[Federal Register Volume 72, Number 134 (Friday, July 13, 2007)]
[Rules and Regulations]
[Pages 38662-38697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3291]



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Part II





Department of Health and Human Services





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Centers for Medicare & Medicaid Service



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



Medicaid Program; Citizenship Documentation Requirements; Final Rule

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

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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.

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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 Medicaid-eligible 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:
    <bullet> All individuals receiving SSI (the DRA only exempted 
individuals receiving Medicaid by virtue of receiving SSI);
    <bullet> 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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    <bullet> 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 non-existent ``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 Sec.  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 Sec.  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 Sec.  435.902, Sec.  
435.910(e), Sec.  435.912, Sec.  435.919 and Sec.  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 Sec.  431.210 or Sec.  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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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 re-determining 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 Sec.  455.13(c) and Sec.  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 Sec.  435.406 and Sec.  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 Sec.  435.407 and Sec.  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 Sec.  435.406 and Sec.  436.406 to define 
``Satisfactory immigration status as a Qualified Alien'' as described 
in 8 U.S.C. 1641(b). We amended Sec.  435.406 and Sec.  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 Sec.  435.407 and a new Sec.  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 Sec.  
435.407(a) and Sec.  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 Sec.  
435.407(e) and Sec.  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 non-government 
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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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 non-
citizen 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 Sec.  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

[[Page 38667]]

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

[[Page 38668]]

SAVE with a form of identity listed under the regulations at Sec.  
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 Sec.  435.407(e) 
and Sec.  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 Sec.  435.407(e)(2) (formerly Sec.  
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 Sec.  435.407(a)(4) and Sec.  
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.

[[Page 38669]]

    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 Sec.  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.

[[Page 38670]]

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 Sec.  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.

[[Page 38671]]

    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 non-
relative 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 Sec.  
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

[[Page 38672]]

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 Sec.  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

[[Page 38673]]

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 Sec.  435.407(c)(3) and Sec.  
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 
Sec.  435.407(c)(4) and Sec.  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 non-governmental 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 Sec.  
435.407(d)(1) and Sec.  436.407(d)(1), we permit as fourth-level 
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 
post-natal care could qualify as an extract of a hospital record, which 
is considered third level evidence at Sec.  435.407(c)(1) and at Sec.  
436.407(c)(1), or a medical record, which is considered fourth level 
evidence at Sec.  435.407(d)(4) and at Sec.  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.

[[Page 38674]]

    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 Sec.  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 Sec.  
435.407 and Sec.  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 Sec.  435.407 and Sec.  436.407.
    Comment: In the regulations at Sec.  435.407(b)(1) and Sec.  
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 five-year 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 federally-recognized 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

[[Page 38675]]

in Part A or B of Medicare, will be exempt from the citizenship 
documentation requirements. Second, certain Tribal documents, such as 
those listed in Sec.  435.407(d)(2) and Sec.  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 federally-recognized 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 Federally-recognized Tribes. 
The individual must not only be a member of a Federally-recognized 
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 Sec.  
435.407(d)(vi) Sec.  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 Self-
Determination 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

[[Page 38676]]

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 Medicaid-eligible 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 non-qualified 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 Medicaid-eligible 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 Sec.  435.139 or 
Sec.  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 Sec.  435.117 and Sec.  
436.117 to reflect these changes in policy.

[[Page 38677]]

    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 Sec.  435.407(c)(1) and Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  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 Sec.  435.407(f) and Sec.  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

[[Page 38678]]

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 counter-intuitive 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 self-declaration 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 Sec.  
435.407(d)(5)(iv) and Sec.  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

[[Page 38679]]

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 Sec.  
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 Sec.  435.407(e)(1) and Sec.  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 Sec.  435.407(e)(1)(ii) or Sec.  436.407(e)(1)(ii) or a 
driver's license that meets the criteria at Sec.  435.407(e)(1)(i) or 
Sec.  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 Sec.  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 
Sec.  435.407(f) and Sec.  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 Sec.  435.407(e)(3) 
and Sec.  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

[[Page 38680]]

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 
foreign-issued 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 Sec.  435.407(g) and Sec.  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 
Sec.  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 Sec.  435.407(e)(8) and Sec.  436.407(e)(8) appears 
to be duplicative of the documents described in Sec.  435.407(e)(1)-(7) 
and Sec.  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 
Sec.  435.407(e)(8). In addition, we have removed Sec.  435.407(e)(9), 
which was a duplicate of the new Sec.  435.407(e)(1)(vi). The 
regulations text at Sec.  435.407(e)(10) in the interim final 
regulations is now at Sec.  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

[[Page 38681]]

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 Sec.  435.407(h) and Sec.  436.407(h) (formerly Sec.  
435.407(g) and Sec.  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 Sec.  435.407(h) (formerly Sec.  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 Sec.  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 Sec.  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 Sec.  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.

[[Page 38682]]

    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 Sec.  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 Sec.  436.406 as well as Sec.  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

[[Page 38683]]

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 Sec.  430.2 and Sec.  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 non-citizen applicants. For instance, a non-citizen 
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.

[[Page 38684]]

    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 Sec.  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 Sec.  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 Sec.  
435.904. These locations must include all disproportionate share 
hospitals (DSH) and Federally qualified health centers

[[Page 38685]]

(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 Sec.  435.408 and Sec.  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 Sec.  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 Sec.  435.407(e)(1) (formerly Sec.  
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 
Sec.  435.407(d)(3) and Sec.  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

[[Page 38686]]

June 9, 2006 was an oversight or a change in policy.
    Response: The absence of this document from the regulations at 
Sec.  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 Sec.  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 Sec.  
435.139 only if she submits a full Medicaid application showing she 
meets the requirements under Sec.  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 Sec.  435.406(a)(2) and (b) and Sec.  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 Sec.  435.406(b), (c) 
and (d) and Sec.  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 Sec.  435.407 and 
Sec.  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 Sec.  435.407(b)(5) 
and Sec.  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 Sec.  435.407(d) and 
Sec.  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 Sec.  435.407(e)(8) and Sec.  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

[[Page 38687]]

employee ID cards to verify the identity of an individual.
    (18) We have clarified in the regulations text at Sec.  435.407(f) 
and Sec.  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 Sec.  435.407(f) and 
Sec.  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 
Sec.  435.407(f) and Sec.  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 Sec.  435.407(f) and 
Sec.  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 Sec.  435.407(g) and Sec.  436.407(g).
    (23) We have revised the regulations text at Sec.  435.1008 and 
Sec.  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:
    <bullet> The need for the information collection and its usefulness 
in carrying out the proper functions of our agency.
    <bullet> The accuracy of our estimate of the information collection 
burden.
    <bullet> The quality, utility, and clarity of the information to be 
collected.
    <bullet> 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 (Sec.  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. 
(Sec.  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 (Sec.  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 
Sec.  435.406 and Sec.  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. (Sec.  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:


[[Page 38688]]


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], 
<a href="/cdn-cgi/l/email-protection#670c06130f02150e090238061413150e040f27080a054902081749000811"><span class="__cf_email__" data-cfemail="a4cfc5d0ccc1d6cdcac1fbc5d7d0d6cdc7cce4cbc9c68ac1cbd48ac3cbd2">[email protected]</span></a>. 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.

[[Page 38689]]

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 self-
declaration of citizenship and one-half percent in states with 
restricted self-declaration. 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
                                                          ------------------------------------------------------
    1Total...............................................         85         90        100        110        125
----------------------------------------------------------------------------------------------------------------


                                 Table B
------------------------------------------------------------------------
                                            Annualized
                                              Federal       Annualized
               Discount--                     savings     State  savings
                                            ($millions/     ($millions/
                                               year)           year)
------------------------------------------------------------------------
                                            FY 2007-2011    FY 2007-2011
                                         -------------------------------
0 percent...............................            57.0            45.0
3 percent...............................            56.6            44.8
7 percent...............................            56.1            44.5
------------------------------------------------------------------------

E. Conclusion

    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

[[Page 38690]]

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.


0
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

0
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).


0
2. Section 435.117 is revised to read as follows:


Sec.  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 
otherwise-eligible 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 Sec.  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 Sec.  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 non-qualified 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

[[Page 38691]]

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 Sec.  
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 Sec.  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 Sec.  435.916. At that time, the State must collect 
documentary evidence of citizenship and identity as required under 
Sec.  435.406.


0
3. Section 435.406 is amended by --
0
A. Revising paragraph (a)(1)(iii).
0
B. Adding paragraph (a)(1)(v).
0
C. Revising paragraph (a)(2).
0
D. Revising paragraph (b).
    The revisions and addition read as follows:


Sec.  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 
Sec.  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.

0
4. Section 435.407 is amended by:
0
A. Adding introductory text to the section.
0
B. Removing the ``;'' and ``or'' at the end of paragraph (a)(4) and 
adding a period in its place.
0
C. Removing paragraph (a)(5).
0
D. Revising paragraph (b)(1).
0
E. Revising paragraph (b)(5).
0
F. Adding paragraphs (b)(11) and (b)(12).
0
G. Revising paragraph (c).
0
H. Revising paragraph (d) introductory text.
0
I. Revising paragraph (d)(2).
0
J. Revising paragraph (d)(3).
0
K. Revising paragraph (d)(4).
0
L. Revising paragraph (d)(5)(vi).
0
M. Revising paragraph (e)(1).
0
N. Removing paragraphs (e)(2) through (e)(9).
0
O. Redesignating paragraph (e)(10) as paragraph (e)(2).
0
P. Adding a new paragraph (e)(3).
0
Q. Revising paragraph (f).
0
R. Redesignating paragraphs (g), (h), (i), and (j) as paragraphs (h), 
(i), (j), and (k).
0
S. Adding a new paragraph (g).
0
T. Revising newly redesignated paragraph (i).
    The revisions and additions read as follows:


Sec.  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 non-
citizen 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:

[[Page 38692]]

    (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.

[[Page 38693]]

    (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

[[Page 38694]]

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.
* * * * *

0
5. Section 435.1008 is revised to read as follows:


Sec.  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 Sec.  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 Sec.  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

0
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).

0
7. Section 436.124 is revised to read as follows:


Sec.  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 
otherwise-eligible 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 Sec.  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 Sec.  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 non-qualified 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 Sec.  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 non-qualified alien would remain 
eligible for emergency services under Sec.  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 Sec.  435.916. At that time, the State must collect 
documentary evidence of citizenship and identity as required under 
Sec.  436.406.

0
7a. Section Sec.  436.406 is amended by:
0
A. Revising paragraph (a)(1)(iii).
0
B. Adding paragraph (a)(1)(v).
0
C. Revising paragraph (a)(2).
0
D. Revising paragraph (b).
    The revisions and addition read as follows:


Sec.  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

[[Page 38695]]

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 
Sec.  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.

0
8. Section Sec.  436.407 is amended by:
0
A. Adding introductory text to the section.
0
B. Revising paragraph (a)(4).
0
C. Revising paragraph (b)(1).
0
D. Revising paragraph (b)(5).
0
E. Adding paragraphs (b)(11) and (b)(12).
0
F. Revising paragraph (c).
0
G. Revising paragraph (d) introductory text.
0
H. Revising paragraph (d)(2).
0
I. Revising paragraph (d)(3).
0
J. Revising paragraph (d)(4).
0
K. Revising paragraph (d)(5)(vi).
0
L. Revising paragraph (e)(1).
0
M. Removing paragraphs (e)(2) through (e)(9).
0
N. Redesignating paragraph (e)(10) as paragraph (e)(2).
0
O. Adding a new paragraph (e)(3).
0
P. Revising paragraph (f).
0
Q. Redesignating paragraphs (g), (h), (i) and (j) as paragraphs (h), 
(i), (j) and (k).
0
R. Revising newly redesignated paragraph (i).
0
S. Adding a new paragraph (g).
    The revisions and additions read as follows:


Sec.  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. Sec.  
1101(a)(22)) to include both citizens of the United States and non-
citizen 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

[[Page 38696]]

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

[[Page 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.

0
9. Section 436.1004 is revised to read as follows:


Sec.  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 Sec.  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 Sec.  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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