The Center for Immigration Studies (CIS) submitted a public comment on June 23, 2023, to oppose the U.S. Department of Health and Human Services (HHS)’s proposal to extend eligibility for numerous federally funded benefits, including benefits under the Patient Protection and Affordable Care Act (ACA), to DACA recipients. CIS also recommended that HHS amend its regulations to exclude Temporary Protected Status (TPS), Deferred Enforced Departure (DED), deferred action, and parole recipients generally from the definition of “lawfully present” for purposes of ACA benefits eligibility.
The ACA generally requires that in order to enroll in a qualified health plan through an exchange, an individual must be either a citizen or national of the United States or be “lawfully present” in the United States. The ACA also generally requires that individuals be “lawfully present” in order to be eligible for insurance affordability programs such as premium tax credits, advance payments of the premium tax credit, cost sharing reductions, and Basic Health Program enrollment. The ACA does not define “lawfully present”, but specifies that an alien must be “reasonably expected to be lawfully present for the period of their enrollment”. Current HHS regulations exclude DACA recipients from the definition of “lawfully present”, but include TPS, DED, parole, and other deferred action recipients.
In our comment, CIS argued that HHS should continue to exclude DACA from this definition because DACA has been determined by federal courts to be substantively invalid under federal law. Additionally, CIS argued that HHS must also exclude TPS, DED, parole, and deferred action recipients, generally, from the definition of “lawfully present” for ACA benefits purposes because these categories of aliens may not be “reasonably expected to be lawfully present for the duration of their enrollment”. TPS, DED, parole, and deferred action recipients have all received temporary forms of forbearance or permission to enter the United States, have no lawful immigration status, and no legal right to remain in the United States. As a result, they do not meet the standard Congress set to determine whether an alien should be eligible for benefits under the ACA.
Finally, CIS strongly urged HHS to refrain from finalizing the proposed rule and setting an effective date until the states’ challenge to DACA in Texas v. United States has reached a final disposition. In that lawsuit, the Fifth Circuit Court of Appeals held that the DACA program contravened Congress’ scheme for allocating “lawful presence”, by broadening the “categories of aliens who are entitled to lawful presence in the United States”, among other reasons. Accordingly, pursuing this rulemaking while litigation continues demonstrates an exceptional mismanagement of public resources.