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, 39392-39437 [2024-09661]
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Federal Register / Vol. 89, No. 90 / Wednesday, May 8, 2024 / Rules and Regulations
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
Centers for Medicare &
Medicaid Services (CMS), Department
of Health and Human Services (HHS).
AGENCY:
ACTION:
Final rule.
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.
SUMMARY:
These regulations are effective
on November 1, 2024.
DATES:
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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:
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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
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 passthrough 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 https://www.cms.gov/marketplace/
states/section-1332-state-innovation-waivers.
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).
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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
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.
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
9 42
U.S.C. 18032(f)(3), 42 U.S.C. 18071(e)(2).
U.S.C. 18081(c)(2)(B).
11 42 CFR. § 600.5.
12 45 CFR 155.305(f)(1)(ii)(A) and (g)(1)(i)(A).
10 42
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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
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.
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
13 Centers for Medicare & Medicaid Services.
(2010). SHO #10–006: Medicaid and CHIP Coverage
of ‘‘Lawfully Residing’’ Children and Pregnant
Women. Available at: https://downloads.cms.gov/
cmsgov/archived-downloads/smdl/downloads/
sho10006.pdf.
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 https://www.medicaid.gov/
federal-policy-guidance/downloads/sho-12-002.pdf.
15 See the definition of ‘‘insurance affordability
program’’ at 45 CFR 155.300(a) and 42 CFR 435.4.
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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 justiceinvolved individuals under CAA,
2023,19 and several new requirements
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 https://www.medicaid.gov/
media/149291; additional guidance for State
Medicaid and CHIP agencies is available at https://
www.medicaid.gov/unwinding.
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 https://www.medicaid.gov/media/135211.
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: https://
www.medicaid.gov/media/163771.
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
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39393
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.
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
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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Federal Register / Vol. 89, No. 90 / Wednesday, May 8, 2024 / Rules and Regulations
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 crossreference 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.
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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
21 42
U.S.C. 18032(f)(3).
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for their Exchange coverage.22 The ACA
does not include a definition of
‘‘lawfully present.’’ 23
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 crossreferenced 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
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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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.
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
24 U.S. Department of Homeland Security. (2012).
Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as
Children. https://www.dhs.gov/xlibrary/assets/s1exercising-prosecutorial-discretion-individualswho-came-to-us-as-children.pdf.
25 U.S. Department of Homeland Security. (2012).
Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as
Children. https://www.dhs.gov/xlibrary/assets/s1exercising-prosecutorial-discretion-individualswho-came-to-us-as-children.pdf.
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Federal Register / Vol. 89, No. 90 / Wednesday, May 8, 2024 / Rules and Regulations
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
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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.
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
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. https://www.federalregister.gov/d/
2022-18401/p-744
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), https://www.uscis.gov/
humanitarian/consideration-of-deferred-action-forchildhood-arrivals-daca/daca-litigationinformation-and-frequently-asked-questions.
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39395
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.
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 employerbased 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.30 31
28 National Immigration Law Center. Tracking
DACA Recipients’ Access to Health Care (2022).
https://www.nilc.org/wp-content/uploads/2022/06/
NILC_DACA-Report_060122.pdf.
29 National Immigration Law Center. Tracking
DACA Recipients’ Access to Health Care (2023).
https://www.nilc.org/wp-content/uploads/2023/05/
NILC_DACA-Report_2023.pdf.
30 National Immigration Law Center. Tracking
DACA Recipients’ Access to Health Care (2023).
https://www.nilc.org/wp-content/uploads/2023/05/
NILC_DACA-Report_2023.pdf.
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). https://www.hhs.gov/about/news/2023/08/
03/new-hhs-report-shows-national-uninsured-ratereached-all-time-low-2023-after-record-breakingaca-enrollment-period.html.
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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.35 36 37
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
32 Kaiser Family Foundation. Key Facts About the
Uninsured Population (2023). https://www.kff.org/
uninsured/issue-brief/key-facts-about-theuninsured-population/.
33 National Immigration Law Center. Tracking
DACA Recipients’ Access to Health Care (2022).
https://www.nilc.org/wp-content/uploads/2022/06/
NILC_DACA-Report_060122.pdf.
34 National Immigration Law Center. Tracking
DACA Recipients’ Access to Health Care (2023).
https://www.nilc.org/wp-content/uploads/2023/05/
NILC_DACA-Report_2023.pdf.
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. https://doi.org/
10.7326/0003-4819-114-4-325.
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. https://doi.org/10.1136/
bmj.m4087.
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. https://doi.org/
10.1001/jamanetworkopen.2022.31898.
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). https://cmsny.org/
daca-essential-workers-covid/.
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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–19.40 41 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
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
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). https://cmsny.org/
daca-essential-workers-covid/.
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 frontline health-care workers and the general
community: A prospective cohort study. The Lancet
Public Health, 5(9). https://doi.org/10.1016/S24682667(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). https://doi.org/10.1186/s12879-02005587-2.
42 Dizioli, Allan and Pinheiro, Roberto. (2016).
Health Insurance as a Productive Factor. Labour
Economics. https://doi.org/10.1016/
j.labeco.2016.03.002.
43 Count of Active DACA Recipients by Month of
Current DACA Expiration as of September 30, 2023.
U.S. Citizenship and Immigration Services. https://
www.uscis.gov/sites/default/files/document/data/
active_daca_recipients_fy23_q4.pdf.
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Analysis in section V.C. of this final
rule.
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 crossreference 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
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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,
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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.
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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.
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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.44 45
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
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44 National
Immigration Law Center. Tracking
DACA Recipients’ Access to Health Care (2023).
https://www.nilc.org/wp-content/uploads/2023/05/
NILC_DACA-Report_2023.pdf.
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). https://www.hhs.gov/about/news/2023/08/
03/new-hhs-report-shows-national-uninsured-ratereached-all-time-low-2023-after-record-breakingaca-enrollment-period.html.
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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
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
46 Key Facts on Deferred Action for Childhood
Arrivals (DACA) (2023), https://www.kff.org/racialequity-and-health-policy/fact-sheet/key-facts-ondeferred-action-for-childhood-arrivals-daca/.
47 Count of Active DACA Recipients by Month of
Current DACA Expiration as of September 30, 2023.
U.S. Citizenship and Immigration Services. https://
www.uscis.gov/sites/default/files/document/data/
active_daca_recipients_fy23_q4.pdf.
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the existing population of Exchange
enrollees, of whom 64 percent are age
35 or older.48 49 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.
Comment: One State government
agency noted that extending QHP
eligibility for DACA recipients is
particularly important because DACA
recipients may lose access to Statefunded 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.
48 Count of Active DACA Recipients by Month of
Current DACA Expiration as of September 30, 2023.
U.S. Citizenship and Immigration Services. https://
www.uscis.gov/sites/default/files/document/data/
active_daca_recipients_fy23_q4.pdf.
49 Centers for Medicare and Medicaid Services.
2024 Open Enrollment Report. https://
www.cms.gov/files/document/health-insuranceexchanges-2024-open-enrollment-report-final.pdf.
50 Key Facts on Deferred Action for Childhood
Arrivals (DACA) (2023), https://www.kff.org/racialequity-and-health-policy/fact-sheet/key-facts-ondeferred-action-for-childhood-arrivals-daca/.
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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
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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.
Comment: A few commenters stated
their belief that DACA recipients should
51 See U.S. Department of Homeland Security.
(2012) Exercising Prosecutorial Discretion with
Respect to Individuals Who Came to the United
States as Children. https://www.dhs.gov/xlibrary/
assets/s1-exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf, and 8
CFR 236.22(b)(2).
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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.
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
Comment: One nonprofit organization
opposed the proposal stating that by
expanding the definition of ‘‘lawfully
present,’’ DACA recipients would rely
52 Center for American Progress. The
Demographic and Economic Impacts of DACA
Recipients: Fall 2021 Edition. (2022). https://
www.americanprogress.org/article/thedemographic-and-economic-impacts-of-dacarecipients-fall-2021-edition/.
53 Center for American Progress. Results from
Tom K. Wong et al., 2022 National DACA Study.
https://www.americanprogress.org/wp-content/
uploads/sites/2/2023/04/DACA-Survey-2022Toplines.pdf.
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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
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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
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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.’’
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
54 Texas et al. v. United States et al., 50 F.4th 498
(5th Cir. 2022).
55 408 U.S. 753, 766 (1972).
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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
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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
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
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).
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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
57 42
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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.
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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
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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.
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.
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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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 deepseated 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
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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
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
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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maximization of DACA recipients’
ability to access coverage, we should
partner with assisters and communitybased 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
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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
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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
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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,60 61 62 63 64
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.66 67
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. https://www.ncbi.
nlm.nih.gov/books/NBK214966/ 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-healthcoverage#:∼:text=Impact%20of%20Coverage&text=
Studies%20confirm%20that%20coverage%20
improves,on%20individuals%2C%20families
%20and%20communities.
63 Woolhandler S, Himmelstein, D. 2017, Sept.
The Relationship of Health Insurance and
Mortality: Is Lack of Insurance Deadly? Annals of
Internal Medicine. https://doi.org/10.7326/M171403.
64 Kaiser Family Foundation. Key Facts About the
Uninsured Population. (2023). https://www.kff.org/
uninsured/issue-brief/key-facts-about-theuninsured-population/.
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).
https://www.nilc.org/wp-content/uploads/2023/05/
NILC_DACA-Report_2023.pdf.
67 U.S. Department of Health and Human
Services. New HHS Report Shows National
Uninsured Rate Reached All-Time Low in 2023
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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
After Record-Breaking ACA Enrollment Period
(2023). https://www.hhs.gov/about/news/2023/08/
03/new-hhs-report-shows-national-uninsured-ratereached-all-time-low-2023-after-record-breakingaca-enrollment-period.html.
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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
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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
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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
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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 nonemergency 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
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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.69 70
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 highcost emergency care, increasing lower68 Kaiser Family Foundation. Key Facts About the
Uninsured Population (2023) https://www.kff.org/
uninsured/issue-brief/key-facts-about-theuninsured-population/.
69 United Health Group. 18 Million Avoidable
Hospital Emergency Department Visits Add $32
Billion in Costs to the Health Care System Each
Year. (2019) https://www.unitedhealthgroup.com/
content/dam/UHG/PDF/2019/UHG-Avoidable-EDVisits.pdf.
70 Center on Budget and Policy Priorities.
Uncompensated Care Costs Fell in Nearly Every
State as ACA’s Major Coverage Provisions Took
Effect. (2018) https://www.cbpp.org/research/
health/uncompensated-care-costs-fell-in-nearlyevery-state-as-acas-major-coverage.
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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,
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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,
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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.
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.
71 Div G, Title II, sec. 209(f), Public Law 118–42
(March 9, 2024).
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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
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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
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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
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(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
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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
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‘‘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-bycase 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
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39409
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
72 See USCIS Form I–817 (Application for Family
Unity Benefits) and Instructions available at https://
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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.
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
www.uscis.gov/sites/default/files/document/forms/
i-817.pdf and https://www.uscis.gov/sites/default/
files/document/forms/i-817instr.pdf.
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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,
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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.
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
73 See
74 See
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8 U.S.C. 1101(b)(2) (definition of ‘‘parent’’).
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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 180day 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,
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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.
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
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.
76 U.S. Citizenship and Immigration Services.
Policy Alert: Special Immigrant Juvenile
Classification and Deferred Action. (2022). https://
www.uscis.gov/sites/default/files/document/policymanual-updates/20220307-SIJAnd
DeferredAction.pdf.
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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.
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.
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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
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,
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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.
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
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).
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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.
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
78 USCIS Policy Manual, Vol. 3, Part C, Chap. 5,
available at https://www.uscis.gov/policy-manual/
volume-3-part-c-chapter-5 (last visited July 27,
2023).
79 8 CFR 214.14(d)(2).
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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 BHPeligible 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
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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.
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:
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
80 See 42 U.S.C. 18001(d)(1), 18032(f)(3),
18071(e), 18081(a)(1), and 18082(d).
81 See 156 Cong. Rec. S2079 (2010) https://
www.congress.gov/crec/2010/03/25/CREC-2010-0325-senate.pdf.
82 See CRS Report R46510, PRWORA’s
Restrictions on Noncitizen Eligibility for Federal
Public Benefits: Legal Issues, by Ben Harrington
(Sept. 3, 2020) https://crsreports.congress.gov/
product/pdf/R/R46510.
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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
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.
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
83 CRS Report LSB10526, PRWORA and the
CARES Act: What’s the Prospective Power of a
‘‘Notwithstanding’’ Clause? by Ben Harrington (July
27, 2020). https://crsreports.congress.gov/product/
pdf/LSB/LSB10526.
84 26 U.S.C. 36B(c)(1)(B).
85 42 U.S.C. 18071(b)(2).
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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.
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 longterm 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
86 Dep’t of Homeland Sec. v. Regents of the Univ.
of California, 140 S. Ct. 1891, 1911 n.5 (2020).
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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.
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
87 8
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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.’’
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.
88 Council on Foreign Relations. What is
temporary protected status? (2023). https://
www.cfr.org/backgrounder/what-temporaryprotected-status.
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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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.90 91
While we are not finalizing a
definition of ‘‘lawfully present’’ for
purposes of Medicaid and CHIP
eligibility at this time for the reasons
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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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.
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
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 https://www.medicaid.gov/media/
149291; Additional guidance for State Medicaid
and CHIP agencies is available at https://
www.medicaid.gov/unwinding.
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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
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 currently operates a BHP and
it follows Medicaid’s continuous open enrollment
process.
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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.
Response: We note commenters’
interest in seeing the rule implemented
as soon as possible, and we agree that
DACA recipients and other impacted
noncitizens should be able to access the
Exchange or BHP coverage for which
they will be eligible as soon as possible.
However, we also acknowledge the
importance of giving Exchanges,
including Exchanges on the Federal
platform and State Exchanges operating
their own platforms, BHPs, assisters,
and other entities who support
enrollment in Exchange and BHP
coverage sufficient time to prepare for
the changes in this rule. Given the time
required for us to closely review and
respond to all public comments
received and to develop the operational
changes required to implement the
rule’s provisions, we do not believe it is
feasible for Exchanges on the Federal
platform to implement this rule prior to
its effective date on November 1, 2024.
We acknowledge that some DACA
recipients will be eligible under this
final rule for a BHP (we estimate that
1,000 DACA recipients will enroll in
BHP), to which the individual market
Exchange Open Enrollment Period does
not currently apply.94 However, BHPs
will also need to make operational
changes as a result of this rule, and we
believe that a November 1, 2024
effective date will allow BHPs sufficient
time to implement the operational
changes required.
CMS also acknowledges that DACA
recipients and other impacted
noncitizens who are newly considered
to be lawfully present as a result of this
rule will qualify for an SEP; however, as
stated previously, we are not able to
effectively implement the rule with an
effective date earlier than November 1,
2024. We are committed to working
with impacted State Exchanges
operating their own platforms and BHP
agencies to provide technical assistance
and educational materials to facilitate
successful implementation of this rule.
For the reasons detailed in section I.,
we are not finalizing a definition of
‘‘lawfully present’’ for purposes of
Medicaid and CHIP eligibility at this
94 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. The one State that currently
operates a BHP, Minnesota, follows Medicaid’s
continuous open enrollment process.
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time. We acknowledge that commenters
urged us to ensure that DACA recipients
and other impacted noncitizens would
be able to access these programs as soon
as possible. During this time, we believe
that many DACA recipients and other
impacted noncitizens who may have
been eligible for Medicaid or CHIP
under the policies in the proposed rule
will instead be able to access coverage
by enrolling in a QHP via the Exchange
or BHP coverage.95
For the commenter who urged us to
implement the rule by the upcoming
SEP, we believe that the commenter
may have been referring to the
individual market Exchange Open
Enrollment Period; the benefits of
aligning with the Exchange Open
Enrollment Period are addressed above.
Alternatively, this commenter may be
referring to the SEP for individuals who
lose Medicaid or CHIP coverage due to
the end of the continuous enrollment
condition in Medicaid, also referred to
as the ‘‘Unwinding SEP.’’ This SEP has
been available on HealthCare.gov to
consumers since March 31, 2023 and
remains in effect.96 As noted previously,
this final rule will be effective for the
2024 individual market Exchange Open
Enrollment Period which will begin on
November 1, 2024.
Comment: Many commenters agreed
with CMS that DACA recipients and
other impacted noncitizens would
qualify for the existing SEP for
individuals who are newly considered
to be lawfully present for the 60 days
following the effective date of the rule.
One nonprofit organization urged CMS
to implement an SEP for DACA
recipients that would last for 12 months
after the effective date of the rule, to
ensure that individuals have sufficient
time to enroll.
Response: Commenters are correct
that noncitizens who are newly
considered lawfully present under the
definition in the final rule will qualify
for the existing 60-day SEP for
individuals who are newly lawfully
present under 45 CFR 155.420(d)(3) as
of the applicability date of the final rule.
We acknowledge the suggestion that we
make an extended SEP, greater than 60
days, available for this population.
However, we believe that the individual
market Open Enrollment Period and the
95 DACA recipients who qualify to enroll in a
QHP will generally be eligible for APTC and CSRs
(subject to other eligibility requirements) even if
their income is under 100 percent of FPL, as
individuals who are lawfully present but ineligible
for Medicaid due to their ‘‘alien status’’ may be
eligible for APTC and CSRs. See 26 U.S.C.
36B(c)(1)(B) and 42 U.S.C. 18071(b)(2).
96 See https://www.medicaid.gov/resources-forstates/downloads/extn-sep-cnsmrs-lsg-chip-cvrgadndm-faq.pdf.
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existing 60-day SEP should give
impacted noncitizens sufficient time to
apply for and enroll in coverage. In our
prior experience implementing changes
to Exchange eligibility rules that align
with the individual market Open
Enrollment Period, such as changes
related to employer-sponsored coverage
affordability and premium tax credit
eligibility (87 FR 61979), we are not
aware of significant issues related to
consumers having sufficient time to
enroll. In nearly all situations where
consumers become newly eligible to
enroll in a QHP or for APTC or CSRs,
we provide a 60-day SEP, and we
believe that is generally an appropriate
approach. Additionally, as indicated
above, pursuant to 42 CFR 600.320(d),
Minnesota’s BHP has elected to follow
Medicaid’s continuous enrollment
process and therefore an extended SEP
would not apply to this population.
We acknowledge that there may be
unique challenges relevant to the
consumers impacted by this rule, and
we are committed to working with State
Exchanges not on the Federal platform,
BHPs, assisters, and community-based
organizations to conduct targeted
outreach to facilitate efficient
enrollment processes for DACA
recipients and other impacted
noncitizens who may be eligible for
coverage. We also note that some State
Exchanges not on the Federal platform,
including those in California and New
Jersey, where an estimated 168,120 and
14,760 DACA recipients live,
respectively, have individual market
Open Enrollment Periods that are longer
than the one provided in the Exchanges
on the Federal platform, giving
consumers up to 90 days to enroll in a
QHP.
Comment: A minority of State
Exchanges not on the Federal platform
that commented on the rule raised
concerns that the proposed effective
date of November 1, 2023, may not be
feasible. These commenters urged CMS
to provide State Exchanges not on the
Federal platform with flexibility on the
timeframe for full implementation of the
rule’s provisions. Some of these
commenters also stated concerns that
changes would not be available for
testing through the Federal Data
Services Hub (hereinafter ‘‘the Hub’’) in
a timely manner. Additionally, some
commenters noted the importance of
finalizing the rule as soon as possible,
to give interested parties, including
State Exchanges not on the Federal
platform, assisters, and communitybased organizations as much time as
possible to prepare for the policy and
operational changes in the rule prior to
its effective date.
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Response: We acknowledge
commenters’ concerns about challenges
with implementation of the provisions
of this rule. To address these concerns,
we plan to release technical guidance to
State Exchanges not on the Federal
platform and to BHP agencies to assist
those agencies with implementing
provisions of the rule. We are
committed to supporting readiness for
State Exchanges not on the Federal
platform and BHP agencies, while also
removing barriers to coverage for
eligible individuals and supporting their
enrollment through the Exchange or a
BHP for which they are eligible. We will
be available to work with State
Exchanges not on the Federal platform
and BHP agencies individually to
facilitate their compliance by November
1, 2024.
We also acknowledge the possibility
that some State Exchanges not on the
Federal platform may not be able to
fully implement the provisions of this
rule by the November 1, 2024 effective
date. We further acknowledge that if
State Exchanges are not able to
implement by November 1, 2024, that
there is a risk that DACA recipients and
other impacted noncitizens could have
limited opportunity to access QHP
coverage through the SEP for which
they are eligible under 45 CFR
155.420(d)(3), given that the trigger
event for the SEP is the November 1,
2024 effective date of this rule and only
provides 60 days after the triggering
event to select a QHP. If a delay in State
Exchange implementation results in
newly eligible consumers being unable
to enroll in coverage during their initial
60-day SEP window, State Exchanges
could consider granting a pathway into
QHP coverage for eligible applicants on
a case-by-case basis under exceptional
circumstances authority at 45 CFR
155.420(d)(9).
Comment: A few commenters urged
CMS to consider a later effective date
than November 1, 2023 due to ongoing
litigation concerning a separate DHS
final rule. One nonprofit organization
urged CMS to refrain from finalizing the
rule and setting an effective date until
the challenge to DACA in Texas v.
United States, 50 F.4th 498 (5th Cir.
2022), has reached a final disposition.
The commenter further stated concern
that pursuing this rulemaking while
litigation continues could result in
unnecessary expenditures and
investment of staff time by DHS and
HHS. A comment submitted by some
State attorneys general urged CMS to
postpone the effective date of the final
rule pending judicial review.
Response: We do not believe it is
necessary to delay this final rule in its
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entirety pending a resolution of
litigation concerning DHS’s final rule.
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. Moreover, this rule makes other
changes to the definitions of ‘‘lawfully
present,’’ in 45 CFR 155.20 and impacts
other noncitizens in addition to DACA
recipients.
We acknowledge that current court
orders prohibit DHS from fully
administering the DHS DACA final rule
(87 FR 53152). Those orders, however,
have been subject to judicial stays since
their issuance and, as a result, the
DACA policy has remained in effect
with respect to current DACA
recipients. Additionally, the policies in
this rule solely address eligibility for
specific HHS health programs and are
separate from DHS regulations. As
described in detail throughout this rule,
this rule reflects our independent
statutory authority under the ACA to
define ‘‘lawfully present’’ for purposes
of eligibility to enroll in a QHP or the
BHP.
After careful consideration of public
comments, we are finalizing November
1, 2024 as the effective date of this final
rule. This means that, effective
November 1, 2024, the definitions of
‘‘lawfully present’’ used to determine
eligibility to enroll in a QHP, and for
APTC and CSRs, as well as for the BHP,
will no longer exclude DACA recipients
and will also reflect the changes
detailed in section II.B.2. The proposed
definitions of ‘‘lawfully present’’ for
Medicaid and CHIP are not being
addressed in this final rule. For
purposes of these programs, the
definitions established in the 2010 SHO
and 2012 SHO will continue to apply.
D. Eligibility in States, the District of
Columbia, the Northern Mariana
Islands, and American Samoa and
Children’s Health Insurance Programs
(CHIPs) (42 CFR 435.4 and 457.320(c))
1. Lawfully Residing and Lawfully
Present Definitions
We proposed to define the term
‘‘lawfully present’’ at 42 CFR 435.4 for
Medicaid eligibility under the CHIPRA
214 option, consistent with the
Exchange definitions described in the
proposed rule at 45 CFR 155.20,
including the minor technical changes
and clarifications to the lawfully present
definition described in preamble section
II.B.2 of this final rule. We also
proposed to add a cross-reference to this
definition at 42 CFR 457.320(c) for
purposes of determining eligibility for
CHIP under the CHIPRA 214 option. We
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proposed a definition of ‘‘lawfully
residing’’ in 42 CFR 435.4 to mirror the
definition in the 2010 SHO, discussed
previously in this rule—that an
individual is ‘‘lawfully residing’’ if they
are ‘‘lawfully present’’ in the United
States and are a resident of the State in
which they are applying under the
State’s Medicaid residency rules. For
CHIP, we also proposed to add a crossreference at 42 CFR 457.320(c) to the
‘‘lawfully residing’’ definition at 42 CFR
435.4, except that States must comply
with CHIP residency requirements at 42
CFR 457.320(e).
Due to the reasons discussed in
section I of this final rule, we are not
finalizing a ‘‘lawfully present’’
definition for Medicaid and CHIP at this
time. This means that for 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.
We received comments regarding the
proposals to define the term ‘‘lawfully
present’’ for Medicaid and CHIP
eligibility under the CHIPRA 214
option. As we are continuing to
consider and evaluate these comments,
we are not providing our responses to
comments in the final rule at this time.
Comments that expressed general
support for or opposition to the policies
in the proposed rule without reference
to a specific insurance affordability
program have been addressed above in
sections II.B.1 and II.B.2 with respect to
Exchange and BHP coverage.
2. Defining Qualified Noncitizen
Under our current Medicaid
regulations, a ‘‘qualified non-citizen’’ is
defined at 42 CFR 435.4, which includes
an individual described in 8 U.S.C.
1641(b) and (c). Similarly, 42 CFR
457.320(b)(6) defines a ‘‘qualified alien’’
for CHIP with a cross-reference to
section 431 of PRWORA, which is
codified at 8 U.S.C. 1641. The
definitions are currently used for
determining Medicaid and CHIP
eligibility under our regulations at 42
CFR 435.406 and 42 CFR 457.320, and
the definition is also used when
determining eligibility of individuals
under the CHIPRA 214 option. In the
proposed rule, we considered whether
the current definition of ‘‘qualified
noncitizen’’ at 42 CFR 435.4 should be
modified to provide greater clarity and
increase transparency for the public.
Specifically, we noted that we were
considering whether the definition
should be modified to expressly include
all of the categories of noncitizens
covered by 8 U.S.C. 1641(b) and (c), as
well as additional categories of
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noncitizens that Medicaid agencies are
required to cover (if they meet all
eligibility requirements in the State) as
a result of subsequently enacted
legislation that was not codified in 8
U.S.C. 1641(b) or (c). For example,
Federal law requires certain populations
to be treated as ‘‘refugees’’ for certain
purposes of eligibility for certain means
tested benefit programs, including
Medicaid and CHIP. Because refugees
are listed in 8 U.S.C. 1641(b)(3) as a
category of noncitizens who are
‘‘qualified aliens’’ and are also exempt
from the 5-year waiting period under 8
U.S.C. 1613, these noncitizens also are
treated as qualified noncitizens for
purposes of Medicaid and CHIP and are
exempt from the 5-year waiting period.
In the proposed rule, we indicated that
we were considering including these
additional categories of noncitizens who
are treated as refugees under other
Federal statutes as specifically included
in the definition of ‘‘qualified
noncitizen’’ in 42 CFR 435.4, and we
sought comment on this possibility.
Examples of such noncitizens include
victims of trafficking and certain Afghan
and Ukrainian parolees.97 A full list can
be found below in section II.D.2. of this
rule. Because noncitizens who are
treated as refugees for purposes of
Medicaid eligibility are also treated as
refugees for purposes of CHIP eligibility,
these categories of noncitizens
(discussed previously in the proposed
rule) were considered for the definition
of qualified noncitizen for purposes of
CHIP.
We also noted in the proposed rule
that there was at least one difference in
how the term ‘‘qualified noncitizen’’
applies to Medicaid compared to the
other programs discussed in the
proposed rule. Specifically, we noted
that COFA migrants were only
considered ‘‘qualified aliens’’ for
purposes of the Medicaid program,
under the Consolidated Appropriations
Act, 2021.98 However, after the
proposed rule was issued, Congress
97 To date, these other Federal laws include the
Trafficking Victims Protection Act of 2000 (22
U.S.C. 7105(b)), relating to certain victims of
trafficking; section 602(b)(8) of the Afghan Allies
Protection Act of 2009, Public Law. 111–8 (8 U.S.C.
1101 note), relating to certain Afghan special
immigrants; section 1244(g) of the Refugee Crisis in
Iraq Act of 2007 (8 U.S.C. 1157 note), relating to
certain Iraqi special immigrants; section 584(c) of
Public Law. 100–202 (8 U.S.C. 1101 note), relating
to Amerasian immigrants; section 2502(b) of the
Extending Government Funding and Delivering
Emergency Assistance Act of 2021, Public Law.
117–43, relating to certain Afghan parolees; and
section 401 of the Additional Ukraine
Supplemental Appropriations Act of 2022, Public
Law. 117–128, relating to certain Ukrainian
parolees.
98 Div. CC, Title II, sec. 208, Public Law. 116–260.
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amended 8 U.S.C. 1641(b)(8) through
CAA, 2024 99 to remove the language
that limited COFA migrants as qualified
noncitizens only for purposes of the
Medicaid program. Since CHIP is
identified as a Federal public benefit as
defined at 8 U.S.C. 1611(c),100 COFA
migrants are now considered qualified
noncitizens for the purposes of CHIP
eligibility. Further, CAA, 2024 amended
8 U.S.C. 1613(b)(3) to expand the
exception for COFA migrants from the
5-year waiting period for all Federal
means-tested public benefits, allowing
immediate eligibility for CHIP effective
March 9, 2024, if the individual meets
all other eligibility requirements in the
State plan. Since the new legislation
supersedes our proposed rule, we will
remove the proposed limitations
considering COFA migrants from the
definition of qualified noncitizen in this
final rule.
We solicited comments on our
proposal to add more detailed
information to the definition of
qualified noncitizen under Medicaid
and CHIP to promote clarity,
transparency, and administrative ease.
We also proposed a nomenclature
change to the definition of
‘‘citizenship,’’ ‘‘noncitizen,’’ and
‘‘qualified noncitizen’’ in 42 CFR 435.4
to remove the hyphen in the term ‘‘noncitizen’’ and use the term ‘‘noncitizen’’
throughout those definitions. We
proposed this change to ensure
alignment with terminology used by
DHS. We noted that these changes do
not affect eligibility for Medicaid and
CHIP programs and only streamline the
use of terminology for clarity and
administrative ease. We did not receive
any public comments regarding those
changes. We are finalizing the changes
as proposed in 42 CFR 435.4.
We received several public comments
on our request to provide additional
detail to the definition of qualified
noncitizen used for Medicaid and CHIP
at 42 CFR 435.4 and 42 CFR 457.320(c).
No commenters opposed our proposal.
Comment: Some commenters
supported CMS’ proposal to include a
detailed definition of ‘‘qualified
noncitizen’’ at 42 CFR 435.4 and to
expressly list all the categories of
noncitizens that Medicaid and CHIP
agencies are required to cover. One
commenter supported a definition that
includes categories of noncitizens
covered by 8 U.S.C. 1641(b) and (c), any
additional categories that Medicaid
99 Div.
G, Title II, sec. 209(f), Public Law. 118–
42.
100 For a list of HHS programs that provide
‘‘Federal public benefits,’’ see 63 FR 41658 (Aug. 4,
1998).
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agencies are required to cover as a result
of subsequently enacted legislation not
currently codified in Title 8, as well as
a ‘‘residual category that encompasses
any statuses created by subsequent
legislation or other changes to the
statute after the proposed rule is
finalized.’’
These commenters noted that
codifying a clear definition of ‘‘qualified
noncitizen’’ would reduce confusion
among individuals applying for
Medicaid coverage, those helping them
apply for coverage, and for Medicaid
agencies.
Response: We agree with commenters
that including a detailed definition of
‘‘qualified noncitizen’’ in our
regulations will help clarify our policy
for beneficiaries, State Medicaid
agencies, and other partners and
interested parties, and we are including
a definition of ‘‘qualified noncitizen’’ in
the final rule at 42 CFR 435.4, which is
incorporated by cross reference in the
CHIP regulations at 42 CFR 457.320(c).
We are declining the commenter’s
suggestion to include a broad catchall
category that would include future
changes in statute. Adding a provision
to accommodate potential future
legislation would add ambiguity and
uncertainty to the final rule that may be
confusing for States that may be
applying the regulation once it is
effective. Should the Congress make
further changes to the definition of
qualified noncitizen, we will provide
additional guidance.
Comment: One nonprofit organization
stated that CMS should include
petitioners for U-visas in the definition
of qualified noncitizen.
Response: We do not have the
statutory authority to include U
nonimmigrant status petitioners in our
definition of ‘‘qualified noncitizen,’’
because the definition of qualified
noncitizen is based on PRWORA’s
definition of ‘‘qualified alien’’ at 8
U.S.C. 1641 and other specific statutory
changes authorizing treatment of certain
noncitizens as a ‘‘refugee’’ for purposes
of Medicaid and CHIP eligibility, among
other purposes. Neither the statutory
definition at 8 U.S.C. 1641 nor any other
Federal statute expressly addresses U
nonimmigrant status petitioners’
treatment as a refugee or eligibility for
Federal public benefits, nor is there a
statute that includes nonimmigrants
more broadly. Thus, we are not adopting
the commenter’s suggestion to include
U visa petitioners in the definition of
qualified noncitizen. See preamble
section II.B.2 for additional information
on the use of deferred action for certain
U nonimmigrant status petitioners.
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Comment: A few commenters noted
that they supported the proposed
changes to expand eligibility for
noncitizens who are treated as refugees,
such as certain Afghan and Ukrainian
parolees,101 which would enable these
individuals to enroll in an Exchange
plan, Medicaid and CHIP.
Response: We appreciate the support
for including in the regulatory
definition of ‘‘qualified noncitizen’’
both the noncitizens who are included
in the definition of ‘‘qualified alien’’
under 8 U.S.C. 1641(b) and (c) as well
as the noncitizens who are treated as
refugees for purposes of eligibility for
Medicaid and CHIP under other Federal
statutes, and we are including both
groups of noncitizens in the definition
at 42 CFR 435.4 and 42 CFR 457.320(c)
of the final rule. We wish to clarify that
the final rule does not expand eligibility
for these noncitizens but merely
expressly reflects in our regulations
individuals who may be eligible for
Medicaid and CHIP under existing
statutes, including the expansion of
CHIP eligibility for COFA migrants as
authorized by CAA, 2024. Individuals
who are treated as refugees under other
Federal laws are already required by
statute to be covered by State Medicaid
and CHIP programs if the individual
meets all other eligibility requirements
in the State plan. Additionally, these
individuals are included in the existing
Exchange definition of ‘‘lawfully
present’’ as qualified noncitizens at 45
CFR 152.2(1), cross-referenced in our
current regulation at 45 CFR 155.20 and
42 CFR 600.5, and are therefore eligible
for QHP and BHP coverage if they meet
other eligibility requirements.
Comment: One commenter requested
that we include within the definition of
‘‘qualified noncitizen’’ a list of each
category of human trafficking victims
separately, while explaining that the list
of subsections included is not exclusive.
The commenter mentioned that
Afghans, Ukrainians, and Iraqis should
be specifically listed. The commenter
further specified that CMS’ definition of
‘‘qualified noncitizen’’ should include T
visa holders, ‘‘T visa applicants with
bona fide determinations’’ and HHS
Office of Trafficking in Persons (OTIP)
certifications, human trafficking victims
who have been granted continued
presence by DHS and receive OTIP
certifications, and noncitizen child
victims of human trafficking (sex or
labor) with eligibility letters from OTIP.
101 See Section 2502 of the Extending
Government Funding and Delivering Emergency
Assistance Act, Public Law. 117–43 (Sept. 30,
2021), as amended, and Section 401 of the
Additional Ukraine Supplemental Appropriations
Act, 2022, Public Law. 117–128 (May 21, 2022).
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Response: We wish to clarify that
victims of a severe form of trafficking in
persons under the Trafficking Victims
Protection Act of 2000, Public Law 106–
386 and family members of trafficking
victims granted derivative T
nonimmigrant status are considered
qualified noncitizens because they are
eligible for benefits and services to the
same extent as refugees. 22 U.S.C.
7105(b). This statutory provision
includes individuals who received a
certification from HHS under 22 U.S.C.
7105(b)(1)(E). A victim of a severe form
of trafficking in persons may receive an
HHS certification if they have complied
with any reasonable request for
assistance in the detection,
investigation, or prosecution of the
trafficking (or qualify for an exemption
due to their age or an exception due to
physical or psychological trauma) and
have made a bona fide application for T
nonimmigrant status or were granted
continued presence by DHS. Such
individuals who receive an HHS
certification are included as individuals
treated as refugees when meeting the
requirements of 22 U.S.C. 7105(b).
Additionally, we note that T
nonimmigrants and T nonimmigrant
status applicants who have set forth a
prima facie case for such nonimmigrant
status are considered qualified
noncitizens under 8 U.S.C. 1641(c)(4).
We are including these classifications of
victims of trafficking and applicants for
T nonimmigrant status in our revised
definition of qualified noncitizen at 42
CFR 435.4 of this final rule.
After consideration of public
comments, we are including in our
definition of ‘‘qualified noncitizen’’ in
this final rule noncitizens who are
considered ‘‘qualified aliens’’ under 8
U.S.C. 1641(b) and (c), and other
immigration statuses and categories that
are not included in the statutory
definition of ‘‘qualified aliens’’ but
whom the Congress has specifically
authorized be treated as refugees for
purposes of eligibility for certain
benefits, including Medicaid and CHIP.
Specifically, we are including the
following noncitizens in the definition
of ‘‘qualified noncitizen’’ in 42 CFR
435.4 of the final rule:
• Noncitizens who are victims of a
severe form of trafficking in persons,
who are eligible for Medicaid and CHIP
to the same extent as refugees under
section 107 of the Victims of Trafficking
and Violence Protection Act of 2000 and
the members of a trafficking victim’s
family who are granted derivative T
nonimmigrant status, in accordance
with 22 U.S.C. 7105(b)(1)(A);
• Iraqi and Afghan special
immigrants, who are eligible for
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39419
Medicaid and CHIP to the same extent
as refugees under the National Defense
Authorization Act for Fiscal Year 2008
(Pub. L. 110–181, enacted January 28,
2008); the Omnibus Appropriations Act,
2009 (Pub. L. 111–8, enacted March 11,
2009); the Department of Defense
Appropriations Act, 2010 (Pub. L. 111–
118, enacted December 19, 2009); and
the National Defense Authorization Act
for Fiscal Year 2015 (Pub. L. 113–291,
enacted December 19, 2014);
• Amerasian immigrants, who are
treated the same as refugees for
purposes of Medicaid and CHIP
eligibility in accordance with a joint
resolution making further continuing
appropriations for the fiscal year 1988,
and for other purposes (Pub. L. 100–202,
enacted December 22, 1987);
• Certain Afghan parolees who are
eligible for Medicaid and CHIP to the
same extent as refugees in accordance
with section 2502 of the Extending
Government Funding and Delivering
Emergency Assistance Act (Pub. L. 117–
43 as amended, enacted September 30,
2021); and
• Certain Ukrainian parolees who are
also eligible for Medicaid and CHIP to
the same extent as refugees under
section 401 of the Additional Ukraine
Supplemental Appropriations Act (Pub.
L. 117–128 as amended, enacted May
21, 2022).
We are also making a conforming
technical change to 42 CFR 435.406(2)(i)
to replace the current cross-reference to
‘‘qualified noncitizens’’ as defined in
section 431 of PRWORA (8 U.S.C. 1641)
to the modified definition of ‘‘qualified
noncitizen’’ at 42 CFR 435.4 that is
being finalized in this rule. Likewise, in
response to public comments and to
align CHIP with Medicaid and to
include COFA migrants as qualified
noncitizens for the purposes of CHIP
eligibility as authorized by CAA, 2024,
we have finalized a definition of
‘‘qualified noncitizen’’ for purposes of
CHIP eligibility at 42 CFR 457.320(c),
which cross references to the definition
of ‘‘qualified noncitizen’’ at 42 CFR
435.4. We are also finalizing an
amendment at 42 CFR 457.320(b)(6) to
replace ‘‘qualified aliens’’ with
‘‘qualified noncitizens’’ and to replace
the reference to section 431 of PRWORA
with the new definition of ‘‘qualified
noncitizen’’ at 42 CFR 457.320(c).
Comment: One commenter
recommended that we include in the
definition of ‘‘qualified noncitizen’’
other individuals who are required to be
covered in Medicaid under the Federal
statute at 8 U.S.C. 1612(b) but are not
considered qualified aliens under 8
U.S.C. 1641 or treated as refugees under
other Federal statutes (for example,
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American Indians born in Canada or
members of a Federally-recognized
tribe, 8 U.S.C. 1612(b)(2)(E); 8 U.S.C.
1613(d)(1)). This commenter
recommended that CMS include these
additional individuals required to be
covered by Medicaid in our revised
definition of ‘‘qualified noncitizen’’ to
promote clarity and transparency to the
public specifying those individuals who
must be covered in Medicaid, if meeting
all other eligibility requirements.
Response: We agree with the
commenter that there are additional
groups of noncitizens who are required
to be covered in Medicaid under 8
U.S.C. 1612(b)(2), but do not agree that
these individuals are considered
qualified noncitizens under 8 U.S.C.
1641. We also appreciate that there is
some confusion regarding the
noncitizens for whom coverage under
Medicaid and CHIP is required. States
are required to provide full Medicaid
benefits to certain noncitizens under 8
U.S.C. 1612(b)(2) if they meet all other
eligibility requirements in the State
plan. We are not adopting the
commenter’s suggestion to include these
individuals in the definition of
‘‘qualified noncitizen’’ in 42 CFR 435.4,
as they are not qualified aliens under 8
U.S.C. 1641 or based on other Federal
statutes. Moreover, we did not propose
a rule that would identify all the
individuals required to be covered in
Medicaid under 8 U.S.C. 1612(b).
While we are not adopting a final
rule, pursuant to the request for
clarification, we are identifying in this
preamble the individuals that States are
required by statute to cover in Medicaid
under 8 U.S.C. 1612(b) and are exempt
from the 5-year bar under 8 U.S.C. 1613.
Under 8 U.S.C. 1612(b)(2)(A), States
must cover for at least 7 years refugees;
asylees; noncitizens whose deportation
is withheld under specified sections of
the INA; Cuban and Haitian entrants;
Amerasian immigrants; and other
noncitizens treated as if they were
refugees for purposes of Medicaid
eligibility.
Under 8 U.S.C. 1612(b)(2)(B), States
are required to cover lawful permanent
residents who have worked or can be
credited with 40 qualifying quarters, as
defined under title II of the Social
Security Act. Quarters worked either by
the individual or his or her spouse or
parents may be counted if certain
conditions, described in 8 U.S.C.
1612(b)(2)(B) and 8 U.S.C. 1645, are
met. Under 8 U.S.C. 1612(b)(2)(C),
States must provide full Medicaid
coverage to all lawfully residing
noncitizens who are an honorably
discharged veteran or an active-duty
service member in the United States
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Armed Forced as well as to spouses and
dependent children of such individuals
who meet all other eligibility
requirements under the State plan.
In accordance with 8 U.S.C.
1612(b)(2)(E) and (F), States must
provide full Medicaid benefits to certain
American Indians and noncitizens
receiving SSI. Finally, in accordance
with 8 U.S.C. 1612(b)(2)(G), States must
provide full Medicaid benefits to COFA
migrants who live in one of the 50
States or the District of Columbia.
Covering COFA migrants in the U.S.
territories, including Puerto Rico, the
Virgin Islands, Guam, the Northern
Mariana Islands, and American Samoa
is at the territory’s option. All such
individuals described in 8 U.S.C.
1612(b)(2) must meet all other eligibility
requirements in the State to be eligible
for Medicaid coverage.
Since CHIP is not a ‘‘designated
Federal program’’ under 8 U.S.C.
1612(b)(3), none of the individuals
described in 8 U.S.C. 1612 are eligible
for separate CHIP based on this statute,
though some of these individuals may
be eligible for CHIP under other statutes.
E. Administration, Eligibility, Essential
Health Benefits, Performance
Standards, Service Delivery
Requirements, Premium and Cost
Sharing, Allotments, and Reconciliation
(42 CFR Part 600)
Section 1331 of the ACA provides
States with an option to establish a
BHP.102 In States that elect to
implement a BHP, the program makes
affordable health benefits coverage
available for lawfully present
individuals under age 65 with
household incomes between 133
percent and 200 percent of the FPL (or
in the case of lawfully present
noncitizens who are ineligible for
Medicaid or CHIP due to immigration
status, with household incomes between
zero and 200 percent of the FPL) who
are not otherwise eligible for other
minimum essential coverage including
Medicaid, CHIP, or affordable employersponsored coverage. As of April 1, 2024,
there is one State that operates a BHP—
Minnesota.103
In the proposed rule, we proposed
conforming amendments to the BHP
regulations to remove the current cross102 See
42 U.S.C. 18051. See also 42 CFR part 600.
program began January 1, 2015.
New York’s BHP program began April 1, 2015 and
was suspended effective April 1, 2024. For more
information, see https://www.medicaid.gov/basichealth-program/. Also see, for example,
87 FR 77722, available at https://www.govinfo.gov/
content/pkg/FR-2022-12-20/pdf/2022-27211.pdf.
Oregon is proposing to implement a BHP effective
July 1, 2024, and it is currently pending approval
with CMS.
103 Minnesota’s
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reference to 45 CFR 152.2 in the
definition of ‘‘lawfully present’’ at 42
CFR 600.5. We proposed to amend the
definition of ‘‘lawfully present’’ in the
BHP regulations at 42 CFR 600.5 to
instead cross-reference the definition of
‘‘lawfully present’’ proposed at 45 CFR
155.20. We noted that this proposal, if
finalized, would result in DACA
recipients being considered lawfully
present for purposes of eligibility to
enroll in a BHP in a State that elects to
implement such a program, if otherwise
eligible. We also noted that, if the
proposals were finalized, the
modification would ensure that the
definition of ‘‘lawfully present’’ used to
determine eligibility for coverage under
a BHP is aligned with the definition of
‘‘lawfully present’’ used for the other
insurance affordability programs. While
we are not finalizing a lawfully present
definition for Medicaid or CHIP in this
final rule for the reasons detailed in
section I, we are finalizing a definition
of ‘‘lawfully present’’ for purposes of
BHP eligibility that will align the
definitions used for Exchanges and for
BHP.
We received public comments on
these proposals. The following is a
summary of the comments we received
and our responses.
Comment: One nonprofit organization
commenter noted that in Minnesota, a
bill was recently passed to expand the
State’s BHP to all individuals who are
otherwise eligible, regardless of
immigration status, using State funds.
The commenter notes that CMS’ rule
aligns with Minnesota’s ongoing efforts
to reduce uncompensated care costs and
improve population health.
Response: We appreciate this
commenter’s support for the rule’s
provisions to no longer exclude DACA
recipients from eligibility for a BHP.
Comment: Commenters noted and
appreciated CMS’ foresight to ensure
that DACA recipients will be able to
enroll in a BHP should other States
choose this option in the future.
Response: We agree that, should any
other States elect to operate a BHP in
the future, that DACA recipients in the
State would be considered lawfully
present for purposes of eligibility for the
BHP. Since the proposed rule was
published, Oregon has indicated that
they intend to begin operating a BHP
effective July 1, 2024, and the definition
of ‘‘lawfully present’’ finalized in this
rule will apply to Oregon’s BHP which
is currently pending approval with
CMS.
After consideration of public
comments, we are finalizing the
proposal to include a cross-reference to
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III. Severability
As described in the background
section of this rule, the ACA
generally 104 requires that to enroll in a
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.105 The ACA also generally
requires that individuals be ‘‘lawfully
present’’ to be eligible for insurance
affordability programs such as PTC,106
APTC,107 and CSRs 108 for their
Exchange coverage. Additionally,
enrollees in a BHP are required to meet
the same citizenship and immigration
requirements as QHP enrollees.109 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,110 and that CMS is required
to verify that Exchange applicants are
lawfully present in the United States.111
Since 1996, when the DOJ’s
Immigration and Naturalization Service
issued an interim final rule defining the
term ‘‘lawfully present’’ as used in the
then-recently enacted PRWORA,
104 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 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 passthrough 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 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 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 https://www.cms.gov/cciio/programs-andinitiatives/state-innovation-waivers/section_1332_
state_innovation_waivers-.
105 42 U.S.C. 18032(f)(3).
106 26 U.S.C. 36B(e)(2).
107 42 U.S.C. 18082(d).
108 42 U.S.C. 18071(e).
109 42 U.S.C. 18051(e).
110 42 U.S.C. 18032(f)(3), 42 U.S.C. 18071(e)(2).
111 42 U.S.C. 18081(c)(2)(B).
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Federal agencies have considered
deferred action recipients to be
‘‘lawfully present’’ for purposes of
certain Social Security benefits (see
Definition of the Term Lawfully Present
in the United States for Purposes of
Applying for Title II Benefits Under
Section 401(b)(2) of Public Law 104–
193, interim final rule, 61 FR 47039).
Given the lack of a statutory definition
of ‘‘lawfully present’’ in the ACA and
given the rulemaking authority granted
to CMS under 42 U.S.C. 18051 and 42
U.S.C. 18041, HHS has discretion to
determine the best legal interpretations
of these terms for purposes of
administering its programs. As
previously described, CMS’ authority to
remove the exclusion that treated DACA
recipients differently from other
noncitizens with deferred action under
the definition of ‘‘lawfully present’’ for
purposes of eligibility for health
insurance through an Exchange and a
BHP is supported by law and should be
upheld in any legal challenge.
Similarly, we are finalizing technical
changes to the definition of ‘‘lawfully
present’’ for the purposes of eligibility
for a QHP through an Exchange or a
BHP, and we believe those changes are
also well-supported in law and practice
and should be upheld in any legal
challenge. We also believe that our
exercise of our authority reflects sound
policy.
However, in the event that any
portion of this final rule is declared
invalid, we intend that the other
changes to the definition of ‘‘lawfully
present’’ would be severable. For
example, if a court were to stay or
invalidate the inclusion of one
provision in the definition of ‘‘lawfully
present,’’ for purposes of eligibility for
the Exchanges or the BHP, we intended
the remaining features in sections II.B.1
and II.B.2 of this rule to stand. Likewise,
CMS intends that if one provision of the
changes to the definition of ‘‘lawfully
present’’ is stayed or invalidated, that
other provisions within this regulation
be severable to the extent possible. For
example, if one of the provisions
discussed in section II.B.2 (Other
Changes to the ‘‘Lawfully Present’’
Definition) of the proposed rule is
stayed or invalidated, CMS intends that
the other provisions discussed in that
section be severable.
Additionally, individual portions of
this final rule have significant benefits
and would be worthwhile in
themselves. For example, a rule
consisting only of the technical and
clarifying changes in section II.B.2 of
this final rule, applied through crossreference to Exchanges and BHPs,
would allow CMS and Exchanges to
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more effectively verify the lawful
presence of noncitizens for purposes of
eligibility for health insurance
affordability programs. A rule consisting
solely of the changes in section II.B.1 of
this rule would have significant benefits
because it would increase access to
health coverage for DACA recipients.
These reasons alone would justify the
continued implementation of these
policies.
In the proposed rule, we proposed a
severability provision at 45 CFR 155.30
indicating that the provisions regarding
the definition of ‘‘lawfully present’’
proposed at 45 CFR 155.20 were
intended to be severable from each
other, as well as from the definitions of
‘‘lawfully present’’ and ‘‘lawfully
residing’’ proposed at 42 CFR 435.4. We
also proposed a provision at 42 CFR
435.12 regarding the severability of the
definitions of ‘‘lawfully present’’ and
‘‘lawfully residing’’ that were proposed
at 42 CFR 435.4.
We received public comments on
these proposals. The following is a
summary of the comments we received
and our responses.
Comment: Commenters stated support
for CMS’ inclusion of severability
clauses in the rule. Commenters stated
that they agreed with HHS that the
proposed changes are well-supported in
law and practice and that they reflect
sound policy, but that they also
recognized that the rule’s changes are
not dependent on each other and could
be implemented independently.
Response: We appreciate commenters’
agreement that the changes in this rule
are well-supported in law and practice.
We further appreciate commenters’
recognition that the provisions of this
rule are not dependent on each other
and could be implemented
independently.
After consideration of public
comments, we are finalizing the
severability clause at 45 CFR 155.30 as
proposed, with one modification to no
longer reference the definitions of
‘‘lawfully present’’ and ‘‘lawfully
residing’’ proposed at 42 CFR 435.4,
given that we are not finalizing those
definitions at this time. Because we are
not finalizing definitions of ‘‘lawfully
present’’ or ‘‘lawfully residing’’ at 42
CFR 435.4 at this time, we are also not
finalizing the proposed severability
clause that references those definitions
at 42 CFR 435.12 at this time. The
rulemaking process with regard to these
portions of the proposal is ongoing.
IV. Collection of Information
Requirements
Under the Paperwork Reduction Act
of 1995 (PRA) (44 U.S.C. 3501 et seq.),
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we are required to provide 60-day notice
in the Federal Register and solicit
public comment before a collection of
information requirement is submitted to
the Office of Management and Budget
(OMB) for review and approval. To
fairly evaluate whether an information
collection should be approved by OMB,
section 3506(c)(2)(A) of the PRA
requires that we solicit comment on the
following issues:
• The need for the information
collection and its usefulness in carrying
out the proper functions of our agency.
• The accuracy of our estimate of the
information collection burden.
• The quality, utility, and clarity of
the information to be collected.
• Recommendations to minimize the
information collection burden on the
affected public, including automated
collection techniques.
We solicited public comment on each
of these issues for the following sections
of this document that contain
information collection requirements.
A. Wage Estimates
To derive average costs in the
proposed rule, we used data from the
U.S. Department of Labor’s Bureau of
Labor Statistics’ (BLS’s) May 2021
National Occupational Employment and
Wage Estimates for all salary estimates
(https://www.bls.gov/oes/current/oes_
nat.htm).112 Since publishing the
proposed rule, more recent data has
become available, so we are modifying
all salary estimates in this final rule to
use BLS’s May 2023 National
Occupational Employment and Wage
Estimates (https://www.bls.gov/oes/
current/oes_nat.htm). In this regard,
Table 1 presents BLS’s median hourly
wage, our estimated cost of fringe
benefits and overhead (calculated at 100
percent of salary), and our adjusted
hourly wage.
TABLE 1: National Occupational Employment and Wage Estimates
15-1240
50.83
50.83
11-1021
48.69
48.69
97.38
usiness Operations Specialist
13-1000
37.74
37.74
75.48
ligibility Interviewers, Govt Programs
43-4061
24.17
24.17
48.34
For States and the private sector,
employee hourly wage estimates have
been adjusted by a factor of 100 percent
to account for fringe benefits and other
indirect costs. This is necessarily a
rough adjustment, both because fringe
benefits and other indirect costs vary
significantly across employers, and
because methods of estimating these
costs vary widely across studies.
Nonetheless, there is no practical
alternative, and we believe that
doubling the hourly wage to estimate
total cost is a reasonably accurate
estimation method.
We adopt an hourly value of time
based on after-tax wages to quantify the
opportunity cost of changes in time use
for unpaid activities. This approach
matches the default assumptions for
valuing changes in time use for
individuals undertaking administrative
and other tasks on their own time,
which are outlined in an Assistant
Secretary for Planning and Evaluation
(ASPE) report on ‘‘Valuing Time in U.S.
Department of Health and Human
Services Regulatory Impact Analyses:
Conceptual Framework and Best
Practices.’’ 113 We started with a
measurement of the usual weekly
earnings of wage and salary workers of
$1,117.114 We divided this weekly rate
by 40 hours to calculate an hourly pretax wage rate of $27.93. We adjusted
this hourly rate downwards by an
estimate of the effective tax rate for
median income households of about 17
percent, resulting in a post-tax hourly
wage rate of $23.18. We adopt this as
our estimate of the hourly value of time
for changes in time use for unpaid
activities.
112 See 88 FR 25322 through 25323 for more
information on the wage estimates used in the
proposed rule.
113 Department of Health and Human Services,
Office of the Assistant Secretary for Planning and
Evaluation. ‘‘Valuing Time in U.S. Department of
Health and Human Services Regulatory Impact
Analyses: Conceptual Framework and Best
Practices.’’ (2017) https://aspe.hhs.gov/reports/
valuing-time-us-department-health-human-servicesregulatory-impact-analyses-conceptual-framework.
114 U.S. Bureau of Labor Statistics. Employed full
time: Median usual weekly nominal earnings
(second quartile): Wage and salary workers: 16
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B. Information Collection Requirements
(ICRs)
1. ICRs Regarding Medicaid and CHIP
a. Medicaid and CHIP and the CHIPRA
214 Option (42 CFR 435.4 and
457.320(c))
Changes related to our Medicaid and
CHIP proposals related to the CHIPRA
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214 option were submitted to OMB for
review under OMB Control Number
0938–1147 (CMS–10410). We are not
finalizing these provisions at this time
and as such, are not updating PRA
burden estimates.
We continue to consider the public
comments on the Medicaid and CHIP
proposals that we received; thus, we are
not responding to these comments in
the final rule at this time.
b. CHIP Changes Related to the CAA,
2024 (42 CFR 435.4 and 457.320(b))
Since the time of the proposed rule,
and as discussed earlier in this final
rule, under the CAA, 2024 COFA
migrants are now considered qualified
noncitizens for the purposes of
eligibility for CHIP, effective March 9,
2024, if they meet all other eligibility
requirements for CHIP. This change
does not impact Medicaid, Exchanges,
or BHP. Therefore, we have updated our
regulations to reflect the statutory
change extending eligibility for CHIP to
COFA migrants.
years and over [LEU0252881500A], retrieved from
FRED, Federal Reserve Bank of St. Louis; https://
fred.stlouisfed.org/series/LEU0252881500A. Annual
Estimate, 2023.
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The impact of this change will be very
minimal and will impact only those
States that have a separate CHIP, and
that have not elected the CHIPRA 214
option for at least one population of
pregnant individuals or children in their
separate CHIPs. Since COFA migrants
are already eligible for CHIP in States
that have elected the CHIPRA 214
option, as reflected in a 2021 SHO
letter,115 we only estimate impact for
States with a separate CHIP that have
not elected the CHIPRA 214 option.
Using data from the GAO for the most
recent year we could obtain,116 which
estimated that the total US population
of COFA migrants was 94,000, and then
estimating how many may be living in
States under the previously described
conditions, we estimate approximately
12,225 COFA migrants live in States
impacted by this change, primarily
within six of those States. Accounting
further for how many would actually be
eligible under the remaining CHIP
eligibility criteria, and then would seek
to enroll, we believe the impact of this
change to be very minimal. Therefore,
and because this change is based on a
statutory change and not the result of a
policy in this final rule, we are not
including more extensive burden
estimates in this or section V. of this
final rule.
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2. ICRs Regarding the BHP (42 CFR
600.5)
The following changes were
submitted to OMB for review under
OMB Control Number 0938–1218
(CMS–10510).
In the proposed rule, we estimated a
one-time burden of 200 hours at a cost
of $18,863 for completing the necessary
updates to a BHP application. We are
modifying the estimates in this final
rule to reflect the updated wage
estimates as outlined in section IV.A of
this final rule. We did not receive public
comments on the method of deriving
these burden estimates in the proposed
rule, and we are therefore finalizing
them using the proposed methodology
with the updated wage estimates.
The impact of completing the
necessary changes to the BHP
application is with regards to the two
States that will operate BHPs as of the
effective date of this rule—Minnesota
and Oregon.117 Although Oregon’s BHP
115 See SHO #21–005, available at https://
www.medicaid.gov/federal-policy-guidance/
downloads/sho21005.pdf.
116 Compacts of Free Association: Populations in
U.S. Areas Have Grown, with Varying Reported
Effects, June 2020, available at https://www.gao.gov/
assets/gao-20-491.pdf.
117 Minnesota’s BHP began January 1, 2015.
Oregon’s BHP is projected to begin July 1, 2024, and
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is still pending CMS approval, we are
including it in our estimate in order to
best reflect which States we anticipate
may be impacted when this rule
becomes effective. We estimate that it
will take each State 100 hours to
develop and code the changes to its BHP
eligibility and verification system to
correctly evaluate eligibility under the
revised definition of ‘‘lawfully present’’
to include DACA recipients and certain
other limited groups of noncitizens as
outlined in section II.B.2 of this final
rule. This estimate is based on past
experience with similar system changes.
To be conservative in our estimates, we
assume 100 hours per State, but it is
important to note that it may take each
State less than 100 hours given the
overlap in State eligibility and
verification systems, as work completed
for the State Exchange system may be
the same for its BHP.
Of those 100 hours, we estimate it
would take a database and network
administrator and architect 25 hours at
$101.66 per hour and a computer
programmer 75 hours at $95.88 per
hour. In the aggregate, we estimate a
one-time burden of 200 hours (2 States
× 100 hours) at a cost of $19,465 (2
States × [(25 hours × $101.66 per hour)
+ (75 hours × $95.88 per hour)]) for
completing the necessary updates to a
BHP application.
We note that the policies in this final
rule will impose additional costs on
BHP agencies to process the
applications for individuals impacted
by these policies. Those impacts are
accounted for under OMB Control
Number 0938–1191 (Data Collection to
Support Eligibility Determinations for
Insurance Affordability Programs and
Enrollment through Health Insurance
Marketplaces, Medicaid and Children’s
Health Insurance Program Agencies
(CMS–10440)), discussed in section
IV.B.3 of this final rule, which pertains
to the streamlined application.
3. ICRs Regarding the Exchanges and
Processing Streamlined Applications
(45 CFR 152.2 and 155.20, and 42 CFR
600.5)
The following changes were
submitted to OMB for review under
OMB Control Number 0938–1191
(CMS–10440).
In the proposed rule, we estimated a
one-time burden of 1,900 hours at a cost
of $179,199 for completing the
necessary updates to eligibility and
enrollment platforms. We are modifying
is pending CMS approval. New York suspended its
BHP effective April 1, 2024. For more information,
see https://www.medicaid.gov/basic-healthprogram/.
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the estimates in this final rule to reflect
the updated wage estimates as outlined
in section IV.A of this final rule. As
discussed previously, the changes to the
definition of ‘‘lawfully present’’ will
impact eligibility to enroll in a QHP
through an Exchange and for APTC and
CSRs. This change applies to the 18
State Exchanges not on the Federal
platform, as well as the Federal
Government, which will make changes
to the Federal eligibility and enrollment
platform for the States with Federallyfacilitated Exchanges (FFEs) and Statebased Exchanges on the Federal
platform (SBE–FPs). We estimate that it
will take the Federal Government and
each of the State Exchanges not on the
Federal platform 100 hours in 2024 to
develop and code the changes to their
eligibility systems to correctly evaluate
and verify eligibility under the
definition of ‘‘lawfully present’’ that is
revised to include DACA recipients and
certain other limited groups of
noncitizens as outlined in section II.B.2
of this final rule. We do not expect
States operating SBE–FPs to incur any
implementation costs related to
Exchange eligibility and enrollment
platform changes. These estimates are
based on past experience with similar
system changes.
Of those 100 hours, we estimate it
would take a database and network
administrator and architect 25 hours at
$101.66 per hour and a computer
programmer 75 hours at $95.88 per
hour. In aggregate for the State
Exchanges not on the Federal platform,
we estimate a one-time burden in 2024
of 1,800 hours (18 State Exchanges ×
100 hours) at a cost of $175,185 (18
States × [(25 hours × $101.66 per hour)
+ (75 hours × $95.88 per hour)]) for
completing the necessary updates to
State Exchange systems. For the Federal
Government, we estimate a one-time
burden in 2024 of 100 hours at a cost
of $9,733 ((25 hours × $101.66 per hour)
+ (75 hours × $95.88 per hour)). In total,
the burden associated with all system
updates will be 1,900 hours at a cost of
$184,918.
‘‘Data Collection to Support Eligibility
Determinations for Insurance
Affordability Programs and Enrollment
through Health Benefits Exchanges,
Medicaid and CHIP Agencies,’’ OMB
Control Number 0938–1191 (CMS–
10440), accounts for burdens associated
with the streamlined application for
enrollment in the programs impacted by
this rule. As such, the following
information collection addresses the
burden of processing applications and
assisting enrollees with BHP and QHP
enrollment, and those impacts are not
reflected in the ICRs for BHPs,
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discussed in section IV.B.2 of this final
rule. In the proposed rule, we estimated
that the total burden of application
processing and assisting enrollees with
Medicaid, CHIP, BHP, and QHP
enrollment would be 34,000 hours for a
total cost of $1,587,800, where the total
burden on States would be 18,397 hours
annually at a cost of $859,140, and the
total burden on the Federal Government
would be 15,603 hours annually at a
cost of $728,660. We sought comment
on these estimates and the methodology
and assumptions used to calculate them.
We are updating the estimates in this
final rule to reflect that we are not
finalizing the proposed changes for
Medicaid and CHIP and that we have
modified the estimates with the updated
wage estimates as outlined in section
IV.A of this final rule and the most
recent available data on DACA
recipients.
For assisting additional eligible
enrollees and processing their
applications, we estimate this will take
a government programs eligibility
interviewer 10 minutes (0.17 hours) per
application at a rate of $48.34 per hour,
for a cost of approximately $8.22 per
application. This estimate is based on
past experience with similar application
changes. As outlined further in section
IV.B.4 of this final rule, we anticipate
that approximately 147,000 individuals
impacted by this final rule will
complete the application annually.
Therefore, the total application
processing burden associated with the
policies in this final rule will be 24,990
hours (0.17 hours × 147,000
applications) for a total cost of
$1,208,017 (24,990 hours × $48.34 per
hour). As discussed further in this
section, we anticipate that
approximately 52 percent of the
application processing burden will fall
on States, while the remaining
approximately 48 percent will be borne
by the Federal Government. We estimate
these proportions as follows.
To start, we estimate the percentage of
applications that will be processed for
the Exchanges and BHPs. We assume
that the proportion of applications that
will be processed for each program will
be equivalent to the proportion of
individuals impacted by the policies in
this final rule that would enroll in each
program. As outlined in section V.C. of
this final rule, we estimate that of the
100,000 individuals impacted by the
policies in this rule, 99,000 will enroll
in the Exchanges (99 percent), and 1,000
(1 percent) in BHPs on average each
year, including redeterminations and reenrollments. Using these same
proportions, out of the 147,000
applications anticipated to result from
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the policies in this final rule, we
estimate 145,000 applications will be
processed for the Exchanges, and 2,000
will be processed for BHPs on average
each year.
Next, we calculate the proportion of
each program’s application processing
costs that are borne by States compared
to the Federal Government. The entire
information collection burden
associated with changes to BHPs falls on
the two States with BHPs—Minnesota
and Oregon.118 As such, we assume 100
percent of the BHP application
processing costs will fall on these two
States. For the Exchanges, we use data
from the 2024 Open Enrollment Period
to estimate the proportion of
applications that are processed by States
compared to the Federal Government,
and we determined that 49 percent of
Exchange applications were submitted
to FFEs/SBE–FPs, and are therefore
processed by the Federal Government,
while 51 percent were submitted to and
processed by the 18 State Exchanges not
on the Federal platform.119 As such, we
anticipate that 49 percent of Exchange
application processing costs will fall on
the Federal Government and 51 percent
of Exchange application processing
costs will fall on States using their own
eligibility and enrollment platforms. We
do not expect States operating SBE–FPs
to incur any application processing
costs as these applications, and the costs
associated with them, will fall on the
Federal Government.
Finally, we apply the proportion of
applications we estimated for each
program we discussed earlier to the
State and Federal burden proportions.
Using the per-application processing
burden discussed earlier in this ICR (10
minutes, or 0.17 hours, per application
at a rate of $48.34 per hour) for BHPs,
if we estimate 2,000 applications will be
processed, the burden for all of those
will be borne by the States. Using the
per-application processing burden of 10
minutes (0.17 hours) per application at
a rate of $48.34 per hour, this results in
a burden of 340 hours, or $16,436, for
States to process BHP applications. For
the Exchanges, if we estimate 145,000
applications will be processed, 51
percent of those (73,950) will be
processed by State Exchanges not on the
Federal platform and 49 percent
(71,050) will be processed by the
118 Minnesota’s BHP began January 1, 2015.
Oregon’s BHP is projected to begin July 1, 2024, and
is pending CMS approval. For more information,
see https://www.medicaid.gov/basic-healthprogram/.
119 Centers for Medicare & Medicaid Services.
(2024). 2024 Open Enrollment Report. https://
www.cms.gov/files/document/health-insuranceexchanges-2024-open-enrollment-report-final.pdf.
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Federal Government. Using the perapplication processing burden of 10
minutes (0.17 hours) per application at
a rate of $48.34 per hour, this results in
a burden of 12,572 hours, or $607,706,
for State Exchanges not on the Federal
platform and 12,079 hours, or $583,875,
for the Federal Government.
Therefore, the total burden on State
Exchanges not on the Federal platform
to assist eligible beneficiaries and
process their applications will be 12,912
hours annually (340 hours for BHP +
12,572 hours for State Exchanges not on
the Federal platform) at a cost of
$624,142, and the total burden on the
Federal Government will be 12,079
hours annually (entirely for Exchanges)
at a cost of $583,875.
We received public comments on the
estimates outlined in the proposed rule.
We are finalizing the proposed
methodology of deriving these burden
estimates with the updated wage
estimates as outlined in section IV.A of
this final rule and the most recent
available data on DACA recipients and
application processing. The following is
a summary of the comments we
received and our responses.
Comment: Some State Exchanges
stated concerns about whether they
would be able to implement the rule’s
provisions by the November 1, 2023
proposed effective date but did not
express concern about the overall
burden on State agencies of making
systems changes or processing new
applications for impacted populations.
Response: We understand that some
State Exchanges not on the Federal
platform will need to make changes to
their eligibility and enrollment systems
to correctly determine eligibility for
DACA recipients and the other
individuals impacted by the revised
lawfully present definition. We are
committed to providing State Exchanges
with technical assistance and any
additional support needed to ensure
that States are able to correctly
determine eligibility for DACA
recipients and other impacted
noncitizens by this final rule’s
November 1, 2024 effective date. We are
also committed to working with State
Exchanges not on the Federal platform
and BHP agencies to identify any
potential manual workarounds that may
be needed to correctly determine
eligibility prior to full systems changes
being in place.
Comment: Commenters noted that
they expected that the technical changes
made to the definition of lawfully
present discussed in section II.B.2 of
this final rule would reduce application
processing burdens for State Exchanges
in the future, given that they are
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expected to make it easier for State
Exchanges to verify applicants’ lawful
presence through DHS SAVE.
Response: We agree that including
DACA recipients and making the
technical changes discussed in this rule
will streamline application processing
and make electronic verification of
immigration status through SAVE more
efficient, by both decreasing DHS’
workload in verifying immigration
status at Steps Two and Three, which
require manual intervention, and by no
longer requiring eligibility caseworkers
to resubmit a request for additional
information or provide additional
documentation.
After consideration of public
comments, we are finalizing these
burden estimates using the proposed
methodology with the most recent
available data as described above.
4. ICRs Regarding the Application
Process for Applicants
The following changes were
submitted to OMB for review under
OMB Control Number 0938–1191
(CMS–10440).
As required by the ACA, there is one
application through which individuals
may apply for health coverage in a QHP
through an Exchange and for other
insurance affordability programs like
Medicaid, CHIP, and a BHP.120 In the
proposed rule, we assumed the burden
of completing an Exchange application
was essentially the same as applying
with a State Medicaid or CHIP agency,
and therefore we did not distinguish
between these populations. In the
proposed rule, we estimated the total
annual additional burden on all
individuals impacted by the proposed
changes by completing the application
or submitting documentation to verify
their lawful presence would be
approximately 163,000 hours with an
equivalent cost of approximately
$3,375,730. We sought comment on
these burden estimates. We are updating
the estimates in this final rule to reflect
that we are not finalizing the proposed
changes for Medicaid and CHIP and to
reflect the most recent available data,
which includes the updated wage
estimates in section IV.A of this rule,
and the most recent available data on
DACA recipients and open enrollment.
Based on the enrollment projections
discussed in the Regulatory Impact
Analysis section later in this rule, we
anticipate that DACA recipients will
represent the majority of individuals
impacted by this final rule, and we are
unable to quantify the number of nonDACA recipients impacted by the other
120 42
U.S.C. 18083.
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changes in this rule, but we expect the
number to be small. We estimate that
there are 147,000 uninsured DACA
recipients based on USCIS data on
active DACA recipients (545,000 in
2023) 121 and a 2022 survey by the
National Immigration Law Center
stating that 27 percent of DACA
recipients are uninsured,122 and we
assume that 100 percent of uninsured
DACA recipients will apply for
coverage.123 As such, we anticipate that
approximately 147,000 individuals
impacted by the proposals in this rule
will complete the application annually.
In the existing information collection
request for this application OMB
Control Number 0938–1191, we
estimate that the application process
will take an average of 30 minutes (0.5
hours) to complete for those applying
for insurance affordability programs and
15 minutes (0.25 hours) for those
applying without consideration for
insurance affordability programs.124 We
estimate that of the 147,000 individuals
impacted by the proposed changes, 98
percent will be applying for insurance
affordability programs and 2 percent
will be applying without consideration
for insurance affordability programs.
Using the hourly value of time for
changes in time use for unpaid activities
discussed in section IV.A of this final
rule (at an hourly rate of $23.18), the
average opportunity cost to an
individual for completing this task is
estimated to be approximately 0.495
hours ((0.5 hours × 98 percent) + (0.25
hours × 2 percent)) at a cost of $11.47.
The total annual additional burden on
the 147,000 individuals impacted by the
changes in this final rule will be
approximately 72,765 hours with an
equivalent cost of approximately
$1,686,693.
121 Count of Active DACA Recipients by Month
of Current DACA Expiration as of September 30,
2023. U.S. Citizenship and Immigration Services.
https://www.uscis.gov/sites/default/files/document/
data/active_daca_recipients_fy23_q4.pdf.
122 National Immigration Law Center. DACA
Recipients’ Access to Health Care: 2023 Report.
(2023) https://www.nilc.org/wp-content/uploads/
2023/05/NILC_DACA-Report_2023.pdf.
123 While some individuals impacted by the
changes in this final rule may not apply for
coverage, we are unable to quantify the proportion
of uninsured DACA recipients who would choose
not to apply. Because uninsured DACA recipients
would likely benefit from becoming insured, we
assume 100 percent of DACA recipients will apply
for coverage.
124 It is possible that some individuals impacted
by the proposed changes to the definition of lawful
presence in this rule would apply using the paper
application, but internal CMS data show that this
would be less than 1 percent of applications.
Therefore, we are using estimates in this analysis
to reflect that nearly all applicants would apply
using the electronic application.
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As stated earlier in this final rule,
Exchanges and BHP agencies will
require individuals completing the
application to submit supporting
documentation to confirm their lawful
presence if they are unable to be verified
electronically. An applicant’s lawful
presence may not be able to be verified
electronically if, for example, the
applicant opts to not include
information about their immigration
documentation, such as their alien
number or Employment Authorization
Document (EAD) number, when they fill
out the application. We estimate that of
the 147,000 individuals impacted by the
changes as finalized, approximately 54
percent (or 79,380) of applicants will be
able to have their lawful presence
electronically verified, and the
remaining 46 percent (or 67,620) of
applicants will be unable to have their
lawful presence electronically verified
and will therefore have to submit
supporting documentation to confirm
their lawful presence.125 We estimate
that a consumer will, on average, spend
approximately 1 hour gathering and
submitting required documentation.
Using the hourly value of time for
changes in time use for unpaid activities
discussed in section IV.A of this final
rule (at an hourly rate of $23.18), the
opportunity cost for an individual to
complete this task is estimated to be
approximately $23.18. The total annual
additional burden on the 67,620
individuals impacted by the changes
finalized in this rule who are unable to
electronically verify their lawful
presence and therefore need to submit
supporting documentation will be
approximately 67,620 hours with an
equivalent cost of approximately
$1,567,432.
As previously stated, for the 147,000
individuals impacted by this rule, the
annual additional burden of completing
the application will be 0.495 hours per
individual on average, which totals to
72,765 hours at a cost of $1,686,693. For
the 67,620 individuals who are unable
to have their lawful presence
electronically verified, the total annual
burden of submitting documentation to
verify their lawful presence will be
67,620 hours at a cost of $1,567,432.
Therefore, the average annual burden
per respondent will be 0.955 hours
((0.495 hours × 54 percent of
individuals) + (1.495 hours × 46 percent
of individuals)), and the total annual
125 This estimate is informed by recent data from
the FFEs and SBE–FPs. While certain changes
proposed in this rule may result in an increase in
the proportion of applicants who are able to have
their lawful presence electronically verified, we do
not have a reliable way to quantify any potential
increase.
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individuals may apply for health
coverage in a QHP through an Exchange
and for other insurance affordability
programs like a BHP.
Response: We agree that the burden of
completing an application is essentially
the same regardless of whether the
individual was to apply directly with
their BHP agency or with an Exchange.
As we are not finalizing our proposals
related to Medicaid and CHIP at this
time, there will not be a change in the
application process for Medicaid and
CHIP.
Comment: One commenter stated that
the changes in the rule ‘‘will not result
in an increased application burden for
impacted individuals.’’
Response: We have considered this
comment and continue to believe that
the burden estimates associated with the
policies in this final rule are reasonable
burden on all of these individuals
impacted by the proposed changes in
this rule will be 140,385 hours at a cost
of $3,254,124.
We received public comments on the
estimates outlined in the proposed rule.
As previously mentioned, we are
updating the estimates in this final rule
to reflect that we are not finalizing the
proposed changes for Medicaid and
CHIP and to reflect the most recent
available data. The following is a
summary of the comments we received
and our responses.
Comment: One commenter agreed
with CMS’ assumption that regardless of
where an individual applies, the burden
of completing an application is
essentially the same. The commenter
further affirmed CMS’ statement that, as
required by the ACA, there is generally
one application through which
and in line with the burden estimates in
the currently approved PRA package
OMB Control Number 0938–1191.
However, we acknowledge that the
actual application burden may vary
depending on the applicant. We are
hopeful that the changes in this rule
will not overburden individuals in the
application process. Additionally, we
clarify that as discussed earlier in this
ICR section, we submitted the burden
changes associated with this ICR to
OMB for review under OMB Control
Number 0938–1191.
After consideration of public
comments, we are finalizing these
burden estimates using the methodology
as proposed with the most recent
available data.
C. Burden Estimate Summary
TABLE 2: Summary of Final Burden Estimates
45 CFR 152.2
and 155.20
Exchange
System
Chan es
42 CFR 600.5,
45 CFR 152.2
and 155.20
Streamlined
Application
Processin
42CFR
600.5,
45 CFR 152.2
and 155.20
Application
Process for
A licants
09381191
(CMS10440)
09381191
(CMS10440)
09381191
(CMS10440)
2024
2
2
100
200
Varies
$19,465
$19,465
NIA
2024
19
19
100
1,900
Varies
$184,918
$175,185
NIA
20252028
147,00
0
147,000
0.17
24,990
$48.34
$1,208,017
$624,142
NIA
20252028
147,00
0
147,000
0.96
140,385
$23.18
$3,254,124
NIA
$3,254,124
V. Regulatory Impact Analysis
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A. Statement of Need
This final rule updates the definition
of ‘‘lawfully present’’ in our regulations
for certain CMS programs. This
definition is currently used to determine
whether a consumer is eligible to enroll
in a QHP through an Exchange and for
APTC and CSRs, and whether a
consumer is eligible to enroll in a BHP
in States that elect to operate a BHP. In
addition, we are removing the exception
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for DACA recipients from the
definitions of ‘‘lawfully present’’ used to
determine eligibility to enroll in a QHP
through an Exchange or a BHP, and we
are instead treating DACA recipients the
same as other deferred action recipients.
We are also finalizing some
modifications to the ‘‘lawfully present’’
definition currently at 45 CFR 152.2 that
incorporate additional detail,
clarifications, and some technical
modifications for the Exchanges and
BHPs. We are not finalizing changes to
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the Medicaid and CHIP programs with
respect to the definitions of ‘‘lawfully
present’’ at this time.
B. Overall Impact
We have examined the impacts of this
rule as required by Executive Order
12866 on Regulatory Planning and
Review (September 30, 1993), Executive
Order 13563 on Improving Regulation
and Regulatory Review (January 18,
2011), Executive Order 14094 on
Modernizing Regulatory Review (April
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Changes
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Federal Register / Vol. 89, No. 90 / Wednesday, May 8, 2024 / Rules and Regulations
6, 2023), the Regulatory Flexibility Act
(RFA) (September 19, 1980, Pub. L. 96–
354), section 1102(b) of the Act, section
202 of the Unfunded Mandates Reform
Act of 1995 (March 22, 1995; Pub. L.
104–4), Executive Order 13132 on
Federalism (August 4, 1999), and the
Congressional Review Act (5 U.S.C.
804(2)).
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Section 3(f) of Executive Order
12866, as amended by Executive Order
14094, defines a ‘‘significant regulatory
action’’ as an action that is likely to
result in a rule that may: (1) have an
annual effect on the economy of $200
million or more (adjusted every 3 years
by the Administrator of OMB’s Office of
Information and Regulatory Affairs
(OIRA) for changes in gross domestic
product), or adversely affect in a
material way the economy, a sector of
the economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, territorial or tribal
governments or communities; (2) create
a serious inconsistency or otherwise
interfere with an action taken or
planned by another agency; (3)
materially alter the budgetary impacts of
entitlement, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) raise legal or
policy issues for which centralized
review will meaningfully further the
President’s priorities or the principles
set forth in the Executive order, as
specifically authorized in a timely
manner by the Administrator of OIRA.
Based on our estimates, OIRA has
determined that this rulemaking is a
significant regulatory action under
section 3(f)(1) Executive Order 12866.
Accordingly, we have prepared a
regulatory impact analysis (RIA) that to
the best of our ability presents the costs
and benefits of the rulemaking.
Therefore, OMB has reviewed these
final regulations, and we have provided
the following assessment of their
impact.
Pursuant to Subtitle E of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (also known as the
Congressional Review Act, 5 U.S.C 801
et seq.), OIRA has determined that this
rule does meet the criteria set forth in
5 U.S.C. 804(2). Accordingly, this rule
has been submitted to each House of the
Congress and to the Comptroller General
a report containing a copy of the rule
along with other specified information.
126 The estimates in this RIA are based on DHS’
current implementation of the DHS DACA final
rule, consistent with the court orders in Texas v.
United States, 50 F.4th 498 (5th Cir. 2022) and
Texas v. United States, 1:18–cv–0068 (S.D. Tex.
Oct. 14, 2022), whereby DHS continues to accept
the filing of both initial and renewal DACA requests
and related applications for employment
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C. Detailed Economic Analysis
We prepared the economic impact
estimates utilizing a baseline of ‘‘no
action,’’ comparing the effect of the
policies against not finalizing the rule at
all.
This analysis reviews the
amendments finalized under 42 CFR
600.5, and 45 CFR 152.2 and 155.20,
which will add the following changes to
the definition of lawfully present by
making technical modifications to add
the following new categories of
noncitizens to this definition via this
regulation:
• Those granted deferred action
under DACA;
• Those granted employment
authorization under 8 CFR
274a.12(c)(35) and (36);
• Additional Family Unity
beneficiaries;
• Individuals with a pending
application for adjustment of status,
without regard to whether they have an
approved visa petition;
• Children under 14 with a pending
application for asylum, withholding of
removal, or protection under CAT or
children under 14 who are listed as a
dependent on a parent’s pending
application, without regard to the length
of time that the application has been
pending; and
• Individuals with an approved
petition for SIJ classification.
The amendments finalized under 42
CFR 600.5 and 45 CFR 152.2 and 155.20
will also:
• Revise the description of
noncitizens who are nonimmigrants to
include all nonimmigrants who have a
valid and unexpired status;
• Remove individuals with a pending
application for asylum, withholding of
removal, or CAT protection who are
over age 14 from the definition, as these
individuals are covered elsewhere; and
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39427
• Simplify the definition of
noncitizens with an EAD to include all
individuals granted employment
authorization under 8 CFR 274a.12(c),
as these individuals are already covered
elsewhere, with the exception of a
modest expansion to those granted
employment authorization under 8 CFR
274a.12(c)(35) and (36), discussed
earlier in this final rule.
In these respects, the technical
modifications that do not relate to
DACA recipients contained in this rule
are generally technical changes or
revisions to simplify verification
processes, and therefore, we anticipate a
modest impact on individuals’
eligibility as a result of these changes.
We sought comment on estimates or
data sources we could use to provide
quantitative estimates for the benefit to
these individuals. The proposed
regulation also adds those granted
deferred action under DACA to the
definition. As noted further in this
section, we estimate that 100,000 DACA
recipients will enroll in health coverage
and benefit from the proposals in this
rule.126 We are unable to quantify the
number of additional Family Unity
beneficiaries, individuals with a
pending application for adjustment of
status, children under age 14 with a
pending application for asylum or
related protection or children listed as
dependents on a parent’s application for
asylum or related protection, and
individuals with approved petition for
SIJ classification, or individuals granted
employment authorization under 8 CFR
274a.12(c)(35) or (36) that could enroll
in health coverage and benefit from the
proposals in this rule, but we expect
this number to be small. We sought
comment on estimates or data sources
we could use to provide quantitative
estimates for the benefit to these
individuals.
The changes to 42 CFR 600.5 will no
longer exclude DACA recipients from
the definition of ‘‘lawfully present’’
used to determine eligibility for a BHP
in those States that elect to operate the
program, if otherwise eligible. The
changes to 45 CFR 152.2 and 155.20 will
make DACA recipients eligible to enroll
in a QHP through an Exchange, and for
APTC and CSRs, if otherwise eligible.
We present enrollment estimates for
these populations in Table 3.
authorization but is only processing renewal
requests.
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TABLE 3: Enrollment Estimates by Program, Coverage Years 2024 - 2028
Exchange
Enrollment
Total Enrollment
0
1,000
1,000
1,000
1,000
0
99,000
85,000
85,000
85,000
0
100,000
86,000
86,000
86,000
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In the proposed rule, we estimated an
enrollment impact of about 129,000.127
We sought comment on these estimates
and the assumptions and methodology
used to calculate them. We are
modifying the estimates in this final
rule to reflect that we are not finalizing
the proposed changes for Medicaid and
CHIP and to reflect the States that will
operate BHPs as of the effective date of
this rule and the most recent available
data on DACA recipients.128 129 To
estimate the enrollment impact on the
Exchanges and the BHPs, we started
with an estimate of the DACA
population. USCIS has estimated this
count to be 545,000 persons as of
September 30, 2023.130 Based on a 2022
survey from the National Immigration
Law Center,131 roughly 27 percent of
DACA recipients were uninsured. In
addition, we assume that approximately
70 percent of this group will opt to
enroll in the Exchanges and BHPs. This
results in an enrollment impact of about
100,000 persons for both the Exchanges
and BHP.132 Based on internal
127 See 88 FR 25327 through 25329 for a
discussion of the proposed enrollment estimates by
program.
128 The Exchange enrollment estimates in this
final rule have been updated to account for the
DACA recipients that would have enrolled in
Medicaid under the policies in the proposed rule
but will now enroll in a QHP through an Exchange
based on the finalized policies.
129 The BHP enrollment estimates in the proposed
rule assumed that New York and Minnesota would
be States impacted by the BHP changes in the
proposed rule. The BHP enrollment estimates in
this final rule reflect that Minnesota and Oregon
will be States impacted by the finalized BHP
changes. The data on the number of DACA
recipients, as well as the average age of DACA
recipients and the percent of DACA recipients that
are uninsured has been updated since the proposed
rule. See 88 FR 25327 through 25329 for more detail
on the estimates in the proposed rule.
130 Count of Active DACA Recipients by Month
of Current DACA Expiration as of September 30,
2023. U.S. Citizenship and Immigration Services.
https://www.uscis.gov/sites/default/files/document/
data/active_daca_recipients_fy23_q4.pdf.
131 National Immigration Law Center, 2023.
DACA Recipients’ Access to Health Care: 2023
Report. (2023). https://www.nilc.org/wp-content/
uploads/2023/05/NILC_DACA-Report_2023.pdf.
132 This enrollment estimate does not include
DACA recipients who are now expected to be
covered under New York’s Essential Plan
Expansion, effective April 1, 2024, as they will not
be impacted by this final rule. For more
information, see https://www.cms.gov/marketplace/
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enrollment data, we estimate that 1,000
people will enroll in the BHPs in
Minnesota and Oregon,133 and the
remaining 99,000 will enroll in the
Exchanges.
The changes to 42 CFR 600.5 will no
longer exclude DACA recipients from
the definition of lawfully present used
to determine eligibility for a BHP in
those States that elect to operate the
program, if otherwise eligible. There
may be an effect on the BHP risk pool
as a result of this change, as DACA
recipients are relatively younger and
healthier than the general population,
based on USCIS data showing an
average age of 30 years.134 135
The changes to 45 CFR 152.2 and
155.20 will make DACA recipients
eligible to enroll in a QHP through an
Exchange, and for APTC and CSRs, if
otherwise eligible. Similar to BHP
eligibility, there may be a slight effect
on the States’ individual market risk
pools. In addition, the modifications to
the definition of ‘‘lawfully present’’
discussed in section II.B.2. of this rule
will reduce burden on Exchanges and
BHPs by allowing them to more
frequently verify a noncitizen’s status
with a trusted source of data and to not
have to request additional information
from consumers. This change will
promote simplicity and consistency in
program administration, and further
program integrity resulting from the
increased reliance on a trusted Federal
source of data. We sought comment on
estimates or data sources we could use
states/section-1332-state-innovation-waivers#To%
20view%20New%20York's%20application%
20materials,%20please%20visit%20
the%20New%20York%20waiver%20section%
20of%20this%20webpage%20below.
133 Minnesota’s BHP began January 1, 2015.
Oregon’s BHP is projected to begin July 1, 2024, and
is pending CMS approval. For more information,
see https://www.medicaid.gov/basic-healthprogram/.
134 USCIS. Count of Active DACA Recipients by
Month of Current DACA Expiration as of September
30, 2023. https://www.uscis.gov/sites/default/files/
document/data/active_daca_recipients_fy23_
q4.pdf.
135 In the proposed rule, the available USCIS data
at the time showed an average age of 29 years. We
sought comment on any estimates or data sources
we could use to provide quantitative estimates for
the associated effects, including benefit to these
individuals. See 88 FR 25328.
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to provide quantitative estimates for this
benefit.
In addition, increased access to health
coverage for DACA recipients and other
noncitizens impacted by the proposals
in this rule will ensure increased access
to health care services for these
populations, which in turn may
decrease costs for emergency medical
expenditures. Further, the policies in
this rule will improve the health and
well-being of many individuals that are
currently without coverage, as having
health insurance makes individuals
healthier. Individuals without insurance
are less likely to receive preventive or
routine health screenings and may delay
necessary medical care, incurring high
costs and debts. In addition to the
improvement of health outcomes, these
individuals will be more productive and
better able to contribute economically,
as studies have found that workers with
health insurance are estimated to miss
77 percent fewer workdays than
uninsured workers.136
We sought comment on these effects
and any other potential benefits that
may result from the proposals in this
rule.
We received public comments on
these effects. The following is a
summary of the comments we received
and our responses.
Comment: Commenters provided
comments related to CMS’ estimates for
the number of individuals who will
newly enroll in health insurance
coverage through an Exchange,
Medicaid, CHIP, or a BHP. Commenters
agreed with CMS’ assumption that no
longer excluding DACA recipients from
eligibility for APTC and CSRs would
make such individuals more likely to
enroll in coverage.
Commenters also offered details
specific to their States and localities.
One State department of insurance cited
an estimate that of the 40,000 uninsured
DACA recipients in California with
incomes above the Medi-Cal threshold,
30,000 would enroll in subsidized
136 Dizioli, Allan and Pinheiro, Roberto. (2016).
Health Insurance as a Productive Factor. Labour
Economics. https://doi.org/10.1016/j.labeco.
2016.03.002.
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coverage through Covered California.137
One commenter agreed with CMS’
assumption that none of the proposed
technical changes to the definition of
‘‘lawfully present’’ would result in a
significant number of individuals
gaining coverage. Nevertheless, the
commenter believed that such changes
were still important given their
potential to significantly benefit
impacted individuals and their families,
often at very vulnerable points in their
lives.
Response: These enrollment
projections align with our projections as
presented in the proposed rule and in
this final rule. As previously stated, we
are not finalizing the proposed changes
for Medicaid and CHIP at this time, and
therefore the enrollment projections in
this final rule only reflect the BHP and
Exchange enrollment impact.
Additionally, we agree that the
technical changes to the definition of
‘‘lawfully present’’ are important due to
the potential benefit to the individuals
and families impacted by these changes.
Comment: Commenters provided
detailed analysis of the benefits they
expected this rule would convey. These
benefits, discussed in detail in section
II.B.1., include increased access to care,
improved health outcomes, reduced
disparities, decreased reliance on
uncompensated care and emergency
department care, and strengthened
workforce, education systems, and local
economies. Many commenters pointed
out how the provisions of this rule will
benefit not only DACA recipients and
other impacted noncitizens, but their
families and communities as well.
Commenters further noted that they
believed this rule would improve
individual market Exchange risk pools,
due to DACA recipients’ age and health
status as compared to current Exchange
enrollees, and that improvements to the
risk pool could result in cost savings for
health insurance issuers in the form of
lower claims costs and for individuals
in the form of lower health insurance
premiums. One commenter, a nonprofit
organization, noted that after New York
and California established State-funded
Medicaid options for DACA recipients,
DACA-eligible individuals were 4
percent more likely to report having
health insurance in those States as
compared to other States that did not
expand eligibility, implying that
137 Dietz, Miranda; Kadiyala, Srikanth, and Lucia,
Laurel; ‘‘Extending Covered California subsidies to
DACA recipients would fill coverage gap for 40,000
Californians’’; UC Berkeley Labor Center; June 6,
2023; https://laborcenter.berkeley.edu/extendingcovered-california-subsidies-to-daca-recipientswould-fill-coverage-gap-for-40000-californians/#_
ftn3.
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expanding the insurance affordability
programs available to DACA recipients
will result in further coverage gains.
Response: We agree that these are
potential benefits of the policies
finalized in this rule. We appreciate the
insight from commenters that the
policies in this rule will also benefit the
families and communities of the DACA
recipients impacted by the rule. We
agree that it is possible that this rule
could improve the Exchange risk pools,
which could result in cost savings for
issuers and individuals due to lower
claims costs and premiums. We further
appreciate the supporting data regarding
potential coverage gains in Exchange
programs in specific States.
Comment: Commenters, including
State government agencies, noted that
the proposed changes would result in
the more efficient operation of CMS
programs. Some commenters
specifically stated that changes to the
definition of ‘‘lawfully present’’ could
streamline practices for caseworkers and
eligibility workers at States and
agencies.
Response: We agree that the changes
we are finalizing will enable Exchanges
and BHPs to more easily verify
applicants’ lawful presence. This should
both simplify operations and decrease
the proportion of cases in which
caseworkers and eligibility workers
need to ask consumers to provide
additional information.
After consideration of public
comments, we are finalizing these
estimates using the calculation
methodology as proposed with
modifications to reflect that we are not
finalizing the proposed changes for
Medicaid and CHIP and to reflect the
States that will operate BHPs as of the
effective date of this rule and the most
recent available data on DACA
recipients.
1. Costs
The changes to 42 CFR 600.5 will
treat DACA recipients the same as other
recipients of deferred action, who are
lawfully present under the definition
used to determine eligibility for BHP, if
otherwise eligible. The costs to States as
a result of information collection
changes associated with this proposal,
which include initial system changes,
costs to develop and update each State’s
eligibility systems and verification
processes, and application processing
costs to assist individuals with
processing their applications, are
discussed in sections IV.B.2. and IV.B.3.
of this final rule, and the costs to
consumers as a result of increased
information collections associated with
this policy, which include applying for
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39429
BHP and submitting additional
information to verify their lawful
presence, if necessary, are discussed in
section IV.B.4. of this final rule. As
previously mentioned, we updated the
cost estimates discussed in sections
IV.B.2., IV.B.3., and IV.B.4. of this final
rule to reflect the policies being
finalized in this rule and updated data
since publishing the proposed rule.
States operating a BHP may choose to
provide additional outreach to those
eligible. In the proposed rule, we
included costs related to the fact that a
potential increase in the number of
enrollees may increase Federal
payments to a State’s BHP trust fund.
For further information, please see the
‘‘Transfers’’ section.
The changes to 45 CFR 152.2 and
155.20 will make DACA recipients
eligible to enroll in a QHP through an
Exchange, and for PTC and CSRs, if
otherwise eligible. The costs to State
Exchanges not on the Federal platform
and the Federal Government as a result
of information collection changes,
which include initial system changes
costs to develop and update each State’s
eligibility systems and verification
processes and application processing
costs to assist individuals with
processing their applications, are
discussed in section IV.B.3. of this final
rule and the costs to consumers as a
result of increased information
collections associated with this policy,
which include applying for Exchange
coverage and submitting additional
information to verify their lawful
presence, if necessary, are discussed in
section IV.B.4. of this final rule. This
change may result in slightly increased
traffic during open enrollment for the
2025 coverage year and beyond. Further,
there may be a potential administrative
burden on States and regulated entities
that choose to conduct outreach and
education efforts to ensure that
consumers, agents, brokers, and
assisters are aware of the changes
proposed in this rule associated with
the updated definitions of ‘‘lawfully
present’’ for the purposes of the
Exchanges and BHP. We clarify that
CMS does not require States to fund
additional outreach and enrollment
activities as a result of this rule. Because
SBE–FPs will not be required to incur
costs related to implementation,
application processing, or outreach and
education, we estimate no increased
costs for States operating SBE–FPs as a
result of this rule. We also note that
both State Exchanges not on the Federal
platform and SBE–FPs may see an
increase in the user fees they collect
from issuers as a result of increased
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enrollment due to the policies finalized
in this rule. We anticipate that the costs
of additional outreach and education
that States may choose to pursue would
be minimal and sought comment on that
assumption.
Whether the effects discussed above
as ‘‘costs’’ are appropriately categorized
depends on societal resource use. To the
extent that resources (for example, labor
and equipment associated with
provision of medical care) are used
differently in the presence of this final
rule than in its absence, then the
estimated effects are indeed costs. If
resource use remains the same but
different entities in society pay for
them, then the estimated effects would
instead be transfers. We requested
comment that would facilitate
refinement of the effect categorization.
We received public comments on
these proposals. The following is a
summary of the comments we received
and our responses.
Comment: Commenters noted that
this regulatory change will enable States
that currently use State funds to cover
DACA recipients to re-allocate State
funding towards covering other
uninsured individuals if DACA
recipients are able to newly access
Federally-funded QHPs. Commenters
noted that 11 States and the District of
Columbia currently use State-only funds
to cover all income-eligible children,
regardless of lawful presence status, and
that certain additional States also cover
pregnant and postpartum individuals.
Commenters noted that New York and
California currently use State funding to
provide coverage to DACA recipients.
One commenter, a State government
agency, noted that California currently
expends approximately $13 million out
of the State’s General Fund to cover
individuals who do not currently meet
CMS’ definitions of ‘‘lawfully present,’’
and that considering DACA recipients
‘‘lawfully present’’ has the potential to
significantly lower or offset funds
currently expended for health coverage
for DACA recipients.
Response: We appreciate commenters
sharing information about how States
may otherwise cover this population. As
previously mentioned, we are not
finalizing the proposed changes for
Medicaid and CHIP. However, State
funds used to cover DACA recipients
eligible for Medicaid/CHIP may be
impacted if individuals currently
covered under these State-funded
programs choose to enroll in QHP or
BHP coverage.
Comment: One commenter agreed
with CMS’ assumption that costs for
outreach and education would be
‘‘minimal’’ since the State already
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conducts robust outreach during its
Open Enrollment Period. The
commenter stated that they agreed that
costs for outreach and education would
be ‘‘minimal’’ if supported by Federal
financial participation and State
funding.
Response: We agree that State
Exchanges not on the Federal platform
generally conduct robust outreach
during their Open Enrollment Periods.
We are committed to conducting
outreach and education to reach
individuals impacted by this rule to
educate them that they may be newly
eligible for health insurance
affordability programs.
Comment: Commenters stated
concerns about the costs associated with
this rule. Commenters noted that this
rule will increase costs to taxpayers and
stated that illegal immigration is a net
cost to taxpayers of about $151 billion
per year, further alleging that illegal
immigration costs each American
taxpayer $1,156 per year. The
commenter also highlighted that the
U.S. government spends $2.3 trillion
annually on Federal medical
expenditures, and that it is ‘‘impossible
to estimate how many illegal aliens
participate in the ACA now, and what
level of Federal subsidy they receive,’’
but that they believe this rule will place
an ‘‘even greater burden’’ on taxpayers.
Commenters stated concerns that this
rule will drive the United States further
into debt.
Response: We acknowledge
commenters’ concerns about the costs
on the Federal government and Federal
taxpayers associated with this rule. We
believe the benefits of this rule
outweigh the potential negative impacts
identified by commenters. The benefits
discussed in section V.C. of this final
rule, including increased health
coverage and a reduction in
uncompensated care costs; ensuring
equitable access to coverage across all
populations served by the programs
addressed in this rule, including
members of underserved communities;
and potential impacts on the risk pool,
are important to balance against the
costs of the rule identified in this
section. Moreover, as clarified
previously in this final rule, this rule
aims to establish eligibility criteria for
Exchanges and BHPs and does not
address immigration policy, including
DHS’ DACA final rule. As discussed
previously in this rule, individuals must
have their immigration status or
category electronically verified by DHS
to enroll in Exchange or BHP coverage,
which ensures that noncitizens without
an eligible immigration status or
category are not able to enroll. We
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therefore decline to make any changes
in response to these comments.
Comment: One commenter associated
with an academic institution stated
concerns that allowing DACA recipients
to access subsidized QHPs through
Exchanges would increase the prices for
non-subsidized health insurance. The
commenter cited a JAMA Network Open
study that found that between 2011 and
2021, median unsubsidized premium
for individual market plans rose by 59
percent. The commenter stated that they
saw ‘‘little reason to expect that health
care unaffordability will slow as
government subsidies continue to
grow.’’ The commenter further
hypothesized that subsidized health
insurance programs make unsubsidized
health insurance unaffordable because
‘‘these programs require buy-in from
powerful health care industry groups.’’
They stated that taxpayer money is
being channeled to contribute to
industry groups’ bottom lines, which
inflates the cost of unsubsidized health
insurance.
Response: We do not agree that
allowing DACA recipients to access
subsidized QHPs through Exchanges
would increase the prices for
unsubsidized health insurance. On the
contrary, as discussed in section V.C. of
this final rule, DACA recipients are
generally younger than the average
Exchange enrollee and comparably
healthy to the general population, and
their enrollment has the potential to
improve the Exchange risk pool and
lower health insurance premiums.
Additionally, due to the medical loss
ratio (MLR) requirements for issuers
participating on the individual market
Exchanges, if an issuer spends less than
80 percent of premiums on medical care
and efforts to improve quality of care, it
must refund this money to enrollees.
These MLR requirements prevent excess
contributions to ‘‘industry groups’
bottom lines’’ and protects subsidized
and unsubsidized consumers alike from
premiums that are too high and are not
spent on medical care and quality
initiatives.
Comment: Commenters believe that
U.S. tax dollars should not be spent on
providing benefits, including health
care benefits, to DACA recipients or
other noncitizens. Commenters stated
that they already face high tax burdens,
and that tax revenue should be directed
towards meeting the health care needs
of other vulnerable groups, including
senior citizens, members of the military,
and veterans. Commenters also stated
that the U.S. government already spends
too much money, is $31 trillion in debt,
and that our system is on the verge of
bankruptcy. Commenters believe that
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this proposed rule sets a bad precedent
for expanding health care to individuals
who are physically present in the
United States without a valid
immigration status, and that we cannot
both be fiscally responsible and provide
health care to noncitizens, citing Illinois
as an example. Some commenters stated
their belief that immigration reform is
needed to stop this process from
expanding to other immigrant
populations. One commenter stated
their belief that the parents of DACA
recipients should be responsible for
their children’s wellbeing and provide a
specific plan for obtaining
independence, rather than the U.S.
government being held responsible and
providing government funded programs.
Another commenter believes that there
should be more accountability for those
that use government sponsored public
benefit programs.
Response: Although some of these
comments are out of scope, we
acknowledge the concerns noted by
some commenters about the allocation
of U.S. tax dollars and would like to
clarify that allocating tax dollars is the
purview of the Congress. As previously
mentioned, the purpose of this final rule
is to establish eligibility requirements
for Exchanges and BHPs rather than
dictate where tax dollars are directed.
Moreover, as mentioned previously in
this final rule, noncitizens must have
their immigration status or category
electronically verified by DHS to enroll
in the specified insurance affordability
programs, which ensures that
noncitizens without an eligible
immigration status or category are not
able to enroll. Additionally, we would
like to emphasize that immigration
reform and parental responsibility are
outside of our purview and the scope of
this rule. Finally, we are engaged in
many accountability initiatives for our
programs, including APTC and CSR
audits, which verify the enrollment of
qualified individuals and the subsidies
they receive. We welcome suggestions
from interested parties regarding
accountability for CMS programs.
After consideration of public
comments, we are finalizing these cost
estimates as discussed in section IV.B of
this final rule.
2. Transfers
Transfers are payments between
persons or groups that do not affect the
total resources available to society. They
are a benefit to recipients and a cost to
payers.
The changes to 42 CFR 600.5 will
treat DACA recipients the same as other
recipients of deferred action, who are
lawfully present under the definition
used to determine eligibility for BHP, if
otherwise eligible. Due to a potential
increase in the number of enrollees,
there may be an increase in Federal
payments to a State’s BHP trust fund,
which represents a transfer.
We discuss how we calculated our
BHP enrollment estimates earlier in this
RIA. Federal funding for a BHP under
section 1331(d)(3)(A) of the ACA is
39431
based on the amount of the PTC allowed
and payments to cover required CSRs
that would have been provided for the
fiscal year to eligible individuals
enrolled in BHP standard health plans
in the State if such eligible individuals
were allowed to enroll in a QHP through
an Exchange.138 These funds are paid to
trusts established by the States and
dedicated to the BHP, and the States
then administer the payments to
standard health plans within the BHP.
In the proposed rule, to calculate costs,
we used 2022 data from USCIS to
determine the average age of a DACA
recipient, which was 29, and we used
PTC data to determine the average PTC
for a 29-year-old, which was estimated
to be $289 per month, and multiplied
this by 12 months per year and by the
projected number of enrollees per year
to arrive at annual costs. We are
modifying the costs in this final rule to
use updated data.139 Therefore, to
calculate costs, we use 2023 data from
USCIS to determine the average age of
a DACA recipient, which is 30, and we
use PTC data to determine the average
PTC for a 30-year-old, which is
estimated to be $274 per month, and
multiplied this by 12 months per year
and by the projected number of
enrollees eligible for PTC to arrive at
annual costs.140 Our estimates for BHP
expenditures as a result of the policies
in this rule are shown in Table 4. We
sought comment on these estimates and
the assumptions and methodology used
to calculate them.
The policies at 45 CFR 152.2 and
155.20 will generate a transfer from the
Federal Government to consumers in
the form of increased PTC payments due
to individuals who will be eligible for
Exchange coverage and APTC based on
the policies in this final rule.
We discuss how we calculated our
Exchange enrollment estimates earlier
in this RIA. In the proposed rule, to
calculate costs, we used 2022 data from
USCIS to determine the average age of
a DACA recipient, which was 29. For
2024, the average PTC for a 29-year-old
was estimated to be $289 per month. We
multiplied this by 12 months per FY
and by the number of enrollees to arrive
at annual costs. We are modifying the
costs in this final rule to use updated
data. Therefore, to calculate costs, we
use 2023 data from USCIS to determine
the average age of a DACA recipient,
which is 30. For 2025, the average PTC
for a 30-year-old is estimated to be $274
per month, and we multiplied this by 12
months per FY and by the projected
number of enrollees eligible for PTC to
138 On October 11, 2017, the Attorney General of
the United States provided HHS and the
Department of the Treasury (the Departments) with
a legal opinion indicating that the permanent
appropriation at 31 U.S.C. 1324, from which the
Departments had historically drawn funds to make
CSR payments, cannot be used to fund CSR
payments to insurers. In light of this opinion—and
in the absence of any other appropriation that could
be used to fund CSR payments—HHS directed CMS
to discontinue CSR payments to issuers until the
Congress provides for an appropriation. See https://
www.hhs.gov/sites/default/files/csr-paymentmemo.pdf for more information. In the absence of
a Congressional appropriation for Federal funding
for CSR payments, we cannot provide States with
a Federal payment attributable to CSRs that would
have been paid on behalf of BHP enrollees had they
been enrolled in a QHP through an Exchange.
139 These costs also reflect that the two States that
will operate a BHP when these policies go into
effect are Minnesota and Oregon rather than
Minnesota and New York as anticipated in the
proposed rule.
140 The estimate for FY 2025 only includes 11
months, assuming these individuals will enroll in
a BHP beginning November 1, 2024, as the BHPs
included in this analysis have, or are anticipated to
have, continuous enrollment. We project no change
in Federal BHP expenditures for FY 2024 as this
rule will not take effect until FY 2025.
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TABLE 4: BHP Projected Expenditures, FY 2024-2028
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arrive at annual costs.141 These costs are
projected to increase using the trends
assumed in the President’s FY 2025
Budget.
We present these estimates in Table 5
and sought comment on the estimates
and the assumptions and methodology
used to calculate them.
TABLE 5: Exchange Projected Expenditures, FY 2024 - 2028
Ex enditures
hours per individual review] × 284
reviewers).
Exchange and BHP policies as discussed
in the associated sections of this final
rule, and not finalizing the Medicaid
and CHIP proposals at this time.
3. Regulatory Review Cost Estimation
If regulations impose administrative
costs on private entities, such as the
time needed to read and interpret the
proposed rule, we estimate the cost
associated with regulatory review. There
is uncertainty involved with accurately
quantifying the number of entities that
would review the rule. However, for the
purposes of this final rule, we assume
that the total number of unique
commenters on the proposed rule (284)
will be the number of reviewers of this
final rule.
Using the median wage information
from the BLS for medical and health
service managers (Code 11–9111), we
estimate that the cost of reviewing this
rule is $106.42 per hour, including
overhead and fringe benefits. Assuming
an average reading speed of 250 words
per minute, we estimate that it will take
approximately 3.3 hours for each
individual to review the entire final rule
(approximately 49,000 words/250 words
per minute = 196 minutes). Therefore,
we estimate that the total one-time cost
of reviewing this regulation is
approximately $99,737 ([$106.42 × 3.3
D. Regulatory Alternatives Considered
In developing this rule, we considered
not proposing or finalizing the technical
and clarifying changes to our definitions
of ‘‘lawfully present,’’ discussed in
section II.B.2 of the proposed rule, as
these changes are expected to impact
fewer individuals than the proposal to
treat DACA recipients the same as other
recipients of deferred action. However,
in our comprehensive review of current
CMS definitions of ‘‘lawfully present,’’
we determined that the proposed and
finalized changes discussed in section
II.B.2 of this final rule will simplify
verification of applicants’ immigration
status or category, our eligibility
determination processes and increase
efficiencies for individuals seeking
health coverage and State and Federal
entities administrating insurance
affordability programs. Additionally, the
small number of individuals included in
the proposed eligibility categories will
benefit from increased access to health
coverage through the Exchange or a
BHP.
In the proposed rule, we sought
comments on these proposals, and we
respond to those comments in the
associated preamble sections of this
final rule. As discussed in those
preamble sections, we are finalizing the
As required by OMB Circular A–4
(available at https://
www.whitehouse.gov/wp-content/
uploads/legacy_drupal_files/omb/
circulars/A4/a-4.pdf), we have prepared
an accounting statement in Table 6
showing the classification of the impact
associated with the provisions of the
final rule. We prepared these impact
estimates utilizing a baseline of ‘‘no
action,’’ comparing the effect of the
proposals against not proposing the rule
at all.
The final rule finalizes standards for
programs that will have numerous
effects, including allowing DACA
recipients to be treated the same as
other deferred action recipients for
specific health insurance affordability
programs, and increasing access to
affordable health insurance coverage.
The effects in Table 6 reflect a
qualitative assessment of impacts and
the estimated direct monetary costs and
transfers resulting from the provisions
of the final rule for the Federal
Government, State Exchanges, BHPs,
and consumers.
141 The estimate for FY 2025 only includes 9
months, assuming these individuals will enroll in
a QHP beginning January 1, 2025. It is possible that
individuals impacted by this rule could enroll in
coverage effective December 1, 2024, but we do not
have a reliable way to estimate how many
individuals would enroll with that coverage
effective date. Therefore, we project no change in
PTC expenditures in FY 2024.
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E. Accounting Statement and Table
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We did not receive public comments
on the transfers estimated in this rule
specific to PTC expenditures, and
therefore, we are finalizing these
estimates with modifications as
described previously in this section.
Federal Register / Vol. 89, No. 90 / Wednesday, May 8, 2024 / Rules and Regulations
39433
TABLE 6: Accounting Table
Benefits:
Qualitative:
• Additional enrollment in the BHP, anticipated to be 1,000 individuals annually beginning in 2025 .
• Additional enrollment in the Exchanges, which will be subsidized depending on individuals' household
incomes, anticipated to be 99,000 individuals in 2025 and 85,000 individuals annually beginning in 2026.
• Increased access to health coverage for DACA recipients and certain other noncitizens, which will mitigate
existing disparities in access to care, which in turn may also decrease costs for emergency medical
expenditures.
• Improved health and well-being of many DACA recipients and certain other noncitizens currently without
health care coverage.
• Greater economic contribution and productivity ofDACA recipients and certain other noncitizens from
improving their health outcomes.
Reduced
burden on Exchanges and BHPs to determine annlicants' immigration statuses .
•
Costs:
Estimate
Year Dollar
Discount
Period
Rate
Covered
$3 .52 Million
2024
7 percent
2024-2028
Annualized Monetized ($/year)
$3 .59 Million
2024
3 percent
2024-2028
Quantitative:
• System changes costs estimated at $19,465 in 2024 for States that operate a BHP to develop and code
changes to their eligibility systems and verification processes to include the categories of noncitizens
impacted by this fmal rule for BHP eligibility.
• System changes costs estimated at $175,185 for State Exchanges not on the Federal platform and $9,733
for the Federal Government in 2024 to develop and code changes to each Exchange's eligibility systems
and verification processes to include the categories of noncitizens impacted by this fmal rule for Exchange
and Exchange-related subsidy eligibility.
Application
processing costs estimated at $624,142 for States (excluding States operating SBE-FPs) and
•
$583,875 for the Federal Government per year starting in 2025 to assist individuals impacted by this fmal
rule with processing their applications.
• Costs to individuals impacted by the proposals in this rule of $3,254,124 per year starting in 2025 to apply
for BHP or Exchange health coverage, including costs to submit additional information to verify their
lawful presence status if it is unable to be verified electronically through the application.
Discount
Period
Transfers:
Estimate
Year Dollar
Rate
Covered
2024
7 percent
$220.84 Million
2024-2028
Annualized Monetized ($/year)
2024
3 percent
$226.05 Million
2024-2028
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F. Regulatory Flexibility Act (RFA)
The RFA requires agencies to analyze
options for regulatory relief of small
entities, if a rule has a significant impact
on a substantial number of small
entities. For purposes of the RFA, we
estimated that small businesses,
nonprofit organizations, and small
governmental jurisdictions are small
entities as that term is used in the RFA.
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The great majority of hospitals and most
other health care providers and
suppliers are small entities, either
because they are nonprofit
organizations, or they meet the Small
Business Administration (SBA)
definition of a small business (having
revenues of less than $8.0 million to
$41.5 million in any 1 year). Individuals
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and States are not included in the
definition of a small entity.
For purposes of the RFA, we believe
that health insurance issuers and group
health plans will be classified under the
North American Industry Classification
System (NAICS) code 524114 (Direct
Health and Medical Insurance Carriers).
According to SBA size standards,
entities with average annual receipts of
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Quantitative:
• Increased Federal BHP expenditures of$5 million annually beginning in 2025 due to increased enrollment
as a result of changes to the defmition of "lawfully present" for purposes of a BHP fmalized in this rule.
Increased
PTC expenditures from the Federal Government to individuals of$240 million in 2025, $300
•
million in 2026, $290 million in 2027, and $300 million in 2028 due to increased enrollment and subsidy
eligibility as a result of the changes to the defmition of"lawfully present" for purposes of the Exchanges
fmalized in this rule.
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$47 million or less would be considered
small entities for these NAICS codes.
Issuers could possibly be classified in
621491 (HMO Medical Centers) and, if
this is the case, the SBA size standard
would be $44.5 million or less.142 We
believe that few, if any, insurance
companies underwriting comprehensive
health insurance policies (in contrast,
for example, to travel insurance policies
or dental discount policies) fall below
these size thresholds. Based on data
from medical loss ratio (MLR) annual
report submissions for the 2021 MLR
reporting year, approximately 87 out of
483 issuers of health insurance coverage
nationwide had total premium revenue
of $47 million or less.143 This estimate
may overstate the actual number of
small health insurance issuers that may
be affected, since over 77 percent of
these small issuers belong to larger
holding groups, and many, if not all, of
these small companies are likely to have
non-health lines of business that will
result in their revenues exceeding $47
million.
In this final rule, we are finalizing
standards for eligibility for Exchange
enrollment, APTC and CSRs, and BHP
enrollment. Because we believe that
insurance firms offering comprehensive
health insurance policies generally
exceed the size thresholds for ‘‘small
entities’’ established by the SBA, we did
not believe that an initial regulatory
flexibility analysis is required for such
firms and therefore do not believe a
final regulatory flexibility analysis is
required. Furthermore, the policies
related to BHPs involve State
governments, but as States do not
constitute small entities under the
statutory definition, an impact analysis
for that provision is not required under
the RFA.
As its measure of significant
economic impact on a substantial
number of small entities, HHS uses a
change in revenue of more than three to
five percent. We do not believe that this
threshold will be reached by the
requirements in this final rule.
Therefore, the Secretary has certified
that this final rule will not have a
significant economic impact on a
substantial number of small entities.
In addition, section 1102(b) of the Act
requires us to prepare a regulatory
impact analysis if a rule may have a
significant impact on the operations of
a substantial number of small rural
hospitals. This analysis must conform to
the provisions of section 604 of the
142 Available
at https://www.sba.gov/document/
support--table-size-standards.
143 Available at https://www.cms.gov/CCIIO/
Resources/Data-Resources/mlr.html.
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RFA. For purposes of section 1102(b) of
the Act, we define a small rural hospital
as a hospital that is located outside of
a metropolitan statistical area and has
fewer than 100 beds. While this rule is
not subject to section 1102 of the Act,
we have determined that the final rule
will not adversely affect small rural
hospitals. Therefore, the Secretary has
certified that this final rule will not
have a significant impact on the
operations of a substantial number of
small rural hospitals.
G. Unfunded Mandates Reform Act
(UMRA)
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
also requires that agencies assess
anticipated costs and benefits before
issuing any rule whose mandates
require spending in any 1 year of $100
million in 1995 dollars, updated
annually for inflation. In 2023, that
threshold is approximately $177
million. Based on information currently
available, we expect the combined
impact on State, local, or Tribal
governments and the private sector does
not meet the UMRA definition of
unfunded mandate.
H. Federalism
Executive Order 13132 establishes
certain requirements that an agency
must meet when it issues a proposed
rule (and subsequent final rule) that
imposes substantial direct requirement
costs on State and local governments,
preempts State law, or otherwise has
federalism implications.
While developing this rule, we
attempted to balance States’ interests in
running their own Exchanges and BHPs
with CMS’ interest in establishing a
consistent definition of ‘‘lawfully
present’’ for use in eligibility
determinations across our programs, to
the extent possible. We also attempted
to balance States’ interests with the
overall goals of the ACA, as well as the
goals and provisions of the DHS DACA
final rule. By doing so, we complied
with the requirements of E.O. 13132.
In our view, while the provisions of
this final rule related to the Exchanges
(45 CFR 152.2 and 155.20) and BHPs (42
CFR 600.5) will not impose any
requirement costs on State and local
governments that do not operate their
own Exchanges, or that operate SBE–
FPs, this regulation has federalism
implications for other States. State
Exchanges not on the Federal platform
and BHPs will be required to update
their eligibility systems to accurately
evaluate applicants’ lawful presence.
State Exchanges not on the Federal
platform and BHPs may wish to conduct
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outreach to groups such as DACA
recipients who will newly be
considered lawfully present under the
rule. By our estimate, these
requirements do not impose substantial
direct costs on the affected States,
which in any event have chosen to
operate their own Exchanges and
eligibility and enrollment platforms, or
the optional BHP. After establishment,
Exchanges must be financially selfsustaining, with revenue sources at the
discretion of the State. Current State
Exchanges charge user fees to issuers,
and as indicated earlier, a BHP is
optional for States. Therefore, if
implemented in a State, a BHP provides
access to a pool of Federal funding that
will not otherwise be available to the
State. States that do not have a BHP and
do not operate their own Exchange,
including SBE–FP States, are not
expected to incur any costs as a result
of this rule.
We included policies in the proposed
rule related to Medicaid and CHIP that
might have imposed substantial direct
costs on State governments. However, as
discussed earlier in this rule, we are not
finalizing those provisions at this time
and therefore they do not have
federalism implications.
Chiquita Brooks-LaSure,
Administrator of the Centers for
Medicare & Medicaid Services,
approved this document on April 15,
2024.
List of Subjects
42 CFR Part 435
Aid to Families with Dependent
Children, Grant programs-health,
Medicaid, Reporting and recordkeeping
requirements, Supplemental Security
Income (SSI), Wages.
42 CFR Part 457
Administrative practice and
procedure, Grant programs-health,
Health insurance, Reporting and
recordkeeping requirements.
42 CFR Part 600
Administrative practice and
procedure, Health care, health
insurance, Intergovernmental relations,
Penalties, Reporting and recordkeeping
requirements.
45 CFR Part 152
Administrative practice and
procedure, Health care, Health
insurance, Penalties, Reporting and
recordkeeping requirements.
45 CFR Part 155
Administrative practice and
procedure, Advertising, Aged, Brokers,
Citizenship and naturalization, Civil
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rights, Conflicts of interests, Consumer
protection, Grant programs-health,
Grants administration, Health care,
Health insurance, Health maintenance
organizations (HMO), Health records,
Hospitals, Indians, Individuals with
disabilities, Intergovernmental relations,
Loan programs-health, Medicaid,
Organization and functions
(Government agencies), Public
assistance programs, Reporting and
recordkeeping requirements, Sex
discrimination, State and local
governments, Taxes, Technical
assistance, Women, Youth.
For the reasons set forth in the
preamble, the Centers for Medicare &
Medicaid Services amends 42 CFR
chapter IV as set forth below.
Title 42—Public Health
PART 435—ELIGIBILITY IN THE
STATES, DISTRICT OF COLUMBIA,
THE NORTHERN MARIANA ISLANDS,
AND AMERICAN SAMOA
1. The authority citation for part 435
continues to read as follows:
■
Authority: 42 U.S.C. 1302.
PART 435 [Amended]
2. Part 435 is amended by—
a. Removing all instances of the words
‘‘non-citizen’’ and ‘‘non-citizens’’ and
adding in their places the words
‘‘noncitizen’’ and ‘‘noncitizens’’,
respectively; and
■ b. Removing all instances of the words
‘‘Qualified Non-citizen’’ and adding in
their place the words ‘‘qualified
noncitizen’’.
■ 3. Section 435.4 is amended by
revising the definition of ‘‘Qualified
noncitizen’’ to read as follows:
■
■
§ 435.4
Definitions and use of terms.
lotter on DSK11XQN23PROD with RULES7
*
*
*
*
*
Qualified noncitizen means:
(1) a ‘‘Qualified alien,’’ as defined in
8 U.S.C. 1641(b) and (c); who is:
(i) A noncitizen who is lawfully
admitted for permanent residence under
the Immigration and Nationality Act [8
U.S.C. 1101 et seq.];
(ii) A noncitizen who is granted
asylum under section 208 of such Act [8
U.S.C. 1158];
(iii) A refugee who is admitted to the
United States under section 207 of such
Act [8 U.S.C. 1157];
(iv) A noncitizen who is paroled into
the United States under section
212(d)(5) of such Act [8 U.S.C.
1182(d)(5)] for a period of at least 1 year;
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(v) A noncitizen whose deportation is
being withheld under section 243(h) of
such Act [8 U.S.C. 1253] (as in effect
immediately before the effective date of
section 307 of division C of Public Law
104–208) or section 241(b)(3) of such
Act [8 U.S.C. 1231(b)(3)] (as amended by
section 305(a) of division C of Public
Law 104–208);
(vi) A noncitizen who is granted
conditional entry pursuant to section
203(a)(7) of such Act [8 U.S.C.
1153(a)(7)] as in effect prior to April 1,
1980;
(vii) A noncitizen who is a Cuban and
Haitian entrant (as defined in section
501(e) of the Refugee Education
Assistance Act of 1980);
(viii) An individual who lawfully
resides in the United States in
accordance with a Compact of Free
Association referred to in 8 U.S.C.
1612(b)(2)(G);
(ix) A noncitizen who—
(A) Has been battered or subjected to
extreme cruelty in the United States by
a spouse or a parent, or by a member of
the spouse or parent’s family residing in
the same household as the alien and the
spouse or parent consented to, or
acquiesced in, such battery or cruelty,
but only if (in the opinion of the agency
providing such benefits) there is a
substantial connection between such
battery or cruelty and the need for the
benefits to be provided; and
(B) Has been approved or has a
petition pending which sets forth a
prima facie case for—
(1) Status as a spouse or a child of a
United States citizen pursuant to clause
(ii), (iii), or (iv) of section 204(a)(1)(A)
of the Immigration and Nationality Act
[8 U.S.C. 1154(a)(1)(A)(ii), (iii), (iv)];
(2) Classification pursuant to clause
(ii) or (iii) of section 204(a)(1)(B) of the
Act [8 U.S.C. 1154(a)(1)(B)(ii), (iii)];
(3) Suspension of deportation under
section 244(a)(3) of the Immigration and
Nationality Act [8 U.S.C. 1254(a)(3)] (as
in effect before the title III–A effective
date in section 309 of the Illegal
Immigration Reform and Immigrant
Responsibility Act of 1996);
(4) Status as a spouse or child of a
United States citizen pursuant to clause
(i) of section 204(a)(1)(A) of such Act [8
U.S.C. 1154(a)(1)(A)(i)], or classification
pursuant to clause (i) of section
204(a)(1)(B) of such Act [8 U.S.C.
1154(a)(1)(B)(i)]; or
(5) Cancellation of removal pursuant
to section 240A(b)(2) of such Act [8
U.S.C. 1229b(b)(2)];
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39435
(x) A noncitizen—
(A) Whose child has been battered or
subjected to extreme cruelty in the
United States by a spouse or a parent of
the alien (without the active
participation of the alien in the battery
or cruelty), or by a member of the
spouse or parent’s family residing in the
same household as the alien and the
spouse or parent consented or
acquiesced to such battery or cruelty,
and the alien did not actively
participate in such battery or cruelty,
but only if (in the opinion of the agency
providing such benefits) there is a
substantial connection between such
battery or cruelty and the need for the
benefits to be provided; and
(B) Who meets the requirement of 8
U.S.C. 1641(c)(1)(B);
(xi) A noncitizen child who—
(A) Resides in the same household as
a parent who has been battered or
subjected to extreme cruelty in the
United States by that parent’s spouse or
by a member of the spouse’s family
residing in the same household as the
parent and the spouse consented or
acquiesced to such battery or cruelty,
but only if (in the opinion of the agency
providing such benefits) there is a
substantial connection between such
battery or cruelty and the need for the
benefits to be provided; and
(B) Who meets the requirement of 8
U.S.C. 1641(c)(1)(B); or
(xii) A noncitizen who has been
granted nonimmigrant status under
section 101(a)(15)(T) of the Immigration
and Nationality Act (8 U.S.C.
1101(a)(15)(T)) or who has a pending
application that sets forth a prima facie
case for eligibility for such
nonimmigrant status.
(2) Noncitizens who are treated as
refugees under other Federal statutes:
(i) Noncitizens who are victims of a
severe form of trafficking in persons, as
described in 22 U.S.C. 7105(b)(1)(C), or
who are classified as nonimmigrants
under section 101(a)(15)(T)(ii) of the
Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(T)(ii)), pursuant to 22
U.S.C. 7105(b)(1)(A);
(ii) Iraqi and Afghan special
immigrants, as described in Public Law
110–181, section 1244(g) (2008), Public
Law 111–8, section 602(b)(8) (2009),
Public Law 111–118, section 8120(b)
(2010), and Public Law 113–291, section
1227 (2014);
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(iii) Amerasian immigrants, described
in Public Law 100–202, section 101(e) (8
U.S.C. 1101 note);
(iv) Certain Afghan parolees, in
accordance with Section 2502 of Public
Law 117–43, as amended; and
(v) Certain Ukrainian parolees, in
accordance with Section 401 of Public
Law 117–128, as amended.
*
*
*
*
*
■ 4. Section 435.406 is amended by—
■ a. Removing all instances of the words
‘‘non-citizen’’ and ‘‘non-citizens’’ and
adding in their places the words
‘‘noncitizen’’ and ‘‘noncitizens’’,
respectively; and
■ b. Removing all instances of the words
‘‘Qualified Non-Citizen’’ and adding in
its place the words ‘‘qualified
noncitizen’’.
■ c. Revising paragraph (a)(2)(i).
The revision reads as follows:
§ 435.406 Citizenship and noncitizen
eligibility.
(a) * * *
(2)(i) Except as specified in 8 U.S.C.
1612(b)(1) (permitting States an option
with respect to coverage of certain
qualified noncitizens), qualified
noncitizens as described in 42 CFR
435.4 (including qualified noncitizens
subject to the 5-year bar) who have
provided satisfactory documentary
evidence of qualified noncitizen status,
which status has been verified with the
Department of Homeland Security
(DHS) under a declaration required by
section 1137(d) of the Act that the
applicant or beneficiary is a noncitizen
in a satisfactory immigration status.
*
*
*
*
*
PART 600—ADMINISTRATION,
ELIGIBILITY, ESSENTIAL HEALTH
BENEFITS, PERFORMANCE
STANDARDS, SERVICE DELIVERY
REQUIREMENTS, PREMIUM AND
COST SHARING, ALLOTMENTS, AND
RECONCILIATION
7. The authority citation for part 600
continues to read as follows:
■
Authority: Section 1331 of the Patient
Protection and Affordable Care Act of 2010
(Pub. L. 111–148, 124 Stat. 119), as amended
by the Health Care and Education
Reconciliation Act of 2010 (Pub. L. 111–152,
124 Stat 1029).
8. Section 600.5 is amended by
revising the definition of ‘‘Lawfully
present’’ to read as follows:
■
§ 600.5
Definitions and use of terms.
*
*
*
*
*
Lawfully present has the meaning
given in 45 CFR 155.20.
*
*
*
*
*
For the reasons set forth in the
preamble, under the authority at 5
U.S.C. 301, the Department of Health
and Human Services amends 45 CFR
subtitle A, subchapter B, as set forth
below.
Title 45—Public Welfare
PART 152—PRE–EXISTING
CONDITION INSURANCE PLAN
PROGRAM
PART 457—ALLOTMENTS AND
GRANTS TO STATES
■
5. The authority citation for part 457
continues to read as follows:
Authority: Sec. 1101 of the Patient
Protection and Affordable Care Act (Pub. L.
111–148).
9. The authority citation for part 152
continues to read as follows:
■
Authority: 42 U.S.C. 1302.
§ 457.320
Other eligibility standards.
*
*
*
*
*
(b) * * *
(6) Exclude individuals based on
citizenship or nationality, to the extent
that the children are U.S. citizens, U.S.
nationals or qualified noncitizens (as
defined at paragraph (c) of this section);
or
*
*
*
*
*
VerDate Sep<11>2014
19:24 May 07, 2024
10. Section 152.2 is amended by
revising the definition of ‘‘Lawfully
present’’ to read as follows:
■
6. Section 457.320 is amended by—
a. Removing all instances of the words
‘‘qualified aliens’’ and adding in its
place the words ‘‘qualified noncitizens’’;
■ b. Revising paragraphs (b)(6); and
■ c. Adding paragraph (c).
The revision and addition read as
follows:
■
■
lotter on DSK11XQN23PROD with RULES7
(c) Definitions. As used in this
subpart:
Qualified noncitizen has the meaning
assigned at § 435.4 of this chapter.
*
*
*
*
*
Jkt 253001
§ 152.2
Definitions.
*
*
*
*
*
Lawfully present has the meaning
given the term at 45 CFR 155.20.
*
*
*
*
*
PART 155—EXCHANGE
ESTABLISHMENT STANDARDS AND
OTHER RELATED STANDARDS
UNDER THE AFFORDABLE CARE ACT
11. The authority citation for part 155
continues to read as follows:
■
Authority: 42 U.S.C. 18021–18024, 18031–
18033, 18041–18042, 18051, 18054, 18071,
and 18081–18083.
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12. Section 155.20 is amended by
revising the definition of ‘‘Lawfully
present’’ to read as follows:
■
§ 155.20
Definitions.
*
*
*
*
*
Lawfully present means a noncitizen
who—
(1) Is a qualified noncitizen as defined
at 42 CFR 435.4;
(2) Is in a valid nonimmigrant status,
as defined in 8 U.S.C. 1101(a)(15) or
otherwise under the immigration laws
(as defined in 8 U.S.C. 1101(a)(17));
(3) Is paroled into the United States in
accordance with 8 U.S.C. 1182(d)(5) for
less than 1 year, except for a noncitizen
paroled for prosecution, for deferred
inspection or pending removal
proceedings;
(4) Is granted temporary resident
status in accordance with 8 U.S.C. 1160
or 1255a;
(5) Is granted Temporary Protected
Status (TPS) in accordance with 8
U.S.C. 1254a;
(6) Is granted employment
authorization under 8 CFR 274a.12(c);
(7) Is a Family Unity beneficiary in
accordance with section 301 of Pub. L.
101–649 as amended; or section 1504 of
the LIFE Act Amendments of 2000, title
XV of H.R. 5666, enacted by reference
in Pub. L. 106–554 (see section 1504 of
App. D to Pub. L. 106–554);
(8) Is covered by Deferred Enforced
Departure (DED) in accordance with a
decision made by the President;
(9) Is granted deferred action,
including but not limited to individuals
granted deferred action under 8 CFR
236.22;
(10) Has a pending application for
adjustment of status;
(11)(i) Has a pending application for
asylum under 8 U.S.C. 1158, for
withholding of removal under 8 U.S.C.
1231(b)(3)(A), or for protection under
the regulations implementing the
Convention Against Torture; and
(ii) Is under the age of 14;
(12) Has been granted withholding of
removal under the regulations
implementing the Convention Against
Torture; or
(13) Has a pending or approved
petition for Special Immigrant Juvenile
classification as described in 8 U.S.C.
1101(a)(27)(J).
*
*
*
*
*
■ 13. Section 155.30 is added to read as
follows:
§ 155.30
Severability.
(a) Any part of the definition of
‘‘lawfully present’’ in § 155.20 held to
be invalid or unenforceable, including
as applied to any person or
circumstance, shall be construed so as
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lotter on DSK11XQN23PROD with RULES7
to continue to give the maximum effect
to the provision as permitted by law,
along with other provisions not found
invalid or unenforceable, including as
applied to persons not similarly situated
or to dissimilar circumstances, unless
such holding is that the provision of this
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19:24 May 07, 2024
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subpart is invalid and unenforceable in
all circumstances, in which event the
provision shall be severable from the
remainder of this subpart and shall not
affect the remainder thereof.
(b) The provisions in § 155.20 with
respect to the definition of ‘‘lawfully
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39437
present’’ are intended to be severable
from one another.
Xavier Becerra,
Secretary, Department of Health and Human
Services.
[FR Doc. 2024–09661 Filed 5–3–24; 8:45 am]
BILLING CODE 4120–01–P
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]]>Agencies
[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 [www.gpo.gov]
[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\
---------------------------------------------------------------------------
\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 https://www.cms.gov/marketplace/states/section-1332-state-innovation-waivers.
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\11\ 42 CFR. Sec. 600.5.
\12\ 45 CFR 155.305(f)(1)(ii)(A) and (g)(1)(i)(A).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\13\ Centers for Medicare & Medicaid Services. (2010). SHO #10-
006: Medicaid and CHIP Coverage of ``Lawfully Residing'' Children
and Pregnant Women. Available at: https://downloads.cms.gov/cmsgov/archived-downloads/smdl/downloads/sho10006.pdf.
\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 https://www.medicaid.gov/federal-policy-guidance/downloads/sho-12-002.pdf.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\15\ See the definition of ``insurance affordability program''
at 45 CFR 155.300(a) and 42 CFR 435.4.
---------------------------------------------------------------------------
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 https://www.medicaid.gov/media/149291;
additional guidance for State Medicaid and CHIP agencies is
available at https://www.medicaid.gov/unwinding.
\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 https://www.medicaid.gov/media/135211.
\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: https://www.medicaid.gov/media/163771.
\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. https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
\25\ U.S. Department of Homeland Security. (2012). Exercising
Prosecutorial Discretion with Respect to Individuals Who Came to the
United States as Children. https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
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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. https://www.federalregister.gov/d/2022-18401/p-744
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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), https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/daca-litigation-information-and-frequently-asked-questions.
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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.30 31
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\28\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (2022). https://www.nilc.org/wp-content/uploads/2022/06/NILC_DACA-Report_060122.pdf.
\29\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (2023). https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf.
\30\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (2023). https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf.
\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). 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.
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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.35 36 37
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\32\ Kaiser Family Foundation. Key Facts About the Uninsured
Population (2023). https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/.
\33\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (2022). https://www.nilc.org/wp-content/uploads/2022/06/NILC_DACA-Report_060122.pdf.
\34\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (2023). https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf.
\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. https://doi.org/10.7326/0003-4819-114-4-325.
\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. https://doi.org/10.1136/bmj.m4087.
\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.
https://doi.org/10.1001/jamanetworkopen.2022.31898.
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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-19.40 41 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). https://cmsny.org/daca-essential-workers-covid/.
\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). https://cmsny.org/daca-essential-workers-covid/.
\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). https://doi.org/10.1016/S2468-2667(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). https://doi.org/10.1186/s12879-020-05587-2.
\42\ Dizioli, Allan and Pinheiro, Roberto. (2016). Health
Insurance as a Productive Factor. Labour Economics. https://doi.org/10.1016/j.labeco.2016.03.002.
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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. https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy23_q4.pdf.
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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.44 45
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\44\ National Immigration Law Center. Tracking DACA Recipients'
Access to Health Care (2023). https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf.
\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). 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.
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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), https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-deferred-action-for-childhood-arrivals-daca/.
\47\ Count of Active DACA Recipients by Month of Current DACA
Expiration as of September 30, 2023. U.S. Citizenship and
Immigration Services. https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy23_q4.pdf.
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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.48 49 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.
---------------------------------------------------------------------------
\48\ Count of Active DACA Recipients by Month of Current DACA
Expiration as of September 30, 2023. U.S. Citizenship and
Immigration Services. https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy23_q4.pdf.
\49\ Centers for Medicare and Medicaid Services. 2024 Open
Enrollment Report. https://www.cms.gov/files/document/health-insurance-exchanges-2024-open-enrollment-report-final.pdf.
\50\ Key Facts on Deferred Action for Childhood Arrivals (DACA)
(2023), https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-deferred-action-for-childhood-arrivals-daca/.
---------------------------------------------------------------------------
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. https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf, 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). https://www.americanprogress.org/article/the-demographic-and-economic-impacts-of-daca-recipients-fall-2021-edition/.
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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. https://www.americanprogress.org/wp-content/uploads/sites/2/2023/04/DACA-Survey-2022-Toplines.pdf.
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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\
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\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).
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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.
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\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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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,60 61 62 63 64 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.66 67
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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. https://www.ncbi.nlm.nih.gov/books/NBK214966/ 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. https://doi.org/10.7326/M17-1403.
\64\ Kaiser Family Foundation. Key Facts About the Uninsured
Population. (2023). https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/.
\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). https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf.
\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). 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.
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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.69 70
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\68\ Kaiser Family Foundation. Key Facts About the Uninsured
Population (2023) https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/.
\69\ United Health Group. 18 Million Avoidable Hospital
Emergency Department Visits Add $32 Billion in Costs to the Health
Care System Each Year. (2019) https://www.unitedhealthgroup.com/content/dam/UHG/PDF/2019/UHG-Avoidable-ED-Visits.pdf.
\70\ Center on Budget and Policy Priorities. Uncompensated Care
Costs Fell in Nearly Every State as ACA's Major Coverage Provisions
Took Effect. (2018) https://www.cbpp.org/research/health/uncompensated-care-costs-fell-in-nearly-every-state-as-acas-major-coverage.
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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 https://www.uscis.gov/sites/default/files/document/forms/i-817.pdf and https://www.uscis.gov/sites/default/files/document/forms/i-817instr.pdf.
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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). https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220307-SIJAndDeferredAction.pdf.
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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
https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5 (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.
---------------------------------------------------------------------------
\80\ See 42 U.S.C. 18001(d)(1), 18032(f)(3), 18071(e),
18081(a)(1), and 18082(d).
---------------------------------------------------------------------------
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) https://www.congress.gov/crec/2010/03/25/CREC-2010-03-25-senate.pdf.
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) https://crsreports.congress.gov/product/pdf/R/R46510.
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). https://crsreports.congress.gov/product/pdf/LSB/LSB10526.
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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.
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\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). https://www.cfr.org/backgrounder/what-temporary-protected-status.
\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.90 91
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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 https://www.medicaid.gov/media/149291; Additional guidance for
State Medicaid and CHIP agencies is available at https://www.medicaid.gov/unwinding.
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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 currently operates a BHP and it follows Medicaid's
continuous open enrollment process.
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Response: We note commenters' interest in seeing the rule
implemented as soon as possible, and we agree that DACA recipients and
other impacted noncitizens should be able to access the Exchange or BHP
coverage for which they will be eligible as soon as possible. However,
we also acknowledge the importance of giving Exchanges, including
Exchanges on the Federal platform and State Exchanges operating their
own platforms, BHPs, assisters, and other entities who support
enrollment in Exchange and BHP coverage sufficient time to prepare for
the changes in this rule. Given the time required for us to closely
review and respond to all public comments received and to develop the
operational changes required to implement the rule's provisions, we do
not believe it is feasible for Exchanges on the Federal platform to
implement this rule prior to its effective date on November 1, 2024. We
acknowledge that some DACA recipients will be eligible under this final
rule for a BHP (we estimate that 1,000 DACA recipients will enroll in
BHP), to which the individual market Exchange Open Enrollment Period
does not currently apply.\94\ However, BHPs will also need to make
operational changes as a result of this rule, and we believe that a
November 1, 2024 effective date will allow BHPs sufficient time to
implement the operational changes required.
---------------------------------------------------------------------------
\94\ 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. The one State that currently operates a BHP,
Minnesota, follows Medicaid's continuous open enrollment process.
---------------------------------------------------------------------------
CMS also acknowledges that DACA recipients and other impacted
noncitizens who are newly considered to be lawfully present as a result
of this rule will qualify for an SEP; however, as stated previously, we
are not able to effectively implement the rule with an effective date
earlier than November 1, 2024. We are committed to working with
impacted State Exchanges operating their own platforms and BHP agencies
to provide technical assistance and educational materials to facilitate
successful implementation of this rule.
For the reasons detailed in section I., we are not finalizing a
definition of ``lawfully present'' for purposes of Medicaid and CHIP
eligibility at this time. We acknowledge that commenters urged us to
ensure that DACA recipients and other impacted noncitizens would be
able to access these programs as soon as possible. During this time, we
believe that many DACA recipients and other impacted noncitizens who
may have been eligible for Medicaid or CHIP under the policies in the
proposed rule will instead be able to access coverage by enrolling in a
QHP via the Exchange or BHP coverage.\95\
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\95\ DACA recipients who qualify to enroll in a QHP will
generally be eligible for APTC and CSRs (subject to other
eligibility requirements) even if their income is under 100 percent
of FPL, as individuals who are lawfully present but ineligible for
Medicaid due to their ``alien status'' may be eligible for APTC and
CSRs. See 26 U.S.C. 36B(c)(1)(B) and 42 U.S.C. 18071(b)(2).
---------------------------------------------------------------------------
For the commenter who urged us to implement the rule by the
upcoming SEP, we believe that the commenter may have been referring to
the individual market Exchange Open Enrollment Period; the benefits of
aligning with the Exchange Open Enrollment Period are addressed above.
Alternatively, this commenter may be referring to the SEP for
individuals who lose Medicaid or CHIP coverage due to the end of the
continuous enrollment condition in Medicaid, also referred to as the
``Unwinding SEP.'' This SEP has been available on HealthCare.gov to
consumers since March 31, 2023 and remains in effect.\96\ As noted
previously, this final rule will be effective for the 2024 individual
market Exchange Open Enrollment Period which will begin on November 1,
2024.
---------------------------------------------------------------------------
\96\ See https://www.medicaid.gov/resources-for-states/downloads/extn-sep-cnsmrs-lsg-chip-cvrg-adndm-faq.pdf.
---------------------------------------------------------------------------
Comment: Many commenters agreed with CMS that DACA recipients and
other impacted noncitizens would qualify for the existing SEP for
individuals who are newly considered to be lawfully present for the 60
days following the effective date of the rule. One nonprofit
organization urged CMS to implement an SEP for DACA recipients that
would last for 12 months after the effective date of the rule, to
ensure that individuals have sufficient time to enroll.
Response: Commenters are correct that noncitizens who are newly
considered lawfully present under the definition in the final rule will
qualify for the existing 60-day SEP for individuals who are newly
lawfully present under 45 CFR 155.420(d)(3) as of the applicability
date of the final rule. We acknowledge the suggestion that we make an
extended SEP, greater than 60 days, available for this population.
However, we believe that the individual market Open Enrollment Period
and the existing 60-day SEP should give impacted noncitizens sufficient
time to apply for and enroll in coverage. In our prior experience
implementing changes to Exchange eligibility rules that align with the
individual market Open Enrollment Period, such as changes related to
employer-sponsored coverage affordability and premium tax credit
eligibility (87 FR 61979), we are not aware of significant issues
related to consumers having sufficient time to enroll. In nearly all
situations where consumers become newly eligible to enroll in a QHP or
for APTC or CSRs, we provide a 60-day SEP, and we believe that is
generally an appropriate approach. Additionally, as indicated above,
pursuant to 42 CFR 600.320(d), Minnesota's BHP has elected to follow
Medicaid's continuous enrollment process and therefore an extended SEP
would not apply to this population.
We acknowledge that there may be unique challenges relevant to the
consumers impacted by this rule, and we are committed to working with
State Exchanges not on the Federal platform, BHPs, assisters, and
community-based organizations to conduct targeted outreach to
facilitate efficient enrollment processes for DACA recipients and other
impacted noncitizens who may be eligible for coverage. We also note
that some State Exchanges not on the Federal platform, including those
in California and New Jersey, where an estimated 168,120 and 14,760
DACA recipients live, respectively, have individual market Open
Enrollment Periods that are longer than the one provided in the
Exchanges on the Federal platform, giving consumers up to 90 days to
enroll in a QHP.
Comment: A minority of State Exchanges not on the Federal platform
that commented on the rule raised concerns that the proposed effective
date of November 1, 2023, may not be feasible. These commenters urged
CMS to provide State Exchanges not on the Federal platform with
flexibility on the timeframe for full implementation of the rule's
provisions. Some of these commenters also stated concerns that changes
would not be available for testing through the Federal Data Services
Hub (hereinafter ``the Hub'') in a timely manner. Additionally, some
commenters noted the importance of finalizing the rule as soon as
possible, to give interested parties, including State Exchanges not on
the Federal platform, assisters, and community-based organizations as
much time as possible to prepare for the policy and operational changes
in the rule prior to its effective date.
[[Page 39417]]
Response: We acknowledge commenters' concerns about challenges with
implementation of the provisions of this rule. To address these
concerns, we plan to release technical guidance to State Exchanges not
on the Federal platform and to BHP agencies to assist those agencies
with implementing provisions of the rule. We are committed to
supporting readiness for State Exchanges not on the Federal platform
and BHP agencies, while also removing barriers to coverage for eligible
individuals and supporting their enrollment through the Exchange or a
BHP for which they are eligible. We will be available to work with
State Exchanges not on the Federal platform and BHP agencies
individually to facilitate their compliance by November 1, 2024.
We also acknowledge the possibility that some State Exchanges not
on the Federal platform may not be able to fully implement the
provisions of this rule by the November 1, 2024 effective date. We
further acknowledge that if State Exchanges are not able to implement
by November 1, 2024, that there is a risk that DACA recipients and
other impacted noncitizens could have limited opportunity to access QHP
coverage through the SEP for which they are eligible under 45 CFR
155.420(d)(3), given that the trigger event for the SEP is the November
1, 2024 effective date of this rule and only provides 60 days after the
triggering event to select a QHP. If a delay in State Exchange
implementation results in newly eligible consumers being unable to
enroll in coverage during their initial 60-day SEP window, State
Exchanges could consider granting a pathway into QHP coverage for
eligible applicants on a case-by-case basis under exceptional
circumstances authority at 45 CFR 155.420(d)(9).
Comment: A few commenters urged CMS to consider a later effective
date than November 1, 2023 due to ongoing litigation concerning a
separate DHS final rule. One nonprofit organization urged CMS to
refrain from finalizing the rule and setting an effective date until
the challenge to DACA in Texas v. United States, 50 F.4th 498 (5th Cir.
2022), has reached a final disposition. The commenter further stated
concern that pursuing this rulemaking while litigation continues could
result in unnecessary expenditures and investment of staff time by DHS
and HHS. A comment submitted by some State attorneys general urged CMS
to postpone the effective date of the final rule pending judicial
review.
Response: We do not believe it is necessary to delay this final
rule in its entirety pending a resolution of litigation concerning
DHS's final rule. 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. Moreover, this rule makes other
changes to the definitions of ``lawfully present,'' in 45 CFR 155.20
and impacts other noncitizens in addition to DACA recipients.
We acknowledge that current court orders prohibit DHS from fully
administering the DHS DACA final rule (87 FR 53152). Those orders,
however, have been subject to judicial stays since their issuance and,
as a result, the DACA policy has remained in effect with respect to
current DACA recipients. Additionally, the policies in this rule solely
address eligibility for specific HHS health programs and are separate
from DHS regulations. As described in detail throughout this rule, this
rule reflects our independent statutory authority under the ACA to
define ``lawfully present'' for purposes of eligibility to enroll in a
QHP or the BHP.
After careful consideration of public comments, we are finalizing
November 1, 2024 as the effective date of this final rule. This means
that, effective November 1, 2024, the definitions of ``lawfully
present'' used to determine eligibility to enroll in a QHP, and for
APTC and CSRs, as well as for the BHP, will no longer exclude DACA
recipients and will also reflect the changes detailed in section
II.B.2. The proposed definitions of ``lawfully present'' for Medicaid
and CHIP are not being addressed in this final rule. For purposes of
these programs, the definitions established in the 2010 SHO and 2012
SHO will continue to apply.
D. Eligibility in States, the District of Columbia, the Northern
Mariana Islands, and American Samoa and Children's Health Insurance
Programs (CHIPs) (42 CFR 435.4 and 457.320(c))
1. Lawfully Residing and Lawfully Present Definitions
We proposed to define the term ``lawfully present'' at 42 CFR 435.4
for Medicaid eligibility under the CHIPRA 214 option, consistent with
the Exchange definitions described in the proposed rule at 45 CFR
155.20, including the minor technical changes and clarifications to the
lawfully present definition described in preamble section II.B.2 of
this final rule. We also proposed to add a cross-reference to this
definition at 42 CFR 457.320(c) for purposes of determining eligibility
for CHIP under the CHIPRA 214 option. We proposed a definition of
``lawfully residing'' in 42 CFR 435.4 to mirror the definition in the
2010 SHO, discussed previously in this rule--that an individual is
``lawfully residing'' if they are ``lawfully present'' in the United
States and are a resident of the State in which they are applying under
the State's Medicaid residency rules. For CHIP, we also proposed to add
a cross-reference at 42 CFR 457.320(c) to the ``lawfully residing''
definition at 42 CFR 435.4, except that States must comply with CHIP
residency requirements at 42 CFR 457.320(e).
Due to the reasons discussed in section I of this final rule, we
are not finalizing a ``lawfully present'' definition for Medicaid and
CHIP at this time. This means that for 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.
We received comments regarding the proposals to define the term
``lawfully present'' for Medicaid and CHIP eligibility under the CHIPRA
214 option. As we are continuing to consider and evaluate these
comments, we are not providing our responses to comments in the final
rule at this time. Comments that expressed general support for or
opposition to the policies in the proposed rule without reference to a
specific insurance affordability program have been addressed above in
sections II.B.1 and II.B.2 with respect to Exchange and BHP coverage.
2. Defining Qualified Noncitizen
Under our current Medicaid regulations, a ``qualified non-citizen''
is defined at 42 CFR 435.4, which includes an individual described in 8
U.S.C. 1641(b) and (c). Similarly, 42 CFR 457.320(b)(6) defines a
``qualified alien'' for CHIP with a cross-reference to section 431 of
PRWORA, which is codified at 8 U.S.C. 1641. The definitions are
currently used for determining Medicaid and CHIP eligibility under our
regulations at 42 CFR 435.406 and 42 CFR 457.320, and the definition is
also used when determining eligibility of individuals under the CHIPRA
214 option. In the proposed rule, we considered whether the current
definition of ``qualified noncitizen'' at 42 CFR 435.4 should be
modified to provide greater clarity and increase transparency for the
public. Specifically, we noted that we were considering whether the
definition should be modified to expressly include all of the
categories of noncitizens covered by 8 U.S.C. 1641(b) and (c), as well
as additional categories of
[[Page 39418]]
noncitizens that Medicaid agencies are required to cover (if they meet
all eligibility requirements in the State) as a result of subsequently
enacted legislation that was not codified in 8 U.S.C. 1641(b) or (c).
For example, Federal law requires certain populations to be treated as
``refugees'' for certain purposes of eligibility for certain means
tested benefit programs, including Medicaid and CHIP. Because refugees
are listed in 8 U.S.C. 1641(b)(3) as a category of noncitizens who are
``qualified aliens'' and are also exempt from the 5-year waiting period
under 8 U.S.C. 1613, these noncitizens also are treated as qualified
noncitizens for purposes of Medicaid and CHIP and are exempt from the
5-year waiting period. In the proposed rule, we indicated that we were
considering including these additional categories of noncitizens who
are treated as refugees under other Federal statutes as specifically
included in the definition of ``qualified noncitizen'' in 42 CFR 435.4,
and we sought comment on this possibility. Examples of such noncitizens
include victims of trafficking and certain Afghan and Ukrainian
parolees.\97\ A full list can be found below in section II.D.2. of this
rule. Because noncitizens who are treated as refugees for purposes of
Medicaid eligibility are also treated as refugees for purposes of CHIP
eligibility, these categories of noncitizens (discussed previously in
the proposed rule) were considered for the definition of qualified
noncitizen for purposes of CHIP.
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\97\ To date, these other Federal laws include the Trafficking
Victims Protection Act of 2000 (22 U.S.C. 7105(b)), relating to
certain victims of trafficking; section 602(b)(8) of the Afghan
Allies Protection Act of 2009, Public Law. 111-8 (8 U.S.C. 1101
note), relating to certain Afghan special immigrants; section
1244(g) of the Refugee Crisis in Iraq Act of 2007 (8 U.S.C. 1157
note), relating to certain Iraqi special immigrants; section 584(c)
of Public Law. 100-202 (8 U.S.C. 1101 note), relating to Amerasian
immigrants; section 2502(b) of the Extending Government Funding and
Delivering Emergency Assistance Act of 2021, Public Law. 117-43,
relating to certain Afghan parolees; and section 401 of the
Additional Ukraine Supplemental Appropriations Act of 2022, Public
Law. 117-128, relating to certain Ukrainian parolees.
---------------------------------------------------------------------------
We also noted in the proposed rule that there was at least one
difference in how the term ``qualified noncitizen'' applies to Medicaid
compared to the other programs discussed in the proposed rule.
Specifically, we noted that COFA migrants were only considered
``qualified aliens'' for purposes of the Medicaid program, under the
Consolidated Appropriations Act, 2021.\98\ However, after the proposed
rule was issued, Congress amended 8 U.S.C. 1641(b)(8) through CAA, 2024
\99\ to remove the language that limited COFA migrants as qualified
noncitizens only for purposes of the Medicaid program. Since CHIP is
identified as a Federal public benefit as defined at 8 U.S.C.
1611(c),\100\ COFA migrants are now considered qualified noncitizens
for the purposes of CHIP eligibility. Further, CAA, 2024 amended 8
U.S.C. 1613(b)(3) to expand the exception for COFA migrants from the 5-
year waiting period for all Federal means-tested public benefits,
allowing immediate eligibility for CHIP effective March 9, 2024, if the
individual meets all other eligibility requirements in the State plan.
Since the new legislation supersedes our proposed rule, we will remove
the proposed limitations considering COFA migrants from the definition
of qualified noncitizen in this final rule.
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\98\ Div. CC, Title II, sec. 208, Public Law. 116-260.
\99\ Div. G, Title II, sec. 209(f), Public Law. 118-42.
\100\ For a list of HHS programs that provide ``Federal public
benefits,'' see 63 FR 41658 (Aug. 4, 1998).
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We solicited comments on our proposal to add more detailed
information to the definition of qualified noncitizen under Medicaid
and CHIP to promote clarity, transparency, and administrative ease.
We also proposed a nomenclature change to the definition of
``citizenship,'' ``noncitizen,'' and ``qualified noncitizen'' in 42 CFR
435.4 to remove the hyphen in the term ``non-citizen'' and use the term
``noncitizen'' throughout those definitions. We proposed this change to
ensure alignment with terminology used by DHS. We noted that these
changes do not affect eligibility for Medicaid and CHIP programs and
only streamline the use of terminology for clarity and administrative
ease. We did not receive any public comments regarding those changes.
We are finalizing the changes as proposed in 42 CFR 435.4.
We received several public comments on our request to provide
additional detail to the definition of qualified noncitizen used for
Medicaid and CHIP at 42 CFR 435.4 and 42 CFR 457.320(c). No commenters
opposed our proposal.
Comment: Some commenters supported CMS' proposal to include a
detailed definition of ``qualified noncitizen'' at 42 CFR 435.4 and to
expressly list all the categories of noncitizens that Medicaid and CHIP
agencies are required to cover. One commenter supported a definition
that includes categories of noncitizens covered by 8 U.S.C. 1641(b) and
(c), any additional categories that Medicaid agencies are required to
cover as a result of subsequently enacted legislation not currently
codified in Title 8, as well as a ``residual category that encompasses
any statuses created by subsequent legislation or other changes to the
statute after the proposed rule is finalized.''
These commenters noted that codifying a clear definition of
``qualified noncitizen'' would reduce confusion among individuals
applying for Medicaid coverage, those helping them apply for coverage,
and for Medicaid agencies.
Response: We agree with commenters that including a detailed
definition of ``qualified noncitizen'' in our regulations will help
clarify our policy for beneficiaries, State Medicaid agencies, and
other partners and interested parties, and we are including a
definition of ``qualified noncitizen'' in the final rule at 42 CFR
435.4, which is incorporated by cross reference in the CHIP regulations
at 42 CFR 457.320(c).
We are declining the commenter's suggestion to include a broad
catchall category that would include future changes in statute. Adding
a provision to accommodate potential future legislation would add
ambiguity and uncertainty to the final rule that may be confusing for
States that may be applying the regulation once it is effective. Should
the Congress make further changes to the definition of qualified
noncitizen, we will provide additional guidance.
Comment: One nonprofit organization stated that CMS should include
petitioners for U-visas in the definition of qualified noncitizen.
Response: We do not have the statutory authority to include U
nonimmigrant status petitioners in our definition of ``qualified
noncitizen,'' because the definition of qualified noncitizen is based
on PRWORA's definition of ``qualified alien'' at 8 U.S.C. 1641 and
other specific statutory changes authorizing treatment of certain
noncitizens as a ``refugee'' for purposes of Medicaid and CHIP
eligibility, among other purposes. Neither the statutory definition at
8 U.S.C. 1641 nor any other Federal statute expressly addresses U
nonimmigrant status petitioners' treatment as a refugee or eligibility
for Federal public benefits, nor is there a statute that includes
nonimmigrants more broadly. Thus, we are not adopting the commenter's
suggestion to include U visa petitioners in the definition of qualified
noncitizen. See preamble section II.B.2 for additional information on
the use of deferred action for certain U nonimmigrant status
petitioners.
[[Page 39419]]
Comment: A few commenters noted that they supported the proposed
changes to expand eligibility for noncitizens who are treated as
refugees, such as certain Afghan and Ukrainian parolees,\101\ which
would enable these individuals to enroll in an Exchange plan, Medicaid
and CHIP.
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\101\ See Section 2502 of the Extending Government Funding and
Delivering Emergency Assistance Act, Public Law. 117-43 (Sept. 30,
2021), as amended, and Section 401 of the Additional Ukraine
Supplemental Appropriations Act, 2022, Public Law. 117-128 (May 21,
2022).
---------------------------------------------------------------------------
Response: We appreciate the support for including in the regulatory
definition of ``qualified noncitizen'' both the noncitizens who are
included in the definition of ``qualified alien'' under 8 U.S.C.
1641(b) and (c) as well as the noncitizens who are treated as refugees
for purposes of eligibility for Medicaid and CHIP under other Federal
statutes, and we are including both groups of noncitizens in the
definition at 42 CFR 435.4 and 42 CFR 457.320(c) of the final rule. We
wish to clarify that the final rule does not expand eligibility for
these noncitizens but merely expressly reflects in our regulations
individuals who may be eligible for Medicaid and CHIP under existing
statutes, including the expansion of CHIP eligibility for COFA migrants
as authorized by CAA, 2024. Individuals who are treated as refugees
under other Federal laws are already required by statute to be covered
by State Medicaid and CHIP programs if the individual meets all other
eligibility requirements in the State plan. Additionally, these
individuals are included in the existing Exchange definition of
``lawfully present'' as qualified noncitizens at 45 CFR 152.2(1),
cross-referenced in our current regulation at 45 CFR 155.20 and 42 CFR
600.5, and are therefore eligible for QHP and BHP coverage if they meet
other eligibility requirements.
Comment: One commenter requested that we include within the
definition of ``qualified noncitizen'' a list of each category of human
trafficking victims separately, while explaining that the list of
subsections included is not exclusive. The commenter mentioned that
Afghans, Ukrainians, and Iraqis should be specifically listed. The
commenter further specified that CMS' definition of ``qualified
noncitizen'' should include T visa holders, ``T visa applicants with
bona fide determinations'' and HHS Office of Trafficking in Persons
(OTIP) certifications, human trafficking victims who have been granted
continued presence by DHS and receive OTIP certifications, and
noncitizen child victims of human trafficking (sex or labor) with
eligibility letters from OTIP.
Response: We wish to clarify that victims of a severe form of
trafficking in persons under the Trafficking Victims Protection Act of
2000, Public Law 106-386 and family members of trafficking victims
granted derivative T nonimmigrant status are considered qualified
noncitizens because they are eligible for benefits and services to the
same extent as refugees. 22 U.S.C. 7105(b). This statutory provision
includes individuals who received a certification from HHS under 22
U.S.C. 7105(b)(1)(E). A victim of a severe form of trafficking in
persons may receive an HHS certification if they have complied with any
reasonable request for assistance in the detection, investigation, or
prosecution of the trafficking (or qualify for an exemption due to
their age or an exception due to physical or psychological trauma) and
have made a bona fide application for T nonimmigrant status or were
granted continued presence by DHS. Such individuals who receive an HHS
certification are included as individuals treated as refugees when
meeting the requirements of 22 U.S.C. 7105(b). Additionally, we note
that T nonimmigrants and T nonimmigrant status applicants who have set
forth a prima facie case for such nonimmigrant status are considered
qualified noncitizens under 8 U.S.C. 1641(c)(4). We are including these
classifications of victims of trafficking and applicants for T
nonimmigrant status in our revised definition of qualified noncitizen
at 42 CFR 435.4 of this final rule.
After consideration of public comments, we are including in our
definition of ``qualified noncitizen'' in this final rule noncitizens
who are considered ``qualified aliens'' under 8 U.S.C. 1641(b) and (c),
and other immigration statuses and categories that are not included in
the statutory definition of ``qualified aliens'' but whom the Congress
has specifically authorized be treated as refugees for purposes of
eligibility for certain benefits, including Medicaid and CHIP.
Specifically, we are including the following noncitizens in the
definition of ``qualified noncitizen'' in 42 CFR 435.4 of the final
rule:
Noncitizens who are victims of a severe form of
trafficking in persons, who are eligible for Medicaid and CHIP to the
same extent as refugees under section 107 of the Victims of Trafficking
and Violence Protection Act of 2000 and the members of a trafficking
victim's family who are granted derivative T nonimmigrant status, in
accordance with 22 U.S.C. 7105(b)(1)(A);
Iraqi and Afghan special immigrants, who are eligible for
Medicaid and CHIP to the same extent as refugees under the National
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181,
enacted January 28, 2008); the Omnibus Appropriations Act, 2009 (Pub.
L. 111-8, enacted March 11, 2009); the Department of Defense
Appropriations Act, 2010 (Pub. L. 111-118, enacted December 19, 2009);
and the National Defense Authorization Act for Fiscal Year 2015 (Pub.
L. 113-291, enacted December 19, 2014);
Amerasian immigrants, who are treated the same as refugees
for purposes of Medicaid and CHIP eligibility in accordance with a
joint resolution making further continuing appropriations for the
fiscal year 1988, and for other purposes (Pub. L. 100-202, enacted
December 22, 1987);
Certain Afghan parolees who are eligible for Medicaid and
CHIP to the same extent as refugees in accordance with section 2502 of
the Extending Government Funding and Delivering Emergency Assistance
Act (Pub. L. 117-43 as amended, enacted September 30, 2021); and
Certain Ukrainian parolees who are also eligible for
Medicaid and CHIP to the same extent as refugees under section 401 of
the Additional Ukraine Supplemental Appropriations Act (Pub. L. 117-128
as amended, enacted May 21, 2022).
We are also making a conforming technical change to 42 CFR
435.406(2)(i) to replace the current cross-reference to ``qualified
noncitizens'' as defined in section 431 of PRWORA (8 U.S.C. 1641) to
the modified definition of ``qualified noncitizen'' at 42 CFR 435.4
that is being finalized in this rule. Likewise, in response to public
comments and to align CHIP with Medicaid and to include COFA migrants
as qualified noncitizens for the purposes of CHIP eligibility as
authorized by CAA, 2024, we have finalized a definition of ``qualified
noncitizen'' for purposes of CHIP eligibility at 42 CFR 457.320(c),
which cross references to the definition of ``qualified noncitizen'' at
42 CFR 435.4. We are also finalizing an amendment at 42 CFR
457.320(b)(6) to replace ``qualified aliens'' with ``qualified
noncitizens'' and to replace the reference to section 431 of PRWORA
with the new definition of ``qualified noncitizen'' at 42 CFR
457.320(c).
Comment: One commenter recommended that we include in the
definition of ``qualified noncitizen'' other individuals who are
required to be covered in Medicaid under the Federal statute at 8
U.S.C. 1612(b) but are not considered qualified aliens under 8 U.S.C.
1641 or treated as refugees under other Federal statutes (for example,
[[Page 39420]]
American Indians born in Canada or members of a Federally-recognized
tribe, 8 U.S.C. 1612(b)(2)(E); 8 U.S.C. 1613(d)(1)). This commenter
recommended that CMS include these additional individuals required to
be covered by Medicaid in our revised definition of ``qualified
noncitizen'' to promote clarity and transparency to the public
specifying those individuals who must be covered in Medicaid, if
meeting all other eligibility requirements.
Response: We agree with the commenter that there are additional
groups of noncitizens who are required to be covered in Medicaid under
8 U.S.C. 1612(b)(2), but do not agree that these individuals are
considered qualified noncitizens under 8 U.S.C. 1641. We also
appreciate that there is some confusion regarding the noncitizens for
whom coverage under Medicaid and CHIP is required. States are required
to provide full Medicaid benefits to certain noncitizens under 8 U.S.C.
1612(b)(2) if they meet all other eligibility requirements in the State
plan. We are not adopting the commenter's suggestion to include these
individuals in the definition of ``qualified noncitizen'' in 42 CFR
435.4, as they are not qualified aliens under 8 U.S.C. 1641 or based on
other Federal statutes. Moreover, we did not propose a rule that would
identify all the individuals required to be covered in Medicaid under 8
U.S.C. 1612(b).
While we are not adopting a final rule, pursuant to the request for
clarification, we are identifying in this preamble the individuals that
States are required by statute to cover in Medicaid under 8 U.S.C.
1612(b) and are exempt from the 5-year bar under 8 U.S.C. 1613.
Under 8 U.S.C. 1612(b)(2)(A), States must cover for at least 7
years refugees; asylees; noncitizens whose deportation is withheld
under specified sections of the INA; Cuban and Haitian entrants;
Amerasian immigrants; and other noncitizens treated as if they were
refugees for purposes of Medicaid eligibility.
Under 8 U.S.C. 1612(b)(2)(B), States are required to cover lawful
permanent residents who have worked or can be credited with 40
qualifying quarters, as defined under title II of the Social Security
Act. Quarters worked either by the individual or his or her spouse or
parents may be counted if certain conditions, described in 8 U.S.C.
1612(b)(2)(B) and 8 U.S.C. 1645, are met. Under 8 U.S.C. 1612(b)(2)(C),
States must provide full Medicaid coverage to all lawfully residing
noncitizens who are an honorably discharged veteran or an active-duty
service member in the United States Armed Forced as well as to spouses
and dependent children of such individuals who meet all other
eligibility requirements under the State plan.
In accordance with 8 U.S.C. 1612(b)(2)(E) and (F), States must
provide full Medicaid benefits to certain American Indians and
noncitizens receiving SSI. Finally, in accordance with 8 U.S.C.
1612(b)(2)(G), States must provide full Medicaid benefits to COFA
migrants who live in one of the 50 States or the District of Columbia.
Covering COFA migrants in the U.S. territories, including Puerto Rico,
the Virgin Islands, Guam, the Northern Mariana Islands, and American
Samoa is at the territory's option. All such individuals described in 8
U.S.C. 1612(b)(2) must meet all other eligibility requirements in the
State to be eligible for Medicaid coverage.
Since CHIP is not a ``designated Federal program'' under 8 U.S.C.
1612(b)(3), none of the individuals described in 8 U.S.C. 1612 are
eligible for separate CHIP based on this statute, though some of these
individuals may be eligible for CHIP under other statutes.
E. Administration, Eligibility, Essential Health Benefits, Performance
Standards, Service Delivery Requirements, Premium and Cost Sharing,
Allotments, and Reconciliation (42 CFR Part 600)
Section 1331 of the ACA provides States with an option to establish
a BHP.\102\ In States that elect to implement a BHP, the program makes
affordable health benefits coverage available for lawfully present
individuals under age 65 with household incomes between 133 percent and
200 percent of the FPL (or in the case of lawfully present noncitizens
who are ineligible for Medicaid or CHIP due to immigration status, with
household incomes between zero and 200 percent of the FPL) who are not
otherwise eligible for other minimum essential coverage including
Medicaid, CHIP, or affordable employer-sponsored coverage. As of April
1, 2024, there is one State that operates a BHP--Minnesota.\103\
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\102\ See 42 U.S.C. 18051. See also 42 CFR part 600.
\103\ Minnesota's program began January 1, 2015. New York's BHP
program began April 1, 2015 and was suspended effective April 1,
2024. For more information, see https://www.medicaid.gov/basic-health-program/. Also see, for example, 87 FR 77722,
available at https://www.govinfo.gov/content/pkg/FR-2022-12-20/pdf/2022-27211.pdf. Oregon is proposing to implement a BHP effective
July 1, 2024, and it is currently pending approval with CMS.
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In the proposed rule, we proposed conforming amendments to the BHP
regulations to remove the current cross-reference to 45 CFR 152.2 in
the definition of ``lawfully present'' at 42 CFR 600.5. We proposed to
amend the definition of ``lawfully present'' in the BHP regulations at
42 CFR 600.5 to instead cross-reference the definition of ``lawfully
present'' proposed at 45 CFR 155.20. We noted that this proposal, if
finalized, would result in DACA recipients being considered lawfully
present for purposes of eligibility to enroll in a BHP in a State that
elects to implement such a program, if otherwise eligible. We also
noted that, if the proposals were finalized, the modification would
ensure that the definition of ``lawfully present'' used to determine
eligibility for coverage under a BHP is aligned with the definition of
``lawfully present'' used for the other insurance affordability
programs. While we are not finalizing a lawfully present definition for
Medicaid or CHIP in this final rule for the reasons detailed in section
I, we are finalizing a definition of ``lawfully present'' for purposes
of BHP eligibility that will align the definitions used for Exchanges
and for BHP.
We received public comments on these proposals. The following is a
summary of the comments we received and our responses.
Comment: One nonprofit organization commenter noted that in
Minnesota, a bill was recently passed to expand the State's BHP to all
individuals who are otherwise eligible, regardless of immigration
status, using State funds. The commenter notes that CMS' rule aligns
with Minnesota's ongoing efforts to reduce uncompensated care costs and
improve population health.
Response: We appreciate this commenter's support for the rule's
provisions to no longer exclude DACA recipients from eligibility for a
BHP.
Comment: Commenters noted and appreciated CMS' foresight to ensure
that DACA recipients will be able to enroll in a BHP should other
States choose this option in the future.
Response: We agree that, should any other States elect to operate a
BHP in the future, that DACA recipients in the State would be
considered lawfully present for purposes of eligibility for the BHP.
Since the proposed rule was published, Oregon has indicated that they
intend to begin operating a BHP effective July 1, 2024, and the
definition of ``lawfully present'' finalized in this rule will apply to
Oregon's BHP which is currently pending approval with CMS.
After consideration of public comments, we are finalizing the
proposal to include a cross-reference to
[[Page 39421]]
45 CFR 155.20 at 42 CFR 600.5 as proposed.
III. Severability
As described in the background section of this rule, the ACA
generally \104\ requires that to enroll in a 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.\105\ The ACA also
generally requires that individuals be ``lawfully present'' to be
eligible for insurance affordability programs such as PTC,\106\
APTC,\107\ and CSRs \108\ for their Exchange coverage. Additionally,
enrollees in a BHP are required to meet the same citizenship and
immigration requirements as QHP enrollees.\109\ 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,\110\ and that CMS
is required to verify that Exchange applicants are lawfully present in
the United States.\111\
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\104\ 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 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
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 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 https://www.cms.gov/cciio/programs-and-initiatives/state-innovation-waivers/section_1332_state_innovation_waivers-.
\105\ 42 U.S.C. 18032(f)(3).
\106\ 26 U.S.C. 36B(e)(2).
\107\ 42 U.S.C. 18082(d).
\108\ 42 U.S.C. 18071(e).
\109\ 42 U.S.C. 18051(e).
\110\ 42 U.S.C. 18032(f)(3), 42 U.S.C. 18071(e)(2).
\111\ 42 U.S.C. 18081(c)(2)(B).
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Since 1996, when the DOJ's Immigration and Naturalization Service
issued an interim final rule defining the term ``lawfully present'' as
used in the then-recently enacted PRWORA, Federal agencies have
considered deferred action recipients to be ``lawfully present'' for
purposes of certain Social Security benefits (see Definition of the
Term Lawfully Present in the United States for Purposes of Applying for
Title II Benefits Under Section 401(b)(2) of Public Law 104-193,
interim final rule, 61 FR 47039). Given the lack of a statutory
definition of ``lawfully present'' in the ACA and given the rulemaking
authority granted to CMS under 42 U.S.C. 18051 and 42 U.S.C. 18041, HHS
has discretion to determine the best legal interpretations of these
terms for purposes of administering its programs. As previously
described, CMS' authority to remove the exclusion that treated DACA
recipients differently from other noncitizens with deferred action
under the definition of ``lawfully present'' for purposes of
eligibility for health insurance through an Exchange and a BHP is
supported by law and should be upheld in any legal challenge.
Similarly, we are finalizing technical changes to the definition of
``lawfully present'' for the purposes of eligibility for a QHP through
an Exchange or a BHP, and we believe those changes are also well-
supported in law and practice and should be upheld in any legal
challenge. We also believe that our exercise of our authority reflects
sound policy.
However, in the event that any portion of this final rule is
declared invalid, we intend that the other changes to the definition of
``lawfully present'' would be severable. For example, if a court were
to stay or invalidate the inclusion of one provision in the definition
of ``lawfully present,'' for purposes of eligibility for the Exchanges
or the BHP, we intended the remaining features in sections II.B.1 and
II.B.2 of this rule to stand. Likewise, CMS intends that if one
provision of the changes to the definition of ``lawfully present'' is
stayed or invalidated, that other provisions within this regulation be
severable to the extent possible. For example, if one of the provisions
discussed in section II.B.2 (Other Changes to the ``Lawfully Present''
Definition) of the proposed rule is stayed or invalidated, CMS intends
that the other provisions discussed in that section be severable.
Additionally, individual portions of this final rule have
significant benefits and would be worthwhile in themselves. For
example, a rule consisting only of the technical and clarifying changes
in section II.B.2 of this final rule, applied through cross-reference
to Exchanges and BHPs, would allow CMS and Exchanges to more
effectively verify the lawful presence of noncitizens for purposes of
eligibility for health insurance affordability programs. A rule
consisting solely of the changes in section II.B.1 of this rule would
have significant benefits because it would increase access to health
coverage for DACA recipients. These reasons alone would justify the
continued implementation of these policies.
In the proposed rule, we proposed a severability provision at 45
CFR 155.30 indicating that the provisions regarding the definition of
``lawfully present'' proposed at 45 CFR 155.20 were intended to be
severable from each other, as well as from the definitions of
``lawfully present'' and ``lawfully residing'' proposed at 42 CFR
435.4. We also proposed a provision at 42 CFR 435.12 regarding the
severability of the definitions of ``lawfully present'' and ``lawfully
residing'' that were proposed at 42 CFR 435.4.
We received public comments on these proposals. The following is a
summary of the comments we received and our responses.
Comment: Commenters stated support for CMS' inclusion of
severability clauses in the rule. Commenters stated that they agreed
with HHS that the proposed changes are well-supported in law and
practice and that they reflect sound policy, but that they also
recognized that the rule's changes are not dependent on each other and
could be implemented independently.
Response: We appreciate commenters' agreement that the changes in
this rule are well-supported in law and practice. We further appreciate
commenters' recognition that the provisions of this rule are not
dependent on each other and could be implemented independently.
After consideration of public comments, we are finalizing the
severability clause at 45 CFR 155.30 as proposed, with one modification
to no longer reference the definitions of ``lawfully present'' and
``lawfully residing'' proposed at 42 CFR 435.4, given that we are not
finalizing those definitions at this time. Because we are not
finalizing definitions of ``lawfully present'' or ``lawfully residing''
at 42 CFR 435.4 at this time, we are also not finalizing the proposed
severability clause that references those definitions at 42 CFR 435.12
at this time. The rulemaking process with regard to these portions of
the proposal is ongoing.
IV. Collection of Information Requirements
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.),
[[Page 39422]]
we are required to provide 60-day notice in the Federal Register and
solicit public comment before a collection of information requirement
is submitted to the Office of Management and Budget (OMB) for review
and approval. To fairly evaluate whether an information collection
should be approved by OMB, section 3506(c)(2)(A) of the PRA requires
that we solicit comment on the following issues:
The need for the information collection and its usefulness
in carrying out the proper functions of our agency.
The accuracy of our estimate of the information collection
burden.
The quality, utility, and clarity of the information to be
collected.
Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
We solicited public comment on each of these issues for the
following sections of this document that contain information collection
requirements.
A. Wage Estimates
To derive average costs in the proposed rule, we used data from the
U.S. Department of Labor's Bureau of Labor Statistics' (BLS's) May 2021
National Occupational Employment and Wage Estimates for all salary
estimates (https://www.bls.gov/oes/current/oes_nat.htm).\112\ Since
publishing the proposed rule, more recent data has become available, so
we are modifying all salary estimates in this final rule to use BLS's
May 2023 National Occupational Employment and Wage Estimates (https://www.bls.gov/oes/current/oes_nat.htm). In this regard, Table 1 presents
BLS's median hourly wage, our estimated cost of fringe benefits and
overhead (calculated at 100 percent of salary), and our adjusted hourly
wage.
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\112\ See 88 FR 25322 through 25323 for more information on the
wage estimates used in the proposed rule.
[GRAPHIC] [TIFF OMITTED] TR08MY24.018
For States and the private sector, employee hourly wage estimates
have been adjusted by a factor of 100 percent to account for fringe
benefits and other indirect costs. This is necessarily a rough
adjustment, both because fringe benefits and other indirect costs vary
significantly across employers, and because methods of estimating these
costs vary widely across studies. Nonetheless, there is no practical
alternative, and we believe that doubling the hourly wage to estimate
total cost is a reasonably accurate estimation method.
We adopt an hourly value of time based on after-tax wages to
quantify the opportunity cost of changes in time use for unpaid
activities. This approach matches the default assumptions for valuing
changes in time use for individuals undertaking administrative and
other tasks on their own time, which are outlined in an Assistant
Secretary for Planning and Evaluation (ASPE) report on ``Valuing Time
in U.S. Department of Health and Human Services Regulatory Impact
Analyses: Conceptual Framework and Best Practices.'' \113\ We started
with a measurement of the usual weekly earnings of wage and salary
workers of $1,117.\114\ We divided this weekly rate by 40 hours to
calculate an hourly pre-tax wage rate of $27.93. We adjusted this
hourly rate downwards by an estimate of the effective tax rate for
median income households of about 17 percent, resulting in a post-tax
hourly wage rate of $23.18. We adopt this as our estimate of the hourly
value of time for changes in time use for unpaid activities.
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\113\ Department of Health and Human Services, Office of the
Assistant Secretary for Planning and Evaluation. ``Valuing Time in
U.S. Department of Health and Human Services Regulatory Impact
Analyses: Conceptual Framework and Best Practices.'' (2017) https://aspe.hhs.gov/reports/valuing-time-us-department-health-human-services-regulatory-impact-analyses-conceptual-framework.
\114\ U.S. Bureau of Labor Statistics. Employed full time:
Median usual weekly nominal earnings (second quartile): Wage and
salary workers: 16 years and over [LEU0252881500A], retrieved from
FRED, Federal Reserve Bank of St. Louis; https://fred.stlouisfed.org/series/LEU0252881500A. Annual Estimate, 2023.
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B. Information Collection Requirements (ICRs)
1. ICRs Regarding Medicaid and CHIP
a. Medicaid and CHIP and the CHIPRA 214 Option (42 CFR 435.4 and
457.320(c))
Changes related to our Medicaid and CHIP proposals related to the
CHIPRA 214 option were submitted to OMB for review under OMB Control
Number 0938-1147 (CMS-10410). We are not finalizing these provisions at
this time and as such, are not updating PRA burden estimates.
We continue to consider the public comments on the Medicaid and
CHIP proposals that we received; thus, we are not responding to these
comments in the final rule at this time.
b. CHIP Changes Related to the CAA, 2024 (42 CFR 435.4 and 457.320(b))
Since the time of the proposed rule, and as discussed earlier in
this final rule, under the CAA, 2024 COFA migrants are now considered
qualified noncitizens for the purposes of eligibility for CHIP,
effective March 9, 2024, if they meet all other eligibility
requirements for CHIP. This change does not impact Medicaid, Exchanges,
or BHP. Therefore, we have updated our regulations to reflect the
statutory change extending eligibility for CHIP to COFA migrants.
[[Page 39423]]
The impact of this change will be very minimal and will impact only
those States that have a separate CHIP, and that have not elected the
CHIPRA 214 option for at least one population of pregnant individuals
or children in their separate CHIPs. Since COFA migrants are already
eligible for CHIP in States that have elected the CHIPRA 214 option, as
reflected in a 2021 SHO letter,\115\ we only estimate impact for States
with a separate CHIP that have not elected the CHIPRA 214 option. Using
data from the GAO for the most recent year we could obtain,\116\ which
estimated that the total US population of COFA migrants was 94,000, and
then estimating how many may be living in States under the previously
described conditions, we estimate approximately 12,225 COFA migrants
live in States impacted by this change, primarily within six of those
States. Accounting further for how many would actually be eligible
under the remaining CHIP eligibility criteria, and then would seek to
enroll, we believe the impact of this change to be very minimal.
Therefore, and because this change is based on a statutory change and
not the result of a policy in this final rule, we are not including
more extensive burden estimates in this or section V. of this final
rule.
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\115\ See SHO #21-005, available at https://www.medicaid.gov/federal-policy-guidance/downloads/sho21005.pdf.
\116\ Compacts of Free Association: Populations in U.S. Areas
Have Grown, with Varying Reported Effects, June 2020, available at
https://www.gao.gov/assets/gao-20-491.pdf.
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2. ICRs Regarding the BHP (42 CFR 600.5)
The following changes were submitted to OMB for review under OMB
Control Number 0938-1218 (CMS-10510).
In the proposed rule, we estimated a one-time burden of 200 hours
at a cost of $18,863 for completing the necessary updates to a BHP
application. We are modifying the estimates in this final rule to
reflect the updated wage estimates as outlined in section IV.A of this
final rule. We did not receive public comments on the method of
deriving these burden estimates in the proposed rule, and we are
therefore finalizing them using the proposed methodology with the
updated wage estimates.
The impact of completing the necessary changes to the BHP
application is with regards to the two States that will operate BHPs as
of the effective date of this rule--Minnesota and Oregon.\117\ Although
Oregon's BHP is still pending CMS approval, we are including it in our
estimate in order to best reflect which States we anticipate may be
impacted when this rule becomes effective. We estimate that it will
take each State 100 hours to develop and code the changes to its BHP
eligibility and verification system to correctly evaluate eligibility
under the revised definition of ``lawfully present'' to include DACA
recipients and certain other limited groups of noncitizens as outlined
in section II.B.2 of this final rule. This estimate is based on past
experience with similar system changes. To be conservative in our
estimates, we assume 100 hours per State, but it is important to note
that it may take each State less than 100 hours given the overlap in
State eligibility and verification systems, as work completed for the
State Exchange system may be the same for its BHP.
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\117\ Minnesota's BHP began January 1, 2015. Oregon's BHP is
projected to begin July 1, 2024, and is pending CMS approval. New
York suspended its BHP effective April 1, 2024. For more
information, see https://www.medicaid.gov/basic-health-program/.
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Of those 100 hours, we estimate it would take a database and
network administrator and architect 25 hours at $101.66 per hour and a
computer programmer 75 hours at $95.88 per hour. In the aggregate, we
estimate a one-time burden of 200 hours (2 States x 100 hours) at a
cost of $19,465 (2 States x [(25 hours x $101.66 per hour) + (75 hours
x $95.88 per hour)]) for completing the necessary updates to a BHP
application.
We note that the policies in this final rule will impose additional
costs on BHP agencies to process the applications for individuals
impacted by these policies. Those impacts are accounted for under OMB
Control Number 0938-1191 (Data Collection to Support Eligibility
Determinations for Insurance Affordability Programs and Enrollment
through Health Insurance Marketplaces, Medicaid and Children's Health
Insurance Program Agencies (CMS-10440)), discussed in section IV.B.3 of
this final rule, which pertains to the streamlined application.
3. ICRs Regarding the Exchanges and Processing Streamlined Applications
(45 CFR 152.2 and 155.20, and 42 CFR 600.5)
The following changes were submitted to OMB for review under OMB
Control Number 0938-1191 (CMS-10440).
In the proposed rule, we estimated a one-time burden of 1,900 hours
at a cost of $179,199 for completing the necessary updates to
eligibility and enrollment platforms. We are modifying the estimates in
this final rule to reflect the updated wage estimates as outlined in
section IV.A of this final rule. As discussed previously, the changes
to the definition of ``lawfully present'' will impact eligibility to
enroll in a QHP through an Exchange and for APTC and CSRs. This change
applies to the 18 State Exchanges not on the Federal platform, as well
as the Federal Government, which will make changes to the Federal
eligibility and enrollment platform for the States with Federally-
facilitated Exchanges (FFEs) and State-based Exchanges on the Federal
platform (SBE-FPs). We estimate that it will take the Federal
Government and each of the State Exchanges not on the Federal platform
100 hours in 2024 to develop and code the changes to their eligibility
systems to correctly evaluate and verify eligibility under the
definition of ``lawfully present'' that is revised to include DACA
recipients and certain other limited groups of noncitizens as outlined
in section II.B.2 of this final rule. We do not expect States operating
SBE-FPs to incur any implementation costs related to Exchange
eligibility and enrollment platform changes. These estimates are based
on past experience with similar system changes.
Of those 100 hours, we estimate it would take a database and
network administrator and architect 25 hours at $101.66 per hour and a
computer programmer 75 hours at $95.88 per hour. In aggregate for the
State Exchanges not on the Federal platform, we estimate a one-time
burden in 2024 of 1,800 hours (18 State Exchanges x 100 hours) at a
cost of $175,185 (18 States x [(25 hours x $101.66 per hour) + (75
hours x $95.88 per hour)]) for completing the necessary updates to
State Exchange systems. For the Federal Government, we estimate a one-
time burden in 2024 of 100 hours at a cost of $9,733 ((25 hours x
$101.66 per hour) + (75 hours x $95.88 per hour)). In total, the burden
associated with all system updates will be 1,900 hours at a cost of
$184,918.
``Data Collection to Support Eligibility Determinations for
Insurance Affordability Programs and Enrollment through Health Benefits
Exchanges, Medicaid and CHIP Agencies,'' OMB Control Number 0938-1191
(CMS-10440), accounts for burdens associated with the streamlined
application for enrollment in the programs impacted by this rule. As
such, the following information collection addresses the burden of
processing applications and assisting enrollees with BHP and QHP
enrollment, and those impacts are not reflected in the ICRs for BHPs,
[[Page 39424]]
discussed in section IV.B.2 of this final rule. In the proposed rule,
we estimated that the total burden of application processing and
assisting enrollees with Medicaid, CHIP, BHP, and QHP enrollment would
be 34,000 hours for a total cost of $1,587,800, where the total burden
on States would be 18,397 hours annually at a cost of $859,140, and the
total burden on the Federal Government would be 15,603 hours annually
at a cost of $728,660. We sought comment on these estimates and the
methodology and assumptions used to calculate them. We are updating the
estimates in this final rule to reflect that we are not finalizing the
proposed changes for Medicaid and CHIP and that we have modified the
estimates with the updated wage estimates as outlined in section IV.A
of this final rule and the most recent available data on DACA
recipients.
For assisting additional eligible enrollees and processing their
applications, we estimate this will take a government programs
eligibility interviewer 10 minutes (0.17 hours) per application at a
rate of $48.34 per hour, for a cost of approximately $8.22 per
application. This estimate is based on past experience with similar
application changes. As outlined further in section IV.B.4 of this
final rule, we anticipate that approximately 147,000 individuals
impacted by this final rule will complete the application annually.
Therefore, the total application processing burden associated with the
policies in this final rule will be 24,990 hours (0.17 hours x 147,000
applications) for a total cost of $1,208,017 (24,990 hours x $48.34 per
hour). As discussed further in this section, we anticipate that
approximately 52 percent of the application processing burden will fall
on States, while the remaining approximately 48 percent will be borne
by the Federal Government. We estimate these proportions as follows.
To start, we estimate the percentage of applications that will be
processed for the Exchanges and BHPs. We assume that the proportion of
applications that will be processed for each program will be equivalent
to the proportion of individuals impacted by the policies in this final
rule that would enroll in each program. As outlined in section V.C. of
this final rule, we estimate that of the 100,000 individuals impacted
by the policies in this rule, 99,000 will enroll in the Exchanges (99
percent), and 1,000 (1 percent) in BHPs on average each year, including
redeterminations and re-enrollments. Using these same proportions, out
of the 147,000 applications anticipated to result from the policies in
this final rule, we estimate 145,000 applications will be processed for
the Exchanges, and 2,000 will be processed for BHPs on average each
year.
Next, we calculate the proportion of each program's application
processing costs that are borne by States compared to the Federal
Government. The entire information collection burden associated with
changes to BHPs falls on the two States with BHPs--Minnesota and
Oregon.\118\ As such, we assume 100 percent of the BHP application
processing costs will fall on these two States. For the Exchanges, we
use data from the 2024 Open Enrollment Period to estimate the
proportion of applications that are processed by States compared to the
Federal Government, and we determined that 49 percent of Exchange
applications were submitted to FFEs/SBE-FPs, and are therefore
processed by the Federal Government, while 51 percent were submitted to
and processed by the 18 State Exchanges not on the Federal
platform.\119\ As such, we anticipate that 49 percent of Exchange
application processing costs will fall on the Federal Government and 51
percent of Exchange application processing costs will fall on States
using their own eligibility and enrollment platforms. We do not expect
States operating SBE-FPs to incur any application processing costs as
these applications, and the costs associated with them, will fall on
the Federal Government.
---------------------------------------------------------------------------
\118\ Minnesota's BHP began January 1, 2015. Oregon's BHP is
projected to begin July 1, 2024, and is pending CMS approval. For
more information, see https://www.medicaid.gov/basic-health-program/.
\119\ Centers for Medicare & Medicaid Services. (2024). 2024
Open Enrollment Report. https://www.cms.gov/files/document/health-insurance-exchanges-2024-open-enrollment-report-final.pdf.
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Finally, we apply the proportion of applications we estimated for
each program we discussed earlier to the State and Federal burden
proportions. Using the per-application processing burden discussed
earlier in this ICR (10 minutes, or 0.17 hours, per application at a
rate of $48.34 per hour) for BHPs, if we estimate 2,000 applications
will be processed, the burden for all of those will be borne by the
States. Using the per-application processing burden of 10 minutes (0.17
hours) per application at a rate of $48.34 per hour, this results in a
burden of 340 hours, or $16,436, for States to process BHP
applications. For the Exchanges, if we estimate 145,000 applications
will be processed, 51 percent of those (73,950) will be processed by
State Exchanges not on the Federal platform and 49 percent (71,050)
will be processed by the Federal Government. Using the per-application
processing burden of 10 minutes (0.17 hours) per application at a rate
of $48.34 per hour, this results in a burden of 12,572 hours, or
$607,706, for State Exchanges not on the Federal platform and 12,079
hours, or $583,875, for the Federal Government.
Therefore, the total burden on State Exchanges not on the Federal
platform to assist eligible beneficiaries and process their
applications will be 12,912 hours annually (340 hours for BHP + 12,572
hours for State Exchanges not on the Federal platform) at a cost of
$624,142, and the total burden on the Federal Government will be 12,079
hours annually (entirely for Exchanges) at a cost of $583,875.
We received public comments on the estimates outlined in the
proposed rule. We are finalizing the proposed methodology of deriving
these burden estimates with the updated wage estimates as outlined in
section IV.A of this final rule and the most recent available data on
DACA recipients and application processing. The following is a summary
of the comments we received and our responses.
Comment: Some State Exchanges stated concerns about whether they
would be able to implement the rule's provisions by the November 1,
2023 proposed effective date but did not express concern about the
overall burden on State agencies of making systems changes or
processing new applications for impacted populations.
Response: We understand that some State Exchanges not on the
Federal platform will need to make changes to their eligibility and
enrollment systems to correctly determine eligibility for DACA
recipients and the other individuals impacted by the revised lawfully
present definition. We are committed to providing State Exchanges with
technical assistance and any additional support needed to ensure that
States are able to correctly determine eligibility for DACA recipients
and other impacted noncitizens by this final rule's November 1, 2024
effective date. We are also committed to working with State Exchanges
not on the Federal platform and BHP agencies to identify any potential
manual workarounds that may be needed to correctly determine
eligibility prior to full systems changes being in place.
Comment: Commenters noted that they expected that the technical
changes made to the definition of lawfully present discussed in section
II.B.2 of this final rule would reduce application processing burdens
for State Exchanges in the future, given that they are
[[Page 39425]]
expected to make it easier for State Exchanges to verify applicants'
lawful presence through DHS SAVE.
Response: We agree that including DACA recipients and making the
technical changes discussed in this rule will streamline application
processing and make electronic verification of immigration status
through SAVE more efficient, by both decreasing DHS' workload in
verifying immigration status at Steps Two and Three, which require
manual intervention, and by no longer requiring eligibility caseworkers
to resubmit a request for additional information or provide additional
documentation.
After consideration of public comments, we are finalizing these
burden estimates using the proposed methodology with the most recent
available data as described above.
4. ICRs Regarding the Application Process for Applicants
The following changes were submitted to OMB for review under OMB
Control Number 0938-1191 (CMS-10440).
As required by the ACA, there is one application through which
individuals may apply for health coverage in a QHP through an Exchange
and for other insurance affordability programs like Medicaid, CHIP, and
a BHP.\120\ In the proposed rule, we assumed the burden of completing
an Exchange application was essentially the same as applying with a
State Medicaid or CHIP agency, and therefore we did not distinguish
between these populations. In the proposed rule, we estimated the total
annual additional burden on all individuals impacted by the proposed
changes by completing the application or submitting documentation to
verify their lawful presence would be approximately 163,000 hours with
an equivalent cost of approximately $3,375,730. We sought comment on
these burden estimates. We are updating the estimates in this final
rule to reflect that we are not finalizing the proposed changes for
Medicaid and CHIP and to reflect the most recent available data, which
includes the updated wage estimates in section IV.A of this rule, and
the most recent available data on DACA recipients and open enrollment.
---------------------------------------------------------------------------
\120\ 42 U.S.C. 18083.
---------------------------------------------------------------------------
Based on the enrollment projections discussed in the Regulatory
Impact Analysis section later in this rule, we anticipate that DACA
recipients will represent the majority of individuals impacted by this
final rule, and we are unable to quantify the number of non-DACA
recipients impacted by the other changes in this rule, but we expect
the number to be small. We estimate that there are 147,000 uninsured
DACA recipients based on USCIS data on active DACA recipients (545,000
in 2023) \121\ and a 2022 survey by the National Immigration Law Center
stating that 27 percent of DACA recipients are uninsured,\122\ and we
assume that 100 percent of uninsured DACA recipients will apply for
coverage.\123\ As such, we anticipate that approximately 147,000
individuals impacted by the proposals in this rule will complete the
application annually.
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\121\ Count of Active DACA Recipients by Month of Current DACA
Expiration as of September 30, 2023. U.S. Citizenship and
Immigration Services. https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy23_q4.pdf.
\122\ National Immigration Law Center. DACA Recipients' Access
to Health Care: 2023 Report. (2023) https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf.
\123\ While some individuals impacted by the changes in this
final rule may not apply for coverage, we are unable to quantify the
proportion of uninsured DACA recipients who would choose not to
apply. Because uninsured DACA recipients would likely benefit from
becoming insured, we assume 100 percent of DACA recipients will
apply for coverage.
---------------------------------------------------------------------------
In the existing information collection request for this application
OMB Control Number 0938-1191, we estimate that the application process
will take an average of 30 minutes (0.5 hours) to complete for those
applying for insurance affordability programs and 15 minutes (0.25
hours) for those applying without consideration for insurance
affordability programs.\124\ We estimate that of the 147,000
individuals impacted by the proposed changes, 98 percent will be
applying for insurance affordability programs and 2 percent will be
applying without consideration for insurance affordability programs.
Using the hourly value of time for changes in time use for unpaid
activities discussed in section IV.A of this final rule (at an hourly
rate of $23.18), the average opportunity cost to an individual for
completing this task is estimated to be approximately 0.495 hours ((0.5
hours x 98 percent) + (0.25 hours x 2 percent)) at a cost of $11.47.
The total annual additional burden on the 147,000 individuals impacted
by the changes in this final rule will be approximately 72,765 hours
with an equivalent cost of approximately $1,686,693.
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\124\ It is possible that some individuals impacted by the
proposed changes to the definition of lawful presence in this rule
would apply using the paper application, but internal CMS data show
that this would be less than 1 percent of applications. Therefore,
we are using estimates in this analysis to reflect that nearly all
applicants would apply using the electronic application.
---------------------------------------------------------------------------
As stated earlier in this final rule, Exchanges and BHP agencies
will require individuals completing the application to submit
supporting documentation to confirm their lawful presence if they are
unable to be verified electronically. An applicant's lawful presence
may not be able to be verified electronically if, for example, the
applicant opts to not include information about their immigration
documentation, such as their alien number or Employment Authorization
Document (EAD) number, when they fill out the application. We estimate
that of the 147,000 individuals impacted by the changes as finalized,
approximately 54 percent (or 79,380) of applicants will be able to have
their lawful presence electronically verified, and the remaining 46
percent (or 67,620) of applicants will be unable to have their lawful
presence electronically verified and will therefore have to submit
supporting documentation to confirm their lawful presence.\125\ We
estimate that a consumer will, on average, spend approximately 1 hour
gathering and submitting required documentation. Using the hourly value
of time for changes in time use for unpaid activities discussed in
section IV.A of this final rule (at an hourly rate of $23.18), the
opportunity cost for an individual to complete this task is estimated
to be approximately $23.18. The total annual additional burden on the
67,620 individuals impacted by the changes finalized in this rule who
are unable to electronically verify their lawful presence and therefore
need to submit supporting documentation will be approximately 67,620
hours with an equivalent cost of approximately $1,567,432.
---------------------------------------------------------------------------
\125\ This estimate is informed by recent data from the FFEs and
SBE-FPs. While certain changes proposed in this rule may result in
an increase in the proportion of applicants who are able to have
their lawful presence electronically verified, we do not have a
reliable way to quantify any potential increase.
---------------------------------------------------------------------------
As previously stated, for the 147,000 individuals impacted by this
rule, the annual additional burden of completing the application will
be 0.495 hours per individual on average, which totals to 72,765 hours
at a cost of $1,686,693. For the 67,620 individuals who are unable to
have their lawful presence electronically verified, the total annual
burden of submitting documentation to verify their lawful presence will
be 67,620 hours at a cost of $1,567,432. Therefore, the average annual
burden per respondent will be 0.955 hours ((0.495 hours x 54 percent of
individuals) + (1.495 hours x 46 percent of individuals)), and the
total annual
[[Page 39426]]
burden on all of these individuals impacted by the proposed changes in
this rule will be 140,385 hours at a cost of $3,254,124.
We received public comments on the estimates outlined in the
proposed rule. As previously mentioned, we are updating the estimates
in this final rule to reflect that we are not finalizing the proposed
changes for Medicaid and CHIP and to reflect the most recent available
data. The following is a summary of the comments we received and our
responses.
Comment: One commenter agreed with CMS' assumption that regardless
of where an individual applies, the burden of completing an application
is essentially the same. The commenter further affirmed CMS' statement
that, as required by the ACA, there is generally one application
through which individuals may apply for health coverage in a QHP
through an Exchange and for other insurance affordability programs like
a BHP.
Response: We agree that the burden of completing an application is
essentially the same regardless of whether the individual was to apply
directly with their BHP agency or with an Exchange. As we are not
finalizing our proposals related to Medicaid and CHIP at this time,
there will not be a change in the application process for Medicaid and
CHIP.
Comment: One commenter stated that the changes in the rule ``will
not result in an increased application burden for impacted
individuals.''
Response: We have considered this comment and continue to believe
that the burden estimates associated with the policies in this final
rule are reasonable and in line with the burden estimates in the
currently approved PRA package OMB Control Number 0938-1191. However,
we acknowledge that the actual application burden may vary depending on
the applicant. We are hopeful that the changes in this rule will not
overburden individuals in the application process. Additionally, we
clarify that as discussed earlier in this ICR section, we submitted the
burden changes associated with this ICR to OMB for review under OMB
Control Number 0938-1191.
After consideration of public comments, we are finalizing these
burden estimates using the methodology as proposed with the most recent
available data.
C. Burden Estimate Summary
[GRAPHIC] [TIFF OMITTED] TR08MY24.019
V. Regulatory Impact Analysis
A. Statement of Need
This final rule updates the definition of ``lawfully present'' in
our regulations for certain CMS programs. This definition is currently
used to determine whether a consumer is eligible to enroll in a QHP
through an Exchange and for APTC and CSRs, and whether a consumer is
eligible to enroll in a BHP in States that elect to operate a BHP. In
addition, we are removing the exception for DACA recipients from the
definitions of ``lawfully present'' used to determine eligibility to
enroll in a QHP through an Exchange or a BHP, and we are instead
treating DACA recipients the same as other deferred action recipients.
We are also finalizing some modifications to the ``lawfully present''
definition currently at 45 CFR 152.2 that incorporate additional
detail, clarifications, and some technical modifications for the
Exchanges and BHPs. We are not finalizing changes to the Medicaid and
CHIP programs with respect to the definitions of ``lawfully present''
at this time.
B. Overall Impact
We have examined the impacts of this rule as required by Executive
Order 12866 on Regulatory Planning and Review (September 30, 1993),
Executive Order 13563 on Improving Regulation and Regulatory Review
(January 18, 2011), Executive Order 14094 on Modernizing Regulatory
Review (April
[[Page 39427]]
6, 2023), the Regulatory Flexibility Act (RFA) (September 19, 1980,
Pub. L. 96-354), section 1102(b) of the Act, section 202 of the
Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4),
Executive Order 13132 on Federalism (August 4, 1999), and the
Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Section
3(f) of Executive Order 12866, as amended by Executive Order 14094,
defines a ``significant regulatory action'' as an action that is likely
to result in a rule that may: (1) have an annual effect on the economy
of $200 million or more (adjusted every 3 years by the Administrator of
OMB's Office of Information and Regulatory Affairs (OIRA) for changes
in gross domestic product), or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, territorial or
tribal governments or communities; (2) create a serious inconsistency
or otherwise interfere with an action taken or planned by another
agency; (3) materially alter the budgetary impacts of entitlement,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raise legal or policy issues for which
centralized review will meaningfully further the President's priorities
or the principles set forth in the Executive order, as specifically
authorized in a timely manner by the Administrator of OIRA.
Based on our estimates, OIRA has determined that this rulemaking is
a significant regulatory action under section 3(f)(1) Executive Order
12866. Accordingly, we have prepared a regulatory impact analysis (RIA)
that to the best of our ability presents the costs and benefits of the
rulemaking. Therefore, OMB has reviewed these final regulations, and we
have provided the following assessment of their impact.
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (also known as the Congressional Review Act, 5
U.S.C 801 et seq.), OIRA has determined that this rule does meet the
criteria set forth in 5 U.S.C. 804(2). Accordingly, this rule has been
submitted to each House of the Congress and to the Comptroller General
a report containing a copy of the rule along with other specified
information.
C. Detailed Economic Analysis
We prepared the economic impact estimates utilizing a baseline of
``no action,'' comparing the effect of the policies against not
finalizing the rule at all.
This analysis reviews the amendments finalized under 42 CFR 600.5,
and 45 CFR 152.2 and 155.20, which will add the following changes to
the definition of lawfully present by making technical modifications to
add the following new categories of noncitizens to this definition via
this regulation:
Those granted deferred action under DACA;
Those granted employment authorization under 8 CFR
274a.12(c)(35) and (36);
Additional Family Unity beneficiaries;
Individuals with a pending application for adjustment of
status, without regard to whether they have an approved visa petition;
Children under 14 with a pending application for asylum,
withholding of removal, or protection under CAT or children under 14
who are listed as a dependent on a parent's pending application,
without regard to the length of time that the application has been
pending; and
Individuals with an approved petition for SIJ
classification.
The amendments finalized under 42 CFR 600.5 and 45 CFR 152.2 and
155.20 will also:
Revise the description of noncitizens who are
nonimmigrants to include all nonimmigrants who have a valid and
unexpired status;
Remove individuals with a pending application for asylum,
withholding of removal, or CAT protection who are over age 14 from the
definition, as these individuals are covered elsewhere; and
Simplify the definition of noncitizens with an EAD to
include all individuals granted employment authorization under 8 CFR
274a.12(c), as these individuals are already covered elsewhere, with
the exception of a modest expansion to those granted employment
authorization under 8 CFR 274a.12(c)(35) and (36), discussed earlier in
this final rule.
In these respects, the technical modifications that do not relate
to DACA recipients contained in this rule are generally technical
changes or revisions to simplify verification processes, and therefore,
we anticipate a modest impact on individuals' eligibility as a result
of these changes. We sought comment on estimates or data sources we
could use to provide quantitative estimates for the benefit to these
individuals. The proposed regulation also adds those granted deferred
action under DACA to the definition. As noted further in this section,
we estimate that 100,000 DACA recipients will enroll in health coverage
and benefit from the proposals in this rule.\126\ We are unable to
quantify the number of additional Family Unity beneficiaries,
individuals with a pending application for adjustment of status,
children under age 14 with a pending application for asylum or related
protection or children listed as dependents on a parent's application
for asylum or related protection, and individuals with approved
petition for SIJ classification, or individuals granted employment
authorization under 8 CFR 274a.12(c)(35) or (36) that could enroll in
health coverage and benefit from the proposals in this rule, but we
expect this number to be small. We sought comment on estimates or data
sources we could use to provide quantitative estimates for the benefit
to these individuals.
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\126\ The estimates in this RIA are based on DHS' current
implementation of the DHS DACA final rule, consistent with the court
orders in Texas v. United States, 50 F.4th 498 (5th Cir. 2022) and
Texas v. United States, 1:18-cv-0068 (S.D. Tex. Oct. 14, 2022),
whereby DHS continues to accept the filing of both initial and
renewal DACA requests and related applications for employment
authorization but is only processing renewal requests.
---------------------------------------------------------------------------
The changes to 42 CFR 600.5 will no longer exclude DACA recipients
from the definition of ``lawfully present'' used to determine
eligibility for a BHP in those States that elect to operate the
program, if otherwise eligible. The changes to 45 CFR 152.2 and 155.20
will make DACA recipients eligible to enroll in a QHP through an
Exchange, and for APTC and CSRs, if otherwise eligible. We present
enrollment estimates for these populations in Table 3.
[[Page 39428]]
[GRAPHIC] [TIFF OMITTED] TR08MY24.020
In the proposed rule, we estimated an enrollment impact of about
129,000.\127\ We sought comment on these estimates and the assumptions
and methodology used to calculate them. We are modifying the estimates
in this final rule to reflect that we are not finalizing the proposed
changes for Medicaid and CHIP and to reflect the States that will
operate BHPs as of the effective date of this rule and the most recent
available data on DACA recipients.128 129 To estimate the
enrollment impact on the Exchanges and the BHPs, we started with an
estimate of the DACA population. USCIS has estimated this count to be
545,000 persons as of September 30, 2023.\130\ Based on a 2022 survey
from the National Immigration Law Center,\131\ roughly 27 percent of
DACA recipients were uninsured. In addition, we assume that
approximately 70 percent of this group will opt to enroll in the
Exchanges and BHPs. This results in an enrollment impact of about
100,000 persons for both the Exchanges and BHP.\132\ Based on internal
enrollment data, we estimate that 1,000 people will enroll in the BHPs
in Minnesota and Oregon,\133\ and the remaining 99,000 will enroll in
the Exchanges.
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\127\ See 88 FR 25327 through 25329 for a discussion of the
proposed enrollment estimates by program.
\128\ The Exchange enrollment estimates in this final rule have
been updated to account for the DACA recipients that would have
enrolled in Medicaid under the policies in the proposed rule but
will now enroll in a QHP through an Exchange based on the finalized
policies.
\129\ The BHP enrollment estimates in the proposed rule assumed
that New York and Minnesota would be States impacted by the BHP
changes in the proposed rule. The BHP enrollment estimates in this
final rule reflect that Minnesota and Oregon will be States impacted
by the finalized BHP changes. The data on the number of DACA
recipients, as well as the average age of DACA recipients and the
percent of DACA recipients that are uninsured has been updated since
the proposed rule. See 88 FR 25327 through 25329 for more detail on
the estimates in the proposed rule.
\130\ Count of Active DACA Recipients by Month of Current DACA
Expiration as of September 30, 2023. U.S. Citizenship and
Immigration Services. https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy23_q4.pdf.
\131\ National Immigration Law Center, 2023. DACA Recipients'
Access to Health Care: 2023 Report. (2023). https://www.nilc.org/wp-content/uploads/2023/05/NILC_DACA-Report_2023.pdf.
\132\ This enrollment estimate does not include DACA recipients
who are now expected to be covered under New York's Essential Plan
Expansion, effective April 1, 2024, as they will not be impacted by
this final rule. For more information, see https://www.cms.gov/marketplace/states/section-1332-state-innovation-waivers#To%20view%20New%20York's%20application%20materials,%20pl
ease%20visit%20the%20New%20York%20waiver%20section%20of%20this%20webp
age%20below.
\133\ Minnesota's BHP began January 1, 2015. Oregon's BHP is
projected to begin July 1, 2024, and is pending CMS approval. For
more information, see https://www.medicaid.gov/basic-health-program/.
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The changes to 42 CFR 600.5 will no longer exclude DACA recipients
from the definition of lawfully present used to determine eligibility
for a BHP in those States that elect to operate the program, if
otherwise eligible. There may be an effect on the BHP risk pool as a
result of this change, as DACA recipients are relatively younger and
healthier than the general population, based on USCIS data showing an
average age of 30 years.134 135
---------------------------------------------------------------------------
\134\ USCIS. Count of Active DACA Recipients by Month of Current
DACA Expiration as of September 30, 2023. https://www.uscis.gov/sites/default/files/document/data/active_daca_recipients_fy23_q4.pdf.
\135\ In the proposed rule, the available USCIS data at the time
showed an average age of 29 years. We sought comment on any
estimates or data sources we could use to provide quantitative
estimates for the associated effects, including benefit to these
individuals. See 88 FR 25328.
---------------------------------------------------------------------------
The changes to 45 CFR 152.2 and 155.20 will make DACA recipients
eligible to enroll in a QHP through an Exchange, and for APTC and CSRs,
if otherwise eligible. Similar to BHP eligibility, there may be a
slight effect on the States' individual market risk pools. In addition,
the modifications to the definition of ``lawfully present'' discussed
in section II.B.2. of this rule will reduce burden on Exchanges and
BHPs by allowing them to more frequently verify a noncitizen's status
with a trusted source of data and to not have to request additional
information from consumers. This change will promote simplicity and
consistency in program administration, and further program integrity
resulting from the increased reliance on a trusted Federal source of
data. We sought comment on estimates or data sources we could use to
provide quantitative estimates for this benefit.
In addition, increased access to health coverage for DACA
recipients and other noncitizens impacted by the proposals in this rule
will ensure increased access to health care services for these
populations, which in turn may decrease costs for emergency medical
expenditures. Further, the policies in this rule will improve the
health and well-being of many individuals that are currently without
coverage, as having health insurance makes individuals healthier.
Individuals without insurance are less likely to receive preventive or
routine health screenings and may delay necessary medical care,
incurring high costs and debts. In addition to the improvement of
health outcomes, these individuals will be more productive and better
able to contribute economically, as studies have found that workers
with health insurance are estimated to miss 77 percent fewer workdays
than uninsured workers.\136\
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\136\ Dizioli, Allan and Pinheiro, Roberto. (2016). Health
Insurance as a Productive Factor. Labour Economics. https://doi.org/10.1016/j.labeco.2016.03.002.
---------------------------------------------------------------------------
We sought comment on these effects and any other potential benefits
that may result from the proposals in this rule.
We received public comments on these effects. The following is a
summary of the comments we received and our responses.
Comment: Commenters provided comments related to CMS' estimates for
the number of individuals who will newly enroll in health insurance
coverage through an Exchange, Medicaid, CHIP, or a BHP. Commenters
agreed with CMS' assumption that no longer excluding DACA recipients
from eligibility for APTC and CSRs would make such individuals more
likely to enroll in coverage.
Commenters also offered details specific to their States and
localities. One State department of insurance cited an estimate that of
the 40,000 uninsured DACA recipients in California with incomes above
the Medi-Cal threshold, 30,000 would enroll in subsidized
[[Page 39429]]
coverage through Covered California.\137\ One commenter agreed with
CMS' assumption that none of the proposed technical changes to the
definition of ``lawfully present'' would result in a significant number
of individuals gaining coverage. Nevertheless, the commenter believed
that such changes were still important given their potential to
significantly benefit impacted individuals and their families, often at
very vulnerable points in their lives.
---------------------------------------------------------------------------
\137\ Dietz, Miranda; Kadiyala, Srikanth, and Lucia, Laurel;
``Extending Covered California subsidies to DACA recipients would
fill coverage gap for 40,000 Californians''; UC Berkeley Labor
Center; June 6, 2023; https://laborcenter.berkeley.edu/extending-covered-california-subsidies-to-daca-recipients-would-fill-coverage-gap-for-40000-californians/#_ftn3.
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Response: These enrollment projections align with our projections
as presented in the proposed rule and in this final rule. As previously
stated, we are not finalizing the proposed changes for Medicaid and
CHIP at this time, and therefore the enrollment projections in this
final rule only reflect the BHP and Exchange enrollment impact.
Additionally, we agree that the technical changes to the definition of
``lawfully present'' are important due to the potential benefit to the
individuals and families impacted by these changes.
Comment: Commenters provided detailed analysis of the benefits they
expected this rule would convey. These benefits, discussed in detail in
section II.B.1., include increased access to care, improved health
outcomes, reduced disparities, decreased reliance on uncompensated care
and emergency department care, and strengthened workforce, education
systems, and local economies. Many commenters pointed out how the
provisions of this rule will benefit not only DACA recipients and other
impacted noncitizens, but their families and communities as well.
Commenters further noted that they believed this rule would improve
individual market Exchange risk pools, due to DACA recipients' age and
health status as compared to current Exchange enrollees, and that
improvements to the risk pool could result in cost savings for health
insurance issuers in the form of lower claims costs and for individuals
in the form of lower health insurance premiums. One commenter, a
nonprofit organization, noted that after New York and California
established State-funded Medicaid options for DACA recipients, DACA-
eligible individuals were 4 percent more likely to report having health
insurance in those States as compared to other States that did not
expand eligibility, implying that expanding the insurance affordability
programs available to DACA recipients will result in further coverage
gains.
Response: We agree that these are potential benefits of the
policies finalized in this rule. We appreciate the insight from
commenters that the policies in this rule will also benefit the
families and communities of the DACA recipients impacted by the rule.
We agree that it is possible that this rule could improve the Exchange
risk pools, which could result in cost savings for issuers and
individuals due to lower claims costs and premiums. We further
appreciate the supporting data regarding potential coverage gains in
Exchange programs in specific States.
Comment: Commenters, including State government agencies, noted
that the proposed changes would result in the more efficient operation
of CMS programs. Some commenters specifically stated that changes to
the definition of ``lawfully present'' could streamline practices for
caseworkers and eligibility workers at States and agencies.
Response: We agree that the changes we are finalizing will enable
Exchanges and BHPs to more easily verify applicants' lawful presence.
This should both simplify operations and decrease the proportion of
cases in which caseworkers and eligibility workers need to ask
consumers to provide additional information.
After consideration of public comments, we are finalizing these
estimates using the calculation methodology as proposed with
modifications to reflect that we are not finalizing the proposed
changes for Medicaid and CHIP and to reflect the States that will
operate BHPs as of the effective date of this rule and the most recent
available data on DACA recipients.
1. Costs
The changes to 42 CFR 600.5 will treat DACA recipients the same as
other recipients of deferred action, who are lawfully present under the
definition used to determine eligibility for BHP, if otherwise
eligible. The costs to States as a result of information collection
changes associated with this proposal, which include initial system
changes, costs to develop and update each State's eligibility systems
and verification processes, and application processing costs to assist
individuals with processing their applications, are discussed in
sections IV.B.2. and IV.B.3. of this final rule, and the costs to
consumers as a result of increased information collections associated
with this policy, which include applying for BHP and submitting
additional information to verify their lawful presence, if necessary,
are discussed in section IV.B.4. of this final rule. As previously
mentioned, we updated the cost estimates discussed in sections IV.B.2.,
IV.B.3., and IV.B.4. of this final rule to reflect the policies being
finalized in this rule and updated data since publishing the proposed
rule. States operating a BHP may choose to provide additional outreach
to those eligible. In the proposed rule, we included costs related to
the fact that a potential increase in the number of enrollees may
increase Federal payments to a State's BHP trust fund. For further
information, please see the ``Transfers'' section.
The changes to 45 CFR 152.2 and 155.20 will make DACA recipients
eligible to enroll in a QHP through an Exchange, and for PTC and CSRs,
if otherwise eligible. The costs to State Exchanges not on the Federal
platform and the Federal Government as a result of information
collection changes, which include initial system changes costs to
develop and update each State's eligibility systems and verification
processes and application processing costs to assist individuals with
processing their applications, are discussed in section IV.B.3. of this
final rule and the costs to consumers as a result of increased
information collections associated with this policy, which include
applying for Exchange coverage and submitting additional information to
verify their lawful presence, if necessary, are discussed in section
IV.B.4. of this final rule. This change may result in slightly
increased traffic during open enrollment for the 2025 coverage year and
beyond. Further, there may be a potential administrative burden on
States and regulated entities that choose to conduct outreach and
education efforts to ensure that consumers, agents, brokers, and
assisters are aware of the changes proposed in this rule associated
with the updated definitions of ``lawfully present'' for the purposes
of the Exchanges and BHP. We clarify that CMS does not require States
to fund additional outreach and enrollment activities as a result of
this rule. Because SBE-FPs will not be required to incur costs related
to implementation, application processing, or outreach and education,
we estimate no increased costs for States operating SBE-FPs as a result
of this rule. We also note that both State Exchanges not on the Federal
platform and SBE-FPs may see an increase in the user fees they collect
from issuers as a result of increased
[[Page 39430]]
enrollment due to the policies finalized in this rule. We anticipate
that the costs of additional outreach and education that States may
choose to pursue would be minimal and sought comment on that
assumption.
Whether the effects discussed above as ``costs'' are appropriately
categorized depends on societal resource use. To the extent that
resources (for example, labor and equipment associated with provision
of medical care) are used differently in the presence of this final
rule than in its absence, then the estimated effects are indeed costs.
If resource use remains the same but different entities in society pay
for them, then the estimated effects would instead be transfers. We
requested comment that would facilitate refinement of the effect
categorization.
We received public comments on these proposals. The following is a
summary of the comments we received and our responses.
Comment: Commenters noted that this regulatory change will enable
States that currently use State funds to cover DACA recipients to re-
allocate State funding towards covering other uninsured individuals if
DACA recipients are able to newly access Federally-funded QHPs.
Commenters noted that 11 States and the District of Columbia currently
use State-only funds to cover all income-eligible children, regardless
of lawful presence status, and that certain additional States also
cover pregnant and postpartum individuals. Commenters noted that New
York and California currently use State funding to provide coverage to
DACA recipients.
One commenter, a State government agency, noted that California
currently expends approximately $13 million out of the State's General
Fund to cover individuals who do not currently meet CMS' definitions of
``lawfully present,'' and that considering DACA recipients ``lawfully
present'' has the potential to significantly lower or offset funds
currently expended for health coverage for DACA recipients.
Response: We appreciate commenters sharing information about how
States may otherwise cover this population. As previously mentioned, we
are not finalizing the proposed changes for Medicaid and CHIP. However,
State funds used to cover DACA recipients eligible for Medicaid/CHIP
may be impacted if individuals currently covered under these State-
funded programs choose to enroll in QHP or BHP coverage.
Comment: One commenter agreed with CMS' assumption that costs for
outreach and education would be ``minimal'' since the State already
conducts robust outreach during its Open Enrollment Period. The
commenter stated that they agreed that costs for outreach and education
would be ``minimal'' if supported by Federal financial participation
and State funding.
Response: We agree that State Exchanges not on the Federal platform
generally conduct robust outreach during their Open Enrollment Periods.
We are committed to conducting outreach and education to reach
individuals impacted by this rule to educate them that they may be
newly eligible for health insurance affordability programs.
Comment: Commenters stated concerns about the costs associated with
this rule. Commenters noted that this rule will increase costs to
taxpayers and stated that illegal immigration is a net cost to
taxpayers of about $151 billion per year, further alleging that illegal
immigration costs each American taxpayer $1,156 per year. The commenter
also highlighted that the U.S. government spends $2.3 trillion annually
on Federal medical expenditures, and that it is ``impossible to
estimate how many illegal aliens participate in the ACA now, and what
level of Federal subsidy they receive,'' but that they believe this
rule will place an ``even greater burden'' on taxpayers. Commenters
stated concerns that this rule will drive the United States further
into debt.
Response: We acknowledge commenters' concerns about the costs on
the Federal government and Federal taxpayers associated with this rule.
We believe the benefits of this rule outweigh the potential negative
impacts identified by commenters. The benefits discussed in section
V.C. of this final rule, including increased health coverage and a
reduction in uncompensated care costs; ensuring equitable access to
coverage across all populations served by the programs addressed in
this rule, including members of underserved communities; and potential
impacts on the risk pool, are important to balance against the costs of
the rule identified in this section. Moreover, as clarified previously
in this final rule, this rule aims to establish eligibility criteria
for Exchanges and BHPs and does not address immigration policy,
including DHS' DACA final rule. As discussed previously in this rule,
individuals must have their immigration status or category
electronically verified by DHS to enroll in Exchange or BHP coverage,
which ensures that noncitizens without an eligible immigration status
or category are not able to enroll. We therefore decline to make any
changes in response to these comments.
Comment: One commenter associated with an academic institution
stated concerns that allowing DACA recipients to access subsidized QHPs
through Exchanges would increase the prices for non-subsidized health
insurance. The commenter cited a JAMA Network Open study that found
that between 2011 and 2021, median unsubsidized premium for individual
market plans rose by 59 percent. The commenter stated that they saw
``little reason to expect that health care unaffordability will slow as
government subsidies continue to grow.'' The commenter further
hypothesized that subsidized health insurance programs make
unsubsidized health insurance unaffordable because ``these programs
require buy-in from powerful health care industry groups.'' They stated
that taxpayer money is being channeled to contribute to industry
groups' bottom lines, which inflates the cost of unsubsidized health
insurance.
Response: We do not agree that allowing DACA recipients to access
subsidized QHPs through Exchanges would increase the prices for
unsubsidized health insurance. On the contrary, as discussed in section
V.C. of this final rule, DACA recipients are generally younger than the
average Exchange enrollee and comparably healthy to the general
population, and their enrollment has the potential to improve the
Exchange risk pool and lower health insurance premiums. Additionally,
due to the medical loss ratio (MLR) requirements for issuers
participating on the individual market Exchanges, if an issuer spends
less than 80 percent of premiums on medical care and efforts to improve
quality of care, it must refund this money to enrollees. These MLR
requirements prevent excess contributions to ``industry groups' bottom
lines'' and protects subsidized and unsubsidized consumers alike from
premiums that are too high and are not spent on medical care and
quality initiatives.
Comment: Commenters believe that U.S. tax dollars should not be
spent on providing benefits, including health care benefits, to DACA
recipients or other noncitizens. Commenters stated that they already
face high tax burdens, and that tax revenue should be directed towards
meeting the health care needs of other vulnerable groups, including
senior citizens, members of the military, and veterans. Commenters also
stated that the U.S. government already spends too much money, is $31
trillion in debt, and that our system is on the verge of bankruptcy.
Commenters believe that
[[Page 39431]]
this proposed rule sets a bad precedent for expanding health care to
individuals who are physically present in the United States without a
valid immigration status, and that we cannot both be fiscally
responsible and provide health care to noncitizens, citing Illinois as
an example. Some commenters stated their belief that immigration reform
is needed to stop this process from expanding to other immigrant
populations. One commenter stated their belief that the parents of DACA
recipients should be responsible for their children's wellbeing and
provide a specific plan for obtaining independence, rather than the
U.S. government being held responsible and providing government funded
programs. Another commenter believes that there should be more
accountability for those that use government sponsored public benefit
programs.
Response: Although some of these comments are out of scope, we
acknowledge the concerns noted by some commenters about the allocation
of U.S. tax dollars and would like to clarify that allocating tax
dollars is the purview of the Congress. As previously mentioned, the
purpose of this final rule is to establish eligibility requirements for
Exchanges and BHPs rather than dictate where tax dollars are directed.
Moreover, as mentioned previously in this final rule, noncitizens must
have their immigration status or category electronically verified by
DHS to enroll in the specified insurance affordability programs, which
ensures that noncitizens without an eligible immigration status or
category are not able to enroll. Additionally, we would like to
emphasize that immigration reform and parental responsibility are
outside of our purview and the scope of this rule. Finally, we are
engaged in many accountability initiatives for our programs, including
APTC and CSR audits, which verify the enrollment of qualified
individuals and the subsidies they receive. We welcome suggestions from
interested parties regarding accountability for CMS programs.
After consideration of public comments, we are finalizing these
cost estimates as discussed in section IV.B of this final rule.
2. Transfers
Transfers are payments between persons or groups that do not affect
the total resources available to society. They are a benefit to
recipients and a cost to payers.
The changes to 42 CFR 600.5 will treat DACA recipients the same as
other recipients of deferred action, who are lawfully present under the
definition used to determine eligibility for BHP, if otherwise
eligible. Due to a potential increase in the number of enrollees, there
may be an increase in Federal payments to a State's BHP trust fund,
which represents a transfer.
We discuss how we calculated our BHP enrollment estimates earlier
in this RIA. Federal funding for a BHP under section 1331(d)(3)(A) of
the ACA is based on the amount of the PTC allowed and payments to cover
required CSRs that would have been provided for the fiscal year to
eligible individuals enrolled in BHP standard health plans in the State
if such eligible individuals were allowed to enroll in a QHP through an
Exchange.\138\ These funds are paid to trusts established by the States
and dedicated to the BHP, and the States then administer the payments
to standard health plans within the BHP. In the proposed rule, to
calculate costs, we used 2022 data from USCIS to determine the average
age of a DACA recipient, which was 29, and we used PTC data to
determine the average PTC for a 29-year-old, which was estimated to be
$289 per month, and multiplied this by 12 months per year and by the
projected number of enrollees per year to arrive at annual costs. We
are modifying the costs in this final rule to use updated data.\139\
Therefore, to calculate costs, we use 2023 data from USCIS to determine
the average age of a DACA recipient, which is 30, and we use PTC data
to determine the average PTC for a 30-year-old, which is estimated to
be $274 per month, and multiplied this by 12 months per year and by the
projected number of enrollees eligible for PTC to arrive at annual
costs.\140\ Our estimates for BHP expenditures as a result of the
policies in this rule are shown in Table 4. We sought comment on these
estimates and the assumptions and methodology used to calculate them.
---------------------------------------------------------------------------
\138\ On October 11, 2017, the Attorney General of the United
States provided HHS and the Department of the Treasury (the
Departments) with a legal opinion indicating that the permanent
appropriation at 31 U.S.C. 1324, from which the Departments had
historically drawn funds to make CSR payments, cannot be used to
fund CSR payments to insurers. In light of this opinion--and in the
absence of any other appropriation that could be used to fund CSR
payments--HHS directed CMS to discontinue CSR payments to issuers
until the Congress provides for an appropriation. See https://www.hhs.gov/sites/default/files/csr-payment-memo.pdf for more
information. In the absence of a Congressional appropriation for
Federal funding for CSR payments, we cannot provide States with a
Federal payment attributable to CSRs that would have been paid on
behalf of BHP enrollees had they been enrolled in a QHP through an
Exchange.
\139\ These costs also reflect that the two States that will
operate a BHP when these policies go into effect are Minnesota and
Oregon rather than Minnesota and New York as anticipated in the
proposed rule.
\140\ The estimate for FY 2025 only includes 11 months, assuming
these individuals will enroll in a BHP beginning November 1, 2024,
as the BHPs included in this analysis have, or are anticipated to
have, continuous enrollment. We project no change in Federal BHP
expenditures for FY 2024 as this rule will not take effect until FY
2025.
[GRAPHIC] [TIFF OMITTED] TR08MY24.021
The policies at 45 CFR 152.2 and 155.20 will generate a transfer
from the Federal Government to consumers in the form of increased PTC
payments due to individuals who will be eligible for Exchange coverage
and APTC based on the policies in this final rule.
We discuss how we calculated our Exchange enrollment estimates
earlier in this RIA. In the proposed rule, to calculate costs, we used
2022 data from USCIS to determine the average age of a DACA recipient,
which was 29. For 2024, the average PTC for a 29-year-old was estimated
to be $289 per month. We multiplied this by 12 months per FY and by the
number of enrollees to arrive at annual costs. We are modifying the
costs in this final rule to use updated data. Therefore, to calculate
costs, we use 2023 data from USCIS to determine the average age of a
DACA recipient, which is 30. For 2025, the average PTC for a 30-year-
old is estimated to be $274 per month, and we multiplied this by 12
months per FY and by the projected number of enrollees eligible for PTC
to
[[Page 39432]]
arrive at annual costs.\141\ These costs are projected to increase
using the trends assumed in the President's FY 2025 Budget.
---------------------------------------------------------------------------
\141\ The estimate for FY 2025 only includes 9 months, assuming
these individuals will enroll in a QHP beginning January 1, 2025. It
is possible that individuals impacted by this rule could enroll in
coverage effective December 1, 2024, but we do not have a reliable
way to estimate how many individuals would enroll with that coverage
effective date. Therefore, we project no change in PTC expenditures
in FY 2024.
---------------------------------------------------------------------------
We present these estimates in Table 5 and sought comment on the
estimates and the assumptions and methodology used to calculate them.
[GRAPHIC] [TIFF OMITTED] TR08MY24.022
We did not receive public comments on the transfers estimated in
this rule specific to PTC expenditures, and therefore, we are
finalizing these estimates with modifications as described previously
in this section.
3. Regulatory Review Cost Estimation
If regulations impose administrative costs on private entities,
such as the time needed to read and interpret the proposed rule, we
estimate the cost associated with regulatory review. There is
uncertainty involved with accurately quantifying the number of entities
that would review the rule. However, for the purposes of this final
rule, we assume that the total number of unique commenters on the
proposed rule (284) will be the number of reviewers of this final rule.
Using the median wage information from the BLS for medical and
health service managers (Code 11-9111), we estimate that the cost of
reviewing this rule is $106.42 per hour, including overhead and fringe
benefits. Assuming an average reading speed of 250 words per minute, we
estimate that it will take approximately 3.3 hours for each individual
to review the entire final rule (approximately 49,000 words/250 words
per minute = 196 minutes). Therefore, we estimate that the total one-
time cost of reviewing this regulation is approximately $99,737
([$106.42 x 3.3 hours per individual review] x 284 reviewers).
D. Regulatory Alternatives Considered
In developing this rule, we considered not proposing or finalizing
the technical and clarifying changes to our definitions of ``lawfully
present,'' discussed in section II.B.2 of the proposed rule, as these
changes are expected to impact fewer individuals than the proposal to
treat DACA recipients the same as other recipients of deferred action.
However, in our comprehensive review of current CMS definitions of
``lawfully present,'' we determined that the proposed and finalized
changes discussed in section II.B.2 of this final rule will simplify
verification of applicants' immigration status or category, our
eligibility determination processes and increase efficiencies for
individuals seeking health coverage and State and Federal entities
administrating insurance affordability programs. Additionally, the
small number of individuals included in the proposed eligibility
categories will benefit from increased access to health coverage
through the Exchange or a BHP.
In the proposed rule, we sought comments on these proposals, and we
respond to those comments in the associated preamble sections of this
final rule. As discussed in those preamble sections, we are finalizing
the Exchange and BHP policies as discussed in the associated sections
of this final rule, and not finalizing the Medicaid and CHIP proposals
at this time.
E. Accounting Statement and Table
As required by OMB Circular A-4 (available at https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf), we have prepared an accounting statement in
Table 6 showing the classification of the impact associated with the
provisions of the final rule. We prepared these impact estimates
utilizing a baseline of ``no action,'' comparing the effect of the
proposals against not proposing the rule at all.
The final rule finalizes standards for programs that will have
numerous effects, including allowing DACA recipients to be treated the
same as other deferred action recipients for specific health insurance
affordability programs, and increasing access to affordable health
insurance coverage. The effects in Table 6 reflect a qualitative
assessment of impacts and the estimated direct monetary costs and
transfers resulting from the provisions of the final rule for the
Federal Government, State Exchanges, BHPs, and consumers.
[[Page 39433]]
[GRAPHIC] [TIFF OMITTED] TR08MY24.023
F. Regulatory Flexibility Act (RFA)
The RFA requires agencies to analyze options for regulatory relief
of small entities, if a rule has a significant impact on a substantial
number of small entities. For purposes of the RFA, we estimated that
small businesses, nonprofit organizations, and small governmental
jurisdictions are small entities as that term is used in the RFA. The
great majority of hospitals and most other health care providers and
suppliers are small entities, either because they are nonprofit
organizations, or they meet the Small Business Administration (SBA)
definition of a small business (having revenues of less than $8.0
million to $41.5 million in any 1 year). Individuals and States are not
included in the definition of a small entity.
For purposes of the RFA, we believe that health insurance issuers
and group health plans will be classified under the North American
Industry Classification System (NAICS) code 524114 (Direct Health and
Medical Insurance Carriers). According to SBA size standards, entities
with average annual receipts of
[[Page 39434]]
$47 million or less would be considered small entities for these NAICS
codes. Issuers could possibly be classified in 621491 (HMO Medical
Centers) and, if this is the case, the SBA size standard would be $44.5
million or less.\142\ We believe that few, if any, insurance companies
underwriting comprehensive health insurance policies (in contrast, for
example, to travel insurance policies or dental discount policies) fall
below these size thresholds. Based on data from medical loss ratio
(MLR) annual report submissions for the 2021 MLR reporting year,
approximately 87 out of 483 issuers of health insurance coverage
nationwide had total premium revenue of $47 million or less.\143\ This
estimate may overstate the actual number of small health insurance
issuers that may be affected, since over 77 percent of these small
issuers belong to larger holding groups, and many, if not all, of these
small companies are likely to have non-health lines of business that
will result in their revenues exceeding $47 million.
---------------------------------------------------------------------------
\142\ Available at https://www.sba.gov/document/support--table-size-standards.
\143\ Available at https://www.cms.gov/CCIIO/Resources/Data-Resources/mlr.html.
---------------------------------------------------------------------------
In this final rule, we are finalizing standards for eligibility for
Exchange enrollment, APTC and CSRs, and BHP enrollment. Because we
believe that insurance firms offering comprehensive health insurance
policies generally exceed the size thresholds for ``small entities''
established by the SBA, we did not believe that an initial regulatory
flexibility analysis is required for such firms and therefore do not
believe a final regulatory flexibility analysis is required.
Furthermore, the policies related to BHPs involve State governments,
but as States do not constitute small entities under the statutory
definition, an impact analysis for that provision is not required under
the RFA.
As its measure of significant economic impact on a substantial
number of small entities, HHS uses a change in revenue of more than
three to five percent. We do not believe that this threshold will be
reached by the requirements in this final rule. Therefore, the
Secretary has certified that this final rule will not have a
significant economic impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a
regulatory impact analysis if a rule may have a significant impact on
the operations of a substantial number of small rural hospitals. This
analysis must conform to the provisions of section 604 of the RFA. For
purposes of section 1102(b) of the Act, we define a small rural
hospital as a hospital that is located outside of a metropolitan
statistical area and has fewer than 100 beds. While this rule is not
subject to section 1102 of the Act, we have determined that the final
rule will not adversely affect small rural hospitals. Therefore, the
Secretary has certified that this final rule will not have a
significant impact on the operations of a substantial number of small
rural hospitals.
G. Unfunded Mandates Reform Act (UMRA)
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. In 2023, that
threshold is approximately $177 million. Based on information currently
available, we expect the combined impact on State, local, or Tribal
governments and the private sector does not meet the UMRA definition of
unfunded mandate.
H. Federalism
Executive Order 13132 establishes certain requirements that an
agency must meet when it issues a proposed rule (and subsequent final
rule) that imposes substantial direct requirement costs on State and
local governments, preempts State law, or otherwise has federalism
implications.
While developing this rule, we attempted to balance States'
interests in running their own Exchanges and BHPs with CMS' interest in
establishing a consistent definition of ``lawfully present'' for use in
eligibility determinations across our programs, to the extent possible.
We also attempted to balance States' interests with the overall goals
of the ACA, as well as the goals and provisions of the DHS DACA final
rule. By doing so, we complied with the requirements of E.O. 13132.
In our view, while the provisions of this final rule related to the
Exchanges (45 CFR 152.2 and 155.20) and BHPs (42 CFR 600.5) will not
impose any requirement costs on State and local governments that do not
operate their own Exchanges, or that operate SBE-FPs, this regulation
has federalism implications for other States. State Exchanges not on
the Federal platform and BHPs will be required to update their
eligibility systems to accurately evaluate applicants' lawful presence.
State Exchanges not on the Federal platform and BHPs may wish to
conduct outreach to groups such as DACA recipients who will newly be
considered lawfully present under the rule. By our estimate, these
requirements do not impose substantial direct costs on the affected
States, which in any event have chosen to operate their own Exchanges
and eligibility and enrollment platforms, or the optional BHP. After
establishment, Exchanges must be financially self-sustaining, with
revenue sources at the discretion of the State. Current State Exchanges
charge user fees to issuers, and as indicated earlier, a BHP is
optional for States. Therefore, if implemented in a State, a BHP
provides access to a pool of Federal funding that will not otherwise be
available to the State. States that do not have a BHP and do not
operate their own Exchange, including SBE-FP States, are not expected
to incur any costs as a result of this rule.
We included policies in the proposed rule related to Medicaid and
CHIP that might have imposed substantial direct costs on State
governments. However, as discussed earlier in this rule, we are not
finalizing those provisions at this time and therefore they do not have
federalism implications.
Chiquita Brooks-LaSure, Administrator of the Centers for Medicare &
Medicaid Services, approved this document on April 15, 2024.
List of Subjects
42 CFR Part 435
Aid to Families with Dependent Children, Grant programs-health,
Medicaid, Reporting and recordkeeping requirements, Supplemental
Security Income (SSI), Wages.
42 CFR Part 457
Administrative practice and procedure, Grant programs-health,
Health insurance, Reporting and recordkeeping requirements.
42 CFR Part 600
Administrative practice and procedure, Health care, health
insurance, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements.
45 CFR Part 152
Administrative practice and procedure, Health care, Health
insurance, Penalties, Reporting and recordkeeping requirements.
45 CFR Part 155
Administrative practice and procedure, Advertising, Aged, Brokers,
Citizenship and naturalization, Civil
[[Page 39435]]
rights, Conflicts of interests, Consumer protection, Grant programs-
health, Grants administration, Health care, Health insurance, Health
maintenance organizations (HMO), Health records, Hospitals, Indians,
Individuals with disabilities, Intergovernmental relations, Loan
programs-health, Medicaid, Organization and functions (Government
agencies), Public assistance programs, Reporting and recordkeeping
requirements, Sex discrimination, State and local governments, Taxes,
Technical assistance, Women, Youth.
For the reasons set forth in the preamble, the Centers for Medicare
& Medicaid Services amends 42 CFR chapter IV as set forth below.
Title 42--Public Health
PART 435--ELIGIBILITY IN THE STATES, DISTRICT OF COLUMBIA, THE
NORTHERN MARIANA ISLANDS, AND AMERICAN SAMOA
0
1. The authority citation for part 435 continues to read as follows:
Authority: 42 U.S.C. 1302.
PART 435 [Amended]
0
2. Part 435 is amended by--
0
a. Removing all instances of the words ``non-citizen'' and ``non-
citizens'' and adding in their places the words ``noncitizen'' and
``noncitizens'', respectively; and
0
b. Removing all instances of the words ``Qualified Non-citizen'' and
adding in their place the words ``qualified noncitizen''.
0
3. Section 435.4 is amended by revising the definition of ``Qualified
noncitizen'' to read as follows:
Sec. 435.4 Definitions and use of terms.
* * * * *
Qualified noncitizen means:
(1) a ``Qualified alien,'' as defined in 8 U.S.C. 1641(b) and (c);
who is:
(i) A noncitizen who is lawfully admitted for permanent residence
under the Immigration and Nationality Act [8 U.S.C. 1101 et seq.];
(ii) A noncitizen who is granted asylum under section 208 of such
Act [8 U.S.C. 1158];
(iii) A refugee who is admitted to the United States under section
207 of such Act [8 U.S.C. 1157];
(iv) A noncitizen who is paroled into the United States under
section 212(d)(5) of such Act [8 U.S.C. 1182(d)(5)] for a period of at
least 1 year;
(v) A noncitizen whose deportation is being withheld under section
243(h) of such Act [8 U.S.C. 1253] (as in effect immediately before the
effective date of section 307 of division C of Public Law 104-208) or
section 241(b)(3) of such Act [8 U.S.C. 1231(b)(3)] (as amended by
section 305(a) of division C of Public Law 104-208);
(vi) A noncitizen who is granted conditional entry pursuant to
section 203(a)(7) of such Act [8 U.S.C. 1153(a)(7)] as in effect prior
to April 1, 1980;
(vii) A noncitizen who is a Cuban and Haitian entrant (as defined
in section 501(e) of the Refugee Education Assistance Act of 1980);
(viii) An individual who lawfully resides in the United States in
accordance with a Compact of Free Association referred to in 8 U.S.C.
1612(b)(2)(G);
(ix) A noncitizen who--
(A) Has been battered or subjected to extreme cruelty in the United
States by a spouse or a parent, or by a member of the spouse or
parent's family residing in the same household as the alien and the
spouse or parent consented to, or acquiesced in, such battery or
cruelty, but only if (in the opinion of the agency providing such
benefits) there is a substantial connection between such battery or
cruelty and the need for the benefits to be provided; and
(B) Has been approved or has a petition pending which sets forth a
prima facie case for--
(1) Status as a spouse or a child of a United States citizen
pursuant to clause (ii), (iii), or (iv) of section 204(a)(1)(A) of the
Immigration and Nationality Act [8 U.S.C. 1154(a)(1)(A)(ii), (iii),
(iv)];
(2) Classification pursuant to clause (ii) or (iii) of section
204(a)(1)(B) of the Act [8 U.S.C. 1154(a)(1)(B)(ii), (iii)];
(3) Suspension of deportation under section 244(a)(3) of the
Immigration and Nationality Act [8 U.S.C. 1254(a)(3)] (as in effect
before the title III-A effective date in section 309 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996);
(4) Status as a spouse or child of a United States citizen pursuant
to clause (i) of section 204(a)(1)(A) of such Act [8 U.S.C.
1154(a)(1)(A)(i)], or classification pursuant to clause (i) of section
204(a)(1)(B) of such Act [8 U.S.C. 1154(a)(1)(B)(i)]; or
(5) Cancellation of removal pursuant to section 240A(b)(2) of such
Act [8 U.S.C. 1229b(b)(2)];
(x) A noncitizen--
(A) Whose child has been battered or subjected to extreme cruelty
in the United States by a spouse or a parent of the alien (without the
active participation of the alien in the battery or cruelty), or by a
member of the spouse or parent's family residing in the same household
as the alien and the spouse or parent consented or acquiesced to such
battery or cruelty, and the alien did not actively participate in such
battery or cruelty, but only if (in the opinion of the agency providing
such benefits) there is a substantial connection between such battery
or cruelty and the need for the benefits to be provided; and
(B) Who meets the requirement of 8 U.S.C. 1641(c)(1)(B);
(xi) A noncitizen child who--
(A) Resides in the same household as a parent who has been battered
or subjected to extreme cruelty in the United States by that parent's
spouse or by a member of the spouse's family residing in the same
household as the parent and the spouse consented or acquiesced to such
battery or cruelty, but only if (in the opinion of the agency providing
such benefits) there is a substantial connection between such battery
or cruelty and the need for the benefits to be provided; and
(B) Who meets the requirement of 8 U.S.C. 1641(c)(1)(B); or
(xii) A noncitizen who has been granted nonimmigrant status under
section 101(a)(15)(T) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(T)) or who has a pending application that sets forth a
prima facie case for eligibility for such nonimmigrant status.
(2) Noncitizens who are treated as refugees under other Federal
statutes:
(i) Noncitizens who are victims of a severe form of trafficking in
persons, as described in 22 U.S.C. 7105(b)(1)(C), or who are classified
as nonimmigrants under section 101(a)(15)(T)(ii) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(T)(ii)), pursuant to 22 U.S.C.
7105(b)(1)(A);
(ii) Iraqi and Afghan special immigrants, as described in Public
Law 110-181, section 1244(g) (2008), Public Law 111-8, section
602(b)(8) (2009), Public Law 111-118, section 8120(b) (2010), and
Public Law 113-291, section 1227 (2014);
[[Page 39436]]
(iii) Amerasian immigrants, described in Public Law 100-202,
section 101(e) (8 U.S.C. 1101 note);
(iv) Certain Afghan parolees, in accordance with Section 2502 of
Public Law 117-43, as amended; and
(v) Certain Ukrainian parolees, in accordance with Section 401 of
Public Law 117-128, as amended.
* * * * *
0
4. Section 435.406 is amended by--
0
a. Removing all instances of the words ``non-citizen'' and ``non-
citizens'' and adding in their places the words ``noncitizen'' and
``noncitizens'', respectively; and
0
b. Removing all instances of the words ``Qualified Non-Citizen'' and
adding in its place the words ``qualified noncitizen''.
0
c. Revising paragraph (a)(2)(i).
The revision reads as follows:
Sec. 435.406 Citizenship and noncitizen eligibility.
(a) * * *
(2)(i) Except as specified in 8 U.S.C. 1612(b)(1) (permitting
States an option with respect to coverage of certain qualified
noncitizens), qualified noncitizens as described in 42 CFR 435.4
(including qualified noncitizens subject to the 5-year bar) who have
provided satisfactory documentary evidence of qualified noncitizen
status, which status has been verified with the Department of Homeland
Security (DHS) under a declaration required by section 1137(d) of the
Act that the applicant or beneficiary is a noncitizen in a satisfactory
immigration status.
* * * * *
PART 457--ALLOTMENTS AND GRANTS TO STATES
0
5. The authority citation for part 457 continues to read as follows:
Authority: 42 U.S.C. 1302.
0
6. Section 457.320 is amended by--
0
a. Removing all instances of the words ``qualified aliens'' and adding
in its place the words ``qualified noncitizens'';
0
b. Revising paragraphs (b)(6); and
0
c. Adding paragraph (c).
The revision and addition read as follows:
Sec. 457.320 Other eligibility standards.
* * * * *
(b) * * *
(6) Exclude individuals based on citizenship or nationality, to the
extent that the children are U.S. citizens, U.S. nationals or qualified
noncitizens (as defined at paragraph (c) of this section); or
* * * * *
(c) Definitions. As used in this subpart:
Qualified noncitizen has the meaning assigned at Sec. 435.4 of
this chapter.
* * * * *
PART 600--ADMINISTRATION, ELIGIBILITY, ESSENTIAL HEALTH BENEFITS,
PERFORMANCE STANDARDS, SERVICE DELIVERY REQUIREMENTS, PREMIUM AND
COST SHARING, ALLOTMENTS, AND RECONCILIATION
0
7. The authority citation for part 600 continues to read as follows:
Authority: Section 1331 of the Patient Protection and
Affordable Care Act of 2010 (Pub. L. 111-148, 124 Stat. 119), as
amended by the Health Care and Education Reconciliation Act of 2010
(Pub. L. 111-152, 124 Stat 1029).
0
8. Section 600.5 is amended by revising the definition of ``Lawfully
present'' to read as follows:
Sec. 600.5 Definitions and use of terms.
* * * * *
Lawfully present has the meaning given in 45 CFR 155.20.
* * * * *
For the reasons set forth in the preamble, under the authority at 5
U.S.C. 301, the Department of Health and Human Services amends 45 CFR
subtitle A, subchapter B, as set forth below.
Title 45--Public Welfare
PART 152--PRE-EXISTING CONDITION INSURANCE PLAN PROGRAM
0
9. The authority citation for part 152 continues to read as follows:
Authority: Sec. 1101 of the Patient Protection and Affordable
Care Act (Pub. L. 111-148).
0
10. Section 152.2 is amended by revising the definition of ``Lawfully
present'' to read as follows:
Sec. 152.2 Definitions.
* * * * *
Lawfully present has the meaning given the term at 45 CFR 155.20.
* * * * *
PART 155--EXCHANGE ESTABLISHMENT STANDARDS AND OTHER RELATED
STANDARDS UNDER THE AFFORDABLE CARE ACT
0
11. The authority citation for part 155 continues to read as follows:
Authority: 42 U.S.C. 18021-18024, 18031-18033, 18041-18042,
18051, 18054, 18071, and 18081-18083.
0
12. Section 155.20 is amended by revising the definition of ``Lawfully
present'' to read as follows:
Sec. 155.20 Definitions.
* * * * *
Lawfully present means a noncitizen who--
(1) Is a qualified noncitizen as defined at 42 CFR 435.4;
(2) Is in a valid nonimmigrant status, as defined in 8 U.S.C.
1101(a)(15) or otherwise under the immigration laws (as defined in 8
U.S.C. 1101(a)(17));
(3) Is paroled into the United States in accordance with 8 U.S.C.
1182(d)(5) for less than 1 year, except for a noncitizen paroled for
prosecution, for deferred inspection or pending removal proceedings;
(4) Is granted temporary resident status in accordance with 8
U.S.C. 1160 or 1255a;
(5) Is granted Temporary Protected Status (TPS) in accordance with
8 U.S.C. 1254a;
(6) Is granted employment authorization under 8 CFR 274a.12(c);
(7) Is a Family Unity beneficiary in accordance with section 301 of
Pub. L. 101-649 as amended; or section 1504 of the LIFE Act Amendments
of 2000, title XV of H.R. 5666, enacted by reference in Pub. L. 106-554
(see section 1504 of App. D to Pub. L. 106-554);
(8) Is covered by Deferred Enforced Departure (DED) in accordance
with a decision made by the President;
(9) Is granted deferred action, including but not limited to
individuals granted deferred action under 8 CFR 236.22;
(10) Has a pending application for adjustment of status;
(11)(i) Has a pending application for asylum under 8 U.S.C. 1158,
for withholding of removal under 8 U.S.C. 1231(b)(3)(A), or for
protection under the regulations implementing the Convention Against
Torture; and
(ii) Is under the age of 14;
(12) Has been granted withholding of removal under the regulations
implementing the Convention Against Torture; or
(13) Has a pending or approved petition for Special Immigrant
Juvenile classification as described in 8 U.S.C. 1101(a)(27)(J).
* * * * *
0
13. Section 155.30 is added to read as follows:
Sec. 155.30 Severability.
(a) Any part of the definition of ``lawfully present'' in Sec.
155.20 held to be invalid or unenforceable, including as applied to any
person or circumstance, shall be construed so as
[[Page 39437]]
to continue to give the maximum effect to the provision as permitted by
law, along with other provisions not found invalid or unenforceable,
including as applied to persons not similarly situated or to dissimilar
circumstances, unless such holding is that the provision of this
subpart is invalid and unenforceable in all circumstances, in which
event the provision shall be severable from the remainder of this
subpart and shall not affect the remainder thereof.
(b) The provisions in Sec. 155.20 with respect to the definition
of ``lawfully present'' are intended to be severable from one another.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2024-09661 Filed 5-3-24; 8:45 am]
BILLING CODE 4120-01-P
