HHS redefines “lawfully present” to provide drugs to illegal aliens

So much for a border crisis. The Biden administration recently finalized regulations that will provide taxpayer-funded benefits to individuals who entered this country without authorization, defining them as “lawfully present.”

The final rule follows regulations proposed last spring. It will have the same major impact as the original proposal by expanding access to health benefits for certain populations, but it seems cleverly designed to avoid or at least minimize legal issues.

Medicaid expansion not completed

The main controversy in both last year’s proposed rule and this year’s final version centers on health care coverage for individuals enrolled in the Deferred Action for Childhood Arrivals (DACA) program. Both regulations would revise the definition of “lawfully present” to include DACA participants for the purpose of participating in health programs under Obamacare.

A major difference lies in the applicability of the changes in regulations. While last year’s proposed rule changed the definition of “legally present” for both the insurance exchanges and Medicaid, the final rule applied the change only to the exchanges, at least for now.

In practice, failure to complete the Medicaid change will have little impact on DACA participants. Unlike most other populations, DACA participants do not have to earn income equal to the poverty level ($15,060 for a single person in 2024) to qualify for exchange subsidies. And because the increased Biden-era subsidies remain in place next year, the lowest-income recipients could qualify for subsidies that don’t require out-of-pocket premiums for a benchmark health plan.

Fear of legal challenges

In the final rule, the administration stated: “We are not at this time finalizing a ‘lawfully present’ definition for Medicaid. Instead, we are taking more time to evaluate and carefully consider the comments on our proposal regarding Medicaid… (and) to continue to evaluate the potential impact of our proposed definition of “lawfully present” on state Medicaid agencies.

The administration claims that government agencies have too many other obligations related to Medicaid “winding down” — that is, removing ineligible individuals from the Medicaid rolls for the first time since the lockdowns in early 2020. But that explanation seems a pretext, as most states will complete their “development” before the “lawful presence” rule takes effect on November 1, 2024.

The more accurate explanation for the change lies in last year’s recognition in the proposed rule that changing the definition of “legally present” in Medicaid “could impose substantial direct costs on state governments.” I noted last spring that this language “gives states clear authority to bring suit” over this unfunded mandate for states to pay for the increased costs associated with covering DACA participants.

By making DACA participants eligible for exchange subsidies (paid entirely by the federal government) instead of Medicaid (paid by the states and Washington), the Biden administration is trying to avoid giving states the opportunity to mount a legal challenge to enter into. In fact, elsewhere in the regulation, the administration stated that the change “does not require states to fund additional outreach and enrollment activities as a result of this rule.” Apparently the administration wants to avoid imposing new costs on states — in Medicaid, on the exchanges or otherwise — because if courts give a state the authority to challenge part of the rule, it could create an opening to challenge the entire delete line.

Billions in new expenses

Apart from the clever way in which the government has tried to avoid legal challenges, the entire premise of the rule seems rather Orwellian. The idea that a president can unilaterally declare a group of individuals “lawfully” present without the consent of Congress defies logic, not to mention the basic tenets of “our democracy” that the left cares so deeply about.

Consider this sentence: “Some commenters noted opposition to this rule on the grounds that they believe DACA recipients have entered the United States unlawfully, that they believe DACA recipients are undocumented, or that they believe that DACA recipients broke the law.” None of these are beliefsthey are facts.

By definition, to qualify for DACA, one had to have entered the United States unlawfully and without documentation. What someone wants to do with migrants who entered the country as young children is an entirely different question, but trying to deny the basic facts of their circumstances is gaslighting.

The administration estimates that this change will increase federal spending by $1.15 billion between now and 2028. Even this estimate could be low, as the official analysis assumes that precisely none of the nearly three-quarters (73 percent) of DACA recipients currently with coverage will do so. drop that coverage to obtain government benefits.

In 1993, Hillary Clinton testified before Congress that “we certainly do not want (illegal aliens) to receive the same benefits that American citizens are entitled to” because “we now know that too many people are coming (to the United States for medical care, such as those is now.” The fact that Clinton’s comments represent a lone voice of common sense within the Democratic Party speaks to the left’s radicalization of the past thirty years.