HHS Rule: No Health Benefits For Deferred Action Recipients

Earlier this summer, the Obama administration unveiled the “Deferred Action for Childhood Arrivals” program (“DACA”), which will allow undocumented immigrants, who were brought here as children, to receive a two-year deferral of removal, if they meet certain application criteria. [See DHS Update on Deferred Action – August 2012, MurthyDotCom NewsBrief, 19.Aug.2012.] Successful applicants also will be eligible for a work permit for the duration of their deferment, provided they can show “an economic necessity for employment.” [See Consideration of Deferred Action for Childhood Arrivals Process, Frequently Asked Questions, USCIS, updated 23.Aug.2012.]

However, under a new rule published by the Department of Health and Human Services (HHS), it is clear that DACA recipients will not be eligible for a broad range of health programs, including the Children’s Health Insurance Program (CHIP), Medicaid, and key provisions of the Affordable Care Act, commonly known as “Obamacare.” [See Pre-Existing Condition Insurance Plan Program: Amendment to Interim Final Rule With Request for Comments, Federal Register, Vol. 77, No. 169, 52614-52616, 30.Aug.2012.]

HHS says the new rule is intended to clarify that deferred action recipients will not be eligible for the Pre-Existing Condition Insurance Plan (PCIP) – a measure designed to help people with pre-existing conditions, until the health care law takes full effect in 2014. In fact, the rule goes far beyond restricting eligibility for PCIP. It also makes DACA recipients ineligible for Medicaid and CHIP, and bars them from buying health coverage through Affordable Insurance Exchanges, or receiving tax credits to pay for coverage under the new health care law.

According to HHS, the new rule is necessary to prevent DACA from inadvertently expanding its scope – what Washingtonians like to call “mission creep.” Although HHS is allowing interested parties to submit comments on the new rule by October 29, 2012, it has taken the unusual step of making its rule change final as of August 30, 2012, the date of publication. HHS says the rule needed to take effect immediately so that DACA recipients would not start applying for benefits that HHS did not intend to provide for them.

Whether deferred action status will entitle DACA recipients to various state-level benefits remains controversial. Their access to drivers’ licenses and in-state tuition remains to be seen, and will have to be sorted out on a state-by-state basis. Stay tuned.


Copyright © 2012, MURTHY LAW FIRM. All Rights Reserved

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.