# 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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-09661

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** May 8, 2024
- **Citation:** 89 FR 39392

## Text

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.

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. § 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

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.

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.

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

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

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).

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.

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.

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

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.

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

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.

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.

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

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.

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

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.

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

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.

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.

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.

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

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.

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

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.

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

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.

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.

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.

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.

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/.

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

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.

Comment:
One nonprofit organization opposed the proposal stating that by expanding the definition of “lawfully present,” DACA recipients would rely

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.”

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

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

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).

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

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.

57
42 U.S.C. 18041(a)(1).

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.

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.

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

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

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

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%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/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.

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

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

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.
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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.
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Kaiser Family Foundation.
Key Facts About the Uninsured Population
(2023)
https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/.

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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.

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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.

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,

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,
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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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Div G, Title II, sec. 209(f), Public Law 118-42 (March 9, 2024).

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 finali

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-09661. Public record. Not legal advice.