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

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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 4
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. 5
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