No Right to Federal Healthcare Assistance Under Delayed Deportation Program

HHS released two policy statements this week clarifying the effect of the Deferred Action for Childhood Arrivals (DACA) program announced by the Department of Homeland Security in June. The first was a Letter to State Health Officials, addressing Medicaid and the Children’s Health Insurance Program (CHIP). The next day, the Federal Register carried an Interim final rule amending the regulations governing eligibility for the temporary risk pool for individuals with preexisting conditions, the affordable health insurance exchanges and related cost sharing and tax credit benefits. Both issuances clarify existing law and policy limiting the eligibility of noncitizens for federal healthcare benefits to individuals with documentation of their permission to live here.

DACA and immigration status. The DACA policy announced by the Secretary of Homeland Security is a decision on the agency’s priorities for enforcement of alleged violations of the immigration laws. Specifically, under DACA, the agency will consider requests from individuals under age 31 who meet certain requirements, including age at arrival in the United States and presence here for at least five years. DHS’ action is a commitment not to deport these individuals. In both documents, HHS relies on language in the DHS announcement that explains the policy as setting priorities for enforcement of the immigration laws. The deferred action documents are valid only for two years, after which they must be renewed. DHS still retains the option to deport the individuals if they engage in criminal activity or are threats to national security.

Medicaid and CHIP. In the August 28 Letter to State Health Officials, CMS explained that section 214 of the Children’s Health Insurance Reauthorization Act (CHIPRA) (P.L. 111-3) gave states the option to grant Medicaid and CHIP eligibility to children and pregnant women who have been “lawfully residing” in the United States for less than five years. DHS’ DACA does not change the immigration status of undocumented  individuals to lawful resident.

Effect of CHIPRA. CHIPRA removed a federally required bar to receipt of benefits that applied to lawful residents until five years from the date they received that status. CMS outlined the effects of the change in the law in a Letter to State Health Officials in July 2010 and listed several possible categories of individuals who could be eligible. The reasons given by DHS for the DACA policy are unrelated to the eligibility considerations as outlined in that letter.

PPACA programs. The Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148) regulations governing eligibility for the federal affordable healthcare programs require that the individual be “lawfully present.” The interim final rule in effect before the amendment contained seven possible ways for a noncitizen to qualify, including “an alien in nonimmigrant status who has not violated the terms of the status” set by the immigration agency. Under the amended regulation, an individual with deferred status under DACA shall not be considered lawfully present under any of the seven categories. Although the  specific regulation addresses the temporary insurance program for individuals with preexisting conditions, the definition has been incorporated by reference into the regulations governing eligibility for the affordable insurance exchanges, premium assistance, cost sharing subsidies and tax credits. HHS will accept comments on the amendment through October 29, 2012.