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

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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
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Page 5: 1 77 Fed. Reg. 52614 (August 30, 20

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

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