Medicaid to 26: Federal Law and Guidance

The Patient Protection and Affordable Care Act of 2010 and the Health Care and Education Reconciliation Act of 2010 (collectively referred to as the Affordable Care Act, or “ACA”) require that states provide Medicaid coverage until age 26 for individuals who were in foster care and enrolled in Medicaid at age 18 or older. 

Below is the section of the ACA that defines eligibility for Medicaid coverage until age 26 for former foster youth.

Eligible individuals:

(aa) are under 26 years of age;

(bb) are not described in or enrolled under any of subclauses (I) through (VII) of this clause or are described in any of such subclauses but have income that exceeds the level of income applicable under the State plan for eligibility to enroll for medical assistance under such subclause;

(cc) were in foster care under the responsibility of the State on the date of attaining 18 years of age or such higher age as the State has elected under section 675 (8)(B)(iii) of this title; and

(dd) were enrolled in the State plan under this subchapter or under a waiver of the plan while in such foster care. 42 U.S.C.A. 1396a (a)(10)(A)(i)(IX)

This provision is meant to mirror the ACA provision that allows youth to stay on their parents’ health insurance until age 26.

Making former foster youth categorically eligible for Medicaid until age 26 is mandatory for states. Not only is an individual categorically eligible if he or she was in foster care at age 18 and enrolled in Medicaid, but his or her eligibility is established regardless of income, resources, and assets. 

The Medicaid to 26 provision of the ACA is to be implemented according to regulations promulgated by the Centers for Medicare & Medicaid Services. 

Definition of "Foster Care": The federal regulation defines “foster care” as “24-hour substitute care for children placed away from their parents or guardians and for whom the child welfare agency has placement and care responsibility. This includes, but is not limited to, placements in foster family homes, foster homes of relatives, group homes, emergency shelters, residential facilities, child care institutions, and preadoptive homes.” 45 C.F.R. § 1355.20

Affordable Care Act Proposed Rule: This portion of the Federal Register provides the proposed rule which, in its entirety, would implement provisions of the Patient Protection and Affordable Care Act of 2010 and the Health Care and Education Reconciliation Act of 2010 (collectively referred to as the Affordable Care Act), and the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA). This proposed rule reflects new statutory eligibility provisions, and provides more information on the scope of the provision that is relevant to young people who were in foster care; specifically, § 435.150 provides for Medicaid coverage for individuals who were in foster care at age 18, and are currently under age 26.   

Note that the current interpretation of the federal law is that a state is required only to cover youth who were in foster care in that same state, but that a state may elect to cover young people who were in care elsewhere. The proposed regulations explain that states must cover:

• “Young people who were in foster care under the state's or tribe's responsibility (whether or not under title IV-E of the Act) and also enrolled in Medicaid under the state's Medicaid state plan or 1115 demonstration (or at state option were in foster care and Medicaid in any state rather than “the” state where the individual is now residing and applying for Medicaid) when the individual attained age 18 or such higher age at which the state's federal foster care assistance ends under title IV-E of the Act.”

The proposed regulations further explain that the federal law requires coverage if an “individual was in foster care and enrolled in Medicaid in the same state in which coverage under this eligibility group is sought” but also that states have

• “the option to cover individuals under this group who were in foster care and Medicaid in any state at the relevant point in time.”

In other words, states must cover those who were in care in that state and otherwise fit the criteria under the ACA provision, but can choose whether to cover those who were in care in other states.