Update: (sigh) 8th Circuit Court refuses to continue stay of DACA ACA eligibility injunction; enrollment in 19 states shut down & cancelled after all

Thu, 12/26/2024 - 8:47pm

(sigh) Goddammit. This isn't terribly surprising but it's still pretty disappointing.

As laid out in my prior (repeatedly updated) story about this ongoing saga, the eligibility of up to 100,000 or so uninsured DACA recipients to enroll in healthcare coverage via the ACA marketplaces has been bouncing back & forth for some time now. President Biden originally made a rule change to make them eligible to enroll back in May 2024. Unfortunately, earlier this fall a coalition of 19 Republican state Attorneys General filed a lawsuit to block the Biden Administration from enrolling DACA recipients, and the courts have ping-ponged their status a few times ever since.

Things were looking good a week or so ago when the 8th Circuit Court issued a stay on the injunction...but I just got the most recent ruling from the 8th Circuit Court, and it's bad news:

On December 16, 2024, we granted the agency’s request for a temporary administrative stay of the district court’s December 9 order, pending our consideration of the agency’s motion to stay the district court’s order pending appeal.

Having now considered the motion for stay pending appeal, we vacate the administrative stay, deny the agency’s motion for stay pending appeal, and direct the Clerk of Court to expedite the merits briefing schedule for review of the district court’s grant of the plaintiff-states’ motion for preliminary injunction.

The short version is that the original order is going through, DACA recipients in the 19 states which filed the lawsuit are not legally allowed to enroll in ACA coverage, and any from those 19 states who have already done so are going to have their 2025 policies terminated.

via Ben D'Avanzo of the National Immigration Law Center, here's the key points to know:

If you are not in the 19 states that joined the lawsuits, DACA recipients can and should continue to enroll in ACA coverage.

The 19 states are: Alabama, Arkansas, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, and Virginia.

In those states, DACA recipients and other immigrants who gained eligibility under the final regulation should not attest to being lawfully present for the purpose of ACA eligibility.

CMS will also implement a message that shows up on all federally facilitated marketplace applications noting this. In January, they hope to update their systems so this message only shows in the 19 states. Until then, DACA recipients in non-affected states may be confused when seeing this message but it is important to emphasize the decision only applies to the 19 states.

The federal exchange, HealthCare.Gov, hosts ACA enrollment in 31 states, including 16 of the 19 involved in the lawsuit. That means DACA enrollees in the other 15 states may be confused when they see the message noted above...but it does not apply to them.

In the 19 states, CMS will cancel the health insurance of DACA recipients who have enrolled, plus those who gained ACA eligibility due to the final regulation. Affected individuals will receive a communication about this via the method of communication they provided when they signed up for coverage. If you enrolled an affected individual, please let them to know to look out for this communication. Their premiums will be refunded and it is important they not utilize their health insurance as it is now invalid.

The lawsuit will continue with the government's appeal at the 8th Circuit, with parties filing briefs through February. NILC strongly believes these decisions are wrong and is evaluating next steps on behalf of those who are impacted.

Here's the official notice via HealthCare.Gov:

Court decision on Deferred Action for Childhood Arrivals

On December 9, 2024, the United States District Court for the District of North Dakota issued a preliminary injunction in Kansas v. United States of America (Case No. 1:24-cv-00150) partially blocking implementation of a final rule.

This final rule allowed Deferred Action for Childhood Arrivals (DACA) recipients and individuals in certain other noncitizen groups to enroll in a qualified health plan (QHP) through the Health Insurance Marketplace® (if otherwise eligible) for plan years 2024 and 2025, effective on November 1, 2024.

As a result of the preliminary injunction, Marketplace enrollment has been placed on hold for these groups in the 19 states that are involved in the lawsuit. These states are: Alabama, Arkansas, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, and Virginia. All of those states except Idaho, Kentucky, and Virginia are served by the Federal Marketplace platform on HealthCare.gov.

To comply with this court order, DACA recipients and other noncitizens covered by the rule who reside in the above 19 plaintiff states shouldn't attest to having eligible immigration status in applications for Marketplace coverage.

To further comply with the Court’s order, on December 26, 2024 the Marketplace will make a technical change so that DACA recipients and those other noncitizens covered by the rule who attest to lawful presence aren’t eligible for Marketplace coverage in the 16 states above served by HealthCare.gov.

Following that technical change, the Marketplace will cancel any enrollments for 2025 Marketplace coverage selected by DACA recipients and other noncitizens covered by the rule in the 16 states. The insurance company will refund any premiums paid for that 2025 coverage. DACA recipients and those other noncitizens covered by the rule who enrolled in 2024 Marketplace coverage will have their Marketplace enrollment terminated at the end of the month and won’t have Marketplace coverage starting in 2025. The Marketplace will send a letter about ineligibility for coverage to DACA recipients and those other noncitizens covered by the rule in the 16 states.

We encourage impacted consumers who had a change in their immigration status since they applied for Marketplace coverage to update their Marketplace application with their new immigration status.

Again, here's a table breaking out the estimated number of DACA recipients in each state and how many are potentially still eligible to enroll (this doesn't break them out by how many are uninsured or not):

UPDATE 12/27/24: Healthcare.Gov has indeed posted notices all over the website regarding the latest court ruling. Unfortunately, both kynect (Kentucky) and Your Health Idaho still have notices saying DACA recipients are eligible as of this writing, while Virginia's exchange doesn't seem to mention DACA status one way or the other.