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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.