1. Former Foster Care Children

Section 1902(xx)(9)(A)(ii)(I) of the Act provides that an individual “who is described in” section 1902(a)(10)(A)(i)(IX) of the Act, which refers to the eligibility group serving former foster care children (FFCC group), is a specified excluded individual. The FFCC group generally serves individuals who were enrolled in Medicaid while in foster care, then exited foster care (or “aged out”) without an adoption or other permanency, and are under age 26. The FFCC group was originally limited to individuals who had been in foster care in the State in which they subsequently sought Medicaid coverage and were not described in any other mandatory eligibility groups under section 1902(a)(10)(A)(i)(I) through (VII) of the Act. Section 1002(a) of the Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act; Pub. L. 115-271 ) modified the original eligibility criteria for the FFCC group in section 1902(a)(10)(A)(i)(IX) of the Act to expand eligibility in the group to individuals who had been in foster care in other States and who may be otherwise described in a separate mandatory eligibility group under section 1902(a)(10)(A)(i)(I) through (VII) of the Act (so long as they are not enrolled in such other group). However, the amendment was effective exclusively for those individuals who turn age 18 on or after January 1, 2023. This means that, under the State plan requirements, slightly different eligibility criteria for the FFCC group apply to individuals under age 26 who turned age 18 on or before December 31, 2022, and those who turn age 18 on or after January 1, 2023. [ 45 ]

We have considered whether the reference in section 1902(xx)(9)(A)(ii)(I) of the Act to the FFCC group encompasses both the original version and SUPPORT Act version of section 1902(a)(10)(A)(i)(IX) of the Act, or if it is specific only to the latter one. We are interpreting section 1902(xx)(9)(A)(ii)(I) of the Act to apply the exclusion to individuals who meet the eligibility criteria under the SUPPORT Act, regardless of when they turned age 18, for the following reasons.

The phrase “described in” could be read to exactly mirror the phased-in implementation of the eligibility criteria in section 1902(a)(10)(A)(i)(IX) of the Act and apply the relevant criteria to individuals based on when they turned age 18 for the purpose of the specified excluded individual category. That means, in reference to youth formerly in foster care, an individual under age 26 who turned age 18 before January 1, 2023, would only be a specified excluded individual if he or she meets the original criteria for the FFCC group (specifically: in the same State and not eligible for another group). Someone under age 26 who turned age 18 on or after January 1, 2023, would be a specified excluded individual if he or she meets the expanded criteria for the FFCC group under the SUPPORT Act.

However, we do not believe this is the best reading of section 1902(xx)(9)(A)(ii)(I) of the Act, because the Act directs an eligibility hierarchy for the FFCC group. That means that a strict reading of the exclusion is likely to create an empty exclusion category. Clause (XVII) in the language following section 1902(a)(10)(G) of the Act provides that, “. . . if an individual is described in subclause (IX) of subparagraph (A)(i) and is also described in subclause (VIII) of that subparagraph, the medical assistance shall be made available to the individual through subclause (IX) instead of through subclause (VIII).” This language means that individuals eligible for both the adult group and the FFCC group must be enrolled in the FFCC group. This eligibility hierarchy means that a strict reading of “described in” in section 1902(xx)(9)(A)(ii)(I) of the Act that is equivalent to “eligible for” the FFCC group per the SUPPORT Act phase-in of the eligibility criteria by age would render the exclusion meaningless as a null set of individuals. Under that reading, by operation of the language following section 1902(a)(10)(G) of the Act, all the individuals who are eligible for the FFCC group would by definition not be in the adult group and thus never would be applicable individuals to whom the exclusion category might apply.

Because a strict reading of the reference to section 1902(a)(10)(A)(i)(IX) of the Act in section 1902(xx)(9)(A)(ii)(I) would render that exclusion category a nullity, we interpret the exclusion to apply to persons meeting the current SUPPORT Act definition of the FFCC group, even in circumstances where they would not qualify for eligibility under section 1902(a)(10)(A)(i)(IX) of the Act due to when they turned 18.

This interpretation also furthers administrative simplicity. The population of individuals formerly in foster care is relatively small; and the population of individuals formerly in foster care who do not meet the State plan requirements is even smaller. For example, some States operating section 1115 demonstrations to apply the SUPPORT Act criteria to eligible individuals who turned 18 before January 1, 2023, report very low enrollment numbers (sometimes in the single digits). The administrative work for States to identify and apply the correct eligibility criteria to the population is high compared to the small size of the population. We implement this definition at new § 435.554(c)(1).

This policy means that States must use a single set of eligibility criteria, under the SUPPORT Act changes to the FFCC group, for this category of specified excluded individual, regardless of whether the individual turned age 18 on or after January 1, 2023. Thus, an individual in the adult group or an applicable section 1115 demonstration may be a specified excluded individual as long as he or she meets the criteria for an individual ( printed page 33366) described in the FFCC group: (1) is under age 26; (2) is not enrolled in an eligibility group described in section 1902(a)(10)(A)(i)(I) through (VII) of the Act, even if they meet the eligibility requirements for such group; (3) was in foster care under the responsibility of any State upon attaining age 18 (or such higher age as the State has elected in its title IV-E plan); and (4) was enrolled in Medicaid in any State while in such foster care. For example, suppose an individual ages out of foster care (while enrolled in Medicaid) at age 21 in State A in 2024 and subsequently moves to State B. Because this individual turned age 18 in 2021, the SUPPORT Act rules for the FFCC group do not apply to the individual. State B covers the adult group but does not have a section 1115 demonstration to cover former foster care youth from other States. When the individual applies for Medicaid in State B, he meets the eligibility requirements for the adult group, and the State enrolls him in that group. In 2027, the individual is in the adult group and still under age 26. Because the individual meets the current description of the FFCC group, despite not being enrolled in the group, the individual is a specified excluded individual and not subject to the community engagement requirement.