On June 23, 2023, TCF health care policy fellow Thomas Waldrop submitted the following public comment to the U.S. Department of Health and Human Services (HHS) in response to their notice of proposed rulemaking (NPRM), “Clarifying Eligibility for a Qualified Health Plan Through an Exchange, Advance Payments of the Premium Tax Credit, Cost-Sharing Reductions, a Basic Health Program, and for Some Medicaid and Children’s Health Insurance Programs” (file code CMS-9894-P). In his comment, Waldrop highlights how the Biden administration’s proposed revised definition of “lawfully present” would align DACA recipients with other deferred action recipients and urges HHS to finalize this rule as quickly as possible.
I am pleased to provide comments to the Centers for Medicare and Medicaid Services’ (CMS’) request for public input on the notice of proposed rulemaking (NPRM), “Clarifying Eligibility for a Qualified Health Plan Through an Exchange, Advance Payments of the Premium Tax Credit, Cost-Sharing Reductions, a Basic Health Program, and for Some Medicaid and Children’s Health Insurance Programs,” file code CMS-9894-P, on behalf of The Century Foundation.
My name is Thomas Waldrop, and I serve as a health care policy fellow at The Century Foundation, a progressive independent think tank. The Century Foundation works to create a health care system that advances health equity by supporting the right to access needed care, free of structural barriers. The team focuses on issues related to health coverage, reproductive rights and justice, maternal health equity, racial and gender disparities in health outcomes, and the intersections between health care and economic justice.
The proposed rule would provide needed relief to Deferred Action for Childhood Arrivals (DACA) recipients by allowing them to enroll in a variety of health coverage programs, in the same way that other deferred action immigrants are able. Before finalization, however, the effective date should be expedited both to allow enrollees to gain public coverage through Medicaid or marketplace coverage through a Special Enrollment Period, and to allow health insurance exchanges the opportunity to implement this rule before Open Enrollment for 2024.
Undocumented Immigrants Face Substantial Barriers to Health Coverage
Several barriers exist that prevent undocumented immigrants, including DACA recipients, from accessing high-quality, affordable health coverage in the United States. One of the most significant of these is the fact that federal dollars generally cannot be spent to provide undocumented immigrants coverage through Medicaid or CHIP. While states can extend coverage to undocumented immigrants through Medicaid via state funds and to undocumented pregnant people through CHIP, most states do not do so. Undocumented immigrants are also prohibited from enrolling in marketplace coverage under the ACA, in addition to being barred from receiving subsidies to make marketplace coverage more affordable.
As a result of these prohibitions, undocumented immigrants are significantly less likely to have health coverage than citizens, or even lawfully present immigrants. Nearly half (46 percent) of undocumented immigrants were uninsured in 2021, compared to around 25 percent of lawfully present immigrants and only 8 percent of citizens. DACA recipients are not immune to this effect, despite being permitted to work: a 2021 survey found that around one in three DACA recipients were uninsured, and other research estimates that nearly half of those eligible for DACA are uninsured.
The rule was premised on the idea that people—especially people of color—using public programs are drains on society, the same racist idea which drives the concept of “welfare queens.”
These policies are rooted in xenophobia and racism. For example, a rule proposed by the Department of Homeland Security under the Trump administration worked to expand who is considered a “public charge,” penalizing immigrants who access public benefits for which they are eligible by restricting their ability to receive permanent lawful presence. The rule was premised on the idea that people—especially people of color—using public programs are drains on society, the same racist idea which drives the concept of “welfare queens.” While this rule was rescinded by the Biden administration, its chilling effect likely still results in fewer immigrants applying for the public programs they are eligible for.
Quickly Adopting This Rule Would Reduce Those Barriers for DACA Recipients
This proposed rule would make significant progress at reducing these barriers for DACA recipients by amending the definition of “lawfully present” for the purposes of health coverage through these programs to include DACA recipients. This would bring the definition in line with other deferred action immigrants and allow them to enroll in Medicaid, CHIP, and marketplace coverage. DACA recipients are currently explicitly exempted from this status, treating them as a different form of deferred action immigrant with no rationale. Under this approach, around 580,000 DACA recipients would likely become newly eligible to enroll in marketplace plans, Basic Health Programs, Medicaid, and CHIP. Importantly, including DACA recipients in the definition of “lawfully present” for the purpose of marketplace eligibility would also make them eligible for premium and cost-sharing subsidies, as other regulations use the same definition for eligibility for both programs.
Improving access to health coverage would benefit both DACA recipients and society in general. Health coverage makes individuals less likely to rely on emergency department visits for non-urgent health issues. When these departments are used as a regular source of care, those resources are diverted from patients who have more urgent health needs and the overall cost of care increases. Expanding coverage to DACA recipients would help alleviate this trend, slowing the rise in the cost of care and promoting a more efficient health care system.
Before finalizing this rule, however, CMS should amend the proposed rule to have an earlier effective date than the proposed November 1, 2023. While the intent to align this regulation with open enrollment for 2024, delaying the rule until then would likely result in DACA recipients unnecessarily going without coverage. Both the public and marketplace coverage goals would be better served under an earlier effective date.
Expanding coverage to DACA recipients would help alleviate this trend, slowing the rise in the cost of care and promoting a more efficient health care system.
First, around 40 percent of DACA recipients make less than 200 percent of the federal poverty line. Many of these individuals will likely be eligible for Medicaid, CHIP, or Basic Health Plan enrollment under the proposed rule; delaying the effective date until November will result in these lower-income recipients being denied coverage. Additionally, as the proposed rule notes, newly eligible DACA recipients would be able to enroll in marketplace coverage through a Special Enrollment Period under an early enrollment date. While the administration’s goal of ensuring that outreach and enrollment programs during Open Enrollment are as effective as possible is laudable, these programs will still operate if this rule were effective sooner, and exchanges would be able to better prepare for the newly eligible population under an earlier effective date. An earlier effective date would also allow marketplaces to coordinate their outreach with ongoing efforts to prevent loss of coverage as the pandemic-era continuous coverage requirement unwinds.
Improving Access to Coverage for Immigrants Is a Necessary Step toward Health Equity
Universal coverage is an essential first step toward achieving true health equity. Unfortunately, in the United States, undocumented immigrants face many barriers toward achieving affordable, high-quality coverage. DACA recipients’ disparate treatment from other types of deferred action immigrants represents one of these barriers, and this proposed rule would end that disparity in access to health coverage. It would also work to reduce the chilling effect from previous immigration rules, encouraging
However, in order to maximize the benefit that this regulation has on DACA recipients, CMS should expedite its effective date before finalizing this rule. Doing so would allow lower-income recipients to enroll in Medicaid, CHIP, or Basic Health Plan coverage more quickly, promoting coverage among the most vulnerable of these immigrants. Similarly, an earlier effective date would allow marketplaces to implement this rule earlier than the Open Enrollment Period for 2024, as well as allowing DACA recipients to enroll through a Special Enrollment Period. Delaying access to coverage until 2024 is out of line with the goals of this proposed rule and should be amended. At a time when significant coverage losses are possible, CMS should work to promote enrollment, not delay it.