Law and Software

Following on from Bill Hing’s presentation in the first meeting, the second Salon Saucedo discussion was led by Shiu Min Cheer of the NILC. She briefed us about DACA, and many issues relating to the Dreamers. There is so much I could say here about that, but it would just rehash what everyone else is saying. One thing I hadn’t known about was the recent  HHS regulation that seems to deny DACA beneficiaries access to the Affordable Care Act. My initial reaction was that the HHS in the Obama Administration isn’t going to act irrationally, and if they make such a regulation, then their hands must be tied. If the legislation has already said who is and who isn’t eligible – then an executive order by the president isn’t going to be able to change the law. So this blog entry peels away the layers of the ACA onion, and takes a closer look at the HHS intermin final rule. Turns out I was wrong.

On August 30, 2012, the Department of Health and Human Services published an Amendment to interim final rule with request for comments relating to Deferred Action for Childhood Arrivals (DACA) and section 1101 of the Affordable Care Act, a provision that addresses coverage of Americans with pre-existing conditions in the period before the ACA takes effect in 2014. This provision is also known as the Pre-existing Condition Insurance Plan (PCIP).

Next day, the ImmigrationProg blog announced “DACA DREAMers Ineligible for Affordable Health Care” expressing disappointment that the DACA dreamers were being treated differently from other beneficiaries of Deferred Action, and with the motives for and manner of the announcement:

” in order to exclude DACA beneficiaries and treat them differently from others with deferred action, the administration quietly released the following two policy announcements on August 28, 2012, both of which take immediate effect”

So, are the DACA DREAMers ineligible for Affordable Health Care? And did the Administration quietly sneak these provisions into the ACA regulations? Lets look at the evidence.

The full text of the HHS publication in the Federal Register has been reproduced by ilw.com.

The publication rules on eligibility for the PCIP plan (Section 1101 of the ACA), an interim measure to provide coverage for uninsured Americans with pre-existing conditions until Section 1201 of the ACA comes into effect.

Section 1101 begins:

Not later than 90 days after the 7 date of enactment of this Act, the Secretary shall establish a temporary high risk health insurance pool program to provide health insurance coverage for eligible individuals during the period beginning on the date on which such program is established and ending on January 1, 2014. [1101(a)]

Section (d) defines an eligible individual:

(d) ELIGIBLE INDIVIDUAL.—An individual shall be deemed to be an eligible individual for purposes of this section if such individual—

(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);

(2) has not been covered under creditable coverage (as defined in section 2701(c)(1) of the Public 6 Health Service Act as in effect on the date of enactment of this Act) during the 6-month period prior to the date on which such individual is applying for 9 coverage through the high risk pool; and

(3) has a pre-existing condition, as determined in a manner consistent with guidance issued by the Secretary.

Before the HHS can decide on your eligibility, it has make the threshold determination of whether you are lawfully present in the United States. And that must be done in accordance with section 1411.

So, what does section 1411 say? Section 1411 is the start of Subpart B of the Act, ‘Eligibility Determinations’ which sets up procedures to test

whether an individual who is to be covered in the individual market by a qualified health plan offered through an Exchange, or who is claiming a premium tax credit or reduced cost-sharing, meets the requirements of sections 1312(f)(3), 1402(e), and 1412(d) of this title and section 36B(e) of the Internal Revenue Code of 1986 that the individual be a citizen or national of the United States or an alien lawfully present in the United States;

It does not say “whether an individual be a citizen or national of the United States or an alien lawfully present in the United States.” Instead, it says there are requirements, and we have to go find out what these requirements are. If you want to know the answer, you have to keep going.

Requirement #1: Section 1312 is about Consumer Choice. And (f) says:

(3) ACCESS LIMITED TO LAWFUL RESIDENTS.— If an individual is not, or is not reasonably expected to be for the entire period for which enrollment is sought, a citizen or national of the United States or an alien lawfully present in the United States, the individual shall not be treated as a qualified individual and may not be covered under a qualified health plan in the individual market that is offered through an Exchange.

There is no definition here. It does raise the issue of whether a Dreamer on a 2-year renewable work permit should be eligible for only a short-term 2-year period. But this is off the HHS radar.

Requirement #2: Section 1402 is about cost-sharing in a qualified plan. 1402(e) is a set of rules for people who are not lawfully present. Rules for not taking you into account if you are not lawfully present don’t help us. But subsection 2 helps by saying who is lawfully present:

(e) RULES FOR INDIVIDUALS NOT LAWFULLY  PRESENT.—

(2) LAWFULLY PRESENT.—For purposes of this section, an individual shall be treated as lawfully  present only if the individual is, and is reasonably  expected to be for the entire period of enrollment for  which the cost-sharing reduction under this section is  being claimed, a citizen or national of the United  States or an alien lawfully present in the United  States.

This second requirement is the positive version of the first.1312 excludes you if you don’t fit. 1402 only includes those that do fit. There is no twilight zone.

Requirement #3 is Section 1412. 1412 is about tax credits. 1412(d) says:

(d) NO FEDERAL PAYMENTS FOR INDIVIDUALS NOT LAWFULLY PRESENT.—Nothing in this subtitle or the  amendments made by this subtitle allows Federal payments,  credits, or cost-sharing reductions for individuals who are  not lawfully present in the United States.

1412 emphasizes there is no wiggle-room. Dont read any new entitlements for those not lawfully present into the ACA.

And finally, we go requirement #4 in the tax code. Section 36B is a new section specifically related to tax credits and the ACA. 36B(e) is like 1412 – it explains how to make someone invisible for calculation of the tax credit if they are not lawfully present in the United States. And has to say something about what it means by lawfully present.

(2) Lawfully present
For purposes of this section, an individual shall be treated as lawfully present only if the individual is, and is reasonably expected to be for the entire period of enrollment for which the credit under this section is being claimed, a citizen or national of the United States or an alien lawfully present in the United States.

The tax code echoes 1402. If you are lawfully present in the United States you get to be considered for the benefit. There is no subclass of “lawfully present” in the legislation. To meet the threshold eligibility requirement of being lawfully present, the ACA says:

First, you have to be a citizen/national of the US or an “alien lawfully present in the United States”

And second, you have to be lawfully present for the entire period of enrollment.

The Act does not impose any restrictions on what it means to be lawfully present, except for the “entire period” requirement. As far as Congress is concerned, you are lawfully present for the purposes of the Act if you are lawfully present in the United States. The Act does not give any extra powers to the authors of Regulations. It does not ask for them to rule on whether someone is lawfully present or not. If you are, you’re in. If you aren’t, you are invisible. There is no ambiguity for the agency to resolve.

HHS have to provide procedures. And they have to deal with the threshold “lawfully present” requirement.

They faced a similar issue in another program, and wrote a regulation that didn’t explode in their face then – so they used the definition of “lawfully residing” in Medicaid and the Children’s Health Insurance Program (CHIP) as their starting point.

In this document, their list includes:

(4) An alien who belongs to one of the following classes:

(vi) Aliens currently in deferred action status;

And this was the definition they used in ACA regulations developed up through May 2012.

They then note that on June 15th, the DHS announced they would exercise deferred action on a case-by-case basis for the Dreamers, undocumented young people who meet the DHS DACA guidelines.

So the Dreamers are Aliens currently in deferred action status, and meet the HHS definition. Or at least they did.

As DHS has explained, the DACA process is designed to ensure that  governmental resources for the removal of individuals are focused on  high priority cases, including those involving a danger to national  security or a risk to public safety, and not on low priority cases. Because the reasons that DHS offered for adopting the DACA process do  not pertain to eligibility for Medicaid or CHIP, HHS has determined  that these benefits should not be extended as a result of DHS deferring  action under DACA. Concurrent with this amendment, CMS is issuing a  State Health Official letter providing that individuals whose cases are  deferred under DHS’s DACA process will not be eligible under the state  option. As it also would not be consistent with the reasons offered  for adopting the DACA process to extend health insurance subsidies  under the Affordable Care Act to these individuals, HHS is amending its  definition of “lawfully present” in the PCIP program, so that the  PCIP program interim final rule does not inadvertently expand the scope of the DACA process.

Lets unpack this.

As DHS has explained, the DACA process is designed to ensure that  governmental resources for the removal of individuals are focused on  high priority cases, including those involving a danger to national  security or a risk to public safety, and not on low priority cases.

The DHS policy under the Obama Administration has consistently been to focus on high priority cases. President Obama in his rose garden speech and on his blog did not talk about DACA as a way of doing more to focus on high priority cases. He said

“It’s the right thing to do”

The DACA beneficiaries are not (at least as far as the HHS’ boss is concerned) low priority cases for deportation.

These are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag. They are Americans in their heart, in their minds, in every single way but one: on paper. They were brought to this country by their parents—sometimes even as infants—and often have no idea that they’re undocumented until they apply for a job or a driver’s license, or a college scholarship.

HHS continues:

 Because the reasons that DHS offered for adopting the DACA process do  not pertain to eligibility for Medicaid or CHIP, HHS has determined  that these benefits should not be extended as a result of DHS deferring  action under DACA.

In the June 15 DHS letter, Janet Napolitano offered her reasons:

Our Nation’ s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways.

Do these reasons pertain to eligibility for Medicaid or CHIP? The reasons clearly articulate that the target group for deferred action are productive and are people who significantly contribute to the country.

The HHS interim final rule is certainly interim. And it is a final rule only as long as it is an interpretation that is rationally related to the intentions of Congress. It doesn’t have to be the interpretation we agree with, or the best interpretation, or the fairest. At some point (hopefully soon), they will have to explain why they have narrowed their own definition of lawfully present with respect to those aliens lawfully present through deferred action. And they will have to explain how their interpretation translates President Obama’s strong affirmation that this is the right thing to do and Secretary Napolitano’s statement that the immigration laws are not designed to remove productive young people into “DACA beneficiaries are low priority cases for deportation.”

Acts of Congress are difficult to read, they often cross-reference sections and make it hard to get to a definition of terms. And it would be easy to believe (as I did when I first read the HHS publication) that their hands were tied, and that some details in the  ACA actually make it impossible for the dreamers to benefit from the ACA as the act stands. But when you follow the legislators down the rabbit hole, and reach their definition – which simply says you are lawfully present for the purposes of the act if you are lawfully present in the United States, you find no comfortable explanation for the HHS rule. Congress did not make a qualified statement of the threshold question of lawful presence for medicaid purposes. It said that you are lawfully present if you are

 a citizen or national of the United States or […] lawfully present in the United States (as determined in accordance with section 1411);

The buck certainly stops with the President. But only time will tell whether the administration quietly introduced this regulation, or whether the regulation was introduced quietly by the HHS at a time when the administration was distracted by the Democratic Convention.