38662 Federal Register / Vol. 72, No. 134 / Friday, July 13, 2007 / Rules and Regulations 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 435, 436, 440, 441, 457, 

and 483 

[CMS–2257–F] 

RIN 0938–AO51 

Medicaid Program; Citizenship 

Documentation Requirements 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule. 

SUMMARY: This final rule amends 

Medicaid regulations to implement the 

provision of the Deficit Reduction Act 

that requires States to obtain satisfactory 

documentary evidence of an applicant’s 

or recipient’s citizenship and identity in 

order to receive Federal financial 

participation. It also incorporates 

changes made to these requirements 

through section 405(c)(1)(A) of Division 

B of the Tax Relief and Health Care Act 

(TRHCA), Pub. L. 109–432, enacted 

December 20, 2006. This regulation 

provides States with guidance on the 

types of documentary evidence that may 

be accepted, including alternative forms 

of documentary evidence in addition to 

those described in the statute and the 

conditions under which this 

documentary evidence can be accepted 

to establish the applicant’s citizenship. 

DATES: Effective Date: July 13, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Molly Smith (410) 786–8354. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Since enactment of the Immigration 

Reform and Control Act of 1986 (Pub. L. 

99–163, enacted on November 6, 1986), 

Medicaid applicants and recipients have 

been required by section 1137(d) of the 

Social Security Act (the Act) to declare 

under penalty of perjury whether the 

applicant or recipient is a citizen or 

national of the United States, and if not 

a citizen or national, that the individual 

is an alien in a satisfactory immigration 

status. (For purposes of this regulation, 

the term ‘‘citizenship’’ (or reference to 

citizen) includes status as a ‘‘national of 

the United States,’’ as defined in 8 

U.S.C. 1101(a)(22)). Aliens who declare 

they are in a satisfactory immigration 

status have been required by section 

1137(d) of the Act to present 

documentation of satisfactory 

immigration status since the 

declarations of citizenship or 

immigration status were first required. 

Individuals who declared they were 

citizens did not have to do anything else 

under Federal law to support that claim, 

although some States did require 

documentary evidence of this claim. 

Section 6036 of the Deficit Reduction 

Act of 2005 (DRA) (Pub. L. 109–171, 

enacted on February 8, 2006) effectively 

requires that the State obtain 

satisfactory documentation of 

citizenship and identity. Self-attestation 

of citizenship and identity is no longer 

an acceptable practice. The provisions 

of section 6036 of the DRA do not affect 

individuals who have declared they are 

aliens in a satisfactory immigration 

status. As with other Medicaid program 

requirements, States must implement an 

effective process for assuring 

compliance with documentation of 

citizenship and identity in order to 

obtain Federal matching funds, and 

effective compliance will be part of 

Medicaid program integrity monitoring. 

Section 6036 of the DRA created a 

new section 1903(x) of the Act that 

prohibits Federal financial participation 

(FFP) in State expenditures for medical 

assistance with respect to an individual 

who has declared under section 

1137(d)(1)(A) of the Act to be a citizen 

or national of the United States unless 

the State obtains satisfactory 

documentary evidence of citizenship 

and identity or a statutory exemption 

applies. For new Medicaid applicants or 

for currently enrolled individuals, the 

State must obtain evidence of 

citizenship and identity at the time of 

application or at the time of the first 

redetermination occurring on or after 

July 1, 2006. Presentation of 

documentary evidence of citizenship 

and identity is a one-time activity; once 

a person’s citizenship and identity have 

been documented and recorded in the 

case file or database, subsequent 

changes in eligibility should not require 

repeating the documentation unless 

later evidence raises a question of a 

person’s citizenship or identity. The 

State need only check its databases to 

verify that the individual already 

established his or her citizenship and 

identity. 

CMS continues to support States 

through ongoing outreach and technical 

assistance. CMS is monitoring States for 

compliance and has not initiated any 

action to disallow FFP. 

Basic Features of the Provision 

On July 12, 2006, we published in the 

Federal Register the interim final rule 

titled ‘‘Medicaid Program; Citizenship 

Documentation Requirements’’ (CMS– 

2257–IFC) (71 FR 39214). In this interim 

final rule with comment period, we 

outlined the policy and guidelines 

States are required to follow to receive 

Federal financial participation (FFP) for 

medical care expenditures for Medicaideligible individuals with respect to the 

new section 1903(x) of the Act. We 

explained the types of documents that 

may be used including additional 

documents that may be accepted. We 

established a hierarchy of reliability of 

citizenship documents and specified 

when a document of lesser reliability 

may be accepted by the State. 

Implementation Conditions/ 

Considerations 

As we stated in the interim final rule 

with comment period, the State must 

obtain satisfactory documentary 

evidence of citizenship and identity for 

all Medicaid applicants who have 

declared that they are citizens or 

nationals of the United States. This 

requirement applies to all recipients 

who declared at the time of application 

to be citizens or nationals of the United 

States unless an exemption applies. 

Section 1903(x)(2) of the Act provides 

several exemptions. 

In the interim final rule, we discussed 

a clear drafting error in section 6036 of 

the DRA, under which Congress 

provided an exemption such that aliens 

would not be required to present 

satisfactory documentary evidence of 

citizenship and identity in certain 

circumstances. (See 71 FR 39215 for a 

full discussion of the issue.) However, 

since publication of the DRA, section 

405(c)(1)(A) of Division B of the TRHCA 

corrected the error by replacing the 

word ‘‘alien’’ with ‘‘individual declaring 

to be a citizen or national of the United 

States.’’ Congress made this correction 

effective as if included in the DRA. 

This correction does not alter the 

policy as described in the interim final 

rule. Therefore, the policy continues to 

be that individuals declaring to be 

citizens or nationals of the United States 

who are receiving SSI or who are 

enrolled in any part of Medicare are 

exempt from these requirements. 

The TRHCA also amended section 

1903(x)(2) to exempt additional groups 

of individuals from the provisions 

requiring presentation of satisfactory 

documentary evidence of citizenship 

and identity. These groups are: 

• All individuals receiving SSI (the 

DRA only exempted individuals 

receiving Medicaid by virtue of 

receiving SSI); 

• Individuals receiving disability 

insurance benefits under section 223 of 

the Act or monthly benefits under 

section 202 of the Act based on such 

individual’s disability (as defined in 

section 223(d) of the Act); and 


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• Individuals who are in foster care 

and who are assisted under Title IV–B 

of the Act and individuals who are 

recipients of foster care maintenance or 

adoption assistance payments under 

Title IV–E of the Act. 

The above changes were made 

effective as if included in the DRA. CMS 

sent guidance to the States regarding 

these changes in a State Medicaid 

Director letter dated February 22, 2007. 

The TRHCA corrected another error 

included in section 6036 of the DRA by 

replacing the cross-reference to the nonexistent ‘‘subsection (i)(23)’’ with the 

relevant subsection (i)(22). This 

correction does not change the policy as 

described in the interim final rule. 

In addition to the above exemptions, 

the statute gives the Secretary authority 

to exempt individuals who declare 

themselves to be citizens or nationals 

from the documentation requirements if 

satisfactory documentary evidence of 

citizenship or nationality has been 

previously presented. If we become 

aware of an appropriate instance to 

exercise this authority, we will do so by 

regulation. 

Individuals who are receiving 

Medicaid benefits under a section 1115 

demonstration project approved under 

title XI authority are subject to this 

provision. This includes individuals 

who are treated as eligible for matching 

purposes by virtue of the authority 

granted under section 1115(a)(2) of the 

Act (expansion populations), including 

individuals covered under section 1115 

demonstrations and family planning 

demonstrations. 

Under section 1902(e)(4) of the Act 

and 42 CFR 435.117, a Medicaid agency 

must provide Medicaid eligibility to a 

United States citizen child born to a 

woman who has applied for, has been 

determined eligible and is receiving 

Medicaid on the date of the child’s 

birth. We discuss CMS policy with 

respect to this population in more detail 

in the Analysis of and Responses to 

Public Comment section below. 

Individuals who receive Medicaid 

because of a determination by a 

qualified provider, or entity, under 

sections 1920, 1920A, or 1920B of the 

Act (presumptive eligibility) are not 

subject to the documentation 

requirements until they file an 

application and declare on the 

application that they are citizens or 

nationals. States may receive FFP for the 

services provided to these individuals 

notwithstanding any other provision of 

title XIX, including the requirements of 

section 1903(x) of the Act. However, 

when these individuals file an 

application for Medicaid and declare on 

the application that they are citizens or 

nationals, these regulations would apply 

for periods in which they receive 

services as eligible for Medicaid. 

At the time of application or 

redetermination, the State must give an 

applicant or recipient who has signed a 

declaration required by section 1137(d) 

of the Act and claims to be a citizen a 

reasonable opportunity to present 

documents establishing U.S. citizenship 

or nationality and identity. Individuals 

who are Medicaid recipients will 

remain eligible until determined 

ineligible as required by Federal 

regulations at § 435.930. A 

determination terminating eligibility 

may be made after the recipient has 

been given a reasonable opportunity to 

present evidence of citizenship or the 

State determines the individual has not 

made a good faith effort to present 

satisfactory documentary evidence of 

citizenship. By contrast, applicants for 

Medicaid (who are not currently 

receiving Medicaid) should not be made 

eligible until they have presented the 

required evidence. This is no different 

than current policy regarding 

information which an applicant must 

submit in order for the State to make an 

eligibility determination. 

As discussed in the interim final rule 

with comment period, the ‘‘reasonable 

opportunity period’’ should be 

consistent with the State’s 

administrative requirements such that 

the State does not exceed the time limits 

established in Federal regulations for 

timely determination of eligibility in 

§ 435.911. The regulations permit 

exceptions from the time limits when an 

applicant or recipient in good faith tries 

to present documentation, but is unable 

to do so because the documents are not 

available or a third party fails to reply 

to a timely request. In these cases, the 

State must assist the individual in 

securing evidence of citizenship. 

States are permitted to accept 

documentary evidence without 

requiring the applicant or recipient to 

appear in person. States may accept 

original documents in person, by mail, 

or by a guardian or authorized 

representative. States, at their option, 

may also use matches with vital 

statistics agencies in place of a birth 

certificate to assist applicants or 

recipients to meet the requirements of 

the law. 

Although States may continue to use 

application procedures that do not 

include an interview with an applicant, 

the States must assure that the 

information received about the identity 

and citizenship of the applicant or 

recipient is accurate. 

All documents must be either 

originals or copies certified by the 

issuing agency. Uncertified copies or 

notarized copies will not be accepted. 

The enactment of section 6036 of the 

DRA does not change any of our policies 

regarding the taking and processing of 

applications for Medicaid except the 

new requirement for presentation of 

documentary evidence of citizenship. 

Before the enactment of section 6036 of 

the DRA, States, although not required 

by law or regulation to document 

citizenship, were required to assure that 

eligibility determinations were accurate. 

Therefore, most States would request 

documentation of citizenship only if the 

applicant’s citizenship was believed to 

be questionable. Likewise, the 

regulations at § 435.902, § 435.910(e), 

§ 435.912, § 435.919 and § 435.920 

continue to apply when securing 

documentary evidence of citizenship 

and identity from applicants and 

recipients. Thus, States are not obligated 

to make or keep eligible any individual 

who fails to cooperate with the 

requirement to present documentary 

evidence of citizenship and identity. 

Failure to provide this information is no 

different than the failure to provide any 

other information which is material to 

the eligibility determination. 

An applicant or recipient who fails to 

cooperate with the State in presenting 

documentary evidence of citizenship 

may be denied or terminated. Failure to 

cooperate consists of failure by an 

applicant or recipient, or that 

individual’s representative, after being 

notified, to present the required 

evidence or explain why it is not 

possible to present such evidence of 

citizenship or identity. Notice and 

appeal rights must be given to the 

applicant or recipient if the State denies 

or terminates an individual for failure to 

cooperate with the requirement to 

provide documentary evidence of 

citizenship or identity in accordance 

with the regulations at § 431.210 or 

§ 431.211 as appropriate. 

Federal Financial Participation (FFP) for 

Administrative Expenditures 

FFP is available for State expenditures 

to carry out the provisions of section 

1903(x) of the Act at the match rate for 

program administration. 

Compliance 

FFP is not available for State 

expenditures for medical assistance if a 

State does not require applicants and 

recipients to provide satisfactory 

documentary evidence of citizenship, or 

does not secure this documentary 

evidence which includes the 

responsibility to accept only authentic 

documents on or after July 1, 2006. As 

part of the standard review and audit 


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38664 Federal Register / Vol. 72, No. 134 / Friday, July 13, 2007 / Rules and Regulations 

procedures under subpart C of 42 CFR 

Part 430, we will review 

implementation of section 6036 of the 

DRA to determine whether claims for 

FFP for services provided to citizens 

should be deferred or disallowed. As 

part of these reviews, we will monitor 

the extent to which the State is 

obtaining the most reliable evidence. 

In the conduct of determining or redetermining eligibility for Medicaid, 

State Medicaid agencies may uncover 

instances of suspected fraud. In these 

instances, State agencies would refer 

cases of suspected fraud to an 

appropriate enforcement agency 

according to the requirements of 

§ 455.13(c) and § 455.15(b). 

HHS recognizes that in cases where 

the appropriate enforcement agency is a 

Federal entity, the Privacy Act of 1974 

applies to United States citizens and 

permanent resident aliens, and privacy 

protections afforded by law and in 

accordance with Federal policy will be 

addressed. 

II. Provisions of the Interim Final Rule 

With Comment Period 

We amended 42 CFR chapter IV as 

follows: 

We amended § 435.406 and § 436.406 

to require that States obtain a 

Declaration signed under penalty of 

perjury from every applicant for 

Medicaid that the applicant is a citizen 

or national of the United States or an 

alien in a satisfactory immigration 

status, and require the individual to 

provide documentary evidence to verify 

the declaration. The types and forms of 

acceptable documentation of citizenship 

are specified in § 435.407 and § 436.407. 

The requirement to sign a Declaration of 

citizenship or satisfactory immigration 

status was added by the Immigration 

Reform and Control Act of 1986 and was 

effective upon enactment. 

At the time section 1137(d) of the Act 

was enacted, aliens declaring 

themselves to be in a satisfactory 

immigration status were the only 

applicants required to present to the 

State documentary evidence of 

satisfactory status. Beginning in 1987, 

States were also required to verify the 

documents submitted by aliens claiming 

satisfactory immigration status with the 

Immigration and Naturalization Service 

(INS) (now the U.S. Citizenship and 

Immigration Services in the Department 

of Homeland Security) using the 

Systematic Alien Verification for 

Entitlements (SAVE) Program. 

The regulation requires the State to 

also obtain satisfactory documentary 

evidence establishing identity and 

citizenship from all Medicaid applicants 

who, under the DRA amendments, are 

required to file the Declaration. In 

addition, for current Medicaid 

recipients, States are required to obtain 

satisfactory documentary evidence 

establishing citizenship and identity at 

the time of the first redetermination of 

eligibility that occurs on or after July 1, 

2006. 

We also amended § 435.406 and 

§ 436.406 to define ‘‘Satisfactory 

immigration status as a Qualified Alien’’

as described in 8 U.S.C. 1641(b). We 

amended § 435.406 and § 436.406 to 

remove paragraphs (b) and (d), as well 

as paragraphs (a)(3) and (a)(4). These 

provisions have ceased to have any 

force or effect because the eligibility 

status provided to individuals who 

received Lawful Temporary Residence 

under the Immigration and Reform and 

Control Act (IRCA) of 1986 has expired 

or been superseded by the terms of the 

Personal Responsibility and Work 

Opportunity Reconciliation Act 

(PRWORA) (Pub. L. 104–193, enacted 

on August 22, 1996). Lawful Temporary 

Resident Status was granted for a 

limited time to individuals who applied 

for the legalization authorized by IRCA. 

Most individuals receiving this status 

would have achieved lawful permanent 

resident status by 1996 when PRWORA 

was enacted. PRWORA declared that 

‘‘notwithstanding any other law’’

individuals who did not have status as 

a qualified alien as defined in 8 U.S.C. 

1641 are not eligible for any Federal 

public benefit. That term includes 

Medicaid. 

We added a new § 435.407 and a new 

§ 436.407 describing the documents and 

processes States may use to document 

an applicant’s or recipient’s declaration 

that the individual is a citizen of the 

United States. The documents include 

all the documents listed in section 6036 

of the DRA plus additional documents. 

We noted that the State Medicaid 

agency determinations of citizenship are 

not binding on other Federal or State 

agencies for any other purposes. We 

employed a hierarchy of reliability 

when securing documentary evidence of 

citizenship and identity to assure that 

evidence submitted is the most reliable 

evidence available to establish a claim 

of citizenship and identity. To establish 

U.S. citizenship, the document must 

show: a U.S. place of birth, or that the 

person is a U.S. citizen. Children born 

in the U.S. to foreign sovereigns or 

diplomatic officers are not U.S. citizens 

because they are not subject to the 

jurisdiction of the United States. To 

establish identity, a document must 

show the most current identifying 

information that relates the presenting 

individual to the person named on the 

document. 

We divided evidence of citizenship 

into groups based on the respective 

reliability of the evidence. The first 

group of documents is described in 

section 6036 of the DRA and is specified 

in § 435.407(a) and § 436.407(a) as 

primary evidence of citizenship and 

identity because it is established by 

statute. If an individual presents 

documents from this section, no other 

information is required. Primary 

evidence of citizenship and identity is 

documentary evidence of the highest 

reliability that conclusively establishes 

that the person is a U.S. citizen. The 

statute provides that these documents 

can be used to establish both the 

citizenship and identity of an 

individual. In general, a State should 

attempt to obtain primary evidence of 

citizenship and identity before using 

secondary evidence. We permitted 

States to use the State Data Exchange 

(SDX) database provided by SSA to all 

States that reflects actions taken by SSA 

to determine eligibility of applicants for 

the Supplemental Security Income (SSI) 

program. Since all individuals in receipt 

of SSI are now exempt from these 

requirements, this provision is 

irrelevant and has been removed from 

the regulations text. However, States 

may still use the SDX to confirm 

whether an individual is exempt from 

the provision based on receipt of SSI. 

Similarly, State may use SSA’s 

Beneficiary Data Exchange (BENDEX) 

data base to confirm whether an 

individual is exempt from the provision 

based on receipt of SSDI. 

Secondary Evidence of Citizenship 

In the interim final rule with 

comment period, we stated that 

secondary evidence of citizenship is 

documentary evidence of satisfactory 

reliability that is used when primary 

evidence of citizenship is not available. 

In addition, the statute requires that a 

second document establishing identity 

must also be presented. See § 435.407(e) 

and § 436.407(e). Available evidence is 

evidence that exists and can be obtained 

within a State’s reasonable opportunity 

period. The State must accept any of the 

documents listed in paragraph (b) if the 

document meets the listed criteria and 

there is nothing indicating the person is 

not a U.S. citizen. We stated that 

applicants or recipients born outside the 

U.S. who were not citizens at birth must 

submit a document listed under primary 

evidence of U.S. citizenship, but that 

children born outside the United States 

and adopted by U.S. citizens may 

establish citizenship using the process 

established by the Child Citizenship Act 

of 2000 (Pub. L. 106–395, enacted on 

October 30, 2000). However, as we 


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explain in further detail in the response 

to comments below, States may now 

verify citizenship for naturalized 

citizens using the Department of 

Homeland Security’s Systematic Alien 

Verification for Entitlements (SAVE) 

Program, subject to DHS SAVE program 

requirements, including but not limited 

to a Memorandum of Understanding 

(MOU) authorizing the use of SAVE for 

naturalization verification purposes. 

This data verification will be considered 

secondary evidence of citizenship and 

must be accompanied by a document to 

verify the individual’s identity. 

Therefore, it is appropriate to permit 

individuals born outside the U.S. who 

were not citizens at birth to submit 

either primary or secondary evidence of 

citizenship. We have also modified the 

affidavit process to permit naturalized 

citizens to submit an affidavit verifying 

their citizenship status in rare 

circumstances. The remaining 

documents in the third and fourth tiers 

will not be applicable to naturalized 

citizens because they require that the 

document show a U.S. place of birth. 

Similarly, citizens born in the U.S. will 

not be able to use several documents 

such as the Certificate of Naturalization 

or a data verification with the SAVE 

Program. 

The second group of documents 

consists of a mix of documents listed in 

section 6036 of the DRA and additional 

documents that only establish 

citizenship. This group includes a U.S. 

birth certificate. The birth record 

document may be recorded by the State, 

Commonwealth, Territory or local 

jurisdiction. It must have been recorded 

before the person was 5 years of age. A 

delayed birth record document that is 

recorded at or after 5 years of age is 

considered fourth level evidence of 

citizenship. 

If the document shows the individual 

was born in Puerto Rico, the Virgin 

Islands of the U.S., or the Northern 

Mariana Islands before these areas 

became part of the U.S., the individual 

may be a collectively naturalized 

citizen. Collective naturalization 

occurred on certain dates for each of the 

territories and can be found in the July 

12, 2006 interim final rule with 

comment period. 

Third Level of Evidence of Citizenship 

In the July 12, 2006 interim final rule 

with comment period, we stated that 

third level evidence of U.S. citizenship 

is documentary evidence of satisfactory 

reliability that is used when neither 

primary nor secondary evidence of 

citizenship is available, and the 

applicant or recipient alleges birth in 

the U.S. In addition, a second document 

establishing identity must be presented 

as described in paragraph (e), ‘‘Evidence 

of identity.’’

A State must accept any of the 

documents listed in paragraph (c) as 

third level evidence of U.S. citizenship 

if the document meets the listed criteria, 

the applicant alleges birth in the U.S., 

and there is nothing indicating the 

person is not a U.S. citizen (for example, 

lost U.S. citizenship). 

Third level evidence is generally a 

non-government document established 

for a reason other than to establish U.S. 

citizenship and showing a U.S. place of 

birth. The place of birth on the nongovernment document and the 

application must be consistent. 

Fourth Level of Evidence of Citizenship 

In the interim final rule with 

comment period, we stated that fourth 

level evidence of U.S. citizenship is 

documentary evidence of the lowest 

reliability. Fourth level evidence should 

only be used in the rarest of 

circumstances. This level of evidence is 

used only when primary, secondary and 

third level evidence are not available. In 

addition, a second document 

establishing identity must be presented 

as described in paragraph (e), ‘‘Evidence 

of identity.’’ Available evidence is 

evidence that can be obtained within 

the State’s reasonable opportunity 

period as discussed below. 

A State must accept any of the 

documents listed in paragraph (d) as 

fourth level evidence of U.S. citizenship 

if the document meets the listed criteria, 

the applicant alleges U.S. citizenship, 

and there is nothing indicating the 

person is not a U.S. citizen (for example, 

lost U.S. citizenship). With the 

exception of the affidavit, fourth level 

evidence consists of documents 

established for a reason other than to 

establish U.S. citizenship that show a 

U.S. place of birth. The U.S. place of 

birth on the document and the 

application must be consistent. The 

written affidavit described in this 

section may be used only when the 

State is unable to secure evidence of 

citizenship listed in any other groups. 

In the interim final rule with 

comment period, we also explained the 

affidavit process. We stated that 

affidavits should ONLY be used in rare 

circumstances and by individuals 

declaring to have been born in the 

United States. As discussed in more 

detail below in the response to 

comments, we have modified the policy 

with respect to naturalized citizens. We 

have modified the policy to permit 

naturalized citizens to utilize the 

affidavit process. While we believe that 

electronic verifications with the SAVE 

Program will eliminate the need for 

many naturalized citizens to utilize the 

affidavit process, we believe that such 

individuals should have a recourse 

available to them when their 

information cannot be located in the 

SAVE database. States should recognize 

that the inability of SAVE to verify U.S. 

citizenship does not necessarily mean 

that the individual is not a U.S. citizen; 

SAVE may be unable to determine that 

certain naturalized citizens, including 

those who naturalized more than thirty 

years ago, those who changed their 

names, or those who no longer 

remember their alien registration 

number, are naturalized citizens. In 

such cases, States should explore other 

alternatives included in these 

regulations to determining citizenship. 

If the documentation requirement 

needs to be met through affidavits, the 

following rules apply: There must be at 

least two affidavits by individuals who 

have personal knowledge of the event(s) 

establishing the applicant’s or 

recipient’s claim of citizenship (the two 

affidavits could be combined in a joint 

affidavit). At least one of the individuals 

making the affidavit cannot be related to 

the applicant or recipient and cannot be 

the applicant or recipient. In order for 

the affidavit to be acceptable, the 

persons making them must be able to 

provide proof of their own citizenship 

and identity. If the individual(s) making 

the affidavit has (have) information 

which explains why documentary 

evidence establishing the applicant’s 

claim or citizenship is not available, the 

affidavit should contain this 

information as well. The State must 

obtain a separate affidavit from the 

applicant/recipient or other 

knowledgeable individual (guardian or 

representative) explaining why the 

evidence is unavailable. The affidavits 

must be signed under penalty of perjury. 

We added a paragraph (e) that 

consists of documents establishing 

identity. These are a mix of documents 

included in section 6036 of the DRA as 

evidence of identity, such as drivers’

licenses and State identity cards. It also 

includes Native American Tribal 

enrollment documents, such as the 

Certificate of Degree of Indian Blood. 

These documents, when coupled with 

satisfactory documentary evidence of 

citizenship from lists (b) through (d), 

meet the statutory requirements of 

section 6036 of the DRA. 

We included a paragraph (f) that 

describes special rules for individuals 

under the age of 16. Because children 

often do not have identification 

documents with photographs and a 

child’s appearance changes significantly 

until adulthood, we permit parents or 


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38666 Federal Register / Vol. 72, No. 134 / Friday, July 13, 2007 / Rules and Regulations 

guardians to sign an affidavit as to the 

identity of the child. This affidavit does 

not establish citizenship and should not 

be confused with the affidavit permitted 

in rare situations to establish 

citizenship. 

In the final regulations we added a 

new paragraph (g) that describes the use 

of identity affidavits for disabled 

individuals in residential care facilities. 

We also added a new paragraph (h) 

(formerly (g)) that describes rules for 

States to address special populations 

who need additional assistance. For 

example, if an individual is homeless, 

an amnesia victim, mentally impaired, 

or physically incapacitated and lacks 

someone who can act for the individual, 

and cannot provide evidence of U.S. 

citizenship or identity, the State must 

assist the applicant or recipient to 

document U.S. citizenship and identity. 

We added a paragraph (i) (formerly 

(h)) that describes documentary 

evidence. We specified that the State 

can only review originals or copies 

certified by the issuing agency. Copies 

or notarized copies may not be accepted 

for submission. The State, however, 

must keep copies of documentation for 

its files. States must maintain copies in 

the case record or its database. The 

copies maintained in the case file may 

be electronic records of matches, or 

other electronic methods of storing 

information. 

Moreover, we specified that 

individuals may submit documents by 

mail or other means without appearing 

in person to submit the documents. If, 

however, the documents submitted 

appear inconsistent with pre-existing 

information, are counterfeit or altered, 

States should investigate the matter for 

potential fraud and abuse. States are 

encouraged to utilize cross matches and 

other fraud prevention techniques to 

ensure identity is confirmed. 

We specified in paragraph (j) 

(formerly (i)) that once a person’s 

citizenship is documented and recorded 

in the individual’s permanent case file, 

subsequent changes in eligibility should 

not ordinarily require repeating the 

documentation of citizenship unless 

later evidence raises a question of the 

person’s citizenship, or there is a gap of 

more than 3 years between the 

individual’s last period of eligibility and 

a subsequent application for Medicaid. 

We use a record retention period of 3 

years throughout the Medicaid program 

as provided in 45 CFR 74.53. To require 

a longer retention period would be an 

unreasonable imposition on State 

resources. 

Lastly, in paragraph (k) (formerly (j)), 

we described the reasonable 

opportunity to submit satisfactory 

documentary evidence of citizenship 

and identity. We specified that a 

reasonable opportunity must meet the 

competing goals of providing sufficient 

time for applicants or recipients to 

secure documentary evidence and the 

requirements placed on States to 

determine, or redetermine eligibility 

promptly. These goals derive from 

sections 1902(a)(19) and 1902(a)(8) of 

the Act respectively. For example, 

States may use the reasonable period 

they provide to all applicants and 

recipients claiming satisfactory 

immigration on the Declaration required 

by section 1137(d) of the Act. 

We solicited comments and 

suggestions on several areas of the new 

regulations. We asked the public to 

identify additional documents that are a 

reliable form of evidence of citizenship 

or a reliable form of identity that have 

not been included in this regulation. We 

also solicited comments as to whether 

the number of documents accepted for 

proof of citizenship and identity should 

be limited. Finally, we solicited 

comments as to whether individuals 

would have difficulty proving 

citizenship and identity if only primary 

or secondary level documents were 

permitted. Many commenters responded 

to this request. Our responses and final 

policies are included in this preamble. 

III. Analysis of and Responses to Public 

Comment 

We received over 1,400 timely items 

of correspondence that raised many 

different issues. Many commenters 

represented State agencies, medical 

societies, advocacy groups, hospital 

associations, and law firms. The 

remaining comments were from private 

citizens. A summary of the major issues 

and our responses follow: 

Comment: Many commenters 

acknowledged their agreement with the 

requirement that only citizens and 

specific immigrant populations be 

eligible for Federal public benefits, 

including Medicaid. However, one 

commenter requested that CMS clarify 

that the policies set forth in the July 12, 

2006 interim final rule did not change 

Medicaid-eligibility requirements but 

rather added a requirement that States 

verify citizenship. The commenter 

noted that he has witnessed significant 

confusion within the immigrant 

community. He stated that many noncitizen Medicaid recipients who fall 

into one of the eligible immigration 

statuses believe that they are no longer 

eligible for Medicaid. 

Response: We agree with the 

commenter. The rule did not change 

Medicaid eligibility requirements. As 

we stated in the interim final rule with 

comment period, this new provision 

effectively requires that the State obtain 

satisfactory documentation of a 

declaration of citizenship (see 71 FR 

39215). 

We noted from several of the 

commenters’ letters that many 

individuals are unclear about whether 

these new requirements apply only to 

citizens or to citizens and individuals in 

a satisfactory immigration status. We 

would like to clarify that these 

requirements only impact individuals 

who declare themselves to be U.S. 

citizens. Individuals who declare 

themselves to be aliens in satisfactory 

immigration status follow the 

procedures under § 435.406(a)(2). 

Comment: Many commenters 

suggested that CMS revise the 

regulations to permit applicants and 

recipients to submit copies of the 

required documents. The commenters 

noted that it is often difficult, 

expensive, and time-consuming to get 

originals or certified copies of many of 

the required documents. One 

commenter noted that individuals 

would not be able to mail in certain 

documents. The commenter gave the 

example that an individual could not 

mail in a driver’s license and continue 

to legally drive. In addition, many 

commenters expressed concern that the 

process of procuring original documents 

would be exceptionally difficult for 

semi-literate and non-English speaking 

applicants, potentially resulting in 

many eligible individuals choosing not 

to apply or reapply for Medicaid. 

One commenter stated that requiring 

originals or certified copies violates the 

2006 edition of the Federal Civil 

Judicial Procedure and Rules, which 

states that duplicates are admissible to 

the same extent as an original unless 

there is a genuine question raised as to 

the authenticity of the original. 

The commenters also stated that 

requiring original documents 

contradicts CMS’ stated position that 

States should ease application processes 

by allowing and encouraging mail- and 

phone-in applications. Most 

commenters noted that if required to 

submit original documents, applicants 

or recipients would make unnecessary 

visits to the State Medicaid Agency 

office to reduce the risk of losing 

original documents in the mail or 

during the handling process. The 

commenters noted that these trips could 

be difficult for applicants and recipients 

to make due to employment, 

transportation, and financial 

constraints. Several commenters 

remarked that this was of particular 

concern in States with large rural areas 

where many applicants and recipients 


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live exceptionally far distances from any 

State Medicaid office. The commenters 

stated this would be an unnecessary 

burden and one that could be avoided 

by permitting individuals to submit 

copies of the necessary documents. The 

commenters suggested giving eligibility 

workers the option of requiring original 

versions of the documents if they 

believe the copies submitted are 

questionable. 

In contrast, one commenter stated that 

it is important that documents be 

originals or copies certified by the 

issuing agency. The commenter stated 

that originals and certified copies better 

ensure an applicant’s citizenship 

because these documents are more 

difficult to falsify. 

Response: We understand from the 

commenters that requiring applicants 

and recipients to submit original or 

certified copies of documents is more 

cumbersome than accepting copies. 

However, we do not agree that this 

additional burden outweighs the 

importance of States being able to verify 

that these documents are valid. We note 

that it is easier for an individual to 

falsely manufacture a document if it is 

not required to come from the issuing 

agency, and therefore, requiring 

originals or certified copies helps 

protect the integrity of the Medicaid 

program. In addition, we note that 

Medicaid coverage represents a value of 

thousands of dollars for a covered 

family. We do not believe the burden 

described by the commenters is 

unreasonable for determining eligibility 

for such a benefit. 

In addition, Federal agencies 

generally require original or certified 

copies of documents to establish 

eligibility for benefits. For instance, the 

Social Security Administration requires 

original documents or certified copies 

prior to establishing eligibility for 

benefits (see GN 00301.015 Acceptance 

of Evidence of the SSA’s Program 

Operations Manual System (POMS)); the 

Department of State requires original 

documents or certified copies prior to 

issuing a passport. 

While we recognize that many 

individuals are hesitant to submit these 

documents through the mail, we note 

that they are still permitted to submit 

them in person to be photocopied by the 

State Medicaid Agency. State Medicaid 

Agencies often outstation workers to 

various points in the community, such 

as in hospitals and clinics. These 

eligibility workers are permitted to 

accept citizenship and identity 

documentation which they can then 

send to the State for approval. In 

addition, States are encouraged to 

utilize electronic data matching, which 

may obviate the need for an applicant/ 

recipient to submit paper 

documentation. 

In response to the commenter who 

stated that this requirement violates the 

Federal Civil Judicial Procedure and 

Rules, we are not certain whether the 

commenter was referring to the Federal 

Rules of Civil Procedure or the Federal 

Rules of Evidence. In any case, both sets 

of rules apply to courts of law and are 

not applicable in this instance. 

Comment: Many commenters agreed 

with CMS’ policy to allow States to 

cross-match data on public benefit 

recipients. Some commenters requested 

that CMS delineate the process by 

which an individual who has already 

provided proof of citizenship in one 

State should be precluded from 

providing this information again in 

another State. 

Response: Ultimately, each State is 

responsible for having verified the 

citizenship of individuals receiving 

coverage under its State plan. In keeping 

with current policy for applications, 

when a person moves to another State, 

he or she must submit an application for 

Medicaid in that State and meet all 

eligibility requirements. States may 

establish partnerships with each other 

that allow them to share citizenship 

data. However, States must be able to 

produce a copy, electronic copy or other 

conclusive evidence of the original 

documentation used to determine an 

individual’s citizenship. Therefore, if a 

State accepts evidence of citizenship or 

identity from another State, it should 

request a copy or electronic copy of the 

documentation reviewed by another 

State to keep in its own files. We note 

that a determination made by one State 

is not binding on another. Each State is 

responsible for the accuracy of its 

eligibility determinations. If a State is 

not confident that the information 

provided by another State is accurate, it 

must request that the individual 

resubmit the necessary documentation. 

Comment: Several commenters 

recommended that CMS work with 

States to establish an electronic system 

to record and cross-check citizenship 

information. One commenter requested 

that this system be available via the 

internet. The commenters also requested 

that CMS not require States to print 

paper copies of electronic matches in 

order to minimize the burden of creating 

and maintaining additional paperwork. 

One commenter also stressed that CMS 

must ensure privacy and confidentiality 

protections to applicants/recipients. 

Response: While we are very 

interested in this suggestion, we 

currently do not have such a system 

developed for use. However, several 

Federal agencies, including CMS, are 

working with the National Association 

for Public Health Statistics and 

Information Systems (NAPHSIS) on the 

Electronic Verification of Vital Events 

(EVVE) databank. EVVE contains birth 

record information for all participating 

States. States would be able to 

electronically verify birth information 

for births in their own State and within 

other States. If and when this databank 

becomes available, we will consider its 

application to these requirements. In the 

meantime, we strongly encourage States 

to develop methods of working together 

to achieve efficient, effective ways of 

verifying citizenship and identity. 

In response to the request that CMS 

not mandate States to print paper copies 

of electronic matches, we emphasize 

that while States must be able to 

produce a copy of the documentation 

used to determine an individual’s 

citizenship, the copy may be in 

electronic format. 

We also note that applicants and 

recipients will receive all privacy and 

confidentiality protections required 

under the law (see 42 CFR 431 subpart 

F). 

Comment: Several commenters 

requested that CMS make the following 

databases available for data matches or 

verifications: Public Assistance 

Recipient Information System (PARIS), 

U.S. Department of Veterans Affairs data 

files, Social Security Administration’s 

SS5 database (Numident), SAVE 

database, Indian Health Services 

databases, and the State Attorney 

General’s databases. One commenter 

requested that CMS permit States to use 

any governmental database that verifies 

citizenship to match against a birth 

certificate in order to verify citizenship. 

Several commenters suggested that 

CMS require State Medicaid agencies to 

cross-match data with the State mental 

health authority since individuals with 

serious mental illnesses may have 

difficulty obtaining the necessary 

documents. One commenter requested 

that CMS allow States to verify 

citizenship by cross-referencing with 

State agencies that handle food stamps, 

child support, corrections, juvenile 

detention, motor vehicle, or child 

protective services. 

Response: After reviewing the 

databases above, we have determined 

that States may, with DHS approval, 

utilize SAVE to verify citizenship for 

naturalized citizens. A verification with 

the SAVE Program will be considered 

secondary evidence of citizenship. 

Since SAVE does not maintain 

photographs, States will be required to 

supplement a data verification with 


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SAVE with a form of identity listed 

under the regulations at § 435.407(e). 

In general, the databases 

recommended by commenters did not 

contain information that could reliably 

establish citizenship. For instance, the 

Child Support program does not 

maintain citizen information and 

section 454(26) of the Act requires State 

Child Support programs to have in 

effect safeguards on access to and use of 

information that is collected. Other 

statutory language restricts what 

authorized information can be provided 

to what authorized program for what 

authorized purpose (i.e., sections 453 

and 463 of the Act). In addition, neither 

the Department of Veterans Affairs 

databases nor the IHS Data Warehouse 

necessarily store citizenship 

information. PARIS reports on what 

public benefits an individual receives 

for purposes of identifying cases of 

duplicate coverage of benefits. The only 

information in PARIS that could be of 

use is data on SSI enrollment. However, 

since States have access to SSA’s State 

Data Exchange system to check for SSI 

enrollment, PARIS would be 

unnecessary for data matches. 

SSA currently makes available to 

States through the Numident database 

information on whether a particular 

social security number is valid and 

issued to the person named on it. This 

is not sufficient evidence of citizenship 

since non-citizens may have a social 

security number and the information 

provided does not personally identify 

the individual. Although the Numident 

database may contain additional 

information for individuals with a social 

security number that establishes 

citizenship, this information is not 

generally available to States. While 

States may be able to negotiate with the 

SSA for what information they are 

granted access to, CMS does not have 

the authority to grant access to 

additional fields in SSA’s Numident 

database. 

Although several commenters 

requested that we approve State 

Attorney General’s databases, we were 

not able to determine exactly what these 

databases are or what information they 

contain. Therefore, we are not 

approving their use at this time. 

However, these databases may meet the 

requirements for verifying identity 

through a cross match with a Federal or 

State governmental, public assistance, 

law enforcement, or correction agency’s 

data system under § 435.407(e) and 

§ 436.407(e). 

As for matches with the Food Stamps 

database, the Food Stamps program 

does not collect citizenship information 

as a condition of eligibility. The Food 

Stamp program issued a letter to its 

regional directors on May 12, 2006 

reiterating Food Stamp policy that the 

Food Stamp program does not require 

verification of citizenship except when 

a client’s statement of United States 

citizenship is questionable or when a 

State has mandated verification of 

citizenship. Therefore, the food stamps 

database does not contain sufficient 

evidence of citizenship. However, as 

stated in the interim final rule with 

comment period and per the regulations 

at § 435.407(e)(2) (formerly 

§ 435.407(e)(10)), States may use cross 

matches with the food stamps database 

to verify the identity of an individual. 

With respect to data matches with the 

department of motor vehicles, as stated 

in the regulations at § 435.407(a)(4) and 

§ 436.407(a)(4), a State may utilize data 

matches with the department of motor 

vehicles if the State requires proof of 

U.S. citizenship prior to the issuance of 

a driver’s license or obtains a social 

security number from the applicant and 

verifies before issuance of the license 

that the number is valid and assigned to 

the applicant who is a citizen. At this 

time, we are not aware of any State that 

makes providing evidence of citizenship 

a condition of issuing a driver’s license 

and includes evidence that the license 

holder is a citizen on the license or in 

a system of records available to the 

Medicaid agency. As stated in the 

regulations, CMS will monitor 

compliance of States implementing this 

provision. We note that the process the 

State uses to verify citizenship must 

comply with the statutory provision in 

section 6036 of the DRA. 

Child support, corrections, juvenile 

detention, or child protective services 

databases may be used to verify identity 

but cannot be used to verify citizenship. 

We cannot ensure that the owners of 

these systems either (1) verify 

citizenship, or (2) verify citizenship 

using comparable criteria to this rule. 

Therefore, we are unable to approve 

their use at this time. 

Comment: One commenter stated that 

requiring States to match files for 

individuals who only have third or 

fourth levels of evidence as a check 

against fraud is contrary to the 

requirement that this be a one-time 

activity. One commenter specifically 

stated that States should not be required 

to double-check SSNs. They stated that 

since they already require SSNs on the 

application to verify income eligibility, 

any non-matches would already have 

been caught in this process. 

Response: After considering the 

commenters’ concerns, we believe that 

several commenters may have 

misunderstood the requirement. We did 

not change the regulations to require 

States to match SSNs for applicants and 

recipients who submitted third and 

fourth tier documents. We agree that 

this would duplicate another part of the 

application process. We intended for 

States to utilize new electronic means of 

verifying citizenship and identity as 

they become available. We stated that 

we encourage States to use automated 

capabilities to verify citizenship and 

identity of Medicaid applicants and that 

when these capabilities become 

available, States will be required to 

match files for individuals who used 

third or fourth tier documents to verify 

citizenship and documents to verify 

identity. We also stated that CMS will 

make available to States necessary 

information in this regard when such 

capabilities become available. We 

emphasize that this only applies to new 

applicants. It is not necessary for States 

to electronically verify the citizenship of 

recipients who used third and fourth 

tier documents in the past. We note that 

this provision is unlikely to apply to 

recipients submitting documentation at 

redetermination since this provision is a 

one-time action and all 

redeterminations affected by this 

provision should be complete by July 1, 

2007. Since CMS has not issued 

instructions to States requiring States to 

utilize specific electronic databases and 

does not expect to do so prior to July 1, 

2007, we do not believe this 

requirement will have any effect on 

recipients required to submit 

documentation at redetermination. 

Comment: One commenter requested 

that CMS require States to utilize 

electronic data matches to increase 

efficiency and lessen the burden on 

Medicaid recipients and applicants. One 

commenter asked that States be required 

to utilize all available electronic 

matching data before asking an 

individual to submit original versions of 

paper documents. 

Response: Most States have already 

implemented data matching or 

verification as a method of verifying 

citizenship and identity and many 

others have expressed an interest in 

doing so. We encourage States to utilize 

electronic matching; however, each 

State is best suited to understand its 

own capabilities for data matching and 

we do not believe it is appropriate for 

us to require States to use electronic 

data matching prior to asking for paper 

documents. There exists variation in the 

resources and technical capabilities 

available to each State, and some 

electronic matching may require 

additional State resources and 

expenditures that are not currently 

available to the State. 


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Comment: One commenter requested 

that CMS defer to the States on how 

long each State should retain the 

citizenship documentation records. One 

commenter requested that State 

Medicaid agencies retain this 

information indefinitely. 

Response: We agree with the 

commenter who stated that CMS should 

defer to the States on how long 

citizenship documentation records 

should be maintained, as long as that 

time period is at least 3 years, consistent 

with the regulations at § 431.17 and 45 

CFR 74.53. However, we do not agree 

that we should require States to 

maintain this information indefinitely. 

States are in a better position to decide 

what record retention schedule works 

best with their systems and resources. 

Comment: One commenter requested 

that CMS permit States to use any 

information already in possession of the 

State Medicaid office that verifies 

citizenship. The commenter stated that 

there would have been no incentive in 

the past for an individual to submit 

fraudulent information on citizenship 

and, therefore, the determination should 

be considered valid even if the office 

cannot document how the information 

was obtained. 

Response: As we stated in the interim 

final rule with comment period, States 

are responsible for verifying the 

authenticity of the documents used to 

establish citizenship and identity. States 

may use information already contained 

in the Medicaid file if the State can 

verify that an original or certified copy 

of the documentation was originally 

reviewed and a reproduction of the 

document is in the file. There should be 

evidence in the file that the eligibility 

worker reviewed an original or certified 

copy. A State is at risk for losing FFP 

if it cannot provide sufficient evidence 

to assure that originals or certified 

copies were reviewed. 

Comment: Many commenters agreed 

with CMS’ policy to allow 

presumptively eligible individuals to 

maintain Medicaid coverage while they 

locate and submit the required 

documentation. However, several 

commenters requested that CMS clarify 

in the final rule which groups are 

considered presumptively eligible and 

which are not. One commenter 

requested that CMS consider 

presumptively eligible individuals 

recipients of Medicaid and, thus, delay 

citizenship verification until the next 

period of redetermination. The 

commenter noted that these groups are 

in need of expedited critical services 

and therefore should not risk facing any 

delay in coverage. 

Response: Individuals who receive 

Medicaid because of a determination by 

a qualified provider under sections 

1920, 1920A, or 1920B of the Act are 

considered presumptively eligible if the 

State has elected to include that option 

in its State plan. Section 1920 refers to 

pregnant women; section 1920A refers 

to children; and section 1920B refers to 

certain breast or cervical cancer 

patients. However, within a certain time 

period, presumptively eligible 

individuals are required to apply for 

regular Medicaid under sections 

1920(c)(3), 1920A(c)(3), and 1920B(c)(3) 

of the Act, respectively. Once this 

application occurs the standard 

eligibility rules apply, including the 

requirement that the individual verify a 

declaration of U.S. citizenship. 

Comment: Many commenters 

requested that CMS modify its policy to 

allow otherwise-eligible applicants to 

receive benefits once they declare they 

are a citizen. The commenters did not 

agree with allowing current recipients 

an opportunity to produce the 

documents while still being covered by 

Medicaid when otherwise-eligible 

applicants are required to produce 

documentation before the start of 

coverage. Instead, the commenters 

suggested that CMS allow applicants 

who meet all other criteria for Medicaid 

eligibility to receive coverage during the 

reasonable opportunity period. If the 

applicant is unable to produce the 

documents within the defined period, 

the State could then rescind Medicaid 

coverage. 

Commenters noted that by not 

providing new applicants with a ‘‘grace 

period’’ for submitting the required 

documentation, CMS will create 

significant delays for those seeking 

health care coverage. Several 

commenters noted that the gaps in 

coverage caused by these delays may 

have consequences that are more costly, 

such as affected individuals seeking 

care in hospital emergency departments. 

The commenters emphasized that the 

cost of emergency care always exceeds 

the cost of preventive care. 

In addition, several commenters 

stated that treating Medicaid recipients 

and Medicaid applicants differently was 

prohibited by Federal Medicaid law. 

One commenter stated that because this 

provision could inhibit an eligible U.S. 

citizen from receiving coverage under 

Medicaid, CMS was violating a 

provision of the Medicaid statute that 

prohibits CMS from approving State 

Medicaid plans that impose ‘‘any 

citizenship requirement which excludes 

any citizen of the United States’’ as a 

condition of eligibility for the program 

(see 42 U.S.C. 1396a(b)(3)). One 

commenter stated that this regulation 

violated Federal law by contradicting 

section 1137(d)(4) of the Act. 

The commenters urged CMS to 

reconsider the new regulations as they 

pertain to new applicants, especially in 

the case of pregnant women, children, 

parents, and persons with disabilities. 

As an alternative, one commenter 

recommended that CMS permit States 

that administer separate State Children’s 

Health Insurance Programs (SCHIP) to 

be expressly permitted to enroll 

children in the separate programs 

pending submission of necessary 

documentation. 

Response: In response to the 

commenters who urged CMS to 

reconsider applying this provision to 

pregnant women, children, parents, and 

persons with disabilities, we note that 

Congress exempted many groups from 

these requirements. CMS does not have 

the authority to exempt additional 

groups. As stated earlier, however, in 

some cases, presumptive eligibility 

might apply to pregnant women and 

children. Persons with disabilities may 

be eligible for either Medicare or 

disability benefits under sections 223 or 

202 of the Act, and by virtue of 

receiving such benefits, would be 

exempt from the citizenship 

documentation requirements. 

In response to the commenters who 

stated that CMS may not treat applicants 

and recipients differently, we note that 

Congress specifically stated in section 

1903(i)(22) of the Act that the Federal 

share of Medicaid will not be available 

to States unless they can obtain 

documentation of citizenship consistent 

with section 1903(x) of the Act. Thus, 

because a State would not be entitled to 

receive Federal Financial Participation 

(FFP) for their expenditures unless 

documentation on the applicant is 

received, a State is not required to 

provide Medicaid to an individual who 

has failed to provide documentation of 

citizenship or nationality. (See Harris v. 

McRae, 448 U.S. 297 (1980)). We also 

note that section 6036(b) of the DRA 

addressed how the statute would apply 

to initial applicants versus those seeking 

redeterminations of eligibility on or 

after the effective date of the 

requirements (July 1, 2006). 

We do not believe the regulations 

violate section 1903(b)(3) of the Act. 

First, Congress has required 

documentation of citizenship in 

sections 1903(i)(22) and 1903(x) of the 

Act, and these provisions must be read 

in concert with the remainder of Title 

XIX. Second, the citizenship 

documentation requirements are better 

viewed as procedural requirements, 

rather than as substantive limitations. 


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The documentation requirement does 

not place any substantive limit on the 

classes or types of citizens that may 

receive Medicaid. 

Section 1137(d)(4) is not applicable, 

because it applies only to individuals 

who are not citizens or nationals of the 

United States who declare satisfactory 

immigration status. The citizenship 

documentation requirements under 

section 6036 of the DRA apply to 

citizens and nationals of the United 

States, and not to individuals declaring 

to be in a satisfactory immigration 

status. 

In order to ensure that unnecessary 

delays do not occur, the State should 

ensure that applicants are aware of these 

requirements at the time of application 

along with any other documentation 

requirements and ensure them a 

reasonable opportunity to produce the 

documents just as applicants must do to 

establish other factors of eligibility such 

as proof of income or resources. States 

must make applicants aware that once 

they have been determined to be eligible 

and have provided documentation 

verifying citizenship, Medicaid 

eligibility is granted back to the date of 

application or to the beginning of the 

month in which the application was 

received. In addition, under section 

1902(a)(34) of the Act and 42 CFR 

435.914, if an individual would have 

been eligible for State Medicaid 

assistance at the time care and services 

were furnished (or —at State option—

during the month in which care and 

services were furnished), retroactive 

coverage may be made available 

beginning with the third month prior to 

the month of application. In other 

words, once the individual has proven 

his or her citizenship, eligibility will be 

conferred on that individual retroactive 

to up to 3 months before the month of 

application, if the individual is found to 

be eligible during that prior period or 

part thereof. 

Under Title XXI, the State cannot 

make eligible for SCHIP an individual 

who is potentially eligible for Medicaid. 

Under the regulations at 42 CFR 

457.350(f)(1), a child who is potentially 

eligible for Medicaid cannot be found 

eligible for SCHIP unless and until a 

completed Medicaid application for that 

child is denied, or the child’s 

circumstances change. A Medicaid 

application is not complete without 

submission of all documentation, 

including documentary evidence of 

citizenship and identity. An incomplete 

application may be denied; however, 

because the application was incomplete, 

this denial does not meet the criteria 

that a completed Medicaid application 

for the child is denied. Therefore, it is 

not permissible under the regulations to 

enroll a potentially Medicaid-eligible 

child into a separate SCHIP program 

pending submission of citizenship and 

identity documents necessary to 

complete the Medicaid application 

process. 

Comment: Several commenters 

requested that the reasonable 

opportunity period be at least 90 days 

in length. One commenter stated that 

many of the required documents take at 

least 6 weeks to receive, including a 

U.S. Passport, and that it is 

unreasonable to require applicants and 

recipients to produce these documents 

in less time than it regularly takes to 

receive the documents. 

Response: We specified in the interim 

final rule with comment period that the 

reasonable opportunity period should 

be consistent with the State’s standing 

administrative requirements such that 

the State does not exceed the time limits 

established in Federal regulations for 

timely determination of eligibility in 

§ 435.911. The regulations permit 

extensions to the time limits when an 

applicant or recipient in good faith tries 

to present documentation, but is unable 

to do so because the documents are not 

available. We note that there are many 

ways a State can ensure documentation 

of citizenship and identity, including 

cross matches with other government 

agency databases. 

Comment: Several commenters 

suggested that CMS clarify that existing 

retroactive eligibility is not impacted by 

the new regulations. They noted that 

retroactive eligibility determinations 

ensure that both children and providers 

are protected while eligible individuals 

await documentation of citizenship. 

Response: We agree with the 

commenters who stated that the 

retroactive eligibility rules are not 

impacted by the new regulations. Once 

a State has determined that an 

individual is eligible for Medicaid, 

including having verified citizenship, 

Medicaid eligibility is granted back to 

the date the application was filed or to 

the beginning of the month in which the 

application was filed. The date of 

application is the date the individual 

submits the application. If further 

documentation is required beyond what 

is initially submitted, the date of 

application remains the initial date of 

filing. Under authority at section 

1902(a)(34) of the Act, States must 

provide retroactive eligibility for up to 

a 3-month period prior to the month of 

application, for those who are 

determined eligible during that period 

or a part thereof. 

Comment: One commenter requested 

that CMS permit individuals to make 

declarations of name changes. The 

commenter stated that many married or 

formerly married women will have 

different names on their birth 

certificates and identity documents. The 

commenter stated that requiring 

additional documentation, such as a 

marriage license, would adversely affect 

female recipients or applicants. 

Response: The State is responsible for 

ensuring it has authentic 

documentation. The State may accept 

the citizenship and identity documents 

from a woman whose last name has 

changed due to marriage if the 

documentation matches in every way 

with the exception of the last name. If 

the State is not confident that the two 

documents belong to the individual, it 

may request that the woman produce 

the marriage license, divorce decree or 

other official document verifying the 

change. The State may also accept other 

available documentation that does not 

differ in the name of the individual. We 

do not want to cause undue burden if 

it is clear that the two documents belong 

to and describe the individual. 

However, individuals who have 

changed both their first and last names 

under other circumstances must 

produce documentation from a court or 

governing agency documenting the 

official change. 

Comment: One commenter requested 

that CMS clarify what documentation is 

required of individual members of a 

household when eligibility is 

determined on a family or household 

basis. The commenter recommended 

that CMS only require documentation 

for one adult member of the family or 

household. 

Response: When eligibility is 

determined on a family or household 

basis, per section 1137(d)(1)(A) of the 

Act, the individual applicant often 

makes a declaration of citizenship for all 

members of the household. Therefore, 

although each individual has not made 

a declaration of citizenship, someone 

has made a declaration on his or her 

behalf and that declaration must be 

verified. As a result, each individual of 

the household has effectively declared 

to be a citizen of the United States, and 

documentation verifying such 

citizenship must be submitted for every 

individual member of the household. 

Comment: One commenter requested 

that CMS require that individuals who 

were born outside the U.S. be treated in 

the same manner as individuals born 

inside the U.S. The commenter 

recommended that CMS revise the 

regulations to state that individuals born 

outside of the U.S. may use the same 

forms of documentation as individuals 

born in the U.S. 


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Response: We agree with the 

commenter and have modified the 

regulations to permit naturalized 

citizens to use additional documents as 

well as the affidavit process. We note 

that it is not possible to permit 

individuals born in the U.S. and 

naturalized citizens born outside of the 

U.S. to present all the same evidence of 

citizenship. For instance, a birth 

certificate issued in a U.S. hospital may 

be used to verify U.S. citizenship; 

however, it is not possible for a person 

born outside of the U.S. to have such a 

document. Likewise, most individuals 

born inside the U.S. will not be able to 

obtain a Certificate of Naturalization. 

Citizenship Documents 

Comment: Several commenters 

requested that CMS address in the final 

rule what the procedure will be when 

an individual can neither produce any 

documentation verifying citizenship nor 

locate two qualified individuals to 

support his or her affidavit declaring 

citizenship. The commenters stated that 

there is likely to be a significant number 

of individuals who cannot meet any of 

the documentation options. The 

commenters requested that States be 

allowed to grant ‘‘good cause’’ or 

hardship exemptions to the new 

regulations and permit applicants to 

show other evidence of citizenship. 

Several commenters suggested that CMS 

follow the approach taken by the Social 

Security Administration (SSA). The 

commenters stated that SSA permits 

individuals applying for Supplemental 

Security Income (SSI) the opportunity to 

explain why they have no proof of 

citizenship and provide any information 

they do have. The commenters 

suggested that CMS amend the proposed 

change to the regulations to permit a 

State Medicaid office to determine that 

it has obtained satisfactory 

documentation of citizenship outside of 

the guidelines published in the July 12, 

2006 interim final rule. 

One commenter requested that CMS 

provide an exception process whereby 

the State Medicaid agency could request 

the CMS regional office to review and 

approve the citizenship of an individual 

based on evidence submitted by the 

State that does not meet the 

documentation currently required under 

the regulations. 

Response: It is important to note that 

Congress required the documentation of 

citizenship as a requirement in 

Medicaid. In order to ensure the validity 

of such documentation, we believe it is 

important to have consistent standards 

for States to follow. Therefore, we have 

not provided authority for States to 

accept additional documentation 

beyond what is specified in our 

regulations, or to create an exception 

process at the Regional Office level. We 

note that if commenters wish to propose 

additional types of documentation, they 

may present such documents to the 

Secretary, who will then engage in 

notice and comment rulemaking to 

determine whether the documents are 

acceptable evidence of citizenship or 

identity or both. 

In addition, based on experience so 

far with the interim final rule, we 

believe it will be a very rare occurrence 

that the individual or State agency will 

be unable to produce any of the 

acceptable documents. If such a case 

arises, States must work with the 

individual to help them obtain whatever 

documentation could be made available. 

States may contact CMS for technical 

assistance if they experience instances 

in which they have questions or 

concerns. 

Finally, we believe that the affidavit 

process is appropriate because it offers 

flexibility to individuals who have no 

other method of verifying their 

citizenship while protecting the 

integrity of the Medicaid program. The 

process was not intended to be simply 

a process of self-attestation, which the 

Congress intentionally eliminated by 

establishing this provision. We believe 

it will be less likely that an individual 

who is falsely declaring to be a U.S. 

citizen will be able to arrange for two 

individuals to submit affidavits on his 

or her behalf. The requirement that at 

least one of the individuals be a nonrelative better ensures that there is less 

conflict of interest. 

Comment: Several commenters noted 

that section 6036 of the DRA did not 

mandate a hierarchy of acceptable 

documents, and, therefore, CMS should 

not impose one. The commenters 

suggested that CMS revise the 

regulations to give States flexibility to 

comply with the documentation 

requirements. The commenters 

recommended allowing States to accept 

documentation from the second- and 

third-tier evidence groups without first 

ensuring that primary-level evidence is 

unavailable, unavailable without cost, 

or if there is some uncertainty about 

when the primary evidence can be 

obtained. The commenter requested that 

States be able to accept lower level 

evidence that is available at the time of 

application if waiting for higher level 

evidence will result in a delay in the 

eligibility determination. One 

commenter requested that CMS permit 

States to determine that a document is 

‘‘not available’’ when it cannot be 

obtained within the reasonable 

opportunity period. 

Several commenters also requested 

that if CMS is to maintain the hierarchy, 

it should continue to accept third and 

fourth level documents. One commenter 

requested that CMS collapse the second 

through fourth tiers. The commenter 

stated that once a document was 

deemed reliable for verifying citizenship 

or identity, it should be treated as 

equally reliable as all other approved 

documents. 

In contrast, one commenter stated that 

the hierarchical approach to document 

acceptance is important and should 

remain in the regulations. The 

commenter stated that ensuring that 

applicants provide the most reliable 

documentation available to them will 

decrease the chance of fraud or abuse of 

the Medicaid system. 

In addition, the commenter requested 

that CMS consider a document to be 

available if it is known to exist. The 

commenter stated that allowing 

individuals to submit lower-tier 

evidence when a higher level of 

evidence exists would encourage 

individuals to simply submit the 

available document without putting in 

the effort to locate and submit more 

reliable evidence. 

Response: We understand that several 

commenters were concerned about our 

system for categorizing documents by 

reliability. While States should first seek 

documents from the first level (U.S. 

Passport, Certificate of Citizenship, 

Certificate of Naturalization, or certain 

State driver’s licenses), States are not 

prohibited from accepting 

documentation from the second tier or 

below if a document from the first tier 

is not available. In other words, an 

applicant or recipient is not expected to 

purchase a passport if the individual 

does not already have one but does have 

available other evidence of citizenship 

and identity. As we stated in the 

preamble to the July 12, 2006 interim 

final rule, States have the authority (and 

flexibility) to determine when a 

document is considered unavailable (see 

71 FR 39215). However, we would not 

expect a State to require an individual 

to secure a document that cannot be 

made available within the reasonable 

opportunity period if a lower level 

document is already available. We have 

made clarifying, technical changes to 

the regulations at § 435.407(c) and (d) to 

make clear that if higher level 

documents are unavailable, lower-level 

documentation may be used. 

We do not agree with the commenter 

who suggested collapsing the second 

through fourth tiers. It is important for 

States to strive to collect the most 

reliable evidence first, and we believe 

that we have the authority under Title 


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XIX, as well as our rulemaking authority 

in section 1102 of the Act, to create the 

hierarchical system. Documents in the 

fourth tier are not as reliable as 

documents in the second tier and 

should not be considered as such. 

Comment: Several commenters asked 

that CMS not further limit in the final 

rule the types of evidence that may be 

used to document citizenship or 

identity. In addition, the commenters 

suggested that CMS allow States greater 

flexibility in determining what 

documentation will be permitted. The 

commenters stated that this flexibility 

would enable States to confidently 

verify an individual’s status using 

means that CMS has not considered or 

by methods that have yet to be 

developed. 

In contrast, one commenter disagreed 

with CMS’ expansion of the list of 

documents offered in the DRA. The 

commenter stated that the Secretary 

should have first published a set of 

proposed regulations followed by a 

public comment period, prior to the 

issuance of final regulations. 

Response: After considering the 

comments received, we have decided 

not to further limit the list of documents 

considered satisfactory proof of 

citizenship and identity as published in 

the July 12, 2006 interim final rule. As 

we have previously stated, we think it 

will be a rare occurrence that an 

individual cannot meet these 

requirements using the broad spectrum 

of documents included in the 

regulations. If we become aware of 

additional documents that might serve 

as evidence of citizenship or identity or 

both, we will engage in notice and 

comment rulemaking to determine 

whether the documents should be 

accepted as evidence. 

The July 12, 2006 interim final 

regulation is considered a regulation 

under the Administrative Procedure 

Act. For a discussion on why we had 

good cause to publish the regulation 

without first engaging in notice and 

comment, we refer readers to the 

interim final rule at 71 FR 39220. 

Comment: Several commenters 

disagreed with CMS’ policy of only 

allowing three pieces of documentation 

to qualify as first tier documents for 

purposes of verifying citizenship. The 

commenters noted that the cost, delay in 

receipt, and other factors make it 

unlikely that many low-income citizens 

will have access to these documents. 

For instance, several commenters noted 

that a Certificate of Citizenship 

currently costs $255, not including 

supporting documentation, passport 

photos, and the trip to a U.S. 

Citizenship and Immigration Service 

(USCIS) office. Commenters stated that 

a Certificate of Naturalization currently 

costs $200 and can take a considerable 

amount of time to receive. They 

indicated that a U.S. passport costs $97 

and takes 6 weeks to process. The 

commenters noted that the U.S. Passport 

Agency verifies citizenship independent 

of the Department of Homeland Security 

(DHS) and therefore its records are not 

linked to the automated records used by 

DHS. The commenter therefore 

concluded that it will be especially 

burdensome for individuals to obtain a 

passport if they have lost their 

Certificates of Naturalization or 

Citizenship. The commenter concluded 

that limiting acceptable first tier 

documents to these three pieces of 

documentation will result in an increase 

in the number of Medicaid-eligible 

individuals not receiving coverage and 

turning to alternate sources of care in 

the community. 

Response: We note that the Congress 

specifically cited these documents as 

proof of both citizenship and identity. 

We are not aware of any other 

government-issued documents that 

could satisfy both the U.S. citizenship 

and identity requirement and thus be 

considered a first tier document. As 

previously stated, while States should 

first seek documents from the first level, 

States are not prohibited from accepting 

documentation from the second tier or 

below if a document from the first tier 

is not available. For instance, if an 

applicant is in possession of an original 

or certified copy of his or her birth 

certificate but does not have a passport, 

the individual may present the birth 

certificate along with another form of 

identification that proves identity. In 

the case of a naturalized citizen, the 

State may conduct an electronic data 

verification with DHS’ SAVE Program at 

no cost to the applicant or recipient. As 

we stated in the preamble to the July 12, 

2006 interim final rule, States have the 

authority (and flexibility) to determine 

when a document is considered 

unavailable (see 71 FR 39215). 

Comment: Several commenters 

recommended that CMS amend the list 

of evidence of citizenship by including: 

souvenir birth certificates; birth 

certificates from a foreign country 

stamped ‘‘U.S. Citizen;’’ marriage 

certificates showing place of birth of the 

individual; entries in a family bible 

documenting birth in the United States; 

and for a parent, a U.S. birth certificate 

of a child showing the parent’s place of 

birth. 

Response: We have reviewed each of 

the documents above. As part of our 

review, we considered SSA policy with 

respect to documents acceptable for 

issuance of a social security number. 

The documents listed above are not 

accepted by SSA as proof of citizenship 

for a social security number. 

We are not accepting these documents 

as evidence of citizenship because they 

do not definitively establish an 

individual’s citizenship. For many of 

the documents listed above, there is an 

existing alternative document or a 

database States may access that 

constitutes a more reliable record. 

Recipients or beneficiaries with the 

types of birth records mentioned above 

should be able to obtain a birth 

certificate or have the State conduct a 

data match with the State vital statistics 

agency. An individual who was a U.S. 

citizen at birth despite being born 

abroad, can obtain a Department of State 

report of birth as described in the 

regulations at § 435.407(b)(2), (3), or (4). 

Comment: Several commenters 

requested that CMS permit States to 

accept SSI check stubs for newly 

qualified SSI recipients whose names 

have not yet been entered into the State 

Data Exchange (SDX) database. 

Response: Individuals receiving 

checks from SSA should have been 

entered into the SDX database. All 

States can check for SSI eligibility 

through this system. However, if the 

State cannot confirm with SSA that the 

individual has been deemed eligible for 

SSI via the SDX database, the State 

should pursue obtaining evidence of 

citizenship and identity. 

Comment: One commenter 

recommended that CMS amend the list 

of secondary evidence of citizenship by 

including records that are considered 

secondary level evidence for citizenship 

verification from the SSA Program 

Operation Manual System (POMS). 

Several commenters requested that CMS 

revise the regulations to permit States to 

verify citizenship following the POMS 

guidelines for social security numbers. 

Response: In the interim final rule we 

did not include two types of documents 

the SSA accepts as secondary evidence 

for social security numbers as listed in 

the POMS RM 00203.310: religious 

records recorded in the U.S. within 

three months of birth and early school 

records showing a U.S. place of birth. 

We have accepted these documents as 

third level evidence of citizenship in the 

final rule. Religious records recorded in 

the U.S. within 3 months after the birth 

must show that the birth occurred in the 

U.S. and must show the date of the birth 

of the individual or the individual’s age 

at the time the record was made. These 

must be official records recorded with 

the religious organization. Examples of 

such records include baptismal 

certificates. We caution States that in 


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questionable cases (e.g. where the 

child’s religious record was recorded 

near a U.S. international border and the 

child may have been born outside the 

U.S.), the State should verify the 

religious record and/or document that 

the mother was in the U.S. at the time 

of birth. We have added regulations text 

at § 435.407(c)(3) and § 436.407(c)(3) to 

include these records as third level 

evidence of citizenship. 

Early school records must show the 

name of the child, the date of admission 

to the school, the date of birth (or age 

at the time the record was made), a U.S. 

place of birth, and the name(s) and 

place(s) of birth of the applicant’s 

parents. We have added regulations text 

at § 435.407(c)(4) and § 436.407(c)(4) to 

include these records as third level 

evidence of citizenship. 

These records have been approved as 

third level evidence of citizenship 

because they are issued by nongovernmental entities. 

Comment: One commenter requested 

that CMS permit States to accept a 

duplicate of the information sent from 

hospitals to the State’s Vital Statistics 

Agency for registering births to prove 

the citizenship of infants. 

Response: This document could be 

permitted under 42 CFR 435.407(c)(1) or 

42 CFR 436.407(c)(1) if it is part of the 

official hospital record and is on 

hospital letterhead. 

Comment: One commenter 

recommended that CMS accept a letter 

of verification or any other official 

document from DHS or a U.S. District 

Court indicating that the person is a 

naturalized citizen. The commenter 

suggested that these documents be 

considered secondary evidence of 

citizenship. 

Response: The Department of 

Homeland Security (DHS) has 

confirmed that documentation that an 

individual is a naturalized citizen may 

be contained in the SAVE database. All 

States have access to SAVE and data 

verifications can be conducted with the 

database. However, because SAVE 

verification is based on alien 

registration numbers, the State will need 

to provide DHS with the individual’s 

alien registration number to enable the 

search to take place. While this number 

is found on the certificate of 

naturalization, it is necessary to keep in 

mind that since a SAVE verification has 

been designated as an acceptable form 

of second-tier evidence to be used only 

when first-tier evidence such as the 

certificate of naturalization is 

unavailable, that source for the alien 

registration number cannot, by 

definition, be used when SAVE is used 

as second-tier evidence, i.e., as a 

substitute for documentary evidence of 

citizenship rather than as a verification 

of the certificate of naturalization. If an 

applicant has a certificate of 

naturalization, the applicant must 

provide it as first-tier evidence. Thus, 

the applicant will need to provide the 

alien registration number using another 

means, such as memory or 

documentation of previous dealings 

with DHS. 

In addition, all use of the SAVE 

system is subject to DHS requirements, 

including execution of an appropriate 

Memorandum of Understanding (MOU) 

providing access to the system. The fact 

that entering a name, date of birth and 

alien registration number may generate 

a response that the subject of the query 

is a naturalized citizen does not 

necessarily mean that that is an 

authorized use of the system. SAVE was 

designed as a method of verifying alien 

immigration status, including 

responding that the subject of an alien 

status inquiry is in fact a naturalized 

citizen if such is the case. SAVE MOUs 

with State agencies administering 

Medicaid do not currently authorize use 

of the system to verify claims to 

naturalized citizen status. In addition 

and as previously stated, naturalized 

citizens may also now make use of the 

affidavit process as well. Therefore, we 

are not amending the policy to accept 

additional documents for use by 

naturalized citizens. 

Comment: One commenter requested 

that CMS permit States to follow 

guidelines used by the Department of 

State for establishing citizenship, 

including accepting census records and 

a doctor’s record of post-natal care. 

Response: In our interim final and 

final regulations at § 435.407(d)(1) and 

§ 436.407(d)(1), we permit as fourthlevel documents census records 

showing U.S. citizenship or U.S. place 

of birth, as well as the applicant’s age. 

Generally, census records from 1900 

through 1950 provided this kind of 

information. Medical records of postnatal care could qualify as an extract of 

a hospital record, which is considered 

third level evidence at § 435.407(c)(1) 

and at § 436.407(c)(1), or a medical 

record, which is considered fourth level 

evidence at § 435.407(d)(4) and at 

§ 436.407(d)(4). 

Comment: Many commenters 

disagreed with CMS’ policy to require 

that third and fourth tier evidence only 

be considered valid if issued at least 5 

years before the date the individual 

applied for Medicaid. They stated that 

5 years is an arbitrary period of time. 

The commenters noted that an applicant 

could not have been aware of the policy 

to use these documents to verify 

citizenship before the issuance of the 

July 12, 2006 interim final rule and, 

therefore, would not have had the 

foresight to create false documents in 

advance for purposes of meeting these 

requirements. Several commenters 

noted that many individuals have been 

receiving Medicaid for 20 or more years. 

They question CMS’ decision to require 

those individuals to produce documents 

that were created decades ago. Several 

commenters suggested CMS permit 

States to accept documents that existed 

at the time of the enactment of the DRA. 

Other commenters recommended that 

CMS permit current recipients to use 

documents that existed on the date of 

the enactment of the DRA and permit 

new applicants to use documents that 

existed 2 or 3 years before this date. 

Response: Five years prior to 

application is not an arbitrary date. This 

is long standing SSA policy which we 

have adopted. This requirement is only 

assigned to those documents that would 

be the most vulnerable to being created 

for the purpose of meeting Medicaid 

eligibility requirements. This 

requirement helps protect the integrity 

of these documents. We also note that 

not all documents are subject to this 

requirement. CMS has made available a 

wide spectrum of documents to 

establish citizenship and identity. 

Comment: One commenter requested 

that CMS define the circumstances 

when fourth-level documentation is 

permissible to prove citizenship. The 

commenter stated that this evidence 

should only be used when primary, 

secondary, and third-level evidence 

does not exist. 

Response: A State may accept fourth 

level evidence when primary, 

secondary, and third level evidence is 

not available within the reasonable 

opportunity period and, with the 

exception of the affidavit process, the 

applicant alleges a U.S. place of birth. 

In our above response to comments, we 

provide additional guidance on what it 

means for a document to be available. In 

accordance with such guidance, the 

State should make the decision of 

whether documents of a given level of 

reliability are available to the applicant 

or recipient (see 71 FR 39215). 

Comment: One commenter requested 

that CMS take into account the 

circumstances of homeless persons 

when reviewing States for accepting 

third or fourth level evidence of 

citizenship. The commenter noted that 

there are significant reasons why 

documentation may not exist for 

homeless individuals and that providers 

and States should be assured that they 

will not be penalized for providing 

services to these individuals. 


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Response: If the individual or person 

working on the individual’s behalf 

requires assistance, States are required 

to aid these individuals and locate and 

obtain whatever documentation exists. 

For instance, the State may be able to 

conduct electronic data matching that 

renders unnecessary the need for the 

applicant or recipient to submit paper 

documentation. 

Comment: One commenter requested 

that for purposes of using third tier 

evidence, CMS specify that the place of 

birth on the nongovernmental document 

agree with the place of birth on the 

application at the State level. The 

commenter noted that names of small 

towns and rural areas often change. The 

commenter stated that these minor 

inconsistencies should not have any 

bearing on the application for Medicaid. 

Response: While we understand the 

commenter’s concern, this does not 

necessitate a modification to the 

regulations. The State is responsible for 

ensuring the authenticity of the 

documents. 

Comment: One commenter requested 

that CMS accept as primary evidence of 

citizenship any identity cards issued by 

the Texas Vital Statistics Office to 

migrant workers, which show date and 

place of U.S. birth along with photo 

identification. 

Response: We have worked with the 

Texas Department of State Health 

Services, Office of Vital Statistics to 

determine what these cards are, what 

they are used for, and if they might 

serve as appropriate evidence of 

citizenship and/or identity. However, 

we were unable to locate an example of 

the identification card. Until such time 

that we can review a sample document, 

we are unable to accept as evidence of 

citizenship and identity such document. 

Comment: Several commenters 

requested that CMS define ‘‘near the 

time of birth’’ as found in § 435.407(c) 

and (d). The commenters requested 

CMS clarify whether the States were 

entitled to make this determination. 

Response: States are best able to make 

this determination and are responsible 

for the authenticity of the document. 

Comment: One commenter requested 

that CMS review the language 

pertaining to the recording of birth 

certificates to ensure that the 

appropriate terminology was used. The 

commenter stated that in § 435.407 and 

§ 436.407 the word ‘‘issued’’ should be 

replaced with ‘‘recorded.’’ The 

commenter stated that by using the 

word ‘‘issued,’’ CMS is requiring 

applicants or recipients to have 

requested copies of birth certificates 5 

years before the date of application. The 

commenter also recommended that the 

word ‘‘amended’’ be replaced with 

‘‘delayed.’’ The commenter stated that 

an amended record is one that was 

changed based on a court order or some 

other documentary evidence based upon 

the items and nature of the change. A 

delayed record is one that was filed 

more than 5 years after birth. The 

commenter stated that these changes 

better reflect the intent of the 

regulations. 

Response: We agree with the 

commenter and are making the 

necessary revisions to the regulations 

text at § 435.407 and § 436.407. 

Comment: In the regulations at 

§ 435.407(b)(1) and § 436.407(b)(1), a 

birth record may be accepted as 

secondary evidence of citizenship if it 

was recorded prior to five years of age; 

a birth record that was recorded more 

than five years after birth is considered 

fourth level documentation of 

citizenship. One commenter 

recommended that CMS permit States to 

accept any birth certificate, regardless of 

when it was recorded or whether it was 

delayed as secondary evidence of 

citizenship. 

Response: We adopted limits on the 

acceptability of birth certificates in 

accordance with SSA practice when 

issuing SSNs. These limits were 

established to assure that when 

establishing citizenship, the oldest 

documents would be used in preference 

to more recent documents of the same 

degree of reliability. Therefore, it is 

appropriate to distinguish between a 

birth certificate that was recorded 

within five years of birth and one that 

delayed more than 5 years after the 

birth. 

Comment: One commenter requested 

that CMS clarify that immunization 

records maintained by parents or 

schools are not considered to be medical 

records but that immunization records 

maintained by a clinic, doctor, or 

hospital are considered to be medical 

records. 

Response: We agree with the 

commenter. 

Comment: One commenter requested 

that CMS clarify whether citizens who 

are unable to produce the designated 

documentation are eligible to receive 

emergency medical assistance under 

Title XIX. 

Response: Coverage for treatment of 

an emergency medical condition 

provided for under section 1903(v)(2) is 

only available to non-qualified aliens 

and qualified aliens subject to the fiveyear bar. Therefore, citizens are not 

eligible for coverage under this 

provision. 

Section 1867 of the Act requires that 

hospitals with emergency departments 

must screen any individual who 

presents to the hospital emergency room 

requesting treatment of an emergency 

medical condition. The hospital must 

provide an appropriate medical 

screening examination. If the hospital 

determines that an emergency medical 

condition exists, the hospital must 

provide or arrange for stabilizing 

treatment of the emergency medical 

condition without regard to insurance or 

ability to pay. 

Comment: Several commenters stated 

that it is a felony under Federal law (18 

U.S.C. 1426(h)) for any person to copy 

Certificates of Naturalization and 

Certificates of Citizenship. Therefore, 

the commenters requested that CMS 

address what State agencies should do 

to document that an individual 

presented a Certificate of Naturalization 

or Citizenship. 

Response: Any person who, without 

lawful authority, makes a likeness of 

various immigration or naturalization 

documents is committing a crime under 

18 U.S.C. 1426(h). The Department of 

Homeland Security and the Department 

of Justice investigate and prosecute such 

offenses. However, the limitation 

‘‘without lawful authority’’ would 

appear to exclude State employees, as 

well as Federal employees and agents, 

acting within the scope of their official 

duties, from the ambit of the offense. 

Accordingly, we do not believe that this 

criminal offense provision should be 

considered an impediment to the State’s 

records retention needs and making 

photostatic or xerographic copies of 

such documents, duly marked as copies 

retained for official purposes, for their 

records. 

Tribal Documents 

Comment: Many commenters 

requested that CMS modify the 

regulations to permit American Indian/ 

Alaska Natives to submit documentation 

establishing membership in a federallyrecognized Tribe as a first tier document 

to verify U.S. citizenship and identity. 

The commenters noted that American 

Indian/Alaska Natives frequently do not 

have the type of documents required 

under CMS’’ regulations implementing 

section 6036 of the DRA. In particular, 

the commenters stated that many 

elderly American Indian/Alaska Natives 

do not have birth certificates, as they 

were born in remote rural locations 

where no healthcare facilities existed. 

Response: We have carefully 

considered the commenters’ concerns 

and recommendations and have 

concluded that we cannot accept 

additional tribal documents as proof of 

U.S. citizenship at this time. First, we 

note that elderly individuals, if enrolled 


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in Part A or B of Medicare, will be 

exempt from the citizenship 

documentation requirements. Second, 

certain Tribal documents, such as those 

listed in § 435.407(d)(2) and 

§ 436.407(d)(2), are already accepted as 

evidence of citizenship. However, not 

all Tribes require members to be U.S. 

citizens or to have been born in the U.S. 

Therefore, we cannot ensure that all 

Tribal members are U.S. citizens. In 

many instances, Tribes indicated that 

they require individuals to present a 

birth certificate to obtain a Certificate of 

Indian Blood. In these cases, the 

individual should be able to submit the 

same birth certificate to the State 

Medicaid Agency as evidence of 

citizenship. However, some Tribes 

indicated that they relied on lineage 

documentation to establish membership 

in the Tribe. Establishing tribal 

membership confirms the heritage and 

blood linkage of the individual to an 

ancestor who was a member of the 

Tribe. Determining lineage does not 

necessarily establish U.S. citizenship of 

the individual applying for or receiving 

Medicaid and therefore, does not meet 

the requirements under section 1903(x) 

of the Act. 

Comment: Several commenters noted 

that in 1924, the Congress granted U.S. 

citizenship to members of federallyrecognized Tribes through the Indian 

Citizenship Act. They stated that the 

Department of the Interior approves 

tribal constitutions, including 

membership provisions. The 

commenters therefore concluded that 

when the Federal government approved 

the membership guidelines, it 

automatically conferred U.S. citizenship 

on any individual granted membership 

in a federally-recognized Tribe. The 

commenters therefore concluded that 

tribal documents verifying tribal 

membership should be accepted as 

evidence of citizenship. 

Response: The Indian Citizenship Act 

conferred U.S. citizenship on American 

Indians who were born in the United 

States. The Act did not grant U.S. 

citizenship to all members of Federallyrecognized Tribes. The individual must 

not only be a member of a Federallyrecognized Tribe, but also have been 

born in the United States. Therefore, 

demonstration of Tribal membership is 

not equivalent to demonstration of U.S. 

citizenship. 

Comment: In the case of Alaska 

Natives, the commenters requested that 

States be permitted to refer to the Roll 

of Alaska Natives composed by the 

Secretary of the Interior in 1971 to 

verify citizenship. Section 1604(a) of the 

Alaska Native Claims Settlement Act of 

1971 required the Secretary to prepare 

a roll of all Natives who were born 

before December 18, 1971. In section 

1602 of this act, ‘‘Native’’ is defined as 

a ‘‘* * *citizen of the United States 

who is a person of one-forth degree or 

more Alaska Indian, Eskimo, or Aleut 

blood, or combination thereof.’’ The 

commenters therefore conclude that 

inclusion on this list is documentation 

of U.S. citizenship. 

Response: We agree with the 

commenters and have accepted the Roll 

of Alaska Natives as fourth level 

evidence of citizenship. 

The purpose of the Roll was to 

identify individuals with whom the 

Federal government was to settle a 

claim of aboriginal title to land. 

Individuals submitted applications to be 

included on the Roll. As part of the 

application, individuals had to 

demonstrate that they were U.S. 

citizens. We have confirmed with the 

Bureau of Indian Affairs (BIA) that the 

documentation submitted as part of the 

application for inclusion on the Roll 

could have included birth certificates, 

ancestry information, marriage 

documents, official name change 

documents, adoption information and 

information on siblings. Such 

documentation is sufficient evidence of 

citizenship under these regulations. 

The Roll is not continually updated; 

it only contains information for 

individuals who were born prior to 

December 18, 1971. With the applicant’s 

or recipient’s approval, the State 

Medicaid Agency may contact the BIA’s 

regional office in Juneau to request 

information on the individual from the 

Roll. 

This is consistent with the Social 

Security Administration’s policies. We 

have added corresponding regulations at 

§ 435.407(d)(vi) § 436.407(d)(vi). 

Comment: Several commenters stated 

that not all American Indian/Alaska 

Natives are required to be U.S. citizens 

or meet one of the specific immigration 

statuses to be eligible for Medicaid. The 

commenters noted that Title IV of the 

Personal Responsibility and Work 

Opportunity Reconciliation Act 

(‘‘PRWORA,’’ Pub. L. 104–193), enacted 

on August 22, 1996, exempted 

American Indians from the citizenship 

requirements for Medicaid eligibility. 

The commenters therefore concluded 

that American Indian/Alaska Natives 

are exempt from the citizenship 

documentation requirements. 

Response: We are aware that 

American Indians who are not U.S. 

citizens may be eligible for Federal 

public benefits under PRWORA (and the 

amendments made thereto through 

section 5303 of the Balanced Budget Act 

of 1997, Pub. L. 105–33, enacted August 

5, 1997). As amended, PRWORA 

provided that non-citizen American 

Indian/Alaska Natives born outside of 

the U.S., who either (1) were born in 

Canada and are at least 50 percent 

American Indian blood, or (2) are 

members of a federally-recognized Tribe 

as defined in Sec. 4(e) of the Indian SelfDetermination and Education 

Assistance Act, are eligible for 

Medicaid, even if they are not U.S. 

citizens. In other words, individuals 

who meet one of the above requirements 

may be considered to be in satisfactory 

immigration status for purposes of 

determining eligibility for Federal 

public benefits. PRWORA specifically 

created an exception for American 

Indian/Alaska Native individuals who 

are not United States citizens. An 

American Indian/Alaska Native who 

declares him- or herself to be a citizen 

is not affected by PRWORA and is 

subject to this provision. 

Comment: A representative from one 

Tribe asked that CMS delay 

implementation of section 6036 of the 

DRA until the issue of adequate 

documentation for American Indian/ 

Alaska Natives has been further 

discussed and a solution reached. 

Response: In section 6036(b) of the 

DRA, Congress required the citizenship 

documentation requirements to apply 

July 1, 2006, specifically stating that the 

‘‘amendments made by subsection (a) 

shall apply to determinations of initial 

eligibility for medical assistance made 

on or after July 1, 2006, and to 

redeterminations of eligibility made on 

or after such date.’’

Comment: In contrast, several 

commenters agreed with CMS’ proposal 

to not accept tribal membership cards as 

first tier documentation verifying U.S. 

citizenship. 

Response: We appreciate the 

comment and have not made any 

changes at this time with respect to 

Tribal documents that will be accepted 

for purposes of verifying United States 

citizenship. 

Evidence of Citizenship for Children 

Comment: One commenter asked that 

CMS clarify what constitutes sufficient 

documentation of citizenship for 

children under age 16. One commenter 

noted that some documents will not be 

available for children. For instance, one 

State prohibits children under the age of 

18 from obtaining a certified copy of 

their own birth certificates. 

Response: As stated earlier, we 

believe the statute requires children 

who have either declared U.S. 

citizenship or have had such a 

declaration made on their behalf to meet 

the documentation requirements under 


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1903(x) of the Act. There are numerous 

ways to document citizenship for 

children as outlined in this final rule. 

Comment: One commenter requested 

that CMS reconsider whether 

documentation is necessary to 

document the citizenship and identity 

of very young children. They stated that 

there is very little question about the 

citizenship of children born to parents 

who have documented their own 

citizenship. They also request that CMS 

expand the list of satisfactory 

documents for young children. 

Response: As stated above, we 

interpret the statute as requiring that 

every individual who has declared to be 

a U.S. citizen or had a declaration made 

on his or her behalf must document 

such U.S. citizenship in order for the 

State to receive FFP. The State cannot 

assume a child’s citizenship status 

based on the parents’ information. 

Comment: One commenter 

recommended that CMS permit States to 

accept birth records to satisfy both the 

citizenship and identity requirements 

for children. 

Response: Section 1903(x)(3) of the 

Act requires that when an individual 

submits a birth certificate to establish 

citizenship, the individual must submit 

a second document to verify identity. 

Comment: Many commenters 

disagreed with CMS’ requirement that 

infants born to non-status aliens 

receiving ‘‘emergency Medicaid’’ in a 

U.S. hospital be required to submit 

documentation verifying citizenship. 

The commenters noted that individuals 

born in the U.S. are U.S. citizens, 

regardless of the citizenship of the 

mother. The commenters stated that, 

otherwise, many eligible citizen 

newborns risk a delay in health 

coverage to which they are entitled. 

Several commenters also stated that 

some eligible infants may not have 

applications made on their behalf and 

that CMS should make the process as 

simple and direct as possible for those 

responsible for this vulnerable 

population. 

Response: We have considered the 

comments received and are modifying 

the regulations to clarify that a child 

born to a woman who has applied for, 

has been determined eligible and is 

receiving Medicaid on the date of the 

birth of the child is deemed Medicaideligible for a period of one year so long 

as the mother also remains (or would 

remain if pregnant) eligible and the 

child is a member of the woman’s 

household. 

Under section 1902(e)(4) of the Act 

and 42 CFR 435.117, a Medicaid agency 

must provide Medicaid eligibility to a 

child born to a woman who has applied 

for, has been determined eligible and is 

receiving Medicaid on the date of the 

child’s birth. The child is deemed to 

have applied and been found eligible for 

Medicaid on the date of birth and 

remains eligible for one year so long as 

the woman remains (or would remain if 

pregnant) eligible and the child is a 

member of the woman’s household. 

Citizenship and identity documentation 

for the child would be obtained at the 

next redetermination of eligibility. This 

policy also applies to a citizen child 

born to a non-qualified or 5-year bar 

qualified alien mother eligible for and 

receiving Medicaid on the date of the 

child’s birth. 

In order for an individual to be 

determined eligible for Medicaid (with 

the exception of newborns deemed 

eligible under section 1902(e)(4) of the 

Act), he or she must complete a full 

Medicaid application. This is also the 

case for non-qualified or 5-year bar 

qualified aliens seeking coverage for 

emergency medical services (including 

labor and delivery) only. While nonqualified aliens are not required to meet 

the citizenship or satisfactory 

immigration status requirements or to 

submit a social security number, they 

must be determined otherwise-eligible, 

including but not limited to meeting 

residency, income and resource 

requirements. All standard Medicaid 

application procedures apply, including 

timely determination of eligibility and 

adequate notice of the agency’s decision 

concerning eligibility. Qualified aliens 

subject to the 5-year bar must 

demonstrate that they are in satisfactory 

immigration status, submit a valid social 

security number, and meet all other 

eligibility requirements including but 

not limited to the residency, income and 

resource requirements as part of being 

determined otherwise-eligible for 

emergency medical services under 

Medicaid. All Medicaid application 

procedures apply, such as timely 

determination of eligibility and 

adequate notice of the agency’s decision 

concerning eligibility. 

In most cases affected by this rule, 

States have up to 45 days to make an 

eligibility determination. Once an 

applicant is determined eligible, the 

effective date of eligibility may be the 

date of application, the first date of the 

month of application or up to 3 months 

prior to the month of application. Under 

retroactive eligibility authorized under 

section 1902(a)(34) of the Act, an 

applicant may be determined eligible for 

services rendered up to 3 months prior 

to the date of application. In order for 

a service to be covered by Medicaid in 

the 3 month period prior to the 

application, the applicant must be 

determined to have been Medicaideligible either on the date of service or 

during the month in which retroactive 

eligibility is provided. This applies to 

all applicants, including non-qualified 

or 5-year bar qualified aliens seeking 

coverage for emergency services 

(including labor and delivery) only. If a 

woman is found to be retroactively 

eligible for labor and delivery services, 

the newborn child would be deemed 

Medicaid-eligible from the date of birth. 

With respect to whether the mother 

remains (or would remain if pregnant) 

eligible for Medicaid after the birth of 

the child, the State must determine 

whether a non-qualified or 5-year bar 

qualified alien would remain eligible for 

emergency services under § 435.139 or 

§ 436.139. In determining whether the 

woman would remain eligible for such 

services, the State must consider 

whether the woman would remain 

otherwise-eligible if pregnant. 

If a woman does not apply for 

Medicaid or applies for Medicaid and is 

not determined eligible, her labor and 

delivery services will not be covered by 

Medicaid and the child would not 

benefit from the provisions under 

section 1902(e)(4) of the Act. In these 

cases, an application must be filed on 

behalf of the child and the citizenship 

documentation requirements would 

apply at the time of application. 

We note that certain children born in 

the United States do not benefit from 

deemed eligibility because the mother 

will be ineligible for both emergency 

and regular Medicaid. For example, 

foreign diplomats and their children 

(including those born in the United 

States) are not eligible for either 

emergency or regular Medicaid. (See 

section 3211.10 of the State Medicaid 

Manual, Publication 45.) In addition, 

some non-qualified aliens are not 

eligible for Medicaid coverage of an 

emergency medical condition because 

they do not meet all eligibility criteria, 

such as residence in a State. For 

example, individuals present in the 

United States on a current visitor’s visa 

are not considered residents of a State. 

Such individuals are admitted to the 

U.S. for temporary periods, and upon 

applying for the visa declared under 

penalty that they are not abandoning 

their primary residences abroad. While 

a child born in the United States to such 

an individual is a U.S. citizen and may 

be eligible for Medicaid, deemed 

eligibility does not apply. In these 

instances, a full Medicaid application 

for the child would be required to 

determine Medicaid eligibility. 

We are modifying the regulations text 

at § 435.117 and § 436.117 to reflect 

these changes in policy. 


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We note that CMS has not initiated 

action against any State to disallow FFP 

based on implementation of the deemed 

newborn provision under the policy in 

the interim final regulation. However, 

we expect that all States will be in 

compliance with the deemed newborn 

policy described above upon the 

effective date of the final regulation. We 

continue to provide States with ongoing 

outreach and technical assistance on 

this matter. 

Comment: Many commenters 

requested that States should be 

permitted to accept record of payment, 

and especially a State Medicaid 

agency’s record of payment, of an 

individual’s birth in a U.S. hospital as 

satisfactory documentation of both 

citizenship and identity. In addition, 

several commenters suggested that 

States be permitted to accept U.S. 

hospital records of birth as primary 

evidence of citizenship and identity for 

newborns. 

Response: A record of payment is not 

sufficient to document citizenship. We 

reviewed several hospital claims and 

determined that they do not contain 

sufficient information to establish 

citizenship. For example, the 

information provided on a labor and 

delivery claim is particular to the 

mother and does not contain any 

information on the infant. For instance, 

such claims do not indicate whether or 

not the labor resulted in a live birth. 

However, as stated in § 435.407(c)(1) 

and § 436.407(c)(1) of this final rule, an 

individual may use an extract of a 

hospital record of birth to verify an 

infant’s citizenship if higher tier 

documentation is unavailable. This 

document must be on hospital 

letterhead and created near the time of 

birth. We recommend that State 

eligibility workers work with the 

parents or caretakers of infant children 

to ensure that they are aware of these 

requirements and request the 

appropriate records from the hospital. 

Comment: One commenter requested 

that CMS clarify the regulations text at 

§ 435.407(b)(8), which states that, when 

an adoption has not been finalized, a 

State may accept a certification of the 

child’s U.S. place of birth from an 

adoption agency as long as the adoption 

agency can certify that the source of the 

birth information was an original birth 

certificate. The commenter 

recommended that CMS permit States to 

accept any information provided by the 

adoption agency pursuant to the 

regulations at § 435.407(b)(1), (d)(2)(iv), 

or (h)(1) (now (i)(1)) of the July 12, 2006 

interim final rule, including a match 

with a State vital statistics agency. 

Response: We note that if the 

adoption is for a child eligible for Title 

IV–E Adoption Assistance, the child 

would be exempt from these 

requirements as authorized under 

section 405(c)(1)(A) of Division B of the 

TRCHA. If the exemption does not 

apply, a State may accept birth 

information from an adoption agency if 

the adoption agency certifies that it 

obtained the information from an 

original birth certificate or certified 

copy of a birth certificate. The State may 

also conduct a match with the 

appropriate vital statistics agency using 

the information provided by the 

adoption agency, or work with another 

State to conduct such a match with that 

State’s vital statistics agency. 

Comment: One commenter requested 

that CMS clarify how the regulations 

apply to children born outside of the 

U.S. They recommended that CMS 

recognize the automatic citizenship of 

any child affected by the Child 

Citizenship Act of 2000. 

Response: All individuals claiming 

U.S. citizenship or who have had a 

declaration made on their behalf, 

including children, must provide 

evidence of citizenship and identity. As 

previously stated, if the adoption is for 

a child eligible for Title IV–E Adoption 

Assistance, the child would be exempt 

from these requirements as authorized 

under section 405(c)(1)(A) of Division B 

of the TRCHA. Otherwise, and as stated 

in the preamble to the July 12, 2006 

interim final rule, a child born outside 

the U.S. and adopted by a U.S. citizen 

may establish citizenship under section 

320 of the Immigration and Nationality 

Act (8 U.S.C. 1431), as amended by the 

Child Citizenship Act of 2000 (see 71 FR 

39218). This also applies to certain 

children born abroad whose parents are 

naturalized citizens. The State must 

obtain documentary evidence that 

verifies that at any time on or after 

February 27, 2001, the following 

conditions have been met: (1) The child 

has at least one U.S. citizen parent (by 

either birth or naturalization); (2) the 

child is under the age of 18; (3) the child 

is residing in the United States in the 

legal and physical custody of the 

American citizen parent; (4) the child 

was admitted to the United States for 

lawful permanent residence; and (5) if 

adopted, the child satisfies the 

requirements of section 101(b)(1) of the 

Immigration and Nationality Act (8 

U.S.C. 1101(b)(1)) pertaining to 

international adoptions (i.e., the child 

must have been admitted as an IR–3 if 

adopted outside the United States, or 

been admitted as an IR–4 with a final 

adoption having taken place in the 

United States). 

The U.S. citizenship of the parent 

should be verified as otherwise 

provided in this rulemaking. Admission 

of the child as a lawful permanent 

resident should be verified in the 

manner provided for a determination of 

‘‘qualified alien’’ status, including 

SAVE verification. More detailed 

information about documentary 

evidence that can be used to satisfy 

elements of a section 320 claim to U.S. 

citizenship is provided in DHS 

regulations at 8 CFR Part 320 (especially 

section 320.3(b)) and in the instructions 

for DHS Form N–600, Application for 

Certificate of Citizenship (available on 

the USCIS Web site at http://uscis.gov). 

Note that these provisions apply to 

claims of ‘‘automatic’’ citizenship under 

section 320 of the Immigration and 

Nationality Act only. The Child 

Citizenship Act also amended section 

322 of that Act (8 U.S.C. 1433). Section 

322 is, however, a naturalization 

provision that requires a grant of 

citizenship by DHS. Determination of 

citizenship of a section 322 claimant 

should be made in the manner provided 

by this rulemaking for other naturalized 

citizens. 

We have modified our regulations at 

§§ 435.407(b)(12) and 436.407(b)(12) to 

codify this rule, as stated in the 

preamble to the July 12, 2006 interim 

final rule. 

Affidavit Process 

Comment: Several commenters 

requested that CMS clarify what it 

means when it uses the term ‘‘affidavit.’’

According to the commenters, the term 

‘‘affidavit’’ may have different 

definitions under State law. The 

commenters were particularly 

concerned with whether the affidavit 

must be notarized. They stated that CMS 

did not intend to require applicants to 

notarize the affidavit, as this could pose 

problems for people in more remote 

areas. 

Response: We understand from the 

commenters that under many State laws 

an affidavit must be notarized. We note 

that for purposes of meeting the 

requirements of section 6036 of the 

DRA, an ‘‘affidavit’’ is a signed written 

declaration made under penalty of 

perjury. This document does not need to 

be notarized. We have modified the 

regulations text at § 435.407(f) and 

§ 436.407(f) to clarify that these identity 

affidavits are not required to be 

notarized. 

Comment: Several commenters 

disagreed with CMS’ decision to require 

that the individuals submitting 

supporting affidavits on behalf of a 

recipient or applicant be citizens and 

verify their own citizenship. The 


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commenters do not agree that it is 

necessary for an individual to be a 

citizen to know the circumstances of 

another individual’s citizenship. They 

stated that this requirement does not 

ensure greater authenticity of the 

applicant’s or recipient’s claim but only 

makes the process more burdensome. 

One commenter requested that CMS 

clarify whether this policy applies to 

parents or guardians filing affidavits on 

behalf of a child. One commenter 

further requested that CMS exempt 

supporting affiants from verifying their 

own citizenship for purposes of the 

affidavit process if they are exempt from 

verifying citizenship for purposes of 

Medicaid (e.g. individuals in receipt of 

SSI or SSDI). 

Response: We do not believe 

accepting supporting affidavits from a 

non-citizen individual is appropriate. 

The intent of the law is for citizens to 

document their citizenship status; 

therefore, we believe it is counterintuitive and does not accord with the 

overall purpose of the law to permit 

non-citizens to establish another 

individual’s citizenship, including the 

non-citizen parents of a citizen child. 

Therefore, the policy continues to be 

that States may only accept supporting 

affidavits from a citizen who has 

personal knowledge of the events 

determining another individual’s 

citizenship. 

Comment: Several commenters stated 

that the affidavit process was overly 

burdensome. The commenters stated 

that affidavits should be accepted when 

appropriate, and not just in the rarest of 

circumstances. In addition, the 

commenters stated that it is unrealistic 

to expect that two individuals, 

including one non-relative, will be able 

to provide information on the facts 

establishing citizenship. Another 

commenter requested that CMS not 

require a third affidavit from a second 

witness. The commenter argued that the 

affidavits from the other two individuals 

already establish the information on the 

absence of other documentary evidence 

and that further evidence is 

unnecessary. 

Response: The process established for 

affidavits is necessary to protect the 

integrity of the Medicaid program. We 

believe that requiring two affidavits is a 

safeguard that ensures consistency in 

the accounts and prevents against fraud. 

We believe that it is less likely that an 

applicant or recipient who can obtain 

two corroborating affidavits by other 

individuals to support his own affidavit 

will be engaged in fraud. It is important 

that at least one of the affidavits be from 

a non-relative to diminish the 

possibility of conflict of interest. 

In addition, we note that there are 

numerous documents available to an 

individual to verify citizenship status. 

Most applicants should not have to 

resort to an affidavit. 

Comment: One commenter requested 

that CMS permit States to accept 

affidavits to document both citizenship 

and identity. 

Response: As we previously stated, 

the statute requires that when an 

individual does not use a first tier 

document to establish both citizenship 

and identity, the individual must 

provide two distinct documents to 

verify citizenship and identity. We have 

only allowed identity affidavits in the 

rare circumstances where we believe 

there is a reasonable possibility that the 

individual will not be able to obtain 

other documents proving identity. 

Populations eligible to use identity 

affidavits are children under the age of 

16 (18 in limited circumstances) and 

disabled individuals living in 

residential care facilities. 

Comment: Several commenters 

recommended that CMS change the 

regulations to permit naturalized 

citizens to submit signed affidavits 

accompanied by copies of any 

supportive documents and/or 

information, such as the date of 

naturalization, alien registration 

number, or information on a parent’s 

naturalization. The commenter noted 

that all naturalization cases can be 

verified by DHS. 

Response: We have considered the 

commenters’ request and agree that it is 

appropriate to permit naturalized 

citizens to submit an affidavit to verify 

citizenship. While we believe that 

electronic verification with the SAVE 

Program will eliminate the need for 

many naturalized citizens to utilize the 

affidavit process, we believe that such 

individuals should have a recourse 

available to them when their 

information cannot be located in the 

SAVE database. Such affidavits should 

of course be considered carefully for 

their probative value in light of the fact 

that they are offered as proof that the 

U.S. Government has conferred a status 

(and that it is a continuing status, i.e., 

that the person has not been 

denaturalized) absent any other 

evidence of that grant of status. 

Comment: One commenter requested 

that CMS remove from the regulations 

the use of affidavits. The commenter 

stated that the intent of the Congress 

was to move away from self-attestation 

of citizenship and that CMS is not 

meeting that intent by allowing an 

individual to prove citizenship through 

a written affidavit. The commenter also 

stated that if an individual cannot prove 

citizenship based on one of the other 

methods, that is a strong indication that 

person is not a citizen. 

The commenter recommended that if 

CMS is to retain the affidavit provision, 

it be modified. The commenter 

recommended that CMS explicitly state 

in the regulations that an affidavit may 

only be used if higher-tier 

documentation does not exist, not that 

it cannot be obtained. The commenter 

also recommended that a second 

affidavit explaining why the 

documentary evidence does not exist 

should be required, not requested. The 

commenter stated that the second 

affidavit will help the State Medicaid 

Offices keep track of why applicants are 

relying on an affidavit and possibly help 

them verify the applicant’s citizenship. 

One commenter strongly opposed the 

use of affidavits as proof of citizenship. 

The commenter stated his opinion that 

affidavits blur the lines between clear 

verification of citizenship and an honor 

system. The commenter requested that if 

CMS is to maintain use of affidavits, 

CMS should clarify what constitutes 

‘‘personal knowledge’’ and ‘‘rarest 

circumstances.’’

Response: We do not agree that we 

should delete the affidavit process. We 

fully agree that the Congress intended 

that we no longer rely on selfdeclaration alone as sufficient evidence 

of citizenship. However, we do not 

agree that our affidavit process is the 

same as the process of self-declaration. 

The conditions under which a person 

may utilize the affidavit process are 

strictly limited to rare instances when 

higher level documentation is not 

available, and affiants declare their 

status under penalty of perjury. 

We also disagree with the commenter 

who stated that we should require States 

to obtain from a second affiant 

information on why citizenship 

documentation is not available to an 

individual. If this information is 

available, as stated in the regulations at 

§ 435.407(d)(5)(iv) and 

§ 436.407(d)(5)(iv), it should be 

contained in the affidavit. However, it is 

possible for States to determine whether 

the individual has provided sufficient 

evidence of citizenship without 

information on why other documents 

may not be available. 

For purposes of the affidavit process, 

an individual has ‘‘personal knowledge’’

of circumstances if he or she has 

knowledge about the event that 

established a person’s citizenship or has 

personally seen a document establishing 

citizenship—such as a passport that 

burned in a fire. The individual should 

be able to share details such as when 

and where the event occurred, who was 


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involved and whether there were any 

special circumstances surrounding the 

event. 

For this same purpose, we consider 

‘‘rare circumstances’’ to be instances 

when none of the acceptable documents 

are available to the individual. 

Comment: One commenter requested 

that CMS clarify the degree of 

relationship that is meant by ‘‘related’’

with respect to the affidavit process. 

The commenter requested that CMS 

clarify whether two people in a 

relationship by marriage are considered 

‘‘related.’’

Response: States are in the best 

position to determine degrees of 

relationships that fall into the term 

‘‘related.’’ However, we would expect 

States to consider spouses to be related. 

Comment: One commenter requested 

that CMS delete from § 435.407(d)(5)(v) 

the parenthetical reference to ‘‘guardian 

or representative’’ and allow for this 

affidavit to be signed by ‘‘the applicant 

or recipient or other knowledgeable 

individual.’’

Response: We have considered the 

commenter’s request; however, it is 

important that the individual submitting 

an affidavit of citizenship on behalf of 

an incapacitated person be the guardian 

or representative of that individual. It is 

sufficiently reliable that another person 

attest to the circumstances of the 

individual’s citizenship status when a 

guardian or representative has been 

legally appointed to care for the 

individual’s affairs. 

Identity Documentation 

Comment: Several commenters noted 

that evidence of identity will be very 

difficult for certain populations to 

obtain. In particular, the commenters 

expressed concern about the ability to 

obtain identification for children. One 

commenter recommended that CMS 

revise the regulations to permit States to 

accept school records, and not just 

photo ID, as acceptable identification for 

children under the age of 16, as many 

schools do not issue photo ID. Several 

commenters recommended that CMS 

permit States to accept photos contained 

in yearbooks for purposes of 

identification. Several commenters 

requested that CMS revise the 

regulations to exempt children under 

the age of 18 from submitting photo 

identification. 

Response: We understand the 

commenters’ concerns regarding 

identity documentation for children. For 

this reason, we permitted identity 

affidavits to be submitted on behalf of 

children under the age of 16. In most 

locations, children 16 and above have 

access to either a school ID card with a 

photograph, or a driver’s license that 

contains a photograph or other 

identifying information listed in the 

regulations at § 435.407(e)(1) and 

§ 436.407(e)(1). However, we 

understand from the commenters that 

this is not universally true. Therefore, in 

areas where both a school ID card with 

a photograph that meets the criteria at 

§ 435.407(e)(1)(ii) or § 436.407(e)(1)(ii) 

or a driver’s license that meets the 

criteria at § 435.407(e)(1)(i) or 

§ 436.407(e)(1)(i) are not available to an 

individual before the age of 18, States 

will be permitted to accept affidavits 

establishing the identity of children up 

to age 18. 

We have revised the regulations text 

at § 435.407(f) to include school records 

such as report cards. If the State accepts 

such records, it must verify them with 

the issuing school. 

Comment: One commenter requested 

that the regulations be revised to permit 

States to accept affidavits to establish 

identity for all children under the age of 

18. In addition, the commenter 

requested that CMS permit caretaker 

relatives to submit affidavits on behalf 

of children. 

In contrast, one commenter stated that 

CMS inappropriately approved the use 

of affidavits for children under the age 

of 16 to establish identity. The 

commenter noted that use of affidavits 

for these purposes violate the DRA, the 

INA, and the Attorney General’s 

regulations. The commenter requested 

that CMS revise the regulations to 

eliminate this use of affidavits. 

Response: As we stated in the 

previous comment, we are revising the 

regulations to permit States to accept 

affidavits establishing the identity of 

children up to age 18 in areas where 

school ID cards and driver’s licenses 

establishing identity in accordance with 

our regulations are not available to an 

individual before the age of 18. 

We have reconsidered whether 

identity affidavits for children must be 

signed by a parent or legal guardian and 

agree with the commenter who 

requested that CMS permit caretaker 

relatives to sign identity affidavits on a 

child’s behalf. We have revised the 

regulations at § 435.407(f) and 

§ 436.407(f) to reflect this change. 

In response to the commenter who 

stated that the use of identity affidavits 

violate the DRA, we note that section 

1903(x)(3)(D)(ii) permits the Secretary to 

approve additional documents as 

evidence of identity. 

Comment: Several commenters 

requested that CMS accept many 

additional documents as proof of 

identity. Among these, commenters 

requested that CMS accept court-issued 

documents for individuals of any age; 

facility medical records for any 

institutionalized individuals who are 

not receiving SSI or Medicare; current 

employer ID cards; ID cards with photos 

issued by a private agency providing 

social services (for example, Salvation 

Army); government-issued papers not 

related to public assistance (e.g. tax 

returns); bank statements; utility bills; 

IDs or documents from correctional 

institutions; military discharge papers; 

certified copies of marriage certificates 

or judgments of divorce; and checks 

issued by the Department of Veterans’

Affairs. 

Response: We have expanded the use 

of additional identity documents to 

include a combination of three or more 

of the following official documents: 

Employer identification cards, high 

school and college diplomas from 

accredited institutions (including 

general education and high school 

equivalency diplomas), marriage 

certificates, divorce decrees, and 

property deeds/titles. A combination of 

three or more of these documents must 

corroborate one another and must not 

conflict, and may only be used to verify 

identity if the individual used 

secondary or third level evidence of 

citizenship and the document was not 

used to verify citizenship. A State may 

permit an individual to submit such 

documents only when it has determined 

that no other evidence of identity is 

available to the individual prior to 

accepting these documents. The 

documents should be originals or 

certified copies. This is similar to SSA 

policy in that SSA may accept an 

employer identification card or marriage 

document as secondary level evidence 

of identity along with additional 

supporting documentary evidence for 

purposes of issuing an SSN (see POMS 

RM 00203.200 Evidence of Identity for 

an SSN Card). We have added 

regulations text at § 435.407(e)(3) and 

§ 436.407(e)(3) to reflect this change. 

Comment: Several commenters stated 

that the July 12, 2006 interim final rule 

failed to include several identity 

documents found in the Immigration 

and Nationality Act. The commenters 

noted that section 1903(x)(3)(D)(i) of the 

Act states that ‘‘any identity document 

described in section 274A(b)(1)(D) of the 

Immigration and Nationality Act’’ is 

acceptable proof of identity. The 

commenters stated that under the 

regulations at 8 CFR 274a2(b)(1)(v)(B), 

which implement section 274A(b)(1)(D) 

of the Immigration and Nationality Act, 

voter registration cards and Canadian 

driver’s licenses are acceptable proof of 

identity for anyone 16 years of age or 

older. The commenters therefore 


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conclude that the Congress has deemed 

these documents as reliable forms of 

identity. The commenter further notes 

that section 1903(x)(3)(D)(ii) of the Act 

authorizes the Secretary to expand the 

list of acceptable evidence of identity, 

rather than restrict the list established 

by the Congress. 

Response: We do not agree that voter 

registration cards and Canadian driver’s 

licenses are acceptable evidence of 

identity for the purpose of Medicaid 

eligibility. The DRA required CMS to 

accept as evidence of identity any 

document described in section 

274A(b)(1)(D) of the INA. Section 

274A(b)(1)(D)(i) of the INA says that a 

document is a ‘‘driver’s license or 

similar document issued by a State if it 

contains a photograph of the individual 

or other such personal identifying 

information relating to the individual.’’

We do not believe either voter 

registration cards or Canadian driver’s 

licenses meet this requirement. Voter 

registration cards do not contain 

photographs or other personally 

identifying information. Canadian 

driver’s licenses are not issued by a 

State. 

We recognize that regulations 

implementing this requirement under 

the Immigration and Nationality Act 

long have included a much wider 

variety of documents than the statute 

would appear to permit, and that 

Congress undoubtedly was aware of this 

implementation when cross-referencing 

the provision, and have taken that 

consideration into account in listing all 

the regulatory documents but these two. 

However, the section 1903 reference is 

to the statute and does not require us to 

designate documents with no personal 

identifying information or foreignissued documents as evidence of 

identity to establish U.S. citizenship. 

Comment: One commenter requested 

that CMS clarify whether identity 

documents may be used even if they 

recently expired. 

Response: States may accept identity 

documents that have recently expired as 

long as there is no reason to believe that 

the document does not match the 

individual. 

Comment: One commenter requested 

that CMS extend the permissible use of 

affidavits to establish the identity of 

disabled individuals. Several 

commenters requested that CMS permit 

States to accept affidavits from 

providers of long term care or 

rehabilitation service facilities to 

demonstrate the identity of individuals 

in their care. 

Response: We agree with the 

commenters. A State may accept an 

identity affidavit on behalf of a disabled 

individual made by a director or 

administrator of a residential care 

facility where the individual resides. 

However, the State should first pursue 

all other means of verifying identity 

prior to accepting such an affidavit. The 

affidavit is not required to be notarized. 

We have modified the regulations at 

§ 435.407(g) and § 436.407(g) to 

incorporate this policy. 

Comment: One commenter requested 

that States be permitted to accept an 

identity affidavit for adults in certain 

limited circumstances. 

Response: As stated above, we have 

permitted the use of identity affidavits 

for disabled adults in residential care 

facilities. 

Comment: One commenter requested 

that CMS clarify which Native 

American tribal documents will satisfy 

the identity requirement and what kind 

of information the document must 

include. 

Response: Documents establishing 

identity must include a photograph or 

other personally identifying information 

such as height, weight, hair color, eye 

color, sex, or race. We have revised the 

language at § 435.407(e)(1)(vi) to reflect 

this. 

Comment: One commenter requested 

that CMS clarify the list of identity 

documents. The commenter stated that 

the list in the regulations text at 

§ 435.407(e)(8) and § 436.407(e)(8) 

appears to be duplicative of the 

documents described in § 435.407(e)(1)–

(7) and § 436.407(e)(1)–(7) and its 

presence is therefore confusing. 

Response: We inadvertently repeated 

the list of documents from the INA 

twice. For this reason, we have removed 

the regulations text at § 435.407(e)(8). In 

addition, we have removed 

§ 435.407(e)(9), which was a duplicate 

of the new § 435.407(e)(1)(vi). The 

regulations text at § 435.407(e)(10) in 

the interim final regulations is now at 

§ 435.407(e)(2). 

Comment: One commenter stated that 

each of the identity and citizenship 

documents presented by CMS is 

vulnerable to fraud at the enrollment, 

issuance, and usage phases. Therefore, 

the commenter recommended that 

information-based identity 

authentication be included as a 

requirement to bolster the identity 

authentication process. 

Response: We appreciate the 

commenter’s technical expertise and 

will keep this in mind as we approve 

databases and processes for electronic 

matching. We note that States are 

required to protect against fraud under 

the regulations at 42 CFR 431 Subpart 

P Quality Control. 

Comment: One commenter requested 

that CMS clarify whether identification 

cards issued by the Federal, State or 

local government must have the same 

information as is actually included on 

some unspecified drivers’ licenses, or 

whether they must simply have the 

same information as is required by the 

July 12, 2006 interim final rule for 

drivers’ licenses as documentation of 

identity. The commenter recommended 

that CMS accept the latter. In addition, 

the commenter requested that CMS 

clarify whether a State is to compare all 

government-issued identification cards 

to its own drivers’ licenses or should it 

compare these identification cards to 

the drivers’ licenses in the State in 

which the card was issued. Similarly, 

the commenter requested that CMS 

identify the drivers’ licenses to which 

Federal identification cards are to be 

compared. 

Response: Identification cards issued 

by the Federal, State, or local 

government must contain a photograph 

or personally identifiable information 

such as height, weight, age, and sex. 

States may determine whether or not a 

particular identification card meets their 

standard for establishing identity. 

Generally, drivers’ licenses contain at 

least a photograph or, if not, detailed 

information on the person’s physical 

appearance. We intended the reference 

to comparing identification cards to 

drivers’ licenses to mean that a State 

would consider whether the information 

provided on the identity card was 

comparable to what is provided on 

drivers’ licenses generally. 

Requests for Assistance 

Comment: Several commenters 

requested that CMS require States to 

extend assistance to indigent 

individuals who cannot afford to pay for 

obtaining the required documents. One 

commenter requested that States be 

required to pay the cost of obtaining 

original and certified copies of 

citizenship documents. One commenter 

requested that the Federal government 

reimburse States for 100 percent of any 

costs the State incurs while attempting 

to secure documents for recipients or 

applicants. One commenter requested 

that CMS require States to waive fees for 

individuals seeking documents in the 

State’s control to prove their identity 

and citizenship for Medicaid purposes. 

Response: As we stated in the interim 

final rule with comment period, FFP for 

administrative expenditures is available 

at the current match rate to assist States 

with these costs. 

Comment: Several commenters noted 

that the phrase ‘‘incapacity of mind’’ is 

vague and undefined. They suggested 


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that CMS modify the change to the 

regulations to require States to assist 

individuals who ‘‘due to a physical or 

mental condition’’ are unable to comply 

with the requirements. One commenter 

requested that CMS replace the term 

with a more specific definition of who 

is being targeted. One commenter 

suggested that we replace the term with 

‘‘individuals with mental or physical 

impairments.’’

Response: We accept the comment 

and have revised the regulations text at 

§ 435.407(h) and § 436.407(h) (formerly 

§ 435.407(g) and § 436.407(g)) to reflect 

this change. 

Comment: Several commenters noted 

that the new regulation text does not 

specifically require States to assist 

homeless persons or individuals whose 

documentation may have been lost or 

destroyed due to a natural or man-made 

disaster to verify their citizenship. The 

commenters suggested that CMS modify 

the regulations to explicitly require 

States to aid these groups. One 

commenter requested that CMS expand 

the list of reasons why a person may 

require assistance at the outset, making 

specific reference to both the Americans 

with Disabilities Act (ADA) and section 

504 of the Rehabilitation Act and 

including specific people who are 

limited English proficient (LEP). The 

commenters also requested that CMS 

indicate in the final rule the steps States 

must take to assist populations with 

special needs. One commenter 

recommended that these individuals be 

designated as a State representative who 

will have the primary responsibility of 

obtaining the required documentation. 

Response: All of the protections 

offered under the Civil Rights Act, the 

Americans with Disabilities Act and the 

Rehabilitation Act apply. As we stated 

in the interim final rule with comment 

period, States must assist individuals 

who are trying in good faith to obtain 

satisfactory documentation but cannot 

do so within the reasonable opportunity 

period (see 71 FR 39216). 

Comment: Several commenters 

requested that CMS permit States to 

institute a Hardship Provision to 

account for personal and natural 

disasters. The commenters stated that 

often these individuals are in critical 

need of medical care, but due to their 

circumstances are unable to provide the 

necessary documentation. The 

commenters stated that these 

individuals should be afforded benefits 

upon application, if otherwise 

Medicaid-eligible. 

Response: States must assist 

individuals who are trying in good faith 

to obtain satisfactory documentation but 

cannot do so within the reasonable 

opportunity period (see 71 FR 39216). 

Comment: One commenter requested 

that CMS modify the reasonable 

opportunity definition to include an 

affirmative obligation on States to 

provide assistance and guidance to any 

recipient or applicant actively trying to 

procure documentation. 

Response: The statute has provided 

that many of the vulnerable individuals 

are exempt from these requirements. 

Under the regulations at § 435.407(h) 

(formerly § 435.407(g)), we have 

required States to assist special 

populations. In addition, as stated 

above, we clarified in the preamble to 

the interim final rule with comment 

period that States must assist any 

individual who is trying in good faith to 

obtain satisfactory documentation but 

cannot do so within the reasonable 

opportunity period (see 71 FR 39216). 

In any case, we have always expected 

States to help individuals requiring 

assistance. Under the regulations at 

§ 435.908 ‘‘Assistance with application’’

a State Medicaid Agency must allow an 

individual the choice of having 

someone accompany, assist, and/or 

represent him or her during the 

application or redetermination process. 

In addition, States are required under 

the regulations at § 435.905 to provide 

written information on eligibility 

requirements. We expect States to 

incorporate into written information 

which documents are acceptable to 

verify citizenship. 

Comment: One commenter stated that 

the policy set forth in the July 12, 2006 

interim final rule violates the Federal 

Medicaid statute by treating applicants 

and recipients differently. The 

commenter expressed particular 

concern with respect to terminating the 

reasonable opportunity period for 

applicants at 45 or 90 days while 

allowing recipients an indefinite 

amount of time to produce the 

documents. 

Response: We have not changed the 

long-standing reasonable opportunity 

periods afforded applicants and 

recipients during application and 

redetermination. For this reason, we 

stated in the preamble to the interim 

final rule with comment period that the 

reasonable opportunity period should 

be consistent with the State’s 

administrative requirements such that 

the State does not exceed the time limits 

established in Federal regulations for 

timely determination of eligibility in 

§ 435.911. The regulations permit 

exceptions from the time limits when an 

applicant or recipient in good faith tries 

to present documentation but is unable 

to do so because the documents are not 

available. 

Further Exemptions 

Comment: Many commenters 

acknowledged their support of CMS’

change to the regulations to exempt 

recipients of Medicare and SSI from the 

citizenship documentation 

requirements. Several commenters 

recommended that CMS modify the 

change to exempt individuals who are 

not currently in receipt of both 

Medicare and SSI but had been in the 

past. The commenters also requested 

that if CMS exempts these individuals, 

it should specify in the regulations how 

far back the States may look for 

Medicare and SSI eligibility. One 

commenter recommended that CMS 

exempt SSI applicants who were denied 

for reasons other than citizenship. One 

commenter requested that CMS clarify 

whether only the citizenship 

documentation process is waived for 

Medicare and SSI recipients or if the 

identity documentation process is 

waived as well. 

Response: Section 1903(x)(2) of the 

Act exempts only those individuals who 

are currently entitled to or enrolled in 

Medicare or in receipt of SSI. Further, 

SSA does not make available to CMS the 

bases for denial. Therefore, we would 

not be able to determine whether an 

individual was terminated or denied 

based on immigration status. Both the 

identity and the citizenship 

documentation requirements do not 

apply in the case of exempted 

individuals. 

Comment: Many of the commenters 

suggested that CMS modify the 

regulations to exempt additional groups 

from the citizenship verification 

requirements, including groups of 

individuals for whom the commenters 

believe SSA has already verified 

citizenship status. 

Response: The TRHCA amended 

section 1903(x)(2) to exempt individuals 

receiving disability insurance benefits 

under section 223 of the Act or monthly 

benefits under section 202 of the Act, 

based on such individual’s disability (as 

defined in section 223(d) of the Act). 

The State may also confirm such receipt 

with SSA through established data 

matches. As stated earlier, we do not 

have the authority to exempt groups that 

were not exempted by the statute unless 

they meet the statutory requirements in 

section 1903(x)(2)(D) of the Act. 

Comment: One commenter requested 

that we exempt all SSI recipients and 

not just those in the section 1634 States 

where SSI recipients are automatically 

eligible for Medicaid. 


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Response: As previously stated, the 

TRHCA amended section 1903(x) of the 

Act to exempt all individuals in receipt 

of SSI. 

Comment: Many commenters 

requested that CMS exempt individuals 

currently covered or otherwise eligible 

for services under a family planning 

waiver. The commenters noted that 

these individuals should be exempt 

from the documentation requirements 

due to the timely nature of their need 

for services. 

Response: We believe it is consistent 

with the intent of the law that 

individuals receiving medical assistance 

through a State Medicaid program 

declare citizenship or immigration 

status and provide documentation of 

that status including individuals 

receiving medical assistance through an 

1115 demonstration. Such individuals 

must apply for coverage and be 

determined to meet all other Medicaid 

requirements, such as providing a valid 

social security number. 

We note that PRWORA requires that 

any individual receiving Federal public 

benefits be a citizen or qualified alien, 

with limited exceptions. We note that 

CMS would not be able to waive this 

requirement for purposes of eligibility 

for an 1115 demonstration program or 

family planning waiver. 

Comment: Several commenters 

requested that CMS exempt foster 

children from the citizenship 

documentation requirements. 

Response: Section 405(c)(1)(A) of 

Division B of the TRCHA amended 

section 1903(x) of the Act to exempt 

children in foster care who are assisted 

under Title IV–B of the Act and children 

who are recipients of foster care 

maintenance or adoption assistance 

payments under Title IV–E of the Act. 

We note however, that section 

405(c)(1)(B) of Division B of the TRCHA 

requires the State title IV–E agency to 

have procedures to verify the 

citizenship or immigration status of any 

child in foster care under the 

responsibility of the State under titles 

IV–B or IV–E. 

Comment: Several commenters 

recommended that CMS revise the 

regulations to exempt all foster children 

upon initial placement, at which time 

Title IV–E eligibility may not yet have 

been determined. Several commenters 

requested that these exceptions also be 

made for children in informal 

placements and State and tribal-run 

foster care systems. 

Response: As previously stated, 

section 405(c)(1)(A) of Division B of the 

TRCHA exempted children in foster 

care who are assisted under Title IV–B 

of the Act and children who are 

recipients of foster care maintenance or 

adoption assistance payments under 

Title IV–E of the Act. For purposes of 

this provision, foster care includes any 

child assisted under Title IV–B in the 

placement and care responsibility of a 

State or Tribe that is in an out-of-home 

placement, regardless of licensing or 

payment status of the provider. 

Comment: One commenter requested 

that CMS exempt abandoned babies 

from the requirements. The commenter 

stated that because parents are not 

required to provide personal 

information, little is known about these 

infants. 

Response: To the extent these 

children are in foster care, they would 

be exempt from these requirements 

based on the TRHCA’s exemption of 

children in receipt of Title IV–B services 

or IV–E assistance. However, we do not 

have the authority to exempt groups that 

were not exempted by the statue unless 

they meet the statutory requirements in 

section 1903(x)(2)(D) of the Act. 

Comment: One commenter requested 

that CMS explain why some 

requirements only apply to children 

under 16 years old when a child is not 

normally considered an adult until age 

18. 

Response: In general, it is appropriate 

to require children over the age of 16 to 

present identification from the list. In 

general, individuals over the age of 16 

will be able to obtain a driver’s license 

or school ID. However, as we previously 

stated, in areas where identity 

documents are not available to 

individuals before the age of 18, a 

parent or guardian may provide an 

identity affidavit on a child up to age 

18. We have changed the regulations 

text at § 435.407(f) to reflect this change. 

Comment: One commenter 

recommended that CMS allow 

individuals and families who are 

victims of natural disasters to be given 

5 months of coverage under Medicaid 

beginning on the date of the natural 

disaster’s occurrence without regard to 

the citizenship documentation 

requirements. The commenter also 

recommended that additional coverage 

should be provided for pregnant women 

affected by natural disasters through 60 

days postpartum. 

Response: How to treat Medicaid 

eligibility in the event of a natural 

disaster is out of the scope of this 

regulation. Under reasonable 

opportunity, States must aid individuals 

in obtaining documentation if the 

individuals are making a good faith 

effort to procure the documents but are 

unable to do so within the reasonable 

opportunity period. 

Comment: One commenter 

recommended that children, regardless 

of documentation of citizenship, be 

considered eligible for emergency 

services under the same circumstances 

that aliens may receive these services. 

One commenter recommended that 

children under the age of 5 be 

presumptively considered citizens and 

be covered under Medicaid for 6 months 

while the necessary documentation is 

being gathered. 

Response: As previously stated, we do 

not have authority under the law to 

make citizens eligible for emergency 

services authorized for aliens only 

under section 1903(v)(3) of the Act, as 

well as PRWORA. In addition, we 

believe that providing medical 

assistance to individuals prior to 

collecting citizenship documentation 

requirements would violate the intent of 

section 1903(x), which requires States to 

have such documentation as a condition 

of receiving FFP. 

Comment: One commenter requested 

that CMS include the Medicare/SSI 

exemption in § 436.406 as well as 

§ 436.1004 to clearly establish that these 

populations are excluded from the 

documentation requirements. 

Response: We agree with the 

commenter and have modified the 

regulations text at 42 CFR part 435 or 42 

CFR part 436 to include these 

exemptions. 

Comment: Several commenters 

recommended that CMS consider 

several additional populations to be 

presumptively eligible, including their 

status as citizens, because they will 

likely not have the capabilities to obtain 

the proper identification documents. 

Response: Criteria for presumptively 

eligible is under sections 1920, 1920A 

and 1920B of the Act. Addressing 

modifications to these statutory 

provisions is outside the scope of this 

rule. We have previously addressed how 

States may help individuals requiring 

assistance. 

Outreach 

Comment: Several commenters 

requested that CMS work with the 

States to ensure that appropriate 

outreach efforts are made. The 

commenters noted that there exists 

considerable lack of awareness and 

confusion of what is required by section 

6036 of the DRA on the part of 

eligibility workers, and applicants for 

and recipients of Medicaid. One 

commenter requested that CMS outline 

the extent of CMS’ outreach program so 

that States can avoid any duplication of 

effort. 

Response: We have been working 

with States on a comprehensive 


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outreach plan. Outreach to date 

includes meetings and open door 

forums with over 150 organizations 

comprised of States, advocacy groups, 

and technical advisory groups. We have 

also distributed the State Medicaid 

Director’s Letter on the citizenship 

documentation requirement to 100 

advocacy groups. Working in 

conjunction with these organizations, 

we have reached out to over 49,000 

individuals. 

We continue to provide education and 

outreach through speaking at 

conferences, conducting conference 

calls, and providing technical assistance 

to a number of our closest partners in 

reaching out to States and information 

intermediaries. 250 organizations 

participated in two Low-Income Open 

Door Forums including Indian Health 

Service, American Association of People 

with Disabilities, American College of 

Physicians, National Council on Aging, 

National Center for Children and 

Poverty, Public Hospital Pharmacy 

Association, and National Senior 

Citizens Law Center. 

Finally, we have posted numerous 

outreach and education materials in 

both English and Spanish to the CMS 

Web site as part of the campaign. We 

encourage States, advocacy groups and 

individuals to use these materials to 

reach out to other organizations and 

people with Medicaid to provide more 

information about the new 

requirements. These documents include 

a brochure, PowerPoint presentation, 

poster, Questions and Answers sheet 

and a fact sheet. 

Comment: One commenter requested 

that CMS and the States clarify in their 

outreach efforts that these new 

requirements apply only to Medicaid, 

not the Food Stamp Program. 

Response: The statute only applies to 

Medicaid. In the interim final rule with 

comment period, we stated that these 

determinations are not binding on other 

Federal or State agencies for any other 

purpose (see 71 FR 39218). 

Comment: Several commenters 

requested that CMS provided Federal 

grant assistance to the States to offset 

the cost of outreach. 

Response: FFP is available to States 

for administrative costs; the match for 

these costs is 50 percent. 

Other Comments 

Comment: Several commenters 

expressed their support of CMS’ change 

to the regulations to meet the 

requirements of section 6036 of the 

DRA. One commenter noted that 

Medicaid is not the only source of 

health care coverage in many 

communities; he stated that individuals 

who are unable to produce the required 

documentation to establish citizenship 

should seek coverage of services from an 

alternate source. 

Response: We appreciate the 

commenters’ expressions of support for 

the rule. However, we can only 

comment on the Medicaid program. 

State and local agencies are best suited 

to address what additional sources of 

care in a community are available to an 

individual. 

Comment: Several commenters 

inquired about the financial impact on 

the Medicaid program of non-eligible 

non-citizen individuals receiving 

coverage. The commenters stated that 

aliens without established immigration 

status are very careful to not make 

themselves known to government 

officials for fear of deportation. The 

commenters cited the Office of the 

Inspector General’s July 2005 report 

‘‘Self-Declaration of U.S. Citizenship for 

Medicaid’’ as evidence that non-status 

aliens are not falsely claiming 

citizenship for purposes of obtaining 

Medicaid. The commenters stated that 

unless CMS had evidence to suggest 

otherwise, the regulations were overly 

and unnecessarily strict and would 

result in eligible individuals failing to 

seek coverage or being deemed 

ineligible for lack of documentation. 

Response: We emphasize that section 

6036 of the DRA requires States to verify 

an individual’s declaration of 

citizenship via documentation as a 

condition of receiving FFP. These 

regulations provide numerous 

additional documents not specified in 

the law that provide greater flexibility to 

individuals in meeting these 

requirements. 

Comment: One commenter stated that 

the July 1, 2006 implementation date is 

unreasonable, especially considering the 

regulations have yet to be finalized. One 

commenter requested that CMS delay 

implementing section 6036 of the DRA 

until States can set up adequate 

processes. One commenter requested 

that CMS provide States with a grace 

period to enact the new regulations, 

including an opportunity for corrective 

action by States, through January 1, 

2007. 

Response: We note that the statute 

requires that State Medicaid Agencies 

obtain documentation of the citizenship 

and identity of applicants as of July 1, 

2006, and for recipients at the time of 

the first redetermination occurring on or 

after July 1, 2006. The Secretary does 

not have the authority to modify this 

date. In addition, we note that the vast 

majority of States had begun 

implementing this provision on or 

before July 1, 2006. 

Comment: One commenter requested 

that CMS include in the final rule 

specific standards for assuring agency 

and provider compliance with all 

applicable civil rights laws including 

section 504 of the Rehabilitation Act of 

1973, the Americans with Disabilities 

Act, and Title VI of the 1964 Civil 

Rights Acts. 

Response: Under the regulations at 

§ 430.2 and § 435.901, all aspects of the 

Medicaid program must comply with 

Federal antidiscrimination laws. 

Comment: One commenter stated that 

verifying both citizenship and identity 

was redundant. 

Response: Federal law requires that 

State Medicaid Agencies verify and 

document both citizenship and identity 

if the individual does not use a first tier 

document. 

Comment: Several commenters 

requested that CMS reverse the 

citizenship documentation 

requirements. 

Response: CMS does not have the 

authority to reverse an act of the 

Congress. 

Comment: Several commenters stated 

that because of the new regulations, 

citizen applicants are being required to 

provide more information than noncitizen applicants. For instance, a noncitizen can provide a photocopy of his 

or her resident alien registration card 

and other identification documents. In 

addition, a non-citizen applicant is 

required to be covered by Medicaid 

while locating the documents necessary 

to verify immigration status. Under 

these new regulations, citizen 

applicants are not covered by Medicaid 

during the reasonable opportunity 

period. 

Response: Citizen applicants and 

recipients are not required to provide 

more documentation than non-citizens. 

Like citizens, aliens must provide 

documentation that they are in 

satisfactory immigration status, which 

the State is then required to verify with 

the SAVE database. While individuals 

in satisfactory immigration status may 

submit photocopies of the required 

document, this is permissible because 

States must verify all such documents 

with the Department of Homeland 

Security through a verification with the 

SAVE Program. Therefore, States are not 

expected to determine whether the 

documents are valid. In contrast, States 

are obligated to determine the validity 

of documents attesting to citizenship 

and such documents are extremely 

variable with no single issuer who could 

attest to their validity. Therefore, the 

most efficient and effective method for 

documenting citizenship is to require 

that documents submitted be originals. 


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Current recipients will be covered 

during the reasonable opportunity 

period. Once an applicant is determined 

eligible, eligibility may start on the date 

of application, the first day in the month 

of application, or up to 3 months prior 

to the month of application (under 

section 1902(a)(34) of the Act). Like 

aliens, citizens must be provided a 

reasonable opportunity period before 

the State Medicaid Agency can take 

action on the individual’s eligibility. 

Comment: One commenter noted that 

the new regulations will be 

exceptionally burdensome on the 

specific populations relying on 

Medicaid for health care. The 

commenter stated that the most affected 

groups will be the transient, minorities, 

and those with mental illnesses. 

Response: The statute has exempted 

many of the most vulnerable 

populations, including those receiving 

Medicare and certain disabled 

populations. In addition, States are 

required under § 435.407(h) to assist 

individuals with incapacitating physical 

and mental conditions. As previously 

stated, States must assist any individual 

who cannot obtain the necessary 

documentation within the reasonable 

opportunity period and is making a 

good faith effort to do so. 

Comment: One commenter expressed 

concern over CMS’ legal interpretation 

of the word ‘‘alien’’ in section 6036(x)(2) 

as a congressional error. 

Response: As we discussed 

previously, the TRCHA corrected this 

error by replacing the word ‘‘alien’’ in 

1903(x)(2) with the phrase ‘‘individual 

declaring to be a citizen or national of 

the United States.’’ The TRHCA made 

such change effective as if it had been 

included in the DRA. 

Comment: One commenter asked 

CMS to clarify whether a State can 

terminate or deny an individual during 

the reasonable opportunity period if the 

person is deemed to not be making a 

good faith effort to comply with the 

requirements. They also asked whether 

they were permitted or required to 

extend the period if an individual is 

shown to be making a good faith effort. 

They also asked CMS to state the proper 

course of action to take with a child 

whose parents or guardians are 

uncooperative. 

Response: States must follow standard 

application and redetermination 

processes. States’ standard practices 

with respect to the reasonable 

opportunity period have not changed. 

Therefore, as is currently permissible, a 

State may deny an individual at any 

point in the application process if the 

State determines that the individual is 

not making a good faith effort to comply 

with any part of the application process. 

Comment: One commenter noted that 

States are not required to authenticate 

documents and should not be required 

to do so. 

Response: Eligibility workers are 

trained to review and accept documents 

and we expect that for purposes of 

determining eligibility, they would 

accept only reliable documents. 

A State should evaluate every 

document presented as evidence of 

citizenship and identity to determine 

whether it meets the published criteria 

for acceptance and whether the 

document appears to be genuine. A 

State is not obligated to accept any 

document submitted as evidence of 

either citizenship or identity if that 

document does not appear genuine. 

Determining the authenticity of any 

document is a process of judgment the 

State agency must exercise. The State 

should consider, for example, whether 

the information on the document is 

consistent with other information the 

agency has on the individual, if the 

document contains any erasures or 

obvious signs of manipulation, if the 

issuing organization is a recognized 

organization in the United States, is 

there any irregularity in the size, style, 

printing, or use of capitalization, and 

whether the date of registration is later 

than the date of the event recorded. 

If the State agency determines a 

document is questionable, the State may 

refuse to accept the document, or it 

could contact the issuing agency to 

determine whether the document is 

indeed authentic. 

This description of evaluation 

questions is only a sample of the 

possible questions a State would need to 

answer to be assured the document is 

genuine and refers to the person named 

on it. 

Financial Aspects and Compliance 

Comment: One commenter requested 

that CMS explicitly identify which costs 

incurred by a State or county agency 

assisting applicants and recipients 

procure citizenship documentation will 

be considered allowable administrative 

costs for Federal Financial Participation 

(FFP). One commenter recommended 

that Federal funding for the costs of 

obtaining adequate documentation 

should be reimbursed to the State at 100 

percent. 

Response: Under the law, States are 

eligible for the standard 50 percent 

Federal match for administrative costs 

in connection with implementing the 

citizenship documentation provision, as 

defined under the regulations at 

§ 435.1001. 

Comment: One commenter requested 

that CMS indicate in the final rule how 

it will monitor the extent to which 

States are obtaining primary evidence. 

Response: We will monitor 

compliance with these regulations 

following the standard reviews and 

audits as described in the regulations at 

42 CFR Part 430. 

Comment: One commenter asked 

CMS to clarify that agency oversight 

with respect to FFP is not intended to 

prevent eligible citizens from receiving 

Medicaid benefits. The commenter 

expressed concern that States will be 

overly cautious with respect to 

following the Federal guidelines and 

risk not enrolling eligible individuals. 

Response: We are committed to 

ensuring that all eligible individuals 

receive the Medicaid benefits to which 

they are entitled. In no way are these 

new regulations intended to prevent 

eligible citizens from receiving 

Medicaid benefits. However, Federal 

law requires that citizens provide 

documentation verifying their 

citizenship. States are encouraged to 

assist individuals who have difficulty 

obtaining or locating such 

documentation. 

Comment: One commenter requested 

that CMS give States a higher Federal 

Medicaid Assistance Percentage (FMAP) 

to cover the costs of implementing this 

DRA provision. 

Response: CMS does not have the 

authority to alter FMAP rates, which are 

set in statute. 

Comment: One commenter 

recommended that CMS give States the 

flexibility to designate qualified 

hospitals as agents of the State for 

purposes of collecting and certifying 

citizenship documentation for purposes 

of Medicaid applications. One 

commenter requested that CMS strongly 

recommend that States enter into these 

arrangements with hospitals and health 

centers to assist in expediting the 

citizenship verification process. One 

commenter requested that CMS confirm 

that agencies collecting eligibility 

applications on behalf of the State are 

permitted to copy documents and note 

on the copies that the original 

documents were viewed. 

Response: It would promote proper 

and efficient administration of the 

Medicaid program for hospitals to 

perform this step in the application 

process of collecting and photocopying 

citizenship documentation. However, 

States already must have outstation 

locations for the initial processing of 

Medicaid application, under § 435.904. 

These locations must include all 

disproportionate share hospitals (DSH) 

and Federally qualified health centers 


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(FQHC), or, at State option, other 

outstation locations which include at 

least some DSH hospitals and FQHCs. 

The initial processing of applications 

includes obtaining required 

documentation, such as citizenship 

documentation. Outstationed provider 

or contractor employees or volunteers 

could collect and photocopy the 

required certification, and would be 

required to certify that original 

documentation was seen as with any 

other Medicaid eligibility worker. 

Technical 

Comment: One commenter asked that 

CMS clarify the statement in the 

preamble to the July 12, 2006 interim 

final rule which reads, ‘‘We are 

removing § 435.408 and § 436.408 

because the immigration status 

described as permanently residing in 

the United States under color of law no 

longer has any effectiveness because of 

the enactment of 1996 of the Personal 

Responsibility and Work Opportunity 

Act which provides that 

‘‘notwithstanding any other law’’ an 

alien who is not a qualified alien as 

defined in 42 U.S.C. 1641 is not eligible 

for any Federal public benefit’’ (71 FR 

39220). The commenter would like CMS 

to clarify whether this statement regards 

the Immigration Reform and Control Act 

(IRCA) only or also Persons Residing 

Under Color of Law (PRUCOL) in 

general. 

Response: The term ‘‘permanently 

residing in the U.S. under color of law’’

(PRUCOL) is not defined in the 

Immigration and Nationality Act. The 

changes made by the Personal 

Responsibility and Work Opportunity 

Reconciliation Act of 1996 (PRWORA) 

define the classes of aliens eligible for 

Federal public benefits in section 431 of 

that act consistent with the definitions 

in the Immigration and Nationality Act. 

Thus, the definition of qualified alien 

excludes any alien not defined in 

section 431. In addition, the conference 

report accompanying PRWORA states 

on page 383 that: ‘‘Persons residing 

under color of law shall be considered 

to be aliens unlawfully present in the 

United States * * *.’’ Therefore, we are 

reflecting the changes made by 

PRWORA. 

Comment: One commenter noted that 

the citation to the Immigration 

Regulations in § 435.407(e)(8) of the rule 

appears to be incorrect. The commenter 

stated that the citation should be 8 CFR 

1274a.2(b)(1)(v)(B). 

Response: The regulations text at 8 

CFR 1274a.2(b)(1)(v)(B) and 8 CFR 

274a.2(b)(1)(v)(B) is identical. The 

difference between them is that 8 CFR 

Part 274 contains Department of 

Homeland Security (DHS) regulations, 

while Part 1274 represents Department 

of Justice (DOJ) regulations. Duplicate 

regulatory provisions were promulgated 

effective March 1, 2003 by DOJ to 

complement the existing Part 274A 

which shifted to DHS jurisdiction, 

because the authorities previously 

exercised on behalf of the Attorney 

General relating to section 274A of the 

INA by two DOJ components (the 

Immigration and Naturalization Service 

(INS) with respect to 274A enforcement 

and the Executive Office for 

Immigration Review (EOIR) for 

adjudication of contested 274A cases) 

were as of that date exercised by DHS 

as the successor to INS with DOJ 

retaining its EOIR jurisdiction. DOJ 

therefore deemed it appropriate to 

establish separate regulations for 

continuing EOIR purposes. We have 

utilized this citation to reflect only the 

Department of Homeland Security 

regulations in § 435.407(e)(1) (formerly 

§ 435.407(e)(8)), as this is the most 

appropriate citation given DHS 

jurisdiction over designation of 

acceptable documents for Form I–9 

purposes; as noted, though, the 

provisions are substantively identical. 

Comment: One commenter requested 

that CMS clarify how a State may verify 

identity documents while also not 

requiring applicants to appear in 

person. 

Response: Ultimately, States are 

responsible for verifying an individual’s 

declaration of U.S. citizenship, 

including verifying the identity of the 

individual. If a State does not feel 

confident it can verify a person’s 

identity without having the individual 

present documentation in-person, it 

may require that the applicant or 

recipient do so. 

Comment: One commenter requested 

that CMS clarify whether or not 

verifying citizenship is a one-time 

activity. The commenter notes that CMS 

has indicated that there may be a need 

to reevaluate this information if a 3-year 

gap in coverage occurs. 

Response: Generally, once an 

individual has verified his or her 

citizenship for Medicaid purposes, he or 

she will not have to verify it again 

unless there is a 3-year gap in 

enrollment and the State has 

subsequently destroyed the prior 

records or if doubt is raised about the 

authenticity of the previously submitted 

documents. If the records no longer 

exist, the individual would be required 

to submit verifying documentation 

again. We note that a State may decide 

to retain records beyond the 3-year 

minimum requirement at its discretion. 

Comment: One commenter requested 

that CMS clarify the following sentence 

from the Regulatory Impact Statement: 

‘‘* * * with respect to those States that 

elect to review documents through the 

routine eligibility and redetermination 

process, we recognize there will be 

some increased burden on eligibility 

workers.’’ The commenter requested 

that CMS clarify what alternatives States 

have to this election. 

Response: States may use electronic 

records matching in place of requiring 

that an individual submit paper 

documentation. 

Comment: One commenter requested 

that CMS clarify whether the omission 

from the July 12, 2006 interim final 

regulations that certain documents must 

have been created 5 years before the 

date of application for Medicaid was an 

oversight or a change to the policy. 

Response: We reviewed the SMD and 

the interim final rule and found one 

instance where the policy as stated 

differed with respect to the criteria that 

the documents must have been created 

5 years before the date of application. 

We intended to require that institutional 

admission papers from a nursing 

facility, skilled care facility or other 

institution have been created at least 5 

years prior to the date of application for 

Medicaid. We are updating the 

regulations text at § 435.407(d)(3) and 

§ 436.407(d)(3)to reflect this. 

Comment: One commenter requested 

that CMS clarify whether or not an 

electronic indicator from a prior period 

can be used to verify citizenship if the 

3-year period of document retention has 

expired and paper copies of 

documentation are no longer available. 

Response: We are interpreting the 

electronic indicator mentioned by the 

commenter to be an electronic file with 

a checkbox indicating whether or not 

acceptable evidence of citizenship and 

identity had been viewed. 

As we stated in the interim final rule 

with comment period, records of 

citizenship and identity documents 

must be kept in the Medicaid file in 

either paper or electronic format (e.g., a 

scan of a document). An electronic 

marker from a prior period indicating 

that the citizenship verification process 

was completed will not meet this 

standard. However, a State may opt to 

keep records for a longer period of time 

if the State believes this better serves its 

program needs. 

Comment: One commenter requested 

that CMS clarify whether the omission 

from the July 12, 2006 interim final 

regulations of the clinic, doctor, or 

hospital record showing date of birth as 

proof of identity for children that was 

included in the Medicaid Fact Sheet 


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June 9, 2006 was an oversight or a 

change in policy. 

Response: The absence of this 

document from the regulations at 

§ 435.407(f) was an oversight. We have 

revised the regulations text to include 

these documents. 

Comment: One commenter requested 

that the reference to Medicare in the 

preamble of the July 12, 2006 interim 

final rule (71 FR 39215) is confusing 

because it does not specify whether the 

exemption applies to an individual who 

is entitled to or enrolled in Medicare 

Part A only or to individuals entitled to 

or enrolled in both Medicare Part A and 

Part B. 

Response: The law states that this 

exemption applies to individuals 

entitled to or enrolled in any part of 

Medicare. The individual need not be 

enrolled in all parts of Medicare. 

Comment: One commenter noted that 

the July 12, 2006 interim final rule 

contains two citation errors. The 

reference to 42 U.S.C. 1641 should be 8 

U.S.C. 1641 and the reference to 42 CFR 

Part 74 should be part 92. 

Response: We have corrected the 

citation to 8 U.S.C. 1641 and the citation 

to 45 CFR part 74. 

IV. Provisions of the Final Regulations 

We are maintaining the majority of 

the provisions in the July 12, 2006 

interim final rule with several 

exceptions. The provisions of this final 

rule that differ from the interim final 

rule with comment period are as 

follows: 

(1) We are modifying the regulations 

to provide Medicaid eligibility to a child 

born to a woman who has applied for, 

has been determined eligible and is 

receiving Medicaid on the date of the 

child’s birth so long as the woman 

remains eligible and the child is 

member of the woman’s household. The 

child is deemed to have applied and 

been found eligible for Medicaid on the 

date of birth and remains eligible for up 

to one year. This provision applies to all 

newborn children as long as the mother 

is receiving Medicaid on the date of the 

child’s birth. A non-qualified alien or 5- 

year bar qualified alien receiving 

emergency Medicaid services as 

provided under § 435.139 is considered 

to be Medicaid-eligible and receiving 

Medicaid for purposes of this provision. 

Citizenship and identity documentation 

for the child must be obtained at the 

next redetermination of eligibility. As 

required by law and regulation, a 

woman may be eligible under § 435.139 

only if she submits a full Medicaid 

application showing she meets the 

requirements under § 435.406(b), 

including income, residency and asset 

requirements. 

(2) We have modified the regulations 

concerning citizenship and alienage to 

emphasize that individuals receiving 

services through an 1115 demonstration 

program, including a family planning 

waiver, must declare if they are a U.S. 

citizen and provide the required 

documentary evidence of citizenship 

and identity. 

(3) We have modified the regulations 

to exempt individuals receiving SSDI 

benefits based on disability, children in 

foster care who are assisted under Title 

IV–B of the Act, and children who are 

recipients of foster care maintenance or 

adoption assistance payments under 

Title IV–E of the Act as authorized by 

section 405(c)(1)(A) of Division B of the 

TRHCA. 

(4) We have included in the 

regulations the exemption of 

individuals entitled to or enrolled in 

Medicare or in receipt of SSI payments 

as authorized by the DRA and clarified 

by the TRHCA. 

(5) We have made several technical 

corrections to the regulations text at 

§ 435.406(a)(2) and (b) and 

§ 436.406(a)(2) and (b) to clarify that 

non-qualified aliens and aliens subject 

to the 5-year bar may only be eligible for 

coverage of emergency services. 

(6) We have modified the regulations 

text at § 435.406(b), (c) and (d) and 

§ 436.406(b), (c) and (d) to clarify that a 

State may accept lower tier evidence of 

citizenship when a higher tier document 

is unavailable. 

(7) We have modified the regulations 

text at § 435.407 and § 436.407 to clarify 

that for purposes of this regulation, the 

term ‘‘citizenship’’ includes status as a 

noncitizen national of the United States 

as well as a U.S. citizen. 

(8) We have revised the language used 

to describe birth records to be consistent 

with the National Association for Public 

Health Statistics and Information 

Standards (NAPHSIS). This entails 

replacing the words ‘‘issued’’ with 

‘‘recorded’’ and ‘‘amended’’ with 

‘‘delayed.’’ This language reflects our 

original intent of accepting birth records 

that were recorded with vital statistics 

within 5 years of birth as secondary 

evidence of citizenship and birth 

records that were recorded with vital 

statistics after 5 years of birth (a delayed 

birth record) as fourth level evidence of 

citizenship. 

(9) We have corrected the regulations 

text at § 435.407(b)(5) and 

§ 436.407(b)(5) to account for a drafting 

error in the DRA that incorrectly 

references the form number for U.S. 

citizen identification cards. This does 

not change the policy as stated in the 

interim final regulations. 

(10) We have approved the use of the 

Department of Homeland Security’s 

Systematic Alien Verification for 

Entitlements (SAVE) Program for 

purposes of verifying citizenship for 

naturalized citizens, subject to DHS 

authorization. We have also codified in 

regulation the rule (already articulated 

in the interim final rule with comment) 

that a biological or adopted child born 

outside the United States may establish 

citizenship using the process 

established under section 320 of the 

INA, as amended by the Child 

Citizenship Act of 2000 (Pub. L. 106–

395, enacted on October 30, 2000). 

(11) We have expanded the list of 

appropriate documents to verify 

citizenship by including religious 

records recorded in the U.S. within 3 

months of birth and early school records 

showing a U.S. place of birth as third 

level evidence of citizenship. We have 

noted that entries in a family bible are 

not considered recorded religious 

records. This is consistent with the 

Social Security Administration’s policy. 

(12) We have revised the regulations 

to clarify that 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 to be accepted as 

fourth level evidence of citizenship. 

This is consistent with the Social 

Security Administration’s policy. 

(13) We have accepted the Roll of 

Alaska Natives maintained by the 

Bureau of Indian Affairs as fourth level 

evidence of citizenship. 

(14) We have modified the regulations 

text at § 435.407(d) and § 436.407(d) to 

allow naturalized citizens to utilize the 

affidavit process. 

(15) We have removed from the 

regulations text the duplicate list of 

documents under § 435.407(e)(8) and 

§ 436.407(e)(8). This does not change 

the policy as stated in the interim final 

rule with comment period. 

(16) We are modifying the language in 

the regulations describing what 

information Certificates of Degree of 

Indian Blood and other American 

Indian/Alaska Native Tribal documents 

must have to be considered evidence of 

identity. Specifically, we are clarifying 

that the document must have a 

photograph or other personally 

identifying information. 

(17) We have modified the regulations 

to approve the use of three or more 

corroborating documents such as high 

school and college diplomas from 

accredited institutions, marriage 

certificates, property deeds/titles, and 


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employee ID cards to verify the identity 

of an individual. 

(18) We have clarified in the 

regulations text at § 435.407(f) and 

§ 436.407(f) that school records may be 

accepted for purposes of establishing 

the identity of children. This does not 

change the policy as stated in the 

interim final rule with comment period. 

(19) We have modified the regulations 

text at § 435.407(f) and § 436.407(f) such 

that clinic, doctor and hospital records 

may be accepted as evidence of identity 

for children. 

(20) We have expanded the list of 

acceptable identity documents at 

§ 435.407(f) and § 436.407(f) to include 

the use of identity affidavits for children 

up to 18 years of age in limited 

circumstances. We have stated in the 

regulations text that these identity 

affidavits do not need to be notarized. 

(21) We have modified the regulations 

text at § 435.407(f) and § 436.407(f) such 

that caretaker relatives may submit an 

identity affidavit on a child’s behalf. 

(22) We have expanded the list of 

acceptable identity documents to 

include the use of identity affidavits for 

disabled individuals in residential care 

facilities. This modification to the 

policy can be found at the new 

§ 435.407(g) and § 436.407(g). 

(23) We have revised the regulations 

text at § 435.1008 and § 436.1004 to 

identify the populations who are 

exempt from the citizenship 

documentation requirements. 

V. Collection of Information 

Requirements 

Under the Paperwork Reduction Act 

of 1995, we are required to provide 30- 

day notice in the Federal Register and 

solicit public comment when a 

collection of information requirement is 

submitted to the Office of Management 

and Budget (OMB) for review and 

approval. In order to fairly evaluate 

whether an information collection 

should be approved by OMB, section 

3506(c)(2)(A) of the Paperwork 

Reduction Act of 1995 requires that we 

solicit comment on the following issues: 

• The need for the information 

collection and its usefulness in carrying 

out the proper functions of our agency. 

• The accuracy of our estimate of the 

information collection burden. 

• The quality, utility, and clarity of 

the information to be collected. 

• Recommendations to minimize the 

information collection burden on the 

affected public, including automated 

collection techniques. 

We solicited public comment on each 

of these issues for the following sections 

of this document that contain 

information collection requirements 

(ICRs): 

Citizenship and Alienage (§ 435.406) 

Section 435.406 requires States to 

obtain a declaration signed under 

penalty of perjury from every applicant 

for Medicaid that the applicant is a 

citizen or national of the United States 

or an alien in a satisfactory immigration 

status, and require the individual to 

provide acceptable documentary 

evidence to verify the declaration. 

(§ 435.407 describes the types of 

acceptable documentary evidence of 

citizenship.) 

An individual should ordinarily be 

required to submit evidence of 

citizenship once unless the State 

receives evidence that evidence 

previously relied upon may be 

incorrect. States must maintain copies 

of that evidence in the case file or 

database. 

We estimated it would take an 

individual 10 minutes to acquire and 

provide to the State acceptable 

documentary evidence and to verify the 

declaration. 

We estimated it will take each State 

5 minutes to obtain acceptable 

documentation, verify citizenship and 

maintain current records on each 

individual. 

Citizenship and Alienage (§ 436.406) 

Sections 436.406 and 436.407 apply 

to Guam, Puerto Rico, and the Virgin 

Islands and are the corresponding 

sections to the regulations at § 435.406 

and § 435.407. Section 436.406 requires 

Medicaid agencies to obtain a 

declaration signed under penalty of 

perjury from every applicant for 

Medicaid that the applicant is a citizen 

or national of the United States or an 

alien in a satisfactory immigration 

status, and require the individual to 

provide acceptable documentary 

evidence to verify the declaration. 

(§ 436.407 describes the types of 

acceptable documentary evidence of 

citizenship.) 

An individual should ordinarily be 

required to submit evidence of 

citizenship once unless the State 

receives evidence that evidence 

previously relied upon may be 

incorrect. States must maintain copies 

of that evidence in the individual’s case 

file. 

We estimated it would take an 

individual 10 minutes to acquire and 

provide to the State acceptable 

documentary evidence and to verify the 

declaration. 

We estimated it will take each State 

5 minutes to obtain acceptable 

documentation, verify citizenship and 

maintain current records on each 

individual. 

Comment: Many commenters 

contended that the collection of 

information requirements were either 

significantly understated or estimated 

only for instances where an individual 

was already in possession of the 

required documents. The commenters 

also noted that in determining the 

amount of time the person would spend 

producing these documents, CMS must 

have expected that all individuals 

would be mailing the documents to the 

State. Many commenters expressed 

serious concern about sending original 

versions of important documents 

through the mail. Therefore, the 

commenters concluded that CMS failed 

to consider the amount of time 

associated with obtaining and 

personally presenting these documents 

to a State Medicaid Agency office, 

which they state will be the more likely 

scenario. The commenters stated that 

this requirement will be onerous on 

both the part of the individual 

producing the documents and on the 

States collecting and processing the 

documents. The commenters noted that 

it generally takes weeks to get a passport 

or birth certificate and months to a year 

to get a Certificate of Citizenship or 

Certificate of Naturalization. 

Response: We based our estimate 

upon the average time it would take an 

individual who had the documents in 

his or her possession and brought those 

documents to the initial intake meeting 

or opted to mail those documents into 

the State Medicaid Agency office. We 

believe that in the vast majority of 

instances, this will be the likely 

scenario. We also considered that the 

people who would have the most 

difficulty obtaining documents (e.g. the 

disabled, elderly, and, since enactment 

of TRHCA, children in foster care) are 

exempt from these requirements. 

We recognize that it may take certain 

applicants and recipients additional 

time to obtain the necessary 

documentation. We encourage States to 

work with all applicants and recipients 

to minimize this amount of time. We 

also encourage States to utilize 

electronic matching with State Vital 

Statistics agencies before requesting 

paper documentation. Through effective 

outreach, States can minimize delays 

caused by confusion or lack of 

awareness of the requirements. 

In addition, at this time, we do not 

have evidence from States indicating we 

should revise the estimates. 

If you comment on these information 

collection and recordkeeping 

requirements, please mail copies 

directly to the following: 


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38688 Federal Register / Vol. 72, No. 134 / Friday, July 13, 2007 / Rules and Regulations 

Centers for Medicare & Medicaid 

Services, Office of Strategic 

Operations and Regulatory Affairs, 

Regulations Development Group, 

Attn: Melissa Musotto [CMS–2257–F], 

Room C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–

1850; and 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, Room 10235, New Executive 

Office Building, Washington, DC 

20503, Attn: Katherine Astrich, CMS 

Desk Officer, [CMS–2257–F], 

katherine_astrich@omb.eop.gov. Fax 

(202) 395–6974. 

VI. Waiver of the Delay in the Effective 

Date 

The Administrative Procedure Act as 

codified in 5 U.S.C. section 553(d) 

ordinarily requires a 30-day delay in the 

effective date for final rules. In addition, 

the Congressional Review Act, at 5 

U.S.C. section 801(a), requires that 

certain major rules not take effect until 

60 days after publication. Both 

provisions permit the delay in effective 

date to be waived, however, if an agency 

for good cause finds that the delay is 

impracticable, unnecessary, or contrary 

to the public interest, and the agency 

incorporates a statement of the finding 

and its reasons in the rule issued. 5 

U.S.C. 553(d)(3), 808(2). In addition, if 

the rule grants or recognizes an 

exemption or relieves a restriction, the 

agency may waive the delay in effective 

date. 5 U.S.C. 553(d)(1). 

In this rule we have identified 

additional documentary evidence of 

citizenship and identity beyond that 

contained in the interim final rule with 

comment period. Thus, we consider this 

final rule as providing additional relief 

to potential restrictions that may have 

hindered receipt of Medicaid. Also, the 

addition of such documents may allow 

Medicaid eligible citizens lacking 

documents identified in the interim 

final rule to receive Medicaid without 

undue delay or without being denied or 

terminated. Without prompt publication 

of a rule, States will not have immediate 

authority to employ additional 

documentary evidence beyond that 

contained in the interim final 

regulations. Such additional 

documentary evidence will help to 

prevent loss of Medicaid eligibility. 

Because delaying the effective date of 

this regulation could either prevent or 

complicate eligible individuals from 

being able to demonstrate their 

citizenship, we find that good cause 

exists to waive this requirement. The 

attendant delay would be contrary to 

public interest. 

VII. Regulatory Impact Analysis 

A. Overall Impact 

We examined the impact of this rule 

as required by Executive Order 12866 

(September 1993, Regulatory Planning 

and Review), the Regulatory Flexibility 

Act (RFA) (September 19, 1980, Pub. L. 

96–354), section 1102(b) of the Social 

Security Act, the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4), and 

Executive Order 13132. 

Executive Order 12866 (as amended 

by Executive Order 13258, which 

merely reassigns responsibility of 

duties) directs agencies to assess all 

costs and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). A regulatory impact analysis 

(RIA) must be prepared for major rules 

with economically significant effects 

($100 million or more in any 1 year). It 

is assumed that Medicaid enrollees who 

are citizens will eventually provide 

proof of that fact, and that the savings 

will come from those who are truly in 

the country illegally. Consequently, we 

estimated that the level of Federal 

savings from this provision will be 

under $80 million, and State savings 

under $60 million, per year over the 

next 5 years. By considering the impact 

on both Federal and State savings, this 

rule surpasses the economic threshold 

and is considered a major rule. The RFA 

requires agencies to analyze options for 

regulatory relief of small entities. For 

purposes of the RFA, small entities 

include small businesses, nonprofit 

organizations, and small governmental 

jurisdictions. Most hospitals and most 

other providers and suppliers are small 

entities, either by nonprofit status or by 

having revenues of $6.5 million to $31.5 

million in any 1 year. Individuals and 

States are not included in the definition 

of a small entity. We did not prepare an 

analysis for the RFA because we 

determined, and the Secretary certifies, 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. We also note 

that section 604 of the RFA applies only 

in cases where an agency promulgates a 

final rule after being required to publish 

a general notice of proposed 

rulemaking. As stated in the interim 

final rule, for this regulation, we found 

good cause to publish the interim final 

rule without prior publication of a 

proposed rule. 

In addition, section 1102(b) of the Act 

required us to prepare a regulatory 

impact analysis if a rule may have a 

significant impact on the operations of 

a substantial number of small rural 

hospitals. This analysis must conform to 

the provisions of section 604 of the 

RFA. For purposes of section 1102(b) of 

the Act, we define a small rural hospital 

as a hospital that is located outside of 

a Metropolitan Statistical Area and has 

fewer than 100 beds. We did not prepare 

an analysis for section 1102(b) of the 

Act because we have determined, and 

the Secretary certifies, that this rule will 

not have a significant impact on the 

operations of a substantial number of 

small rural hospitals. 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 also 

requires that agencies assess anticipated 

costs and benefits before issuing any 

rule whose mandates require spending 

in any 1 year of $100 million in 1995 

dollars, updated annually for inflation. 

That threshold level is currently 

approximately $120 million. This rule 

will have no consequential effect on 

State, local, or Tribal governments or on 

the private sector. 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a 

proposed rule (and subsequent final 

rule) that imposes substantial direct 

requirement costs on State and local 

governments, preempts State law, or 

otherwise has Federalism implications. 

Although each State is responsible for 

establishing its own procedures for 

reviewing the documentation, several 

States have already been reviewing 

these documents. For these States, there 

will be little or no added burden. There 

will also be no additional burden for the 

millions of individuals enrolled in 

Medicare who will be exempt. In 

addition, there will be no additional 

burden for the millions of individuals 

who receive SSI, SSDI, child welfare 

services under Title IV–B, or adoption 

or foster care assistance payments under 

Title IV–E. In the future, when 

additional data matches are available, 

the burden will continue to be 

minimized for other groups of Medicaid 

eligible individuals. 

Finally, with respect to those States 

that elect to review documents through 

the routine eligibility and 

redetermination process, we recognize 

there will be some increased burden on 

eligibility workers. However, the 

Medicaid eligibility and 

redetermination process is ordinarily 

conducted by skilled interviewers who 

are trained and skilled in the review of 

documents related to income and 

identification; therefore, we do not 

anticipate that these added 

requirements will overburden the 

eligibility process. 


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B. Anticipated Effects 

1. Effects on the Medicare and Medicaid 

Programs 

As described in more detail below, we 

estimate that as a result of this 

provision, roughly 50,000 

undocumented aliens will no longer 

receive full Medicaid. Based on this 

estimated decline in enrollment, we 

estimate that the level of Federal savings 

from this provision will be under $80 

million, and State savings under $60 

million, per year over the next 5 years. 

In projecting these savings, we 

assumed that Medicaid enrollees who 

are U.S. citizens by birth or 

naturalization will eventually be able to 

provide proof of citizenship. Since the 

rule does not apply to legal immigrants, 

the impact would come from 

undocumented aliens who are receiving 

Medicaid benefits illegally. 

We developed projections of the total 

undocumented population based on 

estimates by the Pew Research Center 

(about 12 million in 2007, rising to 14 

million by 2011). From limited available 

evidence, we believe that very few of 

these undocumented individuals are 

currently receiving full Medicaid 

benefits. For these estimates we 

assumed participation rates of one 

percent in states that allow selfdeclaration of citizenship and one-half 

percent in states with restricted selfdeclaration. States that do not permit 

self-declaration were not included in 

the savings estimates. We further 

assumed that the new documentation 

requirements would be effective in 

eliminating 75 percent of participating 

undocumented aliens from the full 

benefit Medicaid rolls. (Emergency 

services would, of course, continue to 

be available.) These assumptions result 

in an estimate of roughly 50,000 

undocumented aliens who would no 

longer receive full Medicaid. 

Savings per person were estimated 

using Medicaid per capita expenditure 

projections from the President’s FY 

2008 budget, adjusted to exclude 

exempt groups and emergency services 

that would continue to be available. The 

states’ share of savings was calculated 

using an average federal matching rate 

of 57 percent. These savings are 

subsumed in the President’s FY 2008 

budget. 

C. Alternatives Considered 

Because CMS previously issued 

interim final regulations and not a 

notice of proposed rule making, we 

were not required by law or regulation 

to issue a final regulation. However, in 

light of recent legislation that affected 

this policy and consideration of the 

public comments received in response 

to the interim final, we are changing 

several aspects of the policy as stated in 

the interim final. Therefore, we are 

publishing final regulations to announce 

these changes and have them codified in 

regulation. 

D. Accounting Statement and Table 

As required by OMB Circular A–4 

(available at http:// 

www.whitehouse.gov/omb/circulars/ 

a004/a-4.pdf), in the table below, we 

have prepared an accounting statement 

showing the classification of the 

expenditures associated with the 

provisions of this final rule. Table A 

provides our best estimate of the 

decrease in Medicaid payments as a 

result of the changes presented in this 

proposed rule. Savings are classified as 

transfers to the Federal Government and 

transfers to State Governments. Table B 

demonstrates the annualized savings for 

each the State and Federal government 

based on the discounted 3% and 7% 

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 

Discount— 

Annualized 

Federal 

savings 

($millions/ 

year) 

Annualized 

State 

savings 

($millions/ 

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 

In accordance with the provisions of 

Executive Order 12866, this regulation 

was reviewed by the Office of 

Management and Budget. 

Comment: Several commenters 

disagreed with CMS’ determination of 

the regulatory impact. The commenters 

stated that several assumptions under 

which the impact was calculated were 

incorrect. The commenters stated that it 

is unlikely that all Medicaid applicants/ 

recipients who are citizens will be able 

to provide proof of citizenship due to 

lack of documentation, extreme physical 

and/or mental illness and lack of 

adequate community support. The 

commenters stated that, accordingly, 

many recipients will leave the system 

and many eligible individuals may 

never apply. Many commenters stated 

that these individuals will seek care in 

other settings such as the emergency 

department, charity care facilities and, 

in the case of American Indian/Alaska 

Natives, Indian Health Service facilities. 

Therefore, according to the commenters, 

the impact may be a significant 

reduction in Medicaid expenditures at 

the expense of other sources of care in 

the community. 

Several commenters requested that 

CMS clarify how it determined its cost 


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estimate for States in a way that yields 

savings. The commenters stated that 

implementing the new regulations will 

create considerable new costs. Several 

States indicated that their analysis of 

this provision resulted in a significant 

increase in costs. Their estimates were 

partly based on hiring new staff to 

process more in-person applications. 

The States expect that most applicants 

will no longer complete phone-in or 

mail-in applications for fear of losing 

documents in the mail. The States also 

stated that they will incur significant 

costs as a result of purchasing 

documents for poor recipients and 

applicants who otherwise could not 

afford to obtain them. 

One commenter stated that CMS 

should revise its regulatory impact 

statement. He stated that CMS has not 

provided any support for its decision to 

waive the Regulatory Flexibility Act 

requirement for an analysis of options to 

protect small entities. The commenter 

stated that it is imperative that the 

impact statements and cost-benefit 

analysis be done before these 

regulations are finalized. 

Response: The regulatory impact 

statement was calculated to estimate 

changes in Medicaid expenditures for 

claims. It did not account for the 

administrative impact on States. 

With respect to administrative costs, 

CMS provides federal match for 

administrative expenditures. We would 

expect States to experience higher 

administrative costs during the first year 

of implementation as they adjust to the 

new requirements. We also expect these 

costs to decrease in later years as 

current recipients meet the 

requirements and only new applicants 

are required to submit documentation. 

Furthermore, the exemption of several 

groups of individuals authorized under 

both the DRA and the TRHCA will 

significantly reduce the number of 

individuals from whom States must 

collect documentation. Administrative 

costs may be further reduced by the 

States’ ability to cross-verify with the 

SAVE database, to which they already 

have access. Data matches with the 

State’s vital statistics agency could 

further reduce administrative costs. 

With respect to the commenter who 

stated that the savings to the Medicaid 

program will be significantly greater 

than those calculated based on many 

individuals either being unable to meet 

the requirements or being deterred from 

applying at all, we disagree. Nearly all 

States have implemented these 

requirements. While we heard some 

initial concerns about the impact of this 

provision on enrollment numbers, we 

expect this trend to reverse as States, 

recipients and applicants become more 

familiar with the requirements. 

In response to the commenter who 

believes that we must conduct an 

analysis of options to protect small 

entities, we note that State agencies are 

not considered small entities. The 

commenter did not identify other 

entities he believed should be taken into 

account. As stated above, we also note 

that section 604 of the RFA applies in 

cases where the Administrative 

Procedure Act requires a general notice 

of proposed rulemaking. 

List of Subjects 

42 CFR Part 435 

Aid to Families with Dependent 

Children, Grant programs-health, 

Medicaid, Reporting and recordkeeping 

requirements, Supplemental Security 

Income (SSI), Wages. 

42 CFR Part 436 

Aid to Families with Dependent 

Children, Grant programs-health, Guam, 

Medicaid, Puerto Rico, Virgin Islands. 

42 CFR Part 440 

Grant programs-health, Medicaid. 

42 CFR Part 441 

Aged, Family planning, Grant 

programs-health, Infants and children, 

Medicaid, Penalties, Reporting and 

recordkeeping requirement. 

42 CFR Part 457 

Administrative practice and 

procedure, Grant programs-health, 

Health insurance, Reporting and 

recordkeeping requirements. 

42 CFR Part 483 

Grant programs-health, Health 

facilities, Health professions, Health 

records, Medicaid, Medicare, Nursing 

homes, Nutrition, Reporting and 

recordkeeping requirements, Safety. 

■ Accordingly, the interim final rule 

amending 42 CFR parts 435, 436, 440, 

441, 457, and 483, which was published 

July 12, 2006 at 71 FR 39214, is adopted 

as final with the following changes: 

PART 435—ELIGIBILITY IN THE 

STATES, DISTRICT OF COLUMBIA, 

THE NORTHERN MARIANA ISLANDS, 

AND AMERICAN SAMOA 

■ 1. The authority citation for part 435 

continues to read as follows: 

Authority: Section 1102 of the Social 

Security Act (42 U.S.C. 1302). 

■ 2. Section 435.117 is revised to read 

as follows: 

§ 435.117 Newborn children. 

(a) The agency must provide Medicaid 

eligibility to a child born to a woman 

who has applied for, has been 

determined eligible and is receiving 

Medicaid on the date of the child’s 

birth. The child is deemed to have 

applied and been found eligible for 

Medicaid on the date of birth and 

remains eligible for one year so long as 

the woman remains (or would remain if 

pregnant) eligible and the child is a 

member of the woman’s household. 

This provision applies in instances 

where the labor and delivery services 

were furnished prior to the date of 

application and covered by Medicaid 

based on retroactive eligibility. 

(b) The agency must provide 

Medicaid eligibility in the same manner 

described in paragraph (a) of this 

section to a child born to an otherwiseeligible qualified alien woman subject to 

the 5-year bar so long as the woman has 

filed a complete Medicaid application, 

including but not limited to meeting 

residency, income and resource 

requirements, has been determined 

eligible, is receiving Medicaid on the 

date of the child’s birth, and remains (or 

would remain if pregnant) Medicaid 

eligible. All standard Medicaid 

application procedures apply, including 

timely determination of eligibility and 

adequate notice of the agency’s decision 

concerning eligibility. A 5-year bar 

qualified alien receiving emergency 

medical services only under § 435.139 is 

considered to be Medicaid-eligible and 

receiving Medicaid for purposes of this 

provision. With respect to whether the 

mother remains (or would remain if 

pregnant) eligible for Medicaid after the 

birth of the child, the State must 

determine whether a 5-year bar 

qualified alien would remain eligible for 

emergency services under § 435.139. In 

determining whether the woman would 

remain eligible for these services, the 

State must consider whether the woman 

would remain eligible if pregnant. This 

provision applies in instances where the 

labor and delivery services were 

furnished prior to the date of 

application and covered by Medicaid 

based on retroactive eligibility. 

(c) The agency must provide Medicaid 

eligibility in the same manner described 

in paragraph (a) of this section to a child 

born to an otherwise-eligible nonqualified alien woman so long as the 

woman has filed a complete Medicaid 

application (other than providing a 

social security number or demonstrating 

immigration status), including but not 

limited to meeting residency, income 

and resource requirements, has been 

determined eligible, is receiving 


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Medicaid on the date of the child’s 

birth, and remains (or would remain if 

pregnant) Medicaid eligible. All 

standard Medicaid application 

procedures apply, including timely 

determination of eligibility and 

adequate notice of the agency’s decision 

concerning eligibility. A non-qualified 

alien receiving emergency medical 

services only under § 435.139 is 

considered to be Medicaid-eligible and 

receiving Medicaid for purposes of this 

provision. With respect to whether the 

mother remains (or would remain if 

pregnant) eligible for Medicaid after the 

birth of the child, the State must 

determine whether a non-qualified alien 

would remain eligible for emergency 

services under § 435.139. In determining 

whether the woman would remain 

eligible for these services, the State must 

consider whether the woman would 

remain eligible if pregnant. This 

provision applies in instances where the 

labor and delivery services were 

furnished prior to the date of 

application and covered by Medicaid 

based on retroactive eligibility. 

(d) A redetermination of eligibility 

must be completed on behalf of the 

children described in this provision in 

accordance with the procedures at 

§ 435.916. At that time, the State must 

collect documentary evidence of 

citizenship and identity as required 

under § 435.406. 

■ 3. Section 435.406 is amended by —

■ A. Revising paragraph (a)(1)(iii). 

■ B. Adding paragraph (a)(1)(v). 

■ C. Revising paragraph (a)(2). 

■ D. Revising paragraph (b). 

The revisions and addition read as 

follows: 

§ 435.406 Citizenship and alienage. 

(a) * * * 

(1) * * * 

(iii) An individual for purposes of the 

declaration and citizenship 

documentation requirements discussed 

in paragraphs (a)(1)(i) and (a)(1)(ii) of 

this section includes both applicants 

and recipients under a section 1115 

demonstration (including a family 

planning demonstration project) for 

which a State receives Federal financial 

participation in their expenditures, as 

though the expenditures were for 

medical assistance. 

* * * * * 

(v) The following groups of 

individuals are exempt from the 

requirements in paragraph (a)(1)(ii) of 

this section: 

(A) Individuals receiving SSI benefits 

under title XVI of the Act. 

(B) Individuals entitled to or enrolled 

in any part of Medicare. 

(C) Individuals receiving disability 

insurance benefits under section 223 of 

the Act or monthly benefits under 

section 202 of the Act, based on the 

individual’s disability (as defined in 

section 223(d) of the Act). 

(D) Individuals who are in foster care 

and who are assisted under Title IV-B of 

the Act, and individuals who are 

recipients of foster care maintenance or 

adoption assistance payments under 

Title IV–E of the Act. 

(2)(i) Except as specified in 8 U.S.C. 

1612(b)(1) (permitting States an option 

with respect to coverage of certain 

qualified aliens), qualified aliens as 

described in section 431 of the Personal 

Responsibility and Work Opportunity 

Reconciliation Act of 1996 (8 U.S.C. 

1641) (including qualified aliens subject 

to the 5-year bar) who have provided 

satisfactory documentary evidence of 

Qualified Alien status, which status has 

been verified with the Department of 

Homeland Security (DHS) under a 

declaration required by section 1137(d) 

of the Act that the applicant or recipient 

is an alien in a satisfactory immigration 

status. 

(ii) The eligibility of qualified aliens 

who are subject to the 5-year bar in 8 

U.S.C. 1613 is limited to the benefits 

described in paragraph (b) of this 

section. 

(b) The agency must provide payment 

for the services described in § 440.255(c) 

of this chapter to residents of the State 

who otherwise meet the eligibility 

requirements of the State plan (except 

for receipt of AFDC, SSI, or State 

Supplementary payments) who are 

qualified aliens subject to the 5-year bar 

or who are non-qualified aliens who 

meet all Medicaid eligibility criteria, 

except non-qualified aliens need not 

present a social security number or 

document immigration status. 

■ 4. Section 435.407 is amended by: 

■ A. Adding introductory text to the 

section. 

■ B. Removing the ‘‘;’’ and ‘‘or’’ at the 

end of paragraph (a)(4) and adding a 

period in its place. 

■ C. Removing paragraph (a)(5). 

■ D. Revising paragraph (b)(1). 

■ E. Revising paragraph (b)(5). 

■ F. Adding paragraphs (b)(11) and 

(b)(12). 

■ G. Revising paragraph (c). 

■ H. Revising paragraph (d) 

introductory text. 

■ I. Revising paragraph (d)(2). 

■ J. Revising paragraph (d)(3). 

■ K. Revising paragraph (d)(4). 

■ L. Revising paragraph (d)(5)(vi). 

■ M. Revising paragraph (e)(1). 

■ N. Removing paragraphs (e)(2) 

through (e)(9). 

■ O. Redesignating paragraph (e)(10) as 

paragraph (e)(2). 

■ P. Adding a new paragraph (e)(3). 

■ Q. Revising paragraph (f). 

■ R. Redesignating paragraphs (g), (h), 

(i), and (j) as paragraphs (h), (i), (j), and 

(k). 

■ S. Adding a new paragraph (g). 

■ T. Revising newly redesignated 

paragraph (i). 

The revisions and additions read as 

follows: 

§ 435.407 Types of acceptable 

documentary evidence of citizenship. 

For purposes of this section, the term 

‘‘citizenship’’ includes status as a 

‘‘national of the United States’’ as 

defined by section 101(a)(22) of the 

Immigration and Nationality Act (8 

U.S.C. 1101(a)(22)) to include both 

citizens of the United States and noncitizen nationals of the United States. 

* * * * * 

(b) * * * 

(1) A U.S. public birth certificate 

showing birth in one of the 50 States, 

the District of Columbia, Puerto Rico (if 

born on or after January 13, 1941), Guam 

(on or after April 10, 1899), the Virgin 

Islands of the U.S. (on or after January 

17, 1917), American Samoa, Swain’s 

Island, or the Northern Mariana Islands 

(after November 4, 1986 (NMI local 

time)). A State, at its option, may use a 

cross match with a State vital statistics 

agency to document a birth record. The 

birth record document may be issued by 

the State, Commonwealth, Territory, or 

local jurisdiction. It must have been 

recorded before the person was 5 years 

of age. A delayed birth record document 

that is recorded at or after 5 years of age 

is considered fourth level evidence of 

citizenship. (Note: If the document 

shows the individual was born in Puerto 

Rico, the Virgin Islands of the U.S., or 

the Northern Mariana Islands before 

these areas became part of the U.S., the 

individual may be a collectively 

naturalized citizen. Collective 

naturalization occurred on certain dates 

listed for each of the territories.) The 

following will establish U.S. citizenship 

for collectively naturalized individuals: 

(i) Puerto Rico: 

(A) Evidence of birth in Puerto Rico 

on or after April 11, 1899 and the 

applicant’s statement that he or she was 

residing in the U.S., a U.S. possession, 

or Puerto Rico on January 13, 1941; or 

(B) Evidence that the applicant was a 

Puerto Rican citizen and the applicant’s 

statement that he or she was residing in 

Puerto Rico on March 1, 1917 and that 

he or she did not take an oath of 

allegiance to Spain. 

(ii) U.S. Virgin Islands: 


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(A) Evidence of birth in the U.S. 

Virgin Islands, and the applicant’s 

statement of residence in the U.S., a 

U.S. possession, or the U.S. Virgin 

Islands on February 25, 1927; or 

(B) The applicant’s statement 

indicating residence in the U.S. Virgin 

Islands as a Danish citizen on January 

17, 1917 and residence in the U.S., a 

U.S. possession, or the U.S. Virgin 

Islands on February 25, 1927, and that 

he or she did not make a declaration to 

maintain Danish citizenship; or 

(C) Evidence of birth in the U.S. 

Virgin Islands and the applicant’s 

statement indicating residence in the 

U.S., a U.S. possession or Territory, or 

the Canal Zone on June 28, 1932. 

(iii) Northern Mariana Islands (NMI) 

(formerly part of the Trust Territory of 

the Pacific Islands (TTPI)): 

(A) Evidence of birth in the NMI, 

TTPI citizenship and residence in the 

NMI, the U.S., or a U.S. Territory or 

possession on November 3, 1986 NMI 

local time) and the applicant’s statement 

that he or she did not owe allegiance to 

a foreign State on November 4, 1986 

(NMI local time); or 

(B) Evidence of TTPI citizenship, 

continuous residence in the NMI since 

before November 3, 1981 (NMI local 

time), voter registration before January 

1, 1975 and the applicant’s statement 

that he or she did not owe allegiance to 

a foreign State on November 4, 1986 

(NMI local time); or 

(C) Evidence of continuous domicile 

in the NMI since before January 1, 1974 

and the applicant’s statement that he or 

she did not owe allegiance to a foreign 

State on November 4, 1986 (NMI local 

time). 

(D) Note: If a person entered the NMI 

as a nonimmigrant and lived in the NMI 

since January 1, 1974, this does not 

constitute continuous domicile and the 

individual is not a U.S. citizen. 

* * * * * 

(5) A U.S. Citizen I.D. card. (This form 

was issued until the 1980s by INS. 

Although no longer issued, holders of 

this document may still use it consistent 

with the provisions of section 1903(x) of 

the Act.) INS issued the I–179 from 1960 

until 1973. It revised the form and 

renumbered it as Form I–197. INS 

issued the I–197 from 1973 until April 

7, 1983. INS issued Form I–179 and 

I–197 to naturalized U.S. citizens living 

near the Canadian or Mexican border 

who needed it for frequent border 

crossings. Although neither form is 

currently issued, either form that was 

previously issued is still valid. 

* * * * * 

(11) A data verification with the 

Systematic Alien Verification for 

Entitlements (SAVE) Program for 

naturalized citizens. A State may 

conduct a verification with SAVE to 

determine if an individual is a 

naturalized citizen, provided that such 

verification is conducted consistent 

with the terms of a Memorandum of 

Understanding or other agreement with 

the Department of Homeland Security 

(DHS) authorizing verification of claims 

to U.S. citizenship through SAVE, 

including but not limited to provision of 

the individual’s alien registration 

number if required by DHS. 

(12) Child Citizenship Act. Adopted 

or biological children born outside the 

United States may establish citizenship 

obtained automatically under section 

320 of the Immigration and Nationality 

Act (8 U.S.C. 1431), as amended by the 

Child Citizenship Act of 2000 (Pub. L. 

106–395, enacted on October 30, 2000). 

The State must obtain documentary 

evidence that verifies that at any time 

on or after February 27, 2001, the 

following conditions have been met: 

(i) At least one parent of the child is 

a United States citizen by either birth or 

naturalization (as verified under the 

requirements of this Part); 

(ii) The child is under the age of 18; 

(iii) The child is residing in the 

United States in the legal and physical 

custody of the U.S. citizen parent; 

(iv) The child was admitted to the 

United States for lawful permanent 

residence (as verified under the 

requirements of 8 U.S.C. 1641 

pertaining to verification of qualified 

alien status); and 

(v) If adopted, the child satisfies the 

requirements of section 101(b)(1) of the 

Immigration and Nationality Act (8 

U.S.C. 1101(b)(1) pertaining to 

international adoptions (admission for 

lawful permanent residence as IR–3 

(child adopted outside the United 

States)), or as IR–4 (child coming to the 

United States to be adopted) with final 

adoption having subsequently 

occurred). 

(c) Third level evidence of citizenship. 

Third level evidence of U.S. citizenship 

is documentary evidence of satisfactory 

reliability that is used when both 

primary and secondary evidence is 

unavailable. Third level evidence may 

be used only when the applicant or 

recipient alleges being born in the U.S. 

A second document from paragraph (e) 

of this section to establish identity must 

also be presented: 

(1) Extract of a hospital record on 

hospital letterhead established at the 

time of the person’s birth that was 

created 5 years before the initial 

application date and that indicates a 

U.S. place of birth. (For children under 

16 the document must have been 

created near the time of birth or 5 years 

before the date of application.) Do not 

accept a souvenir ‘‘birth certificate’’

issued by the hospital. 

(2) Life, health, or other insurance 

record showing a U.S. place of birth that 

was created at least 5 years before the 

initial application date that indicates a 

U.S. place of birth. (For children under 

16 the document must have been 

created near the time of birth or 5 years 

before the date of application.) Life or 

health insurance records may show 

biographical information for the person 

including place of birth; the record can 

be used to establish U.S. citizenship 

when it shows a U.S. place of birth. 

(3) Religious record recorded in the 

U.S. within 3 months of birth showing 

the birth occurred in the U.S. and 

showing either the date of the birth or 

the individual’s age at the time the 

record was made. The record must be an 

official record recorded with the 

religious organization. CAUTION: In 

questionable cases (for example, where 

the child’s religious record was 

recorded near a U.S. international 

border and the child may have been 

born outside the U.S.), the State must 

verify the religious record and/or 

document that the mother was in the 

U.S. at the time of birth. 

(4) Early school record showing a U.S. 

place of birth. The school record must 

show the name of the child, the date of 

admission to the school, the date of 

birth, a U.S. place of birth, and the 

name(s) and place(s) of birth of the 

applicant’s parents. 

(d) Fourth level evidence of 

citizenship. Fourth level evidence of 

citizenship is documentary evidence of 

the lowest reliability. Fourth level 

evidence should only be used in the 

rarest of circumstances. This level of 

evidence is used only when primary, 

secondary and third level evidence is 

unavailable. With the exception of the 

affidavit process described in paragraph 

(d)(5) of this section, the applicant may 

only use fourth level evidence of 

citizenship if alleging a U.S. place of 

birth. In addition, a second document 

establishing identity must be presented 

as described in paragraph (e) of this 

section. 

* * * * * 

(2) One of the following documents 

that show a U.S. place of birth and was 

created at least 5 years before the 

application for Medicaid. (For children 

under 16 the document must have been 

created near the time of birth or 5 years 

before the date of application.) This 

document must be one of the following 

and show a U.S. place of birth: 

(i) Seneca Indian tribal census. 


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(ii) Bureau of Indian Affairs tribal 

census records of the Navajo Indians. 

(iii) U.S. State Vital Statistics official 

notification of birth registration. 

(iv) A delayed U.S. public birth record 

that is recorded more than 5 years after 

the person’s birth. 

(v) Statement signed by the physician 

or midwife who was in attendance at 

the time of birth. 

(vi) The Roll of Alaska Natives 

maintained by the Bureau of Indian 

Affairs. 

(3) Institutional admission papers 

from a nursing facility, skilled care 

facility or other institution created at 

least 5 years before the initial 

application date that indicates a U.S. 

place of birth. Admission papers 

generally show biographical information 

for the person including place of birth; 

the record can be used to establish U.S. 

citizenship when it shows a U.S. place 

of birth. 

(4) Medical (clinic, doctor, or 

hospital) record created at least 5 years 

before the initial application date that 

indicates a U.S. place of birth. (For 

children under 16 the document must 

have been created near the time of birth 

or 5 years before the date of 

application.) 

Medical records generally show 

biographical information for the person 

including place of birth; the record can 

be used to establish U.S. citizenship 

when it shows a U.S. place of birth. 

(Note:An immunization record is not 

considered a medical record for 

purposes of establishing U.S. 

citizenship.) 

* * * * * 

(5) * * * 

(vi) The affidavits must be signed 

under penalty of perjury and need not 

be notarized. 

(e) * * * 

(1) Identity documents described in 8 

CFR 274a.2(b)(1)(v)(B)(1). 

(i) Driver’s license issued by State or 

Territory either with a photograph of the 

individual or other identifying 

information of the individual such as 

name, age, sex, race, height, weight or 

eye color. 

(ii) School identification card with a 

photograph of the individual. 

(iii) U.S. military card or draft record. 

(iv) Identification card issued by the 

Federal, State, or local government with 

the same information included on 

drivers’ licenses. 

(v) Military dependent’s identification 

card. 

(vi) Certificate of Degree of Indian 

Blood, or other American Indian/Alaska 

Native Tribal document with a 

photograph or other personal 

identifying information relating to the 

individual. Acceptable if the document 

carries a photograph of the applicant or 

recipient, or has other personal 

identifying information relating to the 

individual such as age, weight, height, 

race, sex, and eye color. 

(vii) U.S. Coast Guard Merchant 

Mariner card. 

Note to paragraph (e)(1): Exception: Do not 

accept a voter’s registration card or Canadian 

driver’s license as listed in 8 CFR 

274a.2(b)(1)(v)(B)(1). CMS does not view 

these as reliable for identity. 

* * * * * 

(3) At State option, a State may accept 

three or more documents that together 

reasonably corroborate the identity of an 

individual provided such documents 

have not been used to establish the 

individual’s citizenship and the 

individual submitted second or third 

tier evidence of citizenship. The State 

must first ensure that no other evidence 

of identity is available to the individual 

prior to accepting such documents. 

Such documents must at a minimum 

contain the individual’s name, plus any 

additional information establishing the 

individual’s identity. All documents 

used must contain consistent 

identifying information. These 

documents include employer 

identification cards, high school and 

college diplomas from accredited 

institutions (including general 

education and high school equivalency 

diplomas), marriage certificates, divorce 

decrees and property deeds/titles. 

(f) Special identity rules for children. 

For children under 16, a clinic, doctor, 

hospital or school record may be 

accepted for purposes of establishing 

identity. School records may include 

nursery or daycare records and report 

cards. If the State accepts such records, 

it must verify them with the issuing 

school. If none of the above documents 

in the preceding groups are available, an 

affidavit may be used. An affidavit is 

only acceptable if it is signed under 

penalty of perjury by a parent, guardian 

or caretaker relative (as defined in the 

regulations at 45 CFR 233.90(c)(v)) 

stating the date and place of the birth of 

the child and cannot be used if an 

affidavit for citizenship was provided. 

The affidavit is not required to be 

notarized. A State may accept an 

identity affidavit on behalf of a child 

under the age of 18 in instances when 

school ID cards and drivers’ licenses are 

not available to the individual in that 

area until that age. 

(g) Special identity rules for disabled 

individuals in institutional care 

facilities. A State may accept an identity 

affidavit signed under penalty of perjury 

by a residential care facility director or 

administrator on behalf of an 

institutionalized individual in the 

facility. States should first pursue all 

other means of verifying identity prior 

to accepting an affidavit. The affidavit is 

not required to be notarized. 

* * * * * 

(i) Documentary evidence. (1) All 

documents must be either originals or 

copies certified by the issuing agency. 

Uncertified copies, including notarized 

copies, shall not be accepted. 

(2) States must maintain copies of 

citizenship and identification 

documents in the case record or 

electronic data base and make these 

copies available for compliance audits. 

(3) States may permit applicants and 

recipients to submit such documentary 

evidence without appearing in person at 

a Medicaid office. States may accept 

original documents in person, by mail, 

or by a guardian or authorized 

representative. 

(4) If documents are determined to be 

inconsistent with pre-existing 

information, are counterfeit, or altered, 

States should investigate for potential 

fraud and abuse, including but not 

limited to, referral to the appropriate 

State and Federal law enforcement 

agencies. 

(5) Presentation of documentary 

evidence of citizenship is a one time 

activity; once a person’s citizenship is 

documented and recorded in a State 

database subsequent changes in 

eligibility should not require repeating 

the documentation of citizenship unless 

later evidence raises a question of the 

person’s citizenship. The State need 

only check its databases to verify that 

the individual already established 

citizenship. 

(6) CMS requires that as a check 

against fraud, using currently available 

automated capabilities, States will 

conduct a match of the applicant’s name 

against the corresponding Social 

Security number that was provided. In 

addition, in cooperation with other 

agencies of the Federal government, 

CMS encourages States to use 

automated capabilities to verify 

citizenship and identity of Medicaid 

applicants. Automated capabilities may 

fall within the computer matching 

provisions of the Privacy Act of 1974, 

and CMS will explore any 

implementation issues that may arise 

with respect to those requirements. 

When these capabilities become 

available, States will be required to 

match files for individuals who used 

third or fourth tier documents to verify 

citizenship and documents to verify 

identity, and CMS will make available 


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to States necessary information in this 

regard. States must ensure that all case 

records within this category will be so 

identified and made available to 

conduct these automated matches. CMS 

may also require States to match files for 

individuals who used first or second 

level documents to verify citizenship as 

well. CMS may provide further 

guidance to States with respect to 

actions required in a case of a negative 

match. 

* * * * * 

■ 5. Section 435.1008 is revised to read 

as follows: 

§ 435.1008 FFP in expenditures for 

medical assistance for individuals who 

have declared United States citizenship or 

nationality under section 1137(d) of the Act 

and with respect to whom the State has not 

documented citizenship and identity. 

Except for individuals described in 

§ 435.406(a)(1)(v), FFP will not be 

available to a State with respect to 

expenditures for medical assistance 

furnished to individuals unless the State 

has obtained satisfactory documentary 

evidence of citizenship or national 

status, as described in § 435.407 that 

complies with the requirements of 

section 1903(x) of the Act. 

PART 436—ELIGIBILITY PART 436—

ELIGIBILITY IN GUAM, PUERTO RICO, 

AND THE VIRGIN ISLANDS 

■ 6. The authority citation for part 436 

continues to read as follows: 

Authority: Sec. 1102 of the Social Security 

Act (42 U.S.C. 1302). 

■ 7. Section 436.124 is revised to read 

as follows: 

§ 436.124 Newborn children. 

(a) The agency must provide Medicaid 

eligibility to a child born to a woman 

who has applied for, has been 

determined eligible and is receiving 

Medicaid on the date of the child’s 

birth. The child is deemed to have 

applied and been found eligible for 

Medicaid on the date of birth and 

remains eligible for one year so long as 

the woman remains (or would remain if 

pregnant) eligible and the child is a 

member of the woman’s household. 

This provision applies in instances 

where the labor and delivery services 

were furnished prior to the date of 

application and covered by Medicaid 

based on retroactive eligibility. 

(b) The agency must provide 

Medicaid eligibility in the same manner 

described in paragraph (a) of this 

section to a child born to an otherwiseeligible qualified alien woman subject to 

the 5-year bar so long as the woman has 

filed a complete Medicaid application, 

including but not limited to meeting 

residency, income and resource 

requirements, has been determined 

eligible, is receiving Medicaid on the 

date of the child’s birth, and remains (or 

would remain if pregnant) Medicaid 

eligible. All standard Medicaid 

application procedures apply, including 

timely determination of eligibility and 

adequate notice of the agency’s decision 

concerning eligibility. A 5-year bar 

qualified alien receiving emergency 

medical services only under § 435.139 

of this chapter is considered to be 

Medicaid-eligible and receiving 

Medicaid for purposes of this provision. 

With respect to whether the mother 

remains (or would remain if pregnant) 

eligible for Medicaid after the birth of 

the child, the State must determine 

whether a 5-year bar qualified alien 

would remain eligible for emergency 

services under § 435.139 of this chapter. 

In determining whether the woman 

would remain eligible for these services, 

the State must consider whether the 

woman would remain eligible if 

pregnant. This provision applies in 

instances where the labor and delivery 

services were furnished prior to the date 

of application and covered by Medicaid 

based on retroactive eligibility. 

(c) The agency must provide Medicaid 

eligibility in the same manner described 

in paragraph (a) of this section to a child 

born to an otherwise-eligible nonqualified alien woman so long as the 

woman has filed a complete Medicaid 

application (other than providing a 

social security number or demonstrating 

immigration status), including but not 

limited to meeting residency, income 

and resource requirements, has been 

determined eligible, is receiving 

Medicaid on the date of the child’s 

birth, and remains (or would remain if 

pregnant) Medicaid eligible. All 

standard Medicaid application 

procedures apply, including timely 

determination of eligibility and 

adequate notice of the agency’s decision 

concerning eligibility. A non-qualified 

alien receiving emergency medical 

services only under § 435.139 of this 

chapter is considered to be Medicaideligible and receiving Medicaid for 

purposes of this provision. With respect 

to whether the mother remains (or 

would remain if pregnant) eligible for 

Medicaid after the birth of the child, the 

State must determine whether a nonqualified alien would remain eligible for 

emergency services under § 435.139 of 

this chapter. In determining whether the 

woman would remain eligible for these 

services, the State must consider 

whether the woman would remain 

eligible if pregnant. This provision 

applies in instances where the labor and 

delivery services were furnished prior to 

the date of application and covered by 

Medicaid based on retroactive 

eligibility. 

(d) A redetermination of eligibility 

must be completed on behalf of the 

children described in this provision in 

accordance with the procedures at 

§ 435.916. At that time, the State must 

collect documentary evidence of 

citizenship and identity as required 

under § 436.406. 

■ 7a. Section § 436.406 is amended by: 

■ A. Revising paragraph (a)(1)(iii). 

■ B. Adding paragraph (a)(1)(v). 

■ C. Revising paragraph (a)(2). 

■ D. Revising paragraph (b). 

The revisions and addition read as 

follows: 

§ 436.406 Citizenship and alienage. 

(a) * * * 

(1) * * * 

(iii) An individual for purposes of the 

declaration and citizenship 

documentation requirements discussed 

in paragraphs (a)(1)(i) and (a)(1)(ii) of 

this section includes both applicants 

and recipients under a section 1115 

demonstration (including a family 

planning demonstration project) for 

which a State receives Federal financial 

participation in their expenditures, as 

though the expenditures were for 

medical assistance. 

* * * * * 

(v) The following groups of 

individuals are exempt from the 

requirements in paragraph (a)(1)(ii) of 

this section: 

(A) Individuals receiving SSI benefits 

under title XVI of the Act; 

(B) Individuals entitled to or enrolled 

in any part of Medicare; 

(C) Individuals receiving disability 

insurance benefits under section 223 of 

the Act or monthly benefits under 

section 202 of the Act, based on the 

individual’s disability (as defined in 

section 223(d) of the Act); and 

(D) Individuals who are in foster care 

and who are assisted under Title IV–B 

of the Act, and individuals who are 

recipients of foster care maintenance or 

adoption assistance payments under 

Title IV-E of the Act. 

(2)(i) Except as specified in 8 U.S.C. 

1612(b)(1) (permitting States an option 

with respect to coverage of certain 

qualified aliens), qualified aliens as 

described in section 431 of the Personal 

Responsibility and Work Opportunity 

Reconciliation Act of 1996 (8 U.S.C. 

1641) (including qualified aliens subject 

to the 5-year bar) who have provided 

satisfactory documentary evidence of 

Qualified Alien status, which status has 


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been verified with the Department of 

Homeland Security (DHS) under a 

declaration required by section 1137(d) 

of the Act that the applicant or recipient 

is an alien in a satisfactory immigration 

status. 

(ii) The eligibility of qualified aliens 

who are subject to the 5-year bar in 8 

U.S.C. 1613 is limited to the benefits 

described in paragraph (b) of this 

section. 

(b) The agency must provide payment 

for the services described in § 440.255(c) 

of this chapter to residents of the State 

who otherwise meet the eligibility 

requirements of the State plan (except 

for receipt of AFDC, SSI, or State 

Supplementary payments) who are 

qualified aliens subject to the 5-year bar 

or who are non-qualified aliens who 

meet all Medicaid eligibility criteria, 

except non-qualified aliens need not 

present a social security number or 

document immigration status. 

■ 8. Section § 436.407 is amended by: 

■ A. Adding introductory text to the 

section. 

■ B. Revising paragraph (a)(4). 

■ C. Revising paragraph (b)(1). 

■ D. Revising paragraph (b)(5). 

■ E. Adding paragraphs (b)(11) and 

(b)(12). 

■ F. Revising paragraph (c). 

■ G. Revising paragraph (d) introductory 

text. 

■ H. Revising paragraph (d)(2). 

■ I. Revising paragraph (d)(3). 

■ J. Revising paragraph (d)(4). 

■ K. Revising paragraph (d)(5)(vi). 

■ L. Revising paragraph (e)(1). 

■ M. Removing paragraphs (e)(2) 

through (e)(9). 

■ N. Redesignating paragraph (e)(10) as 

paragraph (e)(2). 

■ O. Adding a new paragraph (e)(3). 

■ P. Revising paragraph (f). 

■ Q. Redesignating paragraphs (g), (h), 

(i) and (j) as paragraphs (h), (i), (j) and 

(k). 

■ R. Revising newly redesignated 

paragraph (i). 

■ S. Adding a new paragraph (g). 

The revisions and additions read as 

follows: 

§ 436.407 Types of acceptable 

documentary evidence of citizenship. 

For purposes of this section, the term 

‘‘citizenship’’ includes status as a 

‘‘national of the United States’’ as 

defined by section 101(a)(22) of the 

Immigration and Nationality Act (8 

U.S.C. § 1101(a)(22)) to include both 

citizens of the United States and noncitizen nationals of the United States. 

* * * * * 

(a) * * * 

(4) A valid State-issued driver’s 

license, but only if the State issuing the 

license requires proof of U.S. 

citizenship before issuance of such 

license or obtains a social security 

number from the applicant and verifies 

before certification that such number is 

valid and assigned to the applicant who 

is a citizen. (This provision is not 

effective until such time as a State 

makes providing evidence of citizenship 

a condition of issuing a driver’s license 

and evidence that the license holder is 

a citizen is included on the license or 

in a system of records available to the 

Medicaid agency. States must ensure 

that the process complies with this 

statutory provision in section 6036 of 

the Deficit Reduction Act of 2005. CMS 

will monitor compliance of States 

implementing this provision.) 

(b) * * * 

(1) A U.S. public birth certificate 

showing birth in one of the 50 States, 

the District of Columbia, Puerto Rico (if 

born on or after January 13, 1941), Guam 

(on or after April 10, 1899), the Virgin 

Islands of the U.S.(on or after January 

17, 1917), American Samoa, Swain’s 

Island, or the Northern Mariana Islands 

(after November 4, 1986 (NMI local 

time)). A State, at its option, may use a 

cross match with a State vital statistics 

agency to document a birth record. The 

birth record document may be issued by 

the State, Commonwealth, Territory, or 

local jurisdiction. It must have been 

recorded before the person was 5 years 

of age. A delayed birth record document 

that is recorded at or after 5 years of age 

is considered fourth level evidence of 

citizenship. (Note: If the document 

shows the individual was born in Puerto 

Rico, the Virgin Islands of the U.S., or 

the Northern Mariana Islands before 

these areas became part of the U.S., the 

individual may be a collectively 

naturalized citizen. Collective 

naturalization occurred on certain dates 

listed for each of the territories.) The 

following will establish U.S. citizenship 

for collectively naturalized individuals: 

(i) Puerto Rico: 

(A) Evidence of birth in Puerto Rico 

on or after April 11, 1899 and the 

applicant’s statement that he or she was 

residing in the U.S., a U.S. possession, 

or Puerto Rico on January 13, 1941; or 

(B) Evidence that the applicant was a 

Puerto Rican citizen and the applicant’s 

statement that he or she was residing in 

Puerto Rico on March 1, 1917 and that 

he or she did not take an oath of 

allegiance to Spain. 

(ii) U.S. Virgin Islands: 

(A) Evidence of birth in the U.S. 

Virgin Islands, and the applicant’s 

statement of residence in the U.S., a 

U.S. possession, or the U.S. Virgin 

Islands on February 25, 1927; or 

(B) The applicant’s statement 

indicating residence in the U.S. Virgin 

Islands as a Danish citizen on January 

17, 1917 and residence in the U.S., a 

U.S. possession, or the U.S. Virgin 

Islands on February 25, 1927, and that 

he or she did not make a declaration to 

maintain Danish citizenship; or 

(C) Evidence of birth in the U.S. 

Virgin Islands and the applicant’s 

statement indicating residence in the 

U.S., a U.S. possession, or Territory or 

the Canal Zone on June 28, 1932. 

(iii) Northern Mariana Islands (NMI) 

(formerly part of the Trust Territory of 

the Pacific Islands (TTPI)): 

(A) Evidence of birth in the NMI, 

TTPI citizenship and residence in the 

NMI, the U.S., or a U.S. Territory or 

possession on November 3, 1986 (NMI 

local time) and the applicant’s statement 

that he or she did not owe allegiance to 

a foreign State on November 4, 1986 

(NMI local time); or 

(B) Evidence of TTPI citizenship, 

continuous residence in the NMI since 

before November 3, 1981 (NMI local 

time), voter registration before January 

1, 1975 and the applicant’s statement 

that he or she did not owe allegiance to 

a foreign State on November 4, 1986 

(NMI local time); or 

(C) Evidence of continuous domicile 

in the NMI since before January 1, 1974 

and the applicant’s statement that he or 

she did not owe allegiance to a foreign 

State on November 4, 1986 (NMI local 

time). 

(D) Note: If a person entered the NMI 

as a nonimmigrant and lived in the NMI 

since January 1, 1974, this does not 

constitute continuous domicile and the 

individual is not a U.S. citizen. 

* * * * * 

(5) A U.S. Citizen I.D. card. (This form 

was issued until the 1980s by INS. 

Although no longer issued, holders of 

this document may still use it consistent 

with the provisions of section 1903(x) of 

the Act.) INS issued the I–179 from 1960 

until 1973. It revised the form and 

renumbered it as Form I–197. INS 

issued the I–197 from 1973 until April 

7, 1983. INS issued Form I–179 and I–

197 to naturalized U.S. citizens living 

near the Canadian or Mexican border 

who needed it for frequent border 

crossings. Although neither form is 

currently issued, either form that was 

previously issued is still valid. 

* * * * * 

(11) A data verification with the 

Systematic Alien Verification for 

Entitlements (SAVE) Program for 

naturalized citizens. A State may 

conduct a verification with SAVE to 

determine if an individual is a 

naturalized citizen, provided that such 


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verification is conducted consistent 

with the terms of a Memorandum of 

Understanding or other agreement with 

the Department of Homeland Security 

(DHS) authorizing verification of claims 

to U.S. citizenship through SAVE, 

including but not limited to provision of 

the individual’s alien registration 

number if required by DHS. 

(12) Child Citizenship Act. Adopted 

or biological children born outside the 

United States may establish citizenship 

obtained automatically under section 

320 of the Immigration and Nationality 

Act (8 U.S.C. 1431), as amended by the 

Child Citizenship Act of 2000 (Pub. L. 

106–395, enacted on October 30, 2000). 

The State must obtain documentary 

evidence that verifies that at any time 

on or after February 27, 2001, the 

following conditions have been met: 

(i) At least one parent of the child is 

a United States citizen by either birth or 

naturalization (as verified under the 

requirements of this Part); 

(ii) The child is under the age of 18; 

(iii) The child is residing in the 

United States in the legal and physical 

custody of the U.S. citizen parent; 

(iv) The child was admitted to the 

United States for lawful permanent 

residence (as verified under the 

requirements of 8 U.S.C. 1641 

pertaining to verification of qualified 

alien status); and 

(v) If adopted, the child satisfies the 

requirements of section 101(b)(1) of the 

Immigration and Nationality Act (8 

U.S.C. 1101(b)(1) pertaining to 

international adoptions (admission for 

lawful permanent residence as IR–3 

(child adopted outside the United 

States)), or as IR–4 (child coming to the 

United States to be adopted) with final 

adoption having subsequently 

occurred). 

(c) Third level evidence of citizenship. 

Third level evidence of U.S. citizenship 

is documentary evidence of satisfactory 

reliability that is used when both 

primary and secondary evidence is 

unavailable. Third level evidence may 

be used only when the applicant or 

recipient alleges birth in the U.S. A 

second document from paragraph (e) of 

this section to establish identity must 

also be presented: 

(1) Extract of a hospital record on 

hospital letterhead established at the 

time of the person’s birth that was 

created 5 years before the initial 

application date and that indicates a 

U.S. place of birth. (For children under 

16 the document must have been 

created near the time of birth or 5 years 

before the date of application.) Do not 

accept a souvenir ‘‘birth certificate’’

issued by the hospital. 

(2) Life, health, or other insurance 

record showing a U.S. place of birth that 

was created at least 5 years before the 

initial application date that indicates a 

U.S. place of birth. (For children under 

16 the document must have been 

created near the time of birth or 5 years 

before the date of application.) Life or 

health insurance records may show 

biographical information for the person 

including place of birth; the record can 

be used to establish U.S. citizenship 

when it shows a U.S. place of birth. 

(3) Religious record recorded in the 

U.S. within 3 months of birth showing 

the birth occurred in the U.S. and 

showing either the date of the birth or 

the individual’s age at the time the 

record was made. The record must be an 

official record recorded with the 

religious organization. Caution: In 

questionable cases (for example, where 

the child’s religious record was 

recorded near a U.S. international 

border and the child may have been 

born outside the U.S.), the State must 

consider verifying the religious record 

and/or documenting that the mother 

was in the U.S. at the time of the birth. 

(4) Early school record showing a U.S. 

place of birth. The school record must 

show the name of the child, the date of 

admission to the school, the date of 

birth (or age at the time the record was 

made), a U.S. place of birth, and the 

name(s) and place(s) of birth of the 

applicant’s parents. 

(d) Fourth level evidence of 

citizenship. Fourth level evidence of 

citizenship is documentary evidence of 

the lowest reliability. Fourth level 

evidence should only be used in the 

rarest of circumstances. This level of 

evidence is used only when primary, 

secondary and third level evidence is 

unavailable. With the exception of the 

affidavit process described in paragraph 

(d)(5) of this section, the applicant may 

only use fourth level evidence of 

citizenship if alleging a U.S. place of 

birth. In addition, a second document 

establishing identity must be presented 

as described in paragraph (e) of this 

section. 

* * * * * 

(2) One of the following documents 

that show a U.S. place of birth and was 

created at least 5 years before the 

application for Medicaid. (For children 

under 16 the document must have been 

created near the time of birth or 5 years 

before the date of application.) This 

document must be one of the following 

and show a U.S. place of birth: 

(i) Seneca Indian tribal census. 

(ii) Bureau of Indian Affairs tribal 

census records of the Navajo Indians. 

(iii) U.S. State Vital Statistics official 

notification of birth registration. 

(iv) A delayed U.S. public birth record 

that is recorded more than 5 years after 

the person’s birth. 

(v) Statement signed by the physician 

or midwife who was in attendance at 

the time of birth. 

(vi) The Roll of Alaska Natives 

maintained by the Bureau of Indian 

Affairs. 

(3) Institutional admission papers 

from a nursing facility, skilled care 

facility or other institution created at 

least 5 years before the initial 

application date that indicates a U.S. 

place of birth. Admission papers 

generally show biographical information 

for the person including place of birth; 

the record can be used to establish U.S. 

citizenship when it shows a U.S. place 

of birth. 

(4) Medical (clinic, doctor, or 

hospital) record created at least 5 years 

before the initial application date that 

indicates a U.S. place of birth. (For 

children under 16 the document must 

have been created near the time of birth 

or 5 years before the date of 

application.) Medical records generally 

show biographical information for the 

person including place of birth; the 

record can be used to establish U.S. 

citizenship when it shows a U.S. place 

of birth. (Note: An immunization record 

is not considered a medical record for 

purposes of establishing U.S. 

citizenship.) 

* * * * * 

(5) * * * 

(vi) The affidavits must be signed 

under penalty of perjury and need not 

be notarized. 

(e) * * * 

(1) Identity documents described in 8 

CFR 274a.2(b)(1)(v)(B)(1). 

(i) Driver’s license issued by State or 

Territory either with a photograph of the 

individual or other identifying 

information of the individual such as 

name, age, sex, race, height, weight, or 

eye color. 

(ii) School identification card with a 

photograph of the individual. 

(iii) U.S. military card or draft record. 

(iv) Identification card issued by the 

Federal, State, or local government with 

the same information included on 

driver’s licenses. 

(v) Military dependent’s identification 

card. 

(vi) Certificate of Degree of Indian 

Blood, or other American Indian/Alaska 

Native Tribal document with a 

photograph or other personal 

identifying information relating to the 

individual. Acceptable if the document 

carries a photograph of the applicant or 

recipient, or has other personal 

identifying information relating to the 


rwilkins on PROD1PC63 with RULES_2
Federal Register / Vol. 72, No. 134 / Friday, July 13, 2007 / Rules and Regulations 38697 

individual such as age, weight, height, 

race, sex, and eye color. 

(vii) U.S. Coast Guard Merchant 

Mariner card. 

Note to paragraph (e)(1): Exception: Do not 

accept a voter’s registration card or Canadian 

driver’s license as listed in 8 CFR 

274a.2(b)(1)(v)(B)(1). CMS does not view 

these as reliable for identity. 

* * * * * 

(3) At State option, a State may accept 

three or more documents that together 

reasonably corroborate the identity of an 

individual provided such documents 

have not been used to establish the 

individual’s citizenship and the 

individual submitted second or third 

tier evidence of citizenship. The State 

must first ensure that no other evidence 

of identity is available to the individual 

prior to accepting such documents. 

Such documents must at a minimum 

contain the individual’s name, plus any 

additional information establishing the 

individual’s identity. All documents 

used must contain consistent 

identifying information. These 

documents include employer 

identification cards, high school and 

college diplomas from accredited 

institutions (including general 

education and high school equivalency 

diplomas), marriage certificates, divorce 

decrees, and property deeds/titles. 

(f) Special identity rules for children. 

For children under 16, a clinic, doctor, 

hospital or school record may be 

accepted for purposes of establishing 

identity. School records may include 

nursery or daycare records and report 

cards. If the State accepts such records, 

it must verify them with the issuing 

school. If none of the above documents 

in the preceding groups are available, an 

affidavit may be used. An affidavit is 

only acceptable if it is signed under 

penalty of perjury by a parent, guardian 

or caretaker relative (as defined in the 

regulations at 45 CFR 233.90(c)(v)) 

stating the date and place of the birth of 

the child and cannot be used if an 

affidavit for citizenship was provided. 

The affidavit is not required to be 

notarized. A State may accept an 

identity affidavit on behalf of a child 

under the age of 18 in instances when 

school ID cards and drivers’ licenses are 

not available to the individual in that 

area until that age. 

(g) Special identity rules for disabled 

individuals in institutional care 

facilities. A State may accept an identity 

affidavit signed under penalty of perjury 

by a residential care facility director or 

administrator on behalf of an 

institutionalized individual in the 

facility. States should first pursue all 

other means of verifying identity prior 

to accepting an affidavit. The affidavit is 

not required to be notarized. 

* * * * * 

(i) Documentary evidence. (1) All 

documents must be either originals or 

copies certified by the issuing agency. 

Uncertified copies, including notarized 

copies, shall not be accepted. 

(2) States must maintain copies of 

citizenship and identification 

documents in the case record or 

electronic data base and make these 

copies available for compliance audits. 

(3) States may permit applicants and 

recipients to submit such documentary 

evidence without appearing in person at 

a Medicaid office. States may accept 

original documents in person, by mail, 

or by a guardian or authorized 

representative. 

(4) If documents are determined to be 

inconsistent with pre-existing 

information, are counterfeit, or altered, 

States should investigate for potential 

fraud and abuse, including but not 

limited to, referral to the appropriate 

State and Federal law enforcement 

agencies. 

(5) Presentation of documentary 

evidence of citizenship is a one time 

activity; once a person’s citizenship is 

documented and recorded in a State 

database subsequent changes in 

eligibility should not require repeating 

the documentation of citizenship unless 

later evidence raises a question of the 

person’s citizenship. The State need 

only check its databases to verify that 

the individual already established 

citizenship. 

(6) CMS requires that as a check 

against fraud, using currently available 

automated capabilities, States will 

conduct a match of the applicant’s name 

against the corresponding Social 

Security number that was provided. In 

addition, in cooperation with other 

agencies of the Federal government, 

CMS encourages States to use 

automated capabilities to verify 

citizenship and identity of Medicaid 

applicants. Automated capabilities may 

fall within the computer matching 

provisions of the Privacy Act of 1974, 

and CMS will explore any 

implementation issues that may arise 

with respect to those requirements. 

When these capabilities become 

available, States will be required to 

match files for individuals who used 

third or fourth tier documents to verify 

citizenship and documents to verify 

identity, and CMS will make available 

to States necessary information in this 

regard. States must ensure that all case 

records within this category will be so 

identified and made available to 

conduct these automated matches. CMS 

may also require States to match files for 

individuals who used first or second 

level documents to verify citizenship as 

well. CMS may provide further 

guidance to States with respect to 

actions required in a case of a negative 

match. 

■ 9. Section 436.1004 is revised to read 

as follows: 

§ 436.1004 FFP in expenditures for 

medical assistance for individuals who 

have declared United States citizenship or 

nationality under section 1137(d) of the Act 

and with respect to whom the State has not 

documented citizenship and identity. 

Except for individuals described in 

§ 436.406(a)(1)(v), FFP will not be 

available to a State with respect to 

expenditures for medical assistance 

furnished to individuals unless the State 

has obtained satisfactory documentary 

evidence of citizenship or national 

status, as described in § 436.407 of this 

chapter that complies with the 

requirements of section 1903(x) of the 

Act. 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) 

Dated: May 7, 2007. 

Leslie V. Norwalk, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Approved: May 10, 2007. 

Michael O. Leavitt, 

Secretary. 

[FR Doc. 07–3291 Filed 7–2–07; 2:56 pm] 

BILLING CODE 4120–01–P 


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