Rule: Medicaid: Citizenship Documentation Requirements Federal Financial Participation

Friday,
July 13, 2007
Part II
Department of
Health and Human
Services
Centers for Medicare & Medicaid Service
42 CFR Parts 435, 436, 440, et al.

Medicaid Program; Citizenship
Documentation Requirements; Final Rule
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38662 Federal Register / Vol. 72, No. 134 / Friday, July 13, 2007 / Rules and Regulations
DEPARTMENT OF HEALTH AND Individuals who declared they were States are required to follow to receive
HUMAN SERVICES citizens did not have to do anything else Federal financial participation (FFP) for
under Federal law to support that claim, medical care expenditures for Medicaid-
Centers for Medicare & Medicaid although some States did require eligible individuals with respect to the
Services documentary evidence of this claim. new section 1903(x) of the Act. We
Section 6036 of the Deficit Reduction explained the types of documents that
42 CFR Parts 435, 436, 440, 441, 457, Act of 2005 (DRA) (Pub. L. 109–171, may be used including additional
and 483 enacted on February 8, 2006) effectively documents that may be accepted. We
[CMS–2257–F]
requires that the State obtain established a hierarchy of reliability of
satisfactory documentation of citizenship documents and specified
RIN 0938–AO51 citizenship and identity. Self-attestation when a document of lesser reliability
of citizenship and identity is no longer may be accepted by the State.
Medicaid Program; Citizenship an acceptable practice. The provisions
Documentation Requirements of section 6036 of the DRA do not affect Implementation Conditions/
individuals who have declared they are Considerations
AGENCY: Centers for Medicare &
Medicaid Services (CMS), HHS. aliens in a satisfactory immigration As we stated in the interim final rule
ACTION: Final rule.
status. As with other Medicaid program with comment period, the State must
requirements, States must implement an obtain satisfactory documentary
SUMMARY: This final rule amends effective process for assuring evidence of citizenship and identity for
Medicaid regulations to implement the compliance with documentation of all Medicaid applicants who have
provision of the Deficit Reduction Act citizenship and identity in order to declared that they are citizens or
that requires States to obtain satisfactory obtain Federal matching funds, and nationals of the United States. This
documentary evidence of an applicant’s effective compliance will be part of requirement applies to all recipients
or recipient’s citizenship and identity in Medicaid program integrity monitoring. who declared at the time of application
order to receive Federal financial Section 6036 of the DRA created a to be citizens or nationals of the United
participation. It also incorporates new section 1903(x) of the Act that States unless an exemption applies.
changes made to these requirements prohibits Federal financial participation Section 1903(x)(2) of the Act provides
through section 405(c)(1)(A) of Division (FFP) in State expenditures for medical several exemptions.
B of the Tax Relief and Health Care Act assistance with respect to an individual In the interim final rule, we discussed
(TRHCA), Pub. L. 109–432, enacted who has declared under section a clear drafting error in section 6036 of
December 20, 2006. This regulation 1137(d)(1)(A) of the Act to be a citizen the DRA, under which Congress
provides States with guidance on the or national of the United States unless provided an exemption such that aliens
types of documentary evidence that may the State obtains satisfactory would not be required to present
be accepted, including alternative forms documentary evidence of citizenship satisfactory documentary evidence of
of documentary evidence in addition to and identity or a statutory exemption citizenship and identity in certain
those described in the statute and the applies. For new Medicaid applicants or circumstances. (See 71 FR 39215 for a
conditions under which this for currently enrolled individuals, the full discussion of the issue.) However,
documentary evidence can be accepted State must obtain evidence of since publication of the DRA, section
to establish the applicant’s citizenship. citizenship and identity at the time of 405(c)(1)(A) of Division B of the TRHCA
application or at the time of the first
DATES: Effective Date: July 13, 2007. corrected the error by replacing the
redetermination occurring on or after
FOR FURTHER INFORMATION CONTACT: word ‘‘alien’’ with ‘‘individual declaring
July 1, 2006. Presentation of
Molly Smith (410) 786–8354. to be a citizen or national of the United
documentary evidence of citizenship
SUPPLEMENTARY INFORMATION: States.’’ Congress made this correction
and identity is a one-time activity; once
effective as if included in the DRA.
I. Background a person’s citizenship and identity have
been documented and recorded in the This correction does not alter the
Since enactment of the Immigration case file or database, subsequent policy as described in the interim final
Reform and Control Act of 1986 (Pub. L. changes in eligibility should not require rule. Therefore, the policy continues to
99–163, enacted on November 6, 1986), repeating the documentation unless be that individuals declaring to be
Medicaid applicants and recipients have later evidence raises a question of a citizens or nationals of the United States
been required by section 1137(d) of the person’s citizenship or identity. The who are receiving SSI or who are
Social Security Act (the Act) to declare State need only check its databases to enrolled in any part of Medicare are
under penalty of perjury whether the verify that the individual already exempt from these requirements.
applicant or recipient is a citizen or established his or her citizenship and The TRHCA also amended section
national of the United States, and if not identity. 1903(x)(2) to exempt additional groups
a citizen or national, that the individual CMS continues to support States of individuals from the provisions
is an alien in a satisfactory immigration through ongoing outreach and technical requiring presentation of satisfactory
status. (For purposes of this regulation, assistance. CMS is monitoring States for documentary evidence of citizenship
the term ‘‘citizenship’’ (or reference to compliance and has not initiated any and identity. These groups are:
citizen) includes status as a ‘‘national of action to disallow FFP. • All individuals receiving SSI (the
the United States,’’ as defined in 8 DRA only exempted individuals
U.S.C. 1101(a)(22)). Aliens who declare Basic Features of the Provision receiving Medicaid by virtue of
they are in a satisfactory immigration On July 12, 2006, we published in the receiving SSI);
status have been required by section Federal Register the interim final rule • Individuals receiving disability
1137(d) of the Act to present titled ‘‘Medicaid Program; Citizenship insurance benefits under section 223 of
documentation of satisfactory Documentation Requirements’’ (CMS– the Act or monthly benefits under
immigration status since the 2257–IFC) (71 FR 39214). In this interim section 202 of the Act based on such
declarations of citizenship or final rule with comment period, we individual’s disability (as defined in
immigration status were first required. outlined the policy and guidelines section 223(d) of the Act); and
Federal Register / Vol. 72, No. 134 / Friday, July 13, 2007 / Rules and Regulations 38663
• Individuals who are in foster care nationals, these regulations would apply issuing agency. Uncertified copies or
and who are assisted under Title IV–B for periods in which they receive notarized copies will not be accepted.
of the Act and individuals who are services as eligible for Medicaid. The enactment of section 6036 of the
recipients of foster care maintenance or At the time of application or DRA does not change any of our policies
adoption assistance payments under redetermination, the State must give an regarding the taking and processing of
Title IV–E of the Act. applicant or recipient who has signed a applications for Medicaid except the
The above changes were made declaration required by section 1137(d) new requirement for presentation of
effective as if included in the DRA. CMS of the Act and claims to be a citizen a documentary evidence of citizenship.
sent guidance to the States regarding reasonable opportunity to present Before the enactment of section 6036 of
these changes in a State Medicaid documents establishing U.S. citizenship the DRA, States, although not required
Director letter dated February 22, 2007. or nationality and identity. Individuals by law or regulation to document
The TRHCA corrected another error who are Medicaid recipients will citizenship, were required to assure that
included in section 6036 of the DRA by remain eligible until determined eligibility determinations were accurate.
replacing the cross-reference to the non- ineligible as required by Federal Therefore, most States would request
existent ‘‘subsection (i)(23)’’ with the regulations at § 435.930. A documentation of citizenship only if the
relevant subsection (i)(22). This determination terminating eligibility applicant’s citizenship was believed to
correction does not change the policy as may be made after the recipient has be questionable. Likewise, the
described in the interim final rule. been given a reasonable opportunity to regulations at § 435.902, § 435.910(e),
In addition to the above exemptions, present evidence of citizenship or the § 435.912, § 435.919 and § 435.920
the statute gives the Secretary authority State determines the individual has not continue to apply when securing
to exempt individuals who declare made a good faith effort to present documentary evidence of citizenship
themselves to be citizens or nationals satisfactory documentary evidence of and identity from applicants and
from the documentation requirements if citizenship. By contrast, applicants for recipients. Thus, States are not obligated
satisfactory documentary evidence of Medicaid (who are not currently to make or keep eligible any individual
citizenship or nationality has been receiving Medicaid) should not be made who fails to cooperate with the
previously presented. If we become eligible until they have presented the requirement to present documentary
aware of an appropriate instance to required evidence. This is no different evidence of citizenship and identity.
exercise this authority, we will do so by than current policy regarding Failure to provide this information is no
regulation. information which an applicant must different than the failure to provide any
Individuals who are receiving submit in order for the State to make an other information which is material to
Medicaid benefits under a section 1115 eligibility determination. the eligibility determination.
demonstration project approved under As discussed in the interim final rule An applicant or recipient who fails to
title XI authority are subject to this with comment period, the ‘‘reasonable cooperate with the State in presenting
provision. This includes individuals opportunity period’’ should be documentary evidence of citizenship
who are treated as eligible for matching consistent with the State’s may be denied or terminated. Failure to
purposes by virtue of the authority administrative requirements such that cooperate consists of failure by an
granted under section 1115(a)(2) of the the State does not exceed the time limits applicant or recipient, or that
Act (expansion populations), including established in Federal regulations for individual’s representative, after being
individuals covered under section 1115 timely determination of eligibility in notified, to present the required
demonstrations and family planning § 435.911. The regulations permit evidence or explain why it is not
demonstrations. exceptions from the time limits when an possible to present such evidence of
Under section 1902(e)(4) of the Act applicant or recipient in good faith tries citizenship or identity. Notice and
and 42 CFR 435.117, a Medicaid agency to present documentation, but is unable appeal rights must be given to the
must provide Medicaid eligibility to a to do so because the documents are not applicant or recipient if the State denies
United States citizen child born to a available or a third party fails to reply or terminates an individual for failure to
woman who has applied for, has been to a timely request. In these cases, the cooperate with the requirement to
determined eligible and is receiving State must assist the individual in provide documentary evidence of
Medicaid on the date of the child’s securing evidence of citizenship. citizenship or identity in accordance
birth. We discuss CMS policy with States are permitted to accept with the regulations at § 431.210 or
respect to this population in more detail documentary evidence without § 431.211 as appropriate.
in the Analysis of and Responses to requiring the applicant or recipient to
Public Comment section below. appear in person. States may accept Federal Financial Participation (FFP) for
Individuals who receive Medicaid original documents in person, by mail, Administrative Expenditures
because of a determination by a or by a guardian or authorized FFP is available for State expenditures
qualified provider, or entity, under representative. States, at their option, to carry out the provisions of section
sections 1920, 1920A, or 1920B of the may also use matches with vital 1903(x) of the Act at the match rate for
Act (presumptive eligibility) are not statistics agencies in place of a birth program administration.
subject to the documentation certificate to assist applicants or
requirements until they file an Compliance
recipients to meet the requirements of
application and declare on the the law. FFP is not available for State
application that they are citizens or Although States may continue to use expenditures for medical assistance if a
nationals. States may receive FFP for the application procedures that do not State does not require applicants and
services provided to these individuals include an interview with an applicant, recipients to provide satisfactory
notwithstanding any other provision of the States must assure that the documentary evidence of citizenship, or
title XIX, including the requirements of information received about the identity does not secure this documentary
section 1903(x) of the Act. However, and citizenship of the applicant or evidence which includes the
when these individuals file an recipient is accurate. responsibility to accept only authentic
application for Medicaid and declare on All documents must be either documents on or after July 1, 2006. As
the application that they are citizens or originals or copies certified by the part of the standard review and audit
procedures under subpart C of 42 CFR required to file the Declaration. In We divided evidence of citizenship
Part 430, we will review addition, for current Medicaid into groups based on the respective
implementation of section 6036 of the recipients, States are required to obtain reliability of the evidence. The first
DRA to determine whether claims for satisfactory documentary evidence group of documents is described in
FFP for services provided to citizens establishing citizenship and identity at section 6036 of the DRA and is specified
should be deferred or disallowed. As the time of the first redetermination of in § 435.407(a) and § 436.407(a) as
part of these reviews, we will monitor eligibility that occurs on or after July 1, primary evidence of citizenship and
the extent to which the State is 2006. identity because it is established by
obtaining the most reliable evidence. We also amended § 435.406 and statute. If an individual presents
In the conduct of determining or re- § 436.406 to define ‘‘Satisfactory documents from this section, no other
determining eligibility for Medicaid, immigration status as a Qualified Alien’’ information is required. Primary
State Medicaid agencies may uncover as described in 8 U.S.C. 1641(b). We evidence of citizenship and identity is
instances of suspected fraud. In these amended § 435.406 and § 436.406 to documentary evidence of the highest
instances, State agencies would refer remove paragraphs (b) and (d), as well reliability that conclusively establishes
cases of suspected fraud to an as paragraphs (a)(3) and (a)(4). These that the person is a U.S. citizen. The
appropriate enforcement agency provisions have ceased to have any statute provides that these documents
according to the requirements of force or effect because the eligibility can be used to establish both the
§ 455.13(c) and § 455.15(b). status provided to individuals who citizenship and identity of an
HHS recognizes that in cases where received Lawful Temporary Residence individual. In general, a State should
the appropriate enforcement agency is a under the Immigration and Reform and attempt to obtain primary evidence of
Federal entity, the Privacy Act of 1974 Control Act (IRCA) of 1986 has expired citizenship and identity before using
applies to United States citizens and or been superseded by the terms of the secondary evidence. We permitted
permanent resident aliens, and privacy Personal Responsibility and Work States to use the State Data Exchange
protections afforded by law and in Opportunity Reconciliation Act (SDX) database provided by SSA to all
accordance with Federal policy will be (PRWORA) (Pub. L. 104–193, enacted States that reflects actions taken by SSA
addressed. on August 22, 1996). Lawful Temporary to determine eligibility of applicants for
Resident Status was granted for a the Supplemental Security Income (SSI)
II. Provisions of the Interim Final Rule
limited time to individuals who applied program. Since all individuals in receipt
With Comment Period
for the legalization authorized by IRCA. of SSI are now exempt from these
We amended 42 CFR chapter IV as Most individuals receiving this status requirements, this provision is
follows: would have achieved lawful permanent irrelevant and has been removed from
We amended § 435.406 and § 436.406 resident status by 1996 when PRWORA the regulations text. However, States
to require that States obtain a was enacted. PRWORA declared that may still use the SDX to confirm
Declaration signed under penalty of ‘‘notwithstanding any other law’’ whether an individual is exempt from
perjury from every applicant for individuals who did not have status as the provision based on receipt of SSI.
Medicaid that the applicant is a citizen a qualified alien as defined in 8 U.S.C. Similarly, State may use SSA’s
or national of the United States or an 1641 are not eligible for any Federal Beneficiary Data Exchange (BENDEX)
alien in a satisfactory immigration public benefit. That term includes data base to confirm whether an
status, and require the individual to Medicaid. individual is exempt from the provision
provide documentary evidence to verify We added a new § 435.407 and a new based on receipt of SSDI.
the declaration. The types and forms of § 436.407 describing the documents and
acceptable documentation of citizenship processes States may use to document Secondary Evidence of Citizenship
are specified in § 435.407 and § 436.407. an applicant’s or recipient’s declaration In the interim final rule with
The requirement to sign a Declaration of that the individual is a citizen of the comment period, we stated that
citizenship or satisfactory immigration United States. The documents include secondary evidence of citizenship is
status was added by the Immigration all the documents listed in section 6036 documentary evidence of satisfactory
Reform and Control Act of 1986 and was of the DRA plus additional documents. reliability that is used when primary
effective upon enactment. We noted that the State Medicaid evidence of citizenship is not available.
At the time section 1137(d) of the Act agency determinations of citizenship are In addition, the statute requires that a
was enacted, aliens declaring not binding on other Federal or State second document establishing identity
themselves to be in a satisfactory agencies for any other purposes. We must also be presented. See § 435.407(e)
immigration status were the only employed a hierarchy of reliability and § 436.407(e). Available evidence is
applicants required to present to the when securing documentary evidence of evidence that exists and can be obtained
State documentary evidence of citizenship and identity to assure that within a State’s reasonable opportunity
satisfactory status. Beginning in 1987, evidence submitted is the most reliable period. The State must accept any of the
States were also required to verify the evidence available to establish a claim documents listed in paragraph (b) if the
documents submitted by aliens claiming of citizenship and identity. To establish document meets the listed criteria and
satisfactory immigration status with the U.S. citizenship, the document must there is nothing indicating the person is
Immigration and Naturalization Service show: a U.S. place of birth, or that the not a U.S. citizen. We stated that
(INS) (now the U.S. Citizenship and person is a U.S. citizen. Children born applicants or recipients born outside the
Immigration Services in the Department in the U.S. to foreign sovereigns or U.S. who were not citizens at birth must
of Homeland Security) using the diplomatic officers are not U.S. citizens submit a document listed under primary
Systematic Alien Verification for because they are not subject to the evidence of U.S. citizenship, but that
Entitlements (SAVE) Program. jurisdiction of the United States. To children born outside the United States
The regulation requires the State to establish identity, a document must and adopted by U.S. citizens may
also obtain satisfactory documentary show the most current identifying establish citizenship using the process
evidence establishing identity and information that relates the presenting established by the Child Citizenship Act
citizenship from all Medicaid applicants individual to the person named on the of 2000 (Pub. L. 106–395, enacted on
who, under the DRA amendments, are document. October 30, 2000). However, as we
explain in further detail in the response establishing identity must be presented Program will eliminate the need for
to comments below, States may now as described in paragraph (e), ‘‘Evidence many naturalized citizens to utilize the
verify citizenship for naturalized of identity.’’ affidavit process, we believe that such
citizens using the Department of A State must accept any of the individuals should have a recourse
Homeland Security’s Systematic Alien documents listed in paragraph (c) as available to them when their
Verification for Entitlements (SAVE) third level evidence of U.S. citizenship information cannot be located in the
Program, subject to DHS SAVE program if the document meets the listed criteria, SAVE database. States should recognize
requirements, including but not limited the applicant alleges birth in the U.S., that the inability of SAVE to verify U.S.
to a Memorandum of Understanding and there is nothing indicating the citizenship does not necessarily mean
(MOU) authorizing the use of SAVE for person is not a U.S. citizen (for example, that the individual is not a U.S. citizen;
naturalization verification purposes. lost U.S. citizenship). SAVE may be unable to determine that
This data verification will be considered Third level evidence is generally a certain naturalized citizens, including
secondary evidence of citizenship and non-government document established those who naturalized more than thirty
must be accompanied by a document to for a reason other than to establish U.S. years ago, those who changed their
verify the individual’s identity. citizenship and showing a U.S. place of names, or those who no longer
Therefore, it is appropriate to permit birth. The place of birth on the non- remember their alien registration
individuals born outside the U.S. who government document and the number, are naturalized citizens. In
were not citizens at birth to submit application must be consistent. such cases, States should explore other
either primary or secondary evidence of Fourth Level of Evidence of Citizenship alternatives included in these
citizenship. We have also modified the regulations to determining citizenship.
affidavit process to permit naturalized In the interim final rule with If the documentation requirement
citizens to submit an affidavit verifying comment period, we stated that fourth needs to be met through affidavits, the
their citizenship status in rare level evidence of U.S. citizenship is following rules apply: There must be at
circumstances. The remaining documentary evidence of the lowest least two affidavits by individuals who
documents in the third and fourth tiers reliability. Fourth level evidence should have personal knowledge of the event(s)
will not be applicable to naturalized only be used in the rarest of establishing the applicant’s or
citizens because they require that the circumstances. This level of evidence is recipient’s claim of citizenship (the two
document show a U.S. place of birth. used only when primary, secondary and affidavits could be combined in a joint
Similarly, citizens born in the U.S. will third level evidence are not available. In affidavit). At least one of the individuals
not be able to use several documents addition, a second document making the affidavit cannot be related to
such as the Certificate of Naturalization establishing identity must be presented the applicant or recipient and cannot be
or a data verification with the SAVE as described in paragraph (e), ‘‘Evidence the applicant or recipient. In order for
Program. of identity.’’ Available evidence is the affidavit to be acceptable, the
The second group of documents evidence that can be obtained within persons making them must be able to
consists of a mix of documents listed in the State’s reasonable opportunity provide proof of their own citizenship
section 6036 of the DRA and additional period as discussed below. and identity. If the individual(s) making
documents that only establish A State must accept any of the the affidavit has (have) information
citizenship. This group includes a U.S. documents listed in paragraph (d) as which explains why documentary
birth certificate. The birth record fourth level evidence of U.S. citizenship evidence establishing the applicant’s
document may be recorded by the State, if the document meets the listed criteria, claim or citizenship is not available, the
Commonwealth, Territory or local the applicant alleges U.S. citizenship, affidavit should contain this
jurisdiction. It must have been recorded and there is nothing indicating the information as well. The State must
before the person was 5 years of age. A person is not a U.S. citizen (for example, obtain a separate affidavit from the
delayed birth record document that is lost U.S. citizenship). With the applicant/recipient or other
recorded at or after 5 years of age is exception of the affidavit, fourth level knowledgeable individual (guardian or
considered fourth level evidence of evidence consists of documents representative) explaining why the
citizenship. established for a reason other than to evidence is unavailable. The affidavits
If the document shows the individual establish U.S. citizenship that show a must be signed under penalty of perjury.
was born in Puerto Rico, the Virgin U.S. place of birth. The U.S. place of We added a paragraph (e) that
Islands of the U.S., or the Northern birth on the document and the consists of documents establishing
Mariana Islands before these areas application must be consistent. The identity. These are a mix of documents
became part of the U.S., the individual written affidavit described in this included in section 6036 of the DRA as
may be a collectively naturalized section may be used only when the evidence of identity, such as drivers’
citizen. Collective naturalization State is unable to secure evidence of licenses and State identity cards. It also
occurred on certain dates for each of the citizenship listed in any other groups. includes Native American Tribal
territories and can be found in the July In the interim final rule with enrollment documents, such as the
12, 2006 interim final rule with comment period, we also explained the Certificate of Degree of Indian Blood.
comment period. affidavit process. We stated that These documents, when coupled with
affidavits should ONLY be used in rare satisfactory documentary evidence of
Third Level of Evidence of Citizenship circumstances and by individuals citizenship from lists (b) through (d),
In the July 12, 2006 interim final rule declaring to have been born in the meet the statutory requirements of
with comment period, we stated that United States. As discussed in more section 6036 of the DRA.
third level evidence of U.S. citizenship detail below in the response to We included a paragraph (f) that
is documentary evidence of satisfactory comments, we have modified the policy describes special rules for individuals
reliability that is used when neither with respect to naturalized citizens. We under the age of 16. Because children
primary nor secondary evidence of have modified the policy to permit often do not have identification
citizenship is available, and the naturalized citizens to utilize the documents with photographs and a
applicant or recipient alleges birth in affidavit process. While we believe that child’s appearance changes significantly
the U.S. In addition, a second document electronic verifications with the SAVE until adulthood, we permit parents or
guardians to sign an affidavit as to the documentary evidence of citizenship comment period, this new provision
identity of the child. This affidavit does and identity. We specified that a effectively requires that the State obtain
not establish citizenship and should not reasonable opportunity must meet the satisfactory documentation of a
be confused with the affidavit permitted competing goals of providing sufficient declaration of citizenship (see 71 FR
in rare situations to establish time for applicants or recipients to 39215).
citizenship. secure documentary evidence and the We noted from several of the
In the final regulations we added a requirements placed on States to commenters’ letters that many
new paragraph (g) that describes the use determine, or redetermine eligibility individuals are unclear about whether
of identity affidavits for disabled promptly. These goals derive from these new requirements apply only to
individuals in residential care facilities. sections 1902(a)(19) and 1902(a)(8) of citizens or to citizens and individuals in
We also added a new paragraph (h) the Act respectively. For example, a satisfactory immigration status. We
(formerly (g)) that describes rules for States may use the reasonable period would like to clarify that these
States to address special populations they provide to all applicants and requirements only impact individuals
who need additional assistance. For recipients claiming satisfactory who declare themselves to be U.S.
example, if an individual is homeless, immigration on the Declaration required citizens. Individuals who declare
an amnesia victim, mentally impaired, by section 1137(d) of the Act. themselves to be aliens in satisfactory
or physically incapacitated and lacks We solicited comments and immigration status follow the
someone who can act for the individual, suggestions on several areas of the new procedures under § 435.406(a)(2).
and cannot provide evidence of U.S. regulations. We asked the public to Comment: Many commenters
citizenship or identity, the State must identify additional documents that are a suggested that CMS revise the
assist the applicant or recipient to reliable form of evidence of citizenship regulations to permit applicants and
document U.S. citizenship and identity. or a reliable form of identity that have recipients to submit copies of the
We added a paragraph (i) (formerly not been included in this regulation. We required documents. The commenters
(h)) that describes documentary also solicited comments as to whether noted that it is often difficult,
evidence. We specified that the State the number of documents accepted for expensive, and time-consuming to get
can only review originals or copies proof of citizenship and identity should originals or certified copies of many of
certified by the issuing agency. Copies be limited. Finally, we solicited the required documents. One
or notarized copies may not be accepted comments as to whether individuals commenter noted that individuals
for submission. The State, however, would have difficulty proving would not be able to mail in certain
must keep copies of documentation for citizenship and identity if only primary documents. The commenter gave the
its files. States must maintain copies in or secondary level documents were example that an individual could not
the case record or its database. The permitted. Many commenters responded mail in a driver’s license and continue
copies maintained in the case file may to this request. Our responses and final to legally drive. In addition, many
be electronic records of matches, or policies are included in this preamble. commenters expressed concern that the
other electronic methods of storing process of procuring original documents
information. III. Analysis of and Responses to Public would be exceptionally difficult for
Moreover, we specified that Comment semi-literate and non-English speaking
individuals may submit documents by We received over 1,400 timely items applicants, potentially resulting in
mail or other means without appearing of correspondence that raised many many eligible individuals choosing not
in person to submit the documents. If, different issues. Many commenters to apply or reapply for Medicaid.
however, the documents submitted represented State agencies, medical One commenter stated that requiring
appear inconsistent with pre-existing societies, advocacy groups, hospital originals or certified copies violates the
information, are counterfeit or altered, associations, and law firms. The 2006 edition of the Federal Civil
States should investigate the matter for remaining comments were from private Judicial Procedure and Rules, which
potential fraud and abuse. States are citizens. A summary of the major issues states that duplicates are admissible to
encouraged to utilize cross matches and and our responses follow: the same extent as an original unless
other fraud prevention techniques to Comment: Many commenters there is a genuine question raised as to
ensure identity is confirmed. acknowledged their agreement with the the authenticity of the original.
We specified in paragraph (j) requirement that only citizens and The commenters also stated that
(formerly (i)) that once a person’s specific immigrant populations be requiring original documents
citizenship is documented and recorded eligible for Federal public benefits, contradicts CMS’ stated position that
in the individual’s permanent case file, including Medicaid. However, one States should ease application processes
subsequent changes in eligibility should commenter requested that CMS clarify by allowing and encouraging mail- and
not ordinarily require repeating the that the policies set forth in the July 12, phone-in applications. Most
documentation of citizenship unless 2006 interim final rule did not change commenters noted that if required to
later evidence raises a question of the Medicaid-eligibility requirements but submit original documents, applicants
person’s citizenship, or there is a gap of rather added a requirement that States or recipients would make unnecessary
more than 3 years between the verify citizenship. The commenter visits to the State Medicaid Agency
individual’s last period of eligibility and noted that he has witnessed significant office to reduce the risk of losing
a subsequent application for Medicaid. confusion within the immigrant original documents in the mail or
We use a record retention period of 3 community. He stated that many non- during the handling process. The
years throughout the Medicaid program citizen Medicaid recipients who fall commenters noted that these trips could
as provided in 45 CFR 74.53. To require into one of the eligible immigration be difficult for applicants and recipients
a longer retention period would be an statuses believe that they are no longer to make due to employment,
unreasonable imposition on State eligible for Medicaid. transportation, and financial

resources. Response: We agree with the constraints. Several commenters
Lastly, in paragraph (k) (formerly (j)), commenter. The rule did not change remarked that this was of particular
we described the reasonable Medicaid eligibility requirements. As concern in States with large rural areas
opportunity to submit satisfactory we stated in the interim final rule with where many applicants and recipients
live exceptionally far distances from any may obviate the need for an applicant/ Federal agencies, including CMS, are
State Medicaid office. The commenters recipient to submit paper working with the National Association
stated this would be an unnecessary documentation. for Public Health Statistics and
burden and one that could be avoided In response to the commenter who Information Systems (NAPHSIS) on the
by permitting individuals to submit stated that this requirement violates the Electronic Verification of Vital Events
copies of the necessary documents. The Federal Civil Judicial Procedure and (EVVE) databank. EVVE contains birth
commenters suggested giving eligibility Rules, we are not certain whether the record information for all participating
workers the option of requiring original commenter was referring to the Federal States. States would be able to
versions of the documents if they Rules of Civil Procedure or the Federal electronically verify birth information
believe the copies submitted are Rules of Evidence. In any case, both sets for births in their own State and within
questionable. of rules apply to courts of law and are other States. If and when this databank
In contrast, one commenter stated that not applicable in this instance. becomes available, we will consider its
it is important that documents be Comment: Many commenters agreed application to these requirements. In the
originals or copies certified by the with CMS’ policy to allow States to meantime, we strongly encourage States
issuing agency. The commenter stated cross-match data on public benefit to develop methods of working together
that originals and certified copies better recipients. Some commenters requested to achieve efficient, effective ways of
ensure an applicant’s citizenship that CMS delineate the process by verifying citizenship and identity.
because these documents are more which an individual who has already In response to the request that CMS
difficult to falsify. provided proof of citizenship in one not mandate States to print paper copies
Response: We understand from the State should be precluded from of electronic matches, we emphasize
commenters that requiring applicants providing this information again in that while States must be able to
and recipients to submit original or another State. produce a copy of the documentation
certified copies of documents is more Response: Ultimately, each State is
used to determine an individual’s
cumbersome than accepting copies. responsible for having verified the
citizenship, the copy may be in
However, we do not agree that this citizenship of individuals receiving
electronic format.
additional burden outweighs the coverage under its State plan. In keeping
We also note that applicants and
importance of States being able to verify with current policy for applications,
when a person moves to another State, recipients will receive all privacy and
that these documents are valid. We note
he or she must submit an application for confidentiality protections required
that it is easier for an individual to
Medicaid in that State and meet all under the law (see 42 CFR 431 subpart
falsely manufacture a document if it is
eligibility requirements. States may F).
not required to come from the issuing
agency, and therefore, requiring establish partnerships with each other Comment: Several commenters
originals or certified copies helps that allow them to share citizenship requested that CMS make the following
protect the integrity of the Medicaid data. However, States must be able to databases available for data matches or
program. In addition, we note that produce a copy, electronic copy or other verifications: Public Assistance
Medicaid coverage represents a value of conclusive evidence of the original Recipient Information System (PARIS),
thousands of dollars for a covered documentation used to determine an U.S. Department of Veterans Affairs data
family. We do not believe the burden individual’s citizenship. Therefore, if a files, Social Security Administration’s
described by the commenters is State accepts evidence of citizenship or SS5 database (Numident), SAVE
unreasonable for determining eligibility identity from another State, it should database, Indian Health Services
for such a benefit. request a copy or electronic copy of the databases, and the State Attorney
In addition, Federal agencies documentation reviewed by another General’s databases. One commenter
generally require original or certified State to keep in its own files. We note requested that CMS permit States to use
copies of documents to establish that a determination made by one State any governmental database that verifies
eligibility for benefits. For instance, the is not binding on another. Each State is citizenship to match against a birth
Social Security Administration requires responsible for the accuracy of its certificate in order to verify citizenship.
original documents or certified copies eligibility determinations. If a State is Several commenters suggested that
prior to establishing eligibility for not confident that the information CMS require State Medicaid agencies to
benefits (see GN 00301.015 Acceptance provided by another State is accurate, it cross-match data with the State mental
of Evidence of the SSA’s Program must request that the individual health authority since individuals with
Operations Manual System (POMS)); the resubmit the necessary documentation. serious mental illnesses may have
Department of State requires original Comment: Several commenters difficulty obtaining the necessary
documents or certified copies prior to recommended that CMS work with documents. One commenter requested
issuing a passport. States to establish an electronic system that CMS allow States to verify
While we recognize that many to record and cross-check citizenship citizenship by cross-referencing with
individuals are hesitant to submit these information. One commenter requested State agencies that handle food stamps,
documents through the mail, we note that this system be available via the child support, corrections, juvenile
that they are still permitted to submit internet. The commenters also requested detention, motor vehicle, or child
them in person to be photocopied by the that CMS not require States to print protective services.
State Medicaid Agency. State Medicaid paper copies of electronic matches in Response: After reviewing the
Agencies often outstation workers to order to minimize the burden of creating databases above, we have determined
various points in the community, such and maintaining additional paperwork. that States may, with DHS approval,
as in hospitals and clinics. These One commenter also stressed that CMS utilize SAVE to verify citizenship for
eligibility workers are permitted to must ensure privacy and confidentiality naturalized citizens. A verification with
accept citizenship and identity protections to applicants/recipients. the SAVE Program will be considered
documentation which they can then Response: While we are very secondary evidence of citizenship.
send to the State for approval. In interested in this suggestion, we Since SAVE does not maintain
addition, States are encouraged to currently do not have such a system photographs, States will be required to
utilize electronic data matching, which developed for use. However, several supplement a data verification with
SAVE with a form of identity listed Stamp program issued a letter to its not change the regulations to require
under the regulations at § 435.407(e). regional directors on May 12, 2006 States to match SSNs for applicants and
In general, the databases reiterating Food Stamp policy that the recipients who submitted third and
recommended by commenters did not Food Stamp program does not require fourth tier documents. We agree that
contain information that could reliably verification of citizenship except when this would duplicate another part of the
establish citizenship. For instance, the a client’s statement of United States application process. We intended for
Child Support program does not citizenship is questionable or when a States to utilize new electronic means of
maintain citizen information and State has mandated verification of verifying citizenship and identity as
section 454(26) of the Act requires State citizenship. Therefore, the food stamps they become available. We stated that
Child Support programs to have in database does not contain sufficient we encourage States to use automated
effect safeguards on access to and use of evidence of citizenship. However, as capabilities to verify citizenship and
information that is collected. Other stated in the interim final rule with identity of Medicaid applicants and that
statutory language restricts what comment period and per the regulations when these capabilities become
authorized information can be provided at § 435.407(e)(2) (formerly available, States will be required to
to what authorized program for what § 435.407(e)(10)), States may use cross match files for individuals who used
authorized purpose (i.e., sections 453 matches with the food stamps database third or fourth tier documents to verify
and 463 of the Act). In addition, neither to verify the identity of an individual. citizenship and documents to verify
the Department of Veterans Affairs With respect to data matches with the identity. We also stated that CMS will
databases nor the IHS Data Warehouse department of motor vehicles, as stated make available to States necessary
necessarily store citizenship in the regulations at § 435.407(a)(4) and information in this regard when such
information. PARIS reports on what § 436.407(a)(4), a State may utilize data capabilities become available. We
public benefits an individual receives matches with the department of motor emphasize that this only applies to new
for purposes of identifying cases of vehicles if the State requires proof of applicants. It is not necessary for States
duplicate coverage of benefits. The only U.S. citizenship prior to the issuance of to electronically verify the citizenship of
information in PARIS that could be of a driver’s license or obtains a social recipients who used third and fourth
use is data on SSI enrollment. However, security number from the applicant and tier documents in the past. We note that
since States have access to SSA’s State verifies before issuance of the license this provision is unlikely to apply to
Data Exchange system to check for SSI that the number is valid and assigned to recipients submitting documentation at
enrollment, PARIS would be the applicant who is a citizen. At this redetermination since this provision is a
unnecessary for data matches. time, we are not aware of any State that one-time action and all
SSA currently makes available to makes providing evidence of citizenship redeterminations affected by this
States through the Numident database a condition of issuing a driver’s license provision should be complete by July 1,
information on whether a particular and includes evidence that the license 2007. Since CMS has not issued
social security number is valid and holder is a citizen on the license or in instructions to States requiring States to
issued to the person named on it. This a system of records available to the utilize specific electronic databases and
is not sufficient evidence of citizenship Medicaid agency. As stated in the does not expect to do so prior to July 1,
since non-citizens may have a social regulations, CMS will monitor 2007, we do not believe this
security number and the information compliance of States implementing this requirement will have any effect on
provided does not personally identify provision. We note that the process the recipients required to submit
the individual. Although the Numident State uses to verify citizenship must documentation at redetermination.
database may contain additional comply with the statutory provision in Comment: One commenter requested
information for individuals with a social section 6036 of the DRA. that CMS require States to utilize
security number that establishes Child support, corrections, juvenile electronic data matches to increase
citizenship, this information is not detention, or child protective services efficiency and lessen the burden on
generally available to States. While databases may be used to verify identity Medicaid recipients and applicants. One
States may be able to negotiate with the but cannot be used to verify citizenship. commenter asked that States be required
SSA for what information they are We cannot ensure that the owners of to utilize all available electronic
granted access to, CMS does not have these systems either (1) verify matching data before asking an
the authority to grant access to citizenship, or (2) verify citizenship individual to submit original versions of
additional fields in SSA’s Numident using comparable criteria to this rule. paper documents.
database. Therefore, we are unable to approve Response: Most States have already
Although several commenters their use at this time. implemented data matching or
requested that we approve State Comment: One commenter stated that verification as a method of verifying
Attorney General’s databases, we were requiring States to match files for citizenship and identity and many
not able to determine exactly what these individuals who only have third or others have expressed an interest in
databases are or what information they fourth levels of evidence as a check doing so. We encourage States to utilize
contain. Therefore, we are not against fraud is contrary to the electronic matching; however, each
approving their use at this time. requirement that this be a one-time State is best suited to understand its
However, these databases may meet the activity. One commenter specifically own capabilities for data matching and
requirements for verifying identity stated that States should not be required we do not believe it is appropriate for
through a cross match with a Federal or to double-check SSNs. They stated that us to require States to use electronic
State governmental, public assistance, since they already require SSNs on the data matching prior to asking for paper
law enforcement, or correction agency’s application to verify income eligibility, documents. There exists variation in the
data system under § 435.407(e) and any non-matches would already have resources and technical capabilities
§ 436.407(e). been caught in this process. available to each State, and some
As for matches with the Food Stamps Response: After considering the electronic matching may require
database, the Food Stamps program commenters’ concerns, we believe that additional State resources and
does not collect citizenship information several commenters may have expenditures that are not currently
as a condition of eligibility. The Food misunderstood the requirement. We did available to the State.
Comment: One commenter requested Response: Individuals who receive commenter stated that this regulation
that CMS defer to the States on how Medicaid because of a determination by violated Federal law by contradicting
long each State should retain the a qualified provider under sections section 1137(d)(4) of the Act.
citizenship documentation records. One 1920, 1920A, or 1920B of the Act are The commenters urged CMS to
commenter requested that State considered presumptively eligible if the reconsider the new regulations as they
Medicaid agencies retain this State has elected to include that option pertain to new applicants, especially in
information indefinitely. in its State plan. Section 1920 refers to the case of pregnant women, children,
Response: We agree with the pregnant women; section 1920A refers parents, and persons with disabilities.
commenter who stated that CMS should to children; and section 1920B refers to As an alternative, one commenter
defer to the States on how long certain breast or cervical cancer recommended that CMS permit States
citizenship documentation records patients. However, within a certain time that administer separate State Children’s
should be maintained, as long as that period, presumptively eligible Health Insurance Programs (SCHIP) to
time period is at least 3 years, consistent individuals are required to apply for be expressly permitted to enroll
with the regulations at § 431.17 and 45 regular Medicaid under sections children in the separate programs
CFR 74.53. However, we do not agree 1920(c)(3), 1920A(c)(3), and 1920B(c)(3) pending submission of necessary
that we should require States to of the Act, respectively. Once this documentation.
maintain this information indefinitely. application occurs the standard Response: In response to the
States are in a better position to decide eligibility rules apply, including the commenters who urged CMS to
what record retention schedule works requirement that the individual verify a reconsider applying this provision to
best with their systems and resources. declaration of U.S. citizenship. pregnant women, children, parents, and
Comment: One commenter requested Comment: Many commenters persons with disabilities, we note that
requested that CMS modify its policy to Congress exempted many groups from
that CMS permit States to use any
allow otherwise-eligible applicants to these requirements. CMS does not have
information already in possession of the
receive benefits once they declare they the authority to exempt additional
State Medicaid office that verifies
are a citizen. The commenters did not groups. As stated earlier, however, in
citizenship. The commenter stated that
agree with allowing current recipients some cases, presumptive eligibility
there would have been no incentive in
an opportunity to produce the might apply to pregnant women and
the past for an individual to submit
documents while still being covered by children. Persons with disabilities may
fraudulent information on citizenship
Medicaid when otherwise-eligible be eligible for either Medicare or
and, therefore, the determination should
applicants are required to produce disability benefits under sections 223 or
be considered valid even if the office
documentation before the start of 202 of the Act, and by virtue of
cannot document how the information receiving such benefits, would be
coverage. Instead, the commenters
was obtained. exempt from the citizenship
suggested that CMS allow applicants
Response: As we stated in the interim who meet all other criteria for Medicaid documentation requirements.
final rule with comment period, States eligibility to receive coverage during the In response to the commenters who
are responsible for verifying the reasonable opportunity period. If the stated that CMS may not treat applicants
authenticity of the documents used to applicant is unable to produce the and recipients differently, we note that
establish citizenship and identity. States documents within the defined period, Congress specifically stated in section
may use information already contained the State could then rescind Medicaid 1903(i)(22) of the Act that the Federal
in the Medicaid file if the State can coverage. share of Medicaid will not be available
verify that an original or certified copy Commenters noted that by not to States unless they can obtain
of the documentation was originally providing new applicants with a ‘‘grace documentation of citizenship consistent
reviewed and a reproduction of the period’’ for submitting the required with section 1903(x) of the Act. Thus,
document is in the file. There should be documentation, CMS will create because a State would not be entitled to
evidence in the file that the eligibility significant delays for those seeking receive Federal Financial Participation
worker reviewed an original or certified health care coverage. Several (FFP) for their expenditures unless
copy. A State is at risk for losing FFP commenters noted that the gaps in documentation on the applicant is
if it cannot provide sufficient evidence coverage caused by these delays may received, a State is not required to
to assure that originals or certified have consequences that are more costly, provide Medicaid to an individual who
copies were reviewed. such as affected individuals seeking has failed to provide documentation of
Comment: Many commenters agreed care in hospital emergency departments. citizenship or nationality. (See Harris v.
with CMS’ policy to allow The commenters emphasized that the McRae, 448 U.S. 297 (1980)). We also
presumptively eligible individuals to cost of emergency care always exceeds note that section 6036(b) of the DRA
maintain Medicaid coverage while they the cost of preventive care. addressed how the statute would apply
locate and submit the required In addition, several commenters to initial applicants versus those seeking
documentation. However, several stated that treating Medicaid recipients redeterminations of eligibility on or
commenters requested that CMS clarify and Medicaid applicants differently was after the effective date of the
in the final rule which groups are prohibited by Federal Medicaid law. requirements (July 1, 2006).
considered presumptively eligible and One commenter stated that because this We do not believe the regulations
which are not. One commenter provision could inhibit an eligible U.S. violate section 1903(b)(3) of the Act.
requested that CMS consider citizen from receiving coverage under First, Congress has required
presumptively eligible individuals Medicaid, CMS was violating a documentation of citizenship in
recipients of Medicaid and, thus, delay provision of the Medicaid statute that sections 1903(i)(22) and 1903(x) of the
citizenship verification until the next prohibits CMS from approving State Act, and these provisions must be read
period of redetermination. The Medicaid plans that impose ‘‘any in concert with the remainder of Title
commenter noted that these groups are citizenship requirement which excludes XIX. Second, the citizenship
in need of expedited critical services any citizen of the United States’’ as a documentation requirements are better
and therefore should not risk facing any condition of eligibility for the program viewed as procedural requirements,
delay in coverage. (see 42 U.S.C. 1396a(b)(3)). One rather than as substantive limitations.
The documentation requirement does not permissible under the regulations to declarations of name changes. The
not place any substantive limit on the enroll a potentially Medicaid-eligible commenter stated that many married or
classes or types of citizens that may child into a separate SCHIP program formerly married women will have
receive Medicaid. pending submission of citizenship and different names on their birth
Section 1137(d)(4) is not applicable, identity documents necessary to certificates and identity documents. The
because it applies only to individuals complete the Medicaid application commenter stated that requiring
who are not citizens or nationals of the process. additional documentation, such as a
United States who declare satisfactory Comment: Several commenters marriage license, would adversely affect
immigration status. The citizenship requested that the reasonable female recipients or applicants.
documentation requirements under opportunity period be at least 90 days Response: The State is responsible for
section 6036 of the DRA apply to in length. One commenter stated that ensuring it has authentic
citizens and nationals of the United many of the required documents take at documentation. The State may accept
States, and not to individuals declaring least 6 weeks to receive, including a the citizenship and identity documents
to be in a satisfactory immigration U.S. Passport, and that it is from a woman whose last name has
status. unreasonable to require applicants and changed due to marriage if the
In order to ensure that unnecessary recipients to produce these documents documentation matches in every way
delays do not occur, the State should in less time than it regularly takes to with the exception of the last name. If
ensure that applicants are aware of these receive the documents. the State is not confident that the two
requirements at the time of application Response: We specified in the interim documents belong to the individual, it
along with any other documentation final rule with comment period that the may request that the woman produce
requirements and ensure them a reasonable opportunity period should the marriage license, divorce decree or
reasonable opportunity to produce the be consistent with the State’s standing other official document verifying the
documents just as applicants must do to administrative requirements such that change. The State may also accept other
establish other factors of eligibility such the State does not exceed the time limits available documentation that does not
as proof of income or resources. States established in Federal regulations for differ in the name of the individual. We
must make applicants aware that once timely determination of eligibility in do not want to cause undue burden if
they have been determined to be eligible § 435.911. The regulations permit it is clear that the two documents belong
and have provided documentation extensions to the time limits when an to and describe the individual.
verifying citizenship, Medicaid applicant or recipient in good faith tries However, individuals who have
eligibility is granted back to the date of to present documentation, but is unable changed both their first and last names
application or to the beginning of the to do so because the documents are not under other circumstances must
month in which the application was available. We note that there are many produce documentation from a court or
received. In addition, under section ways a State can ensure documentation governing agency documenting the
1902(a)(34) of the Act and 42 CFR of citizenship and identity, including official change.
435.914, if an individual would have cross matches with other government Comment: One commenter requested
been eligible for State Medicaid agency databases. that CMS clarify what documentation is
assistance at the time care and services Comment: Several commenters required of individual members of a
were furnished (or —at State option— suggested that CMS clarify that existing household when eligibility is
during the month in which care and retroactive eligibility is not impacted by determined on a family or household
services were furnished), retroactive the new regulations. They noted that basis. The commenter recommended
coverage may be made available retroactive eligibility determinations that CMS only require documentation
beginning with the third month prior to ensure that both children and providers for one adult member of the family or
the month of application. In other are protected while eligible individuals household.
words, once the individual has proven await documentation of citizenship. Response: When eligibility is
his or her citizenship, eligibility will be Response: We agree with the determined on a family or household
conferred on that individual retroactive commenters who stated that the basis, per section 1137(d)(1)(A) of the
to up to 3 months before the month of retroactive eligibility rules are not Act, the individual applicant often
application, if the individual is found to impacted by the new regulations. Once makes a declaration of citizenship for all
be eligible during that prior period or a State has determined that an members of the household. Therefore,
part thereof. individual is eligible for Medicaid, although each individual has not made
Under Title XXI, the State cannot including having verified citizenship, a declaration of citizenship, someone
make eligible for SCHIP an individual Medicaid eligibility is granted back to has made a declaration on his or her
who is potentially eligible for Medicaid. the date the application was filed or to behalf and that declaration must be
Under the regulations at 42 CFR the beginning of the month in which the verified. As a result, each individual of
457.350(f)(1), a child who is potentially application was filed. The date of the household has effectively declared
eligible for Medicaid cannot be found application is the date the individual to be a citizen of the United States, and
eligible for SCHIP unless and until a submits the application. If further documentation verifying such
completed Medicaid application for that documentation is required beyond what citizenship must be submitted for every
child is denied, or the child’s is initially submitted, the date of individual member of the household.
circumstances change. A Medicaid application remains the initial date of Comment: One commenter requested
application is not complete without filing. Under authority at section that CMS require that individuals who
submission of all documentation, 1902(a)(34) of the Act, States must were born outside the U.S. be treated in
including documentary evidence of provide retroactive eligibility for up to the same manner as individuals born
citizenship and identity. An incomplete a 3-month period prior to the month of inside the U.S. The commenter
application may be denied; however, application, for those who are recommended that CMS revise the
because the application was incomplete, determined eligible during that period regulations to state that individuals born
this denial does not meet the criteria or a part thereof. outside of the U.S. may use the same
that a completed Medicaid application Comment: One commenter requested forms of documentation as individuals
for the child is denied. Therefore, it is that CMS permit individuals to make born in the U.S.
Response: We agree with the beyond what is specified in our Several commenters also requested
commenter and have modified the regulations, or to create an exception that if CMS is to maintain the hierarchy,
regulations to permit naturalized process at the Regional Office level. We it should continue to accept third and
citizens to use additional documents as note that if commenters wish to propose fourth level documents. One commenter
well as the affidavit process. We note additional types of documentation, they requested that CMS collapse the second
that it is not possible to permit may present such documents to the through fourth tiers. The commenter
individuals born in the U.S. and Secretary, who will then engage in stated that once a document was
naturalized citizens born outside of the notice and comment rulemaking to deemed reliable for verifying citizenship
U.S. to present all the same evidence of determine whether the documents are or identity, it should be treated as
citizenship. For instance, a birth acceptable evidence of citizenship or equally reliable as all other approved
certificate issued in a U.S. hospital may identity or both. documents.
be used to verify U.S. citizenship; In addition, based on experience so In contrast, one commenter stated that
however, it is not possible for a person far with the interim final rule, we the hierarchical approach to document
born outside of the U.S. to have such a believe it will be a very rare occurrence acceptance is important and should
document. Likewise, most individuals that the individual or State agency will remain in the regulations. The
born inside the U.S. will not be able to be unable to produce any of the commenter stated that ensuring that
obtain a Certificate of Naturalization. acceptable documents. If such a case applicants provide the most reliable
arises, States must work with the documentation available to them will
Citizenship Documents individual to help them obtain whatever decrease the chance of fraud or abuse of
Comment: Several commenters documentation could be made available. the Medicaid system.
requested that CMS address in the final States may contact CMS for technical In addition, the commenter requested
rule what the procedure will be when assistance if they experience instances that CMS consider a document to be
an individual can neither produce any in which they have questions or available if it is known to exist. The
documentation verifying citizenship nor concerns. commenter stated that allowing
locate two qualified individuals to Finally, we believe that the affidavit individuals to submit lower-tier
support his or her affidavit declaring process is appropriate because it offers evidence when a higher level of
citizenship. The commenters stated that flexibility to individuals who have no evidence exists would encourage
there is likely to be a significant number other method of verifying their individuals to simply submit the
of individuals who cannot meet any of citizenship while protecting the available document without putting in
the documentation options. The integrity of the Medicaid program. The the effort to locate and submit more
commenters requested that States be process was not intended to be simply reliable evidence.
allowed to grant ‘‘good cause’’ or a process of self-attestation, which the Response: We understand that several
hardship exemptions to the new Congress intentionally eliminated by commenters were concerned about our
regulations and permit applicants to establishing this provision. We believe system for categorizing documents by
show other evidence of citizenship. it will be less likely that an individual reliability. While States should first seek
Several commenters suggested that CMS who is falsely declaring to be a U.S. documents from the first level (U.S.
follow the approach taken by the Social citizen will be able to arrange for two Passport, Certificate of Citizenship,
Security Administration (SSA). The individuals to submit affidavits on his Certificate of Naturalization, or certain
commenters stated that SSA permits or her behalf. The requirement that at State driver’s licenses), States are not
individuals applying for Supplemental least one of the individuals be a non- prohibited from accepting
Security Income (SSI) the opportunity to relative better ensures that there is less documentation from the second tier or
explain why they have no proof of conflict of interest. below if a document from the first tier
citizenship and provide any information Comment: Several commenters noted is not available. In other words, an
they do have. The commenters that section 6036 of the DRA did not applicant or recipient is not expected to
suggested that CMS amend the proposed mandate a hierarchy of acceptable purchase a passport if the individual
change to the regulations to permit a documents, and, therefore, CMS should does not already have one but does have
State Medicaid office to determine that not impose one. The commenters available other evidence of citizenship
it has obtained satisfactory suggested that CMS revise the and identity. As we stated in the
documentation of citizenship outside of regulations to give States flexibility to preamble to the July 12, 2006 interim
the guidelines published in the July 12, comply with the documentation final rule, States have the authority (and
2006 interim final rule. requirements. The commenters flexibility) to determine when a
One commenter requested that CMS recommended allowing States to accept document is considered unavailable (see
provide an exception process whereby documentation from the second- and 71 FR 39215). However, we would not
the State Medicaid agency could request third-tier evidence groups without first expect a State to require an individual
the CMS regional office to review and ensuring that primary-level evidence is to secure a document that cannot be
approve the citizenship of an individual unavailable, unavailable without cost, made available within the reasonable
based on evidence submitted by the or if there is some uncertainty about opportunity period if a lower level
State that does not meet the when the primary evidence can be document is already available. We have
documentation currently required under obtained. The commenter requested that made clarifying, technical changes to
the regulations. States be able to accept lower level the regulations at § 435.407(c) and (d) to
Response: It is important to note that evidence that is available at the time of make clear that if higher level
Congress required the documentation of application if waiting for higher level documents are unavailable, lower-level
citizenship as a requirement in evidence will result in a delay in the documentation may be used.
Medicaid. In order to ensure the validity eligibility determination. One We do not agree with the commenter
of such documentation, we believe it is commenter requested that CMS permit who suggested collapsing the second
important to have consistent standards States to determine that a document is through fourth tiers. It is important for
for States to follow. Therefore, we have ‘‘not available’’ when it cannot be States to strive to collect the most
not provided authority for States to obtained within the reasonable reliable evidence first, and we believe
accept additional documentation opportunity period. that we have the authority under Title
XIX, as well as our rulemaking authority (USCIS) office. Commenters stated that issuance of a social security number.
in section 1102 of the Act, to create the a Certificate of Naturalization currently The documents listed above are not
hierarchical system. Documents in the costs $200 and can take a considerable accepted by SSA as proof of citizenship
fourth tier are not as reliable as amount of time to receive. They for a social security number.
documents in the second tier and indicated that a U.S. passport costs $97 We are not accepting these documents
should not be considered as such. and takes 6 weeks to process. The as evidence of citizenship because they
Comment: Several commenters asked commenters noted that the U.S. Passport do not definitively establish an
that CMS not further limit in the final Agency verifies citizenship independent individual’s citizenship. For many of
rule the types of evidence that may be of the Department of Homeland Security the documents listed above, there is an
used to document citizenship or (DHS) and therefore its records are not existing alternative document or a
identity. In addition, the commenters linked to the automated records used by database States may access that
suggested that CMS allow States greater DHS. The commenter therefore constitutes a more reliable record.
flexibility in determining what concluded that it will be especially Recipients or beneficiaries with the
documentation will be permitted. The burdensome for individuals to obtain a types of birth records mentioned above
commenters stated that this flexibility passport if they have lost their should be able to obtain a birth
would enable States to confidently Certificates of Naturalization or certificate or have the State conduct a
verify an individual’s status using Citizenship. The commenter concluded data match with the State vital statistics
means that CMS has not considered or that limiting acceptable first tier agency. An individual who was a U.S.
by methods that have yet to be documents to these three pieces of citizen at birth despite being born
developed. documentation will result in an increase abroad, can obtain a Department of State
In contrast, one commenter disagreed in the number of Medicaid-eligible report of birth as described in the
with CMS’ expansion of the list of individuals not receiving coverage and regulations at § 435.407(b)(2), (3), or (4).
documents offered in the DRA. The turning to alternate sources of care in Comment: Several commenters
commenter stated that the Secretary the community. requested that CMS permit States to
should have first published a set of Response: We note that the Congress accept SSI check stubs for newly
proposed regulations followed by a specifically cited these documents as qualified SSI recipients whose names
public comment period, prior to the proof of both citizenship and identity. have not yet been entered into the State
issuance of final regulations. We are not aware of any other Data Exchange (SDX) database.
Response: After considering the government-issued documents that Response: Individuals receiving
comments received, we have decided could satisfy both the U.S. citizenship checks from SSA should have been
not to further limit the list of documents and identity requirement and thus be entered into the SDX database. All
considered satisfactory proof of considered a first tier document. As States can check for SSI eligibility
citizenship and identity as published in previously stated, while States should through this system. However, if the
the July 12, 2006 interim final rule. As first seek documents from the first level, State cannot confirm with SSA that the
we have previously stated, we think it States are not prohibited from accepting individual has been deemed eligible for
will be a rare occurrence that an documentation from the second tier or SSI via the SDX database, the State
individual cannot meet these below if a document from the first tier should pursue obtaining evidence of
requirements using the broad spectrum is not available. For instance, if an citizenship and identity.
of documents included in the applicant is in possession of an original Comment: One commenter
regulations. If we become aware of or certified copy of his or her birth recommended that CMS amend the list
additional documents that might serve certificate but does not have a passport, of secondary evidence of citizenship by
as evidence of citizenship or identity or the individual may present the birth including records that are considered
both, we will engage in notice and certificate along with another form of secondary level evidence for citizenship
comment rulemaking to determine identification that proves identity. In verification from the SSA Program
whether the documents should be the case of a naturalized citizen, the Operation Manual System (POMS).
accepted as evidence. State may conduct an electronic data Several commenters requested that CMS
The July 12, 2006 interim final verification with DHS’ SAVE Program at revise the regulations to permit States to
regulation is considered a regulation no cost to the applicant or recipient. As verify citizenship following the POMS
under the Administrative Procedure we stated in the preamble to the July 12, guidelines for social security numbers.
Act. For a discussion on why we had 2006 interim final rule, States have the Response: In the interim final rule we
good cause to publish the regulation authority (and flexibility) to determine did not include two types of documents
without first engaging in notice and when a document is considered the SSA accepts as secondary evidence
comment, we refer readers to the unavailable (see 71 FR 39215). for social security numbers as listed in
interim final rule at 71 FR 39220. Comment: Several commenters the POMS RM 00203.310: religious
Comment: Several commenters recommended that CMS amend the list records recorded in the U.S. within
disagreed with CMS’ policy of only of evidence of citizenship by including: three months of birth and early school
allowing three pieces of documentation souvenir birth certificates; birth records showing a U.S. place of birth.
to qualify as first tier documents for certificates from a foreign country We have accepted these documents as
purposes of verifying citizenship. The stamped ‘‘U.S. Citizen;’’ marriage third level evidence of citizenship in the
commenters noted that the cost, delay in certificates showing place of birth of the final rule. Religious records recorded in
receipt, and other factors make it individual; entries in a family bible the U.S. within 3 months after the birth
unlikely that many low-income citizens documenting birth in the United States; must show that the birth occurred in the
will have access to these documents. and for a parent, a U.S. birth certificate U.S. and must show the date of the birth
For instance, several commenters noted of a child showing the parent’s place of of the individual or the individual’s age
that a Certificate of Citizenship birth. at the time the record was made. These
currently costs $255, not including Response: We have reviewed each of must be official records recorded with
supporting documentation, passport the documents above. As part of our the religious organization. Examples of
photos, and the trip to a U.S. review, we considered SSA policy with such records include baptismal
Citizenship and Immigration Service respect to documents acceptable for certificates. We caution States that in
questionable cases (e.g. where the substitute for documentary evidence of citizenship before the issuance of the
child’s religious record was recorded citizenship rather than as a verification July 12, 2006 interim final rule and,
near a U.S. international border and the of the certificate of naturalization. If an therefore, would not have had the
child may have been born outside the applicant has a certificate of foresight to create false documents in
U.S.), the State should verify the naturalization, the applicant must advance for purposes of meeting these
religious record and/or document that provide it as first-tier evidence. Thus, requirements. Several commenters
the mother was in the U.S. at the time the applicant will need to provide the noted that many individuals have been
of birth. We have added regulations text alien registration number using another receiving Medicaid for 20 or more years.
at § 435.407(c)(3) and § 436.407(c)(3) to means, such as memory or They question CMS’ decision to require
include these records as third level documentation of previous dealings those individuals to produce documents
evidence of citizenship. with DHS. that were created decades ago. Several
Early school records must show the In addition, all use of the SAVE commenters suggested CMS permit
name of the child, the date of admission system is subject to DHS requirements, States to accept documents that existed
to the school, the date of birth (or age including execution of an appropriate at the time of the enactment of the DRA.
at the time the record was made), a U.S. Memorandum of Understanding (MOU) Other commenters recommended that
place of birth, and the name(s) and providing access to the system. The fact CMS permit current recipients to use
place(s) of birth of the applicant’s that entering a name, date of birth and documents that existed on the date of
parents. We have added regulations text alien registration number may generate the enactment of the DRA and permit
at § 435.407(c)(4) and § 436.407(c)(4) to a response that the subject of the query new applicants to use documents that
include these records as third level is a naturalized citizen does not existed 2 or 3 years before this date.
evidence of citizenship. necessarily mean that that is an Response: Five years prior to
These records have been approved as authorized use of the system. SAVE was application is not an arbitrary date. This
third level evidence of citizenship designed as a method of verifying alien is long standing SSA policy which we
because they are issued by non- immigration status, including have adopted. This requirement is only
governmental entities. responding that the subject of an alien assigned to those documents that would
Comment: One commenter requested status inquiry is in fact a naturalized be the most vulnerable to being created
that CMS permit States to accept a citizen if such is the case. SAVE MOUs for the purpose of meeting Medicaid
duplicate of the information sent from with State agencies administering eligibility requirements. This
hospitals to the State’s Vital Statistics Medicaid do not currently authorize use requirement helps protect the integrity
Agency for registering births to prove of the system to verify claims to of these documents. We also note that
the citizenship of infants. naturalized citizen status. In addition not all documents are subject to this
Response: This document could be and as previously stated, naturalized requirement. CMS has made available a
permitted under 42 CFR 435.407(c)(1) or citizens may also now make use of the wide spectrum of documents to
42 CFR 436.407(c)(1) if it is part of the affidavit process as well. Therefore, we establish citizenship and identity.
official hospital record and is on are not amending the policy to accept Comment: One commenter requested
hospital letterhead. additional documents for use by that CMS define the circumstances
Comment: One commenter naturalized citizens. when fourth-level documentation is
recommended that CMS accept a letter Comment: One commenter requested permissible to prove citizenship. The
of verification or any other official that CMS permit States to follow commenter stated that this evidence
document from DHS or a U.S. District guidelines used by the Department of should only be used when primary,
Court indicating that the person is a State for establishing citizenship, secondary, and third-level evidence
naturalized citizen. The commenter including accepting census records and does not exist.
suggested that these documents be a doctor’s record of post-natal care. Response: A State may accept fourth
considered secondary evidence of Response: In our interim final and level evidence when primary,
citizenship. final regulations at § 435.407(d)(1) and secondary, and third level evidence is
Response: The Department of § 436.407(d)(1), we permit as fourth- not available within the reasonable
Homeland Security (DHS) has level documents census records opportunity period and, with the
confirmed that documentation that an showing U.S. citizenship or U.S. place exception of the affidavit process, the
individual is a naturalized citizen may of birth, as well as the applicant’s age. applicant alleges a U.S. place of birth.
be contained in the SAVE database. All Generally, census records from 1900 In our above response to comments, we
States have access to SAVE and data through 1950 provided this kind of provide additional guidance on what it
verifications can be conducted with the information. Medical records of post- means for a document to be available. In
database. However, because SAVE natal care could qualify as an extract of accordance with such guidance, the
verification is based on alien a hospital record, which is considered State should make the decision of
registration numbers, the State will need third level evidence at § 435.407(c)(1) whether documents of a given level of
to provide DHS with the individual’s and at § 436.407(c)(1), or a medical reliability are available to the applicant
alien registration number to enable the record, which is considered fourth level or recipient (see 71 FR 39215).
search to take place. While this number evidence at § 435.407(d)(4) and at Comment: One commenter requested
is found on the certificate of § 436.407(d)(4). that CMS take into account the
naturalization, it is necessary to keep in Comment: Many commenters circumstances of homeless persons
mind that since a SAVE verification has disagreed with CMS’ policy to require when reviewing States for accepting
been designated as an acceptable form that third and fourth tier evidence only third or fourth level evidence of
of second-tier evidence to be used only be considered valid if issued at least 5 citizenship. The commenter noted that
when first-tier evidence such as the years before the date the individual there are significant reasons why
certificate of naturalization is applied for Medicaid. They stated that documentation may not exist for
unavailable, that source for the alien 5 years is an arbitrary period of time. homeless individuals and that providers
registration number cannot, by The commenters noted that an applicant and States should be assured that they
definition, be used when SAVE is used could not have been aware of the policy will not be penalized for providing
as second-tier evidence, i.e., as a to use these documents to verify services to these individuals.
Response: If the individual or person word ‘‘amended’’ be replaced with must screen any individual who
working on the individual’s behalf ‘‘delayed.’’ The commenter stated that presents to the hospital emergency room
requires assistance, States are required an amended record is one that was requesting treatment of an emergency
to aid these individuals and locate and changed based on a court order or some medical condition. The hospital must
obtain whatever documentation exists. other documentary evidence based upon provide an appropriate medical
For instance, the State may be able to the items and nature of the change. A screening examination. If the hospital
conduct electronic data matching that delayed record is one that was filed determines that an emergency medical
renders unnecessary the need for the more than 5 years after birth. The condition exists, the hospital must
applicant or recipient to submit paper commenter stated that these changes provide or arrange for stabilizing
documentation. better reflect the intent of the treatment of the emergency medical
Comment: One commenter requested regulations. condition without regard to insurance or
that for purposes of using third tier Response: We agree with the ability to pay.
evidence, CMS specify that the place of commenter and are making the Comment: Several commenters stated
birth on the nongovernmental document necessary revisions to the regulations that it is a felony under Federal law (18
agree with the place of birth on the text at § 435.407 and § 436.407. U.S.C. 1426(h)) for any person to copy
application at the State level. The Comment: In the regulations at Certificates of Naturalization and
commenter noted that names of small § 435.407(b)(1) and § 436.407(b)(1), a Certificates of Citizenship. Therefore,
towns and rural areas often change. The birth record may be accepted as the commenters requested that CMS
commenter stated that these minor secondary evidence of citizenship if it address what State agencies should do
inconsistencies should not have any was recorded prior to five years of age; to document that an individual
bearing on the application for Medicaid. a birth record that was recorded more presented a Certificate of Naturalization
Response: While we understand the than five years after birth is considered or Citizenship.
commenter’s concern, this does not fourth level documentation of Response: Any person who, without
necessitate a modification to the citizenship. One commenter lawful authority, makes a likeness of
regulations. The State is responsible for recommended that CMS permit States to various immigration or naturalization
ensuring the authenticity of the accept any birth certificate, regardless of documents is committing a crime under
documents. when it was recorded or whether it was 18 U.S.C. 1426(h). The Department of
Comment: One commenter requested delayed as secondary evidence of Homeland Security and the Department
that CMS accept as primary evidence of citizenship. of Justice investigate and prosecute such
citizenship any identity cards issued by Response: We adopted limits on the offenses. However, the limitation
the Texas Vital Statistics Office to acceptability of birth certificates in ‘‘without lawful authority’’ would
migrant workers, which show date and accordance with SSA practice when appear to exclude State employees, as
place of U.S. birth along with photo issuing SSNs. These limits were well as Federal employees and agents,
identification. established to assure that when acting within the scope of their official
Response: We have worked with the establishing citizenship, the oldest duties, from the ambit of the offense.
Texas Department of State Health documents would be used in preference Accordingly, we do not believe that this
Services, Office of Vital Statistics to to more recent documents of the same criminal offense provision should be
determine what these cards are, what degree of reliability. Therefore, it is considered an impediment to the State’s
they are used for, and if they might appropriate to distinguish between a records retention needs and making
serve as appropriate evidence of birth certificate that was recorded photostatic or xerographic copies of
citizenship and/or identity. However, within five years of birth and one that such documents, duly marked as copies
we were unable to locate an example of delayed more than 5 years after the retained for official purposes, for their
the identification card. Until such time birth. records.
that we can review a sample document, Comment: One commenter requested Tribal Documents
we are unable to accept as evidence of that CMS clarify that immunization
citizenship and identity such document. records maintained by parents or Comment: Many commenters
Comment: Several commenters schools are not considered to be medical requested that CMS modify the
requested that CMS define ‘‘near the records but that immunization records regulations to permit American Indian/
time of birth’’ as found in § 435.407(c) maintained by a clinic, doctor, or Alaska Natives to submit documentation
and (d). The commenters requested hospital are considered to be medical establishing membership in a federally-
CMS clarify whether the States were records. recognized Tribe as a first tier document
entitled to make this determination. Response: We agree with the to verify U.S. citizenship and identity.
Response: States are best able to make commenter. The commenters noted that American
this determination and are responsible Comment: One commenter requested Indian/Alaska Natives frequently do not
for the authenticity of the document. that CMS clarify whether citizens who have the type of documents required
Comment: One commenter requested are unable to produce the designated under CMS’’ regulations implementing
that CMS review the language documentation are eligible to receive section 6036 of the DRA. In particular,
pertaining to the recording of birth emergency medical assistance under the commenters stated that many
certificates to ensure that the Title XIX. elderly American Indian/Alaska Natives
appropriate terminology was used. The Response: Coverage for treatment of do not have birth certificates, as they
commenter stated that in § 435.407 and an emergency medical condition were born in remote rural locations
§ 436.407 the word ‘‘issued’’ should be provided for under section 1903(v)(2) is where no healthcare facilities existed.
replaced with ‘‘recorded.’’ The only available to non-qualified aliens Response: We have carefully
commenter stated that by using the and qualified aliens subject to the five- considered the commenters’ concerns
word ‘‘issued,’’ CMS is requiring year bar. Therefore, citizens are not and recommendations and have
applicants or recipients to have eligible for coverage under this concluded that we cannot accept
requested copies of birth certificates 5 provision. additional tribal documents as proof of
years before the date of application. The Section 1867 of the Act requires that U.S. citizenship at this time. First, we
commenter also recommended that the hospitals with emergency departments note that elderly individuals, if enrolled
in Part A or B of Medicare, will be a roll of all Natives who were born 5, 1997). As amended, PRWORA
exempt from the citizenship before December 18, 1971. In section provided that non-citizen American
documentation requirements. Second, 1602 of this act, ‘‘Native’’ is defined as Indian/Alaska Natives born outside of
certain Tribal documents, such as those a ‘‘* * *citizen of the United States the U.S., who either (1) were born in
listed in § 435.407(d)(2) and who is a person of one-forth degree or Canada and are at least 50 percent
§ 436.407(d)(2), are already accepted as more Alaska Indian, Eskimo, or Aleut American Indian blood, or (2) are
evidence of citizenship. However, not blood, or combination thereof.’’ The members of a federally-recognized Tribe
all Tribes require members to be U.S. commenters therefore conclude that as defined in Sec. 4(e) of the Indian Self-
citizens or to have been born in the U.S. inclusion on this list is documentation Determination and Education
Therefore, we cannot ensure that all of U.S. citizenship. Assistance Act, are eligible for
Tribal members are U.S. citizens. In Response: We agree with the Medicaid, even if they are not U.S.
many instances, Tribes indicated that commenters and have accepted the Roll citizens. In other words, individuals
they require individuals to present a of Alaska Natives as fourth level who meet one of the above requirements
birth certificate to obtain a Certificate of evidence of citizenship. may be considered to be in satisfactory
Indian Blood. In these cases, the The purpose of the Roll was to immigration status for purposes of
individual should be able to submit the identify individuals with whom the determining eligibility for Federal
same birth certificate to the State Federal government was to settle a public benefits. PRWORA specifically
Medicaid Agency as evidence of claim of aboriginal title to land. created an exception for American
citizenship. However, some Tribes Individuals submitted applications to be Indian/Alaska Native individuals who
indicated that they relied on lineage included on the Roll. As part of the are not United States citizens. An
documentation to establish membership application, individuals had to American Indian/Alaska Native who
in the Tribe. Establishing tribal demonstrate that they were U.S. declares him- or herself to be a citizen
membership confirms the heritage and citizens. We have confirmed with the is not affected by PRWORA and is
blood linkage of the individual to an Bureau of Indian Affairs (BIA) that the subject to this provision.
ancestor who was a member of the documentation submitted as part of the Comment: A representative from one
Tribe. Determining lineage does not application for inclusion on the Roll Tribe asked that CMS delay
necessarily establish U.S. citizenship of could have included birth certificates, implementation of section 6036 of the
the individual applying for or receiving ancestry information, marriage DRA until the issue of adequate
Medicaid and therefore, does not meet documents, official name change documentation for American Indian/
the requirements under section 1903(x) documents, adoption information and Alaska Natives has been further
of the Act. information on siblings. Such discussed and a solution reached.
Comment: Several commenters noted documentation is sufficient evidence of Response: In section 6036(b) of the
that in 1924, the Congress granted U.S. citizenship under these regulations. DRA, Congress required the citizenship
citizenship to members of federally- The Roll is not continually updated; documentation requirements to apply
recognized Tribes through the Indian it only contains information for July 1, 2006, specifically stating that the
Citizenship Act. They stated that the individuals who were born prior to ‘‘amendments made by subsection (a)
Department of the Interior approves December 18, 1971. With the applicant’s shall apply to determinations of initial
tribal constitutions, including or recipient’s approval, the State eligibility for medical assistance made
membership provisions. The Medicaid Agency may contact the BIA’s on or after July 1, 2006, and to
commenters therefore concluded that regional office in Juneau to request redeterminations of eligibility made on
when the Federal government approved information on the individual from the or after such date.’’
the membership guidelines, it Roll. Comment: In contrast, several
automatically conferred U.S. citizenship This is consistent with the Social commenters agreed with CMS’ proposal
on any individual granted membership Security Administration’s policies. We to not accept tribal membership cards as
in a federally-recognized Tribe. The have added corresponding regulations at first tier documentation verifying U.S.
commenters therefore concluded that § 435.407(d)(vi) § 436.407(d)(vi). citizenship.
tribal documents verifying tribal Comment: Several commenters stated Response: We appreciate the
membership should be accepted as that not all American Indian/Alaska comment and have not made any
evidence of citizenship. Natives are required to be U.S. citizens changes at this time with respect to
Response: The Indian Citizenship Act or meet one of the specific immigration Tribal documents that will be accepted
conferred U.S. citizenship on American statuses to be eligible for Medicaid. The for purposes of verifying United States
Indians who were born in the United commenters noted that Title IV of the citizenship.
States. The Act did not grant U.S. Personal Responsibility and Work
citizenship to all members of Federally- Opportunity Reconciliation Act Evidence of Citizenship for Children
recognized Tribes. The individual must (‘‘PRWORA,’’ Pub. L. 104–193), enacted Comment: One commenter asked that
not only be a member of a Federally- on August 22, 1996, exempted CMS clarify what constitutes sufficient
recognized Tribe, but also have been American Indians from the citizenship documentation of citizenship for
born in the United States. Therefore, requirements for Medicaid eligibility. children under age 16. One commenter
demonstration of Tribal membership is The commenters therefore concluded noted that some documents will not be
not equivalent to demonstration of U.S. that American Indian/Alaska Natives available for children. For instance, one
citizenship. are exempt from the citizenship State prohibits children under the age of
Comment: In the case of Alaska documentation requirements. 18 from obtaining a certified copy of
Natives, the commenters requested that Response: We are aware that their own birth certificates.
States be permitted to refer to the Roll American Indians who are not U.S. Response: As stated earlier, we
of Alaska Natives composed by the citizens may be eligible for Federal believe the statute requires children
Secretary of the Interior in 1971 to public benefits under PRWORA (and the who have either declared U.S.
verify citizenship. Section 1604(a) of the amendments made thereto through citizenship or have had such a
Alaska Native Claims Settlement Act of section 5303 of the Balanced Budget Act declaration made on their behalf to meet
1971 required the Secretary to prepare of 1997, Pub. L. 105–33, enacted August the documentation requirements under
1903(x) of the Act. There are numerous for, has been determined eligible and is determined to have been Medicaid-
ways to document citizenship for receiving Medicaid on the date of the eligible either on the date of service or
children as outlined in this final rule. child’s birth. The child is deemed to during the month in which retroactive
Comment: One commenter requested have applied and been found eligible for eligibility is provided. This applies to
that CMS reconsider whether Medicaid on the date of birth and all applicants, including non-qualified
documentation is necessary to remains eligible for one year so long as or 5-year bar qualified aliens seeking
document the citizenship and identity the woman remains (or would remain if coverage for emergency services
of very young children. They stated that pregnant) eligible and the child is a (including labor and delivery) only. If a
there is very little question about the member of the woman’s household. woman is found to be retroactively
citizenship of children born to parents Citizenship and identity documentation eligible for labor and delivery services,
who have documented their own for the child would be obtained at the the newborn child would be deemed
citizenship. They also request that CMS next redetermination of eligibility. This Medicaid-eligible from the date of birth.
expand the list of satisfactory policy also applies to a citizen child With respect to whether the mother
documents for young children. born to a non-qualified or 5-year bar remains (or would remain if pregnant)
Response: As stated above, we qualified alien mother eligible for and eligible for Medicaid after the birth of
interpret the statute as requiring that receiving Medicaid on the date of the the child, the State must determine
every individual who has declared to be child’s birth. whether a non-qualified or 5-year bar
a U.S. citizen or had a declaration made In order for an individual to be qualified alien would remain eligible for
on his or her behalf must document determined eligible for Medicaid (with emergency services under § 435.139 or
such U.S. citizenship in order for the the exception of newborns deemed § 436.139. In determining whether the
State to receive FFP. The State cannot eligible under section 1902(e)(4) of the woman would remain eligible for such
assume a child’s citizenship status Act), he or she must complete a full services, the State must consider
based on the parents’ information. Medicaid application. This is also the whether the woman would remain
Comment: One commenter case for non-qualified or 5-year bar otherwise-eligible if pregnant.
recommended that CMS permit States to qualified aliens seeking coverage for If a woman does not apply for
accept birth records to satisfy both the emergency medical services (including Medicaid or applies for Medicaid and is
citizenship and identity requirements labor and delivery) only. While non- not determined eligible, her labor and
for children. qualified aliens are not required to meet delivery services will not be covered by
Response: Section 1903(x)(3) of the the citizenship or satisfactory Medicaid and the child would not
Act requires that when an individual immigration status requirements or to benefit from the provisions under
submits a birth certificate to establish submit a social security number, they section 1902(e)(4) of the Act. In these
citizenship, the individual must submit must be determined otherwise-eligible, cases, an application must be filed on
a second document to verify identity. including but not limited to meeting behalf of the child and the citizenship
Comment: Many commenters residency, income and resource documentation requirements would
disagreed with CMS’ requirement that requirements. All standard Medicaid apply at the time of application.
infants born to non-status aliens application procedures apply, including We note that certain children born in
receiving ‘‘emergency Medicaid’’ in a timely determination of eligibility and the United States do not benefit from
U.S. hospital be required to submit adequate notice of the agency’s decision deemed eligibility because the mother
documentation verifying citizenship. concerning eligibility. Qualified aliens will be ineligible for both emergency
The commenters noted that individuals subject to the 5-year bar must and regular Medicaid. For example,
born in the U.S. are U.S. citizens, demonstrate that they are in satisfactory foreign diplomats and their children
regardless of the citizenship of the immigration status, submit a valid social (including those born in the United
mother. The commenters stated that, security number, and meet all other States) are not eligible for either
otherwise, many eligible citizen eligibility requirements including but emergency or regular Medicaid. (See
newborns risk a delay in health not limited to the residency, income and section 3211.10 of the State Medicaid
coverage to which they are entitled. resource requirements as part of being Manual, Publication 45.) In addition,
Several commenters also stated that determined otherwise-eligible for some non-qualified aliens are not
some eligible infants may not have emergency medical services under eligible for Medicaid coverage of an
applications made on their behalf and Medicaid. All Medicaid application emergency medical condition because
that CMS should make the process as procedures apply, such as timely they do not meet all eligibility criteria,
simple and direct as possible for those determination of eligibility and such as residence in a State. For
responsible for this vulnerable adequate notice of the agency’s decision example, individuals present in the
population. concerning eligibility. United States on a current visitor’s visa
Response: We have considered the In most cases affected by this rule, are not considered residents of a State.
comments received and are modifying States have up to 45 days to make an Such individuals are admitted to the
the regulations to clarify that a child eligibility determination. Once an U.S. for temporary periods, and upon
born to a woman who has applied for, applicant is determined eligible, the applying for the visa declared under
has been determined eligible and is effective date of eligibility may be the penalty that they are not abandoning
receiving Medicaid on the date of the date of application, the first date of the their primary residences abroad. While
birth of the child is deemed Medicaid- month of application or up to 3 months a child born in the United States to such
eligible for a period of one year so long prior to the month of application. Under an individual is a U.S. citizen and may
as the mother also remains (or would retroactive eligibility authorized under be eligible for Medicaid, deemed
remain if pregnant) eligible and the section 1902(a)(34) of the Act, an eligibility does not apply. In these
child is a member of the woman’s applicant may be determined eligible for instances, a full Medicaid application
household. services rendered up to 3 months prior for the child would be required to
Under section 1902(e)(4) of the Act to the date of application. In order for determine Medicaid eligibility.
and 42 CFR 435.117, a Medicaid agency a service to be covered by Medicaid in We are modifying the regulations text
must provide Medicaid eligibility to a the 3 month period prior to the at § 435.117 and § 436.117 to reflect
child born to a woman who has applied application, the applicant must be these changes in policy.
We note that CMS has not initiated Response: We note that if the The U.S. citizenship of the parent
action against any State to disallow FFP adoption is for a child eligible for Title should be verified as otherwise
based on implementation of the deemed IV–E Adoption Assistance, the child provided in this rulemaking. Admission
newborn provision under the policy in would be exempt from these of the child as a lawful permanent
the interim final regulation. However, requirements as authorized under resident should be verified in the
we expect that all States will be in section 405(c)(1)(A) of Division B of the manner provided for a determination of
compliance with the deemed newborn TRCHA. If the exemption does not ‘‘qualified alien’’ status, including
policy described above upon the apply, a State may accept birth SAVE verification. More detailed
effective date of the final regulation. We information from an adoption agency if information about documentary
continue to provide States with ongoing the adoption agency certifies that it evidence that can be used to satisfy
outreach and technical assistance on obtained the information from an elements of a section 320 claim to U.S.
this matter. original birth certificate or certified citizenship is provided in DHS
Comment: Many commenters copy of a birth certificate. The State may regulations at 8 CFR Part 320 (especially
requested that States should be also conduct a match with the section 320.3(b)) and in the instructions
permitted to accept record of payment, appropriate vital statistics agency using for DHS Form N–600, Application for
and especially a State Medicaid the information provided by the Certificate of Citizenship (available on
agency’s record of payment, of an adoption agency, or work with another the USCIS Web site at http://uscis.gov).
individual’s birth in a U.S. hospital as State to conduct such a match with that Note that these provisions apply to
satisfactory documentation of both State’s vital statistics agency. claims of ‘‘automatic’’ citizenship under
citizenship and identity. In addition, Comment: One commenter requested section 320 of the Immigration and
several commenters suggested that that CMS clarify how the regulations Nationality Act only. The Child
States be permitted to accept U.S. apply to children born outside of the Citizenship Act also amended section
hospital records of birth as primary U.S. They recommended that CMS 322 of that Act (8 U.S.C. 1433). Section
evidence of citizenship and identity for recognize the automatic citizenship of 322 is, however, a naturalization
newborns. any child affected by the Child provision that requires a grant of
Response: A record of payment is not Citizenship Act of 2000. citizenship by DHS. Determination of
Response: All individuals claiming citizenship of a section 322 claimant
sufficient to document citizenship. We
U.S. citizenship or who have had a should be made in the manner provided
reviewed several hospital claims and
declaration made on their behalf, by this rulemaking for other naturalized
determined that they do not contain
including children, must provide citizens.
sufficient information to establish
evidence of citizenship and identity. As We have modified our regulations at
citizenship. For example, the previously stated, if the adoption is for §§ 435.407(b)(12) and 436.407(b)(12) to
information provided on a labor and a child eligible for Title IV–E Adoption codify this rule, as stated in the
delivery claim is particular to the Assistance, the child would be exempt preamble to the July 12, 2006 interim
mother and does not contain any from these requirements as authorized final rule.
information on the infant. For instance, under section 405(c)(1)(A) of Division B
such claims do not indicate whether or Affidavit Process
of the TRCHA. Otherwise, and as stated
not the labor resulted in a live birth. in the preamble to the July 12, 2006 Comment: Several commenters
However, as stated in § 435.407(c)(1) interim final rule, a child born outside requested that CMS clarify what it
and § 436.407(c)(1) of this final rule, an the U.S. and adopted by a U.S. citizen means when it uses the term ‘‘affidavit.’’
individual may use an extract of a may establish citizenship under section According to the commenters, the term
hospital record of birth to verify an 320 of the Immigration and Nationality ‘‘affidavit’’ may have different
infant’s citizenship if higher tier Act (8 U.S.C. 1431), as amended by the definitions under State law. The
documentation is unavailable. This Child Citizenship Act of 2000 (see 71 FR commenters were particularly
document must be on hospital 39218). This also applies to certain concerned with whether the affidavit
letterhead and created near the time of children born abroad whose parents are must be notarized. They stated that CMS
birth. We recommend that State naturalized citizens. The State must did not intend to require applicants to
eligibility workers work with the obtain documentary evidence that notarize the affidavit, as this could pose
parents or caretakers of infant children verifies that at any time on or after problems for people in more remote
to ensure that they are aware of these February 27, 2001, the following areas.
requirements and request the conditions have been met: (1) The child Response: We understand from the
appropriate records from the hospital. has at least one U.S. citizen parent (by commenters that under many State laws
Comment: One commenter requested either birth or naturalization); (2) the an affidavit must be notarized. We note
that CMS clarify the regulations text at child is under the age of 18; (3) the child that for purposes of meeting the
§ 435.407(b)(8), which states that, when is residing in the United States in the requirements of section 6036 of the
an adoption has not been finalized, a legal and physical custody of the DRA, an ‘‘affidavit’’ is a signed written
State may accept a certification of the American citizen parent; (4) the child declaration made under penalty of
child’s U.S. place of birth from an was admitted to the United States for perjury. This document does not need to
adoption agency as long as the adoption lawful permanent residence; and (5) if be notarized. We have modified the
agency can certify that the source of the adopted, the child satisfies the regulations text at § 435.407(f) and
birth information was an original birth requirements of section 101(b)(1) of the § 436.407(f) to clarify that these identity
certificate. The commenter Immigration and Nationality Act (8 affidavits are not required to be
recommended that CMS permit States to U.S.C. 1101(b)(1)) pertaining to notarized.
accept any information provided by the international adoptions (i.e., the child Comment: Several commenters
adoption agency pursuant to the must have been admitted as an IR–3 if disagreed with CMS’ decision to require
regulations at § 435.407(b)(1), (d)(2)(iv), adopted outside the United States, or that the individuals submitting
or (h)(1) (now (i)(1)) of the July 12, 2006 been admitted as an IR–4 with a final supporting affidavits on behalf of a
interim final rule, including a match adoption having taken place in the recipient or applicant be citizens and
with a State vital statistics agency. United States). verify their own citizenship. The
commenters do not agree that it is In addition, we note that there are citizenship based on one of the other
necessary for an individual to be a numerous documents available to an methods, that is a strong indication that
citizen to know the circumstances of individual to verify citizenship status. person is not a citizen.
another individual’s citizenship. They Most applicants should not have to The commenter recommended that if
stated that this requirement does not resort to an affidavit. CMS is to retain the affidavit provision,
ensure greater authenticity of the Comment: One commenter requested it be modified. The commenter
applicant’s or recipient’s claim but only that CMS permit States to accept recommended that CMS explicitly state
makes the process more burdensome. affidavits to document both citizenship in the regulations that an affidavit may
One commenter requested that CMS and identity. only be used if higher-tier
clarify whether this policy applies to Response: As we previously stated, documentation does not exist, not that
parents or guardians filing affidavits on the statute requires that when an it cannot be obtained. The commenter
behalf of a child. One commenter individual does not use a first tier also recommended that a second
further requested that CMS exempt document to establish both citizenship affidavit explaining why the
supporting affiants from verifying their and identity, the individual must documentary evidence does not exist
own citizenship for purposes of the provide two distinct documents to should be required, not requested. The
affidavit process if they are exempt from verify citizenship and identity. We have commenter stated that the second
verifying citizenship for purposes of only allowed identity affidavits in the affidavit will help the State Medicaid
Medicaid (e.g. individuals in receipt of rare circumstances where we believe Offices keep track of why applicants are
SSI or SSDI). there is a reasonable possibility that the relying on an affidavit and possibly help
Response: We do not believe individual will not be able to obtain them verify the applicant’s citizenship.
accepting supporting affidavits from a other documents proving identity. One commenter strongly opposed the
non-citizen individual is appropriate. Populations eligible to use identity use of affidavits as proof of citizenship.
The intent of the law is for citizens to affidavits are children under the age of The commenter stated his opinion that
document their citizenship status; 16 (18 in limited circumstances) and affidavits blur the lines between clear
therefore, we believe it is counter- disabled individuals living in verification of citizenship and an honor
intuitive and does not accord with the residential care facilities. system. The commenter requested that if
overall purpose of the law to permit Comment: Several commenters CMS is to maintain use of affidavits,
non-citizens to establish another recommended that CMS change the CMS should clarify what constitutes
individual’s citizenship, including the regulations to permit naturalized ‘‘personal knowledge’’ and ‘‘rarest
non-citizen parents of a citizen child. citizens to submit signed affidavits circumstances.’’
Therefore, the policy continues to be accompanied by copies of any Response: We do not agree that we
that States may only accept supporting supportive documents and/or should delete the affidavit process. We
affidavits from a citizen who has information, such as the date of fully agree that the Congress intended
personal knowledge of the events naturalization, alien registration that we no longer rely on self-
determining another individual’s number, or information on a parent’s declaration alone as sufficient evidence
citizenship. naturalization. The commenter noted of citizenship. However, we do not
Comment: Several commenters stated that all naturalization cases can be agree that our affidavit process is the
that the affidavit process was overly verified by DHS. same as the process of self-declaration.
burdensome. The commenters stated Response: We have considered the The conditions under which a person
that affidavits should be accepted when commenters’ request and agree that it is may utilize the affidavit process are
appropriate, and not just in the rarest of appropriate to permit naturalized strictly limited to rare instances when
circumstances. In addition, the citizens to submit an affidavit to verify higher level documentation is not
commenters stated that it is unrealistic citizenship. While we believe that available, and affiants declare their
to expect that two individuals, electronic verification with the SAVE status under penalty of perjury.
including one non-relative, will be able Program will eliminate the need for We also disagree with the commenter
to provide information on the facts many naturalized citizens to utilize the who stated that we should require States
establishing citizenship. Another affidavit process, we believe that such to obtain from a second affiant
commenter requested that CMS not individuals should have a recourse information on why citizenship
require a third affidavit from a second available to them when their documentation is not available to an
witness. The commenter argued that the information cannot be located in the individual. If this information is
affidavits from the other two individuals SAVE database. Such affidavits should available, as stated in the regulations at
already establish the information on the of course be considered carefully for § 435.407(d)(5)(iv) and
absence of other documentary evidence their probative value in light of the fact § 436.407(d)(5)(iv), it should be
and that further evidence is that they are offered as proof that the contained in the affidavit. However, it is
unnecessary. U.S. Government has conferred a status possible for States to determine whether
Response: The process established for (and that it is a continuing status, i.e., the individual has provided sufficient
affidavits is necessary to protect the that the person has not been evidence of citizenship without
integrity of the Medicaid program. We denaturalized) absent any other information on why other documents
believe that requiring two affidavits is a evidence of that grant of status. may not be available.
safeguard that ensures consistency in Comment: One commenter requested For purposes of the affidavit process,
the accounts and prevents against fraud. that CMS remove from the regulations an individual has ‘‘personal knowledge’’
We believe that it is less likely that an the use of affidavits. The commenter of circumstances if he or she has
applicant or recipient who can obtain stated that the intent of the Congress knowledge about the event that
two corroborating affidavits by other was to move away from self-attestation established a person’s citizenship or has
individuals to support his own affidavit of citizenship and that CMS is not personally seen a document establishing
will be engaged in fraud. It is important meeting that intent by allowing an citizenship—such as a passport that
that at least one of the affidavits be from individual to prove citizenship through burned in a fire. The individual should
a non-relative to diminish the a written affidavit. The commenter also be able to share details such as when
possibility of conflict of interest. stated that if an individual cannot prove and where the event occurred, who was
involved and whether there were any photograph, or a driver’s license that documents for individuals of any age;
special circumstances surrounding the contains a photograph or other facility medical records for any
event. identifying information listed in the institutionalized individuals who are
For this same purpose, we consider regulations at § 435.407(e)(1) and not receiving SSI or Medicare; current
‘‘rare circumstances’’ to be instances § 436.407(e)(1). However, we employer ID cards; ID cards with photos
when none of the acceptable documents understand from the commenters that issued by a private agency providing
are available to the individual. this is not universally true. Therefore, in social services (for example, Salvation
Comment: One commenter requested areas where both a school ID card with Army); government-issued papers not
that CMS clarify the degree of a photograph that meets the criteria at related to public assistance (e.g. tax
relationship that is meant by ‘‘related’’ § 435.407(e)(1)(ii) or § 436.407(e)(1)(ii) returns); bank statements; utility bills;
with respect to the affidavit process. or a driver’s license that meets the IDs or documents from correctional
The commenter requested that CMS criteria at § 435.407(e)(1)(i) or institutions; military discharge papers;
clarify whether two people in a § 436.407(e)(1)(i) are not available to an certified copies of marriage certificates
relationship by marriage are considered individual before the age of 18, States or judgments of divorce; and checks
‘‘related.’’ will be permitted to accept affidavits issued by the Department of Veterans’
Response: States are in the best establishing the identity of children up Affairs.
position to determine degrees of to age 18. Response: We have expanded the use
relationships that fall into the term We have revised the regulations text of additional identity documents to
‘‘related.’’ However, we would expect at § 435.407(f) to include school records include a combination of three or more
States to consider spouses to be related. such as report cards. If the State accepts of the following official documents:
Comment: One commenter requested such records, it must verify them with Employer identification cards, high
that CMS delete from § 435.407(d)(5)(v) the issuing school. school and college diplomas from
the parenthetical reference to ‘‘guardian Comment: One commenter requested accredited institutions (including
or representative’’ and allow for this that the regulations be revised to permit general education and high school
affidavit to be signed by ‘‘the applicant States to accept affidavits to establish equivalency diplomas), marriage
or recipient or other knowledgeable identity for all children under the age of certificates, divorce decrees, and
individual.’’ 18. In addition, the commenter property deeds/titles. A combination of
Response: We have considered the requested that CMS permit caretaker three or more of these documents must
commenter’s request; however, it is relatives to submit affidavits on behalf corroborate one another and must not
important that the individual submitting of children. conflict, and may only be used to verify
an affidavit of citizenship on behalf of In contrast, one commenter stated that identity if the individual used
an incapacitated person be the guardian CMS inappropriately approved the use secondary or third level evidence of
or representative of that individual. It is of affidavits for children under the age citizenship and the document was not
sufficiently reliable that another person of 16 to establish identity. The used to verify citizenship. A State may
attest to the circumstances of the commenter noted that use of affidavits permit an individual to submit such
individual’s citizenship status when a for these purposes violate the DRA, the documents only when it has determined
guardian or representative has been INA, and the Attorney General’s that no other evidence of identity is
legally appointed to care for the regulations. The commenter requested available to the individual prior to
individual’s affairs. that CMS revise the regulations to accepting these documents. The
Identity Documentation eliminate this use of affidavits. documents should be originals or
Response: As we stated in the certified copies. This is similar to SSA
Comment: Several commenters noted previous comment, we are revising the policy in that SSA may accept an
that evidence of identity will be very regulations to permit States to accept employer identification card or marriage
difficult for certain populations to affidavits establishing the identity of document as secondary level evidence
obtain. In particular, the commenters children up to age 18 in areas where of identity along with additional
expressed concern about the ability to school ID cards and driver’s licenses supporting documentary evidence for
obtain identification for children. One establishing identity in accordance with purposes of issuing an SSN (see POMS
commenter recommended that CMS our regulations are not available to an RM 00203.200 Evidence of Identity for
revise the regulations to permit States to individual before the age of 18. an SSN Card). We have added
accept school records, and not just We have reconsidered whether regulations text at § 435.407(e)(3) and
photo ID, as acceptable identification for identity affidavits for children must be § 436.407(e)(3) to reflect this change.
children under the age of 16, as many signed by a parent or legal guardian and Comment: Several commenters stated
schools do not issue photo ID. Several agree with the commenter who that the July 12, 2006 interim final rule
commenters recommended that CMS requested that CMS permit caretaker failed to include several identity
permit States to accept photos contained relatives to sign identity affidavits on a documents found in the Immigration
in yearbooks for purposes of child’s behalf. We have revised the and Nationality Act. The commenters
identification. Several commenters regulations at § 435.407(f) and noted that section 1903(x)(3)(D)(i) of the
requested that CMS revise the § 436.407(f) to reflect this change. Act states that ‘‘any identity document
regulations to exempt children under In response to the commenter who described in section 274A(b)(1)(D) of the
the age of 18 from submitting photo stated that the use of identity affidavits Immigration and Nationality Act’’ is
identification. violate the DRA, we note that section acceptable proof of identity. The
Response: We understand the 1903(x)(3)(D)(ii) permits the Secretary to commenters stated that under the
commenters’ concerns regarding approve additional documents as regulations at 8 CFR 274a2(b)(1)(v)(B),
identity documentation for children. For evidence of identity. which implement section 274A(b)(1)(D)
this reason, we permitted identity Comment: Several commenters of the Immigration and Nationality Act,
affidavits to be submitted on behalf of requested that CMS accept many voter registration cards and Canadian
children under the age of 16. In most additional documents as proof of driver’s licenses are acceptable proof of
locations, children 16 and above have identity. Among these, commenters identity for anyone 16 years of age or
access to either a school ID card with a requested that CMS accept court-issued older. The commenters therefore
conclude that the Congress has deemed individual made by a director or Comment: One commenter requested
these documents as reliable forms of administrator of a residential care that CMS clarify whether identification
identity. The commenter further notes facility where the individual resides. cards issued by the Federal, State or
that section 1903(x)(3)(D)(ii) of the Act However, the State should first pursue local government must have the same
authorizes the Secretary to expand the all other means of verifying identity information as is actually included on
list of acceptable evidence of identity, prior to accepting such an affidavit. The some unspecified drivers’ licenses, or
rather than restrict the list established affidavit is not required to be notarized. whether they must simply have the
by the Congress. We have modified the regulations at same information as is required by the
Response: We do not agree that voter § 435.407(g) and § 436.407(g) to July 12, 2006 interim final rule for
registration cards and Canadian driver’s incorporate this policy. drivers’ licenses as documentation of
licenses are acceptable evidence of Comment: One commenter requested identity. The commenter recommended
identity for the purpose of Medicaid that States be permitted to accept an that CMS accept the latter. In addition,
eligibility. The DRA required CMS to identity affidavit for adults in certain the commenter requested that CMS
accept as evidence of identity any limited circumstances. clarify whether a State is to compare all
document described in section Response: As stated above, we have government-issued identification cards
274A(b)(1)(D) of the INA. Section permitted the use of identity affidavits to its own drivers’ licenses or should it
274A(b)(1)(D)(i) of the INA says that a for disabled adults in residential care compare these identification cards to
document is a ‘‘driver’s license or facilities. the drivers’ licenses in the State in
similar document issued by a State if it Comment: One commenter requested which the card was issued. Similarly,
contains a photograph of the individual that CMS clarify which Native the commenter requested that CMS
or other such personal identifying American tribal documents will satisfy identify the drivers’ licenses to which
information relating to the individual.’’ the identity requirement and what kind Federal identification cards are to be
We do not believe either voter of information the document must compared.
registration cards or Canadian driver’s include. Response: Identification cards issued
licenses meet this requirement. Voter Response: Documents establishing by the Federal, State, or local
registration cards do not contain identity must include a photograph or government must contain a photograph
photographs or other personally or personally identifiable information
other personally identifying information
identifying information. Canadian such as height, weight, age, and sex.
such as height, weight, hair color, eye
driver’s licenses are not issued by a States may determine whether or not a
color, sex, or race. We have revised the
State. particular identification card meets their
We recognize that regulations language at § 435.407(e)(1)(vi) to reflect
standard for establishing identity.
implementing this requirement under this.
Generally, drivers’ licenses contain at
the Immigration and Nationality Act Comment: One commenter requested
least a photograph or, if not, detailed
long have included a much wider that CMS clarify the list of identity
information on the person’s physical
variety of documents than the statute documents. The commenter stated that appearance. We intended the reference
would appear to permit, and that the list in the regulations text at to comparing identification cards to
Congress undoubtedly was aware of this § 435.407(e)(8) and § 436.407(e)(8) drivers’ licenses to mean that a State
implementation when cross-referencing appears to be duplicative of the would consider whether the information
the provision, and have taken that documents described in § 435.407(e)(1)– provided on the identity card was
consideration into account in listing all (7) and § 436.407(e)(1)–(7) and its comparable to what is provided on
the regulatory documents but these two. presence is therefore confusing. drivers’ licenses generally.
However, the section 1903 reference is Response: We inadvertently repeated
the list of documents from the INA Requests for Assistance
to the statute and does not require us to
designate documents with no personal twice. For this reason, we have removed Comment: Several commenters
identifying information or foreign- the regulations text at § 435.407(e)(8). In requested that CMS require States to
issued documents as evidence of addition, we have removed extend assistance to indigent
identity to establish U.S. citizenship. § 435.407(e)(9), which was a duplicate individuals who cannot afford to pay for
Comment: One commenter requested of the new § 435.407(e)(1)(vi). The obtaining the required documents. One
that CMS clarify whether identity regulations text at § 435.407(e)(10) in commenter requested that States be
documents may be used even if they the interim final regulations is now at required to pay the cost of obtaining
recently expired. § 435.407(e)(2). original and certified copies of
Response: States may accept identity Comment: One commenter stated that citizenship documents. One commenter
documents that have recently expired as each of the identity and citizenship requested that the Federal government
long as there is no reason to believe that documents presented by CMS is reimburse States for 100 percent of any
the document does not match the vulnerable to fraud at the enrollment, costs the State incurs while attempting
individual. issuance, and usage phases. Therefore, to secure documents for recipients or
Comment: One commenter requested the commenter recommended that applicants. One commenter requested
that CMS extend the permissible use of information-based identity that CMS require States to waive fees for
affidavits to establish the identity of authentication be included as a individuals seeking documents in the
disabled individuals. Several requirement to bolster the identity State’s control to prove their identity
commenters requested that CMS permit authentication process. and citizenship for Medicaid purposes.
States to accept affidavits from Response: We appreciate the Response: As we stated in the interim
providers of long term care or commenter’s technical expertise and final rule with comment period, FFP for
rehabilitation service facilities to will keep this in mind as we approve administrative expenditures is available
demonstrate the identity of individuals databases and processes for electronic at the current match rate to assist States
in their care. matching. We note that States are with these costs.
Response: We agree with the required to protect against fraud under Comment: Several commenters noted
commenters. A State may accept an the regulations at 42 CFR 431 Subpart that the phrase ‘‘incapacity of mind’’ is
identity affidavit on behalf of a disabled P Quality Control. vague and undefined. They suggested
that CMS modify the change to the cannot do so within the reasonable to do so because the documents are not
regulations to require States to assist opportunity period (see 71 FR 39216). available.
individuals who ‘‘due to a physical or Comment: One commenter requested
Further Exemptions
mental condition’’ are unable to comply that CMS modify the reasonable
with the requirements. One commenter opportunity definition to include an Comment: Many commenters
requested that CMS replace the term affirmative obligation on States to acknowledged their support of CMS’
with a more specific definition of who provide assistance and guidance to any change to the regulations to exempt
is being targeted. One commenter recipient or applicant actively trying to recipients of Medicare and SSI from the
suggested that we replace the term with procure documentation. citizenship documentation
‘‘individuals with mental or physical Response: The statute has provided requirements. Several commenters
impairments.’’ that many of the vulnerable individuals recommended that CMS modify the
Response: We accept the comment are exempt from these requirements. change to exempt individuals who are
and have revised the regulations text at Under the regulations at § 435.407(h) not currently in receipt of both
§ 435.407(h) and § 436.407(h) (formerly (formerly § 435.407(g)), we have Medicare and SSI but had been in the
§ 435.407(g) and § 436.407(g)) to reflect required States to assist special past. The commenters also requested
this change. populations. In addition, as stated that if CMS exempts these individuals,
Comment: Several commenters noted above, we clarified in the preamble to it should specify in the regulations how
that the new regulation text does not the interim final rule with comment far back the States may look for
specifically require States to assist period that States must assist any Medicare and SSI eligibility. One
homeless persons or individuals whose individual who is trying in good faith to commenter recommended that CMS
documentation may have been lost or obtain satisfactory documentation but exempt SSI applicants who were denied
destroyed due to a natural or man-made cannot do so within the reasonable for reasons other than citizenship. One
disaster to verify their citizenship. The opportunity period (see 71 FR 39216). commenter requested that CMS clarify
commenters suggested that CMS modify In any case, we have always expected whether only the citizenship
the regulations to explicitly require States to help individuals requiring documentation process is waived for
States to aid these groups. One assistance. Under the regulations at Medicare and SSI recipients or if the
commenter requested that CMS expand § 435.908 ‘‘Assistance with application’’ identity documentation process is
the list of reasons why a person may a State Medicaid Agency must allow an waived as well.
require assistance at the outset, making individual the choice of having Response: Section 1903(x)(2) of the
specific reference to both the Americans someone accompany, assist, and/or Act exempts only those individuals who
with Disabilities Act (ADA) and section represent him or her during the are currently entitled to or enrolled in
504 of the Rehabilitation Act and application or redetermination process. Medicare or in receipt of SSI. Further,
including specific people who are In addition, States are required under SSA does not make available to CMS the
limited English proficient (LEP). The the regulations at § 435.905 to provide bases for denial. Therefore, we would
commenters also requested that CMS written information on eligibility not be able to determine whether an
indicate in the final rule the steps States requirements. We expect States to individual was terminated or denied
must take to assist populations with incorporate into written information based on immigration status. Both the
special needs. One commenter which documents are acceptable to identity and the citizenship
recommended that these individuals be verify citizenship. documentation requirements do not
designated as a State representative who Comment: One commenter stated that apply in the case of exempted
will have the primary responsibility of the policy set forth in the July 12, 2006 individuals.
obtaining the required documentation. interim final rule violates the Federal Comment: Many of the commenters
Response: All of the protections Medicaid statute by treating applicants suggested that CMS modify the
offered under the Civil Rights Act, the and recipients differently. The regulations to exempt additional groups
Americans with Disabilities Act and the commenter expressed particular from the citizenship verification
Rehabilitation Act apply. As we stated concern with respect to terminating the requirements, including groups of
in the interim final rule with comment reasonable opportunity period for individuals for whom the commenters
period, States must assist individuals applicants at 45 or 90 days while believe SSA has already verified
who are trying in good faith to obtain allowing recipients an indefinite citizenship status.
satisfactory documentation but cannot amount of time to produce the Response: The TRHCA amended
do so within the reasonable opportunity documents. section 1903(x)(2) to exempt individuals
period (see 71 FR 39216). Response: We have not changed the receiving disability insurance benefits
Comment: Several commenters long-standing reasonable opportunity under section 223 of the Act or monthly
requested that CMS permit States to periods afforded applicants and benefits under section 202 of the Act,
institute a Hardship Provision to recipients during application and based on such individual’s disability (as
account for personal and natural redetermination. For this reason, we defined in section 223(d) of the Act).
disasters. The commenters stated that stated in the preamble to the interim The State may also confirm such receipt
often these individuals are in critical final rule with comment period that the with SSA through established data
need of medical care, but due to their reasonable opportunity period should matches. As stated earlier, we do not
circumstances are unable to provide the be consistent with the State’s have the authority to exempt groups that
necessary documentation. The administrative requirements such that were not exempted by the statute unless
commenters stated that these the State does not exceed the time limits they meet the statutory requirements in
individuals should be afforded benefits established in Federal regulations for section 1903(x)(2)(D) of the Act.
upon application, if otherwise timely determination of eligibility in Comment: One commenter requested
Medicaid-eligible. § 435.911. The regulations permit that we exempt all SSI recipients and
Response: States must assist exceptions from the time limits when an not just those in the section 1634 States
individuals who are trying in good faith applicant or recipient in good faith tries where SSI recipients are automatically
to obtain satisfactory documentation but to present documentation but is unable eligible for Medicaid.
Response: As previously stated, the recipients of foster care maintenance or Comment: One commenter
TRHCA amended section 1903(x) of the adoption assistance payments under recommended that children, regardless
Act to exempt all individuals in receipt Title IV–E of the Act. For purposes of of documentation of citizenship, be
of SSI. this provision, foster care includes any considered eligible for emergency
Comment: Many commenters child assisted under Title IV–B in the services under the same circumstances
requested that CMS exempt individuals placement and care responsibility of a that aliens may receive these services.
currently covered or otherwise eligible State or Tribe that is in an out-of-home One commenter recommended that
for services under a family planning placement, regardless of licensing or children under the age of 5 be
waiver. The commenters noted that payment status of the provider. presumptively considered citizens and
these individuals should be exempt Comment: One commenter requested be covered under Medicaid for 6 months
from the documentation requirements that CMS exempt abandoned babies while the necessary documentation is
due to the timely nature of their need from the requirements. The commenter being gathered.
for services. stated that because parents are not Response: As previously stated, we do
Response: We believe it is consistent required to provide personal not have authority under the law to
with the intent of the law that information, little is known about these make citizens eligible for emergency
individuals receiving medical assistance infants. services authorized for aliens only
through a State Medicaid program Response: To the extent these under section 1903(v)(3) of the Act, as
declare citizenship or immigration children are in foster care, they would well as PRWORA. In addition, we
status and provide documentation of be exempt from these requirements believe that providing medical
that status including individuals based on the TRHCA’s exemption of assistance to individuals prior to
receiving medical assistance through an children in receipt of Title IV–B services collecting citizenship documentation
1115 demonstration. Such individuals or IV–E assistance. However, we do not requirements would violate the intent of
must apply for coverage and be have the authority to exempt groups that section 1903(x), which requires States to
determined to meet all other Medicaid were not exempted by the statue unless have such documentation as a condition
requirements, such as providing a valid of receiving FFP.
they meet the statutory requirements in
social security number. Comment: One commenter requested
section 1903(x)(2)(D) of the Act.
We note that PRWORA requires that that CMS include the Medicare/SSI
any individual receiving Federal public Comment: One commenter requested
that CMS explain why some exemption in § 436.406 as well as
benefits be a citizen or qualified alien, § 436.1004 to clearly establish that these
with limited exceptions. We note that requirements only apply to children
under 16 years old when a child is not populations are excluded from the
CMS would not be able to waive this documentation requirements.
requirement for purposes of eligibility normally considered an adult until age
Response: We agree with the
for an 1115 demonstration program or 18.
commenter and have modified the
family planning waiver. Response: In general, it is appropriate
regulations text at 42 CFR part 435 or 42
Comment: Several commenters to require children over the age of 16 to
CFR part 436 to include these
requested that CMS exempt foster present identification from the list. In
exemptions.
children from the citizenship general, individuals over the age of 16 Comment: Several commenters
documentation requirements. will be able to obtain a driver’s license recommended that CMS consider
Response: Section 405(c)(1)(A) of or school ID. However, as we previously several additional populations to be
Division B of the TRCHA amended stated, in areas where identity presumptively eligible, including their
section 1903(x) of the Act to exempt documents are not available to status as citizens, because they will
children in foster care who are assisted individuals before the age of 18, a likely not have the capabilities to obtain
under Title IV–B of the Act and children parent or guardian may provide an the proper identification documents.
who are recipients of foster care identity affidavit on a child up to age Response: Criteria for presumptively
maintenance or adoption assistance 18. We have changed the regulations eligible is under sections 1920, 1920A
payments under Title IV–E of the Act. text at § 435.407(f) to reflect this change. and 1920B of the Act. Addressing
We note however, that section Comment: One commenter modifications to these statutory
405(c)(1)(B) of Division B of the TRCHA recommended that CMS allow provisions is outside the scope of this
requires the State title IV–E agency to individuals and families who are rule. We have previously addressed how
have procedures to verify the victims of natural disasters to be given States may help individuals requiring
citizenship or immigration status of any 5 months of coverage under Medicaid assistance.
child in foster care under the beginning on the date of the natural
responsibility of the State under titles disaster’s occurrence without regard to Outreach
IV–B or IV–E. the citizenship documentation Comment: Several commenters
Comment: Several commenters requirements. The commenter also requested that CMS work with the
recommended that CMS revise the recommended that additional coverage States to ensure that appropriate
regulations to exempt all foster children should be provided for pregnant women outreach efforts are made. The
upon initial placement, at which time affected by natural disasters through 60 commenters noted that there exists
Title IV–E eligibility may not yet have days postpartum. considerable lack of awareness and
been determined. Several commenters Response: How to treat Medicaid confusion of what is required by section
requested that these exceptions also be eligibility in the event of a natural 6036 of the DRA on the part of
made for children in informal disaster is out of the scope of this eligibility workers, and applicants for
placements and State and tribal-run regulation. Under reasonable and recipients of Medicaid. One
foster care systems. opportunity, States must aid individuals commenter requested that CMS outline
Response: As previously stated, in obtaining documentation if the the extent of CMS’ outreach program so
section 405(c)(1)(A) of Division B of the individuals are making a good faith that States can avoid any duplication of
TRCHA exempted children in foster effort to procure the documents but are effort.
care who are assisted under Title IV–B unable to do so within the reasonable Response: We have been working
of the Act and children who are opportunity period. with States on a comprehensive
outreach plan. Outreach to date who are unable to produce the required Comment: One commenter requested
includes meetings and open door documentation to establish citizenship that CMS include in the final rule
forums with over 150 organizations should seek coverage of services from an specific standards for assuring agency
comprised of States, advocacy groups, alternate source. and provider compliance with all
and technical advisory groups. We have Response: We appreciate the applicable civil rights laws including
also distributed the State Medicaid commenters’ expressions of support for section 504 of the Rehabilitation Act of
Director’s Letter on the citizenship the rule. However, we can only 1973, the Americans with Disabilities
documentation requirement to 100 comment on the Medicaid program. Act, and Title VI of the 1964 Civil
advocacy groups. Working in State and local agencies are best suited Rights Acts.
conjunction with these organizations, to address what additional sources of Response: Under the regulations at
we have reached out to over 49,000 care in a community are available to an § 430.2 and § 435.901, all aspects of the
individuals. individual. Medicaid program must comply with
We continue to provide education and Comment: Several commenters Federal antidiscrimination laws.
outreach through speaking at inquired about the financial impact on Comment: One commenter stated that
conferences, conducting conference the Medicaid program of non-eligible verifying both citizenship and identity
calls, and providing technical assistance non-citizen individuals receiving was redundant.
to a number of our closest partners in coverage. The commenters stated that Response: Federal law requires that
reaching out to States and information aliens without established immigration State Medicaid Agencies verify and
intermediaries. 250 organizations status are very careful to not make document both citizenship and identity
participated in two Low-Income Open themselves known to government if the individual does not use a first tier
Door Forums including Indian Health officials for fear of deportation. The document.
Service, American Association of People commenters cited the Office of the Comment: Several commenters
with Disabilities, American College of Inspector General’s July 2005 report requested that CMS reverse the
Physicians, National Council on Aging, ‘‘Self-Declaration of U.S. Citizenship for citizenship documentation
National Center for Children and Medicaid’’ as evidence that non-status requirements.
Poverty, Public Hospital Pharmacy aliens are not falsely claiming Response: CMS does not have the
Association, and National Senior citizenship for purposes of obtaining authority to reverse an act of the
Citizens Law Center. Medicaid. The commenters stated that Congress.
Finally, we have posted numerous unless CMS had evidence to suggest Comment: Several commenters stated
outreach and education materials in otherwise, the regulations were overly that because of the new regulations,
both English and Spanish to the CMS and unnecessarily strict and would citizen applicants are being required to
Web site as part of the campaign. We result in eligible individuals failing to provide more information than non-
encourage States, advocacy groups and seek coverage or being deemed citizen applicants. For instance, a non-
individuals to use these materials to ineligible for lack of documentation. citizen can provide a photocopy of his
reach out to other organizations and Response: We emphasize that section or her resident alien registration card
people with Medicaid to provide more 6036 of the DRA requires States to verify and other identification documents. In
information about the new an individual’s declaration of addition, a non-citizen applicant is
requirements. These documents include citizenship via documentation as a required to be covered by Medicaid
a brochure, PowerPoint presentation, condition of receiving FFP. These while locating the documents necessary
poster, Questions and Answers sheet regulations provide numerous to verify immigration status. Under
and a fact sheet. additional documents not specified in these new regulations, citizen
Comment: One commenter requested the law that provide greater flexibility to applicants are not covered by Medicaid
that CMS and the States clarify in their individuals in meeting these during the reasonable opportunity
outreach efforts that these new requirements. period.
requirements apply only to Medicaid, Comment: One commenter stated that Response: Citizen applicants and
not the Food Stamp Program. the July 1, 2006 implementation date is recipients are not required to provide
Response: The statute only applies to unreasonable, especially considering the more documentation than non-citizens.
Medicaid. In the interim final rule with regulations have yet to be finalized. One Like citizens, aliens must provide
comment period, we stated that these commenter requested that CMS delay documentation that they are in
determinations are not binding on other implementing section 6036 of the DRA satisfactory immigration status, which
Federal or State agencies for any other until States can set up adequate the State is then required to verify with
purpose (see 71 FR 39218). processes. One commenter requested the SAVE database. While individuals
Comment: Several commenters that CMS provide States with a grace in satisfactory immigration status may
requested that CMS provided Federal period to enact the new regulations, submit photocopies of the required
grant assistance to the States to offset including an opportunity for corrective document, this is permissible because
the cost of outreach. action by States, through January 1, States must verify all such documents
Response: FFP is available to States 2007. with the Department of Homeland
for administrative costs; the match for Response: We note that the statute Security through a verification with the
these costs is 50 percent. requires that State Medicaid Agencies SAVE Program. Therefore, States are not
obtain documentation of the citizenship expected to determine whether the
Other Comments and identity of applicants as of July 1, documents are valid. In contrast, States
Comment: Several commenters 2006, and for recipients at the time of are obligated to determine the validity
expressed their support of CMS’ change the first redetermination occurring on or of documents attesting to citizenship
to the regulations to meet the after July 1, 2006. The Secretary does and such documents are extremely
requirements of section 6036 of the not have the authority to modify this variable with no single issuer who could
DRA. One commenter noted that date. In addition, we note that the vast attest to their validity. Therefore, the
Medicaid is not the only source of majority of States had begun most efficient and effective method for
health care coverage in many implementing this provision on or documenting citizenship is to require
communities; he stated that individuals before July 1, 2006. that documents submitted be originals.
Current recipients will be covered not making a good faith effort to comply Comment: One commenter requested
during the reasonable opportunity with any part of the application process. that CMS indicate in the final rule how
period. Once an applicant is determined Comment: One commenter noted that it will monitor the extent to which
eligible, eligibility may start on the date States are not required to authenticate States are obtaining primary evidence.
of application, the first day in the month documents and should not be required Response: We will monitor
of application, or up to 3 months prior to do so. compliance with these regulations
to the month of application (under Response: Eligibility workers are following the standard reviews and
section 1902(a)(34) of the Act). Like trained to review and accept documents audits as described in the regulations at
aliens, citizens must be provided a and we expect that for purposes of 42 CFR Part 430.
reasonable opportunity period before determining eligibility, they would Comment: One commenter asked
the State Medicaid Agency can take accept only reliable documents. CMS to clarify that agency oversight
action on the individual’s eligibility. A State should evaluate every with respect to FFP is not intended to
Comment: One commenter noted that document presented as evidence of prevent eligible citizens from receiving
the new regulations will be citizenship and identity to determine Medicaid benefits. The commenter
exceptionally burdensome on the whether it meets the published criteria expressed concern that States will be
specific populations relying on for acceptance and whether the overly cautious with respect to
Medicaid for health care. The document appears to be genuine. A following the Federal guidelines and
commenter stated that the most affected State is not obligated to accept any risk not enrolling eligible individuals.
groups will be the transient, minorities, document submitted as evidence of Response: We are committed to
and those with mental illnesses. either citizenship or identity if that ensuring that all eligible individuals
document does not appear genuine. receive the Medicaid benefits to which
Response: The statute has exempted
Determining the authenticity of any they are entitled. In no way are these
many of the most vulnerable
document is a process of judgment the new regulations intended to prevent
populations, including those receiving
State agency must exercise. The State eligible citizens from receiving
Medicare and certain disabled
should consider, for example, whether Medicaid benefits. However, Federal
populations. In addition, States are
the information on the document is law requires that citizens provide
required under § 435.407(h) to assist documentation verifying their
individuals with incapacitating physical consistent with other information the
agency has on the individual, if the citizenship. States are encouraged to
and mental conditions. As previously assist individuals who have difficulty
stated, States must assist any individual document contains any erasures or
obvious signs of manipulation, if the obtaining or locating such
who cannot obtain the necessary documentation.
documentation within the reasonable issuing organization is a recognized
organization in the United States, is Comment: One commenter requested
opportunity period and is making a that CMS give States a higher Federal
good faith effort to do so. there any irregularity in the size, style,
printing, or use of capitalization, and Medicaid Assistance Percentage (FMAP)
Comment: One commenter expressed to cover the costs of implementing this
whether the date of registration is later
concern over CMS’ legal interpretation DRA provision.
than the date of the event recorded.
of the word ‘‘alien’’ in section 6036(x)(2) If the State agency determines a Response: CMS does not have the
as a congressional error. document is questionable, the State may authority to alter FMAP rates, which are
Response: As we discussed refuse to accept the document, or it set in statute.
previously, the TRCHA corrected this could contact the issuing agency to Comment: One commenter
error by replacing the word ‘‘alien’’ in determine whether the document is recommended that CMS give States the
1903(x)(2) with the phrase ‘‘individual indeed authentic. flexibility to designate qualified
declaring to be a citizen or national of This description of evaluation hospitals as agents of the State for
the United States.’’ The TRHCA made questions is only a sample of the purposes of collecting and certifying
such change effective as if it had been possible questions a State would need to citizenship documentation for purposes
included in the DRA. answer to be assured the document is of Medicaid applications. One
Comment: One commenter asked genuine and refers to the person named commenter requested that CMS strongly
CMS to clarify whether a State can on it. recommend that States enter into these
terminate or deny an individual during arrangements with hospitals and health
the reasonable opportunity period if the Financial Aspects and Compliance centers to assist in expediting the
person is deemed to not be making a Comment: One commenter requested citizenship verification process. One
good faith effort to comply with the that CMS explicitly identify which costs commenter requested that CMS confirm
requirements. They also asked whether incurred by a State or county agency that agencies collecting eligibility
they were permitted or required to assisting applicants and recipients applications on behalf of the State are
extend the period if an individual is procure citizenship documentation will permitted to copy documents and note
shown to be making a good faith effort. be considered allowable administrative on the copies that the original
They also asked CMS to state the proper costs for Federal Financial Participation documents were viewed.
course of action to take with a child (FFP). One commenter recommended Response: It would promote proper
whose parents or guardians are that Federal funding for the costs of and efficient administration of the
uncooperative. obtaining adequate documentation Medicaid program for hospitals to
Response: States must follow standard should be reimbursed to the State at 100 perform this step in the application
application and redetermination percent. process of collecting and photocopying
processes. States’ standard practices Response: Under the law, States are citizenship documentation. However,
with respect to the reasonable eligible for the standard 50 percent States already must have outstation
opportunity period have not changed. Federal match for administrative costs locations for the initial processing of
Therefore, as is currently permissible, a in connection with implementing the Medicaid application, under § 435.904.
State may deny an individual at any citizenship documentation provision, as These locations must include all
point in the application process if the defined under the regulations at disproportionate share hospitals (DSH)
State determines that the individual is § 435.1001. and Federally qualified health centers
(FQHC), or, at State option, other Homeland Security (DHS) regulations, Comment: One commenter requested
outstation locations which include at while Part 1274 represents Department that CMS clarify the following sentence
least some DSH hospitals and FQHCs. of Justice (DOJ) regulations. Duplicate from the Regulatory Impact Statement:
The initial processing of applications regulatory provisions were promulgated ‘‘* * * with respect to those States that
includes obtaining required effective March 1, 2003 by DOJ to elect to review documents through the
documentation, such as citizenship complement the existing Part 274A routine eligibility and redetermination
documentation. Outstationed provider which shifted to DHS jurisdiction, process, we recognize there will be
or contractor employees or volunteers because the authorities previously some increased burden on eligibility
could collect and photocopy the exercised on behalf of the Attorney workers.’’ The commenter requested
required certification, and would be General relating to section 274A of the that CMS clarify what alternatives States
required to certify that original INA by two DOJ components (the have to this election.
documentation was seen as with any Immigration and Naturalization Service Response: States may use electronic
other Medicaid eligibility worker. (INS) with respect to 274A enforcement records matching in place of requiring
and the Executive Office for that an individual submit paper
Technical documentation.
Immigration Review (EOIR) for
Comment: One commenter asked that adjudication of contested 274A cases) Comment: One commenter requested
CMS clarify the statement in the were as of that date exercised by DHS that CMS clarify whether the omission
preamble to the July 12, 2006 interim as the successor to INS with DOJ from the July 12, 2006 interim final
final rule which reads, ‘‘We are retaining its EOIR jurisdiction. DOJ regulations that certain documents must
removing § 435.408 and § 436.408 therefore deemed it appropriate to have been created 5 years before the
because the immigration status establish separate regulations for date of application for Medicaid was an
described as permanently residing in continuing EOIR purposes. We have oversight or a change to the policy.
the United States under color of law no utilized this citation to reflect only the Response: We reviewed the SMD and
longer has any effectiveness because of Department of Homeland Security the interim final rule and found one
the enactment of 1996 of the Personal instance where the policy as stated
regulations in § 435.407(e)(1) (formerly
Responsibility and Work Opportunity differed with respect to the criteria that
§ 435.407(e)(8)), as this is the most
Act which provides that the documents must have been created
appropriate citation given DHS
‘‘notwithstanding any other law’’ an 5 years before the date of application.
jurisdiction over designation of
alien who is not a qualified alien as We intended to require that institutional
acceptable documents for Form I–9
defined in 42 U.S.C. 1641 is not eligible admission papers from a nursing
purposes; as noted, though, the
for any Federal public benefit’’ (71 FR facility, skilled care facility or other
provisions are substantively identical.
39220). The commenter would like CMS institution have been created at least 5
Comment: One commenter requested
to clarify whether this statement regards years prior to the date of application for
that CMS clarify how a State may verify
the Immigration Reform and Control Act Medicaid. We are updating the
(IRCA) only or also Persons Residing identity documents while also not
regulations text at § 435.407(d)(3) and
Under Color of Law (PRUCOL) in requiring applicants to appear in
§ 436.407(d)(3)to reflect this.
general. person. Comment: One commenter requested
Response: The term ‘‘permanently Response: Ultimately, States are that CMS clarify whether or not an
residing in the U.S. under color of law’’ responsible for verifying an individual’s electronic indicator from a prior period
(PRUCOL) is not defined in the declaration of U.S. citizenship, can be used to verify citizenship if the
Immigration and Nationality Act. The including verifying the identity of the 3-year period of document retention has
changes made by the Personal individual. If a State does not feel expired and paper copies of
Responsibility and Work Opportunity confident it can verify a person’s documentation are no longer available.
Reconciliation Act of 1996 (PRWORA) identity without having the individual Response: We are interpreting the
define the classes of aliens eligible for present documentation in-person, it electronic indicator mentioned by the
Federal public benefits in section 431 of may require that the applicant or commenter to be an electronic file with
that act consistent with the definitions recipient do so. a checkbox indicating whether or not
in the Immigration and Nationality Act. Comment: One commenter requested acceptable evidence of citizenship and
Thus, the definition of qualified alien that CMS clarify whether or not identity had been viewed.
excludes any alien not defined in verifying citizenship is a one-time As we stated in the interim final rule
section 431. In addition, the conference activity. The commenter notes that CMS with comment period, records of
report accompanying PRWORA states has indicated that there may be a need citizenship and identity documents
on page 383 that: ‘‘Persons residing to reevaluate this information if a 3-year must be kept in the Medicaid file in
under color of law shall be considered gap in coverage occurs. either paper or electronic format (e.g., a
to be aliens unlawfully present in the Response: Generally, once an scan of a document). An electronic
United States * * *.’’ Therefore, we are individual has verified his or her marker from a prior period indicating
reflecting the changes made by citizenship for Medicaid purposes, he or that the citizenship verification process
PRWORA. she will not have to verify it again was completed will not meet this
Comment: One commenter noted that unless there is a 3-year gap in standard. However, a State may opt to
the citation to the Immigration enrollment and the State has keep records for a longer period of time
Regulations in § 435.407(e)(8) of the rule subsequently destroyed the prior if the State believes this better serves its
appears to be incorrect. The commenter records or if doubt is raised about the program needs.
stated that the citation should be 8 CFR authenticity of the previously submitted Comment: One commenter requested
1274a.2(b)(1)(v)(B). documents. If the records no longer that CMS clarify whether the omission
Response: The regulations text at 8 exist, the individual would be required from the July 12, 2006 interim final
CFR 1274a.2(b)(1)(v)(B) and 8 CFR to submit verifying documentation regulations of the clinic, doctor, or
274a.2(b)(1)(v)(B) is identical. The again. We note that a State may decide hospital record showing date of birth as
difference between them is that 8 CFR to retain records beyond the 3-year proof of identity for children that was
Part 274 contains Department of minimum requirement at its discretion. included in the Medicaid Fact Sheet
June 9, 2006 was an oversight or a including income, residency and asset not change the policy as stated in the
change in policy. requirements. interim final regulations.
Response: The absence of this (2) We have modified the regulations (10) We have approved the use of the
document from the regulations at concerning citizenship and alienage to Department of Homeland Security’s
§ 435.407(f) was an oversight. We have emphasize that individuals receiving Systematic Alien Verification for
revised the regulations text to include services through an 1115 demonstration Entitlements (SAVE) Program for
these documents. program, including a family planning purposes of verifying citizenship for
Comment: One commenter requested waiver, must declare if they are a U.S. naturalized citizens, subject to DHS
that the reference to Medicare in the citizen and provide the required authorization. We have also codified in
preamble of the July 12, 2006 interim documentary evidence of citizenship regulation the rule (already articulated
final rule (71 FR 39215) is confusing and identity. in the interim final rule with comment)
because it does not specify whether the (3) We have modified the regulations that a biological or adopted child born
exemption applies to an individual who to exempt individuals receiving SSDI outside the United States may establish
is entitled to or enrolled in Medicare benefits based on disability, children in citizenship using the process
Part A only or to individuals entitled to foster care who are assisted under Title established under section 320 of the
or enrolled in both Medicare Part A and IV–B of the Act, and children who are INA, as amended by the Child
Part B. recipients of foster care maintenance or Citizenship Act of 2000 (Pub. L. 106–
Response: The law states that this adoption assistance payments under 395, enacted on October 30, 2000).
Title IV–E of the Act as authorized by (11) We have expanded the list of
exemption applies to individuals
section 405(c)(1)(A) of Division B of the appropriate documents to verify
entitled to or enrolled in any part of
TRHCA. citizenship by including religious
Medicare. The individual need not be
(4) We have included in the records recorded in the U.S. within 3
enrolled in all parts of Medicare.
regulations the exemption of months of birth and early school records
Comment: One commenter noted that
individuals entitled to or enrolled in showing a U.S. place of birth as third
the July 12, 2006 interim final rule
Medicare or in receipt of SSI payments level evidence of citizenship. We have
contains two citation errors. The
as authorized by the DRA and clarified noted that entries in a family bible are
reference to 42 U.S.C. 1641 should be 8
by the TRHCA. not considered recorded religious
U.S.C. 1641 and the reference to 42 CFR
(5) We have made several technical records. This is consistent with the
Part 74 should be part 92.
corrections to the regulations text at Social Security Administration’s policy.
Response: We have corrected the (12) We have revised the regulations
citation to 8 U.S.C. 1641 and the citation § 435.406(a)(2) and (b) and
to clarify that institutional admission
to 45 CFR part 74. § 436.406(a)(2) and (b) to clarify that
papers from a nursing facility, skilled
non-qualified aliens and aliens subject
IV. Provisions of the Final Regulations care facility or other institution that
to the 5-year bar may only be eligible for
indicates a U.S. place of birth must have
We are maintaining the majority of coverage of emergency services.
been created at least 5 years before the
the provisions in the July 12, 2006 (6) We have modified the regulations
initial application date to be accepted as
interim final rule with several text at § 435.406(b), (c) and (d) and
fourth level evidence of citizenship.
exceptions. The provisions of this final § 436.406(b), (c) and (d) to clarify that a
This is consistent with the Social
rule that differ from the interim final State may accept lower tier evidence of
Security Administration’s policy.
rule with comment period are as citizenship when a higher tier document (13) We have accepted the Roll of
follows: is unavailable. Alaska Natives maintained by the
(1) We are modifying the regulations (7) We have modified the regulations Bureau of Indian Affairs as fourth level
to provide Medicaid eligibility to a child text at § 435.407 and § 436.407 to clarify evidence of citizenship.
born to a woman who has applied for, that for purposes of this regulation, the (14) We have modified the regulations
has been determined eligible and is term ‘‘citizenship’’ includes status as a text at § 435.407(d) and § 436.407(d) to
receiving Medicaid on the date of the noncitizen national of the United States allow naturalized citizens to utilize the
child’s birth so long as the woman as well as a U.S. citizen. affidavit process.
remains eligible and the child is (8) We have revised the language used (15) We have removed from the
member of the woman’s household. The to describe birth records to be consistent regulations text the duplicate list of
child is deemed to have applied and with the National Association for Public documents under § 435.407(e)(8) and
been found eligible for Medicaid on the Health Statistics and Information § 436.407(e)(8). This does not change
date of birth and remains eligible for up Standards (NAPHSIS). This entails the policy as stated in the interim final
to one year. This provision applies to all replacing the words ‘‘issued’’ with rule with comment period.
newborn children as long as the mother ‘‘recorded’’ and ‘‘amended’’ with (16) We are modifying the language in
is receiving Medicaid on the date of the ‘‘delayed.’’ This language reflects our the regulations describing what
child’s birth. A non-qualified alien or 5- original intent of accepting birth records information Certificates of Degree of
year bar qualified alien receiving that were recorded with vital statistics Indian Blood and other American
emergency Medicaid services as within 5 years of birth as secondary Indian/Alaska Native Tribal documents
provided under § 435.139 is considered evidence of citizenship and birth must have to be considered evidence of
to be Medicaid-eligible and receiving records that were recorded with vital identity. Specifically, we are clarifying
Medicaid for purposes of this provision. statistics after 5 years of birth (a delayed that the document must have a
Citizenship and identity documentation birth record) as fourth level evidence of photograph or other personally
for the child must be obtained at the citizenship. identifying information.
next redetermination of eligibility. As (9) We have corrected the regulations (17) We have modified the regulations
required by law and regulation, a text at § 435.407(b)(5) and to approve the use of three or more
woman may be eligible under § 435.139 § 436.407(b)(5) to account for a drafting corroborating documents such as high
only if she submits a full Medicaid error in the DRA that incorrectly school and college diplomas from
application showing she meets the references the form number for U.S. accredited institutions, marriage
requirements under § 435.406(b), citizen identification cards. This does certificates, property deeds/titles, and
employee ID cards to verify the identity information collection requirements maintain current records on each
of an individual. (ICRs): individual.
(18) We have clarified in the Comment: Many commenters
Citizenship and Alienage (§ 435.406) contended that the collection of
regulations text at § 435.407(f) and
§ 436.407(f) that school records may be Section 435.406 requires States to information requirements were either
accepted for purposes of establishing obtain a declaration signed under significantly understated or estimated
the identity of children. This does not penalty of perjury from every applicant only for instances where an individual
change the policy as stated in the for Medicaid that the applicant is a was already in possession of the
interim final rule with comment period. citizen or national of the United States required documents. The commenters
(19) We have modified the regulations or an alien in a satisfactory immigration also noted that in determining the
text at § 435.407(f) and § 436.407(f) such status, and require the individual to amount of time the person would spend
that clinic, doctor and hospital records provide acceptable documentary producing these documents, CMS must
may be accepted as evidence of identity evidence to verify the declaration. have expected that all individuals
for children. (§ 435.407 describes the types of would be mailing the documents to the
(20) We have expanded the list of acceptable documentary evidence of State. Many commenters expressed
acceptable identity documents at citizenship.) serious concern about sending original
§ 435.407(f) and § 436.407(f) to include An individual should ordinarily be versions of important documents
the use of identity affidavits for children required to submit evidence of through the mail. Therefore, the
up to 18 years of age in limited citizenship once unless the State commenters concluded that CMS failed
circumstances. We have stated in the receives evidence that evidence to consider the amount of time
regulations text that these identity previously relied upon may be associated with obtaining and
affidavits do not need to be notarized. incorrect. States must maintain copies personally presenting these documents
(21) We have modified the regulations of that evidence in the case file or to a State Medicaid Agency office,
text at § 435.407(f) and § 436.407(f) such database. which they state will be the more likely
We estimated it would take an scenario. The commenters stated that
that caretaker relatives may submit an
individual 10 minutes to acquire and this requirement will be onerous on
identity affidavit on a child’s behalf.
provide to the State acceptable both the part of the individual
(22) We have expanded the list of
documentary evidence and to verify the producing the documents and on the
acceptable identity documents to
declaration. States collecting and processing the
include the use of identity affidavits for We estimated it will take each State documents. The commenters noted that
disabled individuals in residential care 5 minutes to obtain acceptable it generally takes weeks to get a passport
facilities. This modification to the documentation, verify citizenship and or birth certificate and months to a year
policy can be found at the new maintain current records on each to get a Certificate of Citizenship or
§ 435.407(g) and § 436.407(g). individual. Certificate of Naturalization.
(23) We have revised the regulations Response: We based our estimate
text at § 435.1008 and § 436.1004 to Citizenship and Alienage (§ 436.406) upon the average time it would take an
identify the populations who are Sections 436.406 and 436.407 apply individual who had the documents in
exempt from the citizenship to Guam, Puerto Rico, and the Virgin his or her possession and brought those
documentation requirements. Islands and are the corresponding documents to the initial intake meeting
V. Collection of Information sections to the regulations at § 435.406 or opted to mail those documents into
Requirements and § 435.407. Section 436.406 requires the State Medicaid Agency office. We
Medicaid agencies to obtain a believe that in the vast majority of
Under the Paperwork Reduction Act declaration signed under penalty of instances, this will be the likely
of 1995, we are required to provide 30- perjury from every applicant for scenario. We also considered that the
day notice in the Federal Register and Medicaid that the applicant is a citizen people who would have the most
solicit public comment when a or national of the United States or an difficulty obtaining documents (e.g. the
collection of information requirement is alien in a satisfactory immigration disabled, elderly, and, since enactment
submitted to the Office of Management status, and require the individual to of TRHCA, children in foster care) are
and Budget (OMB) for review and provide acceptable documentary exempt from these requirements.
approval. In order to fairly evaluate evidence to verify the declaration. We recognize that it may take certain
whether an information collection (§ 436.407 describes the types of applicants and recipients additional
should be approved by OMB, section acceptable documentary evidence of time to obtain the necessary
3506(c)(2)(A) of the Paperwork citizenship.) documentation. We encourage States to
Reduction Act of 1995 requires that we An individual should ordinarily be work with all applicants and recipients
solicit comment on the following issues: required to submit evidence of to minimize this amount of time. We
• The need for the information citizenship once unless the State also encourage States to utilize
collection and its usefulness in carrying receives evidence that evidence electronic matching with State Vital
out the proper functions of our agency. previously relied upon may be Statistics agencies before requesting
• The accuracy of our estimate of the incorrect. States must maintain copies paper documentation. Through effective
information collection burden. of that evidence in the individual’s case outreach, States can minimize delays
• The quality, utility, and clarity of file. caused by confusion or lack of
the information to be collected. We estimated it would take an awareness of the requirements.
• Recommendations to minimize the individual 10 minutes to acquire and In addition, at this time, we do not
information collection burden on the provide to the State acceptable have evidence from States indicating we
affected public, including automated documentary evidence and to verify the should revise the estimates.
collection techniques. declaration. If you comment on these information
We solicited public comment on each We estimated it will take each State collection and recordkeeping
of these issues for the following sections 5 minutes to obtain acceptable requirements, please mail copies
of this document that contain documentation, verify citizenship and directly to the following:
Centers for Medicare & Medicaid VII. Regulatory Impact Analysis significant impact on the operations of
Services, Office of Strategic a substantial number of small rural
A. Overall Impact
Operations and Regulatory Affairs, hospitals. This analysis must conform to
Regulations Development Group, We examined the impact of this rule the provisions of section 604 of the
Attn: Melissa Musotto [CMS–2257–F], as required by Executive Order 12866 RFA. For purposes of section 1102(b) of
Room C4–26–05, 7500 Security (September 1993, Regulatory Planning the Act, we define a small rural hospital
Boulevard, Baltimore, MD 21244– and Review), the Regulatory Flexibility as a hospital that is located outside of
1850; and Act (RFA) (September 19, 1980, Pub. L. a Metropolitan Statistical Area and has
Office of Information and Regulatory 96–354), section 1102(b) of the Social fewer than 100 beds. We did not prepare
Affairs, Office of Management and Security Act, the Unfunded Mandates an analysis for section 1102(b) of the
Budget, Room 10235, New Executive Reform Act of 1995 (Pub. L. 104–4), and Act because we have determined, and
Office Building, Washington, DC Executive Order 13132. the Secretary certifies, that this rule will
Executive Order 12866 (as amended not have a significant impact on the
20503, Attn: Katherine Astrich, CMS
by Executive Order 13258, which operations of a substantial number of
Desk Officer, [CMS–2257–F],
merely reassigns responsibility of small rural hospitals.
katherine_astrich@omb.eop.gov. Fax
duties) directs agencies to assess all Section 202 of the Unfunded
(202) 395–6974.
costs and benefits of available regulatory Mandates Reform Act of 1995 also
VI. Waiver of the Delay in the Effective alternatives and, if regulation is requires that agencies assess anticipated
Date necessary, to select regulatory costs and benefits before issuing any
approaches that maximize net benefits rule whose mandates require spending
The Administrative Procedure Act as
(including potential economic, in any 1 year of $100 million in 1995
codified in 5 U.S.C. section 553(d) environmental, public health and safety
ordinarily requires a 30-day delay in the dollars, updated annually for inflation.
effects, distributive impacts, and That threshold level is currently
effective date for final rules. In addition, equity). A regulatory impact analysis
the Congressional Review Act, at 5 approximately $120 million. This rule
(RIA) must be prepared for major rules will have no consequential effect on
U.S.C. section 801(a), requires that with economically significant effects
certain major rules not take effect until State, local, or Tribal governments or on
($100 million or more in any 1 year). It the private sector.
60 days after publication. Both is assumed that Medicaid enrollees who Executive Order 13132 establishes
provisions permit the delay in effective are citizens will eventually provide certain requirements that an agency
date to be waived, however, if an agency proof of that fact, and that the savings must meet when it promulgates a
for good cause finds that the delay is will come from those who are truly in proposed rule (and subsequent final
impracticable, unnecessary, or contrary the country illegally. Consequently, we rule) that imposes substantial direct
to the public interest, and the agency estimated that the level of Federal requirement costs on State and local
incorporates a statement of the finding savings from this provision will be governments, preempts State law, or
and its reasons in the rule issued. 5 under $80 million, and State savings otherwise has Federalism implications.
U.S.C. 553(d)(3), 808(2). In addition, if under $60 million, per year over the Although each State is responsible for
the rule grants or recognizes an next 5 years. By considering the impact establishing its own procedures for
exemption or relieves a restriction, the on both Federal and State savings, this reviewing the documentation, several
agency may waive the delay in effective rule surpasses the economic threshold States have already been reviewing
date. 5 U.S.C. 553(d)(1). and is considered a major rule. The RFA these documents. For these States, there
In this rule we have identified requires agencies to analyze options for will be little or no added burden. There
additional documentary evidence of regulatory relief of small entities. For will also be no additional burden for the
citizenship and identity beyond that purposes of the RFA, small entities millions of individuals enrolled in
contained in the interim final rule with include small businesses, nonprofit Medicare who will be exempt. In
comment period. Thus, we consider this organizations, and small governmental addition, there will be no additional
final rule as providing additional relief jurisdictions. Most hospitals and most burden for the millions of individuals
to potential restrictions that may have other providers and suppliers are small who receive SSI, SSDI, child welfare
hindered receipt of Medicaid. Also, the entities, either by nonprofit status or by services under Title IV–B, or adoption
addition of such documents may allow having revenues of $6.5 million to $31.5 or foster care assistance payments under
Medicaid eligible citizens lacking million in any 1 year. Individuals and Title IV–E. In the future, when
documents identified in the interim States are not included in the definition additional data matches are available,
final rule to receive Medicaid without of a small entity. We did not prepare an the burden will continue to be
undue delay or without being denied or analysis for the RFA because we minimized for other groups of Medicaid
terminated. Without prompt publication determined, and the Secretary certifies, eligible individuals.
of a rule, States will not have immediate that this rule will not have a significant Finally, with respect to those States
authority to employ additional economic impact on a substantial that elect to review documents through
documentary evidence beyond that number of small entities. We also note the routine eligibility and
contained in the interim final that section 604 of the RFA applies only redetermination process, we recognize
regulations. Such additional in cases where an agency promulgates a there will be some increased burden on
documentary evidence will help to final rule after being required to publish eligibility workers. However, the
prevent loss of Medicaid eligibility. a general notice of proposed Medicaid eligibility and
Because delaying the effective date of rulemaking. As stated in the interim redetermination process is ordinarily
this regulation could either prevent or final rule, for this regulation, we found conducted by skilled interviewers who
complicate eligible individuals from good cause to publish the interim final are trained and skilled in the review of
being able to demonstrate their rule without prior publication of a documents related to income and
citizenship, we find that good cause proposed rule. identification; therefore, we do not
exists to waive this requirement. The In addition, section 1102(b) of the Act anticipate that these added
attendant delay would be contrary to required us to prepare a regulatory requirements will overburden the
public interest. impact analysis if a rule may have a eligibility process.
B. Anticipated Effects assumed participation rates of one notice of proposed rule making, we
percent in states that allow self- were not required by law or regulation
1. Effects on the Medicare and Medicaid
declaration of citizenship and one-half to issue a final regulation. However, in
Programs
percent in states with restricted self- light of recent legislation that affected
As described in more detail below, we declaration. States that do not permit this policy and consideration of the
estimate that as a result of this self-declaration were not included in public comments received in response
provision, roughly 50,000 the savings estimates. We further to the interim final, we are changing
undocumented aliens will no longer assumed that the new documentation several aspects of the policy as stated in
receive full Medicaid. Based on this requirements would be effective in the interim final. Therefore, we are
estimated decline in enrollment, we eliminating 75 percent of participating publishing final regulations to announce
estimate that the level of Federal savings undocumented aliens from the full these changes and have them codified in
from this provision will be under $80 benefit Medicaid rolls. (Emergency regulation.
million, and State savings under $60 services would, of course, continue to
million, per year over the next 5 years. D. Accounting Statement and Table
be available.) These assumptions result
In projecting these savings, we in an estimate of roughly 50,000 As required by OMB Circular A–4
assumed that Medicaid enrollees who undocumented aliens who would no (available at http://
are U.S. citizens by birth or longer receive full Medicaid. www.whitehouse.gov/omb/circulars/
naturalization will eventually be able to Savings per person were estimated a004/a-4.pdf), in the table below, we
provide proof of citizenship. Since the using Medicaid per capita expenditure have prepared an accounting statement
rule does not apply to legal immigrants, projections from the President’s FY showing the classification of the
the impact would come from 2008 budget, adjusted to exclude expenditures associated with the
undocumented aliens who are receiving exempt groups and emergency services provisions of this final rule. Table A
Medicaid benefits illegally. that would continue to be available. The provides our best estimate of the
We developed projections of the total states’ share of savings was calculated decrease in Medicaid payments as a
undocumented population based on using an average federal matching rate result of the changes presented in this
estimates by the Pew Research Center of 57 percent. These savings are proposed rule. Savings are classified as
(about 12 million in 2007, rising to 14 subsumed in the President’s FY 2008 transfers to the Federal Government and
million by 2011). From limited available budget. transfers to State Governments. Table B
evidence, we believe that very few of demonstrates the annualized savings for
these undocumented individuals are C. Alternatives Considered each the State and Federal government
currently receiving full Medicaid Because CMS previously issued based on the discounted 3% and 7%
benefits. For these estimates we interim final regulations and not a rates as required by OMB.
TABLE A
FY 2007 FY 2008 FY 2009 FY 2010 FY 2011
$ millions
Federal ......................................................................................................................... 45 50 55 65 70
State ............................................................................................................................. 40 40 45 45 55
Total ...................................................................................................................... 85 90 100 110 125
TABLE B
Annualized Annualized
Federal State
Discount— savings savings
($millions/ ($millions/
year) year)
FY 2007–2011 FY 2007–2011
0 percent .................................................................................................................................................................. 57.0 45.0

3 percent .................................................................................................................................................................. 56.6 44.8
7 percent .................................................................................................................................................................. 56.1 44.5
E. Conclusion is unlikely that all Medicaid applicants/ other settings such as the emergency
In accordance with the provisions of recipients who are citizens will be able department, charity care facilities and,
Executive Order 12866, this regulation to provide proof of citizenship due to in the case of American Indian/Alaska
was reviewed by the Office of lack of documentation, extreme physical Natives, Indian Health Service facilities.
Management and Budget. and/or mental illness and lack of Therefore, according to the commenters,
Comment: Several commenters adequate community support. The the impact may be a significant
disagreed with CMS’ determination of commenters stated that, accordingly, reduction in Medicaid expenditures at
the regulatory impact. The commenters many recipients will leave the system the expense of other sources of care in
stated that several assumptions under and many eligible individuals may the community.
which the impact was calculated were never apply. Many commenters stated Several commenters requested that
incorrect. The commenters stated that it that these individuals will seek care in CMS clarify how it determined its cost
estimate for States in a way that yields recipients and applicants become more § 435.117 Newborn children.
savings. The commenters stated that familiar with the requirements. (a) The agency must provide Medicaid
implementing the new regulations will In response to the commenter who eligibility to a child born to a woman
create considerable new costs. Several believes that we must conduct an who has applied for, has been
States indicated that their analysis of analysis of options to protect small determined eligible and is receiving
this provision resulted in a significant entities, we note that State agencies are Medicaid on the date of the child’s
increase in costs. Their estimates were not considered small entities. The birth. The child is deemed to have
partly based on hiring new staff to commenter did not identify other applied and been found eligible for
process more in-person applications. entities he believed should be taken into Medicaid on the date of birth and
The States expect that most applicants account. As stated above, we also note remains eligible for one year so long as
will no longer complete phone-in or that section 604 of the RFA applies in the woman remains (or would remain if
mail-in applications for fear of losing cases where the Administrative pregnant) eligible and the child is a
documents in the mail. The States also Procedure Act requires a general notice member of the woman’s household.
stated that they will incur significant of proposed rulemaking. This provision applies in instances
costs as a result of purchasing where the labor and delivery services
documents for poor recipients and List of Subjects
were furnished prior to the date of
applicants who otherwise could not 42 CFR Part 435 application and covered by Medicaid
afford to obtain them. based on retroactive eligibility.
One commenter stated that CMS Aid to Families with Dependent (b) The agency must provide
should revise its regulatory impact Children, Grant programs-health, Medicaid eligibility in the same manner
statement. He stated that CMS has not Medicaid, Reporting and recordkeeping described in paragraph (a) of this
provided any support for its decision to requirements, Supplemental Security section to a child born to an otherwise-
waive the Regulatory Flexibility Act Income (SSI), Wages. eligible qualified alien woman subject to
requirement for an analysis of options to
42 CFR Part 436 the 5-year bar so long as the woman has
protect small entities. The commenter
filed a complete Medicaid application,
stated that it is imperative that the Aid to Families with Dependent including but not limited to meeting
impact statements and cost-benefit Children, Grant programs-health, Guam, residency, income and resource
analysis be done before these Medicaid, Puerto Rico, Virgin Islands. requirements, has been determined
regulations are finalized.
Response: The regulatory impact 42 CFR Part 440 eligible, is receiving Medicaid on the
statement was calculated to estimate date of the child’s birth, and remains (or
Grant programs-health, Medicaid. would remain if pregnant) Medicaid
changes in Medicaid expenditures for
claims. It did not account for the 42 CFR Part 441 eligible. All standard Medicaid
administrative impact on States. application procedures apply, including
Aged, Family planning, Grant timely determination of eligibility and
With respect to administrative costs,
programs-health, Infants and children, adequate notice of the agency’s decision
CMS provides federal match for
Medicaid, Penalties, Reporting and concerning eligibility. A 5-year bar
administrative expenditures. We would
recordkeeping requirement. qualified alien receiving emergency
expect States to experience higher
administrative costs during the first year 42 CFR Part 457 medical services only under § 435.139 is
of implementation as they adjust to the considered to be Medicaid-eligible and
new requirements. We also expect these Administrative practice and receiving Medicaid for purposes of this
costs to decrease in later years as procedure, Grant programs-health, provision. With respect to whether the
current recipients meet the Health insurance, Reporting and mother remains (or would remain if
requirements and only new applicants recordkeeping requirements. pregnant) eligible for Medicaid after the
are required to submit documentation. 42 CFR Part 483 birth of the child, the State must
Furthermore, the exemption of several determine whether a 5-year bar
groups of individuals authorized under Grant programs-health, Health qualified alien would remain eligible for
both the DRA and the TRHCA will facilities, Health professions, Health emergency services under § 435.139. In
significantly reduce the number of records, Medicaid, Medicare, Nursing determining whether the woman would
individuals from whom States must homes, Nutrition, Reporting and remain eligible for these services, the
collect documentation. Administrative recordkeeping requirements, Safety. State must consider whether the woman
costs may be further reduced by the would remain eligible if pregnant. This
■ Accordingly, the interim final rule
States’ ability to cross-verify with the provision applies in instances where the
amending 42 CFR parts 435, 436, 440,
SAVE database, to which they already labor and delivery services were
441, 457, and 483, which was published
have access. Data matches with the furnished prior to the date of
July 12, 2006 at 71 FR 39214, is adopted
State’s vital statistics agency could application and covered by Medicaid
as final with the following changes:
further reduce administrative costs. based on retroactive eligibility.
With respect to the commenter who PART 435—ELIGIBILITY IN THE (c) The agency must provide Medicaid
stated that the savings to the Medicaid STATES, DISTRICT OF COLUMBIA, eligibility in the same manner described
program will be significantly greater THE NORTHERN MARIANA ISLANDS, in paragraph (a) of this section to a child
than those calculated based on many AND AMERICAN SAMOA born to an otherwise-eligible non-
individuals either being unable to meet qualified alien woman so long as the
the requirements or being deterred from ■ 1. The authority citation for part 435 woman has filed a complete Medicaid
applying at all, we disagree. Nearly all continues to read as follows: application (other than providing a
States have implemented these Authority: Section 1102 of the Social social security number or demonstrating
requirements. While we heard some Security Act (42 U.S.C. 1302). immigration status), including but not
initial concerns about the impact of this limited to meeting residency, income
provision on enrollment numbers, we ■ 2. Section 435.117 is revised to read and resource requirements, has been
expect this trend to reverse as States, as follows: determined eligible, is receiving
Medicaid on the date of the child’s (C) Individuals receiving disability ■ O. Redesignating paragraph (e)(10) as
birth, and remains (or would remain if insurance benefits under section 223 of paragraph (e)(2).
pregnant) Medicaid eligible. All the Act or monthly benefits under ■ P. Adding a new paragraph (e)(3).
standard Medicaid application section 202 of the Act, based on the ■ Q. Revising paragraph (f).
procedures apply, including timely individual’s disability (as defined in ■ R. Redesignating paragraphs (g), (h),
determination of eligibility and section 223(d) of the Act). (i), and (j) as paragraphs (h), (i), (j), and
adequate notice of the agency’s decision (D) Individuals who are in foster care (k).
concerning eligibility. A non-qualified and who are assisted under Title IV-B of ■ S. Adding a new paragraph (g).
alien receiving emergency medical the Act, and individuals who are ■ T. Revising newly redesignated
services only under § 435.139 is recipients of foster care maintenance or paragraph (i).
considered to be Medicaid-eligible and adoption assistance payments under The revisions and additions read as
receiving Medicaid for purposes of this Title IV–E of the Act. follows:
provision. With respect to whether the (2)(i) Except as specified in 8 U.S.C.
mother remains (or would remain if 1612(b)(1) (permitting States an option § 435.407 Types of acceptable
pregnant) eligible for Medicaid after the with respect to coverage of certain documentary evidence of citizenship.
birth of the child, the State must qualified aliens), qualified aliens as For purposes of this section, the term
determine whether a non-qualified alien described in section 431 of the Personal ‘‘citizenship’’ includes status as a
would remain eligible for emergency Responsibility and Work Opportunity ‘‘national of the United States’’ as
services under § 435.139. In determining Reconciliation Act of 1996 (8 U.S.C. defined by section 101(a)(22) of the
whether the woman would remain 1641) (including qualified aliens subject Immigration and Nationality Act (8
eligible for these services, the State must to the 5-year bar) who have provided U.S.C. 1101(a)(22)) to include both
consider whether the woman would satisfactory documentary evidence of citizens of the United States and non-
remain eligible if pregnant. This Qualified Alien status, which status has citizen nationals of the United States.
provision applies in instances where the been verified with the Department of * * * * *
labor and delivery services were Homeland Security (DHS) under a (b) * * *
furnished prior to the date of declaration required by section 1137(d) (1) A U.S. public birth certificate
application and covered by Medicaid of the Act that the applicant or recipient showing birth in one of the 50 States,
based on retroactive eligibility. is an alien in a satisfactory immigration the District of Columbia, Puerto Rico (if
(d) A redetermination of eligibility status. born on or after January 13, 1941), Guam
must be completed on behalf of the (ii) The eligibility of qualified aliens (on or after April 10, 1899), the Virgin
children described in this provision in who are subject to the 5-year bar in 8 Islands of the U.S. (on or after January
accordance with the procedures at U.S.C. 1613 is limited to the benefits 17, 1917), American Samoa, Swain’s
§ 435.916. At that time, the State must described in paragraph (b) of this Island, or the Northern Mariana Islands
collect documentary evidence of section. (after November 4, 1986 (NMI local
citizenship and identity as required (b) The agency must provide payment time)). A State, at its option, may use a
under § 435.406. for the services described in § 440.255(c) cross match with a State vital statistics
of this chapter to residents of the State agency to document a birth record. The
■ 3. Section 435.406 is amended by —
who otherwise meet the eligibility birth record document may be issued by
■ A. Revising paragraph (a)(1)(iii).
requirements of the State plan (except the State, Commonwealth, Territory, or
■ B. Adding paragraph (a)(1)(v).
■ C. Revising paragraph (a)(2). for receipt of AFDC, SSI, or State local jurisdiction. It must have been
■ D. Revising paragraph (b). Supplementary payments) who are recorded before the person was 5 years
The revisions and addition read as qualified aliens subject to the 5-year bar of age. A delayed birth record document
follows: or who are non-qualified aliens who that is recorded at or after 5 years of age
meet all Medicaid eligibility criteria, is considered fourth level evidence of
§ 435.406 Citizenship and alienage. except non-qualified aliens need not citizenship. (Note: If the document
(a) * * * present a social security number or shows the individual was born in Puerto
(1) * * * document immigration status. Rico, the Virgin Islands of the U.S., or
(iii) An individual for purposes of the ■ 4. Section 435.407 is amended by: the Northern Mariana Islands before
declaration and citizenship ■ A. Adding introductory text to the these areas became part of the U.S., the
documentation requirements discussed section. individual may be a collectively
in paragraphs (a)(1)(i) and (a)(1)(ii) of ■ B. Removing the ‘‘;’’ and ‘‘or’’ at the naturalized citizen. Collective
this section includes both applicants end of paragraph (a)(4) and adding a naturalization occurred on certain dates
and recipients under a section 1115 period in its place. listed for each of the territories.) The
demonstration (including a family ■ C. Removing paragraph (a)(5). following will establish U.S. citizenship
planning demonstration project) for ■ D. Revising paragraph (b)(1). for collectively naturalized individuals:
which a State receives Federal financial ■ E. Revising paragraph (b)(5). (i) Puerto Rico:
participation in their expenditures, as ■ F. Adding paragraphs (b)(11) and (A) Evidence of birth in Puerto Rico
though the expenditures were for (b)(12). on or after April 11, 1899 and the
medical assistance. ■ G. Revising paragraph (c). applicant’s statement that he or she was
* * * * * ■ H. Revising paragraph (d) residing in the U.S., a U.S. possession,
(v) The following groups of introductory text. or Puerto Rico on January 13, 1941; or
individuals are exempt from the ■ I. Revising paragraph (d)(2). (B) Evidence that the applicant was a
requirements in paragraph (a)(1)(ii) of ■ J. Revising paragraph (d)(3). Puerto Rican citizen and the applicant’s
this section: ■ K. Revising paragraph (d)(4). statement that he or she was residing in
(A) Individuals receiving SSI benefits ■ L. Revising paragraph (d)(5)(vi). Puerto Rico on March 1, 1917 and that
under title XVI of the Act. ■ M. Revising paragraph (e)(1). he or she did not take an oath of
(B) Individuals entitled to or enrolled ■ N. Removing paragraphs (e)(2) allegiance to Spain.
in any part of Medicare. through (e)(9). (ii) U.S. Virgin Islands:
(A) Evidence of birth in the U.S. Entitlements (SAVE) Program for created near the time of birth or 5 years
Virgin Islands, and the applicant’s naturalized citizens. A State may before the date of application.) Do not
statement of residence in the U.S., a conduct a verification with SAVE to accept a souvenir ‘‘birth certificate’’
U.S. possession, or the U.S. Virgin determine if an individual is a issued by the hospital.
Islands on February 25, 1927; or naturalized citizen, provided that such (2) Life, health, or other insurance
(B) The applicant’s statement verification is conducted consistent record showing a U.S. place of birth that
indicating residence in the U.S. Virgin with the terms of a Memorandum of was created at least 5 years before the
Islands as a Danish citizen on January Understanding or other agreement with initial application date that indicates a
17, 1917 and residence in the U.S., a the Department of Homeland Security U.S. place of birth. (For children under
U.S. possession, or the U.S. Virgin (DHS) authorizing verification of claims 16 the document must have been
Islands on February 25, 1927, and that to U.S. citizenship through SAVE, created near the time of birth or 5 years
he or she did not make a declaration to including but not limited to provision of before the date of application.) Life or
maintain Danish citizenship; or the individual’s alien registration health insurance records may show
(C) Evidence of birth in the U.S. number if required by DHS. biographical information for the person
Virgin Islands and the applicant’s (12) Child Citizenship Act. Adopted including place of birth; the record can
statement indicating residence in the or biological children born outside the be used to establish U.S. citizenship
U.S., a U.S. possession or Territory, or United States may establish citizenship when it shows a U.S. place of birth.
the Canal Zone on June 28, 1932. obtained automatically under section (3) Religious record recorded in the
(iii) Northern Mariana Islands (NMI) 320 of the Immigration and Nationality U.S. within 3 months of birth showing
(formerly part of the Trust Territory of Act (8 U.S.C. 1431), as amended by the the birth occurred in the U.S. and
the Pacific Islands (TTPI)): Child Citizenship Act of 2000 (Pub. L. showing either the date of the birth or
(A) Evidence of birth in the NMI, 106–395, enacted on October 30, 2000). the individual’s age at the time the
TTPI citizenship and residence in the The State must obtain documentary record was made. The record must be an
NMI, the U.S., or a U.S. Territory or evidence that verifies that at any time official record recorded with the
possession on November 3, 1986 NMI on or after February 27, 2001, the religious organization. CAUTION: In
local time) and the applicant’s statement following conditions have been met: questionable cases (for example, where
that he or she did not owe allegiance to (i) At least one parent of the child is the child’s religious record was
a foreign State on November 4, 1986 a United States citizen by either birth or recorded near a U.S. international
(NMI local time); or naturalization (as verified under the border and the child may have been
(B) Evidence of TTPI citizenship, requirements of this Part); born outside the U.S.), the State must
continuous residence in the NMI since (ii) The child is under the age of 18; verify the religious record and/or
before November 3, 1981 (NMI local (iii) The child is residing in the
document that the mother was in the
time), voter registration before January United States in the legal and physical
U.S. at the time of birth.
1, 1975 and the applicant’s statement custody of the U.S. citizen parent;
(iv) The child was admitted to the (4) Early school record showing a U.S.
that he or she did not owe allegiance to place of birth. The school record must
a foreign State on November 4, 1986 United States for lawful permanent
residence (as verified under the show the name of the child, the date of
(NMI local time); or admission to the school, the date of
(C) Evidence of continuous domicile requirements of 8 U.S.C. 1641
pertaining to verification of qualified birth, a U.S. place of birth, and the
in the NMI since before January 1, 1974 name(s) and place(s) of birth of the
and the applicant’s statement that he or alien status); and
(v) If adopted, the child satisfies the applicant’s parents.
she did not owe allegiance to a foreign (d) Fourth level evidence of
requirements of section 101(b)(1) of the
State on November 4, 1986 (NMI local citizenship. Fourth level evidence of
Immigration and Nationality Act (8
time). citizenship is documentary evidence of
U.S.C. 1101(b)(1) pertaining to
(D) Note: If a person entered the NMI the lowest reliability. Fourth level
international adoptions (admission for
as a nonimmigrant and lived in the NMI evidence should only be used in the
lawful permanent residence as IR–3
since January 1, 1974, this does not rarest of circumstances. This level of
(child adopted outside the United
constitute continuous domicile and the evidence is used only when primary,
States)), or as IR–4 (child coming to the
individual is not a U.S. citizen. secondary and third level evidence is
United States to be adopted) with final
* * * * * adoption having subsequently unavailable. With the exception of the
(5) A U.S. Citizen I.D. card. (This form occurred). affidavit process described in paragraph
was issued until the 1980s by INS. (c) Third level evidence of citizenship. (d)(5) of this section, the applicant may
Although no longer issued, holders of Third level evidence of U.S. citizenship only use fourth level evidence of
this document may still use it consistent is documentary evidence of satisfactory citizenship if alleging a U.S. place of
with the provisions of section 1903(x) of reliability that is used when both birth. In addition, a second document
the Act.) INS issued the I–179 from 1960 primary and secondary evidence is establishing identity must be presented
until 1973. It revised the form and unavailable. Third level evidence may as described in paragraph (e) of this
renumbered it as Form I–197. INS be used only when the applicant or section.
issued the I–197 from 1973 until April recipient alleges being born in the U.S. * * * * *
7, 1983. INS issued Form I–179 and A second document from paragraph (e) (2) One of the following documents
I–197 to naturalized U.S. citizens living of this section to establish identity must that show a U.S. place of birth and was
near the Canadian or Mexican border also be presented: created at least 5 years before the
who needed it for frequent border (1) Extract of a hospital record on application for Medicaid. (For children
crossings. Although neither form is hospital letterhead established at the under 16 the document must have been
currently issued, either form that was time of the person’s birth that was created near the time of birth or 5 years
previously issued is still valid. created 5 years before the initial before the date of application.) This
* * * * * application date and that indicates a document must be one of the following
(11) A data verification with the U.S. place of birth. (For children under and show a U.S. place of birth:
Systematic Alien Verification for 16 the document must have been (i) Seneca Indian tribal census.
(ii) Bureau of Indian Affairs tribal identifying information relating to the by a residential care facility director or
census records of the Navajo Indians. individual. Acceptable if the document administrator on behalf of an
(iii) U.S. State Vital Statistics official carries a photograph of the applicant or institutionalized individual in the
notification of birth registration. recipient, or has other personal facility. States should first pursue all
(iv) A delayed U.S. public birth record identifying information relating to the other means of verifying identity prior
that is recorded more than 5 years after individual such as age, weight, height, to accepting an affidavit. The affidavit is
the person’s birth. race, sex, and eye color. not required to be notarized.
(v) Statement signed by the physician (vii) U.S. Coast Guard Merchant * * * * *
or midwife who was in attendance at Mariner card. (i) Documentary evidence. (1) All
the time of birth. Note to paragraph (e)(1): Exception: Do not documents must be either originals or
(vi) The Roll of Alaska Natives accept a voter’s registration card or Canadian copies certified by the issuing agency.
maintained by the Bureau of Indian driver’s license as listed in 8 CFR Uncertified copies, including notarized
Affairs. 274a.2(b)(1)(v)(B)(1). CMS does not view copies, shall not be accepted.
(3) Institutional admission papers these as reliable for identity. (2) States must maintain copies of
from a nursing facility, skilled care * * * * * citizenship and identification
facility or other institution created at (3) At State option, a State may accept documents in the case record or
least 5 years before the initial three or more documents that together electronic data base and make these
application date that indicates a U.S. reasonably corroborate the identity of an copies available for compliance audits.
place of birth. Admission papers individual provided such documents (3) States may permit applicants and
generally show biographical information have not been used to establish the recipients to submit such documentary
for the person including place of birth; individual’s citizenship and the evidence without appearing in person at
the record can be used to establish U.S. individual submitted second or third a Medicaid office. States may accept
citizenship when it shows a U.S. place tier evidence of citizenship. The State original documents in person, by mail,
of birth. must first ensure that no other evidence or by a guardian or authorized
(4) Medical (clinic, doctor, or of identity is available to the individual representative.
hospital) record created at least 5 years prior to accepting such documents. (4) If documents are determined to be
before the initial application date that Such documents must at a minimum inconsistent with pre-existing
indicates a U.S. place of birth. (For contain the individual’s name, plus any information, are counterfeit, or altered,
children under 16 the document must additional information establishing the States should investigate for potential
have been created near the time of birth individual’s identity. All documents fraud and abuse, including but not
or 5 years before the date of used must contain consistent limited to, referral to the appropriate
application.) identifying information. These State and Federal law enforcement
Medical records generally show documents include employer agencies.
biographical information for the person identification cards, high school and (5) Presentation of documentary
including place of birth; the record can college diplomas from accredited evidence of citizenship is a one time
be used to establish U.S. citizenship institutions (including general activity; once a person’s citizenship is
when it shows a U.S. place of birth. education and high school equivalency documented and recorded in a State
(Note:An immunization record is not diplomas), marriage certificates, divorce database subsequent changes in
considered a medical record for decrees and property deeds/titles. eligibility should not require repeating
purposes of establishing U.S. (f) Special identity rules for children. the documentation of citizenship unless
citizenship.) For children under 16, a clinic, doctor, later evidence raises a question of the
* * * * * hospital or school record may be person’s citizenship. The State need
(5) * * * accepted for purposes of establishing only check its databases to verify that
(vi) The affidavits must be signed identity. School records may include the individual already established
under penalty of perjury and need not nursery or daycare records and report citizenship.
be notarized. cards. If the State accepts such records, (6) CMS requires that as a check
(e) * * * it must verify them with the issuing against fraud, using currently available
(1) Identity documents described in 8 school. If none of the above documents automated capabilities, States will
CFR 274a.2(b)(1)(v)(B)(1). in the preceding groups are available, an conduct a match of the applicant’s name
(i) Driver’s license issued by State or affidavit may be used. An affidavit is against the corresponding Social
Territory either with a photograph of the only acceptable if it is signed under Security number that was provided. In
individual or other identifying penalty of perjury by a parent, guardian addition, in cooperation with other
information of the individual such as or caretaker relative (as defined in the agencies of the Federal government,
name, age, sex, race, height, weight or regulations at 45 CFR 233.90(c)(v)) CMS encourages States to use
eye color. stating the date and place of the birth of automated capabilities to verify
(ii) School identification card with a the child and cannot be used if an citizenship and identity of Medicaid
photograph of the individual. affidavit for citizenship was provided. applicants. Automated capabilities may
(iii) U.S. military card or draft record. The affidavit is not required to be fall within the computer matching
(iv) Identification card issued by the notarized. A State may accept an provisions of the Privacy Act of 1974,
Federal, State, or local government with identity affidavit on behalf of a child and CMS will explore any
the same information included on under the age of 18 in instances when implementation issues that may arise
drivers’ licenses. school ID cards and drivers’ licenses are with respect to those requirements.
(v) Military dependent’s identification not available to the individual in that When these capabilities become
card. area until that age. available, States will be required to

(vi) Certificate of Degree of Indian (g) Special identity rules for disabled match files for individuals who used
Blood, or other American Indian/Alaska individuals in institutional care third or fourth tier documents to verify
Native Tribal document with a facilities. A State may accept an identity citizenship and documents to verify
photograph or other personal affidavit signed under penalty of perjury identity, and CMS will make available
to States necessary information in this including but not limited to meeting applies in instances where the labor and
regard. States must ensure that all case residency, income and resource delivery services were furnished prior to
records within this category will be so requirements, has been determined the date of application and covered by
identified and made available to eligible, is receiving Medicaid on the Medicaid based on retroactive
conduct these automated matches. CMS date of the child’s birth, and remains (or eligibility.
may also require States to match files for would remain if pregnant) Medicaid (d) A redetermination of eligibility
individuals who used first or second eligible. All standard Medicaid must be completed on behalf of the
level documents to verify citizenship as application procedures apply, including children described in this provision in
well. CMS may provide further timely determination of eligibility and accordance with the procedures at
guidance to States with respect to adequate notice of the agency’s decision § 435.916. At that time, the State must
actions required in a case of a negative concerning eligibility. A 5-year bar collect documentary evidence of
match. qualified alien receiving emergency citizenship and identity as required
* * * * * medical services only under § 435.139 under § 436.406.
■ 5. Section 435.1008 is revised to read of this chapter is considered to be ■ 7a. Section § 436.406 is amended by:
as follows: Medicaid-eligible and receiving ■ A. Revising paragraph (a)(1)(iii).
Medicaid for purposes of this provision. ■ B. Adding paragraph (a)(1)(v).
§ 435.1008 FFP in expenditures for With respect to whether the mother ■ C. Revising paragraph (a)(2).
medical assistance for individuals who remains (or would remain if pregnant) ■ D. Revising paragraph (b).
have declared United States citizenship or eligible for Medicaid after the birth of
nationality under section 1137(d) of the Act
The revisions and addition read as
the child, the State must determine follows:
and with respect to whom the State has not
documented citizenship and identity.
whether a 5-year bar qualified alien
would remain eligible for emergency § 436.406 Citizenship and alienage.
Except for individuals described in
services under § 435.139 of this chapter. (a) * * *
§ 435.406(a)(1)(v), FFP will not be
In determining whether the woman (1) * * *
available to a State with respect to
would remain eligible for these services, (iii) An individual for purposes of the
expenditures for medical assistance
the State must consider whether the declaration and citizenship
furnished to individuals unless the State
woman would remain eligible if documentation requirements discussed
has obtained satisfactory documentary
pregnant. This provision applies in in paragraphs (a)(1)(i) and (a)(1)(ii) of
evidence of citizenship or national
instances where the labor and delivery this section includes both applicants
status, as described in § 435.407 that
services were furnished prior to the date and recipients under a section 1115
complies with the requirements of
of application and covered by Medicaid demonstration (including a family
section 1903(x) of the Act.
based on retroactive eligibility. planning demonstration project) for
PART 436—ELIGIBILITY PART 436— (c) The agency must provide Medicaid which a State receives Federal financial
ELIGIBILITY IN GUAM, PUERTO RICO, eligibility in the same manner described participation in their expenditures, as
AND THE VIRGIN ISLANDS in paragraph (a) of this section to a child though the expenditures were for
born to an otherwise-eligible non- medical assistance.
■ 6. The authority citation for part 436 qualified alien woman so long as the * * * * *
continues to read as follows: woman has filed a complete Medicaid (v) The following groups of
Authority: Sec. 1102 of the Social Security application (other than providing a individuals are exempt from the
Act (42 U.S.C. 1302). social security number or demonstrating requirements in paragraph (a)(1)(ii) of
■ 7. Section 436.124 is revised to read immigration status), including but not this section:
as follows: limited to meeting residency, income (A) Individuals receiving SSI benefits
and resource requirements, has been under title XVI of the Act;
§ 436.124 Newborn children. determined eligible, is receiving (B) Individuals entitled to or enrolled
(a) The agency must provide Medicaid Medicaid on the date of the child’s in any part of Medicare;
eligibility to a child born to a woman birth, and remains (or would remain if (C) Individuals receiving disability
who has applied for, has been pregnant) Medicaid eligible. All insurance benefits under section 223 of
determined eligible and is receiving standard Medicaid application the Act or monthly benefits under
Medicaid on the date of the child’s procedures apply, including timely section 202 of the Act, based on the
birth. The child is deemed to have determination of eligibility and individual’s disability (as defined in
applied and been found eligible for adequate notice of the agency’s decision section 223(d) of the Act); and
Medicaid on the date of birth and concerning eligibility. A non-qualified (D) Individuals who are in foster care
remains eligible for one year so long as alien receiving emergency medical and who are assisted under Title IV–B
the woman remains (or would remain if services only under § 435.139 of this of the Act, and individuals who are
pregnant) eligible and the child is a chapter is considered to be Medicaid- recipients of foster care maintenance or
member of the woman’s household. eligible and receiving Medicaid for adoption assistance payments under
This provision applies in instances purposes of this provision. With respect Title IV-E of the Act.
where the labor and delivery services to whether the mother remains (or (2)(i) Except as specified in 8 U.S.C.
were furnished prior to the date of would remain if pregnant) eligible for 1612(b)(1) (permitting States an option
application and covered by Medicaid Medicaid after the birth of the child, the with respect to coverage of certain
based on retroactive eligibility. State must determine whether a non- qualified aliens), qualified aliens as
(b) The agency must provide qualified alien would remain eligible for described in section 431 of the Personal
Medicaid eligibility in the same manner emergency services under § 435.139 of Responsibility and Work Opportunity
described in paragraph (a) of this this chapter. In determining whether the Reconciliation Act of 1996 (8 U.S.C.
section to a child born to an otherwise- woman would remain eligible for these 1641) (including qualified aliens subject
eligible qualified alien woman subject to services, the State must consider to the 5-year bar) who have provided
the 5-year bar so long as the woman has whether the woman would remain satisfactory documentary evidence of
filed a complete Medicaid application, eligible if pregnant. This provision Qualified Alien status, which status has
been verified with the Department of license requires proof of U.S. (B) The applicant’s statement
Homeland Security (DHS) under a citizenship before issuance of such indicating residence in the U.S. Virgin
declaration required by section 1137(d) license or obtains a social security Islands as a Danish citizen on January
of the Act that the applicant or recipient number from the applicant and verifies 17, 1917 and residence in the U.S., a
is an alien in a satisfactory immigration before certification that such number is U.S. possession, or the U.S. Virgin
status. valid and assigned to the applicant who Islands on February 25, 1927, and that
(ii) The eligibility of qualified aliens is a citizen. (This provision is not he or she did not make a declaration to
who are subject to the 5-year bar in 8 effective until such time as a State maintain Danish citizenship; or
U.S.C. 1613 is limited to the benefits makes providing evidence of citizenship (C) Evidence of birth in the U.S.
described in paragraph (b) of this a condition of issuing a driver’s license Virgin Islands and the applicant’s
section. and evidence that the license holder is statement indicating residence in the
(b) The agency must provide payment a citizen is included on the license or U.S., a U.S. possession, or Territory or
for the services described in § 440.255(c) in a system of records available to the the Canal Zone on June 28, 1932.
of this chapter to residents of the State Medicaid agency. States must ensure (iii) Northern Mariana Islands (NMI)
who otherwise meet the eligibility that the process complies with this (formerly part of the Trust Territory of
requirements of the State plan (except statutory provision in section 6036 of the Pacific Islands (TTPI)):
for receipt of AFDC, SSI, or State the Deficit Reduction Act of 2005. CMS (A) Evidence of birth in the NMI,
Supplementary payments) who are will monitor compliance of States TTPI citizenship and residence in the
qualified aliens subject to the 5-year bar implementing this provision.) NMI, the U.S., or a U.S. Territory or
or who are non-qualified aliens who (b) * * * possession on November 3, 1986 (NMI
meet all Medicaid eligibility criteria, (1) A U.S. public birth certificate local time) and the applicant’s statement
except non-qualified aliens need not showing birth in one of the 50 States, that he or she did not owe allegiance to
present a social security number or the District of Columbia, Puerto Rico (if a foreign State on November 4, 1986
document immigration status. born on or after January 13, 1941), Guam (NMI local time); or
■ 8. Section § 436.407 is amended by: (on or after April 10, 1899), the Virgin (B) Evidence of TTPI citizenship,
■ A. Adding introductory text to the Islands of the U.S.(on or after January continuous residence in the NMI since
section. 17, 1917), American Samoa, Swain’s before November 3, 1981 (NMI local
■ B. Revising paragraph (a)(4). Island, or the Northern Mariana Islands time), voter registration before January
■ C. Revising paragraph (b)(1). (after November 4, 1986 (NMI local 1, 1975 and the applicant’s statement
■ D. Revising paragraph (b)(5). time)). A State, at its option, may use a that he or she did not owe allegiance to
■ E. Adding paragraphs (b)(11) and cross match with a State vital statistics a foreign State on November 4, 1986
(b)(12). agency to document a birth record. The (NMI local time); or
■ F. Revising paragraph (c). birth record document may be issued by (C) Evidence of continuous domicile
■ G. Revising paragraph (d) introductory the State, Commonwealth, Territory, or in the NMI since before January 1, 1974
text. local jurisdiction. It must have been and the applicant’s statement that he or
■ H. Revising paragraph (d)(2). recorded before the person was 5 years she did not owe allegiance to a foreign
■ I. Revising paragraph (d)(3). of age. A delayed birth record document State on November 4, 1986 (NMI local
■ J. Revising paragraph (d)(4). time).
that is recorded at or after 5 years of age
■ K. Revising paragraph (d)(5)(vi). (D) Note: If a person entered the NMI
is considered fourth level evidence of
■ L. Revising paragraph (e)(1). as a nonimmigrant and lived in the NMI
citizenship. (Note: If the document
■ M. Removing paragraphs (e)(2) since January 1, 1974, this does not
shows the individual was born in Puerto
through (e)(9). constitute continuous domicile and the
Rico, the Virgin Islands of the U.S., or
■ N. Redesignating paragraph (e)(10) as individual is not a U.S. citizen.
the Northern Mariana Islands before
paragraph (e)(2).
these areas became part of the U.S., the * * * * *
■ O. Adding a new paragraph (e)(3).
individual may be a collectively (5) A U.S. Citizen I.D. card. (This form
■ P. Revising paragraph (f).
naturalized citizen. Collective was issued until the 1980s by INS.
■ Q. Redesignating paragraphs (g), (h),
naturalization occurred on certain dates Although no longer issued, holders of
(i) and (j) as paragraphs (h), (i), (j) and
listed for each of the territories.) The this document may still use it consistent
(k).
■ R. Revising newly redesignated
following will establish U.S. citizenship with the provisions of section 1903(x) of
paragraph (i). for collectively naturalized individuals: the Act.) INS issued the I–179 from 1960
■ S. Adding a new paragraph (g). (i) Puerto Rico: until 1973. It revised the form and
The revisions and additions read as (A) Evidence of birth in Puerto Rico renumbered it as Form I–197. INS
follows: on or after April 11, 1899 and the issued the I–197 from 1973 until April
applicant’s statement that he or she was 7, 1983. INS issued Form I–179 and I–
§ 436.407 Types of acceptable residing in the U.S., a U.S. possession, 197 to naturalized U.S. citizens living
documentary evidence of citizenship. or Puerto Rico on January 13, 1941; or near the Canadian or Mexican border
For purposes of this section, the term (B) Evidence that the applicant was a who needed it for frequent border
‘‘citizenship’’ includes status as a Puerto Rican citizen and the applicant’s crossings. Although neither form is
‘‘national of the United States’’ as statement that he or she was residing in currently issued, either form that was
defined by section 101(a)(22) of the Puerto Rico on March 1, 1917 and that previously issued is still valid.
Immigration and Nationality Act (8 he or she did not take an oath of * * * * *
U.S.C. § 1101(a)(22)) to include both allegiance to Spain. (11) A data verification with the
citizens of the United States and non- (ii) U.S. Virgin Islands: Systematic Alien Verification for
citizen nationals of the United States. (A) Evidence of birth in the U.S. Entitlements (SAVE) Program for
* * * * * Virgin Islands, and the applicant’s naturalized citizens. A State may
(a) * * * statement of residence in the U.S., a conduct a verification with SAVE to
(4) A valid State-issued driver’s U.S. possession, or the U.S. Virgin determine if an individual is a
license, but only if the State issuing the Islands on February 25, 1927; or naturalized citizen, provided that such
verification is conducted consistent (2) Life, health, or other insurance (iv) A delayed U.S. public birth record
with the terms of a Memorandum of record showing a U.S. place of birth that that is recorded more than 5 years after
Understanding or other agreement with was created at least 5 years before the the person’s birth.
the Department of Homeland Security initial application date that indicates a (v) Statement signed by the physician
(DHS) authorizing verification of claims U.S. place of birth. (For children under or midwife who was in attendance at
to U.S. citizenship through SAVE, 16 the document must have been the time of birth.
including but not limited to provision of created near the time of birth or 5 years (vi) The Roll of Alaska Natives
the individual’s alien registration before the date of application.) Life or maintained by the Bureau of Indian
number if required by DHS. health insurance records may show Affairs.
(12) Child Citizenship Act. Adopted biographical information for the person (3) Institutional admission papers
or biological children born outside the including place of birth; the record can from a nursing facility, skilled care
United States may establish citizenship be used to establish U.S. citizenship facility or other institution created at
obtained automatically under section when it shows a U.S. place of birth. least 5 years before the initial
320 of the Immigration and Nationality (3) Religious record recorded in the application date that indicates a U.S.
Act (8 U.S.C. 1431), as amended by the U.S. within 3 months of birth showing place of birth. Admission papers
Child Citizenship Act of 2000 (Pub. L. the birth occurred in the U.S. and generally show biographical information
106–395, enacted on October 30, 2000). showing either the date of the birth or for the person including place of birth;
The State must obtain documentary the individual’s age at the time the the record can be used to establish U.S.
evidence that verifies that at any time record was made. The record must be an citizenship when it shows a U.S. place
on or after February 27, 2001, the official record recorded with the of birth.
following conditions have been met: religious organization. Caution: In (4) Medical (clinic, doctor, or
(i) At least one parent of the child is questionable cases (for example, where hospital) record created at least 5 years
a United States citizen by either birth or the child’s religious record was before the initial application date that
naturalization (as verified under the recorded near a U.S. international indicates a U.S. place of birth. (For
requirements of this Part); border and the child may have been children under 16 the document must
(ii) The child is under the age of 18; born outside the U.S.), the State must have been created near the time of birth
consider verifying the religious record or 5 years before the date of
(iii) The child is residing in the
and/or documenting that the mother application.) Medical records generally
United States in the legal and physical
was in the U.S. at the time of the birth. show biographical information for the
custody of the U.S. citizen parent; (4) Early school record showing a U.S.
(iv) The child was admitted to the person including place of birth; the
place of birth. The school record must record can be used to establish U.S.
United States for lawful permanent show the name of the child, the date of
residence (as verified under the citizenship when it shows a U.S. place
admission to the school, the date of
requirements of 8 U.S.C. 1641 of birth. (Note: An immunization record
birth (or age at the time the record was
pertaining to verification of qualified is not considered a medical record for
made), a U.S. place of birth, and the
alien status); and purposes of establishing U.S.
name(s) and place(s) of birth of the
(v) If adopted, the child satisfies the citizenship.)
applicant’s parents.
requirements of section 101(b)(1) of the (d) Fourth level evidence of * * * * *
Immigration and Nationality Act (8 citizenship. Fourth level evidence of (5) * * *
U.S.C. 1101(b)(1) pertaining to citizenship is documentary evidence of (vi) The affidavits must be signed
international adoptions (admission for the lowest reliability. Fourth level under penalty of perjury and need not
lawful permanent residence as IR–3 evidence should only be used in the be notarized.
(child adopted outside the United rarest of circumstances. This level of (e) * * *
States)), or as IR–4 (child coming to the evidence is used only when primary, (1) Identity documents described in 8
United States to be adopted) with final secondary and third level evidence is CFR 274a.2(b)(1)(v)(B)(1).
adoption having subsequently unavailable. With the exception of the (i) Driver’s license issued by State or
occurred). affidavit process described in paragraph Territory either with a photograph of the
(c) Third level evidence of citizenship. (d)(5) of this section, the applicant may individual or other identifying
Third level evidence of U.S. citizenship only use fourth level evidence of information of the individual such as
is documentary evidence of satisfactory citizenship if alleging a U.S. place of name, age, sex, race, height, weight, or
reliability that is used when both birth. In addition, a second document eye color.
primary and secondary evidence is establishing identity must be presented (ii) School identification card with a
unavailable. Third level evidence may as described in paragraph (e) of this photograph of the individual.
be used only when the applicant or section. (iii) U.S. military card or draft record.
recipient alleges birth in the U.S. A * * * * * (iv) Identification card issued by the
second document from paragraph (e) of (2) One of the following documents Federal, State, or local government with
this section to establish identity must that show a U.S. place of birth and was the same information included on
also be presented: created at least 5 years before the driver’s licenses.
(1) Extract of a hospital record on application for Medicaid. (For children (v) Military dependent’s identification
hospital letterhead established at the under 16 the document must have been card.
time of the person’s birth that was created near the time of birth or 5 years (vi) Certificate of Degree of Indian
created 5 years before the initial before the date of application.) This Blood, or other American Indian/Alaska
application date and that indicates a document must be one of the following Native Tribal document with a
U.S. place of birth. (For children under and show a U.S. place of birth: photograph or other personal
16 the document must have been (i) Seneca Indian tribal census. identifying information relating to the
created near the time of birth or 5 years (ii) Bureau of Indian Affairs tribal individual. Acceptable if the document
before the date of application.) Do not census records of the Navajo Indians. carries a photograph of the applicant or
accept a souvenir ‘‘birth certificate’’ (iii) U.S. State Vital Statistics official recipient, or has other personal
issued by the hospital. notification of birth registration. identifying information relating to the
individual such as age, weight, height, (g) Special identity rules for disabled citizenship and identity of Medicaid
race, sex, and eye color. individuals in institutional care applicants. Automated capabilities may
(vii) U.S. Coast Guard Merchant facilities. A State may accept an identity fall within the computer matching
Mariner card. affidavit signed under penalty of perjury provisions of the Privacy Act of 1974,
Note to paragraph (e)(1): Exception: Do not by a residential care facility director or and CMS will explore any
accept a voter’s registration card or Canadian administrator on behalf of an implementation issues that may arise
driver’s license as listed in 8 CFR institutionalized individual in the with respect to those requirements.
274a.2(b)(1)(v)(B)(1). CMS does not view facility. States should first pursue all When these capabilities become
these as reliable for identity. other means of verifying identity prior available, States will be required to
* * * * * to accepting an affidavit. The affidavit is match files for individuals who used
(3) At State option, a State may accept not required to be notarized. third or fourth tier documents to verify
three or more documents that together * * * * * citizenship and documents to verify
reasonably corroborate the identity of an (i) Documentary evidence. (1) All identity, and CMS will make available
individual provided such documents documents must be either originals or to States necessary information in this
have not been used to establish the copies certified by the issuing agency. regard. States must ensure that all case
individual’s citizenship and the Uncertified copies, including notarized records within this category will be so
individual submitted second or third copies, shall not be accepted. identified and made available to
tier evidence of citizenship. The State (2) States must maintain copies of conduct these automated matches. CMS
must first ensure that no other evidence citizenship and identification may also require States to match files for
of identity is available to the individual documents in the case record or individuals who used first or second
prior to accepting such documents. electronic data base and make these level documents to verify citizenship as
Such documents must at a minimum copies available for compliance audits. well. CMS may provide further
contain the individual’s name, plus any (3) States may permit applicants and guidance to States with respect to
additional information establishing the recipients to submit such documentary actions required in a case of a negative
individual’s identity. All documents evidence without appearing in person at match.
used must contain consistent a Medicaid office. States may accept
original documents in person, by mail, ■ 9. Section 436.1004 is revised to read
identifying information. These
or by a guardian or authorized as follows:
documents include employer
identification cards, high school and representative. § 436.1004 FFP in expenditures for
college diplomas from accredited (4) If documents are determined to be medical assistance for individuals who
institutions (including general inconsistent with pre-existing have declared United States citizenship or
education and high school equivalency information, are counterfeit, or altered, nationality under section 1137(d) of the Act
diplomas), marriage certificates, divorce States should investigate for potential and with respect to whom the State has not
decrees, and property deeds/titles. fraud and abuse, including but not documented citizenship and identity.
(f) Special identity rules for children. limited to, referral to the appropriate Except for individuals described in
For children under 16, a clinic, doctor, State and Federal law enforcement § 436.406(a)(1)(v), FFP will not be
hospital or school record may be agencies. available to a State with respect to
accepted for purposes of establishing (5) Presentation of documentary expenditures for medical assistance
identity. School records may include evidence of citizenship is a one time furnished to individuals unless the State
nursery or daycare records and report activity; once a person’s citizenship is has obtained satisfactory documentary
cards. If the State accepts such records, documented and recorded in a State evidence of citizenship or national
it must verify them with the issuing database subsequent changes in status, as described in § 436.407 of this
school. If none of the above documents eligibility should not require repeating chapter that complies with the
in the preceding groups are available, an the documentation of citizenship unless requirements of section 1903(x) of the
affidavit may be used. An affidavit is later evidence raises a question of the Act.
only acceptable if it is signed under person’s citizenship. The State need
penalty of perjury by a parent, guardian only check its databases to verify that (Catalog of Federal Domestic Assistance
or caretaker relative (as defined in the the individual already established Program No. 93.778, Medical Assistance
regulations at 45 CFR 233.90(c)(v)) citizenship. Program)
stating the date and place of the birth of (6) CMS requires that as a check Dated: May 7, 2007.
the child and cannot be used if an against fraud, using currently available Leslie V. Norwalk,
affidavit for citizenship was provided. automated capabilities, States will Acting Administrator, Centers for Medicare
The affidavit is not required to be conduct a match of the applicant’s name & Medicaid Services.
notarized. A State may accept an against the corresponding Social
Approved: May 10, 2007.
identity affidavit on behalf of a child Security number that was provided. In
under the age of 18 in instances when addition, in cooperation with other Michael O. Leavitt,
school ID cards and drivers’ licenses are agencies of the Federal government, Secretary.
not available to the individual in that CMS encourages States to use [FR Doc. 07–3291 Filed 7–2–07; 2:56 pm]
area until that age. automated capabilities to verify BILLING CODE 4120–01–P

Rule: Medicaid: Citizenship Documentation Requirements Federal Financial Participation

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Rule: Medicaid: Citizenship Documentation Requirements Federal Financial Participation

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Friday,

July 13, 2007

42 CFR Parts 435, 436, 440, et al.

unreasonable imposition on State eligible for Medicaid. transportation, and financial

Total ...................................................................................................................... 85 90 100 110 125

0 percent .................................................................................................................................................................. 57.0 45.0

card. area until that age. available, States will be required to

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