New Federal Medicaid Rules Require Verification of United States Citizenship

October 1, 2006

Author: Barbara Weiner

On July 12, 2006, the Department of Health and Human Services issued an Interim Final Rule in the Federal Register, implementing an amendment made to the Medicaid statute by the Deficit Reduction Act of 2005 (DRA) that, for the first time, requires United States citizens applying for or renewing Medicaid coverage to provide “satisfactory documentary evidence of their citizenship.”  See 71 Fed.Reg. 39214, et seq.  Medicaid applicants or recipients whose eligibility for Medicaid is based on their receipt of Supplemental Security Income (SSI) benefits and individuals eligible for Medicare are exempted from the requirement to provide documentation of citizenship or identity.

The federal rules set up a complicated hierarchy of U.S. citizenship related documents, consisting of four levels.  The most striking omission from the first or primary level of evidence sufficient to verify U.S. citizenship is the one most commonly relied upon by New York State in the past, namely birth certificates.  According to the new federal rules, birth certificates are a secondary level of evidence and require, as do all documents on the secondary, third or fourth level, satisfactory evidence of identity in addition to evidence of citizenship.

The new federal rules provide that the only acceptable primary evidence of U.S. citizenship (i.e. where no other proof is needed) is:

• a U.S. passport;
• a Certificate of Naturalization, or
• a Certificate of U.S. Citizenship.

See 71 Fed.Reg. 39214, at 39226 - 39228.  The only citizens applying for Medicaid likely to have such primary evidence of citizenship are, ironically, only those who are foreign born.  Few low income, native born citizens are likely to have what is the only primary proof of citizenship available to them, namely, a U.S. passport.1  Thus native born citizens, who invariably will be producing a citizenship document from the second, third or fourth tier, will also have to provide evidence of identity.

Acceptable evidence of identity which must accompany all second, third and fourth level documents, including birth certificates, is limited to:

• a driver’s license (with photograph or physical identifying information);
• school identification card with photograph;
• federal, state or locally issued ID card with the same information as is contained in driver’s licenses;
  U.S. military card or draft record;
• military dependent’s ID card;
• Native American document with photo or personal identifying information;
• Native American tribal document; or
• U.S. Coast Guard Merchant Mariner card.

The Medicaid agency has the option to do a cross match with other government data systems if the agency with which the match is made itself establishes and certifies the true identity of individuals.  (Some examples of such agencies are child support, corrections, motor vehicle or child protective agencies.)

Impact on New York State

New York is one of only a few states that already require documentation of citizenship status for Medicaid applicants.  A General Information System (GIS) message issued by Brian Wing, Deputy Commissioner of the Office of Medicaid Management, on June 29, 2006 reassured New Yorkers that the changes in New York should be minimal since “documentation of satisfactory citizenship or immigration status has long been a requirement for Medicaid eligibility in New York State.”  GIS 06 MA/015; for a link to the GIS, go to http://onlineresources.wnylc.net/pb/docs/06ma015.pdf.

For those applicants or recipients of Medicaid who cannot provide primary documentation, the GIS instructs local districts that they “may and should” continue to accept birth certificates2 and other documents listed in Administrative Directive  04 OMM/ADM-07.  This policy document, entitled “Citizenship and Alien Status Requirements for the Medicaid Program” was issued on October 26, 2004 by the Office of Medicaid Management of the NY State Department of Health (SDOH) under the settlement order in Aliessa v. Novello, 96 N,Y,2d 418 (2001).  It is available at http://onlineresources.wnylc.net/pb/docs/new04adm-7.pdf.

OTDA states that New York’s procedures will not be substantially impacted by the new federal rules even though, unlike past practice, individuals presenting other than a document from the federal list of primary documents must provide additional proof of identity, such as a driver’s license or photo ID.  This includes all those providing a birth certificate as proof of U.S. citizenship.  Furthermore, in compliance with the new federal rules, OTDA has directed local districts to accept only originals or certified copies of documents from the Medicaid applicant or recipient.  With the importing of two of the potentially most onerous federal requirements - the submission of original documents and provision of photo ID’s - into the State’s eligibility verification procedures, it is difficult to believe that the impact of these changes will not be substantial.

Implementation of the New Rules

Local districts have been instructed to follow the new federal rules beginning July 1, 2006.  However, they are not to deny Medicaid to applicants who cannot provide “satisfactory documentary evidence” of citizenship as long as the person is making a good faith effort to obtain the documentation.  Nevertheless, the State has not directed the districts to provide assistance in the interim to applicants who are trying to obtain the necessary proof but who are experiencing long delays in getting the necessary documents through no fault of their own.  Current recipients do remain eligible for assistance “as long as they are undertaking a good faith effort” to provide citizenship documentation.  See GIS 06 MA/015.

OTDA has also directed the local districts to assist applicants in getting the necessary documents if requested.  Actually, the federal rules require the states to assist those individuals who, due to incapacity of mind or body, would be unable to comply with the new rules.  Specifically mentioned are the homeless, amnesia victims, and those mentally or physically impaired who cannot provide this evidence and don’t have anyone to act for them.  See 71 Fed.Reg. 39214, at 39219.

For Medicaid recipients who are re-certifying, the local districts are not to “re-document” citizenship unless the case record lacks “satisfactory documentary evidence.” 

New Opportunities Provided to New Yorkers Under Federal Rules

There are several documents listed by the federal rules, albeit only under the third or fourth levels of acceptable evidence, that have not previously been listed in New York’s rules and may be of some help to those who have had problems in the past documenting citizenship under the State’s existing rules.  Specifically, the federal rules include as evidence of citizenship  “...life, health or other insurance records showing a U.S. place of birth that was created at least 5 years before the date of the Medicaid application.”  See 71 Fed.Reg. 39214, at 39224.  Of course, since these are not “primary” documents, the applicant must also submit evidence of identity. 

In addition, the Medicaid agency can accept, if nothing else is available, “institutional admission papers from a nursing facility, skilled care facility or other institution” created at least five years before the application for Medicaid and showing a U.S. place of birth. Id.  These also have not been included among the documents previously acceptable in New York to verify U.S. citizenship.  In addition, the federal rules also allow for medical (clinic, doctor or hospital) records created at least 5 years before the initial application date for Medicaid that show a U.S. place of birth if no other documentation is available.  Again, evidence of identity is also required.

Use of Relative Affidavits as Verification of U.S. Citizenship

Both New York rules and the new federal rules provide for the submission of affidavits as verification of U.S. citizenship when nothing else is available.  The federal rules caution that affidavits are acceptable only in rare circumstances.  See 71 Fed.Reg. 39214, at 39224.

In New York a “notarized affidavit from a blood relative familiar with the circumstances of the birth, e.g. a parent, sibling or aunt or uncle” has been accepted if accompanied by a “letter of no record” (“proving” the non-existence of a birth certificate.  See Medicaid Reference Guide (MRG) p. 454.  However, the federal rules impose more stringent requirements.  At least two affidavits must be submitted by individuals other than the applicant or recipient.  The affiants must have “personal knowledge of the event(s) establishing the applicant’s or recipient’s claim of citizenship” and at least one of them cannot be a relative of the applicant or recipient.  In addition, under the federal rules the persons submitting affidavits on behalf of the Medicaid applicant must be able to provide proof of their own identity and citizenship.  The applicant (or guardian or representative) must also submit an affidavit explaining why evidence of citizenship does not exist or cannot be obtained.  See 71 Fed.Reg. 39214, at 39224.

Medicaid Coverage for Newborns and Children in Foster Care

Reversing its policy, the federal Centers for Medicare and Medicaid Services (CMS) in the preamble to the new federal rules, state that citizen children born to mothers eligible only for emergency Medicaid should not be deemed eligible for Medicaid.  Specifically, a child “...born in the United States to an illegal alien mother, or 5-year bar qualified alien mother...” must first have a Medicaid application filed on his or her behalf and meet the requirements for citizenship verification in the federal regulations.  See 71 Fed.Reg. 39214, at 39216.

However, New York has confirmed that it, along with a handful of other states, will not change its policy and will continue to deem Medicaid eligibility to all newborns whose mothers received prenatal and postpartum care under the prenatal care assistance program (PCAP), which continues to be available to pregnant women  regardless of citizenship status.  See GIS 06 MA/015.

With respect to children in foster care, who are categorically eligible for Medicaid but have not been excluded in the federal rules from having to prove citizenship, the State has instructed local districts to consider them recipients.  Therefore Medicaid is to be authorized for foster care children who are citizens pending documentation of citizenship. See GIS 06 MA/021.

Some Changes in the Federal Rules May Still be Forthcoming

Though the new federal rules are currently in effect, they are interim rules.  Comments were accepted until August 11, 2006.  Many advocacy organizations have responded and the major revisions urged by these organizations include:

• authorizing the provision of medical assistance pending verification of citizenship upon the applicant or recipient’s declaration of citizenship, with a reasonable opportunity provided for the submission of the required documentation;
• the exemption of children eligible for federal foster care payments from the citizenship documentation requirements;
• acceptance of the agency’s record of payment for the birth of an infant in a U.S. hospital as satisfactory evidence of citizenship and identity;
• permitting an applicant who cannot present any of the documents required to provide what information they have and allowing the state Medicaid agency to certify that it is reasonable, based on what has been provided, to conclude that the individual is a U.S. citizen, and
• eliminate the requirement that documents be originals or certified copies.

Finally, it is important to remember that the federal rules only describe the documentation that must be in the Medicaid recipient’s file in order for New York to receive federal reimbursement.  Nothing prevents New York from providing state funded Medicaid in situations where the individual simply cannot meet the new federal documentation requirements.  Indeed, New York’s constitutional obligation to provide aid to the needy, which includes the provision of medical assistance, may require the State to fill the gaps left by a federal government demonstrably hostile to the needs of the poor and vulnerable members of our community. 

Endnotes

1.  It is estimated that only 34% of Americans over the age of 18 have passports.  The percentage among the poor elderly, disabled, or homeless native born citizens likely to have a passport is obviously considerably less.

2.  The birth certificate must show birth in one of the 50 States; the District of Columbia; Puerto Rico (if born on or after January 13, 1941); Guam; the Virgin Islands of the U.S. (if born on or after January 17, 1917), American Samoa, Swain’s Island or the Northern Mariana Islands (if born after November 4, 1986).  Many of those born in Puerto Rico or the American possessions before the dates indicated will have been collectively naturalized.  See 71 Fed.Reg. 39214, at 39226 [42 C.F.R. §436.407(b)(1)].