Health & Human Services Publishes Final Rule on Verification of Citizenship for Medicaid

August 1, 2007

Author: Barbara Weiner

On July 13, 2007 the Centers for Medicaid and Medicaid Services (CMS) of the Department of Health and Human Services (HHS) published the Final Rule implementing the 2005 Congressionally enacted requirement in the Deficit Reduction Act (DRA) that Medicaid applicants and recipients provide “satisfactory documentary evidence of their citizenship.”  See 72 Fed. Reg. 38662, et seq., published Friday, July 13, 2007.  Prior to the 2005 DRA provisions, attestation of US citizenship had been sufficient. 

Until the 2005 change in law, most states did not require the submission of proof of citizenship status.  However, because New York had always required verification of citizenship status, it has not experienced the Medicaid enrollment declines that many other states have reported with the implementation of these new citizenship verification requirements.  See GAO Report, “States Reported That Citizenship Documentation Requirement Resulted in Enrollment Declines for Eligible Citizens and Posted Administrative Burdens,” June 2007.  Nevertheless, New York is likely to be adversely affected like all other states by the federal requirement that documents be originals or certified copies and the requirement that, in addition to submitting documents evidencing citizenship status, Medicaid applicants must also provide proof of identity unless they present primary evidence of citizenship.  (The new rule creates a hierarchy of second, third and fourth level documents of proof of citizenship.)  Primary evidence is narrowly defined as a US passport, a Certificate of Naturalization or a Certificate of US citizenship.

In October, 2006, we reported on the intricate and complicated set of rules issued on an interim basis by CMS that listed the type of documentary evidence of citizenship that would be acceptable.  See “New Federal Medicaid Rules Require Verification of United States Citizenship,” LSJ October 2006.  Not much has changed in the Final Rule in spite of the over 1400 public comments received by CMS, mostly critical of the extreme complication and unnecessary rigidity of the new rule.  This article will address only those few changes that have been made since the publication of the interim rule.

Medicaid Coverage for Newborns and Children in Foster Care

In the Interim Rule, CMS instituted a new policy that citizen children born to mothers who were without legal status or who were legal residents for less than five years must first have a Medicaid application filed on their behalf and meet the requirements of citizenship verification in the new rule before being eligible to receive Medicaid.  CMS has now abandoned that extremely unpopular position and provides one year of Medicaid eligibility to newborns whose mothers were in receipt of Medicaid at the time of their birth provided she remains eligible for Medicaid (or would remain eligible if she were pregnant) and the child is a member of her household.  See Final Rule 435.117, 72 Fed. Reg. 368662, at 38690.  The impact in New York will be minimal since it was one of the states that refused to implement the earlier policy.  However, as a result of the change, New York will be able to receive federal reimbursement for the Medicaid benefits automatically provided to newborns.

The Final Rule also adds children who are in foster care and who are assisted under Title IV-B of the Social Security Act and individuals who are recipients of foster care maintenance or adoption assistance payments under Title IV-E of the Act to the list of individuals eligible for Medicaid without providing verification of citizenship status.

These exemptions from the citizenship verification requirement are in addition to those groups who had already been exempted under the Interim Rule, including SSI recipients, individuals receiving disability insurance benefits under Title II of the Social Security Act and Medicare recipients.

Third Party Affidavits

The Interim Rule provided for the submission of affidavits as verification of the US citizenship status of a Medicaid applicant if nothing else is available.  If affidavits are used, documents verifying identity must also be submitted.  The affidavits must be based on personal knowledge and only one of the affiants can be a relative.  The affiants must provide verification of their own US citizenship and identity.  The only loosening of these requirements under the Final Rule is that the affidavits do not have to be notarized.  

Expansion of Documents to Verify Citizenship

The list of documents verifying citizenship was expanded to include religious records recorded in the U.S. within three months of birth (this does not include entries in family bibles) and early school records showing a U.S. place of birth.  These are considered third level documents and so cannot be used if second or first level documents are available.  As with all documents not included in the first level, documents establishing identity must also be provided.

In response to several comments pointing out that the Department of State accepts census records for proof of citizenship, CMS added census records as a fourth level document.  Apparently, census records from 1900 through 1950 provide citizenship information.

In a narrowing of the interim rule, the Final Rule clarifies that, in order to qualify as evidence of citizenship, institutional admission papers from a nursing facility, skilled care facility or other institution that indicates a U.S. place of birth must have been created at least 5 years before the initial application date in order to be accepted as evidence of citizenship.

Documents Verifying Identity

Unless an applicant for Medicaid provides a passport, a Certificate of Naturalization or a Certificate of Citizenship, he or she must also provide original or certified copies of documents evidencing identity.  In cases where government identity documents containing a photograph of the individual, like a driver’s license, are not available, the list of alternative documents has been expanded to include high school and college diplomas from accredited institutions (including GED and high school equivalency diplomas), marriage certificates, divorce decrees, property deeds and titles and employee ID cards.  However, these are considered corroborating documents rather than primary evidence of identity and therefore three or more of these types of documents must be provided to prove identity.  CMS clarified that recently expired identity documents may be relied upon as long as there is no reason to believe that the document does not match the individual.

With respect to children, for those under 16 years old, a clinic, hospital or school record may be accepted.  School records may include nursery or daycare records and report cards, but only if verified by the issuing school.  If none of these documents are available, an affidavit on behalf of a child signed by a parent, guardian or caretaker relative stating the date and place of birth of the child can be accepted.  An affidavit may also be accepted in places where school ID cards and drivers licenses are not available to children under 18,.

For purposes of verifying the identity of institutionalized individuals or those in residential care facilities, if no other document is available, the Final Rule clarifies that an identity affidavit by a residential care facility director or administrator on behalf of an institutionalized individual in the facility is acceptable.  Like all affidavits offered to meet the identity and citizenship requirements, it need not be notarized but must be signed under penalty of perjury.

Use of Cross Matches with Records from Other Government Data Bases

In the Final Rule, CMS responds to the requests raised during the public comment period asking for the kinds of data matches that would be acceptable verification in lieu of paper documents.  CMS will permit use of the SAVE system for verification of naturalization but the applicant must still supply a form of identification since SAVE does not maintain photographs.

Generally, CMS will not permit the use of data systems to prove citizenship but they can be used to verify identity.  The databases identified by CMS that could be used for verification of identity include the Child Support programs, PARIS (a database identifying the public benefit an individual receives), Department of Veteran’s Affairs database and the Food Stamp database.  CMS notes that with respect to the Food Stamp database, USDA had issued specific policy guidance subsequent to the imposition of citizenship verification requirements in the Medicaid program, reminding food stamp agencies that the food stamp program only requires attestation of citizenship, not verification, unless citizenship is questionable.

Additional Clarifications in the Final Rule

Conversations with state Medicaid officials indicate that, so far, the interim citizenship verification rules have not had the negative impact in this state that they have had in many other states because New York has always required citizenship verification.  However, New York has never required the submission of original or certified copies and this CMS requirement may well create difficulties here. In addition, the Final Rule contains some “clarifications” that will impact New York as well.  Contrary to the urgent request of many commentators, CMS will not provide federal reimbursement for Medicaid provided to an individual before the citizenship and identity documents required under the new rule are actually submitted.  Furthermore, states are not provided with the flexibility of authorizing “good cause” exceptions to the citizenship and identity verification requirements.  States are required to assist individuals who “due to a physical or mental impairment” are unable to comply with the new requirements.

CMS has also made it clear that federal reimbursement will not be available for Emergency Medicaid or SCHIP provided to Medicaid applicants during the time that they are trying to obtain citizenship and identity documents to provide to the agency.

One final observation about the impact of the rule on the provision of Medicaid to New Yorkers....These federal rules only restrict the availability of federal reimbursement for Medicaid provided to U.S. citizens.  New York has its own obligations under its constitutional mandate to provide aid and care to the needy without the imposition of requirements that have nothing to do with need.  Pursuant to that obligation, New York has been ordered by the courts to provide Medicaid to immigrants who are permanently residing under color of law and to permanent residents in the country for less than five years, even though no federal reimbursement is available for these categories.  Where an individual is unable to provide the documents demanded under the federal rule and there is no real question about his or her citizenship status or identity, New York’s constitutional obligations may well require that Medicaid assistance be provided, regardless of the availability of federal reimbursement.