HHS Confirms DACA Grantees Are Not Eligible For Medicaid

DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 152

[CMS-9995-IFC2]
RIN 0938-AQ70

Pre-Existing Condition Insurance Plan Program

AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of
Health and Human Services (HHS).

ACTION: Amendment to interim final rule with request for comments.

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SUMMARY: This document contains an amendment regarding program
eligibility to the interim final regulation implementing the Pre-
Existing Condition Plan program under provisions of the Patient
Protection and Affordable Care Act. In light of a new process recently
announced by the Department of Homeland Security, eligibility for the
program is being amended so that the program does not inadvertently
expand the scope of that process.

DATES: Effective date. These interim final regulations are effective on
August 30, 2012.
Comment date. Comments are due on or before October 29, 2012.
Applicability date. This amendment to the interim final regulation
generally applies to individuals on August 30, 2012.

ADDRESSES: Written comments may be submitted to any of the addresses
specified below. Please do not submit duplicates.
All comments will be made available to the public. Warning: Do not
include any personally identifiable information (such as name, address,
or other contact information) or confidential business information that
you do not want publicly disclosed. All comments are posted on the
Internet exactly as received, and can be retrieved by most Internet
search engines. No deletions, modifications, or redactions will be made
to the comments received, as they are public records. Comments may be
submitted anonymously.
In commenting, please refer to file code CMS-9995-IFC2. Because of
staff and resource limitations, we cannot accept comments by facsimile
(FAX) transmission. You may submit comments in one of four ways (please
choose only one of the ways listed):
1. Electronically. You may submit electronic comments on this
regulation to http://www.regulations.gov. Follow the ``Submit a
comment'' instructions.
2. By regular mail. You may mail written comments to the following
address only: Centers for Medicare & Medicaid Services, Department of
Health and Human Services, Attention: CMS-9995-IFC2, P.O. Box 8016,
Baltimore, MD 21244-8016.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address only: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: CMS-9995-IFC2, Mail
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
4. By hand or courier. Alternatively, you may deliver (by hand or
courier) your written comments only to the following addresses prior to
the close of the comment period:
a. For delivery in Washington, DC--Centers for Medicare & Medicaid
Services, Department of Health and Human Services, Room 445-G, Hubert
H. Humphrey Building, 200 Independence Avenue SW., Washington, DC
20201.
(Because access to the interior of the Hubert H. Humphrey Building
is not readily available to persons without Federal government
identification, commenters are encouraged to leave their comments in
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing
by stamping in and retaining an extra copy of the comments being
filed.)
b. For delivery in Baltimore, MD--Centers for Medicare & Medicaid
Services, Department of Health and Human Services, 7500 Security
Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address,
call telephone number (410) 786-4492 begin_of_the_skype_highlighting FREE (410) 786-4492 end_of_the_skype_highlighting in advance to schedule your
arrival with one of our staff members.
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. We post all comments
received before the close of the comment period on the following Web

[[Page 52615]]

site as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that Web site to
view public comments.
Comments received timely will also be available for public
inspection as they are received, generally beginning approximately
three weeks after publication of a document, at the headquarters of the
Centers for Medicare & Medicaid Services, 7500 Security Boulevard,
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30
a.m. to 4 p.m. EST. To schedule an appointment to view public comments,
phone 1-800-743-3951 begin_of_the_skype_highlighting FREE 1-800-743-3951 end_of_the_skype_highlighting.

FOR FURTHER INFORMATION CONTACT: Alexis Ahlstrom, Centers for Medicare

& Medicaid Services, Department of Health and Human Services, at (202)
690-7506.

SUPPLEMENTARY INFORMATION:

I. Background

The Patient Protection and Affordable Care Act, Public Law 111-148,
was enacted on March 23, 2010; the Health Care and Education
Reconciliation Act of 2010 (Reconciliation Act), Public Law 111-152,
was enacted on March 30, 2010 (collectively, ``Affordable Care Act'').
Section 1201 of the Affordable Care Act prohibits issuers of non-
grandfathered health insurance coverage from denying coverage or
inflating rates based on health status or medical history in policy
years beginning on or after January 1, 2014. In light of the fact that
these protections will not take effect until 2014, section 1101 of the
Affordable Care Act directs the Secretary of Health and Human Services
to establish, either directly or through contracts with states or
nonprofit private entities, a temporary high risk health insurance pool
program to provide immediate access to coverage for eligible uninsured
Americans with pre-existing conditions. (Hereafter, we generally refer
to this program as the Pre-Existing Condition Insurance Plan program,
or the PCIP program.) The PCIP program provides coverage to eligible
uninsured Americans with pre-existing conditions until 2014, when the
protections under section 1201 of the Affordable Care Act referenced
above take effect and coverage is available through the Affordable
Insurance Exchanges established under section 1311 or 1321 of the Act.
HHS previously issued an interim final regulation implementing
section 1101 of the Affordable Care Act. This interim final rule was
published in the Federal Register on July 30, 2010 (75 FR 45014). For
the reasons explained below, HHS is now issuing an amendment to this
interim final rule.

II. Overview of the Amendment to the Interim Final Rule

The interim final rule issued on July 30, 2010, provided
information on the administration of the PCIP program, eligibility for
and enrollment in the program, program benefits, program oversight,
program funding, coordination with state laws and programs, and the
transition to coverage through the Affordable Insurance Exchanges.
Under section 1101(d) of the Affordable Care Act and codified by the
July 30, 2010 interim final rule at 45 CFR 152.14(a)(1) through (3), an
individual is eligible to enroll in a PCIP if he or she: (1) Is a
citizen or national of the United States or is lawfully present in the
United States (as determined in accordance with section 1411 of the
Affordable Care Act \1\); (2) has not been covered under creditable
coverage (as defined in section 2701(c)(1) of the Public Health Service
Act as of the date of enactment of the Affordable Care Act--that is,
March 23, 2010) during the 6-month period prior to the date on which he
or she is applying for coverage through the PCIP; and (3) has a pre-
existing condition, as determined in a manner consistent with guidance
issued by the Secretary of HHS. We further provided in Sec.
152.14(a)(4) of the interim final rule that an individual must be a
resident of a state that falls within the service area of the PCIP.
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\1\ Section 1411 of the Affordable Care Act describes the
procedures to be employed for determining eligibility for coverage
through the Affordable Insurance Exchanges, and for the premium tax
credits and cost-sharing reductions that will help eligible
individuals afford such coverage.
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In the interim final rule, HHS defined ``lawfully present'' as
having a similar meaning as that given to ``lawfully residing'' in
Medicaid and the Children's Health Insurance Program (CHIP), as set
forth in a State Health Official letter issued by the Centers for
Medicare & Medicaid Services (CMS) on July 1, 2010.\2\ The July 30,
2010 interim final rule codified that definition of ``lawfully
present'' at Sec. 152.2.
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\2\ See State Health Official (SHO) Letter 10-006/
CHIPRA 17 at: http://downloads.cms.gov/cmsgov/archived-downloads/SMDL/downloads/SHO10006.pdf.
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Subsequent regulations implementing the Affordable Insurance
Exchanges, 45 CFR 155.20 (77 FR 18310, March 27, 2012), and the premium
tax credits, 26 CFR 1.36B-1(g) (77 FR 30377, May 23, 2012), issued by
HHS and the Department of the Treasury respectively, define ``lawfully
present'' by a cross-reference to the definition in Sec. 152.2.
On June 15, 2012, the Department of Homeland Security (DHS)
announced that it will consider providing temporary relief from removal
by exercising deferred action on a case-by-case basis with respect to
certain individuals under age 31 who meet DHS's guidelines, including
that he or she came to the United States as children and does not
present a risk to national security or public safety.\3\ This process
is referred to by DHS as Deferred Action for Childhood Arrival