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
Proposed rule.
CFR Part: "42 CFR Parts 435, 457, and 600"; "45 CFR Parts 152 and 155"
RIN Number: "RIN 0938-AV23"
Citation: "88 FR 25313"
Document Number: "CMS-9894-P"
Page Number: "25313"
"Proposed Rules"
Agency: "
SUMMARY: This proposed rule would make several clarifications and update the definitions currently used to determine whether a consumer is eligible to enroll in a Qualified Health Plan (QHP) through an Exchange; a Basic Health Program (BHP), in States that elect to operate a BHP; and for some State Medicaid and Children's Health Insurance Programs (CHIPs).
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I. Background The Patient Protection and Affordable Care Act (ACA) /1/ generally /2/ requires that in order to enroll in a Qualified Health Plan (QHP) through an Exchange, an individual must be either a citizen or national of
FOOTNOTE 1 The Patient Protection and Affordable Care Act (Pub. L. 111-148) was enacted on
FOOTNOTE 2 States may pursue a waiver under section 1332 of the Affordable Care Act (ACA) that could waive the "lawfully present" framework in section 1312(f)(3) of the ACA. See 42 U.S.C. 18052(a)(2)(B). There is currently one State (
FOOTNOTE 3 42 U.S.C. 18032(f)(3). END FOOTNOTE
FOOTNOTE 4 26 U.S.C. 36B(e)(2). END FOOTNOTE
FOOTNOTE 5 42 U.S.C. 18082(d). END FOOTNOTE
FOOTNOTE 6 42 U.S.C. 18071(e). END FOOTNOTE
FOOTNOTE 7 42 U.S.C. 18051(e). END FOOTNOTE
FOOTNOTE 8 42 U.S.C. 18001(d)(1). END FOOTNOTE
FOOTNOTE 9 42 U.S.C. 18032(f)(3), 42 U.S.C. 18071(e)(2). END FOOTNOTE
FOOTNOTE 10 42 U.S.C. 18081(c)(2)(B). END FOOTNOTE
As such, consistent with its statutory authority under the ACA and in order to facilitate the operation of its programs, CMS issued regulations in 2010 to define "lawfully present" for the purposes of determining eligibility for PCIP (75 FR 45013); in 2012 for purposes of determining eligibility to enroll in a QHP through an Exchange by cross-referencing the existing PCIP definition (77 FR 18309); and in 2014 to cross-reference the existing definition for purposes of determining eligibility to enroll in a BHP (79 FR 14111). In this proposed rule, we propose to amend these three regulations in order to update the definition of "lawfully present" at 45 CFR 152.2, which is used to determine whether a consumer is eligible to enroll in a QHP through an Exchange and for a BHP. Exchange regulations apply this definition to the eligibility standards for APTC and CSRs by requiring an applicant to be eligible to enroll in a QHP to be eligible for APTC and CSRs. /11/ Accordingly, in this proposed rule, when we refer to the regulatory definition of "lawfully present" used to determine whether a consumer is eligible to enroll in a QHP through an Exchange, we also are referring to the regulatory definition used to determine whether a consumer is eligible for APTC and CSRs.
FOOTNOTE 11 45 CFR 155.305(f)(1)(ii)(A) and (g)(1)(i)(A). END FOOTNOTE
We propose a similar definition of "lawfully present" applicable to eligibility for Medicaid and
FOOTNOTE 12
FOOTNOTE 13
We propose several modifications to the definition of "lawfully present" currently articulated at 45 CFR 152.2 and described in the SHO letters for Medicaid and CHIP. First, we propose to remove an exception that excludes Deferred Action for Childhood Arrivals (DACA) recipients from the definitions of "lawfully present" used to determine eligibility to enroll in a QHP through an Exchange, a BHP, or Medicaid and CHIP under the CHIPRA 214 option. If this proposal is finalized, DACA recipients would be considered lawfully present for purposes of eligibility for these insurance affordability programs /14/ based on a grant of deferred action, just like other similarly situated noncitizens who are granted deferred action. We also propose to incorporate additional technical changes into the proposed "lawfully present" definition at 45 CFR 152.2, as well as to the proposed "lawfully present" definition at 42 CFR 435.4.
FOOTNOTE 14 See 45 CFR 155.300(a) and 42 CFR 435.4. END FOOTNOTE
These proposed definitions are solely for the purposes of determining eligibility for specific
II. Provisions of the Proposed Regulations
A. Proposed Effective Date
CMS's target effective date for this rule is
FOOTNOTE 15 Pursuant to 42 CFR 600.320(d), a State operating a BHP must either offer open enrollment periods pursuant Exchange regulations at 45 CFR 155.410 or follow Medicaid's continuous enrollment process. The two States that currently operate a BHP,
We seek comment on the feasibility of this target effective date and whether to consider a different target effective date when we finalize this proposed rule. CMS is committed to working with State agencies and providing technical assistance regarding implementation of these proposed changes, if finalized. At the same time, CMS understands that State Medicaid and CHIP agencies are experiencing a significant increase in workload following the end of the Medicaid continuous enrollment condition established under section 6008(b)(3) of the Families First Coronavirus Response Act, as amended by section 5131 of the Consolidated Appropriations Act, 2023, and we seek comment about the impact of this workload or any other operational barriers to implementation for State Exchanges, and State Medicaid, CHIP, and BHP agencies. While CMS believes that there are advantages to implementing these provisions, if finalized, on the proposed
B. Pre-Existing Condition Insurance Plan Program (45 CFR 152.2)
We propose to remove the definition of "lawfully present" currently at 45 CFR 152.2 and insert the proposed definition of "lawfully present" at 45 CFR 155.20. The regulations at 45 CFR 152.2 apply to the PCIP program, which ended in 2014. Further, we are proposing to update BHP regulations at 42 CFR 600.5 that currently cross-reference 45 CFR 152.2 to instead cross-reference the definition proposed in this rule at 45 CFR 155.20. While we do not expect the definition at 45 CFR 152.2 to be used for any current CMS programs, we are proposing to modify the regulation at 45 CFR 152.2 to cross-reference Exchange regulations at 45 CFR 155.20 to help ensure alignment of definitions for other programs. We seek comment on whether, alternatively, we should strike the definition of "lawfully present" currently at 45 CFR 152.2 instead of replacing it with a cross-reference to 45 CFR 155.20.
C. Exchange Establishment Standards and Other Related Standards Under the ACA (45 CFR 155.20)
1. DACA Recipients
The ACA generally requires that in order to enroll in a QHP through an Exchange, an individual must be a "citizen or national of
FOOTNOTE 16 42 U.S.C. 18032(f)(3). END FOOTNOTE
FOOTNOTE 17 26 U.S.C. 36B(e)(2), 42 U.S.C. 18082(d), 42 U.S.C. 18071(e). END FOOTNOTE
FOOTNOTE 18 42 U.S.C. 18001(d)(1). END FOOTNOTE
In a recent rulemaking,
CMS first established a regulatory definition of "lawfully present" for purposes of the PCIP program in 2010 (75 FR 45013). In that 2010 rulemaking, CMS adopted the definition of "lawfully present" already established for Medicaid and CHIP eligibility for children and pregnant individuals under the CHIPRA 214 option articulated in SHO #10-006 (hereinafter "2010 SHO") to have the maximum alignment possible across CMS programs establishing eligibility for lawfully present individuals. The definition of "lawfully present" articulated in the 2010 SHO was also informed by
In
FOOTNOTE 19
FOOTNOTE 20
In
HHS has now reconsidered its position, and is proposing to change its interpretation of the statutory phrase "lawfully present" to treat DACA recipients the same as other deferred action recipients as described in current regulations in paragraph (4)(iv) of the definition at 45 CFR 152.2. Under the proposed rule, DACA recipients would be considered lawfully present to the same extent as other deferred action recipients for purposes of the ACA at 42 U.S.C. 18032(f)(3) for the Exchange, and 42 U.S.C. 18051(e) for a BHP. To align the eligibility standards across insurance affordability programs for noncitizens considered "lawfully present," we are also proposing to establish rules in the Medicaid and CHIP programs to recognize that DACA recipients are "lawfully residing" in
Since HHS first interpreted "lawfully present" to exclude DACA recipients in 2012, new information regarding DACA recipients' access to health insurance coverage has emerged. While a 2021 survey of DACA recipients found that DACA may facilitate access to health insurance through employer-based plans, 34 percent of DACA recipient respondents reported that they were not covered by health insurance. /21/ Individuals without health insurance are less likely to receive preventative or routine health screenings, and may delay necessary medical care, incurring high costs and debts. /22/ The 2021 survey of DACA recipients also found that 47 percent of respondents attested to having experienced a delay in medical care due to their immigration status and 67 percent of respondents said that they or a family member were unable to pay medical bills or expenses. /23/ The COVID-19 public health emergency has also highlighted the need for this population to have access to high quality, affordable health coverage. According to a demographic estimate by the
FOOTNOTE 21
FOOTNOTE 22
FOOTNOTE 23
FOOTNOTE 24
FOOTNOTE 25
FOOTNOTE 26 Nguyen, L.H., Drew, D.A., Graham, M.S., Joshi, A.D., Guo, C.-G., Ma, W., Mehta, R.S., Warner, E.T., Sikavi, D.R., Lo, C.-H., Kwon, S., Song, M., Mucci, L.A., Stampfer, M.J., Willett, W.C., Eliassen, A.H., Hart, J.E., Chavarro, J.E., Rich-Edwards, J.W., . . . Zhang, F. (2020). Risk of COVID-19 among front-line health-care workers and the general community: A prospective cohort study.
FOOTNOTE 27 Barrett, E.S., Horton, D.B., Roy, J., Gennaro, M.L., Brooks, A., Tischfield, J., Greenberg, P., Andrews, T., Jagpal, S., Reilly, N., Carson, J.L., Blaser, M.J., & Panettieri, R.A. (2020). Prevalence of SARS-COV-2 infection in previously undiagnosed health care workers in
FOOTNOTE 28 Dizioli, Allan and Pinheiro, Roberto. (2016).
By including DACA recipients in the definition of "lawfully present," this proposed rule is aligned with the goals of the ACA--specifically, to lower the number of people who are uninsured in
FOOTNOTE 29 Key Facts on Individuals Eligible for the Deferred Action for Childhood Arrivals (DACA) Program.
In previously excluding DACA recipients from the definition of "lawfully present," CMS had posited that the broadly accepted conventions of lawful presence should be set aside if the program or status in question was not established with the explicit objective of expanding access to health insurance affordability programs. However, given the broad aims of the ACA to increase access to health coverage, we now assess that this rationale for excluding certain noncitizen groups from such coverage was not only not statutorily mandated, it failed to best effectuate congressional intent in the ACA. Additionally, HHS previously reasoned that considering DACA recipients eligible for insurance affordability programs was inconsistent with the limited relief that the DACA policy was intended to afford. However, on further review and consideration, it is clear that the DACA policy was intended to provide recipients with the stability and assurance that would allow them to obtain education and lawful employment, and integrate as productive members of society. Extending health benefits to these individuals is consistent with those fundamental goals of DACA. It is also evident that there was no statutory mandate to distinguish between recipients of deferred action under the DACA policy and other deferred action recipients.
The proposed change to no longer exclude DACA recipients from CMS definitions of "lawfully present" aligns with both the longstanding
FOOTNOTE 30 The
Following the issuance of this memorandum,
FOOTNOTE 31 Current court orders prohibit
We are aware that
In light of
2. Other Proposed Changes to the "Lawfully Present" Definition
In addition to including DACA recipients in the definition of "lawfully present" for the purposes of eligibility for health insurance coverage through an Exchange, a BHP, and for eligibility under the CHIPRA 214 option in Medicaid and CHIP, CMS is proposing several other clarifications and technical adjustments to the definition proposed at 45 CFR 155.20, as compared to the definition currently at 45 CFR 152.2.
First, in paragraph (1) of the proposed definition of "lawfully present" at 45 CFR 155.20, we propose some revisions as compared to paragraph (1) of the definition currently at 45 CFR 152.2. In the current regulations at 45 CFR 152.2, paragraph (1) provides that qualified aliens, as defined in the Personal Responsibility and Work Opportunity Act (PRWORA) at 8 U.S.C. 1641, are lawfully present. Throughout the proposed definition at 45 CFR 155.20, we propose a nomenclature change to use the term "noncitizen" instead of "alien" when appropriate to align with more modern terminology. Additionally, in paragraph (1) of the proposed definition at 45 CFR 155.20, we propose to cite the definition of "qualified noncitizen" at 42 CFR 435.4, rather than the definition of "qualified alien" in PRWORA. The definition of "qualified noncitizen" currently at 42 CFR 435.4 includes the term "qualified alien" as defined at 8 U.S.C. 1641(b) and (c). We note that for purposes of Exchange coverage and APTC eligibility, citizens of the Freely Associated States (FAS) living in
Further, in the current definition of "lawfully present" at 45 CFR 152.2, CMS included in paragraph (2), a noncitizen in a nonimmigrant status who has not violated the terms of the status under which they were admitted or the status to which they have changed since their admission. In this rule, we propose in paragraph (2) of 45 CFR 155.20, modifying this language such that a noncitizen in a valid nonimmigrant status would be deemed lawfully present. Determining whether an individual has violated the terms of their status is a responsibility of
Exchanges would continue to submit requests to verify an applicant's nonimmigrant status through a data match with
We also propose a minor technical change in paragraph (4) of the proposed definition of "lawfully present" at 45 CFR 155.20, as compared to the definition of "lawfully present" currently in paragraph (4)(i) at 45 CFR 152.2, to refer to individuals who are "granted," rather than "currently in" temporary resident status, as this language more accurately refers to how this status is conferred. We similarly propose a minor technical change in paragraph (5) of the proposed definition of "lawfully present" at 45 CFR 155.20, as compared to the definition of "lawfully present" currently in paragraph (4)(ii) at 45 CFR 152.2, to refer to individuals who are "granted," rather than "currently under" Temporary Protected Status (TPS), as this language more accurately refers to how
Paragraph (4)(iii) of the current definition at 45 CFR 152.2 provides that noncitizens who have been granted employment authorization under 8 CFR 274a.12(c)(9), (10), (16), (18), (20), (22), or (24) are considered lawfully present. In paragraph (6) of the proposed definition of "lawfully present" at 45 CFR 155.20, we propose to cross reference 8 CFR 274a.12(c) in its entirety in order to simplify the regulatory definition and verification process. We are proposing this modification to the regulatory text to include all noncitizens who have been granted an Employment Authorization Document (EAD) under 8 CFR 274a.12(c), as
This change to consider "lawfully present" all individuals with an EAD granted under 8 CFR 274a.12(c) is beneficial because Exchanges can usually verify that an individual has been granted an EAD under 8 CFR 274a.12(c) in real time through SAVE, at the initial step of the verification process. Thus, the proposed revision to the definition would help to streamline and expedite verification of status for individuals who have been granted an EAD under this regulatory provision.
Further, to reduce duplication and confusion, we propose to remove the clause currently in paragraph (4)(ii) of the defintion in 45 CFR 152.2, referring to "pending applicants for TPS who have been granted employment authorization," as these individuals would be covered under proposed paragraph (6) of the definition of "lawfully present" at 45 CFR 155.20.
We propose a minor technical modification to the citation in paragraph (7) of the definition of "lawfully present" to more accurately describe Family Unity beneficiaries. Family Unity beneficiaries are individuals who entered
FOOTNOTE 32 See USCIS Form I-817 (Application for Family Unity Benefits) and Instructions available at https://www.uscis.gov/sites/default/files/document/forms/i-817.pdf. https://www.uscis.gov/sites/default/files/document/forms/i-817instr.pdf. END FOOTNOTE
As discussed previously, in paragraph (9) of the proposed definition of "lawfully present" at 45 CFR 155.20, we propose an additional clause clarifying that all recipients of deferred action, including DACA recipients, are lawfully present for purposes of 45 CFR part 155, which concerns eligibility to enroll in a QHP through an Exchange, and by cross-reference at 42 CFR 600.5, eligibility for a BHP.
In paragraph (10) of the proposed definition of "lawfully present" at 45 CFR 155.20, we propose to clarify that individuals with a pending application for adjustment of status are not required to have an approved immigrant visa petition in order to be considered lawfully present. We propose this change because in some circumstances,
Paragraph (5) of the current definition of "lawfully present" pertains to applicants for asylum, withholding of removal, or relief under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (hereinafter "Convention Against Torture"). In this rule, we are proposing to move this text to paragraph (12) of the definition of "lawfully present" at 45 CFR 155.20, and remove the portion of the text pertaining to noncitizens age 14 and older who have been granted employment authorization, as these individuals are noncitizens granted employment authorization under 8 CFR 274a.12(c)(8), and as such, are included in paragraph (6) of our proposed definition of "lawfully present" at 45 CFR 155.20. This proposed change is intended to reduce duplication and will not have a substantive impact on the definition of "lawfully present."
We further propose to remove the requirement in the current definition that individuals under age 14 who have filed an application for asylum, withholding of removal, or relief under the Convention Against Torture have had their application pending for 180 days to be deemed lawfully present. We originally included this 180-day waiting period for children under 14 in our definition of "lawfully present" to align with the statutory waiting period before applicants for asylum and other related forms of protection can be granted an EAD. We now propose to change this so that children under 14 are considered lawfully present without linking their eligibility to the 180-day waiting period for an EAD. We note that children under age 14 are generally are not permitted to work in
FOOTNOTE 33 See 29 CFR 570.2. END FOOTNOTE
FOOTNOTE 34 See 8 U.S.C. 1101(b)(2) (definition of "parent"). END FOOTNOTE
In paragraph (13) of the proposed definition of "lawfully present" at 45 CFR 155.20, we propose to include individuals with an approved petition for Special Immigrant Juvenile (SIJ) classification. The definition currently at paragraph (7) of 45 CFR 152.2 refers imprecisely to noncitizens with a "pending application for [SIJ] status" and therefore unintentionally excludes from the definition of "lawfully present," children whose petitions for SIJ classification have been approved but who cannot yet apply for adjustment of status due to lack of an available visa number. /35/ Due to high demand for visas in this category, for many applicants it can take several years for a visa number to become available. SIJs are an extremely vulnerable population and as such, we propose to close this unintentional gap so that all children with an approved petition for SIJ classification are deemed lawfully present.
FOOTNOTE 35 Moreover, SIJ classification is not itself a status and should not be described as such in the regulation. The current regulatory reference to a "pending application for SIJ status" has been construed to encompass noncitizens with a pending SIJ petition. It is not limited to noncitizens with a pending application for adjustment of status based on an approved SIJ petition. Therefore, the proposed regulatory change does not modify the current practice of determining lawful presence for noncitizens in the SIJ process based on a pending petition, rather than (as with other categories of noncitizens seeking (LPR) status) based on a pending application. Rather, the modification we propose in this rule clarifies the language so that both pending and approved SIJ petitions convey lawful presence for the purposes of eligibility for health insurance coverage through an Exchange, a BHP, and for eligibility under the CHIPRA 214 option in Medicaid and CHIP, whether or not an individual with an approved SIJ petition has an adjustment application pending. END FOOTNOTE
In
We also propose a nomenclature change to the definitions currently at 45 CFR 152.2 to use the term "noncitizen," rather than "alien" in the definition proposed at 45 CFR 155.20 to align with more modern terminology.
3. Severability
We propose to add a new section at 45 CFR 155.30 addressing the severability of the provisions proposed in this rule. In the event that any portion of a final rule is declared invalid, CMS intends that the various provisions of the definition of "lawfully present" be severable, and that the changes we are proposing with respect to the definitions of "lawfully present" in 45 CFR 155.20 would continue even if some of the proposed changes to any individual category are found invalid. The severability of these provisions is discussed in detail in section III. of this proposed rule.
D. Eligibility in States, the
1. Lawfully Residing and Lawfully Present Definitions
Section 214 of CHIPRA is currently codified at sections 1903(v)(4)(A) and 2107(e)(1)(O) of the Act to allow States and territories an option to provide Medicaid and CHIP benefits to children under age 21 (under age 19 for CHIP) and pregnant individuals who are "lawfully residing" in
FOOTNOTE 36 42 U.S.C. 1396a(e)(16); 42 U.S.C. 1397gg(e)(1)(J). See SHO #21-0007, "Improving Maternal Health and Extending Postpartum Coverage in Medicaid and the
As discussed previously in this rule, on
FOOTNOTE 37
On
FOOTNOTE 38
FOOTNOTE 39
We are proposing to define the terms "lawfully present" and "lawfully residing" at 42 CFR 435.4. For the same reasons as the proposed changes at 45 CFR 155.20, described in section II.C.1. of this proposed rule, and to ensure alignment across CMS programs, the proposed definition of "lawfully present" would remove the exclusion of DACA recipients and clarify that they are included in the broader category of those granted deferred action as lawfully residing in
FOOTNOTE 40 The postpartum period for pregnant individuals includes the 60-day period described in sections 1903(v)(4)(A)(i) and 2107(e)(1)(O) of the Act or the extended 12-month period described in sections 1902(e)(16) and 2107(e)(1)(J) of the Act in States that have elected that option. END FOOTNOTE
FOOTNOTE 41 To date, 35 States, the
Further, as discussed in section II.C.2. of this proposed rule regarding modifications to the lawfully present definition proposed in 45 CFR 155.20, we propose in 42 CFR 435.4 each of the same clarifications and minor technical changes. The proposed definition of "lawfully present" in 42 CFR 435.4 would mirror the current definition of "lawfully present" as defined in the 2010 SHO letter with the clarification and minor technical changes described previously in this proposed rule. We are proposing these rules to align with the proposed definition of "lawfully present" across programs and for the same rationales described in section II.C.2. of this proposed rule.
The "lawfully present" definition proposed at 42 CFR 435.4 is identical to the definition proposed at 45 CFR 155.20, except for two additional paragraphs related to the territories. Consistent with the 2010 SHO definition of "lawfully present," paragraph (14) of the proposed definition of "lawfully present" at 42 CFR 435.4 provides that individuals who are lawfully present in
We also propose a nomenclature change to the definitions of "citizenship," "noncitizen," and "qualified noncitizen" in 42 CFR 435.4 in order to remove the hyphen in the term "non-citizen" and use the term "noncitizen" throughout those definitions to align with terminology used by
2. Severability
We propose to add a new section at 42 CFR 435.12 addressing the severability of the provisions proposed in this rule. In the event that any portion of a final rule might be declared invalid, CMS intends that the various provisions of the definition of "lawfully present" be severable, and that the changes we are proposing with respect to the definitions of "lawfully present" in
3. Defining Qualified Noncitizen
As previously discussed, the proposed definition of "lawfully present" includes an individual who is a "qualified noncitizen". Under our current Medicaid regulations, a "qualified non-citizen" is defined at 42 CFR 435.4 and includes an individual described in 8 U.S.C. 1641(b) and (c). The definition is currently used for determining Medicaid eligibility under our regulation at 42 CFR 435.406, and the definition would also be important for determining eligibility of individuals who are seeking CHIPRA section 214 benefits. We are considering whether the current definition of qualified noncitizen at 42 CFR 435.4 should be modified to provide greater clarity and increase transparency for the public. Specifically, we are considering whether the definition should be modified to expressly provide all of the categories of noncitizens covered by 8 U.S.C. 1641(b) and (c), as well as additional categories of noncitizens that Medicaid agencies are required to cover as a result of subsequently enacted
legislation that was not codified in 8 U.S.C. 1641(b) or (c). For example, Federal law requires certain populations to be treated as "refugees." /42/ Additional categories of noncitizens treated as "refugees" under Federal law that could be specifically described in the regulation include, for example, victims of trafficking and certain Afghans and Ukrainians. /43/ We are considering whether to revise the definition of qualified noncitizen in 42 CFR 435.4 to account for these and other noncitizens for clarity and transparency.
FOOTNOTE 42 Refugees are listed as a category of noncitizens who are "qualified aliens" at 8 U.S.C. 1641(b)(3). END FOOTNOTE
FOOTNOTE 43 To date, these other Federal laws include the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7105(b)), relating to certain victims of trafficking; section 602(b)(8) of the Afghan Allies Protection Act of 2009, Public Law 111-8 (8 U.S.C. 1101 note), relating to certain Afghan special immigrants; section 1244(g) of the Refugee Crisis in
We note that there is at least one difference in how the term "qualified noncitizen" applies to Medicaid compared to the other programs discussed in this proposed rule. Generally, although the definition of "qualified alien" in 8 U.S.C. 1641 applies to all of the programs, COFA migrants are only considered "qualified aliens" for purposes of the Medicaid program. The Consolidated Appropriations Act, 2021 added individuals who lawfully reside in
FOOTNOTE 44 Div. CC, Title II, sec. 208, Public Law 116-260. END FOOTNOTE
Since CHIP is not included as a designated Federal program at 8 U.S.C. 1612(b)(3)(C), we acknowledge that COFA migrants would need to be excluded from the definition of qualified noncitizen for separate CHIP through an exception at 42 CFR 457.320(c). However, we also note that under the definition of "lawfully present," COFA migrants with a valid nonimmigrant status, as defined in 8 U.S.C. 1101(a)(15) or otherwise under the immigration laws (as defined in 8 U.S.C. 1101(a)(17)), may be eligible for CHIP in States that have elected the CHIPRA 214 option, if they meet all other eligibility requirements within the State. Similarly, enrollment in a QHP through an Exchange and BHP enrollment are not included as designated Federal programs, and as such, COFA migrants are not considered qualified noncitizens for purposes of eligibility for Exchange coverage, APTC, cost sharing reductions, or BHP eligibility. However, COFA migrants would generally be considered lawfully present under paragraph (2) of the proposed "lawfully present" definition at 45 CFR 152.2 regarding nonimmigrants, as they are considered lawfully present under existing regulations in paragraph (2) of the defintion at 45 CFR 152.2 today, and thus would continue to be eligible for Exchange coverage in a QHP, APTC, CSRs, and BHP, if they meet all other eligibility requirements for those programs.
Because noncitizens who are treated as refugees for purposes of Medicaid eligibility are also treated as refugees for purposes of CHIP eligibility, these categories of noncitizens (discussed previously in this proposed rule) are also being considered for the definition of qualified noncitizen for purposes of CHIP. We seek public comment on our consideration of modifying the definition of qualified noncitizen in 42 CFR 435.4 in this manner.
E. Administration, Eligibility, Essential Health Benefits, Performance Standards, Service Delivery Requirements, Premium and Cost Sharing, Allotments, and Reconciliation (42 CFR Part 600)
Section 1331 of the ACA provides States with an option to establish a BHP. /45/ In States that elect to implement a BHP, the program makes affordable health benefits coverage available for lawfully present individuals under age 65 with household incomes between 133 percent and 200 percent of the Federal poverty level (FPL) who are not otherwise eligible for Medicaid, CHIP, or affordable employer-sponsored coverage, or for individuals whose income is below these levels but are lawfully present noncitizens ineligible for Medicaid. For those States that have expanded Medicaid coverage under section 1902(a)(10)(A)(i)(VIII) of the Act, the lower income threshold for BHP eligibility is effectively 138 percent of the FPL due to the application of a required 5 percent income disregard in determining the upper limits of Medicaid income eligibility (section 1902(e)(14)(I) of the Act). Currently, there are two States that operate a BHP--Minnesota and
FOOTNOTE 45 See 42 U.S.C. 18051. Also see 42 CFR part 600. END FOOTNOTE
FOOTNOTE 46 Minnesota's program began
In this rule, we propose conforming amendments to the BHP regulations to remove the current cross-reference to 45 CFR 152.2 in the definition of "lawfully present" at 42 CFR 600.5. We also propose to amend the definition of "lawfully present" in the BHP regulations at 42 CFR 600.5 to instead cross-reference the definition of "lawfully present" proposed in this rule at 45 CFR 155.20. This proposal, if finalized, would result in DACA recipients being considered lawfully present for purposes of eligibility to enroll in a BHP in a State that elects to implement such a program, if otherwise eligible. Also, if the proposals are finalized, this modification would ensure that the definition of "lawfully present" used to determine eligibility for coverage under a BHP is aligned with the definition of "lawfully present" used for the other insurance affordability programs. This alignment is important because it would help ensure a State could provide continuity of care for BHP enrollees who may have been previously eligible for a QHP or Medicaid. Additionally, pursuant to 42 CFR 600.310(a), the States use the single streamlined application that is used to determine eligibility for a QHP in an Exchange as well as Medicaid and CHIP. An aligned definition of "lawfully present" would reduce administrative burdens for the State as well as the potential for incorrect eligibility determinations.
III. Severability
As described in the background section of this proposed rule, the ACA generally /47/ requires that in order to enroll in a QHP through an Exchange, an individual must be either a citizen or national of
FOOTNOTE 47 States may pursue a waiver under section 1332 of the Affordable Care Act (ACA) that could waive the "lawfully present" framework in section 1312(f)(3) of the ACA. See 42 U.S.C. 18052(a)(2)(B). There is currently one State (
FOOTNOTE 48 42 U.S.C. 18032(f)(3). END FOOTNOTE
FOOTNOTE 49 26 U.S.C. 36B(e)(2). END FOOTNOTE
FOOTNOTE 50 42 U.S.C. 18082(d). END FOOTNOTE
FOOTNOTE 51 42 U.S.C. 18071(e). END FOOTNOTE
FOOTNOTE 52 42 U.S.C. 18051(e). END FOOTNOTE
FOOTNOTE 53 42 U.S.C. 18032(f)(3), 42 U.S.C. 18071(e)(2). END FOOTNOTE
FOOTNOTE 54 42 U.S.C. 18081(c)(2)(B). END FOOTNOTE
FOOTNOTE 55
Since 1996, when the
Similarly, we have proposed technical changes to the definition of "lawfully present" for the purposes of eligibility for insurance affordability programs, and we believe those changes are also well-supported in law and practice and should be upheld in any legal challenge. CMS also believes that its exercise of its authority reflects sound policy.
However, in the event that any portion of a final rule is declared invalid, CMS intends that the other proposed changes to the definition of "lawfully present" and within the changes to the regulations defining qualified noncitizens would be severable. For example, if a court were to find unlawful the inclusion of one provision in the definition of "lawfully present," for purposes of eligibility for any health insurance affordability program, CMS intends the remaining features proposed in sections II.C.1., II.C.2., II.D.1., and II.D.3. of this proposed rule to stand. Likewise, CMS intends that if one provision of the changes to the definition of "lawfully present" is struck down, that other provisions within that regulation be severable to the extent possible. For example, if one of the provisions discussed in section II.C.2. (Other Proposed Changes to the Definition of Lawfully Present) of this proposed rule is found invalid, CMS intends that the other provisions discussed in that section be severable.
Additionally, a final rule that includes only some provisions of this proposed rule would have significant advantages and be worthwhile in itself. For example, a rule consisting only of the technical and clarifying changes proposed in section II.C.2. of this proposed rule, applied through cross-reference to Exchanges, BHPs, and Medicaid and CHIP in States that elect the CHIPRA 214 option, would allow CMS to more effectively verify lawful presence of noncitizens for purposes of eligibility for health insurance affordability programs. Similarly, a rule consisting only of the changes proposed in section II.D.3. of this rule, would increase transparency for consumers and State Medicaid and CHIP agencies. A rule consisting solely of the changes proposed in section II.C.1. of this proposed rule would have significant benefits because it would increase access to health coverage for DACA recipients. These reasons alone would justify the continued implementation of these policies.
IV. Collection of Information Requirements
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), we are required to provide 60-day notice in the
* The need for the information collection and its usefulness in carrying out the proper functions of our agency.
* The accuracy of our estimate of the information collection burden.
* The quality, utility, and clarity of the information to be collected.
* Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
We are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements. Comments, if received, will be responded to within the subsequent final rule.
A. Wage Estimates
To derive average costs, we used data from the
Table 1-National Occupational Employment and Wage Estimates
Occupation title Occupational Mean Fringe benefits Adjusted
code hourly and other hourly wage
wage indirect costs ( $/hr)
( $/hr) ( $/hr)
Computer Programmer 15-1251 46.46 46.46 92.92
Database and Network Administrator & 15-1240 49.25 49.25 98.50
Architect
Eligibility Interviewers, Govt Programs 43-4061 23.35 23.35 46.70
For States and the private sector, employee hourly wage estimates have been adjusted by a factor of 100 percent. This is necessarily a rough adjustment, both because fringe benefits and other indirect costs vary significantly across employers, and because methods of estimating these costs vary widely across studies. Nonetheless, there is no practical alternative, and we believe that doubling the hourly wage to estimate total cost is a reasonably accurate estimation method.
We adopt an hourly value of time based on after-tax wages to quantify the opportunity cost of changes in time use for unpaid activities. This approach matches the default assumptions for valuing changes in time use for individuals undertaking administrative and other tasks on their own time, which are outlined in an Assistant Secretary for Planning and Evaluation (ASPE) report on "Valuing Time in
FOOTNOTE 56
FOOTNOTE 57
B. Adjustment to State Cost Estimates
To estimate the financial burden on States pertaining to Medicaid and CHIP information collection changes, it was important to consider the Federal Government's contribution to the cost of administering the Medicaid program. The Federal Government provides funding based on a Federal medical assistance percentage (FMAP) that is established for each State, based on the per capita income in the State as compared to the national average. FMAPs for care and services range from a minimum of 50 percent in States with higher per capita incomes to a maximum of 83 percent in States with lower per capita incomes. For Medicaid, all States receive a 50 percent matching rate for administrative activities. States also receive higher Federal matching rates for certain administrative activities such as systems improvements, redesign, or operations. For CHIP, States can claim enhanced FMAP for administrative activities up to 10 percent of the State's total computable expenditures within the State's fiscal year allotment. As such, and taking into account the Federal contribution to the costs of administering the Medicaid and CHIP programs for purposes of estimating State burden with respect to collection of information, we elected to use the higher end estimate that the States would contribute 50 percent of the costs, even though the State burden may be much smaller, especially for CHIP administrative activities.
Financial burden pertaining to BHP and State Exchange information collection changes is covered entirely by States, as discussed further in sections IV.C.2. through IV.C.4. of this proposed rule.
C. Proposed Information Collection Requirements (ICRs)
1. ICRs Regarding the CHIPRA 214 Option (42 CFR 435.4 and 457.320(c))
The following proposed changes will be submitted to OMB for review under OMB control number 0938-1147 (CMS-10410) regarding Medicaid and CHIP eligibility.
As discussed previously, the changes proposed to the definition of "lawfully present" would impact eligibility for Medicaid and CHIP in States that have elected the CHIPRA 214 option. This proposal would impact the 35 States, the
FOOTNOTE 58 As of
We estimate that it would take each State 100 hours to develop and code the changes to its Medicaid or CHIP eligibility systems to correctly evaluate and verify eligibility under the revised definition of "lawfully present" to include DACA recipients and certain other limited groups of noncitizens in the CHIPRA 214 group, as outlined in section II.C.2. of this proposed rule. Of those 100 hours, we estimate it would take a database and network administrator and architect 25 hours at
These proposed requirements, if finalized, would impose additional costs on States to process the applications for individuals impacted by the proposals in this rule. Those impacts are accounted for under OMB control number 0938-1191 (Data Collection to Support Eligibility Determinations for Insurance Affordability Programs and Enrollment through Health Insurance Marketplaces, Medicaid and Children's Health Insurance Program Agencies (CMS-10440)), discussed in section IV.C.3. of this proposed rule, which pertains to the streamlined application.
2. ICRs Regarding the BHP (42 CFR 600.5)
The following proposed changes will be submitted to OMB for review under OMB control number 0938-1218 (CMS-10510).
The impact of this change is with regards to the two States with BHPs--Minnesota and
FOOTNOTE 59 Minnesota's program began
Of those 100 hours, we estimate it would take a database and network administrator and architect 25 hours at
These proposed requirements, if finalized, would impose additional costs on States to process the applications for individuals impacted by the proposals in this rule. Those impacts are accounted for under OMB control number 0938-1191 (Data Collection to Support Eligibility Determinations for Insurance Affordability Programs and Enrollment through Health Insurance Marketplaces, Medicaid and Children's Health Insurance Program Agencies (CMS-10440)), discussed in section IV.C.3. of this proposed rule, which pertains to the streamlined application.
3. ICRs Regarding the Exchanges and Processing Streamlined Applications (45 CFR 152.2 and 155.20, 42 CFR 600.5, and 42 CFR 435.4 and 457.320(c))
The following proposed changes will be submitted to OMB for review under control number 0938-1191 (CMS-10440).
As discussed previously, the changes proposed to the definition of "lawfully present" would impact eligibility to enroll in a QHP through an Exchange and for APTC and CSRs. This proposal would impact the 18 State Exchanges that run their own eligibility and enrollment platforms, as well as the Federal Government which would make changes to the Federal eligibility and enrollment platform for the States with Federally-facilitated Exchanges (FFEs) and State-based Exchanges on the Federal platform (SBE-FPs). We estimate that it would take the Federal Government and each of the State Exchanges 100 hours in 2023 to develop and code the changes to their eligibility systems to correctly evaluate and verify eligibility under the definition of "lawfully present" revised to include DACA recipients and certain other limited groups of noncitizens as outlined in section II.C.2. of this proposed rule.
Of those 100 hours, we estimate it would take a database and network administrator and architect 25 hours at
"Data Collection to Support Eligibility Determinations for Insurance Affordability Programs and Enrollment through Health Benefits Exchanges, Medicaid and CHIP Agencies," OMB control number 0938-1191 (CMS-10440) accounts for burdens associated with the streamlined application for enrollment in the programs impacted by this rule. As such, the following information collection addresses the burden of processing applications and assisting enrollees with Medicaid, CHIP, BHP, and QHP enrollment, and those impacts are not reflected in the ICRs for Medicaid and CHIP, and BHP, discussed in sections IV.C.1. and IV.C.2. of this proposed rule, respectively.
With respect to assisting additional eligible enrollees and processing their applications, we estimate this would take a government programs eligibility interviewer 10 minutes (0.17 hours) per application at a rate of
To start, we estimate the percentage of applications that would be processed for each of the programs: Medicaid, CHIP, Exchange, and BHP. We assume that the proportion of applications that would be processed for each program would be equivalent to the proportion of individuals impacted by the proposals in this rule that would enroll in each program. As discussed in section VI.C. of this proposed rule, we estimate that of the 129,000 individuals impacted by the proposals in this rule, 13,000 would enroll in Medicaid or CHIP (10 percent), 112,000 in the Exchanges (87 percent), and 4,000 (3 percent) in the BHPs on average each year, including redeterminations and re-enrollments. Using these same proportions, out of the 200,000 applications anticipated to result from the proposals in this rule, if finalized, we estimate 20,000 applications would be processed for Medicaid and CHIP, 174,000 would be processed for the Exchanges, and 6,000 would be processed for the BHPs on average each year.
Next, we calculate the proportion of each program's application processing costs that are borne by States compared to the Federal Government. As discussed in section IV.B. of this proposed rule, the Federal Government contributes 50 percent of Medicaid and CHIP program administration costs. As such, we assume 50 percent of the Medicaid and CHIP application processing costs would fall on the 39 States referenced in section IV.C.1. of this proposed rule, and the remaining 50 percent would be borne by the Federal Government. As discussed in section IV.C.2. of this proposed rule, the entire information collection burden associated with changes to BHPs falls on the two States with BHPs--Minnesota and
FOOTNOTE 60
Finally, we apply the proportion of applications we estimated for each program we discussed earlier to the State and Federal burden proportions. For Medicaid and CHIP, we estimate there would be 20,000 applications processed. Using the per-application processing burden discussed earlier in this ICR (10 minutes, or 0.17 hours, per application at a rate of
Therefore, the total burden on States to assist eligible beneficiaries and process their applications would be 18,397 hours annually (1,700 hours for Medicaid and CHIP + 1,020 hours for BHP + 15,677 hours for Exchanges) at a cost of
4. ICRs Regarding the Application Process for Applicants
The following proposed changes will be submitted to OMB for review under control number 0938-1191 (CMS-10440).
As required by the ACA, there is one application through which individuals may apply for health coverage in a QHP through an Exchange and for other insurance affordability programs like Medicaid, CHIP, and a BHP. /61/ Some individuals may apply directly with their State Medicaid or CHIP agency; however, we assume the burden of completing an Exchange application is essentially the same as applying with a State Medicaid or CHIP agency, and therefore are not distinguishing these populations. We seek comment on this assumption.
FOOTNOTE 61 42 U.S.C. 18083. END FOOTNOTE
Based on the enrollment projections discussed in the Regulatory Impact Analysis section later in this rule, we anticipate that DACA recipients would represent the majority of individuals impacted by the proposals in this rule, and we are unable to quantify the number of non-DACA recipients impacted by the other changes in this rule, but we expect the number to be small. We estimate that there are 200,000 uninsured DACA recipients based on
FOOTNOTE 62 Count of Active DACA Recipients by Month of Current DACA Expiration as of
FOOTNOTE 63 Tracking DACA Recipients' Access to Health Care,
In the existing information collection request for this application (OMB control number 0938-1191), we estimate that the application process would take an average of 30 minutes (0.5 hours) to complete for those applying for insurance affordability programs and 15 minutes (0.25 hours) for those applying without consideration for insurance affordability programs. /64/ We estimate that of the 200,000 individuals impacted by the proposed changes, 98 percent would be applying for insurance affordability programs and 2 percent would be applying without consideration for insurance affordability programs. Using the hourly value of time for changes in time use for unpaid activities discussed in section IV.A. of this proposed rule (at an hourly rate of
FOOTNOTE 64 It is possible that some individuals impacted by the proposed changes to the definition of lawful presence in this rule would apply using the paper application, but internal CMS data show that this would be less than 1 percent of applications. Therefore, we are using estimates in this RIA to reflect that nearly all applicants would apply using the electronic application. END FOOTNOTE
As stated earlier in this proposed rule, CMS, State Exchanges, and States would require individuals completing the application to submit supporting documentation to confirm their lawful presence if it is unable to be verified electronically. An applicant's lawful presence may not be able to be verified if, for example, the applicant opts to not include information about their immigration documentation such as their alien number or employment authorization document (EAD) number when they fill out the application. We estimate that of the 200,000 individuals impacted by the changes proposed in this rule, approximately 68 percent (or 136,000) of applicants would be able to have their lawful presence electronically verified, and the remaining 32 percent (or 64,000) of applicants would be unable to have their lawful presence electronically verified and would therefore have to submit supporting documentation to confirm their lawful presence. /65/ We estimate that a consumer would, on average, spend approximately 1 hour gathering and submitting required documentation. Using the hourly value of time for changes in time use for unpaid activities discussed in section IV.A. of this proposed rule (at an hourly rate of
FOOTNOTE 65 This estimate is informed by recent data from the FFEs and SBE-FPs. While certain changes proposed in this rule may result in an increase in the proportion of applicants who are able to have their lawful presence electronically verified, we do not have a reliable way to quantify any potential increase. END FOOTNOTE
As previously stated, for the 200,000 individuals impacted by this rule, the annual additional burden of completing the application would be 0.495 hours per individual on average, which totals to 99,000 hours at a cost of
D. Burden Estimate Summary
Table 2-Summary of Proposed Burden Estimates
Regulation OMB Year Number of Number of Time per Total Hourly Total State share Total
section(s)/ICR control respondents responses response time labor labor ( $ ) beneficiary
provision No./CMS-ID (hrs) (hr) rate cost cost
( $/hr) ( $ ) ( $ )
42 CFR 435.4 and 0938-1147 2023 39 39 100 3,900 Varies $ 367,828 $ 183,914 N/A
457.320(c) (CMS-10410)
Medicaid and CHIP
System Changes
42 CFR 600.5 BHP 0938-1218 2023 2 2 100 200 Varies 18,863 18,863 N/A
System Changes (CMS-10510)
45 CFR 152.2 and 0938-1191 2023 19 19 100 1,900 Varies 179,199 169,776 N/A
155.20 Exchange (CMS-10440)
System Changes
42 CFR 435.4 and 0938-1191 2024-2027 200,000 200,000 0.17 34,000 46.70 1,587,800 859,140 N/A
457.320(c), 42 (CMS-10440)
CFR 600.5, 45 CFR
152.2 and 155.20
Streamlined
Application
Processing
42 CFR 435.4 and 0938-1191 2024-2027 200,000 200,000 0.82 163,000 20.71 3,375,730 N/A 3,375,730
457.320(c), 42 (CMS-10440)
CFR 600.5, 45 CFR
152.2 and 155.20
Application
Process for
Applicants
E. Submission of PRA-Related Comments
We have submitted a copy of this proposed rule to OMB for its review of the rule's information collection requirements. The requirements are not effective until they have been approved by OMB.
To obtain copies of the supporting statement and any related forms for the proposed collections discussed in this section, please visit the CMS website at www.cms.hhs.gov/PaperworkReductionActof1995, or call the Reports Clearance Office at 410-786-1326.
We invite public comments on these potential information collection requirements. If you wish to comment, please submit your comments electronically as specified in the DATES and ADDRESSES section of this proposed rule and identify the rule (CMS-9894-P), the ICR's CFR citation, and OMB control number.
V. Response to Comments
Because of the large number of public comments we normally receive on
VI. Regulatory Impact Analysis
A. Statement of Need
This proposed rule would update the definition of "lawfully present" in our regulations. This definition is currently used to determine whether a consumer is eligible to enroll in a QHP through an Exchange and for APTC and CSRs, and whether a consumer is eligible to enroll in a BHP in States that elect to operate a BHP. We are also proposing a similar definition of "lawfully present" that would be applicable to eligibility for Medicaid and CHIP in States that have elected to cover "lawfully residing" pregnant individuals and children under the CHIPRA 214 option. In addition, we propose to remove the exception for DACA recipients from the definitions of "lawfully present" used to determine eligibility to enroll in a QHP through an Exchange, a BHP, or in Medicaid and CHIP under the CHIPRA 214 option, and instead treat DACA recipients the same as other deferred action recipients. We also propose some modifications to the "lawfully present" definition currently at 45 CFR 152.2, and the definition in the SHO letters that incorporate additional detail, clarifications, and some technical modifications for the Exchanges, BHPs, and Medicaid and CHIP under the CHIPRA 214 option.
B. Overall Impact
We have examined the impacts of this rule as required by Executive Order 12866 on Regulatory Planning and Review (
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Section 3(f) of Executive Order 12866 defines a "significant regulatory action" as an action that is likely to result in a rule that may: (1) have an annual effect on the economy of
Based on our estimates, OIRA has determined that this rulemaking is a significant regulatory action under section 3(f)(1) Executive Order 12866. Accordingly, we have prepared regulatory impact analysis (RIA) that to the best of our ability presents the costs and benefits of the rulemaking. Therefore, OMB has reviewed these proposed regulations, and we have provided the following assessment of their impact.
C. Detailed Economic Analysis
We prepared the economic impact estimates utilizing a baseline of "no action," comparing the effect of the proposals against not proposing the rule at all.
This analysis reviews the amendments proposed under 42 CFR 435.4, 457.320(c), and 600.5, and 45 CFR 152.2 and 155.20, which would add the following changes to the definition of lawfully present by adding the following new categories of noncitizens to this definition via this regulation:
* Those granted an EAD under 8 CFR 274a.12(c)(35) and (36);
* Those granted deferred action under DACA;
* Additional Family Unity beneficiaries;
* Individuals with a pending application for adjustment of status, without regard to whether they have an approved visa petition;
* Children under 14 with a pending application for asylum, withholding of removal, or relief under the Convention Against Torture or children under 14 who are listed as a dependent on a parent's pending application, without regard to the length of time that the application has been pending; and
* Children with an approved petition for SIJ classification.
The amendments proposed under 42 CFR 435.4, 457.320(c), and 600.5 and 45 CFR 152.2 and 155.20 would also:
* Revise the description of noncitizens who are nonimmigrants to include all nonimmigrants who have a valid and unexpired status;
* Remove individuals with a pending application for asylum, withholding of removal, or the Convention Against Torture who are over age 14 from the definition, as these individuals are covered elsewhere; and
* Simplify the definition of noncitizens with an EAD to include all individuals granted an EAD under 8 CFR 274a.12(c), as these individuals are already covered elsewhere, with the exception of a modest expansion to those granted an EAD under 8 CFR 274a.12(c)(35) and (36), discussed earlier in this proposed rule.
In these respects, these proposals are technical changes or revisions to simplify verification processes, and therefore, we do not anticipate a material impact on individuals' eligibility as a result of these changes. We seek comment on estimates or data sources we could use to provide quantitative estimates for the benefit to these individuals.
The amendments proposed under 42 CFR 435.4 and 457.320(c) would also revise the description of lawfully present individuals in the CNMI in this definition. This proposed amendment is also a technical change, and although we anticipate the number of individuals who would be substantively impacted by this proposal would be small, we do not have a reliable way to quantify these impacts. We seek comment on estimates or data sources we could use to provide quantitative estimates for the benefit to these individuals.
As explained further in this section, we estimate 129,000 DACA recipients could enroll in health coverage and benefit from the proposals in this rule. /66/ We are presently unable to quantify the number of additional Family Unity beneficiaries, individuals with a pending application for adjustment of status, children under age 14 with a pending application for asylum or related protection or children listed as dependents on a parent's application for asylum or related protection, and individuals with approved petition for SIJ classification that could enroll in health coverage and benefit from the proposals in this rule, but we expect this number to be small. We seek comment on estimates or data sources we could use to provide quantitative estimates for the benefit to these individuals.
FOOTNOTE 66 The estimates in this RIA are based on
The proposed changes to 42 CFR 435.4 and 457.320(c) would no longer exclude DACA recipients from the definition of "lawfully present" used to determine eligibility for Medicaid and CHIP under section 214 of CHIPRA and treat DACA recipients the same as other recipients of deferred action. Thus, under the proposed rule, DACA recipients who are children under 21 years of age (under age 19 for CHIP) or pregnant, including during the postpartum period, /67/ would be eligible for Medicaid and CHIP benefits in States that have elected the option in their State plan to cover all lawfully residing children or pregnant individuals under the CHIPRA 214 option. The proposed changes to 42 CFR 600.5 would no longer exclude DACA recipients from the definition of "lawfully present" used to determine eligibility for a BHP in those States that elect to operate the program, if otherwise eligible. The proposed changes to 45 CFR 152.2 and 155.20 would make DACA recipients eligible to enroll in a QHP through an Exchange, and for APTC and CSRs, if otherwise eligible. We present enrollment estimates for these populations in Table 3.
FOOTNOTE 67 The postpartum period for pregnant individuals includes the 60-day period described in sections 1903(v)(4)(A)(i) and 2107(e)(1)(O) of the Act or the extended 12-month period described in sections 1902(e)(16) and 2107(e)(1)(J) of the Act in States that have elected that option. END FOOTNOTE
Table 3-Enrollment Estimates by Program, Coverage Years 2024-2028
2024 2025 2026 2027 2028
Medicaid and CHIP Enrollment 13,000 11,000 9,000 8,000 6,000
BHP Enrollment 4,000 4,000 4,000 5,000 5,000
Exchange Enrollment 112,000 114,000 116,000 117,000 119,000
Total Enrollment 129,000 129,000 129,000 130,000 130,000
To estimate the enrollment impact on Medicaid, we developed estimates for the number of pregnant individuals and children who would be eligible in this group. For pregnant individuals, we estimated the number of pregnancies using the DACA population by age and gender and combined this with the fertility rates by age in
FOOTNOTE 68 National Vital Statistics Report,
FOOTNOTE 69 The States and territories that have elected the CHIPRA 214 option to cover pregnant women are:
FOOTNOTE 70 These estimates are based on
To estimate the enrollment impact on the Exchanges and BHPs, we started with an estimate of the DACA population.
FOOTNOTE 71 Count of Active DACA Recipients by Month of Current DACA Expiration as of
FOOTNOTE 72 Tracking DACA Recipients' Access to Health Care,
The proposed changes to 42 CFR 600.5 would no longer exclude DACA recipients from the definition of lawfully present used to determine eligibility for a BHP in those States that elect to operate the program, if otherwise eligible. There may be an effect on the BHP risk pool as a result of this change, as DACA recipients are relatively younger and healthier than the general population, based on
FOOTNOTE 73
The proposed changes to 45 CFR 152.2 and 155.20 would make DACA recipients eligible to enroll in a QHP through an Exchange, and for APTC and CSRs, if otherwise eligible. Similar to BHP eligibility, there may be a slight effect on the States' individual market risk pool. In addition, the proposals to modify the definition of "lawfully present" discussed in section II.C.2. of this proposed rule would reduce burden on Exchanges, BHPs, and State Medicaid and CHIP agencies by allowing the agencies to more frequently verify an individual's status with a trusted data source and to not have to request additional information from consumers. This change would promote simplicity and consistency in program administration, and further program integrity resulting from the increased reliance on a trusted Federal data source. We seek comment on estimates or data sources we could use to provide quantitative estimates for this benefit.
In addition, increased access to health coverage for DACA recipients and other noncitizens impacted by the proposals in this rule would advance racial justice and health equity, which in turn may decrease costs for emergency medical expenditures. Further, the proposals in this rule would improve the health and well-being of many individuals that are currently without coverage, as having health insurance makes individuals healthier. Individuals without insurance are less likely to receive preventative or routine health screenings and may delay necessary medical care, incurring high costs and debts. In addition to the improvement of health outcomes, these individuals would be more productive and better able to contribute economically, as studies have found that workers with health insurance are estimated to miss 77 percent fewer workdays than uninsured workers. /74/
FOOTNOTE 74 Dizioli, Allan and Pinheiro, Roberto. (2016).
We seek comment on these effects and any other potential benefits that may result from the proposals in this rule.
1. Costs
The proposed changes to 42 CFR 435.4 and 457.320(c) would treat DACA recipients the same as other recipients of deferred action, who are included in the definition of "lawfully present" used to determine eligibility for Medicaid and CHIP under section 214 of CHIPRA. We note that generally, CMS has received feedback from some States that cover lawfully present individuals under age 21 and pregnant individuals that such States are supportive of a change to include DACA recipients in the definition of lawfully present. The costs to States and the Federal Government as a result of information collection changes associated with this proposal, which include initial system changes costs to develop and update each State's eligibility systems and verification processes and application processing costs to assist individuals with processing their applications, are discussed in sections IV.C.1. and IV.C.3. of this proposed rule, and the costs to consumers as a result of increased information collections associated with this proposal, which include applying for Medicaid or CHIP and submitting additional information to verify their lawful presence, if necessary, are discussed in section IV.C.4. of this proposed rule. These proposals would also increase Federal and State expenditures for States that elect the CHIPRA 214 option due to costs associated with Medicaid and CHIP coverage for newly eligible beneficiaries.
We discuss how we calculated our Medicaid and CHIP enrollment estimates earlier in this RIA. To calculate costs, we estimated the per enrollee costs in Medicaid for pregnant individuals and children based on the projections in the President's Fiscal Year (FY) 2024 Budget. For 2024, we projected annual costs per enrollee would be about
Our estimates for Medicaid and CHIP expenditures as a result of the proposals in this rule, if finalized, are shown in Table 4. We seek comment on these estimates and the assumptions and methodology used to calculate them.
Table 4-Medicaid/CHIP Projected Expenditures, FY 2024-2028
2024 2025 2026 2027 2028
State Expenditures $ 40,000,000 $ 45,000,000 $ 50,000,000 $ 45,000,000 $ 40,000,000
Federal Expenditures 60,000,000 85,000,000 80,000,000 80,000,000 75,000,000
Total Expenditures 100,000,000 130,000,000 130,000,000 125,000,000 115,000,000
States that are currently using only State funds to provide health benefits to DACA recipients are likely to see decreases in State expenditures due to this change, as Federal dollars would be available to help cover this population for the first time. /75/
FOOTNOTE 75 As of
The proposed changes to 42 CFR 600.5 would treat DACA recipients the same as other recipients of deferred action, who are lawfully present under the definition used to determine eligibility for BHP, if otherwise eligible. The costs to States as a result of information collection changes associated with this proposal, which include initial system changes costs to develop and update each State's eligibility systems and verification processes and application processing costs to assist individuals with processing their applications, are discussed in sections IV.C.2. and IV.C.3. of this proposed rule, and the costs to consumers as a result of increased information collections associated with this proposal, which include applying for BHP and submitting additional information to verify their lawful presence, if necessary, are discussed in section IV.C.4. of this proposed rule. States operating a BHP may choose to provide additional outreach to the newly eligible. With a potential increase in number of enrollees, there may be an increase in Federal payments to a State's BHP trust fund.
We discuss how we calculated our BHP enrollment estimates earlier in this RIA. BHP funding from the Federal Government to State BHP trust funds is based on the amount of PTC enrollees would receive had they been enrolled in Exchange coverage. Therefore, to calculate costs, we used data from
Table 5-BHP Projected Expenditures, FY 2024-2028
2024 2025 2026 2027 2028
Expenditures $ 15,000,000 $ 20,000,000 $ 15,000,000 $ 15,000,000 $ 15,000,000
The proposed changes to 45 CFR 152.2 and 155.20 would make DACA recipients eligible to enroll in a QHP through an Exchange, and for PTC and CSRs, if otherwise eligible. The costs to State Exchanges and the Federal Government as a result of information collection changes, which include initial system changes costs to develop and update each State's eligibility systems and verification processes and application processing costs to assist individuals with processing their applications, are discussed in section IV.C.3. of this proposed rule and the costs to consumers as a result of increased information collections associated with this proposal, which include applying for Exchange coverage and submitting additional information to verify their lawful presence, if necessary, are discussed in section IV.C.4. of this proposed rule. This proposed change may result in slightly increased traffic during open enrollment for the 2024 coverage years and beyond. Further, there may be a potential administrative burden on States and regulated entities that choose to conduct outreach and education efforts to ensure that consumers, agents, brokers, and assisters are aware of the changes proposed in this rule associated with the updated definitions of "lawfully present" for the purposes of the Exchanges and BHP and "lawfully residing" for the purposes of Medicaid and CHIP under the CHIPRA 214 option. We anticipate that the costs of this additional outreach and education would be minimal and seek comment on that assumption.
Whether the effects discussed above as "costs" are appropriately categorized depends on societal resource use. To the extent that resources (for example, labor and equipment associated with provision of medical care) are used differently in the presence of the proposed rule than in its absence, then the estimated effects are indeed costs. If resource use remains the same but different entities in society pay for them, then the estimated effects would instead be transfers. We request comment that would facilitate refinement of the effect categorization.
2. Transfers
Transfers are payments between persons or groups that do not affect the total resources available to society. They are a benefit to recipients and a cost to payers. The proposals at 45 CFR 152.2 and 155.20 would generate a transfer from the Federal Government to consumers in the form of increased PTC payments due to individuals who would be eligible for Exchange coverage and APTC, if the proposals in this rule are finalized.
We discuss how we calculated our Exchange enrollment estimates earlier in this RIA. To calculate costs, we used data from
FOOTNOTE 76 The estimate for FY 2024 only includes 9 months, assuming these individuals will enroll in a QHP and receive APTC beginning
We present these estimates in Table 6 and seek comment on the estimates and the assumptions and methodology used to calculate them.
Table 6-Exchange Projected Expenditures, FY 2024-2028
FY 2024 FY 2025 FY 2026 FY 2027 FY 2028
PTC Expenditures $ 300,000,000 $ 390,000,000 $ 320,000,000 $ 310,000,000 $ 320,000,000
3. Regulatory Review Cost Estimation
If regulations impose administrative costs on private entities, such as the time needed to read and interpret this proposed rule, we estimate the cost associated with regulatory review. There is uncertainty involved with accurately quantifying the number of entities that would review the rule. However, for the purposes of this proposed rule, we assume that medical and health service managers would review this rule. Therefore, at least one person from each of the three State Exchanges on the Federal platform would review for applicability, and at least three people from each of the 18 State Exchanges would review, for a total of 57 individuals for the Exchanges. For Medicaid, CHIP, and BHP, we assume at least one person from every State agency and territory would review for applicability; at least two additional people from the 35 States, the
Using the wage information from the
D. Regulatory Alternatives Considered
With regard to the changes to CMS definitions of "lawfully present" proposed in this rule, we considered proposing to update the current regulatory definition at 45 CFR 152.2 that applies to Exchanges and BHPs, and separately updating our SHO guidance that applies to Medicaid and CHIP in States that elect the CHIPRA 214 option, instead of proposing to define a definition of lawfully present at 42 CFR 435.4. While this approach would have had a similar impact to the changes proposed in this rule, we are of the view that the proposed definition of lawfully present that applies to Medicaid and CHIP eligibility in States that elect the CHIPRA 214 option promotes transparency by giving the public an opportunity to review and comment on these proposals. We are also of the view that this approach promotes transparency and lessens administrative burden by making key eligibility information more accessible to State Medicaid and CHIP agencies that are tasked with applying these definitions when determining consumers' eligibility for their programs. Finally, we believe that proposing a definition of "lawfully present" in regulation, rather than maintaining a definition in guidance, provides a greater degree of stability for the individual beneficiaries and State agencies that rely on this definition.
In developing this rule, we also considered not proposing the technical and clarifying changes to CMS's definitions of "lawfully present," discussed in section II.C.2. of this proposed rule, as these changes are expected to impact fewer individuals than the proposal to treat DACA recipients the same as other recipients of deferred action. However, in our comprehensive review of current CMS definitions of "lawfully present," we determined that the proposed changes discussed in section II.C.2. of this proposed rule would simplify our eligibility verification processes and increase efficiencies for individuals seeking health coverage and State and Federal entities administrating insurance affordability programs. Additionally, the small number of individuals included in the proposed eligibility categories would benefit from increased access to health coverage and insurance affordability programs.
E. Accounting Statement and Table
As required by OMB Circular A-4 (available at https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf), we have prepared an accounting statement in Table 7 showing the classification of the impact associated with the provisions of this proposed rule. We prepared these impact estimates utilizing a baseline of "no action," comparing the effect of the proposals against not proposing the rule at all.
This proposed rule proposes standards for programs that would have numerous effects, including allowing DACA recipients to be treated the same as other deferred action recipients for specific health insurance affordability programs, and increasing access to affordable health insurance coverage. The effects in Table 7 reflect qualitative assessment of impacts and estimated direct monetary costs and transfers resulting from the provisions of this proposed rule for the Federal Government, State Exchanges, BHPs, Medicaid and CHIP agencies, and consumers.
Table 7-Accounting Table
Benefits:
Qualitative:
-- Additional enrollment in Medicaid and CHIP, anticipated to be 13,000 individuals in 2024, 11,000 in 2025, 9,000 in 2026, 8,000 in 2027, and 6,000 in 2028 due to the proposals in this rule.
-- Additional enrollment in the BHP, anticipated to be 4,000 individuals in 2024-2026 and 5,000 individuals in 2027-2028.
-- Additional enrollment in the Exchanges, which would be subsidized depending on individuals' household incomes, anticipated to be 112,000 in 2024, 114,0000 in 2025, 116,000 in 2026, 117,000 in
2027, and 119,000 in 2028.
-- Increased access to health coverage for DACA recipients and certain other noncitizens, which would advance racial justice and health equity, which in turn may also decrease costs for emergency
medical expenditures.
-- Improved health and well-being of many DACA recipients and certain other noncitizens currently without health care coverage.
-- Greater economic contribution and productivity of DACA recipients and certain other noncitizens from improving their health outcomes.
-- Reduced burden on Exchanges, BHPs, and Medicaid and CHIP agencies to determine applicants' immigration statuses.
Costs: Estimate Year dollar Discount rate Period
covered
Annualized Monetized ( $/year) $ 109.68 Million 2023 7 percent 2023-2027
$ 112.21 Million 2023 3 percent 2023-2027
Quantitative:
-- Increased State Medicaid and CHIP expenditures of $ 40 million in 2024, $ 45 million in 2025, $ 50 million in 2026, and $ 45 million in 2027 due to increased enrollment as a result of the
proposed changes to the definition of "lawfully residing" for purposes of Medicaid and CHIP under the CHIPRA 214 option.
-- Increased Federal Medicaid and CHIP expenditures of $ 60 million in 2024, $ 85 million in 2025, $ 80 million in 2026, and $ 80 million in 2027 due to increased enrollment as a result of the
proposed changes to the definition of "lawfully residing" for purposes of Medicaid and CHIP under the CHIPRA 214 option.
-- Increased Federal BHP expenditures of $ 15 million in 2024, $ 20 million in 2025, $ 15 million in 2026 and $ 15 million in 2027 due to increased enrollment as a result of proposed changes to the
definition of "lawfully present" for purposes of a BHP.
-- Initial system changes costs estimated at $ 183,914 for States and $ 183,915 for the Federal Government in 2023 to develop and code changes to each State's eligibility systems and verification
processes to include the categories of noncitizens impacted by this proposed rule with respect to Medicaid and CHIP eligibility.
-- System changes costs estimated at $ 18,863 in 2023 for States to develop and code changes to their eligibility systems and verification processes to include the categories of noncitizens impacted
by this proposed rule with respect to BHP eligibility.
-- System changes costs estimated at $ 169,767 for State Exchanges and $ 9,432 for the Federal Government in 2023 to develop and code changes to each Exchange's eligibility systems and verification
processes to include the categories of noncitizens impacted by this proposed rule with respect to Exchange and Exchange-related subsidy eligibility.
-- Application processing costs estimated at $ 859,140 for States and $ 728,660 for the Federal Government per year starting in 2024 to assist individuals impacted by this proposed rule with
processing their applications.
Table 7-Accounting Table-Continued
-- Costs to individuals impacted by the proposals in this rule of $ 3,375,730 per year starting in 2024 to apply for Medicaid, CHIP, BHP, or Exchange health coverage, including costs to submit
additional information to verify their lawful presence status if it is unable to be verified electronically through the application.
Qualitative:
-- Potential administrative burden on States and regulated entities that choose to conduct increased education and outreach related to the updated definitions of "lawfully present" for the
purposes of the Exchanges and BHP and "lawfully residing" for the purposes of Medicaid and CHIP under the CHIPRA 214 option.
Transfers: Estimate Year dollar Discount rate Period
covered
Annualized Monetized ( $/year) $ 255.00 Million 2023 7 percent 2023-2027
$ 260.15 Million 2023 3 percent 2023-2027
Quantitative:
-- Increased PTC expenditures from the Federal Government to individuals of $ 300 million in 2024, $ 390 million in 2025, $ 320 million in 2026, and $ 310 million in 2027 due to increased enrollment
and subsidy eligibility as a result of the proposed changes to the definition of "lawfully present" for purposes of the Exchanges.
F. Regulatory Flexibility Act (RFA)
The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, we estimate that small businesses, nonprofit organizations, and small governmental jurisdictions are small entities as that term is used in the RFA. The great majority of hospitals and most other health care providers and suppliers are small entities, either because they are nonprofit organizations or they meet the
For purposes of the RFA, we believe that health insurance issuers and group health plans would be classified under the North American Industry Classification System (NAICS) code 524114 (Direct Health and Medical Insurance Carriers). According to SBA size standards, entities with average annual receipts of
FOOTNOTE 77 https://www.sba.gov/document/support--table-size-standards. END FOOTNOTE
FOOTNOTE 78 Available at https://www.cms.gov/CCIIO/Resources/Data-Resources/mlr.html. END FOOTNOTE
In this proposed rule, we propose standards for eligibility for Exchange enrollment and APTC and CSRs, BHP, and Medicaid and CHIP under the CHIPRA 214 option. Because we believe that insurance firms offering comprehensive health insurance policies generally exceed the size thresholds for "small entities" established by the SBA, we do not believe that an initial regulatory flexibility analysis is required for such firms. Furthermore, the proposals related to Medicaid and CHIP would impact State governments, but as States do not constitute small entities under the statutory definition, an impact analysis for these provisions is not required under the RFA.
As its measure of significant economic impact on a substantial number of small entities, HHS uses a change in revenue of more than 3 to 5 percent. We do not believe that this threshold will be reached by the requirements in this proposed rule. Therefore, the Secretary has certified that this proposed rule will not have a significant economic impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. While this rule is not subject to section 1102 of the Act, we have determined that this proposed rule would not adversely affect small rural hospitals. Therefore, the Secretary has certified that this proposed rule will not have a significant impact on the operations of a substantial number of small rural hospitals.
G. Unfunded Mandates Reform Act (UMRA)
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of
H. Federalism
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has federalism implications.
While developing this rule, we attempted to balance States' interests in running their own Exchanges, BHPs, and Medicaid and CHIP programs with CMS's interest in establishing a consistent definition of "lawfully present" for use in eligibility determinations across CMS programs. We also attempted to balance States' interests with the overall goals of the ACA, as well as the goals of
In our view, while the provisions of this proposed rule related to the Exchanges (45 CFR 152.2 and 155.20) and the BHP (42 CFR 600.5) would not impose substantial direct requirement costs on State and local governments, this regulation has federalism implications due to potential direct effects on the distribution of power and responsibilities among the State and Federal governments relating to determining standards related to eligibility for health insurance through Exchanges and BHPs. For example, State Exchanges and BHPs would be required to update their eligibility systems in order to accurately evaluate applicants' lawful presence, and State Exchanges and BHPs may wish to conduct outreach to groups such as DACA recipients who would newly be considered lawfully present under the rule. By our estimate, these requirements do not impose substantial direct costs on States. In addition, we anticipate that these federalism implications are mitigated because States have the option to operate their own Exchanges and the optional BHP. After establishment, Exchanges must be financially self-sustaining, with revenue sources at the discretion of the State. Current State Exchanges charge user fees to issuers. As indicated earlier, a BHP is optional for States. Therefore, if implemented in a State, it provides access to a pool of Federal funding that would not otherwise be available to the State. Accordingly, federalism implications are mitigated if not entirely eliminated as it pertains to a BHP.
Additionally, the proposals in this rule related to Medicaid and CHIP may impose substantial direct costs on State governments. The Medicaid and CHIP policies also have federalism implications by creating a change in eligibility that may not align with a State's position. However, we believe this effect is mitigated because the eligibility change is under an option that States have the discretion to adopt and maintain. In addition, Medicaid and CHIP costs are shared between the Federal Government and States, further mitigating the impacts of compliance with these new requirements. As such, the costs to States by our estimate do not rise to the level of specified thresholds for significant burden to States.
List of Subjects
42 CFR Part 435
Aid to Families with Dependent Children, Grant programs--health, Medicaid, Reporting and recordkeeping requirements, Supplemental Security Income (SSI), Wages.
42 CFR Part 457
Administrative practice and procedure, Grant programs--health, Health insurance, Reporting and recordkeeping requirements.
42 CFR Part 600
Administrative practice and procedure, Health care, health insurance, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
45 CFR Part 152
Administrative practice and procedure, Health care, Health insurance, Penalties, Reporting and recordkeeping requirements.
45 CFR Part 155
Administrative practice and procedure, Advertising, Aged, Brokers, Citizenship and naturalization, Civil rights, Conflicts of interests, Consumer protection, Grant programs--health, Grants administration, Health care, Health insurance, Health maintenance organizations (HMO), Health records, Hospitals, Indians, Individuals with disabilities, Intergovernmental relations, Loan programs--health, Medicaid, Organization and functions (Government agencies), Public assistance programs, Reporting and recordkeeping requirements, Sex discrimination, State and local governments, Taxes, Technical assistance, Women, Youth.
For the reasons set forth in the preamble, the
Title 42--Public Health
PART 435--ELIGIBILITY IN THE STATES,
1. The authority citation for part 435 continues to read as follows:
Authority:42 U.S.C. 1302.
2. Part 435 is amended by--
a. Removing all instances of the words "non-citizen" and "non-citizens" and adding in their places the words "noncitizen" and "noncitizens", respectively; and
b. Removing all instances of the word "Non-citizen" and adding in its place the word "Noncitizen"; and
c. Removing all instances of the words "Qualified Non-Citizen" and adding in its place the words "qualified noncitizen".
3. Section 435.4 is amended by adding the definitions of "Lawfully present" and "Lawfully residing" in alphabetical order to read as follows:
*****
Lawfully present means a noncitizen who--
(1) Is a qualified noncitizen;
(2) Is in a valid nonimmigrant status, as defined in 8 U.S.C. 1101(a)(15) or otherwise under the immigration laws (as defined in 8 U.S.C. 1101(a)(17));
(3) Is paroled into
(4) Is granted temporary resident status in accordance with 8 U.S.C. 1160 or 1255a;
(5) Is granted Temporary Protected Status (TPS) in accordance with 8 U.S.C. 1254a;
(6) Is granted employment authorization under 8 CFR 274a.12(c);
(7) Is a Family Unity beneficiary in accordance with section 301 of Public Law 101-649 as amended; or section 1504 of the LIFE Act Amendments of 2000, title XV of H.R. 5666, enacted by reference in Public Law 106-554 (see section 1504 of App. D to Pub. L. 106-554);
(8) Is covered by Deferred Enforced Departure (DED) in accordance with a decision made by the President;
(9) Is granted deferred action, including, but not limited to individuals granted deferred action under 8 CFR 236.22;
(10) Has a pending application for adjustment of status;
(11)(i) Has a pending application for asylum under 8 U.S.C. 1158, for withholding of removal under 8 U.S.C. 1231, or for relief under the Convention Against Torture; and
(ii) Is under the age of 14;
(12) Has been granted withholding of removal under the Convention Against Torture;
(13) Has a pending or approved petition for Special Immigrant Juvenile classification as described in 8 U.S.C. 1101(a)(27)(J);
(14) Is lawfully present in
(15) Is a Commonwealth of the
Lawfully residing means an individual who is a noncitizen who is considered lawfully present under this section and satisfies the State residency requirements, consistent with
*****
4. Section 435.12 is added to read as follows:
(a) Any part of the definitions of "lawfully present" and "lawfully residing" in
(b) The provisions in SEC435.4 with respect to the definitions of "lawfully present" and "lawfully residing" are intended to be severable from one another and from the definitions of "lawfully present" established at 42 CFR 600.5 and 45 CFR 155.20.
PART 457--ALLOTMENTS AND GRANTS TO STATES
5. The authority citation for part 457 continues to read as follows:
Authority:42 U.S.C. 1302.
6. Section 457.320 is amended by adding paragraph (c) to read as follows:
*****
(c) Definitions. (1) Lawfully present has the meaning assigned at
(2) Lawfully residing has the meaning assigned at
*****
PART 600--ADMINISTRATION, ELIGIBILITY, ESSENTIAL HEALTH BENEFITS, PERFORMANCE STANDARDS, SERVICE DELIVERY REQUIREMENTS, PREMIUM AND COST SHARING, ALLOTMENTS, AND RECONCILIATION
7. The authority citation for part 600 continues to read as follows:
Authority:Section 1331 of the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148, 124 Stat. 119), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152, 124 Stat 1029).
8. Section 600.5 is amended by revising the definition of "Lawfully present" to read as follows:
*****
Lawfully present has the meaning given in 45 CFR 155.20.
*****
For the reasons set forth in the preamble, under the authority at 5 U.S.C. 301, the
Title 45--Public Welfare
PART 152--PRE-EXISTING CONDITION INSURANCE PLAN PROGRAM
9. The authority citation for part 152 continues to read as follows:
Authority:Sec. 1101 of the Patient Protection and Affordable Care Act (Pub. L. 111-148).
10. Section 152.2 is amended by revising the definition of "Lawfully present" to read as follows:
*****
Lawfully present has the meaning given the term at 45 CFR 155.20.
*****
PART 155--EXCHANGE ESTABLISHMENT STANDARDS AND OTHER RELATED STANDARDS UNDER THE AFFORDABLE CARE ACT
11. The authority citation for part 155 continues to read as follows:
Authority:42 U.S.C. 18021-18024, 18031-18033, 18041-18042, 18051, 18054, 18071, and 18081-18083.
12. Section 155.20 is amended by revising the definition of "Lawfully present" to read as follows:
*****
Lawfully present means a noncitizen who--
(1) Is a qualified noncitizen as defined at 42 CFR 435.4;
(2) Is in a valid nonimmigrant status, as defined in 8 U.S.C. 1101(a)(15) or otherwise under the immigration laws (as defined in 8 U.S.C. 1101(a)(17));
(3) Is paroled into
(4) Is granted temporary resident status in accordance with 8 U.S.C. 1160 or 1255a;
(5) Is granted Temporary Protected Status (TPS) in accordance with 8 U.S.C. 1254a;
(6) Is granted employment authorization under 8 CFR 274a.12(c);
(7) Is a Family Unity beneficiary in accordance with section 301 of Public Law 101-649 as amended; or section 1504 of the LIFE Act Amendments of 2000, title XV of H.R. 5666, enacted by reference in Public Law 106-554 (see section 1504 of App. D to Pub. L. 106-554);
(8) Is covered by Deferred Enforced Departure (DED) in accordance with a decision made by the President;
(9) Is granted deferred action, including but not limited to individuals granted deferred action under 8 CFR 236.22;
(10) Has a pending application for adjustment of status;
(11)(i) Has a pending application for asylum under 8 U.S.C. 1158, for withholding of removal under 8 U.S.C. 1231, or for relief under the Convention Against Torture; and
(ii) Is under the age of 14;
(12) Has been granted withholding of removal under the Convention Against Torture; or (13) Has a pending or approved petition for Special Immigrant Juvenile classification as described in 8 U.S.C. 1101(a)(27)(J).
*****
13. Section 155.30 is added to read as follows:
(a) Any part of the definition of "lawfully present" in
(b) The provisions in SEC155.20 with respect to the definition of "lawfully present" are intended to be severable from one another and from the definitions of "lawfully present" and "lawfully residing" that are established or cross-referenced in 42 CFR 435.4 and 457.320.
Dated:
Secretary,
[FR Doc. 2023-08635 Filed 4-24-23;
BILLING CODE 4150-28-P
MR. COOPER GROUP INC. – 10-Q – Management's Discussion and Analysis of Financial Condition and Results of Operations
Steve Parry appointed Hiscox Group Claims Director
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