The Biden Administration made an important announcement today – the Department of Health and Human Services (HHS) will soon release a proposed rule that would finally give Deferred Action for Childhood Arrivals (DACA) grantees access to health care coverage.
Under current law, DACA grantees are ineligible for Medicaid, CHIP, and Marketplace coverage even though other, similarly situated, immigrant groups are eligible for some coverage options. The problem boils down to very technical definitions of “lawfully present” and “qualified” immigrants that have needed to be updated for over a decade.
When the Department of Homeland Security (DHS) issued a proposed rule to codify the DACA program in 2021, we and many other commenters suggested DHS align the definition of “lawfully present” and treatment of people with different deferred action statuses to allow DACA grantees access to critical health coverage programs. However, in the final rule that took effect October 31, 2022, DHS said such a change was beyond the scope of its rulemaking and would have to be directed by HHS.
HHS is now picking up where DHS left off, continuing the work to preserve and fortify DACA as outlined in the January 2021 executive order, by allowing DACA grantees access to health coverage. Today’s announcement states that HHS, “will shortly propose a rule amending the definition of ‘lawful presence,’ for purposes of Medicaid and Affordable Care Act coverage, to include DACA recipients.”
We’ll have to wait for the rule to understand the scope of the proposed change, but it sounds like all DACA grantees – regardless of age or state residency – would be able to purchase coverage on the Marketplace. For those with qualifying incomes, they would also be eligible for advanced premium tax credits (APTC) and cost sharing reduction (CSR) subsidies to make such coverage more affordable.
The rules for Medicaid eligibility are more complex. Generally speaking, full scope Medicaid/CHIP coverage is only available to certain “qualified” noncitizens, many of whom must have such status for five years before becoming eligible. States have the option to cover a broader group of “lawfully present” noncitizen children and pregnant people (including people whose immigration status is considered “lawful” but not “qualified”) and without a 5-year waiting period (known as the Immigrant Children’s Health Improvement Act or the ICHIA option). About 2/3rds of states have adopted this option for children in Medicaid (35 of 51) and CHIP (23 of 34 states with separate CHIP programs). About half of states have adopted the option for pregnancy coverage in Medicaid (26 of 51) and 5 of 7 states have done so in CHIP (see KFF/CCF Table 3 for more info). Until the proposal is posted, we can’t say for sure how the Medicaid/CHIP rules may change, but DACA grantees in states that have adopted the ICHIA option are likely to become newly eligible for Medicaid/CHIP.
While this is a step in the right direction, the Medicaid/CHIP impact may be small. The youngest DACA grantees are now about 16 years old, with an average age of about 28 years. Allowing DACA teens to access Medicaid/CHIP in the states that have adopted the option for children will certainly help, but unfortunately it is not required and there isn’t even a similar option for most adults. About a third of DACA grantees are parents, and extending pregnancy coverage will help improve access to critical prenatal care as DACA grantees grow their families. But like the option for kids, the impact will be limited because it is not a requirement and does not include care before becoming pregnant or after the postpartum period.
Still, today’s announcement is welcome good news. The Biden Administration is doing what it can to expand access to health coverage while waiting on Congress to provide a pathway to citizenship and broader access to health coverage.