BY LINDA BENTLEY | SEPTEMBER 5, 2012
Individuals with deferred action under the DACA process shall not be eligible for Medicaid and CHIP under the CHIPRA state option
WASHINGTON – The implementation of President Obama’s executive order for Deferred Action for Childhood Arrivals (DACA) began Aug. 15, providing temporary relief from removal with respect to certain illegal aliens under the age of 31 who meet the Department of Homeland Security’s (DHS) guidelines.
That same day, Gov. Jan Brewer issued an executive order of her own reminding state agencies that Obama’s executive order did not grant legal status to those here illegally and those eligible under DACA relief were not eligible for driver licenses or other state-funded benefits and services.
Brewer’s directives were subsequently emulated by letters and orders issued by the governors of Texas, Nebraska and other states.
On Aug. 28, the U.S. Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS) followed suit and issued a letter to State Health and Medicaid directors regarding individuals with DACA, citing an amendment to the interim final regulations of the Patient Protection and Affordable Care Act, otherwise known as Obamacare, which was published in the Aug. 30, 2012 Federal Register.
The Federal Register published summary states, “In light of a new process recently announced by the DHS, eligibility for the program is being amended so that the program does not inadvertently expand the scope of that process.”
In the section titled “Overview of the Amendment to the Interim Final Rule,” it states, “As DHS has explained, the DACA process is designed to ensure that government resources for the removal of individuals are focused on high priority cases, including those involving a danger to national security or a risk to public safety, and not on low priority cases. Because the reasons that DHS offered for adopting the DACA process do not pertain to eligibility for Medicaid or CHIP (Children’s Health Insurance Program), HHS (Health and Human Services) has determined that these benefits should not be extended as a result of DHS deferring action under DACA.
Concurrent with this amendment, CMS is issuing a State Health Official letter providing that individuals whose cases are deferred under DHS’s DACA process will not be eligible under the state option. As it would not be consistent with the reasons offered for adopting the DACA process to extend health insurance subsidies under the Affordable Care Act to the individuals, HHS is amending its definition of ‘lawfully present’ in the Pre-existing Condition Insurance Program (PCIP), so that the PCIP program interim final rule does not inadvertently expand the scope of the DACA process.
“Under the amended rule, individuals with deferred action under the DACA process are not eligible to enroll in the PCIP program.”
Those individuals granted deferred action under DACA will also not be eligible to enroll in coverage through the Affordable Insurance Exchanges and will not receive coverage that could make them eligible for premium tax credits under Treasury regulations or for cost-sharing reductions beginning in 2014.
The CMS letter notes Section 214 of the CHIP Reauthorization Act of 2009 (CHIPRA) gave states the option to provide Medicaid and CHIP eligibility to children and/or pregnant women who are “lawfully residing” in the United States and otherwise eligible for Medicaid or CHIP.
However, because DHS’s reasons for adopting the DACA process do not pertain to eligibility for these programs, HHS has determined these benefits should not be extended as a result of DHS deferring action under DACA.
The letter concludes, “For this reason, individuals with deferred action under the DACA process shall not be eligible for Medicaid and CHIP under the CHIPRA state option with respect to any of the categories … set forth in the July 1, 2010 letter.
The National Immigration Law Center (NILC) issued an Immigration Issues Update, denouncing the Obama administrations’ actions and said, “Rather than building off the two significant and bold achievements this past term – federal health care reform under the Affordable Care Act and DACA – the administration has decided to exclude DACA beneficiaries from affordable health coverage now and under the Affordable Care Act.”
The NILC noted prior to the administration’s rule change, “[E]xisting federal eligibility rules would have allowed DACA individuals to be considered eligible for affordable health coverage, like any other individuals granted deferred action. Thus, in order to exclude DACA beneficiaries and treat them differently from others with deferred action, the administration quietly released the … two policy announcements on Aug. 28, 2012, both of which take effect immediately,” referring to the interim final rule and the CMA letter.
The NILC stated, as a result of these policy announcements, “DACA beneficiaries will have the same access to health care as undocumented individuals have today: very little, except emergency care, public health services, community health centers where available, and state funded health programs.”
The update provided two examples:
“A 15-year-old boy, who is in school and wants to play sports, but has asthma will remain uninsured and without a doctor to visit.
“A single, pregnant woman who becomes eligible for DACA is likely to remain without affordable and easy access to prenatal care and dental care, making it a challenge to see a regular doctor during her pregnancy to make sure her pregnancy is going well.”
According to the NILC, the policy announcement erects barriers for DACA-eligible individuals to obtain health care and “creates a slippery-slope with far-reaching implications for treatment of newly legalized immigrants at both the federal and state level.”
The NILC called it a “dangerous precedent for future federal legalization proposals to create two classes of future citizens and sanction discrimination based on immigration status.”
What the NILC fails to acknowledge is the Obama administration plainly stated the DACA does not grant the individual legal status or a path to citizenship.