This Fall, DACA Recipients Can Enroll in ACA Exchanges for the First Time

Amicus Brief

TRENTON – Attorney General Matthew J. Platkin is leading 18 other jurisdictions to defend a federal effort to expand health insurance access to individuals receiving deferred action pursuant to the Deferred Action for Childhood Arrivals (DACA) policy.

Established in 2012, DACA enables certain young people, who came to the United States as children and have lived here continuously since 2007, to avoid immediate fear of deportation for revocable two-year periods. Separate regulations establish that individuals who have received grants of deferred action may work lawfully in the country.

In May 2024, the U.S. Department of Health and Human Services (HHS) and Centers for Medicaid and Medicare Services (CMS) issued a Final Rule for Medicaid and Affordable Care Act (ACA) eligibility that expands healthcare access to DACA recipients – commonly referred to as Dreamers – by making them eligible to purchase health insurance through ACA exchanges. The Final Rule will take effect on November 1, 2024. A coalition of states sued HHS and CMS in the U.S. District Court for the District of North Dakota in August 2024 and asked the court to delay implementation of the Final Rule, pending judicial review.

“DACA recipients have been unjustly excluded from ACA plans for more than a decade, and I am grateful that these young people will be eligible to enroll in these health insurance plans during open enrollment season,” said Attorney General Platkin. “Not only is healthcare a human right, but it is also just plain common sense to want your friends, neighbors, students, and employees to have access to health care—which benefits not only them and their children, but the whole community. New Jersey has been proud to lead the fight defending DACA for eight years, and now we’re proud to lead this national coalition defending their health.”

The Final Rule, Clarifying the Eligibility of Deferred Action for Childhood Arrivals (DACA) Recipients and Certain Other Noncitizens for A Qualified Health Plan through an Exchange, Advance Payments of the Premium Tax Credit, Cost-Sharing Reductions, and a Basic Health Program, is scheduled to take effect November 1, 2024. It provides crucial public health and economic benefits not only for DACA recipients, who have been in the United States since at least 2007, but also for the wider community.

DACA recipients contribute an estimated $6.2 billion in federal taxes and $3.3 billion in State and local taxes each year and provide critical financial support to their families, including their over 250,000 U.S.-citizen children. They are employed by companies, nonprofit organizations, and government agencies and institutions, work in crucial roles in the medical profession and the U.S. military, are enrolled in public and private universities, and have even started their own businesses that employ other residents, including U.S. citizens.

But DACA recipients previously lacked access to the ACA exchanges, even though Congress extended access to ACA exchanges to all who are “lawfully present”—a term that consistently has been used to include those whom the Department of Homeland Security (DHS) has temporarily allowed to remain without removal via deferred action.

The Final Rule remedies these regulatory discrepancies.

The amici states argue that principles of basic fairness require the court to deny the request to delay implementation of the Final Rule, or at the very least, to narrowly limit relief and avoid a ruling that would negatively impact the health of millions nationwide. The brief emphasizes that most DACA recipients do not live in the states suing to block their healthcare access; two-thirds of Dreamers live in amici states or in states that are not opposed to more equitable healthcare opportunities and have not challenged the HHS rule.

According to data in the Final Rule, DACA recipients are three times more likely to be uninsured than the general U.S. population. Uninsured populations drive up healthcare costs overall and worsen public health, resulting in increased premature deaths, uncompensated care costs, increased medical debt, reduced spending power, lost productivity, and absenteeism from work and school.

Besides the obvious benefits to states that reduce the rate of uninsured populations, such as improved public health and better health outcomes, states that operate their own exchanges can also benefit from including DACA recipients in their exchanges because larger and more diverse risk pools may keep premiums lower for everyone.

The amici states also outline how the Final Rule is lawful and should be upheld. The term “lawfully present” has long been intended by Congress to refer to those individuals who are in the country not only with lawful status, but also those whom DHS has temporarily allowed to remain without removal.

Since 2018, New Jersey has led the nation in actively supporting DACA, including during the prior presidential administration’s repeated, but ultimately failed, attempts to discontinue the policy. In 2023, New Jersey led a comment letter to HHS in support of the rule at issue in today’s filing.

New Jersey is home to over 16,000 active DACA recipients. According to a 2017 survey, nearly all DACA recipients in New Jersey are employed, more than 900 own their own businesses, 7,800 are in school, 5,600 are pursuing a bachelor’s, master’s or professional degree, and 12,650 have an American citizen sibling, spouse, or child. Nationwide, there are over 250,000 U.S. citizen children born to a DACA recipient.

In New Jersey, this matter is being handled by Assistant Section Chief Andrew Yang and Deputy Attorneys General Amanda Morejón, Joshua Bohn, Bryce Hurst, and Viviana Hanley, under the supervision of Section Chief Jessica Palmer of the Special Litigation Section within the Division of Law’s Affirmative Civil Enforcement Practice Group.

States joining Attorney General Platkin in today’s filing include

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