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Obama Administration’s Reasoning For Denying DACA Recipients Medicaid Is Transparently Disingenuous

On August 28, 2012, the Center for Medicaid and CHIP Services (“CMS”) of the Department of Health & Human Services wrote a Letter to Medicaid directors of each State in the United States.

CMS declares in its letter that recipients of  Deferred Action for Childhood Arrivals (“DACA”) should not be extended the benefits of Medicaid or CHIP “Because the reasons that DHS offered for adopting the DACA process do not pertain to eligibility for Medicaid or CHIP.”

CMS concurrently issued a new rule solely designed to exclude DACA recipients from Medicaid eligibility. Paragraph (8) was added to 45 CFR 152.2: “An individual with [DACA]…shall not be considered to be lawfully present…” In other words, the Obama administration is saying “shall not be eligible for medicaid.”

CMS relies upon the reasoning within DHS Secretary Napolitano’s June 15, 2012 memorandum:

…the Daca process is designed to ensure that governmental resources for the removal of individuals are focused on high priorty cases, including those involving a danger to national security or a risk to public safety, and not on low priority cases. (emphasis added)

Just last year, on June 15, 2011,  John Morton, Director of Immigration and Customs Enforcement (“ICE”) issued a memorandum on Prosecutorial Discretion to ICE personnel.

The reasoning behind the June 15, 2011 memorandum is the same as that in the June 15, 2012 memorandum:

This memorandum provides U.S. Immigration and Customs Enforcement (ICE) personnel guidance on the exercise·of prosecutorial discretion to ensure that the agency’s immigration enforcement resources are focused on the agency’s enforcement priorities. (emphasis added)

CMS’s then links, without explaining exactly why, to a June 10, 2010  policy letter, presumably to show how DACA recipients do not fit within the already established “lawfully residing” criteria  for purposes of Medicaid eligibility. Persons eligible for Medicaid include but are not limited to: (iii) Aliens who have been granted employment authorization under 8 CFR 274a.12(c)(9), (10), (16), (18), (20), (22), or (24); and (vi) and (vi) Aliens currently in deferred action status; (emphasis added) 

Individuals with an employment authorization document under category (c)(18) are persons with a final order of deportation who are currently reporting to ICE under an order of supervision.

The only reason that individuals with final orders of removal have yet to be deported and are allowed to report on an order of supervision is because ICE is exercising its discretion, purportedly to focus its resources for the removal of individuals who are considered to be high priority, including those involving a danger to national security or a risk to public safety.

DHS’s stated purposes for DACA are identical to that of its stated purposes when it comes to exercising prosecutorial discretion for those with  final orders of removal reporting under an order of supervision:  to focus limited resources, etc. Category (c)(18) is just one example among many other individuals who are allowed to stay in the United States with the acquiesence of DHS because of the very same reasoning

Given the above, it is clear that  CMS’s reasoning for barring DACA recipients from Medicaid is motivated by a fear that hundreds of thousands if not millions of individuals will flood the proverbial Medicaid gates and has nothing to do with DHS’s explanation for the adoption of DACA.

If it did, CMS would have to disqualify thousands and thousands of persons who are already registered for Medicaid, including all whom fall within in the category (c)(18).

Given that CMS is lying about why it is denying DACA recipients Medicaid eligibility, it should either A. Admit that they are lying; or B. Allow DACA recipients to apply for Medicaid because they clearly fall within the already-established guidelines as found in its July 1, 2010 State Health Official Letter to State Health Officials.

This rule is subject to public comments prior to becoming final. MAKE YOUR VOICE HEARD and oppose 45 CFR 152.2(8) by commenting here.

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