HLA submits comments to the Centers for Medicare & Medicaid ...

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Board of Directors
Mala M. Rafik, President
Brian P. Carey, Treasurer
Lisa Fleming, Clerk
Jeffrey N. Catalano
Michael S. Dukakis
Paul W. Finnegan
Ruth Ellen Fitch
Paula Gold
Joshua Greenberg
Daniel J. Jackson
Wendy E. Parmet
S. Stephen Rosenfeld
Amy Whitcomb Slemmer
Eleanor H. Soeffing
Executive Director
Matt Selig
Legal Staff
Litigation Director
Lorianne Sainsbury-Wong
Staff Attorneys
Leslie Bennett
Jenifer Bosco
Laura Goodman
Samuel Leadholm
Meira Russ
Nancy Ryan
Legal Fellows
Gavi Bogin-Farber
Amy Katzen
Paralegal/Intake Coordinator
Kelsey Meagher
Administrative Staff
Chief Operating Officer
Robert MacPherson
Development Director
Scott Bryson
Program and Development
Associate
Grace Rosenthal
October 29, 2012
VIA ELECTRONIC SUBMISSION at http://www.regulations.gov
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS–9995–IFC2
P.O. Box 8016
Baltimore, MD 21244–8016
RE:
CMS–9995–IFC2
Comments on Interim Final Rule Changes to Definition of “Lawfully
Present” in the Pre-Existing Condition Insurance Plan Program of
the Affordable Care Act of 2010
Dear Sir/Madam:
This letter provides comments to the Department of Health and Human Services
(DHHS) Centers for Medicare and Medicaid Services (CMS) regarding CMS–
9995–IFC2, relating to interim final rule changes to the definition of “lawfully
present” under the Pre-Existing Condition Insurance Plan (PCIP) program of the
Affordable Care Act of 2010 (ACA). 1
Health Law Advocates (HLA) is a non-profit public interest law firm that serves
some of the Commonwealth of Massachusetts’ most vulnerable populations.
HLA provides pro bono legal representation to low-income Massachusetts
residents who have been unjustly denied health care access. We are affiliated
with Health Care For All, the premier consumer health policy organization in
Massachusetts.
As a consumer-driven health care access organization, HLA recognizes the
commitment of the DHHS with respect to its role in implementing Federal health
care reform, and HLA is pleased to offer comments to CMS as it applies certain
provisions of the ACA that affect disadvantaged populations. It is the position
of HLA that the restriction in the definition of “lawfully present” creates a
barrier to accessing health care coverage for young residents living in the United
States and granted deferred action status under the Deferred Action for
Childhood Arrivals (DACA) program.
I. Although deferred action status permits access to federally
subsidized health care under the ACA, young adults who are DACA
recipients are excluded from these critical benefits.
The objectives of Federal health care reform are to provide health care coverage
and to reduce the number of uninsured residents. 2 Sections 1401 and 2001 of the

ACA provide that significant expansions of access to federally subsidized
coverage options become effective in 2014, such as graduated Federal subsidies
for residents with household incomes between 133 percent and 400 percent of
the Federal poverty level to enable them to purchase health insurance, and
expansions in Medicaid to include opening eligibility standards to low-income
adults who would otherwise not qualify for federally subsidized health insurance
due to inability to meet existing Medicaid eligibility requirements.
Despite these ACA expansions, CMS removes DACA young adults from
federally supported insurance coverage by adding paragraph 8 to the definition
of “lawfully present” under 45 CFR 152.2 (excluding only DACA recipients
from deferred action status).
In 2014, residents with deferred action status – other than DACA recipients –
will be eligible for ACA benefits under the insurance exchanges and PCIP. 3
Although deferred action does not confer lawful status, residents who are
granted deferred action are not considered to be accruing unlawful presence in
the United States during the effective dates of their deferred action status. 4
Deferred action is an exercise of the Department of Homeland Security’s (DHS)
prosecutorial discretion to defer removal of certain persons, and it ensures “that
governmental resources for the removal of individuals are focused on high
priority cases.” 5 According to CMS in its August 28, 2012 guidance sent to state
health officials, the justification for taking DACA young adults out of the
insurance pool of eligible residents and denying them access to federallysponsored
health care coverage is that “the reasons that DHS offered for
adopting the DACA process do not pertain to eligibility for Medicaid or
CHIP[.]” 6
It was unreasonable for CMS to exclude these young adult DACA recipients.
II.
Excluding DACA recipients from federally supported health care
coverage under the ACA will leave most of these young adults
uninsured.
Like other recipients of a USCIS-approved deferred action status, DACA
recipients who demonstrate an “economic necessity” to work in the United
States are authorized to apply for employment authorization effective for the
duration of their deferred action status. 7 However, even employment
authorization does not eliminate uninsurance among these young adults. DACA
recipients are young and may not be able to access employer-sponsored
insurance (ESI) because they do not work the requisite number of hours to be
eligible for ESI enrollment. For those who are offered ESI, it may be
unaffordable.
Without PCIP access to federally-sponsored insurance coverage, these young
adults will be left uninsured. DACA recipients are, in general, the children of
undocumented immigrant parents, have incurred a lapsed lawful immigration
status as of June 15, 2012, and are persons who are ineligible for adjustment of
immigration status under traditional USCIS processes such as family-based
petitions and work certifications. Although health insurance exchanges under
2

the ACA will become marketplaces for affordable, quality health care coverage
options for individuals and small businesses, states may opt for flexibility in
implementing exchanges. Even if DACA recipients work for employers offering
affordable ESI through federally-supported exchanges, it remains uncertain
whether these young adults would be eligible to enroll due to immigration status
and alienage. A higher percentage of working, yet uninsured, DACA recipients
is a foreseeable consequence of their removal from PCIP eligibility, and it can be
presumed that most of these young adults will be left without health insurance. 8
By rendering DACA recipients ineligible for the PCIP program, CMS prevents
these young adults from accessing needed health coverage by one of the primary
means they would otherwise have had available to them.
Conversely, if allowed to access the PCIP program, these young adults would be
economically advantageous contributors to the exchange risk pool because they
are between the ages of 15 and 30 years old as of June 15, 2012, 9 and as young
adults they are less costly to cover. They would offset the medical costs of older
members and help exchanges avoid the concerns of adverse risk selection. 10 It is
clear, however, that if excluded from Federal health care access, these young
adults will be compelled to obtain services at emergency rooms and urgent care
facilities when they do need care, and this will increase overall health care costs.
III.
DACA recipients are arbitrarily excluded from the widely used
definition of “lawful presence,” and the requisites of DREAM Act
eligibility are undercut by exclusion from Federal health care
reform exchange provisions.
Statutory and regulatory definitions of “lawfully residing” and “lawfully
present” under other public benefit programs demonstrate a Federal policy of
including deferred action recipients in federally-sponsored programs, which may
be adopted by the States. 11 In spite of this, CMS has chosen to exclude only
DACA recipients from ACA coverage, which will leave most of these young
individuals uninsured.
The Children's Health Insurance Program Reauthorization Act (CHIPRA) is the
benchmark for ACA eligibility with respect to noncitizens under its “lawful
presence” standard, as set forth in July 1, 2010 CMS guidance. 12 CHIPRA
allows states, such as Massachusetts, to cover immigrant children and pregnant
immigrant women through Medicaid and CHIP, despite the Personal
Responsibility and Work Opportunity Act. 13 CHIPRA provides that “lawfully
present” status is accorded to those aliens who secure employment authorization
as well as those granted Temporary Protected Status, asylum applicants, and
residents with approved visa petitions who are awaiting adjustment of status. 14
CHIPRA is indifferent with respect to State decisions to expand coverage under
Federal/State Medicaid and CHIP programs. Accordingly, CMS authorizes
States to extend Federal/State Medicaid programs and CHIPRA benefits to
immigrants who are lawfully present on the same basis as DACA recipients,
namely deferred action. 15
It is problematic that CMS leaves these DACA children and young adults
uninsured. The implications of this exclusion undercut the federal policy of
3

near-universal health insurance and such actions are unjustifiably
counterproductive to the establishment of a balanced risk pool of covered
beneficiaries. It is equally concerning that DACA eligibility under the DREAM
Act requires that applicants demonstrate enrollment in or completion of
education in the United States. 16 While the DACA educational criterion is
consistent with the United States Supreme Court decision in Plyler v. Doe, 457
U.S. 202 (1982) (holding that children without lawful status are entitled to attend
public schools), CMS’s expulsion of these children and young adults results in a
perpetuation of public health concerns in the public educational setting.
Moreover, it is quite problematic that DACA applicants who do not meet the
DREAM Act educational criterion but who have been honorably discharged
from the United States military may receive deferred action status; 17 however,
as DACA recipients, they may not receive federally supported coverage under
the PCIP program.
Rather than excluding DACA recipients from Federal health care reform
coverage, CMS should redress the consequences of expulsion from deferred
action status and denial of eligibility under the PCIP program.
IV.
Conclusion
For the reasons identified above, HLA advocates for the inclusiveness of the
term “lawfully present” under the ACA. HLA opposes the removal of children
and young adults who are DACA recipients from federally- supported health
insurance exchanges.
Accordingly, HLA recommends that CMS delete subsection 8 of 45 CFR §
152.2 and provide these children and young adults with equal access to the PCIP
program.
If you should have any questions, please feel free to contact the undersigned.
Sincerely,
/s/ Lorianne M. Sainsbury-Wong
Lorianne M. Sainsbury-Wong
Litigation Director
Health Law Advocates
30 Winter Street, Suite 1004
Boston, MA 02108
617-275-2987
sainsbury_wong@hla-inc.org
/s/ Gavriela M. Bogin-Farber
Gavriela M. Bogin-Farber
Legal Fellow
Health Law Advocates
30 Winter Street, Suite 1004
Boston, MA 02108
617-275-2891
gbogin-farber@hla-inc.org
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1 77 Fed. Reg. 52614 (August 30, 2012).
2 See 42 U.S.C. § 18091(2)(C).
3 See 45 CFR 152.2(4)(v) and 152.14(a) (lawfully present individuals are eligible to enroll in a
PCIP, and “lawfully present” includes “aliens currently in deferred action status”).
4 See USCIS, Consideration of Deferred Action for Childhood Arrivals Process, Frequently
Asked Questions (September 14, 2012), available at http://tinyurl.com/9t5maht.
5 77 Fed. Reg. 52614 (August 30, 2012).
6 Ctrs. For Medicare & Medicaid Servs., State Health Official Letter – Individuals with Deferred
Action for Childhood Arrivals, August 28, 2012, SHO #12-002, available at
http://www.medicaid.gov/Federal-Policy-Guidance/downloads/SHO-12-002.pdf.
7 See 8 C.F.R. § 274a.12(c)(14); see also USCIS Frequently Asked Questions, supra note 4.
8 Moreover, the majority of DACA recipients already have no access to another cornerstone
provision of the ACA: dependent coverage. Dependent coverage allows parents to keep their
children on family health insurance plans until the children turn 26 years old. DACA young
adults, however, are largely unable to access dependent coverage because of the unlawful status
of their parents or parental ineligibility for group insurance coverage. These young adults,
therefore, demonstrate substantial inability to access health care insurance without coverage
under the PCIP program.
9 See USCIS, Consideration of Deferred Action for Childhood Arrivals Process (September 14,
2012), available at http://tinyurl.com/7ksa6of (requiring that DACA applicants, in addition to the
other criteria, have been under the age of 31 as of June 15, 2012 and have arrived in the U.S.
before turning 16 years old.)
10 See Sharon Silow-Carroll and Diana Rodin et al, Commonwealth Fund, Health Insurance
Exchanges: State Roles in Selecting Health Plans and Avoiding Adverse Selection, States in
Action (February/March 2011), available at
http://www.commonwealthfund.org/Newsletters/States-in-Action/2011/Mar/February-March-
2011/Feature/Feature.aspx (“Adverse selection refers to the disproportionate enrollment of highrisk,
high-cost individuals, resulting in a rise in costs and premiums. This could result from
lower-risk people [such as young, healthy people] … dropping out of the exchange”).
11 See Ctrs. For Medicare & Medicaid Servs., State Health Official Letter – Medicaid and CHIP
Coverage of “Lawfully Residing” Children and Pregnant Women, July 1, 2010, SHO #10-006,
CHIPRA #17, available at http://downloads.cms.gov/cmsgov/archiveddownloads/SMDL/downloads/SHO10006.pdf
(stating that “lawfully present” includes certain
aliens paroled for under a year, while disqualifying those “paroled for prosecution, for deferred
inspection, or pending removal proceedings”).
12 See id.
13 See 42 U.S.C. 1396b(v)(4)(A).
14 See CMS CHIPRA Letter, supra note 11; see also Lorianne Sainsbury-Wong and Nancy Ryan,
Health care coverage for lawfully residing aliens: Massachusetts and federal perspectives,
Massachusetts Lawyers Journal (July 2012).
15 See CMS CHIPRA Letter, supra note 11.
16 Specifically, the DACA applicant must show that he/she is currently attending school,
graduated or obtained a certificate of completion from a high school, or that he/she otherwise
obtained a general education development certificate. See USCIS, Consideration of DACA
Process, supra note 9.
17 See id.
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