Health coverage for Dreamers could be available as soon as this fall

In 2021, President Biden demonstrated his commitment to Dreamers on his first day in office by urging the Secretary of Homeland Security to take all appropriate action to preserve and fortify the Deferred Action for Childhood Arrivals (DACA) program. It was a reversal of the previous administration’s decision to rescind the program. President Biden also issued an executive order to strengthen access to quality, affordable health care. Last week, the President announced a proposal to advance both of these goals by allowing DACA recipients to qualify, for the first time, for Affordable Care Act (ACA) Marketplace plans, financial assistance to purchase such plans, the Basic Health Program, Medicaid, and the Children’s Health Insurance Program (CHIP). National and state health advocates, along with more than 80 members of Congress, have long urged the administration to take this step, particularly as the country recovers from the COVID-19 public health crisis.

The original definitions of “lawfully present” for these programs did not include DACA recipients because, at the time, DACA status did not exist. The eligibility requirements for these health insurance programs are complicated.

• To be eligible for an ACA Marketplace health plan, an individual must either be a citizen or lawfully present; and to qualify for the financial assistance that makes these plans affordable, a person must be eligible for an ACA health plan in the first place.
• When enacted, the ACA did not offer its own definition of “lawfully present,” but the Centers for Medicare and Medicaid Services (CMS) established a definition, drawing upon Medicaid and CHIP rules.i
• After 2009, lawfully present immigrants could be eligible for Medicaid or CHIP under a state option created under the Children’s Health Insurance Program Reauthorization Act (CHIPRA). Under the CHIPRA option, states can elect to cover lawfully residing children and pregnant women who are otherwise eligible for Medicaid or CHIP – regardless of the five-year waiting period that limits access to these programs for lawful immigrants.

Once the DACA program was created in 2012, CMS took steps that prevented DACA immigrants from qualifying for federally funded health benefits. CMS amended its definition of “lawfully present” for Marketplace health insurance to explicitly exclude DACA recipients, treating them categorically different from other deferred action statuses. Deferred action is a discretionary determination to defer the deportation of an individual, and even before this new proposal, others with deferred action status can access health coverage. CMS also made clear in 2012 that eligibility for Medicaid and CHIP under the CHIPRA option did not include people with DACA status. We previously explored limitations on health coverage for DACA recipients in an issue brief.

Denying people with DACA status access to health coverage undeniably had a harmful impact. CMS itself acknowledges in the new proposal that more than one-third of DACA recipients were uninsured in 2021, nearly half reported delaying medical care due to their status, and over two-thirds reported that they or a family member are unable to pay medical bills. This disproportionately impacts Latinos, given that more than 90% of people with DACA status are Hispanic.

The new rule qualifies DACA immigrants for health programs by adding them to the definition of “lawfully present” non-citizens. This opens the following programs to DACA recipients:

• ACA Marketplace health plans and the premium- and cost-sharing assistance that makes these plans more affordable.
• The Basic Health Program, an ACA program that New York and Minnesota have adopted to make coverage more affordable for people earning between 133 and 200% of the federal poverty level.
• Medicaid and CHIP will also now be accessible to pregnant women and children living in the states that have taken the CHIPRA option. This includes Florida, Nevada, and Texas for children.

The proposal is expected to go into effect November 1, 2023, in time for Open Enrollment 2024. As a result, CMS estimates that approximately 129,000 individuals would enroll in some form of newly accessible coverage.

The DACA program remains in jeopardy, with ongoing litigation threatening to end the program entirely. Nevertheless, the Biden administration has continued to defend the program, and the Department of Homeland Security (DHS) issued a new final DACA rule in August 2022 to preserve and strengthen the program. In that rule, DHS stated that “any future revision of [eligibility determinations] for Medicaid, CHIP, or with respect to the ACA Exchange and private market programs would need to be made by [the Department of Health and Human Services].” This new proposal is just the latest in a series of actions Health and Human Services Secretary Xavier Becerra has taken to enroll more individuals into affordable health coverage and to alleviate barriers for immigrant and mixed-status households.

Prior to this proposal, DACA was the only deferred action status excluded from ACA Marketplace coverage and financial assistance. While DACA’s future remains uncertain, if this proposal is finalized, DACA recipients will no longer be excluded from health coverage programs. The proposal will provide people under DACA status with more stability and assurance as we emerge from the worst of the COVID-19 pandemic.

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