NHeLP Comments on Changes to Definition of Lawfully Present in the Pre-existing Condition Insurance Plan Program of the Affordable Care Act of 2010

VIA ELECTRONIC SUBMISSION

October 29, 2012

Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS?9995?IFC2

P.O. Box 8016

Baltimore, MD 21244?8016

RE: CMS?9995?IFC2

Comments on CMS? Interim Final Rule Changes to Definition of ?Lawfully Present? in the Pre- Existing Condition Insurance Plan Program of the Affordable Care Act of 2010

Dear Sir/Madam:

The National Health Law Program (NHeLP) is a public interest law firm working to advance access to quality health care and protect the legal rights of low-income and underserved people. NHeLP provides technical support to direct legal services programs, community-based organizations, the private bar, providers and individuals who work to preserve a health care safety net for the millions of uninsured or underinsured low-income people.

For the reasons discussed below, we oppose the exclusion of young people granted deferred action by the U.S. Department of Homeland Security under the Deferred Action for Childhood Arrivals (DACA) policy, from the U.S. Department of Health and Human Services? list of immigration categories considered ?lawfully present? for purposes of health coverage eligibility. Specifically, we oppose the change in the definition of ?lawfully present? in the Pre-Existing Condition Insurance Plan program as well as the use of this definition in other provisions of the Affordable Care Act of 2010 (ACA) (77 Fed. Reg. 52614, Aug. 30, 2012). The rule change lacks legal or policy justification and undermines the goals of the ACA.

This exclusion will negatively affect health outcomes for young immigrants and their children. Further, this decision will be particularly detrimental to immigrant women who will face severely restricted access to vital reproductive and sexual health care services and who already experience numerous barriers to health insurance and the health care they need. This decision will have lasting consequences for the health of these immigrant women and their families by restricting access to important preventive and pregnancy-related care.

Before the issuance of this Interim Final Rule and the August 28, 2012 Guidance from the Centers for Medicare and Medicaid Services to State Medicaid and Health Directors (SHO# 12-002), immigrants granted deferred action through DACA would have been considered ?lawfully present,? and, if they met other criteria, they would be eligible for expanded coverage options under the Affordable Care Act, specifically the ability to apply for and enroll in a Preexisting Condition Insurance Plan, to spend their own money to purchase insurance in the Health Insurance Exchanges (?exchanges?), and to apply for advanced premium tax credits (APTCs) to facilitate their participation in the Exchange. Additionally, pregnant women and those under 21 years of age with an income at or below a relevant level would have been eligible for expanded coverage under Medicaid and the Children?s Health Insurance Program under the Children?s Health Insurance Program Reauthorization Act in states that opted to cover lawfully pregnant women and children.

Excluding individuals granted deferred action under the DACA process from the PCIP program, the health insurance exchanges, APTCs, Medicaid, and CHIP does not eliminate their need for health care. According to recent estimates, 48% of the 1.78 million anticipated to the eligible for DACA are women, 72% are 15 years and older, over half are enrolled in K-12 education or college, and 58% were engaged in the labor force. This particular population is one that needs expanded, not restricted, access to healthcare, including sexual and reproductive health care. These young people, like all American youth, need access to quality and affordable preventive sexual and reproductive health care services and counseling including contraception to prevent, plan and space pregnancies; and to prevent sexually transmitted infection (STI) and gynecological cancers. Additionally, all immigrant women deserve coverage for the full range of vital maternity services that are necessary to promote positive maternal and newborn health outcomes.

The exclusions in the Interim Final Rule, in conjunction with the CMS Guidance, undermine the contributions of immigrants, as well goals of health reform and the Deferred Action for Childhood Arrivals (DACA) program. Immigrant youth who came to the United States as children have been deemed by the U.S. Government as particularly deserving of full integration in the fabric of our society. Their exclusion from health care coverage will only undermine that integration and will be particularly devastating to immigrant women, who face numerous injustices, including discrimination, in their efforts to pursue their dreams, care for themselves, and provide for their families. Prohibiting those who gain DACA status from important coverage options will only compromise their participation in educational and employment opportunities, which in turn will diminish opportunities for entire immigrant families and communities.

In July 2010, the U.S. Department of Health and Human Services (HHS) issued its definition of ?lawfully present? for the purposes of determining which individuals would be considered eligible non-citizens under the Affordable Care Act. HHS codified the list of immigration categories considered ?lawfully present? at 45 C.F.R. 152.2 for purposes of eligibility for the high-risk pool under the ACA, known as the Pre-Existing Condition Insurance Plan (PCIP) . (75 Fed. Reg. 45013-45033, July 30, 2010). Under that definition, individuals granted deferred action by the U.S. Department of Homeland Security (DHS) are considered ?lawfully present? for purposes of PCIP eligibility and can enroll in the PCIP if they meet all other eligibility criteria. 45 C.F.R § 152.2.

HHS adopted the same definition of ?lawfully present? in its final Exchange eligibility rule, which indicates the immigration categories eligible to purchase un-subsidized private health insurance through the ACA-created Health Insurance Exchanges. (45 CFR § 155.20; 77 FR 18310, Mar. 27, 2012). To ensure consistency with HHS, the PCIP definition of ?lawfully present? was adopted by the Department of Treasury in its final rule on eligibility for APTCs that will be available to taxpayers to help make private health insurance affordable. (26 CFR § 1.36B-1(g); 77 Fed. Reg. 30377, May 23, 2012). As a result, individuals granted deferred action are included among other lawfully present individuals as eligible for these key provisions of the ACA.

On June 15, 2012, DHS announced that it would grant deferred action under its administrative authority to individuals residing in the United States who meet specific requirements. The DACA program was officially launched on August 15, 2012. Once an individual has been approved for deferred action under DACA, the ACA regulations would have classified them as ?lawfully present? under the ACA provisions discussed above.

Yet, in an Interim Final Rule, HHS excluded individuals granted deferred action under DACA from the definition of ?lawfully present? by carving out an exception for these individuals at 45 CFR § 152.2(8) (77 Fed. Reg. 52614, Aug. 30, 2012). The Interim Final Rule?s new subsection provides that ?[a]n individual with deferred action under the Department of Homeland Security?s deferred action for childhood arrivals process shall not be considered to be lawfully present with respect to any of the above categories in paragraphs (1) through (7) of this definition.? (45 CFR § 152.2(8); 77 Fed. Reg. 52614,

52616, Aug. 30, 2012).