Fact Sheets

HHS Final Rule Clarifying the Eligibility of Deferred Action for Childhood Arrivals (DACA) Recipients and Certain Other Noncitizens

Today, the U.S. Department of Health and Human Services, through the Centers for Medicare & Medicaid Services (CMS), is publishing a final rule to modify the definition of “lawfully present” applicable to eligibility for enrollment in a Qualified Health Plan (QHP) through the Health Insurance Marketplace and a Basic Health Program (BHP). With this modification, DACA recipients will no longer be excluded from that definition, thereby making it possible, effective November 1, 2024, for DACA recipients who meet all other eligibility requirements to enroll in:  

(1) a QHP through the Marketplace with financial assistance like Advance payments of the premium tax credit (APTC) and cost-sharing reductions (CSRs) or 

(2) a BHP.   

These changes support the Affordable Care Act (ACA)’s goals of increasing access to health insurance and improving the health and well-being of people by providing access to affordable, quality health coverage for many uninsured DACA recipients. CMS estimates that this rule could lead to 100,000 previously uninsured DACA recipients newly enrolling in health coverage through a Marketplace plan or a BHP. 

Under this rule, DACA recipients will be treated the same as other individuals granted deferred action for purposes of eligibility for coverage through a Marketplace plan or a BHP. ​In addition, CMS made some technical modifications to the definition of “lawfully present” used to determine eligibility for these programs to create administrative efficiencies, streamline verification processes, and promote clarity and transparency. The rule’s technical changes to the definition of “lawfully present” will benefit consumers by enabling CMS and states to administer their programs more efficiently for eligible noncitizens and to ensure complete, accurate, and consistent eligibility determinations and verification processes for health coverage for these populations.  

CMS is not finalizing a definition of “lawfully present” for Medicaid and the Children’s Health Insurance Program (CHIP) under section 214 of the Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA 214 option) at this time. The CHIPRA 214 option allows states to provide Medicaid and CHIP coverage to children and pregnant individuals who are lawfully residing in the United States, including those within their first five years of having certain legal status. The current definition of “lawfully present” used in determining eligibility for Medicaid and CHIP under the CHIPRA 214 option, based on State Health Official (SHO) letters, SHO #10-006 and SHO #12-002, continues to apply.  

We expect that individuals who would have been eligible for Medicaid or CHIP under these proposals, including DACA recipients, will be eligible for Health Insurance Marketplace coverage with financial assistance or BHP coverage if they meet other eligibility requirements. The ACA allows noncitizens who are ineligible for Medicaid due to their immigration status to access financial assistance, such as Premium Tax Credits (PTC)^[1] and Cost Sharing Reductions (CSRs)^[2] through a Marketplace plan even if their income is below 100% of the federal poverty level (FPL).   

The final rule also updates the definition of “qualified noncitizen” for Medicaid and CHIP, which clarifies the categories of noncitizens that states must cover in these programs. In finalizing the definition, the rule implements existing statutory requirements and is intended to promote clarity and transparency that will support states’ implementation of eligibility policies, training, and accurate eligibility determinations for noncitizens.

After a review of comments from the public regarding the rule’s effective date, CMS has finalized November 1, 2024, as the effective date for all provisions in the rule in order to align with the individual market Open Enrollment Period in most states and allow time for required operational updates. Starting November 1, 2024, DACA recipients will be considered lawfully present for Marketplace and BHP coverage and, if they meet all other eligibility requirements, will be eligible to enroll in a QHP through the Marketplace with financial assistance such as APTC and CSRs or a BHP. 

Newly eligible individuals, including DACA recipients, will qualify for a special enrollment period to enroll in a QHP through the Marketplace during the 60 days following November 1, 2024. Consumers who apply for coverage through a SEP during November 2024 can have their Marketplace coverage begin as early as December 1, 2024, if they meet all other eligibility requirements. Consumers who apply for coverage through a SEP during December 2024 can have their Marketplace coverage begin as early as January 1, 2025, if they meet all other eligibility requirements. Finally, consumers who apply for coverage in January 2025 through the individual market Open Enrollment Period can have their coverage begin February 1, 2025, or March 1, 2025, depending on when they apply and their state’s rules. For DACA recipients who are eligible for a BHP, coverage could begin as early as November 1, 2024.  

The final rule is published at the Federal Register, available at this link.  

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