Health and Human Services (HHS) Proposed Rule Clarifying Eligibility for a Qualified Health Plan through a Marketplace, Advance Payments of the Premium Tax Credit, Cost-sharing Reductions, a Basic Health Program, and Some Medicaid and Children’s Health In

Today, the Centers for Medicare & Medicaid Services (CMS) is publishing a notice of proposed rulemaking (NPRM) that proposes to modify the definition of “lawfully present” applicable to eligibility for enrollment in a qualified health plan (QHP) through a Marketplace, a Basic Health Program (BHP), and some Medicaid and Children’s Health Insurance Programs (CHIPs) to no longer exclude Deferred Action for Childhood Arrivals (DACA) recipients from that definition. If this proposed change is finalized, DACA recipients would be eligible for advance payments of the premium tax credit (APTCs) and cost-sharing reductions (CSRs) if they meet all other eligibility requirements. In addition, CMS is proposing some additional technical modifications to the definitions of “lawfully present.”

These changes support the goals of the Affordable Care Act (ACA) by increasing access to health coverage and improving the health and well-being of many DACA recipients who currently are without coverage. If finalized, this proposed rule could lead to 129,000 previously uninsured DACA recipients newly enrolling in health coverage through a Marketplace, a BHP, Medicaid, and CHIP, CMS estimates.[1]

This NPRM proposes to no longer exclude DACA recipients from the definition of “lawfully present” used for CMS insurance affordability programs. If finalized, this would allow DACA recipients to enroll in a QHP through a Marketplace, with financial assistance like APTCs and CSRs if otherwise eligible; a BHP; and Medicaid or CHIP in states that have elected the option to cover lawfully residing children under age 21 and/or pregnant individuals,[2] if they meet all other eligibility requirements in the state.

Under this proposed change, DACA recipients would be treated the same as other deferred action recipients for the purposes of eligibility for these CMS insurance affordability programs. The proposed change to no longer exclude DACA recipients from CMS definitions of “lawfully present” also aligns with both the longstanding Department of Homeland Security (DHS) definition of lawful presence under 8 CFR 1.3 for purposes of applying for Social Security benefits, and DHS’ explanation of this definition in their August 2022 final rule, Deferred Action for Childhood Arrivals (87 FR 53152).

This proposed rule’s technical changes to the definition of “lawfully present” would benefit consumers by enabling CMS and states to administer their programs more efficiently for noncitizens, and ensure complete, accurate, and consistent eligibility determinations and verification processes for health coverage for these populations. Some of these changes include:

• Streamlining Eligibility and Verifications for Valid Nonimmigrant Visa-holders: Revising the definition of noncitizens who are nonimmigrants to clarify that a noncitizen in a valid nonimmigrant status is considered lawfully present. CMS is proposing changes to this definition to clarify that determining whether an individual has violated the terms of their nonimmigrant status is the responsibility of DHS, not states or Marketplaces;
• Considering Noncitizens with an Employment Authorization Document (EAD) as “Lawfully Present”: Considering any noncitizens who have been granted an EAD under 8 CFR 274a.12(c) as “lawfully present,” which will simplify insurance verification processes for these individuals, who are generally already considered “lawfully present” under other parts of CMS’ definition of lawfully present;
• Adding Special Immigrant Juvenile (SIJ) Children with Approved Petitions: Closing a small gap in eligibility by adding that children with an approved petition for SIJ classification are also lawfully present. Current CMS regulations and guidance provide that a child who has a pending petition for SIJ classification is considered “lawfully present,” but they do not address those with an approved petition; and
• Removing the Current 180-day Waiting Period for Certain Applicants under the Age of 14: Removing the requirement in the current CMS definition of lawfully present that individuals under age 14 who are applicants for asylum, withholding of removal, or relief under the Convention Against Torture must have an application for such categories pending with DHS for 180 days to be considered “lawfully present,” thereby making it easier for these at-risk youth to be determined eligible for coverage.

If the rule is finalized as proposed, DACA recipients would qualify for an existing special enrollment period (SEP) to enroll in a QHP through a Marketplace for individuals who are newly lawfully present. These newly eligible individuals would qualify for an SEP to allow them to select a Marketplace plan during the 60 days following the effective date of the final rule, if finalized.

This NPRM has a proposed effective date for all provisions of November 1, 2023. CMS is requesting comment from stakeholders on the feasibility of this date and whether to consider a different effective date.

###