States and who are residents of the
State in which they are applying under the State's Medicaid or CHIP
residency rules.\37\ The term ``lawfully present'' is defined in the
2010 SHO and was based on the definition of ``lawfully present'' that
is now codified at 8 CFR 1.3 with some revisions necessary for updating
or clarifying purposes, or as otherwise determined appropriate for the
Medicaid and CHIP programs consistent with the Act.
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\37\ Centers for Medicare & Medicaid Services. (2010). SHO #10-
006: Medicaid and CHIP Coverage of ``Lawfully Residing'' Children
and Pregnant Women. <a href="https://downloads.cms.gov/cmsgov/archived-downloads/smdl/downloads/sho10006.pdf">https://downloads.cms.gov/cmsgov/archived-downloads/smdl/downloads/sho10006.pdf</a>.
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On August 28, 2012, CMS issued the 2012 SHO, excluding DACA
recipients from being considered lawfully residing for Medicaid and
CHIP under the CHIPRA 214 option.\38\ The 2012 SHO established CMS'
current interpretation of ``lawfully present'' indicating that DACA
recipients, unlike other recipients of deferred action, are not
considered lawfully present for purposes of eligibility for Medicaid
and CHIP under section 214 of CHIPRA. In the 2012 SHO, CMS reasoned
that because the rationale that DHS offered for adopting the DACA
policy did not pertain to eligibility for Medicaid and CHIP,
eligibility for these benefits should not be extended as a result of
DHS deferring action under DACA. In so reasoning, CMS relied on the
description of the DACA policy offered by DHS in its ``Exercising
Prosecutorial Discretion with Respect to Individuals Who Came to the
United States as Children'' memorandum, which explained that the DACA
policy was ``necessary to ensure that [its]
[[Page 25320]]
enforcement resources are not expended on these low priority cases.''
\39\ The DHS memorandum did not address the availability of health
insurance coverage through the Exchange, a BHP, Medicaid or CHIP. As
such, DACA recipients are not currently eligible for Medicaid or CHIP
programs under the CHIPRA 214 option.
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\38\ Centers for Medicare & Medicaid Services. (2012). SHO #12-
002: Individuals with Deferred Action for Childhood Arrivals.
<a href="https://www.medicaid.gov/federal-policy-guidance/downloads/sho-12-002.pdf">https://www.medicaid.gov/federal-policy-guidance/downloads/sho-12-002.pdf</a>.
\39\ United States Department of Homeland Security. (2012)
Exercising Prosecutorial Discretion with Respect to Individuals Who
Came to the United States as Children. <a href="https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf">https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf</a>.
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We are proposing to define the terms ``lawfully present'' and
``lawfully residing'' at 42 CFR 435.4. For the same reasons as the
proposed changes at 45 CFR 155.20, described in section II.C.1. of this
proposed rule, and to ensure alignment across CMS programs, the
proposed definition of ``lawfully present'' would remove the exclusion
of DACA recipients and clarify that they are included in the broader
category of those granted deferred action as lawfully residing in the
United States for purposes of Medicaid and CHIP eligibility under the
CHIPRA 214 option. We are also proposing to add a cross-reference to
this definition at 42 CFR 457.320(c) for purposes of determining
eligibility for CHIP. Thus, under the proposed rule, DACA recipients
who are children under 21 years of age (under age 19 for CHIP) or
pregnant, including during the postpartum period,\40\ would be eligible
for Medicaid and CHIP benefits in States that have elected the option
in their State plan to cover all lawfully residing children or pregnant
individuals under the CHIPRA 214 option. These individuals would still
need to meet all other eligibility requirements for coverage in the
State.\41\ We propose the definition of ``lawfully residing'' to match
the definition as defined in the 2010 SHO, discussed previously in this
rule--that an individual is ``lawfully residing'' if they are
``lawfully present'' in the United States and are a resident of the
State in which they are applying under the State's Medicaid or CHIP
residency rules.
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\40\ The postpartum period for pregnant individuals includes the
60-day period described in sections 1903(v)(4)(A)(i) and
2107(e)(1)(O) of the Act or the extended 12-month period described
in sections 1902(e)(16) and 2107(e)(1)(J) of the Act in States that
have elected that option.
\41\ To date, 35 States, the District of Columbia, and three
territories have elected the CHIPRA 214 option for at least one
population of children or pregnant individuals in their Medicaid or
CHIP programs. A current list of States that elect the CHIPRA 214
option in Medicaid and/or CHIP is available at <a href="https://www.medicaid.gov/medicaid/enrollment-strategies/medicaid-and-chip-coverage-lawfully-residing-children-pregnant-women">https://www.medicaid.gov/medicaid/enrollment-strategies/medicaid-and-chip-coverage-lawfully-residing-children-pregnant-women</a>.
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Further, as discussed in section II.C.2. of this proposed rule
regarding modifications to the lawfully present definition proposed in
45 CFR 155.20, we propose in 42 CFR 435.4 each of the same
clarifications and minor technical changes. The proposed definition of
``lawfully present'' in 42 CFR 435.4 would mirror the current
definition of ``lawfully present'' as defined in the 2010 SHO letter
with the clarification and minor technical changes described previously
in this proposed rule. We are proposing these rules to align with the
proposed definition of ``lawfully present'' across programs and for the
same rationales described in section II.C.2. of this proposed rule.
The ``lawfully present'' definition proposed at 42 CFR 435.4 is
identical to the definition proposed at 45 CFR 155.20, except for two
additional paragraphs related to the territories. Consistent with the
2010 SHO definition of ``lawfully present,'' paragraph (14) of the
proposed definition of ``lawfully present'' at 42 CFR 435.4 provides
that individuals who are lawfully present in American Samoa are
considered lawfully present. CMS is not proposing a change from its
current policy described in the 2010 SHO regarding individuals who are
lawfully present in American Samoa. Paragraph (15) of the proposed
definition of ``lawfully present'' at 42 CFR 435.4 provides a revised
description of lawfully present individuals in the Commonwealth of the
Northern Mariana Islands (CNMI) under 48 U.S.C. 1806(e), as compared to
paragraph (8) of the definition of ``lawfully present'' in the 2010
SHO. The 2010 SHO definition covered individuals described in 48 U.S.C.
1806(e)(1), which granted continued lawful presence in the CNMI to
certain noncitizens who were lawfully present at that time under former
CNMI immigration law. This statutory provision expired on November 28,
2011. However, in the Northern Mariana Islands Long-Term Legal
Residents Relief Act (Public Law 116-24, enacted June 25, 2019),
Congress subsequently added a new paragraph (6) to section 1806(e) of
the Act, creating a new immigration status of ``CNMI Resident'' for
certain long-term residents of the CNMI. Our proposed definition of
``lawfully present'' at 45 CFR 435.4 includes CNMI Residents at
paragraph (15), with an update to reflect the current statute regarding
individuals who are CNMI residents. Similar language is not included in
the definition at 45 CFR 155.20 because American Samoa and the CNMI do
not have Exchanges.
We also propose a nomenclature change to the definitions of
``citizenship,'' ``noncitizen,'' and ``qualified noncitizen'' in 42 CFR
435.4 in order to remove the hyphen in the term ``non-citizen'' and use
the term ``noncitizen'' throughout those definitions to align with
terminology used by DHS.
2. Severability
We propose to add a new section at 42 CFR 435.12 addressing the
severability of the provisions proposed in this rule. In the event that
any portion of a final rule might be declared invalid, CMS intends that
the various provisions of the definition of ``lawfully present'' be
severable, and that the changes we are proposing with respect to the
definitions of ``lawfully present'' in Sec. 435.4 would continue even
if some of the proposed changes to any individual category are found
invalid. The severability of these provisions is discussed in detail in
section III. of this proposed rule.
3. Defining Qualified Noncitizen
As previously discussed, the proposed definition of ``lawfully
present'' includes an individual who is a ``qualified noncitizen''.
Under our current Medicaid regulations, a ``qualified non-citizen'' is
defined at 42 CFR 435.4 and includes an individual described in 8
U.S.C. 1641(b) and (c). The definition is currently used for
determining Medicaid eligibility under our regulation at 42 CFR
435.406, and the definition would also be important for determining
eligibility of individuals who are seeking CHIPRA section 214 benefits.
We are considering whether the current definition of qualified
noncitizen at 42 CFR 435.4 should be modified to provide greater
clarity and increase transparency for the public. Specifically, we are
considering whether the definition should be modified to expressly
provide all of the categories of noncitizens covered by 8 U.S.C.
1641(b) and (c), as well as additional categories of noncitizens that
Medicaid agencies are required to cover as a result of subsequently
enacted
[[Page 25321]]
legislation that was not codified in 8 U.S.C. 1641(b) or (c). For
example, Federal law requires certain populations to be treated as
``refugees.'' \42\ Additional categories of noncitizens treated as
``refugees'' under Federal law that could be specifically described in
the regulation include, for example, victims of trafficking and certain
Afghans and Ukrainians.\43\ We are considering whether to revise the
definition of qualified noncitizen in 42 CFR 435.4 to account for these
and other noncitizens for clarity and transparency.
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\42\ Refugees are listed as a category of noncitizens who are
``qualified aliens'' at 8 U.S.C. 1641(b)(3).
\43\ To date, these other Federal laws include the Trafficking
Victims Protection Act of 2000 (22 U.S.C. 7105(b)), relating to
certain victims of trafficking; section 602(b)(8) of the Afghan
Allies Protection Act of 2009, Public Law 111-8 (8 U.S.C. 1101
note), relating to certain Afghan special immigrants; section
1244(g) of the Refugee Crisis in Iraq Act of 2007 (8 U.S.C. 1157
note), relating to certain Iraqi special immigrants; section 584(c)
of Public Law 100-202 (8 U.S.C. 1101 note), relating to Amerasian
immigrants; section 2502(b) of the Extending Government Funding and
Delivering Emergency Assistance Act of 2021, Public Law 117-43,
relating to certain Afghan parolees; and section 401 of the
Additional Ukraine Supplemental Appropriations Act of 2022, Public
Law 117-128, relating to certain Ukrainian parolees.
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We note that there is at least one difference in how the term
``qualified noncitizen'' applies to Medicaid compared to the other
programs discussed in this proposed rule. Generally, although the
definition of ``qualified alien'' in 8 U.S.C. 1641 applies to all of
the programs, COFA migrants are only considered ``qualified aliens''
for purposes of the Medicaid program. The Consolidated Appropriations
Act, 2021 added individuals who lawfully reside in the United States in
accordance with COFA to the definition of qualified alien under new
paragraph (8) of 8 U.S.C. 1641(b).\44\ This paragraph specifies that
COFA migrants' eligibility only extends to the designated Federal
program defined in 8 U.S.C. 1612(b)(3)(C), which is the Medicaid
program.
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\44\ Div. CC, Title II, sec. 208, Public Law 116-260.
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Since CHIP is not included as a designated Federal program at 8
U.S.C. 1612(b)(3)(C), we acknowledge that COFA migrants would need to
be excluded from the definition of qualified noncitizen for separate
CHIP through an exception at 42 CFR 457.320(c). However, we also note
that under the definition of ``lawfully present,'' COFA migrants with a
valid nonimmigrant status, as defined in 8 U.S.C. 1101(a)(15) or
otherwise under the immigration laws (as defined in 8 U.S.C.
1101(a)(17)), may be eligible for CHIP in States that have elected the
CHIPRA 214 option, if they meet all other eligibility requirements
within the State. Similarly, enrollment in a QHP through an Exchange
and BHP enrollment are not included as designated Federal programs, and
as such, COFA migrants are not considered qualified noncitizens for
purposes of eligibility for Exchange coverage, APTC, cost sharing
reductions, or BHP eligibility. However, COFA migrants would generally
be considered lawfully present under paragraph (2) of the proposed
``lawfully present'' definition at 45 CFR 152.2 regarding
nonimmigrants, as they are considered lawfully present under existing
regulations in paragraph (2) of the defintion at 45 CFR 152.2 today,
and thus would continue to be eligible for Exchange coverage in a QHP,
APTC, CSRs, and BHP, if they meet all other eligibility requirements
for those programs.
Because noncitizens who are treated as refugees for purposes of
Medicaid eligibility are also treated as refugees for purposes of CHIP
eligibility, these categories of noncitizens (discussed previously in
this proposed rule) are also being considered for the definition of
qualified noncitizen for purposes of CHIP. We seek public comment on
our consideration of modifying the definition of qualified noncitizen
in 42 CFR 435.4 in this manner.
E. Administration, Eligibility, Essential Health Benefits, Performance
Standards, Service Delivery Requirements, Premium and Cost Sharing,
Allotments, and Reconciliation (42 CFR Part 600)
Section 1331 of the ACA provides States with an option to establish
a BHP.\45\ In States that elect to implement a BHP, the program makes
affordable health benefits coverage available for lawfully present
individuals under age 65 with household incomes between 133 percent and
200 percent of the Federal poverty level (FPL) who are not otherwise
eligible for Medicaid, CHIP, or affordable employer-sponsored coverage,
or for individuals whose income is below these levels but are lawfully
present noncitizens ineligible for Medicaid. For those States that have
expanded Medicaid coverage under section 1902(a)(10)(A)(i)(VIII) of the
Act, the lower income threshold for BHP eligibility is effectively 138
percent of the FPL due to the application of a required 5 percent
income disregard in determining the upper limits of Medicaid income
eligibility (section 1902(e)(14)(I) of the Act). Currently, there are
two States that operate a BHP--Minnesota and New York.\46\
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\45\ See 42 U.S.C. 18051. Also see 42 CFR part 600.
\46\ Minnesota's program began January 1, 2015, and New York's
program began April 1, 2015. For more information, see <a href="https://www.medicaid.gov/basic-health-program/index.html">https://www.medicaid.gov/basic-health-program/index.html</a>. Also see, for
example, 87 FR 77722, available at <a href="https://www.govinfo.gov/content/pkg/FR-2022-12-20/pdf/2022-27211.pdf">https://www.govinfo.gov/content/pkg/FR-2022-12-20/pdf/2022-27211.pdf</a>.
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In this rule, we propose conforming amendments to the BHP
regulations to remove the current cross-reference to 45 CFR 152.2 in
the definition of ``lawfully present'' at 42 CFR 600.5. We also propose
to amend the definition of ``lawfully present'' in the BHP regulations
at 42 CFR 600.5 to instead cross-reference the definition of ``lawfully
present'' proposed in this rule at 45 CFR 155.20. This proposal, if
finalized, would result in DACA recipients being considered lawfully
present for purposes of eligibility to enroll in a BHP in a State that
elects to implement such a program, if otherwise eligible. Also, if the
proposals are finalized, this modification would ensure that the
definition of ``lawfully present'' used to determine eligibility for
coverage under a BHP is aligned with the definition of ``lawfully
present'' used for the other insurance affordability programs. This
alignment is important because it would help ensure a State could
provide continuity of care for BHP enrollees who may have been
previously eligible for a QHP or Medicaid. Additionally, pursuant to 42
CFR 600.310(a), the States use the single streamlined application that
is used to determine eligibility for a QHP in an Exchange as well as
Medicaid and CHIP. An aligned definition of ``lawfully present'' would
reduce administrative burdens for the State as well as the potential
for incorrect eligibility determinations.
III. Severability
As described in the background section of this proposed rule, the
ACA generally \47\ requires that in order to enroll in a QHP through an
Exchange, an individual must be either a citizen or national of the
United States or be
[[Page 25322]]
``lawfully present'' in the United States.\48\ The ACA also generally
requires that individuals be ``lawfully present'' in order to be
eligible for insurance affordability programs such as PTC,\49\
APTC,\50\ and CSRs.\51\ Additionally, enrollees in a BHP are required
to meet the same citizenship and immigration requirements as QHP
enrollees.\52\ The ACA does not define ``lawfully present'' beyond
specifying that an individual is only considered lawfully present if
they are reasonably expected to be lawfully present for the period of
their enrollment,\53\ and that CMS is required to verify that Exchange
applicants are lawfully present in the United States.\54\ Additionally,
the CHIPRA 214 option gives States the option to elect to cover
``lawfully residing'' pregnant individuals and children in their
Medicaid and/or CHIP programs. Since 2010, CMS has interpreted
``lawfully residing'' to mean individuals who are ``lawfully present''
in the United States and who are residents of the State in which they
are applying under the State's Medicaid or CHIP residency rules.\55\
The interpretation of ``lawfully residing'' proposed in this rulemaking
is thus consistent with longstanding CMS guidance.
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\47\ States may pursue a waiver under section 1332 of the
Affordable Care Act (ACA) that could waive the ``lawfully present''
framework in section 1312(f)(3) of the ACA. See 42 U.S.C.
18052(a)(2)(B). There is currently one State (Washington) with an
approved section 1332 waiver that includes a waiver of the
``lawfully present'' framework to the extent necessary to permit all
State residents, regardless of immigration status, to enroll in a
QHP and Qualified Dental Plan (QDP) through the State's Exchange, as
well as to apply for State subsidies to defray the costs of
enrolling in such coverage. Consumers who are eligible for Exchange
coverage under the waiver remain ineligible for PTC. For more
information on this State's section 1332 waiver, see <a href="https://www.cms.gov/cciio/programs-and-initiatives/state-innovation-waivers/section_1332_state_innovation_waivers-">https://www.cms.gov/cciio/programs-and-initiatives/state-innovation-waivers/section_1332_state_innovation_waivers-</a>.
\48\ 42 U.S.C. 18032(f)(3).
\49\ 26 U.S.C. 36B(e)(2).
\50\ 42 U.S.C. 18082(d).
\51\ 42 U.S.C. 18071(e).
\52\ 42 U.S.C. 18051(e).
\53\ 42 U.S.C. 18032(f)(3), 42 U.S.C. 18071(e)(2).
\54\ 42 U.S.C. 18081(c)(2)(B).
\55\ Centers for Medicare & Medicaid Services. (2010). SHO #10-
006: Medicaid and CHIP Coverage of ``Lawfully Residing'' Children
and Pregnant Women. <a href="https://downloads.cms.gov/cmsgov/archived-downloads/smdl/downloads/sho10006.pdf">https://downloads.cms.gov/cmsgov/archived-downloads/smdl/downloads/sho10006.pdf</a>.
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Since 1996, when the Department of Justice's Immigration and
Naturalization Service issued an interim final rule defining the term
``lawfully present'' as used in the recently enacted PRWORA, Federal
agencies have considered deferred action recipients to be ``lawfully
present'' for purposes of certain Social Security benefits (see
Definition of the Term Lawfully Present in the United States for
Purposes of Applying for Title II Benefits Under Section 401(b)(2) of
Public Law 104-193, interim final rule, 61 FR 47039). In the
intervening years, Congress has been aware of agency actions to clarify
definitions of ``lawfully present'' consistent with their statutory
authority and has taken no action to codify a detailed definition of
``lawfully present'' for use in administering Federal benefit programs.
Given the lack of a statutory definition of ``lawfully present'' or
``lawfully residing'' in the ACA or the CHIPRA, and given the
rulemaking authority granted to CMS under 42 U.S.C. 1302, 42 U.S.C.
18051, and 42 U.S.C. 18041, HHS has discretion to determine the best
legal interpretations of these terms for purposes of administering its
programs. Although the intent of this proposed rule is to make
conforming changes to the definition of ``lawfully present'' across all
CMS insurance affordability programs, we recognize the underlying
statutory authorities and respective regulations contain some
differences and apply to different populations. It is CMS' intent that
if the rules for one program are found unlawful, the rules for other
programs would remain intact. As previously described, CMS' authority
to remove the exclusion treating recipients of deferred action under
the DACA policy differently from other noncitizens with deferred action
under the definition of ``lawfully present'' for purposes of
eligibility for insurance affordability programs is well-supported in
law and practice and should be upheld in any legal challenge.
Similarly, we have proposed technical changes to the definition of
``lawfully present'' for the purposes of eligibility for insurance
affordability programs, and we believe those changes are also well-
supported in law and practice and should be upheld in any legal
challenge. CMS also believes that its exercise of its authority
reflects sound policy.
However, in the event that any portion of a final rule is declared
invalid, CMS intends that the other proposed changes to the definition
of ``lawfully present'' and within the changes to the regulations
defining qualified noncitizens would be severable. For example, if a
court were to find unlawful the inclusion of one provision in the
definition of ``lawfully present,'' for purposes of eligibility for any
health insurance affordability program, CMS intends the remaining
features proposed in sections II.C.1., II.C.2., II.D.1., and II.D.3. of
this proposed rule to stand. Likewise, CMS intends that if one
provision of the changes to the definition of ``lawfully present'' is
struck down, that other provisions within that regulation be severable
to the extent possible. For example, if one of the provisions discussed
in section II.C.2. (Other Proposed Changes to the Definition of
Lawfully Present) of this proposed rule is found invalid, CMS intends
that the other provisions discussed in that section be severable.
Additionally, a final rule that includes only some provisions of
this proposed rule would have significant advantages and be worthwhile
in itself. For example, a rule consisting only of the technical and
clarifying changes proposed in section II.C.2. of this proposed rule,
applied through cross-reference to Exchanges, BHPs, and Medicaid and
CHIP in States that elect the CHIPRA 214 option, would allow CMS to
more effectively verify lawful presence of noncitizens for purposes of
eligibility for health insurance affordability programs. Similarly, a
rule consisting only of the changes proposed in section II.D.3. of this
rule, would increase transparency for consumers and State Medicaid and
CHIP agencies. A rule consisting solely of the changes proposed in
section II.C.1. of this proposed rule would have significant benefits
because it would increase access to health coverage for DACA
recipients. These reasons alone would justify the continued
implementation of these policies.
IV. Collection of Information Requirements
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), we are required to provide 60-day notice in the Federal Register
and solicit public comment before a collection of information
requirement is submitted to the Office of Management and Budget (OMB)
for review and approval. To fairly evaluate whether an information
collection should be approved by OMB, section 3506(c)(2)(A) of the PRA
requires that we solicit comment on the following issues:
<bullet> The need for the information collection and its usefulness
in carrying out the proper functions of our agency.
<bullet> The accuracy of our estimate of the information collection
burden.
<bullet> The quality, utility, and clarity of the information to be
collected.
<bullet> Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
We are soliciting public comment on each of these issues for the
following sections of this document that contain information collection
requirements. Comments, if received, will be responded to within the
subsequent final rule.
A. Wage Estimates
To derive average costs, we used data from the U.S. Bureau of Labor
Statistics' (BLS's) May 2021 National Occupational Employment and Wage
Estimates for all salary estimates (<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>). In this regard, Table 1 presents BLS's mean hourly wage,
our estimated cost of fringe benefits and overhead
[[Page 25323]]
(calculated at 100 percent of salary), and our adjusted hourly wage.
Table 1--National Occupational Employment and Wage Estimates
----------------------------------------------------------------------------------------------------------------
Fringe benefits
Occupational Mean hourly wage and other Adjusted hourly
Occupation title code ($/hr) indirect costs wage ($/hr)
($/hr)
----------------------------------------------------------------------------------------------------------------
Computer Programmer..................... 15-1251 46.46 46.46 92.92
Database and Network Administrator & 15-1240 49.25 49.25 98.50
Architect..............................
Eligibility Interviewers, Govt Programs. 43-4061 23.35 23.35 46.70
----------------------------------------------------------------------------------------------------------------
For States and the private sector, employee hourly wage estimates
have been adjusted by a factor of 100 percent. This is necessarily a
rough adjustment, both because fringe benefits and other indirect costs
vary significantly across employers, and because methods of estimating
these costs vary widely across studies. Nonetheless, there is no
practical alternative, and we believe that doubling the hourly wage to
estimate total cost is a reasonably accurate estimation method.
We adopt an hourly value of time based on after-tax wages to
quantify the opportunity cost of changes in time use for unpaid
activities. This approach matches the default assumptions for valuing
changes in time use for individuals undertaking administrative and
other tasks on their own time, which are outlined in an Assistant
Secretary for Planning and Evaluation (ASPE) report on ``Valuing Time
in U.S. Department of Health and Human Services Regulatory Impact
Analyses: Conceptual Framework and Best Practices.'' \56\ We start with
a measurement of the usual weekly earnings of wage and salary workers
of $998.\57\ We divide this weekly rate by 40 hours to calculate an
hourly pre-tax wage rate of $24.95. We adjust this hourly rate
downwards by an estimate of the effective tax rate for median income
households of about 17 percent, resulting in a post-tax hourly wage
rate of $20.71. We adopt this as our estimate of the hourly value of
time for changes in time use for unpaid activities.
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\56\ Department of Health and Human Services, Office of the
Assistant Secretary for Planning and Evaluation. 2017. ``Valuing
Time in U.S. Department of Health and Human Services Regulatory
Impact Analyses: Conceptual Framework and Best Practices.'' <a href="https://aspe.hhs.gov/reports/valuing-time-us-department-health-human-services-regulatory-impact-analyses-conceptual-framework">https://aspe.hhs.gov/reports/valuing-time-us-department-health-human-services-regulatory-impact-analyses-conceptual-framework</a>.
\57\ U.S. Bureau of Labor Statistics. Employed full time: Median
usual weekly nominal earnings (second quartile): Wage and salary
workers: 16 years and over [LEU0252881500A], retrieved from FRED,
Federal Reserve Bank of St. Louis; <a href="https://fred.stlouisfed.org/series/LEU0252881500A">https://fred.stlouisfed.org/series/LEU0252881500A</a>. Annual Estimate, 2021.
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B. Adjustment to State Cost Estimates
To estimate the financial burden on States pertaining to Medicaid
and CHIP information collection changes, it was important to consider
the Federal Government's contribution to the cost of administering the
Medicaid program. The Federal Government provides funding based on a
Federal medical assistance percentage (FMAP) that is established for
each State, based on the per capita income in the State as compared to
the national average. FMAPs for care and services range from a minimum
of 50 percent in States with higher per capita incomes to a maximum of
83 percent in States with lower per capita incomes. For Medicaid, all
States receive a 50 percent matching rate for administrative
activities. States also receive higher Federal matching rates for
certain administrative activities such as systems improvements,
redesign, or operations. For CHIP, States can claim enhanced FMAP for
administrative activities up to 10 percent of the State's total
computable expenditures within the State's fiscal year allotment. As
such, and taking into account the Federal contribution to the costs of
administering the Medicaid and CHIP programs for purposes of estimating
State burden with respect to collection of information, we elected to
use the higher end estimate that the States would contribute 50 percent
of the costs, even though the State burden may be much smaller,
especially for CHIP administrative activities.
Financial burden pertaining to BHP and State Exchange information
collection changes is covered entirely by States, as discussed further
in sections IV.C.2. through IV.C.4. of this proposed rule.
C. Proposed Information Collection Requirements (ICRs)
1. ICRs Regarding the CHIPRA 214 Option (42 CFR 435.4 and 457.320(c))
The following proposed changes will be submitted to OMB for review
under OMB control number 0938-1147 (CMS-10410) regarding Medicaid and
CHIP eligibility.
As discussed previously, the changes proposed to the definition of
``lawfully present'' would impact eligibility for Medicaid and CHIP in
States that have elected the CHIPRA 214 option. This proposal would
impact the 35 States, the District of Columbia, and three territories
that have elected the CHIPRA 214 option for at least one population of
children or pregnant individuals in their CHIP or Medicaid programs.
For simplicity, in the calculations that follow we will refer to this
total as ``States.'' For the purposes of these estimates, we will
assume that these proposals do not cause any States to opt in or out of
the CHIPRA 214 option. We further note that currently, 10 States cover
either children, or children and pregnant individuals regardless of
immigration status using State-only funds.\58\ However, we are
including those States in our estimates, because States may need to
adjust their systems to reflect the change in the route of eligibility,
or to address the new availability of Federal matching funds for
certain individuals.
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\58\ As of December 2022, those States are California, the
District of Columbia, Illinois, Maine, Massachusetts, New York,
Oregon, Rhode Island, Vermont, and Washington. ``Health Coverage and
Care of Immigrants,'' Kaiser Family Foundation, <a href="https://www.kff.org/racial-equity-and-health-policy/fact-sheet/health-coverage-and-care-of-immigrants/">https://www.kff.org/racial-equity-and-health-policy/fact-sheet/health-coverage-and-care-of-immigrants/</a>. Accessed March 2, 2023.
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We estimate that it would take each State 100 hours to develop and
code the changes to its Medicaid or CHIP eligibility systems to
correctly evaluate and verify eligibility under the revised definition
of ``lawfully present'' to include DACA recipients and certain other
limited groups of noncitizens in the CHIPRA 214 group, as outlined in
section II.C.2. of this proposed rule. Of those 100 hours, we estimate
it would take a database and network administrator and architect 25
hours at $98.50 per hour and a computer programmer 75 hours at $92.92
per hour. In aggregate, we estimate a one-time burden of 3,900 hours
(39 States x
[[Page 25324]]
100 hours) at a cost of $367,829 (39 States x [(25 hours x $98.50 per
hour) + (75 hours x $92.92 per hour)]) for completing the necessary
updates to Medicaid systems. Taking into account the 50 percent Federal
contribution to Medicaid and CHIP program administration, the estimated
State one-time cost would be $4,716 per State, and $183,914 in total
for all States.
These proposed requirements, if finalized, would impose additional
costs on States to process the applications for individuals impacted by
the proposals in this rule. Those impacts are accounted for under OMB
control number 0938-1191 (Data Collection to Support Eligibility
Determinations for Insurance Affordability Programs and Enrollment
through Health Insurance Marketplaces, Medicaid and Children's Health
Insurance Program Agencies (CMS-10440)), discussed in section IV.C.3.
of this proposed rule, which pertains to the streamlined application.
2. ICRs Regarding the BHP (42 CFR 600.5)
The following proposed changes will be submitted to OMB for review
under OMB control number 0938-1218 (CMS-10510).
The impact of this change is with regards to the two States with
BHPs--Minnesota and New York.\59\ We estimate that it would take each
State 100 hours to develop and code the changes to its BHP eligibility
and verification system to correctly evaluate eligibility under the
revised definition of ``lawfully present'' to include DACA recipients
and certain other limited groups of noncitizens as outlined in section
II.C.2. of this proposed rule. To be conservative in our estimates, we
are assuming 100 hours per State, but it is important to note that it
may take each State less than 100 hours given the overlap in State
eligibility and verification systems, as work completed for the
Medicaid or State Exchange system may be the same for its BHP.
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\59\ Minnesota's program began January 1, 2015, and New York's
program began April 1, 2015. For more information, see <a href="https://www.medicaid.gov/basic-health-program/index.html">https://www.medicaid.gov/basic-health-program/index.html</a>.
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Of those 100 hours, we estimate it would take a database and
network administrator and architect 25 hours at $98.50 per hour and a
computer programmer 75 hours at $92.92 per hour. In the aggregate, we
estimate a one-time burden of 200 hours (2 States x 100 hours) at a
cost of $18,863 (2 States x [(25 hours x $98.50 per hour) + (75 hours x
$92.92 per hour)]) for completing the necessary updates to a BHP
application.
These proposed requirements, if finalized, would impose additional
costs on States to process the applications for individuals impacted by
the proposals in this rule. Those impacts are accounted for under OMB
control number 0938-1191 (Data Collection to Support Eligibility
Determinations for Insurance Affordability Programs and Enrollment
through Health Insurance Marketplaces, Medicaid and Children's Health
Insurance Program Agencies (CMS-10440)), discussed in section IV.C.3.
of this proposed rule, which pertains to the streamlined application.
3. ICRs Regarding the Exchanges and Processing Streamlined Applications
(45 CFR 152.2 and 155.20, 42 CFR 600.5, and 42 CFR 435.4 and
457.320(c))
The following proposed changes will be submitted to OMB for review
under control number 0938-1191 (CMS-10440).
As discussed previously, the changes proposed to the definition of
``lawfully present'' would impact eligibility to enroll in a QHP
through an Exchange and for APTC and CSRs. This proposal would impact
the 18 State Exchanges that run their own eligibility and enrollment
platforms, as well as the Federal Government which would make changes
to the Federal eligibility and enrollment platform for the States with
Federally-facilitated Exchanges (FFEs) and State-based Exchanges on the
Federal platform (SBE-FPs). We estimate that it would take the Federal
Government and each of the State Exchanges 100 hours in 2023 to develop
and code the changes to their eligibility systems to correctly evaluate
and verify eligibility under the definition of ``lawfully present''
revised to include DACA recipients and certain other limited groups of
noncitizens as outlined in section II.C.2. of this proposed rule.
Of those 100 hours, we estimate it would take a database and
network administrator and architect 25 hours at $98.50 per hour and a
computer programmer 75 hours at $92.92 per hour. In aggregate for the
States, we estimate a one-time burden in 2023 of 1,800 hours (18 State
Exchanges x 100 hours) at a cost of $169,767 (18 States x [(25 hours x
$98.50 per hour) + (75 hours x $92.92 per hour)]) for completing the
necessary updates to State Exchange systems. For the Federal
Government, we estimate a one-time burden in 2023 of 100 hours at a
cost of $9,432 ((25 hours x $98.50 per hour) + (75 hours x $92.92 per
hour)). In total, the burden associated with all system updates would
be 1,900 hours at a cost of $179,199.
``Data Collection to Support Eligibility Determinations for
Insurance Affordability Programs and Enrollment through Health Benefits
Exchanges, Medicaid and CHIP Agencies,'' OMB control number 0938-1191
(CMS-10440) accounts for burdens associated with the streamlined
application for enrollment in the programs impacted by this rule. As
such, the following information collection addresses the burden of
processing applications and assisting enrollees with Medicaid, CHIP,
BHP, and QHP enrollment, and those impacts are not reflected in the
ICRs for Medicaid and CHIP, and BHP, discussed in sections IV.C.1. and
IV.C.2. of this proposed rule, respectively.
With respect to assisting additional eligible enrollees and
processing their applications, we estimate this would take a government
programs eligibility interviewer 10 minutes (0.17 hours) per
application at a rate of $46.70 per hour, for a cost of approximately
$7.94 per application. As discussed further in section IV.C.4. of this
proposed rule, we anticipate that approximately 200,000 individuals
impacted by the proposals in this rule would complete the application
annually. Therefore, the total application processing burden associated
with the proposals in this rule would be 34,000 hours (0.17 hours x
200,000 applications) for a total cost of $1,587,800 (34,000 hours x
$46.70 per hour). As discussed further in this section, we anticipate
that approximately 54 percent of the application processing burden
would fall on States, while the remaining approximately 46 percent
would be borne by the Federal Government. We estimate these proportions
as follows and seek comment on these estimates and the methodology and
assumptions used to calculate them.
To start, we estimate the percentage of applications that would be
processed for each of the programs: Medicaid, CHIP, Exchange, and BHP.
We assume that the proportion of applications that would be processed
for each program would be equivalent to the proportion of individuals
impacted by the proposals in this rule that would enroll in each
program. As discussed in section VI.C. of this proposed rule, we
estimate that of the 129,000 individuals impacted by the proposals in
this rule, 13,000 would enroll in Medicaid or CHIP (10 percent),
112,000 in the Exchanges (87 percent), and 4,000 (3 percent) in the
BHPs on average each year, including redeterminations and re-
enrollments. Using these same proportions, out of the 200,000
applications anticipated to
[[Page 25325]]
result from the proposals in this rule, if finalized, we estimate
20,000 applications would be processed for Medicaid and CHIP, 174,000
would be processed for the Exchanges, and 6,000 would be processed for
the BHPs on average each year.
Next, we calculate the proportion of each program's application
processing costs that are borne by States compared to the Federal
Government. As discussed in section IV.B. of this proposed rule, the
Federal Government contributes 50 percent of Medicaid and CHIP program
administration costs. As such, we assume 50 percent of the Medicaid and
CHIP application processing costs would fall on the 39 States
referenced in section IV.C.1. of this proposed rule, and the remaining
50 percent would be borne by the Federal Government. As discussed in
section IV.C.2. of this proposed rule, the entire information
collection burden associated with changes to BHPs falls on the two
States with BHPs--Minnesota and New York. As such, we assume 100
percent of the BHP application processing costs would fall on these two
States. For the Exchanges, we used data from the 2022 Open Enrollment
Period to estimate the proportion of applications that are processed by
States compared to the Federal Government, and we determined that 47
percent of Exchange applications were submitted to FFEs/SBE-FPs, and
are therefore processed by the Federal Government, while 53 percent
were submitted to and processed by the 18 State Exchanges using their
own eligibility and enrollment platforms.\60\ As such, we anticipate
that 47 percent of Exchange application processing costs would fall on
the Federal Government and 53 percent of Exchange application
processing costs would fall on States.
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\60\ Centers for Medicare & Medicaid Services. (2022). 2022 Open
Enrollment Report. <a href="https://www.cms.gov/files/document/health-insurance-exchanges-2022-open-enrollment-report-final.pdf">https://www.cms.gov/files/document/health-insurance-exchanges-2022-open-enrollment-report-final.pdf</a>.
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Finally, we apply the proportion of applications we estimated for
each program we discussed earlier to the State and Federal burden
proportions. For Medicaid and CHIP, we estimate there would be 20,000
applications processed. Using the per-application processing burden
discussed earlier in this ICR (10 minutes, or 0.17 hours, per
application at a rate of $46.70 per hour), and applying the 50 percent
Federal contribution to Medicaid and CHIP program administration costs,
this results in a burden of 1,700 hours, or $79,390, each for States
and the Federal Government to process Medicaid and CHIP applications.
For the BHPs, if we estimate 6,000 applications would be processed, the
burden for all of those would be borne by the States. Using the per-
application processing burden of 10 minutes (0.17 hours) per
application at a rate of $46.70 per hour, this results in a burden of
1,020 hours, or $47,634, for States to process BHP applications. For
the Exchanges, if we estimate 174,000 applications would be processed,
53 percent of those (92,220) would be processed by State Exchanges and
47 percent (81,780) would be processed by the Federal Government. Using
the per-application processing burden of 10 minutes (0.17 hours) per
application at a rate of $46.70 per hour, this results in a burden of
15,677 hours, or $732,135, for State Exchanges and 13,903 hours, or
$649,251, for the Federal Government.
Therefore, the total burden on States to assist eligible
beneficiaries and process their applications would be 18,397 hours
annually (1,700 hours for Medicaid and CHIP + 1,020 hours for BHP +
15,677 hours for Exchanges) at a cost of $859,140, and the total burden
on the Federal Government would be 15,603 hours annually (1,700 hours
for Medicaid and CHIP + 13,903 hours for Exchanges) at a cost of
$728,660. We seek comment on these estimates and the methodology and
assumptions used to calculate them.
4. ICRs Regarding the Application Process for Applicants
The following proposed changes will be submitted to OMB for review
under control number 0938-1191 (CMS-10440).
As required by the ACA, there is one application through which
individuals may apply for health coverage in a QHP through an Exchange
and for other insurance affordability programs like Medicaid, CHIP, and
a BHP.\61\ Some individuals may apply directly with their State
Medicaid or CHIP agency; however, we assume the burden of completing an
Exchange application is essentially the same as applying with a State
Medicaid or CHIP agency, and therefore are not distinguishing these
populations. We seek comment on this assumption.
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\61\ 42 U.S.C. 18083.
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Based on the enrollment projections discussed in the Regulatory
Impact Analysis section later in this rule, we anticipate that DACA
recipients would represent the majority of individuals impacted by the
proposals in this rule, and we are unable to quantify the number of
non-DACA recipients impacted by the other changes in this rule, but we
expect the number to be small. We estimate that there are 200,000
uninsured DACA recipients based on USCIS data on active DACA recipients
(589,000 in 2022) \62\ and a 2021 survey by the National Immigration
Law Center stating that 34 percent of DACA recipients are
uninsured,\63\ and as such, we anticipate that approximately 200,000
individuals impacted by the proposals in this rule would complete the
application annually.
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\62\ Count of Active DACA Recipients by Month of Current DACA
Expiration as of September 30, 2022. U.S. Citizenship and
Immigration Services. <a href="https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients_Sept_FY22_qtr4.pdf">https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients_Sept_FY22_qtr4.pdf</a>.
\63\ Tracking DACA Recipients' Access to Health Care, National
Immigration Law Center, 2022. <a href="https://www.nilc.org/wp-content/uploads/2022/06/NILC_DACA-Report_060122.pdf">https://www.nilc.org/wp-content/uploads/2022/06/NILC_DACA-Report_060122.pdf</a>.
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In the existing information collection request for this application
(OMB control number 0938-1191), we estimate that the application
process would take an average of 30 minutes (0.5 hours) to complete for
those applying for insurance affordability programs and 15 minutes
(0.25 hours) for those applying without consideration for insurance
affordability programs.\64\ We estimate that of the 200,000 individuals
impacted by the proposed changes, 98 percent would be applying for
insurance affordability programs and 2 percent would be applying
without consideration for insurance affordability programs. Using the
hourly value of time for changes in time use for unpaid activities
discussed in section IV.A. of this proposed rule (at an hourly rate of
$20.71), the average opportunity cost to an individual for completing
this task is estimated to be approximately 0.495 hours ((0.5 hours x 98
percent) + (0.25 hours x 2 percent)) at a cost of $10.25. The total
annual additional burden on the 200,000 individuals impacted by the
proposed changes would be approximately 99,000 hours with an equivalent
cost of approximately $2,050,290.
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\64\ It is possible that some individuals impacted by the
proposed changes to the definition of lawful presence in this rule
would apply using the paper application, but internal CMS data show
that this would be less than 1 percent of applications. Therefore,
we are using estimates in this RIA to reflect that nearly all
applicants would apply using the electronic application.
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As stated earlier in this proposed rule, CMS, State Exchanges, and
States would require individuals completing the application to submit
supporting documentation to confirm their lawful presence if it is
unable to be verified electronically. An applicant's lawful presence
may not be able to be verified if, for example, the applicant opts to
not include information about their immigration documentation such as
their alien number or employment
[[Page 25326]]
authorization document (EAD) number when they fill out the application.
We estimate that of the 200,000 individuals impacted by the changes
proposed in this rule, approximately 68 percent (or 136,000) of
applicants would be able to have their lawful presence electronically
verified, and the remaining 32 percent (or 64,000) of applicants would
be unable to have their lawful presence electronically verified and
would therefore have to submit supporting documentation to confirm
their lawful presence.\65\ We estimate that a consumer would, on
average, spend approximately 1 hour gathering and submitting required
documentation. Using the hourly value of time for changes in time use
for unpaid activities discussed in section IV.A. of this proposed rule
(at an hourly rate of $20.71), the opportunity cost for an individual
to complete this task is estimated to be approximately $20.71. The
total annual additional burden on the 64,000 individuals impacted by
the changes proposed in this rule that are unable to electronically
verify their lawful presence and therefore need to submit supporting
documentation would be approximately 64,000 hours with an equivalent
cost of approximately $1,325,440. We seek comment on these estimates.
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\65\ This estimate is informed by recent data from the FFEs and
SBE-FPs. While certain changes proposed in this rule may result in
an increase in the proportion of applicants who are able to have
their lawful presence electronically verified, we do not have a
reliable way to quantify any potential increase.
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As previously stated, for the 200,000 individuals impacted by this
rule, the annual additional burden of completing the application would
be 0.495 hours per individual on average, which totals to 99,000 hours
at a cost of $2,050,290. For the 64,000 individuals who are unable to
have their lawful presence electronically verified, the total annual
burden of submitting documentation to verify their lawful presence
would be 64,000 hours at a cost of $1,325,440. Therefore, the average
annual burden per respondent would be 0.815 hours ((0.495 hours x 68
percent of individuals) + (1.495 hours x 32 percent of individuals)),
and the total annual burden on all of these individuals impacted by the
proposed changes in this rule would be 163,000 hours at a cost of
$3,375,730. We seek comment on these burden estimates.
D. Burden Estimate Summary
Table 2--Summary of Proposed Burden Estimates
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Time per Hourly Total Total
Regulation section(s)/ICR provision OMB control No./CMS-ID Year Number of Number of response Total time labor rate labor cost State beneficiary
respondents responses (hrs) (hr) ($/hr) ($) share ($) cost ($)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
42 CFR 435.4 and 457.320(c) Medicaid and CHIP 0938-1147 (CMS-10410)........... 2023 39 39 100 3,900 Varies $367,828 $183,914 N/A
System Changes.
42 CFR 600.5 BHP System Changes............... 0938-1218 (CMS-10510)........... 2023 2 2 100 200 Varies 18,863 18,863 N/A
45 CFR 152.2 and 155.20 Exchange System 0938-1191 (CMS-10440)........... 2023 19 19 100 1,900 Varies 179,199 169,776 N/A
Changes.
42 CFR 435.4 and 457.320(c), 42 CFR 600.5, 45 0938-1191 (CMS-10440)........... 2024-2027 200,000 200,000 0.17 34,000 46.70 1,587,800 859,140 N/A
CFR 152.2 and 155.20 Streamlined Application
Processing.
42 CFR 435.4 and 457.320(c), 42 CFR 600.5, 45 0938-1191 (CMS-10440)........... 2024-2027 200,000 200,000 0.82 163,000 20.71 3,375,730 N/A 3,375,730
CFR 152.2 and 155.20 Application Process for
Applicants.
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E. Submission of PRA-Related Comments
We have submitted a copy of this proposed rule to OMB for its
review of the rule's information collection requirements. The
requirements are not effective until they have been approved by OMB.
To obtain copies of the supporting statement and any related forms
for the proposed collections discussed in this section, please visit
the CMS website at <a href="http://www.cms.hhs.gov/PaperworkReductionActof1995">www.cms.hhs.gov/PaperworkReductionActof1995</a>, or call
the Reports Clearance Office at 410-786-1326.
We invite public comments on these potential information collection
requirements. If you wish to comment, please submit your comments
electronically as specified in the DATES and ADDRESSES section of this
proposed rule and identify the rule (CMS-9894-P), the ICR's CFR
citation, and OMB control number.
V. Response to Comments
Because of the large number of public comments we normally receive
on Federal Register documents, we are not able to acknowledge or
respond to them individually. We will consider all comments we receive
by the date and time specified in the DATES section of this preamble,
and, when we proceed with a subsequent document, we will respond to the
comments in the preamble to that document.
VI. Regulatory Impact Analysis
A. Statement of Need
This proposed rule would update the definition of ``lawfully
present'' in our regulations. This definition is currently used to
determine whether a consumer is eligible to enroll in a QHP through an
Exchange and for APTC and CSRs, and whether a consumer is eligible to
enroll in a BHP in States that elect to operate a BHP. We are also
proposing a similar definition of ``lawfully present'' that would be
applicable to eligibility for Medicaid and CHIP in States that have
elected to cover ``lawfully residing'' pregnant individuals and
children under the CHIPRA 214 option. In addition, we propose to remove
the
[[Page 25327]]
exception for DACA recipients from the definitions of ``lawfully
present'' used to determine eligibility to enroll in a QHP through an
Exchange, a BHP, or in Medicaid and CHIP under the CHIPRA 214 option,
and instead treat DACA recipients the same as other deferred action
recipients. We also propose some modifications to the ``lawfully
present'' definition currently at 45 CFR 152.2, and the definition in
the SHO letters that incorporate additional detail, clarifications, and
some technical modifications for the Exchanges, BHPs, and Medicaid and
CHIP under the CHIPRA 214 option.
B. Overall Impact
We have examined the impacts of this rule as required by Executive
Order 12866 on Regulatory Planning and Review (September 30, 1993),
Executive Order 13563 on Improving Regulation and Regulatory Review
(January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19,
1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the
Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4),
and Executive Order 13132 on Federalism (August 4, 1999).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Section
3(f) of Executive Order 12866 defines a ``significant regulatory
action'' as an action that is likely to result in a rule that may: (1)
have an annual effect on the economy of $200 million or more (adjusted
every 3 years by the Administrator of OMB's Office of Information and
Regulatory Affairs (OIRA) for changes in gross domestic product), or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, territorial or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impacts of entitlement, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise legal or policy issues for which centralized review would
meaningfully further the President's priorities or the principles set
forth in the Executive order, as specifically authorized in a timely
manner by the Administrator of OIRA.
Based on our estimates, OIRA has determined that this rulemaking is
a significant regulatory action under section 3(f)(1) Executive Order
12866. Accordingly, we have prepared regulatory impact analysis (RIA)
that to the best of our ability presents the costs and benefits of the
rulemaking. Therefore, OMB has reviewed these proposed regulations, and
we have provided the following assessment of their impact.
C. Detailed Economic Analysis
We prepared the economic impact estimates utilizing a baseline of
``no action,'' comparing the effect of the proposals against not
proposing the rule at all.
This analysis reviews the amendments proposed under 42 CFR 435.4,
457.320(c), and 600.5, and 45 CFR 152.2 and 155.20, which would add the
following changes to the definition of lawfully present by adding the
following new categories of noncitizens to this definition via this
regulation:
<bullet> Those granted an EAD under 8 CFR 274a.12(c)(35) and (36);
<bullet> Those granted deferred action under DACA;
<bullet> Additional Family Unity beneficiaries;
<bullet> Individuals with a pending application for adjustment of
status, without regard to whether they have an approved visa petition;
<bullet> Children under 14 with a pending application for asylum,
withholding of removal, or relief under the Convention Against Torture
or children under 14 who are listed as a dependent on a parent's
pending application, without regard to the length of time that the
application has been pending; and
<bullet> Children with an approved petition for SIJ classification.
The amendments proposed under 42 CFR 435.4, 457.320(c), and 600.5
and 45 CFR 152.2 and 155.20 would also:
<bullet> Revise the description of noncitizens who are
nonimmigrants to include all nonimmigrants who have a valid and
unexpired status;
<bullet> Remove individuals with a pending application for asylum,
withholding of removal, or the Convention Against Torture who are over
age 14 from the definition, as these individuals are covered elsewhere;
and
<bullet> Simplify the definition of noncitizens with an EAD to
include all individuals granted an EAD under 8 CFR 274a.12(c), as these
individuals are already covered elsewhere, with the exception of a
modest expansion to those granted an EAD under 8 CFR 274a.12(c)(35) and
(36), discussed earlier in this proposed rule.
In these respects, these proposals are technical changes or
revisions to simplify verification processes, and therefore, we do not
anticipate a material impact on individuals' eligibility as a result of
these changes. We seek comment on estimates or data sources we could
use to provide quantitative estimates for the benefit to these
individuals.
The amendments proposed under 42 CFR 435.4 and 457.320(c) would
also revise the description of lawfully present individuals in the CNMI
in this definition. This proposed amendment is also a technical change,
and although we anticipate the number of individuals who would be
substantively impacted by this proposal would be small, we do not have
a reliable way to quantify these impacts. We seek comment on estimates
or data sources we could use to provide quantitative estimates for the
benefit to these individuals.
As explained further in this section, we estimate 129,000 DACA
recipients could enroll in health coverage and benefit from the
proposals in this rule.\66\ We are presently unable to quantify the
number of additional Family Unity beneficiaries, individuals with a
pending application for adjustment of status, children under age 14
with a pending application for asylum or related protection or children
listed as dependents on a parent's application for asylum or related
protection, and individuals with approved petition for SIJ
classification that could enroll in health coverage and benefit from
the proposals in this rule, but we expect this number to be small. We
seek comment on estimates or data sources we could use to provide
quantitative estimates for the benefit to these individuals.
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\66\ The estimates in this RIA are based on DHS's current policy
in alignment with the ruling in Texas v. United States, 50 F.4th 498
(5th Cir. 2022), whereby DHS continues to accept the filing of both
initial and renewal DACA applications, but is only processing
renewal requests.
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The proposed changes to 42 CFR 435.4 and 457.320(c) would no longer
exclude DACA recipients from the definition of ``lawfully present''
used to determine eligibility for Medicaid and CHIP under section 214
of CHIPRA and treat DACA recipients the same as other recipients of
deferred action. Thus, under the proposed rule, DACA recipients who are
children under 21 years of age (under age 19 for CHIP) or pregnant,
including during the
[[Page 25328]]
postpartum period,\67\ would be eligible for Medicaid and CHIP benefits
in States that have elected the option in their State plan to cover all
lawfully residing children or pregnant individuals under the CHIPRA 214
option. The proposed changes to 42 CFR 600.5 would no longer exclude
DACA recipients from the definition of ``lawfully present'' used to
determine eligibility for a BHP in those States that elect to operate
the program, if otherwise eligible. The proposed changes to 45 CFR
152.2 and 155.20 would make DACA recipients eligible to enroll in a QHP
through an Exchange, and for APTC and CSRs, if otherwise eligible. We
present enrollment estimates for these populations in Table 3.
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\67\ The postpartum period for pregnant individuals includes the
60-day period described in sections 1903(v)(4)(A)(i) and
2107(e)(1)(O) of the Act or the extended 12-month period described
in sections 1902(e)(16) and 2107(e)(1)(J) of the Act in States that
have elected that option.
Table 3--Enrollment Estimates by Program, Coverage Years 2024-2028
----------------------------------------------------------------------------------------------------------------
2024 2025 2026 2027 2028
----------------------------------------------------------------------------------------------------------------
Medicaid and CHIP Enrollment.... 13,000 11,000 9,000 8,000 6,000
BHP Enrollment.................. 4,000 4,000 4,000 5,000 5,000
Exchange Enrollment............. 112,000 114,000 116,000 117,000 119,000
-------------------------------------------------------------------------------
Total Enrollment............ 129,000 129,000 129,000 130,000 130,000
----------------------------------------------------------------------------------------------------------------
To estimate the enrollment impact on Medicaid, we developed
estimates for the number of pregnant individuals and children who would
be eligible in this group. For pregnant individuals, we estimated the
number of pregnancies using the DACA population by age and gender and
combined this with the fertility rates by age in the United States.\68\
For the DACA population, we estimated 43 pregnant individuals per 1,000
persons in 2022, declining to 34 pregnant individuals per 1,000 persons
in 2028 as the DACA population ages. We then calculated how many
persons would be eligible in States that have elected the CHIPRA 214
option to cover pregnant individuals (28 States and territories,
including the District of Columbia).\69\ Finally, we assumed that 50
percent of all such persons would be eligible on the basis of income.
We estimated about 7,000 pregnant individuals would enroll in 2024,
declining to about 6,000 by 2028. For children, we estimated the number
of individuals who would be eligible in States that elect the CHIPRA
214 option for children (34 States plus the District of Columbia) and
by age, as States may allow for eligibility up to age 19 or up to age
21. We assumed 40 percent of these children would be eligible on the
basis of income. We estimated about 6,000 children would enroll in
2024, declining to 0 by 2028 as all DACA individuals age out of
eligibility.\70\
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\68\ National Vital Statistics Report, CDC, January 31, 2023.
<a href="https://www.cdc.gov/nchs/products/nvsr.htm">https://www.cdc.gov/nchs/products/nvsr.htm</a>.
\69\ The States and territories that have elected the CHIPRA 214
option to cover pregnant women are: American Samoa, Arkansas,
California, the CNMI, Colorado, Connecticut, Delaware, the District
of Columbia, Hawaii, Maine, Maryland, Massachusetts, Minnesota,
Nebraska, New Jersey, New Mexico, New York, North Carolina, Ohio,
Pennsylvania, South Carolina, U.S. Virgin Islands, Vermont,
Virginia, Washington, West Virginia, Wisconsin, and Wyoming. See
<a href="https://www.medicaid.gov/medicaid/enrollment-strategies/medicaid-and-chip-coverage-lawfully-residing-children-pregnant-women">https://www.medicaid.gov/medicaid/enrollment-strategies/medicaid-and-chip-coverage-lawfully-residing-children-pregnant-women</a>.
\70\ These estimates are based on DHS's current policy in
alignment with the ruling in Texas v. United States, 50 F.4th 498
(5th Cir. 2022), whereby DHS continues to accept the filing of both
initial and renewal DACA applications, but is only processing
renewal requests.
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To estimate the enrollment impact on the Exchanges and BHPs, we
started with an estimate of the DACA population. USCIS has estimated
this count to be 589,000 persons as of September 30, 2022, the most
recent available data.\71\ Based on a 2021 survey from the National
Immigration Law Center,\72\ roughly 34 percent of DACA recipients were
uninsured. Of the roughly 200,000 uninsured DACA recipients, we removed
the pregnant women and children estimated to enroll in Medicaid, as
discussed in the preceding paragraph. In addition, we assumed that
approximately 10 percent of these individuals would be ineligible for
APTC and CSRs and that approximately 70 percent of the remaining group
would opt to enroll in the Exchanges and BHP. This results in an
enrollment impact of about 116,000 persons for both the Exchanges and
BHP. Based on data regarding the number of DACA recipients by State, we
estimated that 4,000 people would enroll in the BHPs in Minnesota and
New York, and the remaining 112,000 would enroll in the Exchanges. We
also estimated that the 6,000 children who would age out of Medicaid or
CHIP eligibility by 2028 would subsequently enroll in the Exchanges and
the BHPs in Minnesota and New York. We seek comment on these estimates
and the assumptions and methodology used to calculate them.
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\71\ Count of Active DACA Recipients by Month of Current DACA
Expiration as of September 30, 2022. U.S. Citizenship and
Immigration Services. <a href="https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients_Sept_FY22_qtr4.pdf">https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients_Sept_FY22_qtr4.pdf</a>.
\72\ Tracking DACA Recipients' Access to Health Care, National
Immigration Law Center, 2022. <a href="https://www.nilc.org/wp-content/uploads/2022/06/NILC_DACA-Report_060122.pdf">https://www.nilc.org/wp-content/uploads/2022/06/NILC_DACA-Report_060122.pdf</a>.
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The proposed changes to 42 CFR 600.5 would no longer exclude DACA
recipients from the definition of lawfully present used to determine
eligibility for a BHP in those States that elect to operate the
program, if otherwise eligible. There may be an effect on the BHP risk
pool as a result of this change, as DACA recipients are relatively
younger and healthier than the general population, based on USCIS data
showing an average age of 29 years.\73\ We seek comment on any
estimates or data sources we could use to provide quantitative
estimates for the associated effects, including benefit to these
individuals.
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\73\ USCIS. Count of Active DACA Recipients by Month of Current
DACA Expiration as of September 30, 2022. <a href="https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients_Sept_FY22_qtr4.pdf">https://www.uscis.gov/sites/default/files/document/data/Active_DACA_Recipients_Sept_FY22_qtr4.pdf</a>.
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The proposed changes to 45 CFR 152.2 and 155.20 would make DACA
recipients eligible to enroll in a QHP through an Exchange, and for
APTC and CSRs, if otherwise eligible. Similar to BHP eligibility, there
may be a slight effect on the States' individual market risk pool. In
addition, the proposals to modify the definition of ``lawfully
present'' discussed in section II.C.2. of this proposed rule would
reduce burden on Exchanges, BHPs, and State Medicaid and CHIP agencies
by allowing the agencies to more frequently verify an individual's
status with a trusted data source and to not have to request additional
information from consumers. This change would promote simplicity and
consistency in program administration, and further program
[[Page 25329]]
integrity resulting from the increased reliance on a trusted Federal
data source. We seek comment on estimates or data sources we could use
to provide quantitative estimates for this benefit.
In addition, increased access to health coverage for DACA
recipients and other noncitizens impacted by the proposals in this rule
would advance racial justice and health equity, which in turn may
decrease costs for emergency medical expenditures. Further, the
proposals in this rule would improve the health and well-being of many
individuals that are currently without coverage, as having health
insurance makes individuals healthier. Individuals without insurance
are less likely to receive preventative or routine health screenings
and may delay necessary medical care, incurring high costs and debts.
In addition to the improvement of health outcomes, these individuals
would be more productive and better able to contribute economically, as
studies have found that workers with health insurance are estimated to
miss 77 percent fewer workdays than uninsured workers.\74\
---------------------------------------------------------------------------
\74\ Dizioli, Allan and Pinheiro, Roberto. (2016). Health
Insurance as a Productive Factor. Labour Economics. <a href="https://doi.org/10.1016/j.labeco.2016.03.002">https://doi.org/10.1016/j.labeco.2016.03.002</a>.
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We seek comment on these effects and any other potential benefits
that may result from the proposals in this rule.
1. Costs
The proposed changes to 42 CFR 435.4 and 457.320(c) would treat
DACA recipients the same as other recipients of deferred action, who
are included in the definition of ``lawfully present'' used to
determine eligibility for Medicaid and CHIP under section 214 of
CHIPRA. We note that generally, CMS has received feedback from some
States that cover lawfully present individuals under age 21 and
pregnant individuals that such States are supportive of a change to
include DACA recipients in the definition of lawfully present. The
costs to States and the Federal Government as a result of information
collection changes associated with this proposal, which include initial
system changes costs to develop and update each State's eligibility
systems and verification processes and application processing costs to
assist individuals with processing their applications, are discussed in
sections IV.C.1. and IV.C.3. of this proposed rule, and the costs to
consumers as a result of increased information collections associated
with this proposal, which include applying for Medicaid or CHIP and
submitting additional information to verify their lawful presence, if
necessary, are discussed in section IV.C.4. of this proposed rule.
These proposals would also increase Federal and State expenditures for
States that elect the CHIPRA 214 option due to costs associated with
Medicaid and CHIP coverage for newly eligible beneficiaries.
We discuss how we calculated our Medicaid and CHIP enrollment
estimates earlier in this RIA. To calculate costs, we estimated the per
enrollee costs in Medicaid for pregnant individuals and children based
on the projections in the President's Fiscal Year (FY) 2024 Budget. For
2024, we projected annual costs per enrollee would be about $15,700 for
pregnant individuals and about $4,900 for children. These costs are
projected to increase annually as the price and use of services
increase. To calculate Federal versus State costs, we multiplied the
total costs for each group by the FMAP for each State, with some minor
adjustments to account for differences in FMAP for certain services.
Our estimates for Medicaid and CHIP expenditures as a result of the
proposals in this rule, if finalized, are shown in Table 4. We seek
comment on these estimates and the assumptions and methodology used to
calculate them.
Table 4--Medicaid/CHIP Projected Expenditures, FY 2024-2028
----------------------------------------------------------------------------------------------------------------
2024 2025 2026 2027 2028
----------------------------------------------------------------------------------------------------------------
State Expenditures.............. $40,000,000 $45,000,000 $50,000,000 $45,000,000 $40,000,000
Federal Expenditures............ 60,000,000 85,000,000 80,000,000 80,000,000 75,000,000
-------------------------------------------------------------------------------
Total Expenditures.......... 100,000,000 130,000,000 130,000,000 125,000,000 115,000,000
----------------------------------------------------------------------------------------------------------------
States that are currently using only State funds to provide health
benefits to DACA recipients are likely to see decreases in State
expenditures due to this change, as Federal dollars would be available
to help cover this population for the first time.\75\
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\75\ As of December 2022, those States are California, the
District of Columbia, Illinois, Maine, Massachusetts, New York,
Oregon, Rhode Island, Vermont, and Washington. ``Health Coverage and
Care of Immigrants,'' Kaiser Family Foundation, <a href="https://www.kff.org/racial-equity-and-health-policy/fact-sheet/health-coverage-and-care-of-immigrants/">https://www.kff.org/racial-equity-and-health-policy/fact-sheet/health-coverage-and-care-of-immigrants/</a>. Accessed March 2, 2023.
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The proposed changes to 42 CFR 600.5 would treat DACA recipients
the same as other recipients of deferred action, who are lawfully
present under the definition used to determine eligibility for BHP, if
otherwise eligible. The costs to States as a result of information
collection changes associated with this proposal, which include initial
system changes costs to develop and update each State's eligibility
systems and verification processes and application processing costs to
assist individuals with processing their applications, are discussed in
sections IV.C.2. and IV.C.3. of this proposed rule, and the costs to
consumers as a result of increased information collections associated
with this proposal, which include applying for BHP and submitting
additional information to verify their lawful presence, if necessary,
are discussed in section IV.C.4. of this proposed rule. States
operating a BHP may choose to provide additional outreach to the newly
eligible. With a potential increase in number of enrollees, there may
be an increase in Federal payments to a State's BHP trust fund.
We discuss how we calculated our BHP enrollment estimates earlier
in this RIA. BHP funding from the Federal Government to State BHP trust
funds is based on the amount of PTC enrollees would receive had they
been enrolled in Exchange coverage. Therefore, to calculate costs, we
used data from USCIS to determine the average age of a DACA recipient,
which is 29, and we used PTC data to determine the average PTC for a
29-year-old, which is estimated to be $289 per month, and multiplied
this by 12 months per year and by the projected number of enrollees per
year to arrive at annual costs. Our estimates for BHP expenditures as a
result of the proposals in this rule, if finalized, are shown in Table
5. We seek comment on these estimates and the assumptions and
methodology used to calculate them.
[[Page 25330]]
Table 5--BHP Projected Expenditures, FY 2024-2028
--------------------------------------------------------------------------------------------------------------------------------------------------------
2024 2025 2026 2027 2028
--------------------------------------------------------------------------------------------------------------------------------------------------------
Expenditures....................................................... $15,000,000 $20,000,000 $15,000,000 $15,000,000 $15,000,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
The proposed changes to 45 CFR 152.2 and 155.20 would make DACA
recipients eligible to enroll in a QHP through an Exchange, and for PTC
and CSRs, if otherwise eligible. The costs to State Exchanges and the
Federal Government as a result of information collection changes, which
include initial system changes costs to develop and update each State's
eligibility systems and verification processes and application
processing costs to assist individuals with processing their
applications, are discussed in section IV.C.3. of this proposed rule
and the costs to consumers as a result of increased information
collections associated with this proposal, which include applying for
Exchange coverage and submitting additional information to verify their
lawful presence, if necessary, are discussed in section IV.C.4. of this
proposed rule. This proposed change may result in slightly increased
traffic during open enrollment for the 2024 coverage years and beyond.
Further, there may be a potential administrative burden on States and
regulated entities that choose to conduct outreach and education
efforts to ensure that consumers, agents, brokers, and assisters are
aware of the changes proposed in this rule associated with the updated
definitions of ``lawfully present'' for the purposes of the Exchanges
and BHP and ``lawfully residing'' for the purposes of Medicaid and CHIP
under the CHIPRA 214 option. We anticipate that the costs of this
additional outreach and education would be minimal and seek comment on
that assumption.
Whether the effects discussed above as ``costs'' are appropriately
categorized depends on societal resource use. To the extent that
resources (for example, labor and equipment associated with provision
of medical care) are used differently in the presence of the proposed
rule than in its absence, then the estimated effects are indeed costs.
If resource use remains the same but different entities in society pay
for them, then the estimated effects would instead be transfers. We
request comment that would facilitate refinement of the effect
categorization.
2. Transfers
Transfers are payments between persons or groups that do not affect
the total resources available to society. They are a benefit to
recipients and a cost to payers. The proposals at 45 CFR 152.2 and
155.20 would generate a transfer from the Federal Government to
consumers in the form of increased PTC payments due to individuals who
would be eligible for Exchange coverage and APTC, if the proposals in
this rule are finalized.
We discuss how we calculated our Exchange enrollment estimates
earlier in this RIA. To calculate costs, we used data from USCIS to
determine the average age of a DACA recipient, which is 29. For 2024,
the average PTC for a 29-year-old is estimated to be $289 per month. We
multiplied this by 12 months per FY and by the number of enrollees to
arrive at annual costs.\76\ These costs are projected to increase using
the trends assumed in the President's FY 2024 Budget.
---------------------------------------------------------------------------
\76\ The estimate for FY 2024 only includes 9 months, assuming
these individuals will enroll in a QHP and receive APTC beginning
January 1, 2024. It is possible that individuals impacted by this
rule could enroll in coverage effective December 1, 2023, and
receive APTC beginning on that date, but we do not have a reliable
way to estimate how many individuals would enroll with that coverage
effective date.
---------------------------------------------------------------------------
We present these estimates in Table 6 and seek comment on the
estimates and the assumptions and methodology used to calculate them.
Table 6--Exchange Projected Expenditures, FY 2024-2028
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2024 FY 2025 FY 2026 FY 2027 FY 2028
--------------------------------------------------------------------------------------------------------------------------------------------------------
PTC Expenditures................................................... $300,000,000 $390,000,000 $320,000,000 $310,000,000 $320,000,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Regulatory Review Cost Estimation
If regulations impose administrative costs on private entities,
such as the time needed to read and interpret this proposed rule, we
estimate the cost associated with regulatory review. There is
uncertainty involved with accurately quantifying the number of entities
that would review the rule. However, for the purposes of this proposed
rule, we assume that medical and health service managers would review
this rule. Therefore, at least one person from each of the three State
Exchanges on the Federal platform would review for applicability, and
at least three people from each of the 18 State Exchanges would review,
for a total of 57 individuals for the Exchanges. For Medicaid, CHIP,
and BHP, we assume at least one person from every State agency and
territory would review for applicability; at least two additional
people from the 35 States, the District of Columbia, and three
territories that have elected the CHIPRA 214 option would review; and
at least one person from the two States with BHPs would also review,
for a total of 134 individuals for Medicaid, CHIP, and BHP. Combined
with reviewers for the Exchanges, this results in an estimate of 191
reviewers. We acknowledge that this assumption may understate or
overstate the costs of reviewing this rule. We welcome any comments on
the approach in estimating the number of entities which would review
this proposed rule.
Using the wage information from the Bureau of Labor Statistics for
medical and health service managers (Code 11-9111), we estimate that
the cost of reviewing this rule is $115.22 per hour, including overhead
and fringe benefits (<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>).
Assuming an average reading speed of 250 words per minute, we estimate
that it would take approximately 1.4 hours for each individual to
review the entire proposed rule (approximately 21,000 words/250 words
per minute = 84 minutes). Therefore, we estimate that the total one-
time cost of reviewing this regulation is approximately $30,910
([$115.22 x 1.4 hours per individual review] x 191 reviewers).
[[Page 25331]]
D. Regulatory Alternatives Considered
With regard to the changes to CMS definitions of ``lawfully
present'' proposed in this rule, we considered proposing to update the
current regulatory definition at 45 CFR 152.2 that applies to Exchanges
and BHPs, and separately updating our SHO guidance that applies to
Medicaid and CHIP in States that elect the CHIPRA 214 option, instead
of proposing to define a definition of lawfully present at 42 CFR
435.4. While this approach would have had a similar impact to the
changes proposed in this rule, we are of the view that the proposed
definition of lawfully present that applies to Medicaid and CHIP
eligibility in States that elect the CHIPRA 214 option promotes
transparency by giving the public an opportunity to review and comment
on these proposals. We are also of the view that this approach promotes
transparency and lessens administrative burden by making key
eligibility information more accessible to State Medicaid and CHIP
agencies that are tasked with applying these definitions when
determining consumers' eligibility for their programs. Finally, we
believe that proposing a definition of ``lawfully present'' in
regulation, rather than maintaining a definition in guidance, provides
a greater degree of stability for the individual beneficiaries and
State agencies that rely on this definition.
In developing this rule, we also considered not proposing the
technical and clarifying changes to CMS's definitions of ``lawfully
present,'' discussed in section II.C.2. of this proposed rule, as these
changes are expected to impact fewer individuals than the proposal to
treat DACA recipients the same as other recipients of deferred action.
However, in our comprehensive review of current CMS definitions of
``lawfully present,'' we determined that the proposed changes discussed
in section II.C.2. of this proposed rule would simplify our eligibility
verification processes and increase efficiencies for individuals
seeking health coverage and State and Federal entities administrating
insurance affordability programs. Additionally, the small number of
individuals included in the proposed eligibility categories would
benefit from increased access to health coverage and insurance
affordability programs.
E. Accounting Statement and Table
As required by OMB Circular A-4 (available at <a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf">https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf</a>), we have prepared an accounting statement in
Table 7 showing the classification of the impact associated with the
provisions of this proposed rule. We prepared these impact estimates
utilizing a baseline of ``no action,'' comparing the effect of the
proposals against not proposing the rule at all.
This proposed rule proposes standards for programs that would have
numerous effects, including allowing DACA recipients to be treated the
same as other deferred action recipients for specific health insurance
affordability programs, and increasing access to affordable health
insurance coverage. The effects in Table 7 reflect qualitative
assessment of impacts and estimated direct monetary costs and transfers
resulting from the provisions of this proposed rule for the Federal
Government, State Exchanges, BHPs, Medicaid and CHIP agencies, and
consumers.
Table 7--Accounting Table
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Benefits:
Qualitative:
<bullet> Additional enrollment in Medicaid and CHIP, anticipated to be 13,000 individuals in 2024, 11,000 in
2025, 9,000 in 2026, 8,000 in 2027, and 6,000 in 2028 due to the proposals in this rule..
<bullet> Additional enrollment in the BHP, anticipated to be 4,000 individuals in 2024-2026 and 5,000
individuals in 2027-2028..
<bullet> Additional enrollment in the Exchanges, which would be subsidized depending on individuals'
household incomes, anticipated to be 112,000 in 2024, 114,0000 in 2025, 116,000 in 2026, 117,000 in 2027,
and 119,000 in 2028..
<bullet> Increased access to health coverage for DACA recipients and certain other noncitizens, which would
advance racial justice and health equity, which in turn may also decrease costs for emergency medical
expenditures..
<bullet> Improved health and well-being of many DACA recipients and certain other noncitizens currently
without health care coverage..
<bullet> Greater economic contribution and productivity of DACA recipients and certain other noncitizens
from improving their health outcomes..
<bullet> Reduced burden on Exchanges, BHPs, and Medicaid and CHIP agencies to determine applicants'
immigration statuses..
----------------------------------------------------------------------------------------------------------------
Costs: Estimate............. Year dollar Discount rate........ Period
covered
----------------------------------------------------------------------------------------------------------------
Annualized Monetized ($/year)..... $109.68 Million...... 2023 7 percent............ 2023-2027
$112.21 Million...... 2023 3 percent............ 2023-2027
----------------------------------------------------------------------------------------------------------------
Quantitative:
<bullet> Increased State Medicaid and CHIP expenditures of $40 million in 2024, $45 million in 2025, $50
million in 2026, and $45 million in 2027 due to increased enrollment as a result of the proposed changes to
the definition of ``lawfully residing'' for purposes of Medicaid and CHIP under the CHIPRA 214 option..
<bullet> Increased Federal Medicaid and CHIP expenditures of $60 million in 2024, $85 million in 2025, $80
million in 2026, and $80 million in 2027 due to increased enrollment as a result of the proposed changes to
the definition of ``lawfully residing'' for purposes of Medicaid and CHIP under the CHIPRA 214 option..
<bullet> Increased Federal BHP expenditures of $15 million in 2024, $20 million in 2025, $15 million in 2026
and $15 million in 2027 due to increased enrollment as a result of proposed changes to the definition of
``lawfully present'' for purposes of a BHP..
<bullet> Initial system changes costs estimated at $183,914 for States and $183,915 for the Federal
Government in 2023 to develop and code changes to each State's eligibility systems and verification
processes to include the categories of noncitizens impacted by this proposed rule with respect to Medicaid
and CHIP eligibility..
<bullet> System changes costs estimated at $18,863 in 2023 for States to develop and code changes to their
eligibility systems and verification processes to include the categories of noncitizens impacted by this
proposed rule with respect to BHP eligibility..
<bullet> System changes costs estimated at $169,767 for State Exchanges and $9,432 for the Federal
Government in 2023 to develop and code changes to each Exchange's eligibility systems and verification
processes to include the categories of noncitizens impacted by this proposed rule with respect to Exchange
and Exchange-related subsidy eligibility..
<bullet> Application processing costs estimated at $859,140 for States and $728,660 for the Federal
Government per year starting in 2024 to assist individuals impacted by this proposed rule with processing
their applications..
----------------------------------------------------------------------------------------------------------------
[[Page 25332]]
Table 7--Accounting Table--Continued
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
<bullet> Costs to individuals impacted by the proposals in this rule of $3,375,730 per year starting in 2024
to apply for Medicaid, CHIP, BHP, or Exchange health coverage, including costs to submit additional
information to verify their lawful presence status if it is unable to be verified electronically through
the application..
----------------------------------------------------------------------------------------------------------------
Qualitative:
<bullet> Potential administrative burden on States and regulated entities that choose to conduct increased
education and outreach related to the updated definitions of ``lawfully present'' for the purposes of the
Exchanges and BHP and ``lawfully residing'' for the purposes of Medicaid and CHIP under the CHIPRA 214
option..
----------------------------------------------------------------------------------------------------------------
Transfers: Estimate............. Year dollar Discount rate........ Period
covered
----------------------------------------------------------------------------------------------------------------
Annualized Monetized ($/year)..... $255.00 Million...... 2023 7 percent............ 2023-2027
$260.15 Million...... 2023 3 percent............ 2023-2027
----------------------------------------------------------------------------------------------------------------
Quantitative:
<bullet> Increased PTC expenditures from the Federal Government to individuals of $300 million in 2024, $390
million in 2025, $320 million in 2026, and $310 million in 2027 due to increased enrollment and subsidy
eligibility as a result of the proposed changes to the definition of ``lawfully present'' for purposes of
the Exchanges..
----------------------------------------------------------------------------------------------------------------
F. Regulatory Flexibility Act (RFA)
The RFA requires agencies to analyze options for regulatory relief
of small entities, if a rule has a significant impact on a substantial
number of small entities. For purposes of the RFA, we estimate that
small businesses, nonprofit organizations, and small governmental
jurisdictions are small entities as that term is used in the RFA. The
great majority of hospitals and most other health care providers and
suppliers are small entities, either because they are nonprofit
organizations or they meet the Small Business Administration (SBA)
definition of a small business (having revenues of less than $8.0
million to $41.5 million in any 1 year). Individuals and States are not
included in the definition of a small entity.
For purposes of the RFA, we believe that health insurance issuers
and group health plans would be classified under the North American
Industry Classification System (NAICS) code 524114 (Direct Health and
Medical Insurance Carriers). According to SBA size standards, entities
with average annual receipts of $47 million or less would be considered
small entities for these NAICS codes. Issuers could possibly be
classified in 621491 (HMO Medical Centers) and, if this is the case,
the SBA size standard would be $44.5 million or less.\77\ We believe
that few, if any, insurance companies underwriting comprehensive health
insurance policies (in contrast, for example, to travel insurance
policies or dental discount policies) fall below these size thresholds.
Based on data from medical loss ratio (MLR) annual report submissions
for the 2021 MLR reporting year, approximately 78 out of 480 issuers of
health insurance coverage nationwide had total premium revenue of $44.5
million or less.\78\ This estimate may overstate the actual number of
small health insurance issuers that may be affected, since over 76
percent of these small issuers belong to larger holding groups, and
many, if not all, of these small companies are likely to have non-
health lines of business that will result in their revenues exceeding
$44.5 million.
---------------------------------------------------------------------------
\77\ <a href="https://www.sba.gov/document/support--table-size-standards">https://www.sba.gov/document/support--table-size-standards</a>.
\78\ Available at <a href="https://www.cms.gov/CCIIO/Resources/Data-Resources/mlr.html">https://www.cms.gov/CCIIO/Resources/Data-Resources/mlr.html</a>.
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In this proposed rule, we propose standards for eligibility for
Exchange enrollment and APTC and CSRs, BHP, and Medicaid and CHIP under
the CHIPRA 214 option. Because we believe that insurance firms offering
comprehensive health insurance policies generally exceed the size
thresholds for ``small entities'' established by the SBA, we do not
believe that an initial regulatory flexibility analysis is required for
such firms. Furthermore, the proposals related to Medicaid and CHIP
would impact State governments, but as States do not constitute small
entities under the statutory definition, an impact analysis for these
provisions is not required under the RFA.
As its measure of significant economic impact on a substantial
number of small entities, HHS uses a change in revenue of more than 3
to 5 percent. We do not believe that this threshold will be reached by
the requirements in this proposed rule. Therefore, the Secretary has
certified that this proposed rule will not have a significant economic
impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a
regulatory impact analysis if a rule may have a significant impact on
the operations of a substantial number of small rural hospitals. This
analysis must conform to the provisions of section 603 of the RFA. For
purposes of section 1102(b) of the Act, we define a small rural
hospital as a hospital that is located outside of a metropolitan
statistical area and has fewer than 100 beds. While this rule is not
subject to section 1102 of the Act, we have determined that this
proposed rule would not adversely affect small rural hospitals.
Therefore, the Secretary has certified that this proposed rule will not
have a significant impact on the operations of a substantial number of
small rural hospitals.
G. Unfunded Mandates Reform Act (UMRA)
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. In 2023, that
threshold is approximately $177 million. Based on information currently
available, we expect the combined impact on State, local, or tribal
governments and the private sector does not meet the UMRA definition of
unfunded mandate.
H. Federalism
Executive Order 13132 establishes certain requirements that an
agency
[[Page 25333]]
must meet when it promulgates a proposed rule (and subsequent final
rule) that imposes substantial direct requirement costs on State and
local governments, preempts State law, or otherwise has federalism
implications.
While developing this rule, we attempted to balance States'
interests in running their own Exchanges, BHPs, and Medicaid and CHIP
programs with CMS's interest in establishing a consistent definition of
``lawfully present'' for use in eligibility determinations across CMS
programs. We also attempted to balance States' interests with the
overall goals of the ACA, as well as the goals of DHS's DACA policy and
the provisions of the DHS DACA Final Rule. By doing so, we complied
with the requirements of E.O. 13132.
In our view, while the provisions of this proposed rule related to
the Exchanges (45 CFR 152.2 and 155.20) and the BHP (42 CFR 600.5)
would not impose substantial direct requirement costs on State and
local governments, this regulation has federalism implications due to
potential direct effects on the distribution of power and
responsibilities among the State and Federal governments relating to
determining standards related to eligibility for health insurance
through Exchanges and BHPs. For example, State Exchanges and BHPs would
be required to update their eligibility systems in order to accurately
evaluate applicants' lawful presence, and State Exchanges and BHPs may
wish to conduct outreach to groups such as DACA recipients who would
newly be considered lawfully present under the rule. By our estimate,
these requirements do not impose substantial direct costs on States. In
addition, we anticipate that these federalism implications are
mitigated because States have the option to operate their own Exchanges
and the optional BHP. After establishment, Exchanges must be
financially self-sustaining, with revenue sources at the discretion of
the State. Current State Exchanges charge user fees to issuers. As
indicated earlier, a BHP is optional for States. Therefore, if
implemented in a State, it provides access to a pool of Federal funding
that would not otherwise be available to the State. Accordingly,
federalism implications are mitigated if not entirely eliminated as it
pertains to a BHP.
Additionally, the proposals in this rule related to Medicaid and
CHIP may impose substantial direct costs on State governments. The
Medicaid and CHIP policies also have federalism implications by
creating a change in eligibility that may not align with a State's
position. However, we believe this effect is mitigated because the
eligibility change is under an option that States have the discretion
to adopt and maintain. In addition, Medicaid and CHIP costs are shared
between the Federal Government and States, further mitigating the
impacts of compliance with these new requirements. As such, the costs
to States by our estimate do not rise to the level of specified
thresholds for significant burden to States.
Chiquita Brooks-LaSure, Administrator of the Centers for Medicare &
Medicaid Services, approved this document on April 6, 2023.
List of Subjects
42 CFR Part 435
Aid to Families with Dependent Children, Grant programs--health,
Medicaid, Reporting and recordkeeping requirements, Supplemental
Security Income (SSI), Wages.
42 CFR Part 457
Administrative practice and procedure, Grant programs--health,
Health insurance, Reporting and recordkeeping requirements.
42 CFR Part 600
Administrative practice and procedure, Health care, health
insurance, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements.
45 CFR Part 152
Administrative practice and procedure, Health care, Health
insurance, Penalties, Reporting and recordkeeping requirements.
45 CFR Part 155
Administrative practice and procedure, Advertising, Aged, Brokers,
Citizenship and naturalization, Civil rights, Conflicts of interests,
Consumer protection, Grant programs--health, Grants administration,
Health care, Health insurance, Health maintenance organizations (HMO),
Health records, Hospitals, Indians, Individuals with disabilities,
Intergovernmental relations, Loan programs--health, Medicaid,
Organization and functions (Government agencies), Public assistance
programs, Reporting and recordkeeping requirements, Sex discrimination,
State and local governments, Taxes, Technical assistance, Women, Youth.
For the reasons set forth in the preamble, the Centers for Medicare
& Medicaid Services proposes to amend 42 CFR chapter IV as set forth
below.
Title 42--Public Health
PART 435--ELIGIBILITY IN THE STATES, DISTRICT OF COLUMBIA, THE
NORTHERN MARIANA ISLANDS, AND AMERICAN SAMOA
0
1. The authority citation for part 435 continues to read as follows:
Authority: 42 U.S.C. 1302.
0
2. Part 435 is amended by--
0
a. Removing all instances of the words ``non-citizen'' and ``non-
citizens'' and adding in their places the words ``noncitizen'' and
``noncitizens'', respectively; and
0
b. Removing all instances of the word ``Non-citizen'' and adding in its
place the word ``Noncitizen''; and
0
c. Removing all instances of the words ``Qualified Non-Citizen'' and
adding in its place the words ``qualified noncitizen''.
0
3. Section 435.4 is amended by adding the definitions of ``Lawfully
present'' and ``Lawfully residing'' in alphabetical order to read as
follows:
Sec. 435.4 Definitions and use of terms.
* * * * *
Lawfully present means a noncitizen who--
(1) Is a qualified noncitizen;
(2) Is in a valid nonimmigrant status, as defined in 8 U.S.C.
1101(a)(15) or otherwise under the immigration laws (as defined in 8
U.S.C. 1101(a)(17));
(3) Is paroled into the United States in accordance with 8 U.S.C.
1182(d)(5) for less than 1 year, except for a noncitizen paroled for
prosecution, for deferred inspection or pending removal proceedings;
(4) Is granted temporary resident status in accordance with 8
U.S.C. 1160 or 1255a;
(5) Is granted Temporary Protected Status (TPS) in accordance with
8 U.S.C. 1254a;
(6) Is granted employment authorization under 8 CFR 274a.12(c);
(7) Is a Family Unity beneficiary in accordance with section 301 of
Public Law 101-649 as amended; or section 1504 of the LIFE Act
Amendments of 2000, title XV of H.R. 5666, enacted by reference in
Public Law 106-554 (see section 1504 of App. D to Pub. L. 106-554);
(8) Is covered by Deferred Enforced Departure (DED) in accordance
with a decision made by the President;
(9) Is granted deferred action, including, but not limited to
individuals granted deferred action under 8 CFR 236.22;
(10) Has a pending application for adjustment of status;
(11)(i) Has a pending application for asylum under 8 U.S.C. 1158,
for
[[Page 25334]]
withholding of removal under 8 U.S.C. 1231, or for relief under the
Convention Against Torture; and
(ii) Is under the age of 14;
(12) Has been granted withholding of removal under the Convention
Against Torture;
(13) Has a pending or approved petition for Special Immigrant
Juvenile classification as described in 8 U.S.C. 1101(a)(27)(J);
(14) Is lawfully present in American Samoa under the immigration
laws of American Samoa; or
(15) Is a Commonwealth of the Northern Mariana Islands (CNMI)
resident as described in 48 U.S.C. 1806(e)(6).
Lawfully residing means an individual who is a noncitizen who is
considered lawfully present under this section and satisfies the State
residency requirements, consistent with Sec. 435.403.
* * * * *
0
4. Section 435.12 is added to read as follows:
Sec. 435.12 Severability.
(a) Any part of the definitions of ``lawfully present'' and
``lawfully residing'' in Sec. 435.4 held to be invalid or
unenforceable, including as applied to any person or circumstance,
shall be construed so as to continue to give the maximum effect to the
provision as permitted by law, along with other provisions not found
invalid or unenforceable, including as applied to persons not similarly
situated or to dissimilar circumstances, unless such holding is that
the provision of this subpart is invalid and unenforceable in all
circumstances, in which event the provision shall be severable from the
remainder of this subpart and shall not affect the remainder thereof.
(b) The provisions in Sec. 435.4 with respect to the definitions
of ``lawfully present'' and ``lawfully residing'' are intended to be
severable from one another and from the definitions of ``lawfully
present'' established at 42 CFR 600.5 and 45 CFR 155.20.
PART 457--ALLOTMENTS AND GRANTS TO STATES
0
5. The authority citation for part 457 continues to read as follows:
Authority: 42 U.S.C. 1302.
0
6. Section 457.320 is amended by adding paragraph (c) to read as
follows:
Sec. 457.320 Other eligibility standards.
* * * * *
(c) Definitions. (1) Lawfully present has the meaning assigned at
Sec. 435.4 of this chapter.
(2) Lawfully residing has the meaning assigned at Sec. 435.4 of
this chapter, except that State residency requirements must be
consistent with paragraph (e) of this section.
* * * * *
PART 600--ADMINISTRATION, ELIGIBILITY, ESSENTIAL HEALTH BENEFITS,
PERFORMANCE STANDARDS, SERVICE DELIVERY REQUIREMENTS, PREMIUM AND
COST SHARING, ALLOTMENTS, AND RECONCILIATION
0
7. The authority citation for part 600 continues to read as follows:
Authority: Section 1331 of the Patient Protection and
Affordable Care Act of 2010 (Pub. L. 111-148, 124 Stat. 119), as
amended by the Health Care and Education Reconciliation Act of 2010
(Pub. L. 111-152, 124 Stat 1029).
0
8. Section 600.5 is amended by revising the definition of ``Lawfully
present'' to read as follows:
Sec. 600.5 Definitions and use of terms.
* * * * *
Lawfully present has the meaning given in 45 CFR 155.20.
* * * * *
For the reasons set forth in the preamble, under the authority at 5
U.S.C. 301, the Department of Health and Human Services proposes to
amend 45 CFR subtitle A, subchapter B, as set forth below.
Title 45--Public Welfare
PART 152--PRE-EXISTING CONDITION INSURANCE PLAN PROGRAM
0
9. The authority citation for part 152 continues to read as follows:
Authority: Sec. 1101 of the Patient Protection and Affordable
Care Act (Pub. L. 111-148).
0
10. Section 152.2 is amended by revising the definition of ``Lawfully
present'' to read as follows:
Sec. 152.2 Definitions.
* * * * *
Lawfully present has the meaning given the term at 45 CFR 155.20.
* * * * *
PART 155--EXCHANGE ESTABLISHMENT STANDARDS AND OTHER RELATED
STANDARDS UNDER THE AFFORDABLE CARE ACT
0
11. The authority citation for part 155 continues to read as follows:
Authority: 42 U.S.C. 18021-18024, 18031-18033, 18041-18042,
18051, 18054, 18071, and 18081-18083.
0
12. Section 155.20 is amended by revising the definition of ``Lawfully
present'' to read as follows:
Sec. 155.20 Definitions.
* * * * *
Lawfully present means a noncitizen who--
(1) Is a qualified noncitizen as defined at 42 CFR 435.4;
(2) Is in a valid nonimmigrant status, as defined in 8 U.S.C.
1101(a)(15) or otherwise under the immigration laws (as defined in 8
U.S.C. 1101(a)(17));
(3) Is paroled into the United States in accordance with 8 U.S.C.
1182(d)(5) for less than 1 year, except for a noncitizen paroled for
prosecution, for deferred inspection or pending removal proceedings;
(4) Is granted temporary resident status in accordance with 8
U.S.C. 1160 or 1255a;
(5) Is granted Temporary Protected Status (TPS) in accordance with
8 U.S.C. 1254a;
(6) Is granted employment authorization under 8 CFR 274a.12(c);
(7) Is a Family Unity beneficiary in accordance with section 301 of
Public Law 101-649 as amended; or section 1504 of the LIFE Act
Amendments of 2000, title XV of H.R. 5666, enacted by reference in
Public Law 106-554 (see section 1504 of App. D to Pub. L. 106-554);
(8) Is covered by Deferred Enforced Departure (DED) in accordance
with a decision made by the President;
(9) Is granted deferred action, including but not limited to
individuals granted deferred action under 8 CFR 236.22;
(10) Has a pending application for adjustment of status;
(11)(i) Has a pending application for asylum under 8 U.S.C. 1158,
for withholding of removal under 8 U.S.C. 1231, or for relief under the
Convention Against Torture; and
(ii) Is under the age of 14;
(12) Has been granted withholding of removal under the Convention
Against Torture; or (13) Has a pending or approved petition for Special
Immigrant Juvenile classification as described in 8 U.S.C.
1101(a)(27)(J).
* * * * *
0
13. Section 155.30 is added to read as follows:
Sec. 155.30 Severability.
(a) Any part of the definition of ``lawfully present'' in Sec.
155.20 held to be invalid or unenforceable, including as applied to any
person or circumstance, shall be construed so as to continue to give
the maximum effect to the provision as permitted by law,
[[Page 25335]]
along with other provisions not found invalid or unenforceable,
including as applied to persons not similarly situated or to dissimilar
circumstances, unless such holding is that the provision of this
subpart is invalid and unenforceable in all circumstances, in which
event the provision shall be severable from the remainder of this
subpart and shall not affect the remainder thereof.
(b) The provisions in Sec. 155.20 with respect to the definition
of ``lawfully present'' are intended to be severable from one another
and from the definitions of ``lawfully present'' and ``lawfully
residing'' that are established or cross-referenced in 42 CFR 435.4 and
457.320.
Dated: April 19, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2023-08635 Filed 4-24-23; 4:15 pm]
BILLING CODE 4150-28-P
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</html>Indexed from Federal Register on April 26, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.