DEPARTMENT OF HEALTH & HUMAN SERVICES 
Centers for Medicare & Medicaid Services 
7500 Security Boulevard, Mail Stop S2-26-12 
Baltimore, Maryland 21244-1850 
 
Center for Medicaid, CHIP and Survey & Certification 
                   
 
SHO #   10-006 
                  CHIPRA #   17 
 
July 1, 2010 
 
Re:  Medicaid and CHIP Coverage of Lawfully 
  Residing Children and Pregnant Women 
 
Dear State Health Official: 
 
This letter is one of a series that provides guidance on implementation of the Childrens Health 
Insurance Program Reauthorization Act of 2009 (CHIPRA), Public Law 111-3.  Section 214 of 
CHIPRA permits States to cover certain children and pregnant women in both Medicaid and the 
Childrens Health Insurance Program (CHIP) who are lawfully residing in the United States  as 
described in section 1903(v)(4) and 2107(e)(l)(J) of the Social Security Act (the Act).  The 
section 214 option may be applied to pregnant women in Medicaid and CHIP and/or to children 
up to age 19 for CHIP or up to age 21 for Medicaid (including targeted low-income children 
described in section 1905(u)(2)(B) of the Act).   
 
Background  
 
The enactment of the Personal Responsibility and Work Opportunity Reconciliation Act 
(PRWORA) of 1996 (Public Law 104-193), placed limitations on Federal funding for health 
coverage of immigrant families. Section 403 of PRWORA imposed a 5-year waiting period on 
certain groups of qualified aliens, including most children and pregnant women who were 
otherwise eligible for Medicaid.  Medicaid coverage for individuals subject to the 5-year waiting 
period and for those who do not meet the definition of qualified alien was limited to treatment of 
an emergency medical condition as described in section 1903(v)(2)(A) of the Act.  The 5-year 
waiting period also applied to children and pregnant women under CHIP.  Note that PRWORA 
did not affect eligibility of undocumented aliens; people who are undocumented were not 
eligible for Medicaid (except for emergency services) before PRWORA, and remain ineligible 
under CHIPRA.  
 
Coverage Option Under CHIPRA 
 
Section 214 of CHIPRA amends section 2107 of the Act to grant States the option to provide 
Medicaid and CHIP coverage to all children and pregnant women (including women covered 
during the 60-day postpartum period) who are lawfully residing in the United States... and who 
are otherwise eligible for such assistance, as described in section 1903 of the Act.   States may  
    Page 2  State Health Officials 
 
elect to cover these groups under Medicaid only or under both Medicaid and CHIP.  The law 
does not permit States to cover these new groups only in CHIP, without also extending the 
option to Medicaid. 
 
While the phrase lawfully residing in the United States has not previously been used when 
describing individuals who could be eligible for Medicaid and CHIP, it has been used in various 
other contexts, such as by the United States Department of Agriculture (USDA) and the Social 
Security Administration (SSA).  
 
For example, for purposes of determining whether certain individuals are eligible to receive food 
stamps (now called the Supplemental Nutrition Assistance Program (SNAP)), regulations at 7 
CFR 273.4(a)(7) state that lawfully residing in the U.S. means that the individual is lawfully 
present as defined in regulations at 8 CFR 103.12(a).  Likewise, for purposes of Title II benefits 
under SSA, lawfully residing in the U.S. means that an individual is lawfully present as 
defined by 8 CFR 103.12(a) and is a resident of the U.S. as defined in SSA regulations and 
program instructions.  In both of these programs, the terms lawfully residing and lawfully 
present are broader than the term qualified alien in section 431 of PRWORA (8 U.S.C.  
1641) with respect to immigration status (the term qualified alien does not include residence-
based criteria).  We have looked to these programs to assist us in defining lawfully residing for 
purposes of implementing section 214 of CHIPRA.   
 
In interpreting lawfully residing, we will rely on existing immigration regulations for the 
purpose of defining lawful presence and longstanding Medicaid rules to establish residency.  In 
other words, the residing part of the lawfully residing requirement is construed as 
synonymous with the longstanding Medicaid residency requirement, rather than as requiring a 
separate and redundant residency determination for the sole purpose of determining lawful 
residence.  For example, a nonimmigrant visitor for business or pleasure may be lawfully 
present under immigration regulations, but not meet Medicaid or CHIP residency requirements, 
and therefore will not be able to qualify for Medicaid or CHIP. 
 
Lawfully Present  
 
Children and pregnant women that fall into one of the categories below will be considered 
lawfully present.  Therefore, these individuals are eligible for Medicaid and CHIP coverage if the 
State elects the new option under CHIPRA, and the child or pregnant woman meets the State 
residency requirements and other Medicaid or CHIP eligibility requirements.  
 
The basis of our construction of lawful presence is the broad definition provided in DHS 
regulations at 8 CFR 103.12(a) for the specific purpose of Title II Social Security benefits, with 
some revisions necessary for updating or clarifying purposes, or as otherwise deemed 
appropriate for the Medicaid and CHIP programs consistent with the Act. 
 
    Page 3  State Health Officials 
 
A child or pregnant woman shall be considered lawfully present if he or she is:   
 
(1) A qualified alien as defined in section 431 of PRWORA (8 U.S.C. 1641); 
 
(2) An alien in nonimmigrant status who has not violated the terms of the status under which 
he or she was admitted or to which he or she has changed after admission;  
 
(3) An alien who has been paroled into the United States pursuant to section 212(d)(5) of the 
Immigration and Nationality Act (INA) (8 U.S.C. 1182(d)(5)) for less than 1 year, 
except for an alien paroled for prosecution, for deferred inspection or pending removal 
proceedings;   
 
(4) An alien who belongs to one of the following classes:  
 
(i) Aliens currently in temporary resident status pursuant to section 210 or 245A of the 
INA (8 U.S.C. 1160 or 1255a, respectively);  
(ii) Aliens currently under Temporary Protected Status (TPS) pursuant to section 244 of 
the INA (8 U.S.C. 1254a), and pending applicants for TPS who have been granted 
employment authorization;  
(iii)  Aliens who have been granted employment authorization under 8 CFR 
274a.12(c)(9), (10), (16), (18), (20), (22), or (24); 
(iv) Family Unity beneficiaries pursuant to section 301 of Pub. L. 101-649, as amended;  
(v) Aliens currently under Deferred Enforced Departure (DED) pursuant to a decision 
made by the President;  
(vi) Aliens currently in deferred action status; or 
(vii) Aliens whose visa petition has been approved and who have a pending application 
for adjustment of status;  
 
(5) A pending applicant for asylum under section 208(a) of the INA (8 U.S.C.  1158) or for 
withholding of removal under section 241(b)(3) of the INA (8 U.S.C.  1231) or under 
the Convention Against Torture who has been granted employment authorization, and 
such an applicant under the age of 14 who has had an application pending for at least 180 
days; 
 
(6) An alien who has been granted withholding of removal under the Convention Against 
Torture; 
 
(7) A child who has a pending application for Special Immigrant Juvenile status as described 
in section 101(a)(27)(J) of the INA (8 U.S.C.  1101(a)(27)(J)); 
    Page 4  State Health Officials 
 
(8) An alien who is lawfully present in the Commonwealth of the Northern Mariana Islands 
under 48 U.S.C.  1806(e); or 
 
(9) An alien who is lawfully present in American Samoa under the immigration laws of 
American Samoa. 
 
Under CHIPRA, a State electing to cover children or pregnant women who are considered to be 
lawfully residing in the U.S. must offer coverage to all such individuals who meet this definition 
of lawfully residing, and may not cover a subgroup or only certain groups (e.g., only the 
PRWORA group of qualified aliens, or only citizens of Compact of Free Association nations, or 
only aliens residing for a specified period, such as 3 years).   
 
Residency 
Children and pregnant women who meet the definition set forth above of lawfully present also 
must be residents of the State in which they are applying in order to qualify for Medicaid or 
CHIP.  An individual would not be eligible for Medicaid or CHIP, even if he or she is considered 
to be lawfully present in the U.S., if the individual is not a resident of the State, as the individual 
would not be considered as either lawfully residing in the U.S. or as a State resident.  At the 
same time, an individual would be eligible for Medicaid and CHIP if he or she is considered to 
be lawfully present in the U.S. and is a State resident, even if the individuals current 
immigration status is of a temporary nature (such as TPS).  Implementing regulations at 42 CFR 
435.403 specify State residence in Medicaid to mean living in a State and having the intent to 
remain permanently for an indefinite period.  Each individual should have an opportunity to 
establish that he or she lives in the State and intends to remain there. 
 
Sponsor Deeming and Public Charge 
The alien sponsor deeming requirements described in section 421 of PRWORA may not be 
applied to individuals covered under the new CHIPRA section 214 option.  A sponsors income 
and resources are not considered when determining eligibility.  In addition, no debt will be 
created for the sponsor by any services provided to such individuals who have been found 
eligible for Medicaid or CHIP.  The cost of Medicaid or CHIP assistance will not be considered 
as an unreimbursed cost associated with the public charge provisions. 
 
Eligibility Determinations and Redeterminations 
 
Under CHIPRA, a State electing to cover children or pregnant women who are considered to be 
lawfully residing in the U.S. must offer coverage to all such individuals who meet this definition 
of lawfully residing, and may not cover a subgroup or only certain groups (e.g., only the 
PRWORA group of qualified aliens, or only citizens of Compact of Free Association nations, or 
only aliens residing for a specified period, such as 3 years).   
 
    Page 5  State Health Officials 
 
States that elect the new option under CHIPRA must verify that the individual meets the 
definition of lawfully residing in the U.S. at the time of application, according to the rules 
established under section 1137(d) of the Act.  Eligibility also must be verified at renewal.   
Consistent with other Medicaid requirements, the State should first rely on information provided 
at the time of initial application under the rules established at section 1137(d) to determine 
ongoing eligibility.  States should only require the individual to provide further documentation or 
to re-verify satisfactory status if the State cannot verify continued eligibility based on the 
information already available to the State.   
 
State Plan Amendments  
 
A State may elect the section 214 CHIPRA option by submitting a State plan amendment (SPA) 
under Medicaid only or amendments under both Medicaid and CHIP.  Section 214 of CHIPRA 
does not permit the application of this option under CHIP only.  Attached are two draft State plan 
templates that States can use to elect the section 214 option under Medicaid and CHIP.  States 
electing to provide CHIP coverage of children and/or pregnant women must submit concurrent 
CHIP and Medicaid SPAs to CMS for consideration.  Also, a State must choose whether to adopt 
this option for children (all children up to age 19 for CHIP or up to age 21 for Medicaid), 
pregnant women, or both. 
 
Federal Financial Participation 
 
Because this is a new eligibility group, children up to age 19 covered under the section 214 
option (at any income level) are considered targeted low-income children under section 2110(b) 
of the Act. As such, claims paid on behalf of children eligible under the new option created by 
section 214 may be matched at the enhanced title XXI match rate, regardless of whether the child 
is covered through Medicaid or a separate CHIP program.  States also have the option under 
Section 115 of CHIPRA to claim regular Medicaid Federal Financial Participation (FFP) for the 
children enrolled in Medicaid or a CHIP-funded Medicaid expansion.  
 
Medicaid eligible individuals for whom the State receives FFP at the CHIP enhanced rate and 
who would be subject to the 5-year waiting period under section 403 of PRWORA, must be 
claimed at the Medicaid FFP rate once these children have met the 5-year waiting period.   For 
example, a child who entered the country on November 1, 2008 as a qualified alien (under 
section 431 of PRWORA) may be claimed at the enhanced rate until October 31, 2013, the end 
of the 5-year waiting period for that child.  Subsequently, a State must cover this child using title 
XIX funds.  Therefore, States that choose to claim the title XXI enhanced match must have a 
process for tracking these children in order to determine when the regular matching rate would 
come into effect. States may continue to claim enhanced title XXI enhanced matching for 
children under age 19 who are lawfully residing in the U.S. and who are not considered qualified 
aliens under PRWORA as described above.   
 
    Page 6  State Health Officials 
 
For all others who obtain Medicaid coverage due to this option, which includes children ages 19 
to 21, and pregnant women enrolled in Medicaid, FFP is available at the Medicaid matching rate.   
The increased Federal medical assistance percentage, as described under the American Recovery 
and Reinvestment Act of 2009, will apply to medical assistance payments for this population.  
Pregnant women covered under the new CHIPRA pregnant women option (section 111) under a 
CHIP plan will qualify for the CHIP enhanced match rate.   
 
CMS looks forward to its continued work with States on the implementation of the CHIPRA 
eligibility expansion to lawfully residing pregnant women and children.  Thank you for your 
continued commitment to providing health coverage through these critical programs.  If you have 
questions regarding this letter, please contact Victoria Wachino, Director, Family and Childrens 
Health Programs Group, at 410-786-5647.  
 
              Sincerely, 
 
 
              Cindy Mann 
 
 
Enclosures 
State Plan Amendment templates 
 
 
cc: 
CMS Regional Administrators 
 
CMS Associate Regional Administrators 
Division of Medicaid and Childrens Health 
 
Ann C. Kohler 
NASMD Executive Director 
American Public Human Services Association 
 
Joy Wilson 
Director, Health Committee 
National Conference of State Legislatures 
 
Matt Salo 
Director of Health Legislation 
National Governors Association 
 
    Page 7  State Health Officials 
 
Debra Miller 
Director for Health Policy 
Council of State Governments 
 
Christine Evans, M.P.H. 
Director, Government Relations 
Association of State and Territorial Health Officials 
 
Alan R. Weil, J.D., M.P.P. 
Executive Director 
National Academy for State Health Policy 
    Page 8  State Health Officials 
 
Enclosure  
 
Section 4.  Eligibility Standards and Methodology  Expanding Coverage to 
Individuals Lawfully Residing in the US 
 
 
Section 4.  Eligibility Standards and Methodology 
 
4.1.10 _____  Check if the State is electing the option under section 214 of the Childrens 
Health Insurance Program Reauthorization Act of 2009 (CHIPRA) to 
provide coverage to the following otherwise eligible pregnant women and 
children as specified below who are lawfully residing in the United States 
including the following: 
 
A child or pregnant woman shall be considered lawfully present if he or she is:   
 
(1) A qualified alien as defined in section 431 of PRWORA (8 U.S.C. 1641); 
 
(2) An alien in nonimmigrant status who has not violated the terms of the status under which 
he or she was admitted or to which he or she has changed after admission;  
 
(3) An alien who has been paroled into the United States pursuant to section 212(d)(5) of the 
Immigration and Nationality Act (INA) (8 U.S.C. 1182(d)(5)) for less than 1 year, 
except for an alien paroled for prosecution, for deferred inspection or pending removal 
proceedings;   
 
(4) An alien who belongs to one of the following classes:  
 
(i) Aliens currently in temporary resident status pursuant to section 210 or 245A of the 
INA (8 U.S.C. 1160 or 1255a, respectively);  
(ii) Aliens currently under Temporary Protected Status (TPS) pursuant to section 244 of 
the INA (8 U.S.C. 1254a), and pending applicants for TPS who have been granted 
employment authorization;  
(iii)  Aliens who have been granted employment authorization under 8 CFR 
274a.12(c)(9), (10), (16), (18), (20), (22), or (24); 
 (iv) Family Unity beneficiaries pursuant to section 301 of Pub. L. 101-649, as amended;  
(v) Aliens currently under Deferred Enforced Departure (DED) pursuant to a decision 
made by the President;  
(vi) Aliens currently in deferred action status; or 
(vii) Aliens whose visa petition has been approved and who have a pending application 
for adjustment of status;   Page 9  State Health Officials 
 
(5) A pending applicant for asylum under section 208(a) of the INA (8 U.S.C.  1158) or for 
withholding of removal under section 241(b)(3) of the INA (8 U.S.C.  1231) or under 
the Convention Against Torture who has been granted employment authorization, and 
such an applicant under the age of 14 who has had an application pending for at least 180 
days; 
 
(6) An alien who has been granted withholding of removal under the Convention Against 
Torture; 
 
(7) A child who has a pending application for Special Immigrant Juvenile status as described 
in section 101(a)(27)(J) of the INA (8 U.S.C.  1101(a)(27)(J)); 
 
(8) An alien who is lawfully present in the Commonwealth of the Northern Mariana Islands 
under 48 U.S.C.  1806(e); or 
 
(9) An alien who is lawfully present in American Samoa under the immigration laws of 
American Samoa. 
 
_____  The State elects the CHIPRA section 214 option for children up to age 19 
_____  The State elects the CHIPRA section 214 option for pregnant women     
through the 60-day postpartum period 
 
4.1.10.1_____ The State provides assurance that for individuals whom it enrolls in    
  CHIP under the CHIPRA section 214 option that it has verified, both   
  at the time of the individuals initial eligibility determination and at    
  the time of the eligibility redetermination, that the individual      
  continues to be lawfully residing in the United States.   The State must  
  first attempt to verify this status using information provided at the    
  time of initial application.  If the State cannot do so from the      
  information readily available, it must require the individual to     
  provide documentation or further evidence to verify satisfactory    
  immigration status in the same manner as it would for anyone else    
  claiming satisfactory immigration status under section 1137(d) of the   
  Act.  
    Page 10  State Health Officials 
 
Revision:  CMS-PM-          ATTACHMENT 2.6-A 
            Page 2 
OMB No.: 
 
STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT 
  State                                                            
 
ELIGIBILITY CONDITIONS AND REQUIREMENTS 
                                                                                                                                              
          Citation(s)                                                        Condition or Requirement                 
 
 
42 CFR 435.406  3.  Is residing in the United States (U.S.), and-- 
 
a.  Is a citizen or national of the United States;     
 
b.  Is a qualified alien (QA) as defined in section 431 of the  
Personal Responsibility and Work Opportunity  
Reconciliation Act of 1996 (PRWORA) as amended,  
and the QAs eligibility is required by section 402(b) of  
PRWORA as amended, and is not prohibited by section  
403 of PRWORA as amended; 
 
c.  Is a qualified alien subject to the 5-year bar as described in 
section 403 of PRWORA, so that eligibility is limited to 
treatment of an emergency medical condition as defined in 
section 401 of PRWORA; 
 
d.  Is a non-qualified alien, so that eligibility is limited to 
treatment of an emergency medical condition as defined in 
section 401 of PRWORA; 
 
e.  Is a QA whose eligibility is authorized under section 402(b) of 
PRWORA as amended, and is not prohibited by section 403 of 
PRWORA as amended. 
___  State covers all authorized QAs. 
___  State does not cover authorized QAs. 
 
f.  State elects CHIPRA option to provide full Medicaid coverage 
to otherwise eligible pregnant women or children as specified 
below who are aliens lawfully residing in the United States; 
including the following: 
 
    Page 11  State Health Officials 
 
(1) A qualified alien as defined in section 431 of PRWORA (8 U.S.C. 1641); 
 
(2) An alien in nonimmigrant status who has not violated the terms of the status under which 
he or she was admitted or to which he or she has changed after admission;  
 
(3) An alien who has been paroled into the United States pursuant to section 212(d)(5) of the 
Immigration and Nationality Act (INA) (8 U.S.C. 1182(d)(5)) for less than 1 year, 
except for an alien paroled for prosecution, for deferred inspection or pending removal 
proceedings;   
 
(4) An alien who belongs to one of the following classes:  
 
(i) Aliens currently in temporary resident status pursuant to section 210 or 245A of the 
INA (8 U.S.C. 1160 or 1255a, respectively);  
(ii) Aliens currently under Temporary Protected Status (TPS) pursuant to section 244 of 
the INA (8 U.S.C. 1254a), and pending applicants for TPS who have been granted 
employment authorization;  
(iii)  Aliens who have been granted employment authorization under 8 CFR 
274a.12(c)(9), (10), (16), (18), (20), (22), or (24); 
(iv) Family Unity beneficiaries pursuant to section 301 of Pub. L. 101-649, as amended;  
(v) Aliens currently under Deferred Enforced Departure (DED) pursuant to a decision 
made by the President;  
(vi) Aliens currently in deferred action status; or 
(vii) Aliens whose visa petition has been approved and who have a pending application 
for adjustment of status;  
 
(5) A pending applicant for asylum under section 208(a) of the INA (8 U.S.C.  1158) or for 
withholding of removal under section 241(b)(3) of the INA (8 U.S.C.  1231) or under 
the Convention Against Torture who has been granted employment authorization, and 
such an applicant under the age of 14 who has had an application pending for at least 180 
days; 
 
(6) An alien who has been granted withholding of removal under the Convention Against 
Torture; 
 
(7) A child who has a pending application for Special Immigrant Juvenile status as described 
in section 101(a)(27)(J) of the INA (8 U.S.C.  1101(a)(27)(J)); 
 
(8) An alien who is lawfully present in the Commonwealth of the Northern Mariana Islands 
under 48 U.S.C.  1806(e); or 
  Page 12  State Health Officials  
 
(9) An alien who is lawfully present in American Samoa under the immigration laws of 
American Samoa. 
 
 
                  ___  Elected for pregnant women. 
                  ___  Elected for children under age _____. 
 
 
g. _____ The State provides assurance that for an individual whom it enrolls    
in Medicaid under the CHIPRA section 214 option, it has verified, at the time 
of the individuals initial eligibility determination and at the time of the 
eligibility redetermination, that the individual continues to be lawfully 
residing in the United States.  The State must first attempt to verify this 
status using information provided at the time of initial application.  If the 
State cannot do so from the information readily available, it must require the 
individual to provide documentation or further evidence to verify 
satisfactory immigration status in the same manner as it would for anyone 
else claiming satisfactory immigration status under section 1137(d) of the 
Act.  
                                                                                                
TN No:              Approval Date             Effective Date  ____________            
Supersedes 
TN No.