[Federal Register Volume 77, Number 169 (Thursday, August 30, 2012)]
[Rules and Regulations]
[Pages 52614-52616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21519]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 152

[CMS-9995-IFC2]
RIN 0938-AQ70


Pre-Existing Condition Insurance Plan Program

AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of 
Health and Human Services (HHS).

ACTION: Amendment to interim final rule with request for comments.

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SUMMARY: This document contains an amendment regarding program 
eligibility to the interim final regulation implementing the Pre-
Existing Condition Plan program under provisions of the Patient 
Protection and Affordable Care Act. In light of a new process recently 
announced by the Department of Homeland Security, eligibility for the 
program is being amended so that the program does not inadvertently 
expand the scope of that process.

DATES: Effective date. These interim final regulations are effective on 
August 30, 2012.
    Comment date. Comments are due on or before October 29, 2012.
    Applicability date. This amendment to the interim final regulation 
generally applies to individuals on August 30, 2012.

ADDRESSES: Written comments may be submitted to any of the addresses 
specified below. Please do not submit duplicates.
    All comments will be made available to the public. Warning: Do not 
include any personally identifiable information (such as name, address, 
or other contact information) or confidential business information that 
you do not want publicly disclosed. All comments are posted on the 
Internet exactly as received, and can be retrieved by most Internet 
search engines. No deletions, modifications, or redactions will be made 
to the comments received, as they are public records. Comments may be 
submitted anonymously.
    In commenting, please refer to file code CMS-9995-IFC2. Because of 
staff and resource limitations, we cannot accept comments by facsimile 
(FAX) transmission. You may submit comments in one of four ways (please 
choose only one of the ways listed):
    1. Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the ``Submit a 
comment'' instructions.
    2. By regular mail. You may mail written comments to the following 
address only: Centers for Medicare & Medicaid Services, Department of 
Health and Human Services, Attention: CMS-9995-IFC2, P.O. Box 8016, 
Baltimore, MD 21244-8016.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address only: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: CMS-9995-IFC2, Mail 
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    4. By hand or courier. Alternatively, you may deliver (by hand or 
courier) your written comments only to the following addresses prior to 
the close of the comment period:
    a. For delivery in Washington, DC--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, Room 445-G, Hubert 
H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 
20201.
    (Because access to the interior of the Hubert H. Humphrey Building 
is not readily available to persons without Federal government 
identification, commenters are encouraged to leave their comments in 
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing 
by stamping in and retaining an extra copy of the comments being 
filed.)
    b. For delivery in Baltimore, MD--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, 7500 Security 
Boulevard, Baltimore, MD 21244-1850.
    If you intend to deliver your comments to the Baltimore address, 
call telephone number (410) 786-4492 in advance to schedule your 
arrival with one of our staff members.
    Inspection of Public Comments: All comments received before the 
close of the comment period are available for viewing by the public, 
including any personally identifiable or confidential business 
information that is included in a comment. We post all comments 
received before the close of the comment period on the following Web

[[Page 52615]]

site as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that Web site to 
view public comments.
    Comments received timely will also be available for public 
inspection as they are received, generally beginning approximately 
three weeks after publication of a document, at the headquarters of the 
Centers for Medicare & Medicaid Services, 7500 Security Boulevard, 
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 
a.m. to 4 p.m. EST. To schedule an appointment to view public comments, 
phone 1-800-743-3951.

FOR FURTHER INFORMATION CONTACT: Alexis Ahlstrom, Centers for Medicare 
& Medicaid Services, Department of Health and Human Services, at (202) 
690-7506.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Patient Protection and Affordable Care Act, Public Law 111-148, 
was enacted on March 23, 2010; the Health Care and Education 
Reconciliation Act of 2010 (Reconciliation Act), Public Law 111-152, 
was enacted on March 30, 2010 (collectively, ``Affordable Care Act''). 
Section 1201 of the Affordable Care Act prohibits issuers of non-
grandfathered health insurance coverage from denying coverage or 
inflating rates based on health status or medical history in policy 
years beginning on or after January 1, 2014. In light of the fact that 
these protections will not take effect until 2014, section 1101 of the 
Affordable Care Act directs the Secretary of Health and Human Services 
to establish, either directly or through contracts with states or 
nonprofit private entities, a temporary high risk health insurance pool 
program to provide immediate access to coverage for eligible uninsured 
Americans with pre-existing conditions. (Hereafter, we generally refer 
to this program as the Pre-Existing Condition Insurance Plan program, 
or the PCIP program.) The PCIP program provides coverage to eligible 
uninsured Americans with pre-existing conditions until 2014, when the 
protections under section 1201 of the Affordable Care Act referenced 
above take effect and coverage is available through the Affordable 
Insurance Exchanges established under section 1311 or 1321 of the Act.
    HHS previously issued an interim final regulation implementing 
section 1101 of the Affordable Care Act. This interim final rule was 
published in the Federal Register on July 30, 2010 (75 FR 45014). For 
the reasons explained below, HHS is now issuing an amendment to this 
interim final rule.

II. Overview of the Amendment to the Interim Final Rule

    The interim final rule issued on July 30, 2010, provided 
information on the administration of the PCIP program, eligibility for 
and enrollment in the program, program benefits, program oversight, 
program funding, coordination with state laws and programs, and the 
transition to coverage through the Affordable Insurance Exchanges. 
Under section 1101(d) of the Affordable Care Act and codified by the 
July 30, 2010 interim final rule at 45 CFR 152.14(a)(1) through (3), an 
individual is eligible to enroll in a PCIP if he or she: (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 of the 
Affordable Care Act \1\); (2) has not been covered under creditable 
coverage (as defined in section 2701(c)(1) of the Public Health Service 
Act as of the date of enactment of the Affordable Care Act--that is, 
March 23, 2010) during the 6-month period prior to the date on which he 
or she is applying for coverage through the PCIP; and (3) has a pre-
existing condition, as determined in a manner consistent with guidance 
issued by the Secretary of HHS. We further provided in Sec.  
152.14(a)(4) of the interim final rule that an individual must be a 
resident of a state that falls within the service area of the PCIP.
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    \1\ Section 1411 of the Affordable Care Act describes the 
procedures to be employed for determining eligibility for coverage 
through the Affordable Insurance Exchanges, and for the premium tax 
credits and cost-sharing reductions that will help eligible 
individuals afford such coverage.
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    In the interim final rule, HHS defined ``lawfully present'' as 
having a similar meaning as that given to ``lawfully residing'' in 
Medicaid and the Children's Health Insurance Program (CHIP), as set 
forth in a State Health Official letter issued by the Centers for 
Medicare & Medicaid Services (CMS) on July 1, 2010.\2\ The July 30, 
2010 interim final rule codified that definition of ``lawfully 
present'' at Sec.  152.2.
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    \2\ See State Health Official (SHO) Letter 10-006/
CHIPRA 17 at: http://downloads.cms.gov/cmsgov/archived-downloads/SMDL/downloads/SHO10006.pdf.
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    Subsequent regulations implementing the Affordable Insurance 
Exchanges, 45 CFR 155.20 (77 FR 18310, March 27, 2012), and the premium 
tax credits, 26 CFR 1.36B-1(g) (77 FR 30377, May 23, 2012), issued by 
HHS and the Department of the Treasury respectively, define ``lawfully 
present'' by a cross-reference to the definition in Sec.  152.2.
    On June 15, 2012, the Department of Homeland Security (DHS) 
announced that it will consider providing temporary relief from removal 
by exercising deferred action on a case-by-case basis with respect to 
certain individuals under age 31 who meet DHS's guidelines, including 
that he or she came to the United States as children and does not 
present a risk to national security or public safety.\3\ This process 
is referred to by DHS as Deferred Action for Childhood Arrivals 
(DACA).\4\
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    \3\ June 15, 2012 Memorandum of Secretary of Homeland Security 
Janet Napolitano, at: http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
    \4\ Consideration of Deferred Action for Childhood Arrivals, at: 
http://www.uscis.gov/childhoodarrivals.
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    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.\5\ 
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.\6\ 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.
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    \5\ See supra nn. 4-5.
    \6\ http://www.medicaid.gov/Federal-Policy-Guidance/Downloads/SHO-12-002.pdf.
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    Under the amended rule, individuals with deferred action under the 
DACA process are not eligible to enroll in the PCIP program. As the 
PCIP program definition of ``lawfully present'' is incorporated into 
the rules governing the Affordable Insurance Exchanges and the premium 
tax credits, individuals whose cases are deferred under the DACA 
process also will not be eligible to enroll in coverage through the 
Affordable Insurance Exchanges and, therefore, will not receive 
coverage that

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could make them eligible for premium tax credits under Treasury 
regulations (see 26 CFR 1.36-2(a)(1)) or for cost-sharing reductions 
starting in 2014.\7\ This is consistent with the rationale above.
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    \7\ This is consistent with prior guidance issued by DHS: ``If 
my case is deferred, will I be eligible for premium tax credits and 
reduced cost sharing through Affordable Insurance Exchanges starting 
in 2014? No. The Departments of Health and Human Services and the 
Treasury intend to conform the relevant regulations to the extent 
necessary to exempt individuals with deferred action for childhood 
arrivals from eligibility for premium tax credits and reduced cost 
sharing. This is consistent with the policy under S. 3992, the 
Development, Relief, and Education for Alien Minors (DREAM) Act of 
2010.'' See Consideration of Deferred Action for Childhood Arrivals, 
http://www.uscis.gov/childhoodarrivals.
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    We invite comment on the determination to exclude these individuals 
from eligibility for the PCIP program and from eligibility for coverage 
through the Affordable Insurance Exchanges, with the consequences noted 
above with respect to the premium tax credits and the cost-sharing 
reductions.

III. Interim Final Regulation and Waiver of Delay of Effective Date

    Under the Administrative Procedure Act (APA) (5 U.S.C. 551, et 
seq.), while a notice of proposed rulemaking and an opportunity for 
public comment is generally required before promulgation of 
regulations, this is not required when an agency, for good cause, finds 
that notice and public comment thereon are impracticable, unnecessary, 
or contrary to the public interest.
    HHS has determined that issuing this regulation in proposed form, 
such that it would not become effective until after public comment, 
would be contrary to the public interest. Because the PCIP program--a 
temporary program with limited funding--is currently enrolling eligible 
individuals and providing benefits for such enrollees, it is important 
that we provide clarity with respect to eligibility for this new and 
unforeseen group of individuals as soon as possible, before anyone with 
deferred action under the DACA process applies to enroll in the PCIP 
program.
    HHS is issuing this amendment as an interim final rule with comment 
so as to provide the public with an opportunity for comment on the 
amendment, including to gather public comment on the implications of 
the amendment.
    The APA also generally requires that a final rule be effective no 
sooner than 30 days after the date of publication in the Federal 
Register. This 30-day delay in effective date can be waived, however, 
if an agency finds good cause as to why the effective date should not 
be delayed, and the agency incorporates a statement of the finding and 
its reason in the rule issued.
    For the same reason that we are issuing an interim final rule, we 
are making it effective immediately; that is, because the PCIP 
program--a temporary program with limited funding--is currently 
enrolling eligible individuals and providing benefits for such 
enrollees, it is important that we provide clarity with respect to the 
eligibility of this new and unforeseen group of individuals as soon as 
possible, before anyone with deferred action under the DACA process 
applies to enroll in the PCIP program.

IV. Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. This rule has been designated a ``significant 
regulatory action,'' although not economically significant, under 
section 3(f) of Executive Order 12866. Accordingly, the rule has been 
reviewed by the Office of Management and Budget.

V. Statutory Authority

    The amendment to the interim final regulation is adopted pursuant 
to the authority contained in section 1101 of the Patient Protection 
and Affordable Care Act (Pub. L. 111-148).

List of Subjects in 45 CFR Part 152

    Administrative practice and procedure, Health care, Health 
insurance, Penalties, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the Department of Health 
and Human Services amends 45 CFR part 152 as follows:

PART 152--PRE-EXISTING CONDITION INSURANCE PLAN PROGRAM

0
1. The authority citation for part 152 continues to read as follows:

    Authority:  Sec. 1101 of the Patient Protection and Affordable 
Care Act (Pub. L. 111-148).


0
2. Section 152.2 is amended by adding paragraph (8) to the definition 
of ``lawfully present'' to read as follows:


Sec.  152.2  Definitions.

* * * * *
    Lawfully present means-- * * *
* * * * *
    (8) Exception. An individual with deferred action under the 
Department of Homeland Security's deferred action for childhood 
arrivals process, as described in the Secretary of Homeland Security's 
June 15, 2012, memorandum, shall not be considered to be lawfully 
present with respect to any of the above categories in paragraphs (1) 
through (7) of this definition.
* * * * *

    Dated: August 24, 2012.
Marilyn Tavenner,
Acting Administrator, Centers for Medicare & Medicaid Services.
    Approved: August 27, 2012.

Kathleen Sebelius,
Secretary, Department of Health and Human Services.
[FR Doc. 2012-21519 Filed 8-28-12; 4:15 pm]
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