What to Know About the Biden Administration’s Proposed Restoration of DACA Recipients’ Access to Affordable Care Act Programs

The senseless exclusion of immigrants with Deferred Action for Childhood Arrivals (DACA) from Affordable Care Act (ACA) coverage is finally ending. The Centers for Medicare and Medicaid Services (CMS) has published a proposed rule that would modify the definition of “lawfully present” used to determine eligibility for ACA health plans and certain other health care programs.

The proposed regulations would make DACA recipients eligible:

• To purchase plans, and receive income-based subsidies, on healthcare exchanges like Healthcare.gov,
• To participate in Medicaid or CHIP coverage for children and/or people who are pregnant in many states, and
• To enroll in Basic Health Programs in certain states (currently New York and Minnesota).

Currently, people who have deferred action under categories other than DACA are considered lawfully present for purposes of the three programs listed above. In publishing the proposed regulations CMS has recognized that it is not required to treat DACA recipients differently than other recipients of deferred action, and that doing so is contrary to the purposes of DACA and the ACA.

The proposed regulations also incorporate important clarifications and technical corrections. The proposal clarifies that people who received special immigrant juvenile status (SIJS) are eligible for the three programs listed above. It also eliminates a 180-day waiting period for children under age 14 applying for certain kinds of humanitarian relief, including asylum.

The proposed regulations incorporate a November 1, 2023 effective date, which coincides with the beginning of the ACA open enrollment period. There is no real justification for making DACA recipients continue to wait for access to affordable coverage. As people newly eligible for ACA coverage, DACA recipients would be eligible for a ‘special enrollment period’ that enabled them to enroll outside of open enrollment.

CMS is accepting public comments on the proposed regulation through June 23, 2023. Check back on NILC’s website for additional news and resources about the regulation as it moves forward.

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Gabrielle Lessard is a Senior Policy Attorney at NILC.