Rule2024-09661
Clarifying the Eligibility of Deferred Action for Childhood Arrivals (DACA) Recipients and Certain Other Noncitizens for a Qualified Health Plan through an Exchange, Advance Payments of the Premium Tax Credit, Cost-Sharing Reductions, and a Basic Health Program
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
May 8, 2024
Effective
November 1, 2024
Issuing agencies
Health and Human Services DepartmentCenters for Medicare & Medicaid Services
Abstract
This final rule makes several clarifications and updates 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 Medicaid and Children's Health Insurance Programs (CHIPs). Specifically, Deferred Action for Childhood Arrivals (DACA) recipients and certain other noncitizens will be included in the definitions of "lawfully present" that are used to determine eligibility to enroll in a QHP through an Exchange, for Advance Payments of the Premium Tax Credit (APTC) and Cost-Sharing Reductions (CSRs), or for a BHP.
Full Text
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<title>Federal Register, Volume 89 Issue 90 (Wednesday, May 8, 2024)</title>
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[Federal Register Volume 89, Number 90 (Wednesday, May 8, 2024)]
[Rules and Regulations]
[Pages 39392-39437]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-09661]
[[Page 39391]]
Vol. 89
Wednesday,
No. 90
May 8, 2024
Part VII
Department of Health and Human Services
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Centers for Medicare and Medicaid Services
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42 CFR Parts 435, et al.
45 CFR Parts 152 and 155
Clarifying the Eligibility of Deferred Action for Childhood Arrivals
(DACA) Recipients and Certain Other Noncitizens for a Qualified Health
Plan Through an Exchange, Advance Payments of the Premium Tax Credit,
Cost-Sharing Reductions, and a Basic Health Program; Final Rule
Federal Register / Vol. 89 , No. 90 / Wednesday, May 8, 2024 / Rules
and Regulations
[[Page 39392]]
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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-F]
RIN 0938-AV23
Clarifying the Eligibility of Deferred Action for Childhood
Arrivals (DACA) Recipients and Certain Other Noncitizens for a
Qualified Health Plan through an Exchange, Advance Payments of the
Premium Tax Credit, Cost-Sharing Reductions, and a Basic Health Program
AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of
Health and Human Services (HHS).
ACTION: Final rule.
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SUMMARY: This final rule makes several clarifications and updates 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
Medicaid and Children's Health Insurance Programs (CHIPs).
Specifically, Deferred Action for Childhood Arrivals (DACA) recipients
and certain other noncitizens will be included in the definitions of
``lawfully present'' that are used to determine eligibility to enroll
in a QHP through an Exchange, for Advance Payments of the Premium Tax
Credit (APTC) and Cost-Sharing Reductions (CSRs), or for a BHP.
DATES: These regulations are effective on November 1, 2024.
FOR FURTHER INFORMATION CONTACT: Morgan Gruenewald, (301) 492-5141,
Danielle Ojeda, (301) 492-4418, 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:
I. Background
The Patient Protection and Affordable Care Act (ACA) \1\ generally
\2\ requires that 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'' to
be eligible for insurance affordability programs for their Exchange
coverage 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'' 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
requires an Exchange 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 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 newly eligible for Exchange coverage under the
waiver remain ineligible for PTC for their Exchange coverage. While
neither Colorado nor New York requested a waiver of the ``lawfully
present'' framework, both States are permitted to use pass-through
funding based on Federal savings from their 1332 waivers to support
programs covering immigrants who are ineligible for PTC. Colorado
provides premium and cost-sharing subsidies to individuals earning
up to 300 percent of the Federal poverty level (FPL) who are
otherwise ineligible for Federal premium subsidies, including
undocumented individuals. Under New York's section 1332 waiver, some
immigrants with household incomes up to 200 percent of FPL,
including DACA recipients, will be eligible for coverage under the
State's Essential Plan (EP) Expansion plan. Beginning August 1, 2024
DACA recipients with incomes up to 250 percent of FPL will also be
eligible for coverage under the State's EP Expansion. For more
information on the Colorado, Washington, and New York section 1332
waivers, see <a href="https://www.cms.gov/marketplace/states/section-1332-state-innovation-waivers">https://www.cms.gov/marketplace/states/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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Consistent with our statutory authority under the ACA and 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 the proposed rule (88
FR 25313), we proposed to amend these three regulations to update the
definition of ``lawfully present'' currently 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.\11\ Exchange regulations apply this
definition to the eligibility standards for APTC and CSRs by requiring
an applicant to be eligible to enroll through an Exchange in a QHP to
be eligible for APTC and CSRs.\12\ Accordingly, in the proposed rule,
when we referred to the regulatory definition of ``lawfully present''
used to determine whether a consumer is eligible to enroll in a QHP
through an Exchange, we were also referring to the regulatory
definition used to determine whether a consumer is eligible for APTC
and CSRs.
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\11\ 42 CFR. Sec. 600.5.
\12\ 45 CFR 155.305(f)(1)(ii)(A) and (g)(1)(i)(A).
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In the proposed rule, we proposed a similar definition of
``lawfully present'' applicable to eligibility for Medicaid and the
Children's Health Insurance Program (CHIP) in States that elect to
cover ``lawfully residing'' pregnant women and children under section
214 of the Children's Health Insurance Program Reauthorization Act of
2009 (CHIPRA) (hereinafter ``CHIPRA 214 option''), codified at section
1903(v)(4) of the Social Security Act (the Act) for Medicaid (42 U.S.C.
1396b(v)(4)) and section 2107(e)(1)(O) of the Act (42 U.S.C.
1397gg(e)(1)(O)) 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
[[Page 39393]]
which they are applying under the State's Medicaid or CHIP residency
rules.\13\ The definitions of ``lawfully present'' and ``lawfully
residing'' used for Medicaid and CHIP are set forth in a 2010 State
Health Official (SHO) letter (SHO #10-006, hereinafter ``2010 SHO'')
and further clarified in a 2012 SHO letter (SHO #12-002, hereinafter
``2012 SHO'').\14\
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\13\ Centers for Medicare & Medicaid Services. (2010). SHO #10-
006: Medicaid and CHIP Coverage of ``Lawfully Residing'' Children
and Pregnant Women. Available at: <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>.
\14\ SHO #10-006, see footnote 13; Centers for Medicare &
Medicaid Services. State Health Official letters (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 proposed 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 proposed 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. We noted in the proposed
rule that if this proposal were finalized, DACA recipients would be
considered lawfully present for purposes of eligibility for these
insurance affordability programs \15\ based on a grant of deferred
action, just like other similarly situated noncitizens who are granted
deferred action. We also proposed 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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\15\ See the definition of ``insurance affordability program''
at 45 CFR 155.300(a) and 42 CFR 435.4.
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We received a large volume of comments, many in favor, and some
opposed to a definition of ``lawfully present'' that includes DACA
recipients. We are not finalizing a ``lawfully present'' definition for
Medicaid and CHIP at this time. Rather, we are taking more time to
evaluate and carefully consider the comments regarding our proposal
with respect to Medicaid and CHIP, and specifically, to continue
evaluating the potential impact of our proposed definition of
``lawfully present'' on State Medicaid and CHIP agencies. We received
comments noting the many urgent and competing demands on State
resources, raising concerns that finalizing the proposal for Medicaid
and CHIP would add to that burden and divert resources dedicated to
other matters. For example, State Medicaid and CHIP agencies continue
to experience a significant workload to ``unwind'' (that is, to return
to regular eligibility renewal operations) following the expiration of
the continuous enrollment condition in section 6008(b)(3) of the
Families First Coronavirus Response Act (FFCRA) on March 31, 2023.\16\
During unwinding, States must, over time, process renewals, consistent
with Federal requirements, for all individuals who were enrolled in
their Medicaid program as of March 31, 2023. States must disenroll
individuals who are no longer eligible for Medicaid, determine their
potential eligibility for other insurance affordability programs, and
as appropriate, transfer the individual's account to the other
insurance affordability programs.\17\ We recognize, in addition to the
concerns raised by the commenters, that States are dedicating
significant additional resources to implement new statutory
requirements, including mandatory 12-month continuous eligibility
periods for children younger than 19 years old in Medicaid and CHIP in
effect as of January 1, 2024 under the Consolidated Appropriations Act
(CAA), 2023,\18\ new requirements for State Medicaid and CHIP programs
related to justice-involved individuals under CAA, 2023,\19\ and
several new requirements for State Medicaid and CHIP agencies regarding
benefits, data collection, and eligibility under the Consolidated
Appropriations Act, 2024 (CAA, 2024).\20\ Many States are implementing
various systems modernization initiatives to address lessons learned
from unwinding, and States may also need to make system changes
necessary to comply with the statutory changes described above. Given
the significant comments that CMS continues to consider, including
comments regarding these competing State Medicaid and CHIP priorities,
increased workload, and finite resources, we are not finalizing
definitions for ``lawfully present'' and ``lawfully residing'' for
Medicaid and CHIP in this rule at this time. The rulemaking process
with regard to that portion of the proposal is ongoing.
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\16\ See Centers for Medicare & Medicaid Services (CMS), State
Health Official letter (SHO)# 23-002, ``Medicaid Continuous
Enrollment Condition Changes, Conditions for Receiving the FFCRA
Temporary FMAP Increase, Reporting Requirements, and Enforcement
Provisions in the Consolidated Appropriations Act, 2023,'' January
27, 2023, available at <a href="https://www.medicaid.gov/media/149291">https://www.medicaid.gov/media/149291</a>;
additional guidance for State Medicaid and CHIP agencies is
available at <a href="https://www.medicaid.gov/unwinding">https://www.medicaid.gov/unwinding</a>.
\17\ CMS, SHO# 22-001, ``Promoting Continuity of Coverage and
Distributing Eligibility and Enrollment Workload in Medicaid, the
Children's Health Insurance Program (CHIP), and Basic Health Program
(BHP) Upon Conclusion of the COVID-19 Public Health Emergency,''
March 3, 2022, available at <a href="https://www.medicaid.gov/media/135211">https://www.medicaid.gov/media/135211</a>.
\18\ Title V, Subtitle B, Section 5112 of the Consolidated
Appropriations Act, 2023 (CAA, 2023) amended titles XIX and XXI of
the Act to require that States provide 12 months of continuous
eligibility for children under the age of 19 in Medicaid and CHIP
effective January 1, 2024. See also, CMS,SHO #23-004: Section 5112
Requirement for all States to Provide Continuous Eligibility to
Children in Medicaid and CHIP under the Consolidated Appropriations
Act, 2023 (issued September 29, 2023). Available at: <a href="https://www.medicaid.gov/media/163771">https://www.medicaid.gov/media/163771</a>.
\19\ Under Division FF, Title V, Section 5121 of the
Consolidated Appropriations Act, 2023, starting January 1, 2025,
State Medicaid and CHIP programs are required to have a plan in
place and, in accordance with such plan, provide certain services to
eligible juveniles within 30 days of their scheduled date of release
from a public institution following adjudication, and CHIP programs
are required to suspend, rather than terminate, CHIP coverage.
\20\ Division G, Title I, Subtitle B of the Consolidated
Appropriations Act (CAA), 2024 requires that State Medicaid agencies
provide certain services for beneficiaries; that Medicaid and CHIP
agencies engage in certain data collection and monitoring
activities; and that Medicaid and CHIP agencies must no longer
terminate eligibility for incarcerated adults, including targeted
low-income pregnant individuals, and must instead suspend
eligibility in Medicaid. States may also suspend eligibility in
CHIP.
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As a result, the definition of ``lawfully present'' used in
determining eligibility for Medicaid and CHIP under the CHIPRA 214
option, the current policy, based on the 2010 SHO and the 2012 SHO,
continues to apply. Individuals, including DACA recipients, who are not
considered ``lawfully present'' under the 2010 and 2012 SHOs for
purposes of Medicaid and CHIP under the CHIPRA 214 option, will remain
ineligible under that specific Medicaid and CHIP State option. DACA
recipients, however, may continue to be eligible for limited Medicaid
coverage for the treatment of an emergency medical condition consistent
with 8 U.S.C. 1611(b)(1)(A) and the regulation at 42 CFR 435.406(b).
Because we are continuing to evaluate and consider public comments and
State burdens in connection with our proposal for Medicaid and CHIP for
DACA recipients, the discussion on the definition of ``lawfully
present'' in this final rule will focus exclusively on eligibility for
enrollment through the Exchanges and BHP.
The definitions finalized in this rule are solely for the purpose
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. This rule does not
provide any
[[Page 39394]]
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 (DOJ)'s purview.
II. Summary of the Provisions of the Proposed Rule and Analysis of and
Responses to Public Comments
A. Pre-Existing Condition Insurance Plan Program (45 CFR 152.2)
We proposed 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 proposed 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 the
proposed rule at 45 CFR 155.20. While we do not believe the definition
at 45 CFR 152.2 is used for any other current CMS programs, we proposed
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 sought comment on whether, alternatively, we
should remove the definition of ``lawfully present'' currently at 45
CFR 152.2 instead of replacing it with a cross-reference to 45 CFR
155.20.
We did not receive public comments on these proposals to remove the
definition of ``lawfully present'' at 45 CFR 152.2, to insert a
definition of ``lawfully present'' at 45 CFR 155.20, and to update 45
CFR 152.2 and 42 CFR 600.5 to cross-reference the definition at 45 CFR
155.20. We are finalizing these provisions as proposed.
B. Exchange Establishment Standards and Other Related Standards Under
the ACA (45 CFR 155.20)
1. DACA Recipients
The ACA generally requires that 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.'' \21\ 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 the QHP, the ACA
specifies that individuals who are not lawfully present are also not
eligible for such insurance affordability programs for their Exchange
coverage.\22\ The ACA does not include a definition of ``lawfully
present.'' \23\
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\21\ 42 U.S.C. 18032(f)(3).
\22\ 26 U.S.C. 36B(e)(2), 42 U.S.C. 18082(d), 42 U.S.C.
18071(e).
\23\ 42 U.S.C. 18001(d)(1).
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In a 2022 rulemaking, DHS discussed its definition of individuals
who are considered ``lawfully present'' for purposes of applying for
Social Security benefits 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, 53156) (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 53211). We discuss this authority in further detail later in
this section.
We first established a regulatory definition of ``lawfully
present'' for purposes of the PCIP program in 2010 (75 FR 45013). In
that 2010 rulemaking, we 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 the
2010 SHO establishing eligibility for lawfully present individuals. The
definition of ``lawfully present'' articulated in the 2010 SHO was also
informed by DHS regulations now 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, we 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
implemented, the definitions of ``lawfully present'' set forth in the
2010 PCIP regulations and the 2012 QHP regulations did not explicitly
reference DACA recipients. However, these definitions specified that
individuals granted deferred action were considered lawfully present
for purposes of eligibility to enroll in a QHP through an Exchange.
In June 2012, DHS issued the memorandum ``Exercising Prosecutorial
Discretion for Individuals Who Came to the United States as Children,''
announcing the DACA policy.\24\ DHS noted in this memorandum that DACA
is a form of deferred action, and the forbearance of immigration
enforcement action 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 stated that the DACA policy was ``necessary to ensure
that [its] enforcement resources are not expended on these low priority
cases.'' \25\ DHS did not address DACA recipients' ability to access
any insurance affordability programs, as the statutory authority to
address matters related to eligibility for such programs rests with
HHS, not DHS.
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\24\ U.S. 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>.
\25\ U.S. 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, we amended the 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 for purposes
of qualifying for the PCIP program or to enroll in a QHP through an
Exchange (77 FR 52614), thereby treating DACA recipients differently
from other deferred action recipients for purposes of these benefit
programs. We 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, we 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 Medicaid or CHIP under the CHIPRA 214 option because
they are not considered lawfully present for purposes of these
programs. In the August 2012 rulemaking that excluded
[[Page 39395]]
DACA recipients from CMS definitions of ``lawfully present,'' we
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 proposed 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. As proposed, 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. We also proposed to establish rules in
the Medicaid and CHIP programs to recognize that DACA recipients are
``lawfully residing'' in the United States for purposes of the CHIPRA
214 option. We are finalizing our proposal to consider DACA recipients
to be lawfully present 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. We are not
finalizing a definition for purposes of Medicaid and CHIP eligibility
at this time, for the reasons detailed in section I.
In previously excluding DACA recipients from the definition of
``lawfully present,'' we had posited that other definitions of lawful
presence should not be used as a touchstone for eligibility if the
program 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 mandated by the ACA, and 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 relief that
the DACA policy afforded. However, on further review and consideration,
it is clear that the DACA policy is intended to provide recipients with
a degree of stability and assurance that would allow them to obtain
education and lawful employment, including because recipients remain
lower priorities for removal. Extending eligibility to these
individuals is consistent with those goals. There also was no statutory
mandate to distinguish between recipients of deferred action under the
DACA policy and other deferred action recipients.
While HHS' administration of insurance affordability programs and
DHS' administration of the DACA policy are separate matters, HHS has
determined that changing its own definitions of ``lawfully present''
for purposes of Exchange and BHP eligibility is consistent with DHS'
explanation of this definition in the DHS DACA final rule. In the DHS
DACA Final Rule, DHS suggested that an individual ``whose temporary
presence in the United States the Government has chosen to tolerate for
reasons of resource allocation, administrability, humanitarian concern,
agency convenience, and other factors'' could be lawfully present (87
FR 53152, 53156).\26\ This rule's change to no longer exclude DACA
recipients from definitions of ``lawfully present'' applicable to
Exchanges and the BHP is consistent with DHS' stated conception of
lawful presence. It also aligns with the longstanding DHS definition of
lawful presence for purposes of applying for Social Security benefits
under 8 CFR 1.3. We are not finalizing a definition for purposes of
Medicaid or CHIP under the CHIPRA 214 option at this time, for the
reasons detailed in section I.
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\26\ See ``Deferred Action for Childhood Arrivals'' (87 FR
53152). Specifically, see 87 FR 53206 for DHS's discussion of the
rule's provisions regarding lawful presence. <a href="https://www.federalregister.gov/d/2022-18401/p-744">https://www.federalregister.gov/d/2022-18401/p-744</a>
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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 (87 FR 53152).\27\ Among other things, the DHS
DACA final rule reiterated USCIS's longstanding policy that a
noncitizen who has been granted deferred action is deemed ``lawfully
present''--a specialized term of art that the Congress has used in
other statutes, including in 8 U.S.C. 1611(b)(2) with respect to
receipt of certain Social Security benefits. We are aware that DHS
received public comments about the ``HHS exclusion of DACA recipients
from participation in Medicaid, the Children's Health Insurance Program
(CHIP), and the ACA health insurance marketplace'' (87 FR 53210). 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 53212). While review of the DHS DACA
final rule in part prompted HHS to revisit its own interpretation of
``lawfully present,'' HHS' administration of insurance affordability
programs implicates separate statutory authority and policy
considerations. HHS has independently decided that these changes
reflect the best policy for the insurance affordability programs
addressed in this rule, and also determined that the changes finalized
in this rule align with longstanding DHS policy 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.
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\27\ Current court orders prohibit DHS from fully administering
the DACA final rule. However, a partial stay permits DHS to continue
processing DACA renewal requests and related applications for
employment authorization documents. See USCIS, DACA Litigation
Information and Frequently Asked Questions (Nov. 3, 2022), <a href="https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/daca-litigation-information-and-frequently-asked-questions">https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/daca-litigation-information-and-frequently-asked-questions</a>.
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Further, since HHS first interpreted ``lawfully present'' to
exclude DACA recipients in 2012, new information regarding DACA
recipients' access to health insurance coverage has emerged. In the
proposed rule, we cited a 2021 survey of DACA recipients that found
while DACA may facilitate access to health insurance through employer-
based plans, 34 percent of DACA recipient respondents reported that
they were not covered by health insurance.\28\ Since the proposed rule
was published, an updated version of this survey has become available.
According to 2022 survey data, 27 percent of DACA recipients are not
covered by health insurance.\29\ While this represents a modest
improvement in the uninsured rate among DACA recipients, it is
important to note that DACA recipients are still more than three times
more likely to be uninsured than the general U.S. population, which had
a national uninsured rate of 7.7 percent.<SUP>30 31</SUP>
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\28\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (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>.
\29\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (2023). <a href="https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf">https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf</a>.
\30\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (2023). <a href="https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf">https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf</a>.
\31\ U.S. Department of Health and Human Services. New HHS
Report Shows National Uninsured Rate Reached All-Time Low in 2023
After Record-Breaking ACA Enrollment Period (2023). <a href="https://www.hhs.gov/about/news/2023/08/03/new-hhs-report-shows-national-uninsured-rate-reached-all-time-low-2023-after-record-breaking-aca-enrollment-period.html">https://www.hhs.gov/about/news/2023/08/03/new-hhs-report-shows-national-uninsured-rate-reached-all-time-low-2023-after-record-breaking-aca-enrollment-period.html</a>.
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[[Page 39396]]
Individuals without health insurance are less likely to receive
preventive or routine health screenings and may delay necessary medical
care, incurring high costs and debts.\32\ In the proposed rule, we
noted that 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 stated that they or a family member were unable to pay
medical bills or expenses.\33\ According to newly available 2022 survey
data, both of these rates have increased, with 48 percent of
respondents experiencing a delay in medical care due to their
immigration status, and 71 percent of respondents unable to pay medical
bills or expenses.\34\ These outcomes can have downstream impacts that
further disrupt individuals' health and financial stability, and
therefore their ability to work or study. Delays in care can lead to
negative health outcomes including longer hospital stays and increased
mortality, whereas being unable to pay medical bills puts individuals
at higher risk of food and housing insecurity.<SUP>35 36 37</SUP>
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\32\ Kaiser Family Foundation. Key Facts About the Uninsured
Population (2023). <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>.
\33\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (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>.
\34\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (2023). <a href="https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf">https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf</a>.
\35\ Weissman JS, Stern R, Fielding SL, Epstein AM. (1991).
Delayed access to health care: risk factors, reasons, and
consequences. Ann Intern Med. 1991 Feb 15;114(4):325-31. <a href="https://doi.org/10.7326/0003-4819-114-4-325">https://doi.org/10.7326/0003-4819-114-4-325</a>.
\36\ Hanna, T.P., King, W.D., Thibodeau, S., Jalink, M., Paulin,
G.A., Harvey-Jones, E., O'Sullivan, D.E., Booth, C.M., Sullivan, R.,
& Aggarwal, A. (2020). Mortality due to cancer treatment delay:
systematic review and meta-analysis. BMJ (Clinical research ed.),
371, m4087. <a href="https://doi.org/10.1136/bmj.m4087">https://doi.org/10.1136/bmj.m4087</a>.
\37\ Himmelstein, D. U., Dickman, S. L., McCormick, D., Bor, D.
H., Gaffney, A., & Woolhandler, S. (2022). Prevalence and Risk
Factors for Medical Debt and Subsequent Changes in Social
Determinants of Health in the US. JAMA network open, 5(9), e2231898.
<a href="https://doi.org/10.1001/jamanetworkopen.2022.31898">https://doi.org/10.1001/jamanetworkopen.2022.31898</a>.
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The COVID-19 PHE 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
PHE.\38\ 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.\39\ During the height
of the pandemic, essential workers were disproportionately likely to
contract COVID-19.<SUP>40 41</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, as evidenced
by a 2016 study finding that a worker with health insurance is
estimated to miss 77 percent fewer days than an uninsured worker.\42\
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\38\ 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 (2020). <a href="https://cmsny.org/daca-essential-workers-covid/">https://cmsny.org/daca-essential-workers-covid/</a>.
\39\ 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 (2020). <a href="https://cmsny.org/daca-essential-workers-covid/">https://cmsny.org/daca-essential-workers-covid/</a>.
\40\ 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.
\41\ 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>.
\42\ 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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Our proposal to include DACA recipients in the definition of
``lawfully present'' for purposes of Exchange and BHP coverage aligns
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. In the proposed rule, we noted that
DACA recipients represent a pool of relatively young, healthy adults;
at an average age of 30 per U.S. Citizenship and Immigration Services
(USCIS) data, they are younger than the general Exchange
population.\43\ Thus, there may be a slight positive effect on the
Exchange or BHP risk pools as a result of this proposed change,
discussed further in the Regulatory Impact Analysis in section V.C. of
this final rule.
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\43\ Count of Active DACA Recipients by Month of Current DACA
Expiration as of September 30, 2023. U.S. Citizenship and
Immigration Services. <a href="https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy23_q4.pdf">https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy23_q4.pdf</a>.
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As discussed above, HHS sees no reason to treat DACA recipients
differently from other noncitizens who have been granted deferred
action for purposes of eligibility for health insurance coverage
through an Exchange or BHP. Accordingly, we proposed to amend our
regulations at 42 CFR 600.5 and 45 CFR 152.2 and 155.20 so that DACA
recipients would be considered lawfully present for purposes of
eligibility for health insurance coverage through an Exchange or a BHP,
just like other individuals granted deferred action (88 FR 25313).
Specifically, we proposed 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
the preamble of the proposed rule, we explained the proposal 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 align the Exchange regulations. In section II.B of preamble of the
proposed rule, we also explained the proposal to remove the existing
exception in 45 CFR 152.2 that excludes DACA recipients from the
definition of ``lawfully present,'' and to clarify that references to
noncitizens who are granted deferred action who are lawfully present
for purposes of this provision include DACA recipients. Finally, in
section II.E of preamble of the proposed rule, we explained the
proposal to amend BHP regulations at 42 CFR 600.5 to cross-reference
the definition of ``lawfully present'' proposed at 45 CFR 155.20. Under
these proposed changes, we estimated that approximately 124,000 DACA
recipients would enroll in a QHP through an Exchange or a BHP. We
received public comments on these proposals. The following is a summary
of the comments we received and our responses.
General Support
Comment: Many commenters noted general support for CMS' proposal to
include DACA recipients in the definition of ``lawfully present,'' such
that DACA recipients may be eligible for CMS insurance affordability
programs, including enrolling in a QHP and obtaining APTC and CSRs
through an Exchange, or enrolling in a BHP.
Response: We appreciate comments that we received in support of
this rule's change to no longer exclude DACA recipients from
definitions of ``lawfully present'' used to determine eligibility to
[[Page 39397]]
enroll in a QHP, for APTC and CSRs through an Exchange, and for a BHP.
Comment: Commenters noted support for CMS' clarification that the
provisions in the proposed rule only pertained to the definitions of
``lawfully present'' to determine eligibility for certain health care
benefits--including eligibility to enroll in a QHP or a BHP--and that
nothing in the proposed rule provided any noncitizen relief or
protection from removal, or conveyed 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 DHS' or DOJ's purview.
Response: We reiterate that the provisions in this final rule, only
apply to eligibility to enroll in a QHP and a BHP.
Comment: Some commenters stated that the proposed rule was a lawful
exercise of the Department's authority under the ACA to define
``lawfully present'' for use in determining eligibility in HHS
programs, and that the provisions in the proposed rule better
effectuated the ACA's purposes than the current regulatory scheme. One
commenter indicated that the rule corrects an error of CMS' 2012
regulation, which treated DACA recipients as a sui generis class of
deferred action recipients, rather than what the commenter described as
one in a long line of deferred action policies in the nation's history.
One commenter noted that the ACA uses the phrase ``lawfully
present'' as an eligibility criterion in multiple provisions. The
commenter believed that the Congress's policy directive, to consider
individuals who are lawfully present, and only those lawfully present,
as eligible for the ACA's benefits, was clear. The commenter noted that
although the ACA did not define ``lawfully present,'' that this phrase
was also used at 8 U.S.C. 1611(b)(2), which predates the ACA, as an
eligibility criterion for Title II Social Security benefits. The
commenter noted that 8 U.S.C. 1611(b)(2) grants authority to the
Attorney General (now the Secretary of Homeland Security) to define who
is lawfully present for purposes of Title II Social Security benefits.
The commenter noted that when we changed course after DACA was
announced, DHS did not change the definition of ``lawfully present''
used in their regulations.
The commenter described the status quo as incongruous, particularly
given how DHS treats DACA recipients for purposes of immigration law.
The commenter noted that although DACA, and deferred action generally,
is not a form of ``lawful status,'' DHS does not consider deferred
action recipients to be unlawfully present in the United States as long
as their deferred action is in effect. The commenter further noted that
unlawful presence has serious ramifications, including inadmissibility
to the United States. The commenter stated that DACA recipients are,
due to decades-old DHS regulations, eligible for work authorization. As
a result of CMS' prior rulemaking, this meant that although DACA
recipients have been eligible to live and work in the United States and
have been eligible to receive benefits like Social Security, they are
barred from accessing crucial aspects of the health care system. The
commenter supported the elimination of this inconsistency, which would
``thereby harmonize the definition of a single statutory phrase across
agencies and applications, following the lead of the Federal agency
best suited to make immigration determinations--DHS.''
Response: We agree that this rule is a lawful exercise of CMS'
authority to interpret the statutes it is charged with implementing, as
described in detail throughout this rule. We agree with commenters that
the changes proposed in this rule better effectuate the goals of the
ACA by expanding access to affordable health insurance coverage and are
consistent with DHS' rules for Social Security defining ``lawfully
present'' at 8 CFR 1.3. We further acknowledge that this rule will
eliminate the discrepancy by which DACA recipients are currently
treated differently from other recipients of deferred action for
purposes of eligibility for enrollment in a QHP or a BHP.
Because we are not finalizing a definition of ``lawfully present''
for purposes of Medicaid and CHIP eligibility under the CHIPRA 214
option at this time, there will be differences between who is
considered ``lawfully present'' for Medicaid and CHIP and who is
considered ``lawfully present'' for Exchange coverage and the BHP. We
acknowledge commenters' interest in having a uniform definition across
our insurance affordability programs, as uniformity was a factor we
considered in our proposals. However, we are not finalizing a
definition of ``lawfully present'' for purposes of Medicaid and CHIP
eligibility at this time due to the reasons detailed in section I.
Accordingly, we will consider, along with the comments we received on
the proposed amendments to the definitions for purposes of Medicaid and
CHIP, the potential benefits of such uniformity in any future
rulemaking on this topic.
Comment: Many commenters stated that they agreed that DACA
recipients should be treated the same as other recipients of deferred
action, and that there is no reason for CMS to treat DACA recipients
differently from other recipients of deferred action. One commenter
stated that they believed deferred action recipients were eligible for
QHP and BHP per the ACA, and that CMS' prior policy ``undermined this
statutory eligibility'' and appreciated CMS updating the current policy
of exclusion.
A comment submitted by some State attorneys general referred to the
current exclusion as a ``discrepancy in the current regulatory
scheme.'' This commenter also noted that the Federal Government has a
long history of granting deferred action, including 17 different
deferred action policies prior to DACA, and that none of the deferred
action recipients under any of these other policies were categorically
denied access to health insurance affordability programs. The commenter
noted that the current exclusion bars DACA recipients from health
insurance affordability programs that their tax contributions help
fund. Another commenter stated this would bring greater consistency to
Federal policy in this area and would advance the goals of the ACA.
Response: We agree with the commenters that DACA recipients should
be treated the same as other recipients of deferred action for purposes
of eligibility for Exchanges and the BHP. Commenters are correct that,
up until now, DACA recipients have been the only category of deferred
action recipients excluded from eligibility for these insurance
affordability programs. We acknowledge that this policy did not best
effectuate the ACA's directive to consider individuals who are
``lawfully present'' to be otherwise eligible for coverage. We agree
with the commenter who characterized this exclusion of DACA recipients
as a ``discrepancy in the regulatory scheme.'' When this final rule is
effective on November 1, 2024, this discrepancy between DACA
recipients, who are deferred action recipients, and other deferred
action recipients will be corrected with respect to Exchange and BHP
coverage, and all noncitizens granted deferred action by DHS will be
considered as lawfully present for the purposes of eligibility for
these programs. We will consider the impacts of eliminating this
discrepancy for purposes of Medicaid and CHIP eligibility under the
CHIPRA 214 option in future rulemaking.
[[Page 39398]]
Comment: Some commenters questioned whether the ACA provided an
adequate legal basis for CMS to treat DACA recipients differently from
other recipients of deferred action. Commenters further stated that
they believed that CMS' 2012 IFR excluding DACA recipients from the
definition of ``lawfully present'' was not aligned with the ACA's goal
to expand access to affordable health coverage to the uninsured.
Response: The ACA does not define the term ``lawfully present,''
but our regulations implementing the ACA have recognized that
noncitizens with a currently valid period of deferred action were
lawfully present. For the reasons stated above, we believe that the ACA
supports our proposed change in policy for DACA recipients as these
individuals will be treated as lawfully present just like other
individuals granted deferred action for the purposes of eligibility for
health insurance through an Exchange or a BHP.
We agree with the comment that our prior policy did not fully align
with the ACA's goal to expand access to affordable health coverage for
the uninsured. We agree with commenters that the changes in this rule
better effectuate the congressional intent in the ACA, given the ACA's
broad aims to expand access to affordable health insurance coverage. As
mentioned throughout this rule, new information regarding DACA
recipients' difficulty in accessing health insurance coverage has
become available since we adopted our prior policy. As mentioned
previously in this rule, despite some DACA recipients being able to
access health insurance coverage through their employers as a result of
the employment authorization provided under the DACA policy, DACA
recipients are still more than three times more likely to be uninsured
than the general U.S. population, which had a national uninsured rate
of 7.7 percent.<SUP>44 45</SUP>
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\44\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (2023). <a href="https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf">https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf</a>.
\45\ U.S. Department of Health and Human Services. New HHS
Report Shows National Uninsured Rate Reached All-Time Low in 2023
After Record-Breaking ACA Enrollment Period (2023). <a href="https://www.hhs.gov/about/news/2023/08/03/new-hhs-report-shows-national-uninsured-rate-reached-all-time-low-2023-after-record-breaking-aca-enrollment-period.html">https://www.hhs.gov/about/news/2023/08/03/new-hhs-report-shows-national-uninsured-rate-reached-all-time-low-2023-after-record-breaking-aca-enrollment-period.html</a>.
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Comment: Some commenters noted that the current exclusion of DACA
recipients from CMS definitions of ``lawfully present'' is inconsistent
with other rules pertaining to public benefits eligibility for
individuals with deferred action, including DHS regulations at 8 CFR
1.3 for the purposes of eligibility for Title II Social Security
benefits. Commenters supported CMS' proposal to better align with DHS'
policies.
Response: This rule would bring eligibility for health insurance
through an Exchange and a BHP into alignment with DACA recipients'
treatment under rules used by the Social Security Administration for
Title II Social Security Benefits, as articulated in DHS regulations at
8 CFR 1.3. As we are not finalizing a definition of ``lawfully
present'' for purposes of eligibility for Medicaid or CHIP under the
CHIPRA 214 option at this time, due to the reasons detailed in section
I, the definition used for purposes of those programs will continue to
differ from DHS regulations at 8 CFR 1.3 with respect to DACA
recipients. We will consider the impacts of updating the Medicaid and
CHIP definition of ``lawfully present'' in future rulemaking.
Comment: Some commenters, including nonprofit advocacy
organizations and State government agencies, stated the belief that no
longer excluding DACA recipients from Exchange coverage could have a
positive impact on Exchange risk pools. One government agency noted
that improving the risk pool in this way will benefit insurers, and
commenters further noted that improving risk pools in this way is
expected to exert downward pressure on QHP premiums and to improve
market stability. In support of the argument that allowing DACA
recipients to access Exchange coverage could improve individual market
risk pools, multiple commenters cited a study that found that DACA
recipients had similar self-reported health status to U.S. born
individuals, with 92 percent of survey respondents eligible for DACA
reporting excellent, very good, or good health.\46\ Commenters noted
that DACA recipients are also younger, on average, than current
Exchange enrollees, with an average age of 30.\47\
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\46\ Key Facts on Deferred Action for Childhood Arrivals (DACA)
(2023), <a href="https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-deferred-action-for-childhood-arrivals-daca/">https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-deferred-action-for-childhood-arrivals-daca/</a>.
\47\ Count of Active DACA Recipients by Month of Current DACA
Expiration as of September 30, 2023. U.S. Citizenship and
Immigration Services. <a href="https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy23_q4.pdf">https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy23_q4.pdf</a>.
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Response: While we are unable to quantify the potential impacts of
this policy on Exchange risk pools, we believe it is reasonable to
predict that allowing DACA recipients to enroll in Exchange coverage
may have a positive impact. DACA recipients, whose average age is now
30, are younger than the existing population of Exchange enrollees, of
whom 64 percent are age 35 or older.<SUP>48 49</SUP> As commenters
noted, DACA recipients are also generally in good health, due in part
to the fact that DACA recipients are a relatively young population.
However, we note that there does exist a slight gap between DACA
recipients who report they are in excellent or very good health (64
percent) as compared to U.S. citizens (71 percent).\50\ We are not able
to assess how DACA recipients' health status compares to that of the
existing population of Exchange enrollees, or to predict any downstream
impacts on Exchange risk pools as a result. However, we are hopeful
that allowing DACA recipients to access Exchange coverage may help
address these existing disparities due to the positive health impacts
of having health insurance, which are detailed later in this section.
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\48\ Count of Active DACA Recipients by Month of Current DACA
Expiration as of September 30, 2023. U.S. Citizenship and
Immigration Services. <a href="https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy23_q4.pdf">https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy23_q4.pdf</a>.
\49\ Centers for Medicare and Medicaid Services. 2024 Open
Enrollment Report. <a href="https://www.cms.gov/files/document/health-insurance-exchanges-2024-open-enrollment-report-final.pdf">https://www.cms.gov/files/document/health-insurance-exchanges-2024-open-enrollment-report-final.pdf</a>.
\50\ Key Facts on Deferred Action for Childhood Arrivals (DACA)
(2023), <a href="https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-deferred-action-for-childhood-arrivals-daca/">https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-deferred-action-for-childhood-arrivals-daca/</a>.
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Comment: One State government agency noted that extending QHP
eligibility for DACA recipients is particularly important because DACA
recipients may lose access to State-funded Medi-Cal during unwinding.
Another commenter noted that extending QHP eligibility for DACA
recipients is particularly important because even in the State of
California, where DACA recipients may qualify for State-funded Medi-Cal
if they are income-eligible, 57 percent of individuals likely eligible
for DACA have incomes above 200 percent of the FPL. Allowing these DACA
recipients to enroll in health coverage through a QHP provides an
important source for affordable health insurance coverage that is not
currently available.
Response: We appreciate a commenter pointing out the importance of
making Exchange coverage available to DACA recipients who may not be
eligible for, or who may be losing, State-funded health coverage during
unwinding. While we are not finalizing a definition for purposes of
Medicaid and CHIP eligibility at this time, due to the reasons detailed
in section I, we will take this comment into consideration as part of
any future rulemaking on this topic.
[[Page 39399]]
General Opposition
Comment: Some commenters noted general opposition to CMS' proposal
to consider DACA recipients lawfully present for purposes of insurance
affordability programs. Some commenters urged CMS to withdraw the rule,
or alternatively, to remove the proposed changes that would no longer
exclude DACA recipients from the definitions of ``lawfully present''
used to determine eligibility for CMS insurance affordability programs.
Some commenters noted opposition to this rule on the basis that
they believe DACA recipients entered the United States unlawfully, that
they believe DACA recipients are undocumented, or that they believe
DACA recipients have broken the law. Commenters stated that rules such
as the one that CMS has proposed further incentivize illegal
immigration, increase fraud and abuse of government systems, and
encourage dependency on Federal programs.
Response: We recognize that some of the public commenters are
opposed to the change this rule would make, and there is significant
public debate concerning the availability of some public benefits for
noncitizens. Although we recognize that the Congress has made a general
statement of the immigration policy of the United States at 8 U.S.C.
1601, the Congress has provided some express exceptions that enable
certain noncitizens to obtain certain public benefits under other
authorities. For example, as noted in the proposed rule, individuals
who are either U.S. citizens or nationals or lawfully present in the
United States are eligible to enroll in a QHP and are eligible for
PTCs, APTCs, and CSRs (88 FR 25313). We submit that our rule is
consistent with the relevant statutory authorities.
In addition, DHS has recognized that even individuals who did not
enter the United States legally could become ``lawfully present'' under
the statutes governing particular benefit programs (87 FR 53152,
53156). DHS notes that ``the term `lawful presence' historically has
been applied to some persons who are subject to removal (and who may in
fact have no ``lawful status''), and whose immigration status affords
no protection from removal, but whose temporary presence in the United
States the Government has chosen to tolerate for reasons of resource
allocation, administrability, humanitarian concern, agency convenience,
and other factors. Lawful presence also encompasses situations in which
the Secretary, under express statutory authorization, designates
certain categories of noncitizens as lawfully present for particular
statutory purposes, such as receipt of Social Security benefits'' (87
FR 53152). As discussed throughout this rule, we have the authority to
modify our definition of ``lawfully present'' used as an eligibility
criterion for the programs we administer and for which we have
oversight responsibilities.
We reiterate in response to the public comments that this rule aims
to establish eligibility criteria only for Exchanges and a BHP and does
not address or revise immigration policy, including DHS' DACA policy.
We also reiterate that other recipients of deferred action have long
been considered lawfully present under our regulations and policies,
and this rule is removing the exception for DACA recipients for the
purposes of eligibility for Exchanges and a BHP. We note that while we
are not addressing the definition of ``lawfully present'' for purposes
of Medicaid and CHIP eligibility in this final rule, we will consider
commenters' concerns about negative impacts of DACA recipients being
considered eligible for Medicaid or CHIP under the CHIPRA 214 option in
future rulemaking. The rulemaking process with regard to that portion
of the proposal is ongoing.
We also do not believe that this rule will encourage irregular
migration, fraud or abuse of government systems, or encourage
dependency on Federal programs. While the factors contributing to
irregular migration are complex and multifaceted, DHS has clearly
indicated from the beginning of the DACA policy that only certain
noncitizens continuously residing in the United States since June 15,
2007 can be considered for deferred action under DACA.\51\ We do not
believe it is reasonable to conclude that no longer excluding DACA
recipients from eligibility for insurance through an Exchange or a BHP
will have any material impact on rates of illegal immigration.
Individuals must have their lawful presence electronically verified by
DHS to enroll in our insurance affordability programs, which ensures
that noncitizens who are not lawfully present, as defined in this final
rule, will not be able to enroll in health insurance through an
Exchange and a BHP.
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\51\ See U.S. 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>, and 8 CFR 236.22(b)(2).
---------------------------------------------------------------------------
Comment: A few commenters stated their belief that DACA recipients
should not be able to access the insurance affordability programs
discussed in this rule because they do not pay into the U.S. health
care system via taxes.
Response: Contrary to the commenter's assertion, we note that DACA
recipients do pay Federal, State, and local taxes. One analysis
estimated that DACA recipients contribute $6.2 billion in Federal taxes
and $3.3 billion in State and local taxes each year.\52\ In addition,
we note that only DACA recipients who attest that they will file a
Federal income tax return will be eligible for APTCs for Exchange
coverage.
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\52\ Center for American Progress. The Demographic and Economic
Impacts of DACA Recipients: Fall 2021 Edition. (2022). <a href="https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca-recipients-fall-2021-edition/">https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca-recipients-fall-2021-edition/</a>.
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Comment: A few commenters stated their belief that DACA recipients
should not be able to access the insurance affordability programs
addressed in this rule unless they become U.S. citizens, or that DACA
recipients and other noncitizens should not be able to access more
benefits than U.S. citizens. A few commenters expressed their belief
that DACA recipients should use employer sponsored coverage or other
private coverage. One commenter indicated that they would be in favor
of making subsidized health insurance coverage available to DACA
recipients only if they are employed.
Response: Limiting access to the insurance affordability programs
addressed in this rule to U.S. citizens, as some commenters suggested,
is beyond our authority under the ACA. Further, the changes in this
rule result in DACA recipients becoming potentially eligible for health
insurance through an Exchange or a BHP for which U.S. citizens, U.S.
nationals, and other noncitizens determined to be lawfully present are
already considered eligible. Nothing in this rule restricts or changes
the insurance affordability programs available to U.S. citizens, U.S.
nationals, or other such lawfully present noncitizens.
Finally, we do not have authority under the ACA to limit the
availability of coverage to individuals who are employed, although
there is evidence that the majority of DACA recipients are
employed.\53\
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\53\ Center for American Progress. Results from Tom K. Wong et
al., 2022 National DACA Study. <a href="https://www.americanprogress.org/wp-content/uploads/sites/2/2023/04/DACA-Survey-2022-Toplines.pdf">https://www.americanprogress.org/wp-content/uploads/sites/2/2023/04/DACA-Survey-2022-Toplines.pdf</a>.
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Comment: One nonprofit organization opposed the proposal stating
that by expanding the definition of ``lawfully present,'' DACA
recipients would rely
[[Page 39400]]
on Federal and State benefits that might be taken away if a court rules
against DHS' DACA policy as codified in its 2022 DACA final rule (87 FR
53152).
Response: An individual could cease to be ``lawfully present'' for
a number of reasons, including because DHS terminates an individual's
grant of deferred action on a case-by-case basis, because the Congress
enacts a statute that makes changes to current law, or, as the
commenter suggests, because of a judicial decision. Regardless of
whether any of these situations may come to pass in the future, we see
no compelling reason not to update our regulations, consistent with our
statutory and regulatory authority, as we have found that our current
regulations do not best effectuate the ACA. As is detailed throughout
this rule, we believe there are significant physical health, mental
health, and financial benefits associated with having access to health
insurance coverage. For both DACA recipients and other noncitizens who
may no longer be considered ``lawfully present'' under our regulations
at some point in the future, we do not believe that the potential risk
of losing coverage in the future outweighs the potential benefit of
increasing access to coverage at present.
Comment: Some commenters noted general opposition to this proposed
rule stating that they believe more resources should go towards
ensuring that U.S. citizens have access to the health insurance
coverage and health care services that they need, before directing
funds towards DACA recipients and other noncitizens. A few commenters
stated frustration that the cost of health insurance for U.S. citizens,
especially those who work, who have families, who are low income, or
who own small businesses is too high, and they are suffering without
access to affordable health care. Commenters requested that more work
should go to fixing the current health care system and that American
citizens or those who entered the United States legally should be
receiving better care.
Response: We are committed to ensuring access to quality,
affordable health insurance coverage and health care for everyone who
is eligible for programs we regulate or administer. The insurance
affordability programs being made available to DACA recipients in this
rule--Exchange coverage and the BHP, specifically--have been and will
continue to be available to eligible U.S. citizens, U.S. nationals, and
other lawfully present noncitizens. The purpose of this rule is to
establish eligibility requirements for health insurance through an
Exchange and a BHP rather than dictate where tax dollars are directed.
We note that nothing in this rule will restrict or eliminate the
availability of these insurance affordability programs to U.S.
citizens. In fact, it is possible that allowing DACA recipients to
enroll in QHPs through an Exchange could lower QHP premiums for all
enrollees. Given that DACA recipients are, on average, younger than
current Exchange enrollees, having DACA recipients in the QHP risk
pools may lower the associated premiums of such plans.
Comment: Some commenters believe the policies in this proposed rule
are outside of the President's purview, are not permitted under the
ACA, and should be policies established by the Congress. Some
commenters noted that the ACA was passed after extensive discussions
within the Congress and specific statements were made regarding
``lawful presence'' and who would receive ACA benefits. A few
commenters further noted that the DACA policy was implemented to
prevent deportation, and to provide work permits for those individuals,
not to extend government benefits to them. Additional commenters
expressed their belief that whether to provide health insurance to
individuals who are DACA recipients falls to the Congress, and the
President has no legal authority. A few commenters also pointed out
that a prior administration originally prevented DACA recipients from
accessing ACA coverage.
Response: We do not agree with the suggestion that the proposed
rule exceeds our legal authority. We have identified the relevant
statutory authority that supports our proposed and final rule.
Moreover, we have identified specific reasons for proposing a change of
policy and have sought public comments consistent with the requirements
of the Administrative Procedure Act (APA). We have demonstrated that
the rule is consistent with our existing authority under the law.
Comment: Commenters stated their view that the DACA policy is
unlawful, and that this rule runs counter to immigration laws including
statute, case law, and ongoing litigation in the Fifth Circuit Court of
Appeals. One commenter stated that CMS was correct in its initial
judgment that there was good reason to treat DACA recipients
differently from other recipients of deferred action. The commenter
further asserted that unlike other forms of prosecutorial discretion,
DACA was ``plainly unlawful,'' as it was not authorized by the
Congress, conflicted with other statutes, and did not originally
undergo notice and comment rulemaking.
One nonprofit organization cited the Fifth Circuit's ruling in
which the court found that DHS does not have authority to ``broaden the
categories of aliens who are entitled to lawful presence in the United
States.'' \54\ The commenter also cited the court's findings that the
DACA Memorandum ``contradicts significant portions of the Immigration
and Nationality Act (INA),'' and that the 2012 Memorandum by then-DHS
Secretary Janet Napolitano which announced the DACA policy violated the
procedural requirements of the APA. One commenter further stated that
the Congress identified in the INA several discrete categories of
noncitizens that may be eligible for deferred action, nowhere granting
the executive branch authority to unilaterally expand on those
categories. One nonprofit organization cited the court's finding that
the DACA policy ``failed under step one of the Chevron framework.'' One
nonprofit organization noted that the Supreme Court has consistently
held that the Congress holds plenary authority over immigration. The
commenter cited Kleindienst v. Mandel,\55\ in which the Court noted
that the Congress has ``plenary power to make rules for the admission
of aliens and to exclude those who possess those characteristics which
the Congress has forbidden.''
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\54\ Texas et al. v. United States et al., 50 F.4th 498 (5th
Cir. 2022).
\55\ 408 U.S. 753, 766 (1972).
---------------------------------------------------------------------------
One commenter further stated that they believed that by including
DACA recipients in CMS' definition of ``lawfully present,'' CMS was
``reinforcing'' DACA, which they viewed to be an ``unlawful program.''
One nonprofit research organization stated that because the DACA policy
is not a lawful exercise of deferred action, and because the DACA
policy violates procedural and substantive Federal law, that CMS must
exclude DACA recipients from its definitions of ``lawfully present.''
Response: We believe that the DACA final rule is lawful. As DHS
articulates in detail in their final rule, the DACA final rule
represents a lawful exercise of the Secretary of Homeland Security's
authority and discretion regarding deferred action (87 FR 53152).
Perhaps more importantly, this rule does not in any way change
existing immigration policy, nor does it confer lawful immigration
status. As we explained in the proposed rule, ``[t]hese proposed
definitions are solely for the purposes of determining eligibility for
[[Page 39401]]
specific HHS health programs and are not intended to define lawful
presence for purposes of any other law or program.'' We also noted that
the 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 DHS's or DOJ's purview.
The ACA uses the term ``lawfully present'' as an eligibility
criterion for health insurance through an Exchange or a BHP. As noted
previously in this final rule, those terms were not defined in the
operative statute, and we have the authority to define these terms for
the purposes of determining eligibility for health insurance through an
Exchange and a BHP.
Comment: One commenter, a nonprofit research organization, stated
that because CMS' proposed change in policy is not based on a
reasonable rationale, that extending benefits to DACA recipients is
ultra vires and violates the APA. The commenter further stated that it
believed that CMS' rationale for changing its interpretation is not
justified by the facts and is therefore unlawful under the APA. The
commenter asserted that CMS has failed to meet the standards of the APA
by proposing to consider DACA recipients as ``lawfully present''
despite the DACA policy's ``serious legal deficiencies.'' The commenter
specifically stated that CMS' explanation that, upon further review,
the DACA policy ``was intended to provide recipients with the stability
and assurance that would allow them to obtain education and lawful
employment, and to integrate as productive members of society'' is
inconsistent with the inherent nature of deferred action, which DHS has
specified can be ``terminated at any time, in its discretion.'' The
commenter noted that if DACA is truly a form of prosecutorial
discretion, then DACA grants must be case-by-case and based on
prioritization of cases, rather than a class-based benefits program
intended to provide stability to a specific class of beneficiaries in a
manner similar to standard immigration benefits. The commenter stated
that any stability DACA recipients may receive as a part of the policy
is unwarranted, and that deferred action does not provide lawful status
or a right to remain in the United States nor does it excuse past or
future periods of unlawful presence.
Response: We have met our obligations under the APA to explain our
proposed policy change to no longer exclude DACA recipients from the
group of individuals with deferred action in our definitions of lawful
presence for purposes of eligibility for health insurance through an
Exchange and a BHP. As noted above, we have the authority to define the
term ``lawfully present'' as an eligibility criterion for health
insurance through an Exchange or a BHP as the term was previously not
defined in the operative statute.
Additionally, as discussed in this final rule and in the proposed
rule, new information regarding DACA recipients' difficulty accessing
health insurance coverage and health care has become available since we
first excluded DACA recipients from our definitions of ``lawfully
present'' in 2012. In this rule, we are adopting a policy that better
effectuates the goals of the ACA to promote access to affordable health
insurance coverage through Exchanges and BHPs. Further, we disagree
with the commenter's characterization that any stability that DACA
recipients receive related to the DACA policy is unwarranted. While
deferred action does not confer legal immigration status or a right to
remain in the United States, it does provide a degree of stability to
recipients, including through providing eligibility to request
employment authorization.
Comment: One government agency stated that it is illogical to
consider DACA recipients and other deferred action recipients to be
``lawfully present'' because the ``action'' that is deferred under DACA
and other deferred action policies is action on their recipients'
unlawful presence. In support of this argument, the commenter cited an
Eleventh Circuit opinion, which has noted that DACA recipients are
``given a reprieve from potential removal; that does not mean they are
in any way `lawfully present' under the [INA].'' \56\
---------------------------------------------------------------------------
\56\ Estrada v. Becker, 917 F.3d 1298, 1305 (11th Cir. 2019)
(citing Ga. Latino All. for Human Rights v. Governor of Ga., 691
F.3d 1250, 1258 n.2 (11th Cir. 2012).
---------------------------------------------------------------------------
Response: As DHS explained in their DACA final rule, the concept of
``lawful presence'' is a term of art used in certain benefit statutes
and without a single controlling statutory definition. Still, we
acknowledge that lawful presence is not an immigration status and does
not connote a ``lawful immigration status.'' As DHS states in its DACA
final rule, ``[a]n individual's lawful presence can include situations
in which the executive branch tolerates an individual being present in
the United States at a certain, limited time or for a particular, well-
defined period. The term is reasonably understood to include someone
who is (under the law as enacted by the Congress) subject to removal,
and whose immigration status affords no protection from removal, but
whose temporary presence in the United States the Government has chosen
to tolerate, including for reasons of resource allocation,
administrability, humanitarian concern, agency convenience, and other
factors.'' (87 FR 53152).
Deferred action recipients have been considered lawfully present
under regulations for many years for purposes of eligibility for Social
Security, the Exchange, BHP, and under existing CMS policy outlined in
the 2010 SHO for Medicaid and CHIP under the CHIPRA 214 option, and
thus may be receiving benefits if they meet all other eligibility
requirements for those programs.
The INA does not include a definition of ``lawfully present.'' As
noted by DHS in their DACA final rule, there is no singular definition
of ``lawfully present'' for all purposes and the term is not a legal
immigration status. Similar to how DHS considers deferred action
recipients lawfully present for purposes of Title II Social Security
benefits under 8 CFR 1.3, this rule only addresses eligibility for
specific programs. Under the authority granted the HHS Secretary by the
ACA, we are defining ``lawfully present'' for purposes of Exchanges and
BHP programs and believe we have adopted a reasonable approach in doing
so.
Comment: A few commenters stated that CMS' changes to consider DACA
recipients as ``lawfully present'' for purposes of its programs should
go through the Congress, and that this rule reaches beyond the
jurisdiction of the Executive branch. Commenters further indicated that
they believed that bypassing the Congress was inappropriate because of
the Congress's role in appropriating funding.
Response: Where the Congress uses a term like ``lawfully present''
but does not define the term, the agency is required to interpret the
statute, particularly where the Congress grants the agency broad
rulemaking authority to implement the statute, as it has done in the
ACA.\57\ We do not agree with the commenters' suggestion that we have
acted beyond our statutory authority by proposing to include DACA
recipients within the term ``lawfully present'' for purposes of
eligibility for health insurance through an Exchange or a BHP as
addressed in this rule. After review, we believe that the revised
definition of ``lawfully present'' for
[[Page 39402]]
purposes of eligibility for health insurance through an Exchange or BHP
is the most accurate interpretation of the ACA's text and better
effectuates the Congressional intent in the ACA.
---------------------------------------------------------------------------
\57\ 42 U.S.C. 18041(a)(1).
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Access to Care
Comment: Many advocacy organizations, government agencies, and
health insurers noted that despite DACA recipients' relatively high
rates of employment, DACA recipients continue to face barriers to
accessing health insurance coverage and health care. Some commenters
cited a 2021 study that found that over one-third of DACA recipients
were uninsured, and others cited an analysis of 2022 Current Population
Survey Annual Social and Economic Supplement data that found that
nearly half of individuals likely eligible for DACA are uninsured.
Commenters noted that high proportions of DACA recipients reported
being unable to pay medical bills. Another commenter noted that while
DACA recipients initially realized some health improvements when the
2012 DACA policy was established, that those improvements slowed as
uncertainty surrounding the policy grew. Commenters stated that this
rule was urgently necessary to help DACA recipients gain access to
needed health insurance coverage and close the insurance gap, in line
with the goals of the ACA.
One nonprofit organization noted that individuals who would benefit
from this rule likely have limited incomes and it is very unlikely that
these individuals can afford health insurance. Another commenter cited
data showing that in the State of New York, approximately two-thirds of
DACA recipients have incomes below 100 percent of the FPL. By gaining
access to insurance affordability programs, the commenter noted that
this population would have an opportunity to enroll that is currently
not available.
Several commenters noted that a significant proportion of DACA
recipients are parents, citing estimates ranging from 30 percent to 48
percent of DACA recipients, and noted that 250,000 to 300,000 U.S.-born
children have a parent who is a DACA recipient. Commenters cited
studies showing that children are more likely to be insured when their
parents have health insurance, and that therefore, expanding the health
insurance options available to DACA recipients through this rule would
also likely improve access to insurance for their children. One
commenter noted U.S. citizen children with at least one noncitizen
parent are twice as likely to be uninsured as those with two U.S.
citizen parents.
Response: We agree with commenters' view that DACA recipients face
disproportionately high rates of uninsurance, which has negative
downstream health and economic impacts, discussed in further detail
below. We believe that no longer barring DACA recipients from accessing
health insurance through an Exchange or a BHP will enable previously
uninsured DACA recipients to enroll in affordable and quality health
insurance coverage and ultimately improve health outcomes for
communities that have faced historical inequities.
We note that, in line with 26 U.S.C. 36B(c)(1)(B) and 42 U.S.C.
18071(b)(2), under the policy outlined in this rule, DACA recipients
would generally be considered eligible for APTC and CSRs even if their
household income is below 100 percent of the FPL, as individuals who
are lawfully present but are ineligible for Medicaid due to their
``alien status.'' Under the enhanced subsidies made available through
the American Rescue Plan Act and the Inflation Reduction Act, DACA
recipients with household incomes up to 150 percent of the FPL would be
eligible for zero-dollar premium silver plans, if otherwise eligible
for APTC.\58\ While we are not finalizing a definition of ``lawfully
present'' for purposes of eligibility for Medicaid or CHIP under the
CHIPRA 214 option at this time, we believe that most DACA recipients
who may have been eligible for Medicaid or CHIP under the CHIPRA 214
option under our proposed rule will be eligible to enroll in a QHP with
generous APTC and CSRs, or in the BHP, under this final rule. Because
of this, we believe that this final rule will still decrease rates of
uninsurance among DACA recipients.
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\58\ See Section 9661 of the American Rescue Plan Act of 2021,
Public Law 117-2 (March 11, 2021), and Section 12001 of the
Inflation Reduction Act of 2022, Public Law 117-169 (August 16,
2022), which established enhanced premium tax credits for Exchange
coverage through 2025.
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Finally, we appreciate commenters' illustrations of how this rule
may not only increase access to insurance coverage for DACA recipients
and other individuals who would be newly considered lawfully present as
a result of the final rule, hereinafter ``impacted noncitizens,'' but
also for their children. We agree with commenters who noted that
addressing the needs of DACA recipients and their families' need for
access to affordable health insurance coverage through an Exchange or a
BHP is in line with the goals of the ACA.
Comment: Some commenters noted the negative impacts of the COVID-19
pandemic on DACA recipients. Commenters provided a range of estimates
of the number of DACA recipients working as essential employees during
the COVID-19 pandemic. One nonprofit organization cited a study by the
Center for American Progress that found that more than three quarters
of DACA recipients in the workforce worked in ``essential'' occupations
during the public health emergency, and other commenters cited
estimates ranging from around 200,000 to 343,000 workers at the height
of the pandemic. Commenters further cited a range of estimates of the
number of DACA recipients who worked in health care occupations during
the pandemic, ranging from 30,000 to about 45,000. As essential
workers, these DACA recipients often put their own and their families'
health at risk.
One commenter noted that the COVID-19 pandemic exacerbated deep-
seated disparities in health equity, particularly among communities of
color, and that systemic barriers have amplified high uninsurance rates
and the frequency of postponed medical care among communities of color.
Commenters noted that DACA recipients are much more likely than the
general population to have coverage through an employer or union.
Commenters stated that of those with health insurance, 80 percent of
DACA recipients had coverage through an employer or union, as compared
to about 50 percent of the general population. As a result, DACA
recipients' access to health insurance coverage was very directly tied
to their employment status, and losing their job likely meant losing
access to health insurance coverage. Commenters cited a 2021 survey of
DACA recipients that found that nearly one in five had lost employer
health coverage during the COVID-19 pandemic and noted that DACA
recipients who lose employer coverage had very limited alternative
options for obtaining health insurance coverage.
Response: We agree with the commenters' perspectives on the
negative impacts that the COVID-19 pandemic had on DACA recipients,
especially as essential workers. Additionally, we recognize the burden
that DACA recipients faced when they lost employer-sponsored coverage
in the midst of a pandemic. We believe that this rule's change to no
longer exclude DACA recipients from the definition of ``lawfully
present'' will enable this population to access health insurance
through an Exchange or a BHP, options
[[Page 39403]]
that were previously unavailable. We believe that by updating the
eligibility requirements for DACA recipients to enroll in a QHP through
an Exchange or a BHP, some of the deep-seated disparities in health
equity that commenters referenced may be reduced.
Comment: Several commenters encouraged CMS to invest in outreach
and to create and maintain partnerships with assisters, who are
certified and trusted community partners who provide free and impartial
enrollment assistance to consumers (hereinafter ``assisters''), and
community-based organizations to spread awareness about DACA
recipients' access to care. One commenter suggested considering the
geographic density of DACA recipients when determining the allocation
of marketing resources in media markets.
Some commenters also urged CMS to provide adequate funding to
community-based organizations so that they are able to contribute to
the important work required to implement this rule. Commenters
articulated how community-based organizations have worked for years to
build relationships with DACA recipients and urged CMS to leverage
these organizations' expertise when implementing this rule to ensure
the maximum benefit for consumers. Commenters noted the importance of
multilingual materials when conducting outreach and education related
to this rule.
A few commenters further noted that targeted outreach is necessary
to address DACA recipients' fears that accessing health care coverage
and services could negatively affect their immigration status, given
persistent fears related to the DHS 2019 public charge rule (84 FR
41292).\59\
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\59\ In 2022, DHS issued the rule ``Public Charge Ground of
Inadmissibility'' (87 FR 55472), which is applicable to applications
for adjustment of status postmarked or electronically filed on or
after December 23, 2022; DHS' 2019 Public Charge final rule (84 FR
41292) is no longer applicable.
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Response: We are committed to conducting outreach and education to
reach individuals impacted by this rule. We plan to analyze the
population impacted by this rule and build strategies and tactics to
educate them that they may be eligible for health insurance through an
Exchange or a BHP. As noted previously in this final rule, we also plan
to leverage existing channels for outreach and education utilized
during the individual market Exchange Open Enrollment Period, including
multilingual channels, to ensure that impacted noncitizens are aware
that they may be newly eligible for coverage. We agree with commenters'
view that to ensure maximization of DACA recipients' ability to access
coverage, we should partner with assisters and community-based
organizations.
Comment: Many commenters detailed how increasing access to health
insurance coverage has positive impacts on individual and population
health. Many commenters stated that they expected the provisions in the
proposed rule would result in increased health and well-being for DACA
recipients and other impacted noncitizens and would provide more
equitable access to sources of health care on an individual level.
Commenters noted that individuals who are insured are more likely to
have a regular source of care, to receive timely and appropriate
preventive care, and are less likely to experience certain health
complications than those who are uninsured. A medical society noted
that when uninsurance rates increase, worse health outcomes result at a
population level, including reduced prescription adherence and
increased prevalence of obesity and malnutrition, especially for
pregnant or breastfeeding women, infants, or children. Similarly, one
commenter noted that in States where health benefits are extended to
all individuals regardless of immigration status, there are lower rates
of foregoing medical, dental, and preventive care at a population
level. One commenter noted that expanding access to health insurance
coverage is particularly critical as the DACA population ages and faces
new and different health challenges.
Response: We appreciate commenters' recognition of the many ways
that this rule has the potential to improve health and decrease
mortality for impacted noncitizens. While we are unable to quantify
these potential impacts, we are hopeful that the coverage gains
facilitated by this rule will positively impact the health and
wellbeing of DACA recipients and other impacted noncitizens who will be
newly considered ``lawfully present'' as a result of this rule's
changes to the ``lawfully present'' definition for the purposes of
eligibility for health insurance through an Exchange or a BHP.
Comment: Some commenters provided detailed analysis of the ways in
which increased access to health insurance can contribute to
individuals' financial stability. One commenter cited a study that
found that when an uninsured individual becomes hospitalized, negative
financial outcomes, including reduced access to credit and higher risk
of filing for bankruptcy, persist for the following four years. Another
commenter mentioned that without consistent access to care, costs of
treatment are higher not only for the individual, but for society as a
whole.
Some commenters expected that increased access to health insurance
would help reduce medical debt for DACA recipients. Commenters noted
that individuals with medical debt often have to cut spending on basic
necessities. Because medical debt can threaten individuals' food and
housing security, it has detrimental effects on social determinants of
health associated with adverse health outcomes. Some commenters also
noted that medical debt can have significant financial consequences,
including having bills going to collections, lower credit scores,
bankruptcy, home foreclosures, or evictions. Commenters cited a 2022
survey in which 71 percent of DACA recipient respondents reported being
unable to pay medical bills or expenses in the past. Commenters further
noted that the financial stability provided by the provisions in this
rule may enable DACA recipients to seek education and employment
opportunities they may not have otherwise been able to access.
Response: We appreciate commenters' analysis of the many ways that
this rule has the potential to improve economic stability for impacted
noncitizens. While we are unable to quantify these potential impacts,
we are hopeful that the coverage gains facilitated by this rule, via
the Exchange or a BHP, will positively impact the financial stability
of DACA recipients, other impacted noncitizens and their families.
Comment: Several commenters further outlined how increasing access
to health insurance coverage, or extending it to those who are
uninsured, has positive impacts not only on individual financial well-
being, but also on community-level economic health. One commenter
stated that increasing access to affordable health coverage is expected
to benefit communities, workforce, education systems, arts and culture,
and many sectors of the economy. One commenter noted agreement with
CMS' discussion in the proposed rule preamble of the positive impacts
that the rule is expected to have on the workforce, given that insured
individuals miss 77 percent fewer workdays than those who are
uninsured. One nonprofit organization cited studies illustrating that
access to affordable coverage allows individuals to spend more
disposable income on essential goods and services, which increases tax
revenues and produces a ``multiplier effect'' where increased business
revenues benefit both suppliers
[[Page 39404]]
and employees. This study found that the ``multiplier effect'' of
Medicaid expansion was as much as 1.5 to 2 times as great as the amount
of new Federal Medicaid spending. Similarly, one commenter cited a
study finding that every $100,000 of additional Medicaid spending
resulted in 3.8 net job-years (that is, one job that lasts one year),
demonstrating that expanding health benefits creates jobs. One
nonprofit organization stated that expanding eligibility for DACA
recipients will continue to pay dividends for years to come at the
community and national level.
Some members of the Congress, in their public comment, noted that a
large portion of DACA recipients are medical and health professional
students who will play a critical role in the U.S. health care system
in the future, and they deserve the same access to health care. They
noted that DACA recipients' access to health care during their
education is vital to growing the health care workforce.
Response: We appreciate commenters' analysis of the many ways that
this rule has the potential to benefit the economies and other social
systems and institutions in impacted noncitizens' communities. We also
appreciate the point that ensuring that DACA recipients who are medical
and health professional students have access to health insurance
coverage during their training is crucial to growing the health care
workforce, which benefits communities' health and helps drive down
health care costs. While we are unable to quantify these potential
benefits, we believe it is reasonable to predict that the improvements
in access to health insurance coverage through Exchanges and the BHP
that will be facilitated by this rule would produce similar positive
impacts to those we have seen with other expansion efforts.
Comment: Many commenters noted that excluding DACA recipients from
definitions of ``lawfully present'' used to determine eligibility for
CMS programs contributed to health disparities. Commenters further
noted that because more than 90 percent of DACA recipients are Latino,
it is likely that the current exclusion of DACA recipients from CMS
definitions of ``lawfully present'' has contributed to
disproportionately high uninsurance rates among Latino individuals.
Specifically, the commenter cited that Latinos have an uninsurance rate
of 18 percent, as compared to 8.4 percent for non-Hispanic whites.
Commenters similarly noted persistent disparities in insurance rates
between immigrants as compared to U.S. citizens. Commenters noted that
while the ACA resulted in larger reductions in the uninsurance rate
among Latinos than among any other racial or ethnic population, that
DACA recipients have been excluded from these gains. Commenters stated
that they expected that this rule would help mitigate these disparities
and increase health equity and economic outcomes in the United States.
One commenter noted that health disparities related to lack of
insurance coverage were highlighted by recent infectious disease
outbreaks including COVID-19 and Mpox. In the context of these
outbreaks, lack of insurance often resulted in delays in seeking care,
which can exacerbate outbreaks and hobble response efforts.
Response: We appreciate commenters' assessments of the ways the
current exclusion of DACA recipients from definitions of ``lawfully
present'' can contribute to health disparities, particularly for and
within the Latino population. Studies have long demonstrated the impact
of health coverage on health outcomes,<SUP>60 61 62 63 64</SUP> and the
negative health consequences of even relatively short gaps in
coverage.\65\ Moreover, DACA recipients, with an uninsurance rate of 27
percent, are more than three times more likely to be uninsured than the
general U.S. population, which had a national uninsured rate of 7.7
percent.<SUP>66 67</SUP>
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\60\ Institute of Medicine (U.S.) Committee on Health Insurance
Status and Its Consequences. (2009). America's uninsured crisis:
Consequences for health and health care. <a href="https://www.ncbi.nlm.nih.gov/books/NBK214966/">https://www.ncbi.nlm.nih.gov/books/NBK214966/</a> National Academies Press.
\61\ Barker AR, Li L. The cumulative impact of health insurance
on health status. Health Serv Res. 2020 Oct;55 Suppl 2(Suppl 2):815-
822. doi: 10.1111/1475-6773.13325.
\62\ American Hospital Association. Report: The Importance of
Health Coverage. https://www.aha.org/guidesreports/report-
importance-health-
coverage#:~:text=Impact%20of%20Coverage&text=Studies%20confirm%20that
%20coverage%20improves,on%20individuals%2C%20families%20and%20communi
ties.
\63\ Woolhandler S, Himmelstein, D. 2017, Sept. The Relationship
of Health Insurance and Mortality: Is Lack of Insurance Deadly?
Annals of Internal Medicine. <a href="https://doi.org/10.7326/M17-1403">https://doi.org/10.7326/M17-1403</a>.
\64\ Kaiser Family Foundation. Key Facts About the Uninsured
Population. (2023). <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>.
\65\ Gabrielle H, Amber G, Dmitry T. 2022; 25:3, 399-406. Short-
and Long-Term Health Consequences of Gaps in Health Insurance
Coverage among Young Adults. Population Health Management. doi:
10.1089/pop.2021.0211.
\66\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (2023). <a href="https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf">https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf</a>.
\67\ U.S. Department of Health and Human Services. New HHS
Report Shows National Uninsured Rate Reached All-Time Low in 2023
After Record-Breaking ACA Enrollment Period (2023). <a href="https://www.hhs.gov/about/news/2023/08/03/new-hhs-report-shows-national-uninsured-rate-reached-all-time-low-2023-after-record-breaking-aca-enrollment-period.html">https://www.hhs.gov/about/news/2023/08/03/new-hhs-report-shows-national-uninsured-rate-reached-all-time-low-2023-after-record-breaking-aca-enrollment-period.html</a>.
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By including DACA recipients in the definition of ``lawfully
present'' for the purposes of eligibility for health insurance through
an Exchange or a BHP, we anticipate DACA recipients will have improved
access to coverage through a QHP or BHP which should, in turn, improve
consumers' ability to access a range of important health services,
thereby improving health outcomes and reducing health disparities for
this population.
Comment: Some commenters noted that while DACA recipients who are
uninsured face barriers to accessing care that are similar to other
uninsured individuals, DACA recipients face additional barriers due to
concern that using health care services could negatively affect their
own or their family's immigration status. Commenters cited a survey
conducted in 2022 that found that nearly half (48 percent) of DACA
recipient respondents reported delaying getting needed medical care
because of their immigration status. One commenter stated that over 20
percent of DACA recipients were concerned that using health care
services would negatively affect their or their family members'
immigration status.
One commenter cited polling conducted in 2018 that found one in
four Latino voters surveyed (24 percent) had a close family member or
friend delay or avoid health care because of fear related to
immigration policies, and one in five (19 percent) stated the same
about reproductive health care.
Some commenters urged CMS to clarify in this rule and in outreach
and education materials that accessing the programs discussed in this
rule does not make someone a public charge.
Response: We recognize that some previous governmental policies may
have caused people to not seek certain benefits. We note, however, that
the DHS public charge policy has now been significantly changed with
the publication of the 2022 Public Charge final rule (87 FR 55472).
DHS' public charge policy from 2019 (84 FR 41292) has been vacated and
is no longer in effect. When developing outreach and education
materials related to this rule, we are committed to including content
making it clear to DACA recipients and other noncitizens that accessing
coverage through an Exchange or a BHP will not impact their grant of
DACA, immigration status, or their future ability to adjust their
status. Enrolling in
[[Page 39405]]
health insurance through the Exchanges, receipt of APTC or PTC, and
CSRs are not considered in a public charge determination in any
circumstance.
Comment: One commenter noted that the provisions in this rule will
expand access to care for those DACA recipients who may be victims of
child abuse, domestic violence, sexual assault, and human trafficking.
The commenter noted that DACA recipients who are survivors of family
violence and sexual assault may qualify for certain types of
immigration relief as survivors of crime and abuse, and that ensuring
that these individuals have access to health care providers who can
screen for such abuse is critical for both their health and wellbeing
and for ensuring that they have access to appropriate immigration
relief.
Response: We appreciate this commenter's illustration of how access
to health insurance coverage through an Exchange or a BHP may help
ensure that DACA recipients and other impacted noncitizens who may have
been victims of child abuse, domestic violence, sexual assault, and
human trafficking are able to access the immigration benefits for which
they may be eligible. We agree that this is yet another illustration
supporting the goal of ensuring access to health insurance coverage and
health care through an Exchange or a BHP for the underserved and
vulnerable noncitizen populations.
Comment: One commenter noted that despite recent expansions of
health insurance coverage, low-income Americans still have poor life
expectancy outcomes.
Response: We do not agree that disparities in life expectancy rates
between low-income and high-income Americans demonstrate that
increasing access to health insurance coverage is not a worthwhile
endeavor, or that it does not improve health outcomes for low-income
populations. On the contrary, as other commenters have pointed out,
increasing access to health insurance coverage is associated with
improved health outcomes at both the individual and population levels.
Preventive Care
Comment: Many commenters stated that allowing DACA recipients to
access QHPs, Medicaid, and CHIP would improve access to preventive
care. Commenters noted that QHPs are required to cover certain
essential health benefits, which include preventive services such as
maternity and newborn care, contraception, and certain cancer
screenings. Commenters cited studies finding that insured individuals
are more likely to access preventive care for major health conditions
and chronic diseases, including cancer.
One commenter noted that while DACA recipients may be able to
access certain safety-net health care providers if they do not have
insurance, expanding access to comprehensive health insurance coverage
will result in better individual and community health outcomes.
Commenters further noted that many of the safety net providers that
uninsured DACA recipients may rely on often have limited resources and
capacity.
Response: We appreciate commenters' detailed analysis of the many
ways in which this rule will, by increasing access to health insurance
through an Exchange or a BHP, improve impacted noncitizens' ability to
access critical preventive care. We agree with commenters' perspectives
that having health insurance coverage should improve consumers' ability
to access a range of important health services and, in turn, improve
health outcomes and reduce health disparities for this population.
While we acknowledge that some of the studies that commenters cited
referred specifically to the benefits of Medicaid coverage, many of the
studies cited pertained to the benefits of QHP coverage or health
insurance coverage more generally, and we expect that this rule will
result in increased access to preventive care for DACA recipients and
other impacted noncitizens through Exchanges and the BHP. Comments
pertaining to the potential health benefits of Medicaid and CHIP
coverage specifically will be addressed in future rulemaking.
We also appreciate commenters' illustration of how lack of access
to preventive care can increase strain on the health care system. While
safety net providers are an important source of care for uninsured
individuals, helping more people access coverage that enables them to
utilize a fuller range of providers both improves health outcomes and
reduces the strain on safety-net provider resources.
Comment: Some commenters stated that the provisions in this rule
will expand access to sexual and reproductive health care and women's
health care services for DACA recipients. Commenters noted that the
need for such services is high among DACA recipients, 53 percent of
whom are women and the majority of whom are of reproductive age.
Commenters detailed gaps in access to sexual and reproductive health
care for noncitizens; one commenter cited a study that found that one
in five noncitizens had not seen sexual and reproductive health
services provider in the past year and that 30 percent had not had a
Papanicolaou (Pap) test in the past 3 years. One commenter noted that
uninsured pregnant individuals receive fewer prenatal care visits and
have increased rates of harmful maternal and fetal outcomes.
A few commenters noted that women who are immigrants experience
higher breast and cervical cancer incidence and mortality rates and
lower screening rates compared to U.S.-born women, and that lack of
health insurance coverage is associated with more advanced-stage cancer
diagnoses. Commenters stated that they expected this rule would help
mitigate existing racial and ethnic disparities related to sexual and
reproductive health care outcomes.
A few commenters further noted that QHPs are required to cover a
range of sexual and reproductive health care services without cost-
sharing, including well-woman visits, contraceptive services, and
breast and cervical cancer screenings.
A few commenters noted the importance of expanding access to sexual
and reproductive health care services in light of the Supreme Court's
ruling in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215
(2022), which overturned Roe v. Wade, 410 U.S. 113 (1973) and Planned
Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992).
One commenter noted that in 2022, nearly 40 percent of the Latina women
who lived in States that were likely to ban abortion were born outside
of the United States, and that this group likely includes many DACA
recipients.
Response: We acknowledge commenters' notes on the importance of
expanding access to sexual and reproductive health care services, and
we agree that it is critically important to close gaps in access to
insurance coverage and care and to drive down existing disparities in
sexual and reproductive health and improve maternal and child health
outcomes.
We agree with commenters' perspectives that insurance coverage
provides enrollees with access to a range of reproductive health
services to the benefit of their own and their families' health and
financial security. We believe this rule will result in increased
access to sexual and reproductive health care for previously uninsured
DACA recipients and other impacted noncitizens by increasing coverage
through Exchanges and the BHP.
Comment: Some commenters noted that the rule would meaningfully
expand access to mental and behavioral
[[Page 39406]]
health care services for DACA recipients. Commenters stated that the
need for mental health care services is high among DACA recipients, who
may experience feelings of depression, anxiety, and fear related to the
future of their immigration status. Commenters cited a 2022 survey in
which 48 percent of DACA recipient respondents indicated they were not
receiving any health care services for their mental or behavioral
health issues. Commenters stated that expanding access to health
insurance coverage for DACA recipients would likely improve DACA
recipients' mental and behavioral health outcomes. One nonprofit
organization noted that access to behavioral health services is
protective against intimate partner violence, child abuse and neglect,
and suicidality. Another commenter mentioned that a 2022 survey found
that half of DACA recipients who were uninsured wanted to access mental
health services but were not doing so because of the associated cost.
Response: We appreciate commenters' description of the many ways in
which allowing DACA recipients and other impacted noncitizens to access
health insurance is expected to promote access to mental and behavioral
health care services and to improve health care outcomes. We expect
that this rule will result in increased access to mental and behavioral
health services for DACA recipients and other impacted noncitizens by
increasing coverage through Exchanges and the BHP.
Emergency Care
Comment: Several commenters suggested that the final rule will help
shift health care visits made by noncitizens from emergency department
(ED) care to preventive care. Commenters noted that uninsured
individuals may delay or avoid seeking vital care, which can result in
needing to utilize a hospital ED. Commenters further noted that
uninsured individuals are more likely to seek care both non-emergency
care and emergency care in a hospital ED, where they often receive more
costly care, fewer services, and have higher mortality rates compared
to individuals with insurance or individuals who routinely seek
preventive care. Additionally, commenters noted that routine ED visits
have the potential to divert resources from patients with more urgent
health needs. A few commenters noted that visits to the ED by uninsured
individuals are often more costly than preventive care visits and
institutions often absorb the cost for uninsured individuals.
Commenters suggested that by providing DACA recipients with more health
insurance options, ED costs can shift from institutions to insured
individuals, which can ultimately reduce costs to taxpayers. Commenters
expressed their belief that expanding coverage to DACA recipients would
promote a more efficient health care system. Commenters further
suggested that the proposed rule would help decrease the amount of
uncompensated care that EDs provide and would help maintain the
emergency care safety net by mitigating existing financial risks. One
commenter noted that emergency care providers face unique costs related
to staffing EDs 24 hours per day, 7 days per week. The commenter
further stated that by lessening barriers to enrollment in health
insurance programs, uncompensated care costs could decline, leading to
better financial sustainability for emergency care safety net
providers.
Response: We appreciate commenters' analysis of the many ways in
which this rule will shift the opportunity for impacted noncitizens to
seek health care from EDs to more comprehensive health care that
includes preventive care. Uninsured populations are more likely than
those who are insured to postpone seeking care due to cost, which can
increase the complexity and cost of care that they eventually
require.\68\ We agree with commenters' analysis that emergency care
tends to be more costly and complex and that this rule could help
decrease the amount of uncompensated care that EDs provide which could
lead to better financial sustainability for emergency care safety net
providers.<SUP>69 70</SUP>
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\68\ Kaiser Family Foundation. Key Facts About the Uninsured
Population (2023) <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>.
\69\ United Health Group. 18 Million Avoidable Hospital
Emergency Department Visits Add $32 Billion in Costs to the Health
Care System Each Year. (2019) <a href="https://www.unitedhealthgroup.com/content/dam/UHG/PDF/2019/UHG-Avoidable-ED-Visits.pdf">https://www.unitedhealthgroup.com/content/dam/UHG/PDF/2019/UHG-Avoidable-ED-Visits.pdf</a>.
\70\ Center on Budget and Policy Priorities. Uncompensated Care
Costs Fell in Nearly Every State as ACA's Major Coverage Provisions
Took Effect. (2018) <a href="https://www.cbpp.org/research/health/uncompensated-care-costs-fell-in-nearly-every-state-as-acas-major-coverage">https://www.cbpp.org/research/health/uncompensated-care-costs-fell-in-nearly-every-state-as-acas-major-coverage</a>.
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We agree with commenters who pointed out that uninsured individuals
might delay seeking vital care, which can result in ED use. We are
hopeful that expanding access to QHPs and the BHP to previously
uninsured DACA recipients and other impacted noncitizens may similarly
drive down emergency department use. As noted by commenters, we believe
this rule could promote a lower cost and more efficient health care
system by reducing high-cost emergency care, increasing lower-cost
preventive care, and ultimately decreasing the number of DACA
recipients and other impacted noncitizens who qualify only for the
treatment of an emergency medical condition under Medicaid due to their
immigration status, rather than more comprehensive coverage that may be
available through the Exchange or a BHP.
After thorough consideration of public comments, we are finalizing
the inclusion of DACA recipients in the definition of ``lawfully
present'' at 45 CFR 155.20(9) as proposed.
Out of Scope
Comment: Several commenters stated general opposition to the
current administration for its handling of both immigration and health
care policy and reform, but without referring to the proposed rule at
all. Some commenters stated direct opposition to specific political
parties, and some stated they believe that this rule is a political
maneuver to garner votes.
Response: We appreciate these comments but note that these comments
are out of scope as related to the provisions laid out in this rule and
no response is required.
Comment: Some commenters shared perspectives on DACA recipients'
contributions to the workforce and economy and requests to create
pathways for citizenship.
Response: We appreciate these comments. This rule does not address
the DACA policy itself, only the eligibility of DACA recipients for
coverage under an Exchange or BHP. While these comments are related to
the DACA policy broadly, they do not seek to support or change specific
provisions set forth in the proposed rule and no response is required.
Comment: Multiple commenters shared the challenges they faced
seeking affordable health insurance, including as small business owners
or low-income families, without referring to the substance of this
rulemaking. Many commenters proposed other changes to the United States
health care system or to other benefit programs such as the
Supplemental Nutrition Assistance Program (SNAP).
Response: We appreciate these comments and note commenter concerns
and requests, but these topics are out of scope for this final rule.
Comment: One public health system provider stated that they
supported the rule's measures to enhance consumer protections, such as
establishing an appeals process and extending the grace period for
premium payments,
[[Page 39407]]
safeguarding the rights of consumers who face unforeseen circumstances.
Response: We appreciate this comment but there were no specific
proposals about an appeals process, grace periods for premium payments,
or rights of consumers in unforeseen circumstances, so the comment is
outside the scope of this rulemaking and no response is required.
2. Other Changes to the ``Lawfully Present'' Definition
In addition to including DACA recipients in the definition of
``lawfully present'' for the purposes of eligibility to enroll in a QHP
through an Exchange and a BHP, we proposed 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 proposed 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 PRWORA at 8 U.S.C. 1641, are
lawfully present. Throughout the proposed definition at 45 CFR 155.20,
we proposed 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 proposed 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 noted in the preamble of the proposed rule 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, were
not considered qualified noncitizens because the statutory provision at
8 U.S.C. 1641(b)(8) making such individuals qualified noncitizens only
applied with respect to the Medicaid program (88 FR 25317). Instead,
COFA migrants were considered lawfully present under a different
category, 45 CFR 152.2(2), that applied to noncitizens in a valid
nonimmigrant status. After the proposed rule was issued, the Congress
amended 8 U.S.C. 1641(b)(8) to eliminate the language restricting COFA
migrants as qualified noncitizens only for purposes of the Medicaid
program. The CAA, 2024,\71\ effective March 9, 2024, recognizes that
COFA migrants would be qualified noncitizens, and, therefore, lawfully
present for the purposes of our regulation as qualified noncitizens at
45 CFR 152.2(1). COFA migrants will be considered lawfully present
based on both sections 155.20(1) and 155.20(2) of this final rule.
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\71\ Div G, Title II, sec. 209(f), Public Law 118-42 (March 9,
2024).
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In section II.D.2 of the proposed rule, we discussed whether to
provide a more detailed definition of ``qualified noncitizen'' at 42
CFR 435.4. Pending such comments, and to ensure alignment across our
programs, we proposed 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.
We received public comments on this proposal. The following is a
summary of the comments we received and our responses.
Comment: Commenters supported this proposal, noting that it aligned
with CMS' effort to replace instances of ``alien'' in its current
regulatory definition of ``lawfully present'' with ``noncitizen.''
Response: We appreciate commenters' support for this proposal and
note that no comments opposed this proposal. We understand that the
term ``alien'' is outdated and has been ascribed with a negative,
dehumanizing connotation, and we agree with commenters that the
proposal to cross-reference the definition of ``qualified noncitizen''
at 42 CFR 435.4 aligns with our efforts to replace the term ``alien''
with ``noncitizen'' in our regulations. This is also consistent with
DHS' replacement of the term ``alien'' with ``noncitizen'' wherever
possible. Given that we are finalizing a more detailed definition of
``qualified noncitizen'' at 42 CFR 435.4, CMS also believes that
providing this cross-reference helps to promote transparency and
maintain consistency across programs.
Comment: One commenter noted that they supported cross-referencing
to DHS regulations to the extent that it clarifies definitions and
verifications but did not support cross-referencing if there is
potential that the cross-reference changes the HHS definition of
``lawfully present.'' The commenter stated that it should be made clear
in any phrasing surrounding the cross-reference that DHS defines and
regulates immigration statuses, which HHS uses and references, but that
``lawful presence'' for the purpose of HHS regulation is determined by
HHS, not DHS.
Response: We generally agree with the commenter. We wish to clarify
that we are not cross-referencing DHS' definition of ``lawfully
present'' at 8 CFR 1.3 in the final rule. After considering public
comments, we are adopting our own regulatory definition of ``lawfully
present'' for purposes of eligibility to enroll in a QHP through an
Exchange and the BHP.
After consideration of public comments, we are finalizing 45 CFR
155.20(1), which cross-references the definition of ``qualified
noncitizen'' at 42 CFR 435.4, as proposed.
In the current definition of ``lawfully present'' at 45 CFR 152.2,
we include 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 the
proposed rule, we proposed, in paragraph (2) of 45 CFR 155.20, to
modify this language such that a noncitizen in a valid nonimmigrant
status would be deemed lawfully present. We noted that determining
whether an individual has violated the terms of their status is a
responsibility of DHS, not CMS or States. Accordingly, as proposed, the
change would ensure coverage of noncitizens in a nonimmigrant status
that has not expired, as long as DHS has not determined those
noncitizens have violated their status.
Under the proposed change, Exchanges and BHPs would continue to
submit requests to verify an applicant's nonimmigrant status through a
data match with DHS via the Hub using DHS' Systematic Alien
Verification for Entitlements (SAVE) system. If SAVE indicated that the
applicant did not have an eligible immigration status, the applicant
would not be eligible for coverage. This modification will simplify the
eligibility verification process, so that a nonimmigrant's immigration
status can be verified solely using the existing SAVE process, which
can often provide verification in real time when an application is
submitted and reduce the number of individuals for whom an Exchange or
a BHP may need to request additional information. We note that 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 complexities of the various immigration statuses and
regulations.
We received public comments on this proposal. The following is a
summary of
[[Page 39408]]
the comments we received and our responses.
Comment: We received several comments in support of this change,
with commenters noting that the existing language regarding whether a
nonimmigrant has violated the terms of their status is confusing and
that the changes proposed to this regulation will promote efficiency
and consistency in eligibility determinations and verification
processes. Commenters further noted that this would clarify that an
individual's nonimmigrant status can be verified through DHS SAVE,
streamlining eligibility verification processes and promoting program
administration and integrity through alignment with DHS processes.
Response: We appreciate commenters' perspectives on this proposal
and agree that the wording changes will promote more efficient and
consistent eligibility determinations.
Comment: One commenter noted that CMS' proposal to adjust the
language regarding nonimmigrant visa-holders to remove language
relating to nonimmigrants not having violated the terms of their status
would streamline eligibility determinations and verifications for COFA
migrants who are otherwise eligible for Exchange coverage. Commenters
stated that they supported proposed changes that would enable migrants
under the COFA who are lawfully present as ``nonimmigrants'' to enroll
in Exchange coverage.
Response: We appreciate commenters' feedback on how this change may
streamline immigration status verifications and benefit eligibility
determinations for COFA migrants, who are and will continue to be
considered ``lawfully present'' for purposes of health insurance
coverage through an Exchange or a BHP as addressed in this rule, as
COFA migrants are nonimmigrants under current regulations at 42 CFR
152.2(2), and are both qualified noncitizens and nonimmigrants under
the provisions finalized in this rule at 45 CFR 155.20(1) and (2),
respectively. We agree that the change to remove language regarding
whether a nonimmigrant has violated the terms of their status will
streamline the eligibility and enrollment process for COFA migrants and
other nonimmigrants, increasing access to health insurance through an
Exchange or a BHP.
We wish to further clarify that under our existing regulations,
COFA migrants are considered ``lawfully present'' by virtue of their
nonimmigrant status and are therefore currently eligible to enroll in a
QHP or BHP. While the changes in this rule may provide additional
clarity for COFA migrants and streamline the ability of CMS to verify
their immigration status and determine benefit eligibility, nothing in
this rule changes whether COFA migrants are considered eligible for the
insurance affordability programs addressed in this rule.
After consideration of public comments, we are finalizing 45 CFR
155.20(2), pertaining to noncitizens in a valid nonimmigrant status, as
proposed.
We proposed 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) of 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 proposed 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) of 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.
We did not receive public comments on these provisions, and
therefore, we are finalizing 45 CFR 155.20(4) and 45 CFR 155.20(5) as
proposed.
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
proposed to cross reference 8 CFR 274a.12(c) in its entirety to
simplify the regulatory definition and verification process. We
proposed this modification to the regulatory text to include all
noncitizens who have been granted employment authorization 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 category, an application for such
status or other immigration relief, or other basis. Almost all
noncitizens granted employment authorization under 8 CFR 274a.12(c) are
already considered lawfully present under existing regulations, either
in paragraph (4)(iii) of the definition at 45 CFR 152.2 or within 45
CFR 152.2 more broadly. We noted in the proposed rule that this
modification would add 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
categories act as a ``bridge'' to allow these noncitizens to maintain
employment 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
employment authorization under 8 CFR 274a.12(c) is beneficial because
Exchanges and BHPs can verify that an individual has been granted
employment authorization 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 will help to streamline and
expedite verification of status for individuals who have been granted
employment authorization under this regulatory provision.
Further, to reduce duplication and confusion, we proposed to remove
the clause currently in paragraph (4)(ii) of the definition at 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 received public comments on this proposal. The following is a
summary of the comments we received and our responses.
Comment: We received several comments in support of this change,
with commenters agreeing that all individuals granted employment
authorization under 8 CFR 274a.12(c) should be considered lawfully
present, and that this change should simplify verification of lawful
presence for impacted consumers.
Response: We appreciate commenters' feedback and agree that this
[[Page 39409]]
modification will simplify the agency's benefit eligibility
determinations and verification of lawful presence for individuals
granted employment authorization.
Comment: One commenter encouraged CMS to consider all individuals
who are eligible to apply for employment authorization as ``lawfully
present'' for the purposes of the programs addressed in this rule. The
commenter suggested that a noncitizen's lawful presence should not
depend on whether they have been granted employment authorization, as
eligibility for employment authorization should signify lawful presence
regardless of whether employment authorization has actually been
granted. The commenter noted that considering individuals who are
eligible for employment authorization would reduce administrative
burden on eligibility determination agencies by no longer requiring
agencies to determine whether an individual had applied for employment
authorization and how long their application had been pending. The
commenter noted that the current requirement to obtain employment
authorization imposes burdens on individuals who may not otherwise need
employment authorization, such as children and individuals with
disabilities, who may also face accessibility barriers when applying
for employment authorization. The commenter also pointed out that low-
income noncitizens may not be able to afford the fees required to apply
for and obtain employment authorization, and that the waiting periods
required before certain noncitizens can obtain employment authorization
result in coverage and care delays.
Response: We believe that the authority to determine whether an
individual is eligible to apply for employment authorization rests with
DHS, not CMS, Exchanges, or BHP agencies. We do not believe that it is
appropriate or possible for Exchanges or BHP agencies to evaluate
whether someone may be eligible to apply for employment authorization.
We outline elsewhere in the rule why it is not appropriate for CMS,
Exchanges, or BHP agencies to evaluate whether a nonimmigrant has
violated the terms of their status, and that this is within DHS'
purview. We believe that evaluating an individual's eligibility to
apply for employment authorization is similarly within DHS' purview.
Additionally, we do not agree that including individuals who are
eligible to apply for employment authorization, but have not been
granted employment authorization, in our definitions of ``lawfully
present'' would reduce administrative burden. Requestors are not able
to verify through SAVE whether an individual is eligible to apply for
employment authorization in the same way that they can verify that an
individual has been granted employment authorization through the SAVE
system, which can be provided as a real-time step 1 response.
Therefore, verifying that an individual is eligible to apply for
employment authorization would require CMS, Exchanges, and BHP agencies
to develop complex manual processes to evaluate eligibility on this
basis.
Furthermore, while having employment authorization can help
facilitate verification, as we discussed above, virtually all
noncitizens eligible for employment authorization under 8 CFR
274a.12(c) are already lawfully present because of their underlying
immigration category (e.g., deferred action), whether or not they
obtain employment authorization. That underlying category can be
determined for purposes of eligibility for the CMS programs, without
the additional significant complexity of further trying to determine
whether the noncitizen's category authorized them to apply for
employment authorization on a case-by-case basis, and then trying to
verify that. Therefore, this suggestion would add little substantive
value in terms of actual expanded access to these programs, compared to
the significant burden of trying to implement it by revising our
definitions of ``lawfully present'' for purposes of health insurance
through an Exchange or a BHP. While we have the authority to define
``lawfully present'' for the purposes of our programs, we also intend
to codify a definition of ``lawfully present'' that is aligned with
DHS' conceptions of lawful presence as articulated at 8 CFR 1.3 to the
extent practicable and appropriate for our programs, given DHS' deep
expertise in this area.
For these reasons, we are not finalizing a provision to include
individuals who are eligible to apply for employment authorization in
CMS definitions of ``lawfully present.''
Comment: One commenter stated that CMS' proposal ran counter to the
Congress's statutory scheme because the proposal considers noncitizens
who are granted employment authorization under 8 CFR 274a.12(c) to be
``lawfully present.'' The commenter noted that the Congress's
definition of a ``qualified alien'' does not depend on whether an
individual has been granted employment authorization by DHS. The
commenter further noted that a grant of employment authorization does
not confer lawful presence under either the INA or PRWORA, and that
CMS' proposal is therefore contrary to law and should be withdrawn.
Response: As previously stated, we are required under the ACA to
consider individuals who are ``lawfully present'' as eligible to enroll
in a QHP or a BHP, and the ACA, like the INA and PRWORA, does not
provide a definition of ``lawfully present.''
We agree that a grant of employment authorization does not result
in an individual being considered a ``qualified alien'' under 8 U.S.C.
1641(b) or (c). However, we are not proposing in this rule that an
individual should be considered a ``qualified alien'' if they are
granted employment authorization under 8 CFR 274a.12(c). Eligibility
for enrollment in a QHP and for APTC and CSRs as well as BHP does not
depend entirely on whether an individual is a ``qualified alien'' under
PRWORA. This issue is discussed in further detail later in this
section.
We are acting consistent with our statutory authority by codifying
a regulatory definition of ``lawfully present''' for use in determining
eligibility for QHP and BHP coverage. We note that individuals granted
employment authorization under 8 CFR 274a.12(c) are permitted to accept
employment because DHS has determined that the individual has an
immigration status or category that qualifies them for employment
authorization under this subsection. Thus, we believe it is appropriate
to include all individuals with such employment authorization because
DHS has made an affirmative determination that the individual has an
underlying immigration status or category that authorizes them to work
legally in the United States.
After consideration of public comments, we are finalizing the
proposal at 45 CFR 155.20(6) to consider individuals granted employment
authorization under 8 CFR 274a.12(c) as lawfully present, as proposed.
We proposed a minor technical modification to the citation in
paragraph (7) of the definition of ``lawfully present'' to describe
Family Unity beneficiaries more accurately. Family Unity beneficiaries
are individuals who entered the United States, 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.'' \72\
[[Page 39410]]
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 the proposed rule, we
proposed to amend the ``lawfully present'' definition to include
individuals who are granted benefits under section 1504 of the LIFE Act
Amendments for consistency with DHS' policy to consider such
individuals Family Unity beneficiaries.
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\72\ 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> and <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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We did not receive public comments on this provision, and
therefore, we are finalizing 45 CFR 155.20(7) as proposed.
As discussed previously, in paragraph (9) of the proposed
definition of ``lawfully present'' at 45 CFR 155.20, we proposed 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. Please see section II.B.1 for a detailed discussion of the
comments we received on this proposal.
In paragraph (10) of the proposed definition of ``lawfully
present'' at 45 CFR 155.20, we proposed to clarify that individuals
with a pending application for adjustment of status to LPR are not
required to have an approved immigrant visa petition to be considered
lawfully present. We proposed 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 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. As proposed, the modification would
simplify verification for these noncitizens, reduce the burden on
States and individual applicants, and align with current DHS
procedures.
We received public comments on this proposal. The following is a
summary of the comments we received and our responses.
Comment: We received several comments in support of this change,
with commenters noting that the existing requirement that individuals
with a pending application for adjustment of status also have an
approved visa petition unnecessarily includes family-based and other
immigrants who are not required to have an approved visa petition when
they apply to adjust their status. Commenters also noted that the
proposed simplification will simplify eligibility verification
processes, reduce administrative burden, and align with DHS procedures.
Response: We agree that the current requirement that individuals
with a pending application for adjustment of status also have an
approved visa petition does not align with DHS policy or practice and
believe that lifting this requirement will simplify verification of
lawful presence for these consumers. We received no comments opposing
this proposal.
After consideration of public comments, we are finalizing 45 CFR
155.20(10) as proposed.
Paragraph (5) of the current definition of ``lawfully present''
pertains to applicants for asylum, withholding of removal, or
protection under the regulations implementing U.S. obligations under
the Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (hereinafter ``CAT''). In the proposed rule, we
proposed 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. We noted that the proposed change was
intended to reduce duplication and would not have a substantive impact
on the definition of ``lawfully present.''
We further proposed to remove the requirement in the current
definition that individuals under age 14 who have filed an application
for asylum, withholding of removal, or protection under CAT 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 employment authorization. We
proposed to change this so that children under 14 are considered
lawfully present without linking their eligibility to the 180-day
waiting period for employment authorization. We noted in the proposed
rule that children under age 14 generally are not permitted to work in
the United States under the Fair Labor Standards Act,\73\ and
therefore, the employment authorization 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
\74\ pending application for asylum or related protection using DHS'
SAVE system. As proposed, the modification captures the same population
of children that was previously covered as lawfully present, without
respect to how long their applications have been pending.
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\73\ See 29 CFR 570.2.
\74\ See 8 U.S.C. 1101(b)(2) (definition of ``parent'').
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We received public comments on this proposal. The following is a
summary of the comments we received and our responses.
Comment: We received several comments in support of this change,
with commenters supporting CMS' proposal to no longer require children
under the age of 14 who are applicants for asylum, withholding of
removal, or protection under CAT, to have had their application pending
for 180 days before they can be considered ``lawfully present'' under
CMS regulations. Commenters agreed with CMS' reasoning that while this
waiting period was initially meant to parallel the amount of time an
applicant must wait before pursuing employment authorization based on a
pending asylum application, the waiting period held little significance
for children who generally are not legally able to work and presented
an unnecessary barrier to health coverage access.
Commenters further cited significant physical and mental health
care needs faced by children seeking asylum or humanitarian protection.
Commenters cited studies finding that as many as 64 percent of child
asylum seekers are
[[Page 39411]]
diagnosed with post-traumatic stress disorder (PTSD), as many as 75
percent of child asylum applicants are suspected or diagnosed to have
at least one significant mental health diagnosis, and children seeking
asylum experience delays in obtaining basic preventive medical care
like vaccines.
Response: We agree with commenters that, in the context of
eligibility for Exchange and BHP coverage, the 180-day waiting period
for individuals who are lawfully present based on an application for
asylum, withholding of removal, or protection under CAT, is not
significant for children under the age of 14 because they would
generally not be permitted to work in the United States. We agree with
commenters that the 180-day waiting period could delay access to health
coverage and care for this population.
Comment: Some commenters further urged CMS to eliminate the
requirement that applicants for asylum, withholding of removal, or
protection under CAT who are age 14 and older obtain employment
authorization to be considered lawfully present. Commenters noted that
these applicants for humanitarian relief often have significant
physical and mental health needs, and that eliminating this requirement
would have a positive impact on access to health care, primarily for
children and pregnant individuals. Commenters noted that this change
could help reduce barriers for individuals who already may have limited
access to Exchange coverage due to requirements to commit to filing a
Federal income tax return and to project their income based on limited
or no work experience.
Response: We understand that some individuals who are age 14 and
older obtain employment authorization for purposes beyond employment,
such as for identification purposes. We are taking more time to
evaluate and consider comments suggesting that the age at which
applicants for these forms of humanitarian protection are required to
have employment authorization be raised or eliminated. Specifically, we
are evaluating the potential impacts of a change to the age 14
requirement--as raised by commenters--on these applicants and on
program integrity. The rulemaking process with regard to that portion
of the proposal is ongoing. As a result, we are not finalizing any
change to the age 14 requirement at this time.
After consideration of public comments, we are finalizing the
proposal at 45 CFR 155.20(12) to no longer require children under the
age of 14 who are applicants for asylum, withholding of removal, or
protection under CAT to have had their application pending for 180 days
before they can be considered ``lawfully present,'' as proposed.
In paragraph (13) of the proposed definition of ``lawfully
present'' at 45 CFR 155.20, we proposed 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.\75\ Due to high demand for
visas in this category, for many SIJ-classified noncitizens, it can
take several years for a visa number to become available. SIJs are an
extremely vulnerable population and as such, we proposed to close this
unintentional gap so that all children with an approved petition for
SIJ classification are deemed lawfully present.
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\75\ 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 based on a pending
adjustment application (as with other categories of noncitizens
seeking LPR status). The modification we proposed instead 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 or BHP, 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.\76\ 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 proposed
paragraph (9) would cover individuals with approved SIJ petitions who
cannot yet apply for adjustment of status, there may be a small number
of SIJs with approved petitions who have not yet been considered for
deferred action or for whom USCIS has declined to defer action. The
proposed modification to paragraph (13) of the definition of ``lawfully
present'' at 45 CFR 155.20 would capture individuals who have
petitioned for or 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.
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\76\ U.S. Citizenship and Immigration Services. Policy Alert:
Special Immigrant Juvenile Classification and Deferred Action.
(2022). <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220307-SIJAndDeferredAction.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220307-SIJAndDeferredAction.pdf</a>.
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We received public comments on this proposal. The following is a
summary of the comments we received and our responses.
Comment: CMS received several comments in support of this change,
with commenters noting that SIJs are extremely vulnerable children and
that updating this policy will correct the unintentional exclusion of
individuals with an approved SIJ petition who have not yet been able to
adjust to lawful permanent resident status and who are not otherwise
covered under CMS definitions of lawfully present. Commenters noted
that these children tend to have profound mental health needs.
Commenters further noted that this change will streamline eligibility
verifications for impacted individuals.
Response: We agree with commenters that the current exclusion of
certain individuals with an approved SIJ petition from our regulatory
definitions is unintentional, and that this change will ensure that
vulnerable children do not face unnecessary barriers to accessing
health insurance coverage.
After consideration of public comments, we are finalizing 45 CFR
155.20(13) as proposed.
We also proposed 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. Public comments on this proposal are discussed earlier in
this section. After consideration of public comments, we are finalizing
these nomenclature changes as proposed.
We received general comments on the clarifications and technical
adjustments to the definition of ``lawfully present'' at 45 CFR 155.20.
The following is a summary of the comments we received and our
response.
Comment: Many commenters stated general support for CMS' proposals
to make technical corrections further clarifying the definition of
``lawfully present'' for other noncitizens, for purposes of these
programs.
[[Page 39412]]
Commenters stated that the proposed technical changes would decrease
operational burden on CMS programs. Commenters noted that these changes
would be easier for noncitizen consumers to understand and would also
make it easier for individuals and entities conducting outreach and
enrollment assistance to assist immigrant consumers.
Response: We appreciate commenters' support for making technical
clarifications to our definition of ``lawfully present.'' We agree that
these changes will result in simplifications to lawful presence
verification operations that will have a positive impact on Exchanges,
BHP agencies, and consumers. We also believe that these new policies
will be easier for both consumers and consumer advocates to navigate,
and we are committed to providing high-quality education and technical
assistance on the policy changes in this rule for the many interested
parties who assist immigrant communities with health coverage
enrollment. We intend to begin providing such education and technical
assistance after the publication date of this rule, in advance of the
rule's November 1, 2024 effective date.
We received several comments recommending additional modifications
or clarifications to the definition of ``lawfully present'' in this
rule. The following is a summary of the comments we received and our
responses.
Comment: One commenter recommended that CMS expand access to other
noncitizen populations, such as nonelderly nonimmigrants, who make up
one third of the nation's projected uninsured.
Response: Our proposed definition of ``lawfully present'' included
all nonimmigrants in a valid status or category regardless of age.
These individuals would be eligible for Exchange or BHP coverage if
they meet all other eligibility requirements for these programs.
Comment: One commenter noted that immigrant crime victims who are
permanently residing under color of law (PRUCOL) should be considered
lawfully present and have the same extended ACA coverage.
Response: Victims of qualifying crimes and certain family members
who have been granted U nonimmigrant status under 8 U.S.C.
1101(a)(15)(U) \77\ are already considered to be lawfully present for
HHS insurance affordability programs as nonimmigrants. The
classification of PRUCOL--describing any noncitizen living in the
United States with the knowledge and consent of DHS, and whose
departure DHS does not contemplate enforcing--is not used under the
current law. Noncitizens under PRUCOL were previously eligible for
certain public benefits, such as Medicaid, if they met all other
eligibility requirements in the State plan. However, the PRWORA further
limited eligibility so that noncitizens and individuals under PRUCOL
could no longer be eligible for such benefits. Such individuals are not
considered to be ``lawfully present'' under HHS health programs, unless
they have another immigration status that is considered to be
``lawfully present.'' Unlike the other categories of lawful presence
discussed in this rule, PRUCOL is not an immigration classification
recognized or verifiable by DHS, or otherwise supported by current
Federal law. We are not expanding the definition of lawful presence to
include PRUCOL in this final rule.
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\77\ Victims of Trafficking and Violence Protection Act of 2000,
div. B., Violence Against Women Act of 2000 (VTVPA 2000), tit. V,
Battered Immigrant Women Protection Act of 2000, Public Law 106-386,
sec. 1513, 114 Stat. 1464, 1533-37 (2000), amended by Violence
Against Women Department of Justice Reauthorization Act of 2005,
tit. VIII, Public Law 109-162, 119 Stat. 2960 (Jan. 5, 2006),
amended by Violence Against Women and Department of Justice
Reauthorization Act--Technical Corrections, Public Law 109-271, 120
Stat. 750 (Aug. 12, 2006), amended by TVPRA 2008, Public Law 110-
147, 122 Stat. 5044 (Dec. 23, 2008), amended by VAWA 2013, Public
Law 113-4, 127 Stat. 110, 111-118, 140, 144, 156-159 (Mar. 7, 2013).
---------------------------------------------------------------------------
Comment: One commenter encouraged CMS to amend the proposed
definitions of ``lawfully present'' to consider individuals who have
petitioned for a U visa as nonimmigrants to be lawfully present. The
commenter noted that the U visa program provides immigration
protections to victims of certain serious crimes, and that victims must
submit a statement from a law enforcement official certifying that they
have been helpful to the investigation of criminal activity to be
eligible. The commenter further noted that there are currently years-
long delays for U visa petitioners to receive visas, employment
authorization, or decisions relating to deferred action, and that these
delays impact both principal U visa petitioners and their children.
The commenter stated that such U visa petitioners are unlikely to
be priorities for immigration enforcement and should therefore be
considered ``lawfully present'' for purposes of the CMS programs
addressed in this rule. The commenter noted that such a modification to
CMS' definitions of ``lawfully present'' would align with Congressional
intent to protect survivors of domestic violence, sexual assault, and
human trafficking as stated in legislation including the Violence
Against Women Act (VAWA), the Family Violence Prevention and Services
Act (FVPSA) and the Victims of Crime Act (VOCA).
The commenter further detailed the severe physical and mental
health needs of U visa petitioners, who are likely to be survivors of
domestic violence, sexual assault, human trafficking, and other forms
of gender-based violence. The commenter cited adverse physical health
effects of abuse including chronic pain, migraines and frequent
headaches, sexually transmitted infections, and stomach ulcers. The
commenter also noted that survivors of domestic and sexual violence
tend to face chronic health issues including depression, alcohol and
substance abuse, and HIV/AIDS, which can limit the ability of survivors
to manage other chronic conditions like diabetes or hypertension. Given
that U visa petitioners are likely to have many severe and complex
health needs, the commenter stated that it is particularly important to
ensure that this population has access to health insurance coverage.
Response: We appreciate commenters' concern for U nonimmigrant
status petitioners, and we recognize that such petitioners are a
vulnerable population often with profound health care needs. Generally,
applicants and petitioners for statuses or categories who do not have
an underlying approved status or category are not considered to be
lawfully present, except in very limited circumstances. We note that
once an individual has deferred action, including under DHS policy or
regulations providing deferred action to certain U nonimmigrant status
petitioners in the United States with a pending bona fide petition,\78\
has been placed on the U nonimmigrant status waiting list,\79\ or has U
nonimmigrant status, they are considered lawfully present under the
deferred action or valid nonimmigrant part of the definition of
``lawfully present'' at paragraphs (9) and (2), respectively.
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\78\ USCIS Policy Manual, Vol. 3, Part C, Chap. 5, available at
<a href="https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5">https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5</a> (last
visited July 27, 2023).
\79\ 8 CFR 214.14(d)(2).
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Comment: One commenter urged HHS to consider expanding its
definition of ``lawfully present'' to include all individuals
regardless of their immigration status. The commenter noted that
undocumented immigrants are typically barred from accessing
[[Page 39413]]
health coverage and health care despite performing essential jobs and
services in their communities.
Response: The ACA states that if an individual is not considered
``lawfully present,'' the individual will not be treated as a qualified
individual and may not be covered under a QHP. We believe that
including all individuals regardless of their immigration status in the
definition of ``lawfully present'' is beyond our regulatory authority
without further legislative clarification.
Comment: A few commenters encouraged CMS to include language in the
final rule, or to release additional guidance, that supports States
that are interested in pursuing section 1332 waivers to allow
individuals who are not ``lawfully present'' to enroll in Exchange
coverage or a BHP and access State-funded subsidies. Commenters noted
that thus far only Washington State has pursued a section 1332 waiver
to waive section 1312(f)(3) of the ACA to the extent it would otherwise
require excluding certain State residents from enrolling in QHPs and
qualified dental plans (QDPs) through the State Exchange and that other
States may be interested in adopting similar policies.
Response: We appreciate the commenters' suggestions regarding
section 1332 waivers and will consider releasing additional guidance on
the subject in the future. We note that BHP-eligible individuals must
be lawfully present in the United States under section 1331(e)(1) of
the ACA. Therefore, BHP Trust Funds may not be used toward BHP coverage
for individuals who are not lawfully present. Additionally, section
1331(e)(1) of the ACA is not a waivable provision under section
1332(a)(2) of the ACA, and BHP Trust Funds may not be used to finance
activities under a section 1332 waiver. We note, however, that there is
no prohibition on using section 1332 waiver pass-through funding to
fund State affordability programs (such as State subsidies) under the
waiver plan for health insurance coverage for individuals not lawfully
present, so long as the waiver plan meets the section 1332 statutory
guardrails and other applicable requirements.
Comment: One commenter stated that premium tax credits and cost-
sharing reductions to lower the cost of a QHP purchased through an
Exchange constitute a ``Federal public benefit'' under PRWORA, and that
such financial assistance may only be made available to individuals who
are ``qualified aliens'' as defined under PRWORA.
Response: We do not believe PRWORA's restriction on ``Federal
public benefits'' to ``qualified aliens'' at 8 U.S.C. 1611(a) applies
to the ACA. The ACA, enacted after PRWORA, directly addresses the
question of which noncitizens are entitled to benefits or subsidies,
and it does so through a framework that irreconcilably conflicts with
the earlier statute's approach. In particular, the ACA restricts
benefits and subsidies to noncitizens who are ``lawfully present''--a
group that is, and was understood to be, more expansive than the group
of ``qualified aliens.'' The specific approach that the Congress chose
to apply to the particular benefits and subsidies created by the ACA
overtakes the broader approach to ``public benefits'' in general in the
earlier-enacted PRWORA.
The ACA departed from PRWORA's restriction that only ``qualified
aliens'' could receive covered benefits. Instead, in multiple
provisions related to Exchanges, the Congress allowed various benefits
or subsidies for individuals who were ``lawfully present in the United
States.'' \80\ In fact, the ``lawfully present'' language is similar to
the exceptions that the Congress used in 8 U.S.C. 1611(b)(2), (3), and
(4) to permit certain non-qualified aliens to obtain Social Security,
Medicare, and Railroad Retirement benefits.
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\80\ See 42 U.S.C. 18001(d)(1), 18032(f)(3), 18071(e),
18081(a)(1), and 18082(d).
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The ACA did not expressly define ``lawfully present,'' but the
legislative history supports that the ACA Exchanges and subsidies were
intended to allow immigrants who are lawfully present in the United
States, who are otherwise ineligible for Medicaid, to be eligible to
receive tax credits and purchase coverage through Exchanges.\81\ In
particular, the Congress was aware of the intersection and intended to
depart from the PRWORA framework when enacting the ACA. The
Congressional Research Service (CRS) has recognized that the ``lawful
presence'' framework the Congress adopted in the ACA irreconcilably
conflicts with PRWORA, stating:
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\81\ See 156 Cong. Rec. S2079 (2010) <a href="https://www.congress.gov/crec/2010/03/25/CREC-2010-03-25-senate.pdf">https://www.congress.gov/crec/2010/03/25/CREC-2010-03-25-senate.pdf</a>.
It is rather clear, for instance, that PRWORA does not restrict
alien eligibility for the health benefits authorized in the Patient
Protection and Affordable Care Act (ACA) of 2010. The ACA does not
override PRWORA expressly but does extend eligibility to ``lawfully
present'' aliens, a more expansive category than ``qualified
aliens'' under PRWORA.\82\
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\82\ See CRS Report R46510, PRWORA's Restrictions on Noncitizen
Eligibility for Federal Public Benefits: Legal Issues, by Ben
Harrington (Sept. 3, 2020) <a href="https://crsreports.congress.gov/product/pdf/R/R46510">https://crsreports.congress.gov/product/pdf/R/R46510</a>.
In a separate report, the CRS identified the ACA as an example of
the establishment of ``clear rules for alien eligibility in the new
legislation that conflict irreconcilably with PRWORA.'' \83\
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\83\ CRS Report LSB10526, PRWORA and the CARES Act: What's the
Prospective Power of a ``Notwithstanding'' Clause? by Ben Harrington
(July 27, 2020). <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10526">https://crsreports.congress.gov/product/pdf/LSB/LSB10526</a>.
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The ACA also expressly provides that noncitizens who are lawfully
present but who are ineligible for Medicaid ``by reason of such alien
status'' are considered eligible for PTCs \84\ and CSRs \85\ even if
their household income is below the otherwise applicable threshold of
100 percent of the FPL. This clearly demonstrates that the Congress
intended and understood that the ``lawfully present'' standard
applicable to APTC and CSRs was broader than the ``qualified alien''
standard applicable to Medicaid programs.
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\84\ 26 U.S.C. 36B(c)(1)(B).
\85\ 42 U.S.C. 18071(b)(2).
---------------------------------------------------------------------------
We previously issued regulations defining ``lawfully present'' for
various ACA programs, specifically PCIP, Exchanges, and the BHP, that
differed from the PRWORA restrictions and extended eligibility to a
more expansive category than ``qualified aliens'' under PRWORA. As
previously discussed in this rule, CMS first defined ``lawfully
present'' as an eligibility criterion for purposes of PCIP shortly
after the ACA's enactment, with regulations published in 2010 (75 FR
45013). This definition of ``lawfully present,'' was later applied to
eligibility for other ACA programs; regulations pertaining to Exchanges
were issued in 2012 (77 FR 18309) and regulations pertaining to the BHP
were issued in 2014 (79 FR 14111). In all of these regulations,
consistent with direction from the Congress, CMS provided a definition
of ``lawfully present'' that was more expansive than the definition of
``qualified aliens'' under PRWORA. We are modifying these regulatory
definitions of ``lawfully present'' for Exchanges and the BHP as
described in this final rule.
Comment: One commenter urged HHS to amend its regulatory definition
of ``lawfully present'' for purposes of enrollment in a QHP through an
Exchange, APTC, CSRs, and a BHP to exclude immigrants who do not have
``lawful immigration status'' and who therefore ``may not be reasonably
expected to be lawfully present in the United States for the duration
of enrollment,'' as required by the ACA at 42 U.S.C. 18032(f)(3) and 42
U.S.C. 18071(e)(2). The commenter further
[[Page 39414]]
specified that because recipients of deferred action, TPS, Deferred
Enforced Departure (DED), and parole do not have a legal right to
remain in the United States, CMS does not have a reasonable basis to
assume that such individuals will remain lawfully present for the
duration of their potential enrollment.
One commenter agreed with CMS that ``lawful presence'' is a
statutory term of art that is distinct from ``lawful status,'' and that
it is a statutory prerequisite for receipt of certain benefits. The
commenter suggested that DHS v. Regents found that lawful presence ``is
not the same as forbearance nor does it flow inexorably from
forbearance. Thus, while deferred action recipients have been
designated lawfully present for purposes of Social Security and
Medicare eligibility . . . agencies can also exclude them from this
designation.'' \86\ The commenter stated that because lawful presence
is ``context-dependent'' and ``there is no express definition of
`lawfully present' . . . for all purposes,'' that CMS should exclude
all recipients of deferred action, TPS, and DED from its regulatory
definition of ``lawfully present'' for purposes of ACA benefits
eligibility. The commenter noted that even if such individuals are
considered ``lawfully present'' for other purposes, that the ACA's
requirement that noncitizens be ``reasonably expected'' to be lawfully
present for the duration of their QHP enrollment means that they must
be excluded from the definition of ``lawfully present'' used to
determine eligibility to enroll in a QHP.
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\86\ Dep't of Homeland Sec. v. Regents of the Univ. of
California, 140 S. Ct. 1891, 1911 n.5 (2020).
---------------------------------------------------------------------------
In arguing that TPS recipients cannot be reasonably expected to be
lawfully present for the duration of their QHP enrollment, the
commenter stated that TPS is a form of forbearance from removal
proceedings. The commenter noted that under 8 U.S.C. 1254(a), the
Secretary of Homeland Security is only authorized to designate a
country for TPS for a period of up to 18 months. The commenter noted
that while the Secretary is also authorized to extend a country's TPS
designation, a country's TPS designation could end during the time
period that a TPS recipient is enrolled in a QHP. The commenter further
noted that DHS has authority to rescind prior TPS designations, and
that TPS is not intended to provide long-term or permanent immigration
status. In arguing that deferred action recipients, DED recipients, and
parolees cannot be reasonably expected to be lawfully present for the
duration of their QHP enrollment, the commenter noted that deferred
action, DED, and parole do not provide legal immigration status or a
right to remain in the United States, and such categories may be
revoked or terminated at any time.
The commenter further noted that the INA stipulates that, for
parolees, ``when the purposes of such parole shall . . . have been
served the alien shall forthwith return or be returned to the custody
from which he was paroled and thereafter his case shall continue to be
dealt with in the same manner as that of any other applicant for
admission to the United States.'' \87\ The commenter acknowledged that
the Congress did designate parolees who are paroled for periods of at
least one year as ``qualified aliens'' for purposes of general Federal
public benefits eligibility under 8 U.S.C. 1641(b), but noted that this
standard does not apply to QHP eligibility, as the Congress specified
the ``lawfully present'' standard in the ACA instead.
---------------------------------------------------------------------------
\87\ 8 U.S.C. 1182(a)(5)(A).
---------------------------------------------------------------------------
Response: We do not agree that deferred action, TPS, DED, and
parole recipients cannot reasonably be expected to be lawfully present
in the United States for the duration of enrollment as required by the
ACA. More specifically, we do not agree with the assertion that we must
exclude all recipients of deferred action, TPS, DED, and parole from
our regulatory definition of ``lawfully present'' for purposes of ACA
benefits eligibility to meet the ACA's requirement that individuals
only be considered ``lawfully present'' as long as they are reasonably
expected to be lawfully present for the duration of their enrollment.
Our existing policy and operations, as well as the policies in this
final rule, are in line with the ACA's statutory requirements.
As the commenter indicated, the ACA requires both that individuals
who are lawfully present be considered eligible to enroll in a QHP, and
that individuals only be considered lawfully present if they are
expected to be lawfully present for the duration of enrollment.
As we noted in a 2012 rulemaking (77 FR 18309, 18350), we do not
interpret the ACA's ``reasonably expected'' standard to mean that an
applicant must be lawfully present for an entire coverage year. Rather,
we noted that the lawful presence verification processes would address
whether an applicant's lawful presence is time-limited, and if so, the
Exchange would determine his or her eligibility for the period of time
for which his or her lawful presence has been verified. We have
verification processes in place for applicants whose immigration status
or category is temporary and would be able to terminate enrollment for
consumers in a hypothetical situation where their deferred action, TPS,
DED, or parole designation expired, or was rescinded or terminated.
Thus, Exchanges on the Federal platform currently balance these
statutory directives by considering whether someone is lawfully present
at the time of their application, and by generally requiring applicants
whose immigration status or category is expiring within the next 90
days to submit additional information demonstrating their continuing
lawful presence.
We note that many individuals in these categories have been in the
United States for extended periods of time. For example, TPS recipients
have been in the United States for 20 years, on average; we would be
incorrect to assert that a TPS recipient was not ``reasonably
expected'' to remain lawfully present during their Exchange enrollment
solely on the basis of their receipt of TPS.\88\ We also clarify that
the Supreme Court in DHS v. Regents in no way suggested that agencies
could not consider deferred action recipients to be ``lawfully
present.'' \89\ We note that we have considered recipients of deferred
action under policies other than DACA--including TPS, DED, and parole--
to be ``lawfully present'' for purposes of eligibility for Exchange
coverage since 2012 (77 FR 18309). For the reasons discussed here, we
do not believe it is necessary or appropriate to exclude recipients of
deferred action, TPS, DED, and parole from our definitions of
``lawfully present.''
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\88\ Council on Foreign Relations. What is temporary protected
status? (2023). <a href="https://www.cfr.org/backgrounder/what-temporary-protected-status">https://www.cfr.org/backgrounder/what-temporary-protected-status</a>.
\89\ Dep't of Homeland Sec. v. Regents of the Univ. of
California, 140 S. Ct. 1891, 1911 n.5 (2020).
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3. Severability
We proposed to add a new section at 45 CFR 155.30 addressing the
severability of the provisions proposed in the proposed rule. In the
event that any portion of a final rule is declared invalid, we intended
that the various provisions of the definition of ``lawfully present''
be severable, and that the changes to the definition of ``lawfully
present'' in 45 CFR 155.20 would continue even if some of the changes
to any individual category are found invalid. The severability of these
provisions, and the public comments we received on our proposal to add
severability clauses, are discussed in detail in section III. of this
rule.
[[Page 39415]]
C. Proposed Effective Date
In the proposed rule, we had targeted a potential effective date of
November 1, 2023 to align with the Open Enrollment Period for most
individual market Exchanges. We were not able to establish a final rule
prior to that date. However, we continue to believe that Open
Enrollment is a critical 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, assisters,
and other interested parties.
We noted in the proposed rule that DACA recipients would qualify
for the Special Enrollment Period (SEP) 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. Despite the
availability of the SEP, we believed that proposing to align this
rule's effective date with the individual market Exchange Open
Enrollment Period would significantly increase the opportunity for
individuals to enroll for coverage through the Exchange or a BHP due to
the extensive 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 (75 days from November 1 through January 15 for
Exchanges on the Federal platform) compared with an SEP (60 days from
the effective date of the rule). Further, even though the individual
market Exchange Open Enrollment Period is, among CMS insurance
affordability programs, currently only applicable to Exchanges, we
expressed in the proposed rule that it was important to align effective
dates between Exchanges, BHP, Medicaid, and CHIP to promote
consistency, and because eligibility for these programs is typically
evaluated through a single application.<SUP>90 91</SUP>
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\90\ Pursuant to 42 CFR 600.320(d), a State operating a BHP must
either offer open enrollment periods pursuant to Exchange
regulations at 45 CFR 155.410 or follow Medicaid's continuous open
enrollment process. As of April 1, 2024, only Minnesota currently
operates a BHP, and it follows Medicaid's continuous open enrollment
process.
\91\ See 42 CFR 435.907, 42 CFR 457.330, and 45 CFR 155.405 for
requirements related to a single streamlined application for all
insurance affordability programs.
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While we are not finalizing a definition of ``lawfully present''
for purposes of Medicaid and CHIP eligibility at this time for the
reasons detailed in section I, we believe that this rule will still
have positive health and financial benefits for DACA recipients and
other impacted noncitizens who may be eligible in an Exchange or a BHP,
as detailed in section II.B.1 and II.B.2. While this final rule will
result specifically in changes to the Exchange and BHP definitions of
``lawfully present,'' we believe that any negative effects of the
resulting misalignment following the rule's effective date are
outweighed by the expected positive impacts of the rule.
In the proposed rule, we sought comment on the feasibility of the
November 1, 2023 proposed target effective date and whether to consider
a different target effective date. We noted our commitment to working
with State agencies and providing technical assistance regarding
implementation of these proposed changes, if finalized. We also
acknowledged, as outlined above, that State Medicaid and CHIP agencies
were experiencing a significant increase in workload to ``unwind''
(i.e., to return to regular eligibility renewal operations) following
the expiration of the continuous enrollment condition in section
6008(b)(3) of the FFCRA on March 31, 2023.\92\ We sought 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 the proposed rule's target effective date of November
1, 2023 has passed, similar considerations regarding feasibility and
State impacts are still relevant.
---------------------------------------------------------------------------
\92\ See CMS, SHO # 23-002, ``Medicaid Continuous Enrollment
Condition Changes, Conditions for Receiving the FFCRA Temporary FMAP
Increase, Reporting Requirements, and Enforcement Provisions in the
Consolidated Appropriations Act, 2023,'' January 27, 2023, available
at <a href="https://www.medicaid.gov/media/149291">https://www.medicaid.gov/media/149291</a>; Additional guidance for
State Medicaid and CHIP agencies is available at <a href="https://www.medicaid.gov/unwinding">https://www.medicaid.gov/unwinding</a>.
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We received public comments on this proposed target effective date.
The following is a summary of the comments we received and our
responses.
Comment: The majority of comments that CMS received supported the
November 1, 2023 effective date and noted the benefits of aligning with
the individual market Exchange Open Enrollment Period and related
education and outreach activities. One commenter, a State department of
insurance, stated that aligning with such outreach would support
ongoing efforts to lower rates of uninsurance.
Response: We agree that it is important for impacted noncitizens
and other interested parties, such as enrollment assisters, that this
rule be implemented in time to align with the individual market
Exchange Open Enrollment period to maximize enrollment in health
coverage for impacted noncitizens who will be affected by the final
rule. Given that the initially proposed effective date of November 1,
2023 has now passed, we believe that aligning the effective date of
this rule with the individual market Exchange Open Enrollment Period on
November 1, 2024 will help ensure that the maximum number of newly
eligible impacted noncitizens are able to seamlessly enroll in coverage
through the Exchange or BHP. CMS plans to leverage existing channels
for outreach and education utilized during the individual market
Exchange Open Enrollment Period to ensure that impacted noncitizens are
aware that they may be eligible for coverage. We appreciate commenters'
perspectives on the feasibility of operationalizing the changes in this
rule by the initially proposed effective date of November 1, 2023, and
we are committed to assisting our partners and interested parties with
their implementation efforts. CMS is finalizing an effective date of
November 1, 2024, for Exchanges and the BHP and, as described in
section I, is not finalizing the proposed definition of ``lawfully
present'' for Medicaid and CHIP agencies at this time.
Comment: We received some comments urging the agency to adopt an
earlier effective date than November 1, 2023. These comments varied in
proposed effective date. Some commenters, including advocacy
organizations, professional trade associations, and State government
agencies, urged us to consider the rule effective upon publication in
the Federal Register. Other commenters recommended that the rule take
effect 30 days after publication in the Federal Register. Commenters
that supported an earlier effective date noted the importance of making
health insurance affordability programs available to impacted
noncitizens as quickly as possible, and noted that they did not believe
it was necessary to wait for the individual market Exchange Open
Enrollment Period given that Exchange applicants would qualify for an
SEP and that Medicaid, CHIP, and BHP currently allow for year-round
enrollment.\93\ One
[[Page 39416]]
health care organization emphasized the importance of finalizing the
rule as soon as possible given the uncertain future of the DACA policy.
One commenter urged CMS to implement the final rule as quickly as
possible, ideally by the upcoming SEP.
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\93\ See 42 CFR 600.320(d). Pursuant to 42 CFR 600.320(d), a
State operating a BHP must either offer open enrollment periods
pursuant to Exchange regulations at 45 CFR 155.410 or follow
Medicaid's continuous open enrollment process. As of April 1, 2024,
only Minnesota cur
[…truncated; see source link]Indexed from Federal Register on May 8, 2024.
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.